This past weekend, a new executive order from the Trump administration went into effect, requiring potential asylum seekers to enter, legally, through a port of entry in order to be eligible for asylum. Before this went into effect, anyone inside the US was eligible to claim asylum based on fear of harm from their home country, irrespective of how they entered US borders; this is based on the U.S. Refugee Act that was passed by Congress in 1980, allowing anyone who is on U.S. soil to claim fear and enter into the asylum process.
Like many of Trump’s orders, this proclamation came without warning, which means that those working at the ports of entry were caught without warning and already deeply understaffed. There are 48 U.S.–Mexico border crossings, with 330 ports of entry, most of which are backlogged by the request. The Daily Beast reports how already, asylum-seekers following the new orders are being turned away. This follows on the heels of documented intentional misinformation and intimidation of those seeking asylum in the United States via the southern border, about which the ACLU is also pursuing legal suits.
What does this mean for the around 80 LGBTQ migrants who have arrived as part of the current “caravan” of migrants seeking asylum? Even longer wait times and a seemingly indefinite backlog, under the duress of violence and discrimination from their fellow migrants, after fleeing much of the same at home. The nonprofit group Raices has been funding their stay at hotels, but the longer their wait, the thinner those resources will become. The road to asylum itself is fraught and full of dangers, from hostile-to-rogue CPB agents, harsh conditions of travel, and even death, yet the promise and hope of a better, safer life propel the asylum-seekers coming to our borders. Meanwhile, even while their options for claiming asylum have been bottlenecked by this proclamation, the literal roads to asking for asylum are being shut down and made harder to access.
If they do finally make it into the asylum process, they may be detained and have to wait even longer. This wait, for the caravaners, will see a switch from a policy of “last in, first out” to “first in, first out,” which means that those who applied most recently are first to be scheduled for their interviews — but that means they have only that short period of time to prove their eligibility for “parole” or find sponsorship; to obtain a semi-permanent mailing address for receiving interview notices and outcome letters; find legal counsel, and tell their stories so as to pass increasingly high bars of proof for “credible” or “reasonable” fear. For LGBTQ and other asylum-seekers who have previously asked for an asylum adjudication, it means that the time until they can even come in for an interview has become even more protracted as asylum officers work through a 2+ year backlog.
All of this is part of a larger program of intimidation and hostility towards asylum-seekers and immigrants as a whole, under the guidance of Jeff Sessions as Attorney-General and Kirstjen Nielsen as head of DHS. Sessions’ time presiding over the immigration courts has included a drive for “efficiency” that’s forced immigration judges to decide someone’s fate within hours; a severe limiting of the options for immigrants and asylum-seekers, including disallowing victims of gang and domestic violence from claiming those as a legal basis of fear; and a nearly 50% increase in arrests and deportations of non-violent, non-criminal immigrants. Sessions aggressively assigned cases to himself, allowing him to personally shape narrower and harsher precedents in the immigration courts. Though it’s been upheld in court, he continues to challenge DACA and even raise the specter of rescinding it. Though his clashes with Trump after his recusal have resulted in his resignation, his legacy as Trump’s bulldog on immigration is still echoing through the courts he’s reshaped in his image.
Every time a new proclamation is issued and goes into effect, the burden is on advocacy groups and the courts to apply it to the existing law and pursue an injunction. Like many of this administration’s past executive orders — the so-called “Muslim Ban,” for example — advocacy groups and immigration lawyers have been quick to file suit. The ACLU has announced their intention to sue on the basis of the Refugee Act, and an injunction stalling the order is intended to go into effect soon thereafter.
Even as families from the “Northern Triangle” (the Central American countries of Guatemala, Honduras, and El Salvador) are making up increasing numbers of asylees, this administration remains committed to its “deterrence” approach to immigration, including the widely-maligned family separations. Their attempts to eliminate restrictions from the Flores Settlement to allow them to detain families indefinitely only makes things more dire.
This administration has been characterized by a bullish pursuit of an anti-immigrant agenda, irrespective of the realities of immigration and the rule of the border. Rather than send administrative and adjudicative support in advance of his executive order limiting asylum, Trump instead deployed almost 7,000 military troops to the border in advance of the caravan, a move characterized by The Washington Post’s editorial board as “a total farce.” Though Nielsen has been an enthusiastic supporter of Trump’s “zero tolerance” attitude and repeated defense of the department during the uproar over family separations, her attempts at explaining the realities of immigration law in response to his hardline approach to immigration enforcement have displeased him, and many sources are reporting he wants to remove her — in part as a way to also push out White House Chief of Staff John Kelly, who has been known to defend her to the president.
There’s not much hope that these staff changes will bring new improvements. Every new executive order, surprise procedure, and anti-immigrant initiative from this administration — even as it’s opposed by advocacy groups and immigration lawyers within the courts — has the effect of slowly eroding the core principles of a nation previously positioned in openness to the refugees of the world. It is not impossible to imagine that an administration that has been hostile to queer and trans people will soon place LGBTQ identities on the chopping block of eligibility for asylum as well. What Trump seems not to understand is that if or when that happens, we will still be here.
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