Court blocks Trump administration attempt to refuse LGBTQ asylum-seekers without hearings

APRIL 29, 2017: President Donald Trump speaks at the the Farm Show Complex and Expo Center in Harrisburg, PA
APRIL 29, 2017: President Donald Trump speaks at the the Farm Show Complex and Expo Center in Harrisburg, PA Photo: Shutterstock

As the administration of Donald Trump winds to its inevitable end, it is returning to its roots. The White House is trying to enact some of the same kind of policies they did or tried to when Trump first entered office — namely, trying to ban immigrants.

A federal judge just blocked the Trump administration’s attempt to make it harder for many immigrants – especially LGBTQ people – to seek asylum in the U.S.

Related: Supreme Court rules in favor of LGBTQ immigrants by upholding Obama’s DACA program

In December, the Department of Homeland Security unleashed over 400 pages of documents laying out their new “procedure” for turning away asylum-seekers without giving them a hearing. Those who seek asylum based on problems they face from “cultural stereotypes,” including gender, are among the claims that DHS seeks to exclude.

The changes, which would have gone into effect this week, would have instructed judges and officials to “not favorably adjudicate the claims of aliens” who claim persecution based on their gender, among other characteristics. Hearings for most people escaping transphobic violence and abused women would have been excluded under the rule changes.

In addition to trans, non-binary, and gender non-conforming asylum-seekers, those seeking asylum based on sexuality — who often cite their home country’s “cultural stereotypes” of gender as a reason they are seeking asylum — could also be denied.

The rules sought to exclude “most asylum seekers” with the procedure implementation, according to the New York Times. Those who hadn’t first sought asylum in the country they reside in, stayed in another country for more than 14 days, were staying in America over a year “without permission” when they filed their claim, or hadn’t filed tax returns could have their case denied without a hearing.

Those that cited violence that wasn’t state-sanctioned, such as attacks or threats of attacks by civilians, gangs, or terrorist organizations, could be denied as well. Lambda Legal attorney Omar Gonzalez-Pagan noted that those with HIV could have been denied unceremoniously as well.

DHS’s argument is that these “stereotypes [that] are offered in support of an alien’s claim” are not sufficient evidence, and thus such asylum cases can be dismissed, with or without a hearing, as “insufficient” or “frivolous.”

But on January 8, federal judge James Donato issued a nationwide injunction barring the implementation by DHS. Judge Donato did so for the same reason many courts have denied new rule changes by DHS: Chad Wolf, Acting Secretary of Homeland Security, is not authorized to change federal policy because he was never confirmed by Congress.

On January 11, Wolf announced his resignation after 14 months as acting secretary, in part because of “the ongoing and meritless court rulings regarding the validity of my authority.” He also cited “recent events,” hinting that the failure of the government to protect the U.S. Capitol from a pro-Trump mob might have played a role in his decision.

Under Wolf, DHS — including the U.S. Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) — have worked endlessly to deny or detain asylum seekers without actually reviewing their claims.

In January 2020, House Democrats came together to call on ICE to release all transgender detainees from their “inhumane” facilities.

“It was the fifth time that a court had ruled against the government on the same grounds,” the Times noted. The rule might have taken “several months” to be reversed because of the complexity of changing asylum policy, had it been implemented.

“In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through,” Judge Donato opined.

Donato also wrote, “if the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise. It did not.”

Immigration Equality, which led the way in challenging the rules, celebrated Judge Donato’s decision.

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