“SHOOT THEM!”
†
In May 2019, President Trump laughed as a supporter yelled this statement at a rally in response to
his question of how to deter migrants at the border. See Antonia Noori Farzan, ‘Shoot Them!’: Trump
Laughs Off a Supporter’s Demand for Violence Against Migrants, The Wash. Post (May 9, 2019), https://
www.washingtonpos
t.com/nation/2019/05/09/shoot-them-trump-laughs-off-supporters-demand-violence-
against-migrants/?utm_term=.8e6796eb9516.
THE TRUMP
ADMINISTRATION’S IMMIGRATION POLICY AND
ITS EFFECT ON LGBTI MIGRANTS AND ASYLUM
SEEKERS
CLARA MORA*
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
II. W
HY LGBTI PEOPLE MIGRATE AND SEEK ASYLUM . . . . . . . . . . . . 123
A. The Asylum-Seeking and Migrating Process
. . . . . . . . . . . 123
B. Reasons for Migrating or Seeking Asylum
. . . . . . . . . . . . . 124
1. El Salvador
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
2. Guatemala
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
3. Honduras
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
4. Mexico
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
III. C
HALLENGES LGBTI PEOPLE FACE WHEN SEEKING ASYLUM OR
MIGRATING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
IV. C
URRENT POLICY AND ITS EFFECT ON LGBTI PEOPLE . . . . . . . . . . . 131
V. L
EGAL SOLUTIONS TO PROTECT MIGRANTS’ AND ASYLUM SEEKERS’
R
IGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
A. Ongoing Court Cases and Complaints
. . . . . . . . . . . . . . . 135
B. Policy Solutions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
†
*
Clara Mora, J.D. Candidate, 2020, Georgetown University Law Center; B.A. International Affairs
and Political Science, cum laude, 2015, The George Washington University. © 2019, Clara Mora.
121
VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
I. I
NTRODUCTION
On May 25, 2018, Roxsana Hernandez Rodriguez, a transgender
Honduran woman seeking asylum in the United States, died in custody of the
Immigration and Customs Enforcement agency (ICE).
1
Sandra E. Garcia, Independent Autopsy of Transgender Asylum Seeker Who Died in ICE Custody
Shows Signs of Abuse, N.Y. T
IMES (Nov. 27, 2018), https://www.nytimes.com/2018/11/27/us/trans-
woman-roxsana-hernandez-ice-autopsy.html.
Her preliminary au-
topsy showed that she may have been physically abused before her death.
Her death was likely due to a combination of dehydration and complications
from H.I.V.
2
She crossed the border at the San Ysidro port of entry between
San Diego and Tijuana on May 9th, 2018
.
3
Fellow detainees stated that Ms.
Hernandez experienced symptoms of severe dehydration for many days with
no medical evaluation or treatment and was not taken to the hospital until
May 17th.
4
The tragic irony about Roxsana Hernandez Rodriguez’s case is that, while
seeking asylum, she was subjected to the very harm she was seeking asylum
for: freedom from violence, discrimination, and abuse on the basis of her
trans identity. This is a common issue faced by LGBTI individuals who
migrate or seek asylum. In November 2018, a group of about eighty Central
Americans who identified as LGBTI from Guatemala, Honduras, Nicaragua,
and El Salvador sought asylum in the United States based on their identity,
fleeing gang violence, political persecution, and severe poverty. These asy-
lum seekers encountered their own harassment as they traveled to the United
States.
5
Amelia McDonell-Parry, LGBTQ
Asylum Seekers First Migrant Caravan Group to Arrive at U.S.
Border, R
OLLING STONE (Nov. 14, 2018), https://www.rollingstone.com/culture/culture-news/lgbtq-
asylum-migrant-caravan-gay-trans-border-756233/.
LGTBI people seeking asylum in the United States face a myriad of
challenges unique from those of other migrants. Although there are no exact
numbers of how many LGBTI migrants seek asylum at the border each year,
lawyers and activists have estimated the amount to be in the hundreds.
6
Jose A. Del Real, “They
Were Abusing Us the Whole Way”: A Tough Path for Gay and Trans
Migrants, N.Y. T
IMES (July 11, 2018), https://www.nytimes.com/2018/07/11/us/lgbt-migrants-abuse.
html?module=inline.
Such
a critical issue needs to be addressed, as the failure to act results in putting
hundreds of LGTBI people’s lives at stake.
To analyze what needs to be done to protect LGBTI asylum seekers and
migrants, I will first examine why LGBTI people, particularly from the area
known as the Northern Triangle, which includes Guatemala, El Salvador, and
Honduras, and Mexico (where the current influx of asylum seekers primarily
originate), are seeking asylum by summarizing the current political and soci-
etal conditions for LGBTI people in their home countries. Next, I will outline
1.
2. Id.
3. Id.
4. Id
.
5.
6.
122 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 34:121
particular challenges that LGBTI people face when they are seeking asylum
or attempting to migrate in both their claims for asylum and with the chal-
lenges they face while migrating or being detained. Then I will look at how
this Administration’s policies have affected this process for LGBTI people.
Lastly, I will look at what legal and policy solutions need to be proposed to
protect LGBTI people’s rights and suggest what needs to be changed to
address the unique issues faced by LGBTI migrants and asylum seekers.
II. W
HY LGBTI PEOPLE MIGRATE AND SEEK ASYLUM
There are a number of reasons why LGBTI people choose to migrate or
seek asylum, but some may choose to migrate for the same reasons that
everyone else would such as political instability and economic challenges.
But it is important to note that even when migrating for these reasons,
LGBTI face unique challenges because of their identity, especially when
other social conditions exist which denigrate LGBTI people. Studies show
that even in the United States anti-LGBTI laws can lead to higher poverty
for LGBTI people.
7
Movement Advancement Project and Center for American Progress, Paying an Unfair Price: The
Financial Penalty for Being LGBT in America (Sept. 2014), http://www.lgbtmap.org/unfair-price.
LGBTI people often face cultural prejudices which
lead to unemployment or inability to get a job for fear of violence.
8
Astrid Zweynert, Why is
LGBT Poverty Ignored?, World Economic Forum (Oct. 26, 2015),
https://www.weforum.org/agenda/2015/10/why-is-lgbt-poverty-ignored/.
Thus,
any economic, political, or social issue that may cause others to leave a
country may affect LGBTI people more because of these already existing
hurdles.
A. The Asylum-Seeking and Migrating Process
There is a definitional difference between those who are seeking to migrate
and those who are seeking asylum. A person from a foreign nation is granted
asylum in the United States or at the border if they meet the international law
definition of a “refugee.”
9
A refugee is defined as a person who is either
unable or unwilling to return to their home country and cannot obtain protec-
tion in that country either due to past persecution or a well-founded fear of
being persecuted on account of their race, religion, nationality, membership
in a particular social group or political opinion.
10
Since 1994, the United
States has recognized persecution on account of sexual orientation under
“membership in a particular social group” as long as they are able to prove
credible fear.
11
Transgender and H.I.V. positive individuals have won asy-
lum cases for their statuses under the “social group” category.
12
Immigration Equality, Applying for
Asylum, https://www.immigrationequality.org/get-legal-
help/our-legal-resources/asylum/applying-for-asylum/#.XKpMqZhKg2w.
Until they
7.
8.
9. 8 U.S.C. § 1101 (a)(42) (2012); 8 U.S.C.A. § 1158 (b)(1)(B)(iii) (2009).
10. 8 U.S.C. § 1101 (a)(42) (2012).
11. Matter of Toboso–Alfonso, 20 I. & N. Dec. 819 (BIA 1990).
12.
2019] IMMIGRATION POLICY EFFECTS: LGBTI COMMUNITY 123
are granted such legal recognition or status, however, they are considered an
asylum seeker.
13
HIAS, Definitions: Refugee, Asylum Seeker, IDP, Migrant, http://www.hias.org/sites/default/
files/definitions_of_refugee2c_asylum_seeker2c_idp2c_and_migrant.pdf.
Migrants, on the other hand, include refugees as well as people who choose
to move from their home for any variety of reasons including to improve their
lives by finding work or education but not necessarily because of a direct
threat or persecution of death.
14
These reasons can include an inability to
obtain work that may result because of cultural prejudices towards LGBTI
people.
B. Reasons for Migrating or Seeking Asylum
LGBTI people have unique reasons to apply for asylum or to migrate.
Many are seeking a place to express their true identity without fear of vio-
lence or persecution. It is easy to see why so many may seek asylum for this
reason when looking at the laws that exist worldwide targeting LGBTI peo-
ple’s existence and identity. In Nigeria, one can be sentenced to fourteen
years of prison for being gay or lesbian; in Uganda, the punishment is seven
years.
15
Bobby Steggert, A World Report on
the LGBT Immigrant Experience, The Queer Detainee
Empowerment Project at 14, https://www.uua.org/sites/live-new.uua.org/files/world_report_lgbt_immigrant_
experience.pdf.
In 2017, there were government sponsored purges of suspected gays
and lesbians in Tajikistan, Egypt, Azerbaijan, Tanzania, Indonesia, and
Chechnya, mostly in the form of mass incarceration, torture, and humilia-
tion.
16
Brunei recently enacted legislation that would make homosexual sex
punishable by death by stoning which was only upended by international
pressures.
17
Justin Wise, Brunei Reverses on
Death By Stoning for Gay Sex After International Outcry,
T
HE HILL (May 5, 2019), https://thehill.com/policy/international/442195-brunei-reverses-on-death-by-
stoning-for-gay-sex-after-international.
These laws and actions only begin to touch on the persecution
that LGBTI people face globally.
More specifically, in the Northern Triangle and Mexico, LGBTI people
face levels of violence that have led them to seek migrant or refugee status. A
2016 study by the United Nations High Commission for Refugees (UNHCR)
found that eighty-eight percent of LGBTI asylum seekers and refugees
reported suffering sexual and gender-based violence in their home countries
in Central America.
18
In Latin America as a whole, there is an LGBT-related
homicide every day.
19
As a result, the region has the highest rates of violence
against LGBTI people in the world.
20
Seventy-nine percent of the world’s
transgender murder victims were killed in Latin America.
21
In particular, El
13.
14. Id.
15.
16. Steggart, supra note
15, at 19.
17.
18. No Safe Place
, United Nations High Commissioner For Refugees, at 7 (A
MNESTY INT’L, 2017).
19. Steggart, supra note 15, at 27.
20. Id.
21. Id. at 34.
124 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 34:121
Salvador, Guatemala, and Honduras, which have high levels of violence and
political instability in general, have a more hostile environment to LGBT
individuals compared to their Latin American neighbors, partially due to the
heavy influence of evangelical Christianity.
22
In the Northern Triangle specif-
ically, there is currently “unprecedented levels of violence outside a war
zone” and these countries rank in the top ten in the world for homicide.
23
Doctors Without Borders, Forced to Flee
Central America’s Northern Triangle: A Neglected
Humanitarian Crisis, at 4 (June 14, 2017); UNODC, Global Study on Homicide 2013: Trends, Contexts, at 126
(Apr. 10, 2014), https://www.unodc.org/documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_we
b.pdf.
In
addition, even though Mexico is known for its more liberal policies,
24
Caroline Beer and Victor
Cruz-Aceves, Mexico’s LGBT Rights are Stronger than U.S.’s. Here’s
Why., World Economic Forum (Apr. 26, 2018), https://www.weforum.org/agenda/2018/04/religion-the-
state-and-the-states-explain-why-mexico-has-stronger-lgbt-rights-than-the-us.
tension
still exists leading to increased instability for LGBTQ asylum seekers and
migrants crossing into Mexico from other countries.
25
Michelle Hoffman and Alex
St. Denis, Forced to Flee Her Home Trans Activist Calls for
Tolerance, UNHCR, (May 17, 2018), https://www.unhcr.org/news/stories/2018/5/5afbf0aa4/forced-flee-
home-trans-activist-calls-tolerance.html.
It is important to ana-
lyze in depth the particular situation facing LGBTI asylum seekers in each
country to understand the reasons why they seek asylum or migrate to the
United States and why policies that make this possibility less tenable can be
so dangerous. Below are some of the particular issues faced by LGBTI peo-
ple from these countries.
1. El Salvador
Salvadoran LGBT rights organizations have estimated over six hundred
LGBTI Salvadoran individuals have been killed since 1994.
26
El Salvador Events of
2018, Human Rights Watch (2018), https://www.hrw.org/world-report/
2019/country-chapters/el-salvador.
Murders of
LGBT people in El Salvador are often characterized by signs of torture
including severe beating, dismemberment, multiple stab wounds or gunshots
which indicate the hate that motivates these crimes.
27
Georgetown Law Human
Rights Institute, Uninformed Justice: State Violence Against LGBT
People in El Salvador, 30 (Apr. 21, 2017), https://www.law.georgetown.edu/human-rights-institute/wp-
content/uploads/sites/7/2017/07/2017-HRI-Report-Uniformed-Injustice.pdf.
The Association for
Communication and Training Trans Women in El Salvador reported a total
of twenty-eight serious attacks perpetrated against LGBTI people between
January and September 2017.
28
Despite what appears to be a low number of
incidents, seventy-two percent of trans women who have been attacked chose
not to report the incident due to fear of reprisals from attackers as well as lack
of support from the criminal justice system.
29
LGBT Salvadorans also encounter discrimination in accessing healthcare,
education, and employment.
30
LGBT Salvadorans report that once their gen-
der identity or sexual orientation is known they often are forced to wait for
22. Id. at 27.
23.
24.
25.
26.
27.
28. A
MNESTY INT’L, supra note 18, at 9.
29. Id. at 12.
30. Georgetown Law Human Rights Institute, supra note 27, at 30.
2019] IMMIGRATION POLICY EFFECTS: LGBTI COMMUNITY 125
long periods before receiving care or are denied care altogether.
31
Some les-
bian women have even experienced sexual abuse when trying to access
healthcare.
32
Many LGBTI people have been formally or constructively pre-
vented from obtaining education, such as when they are discriminated by
teachers and administration or receiving abuse from peers, thus leading them
to discontinue their education.
33
Employment prospects are equally bleak.
Due to their lack of access to education, many LGBTI people are forced to
support themselves through informal means like sex work or street vending.
34
This in turn often exposes them to more abuse from gangs and other perpetra-
tors of violence.
35
In addition, many LGBTI people suffer harassment and physical, verbal,
and sexual abuse at the hands of Salvadoran law enforcement, which the gov-
ernment has largely ignored.
36
As a result, LGBTI people face high barriers
to access justice, particularly when these crimes are committed by police.
This fosters a sense of impunity, discourages the reporting of crimes, and
increases LGBTI peoples’ mistrust in the justice system.
37
At least 136
LGBT people in El Salvador have fled the country since 2012 as a result.
38
Anastasia Moloney, ‘Terrorized at home’ Central America’s LGBT people to flee for their lives:
report¸ R
EUTERS (Nov. 27, 2017), https://www.reuters.com/article/us-latam-lgbt-rights/terrorized-at-
home-central-americas-lgbt-people-to-flee-for-their-lives-report-idUSKBN1DR28O.
2. Guatemala
LGBTI people face major roadblocks in accessing justice in Guatemala af-
ter experiencing violence or abuse on the basis of their identity. A 2016 study
found that, out of the 85% of LGTBI victims of violence and discrimination
who filed a report for assaults, only 26% received a response from author-
ities.
39
Situation of Human Rights
in Guatemala, Inter-American Commission on Human Rights, at 66
(Dec. 31, 2017), http://www.oas.org/en/iachr/reports/pdfs/Guatemala2017-en.pdf.
Transgender Europe, a non-governmental organization, reported that
forty trans people alone were murdered in Guatemala during 2016.
40
Harmful
legislation has also been proposed, including legislation that would prohibit
teaching about gender and sexual diversity in schools, reaffirm marriage as
the exclusive right of heterosexual couples, and remove the criminal charge
of discrimination when it is directed at LGBTI persons.
41
In addition, many
LGBTI Guatemalans have no access to health care or employment due to
their sexual orientation or gender identity.
42
Michael K. Lavers, Two Gay
Men Run for Guatemala Congress, W
ATERMARK ONLINE (Mar. 12,
2019), http://www.watermarkonline.com/2019/03/12/two-gay-men-run-for-guatemala-congress/.
31. Id.
32. Id.
33. Id. at 31.
34. Id.
35. Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas, Inter-
American Commission on Human Rights, at 160 (2015).
36. Id. at 55.
37. Georgetown Law Human Rights Institute, supra note 27, at 55.
38.
39.
40. A
MNESTY INT’L supra note 18, at 9.
41. Inter-American Commission on Human Rights, supra note 39, at 67.
42.
126 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 34:121
3. Honduras
According to Cattrachas Lesbian Network, there were 264 murders of
LGBTI people in Honduras reported
between 2009 and 2017.
43
Civil society
organizations have stated that the violence is due to the traditional social
environment that exists in Honduras which leads to prejudice and violence.
44
Situation of Human Rights in
Honduras, Inter-American Commission on Human Rights, at 6,
http://www.oas.org/en/iachr/reports/pdfs/Honduras-en-2015.pdf.
Legislation targeting LGBT people, most notably trans people, is also an
issue. For example, the 2001 Police and Social Coexistence Act gives the
police power to arrest anyone who violates “modesty, decency and public
morals.” This puts transgender women, in particular, at risk of being sub-
jected to abuse or arbitrary arrest by the police.
45
In addition, LGBTI
Honduran killings tend to go unpunished: between 2010 and 2014, out of the
141 reported violent deaths of LGBTI people, only thirty cases were prose-
cuted and only nine resulted in convictions.
46
The judicial system does not
provide effective protection for witnesses in cases involving violence against
LGBTI people.
47
Thus, LGBTI individuals suffer violence and even death
from their fellow citizens, as well as at the hands of the government. This
leads many to seek refugee status in other countries.
4. Mexico
In 2016, after then-Mexican president Enrique Pena Nieto proposed legis-
lation that would legalize same-sex marriage for the entire country, there was
a dramatic rise in violence and hate crimes in Mexico, including twenty-six
murders of LGBT individuals in a single year.
48
An estimated 1,310 killings
of LGBT persons motivated by homophobia were committed in Mexico
between 1995 and 2016, although the true number could be much more.
49
Austrian Centre for Country
of Origin & Asylum Research and Documentation, Mexico: Sexual
Orientation and Gender Identity, at 31 (May 2017), https://www.justice.gov/eoir/page/file/972466/
download.
Mexico is currently the country with the second largest number of murders
based on gender identity or expression of gender in the world.
50
Situation of Human Rights in Mexico, Inter-American Commission on Human Rights, at 122
(Dec. 31, 2015), http://www.oas.org/en/iachr/reports/pdfs/Mexico2016-en.pdf.
Among these
deaths about 80% of victims suffered various forms of aggression before
being killed.
51
Trans women in particular experience widespread discrimina-
tion in their lives including violence as children from their families for
expressing their identity, lack of access to education, high dropout rates in
school, harassment and ridicule in public, and being forced to work in
43. AMNESTY INT’L, supra note 18, at 9.
44.
45. Id.
46. Id.
47. Id.
48. Steggert, supra note 15, at 27.
49.
50.
51. Id. (citing Registry Documenting Acts of Violence against LGBTI Persons in the Americas on
Attacks on their Life and Integrity, Inter-American Commission on Human Rights (Dec. 17, 2014)).
2019] IMMIGRATION POLICY EFFECTS: LGBTI COMMUNITY 127
informal economies, all of which makes them more vulnerable to violence
and attacks on their physical integrity.
52
In addition, two-thirds of LGBTI asylum seekers interviewed in 2016 com-
ing from El Salvador, Honduras, or Guatemala reported suffering sexual and
gender-based violence in Mexico.
53
When waiting for a decision on whether
they can enter the United States, migrants and asylum seekers are often
forced to wait in detention centers in Mexico where LGBTI people have suf-
fered discrimination, sexual harassment, and aggression from other detainees
and center staff.
54
These examples serve to illustrate only a few of the issues that cause
LGBTI people to migrate. Whether they suffer a credible fear of persecution
or simply are looking for a better life, being LGBTI can be a major factor as
to why migrants and asylum seekers leave their home countries for a new
chance in the United States.
III. C
HALLENGES LGBTI PEOPLE FACE WHEN SEEKING ASYLUM OR
MIGRATING
In general, there are two ways a person may apply for asylum in the United
States: the affirmative process or the defensive process. A person who is not
in removal proceedings may affirmatively apply for asylum through the U.S.
Citizenship and Immigration Service (USCIS).
55
Affirmative Asylum Procedures Manual
(AAPM), U.S. Citizenship and Immigration Services
(USCIS) (2016), https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%
20Asylum/Asylum/AAPM-2016.pdf.
On the other hand, a person
who is in removal proceedings may apply for defensive asylum by filing
an application with an immigration judge at the Executive Office for
Immigration Review in the Department of Justice. Asylum seekers who
arrive at a U.S. port of entry generally must apply though the defensive pro-
cess. They then have the burden of proving that they meet the definition of a
refugee.
56
8 U.S.C. § 1158(b)
(2012); USCIS, Obtaining Asylum in the United States (2015), https://www.
uscis.gov/humanitarian/refugees-asylum/asylum/obtaining-asylum-united-states.
To do so they must prove that they are unwilling or unable to return
to their country because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social
group, or political opinion.
57
The first struggle that all asylum seekers face is getting their case heard.
Currently, the backlog of cases has amounted to 830,000 pending cases.
58
Molly O’Toole, Trump Plan Fails
to Cut Immigration Court Backlog, as Caseload Soars
More than 26%, L
OS ANGELES TIMES (Feb. 21, 2019), https://www.latimes.com/politics/la-na-pol-
immigration-court-backlog-worsens-20190221-story.html.
The average wait for a hearing is 721 days.
59
Zuzana Cepla, Fact Sheet: U.S.
Asylum Process, National Immigration Forum (Jan. 10, 2019),
https://immigrationforum.org/article/fact-sheet-u-s-asylum-process/.
In prior administrations,
52. Id. at 123.
53. A
MNESTY INT’L, supra note 18, at 20.
54. Id. at 21.
55.
56.
57. 8 U.S.C.
§1101 (a)(42) (2012).
58.
59.
128 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 34:121
individuals were released at a much higher rate before their hearings.
60
Maria Sacchetti, ACLU Sues Trump Administration Over Detaining Asylum Seekers, THE WASH. POST
(Mar. 15, 2018), https://www.washingtonpost.com/local/immigration/aclu-sues-trump-administration-over-
detaining-asylum-seekers/2018/03/15/aea245e2-27a2-11e8-bc72-077aa4dab9ef_story.html?utm_term=.
b9fef1918314.
However, under the current Administration, President Trump has issued a
policy to release as few asylum seekers as possible.
61
Attorney General
William Barr issued an order in April 2019 which forbids migrants from
seeking release on bond which could lead to individuals with pending asylum
claims being postponed for months or even years.
62
Editorial Board, William Barr’s Immigration Order
is the Latest Example of Trump’s Punitive
Policy, T
HE WASH. POST (Apr. 21, 2019), https://www.washingtonpost.com/opinions/william-barrs-
immigration-order-is-the-latest-example-of-trumps-punitive-policy/2019/04/21/1e1d9dc8-6149-11e9-
9412-daf3d2e67c6d_story.html?utm_term=.bf7cfab565fa; U.S. Dep’t of Justice: Off. of the Att’y
Gen., 27 I&N Dec. 509 (A.G. 2019), https://www.justice.gov/eoir/file/1154747/download.
This is particularly bad
for LGBTI people, especially trans people, because they are often targeted
for abuse in detention centers.
63
Human Rights Watch, ‘Do You See How
Much I’m Suffering Here?’ Abuse Against Transgender
Women in US Immigration Detention, (hereinafter Transgender Women) at 1 (Mar. 2016), https://www.
hrw.org/sites/default/files/report_pdf/us0316_web.pdf.
Another struggle is being able to prove that an applicant qualifies for asy-
lum. There are two main ways that an LGBTI person can qualify for asylum
on the basis of their identity. The first is by showing that the LGBTI commu-
nity in their home country is sufficiently visible, meaning whether or not the
culture in that country sufficiently considers LGBTI people to be a separate
group, which can be proved by showing that the government has discrimina-
tory attitudes or practices directed at people who are LGBTI.
64
Political Asylum USA, LGBT, https://www.politicalasylumusa.
com/application-for-asylum/gay-
lgbt/.
The United
States has rejected claims of LGBTI asylum seekers from Mexico on the
grounds that the LGBTI community is insufficiently visible.
65
The second way is to show that they have been persecuted, or face persecu-
tion, on account of their sexual orientation or identity. For example, evidence
that a country makes it criminal for an LGBTI person to have sex, prohibits
them from employment, or persecutes them for having a quality that charac-
terizes them as LGBT, such as H.I.V. or AIDS, would qualify under this
claim.
66
Id.; UNHCR, Guidelines on
International Protection No. 9 (Oct. 23, 2012), https://www.unhcr.
org/509136ca9.pdf.
Despite the fact that people fleeing persecution for reasons of their
sexual orientation or gender identity can qualify as refugees under the 1951
Convention relating to the Status of Refugees and its 1967 Protocol, many
choose not to disclose their sexual orientation for fear of discrimination due
to their experiences in their home country.
67
LGBTI minors encounter a number of issues when trying to obtain asylum
on the basis of their identity. First, many of them may be fleeing from family-
60.
61. Sacchetti, supra note 60.
62.
63.
64.
65. Id.
66.
67. See Guidelines
on International
Protection No. 9, supra note 66; Del Real supra note 6.
2019] IMMIGRATION POLICY EFFECTS: LGBTI COMMUNITY 129
based harm, and, thus, may enter the United States without their family’s sup-
port, resulting in them being labeled as “unaccompanied minors” even if they
are traveling with a trusted non-related adult.
68
Immigration Equality, Practice Advisory: Seeking Asylum for LGBT Children and Youth, Vera
Institute for Justice DUCS Legal Access Project, at 4, (Feb. 2011), http://www.immigrationequality.org/
wp-content/uploads/2011/09/Microsoft-Word
-2412_Practice_Advisory_on_LGBT_Minor_Asylum_
Applicants_February_20111.pdf.
Those who do travel with
their families may be doing so while remaining “in the closet,” and, thus, are
unwilling to make a claim that they are fleeing persecution because of their
identity, which can lessen their chances of being granted asylum.
69
Whether
they are closeted or not, many LGBTI minors still struggle to prove their
LGBTI identity, as many of them are still questioning what that is.
70
Trans
youth, in particular, may not have been able to live according to their authen-
tic gender. As a result, it may be extremely difficult to corroborate a minor’s
sexual orientation which is often proven by identifying previous relation-
ships, which many LGBTI youth may not have experienced.
71
In addition,
because of either being closeted or simply because of the nature of their
youth, many of them have not faced actual persecution on the basis of their
LGBTI identify.
72
Their claims thus must rest upon fear of future persecution,
a claim much more difficult to prove.
73
LGBTI people also suffer violence and abuse from other migrants seeking
asylum, both on their travels from their home country to where they are seek-
ing asylum and once they are in detention centers.
74
This includes violence
and threats from gang members, especially for those who await being granted
asylum while in detention centers in Mexico.
75
For example, a trans
Honduran woman who was attacked by a man with a machete in her home-
town, stated that she had been harassed and sexually assaulted several times
by men while in custody at the Otay Mesa Detention Center in San Diego.
76
In addition, LGBTI people face physical, sexual, and verbal abuse from
detention center guards. There were eleven allegations of sexual abuse or
assault filed by transgender ICE detainees in 2017, but many stated that they
are not taken seriously when they report attacks.
77
Trans women have
reported being humiliated by guards.
78
Furthermore, guards often do nothing
when LGBTI people report abuse, or they threaten to place those reporting
the abuse in solitary confinement.
79
Many detention centers use solitary
68.
69. Immigration
Equality, supra note 68.
70. Id. at 7.
71. Id.
72. Id. at 8.
73. See Immigration Equality, supra note 68.
74. A
MNESTY INT’L, supra note 18, at 22.
75. Id. at 5.
76. Del Real, supra note 6.
77. Id.
78. Id.
79. Id.; Transgender Women, supra note 64, at iii-iv, 25.
130 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 34:121
confinement for transgender detainees “for their protection,” but the result is
increased psychological harm.
80
In addition, many LGBTI people do not receive access to necessary medi-
cal care, including hormone replacement therapy and HIV-related care, as
evident from Roxsana’s story.
81
Thus, the many unique challenges LGBTI
people face when seeking asylum is exacerbated due to the current
Administration’s policies.
IV. C
URRENT POLICY AND ITS EFFECT ON LGBTI PEOPLE
The current Administration has made its views on migrants and asylum
seekers, especially those coming from Central and South America, very clear.
In January of 2018, President Trump referred to immigrants involved in the
Temporary Protected Status program (TPS), which includes El Salvador and
Honduras, as coming from “shithole countries.”
82
Josh Dawsey, Trump Derides Protections for Immigrant
s From “Shithole” Countries,”
T
HE WASH. POST (Jan. 12, 2018), https://www.washingtonpost.com/politics/trump-attacks-
protections-for-immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/11/bfc0725c-
f711-11e7-91af-31ac729add94_story.html?utm_term=.18b2e1aae68b.
He has repeatedly urged
more “toughness” at the border, lamenting that American troops cannot get
“a little rough with migrants,” and has laughed at the suggestion of shooting
migrants at the border.
83
Nick Miroff, Maria Sacchetti,
and Josh Dawsey, Trump Wants ‘Toughness’ to Deter Migration,
But Physical Measures Keep Failing, T
HE WASH. POST (May 4, 2019), https://www.washingtonpost.com/
immigration/trump-wants-toughness-to-deter-migration-but-physical-measures-keep-failing/2019/05/04/
a14495a2-6d16-11e9-8f44-e8d8bb1df986_story.html?utm_term=.806b6f4231d2; Farzan, supra note
†
.
This attitude is reflected in a number of policies
which the Administration has issued in order to curb immigration.
One of these includes the Migrant Protection Protocols (MPP) which
returns foreign individuals who are seeking admission to Mexico for the du-
ration of their immigration proceedings.
84
Department of Homeland Security,
Migrant Protection Protocols (Jan. 24, 2019), https://www.
dhs.gov/news/2019/01/24/migrant-protection-protocols.
This includes asylum seekers who
are not from Mexico including people from El Salvador, Guatemala and
Honduras.
85
Paulina Villegas and Kirk Semple, Trump
Administration’s Asylum-Seeker Policy Takes Effect,
T
HE N.Y. TIMES (Jan. 29, 2019) https://www.nytimes.com/2019/01/29/world/americas/asylum-seekers.
html.
The program can have disastrous effects for many LGBTI peo-
ple as they are forced to stay in Mexico, which is currently experiencing his-
toric levels of violence.
86
Many are then stuck in encampments and shelters
where they are exposed to violence from gangs.
87
Azam Ahmed, et al., Mexico Protests
U.S. Decision to Return Asylum Seekers, T
HE N.Y. TIMES
(Jan. 25, 2019), https://www.nytimes.com/2019/01/25/world/americas/mexico-asylum-seekers.html?
module=inline.
Furthermore, LGBTQ asy-
lum seekers and refugees in Mexico have already received death threats,
80. Transgender Women, supra note 63, at 32-33.
81. Id. at 43.
82.
83.
84.
85.
86. Id.
87.
2019] IMMIGRATION POLICY EFFECTS: LGBTI COMMUNITY 131
physical abuse, and verbal harassment on a daily basis.
88
AMNESTY INT’L, supra note 18, at 8; Katie Sgarro, LGBTQ Asyllum Seekers Cannot Wait Safely
in Mexico, Advocate (Jan. 4, 2019), https://www.advocate.com/commentary/2019/1/04/lgbtq-asylum-
seekers-cannot-wait-safely-mexico.
In July 2018, the Administration, through USCIS, amended the “credible
fear” criteria making it much more difficult to prove.
89
Then-Attorney
General Jeff Sessions changed the requirements, limiting “credible fear” asy-
lum claims for victims of domestic abusers or gang violence to applicants
able to show that their home country was unwilling or unable to protect
them.
90
This is notable, as the top countries for people referred for credible
fear interviews are from El Salvador, Honduras and Guatemala which, as
noted, have high rates of LGBTI violence and gang participation.
91
Will Weissert and Emily Schmall, “Credible
Fear” for U.S. Asylum Harder to Prove Under
Trump, C
HI. TRIB. (July 16, 2018), https://www.chicagotribune.com/news/nationworld/ct-credible-fear-
asylum-20180716-story.html.
In addi-
tion, many LGBTI people are targeted by gang violence because of their
identity.
92
A report on Central American migrants who returned home after
failing to gain asylum found that many asylum seekers were told before their
credible fear interviews that their fear was not credible and that they would
not be reunited with their families.
93
Center for Migration Studies and
Cristosal, Point of No Return: The Fear and Criminalization of
Central American Refugees (June 2017), https://doi.org/10.14240/cmsrpt0617n2.
In addition, the percentage of cases in
which credible fear was found by asylum officers dropped from 78% in
February 2017 to 68% in June 2017.
94
Anneliese Hermann, Asylum in the
Trump Era, Ctr. for Am. Progress (June 13, 2018), https://www.
americanprogress.org/issues/immigration/reports/2018/06/13/452025/asylum-trump-era/#fn-452025-10.
The Trump Administration has also attempted to end the Deferred
Action for Childhood Arrivals (DACA) program. DACA provides an op-
portunity for undocumented individuals who were brought to the country
as children to receive a renewable two-year period of deferred action from
deportation and to become eligible for a work permit.
95
Undocumented Student Program, DACA Informa
tion, Univ. of Cal. Berkley (Apr. 10, 2019),
https://undocu.berkeley.edu/legal-support-overview/what-is-daca/.
However, the re-
scission of the program was prevented by the Ninth Circuit.
96
The Trump
Administration has also called for ending TPS for certain countries, includ-
ing El Salvador and Honduras; TPS allows immigrants from a particular
country to stay and work in the United States legally when a war or natural
disaster strikes their home country.
97
Dara Lind, Trump Administration Puts
End of TPS on Hold for Hondurans and Nepalis, V
OX
(Mar. 12, 2019), https://www.vox.com/policy-and-politics/2019/3/12/18262314/tps-honduras-nepal-
lawsuit-news-status.
The Trump Administration addition-
ally ended the Central American Minor (CAM) program which provided
minors in El Salvador, Guatemala, and Honduras the opportunity to be
88.
89. USCIS, PM-602-0162
(July 11, 2018).
90. Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).
91.
92. McDonell-Parry, supra note 5.
93.
94.
95.
96.
Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018).
97.
132 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 34:121
considered for refugee resettlement while still in their home country.
98
David Nakamura, Trump Administration Ends Obama-Era Protection Program for Central
American Minors, T
HE WASH. POST (Aug. 16, 2017), https://www.washingtonpost.com/politics/trump-
administration-ends-obama-era-protection-program-for-central-american-minors/2017/08/16/8101507e-
82b6-11e7-ab27-1a21a8e006ab_story.html?utm_term=.a3c13117e122.
Those
who did not qualify were considered by USCIS to possibly enter the United
States under parole status, where those who would have otherwise been auto-
matically inadmissible due to a period of unlawful presence, would not be if
they were granted advance parole.
99
In-Country Refugee/Parole
Processing for Minors in Honduras, El Salvador and Guatemala
(Central American Minors-CAM), USCIS (Nov. 15, 2017), https://www.uscis.gov/CAM.
One effect of the Trump Administration’s attempt to rescind DACA and
terminate TPS and CAM is the re-exposure of LGBTQ people to dangers that
forced them to flee.
100
Binh X. Ngo, Women and
LGBTQ Deportees Face Compounded Dangers Upon Return, Ctr.
for Am. Progress (Aug. 10, 2018), https://www.americanprogress.org/issues/immigration/news/2018/08/
10/454637/women-lgbtq-deportees-face-compounded-dangers-upon-return/.
Ten percent of all DACA recipients interviewed in
2017 identify as LGBT.
101
This especially affects Central American countries
where 620,000 DACA recipients are from Mexico, El Salvador, Honduras
and Guatemala.
102
These policies will force many LGBTI immigrants to be
turned away, deported, or coerced into involuntary return or departure.
LGBTI people, in turn, could face persecution and gender-based violence
upon returning to their home countries: one transgender woman’s claim for
asylum in the United States was denied in 2017, and when she returned to El
Salvador, she was immediately subjected to extortion and gang beatings.
103
Nelson Renteria, Trans asylum-seeker
killed after U.S. deportation back to El Salvador,
R
EUTERS (Feb. 22, 2019), https://www.reuters.com/article/us-usa-immigration-violence/trans-asylum-
seeker-killed-after-u-s-deportation-back-to-el-salvador-idUSKCN1QC03L.
Another transgender woman, Johanna Vazquez, was kidnapped by a group of
armed men at the airport after being deported back to El Salvador where she
was subsequently assaulted, gang raped, and abandoned on the side of the
road.
104
Furthermore, once deported, there is often a lack of governmental
support and protection for the migrants.
105
Moreover, the Trump Administration issued an order denying migrants in
detention centers the ability to get out on bail, leaving them stuck in indefinite
detention.
106
This is especially concerning given the overflow of asylum
seekers already being detained. Currently, detention centers run by the
Immigration and Customs Enforcement are holding 50,000 migrants, which
is more than Congress has authorized.
107
Id. Congress has
authorized only 45,274 beds through appropriations with the intent of reducing
the detention population to 40,520 by the end of the fiscal year. See Ted Hesson, Funding Bill Includes
New Limits on Trump’s Immigration Crackdown, P
OLITICO (Feb. 14, 2019), https://www.politico.com/
story/2019/02/14/funding-bill-limits-trump-immigration-1175455.
Over 100,000 migrants were
98.
99.
100.
101. Binh X.
Ngo, supra note 100.
102. Id.
103.
104. Binh X.
Ngo, supra note 100.
105. Ctr. for Migration Studies & Cristosal, supra note 93.
106. Editorial Board, supra note 62.
107.
2019] IMMIGRATION POLICY EFFECTS: LGBTI COMMUNITY 133
detained in April of 2019.
108
Nick Miroff, From the Border, More Frustrating Immigration Numbers for President Trump, THE
WASH. POST (May 8, 2019), https://www.washingtonpost.com/immigration/from-the-border-more-frustrating-
immigration-numbers-for-president-trump/2019/05/08/ad6ac140-71a7-11e9-9eb4-0828f5389013_story.html?
utm_term=.cd1e1b5cdfc0.
The centers are over capacity, and the
Department of Homeland Security has stated they are running out of space to
jail single adult migrants.
109
In April 2019, President Trump released a memo which proposed charging
asylum-seekers fees for an asylum application and a fee for an application for
employment authorization while an asylum claim is pending.
110
Donald J. Trump, Presidential Memorand
um on Additional Measures to Enhance Border Security
and Restore Integrity to Our Immigration System, W
HITE HOUSE (Apr. 29, 2019), https://www.whitehouse.
gov/presidential-actions/presidential-memorandum-additional-measures-enhance-border-security-restore-
integrity-immigration-system/.
This will par-
ticularly affect LGBTI asylum seekers who may have been refused employ-
ment because of their identity in their home country or are impoverished in
other ways because of their identity. They will already be arriving economi-
cally disadvantaged because of this refusal of employment so it will be far
more difficult for them to apply for asylum if they are further required to pay
for an application.
111
President Trump also desired to cut aid to El Salvador, Guatemala, and
Honduras in response to the influx of migrants and asylum seekers.
112
Samantha Raphelson, U.S.
Decision to Cut Central America Aid Could Worsen Migrant Crisis,
Experts Say, NPR (Apr. 2, 2019), https://www.npr.org/2019/04/02/709089322/u-s-decision-to-cut-
central-american-aid-could-worsen-migrant-crisis-experts-say.
Reducing the aid to these already economically and politically struggling
countries will most likely increase the number of migrants and asylum
seekers as conditions at home will worsen.
113
In general, President Trump’s
policies have led to unsafe and unsustainable conditions at the border. These
policies ignore the particular challenges that LGBTI people face and have
done nothing to speed up the application process for those seeking asylum
V. L
EGAL SOLUTIONS TO PROTECT MIGRANTS’ AND ASYLUM SEEKERS’ RIGHTS
Clearly the Trump Administration’s immigration policies need to be over-
turned because of the increasing dangers LGBTI people face from being
excessively detained or returned to Mexico or their home countries when
they are seeking asylum. No effort has been made to expedite these cases by,
for example, funding more immigration law judges. In the meantime,
migrants and asylum seekers are essentially being denied due process. Due
process for asylum seekers includes being granted an interview to establish
whether they have credible fear.
114
However, there are a number of ways that the rights of LGBTI immigrants
can be protected while seeking asylum. Challenges must be brought against
108.
109. Miroff, supra note 108;
Editorial Board, supra note 62.
110.
111. A
MNESTY INT’L supra note 18, at 9 (LGBTQ people find discrimination in the workplace).
112.
113. Id.
114. 8 U.S.C. §1225 (b)(1)(A)(ii) (2012).
134 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 34:121
these unsound policies on the grounds that they are unconstitutional. Once
that has been done, there are a number of practical solutions that can be put
into place to improve the quality of conditions at the border and address the
unique challenges faced by LGBTI migrants.
A. Ongoing Court Cases and Complaints
A number of
cases have already been filed fighting the Trump
Administration’s immigration policies. For instance, the Transgender Law
Center and the Law Office of Andrew R. Free have filed a Notice of
Wrongful Death Tort Claim in New Mexico in response to the death of
Roxsana Hernandez Rodriguez in an effort to hold ICE guards accountable
for Roxsana’s treatment in U.S. custody.
115
Transgender Law Ctr., Roxsana Hernandez Case Summary, https://transgenderlawcenter.org/
legal/immigration/roxsana.
Although the New Mexico Office
of the Medical Investigator released an autopsy report stating she did not suf-
fer abuse, the Transgender Law Center and the Law Office of Andrew R.
Free have maintained that ICE shirked responsibility for Roxsana’s care until
her death.
116
In addition, the Migrant Protection Protocols were temporarily halted in
California by a lawsuit brought by the American Civil Liberties Union and
other advocacy groups who found that the Department of Homeland Security
was not authorized to enact the MPP under U.S. Law.
117
Unfortunately, a
recent decision by the Ninth Circuit overturned that ruling and held that the
policy could remain in place because although the plaintiffs “fear[ed] sub-
stantial injury upon return to Mexico, [. . .] the likelihood of harm is reduced
somewhat by the Mexican government’s commitment to honor its interna-
tional-law obligations and to grant humanitarian status and work permits to
individuals returned.”
118
Miriam Jordan, Trump Administration Can Keep
Sending Asylum Seekers to Mexico, Court
Rules, T
HE N.Y. TIMES (May 7, 2019), https://www.nytimes.com/2019/05/07/us/asylum-seekers-trump-
mexico.html.
This clearly disregards the actual situation in
Mexico at the moment. However, there is hope that the policy will ultimately
be put to a halt on another legal basis, as Judge Fletcher wrote in his concur-
rence: “the government is wrong [. . .] [n]ot just arguably wrong, but clearly
and flagrantly wrong” in stating that applicants for asylum can be returned to
a contiguous territory under 8. U.S.C. §1225(b)(2)(C), further calling the
government’s argument “baseless” and “in support of an illegal policy.”
119
The Ninth Circuit decision follows another case brought before the U.S.
District Court for the District of Columbia where a preliminary injunction
was granted for five of ICE’s Field Offices’ continued detention of individu-
als found to have a “credible fear” of persecution.
120
The court found that
115.
116. Id.
117. Innovation Law Lab
v. Nielsen, 366 F. Supp. 3d 1110 (N.D. Cal. 2019).
118.
119. Innovation Law Lab v.
McAleenan, 924 F.3d 503, 512 (9th Cir. 2019).
120. Damus v. Nielsen, 313 F. Supp. 3d 317, 343 (D.D.C. 2018)
2019] IMMIGRATION POLICY EFFECTS: LGBTI COMMUNITY 135
these ICE offices were making determinations of credibility, not on an indi-
vidual basis or by applying individual facts, leading to many who met the
credible fear criteria to be forced to stay in detention.
121
As an example of
ICE’s failure to consider credible fear on a case by case basis the plaintiffs
included a case where a Honduran man was beaten and held at gunpoint for
being openly gay.
122
Another immigration legal group has taken a different approach, filing a
formal complaint with ICE’s Enforcement and Removal Operations team
accusing it of blocking detained immigrants from free legal services in
response to the number of barriers that ICE has implemented.
123
Letter from Andrea Meza, Dir., RAICES Family Det. Serv. Program, et al., to Deborah Achim
Deputy Field Office Dir., & Melissa DeLeon, Assistant Field Office Dir., ICE Enf’t & Removal
Operations (May 7, 2019) (on file with author), https://www.raicestexas.org/wp-content/uploads/2019/
05/RAICES-Follow-Up-Letter-to-Achim-and-DeLeon-05-07-2019.pdf.
These
included not making space available for private meetings and eliminating a
“walk-in” signup list to speak with counsel.
124
This demonstrates the inability
of LGBTI and other migrants to access justice when their rights are being
violated in detention or in relation to their asylum case in general. These
efforts not only help to get justice for individuals but also draw attention to
the unfair and dangerous policies that have been implemented.
B. Policy Solutions
Ideally, and perhaps under a different Administration, there could be a set
of policies put into place that would improve LGBTI people’s experience
migrating and seeking asylum. The first would be to provide migrant and asy-
lum seekers a “know-your-rights” briefing before their credible fear inter-
view, as well as access to informed non-legal and legal assistance.
125
This is
especially critical for LGBTI people who may not know they can claim asy-
lum based on their identity as an LGBTI person. For instance, it could help
them identify what sort of information they need to prove their identity or
claim as well as assist minors who may have additional difficulties proving
their identity in a claim.
An additional solution is to not require forced detentions, especially for
those who have a credible fear of return.
126
The overcrowded detention cen-
ters are increasingly causing an unsafe place for LGBTI people, especially
for trans people who are often held in solitary confinement and prevented
from accessing needed legal and medical resources. Alternatives should be
in place including letting those who are not a threat or flight risk into the
country. Research shows that around sixty to seventy-five percent of
121. Id. at 341.
122. Sacchetti, supra note 60.
123.
124. Id.
125. Ctr. for Migration Studies & Cristosal, supra note 94.
126. Id.
136 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 34:121
undocumented immigrants show up for their prescribed court date.
127
John Krusel, Majority of Undocumented Immigrants Show Up for Court, Data Shows,
P
OLITIFACT (June 26, 2018), https://www.politifact.com/punditfact/statements/2018/jun/26/wolf-blitzer/
majority-undocumented-immigrants-show-court-data-s/.
The
rate is even higher for asylum seekers.
128
Programs should also be put in place to make it easier for refugees to reach
safety when seeking asylum by making it faster to go through application
proceedings, not putting up additional barriers such as maintaining refugees
and migrants to be detained in unsafe locations, and other solutions.
Currently, all policies are formatted to make it as difficult as possible for a
refugee to reach protection when trying to achieve asylum.
129
A concentrated
approach by the United States, Mexico, and other countries in the region to
make it easier for asylum seekers to reach areas of safety by expediting the
application process, shortening the detention process, and aiding seekers in
the transportation process itself would put less burden on those at the border
who are tasked with dealing with both migrants and asylum seekers. This
could be achieved through a variety of methods including not requiring pay-
ments for asylum applications which may prevent those who are in true dan-
ger from not leaving if they cannot afford it, providing humanitarian visas for
those who are not eligible for refugee status but need protection, the expan-
sion of programs such as the Protection Transfer Agreement, which includes
a multi-country effort for resettlement for those who are in critical need of
protection, or the reinstatement of the Central American Minors program.
130
There also should be multi-country financial and institutional assistance pro-
vided to those people who are returned to their home countries so they do not
face violence and financial insecurity upon their return.
131
Lastly, the United States needs to pay particular attention to vulnerable
groups, especially LGBTI persons when implementing any immigration poli-
cies. The Administration should be proactively working to ensure that
LGBTI people are free from abuse and assault, have access to due process,
and are placed in the safest, but least restrictive situations.
132
Organizations
such as Doctors Without Borders have labeled this as a critical issue in the
wider scheme of immigration issues and have urged administrations to treat
LGBTI people with humanity despite their immigrant status.
133
VI. CONCLUSION
President Trump and his Administration have made their attitudes towards
migrants and asylum seekers perfectly clear. Trump has repeatedly threat-
ened to close the border, has called the current asylum system a “scam,” and
127.
128. Krusel, supra note 127.
129.
Ctr. for Migration Studies & Cristosal, supra note 93.
130. Id.
131. Id.
132. Id.
133. Doctors Without Borders, supra note 23, at 27.
2019] IMMIGRATION POLICY EFFECTS: LGBTI COMMUNITY 137
has looked ways to prevent those from seeking asylum from staying in the
United States.
134
John Fritze & Michael Collins, Nielsen Resignation: What Does Trump’s ‘Tough Direction’
Immigration Plan Look Like?, USA Today (Apr. 9, 2019), https://www.usatoday.com/story/news/
politics/2019/04/09/donald-trump-vows-get-
tougher-immigration-after-kirstjen-nielsen/3399488002/.
These policies have catastrophic effects on LGBTI people
who face physical violence and persecution from the governments in their
home countries. These policies have forced LGBTI asylum seekers to make
difficult choices as they decide whether they should risk the danger of travel-
ing across the border (where they face violence and harassment from gang
members and others migrants), being stuck indefinitely in detention (where
they suffer further harassment and abuse), and facing higher barriers to being
granted asylum, particularly if they are a minor.
Constitutional changes have already been brought on behalf of these
migrants and asylum seekers. These challenges highlight the unique situation
faced by LGBTI people and that there is still more to be done. Roxsana
Hernandez Rodriguez died because she was forced to seek asylum because of
her identity and because of the Administration’s subsequent failure to protect
her. It is crucial that steps are taken to make sure no other LGBTI individual
suffers a similar fate.
134.
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