Federal Judge Blocks Trump Administration's "Death to Asylum" Rule

In response to a request from Lambda Legal, Immigration Equality, and Kramer Levin Naftalis & Frankel LLP, the U.S. District Court for the Northern District of California issued an order today blocking, in its entirety a Trump administration rule that would have made it virtually impossible for all refugees, including those who are LGBTQ or living with HIV, to secure asylum in the United States. The rule, set to go into effect on January 11, 2021, would have eliminated eligibility for anyone with a gender-based claim, and would have declared that most refugees should be denied protection because they don’t deserve it. Now, the controversial and sweeping rule will not go into effect while the case is being litigated. 

In his order, Judge James Donato, writes: 

“In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through. … But our system has no room for relitigating the same facts and law in successive district court cases ad infinitum... Plaintiffs provide legal services and other assistance to those seeking asylum and similar protections from persecution or violence in their home countries. They have provided ample evidence that if enacted, the Rule would harm this mission. … A nationwide injunction is warranted.”

Immigration Equality v. Department of Homeland Security was filed on behalf of plaintiffs Immigration Equality, Oasis Legal Services, The TransLatin@ Coalition, Black LGBTQIA+ Migrant Project, and Transgender Law Center. If the rule is allowed to go into effect, the population these organizations directly serve, asylum seekers who are LGBTQ or living with HIV, will face insurmountable barriers to asylum in the United States, despite the fact that they have remarkably strong asylum claims. Read more about the rule below.

“This rule is part of the Trump administration’s relentless efforts to close our doors to migrants and here, in particular, to refugees escaping persecution, even as the administration’s days wane. The rule is rooted in xenophobia and cruelty. It also is a haphazard attempt to enact a sweeping and unworkable overhaul of our asylum system, without adequate justification or compliance with the law,” said Omar Gonzalez-Pagan, Senior Attorney for Lambda Legal. “Lives are at stake and we are relieved that the court has put this abhorrent policy on hold while we continue to make our case. We are gratified by the Court’s quick action and confident that these attempted changes will never take effect.”

“Today’s ruling halts the most sweeping illegal, anti-refugee volley of the Trump administration,” said Bridget Crawford, Legal Director for Immigration Equality. “Asylum is an international human right. LGBTQ and HIV-positive refugees fleeing persecution will always be welcomed in the U.S.”

More information about the rule:

The rule—promulgated by the U.S. Department of Justice and U.S. Department of Homeland Security—is especially dire for people who are LGBTQ or living with HIV, who have no other recourse but to flee the unimaginable violence they experience in their countries of origin. In over 70 countries it is a crime or fundamentally unsafe to be LGBTQ or HIV-positive. The suit challenges multiple sections of the rule for creating numerous reasons why immigration judges should deny claims of refugees who otherwise qualify for asylum.

The rule denies asylum to people who:

·      apply for asylum based on fear of persecution due to their gender, which may be interpreted by authorities as including LGBTQ asylum seekers;

·      didn’t apply for asylum in a transit country, regardless of whether that nation is safe;

·      stayed in a transit country for more than 14 days, even if they were trapped in that country;

·      lived in the U.S. for more than one year without permission, even if they qualify for an exception to the one-year filing deadline;

·      have otherwise strong claims of persecution if they are unable to prove that government officials participated in the abuse (e.g. violence by private actors, such as civilians who perpetrate mob violence or so-called “corrective rape,” will not count as evidence toward an asylum claim);

·      are unable to explain in their first interaction with immigration officials the particular social group they are a part of, requiring LGBTQ and HIV-positive people to disclose and describe their identity and intimate details about their personal lives with particular concepts and language. 

The case is Immigration Equality v. Department of Homeland Security (which is being heard with the related case, Pangea Legal Services v. Department of Homeland Security), learn more here.

Attorneys working on the case are Law and Policy Director Jennifer C. Pizer, Senior Attorney Omar Gonzalez-Pagan, and Senior Attorney Richard Saenz from Lambda Legal, Legal Director Bridget Crawford and Executive Director Aaron Morris from Immigration Equality, and Jeffrey S. Trachtman, Aaron M. Frankel, Chase Mechanik, Jason M. Moff, and Austin Manes from Kramer Levin Naftalis & Frankel LLP.

Read Judge Donato’s ruling here. 

Read the request for a temporary restraining order and preliminary injunction here. 

Read the complaint  here.