Asylum Ban Increases Threats of Sexual Violence Against LGBTQ+ Asylum Seekers

By Claire Hunt, Human Rights First intern

Facing persecution and violence in their home countries, many LGBTQ+ people are forced to flee their homes and seek asylum in the United States. On the journey to seek safety, migrants are exposed to threats of rape, kidnapping, and assault. LGBTQ+ asylum-seekers are particularly susceptible to these perils, as the compounding elements of their sexual orientation and migrant status place them in a unique position of vulnerability. 

In a study on gender-based violence and asylum deterrence polices, one respondent claimed that 100 percent of their LGBTQ+ clients had faced sexual violence. A 2018 Report found that two-thirds of LGBTQ+ migrants from El Salvador, Guatemala, and Honduras who applied for refugee status reported having been victims of sexual abuse in Mexico. Horrific experiences such as that of a transgender Salvadorian woman who was kidnapped and raped at the border are shared by many LGBTQ+ immigrants.  

The Biden administration’s unlawful asylum ban subjects LGBTQ+ asylum-seekers to further threats of sexual violence. By forcing migrants to wait in unsafe conditions for limited CBP One appointments, the ban keeps LGBTQ+ people in places where they face constant threats of assault, exploitation, and trafficking. Most migrants seeking asylum wait for months in a line that barely moves, stuck in camps that lack adequate housing, food, or water. Immigration Equality, an organization that advocates for LGBTQ+ and HIV-positive immigrants, condemned the ban, warning that: “It will ultimately cost the lives of some queer people and subject others to persecution and torture, and these are people who have come to the United States to flee that exact problem.”  

Already, we have seen these fears materialize. Of 420 LGBTQ+ migrants recently interviewed by Al Otro Lado, one in five was a victim of kidnapping and one in four was a victim of sexual violence. In a Human Rights First report, a Venezuelan LGBTQ+ asylum seeker explained that LGBTQ+ people are often targeted and violated while waiting in the Matamoros encampment.  

A LGBTQ+ Venezuelan man said that he lived the same experiences that he fled from while waiting to seek asylum in the Matamoros camp. “Being in the camp here is like being over there. You live the same experiences: lack of respect and verbal violence. There was a group of migrant men in the camp who harassed gay and lesbian people to violate them.” 

Migrants are forced to choose between staying indefinitely in dangerous conditions or seeking safety at a port of entry without an appointment, risking their chance to access asylum and face possible detention. For LGBTQ+ asylum seekers, these options are exceptionally hazardous. In addition to facing increased vulnerability in border camps, LGBTQ+ asylum seekers are at disproportionately high risks of sexual violence within detention centers. 

LGBTQ+ immigrants in ICE custody are 97 times more likely to be sexually victimized than non- LGBTQ+ people in detention. Multiple reports substantiate the high rates of rape, sexual assault, harassment, and coercion against LGBTQ+ individuals from both other detainees and staff members. 

Transgender people are particularly vulnerable to sexual violence in detention centers and lack any power to stop or even report abuse. While detained in the LaSalle ICE Processing Center in 2021, a Mexican transgender asylum seeker was sexually assaulted. He was prevented from sending a copy of his complaint to an attorney and told that if his attorney reviewed it, it could not be used. He never received a response to his complaint. This suppression of rights is not an uncommon experience. Transgender detainees are often placed in protective custody or solitary confinement, yet this means they are subjected to conditions equivalent to psychological torture or isolation.

Instead of providing safety to those fleeing abuse in their countries, the Biden administration’s asylum ban exposes LGBTQ+ refugees to heightened danger of sexual violence. LGBTQ+ asylum seekers are forced to wait for months in camps where they are targeted and violated because of their sexual identity. The lack of information about the ban also means migrants face threats of detention, where LGBTQ+ migrants are at disproportionate risk of sexual violence. 

While LGBTQ+ asylum seekers often fall under the category of a “particular social group,” sexual orientation or identity is not defined as a basis for an asylum claim. Yet, LGBTQ people face distinct and unique threats that cause many to flee in fear of persecution or violence. 

The case of Gonzalez Aguilar v. Garland underlines the importance of why queer identity must be listed as a credible basis for seeking asylum. Kelly Gonzalez Aguilar, a transgender refugee from Honduras, was placed in ICE detention for 1,000 days and spent months in solitary confinement after an immigration judge found no pattern or practice of persecution to support her asylum claim. After years of appealing her case, Kelly petitioned for judicial review by the Tenth Circuit Court of Appeals, which granted her petition. The court ruled that: “On the asylum claim, any reasonable adjudicator would be compelled to find a pattern or practice of persecution against transgender women in Honduras.” 

This precedent established in Gonzalez Aguilar v. Garland, which directly recognizes the defendant’s queer identity qualified as a credible fear of persecution, should support the need for a defined category for LGBTQ+ asylum seekers. No queer refugee should be forced to wait years in detention and told that the daily violence they face does not qualify as credible enough for asylum. LGBTQ+ identity must be legally and institutionally recognized as a cause for credible fear of persecution.

What the Biden administration can do to protect LGBTQ+ migrants seeking asylum in the U.S.:

• Rescind the asylum ban. LGBTQ+ migrants fleeing persecution must not be forced to wait in conditions where they are at constant risk of violation. Uphold the right to seek asylum and prioritize the timely processing of all asylum seekers as defined by U.S. law and core principles of international refugee law binding on the United States.  

• Redistribute resources to protect rather than penalize LGBTQ+ asylum seekers. Instead of overfunding detention centers where queer refugees are 97x more likely to be sexually violated than the general population, fund basic human necessities for those stuck waiting for CBP One appointment at the border. While the government spends over $1 billion on detention centers, migrants at the border lack working bathrooms, potable water, and shelter. 

• Finally, cement credible fear claims for LGBTQ+ asylum seekers. Current reasons for credible fear of persecution include race, religion, nationality, membership in a particular social group, or political opinion. To address the unique dangers that LGBTQ+ refugees face, persecution on the basis of queer identity must be explicitly protected.