U.S. Asylum Bans Strand LGBTQI+ Refugees in Danger and Risk Return to Persecution

On May 11, 2023, the Biden administration initiated a new bar on asylum through its Circumvention of Lawful Pathways (CLP) rule. Often referred to as an “asylum ban,” the CLP bar is structured to deny asylum, with highly limited exceptions, to non-Mexican people who cross into the United States between ports of entry or arrive at ports of entry without CBP One appointments. The ban is used with expedited removal to deny people full asylum hearings — even if they would have a significant chance of winning asylum in immigration court — if they don’t meet a higher, unduly onerous initial screening standard.

The June 4, 2024 asylum entry ban proclamation and Interim Final Rule arbitrarily bars access to asylum to most people entering the United States at or between ports of entry without a CBP One appointment. That asylum entry ban exacerbates and adds new barriers that further endanger LGBTQI+ and other people seeking asylum. Both bans are versions of policies implemented under the former Trump administration.

These asylum bans endanger and punish LGBTQI+ and other people seeking asylum. The bans and related policies:

• Endanger LGBTQI+ people seeking asylum by requiring them to wait months in Mexico to obtain a CBP One appointment where they face acute risks of anti-LGBTQI+ persecution and suffer kidnappings, sexual assault, and other harms due to their sexual orientation, gender identity, race, language, and nationality.
• Impose punishments and potential refoulement to persecution on LGBTQI+ people seeking asylum. The asylum bans punish people seeking asylum who enter at the southwest border at or between ports of entry without a CBP One appointment and deny eligibility for asylum if they cannot meet narrow exceptions unrelated to the merits of their asylum claim. In expedited removal, those found ineligible for asylum under the 2023 asylum ban face an improperly high fear screening standard. As a result, LGBTQI+ asylum seekers from Venezuela and Colombia have been ordered deported while others risk refoulement to persecution. The new June 2024 asylum entry ban further heightens the fear screening standard which will increase the likelihood of wrongful returns to persecution.
• Deny equal access to asylum to LGBTQI+ people who cannot use the CBP One app due to language barriers (the CBP One app is only available in three languages), illiteracy, disability, or other reasons. LGBTQI+ people with families also risk denial of equal access to the asylum ban’s limited “family” unity exception.
• Deny lifesaving protection screenings to vulnerable LGBTQI+ and other people seeking asylum. The new June 2024 asylum entry ban eliminates critical safeguards to identify asylum seekers who should receive a protection screening interview before being deported without a hearing. By eliminating the longstanding requirement that border officers ask whether a person has a fear of return in their language, the new entry ban endangers LGBTQI+ refugees who do not speak English, do not know they can raise, or are hesitant to raise in Border Patrol encounters fears of harm that relate to their sexual orientation, gender identity or other persecution. Limiting protection screenings to people who know that they must and can manage to “manifest their fear” to Border Patrol officers despite language barriers, trauma, and privacy concerns, will lead to the return of refugees to persecution, torture and other harm.
• Punish LGBTQI+ people for not applying for asylum protection in unsafe countries through which they transited. The 2023 asylum ban punishes people seeking asylum by denying eligibility for asylum if individuals cannot prove that they sought and were denied asylum protection in a country through which they transited to reach the United States. LGBTQI+ people seeking asylum should not reasonably be expected to apply for asylum in unsafe transit countries due to the high risk of LGBTQI+ persecution.
• Will deny refugees a path to residence and citizenship when they are ultimately denied asylum and left only with withholding of removal, undermining their longer-term stability and integration. For example, a Georgian LGBTQI+ asylum seeker who was denied asylum due to the 2023 asylum ban will be denied the path to legal residence, stability, and citizenship that he would have received through a grant of asylum, which an Immigration Judge explained would have been granted to him but for the ban.

Leading U.S. organizations that represent and advocate on behalf of LGBTQI+ people seeking asylum, including Immigration Equality, the Council on Global Equality, and Human Rights Campaign have repeatedly raised dire concerns about the impact of the asylum ban on LGBTQI+ individuals and urged that it be rescinded. For example, the Human Rights Campaign, writing on behalf of its more than three million members and supporters nationwide, warned that the 2023 asylum ban would deny protection to many refugees, including LGBTQI+ people and people living with HIV, place LGBTQI+ migrants at active risk of facing the same dangers that they are trying to flee from, and is inconsistent with the Biden administration’s demonstrated commitment to LGBTQI+ people around the globe. Immigration Equality, an organization that advocates for and represents LGBTQI+ and HIV-positive immigrants, has repeatedly 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.”

The Biden administration should rescind its 2023 asylum ban and its June 4, 2024 asylum entry ban proclamation and Interim Final Rule. Congress should reject any additional attempts to further limit access to asylum through bans, bars, heightened screenings, detention, or other policies that strand and return people to danger. Legislative proposals like H.R.2, the Secure the Border Act, the S.4361 Border Act of 2024 or the imposition of other barriers to asylum through administrative action will put LGBTQI+ and other asylum seekers at even greater risk of persecution, torture, and other harms.

Instead, the Biden administration and Congress should take steps to guarantee prompt, equitable, and just access to asylum to all people seeking asylum, including LGBTQI+ individuals, as required by U.S. and international refugee law. In addition to rescinding the asylum ban, key steps include: conduct processing at more ports of entry and ensure access to people who do not have CBP One appointments; ensure equitable access to the CBP One app and increase the number of CBP One appointments offered; and strengthen and properly fund the asylum adjudication system to ensure fair and timely outcomes, among other recommendations previously outlined by Human Rights First.

The following factsheet will highlight key findings on the impact of the asylum ban policy on LGBTQI+ people during its first year based on Human Rights First’s research and interviews with asylum seekers along the U.S.-Mexico border. Download the full factsheet below.