LGBTQ asylum seekers are particularly endangered by Trump’s “Remain in Mexico” policy

In January, the Trump Administration began implementing the Migrant Protection Protocols (MPP) policy, requiring asylum seekers at the San Ysidro port of entry near San Diego to remain in Mexico for the duration of their immigration proceedings. By midyear, MPP was expanded across the entire U.S.-Mexico border. Close to 50,000 asylum seekers have been returned to Mexico since MPP began.

Mexico is particularly dangerous for LGBTQ asylum seekers; a 2016 study from UNHCR, the U.N. Refugee Agency, found that two-thirds of LGBTQ asylum seekers and refugees suffered sexual and gender-based violence once they crossed into Mexico. Under MPP, asylum seekers are being sent to some of the most dangerous parts of the country. In fact, more than 1,000 asylum seekers each week are being returned to areas that the U.S. State Department Travel Advisory has designated a Level 4 threat risk, the same warning as Afghanistan, Iraq, Syria, Somalia, North Korea, and Yemen, according to Orders from Above: Massive Human Rights Abuses Under Trump Administration Return to Mexico Policy, a report by Human Rights First. 

Many LGBTQ asylum seekers impacted by MPP are fleeing the northern Central American countries, which are among the most dangerous places in the world for LGBTQ people: 88% of LGBTQ asylum seekers and refugees suffered sexual and gender-based violence in their countries of origin, according to UNHCR. Their trauma is perpetuated by this policy. “Persecution follows LGBTQ asylum seekers to the border,” said Daniella Burgi-Palomino, co-director of the Latin America Working Group, a U.S.-based human rights advocacy organization. “While Mexico’s northern border states have high levels of disappearances, sexual and gender-based violence, torture, and extrajudicial executions to begin with, dangers are particularly strong for LGBTQ asylum seekers who may face the same kinds of persecution due to their identity that they faced in their home countries while waiting in Mexico. Any human rights violations they experience as a result of ‘Remain in Mexico’ along the border will only compound the trauma they have already experienced previously.”

According to the ACLU, there have been numerous incidents of asylum seekers being robbed, kidnapped, extorted, or murdered when they are returned to Mexico. Additionally, they are mostly living in squalid conditions without access to adequate shelter, food, safe drinking water, or health care, and with no real means of finding employment. LGBTQ asylum seekers are waiting for months for their cases to be heard, “and if they lose, they will be sent back to countries where they will likely be killed,” said Sharita Gruberg, policy director of the LGBT Research and Communications Project at the Center for American Progress. “There is no medical care or mental health care for people while they are waiting to find out if they are going to be deported to their death or not. Many people are just living on the streets in Mexico or in shelters and don't have an address, which makes it hard to communicate with them, so if their court hearing is changed, they won't find out until it’s too late, losing their chance at protection through no fault of their own.”

Finding free or affordable legal help in Mexico, especially a lawyer with knowledge of U.S. laws, is extremely cumbersome, and only about 1,100 have been represented by counsel. “All of the due process that is the usual part of the asylum hearings is nonexistent,” said Dani Marrero Hi, racial and economic justice outreach coordinator at the Texas Civil Rights Project. “Instead of a brick-and-mortar court, proceedings are held in a tent via video conference with a judge, and it’s extremely hard to have access to a lawyer. It's a hot mess and making a mockery of due process. The [asylum process] was flawed before, but there is no reason to make these changes except to do cruelty for the sake of cruelty. And these changes won’t stop people from fleeing because they are so deeply afraid of the violence they face in their home countries. The policy also makes Mexico complicit by turning itself into a default Trump wall.”

LGBTQ people “are not safe in the border towns — there are not enough shelters, and specifically not enough shelters that serve LGBTQ people,” said Bridget Crawford, legal director of Immigration Equality. “And these small towns cannot absorb all the people who are being sent back from the U.S. It’s just mass chaos. Even the people who do manage to get a court date, often when they report to the port of entry to attend their hearing they are denied entry or it is so delayed that they miss their hearing and their claim is denied. It really is refoulment [expulsion of an asylum seeker who faces persecution in their home country] in violation of domestic and international law; people with a strong claim of asylum are being denied an opportunity to have their case heard and returned to a country where they are likely to be persecuted. Even places in Mexico where there is a social safety net have been completely overwhelmed by MPP.”

Before the implementation of MPP, asylum seekers arriving at the border were entitled to stay in the U.S. while pursuing their claim, as long as they could establish a “credible fear” of persecution, which was determined by specially trained asylum officers. In fact, the U.S. isn’t allowed to return asylum seekers to persecution or torture under both domestic and international law. If an asylum seeker has a reasonable fear of persecution from being placed into MPP, they are supposed to be exempted. However, the U.S. Immigration Policy Center at UC San Diego found in its survey of asylum seekers who had been returned to Mexico under MPP that “nearly 2 out of every 3 of … respondents (63.9%) who expressed fear of being returned to Mexico and were given a secondary interview by an asylum officer reported that their persecutor(s) can find and have access to them in Mexico, but were returned to Mexico anyway.”    

To date, of the 47,313 in MPP, only eleven have won asylum. “All of these policies — MPP, third-country-transit ban, safe third country agreement — should be overturned as unlawful, but in the interim, people are being harmed and dying,” said Crawford. “If the collective whole makes seeking asylum virtually impossible, it’s a way to eliminate it altogether. Asylum hasn't always been a partisan issue. For decades, both Republicans and Democrats have supported policies that offer protections for asylum seekers.”

MPP has not generated the public outrage that the family separation policy did in 2018, partly because it is happening out of view. “It’s deliberate on the part of the Trump administration to push asylum seekers into Mexico, and makes it easier to cover it up,” said Gruberg. “They are hoping that the distance hides the story. This is happening in places that are hard for American journalists to cover and lawyers to reach, and that's the point.” 

Legal challenges related to MPP have included a federal lawsuit, Innovation Law Labs v. McAleenan, which was heard by the U.S. Court of Appeals for the Ninth Circuit on October 1. Also, the ACLU of San Diego and Imperial Counties filed a class action suit on November 5 against DHS demanding that asylum seekers in MPP who have expressed fears of returning to Mexico must have access to lawyers. On November 12, a judge issued a temporary restraining order, allowing the Guatemalan family at the center of the lawsuit access to their lawyer, and they are now in the U.S. But the policy remains in effect.

“The definition of a refugee is someone fleeing because their life is in danger, and then to send them away is a violation of our own laws,” said Allegra Love, executive director of the San Diego Dreamers Project, which provides free legal services to immigrants, including detained transgender women. “When you are sitting with someone in detention who is wearing a jumpsuit and wasting away, dying of a treatable disease and they are being treated like a criminal, and [as their lawyer] we have to tell them that we can't protect them and instead prepare them to return to their country where they will die. The way we are detaining people shouldn’t result in them dying.”