The Trump administration is quietly working on a plan to have border patrol agents assume the role of asylum officers, making the process of obtaining asylum in the United States exponentially more difficult for LGBTQ individuals.
A pilot program is expected to begin next week, according to Brandon Judd, president of the National Border Patrol Council, which represents Border Patrol agents. White House senior adviser Stephen Miller reportedly spearheaded the policy change, which is expected to rescue the number of asylum seekers who pass their credible fear interviews.
Data suggests that upwards of 90% of asylees pass a test assessing whether they have a “credible fear” of persecution or danger in their country of origin. But credible fear interviews are simply the first step in a lengthy process, and not everyone who passes them ultimately has their claim approved.
The interview process forces asylees, many of whom have spent weeks or even months traveling across multiple countries, to recount painful trauma. Immigration experts are concerned that border patrol agents, who were hired to be law enforcement, won’t receive proper training to ensure that vulnerable asylum seekers receive a fair and accurate hearing.
“This is sort of like asking a traffic cop to decide who should be given orders of protection,” Lori Adams, director of the Immigration Intervention Project at Sanctuary for Families, told ThinkProgress. “Asking one to do the other makes us all less safe.”
Refugee and asylum officers with U.S. Citizenship and Immigration Services (USCIS) began receiving training in 2012 to help educate them not just on immigration law, but also on how to identify the specific challenges facing LGBTQ asylum seekers.
USCIS guidance on LGBTQ asylum seekers instructs asylum and refugee officers on issues like best practices on interviewing HIV-positive asylum applicants, what terminology to use and avoid, the specific types of harm that befall sexual minorities, and information on an applicant’s country of origin, so that officers are completely informed on the unique dangers they may have faced.
In Mexico for example, high levels of crime and human rights violations are reported against migrants, including kidnappings and abuses perpetrated by the Mexican government, which go unpunished in 99% of cases reported, according to a report from Amnesty International. That’s in addition to any acts of violence LGBTQ people face due to their sexual orientation or gender identity.
The training teaches officers how to create an environment wherein a refugee or asylum seeker feels comfortable sharing their story.
“It is important to create an interview environment that allows applicants to freely discuss the elements and details of their claims […] Like most gender-based claims, LGBTI claims involve very private topics that are difficult for applicants to talk about openly,” the USCIS LGBTQ training course reads. “LGBTI applicants may hesitate to talk about past experiences and may be afraid they will be harmed again because of their actual or perceived sexual orientation or gender identity. For many, it will be very difficult to talk about something as private as sexual orientation, gender identity, or HIV-positive status. Furthermore, you, yourself may feel uncomfortable discussing some of these issues. It is therefore especially important for you to create an interview environment that is open and non-judgmental.”
CBP agents, who are armed law enforcement officers, are not the ideal candidates to handle sensitive cases that deal with deep, personal trauma.
“LGBTQ asylum cases are some of the most complicated at the credible fear stage,” Adams said. “Fleeing from places where it wasn’t safe to admit who they were. To approach the U.S. border and one of the first things you need to say is ‘I’m gay’ when maybe you’ve never said it yourself out loud before…you’re certainly not going to want to say that to someone holding a weapon.”
The training that refugee and asylum officers go through is meticulous and lengthy. Aaron Morris, Executive Director at Immigration Equality, told ThinkProgress the process takes “much longer” than two weeks, the amount of time since the new policy was announced to when it is set to begin.
“My strong concern about asking CBP officers to do [credible fear interviews] is that they do not have any training,” said Morris, who has conducted training for asylum officers. “They’re also a different entity, they have more of a law enforcement bent and they’re not in the position of getting anyone benefits, of adjudicating claims. It’s pretty disconcerting and I appreciate that the administration might think it’s quicker, but we have a duty to uphold the fundamental human rights we believe in, and asking a law enforcement officer to do the job of a judge is wrong.”
“Lumping all that power and discretion into one enforcement agency is bound to result in bad decisions,” he added.
The pilot program is lacking on key details like where on the border this pilot program will take place. It’s also not clear if this is even legal. Section 235 of the Immigration and Nationality Act requires that the credible fear interviews be done by asylum officers with “professional training in country conditions, asylum law, and interview techniques.”
It also isn’t clear if this policy will allow asylum seekers to challenge an officer’s decision if their credible fear claim is denied.
Currently, if an officer determines that an asylee has a credible fear of returning to their country of origin, that claim moves to the courts and a judge makes a decision. If an officer determines an asylee does not have a credible fear, they have an opportunity to challenge that in court. With no ability to challenge, that leaves one person — a law enforcement agent — with the sole power to determine whether or not someone has a right for asylum in the United States.
And it’s not as though CBP has a stellar track record of successful interactions with LGBTQ asylum seekers. Last year, Roxsana Hernández, a transgender asylum seeker from Honduras, died shortly after being released from CBP custody. Hernández was held for five days in a freezing CBP holding cell while suffering from complications with HIV.
Transgender asylum seekers face particular mistreatment by CBP and ICE officers. According to the Center for American Progress, ICE “detains transgender women in 17 facilities. Four are all-male facilities.” There is one transgender “pod” at a detention center in Cibola County, New Mexico, but the location is so rural that it makes it very difficult for victims to report assault or maltreatment or to seek legal protection. (ThinkProgress is an editorially independent news site housed at the Center for American Progress Action Fund.)
With asylum seekers detained for longer periods of time under the Trump administration, abuse is part of every day life for LGBTQ asylum seekers, who are subject to abuse from not only ICE and CBP agents, but also their fellow immigrants and asylum seekers they are detained with. Immigration law enforcement officials will occasionally place transgender immigrants and asylum seekers into solitary confinement on the grounds that it is for their own safety, but that ends up causing more harm than good.
“I was held in a U.S. cell and it was horrible, so tense; you are discriminated against as well, they discriminate against you, they marginalize you […] they put me in with all men, three and a half months, they never took account of my sexuality or that I was trans,” Cristel, a Salvadoran asylum seeker, told Amnesty International.
The shift to have border patrol assume the responsibilities of refugee and asylum officers is just one of the ways in which the Trump administration is making the process of seeking asylum in the United States nearly impossible. With Stephen Miller cleaning house at the Department of Homeland Security (DHS), the administration wants to get tougher on the border. During a visit to Calexico, California last week, Trump suggested that immigration law enforcement should block any migrant or asylum seeker from entering the United States, in direct violation of immigration law. Another Miller and Trump policy being floated currently would prohibit them from obtaining work permits while their cases play out in court, leaving vulnerable individuals without an ability to support themselves for what could be years.