New Biden Asylum Policy Will Hurt LGBTQ+ Migrants and Others, Activists Say

Human rights groups are criticizing President Joe Biden’s new policy on asylum-seekers, saying it’s as restrictive as the one enacted by Donald Trump or possibly more so.

The policy comes as the pandemic-related restriction known as Title 42 is set to expire at 11:59 p.m. Thursday. Under Title 42, put in place in 2020, immigration authorities could turn back migrants at the U.S.-Mexico border and deny them the right to seek asylum, with the rationale being that it was a way to stop the spread of COVID-19. Previously, unauthorized migrants could cross the border and usually remain in the U.S. if they declared they were seeking asylum. Many of those who want asylum in the U.S. are LGBTQ+ people who have been persecuted in their home countries.

With the Biden administration’s new rule, published Wednesday and set to go into effect with the end of Title 42, it will be harder for migrants to apply for asylum. “Under the rule, migrants who cross the southern border without authorization will be presumed to be ineligible for asylum if they can’t prove they previously requested protection in a third country,” CBS News reports. “In practice, it will disqualify most non-Mexican migrants who enter the U.S. between ports of entry from asylum.” They are expected to be turned back.

There will be exemptions for those who make an appointment to enter the U.S. via a mobile app, for unaccompanied children, and for those who have what the policy calls “exceptionally compelling circumstances,” such as a medical emergency or being the subject of extreme threats. There will also be certain accommodations for families.

A similar policy established by Trump’s administration before Title 42 was struck down in court, and the new Biden policy may meet the same fate. “We will sue as we did under Trump,” Lee Gelernt of the American Civil Liberties Union told CBS News. “The core illegality is the same.”

The Biden administration has argued that its policy isn’t like Trump’s because it offers more options to enter the U.S. legally, such as the phone app. Administration officials also say the policy will discourage migrants from endangering themselves by dealing with smugglers. But border crossings were expected to surge with the end of Title 42, something that would be denounced by the right, so the new policy reflects the political climate.

Among those objecting to the administration’s plan is Immigration Equality, an LGBTQ+ immigrants’ rights organization. The group notes that LGBTQ+ migrants from Central and South America often encounter persecution, including physical violence, in Mexico and other countries that pass through, and it calls the phone app “notoriously inaccessible.”

“We are astonished by the administration’s callous disregard of the dangers President Biden’s asylum ban imposes on LGBTQ refugees,” Immigration Equality Legal Director Bridget Crawford said in a press release. “In the final rule — scheduled to go into effect once the Title 42 policy is lifted — the administration doesn’t meaningfully address or fix problems with the ban we identified in the notice and comment process. Instead, using circular logic, the administration dismisses our concerns, and doubles down on the illegal implementation of the ban. This ban is a travesty that will cause LGBTQ refugees (and others) with strong, meritorious asylum claims to be sent back to countries where they will be persecuted or killed. By implementing this ban, instead of humane solutions that would effectively and compassionately manage the border, President Biden has broken his promise to protect LGBTQ asylum seekers and refugees.”