President Donald Trump walks to the White House residence on January 12 (Getty/Drew Angerer)
The Department of Homeland Security had issued drastically revised guidance for asylum procedures in December, laying out a controversial procedure for turning away people seeking asylum without a fair hearing.
Human rights campaigners warned the proposed changes would “eviscerate” the asylum process, and “radically change long-established definitions and standards under US asylum law, in violation of international law binding on the United States”.
Concerns were raised about a number of changes relating to discrimination-based claims, with Human Rights Watch warning it would “create insurmountable procedural barriers, evidentiary burdens and qualification standards” for Central Americans fleeing gang violence, women fleeing domestic abuse, and lesbian, gay, bisexual and transgender (LGBT) people.”
Judge blocks enforcement of Trump administration’s new asylum seeker rules
However, the plans were dealt a killing blow on Friday (8 January) when a judge blocked enforcement of the new rules, which had been due to take effect from Monday (11 January).
US district judge James Donato ruled that acting Homeland Security secretary Chad Wolf did not have the authority to impose the new rules, as he was not Senate-confirmed to the role and his appointment violated an established order of succession.
It is the fifth time that the Department of Homeland Security has lost a court battle on the same grounds.
Donato said: “The government has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts.
“This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through.”
Wolf resigned from his post one day after the ruling, citing “the ongoing and meritless court rulings regarding the validity of my authority as acting secretary”.
With just seven days left of the Trump presidency, the proposed changes are likely to be discarded by the incoming Biden administration.
Rule changes would have made LGBT+ asylum claims near-impossible
One of the most noxious of the changes would have allowed evidence to be discarded from asylum claims if the adjudicator thought it promoted a cultural stereotype against a country or a person.
Campaigners say the changes would block a huge number of people persecuted on account of their gender, sexual orientation, race or religion from being able to make their case – with adjudicators ordered to throw out evidence from LGBT+ people facing death threats if deemed to promote a “cultural stereotype”.
His LGBT+ policy plan released ahead of the election said: “The Statue of Liberty has long been a beacon to people ‘yearning to breathe free’ around the world – including to asylum-seekers and refugees.
“But the Trump-Pence administration has undermined this tradition by severely limiting the ability of members of the LGBTQ+ community, an especially vulnerable group in many parts of the world, from qualifying for asylum as members of a ‘particular social group.’ The Trump-Pence administration has also instituted migrant protection protocols, preventing individuals from entering the US while awaiting their asylum hearing.
“As president, Biden will ensure asylum laws protect people fleeing persecution. Biden will end Trump’s migrant protection protocols and restore our asylum laws so that they do what they should be designed to do — protect people fleeing persecution and who cannot return home safely.
“He will make sure LGBTQ+ refugees and asylum seekers have access to necessary services and protections. And, he’ll ensure federal agencies are trained to identify and respond to the particular needs of LGBTQ+ refugees and asylum seekers, including by expediting services for LGBTQ+ people who may be targeted by violence or are under threat in their home countries.”