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African Human Rights Coalition Files LGBTQI+ Focused Opposition to Biden Asylum Proposed Rule

African Human Rights Coalition has filed comments with the U.S. government opposing the Biden administration's proposed regulations for asylum seekers arriving at the southern border. AHRC's comments focus on LGBTQI+ asylum seekers from African countries, who we contend to be among the most marginalized within the forced displacement population. Attempting to reach the Southern Border is often the only option, yet most onerous from someone from an African country. They have chosen that most difficult path, due to limited pathways. We also conclude that the rule proposal is incompatible with asylum law and international refugee law. AHRC has also highlighted the inadequacies in the U.S. law and policy to accommodate Africa's LGBTQI population, with its unique considerations.


Here are our comments, as presented:


March 26, 2023


Daniel Delgado Acting Director Border and Immigration Policy Office of Strategy, Policy, and Plans U.S. Department of Homeland Security telephone (202) 447-3459

Lauren Alder Reid Assistant Director, Office of Policy, EOIR U.S. Department of Justice telephone (703) 305-0289


Re: Comment on the Proposed Rule by the Department of Homeland Security (DHS) and the Executive Office for Immigration Review (EOIR) on Circumvention of Lawful Pathways, CIS No. 2736-22; Docket No: USCIS 2022-0016; A.G. Order No. 5605-2023


Dear Acting Director Daniel Delgado and Assistant Director Lauren Alder Reid;


AFRICAN HUMAN RIGHTS COALITION submits this comment in response to the Department of Homeland Security (DHS) and Department of Justice (DOJ)’s Proposed Rule published in the Federal Register on February 23, 2023, that would ban many refugees from asylum protection in the United States and deprive refugees of the ability to pursue a path to citizenship. The proposed rule is a new version of similar asylum bans promulgated by the Trump administration that were repeatedly struck down by federal courts as unlawful.


Introduction:

These comments focus on chosen general aspects of the Proposed Rule in light of the specific impact with reference to LGBTQI+ asylum seekers from African countries.


African Human Rights Coalition (AHRC) is an NGO, a non-profit project under fiscal sponsorship of Social Good Fund, Inc., California. AHRC works in the U.S. and in several African countries with LGBTQI+ people in forced displacement. AHRC is the only U.S./global organization that is dedicated solely to LGBTQI+ people forcibly displaced in and from African countries. AHRC advocates for human rights, protections, and provides lifesaving humanitarian services and legal resources, while promoting decriminalization and decolonization of human sexuality and gender identity, and solutions to navigate the impact of anti-LGBTQI+ laws, hostile environments and the massive displacement crises facing Africans. We are led by those with lived experience, most fleeing anti-LGBTQI+ criminalizing laws and persecution.


AHRC is directed by Melanie Nathan, a country conditions expert witness in the U.S. Immigration Courts for LGBTQI+ asylum seekers from 20 African countries.


AHRC acknowledges the challenges faced by the U.S. as the asylum and immigration system remains broken and long without essential reform, and all the while the numbers of people seeking asylum remains daunting. However, we believe that the U.S. continues to fail the specific needs and rights of many asylum seekers to include that of LGBTQI+ people from African countries, who are persecuted through societal taboos in almost all African countries, and criminalized in over 30 countries, with harsh punitive measures to include life in prison and the death penalty in some, as evidenced for example by the newly passed (March 22, 2023) Ugandan Anti-Homosexuality Act of 2023 (pending assent by President Museveni) DEATH SENTENCE for aggravated homosexuality. This failure will be exacerbated by the Proposed rule which we see as impactful as an asylum ban. Our Comments on the Proposed Rule:

The PROPOSED RULE AMOUNTS TO AN ASYLUM BAN, incorporating a new, sweeping ground of ineligibility for asylum seekers arriving at the U.S. southern border who did not seek asylum in a country of transit and/or did not obtain an appointment to present at the border using a mobile phone application known as “CBP One.” This Proposed Rule will constitute a dramatic shift in the U.S. asylum system, making access to asylum at the southern border the exception rather than the norm. It attempts to cut off access to asylum for many refugees at the southern border, discriminates against Black, Brown, and Indigenous asylum seekers, is particularly onerous for LGBTQI+ asylum seekers who have journeyed across a sea and up a continent with unique protection and reception challenges, and seeks to circumvent U.S. law and treaty obligations to refugees.


The Proposed Rule fails several central principles of international refugee law that is binding on the United States. The United States is party to the 1967 Protocol, and, by incorporation, is bound by articles 2-34 of the 1951 Convention. Nonetheless, the Proposed Rule threatens to violate key aspects of that treaty, among them the foundational principle of non-refoulement and the right to seek asylum. The Proposed Rule will lead to the refoulement of large numbers of asylum-seekers of many different nationalities.


AHRC endorses the concerns of all those opposing the rule. We have chosen to limit our response to chosen areas and are grateful for those objecting to all issues that we have not covered.


AHRC endorses the UNHCR assertion: “Under international law, individuals who fulfill the criteria enumerated in Article 1A(2) of the 1951Convention (or its Protocol), and who are not excluded under Articles 1D, 1E or 1F, are entitled to be recognized as such and protected under that instrument. For that reason, asylum adjudication must correspond with international standards. By putting forward a category of presumed ineligibility for asylum, the Proposed Rule creates a bar to asylum, in effect resulting in exclusion from refugee status, which is not permitted under the 1951 Convention. UNHCR notes that the 1951 Convention and 1967 Protocol establish an exhaustive exclusionary framework that governs when and how those who otherwise would qualify for protection may legally be excluded from that protection.14 Going beyond that framework will lead to erroneous exclusion, refouling those who need protection and placing them at risk of persecution and / or death.”


The Proposed Rule proposes that certain non-citizens who enter the United States at the southwest land border are subject to a “rebuttable presumption of ineligibility for asylum” unless certain conditions are met. The rebuttable presumption of ineligibility applies to those who have traveled “through a country other than the [non-citizen’s] country of citizenship, nationality, or if stateless, last habitual residence, that is a party to the 1951 United Nations Convention relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.” This will, in effect, shift to other States the responsibility for adjudicating asylum claims, providing appropriate reception arrangements, and granting international protection.


LGBTQI+ People are not safe and unable to declare their sexuality, the very basis for their claim, in transit countries which equally criminalize and demonize their SOGIESC.[1]


This is particularly onerous for LGBTQI+ asylum seekers who are criminalized, demonized and ostracized merely by virtue of their sexual orientation, gender identity, sex characteristics. (SOGIESC). Unlike other asylum seekers, LGBTQI+ asylum seekers are not escaping war, gangs, DV, politics or religious persecution, but persecution based on their core human elements and essence of being. Their SOGIESC, all of which is further harmed by the very countries in respect of which The Proposed rule shifts a presumption and responsibility. These in route countries mostly all discriminate against and persecute LGBTQI+ people to such an extent that the chance of people receiving any due process, services, facilities, reception, and protection, are remote. LGBTQI+ people do not feel safe providing their very reason for seeking asylum to authorities in countries where they are demonized and criminalized.[i]


The Proposed Rule establishing a presumption of ineligibility for asylum after traveling through a third country be rescinded in its entirety;

and


AFRICAN HUMAN RIGHTS COALITION strongly urges the agencies to withdraw the proposed rule in its entirety and stop pursuing asylum bans that advance the Trump administration’s agenda and have been welcomed by anti-immigrant, homophobic and transphobic hate groups.


The administration should instead uphold refugee law, restore full access to asylum at ports of entry, ensure fair and humane asylum adjudications, and rescind the Trump administration entry and transit bans in their entirety. There is much more this administration can do and differently to ensure the U.S. fulfills its obligations to asylum seekers and refugees.

When it comes to LGBTQI+ people seeking asylum: there are few paths to protection, safety and a full and equal life. A right to one’s sexual orientation, gender identity and sex characteristics are inimitable rights which borders, and offending rules should never defy! Democratic society values freedom and human rights and are compelled to forge pathways not shut them down.

Over 30 Countries in Africa criminalize LGBTQI+ people and the remaining countries on the Continent all harbor extreme taboos, resulting in discrimination, persecution and abuse to include mental and physical torture, violence and death, at the hands of state and non-state actors, to include families. African Governments are following a trend that we at AHRC believe is intended to lead to extermination of LGBTQI+ people on the Continent. This was evidenced by the Ugandan Parliamentary debate when passing the Anti-Homosexuality Act of 2023 on March 21, 2023. This Act is now waiting attestation from President Museveni.


Members of Uganda’s Parliament added the death penalty for so called “AGGRAVATED HOMOSEXUALITY” amidst Parliamentarians declaring that the country should rid itself of all homosexuals (LGBTQI+). The U.S. has already condemned the Act, via CNN: “US Secretary of State Antony Blinken slammed the bill, which would “undermine fundamental human rights of all Ugandans and could reverse gains in the fight against HIV/AIDS,” he tweeted on Wednesday. “We urge the Ugandan Government to strongly reconsider the implementation of this legislation.” [ii]


At African Human Rights Coalition we are receiving calls from people who have been forced to hide and are seeking paths out of the country. Two Examples of many, attached.[iii]


Nigeria, Ghana, and Kenya have either imposed harsher anti-LGBTI+ legislation or are about to introduce more onerous new legislation. We believe this is a trend that will cause more countries to follow suit. Already over 30 countries criminalize LGBTQI+ people. These laws license abuse by state and non-state actors. And in countries that do not have such laws public retribution is significant. In countries where the laws do not lead to charges and jail terms, police use the laws to unlawfully detain, torture and take bribes for release. This is endemic to at least 30 countries on the continent. In addition to the physical harms, LGBTQI+ people suffer much trauma, mental and emotional harms, and are severely discriminated against. Harms include firings, evictions, banishments, reparative or conversion therapies, blackmail, kidnapping, extortion, beatings, assaults, mob justice, vigilante vengeance, rape, “corrective” rape, torture, disappearances, and killings. LGBTQI+ people have nowhere to go. The paths to protection and safety are unjustifiably limited and onerous.

In considering what I delineate herein, I would like you to think of the following: - ANNE FRANKS: Africa’s LGBTQI+ people are the Ann Franks of Africa. Many are in hiding unable to function normally, with no paths to freedom, and a conclusion to their life that is unspeakable. With that in mind, would you exact this this policy or legislation – that effectively may close what is the one and only door for many, to freedom, safety, and life. (See endnote iii) - THE U.S. ACCOUNTABILITY: Christian missions and Evangelical imposition continue to participate in the introduction of the criminalizing laws to a once historically tolerant or accepting indigenous society that was colonized. The American Evangelicals have usurped this realm bringing their warped religious ideology, couched in hateful rhetoric, to Africa, demanding harsher and more explicit anti-homosexuality legislation, much of which has taken hold in countries such as Nigeria, Ghana and Uganda to name a few. This crusade has further endangered the LGBTQI+ plus communities and ramped up a political and religious realm symbiosis that is proving to be lethal. Surely, we as a Nation are accountable?


There are virtually no routes or paths for Africa’s LGBTQI+ community and the Proposed Rule will shut what may be the ONLY path for very few.


While we are complicit in the harms, albeit inadvertent, we are now shutting the door on its victims:

1. A VISA to an occidental safe equality-based country such as the United States is unattainable. Most African LGBTQI+ people cannot prove their intent to return home and seeking visitor or student visas solely for purpose of asylum is because, so few paths are realistic. So we invite an invitation to abuse our visa system when people take these visas solely for asylum purposes. That is a reality indicative of the need for reform. What makes this even worse is that mostly privileged with money can attain these visas. This point to how few paths to the U.S. exists for those who are marginalized. They do not have means or resources because they have been isolated by the very homophobia that they are fleeing. Ostracized and isolated by family, banished from villages, fired by employers, with no chance of economic survival least of all the prosperity that a VISA seeks as evidence of intent to return home. An LGBTQI+ asylum seeker has been robbed of every aspect of their lives because they are criminalized and demonized by everyone in their lives. Though surreptitious in a way we all know the reality - that many seek visitor or business or student visas and then once in the USA claim asylum. This has turned into a privilege for white people and Eastern European gays and also for those from wealthier Middle Eastern countries. But black African LGBTQI+ people are excluded by race and means. They do not have the means or perceived credibility to attain these visas……


2. Many LGBTQI+ Africans become refugees in hostile host countries. So, for example, a Ugandan fleeing to Kenya is further criminalized in Kenya, compelled to live in a refugee camp under the encampment law where they encounter, not only a hostile host criminalizing government, but further persecution at the hands of fellow refugee populations, who harbor the same demonization toward them as they experienced in their country of origin. Again, they experience violence, and it is very difficult for UNHCR to protect them, given the attitude of local government/s. For example – Uganda has refused to register Kenyan claiming refugee status under LGBTQI+ persecution. This is but one example.


We do not see much help coming from the U.S. Government in this regard, not advocacy or diplomacy that hold local host government accountable. Instead, we see bland criticism of UNHCR which we believe is unwarranted as they are not empowered to do more than they already do in complex hostile protection spaces. The U.S. ought to be firm and more accountable in their dealings with foreign governments.

Another aspect of this perceived pathway to freedom is the fact that there are no durable solutions on the Continent, for an African refugee from an African country who is LGBTQI+. There is no chance of repatriation, like victims of war or political upheaval. There is no chance of asylum in that second country because criminalizing laws makes LGBTQI+ people the equivalent of bank robbers and so would be like giving a “bank robber” asylum based on his robbing banks. Through this we note that very few qualify for resettlement to a third country and resettlement is not guaranteed. And for those who are ultimately resettled the wait and languish time is at east 4 – 6 years, in unsafe conditions. Most are not resettled. Those who wait inordinate length of time, and even ultimately resettled, experience violence, are compelled to sex work to survive, and many contract HIV during this experience.


3. The final path, that very few take – include the following stories of actual cases where I have testified as a country conditions expert (some facts slightly changed to keep confidentiality) in asylum cases. These true cases would be denied under the new Proposed Rule:


- The 22-year-old lesbian from Senegal, with a 4th grade education, who made her way to a South American country because a well-wisher provided an air ticket and she managed to get a visa. She was being raped every weekend by a chosen family member, who was designated to exact so called corrective rape – to turn her straight. After a year of this abuse, she was ready to commit suicide when finding the help. She made her way up the continent, taking many months, barely surviving much of what she experienced, joined a caravan at some point and declared herself at a U.S. border. After a year in detention, pro bono lawyer, and country conditions expertise, she was granted asylum. The Biden/Harris plan would close the door to her and those who seek her path.

- The gay man from Uganda who was unlawfully detained by Ugandan police in a raid of a workshop. The police burned his testicles. They exacted other torture. He managed to flee to several countries on his route to a U.S. border. He arrived traumatized, was detained. Could barely speak to authorities about being a gay man and yet was expected to provide enough self-advocacy to survive these pre-Asylum Ban terms. Imagine if he was faced with this new set of proposed rules?


- The Nigerian trans woman who resorted to a similar path to the above asylum seekers, hid her authenticity to finally reach the border. Only to be held back by title 42 and then to suffer further abuse while she waited for solutions. Where would any of these people go after being turned away at our borders? What more would you expect them to endure?


Founded in 2014, African Human Rights Coalition is the only LGBTQI+ organization in the United States and globally, dedicated to working with Africa’s LGBTQI+ community in forced displacement, providing services and resources to LGBTQI+ Africans fleeing with truly minimal solutions. Please do not rob this extremely vulnerable community of one of its very few paths.


The U.S. is doing nothing to create special paths and solutions for this very marginalized and vulnerable community, while prioritizing other nations and circumstances. The ban is a ban – and will have a drastic impact on Africa’s LGBTQI+ community. AFRICAN HUMAN RIGHTS COALITION strongly urges the agencies to withdraw the proposed rule in its entirety and stop pursuing asylum bans that advance the Trump administration’s agenda and have been welcomed by anti-immigrant, homophobic and transphobic hate groups. As a country conditions expert witness in the U.S. Courts, I am willing to provide any briefing on those conditions and paths pertaining to over 20 countries where I have provided testimony for LGBTQI+ asylum seekers over the past several years, to include: Angola, Burundi, DRC, Ethiopia, Ghana, Guinea Conakry, Equatorial Guinea, Kenya, Malawi, Niger, Nigeria, Rwanda, Senegal, The Gambia, Tanzania, Zambia, and Zimbabwe. Thank you for your kind consideration,

In solidarity. MELANIE NATHAN


[i] [i] AHRC participated in the2021 United Nations High Commissioner for Refugees in Geneva (UNHCR): 2021 UNHCR-UN IE SOGI GLOBAL ROUNDTABLE ON PROTECTION AND SOLUTIONS for LGBTQI PEOPLE IN FORCED DISPLACEMENT with 13 Thematic Working Table at the Conference on June 09, 2021, one on RECEPTION AND SELF-DISCLOSURE OF LGBTQ+ DISPLACES AND STATELESS PEOPLE, led by Melanie Nathan: The ROUNDTABLE yielded 39 recommendations at the Closing Plenary on June 29, 2021. Participants discussed the drivers of displacement, the challenges of seeking asylum, the need to include LGBTIQ+ people in national health services and social programs, resettlement, local integration, livelihood opportunities and more. Many LGBTIQ+ persons are forced to flee their country of origin or place of habitual residence in order to avoid persecution or to protect their children from harm. Due to the particular circumstances related to their SOGIESC, LGBTIQ+ refugees, asylum seekers, internally displaced and stateless people face multiple forms of discrimination not necessarily experienced by other displaced and stateless people. During flight and after arrival in asylum countries, LGBTI individuals often continue to be subject to the same abuse from which they fled. Importantly, they are often unable to access support or protection from other displaced people with whom they share a common national, ethnic, political or religious background. Many LGBTIQ+ persons are forced to flee their country of origin or place of habitual residence in order to avoid persecution or to protect their children from harm. Due to the particular circumstances related to their SOGIESC, LGBTIQ+ refugees, asylum seekers, internally displaced and stateless people face multiple forms of discrimination not necessarily experienced by other displaced and stateless people. During flight and after arrival in asylum countries, LGBTI individuals often continue to be subject to the same abuse from which they fled. Importantly, they are often unable to access support or protection from other displaced people with whom they share a common national, ethnic, political or religious background. [ii] UN and US join chorus of condemnation against Uganda’s hardline anti-LGBT bill, By Larry Madowo, Nimi Princewill and Catherine Nicholls, CNN, https://www.cnn.com/2023/03/22/africa/uganda-lgbtq-bill-condemned-intl/index.html [iii]


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