Immigration Asylum And Detention Amendments Could Protect LGBT Immigrants

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"Immigration Asylum And Detention Amendments Could Protect LGBT Immigrants"

Last week, the bipartisan immigration reform bill survived its second week of Senate Judiciary Committee markups largely intact and faithful to the “Gang of 8’s” core principals, which would provide a pathway to earned citizenship for the 11 million undocumented immigrants in America.  Today, the Committee will debate proposed amendments to Title III of the bill, which will address interior enforcement of immigration laws, including asylum procedures, indefinite detention, and solitary confinement.  Here’s a rundown of what some upcoming amendments mean for LGBT immigrants:

Asylum

Homosexuality is currently a crime in 78 countries around the world.  The right to seek asylum from persecution is a core right necessary to protect LGBT people around the world from persecution.  Unfortunately, a major obstacle to LGBT immigrants availing themselves of asylum in the United States is a bureaucratic one.   Under the current law, asylum seekers are required to file an asylum application within one year of entering the U.S.  Currently, under the one-year filing deadline, refugees with credible claims are denied asylum simply because of a bureaucratic technicality.  The elimination of the one-year filing deadline is particularly important for LGBT asylum seekers, who often miss the one-year deadline because they either do not know that sexual orientation or gender-based persecution are grounds for seeking asylum or do not feel safe disclosing their LGBT status to U.S. government officials within a year of arriving in the United States.

The Bill currently would end the one-year filing deadline, but Sen. Chuck Grassley (R-IA) has proposed two amendments that would compromise this improvement:

  • Grassley’s amendment 27 would completely remove the language ending the one-year filing deadline.
  • Grassley’s amendment 52 would substantially delay the elimination of the one-year filing deadline for asylum applications.

Indefinite Detention and Solitary Confinement

Immigrants in detention, including asylum seekers, are locked up in jail-like facilities, separated from their families and communities.   LGBT detainees often experience increased rates of discrimination, mistreatment and abuse both at the hands of fellow detainees and by guards.  Furthermore, a New York Times story this spring found that prolonged solitary confinement has been used on LGBT detainees under the guise of protecting them.  Some upcoming amendments improve the situation of LGBT immigrants in detention facilities, while others place them at greater risk of harm:

  • Sen. Richard Blumenthal’s (D-CT) amendment 2 would prohibit the use of solitary confinement based on sexual orientation and gender identity and stop ICE from using solitary confinement for “protection” of detainees.
  • Despite Constitutional precedent prohibiting the indefinite detention of immigrants, Grassley amendment 53 requiring the indefinite detention of immigrants who cannot be deported, without even the basic protection of a bond hearing to determine if they should be detained in the first place.  His amendment would also require the prolonged detention of arriving asylum seekers, including people seeking protection in the US from persecution on account of their sexual or gender identity.
  • Grassley 51 would eliminate the bill’s expansion of alternatives to detention.  Alternatives to detention seek to make detention less restrictive and less costly for immigrants who have no criminal background and do not pose a flight risk.  For LGBT detainees, who have historically faced unsafe conditions in traditional detention facilities, alternatives offer a way to remain in their support communities while awaiting the outcome of their cases.
  • Senator Jeff Session’s (R-AL) amendment 5 would impose a mandatory 60-day sentence of imprisonment for any immigrant who overstays his or her visa unless the person can be removed within 90 days.  Not only would the amendment require incarceration with no determination of an immigrant’s actual risk to public safety, it would also subject some asylum seekers and Deferred Action for Childhood Arrivals to mandatory imprisonment.

Sharita Gruberg is a Policy Analyst for the LGBT Immigration Project at the Center for American Progress.

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