Fleeing Mexico in 2012 after receiving death threats due to advocating for LGBTQ+ rights in the country, Mexican transgender activist Ishalaa Ortega was granted asylum in the U.S. on the basis of persecution on account of political opinion, gender identity, and sexual orientation. However, others like Ortega with similar asylum claims could now find their claims denied if the new asylum rules proposed by President Donald Trump’s administration go into effect.

The changes proposed in June could impact over 330,000 affirmative asylum-seekers with pending applications with United States Citizen and Immigration Services (USCIS). The rule also redefines the claim of granting asylum “for individuals in a particular social group,” which could directly impact individuals seeking asylum on the grounds of persecution on account of sexual orientation.

Over 87,000 public comments were submitted on July 15 by organizations including HIAS (an immigrant resettlement organization) and Immigration Equality arguing that the proposed changes will abolish the asylum system.

“We are not invading the country, we are looking for a place to live in dignity,” said Ortega.

Although Ortega was successfully granted asylum in 2016 primarily on the basis of persecution on account of political opinion for being a LGBTQ+ activist, such a claim will be deemed weak if argued in an asylum case under the new proposed rules.

“The restrictions under the new rule are essentially made such that you have to be proposing the overthrow of your government for example in order to qualify for asylum on the basis of political opinion, which is obviously going to exclude a huge number of people,” said Neela Ghoshal, senior researcher of the LGBT Rights Program at Human Rights Watch.

Ortega decided to seek asylum when the death threats she received over the phone turned into actual threats when she was approached by a stranger who threatened to kill her. Her life was in grave danger after she rallied and protested against the anti-LGBTQ+ agenda presented by Fernando Castro Trenti, who was running for the governor’s office of Baja, California at the time.

Presenting documentation proving that she was threatened because of her political opinion on LGBTQ+ matters was a winning argument for Ortega, but she also argued that she was seeking asylum on the basis of her sexual orientation and gender identity. Ortega presented cases of activists who were killed in Mexico because they were either LGBTQ+ or allies of the community to demonstrate how homophobia and transphobia were endemic in Mexico, and “to prove that all my activism was exactly to change the mindset of a culture.”

The new proposed rules for asylum may mean that what worked for Ortega may not work for the thousands of asylum applicants who, according to the American Immigration Council June report, have not yet been scheduled for an initial interview. Their cases could be delayed for up to four years.

The overall context in which the threats or risk originally manifested serves as solid evidence that the asylum applicant was under persecution. However, Ghoshal explained such evidence could be excluded under the new regulation, which could block a claim on the grounds that it allegedly advances stereotypes about a cultural context that may have contributed to homophobic violence.

“They up the level of the standard of prosecution itself and say that a threat needs to have happened or is happening [and is] not just verbal,” explained Bridget Crawford, legal director at Immigration Equality. “If someone threatens to kill you, do you have to wait for it to happen until you flee?”

Blocking asylum claims that are made on the basis of cultural context could also impact women hoping to flee from their homes, especially in areas where domestic violence goes unpunished.

“Because gender-based claims are no longer valid to prove persecution, lawyers may now try to navigate provisions that have not been used to bolster a woman’s claim, including for example religion, race, or sexuality,” said Cynthia Katz, supervising attorney at HIAS.

Gender and domestic violence claims have previously won asylum for petitioners. “T”—a 32-year-old who asked to be identified only by her first name’s initial—fled Honduras as a single mother to escape her husband’s physical abuse and build a safer life for herself and her two boys in the U.S. She was granted asylum in 2018. For others like T, however, that pathway may be closed under the new proposed rules.

Katz added that lawyers know that an attack on a woman is because of her gender, but the argument from the immigration court boils down to the fact that they are not going to open up the gates of litigation to everyone, which will challenge practitioners to be thorough in every claim they make.

An already “broken” system

The U.S. asylum system is already troubled without these new regulations, lawyers and experts argue. The Trump administration has long been dismantling the asylum system to make it difficult for individuals to claim credible fear of persecution, particularly along lines of gender-based violence and domestic violence. In June 2018, Attorney General Jeff Sessions issued a decision that denied asylum to individuals who use domestic violence or gang violence as criteria to support their claims, making it harder for victims escaping gender-based violence to find safety.

“The mere fact that a country may have problems effectively policing certain crimes – such as domestic violence or gang violence – or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim,” the Sessions ruling read.

In the aftermath of Sessions’ ruling, Katz observed that “[the] courts have been stepping away from domestic violence claims since.”

Additionally, as of July 2020, the backlog of pending cases in U.S. immigration courts recorded an all-time high of 1.2 million cases. Individuals who applied for asylum waited for more than 930 days to be approved, according to the American Immigration Council. For both Ortega and T, waiting in limbo for three to four years to get their cases approved was not the only hurdle in a system that Ortega describes as “broken.”

Both women struggled with obtaining and maintaining a work permit while their cases were pending. Ortega, who received her permit two years after applying for asylum, experienced homelessness for a while and was covering some of her expenses by performing in drag shows in New York. T, who previously worked as a kitchen helper and was studying to become a nurse in Honduras, was rejected from jobs in which employers feared she would be unable to renew her permit—which she received eight months after applying for asylum—if her case continued to be pending in court or was denied altogether.

The anti-immigrant sentiment evident in American society and in officers in detention centers is another layer of emotional stress that both women had to endure while their cases were processed. Ortega was apprehended by border patrol officers at the northern U.S-Mexico border. She said they made her “feel like a clown in front of everybody” as they laughed at her. Three days later, she was sent to Otay Mesa Detention Center in San Diego, California.

Ortega stayed for 40 days at the detention facility, where she was asked if she identified as LGBTQ+ and was later given the choice to either stay in solitary confinement or the men’s facility. She chose the latter. Two weeks later, Ortega was forced to work washing dishes or serving people food for eight to 12 hours per day in return for $1 a day.

“I was enslaved and being treated as a prisoner without committing a crime,” said Ortega, who now works as a case manager at a community health center and is pursuing a political science degree.

For T, working as a woman of color while waiting for her approval was challenging. During her work as a carpenter on some construction sites in New York, she was always referred to as “the Black one.” Workers on site would say “get one of the Black ones to do this,” referring to her this way instead of calling her by name.

While both the Department of Justice and Department of Homeland Security are reviewing and analyzing the comments without determining a date for the final rule, Crawford is currently advising her clients to apply for asylum as soon as possible amid the layer of uncertainty added by the pandemic.

“I am just asking God to please touch President Trump’s heart to show compassion to people,” said T. “The majority of immigrants came here to escape a miserable situation they were living in their own country.”