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Biden administration ends ‘Remain in Mexico’ policy

Trump-era program made LGBTQ asylum seekers even more vulnerable

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A portion of the fence that marks the Mexico-U.S. border in Tijuana, Mexico, on Feb. 25, 2020. The Biden administration has ended a Trump-era policy that forced asylum seekers to pursue their cases in Mexico. (Washington Blade photo by Michael K. Lavers)

The Biden administration has officially ended a policy that forced asylum seekers to pursue their cases in Mexico.

The previous White House’s Migrant Protection Protocols program, which became known as the “Remain in Mexico” policy, took effect in 2019. Advocates sharply criticized MPP, in part, because it made LGBTQ asylum seekers who were forced to live in Tijuana, Ciudad Juárez, Matamoros and other Mexican border cities even more vulnerable to violence and persecution based on their gender identity and sexual orientation.

The White House in January suspended enrollment in MPP shortly after President Biden took office.

Homeland Security Secretary Alejandro Mayorkas on Tuesday in a memo he sent to acting U.S. Customs and Border Protection Commissioner Troy Miller, acting U.S. Immigration and Customs Enforcement Director Tae Johnson and acting U.S. Citizenship and Immigration Services Director Tracy Renaud that announced the end of the Trump-era policy said roughly 11,200 asylum seekers with MPP cases have been allowed into the U.S. between Feb. 19 and May 25. Estuardo Cifuentes, a gay man from Guatemala who ran Rainbow Bridge Asylum Seekers, a program for LGBTQ asylum seekers and migrants in Matamoros that the Resource Center Matamoros, a group that provides assistance to asylum seekers and migrants in the Mexican border city, helped create, is among them.

“MPP does not adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls,” wrote Mayorkas in his memo.

“In deciding whether to maintain, modify, or terminate MPP, I have reflected on my own deeply held belief, which is shared throughout this administration, that the United States is both a nation of laws and a nation of immigrants, committed to increasing access to justice and offering protection to people fleeing persecution and torture through an asylum system that reaches decisions in a fair and timely manner,” he added. “To that end, the department is currently considering ways to implement long-needed reforms to our asylum system that are designed to shorten the amount of time it takes for migrants, including those seeking asylum, to have their cases adjudicated, while still ensuring adequate procedural safeguards and increasing access to counsel.”

Steve Roth, executive director of the Organization of Refuge, Asylum and Migration, a Minnesota-based organization that works with LGBTQ refugees and migrants around the world, welcomed the end of MPP.

“We’re very happy to see, at long last, the termination of the dangerous and illegal ‘Remain in Mexico’ policy that was put in place by the Trump administration in early 2019,” Roth told the Washington Blade in a statement. “This policy forced asylum seekers at our Southern border — including many LGBTIQ individuals — to spend months and sometimes years in dangerous Mexican border towns while they waited for their asylum cases to be processed.” 

Roth added MPP “was not in keeping with the United States’ commitments to international asylum law and it was not reflective of who we are as a country.”

“We’re grateful to President Biden and his administration for overturning this policy and for their commitment to a just and humane immigration and asylum system,” he said.

Immigration Equality Legal Director Bridget Crawford echoed Roth.

“President Trump created a humanitarian disaster with this policy that has resulted in well over a thousand asylum seekers being assaulted, raped, kidnapped or murdered while awaiting their asylum hearing, including LGBTQ and HIV-positive people,” Crawford told the Blade in a statement. 

Ending MPP is the latest in a series of steps the Biden administration has taken to reverse the previous White House’s hardline immigration policies.

State Department spokesperson Ned Price told the Blade last month that protecting migrants and asylum seekers who are fleeing persecution based on their gender identity and sexual orientation is one of the administration’s global LGBTQ rights priorities.

Vice President Kamala Harris is among the administration officials who have publicly acknowledged that anti-LGBTQ violence is a “root cause” of migration from Central America. Texas Congresswoman Veronica Escobar, whose district includes the border city of El Paso, and others have noted to the Blade that Title 42, a Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the coronavirus pandemic, remains in place.

Congress has yet to consider a comprehensive immigration reform bill that Democrats introduced in February. Crawford in her statement also notes Mayorkas’ memo “does not address the many thousands of individuals who were wrongfully denied relief under the MPP program.” 

“These people no longer have ‘active’ cases, so they are not being processed by the administration, but many are living in Mexico or have been returned back to their countries where they face persecution.  Quite literally, some of these people have been handed a death sentence,” said Crawford. “The Biden administration has not addressed these cases yet and whether people wrongfully denied relief under the MPP program will have an opportunity to renew their claims.” 

Estuardo Cifuentes outside a port of entry in Brownsville, Texas, on March 3, 2021, shortly after he entered the U.S. (Photo courtesy of Estuardo Cifuentes)
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State Department

State Department spokesperson criticizes new Russia propaganda law

Statute ‘pushes LGBTQI+ persons further to the margins of Russian society’

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State Department spokesperson Ned Price, center, speaks at the LGBTQ Victory Fund's International LGBTQ Leaders Conference in D.C. on Dec. 3, 2022. Price, who is openly gay, has criticized an anti-LGBTQ propaganda law that Russian President Vladimir Putin signed this week. (Washington Blade photo by Michael K. Lavers)

State Department spokesperson Ned Price on Tuesday sharply criticized the anti-LGBTQ propaganda law that Russian President Vladimir Putin signed the day before.

Price, who is openly gay, noted to reporters during a press briefing the law “further criminalizes the sharing of information about LGBTQI+ persons.”

“The law is another serious blow to freedom of expression in Russia, and a continuation of the Kremlin’s broader, long-running crackdown against marginalized persons, dissenting voices, civil society and independent media that it has intensified, as it has failed to achieve its objectives in its unconscionable war against Ukraine,” said Price. 

“The law pushes LGBTQI+ persons further to the margins of Russian society, fueling and amplifying the prejudice, discrimination, violence and stigma they face. The legislation is a clear attempt by the Kremlin to distract from its own failures by scapegoating vulnerable communities and creating phantom enemies,” he added. “We stand in solidarity with LGBTQI+ persons in Russia and around the world who seek to exercise the rights enshrined in the Universal Declaration of Human Rights, which recognizes that all human beings are free and equal in dignity and rights.”

The law that Putin signed on Monday expands the existing “Protecting Children from Information Advocating a Denial of Traditional Family Values” statute that took effect in Russia in 2013. 

The new law will ban so-called LGBTQ propaganda and materials that discuss gender reassignment surgery and LGBTQ and intersex issues to minors, which it categorizes as the promotion of pedophilia. Russian media reports indicate the new law will apply to films, books, commercials, media outlets and computer games.

Anyone who violates the law could face a fine of up to 10 million rubles ($165,152.80.) Authorities could also force businesses and organizations to temporarily close, and foreigners who violate the law could face arrest, incarceration for up to 15 days, a fine of up to 5,000 rubles and deportation.

Putin signed the law against the backdrop of Russia’s continued war against Ukraine.

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National

Club Q suspect indicted on 305 charges

22-year-old charged with first-degree murder, bias-motivated crime

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(Photo courtesy of Club Q Facebook page)

El Paso County (Colo.) District Attorney Michael Allen announced in the first in-person hearing on Tuesday that the 22-year-old suspect in the mass shooting at the LGBTQ nightclub Club Q, which killed five and wounded dozens of others, will face 305 charges including first-degree murder, attempted first-degree murder and bias-motivated crime.

The Colorado Springs Gazette newspaper reported Anderson Aldrich appeared in a Colorado Springs courtroom wearing a green jumpsuit and handcuffs. Aldrich’s facial bruising had significantly healed since a video hearing two weeks ago. 

The total list of charges according to the Gazette is as follows: 

• 10 counts of first-degree murder.

• 86 counts of attempted first-degree murder.

• 86 counts of first-degree assault.

• Four counts of second-degree assault.

• 48 counts of bias-motivated crime. 

• 71 counts of violent crime causing death and using a weapon.

Allen said the prosecution may request to amend the charges in the future.

“We are not going to tolerate actions against community members based on their sexual identity,” Allen said at a news conference after the hearing. “Members of that community have been harassed and intimated and abused for too long. And that’s not going to occur in the 4th Judicial District.”

During the hearing Judge Michael McHenry, following the filing of formal charges, granted a request from Allen for the suspect’s arrest affidavit to be unsealed. The court papers should be available to the public by the end of the day Wednesday, the judge noted according to the Gazette.

Allen said that while he couldn’t talk about what is in the affidavit, he told reporters that it might contain “much less information than you might expect.”

Suspect in Club Q shooting appears in court:

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U.S. Supreme Court

Supreme Court hears oral arguments in 303 Creative case

Dangerous implications for LGBTQ consumers

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Monday heard oral arguments in 303 Creative v. Elenis, a case that could carry broad implications for whether and in which circumstances states may enforce certain nondiscrimination rules against purveyors of goods and services.

The case was brought by website designer Lorie Smith, who sought to include a disclaimer that her company 303 Creative would not develop wedding announcement websites for LGBTQ couples, but discovered that such a notice would violate Colorado’s anti-discrimination laws, which include sexual orientation as a protected class.

Her lawsuit against the state of Colorado, argued by counsel from the anti-LGBTQ group Alliance Defending Freedom (ADF), reaches the Supreme Court following the ruling against Smith from the 10th Circuit Court of Appeals, which created a circuit split with decisions from the 8th Circuit and Arizona Supreme Court. A ruling is expected to come in June.

The fact pattern in 303 Creative closely mirrors the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the Supreme Court declined to rule on the broader legal questions because it found the Commission exhibited hostility toward the religious views of the bakery that refused to design a custom wedding cake for a same-sex couple.

The high court has since moved substantially to the right, with a 6-3 conservative supermajority. Colorado is one of 20 states that enforces laws prohibiting businesses from discrimination based on sexual orientation, and a ruling that would allow for broadly construed exemptions to be carved out for firms based on their First Amendment protections would carry implications well beyond the context of same-sex marriage.

Monday’s oral arguments focused on preexisting and hypothetical cases that were presented by counsel from both parties as well as by the justices, examples whose scope and fact patterns reinforced the breadth of the legal issues at play in 303 Creative.  

Colorado Solicitor General Eric Olson and U.S. Principal Deputy Solicitor General Brian Fletcher pointed to the Supreme Court’s ruling in Rumsfeld v. Forum for Academic and Institutional Rights, 2006, which found that the federal government may withhold funding from universities that, based on their objections to “Don’t Ask, Don’t Tell,” refuse to grant military recruiters access to their resources.

ADF CEO, President and General Counsel Kristen Waggoner cited the Supreme Court’s decision in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 1995, which upheld the right of private organizations to exclude participation by certain groups without interference by the state, even if that intervention by the government was for the purpose of preventing discrimination.

Much of the discussion during Monday’s oral arguments centered on what kinds of goods and services may be considered public accommodations and which constitute artistic speech or expression by the business provider. Also at issue were questions such as whether their refusal to accommodate certain events – i.e., same-sex weddings – are tantamount to refusing goods and services to members of a protected class of people under the state’s non-discrimination laws.

LGBTQ rights groups fear the implications of a ruling in favor of 303 Creative  

ADF is designated an anti-LGBTQ extremist group by the Southern Poverty Law Center. An amicus brief was filed in support of the government by the corporate law firm White & Case along with a coalition of LGBTQ rights groups and legal advocacy groups: the National LGBTQ Task Force, GLAD, the National Center for Lesbian Rights, Lambda Legal, and the Human Rights Campaign.

“Just two weeks after a shooter killed 5 people, injured 18, and traumatized so many others at Club Q in Colorado Springs, the United States Supreme Court prepares to hear oral arguments in an anti-LGBTQ public accommodations discrimination case from Colorado,” wrote the National LGBTQ Task Force in a statement addressing Monday’s oral arguments.

Liz Seaton, the group’s policy director, highlighted the importance of public accommodations laws and condemned efforts by the opposition to legalize discrimination and segregation in the marketplace. “The brief’s most important argument lifts up the powerful amicus briefs of the NAACP Legal Defense and Educational Fund and of the Lawyers’ Committee for Civil Rights Under Law,” Seaton said. “Those two briefs by venerable civil rights organizations provide a detailed history of public accommodations discrimination against Black and Brown people in this country.”

HRC’s statement on Monday touched on similar themes:

“Granting the unprecedented ‘free speech exemption’ sought by petitioners in 303 Creative v. Elenis would be a dangerous change to long standing constitutional and civil rights law. It would inevitably lead to increased discrimination not only related to LGBTQ+ people or weddings, but also for other vulnerable populations including women, people with disabilities, and people of minority faiths. It’s crucial that justices of the Supreme Court reject discrimination and affirm the equal dignity of every American.”

Likewise, the Congressional LGBTQ+ Equality Caucus released a statement exploring the broad implications that could result from the Court’s ruling on 303 Creative:

“…the Supreme Court could issue a broad ruling that not only implicates nondiscrimination laws’ applications to graphic designers but to a wide range of businesses providing goods and services that have an artistic component. A broad ruling for the graphic designer could not only provide a constitutional basis for discriminating against same-sex couples, but also for discriminating against all marginalized people currently protected by public accommodations nondiscrimination laws.”

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