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Title 42 to end Thursday

Activists sharply criticize new U.S. asylum rules

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Posters criticizing the Biden-Harris administration's immigration policy appeared in Dupont Circle on May 10, 2023. (Washington Blade photo by Michael K. Lavers)

A rule that closed the Southern border to most asylum seekers and migrants because of the COVID-19 pandemic will expire on Thursday at 11:59 p.m. ET.

The Centers for Disease Control and Prevention in March 2020 implemented Title 42.

The Biden-Harris administration in April 2022 announced it would terminate the previous White House’s policy, but Republican attorneys general from Texas and more than a dozen other states filed a federal lawsuit.

The U.S. Supreme Court last December ruled Title 42 must remain in place. The Biden-Harris administration a few weeks later announced the COVID-19 public health emergency — and Title 42 — would end on Thursday. 

“Title 42 exacerbated already dangerous and often deadly situations for LGBTQI people seeking asylum,” San Diego Pride Executive Director Fernando Z. López told the Washington Blade on Tuesday. “It’s tenure caused additional strain on direct services, legal aid and community organizing resources that were felt on both sides of our cross-border region.”

Abdiel Echevarría-Caban, a South Texas-based immigration attorney who the LGBTQ+ Bar in 2021 recognized as one of its 40 best LGBTQ lawyers who are under 40, on Tuesday said Title 42 “needed to end a long time ago, given the country was open to accept travelers through all our airports.”

“It did not make sense to keep enforcing the policy when we have public health safety protocols in place already,” he said. “The use of a public health mechanism to deter asylum seekers at the Southwest border from seeking protection was barbaric, wrong and a misuse of public policy.” 

Echevarría-Caban further detailed the impact Title 42 had on LGBTQ and intersex people and other asylum seekers from vulnerable groups that he and other lawyers represented.

“Here, at the Southwest border, we had to request exemptions for people, especially women, children and LGBTQIA people, who were sent back to Mexico, and were exposed to further danger at the streets in Mexico, exposed to cartel violence, extortions, kidnapping and rape,” he said. “Here, in the United States, we have obligations under the Convention Against Torture. The United States was an active party in the development of our current international human rights and refugees system.”

Abdiel Echevarría-Caban, right, talks with Organización Pro Unión Ceibeña (Oprouce) Executive Director Sasha Rodríguez at her organization’s office in La Ceiba, Honduras, on July 20, 2021. (Washington Blade photo by Michael K. Lavers)

The Associated Press notes the U.S. on Thursday will begin to deny asylum to migrants who don’t seek protection in a country through which they traveled or apply online before they reach the Southern border.

The Department of Homeland Security last fall created a humanitarian parole program for Venezuelans that it expanded to Cubans, Haitians and Nicaraguans in January.

A senior administration official on Tuesday said the Biden-Harris administration plans to “expand the family reunification parole programs” to Central American countries that include Guatemala, El Salvador and Honduras and to Colombia.

Secretary of State Antony Blinken and Homeland Security Secretary Alejandro Mayorkas, who was born in Cuba, on April 27 announced the U.S. will open more than 100 “regional processing centers” throughout the Americas. A senior administration official on Tuesday said they “will facilitate a broad range of legal pathways, lawful pathways to the United States and eventually Canada and Spain as well.”

“Again, our goal is to add these centers to the set of legal pathways that already exist and that the administration has rolled out over the last two years,” said the official.

Another senior administration official said the U.S. has “a robust set of consequences for noncitizens who, despite having these options available to them, continue to cross unlawfully at the border.” 

They said the U.S. on Thursday will begin to return them to Mexico under Title 8 after it reached an agreement with Mexican President Andrés Manuel López Obrador’s government. (Mexican prosecutors have announced they will charge the director of the country’s National Immigration Institute after a fire at an immigration detention center in Ciudad Juárez, a border city that is across the Rio Grande from El Paso, Texas, killed 40 migrants on March 27. The Associated Press reported a security camera inside the facility recorded two guards who did not try to help the migrants who were inside the cell in which the fire began. The guards, according to the Associated Press, eventually walked away.)

“It also includes the circumvention of lawful pathways rule that we will be posting for public inspection tomorrow (Thursday) morning, and that rule will place significant conditions on asylum eligibility for individuals who do not take advantage of these robust lawful pathways that we have established, who do not schedule their safe and orderly presentation at the border using our CBP One mobile application, and who do not claim asylum in one of the countries that they travel through,” said the official. 

The official further noted the U.S. will begin “significantly expanding … our use of expedited removal at the border.”

“This is our traditional Title 8 consequence for individuals who are encountered between ports of entry,” said the official.

TransLatin@ Coalition President Bamby Salcedo on Wednesday told the Blade it is “unfortunate that instead of moving forward, we continue to go backwards.”

“The elimination of Title 42 will impact all of us, but specifically LGBTQ asylum seekers,” said Salcedo. “It is incomprehensible that this administration is taking this step. It’s about moving forward and bettering the lives of people, not taking away the gains that we have earned with hard work, blood and tears.”

Immigration Equality Legal Director Bridget Crawford in a statement also sharply criticized the Biden-Harris administration over its new rules for asylum seekers and migrants once Title 42 ends.

“We are astonished by the administration’s callous disregard of the dangers President Biden’s asylum ban imposes on LGBTQ refugees. In the final rule — scheduled to go into effect once the Title 42 policy is lifted — the administration doesn’t meaningfully address or fix problems with the ban we identified in the notice and comment process. Instead, using circular logic, the administration dismisses our concerns, and doubles down on the illegal implementation of the ban,” said Crawford. 

“This ban is a travesty that will cause LGBTQ refugees (and others) with strong, meritorious asylum claims to be sent back to countries where they will be persecuted or killed,” added Crawford. “By implementing this ban, instead of humane solutions that would effectively and compassionately manage the border, President Biden has broken his promise to protect LGBTQ asylum seekers and refugees.”

The Organization for Refuge, Asylum and Migration works with Jardín de las Mariposas, a shelter for LGBTQ and intersex migrants in the Mexican border city of Tijuana.

ORAM Executive Director Steve Roth on Wednesday said even though his organization “is glad to see an end to Title 42, an unlawful, Trump-era policy, we are deeply concerned about the new barriers to asylum put forward by the Biden administration.” 

“President Biden’s restrictions on asylum will have especially harmful and dangerous consequences for vulnerable LGBTIQ refugees and asylum seekers, leaving them in places where their safety will be at risk,” said Roth. “The administration’s new border policies will continue to deny many LGBTIQ refugees their legal right to seek asylum at the U.S.-Mexico border.”

Echevarría-Caban said the new policies will “pose more obstacles, and contrary to what is expected, it will increase the immigration court backlogs.”

“Our government needs to understand that we cannot use domestic law to weaponize immigration proceedings to avoid compliance with our international obligations or due process,” he told the Blade. “Due process is the core of our legal system, without it, who are we as a nation?”

Vice President Kamala Harris is among the administration officials who have publicly acknowledged violence based on gender identity and sexual orientation is among the factors that prompt LGBTQ and intersex people to leave Guatemala and other Central American countries.

Sources in Tijuana, Ciudad Juárez and other Mexican border cities this week have told the Blade that tens of thousands of migrants have arrived in their respective cities before Title 42 ends. It is not clear how many of them identify as LGBTQ or intersex, but violence in these cities remains commonplace. (The State Department currently advises U.S. citizens not to travel to the Mexico’s Tamaulipas state in which the border cities of Matamoros and Reynosa are located because of “crime and kidnapping.” The State Department also advises U.S. citizens to reconsider travel to Mexico’s Baja California, Sonora and Chihuahua states — which border California, Arizona, New Mexico and Texas respectively — because of “crime and kidnapping.”)

El Paso, Texas, and Ciudad Juárez, Mexico, on July 15, 2019. (Washington Blade photo by Michael K. Lavers)

Paloma de los Ángeles Villegas Pacheco, director of Trans Igualdad, a transgender rights organization in Ciudad Juárez, on Tuesday told the Blade there “is disinformation” among LGBTQ and intersex migrants who are in the city.

“They think that they are going to be able to access the legal asylum process,” said Villegas. “It will be more difficult for them to enter (the U.S.) once Article 42 ends. The impact will be worse for them.”

Altagracia Tamayo is president of Centro Comunitario de Bienestar Social (COBINA), a group that works with LGBTQ and intersex people and other vulnerable groups in Mexicali, a Mexican border city that borders Calexico, Calif., in California’s Imperial Valley.

Tamayo said roughly a quarter of the 600 migrants who are currently living in the two shelters that COBINA operates are LGBTQ. Tamayo, like Villegas, told the Blade there is “uncertainly” around the end of Title 42.

“The problem is that they think they are going to open the borders … they think they are going to receive them,” said Tamayo. “Article 8 is going to impose many, many restrictions.”

A fire destroyed a COBINA shelter in July 2021. Tamayo told the Blade her organization struggles to support the migrants who live in COBINA’s two remaining shelters.

“The heat is coming,” she said. (Summer temperatures in Mexicali frequently exceed 110°F) “We don’t have enough food to give them three meals a day. It is one of the problems of so much waiting, for so many months. It’s definitely very complicated.”

Mayorkas ‘clear-eyed’ about post-Title 42 challenges

Mayorkas on Wednesday during a press conference in D.C. said his agency is “clear-eyed about the challenges that we are likely to face in the days and weeks ahead, which have the potential to be very difficult.”

“Even after nearly two years of preparation, we expect to see large numbers of encounters at our Southern border in the days and weeks after May 11,” he said.

Mayorkas, nevertheless, stressed the end of Title 42 “does not mean our border is open.” He also reiterated the Biden-Harris administration’s immigration policy.

“We will once again process people at our Southern border using our immigration authorities under Title 8 of the United States code,” said Mayorkas. “Our overall approach is to build lawful pathways for people to come to the United States and to impose tougher consequences on those who chose not to use those pathways.”

“We are taking this approach within the constraints of a broken immigration system that Congress has not fixed for more than two decades and without the resources we need, personnel, facilities, transportation and others that we have requested of Congress and that we were not given,” he added.

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The White House

Jill and Ashley Biden headline White House Pride celebration

First lady celebrated historic pardons of LGBTQ veterans

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First lady Jill Biden speaks at the White House Pride event on June 26. (Washington Blade photo by Michael Key)

First lady Jill Biden and the president and first lady’s daughter, Ashley Biden, headlined the White House Pride celebration on the South Lawn on Wednesday, followed by a performance by singer and actress Deborah Cox.

“My dad has built the most pro-equality administration” in history, Ashley Biden said, crediting the work of LGBTQ people of color like Marsha P. Johnson, a prominent figure in the Stonewall uprising of 1969, as well as “so many of you [who] have continued to lead their fearless fighting against against injustice here and around the world.”

She introduced her mother as “the woman who taught me to be myself up showed me in so many ways how I can make a difference” and who “works every single day, tirelessly, to ensure that all people have the opportunities and freedoms that they deserve.”

“I hope that all of you feel that freedom and love on the South Lawn today,” Jill Biden said.

Her remarks were briefly interrupted by a protestor’s chants of “no Pride in genocide,” which was drowned out by chants of “four more years.”

The first lady noted how many of the attendees came “here from states that are passing laws targeting LGBTQ Americans.”

“There are those who see our communities and our families and wish to tear them down,” she said, “those who can’t see that the world is so much bigger and [more] beautiful than they know — but when our homes are threatened, when they strip away our rights, and deny our basic humanity, we say, ‘not on our watch.'”

“Pride is a celebration, but it is also a declaration,” the first lady said, highlighting the U.S. Supreme Court’s ruling in Obergefell v. Hodges nine years ago, which established marriage equality as the law of the land.

She then credited the accomplishments of the Biden-Harris administration on matters of LGBTQ rights, including the repeal of the previous administration’s ban on military service by transgender servicemembers and the FDA’s loosening of restrictions on blood donation by gay and bisexual men.

The first lady also celebrated the president’s announcement earlier on Wednesday that he will pardon LGBTQ veterans who were discharged and court martialed because of their sexual orientation or gender identity.

“We will never stop fighting for this community,” she said.

First lady Jill Biden and daughter, Ashley Biden, attend the White House Pride celebration on June 26, 2024. (Washington Blade photo by Michael Key)
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HISTORIC: Biden pardons discharged LGBTQ veterans

Move will facilitate access to benefits they were denied

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President Joe Biden (Screen capture/YouTube)

President Joe Biden on Wednesday issued historic pardons for military service members who were discharged over their sexual orientation or gender identity under discriminatory policies of the past, like “Don’t Ask, Don’t Tell.”

“Our nation’s service members stand on the frontlines of freedom, and risk their lives in order to defend our country,” he said in a statement. “Despite their courage and great sacrifice, thousands of LGBTQI+ service members were forced out of the military because of their sexual orientation or gender identity.”

“Some of these patriotic Americans were subject to court-martial, and have carried the burden of this great injustice for decades,” the president said.

“As commander-in-chief, I am committed to maintaining the finest fighting force in the world. That means making sure that every member of our military is safe and respected — so they can focus on their mission,” he said.

“This is about dignity, decency, and ensuring the culture of our Armed Forces reflect the values that make us an exceptional nation,” Biden said. “We have a sacred obligation to all of our service members — including our brave LGBTQI+ service members: To properly prepare and equip them when they are sent into harm’s way, and to care for them and their families when they return home.”

“Today we are making progress in that pursuit.”

The president also issued a Proclamation on Granting Pardon for Certain Violations of Article 125 Under the Uniform Code of Military Justice, which specifies that “The Military Departments (Army, Navy, or Air Force), or in the case of the Coast Guard, the Department of Homeland Security, in conjunction with the Department of Justice, shall provide information about and publicize application procedures for certificates of pardon.”

Veterans who were discharged for their sexual orientation or gender identity are barred from accessing benefits through the U.S. Department of Veterans Affairs.

Senior administration officials explained during a call with reporters on Tuesday that veterans who obtain certificates of pardon will be able to petition for a change in their discharge status, which can facilitate their access to benefits.

Officials on Tuesday’s call said they will proactively reach out to these service members to make them aware of the president’s clemency action and to connect them with pro-bono attorneys who can help them navigate the process.

“We intend, and have intended, to design this process in a way where people do not need attorneys to go through it, and we think it is easily accessible, but we also recognize that for some people, that would be beneficial, and so are busy at work trying to make those connections happen,” an official said.

The officials did not address a question from the Washington Blade about whether LGBTQ groups including those representing LGBTQ veterans were involved in the administration’s work leading up to the president’s issuance of the pardons, but several organizations celebrated the announcement on Wednesday.

“We applaud President Biden for taking action today, and the Biden-Harris Administration’s efforts to address this historic injustice that impacted thousands of LGBTQ+ people in the military for decades, with the effects still felt by many to this day,” said Human Rights Campaign President Kelley Robinson.

“This move to rightfully restore reputations lost and gratitude owed to service members who were punished for who they loved is long overdue, and a significant step in the right direction,” she said.

GLAAD President Sarah Kate Ellis wrote on social media, “Today’s move by President Biden to pardon LGBTQ service members who were unfairly forced out of the military under the discriminatory ‘Don’t Ask, Don’t Tell’ is his administration’s 343rd pro-LGBTQ action. It is an important signal not only to the thousands of brave LGBTQ Americans who deserved better for defending our country but to all who understand that diversity, respect, and inclusion are American values.”

The Congressional Equality Caucus released a statement from the chair, U.S. Rep. Mark Pocan (D-Wis.): “I thank President Biden for taking this important step to right the wrongs of the past and restore honor to LGBTQI+ Americans who bravely served their nation in uniform.” 

“This is an important step forward in addressing the wrongs of anti-equality policies like ‘Don’t Ask, Don’t Tell,’ and I urge the Military Departments to ensure these pardons are processed as swiftly as possible,” the congressman said. “I am committed to building upon this important action, including by passing my Restore Honor to Service Members Act into law to ensure that the service and sacrifice of every veteran is honored, regardless of who they are or who they love.”

“PFLAG families have advocated for the dignity and respect due our LGBTQ+ heroes in uniform since the dark days of ‘Don’t Ask, Don’t Tell,’ and the shadow discharges that predated that discriminatory policy,” said PFLAG National CEO Brian K. Bond.

“As someone who worked on repeal during the Obama-Biden administration I met incredible patriots that just wanted to serve their country,” he said. “Thank you to the Biden-Harris administration and those who continue to fight for military families’ freedom to serve. This welcomed day is long overdue for thousands of LGBTQ+ veterans and their families.”

Lawyers for a group of LGBTQ veterans who are plaintiffs in Farrell v. Department of Defense also released a statement:

“We applaud President Biden and his administration for today’s announcement pardoning approximately 2,000 LGBTQ+ veterans who were court-martialed under ‘Don’t Ask, Don’t Tell’ and similar policies. This is a necessary and important step in recognizing and remediating the harms — that still exist today — caused by these policies, despite their repeals.

“While the pardons represent an important milestone, we must emphasize that there is still critical work to be done. Those pardoned will still need to obtain new discharge papers from the Department of Defense, which are essential for accurately reflecting their service and accessing veterans’ benefits. And, of course, there are tens of thousands of other veterans who continue to suffer the ongoing stigma of their discriminatory discharge. 

“We will continue to vigorously litigate our case, Farrell v. Department of Defense, to ensure that all LGBTQ+ veterans who were wrongfully discharged from the military based on sexual orientation receive upgraded discharge papers with all indicators of sexual orientation removed. This remains a critical step for these veterans to receive the honor and status they rightfully deserve, having served our country with dignity and integrity.”

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EXCLUSIVE: Jill Biden to host White House Pride celebration

Event to take place on June 26

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First lady Jill Biden (Washington Blade photo by Michael Key)

First lady Jill Biden will host the White House Pride Month celebration on June 26, according to a press release previewed by the Washington Blade.

The party on the South Lawn will also feature a performance by singer, songwriter, actress, and record producer Deborah Cox and musical selections by DJ Trifle.

This year’s event comes on Equality Day this year, which honors the anniversaries of three landmark U.S. Supreme Court decisions that expanded rights and protections for LGBTQ Americans: Lawrence v. Texas (2003), which struck down sodomy laws, United States v. Windsor (2013), which struck down the Defense of Marriage Act, and Obergefell v. Hodges (2015), which made marriage equality the law of the land.

The White House highlighted some of the “historic action” taken by President Joe Biden to “advance LGBTQ+ equality for the community,” including:

  • Signing into law the landmark Respect for Marriage Act which protects the rights of same-sex and interracial couples;
  • Appointing a historic number of LGBTQI+ and transgender appointees, including the first transgender American to be confirmed by the U.S. Senate;
  • Directing all federal agencies to strengthen civil rights protections on the basis of gender identity, resulting in agencies working to strengthen protections in housing, health care, education, employment, the criminal justice system, nutrition programs, and more;
  • Reversing the ban on open service by transgender members of the military;
  • Signing an executive order focused on LGBTQI+ children and families that directs agencies to address the dangerous and discredited practice of so-called “conversion therapy” and finalized rule-making that ends disparities that LGBTQI+ children and parents face in the child welfare and foster care system and protects against disparities in health care; and
  • President Biden continues to call on Congress to pass the Equality Act to enshrine civil rights protections for LGBTQI+ Americans in federal law.

Last year, the president and the first lady hosted the celebration, which was the largest Pride event ever held at the White House.

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