The Abuse of the Transgendered in Immigration Detention

Do you know who I would not want to be? A transgendered person in a federal detention facility awaiting an immigration court hearing or a decision by the Board of Immigration Appeals. Such persons may be held in "administrative segregation" for no other reason than their transgendered status. This could mean isolation from other inmates and no social interaction. They may be subject to being handcuffed during immigration court proceedings. And they will have no lawyer unless they can afford one themselves or a lawyer volunteers to represent them.

Not being transgendered myself, I can only imagine the difficulties and anxieties caused by this issue. The fact that someone is born into a body which does not "make sense" to their own inner picture of their identity is difficult enough. Having to endure detention while awaiting deportation is depressing and disorienting, but having to endure it while not interacting with another person (except perhaps an attorney) is cruel and unusual punishment.  On top of this, transgendered clients may have no criminal offenses, or have only been convicted of minor offenses, and still they may be detained by the immigration authorities. For all practical purposes, even if they do not fall into the category of "mandatory detention" they may be financially unable to pay bond and therefore be in effect subject to mandatory detention.

Recently, there was a large monetary amount ($22 million) awarded by a federal jury in New Mexico to a person, a non-immigrant, who was arrested for DWI and was held pending trial. He had been placed in solitary confinement for two years. I read the articles about this award while thinking about my clients who are in similar predicaments, but who do not have the means to petition the government to redress the fundamental wrong of placing a human being in solitary confinement for any length of time based solely on their transgendered status. The excuses provided by the authorities, protection from other inmates or for "medical reasons" are just not sufficient to justify this kind of abuse.

The Obama administration, on May 17, 2012, promised to issue further regulations in the next 120 days, applying the already-in-force Prison Rape Elimination Act (PREA) of 2003 to immigrants in detention facilities, which are both federally and privately run. The previous regulations which had been issued relating to PREA did not protect detained immigrants.  How is it that detention facilities which are run by the Department of Homeland Security (DHS) and private contractors were not deserving of protection under PREA? American Civil Liberties Union legislative counsel Joanne Lin criticized the latest concession of the administration, commenting, "By tasking the Department of Homeland Security (DHS) to promulgate its own PREA regulations, the administration has further delayed and left unclear whether hundreds of thousands of immigration detainees – overwhelmingly Latinos – who are annually confined in DHS detention facilities will receive adequate protection."

In 2011, DHS issued "Performance-Based National Detention Standards" (PBNDS) which apparently are not (yet) in effect in any of the immigration detention facilities around the nation. While these standards have been described as a good "first step" and show an intention on the part of the government to reform the detention system, why haven't they been implemented? As noted by the National Immigration Forum, "the latest PBNDS don’t address the fundamental contradiction of immigration detention centers operating like, if not identical to, correctional institutions." The point is that these facilities are for persons who are supposed to be in "civil" detention and who are not supposed to be criminally incarcerated. The resistance to the "standards" -- again not mandatory regulations but "standards" -- was recently shown by the House Judiciary Committee who held a hearing in March on the PBNDS, ironically entitled, "A Holiday on ICE.”

I must say this issue perplexes me more than many others, perhaps because it has personally touched me. I saw the despair and resignation in my transgendered client's eyes as she told me about the segregated confinement. I saw how much she had just about given up. But maybe that is the point. If people are put away, not given a chance, then maybe they will just give up their fight to stay in this country.

Finally, it should be emphasized and appreciated that there are good people who work for the Department of Homeland Security, Immigration and Customs Enforcement (ICE). The particular client of mine who had been in detention and subjected to isolation was released, and I personally do appreciate the officers who make an effort to understand and address the plight of the transgendered and other immigrants who are facing months, and even years, of "civil" detention. I wonder, though, how many unrepresented people there are in detention, who are suffering in isolation, without attorneys, without a voice, and without any way to communicate their suffering.