By Andrew Harmon
Originally published on Advocate.com May 07 2012 8:42 AM ET
A FEW DAYS AFTER CHRISTMAS LAST YEAR, Ruby Corado, a longtime transgender activist in Washington, D.C., received a telephone call while watching late-night TV. The number on her iPhone was from Rappahannock Regional Jail, about an hour’s drive south of the nation’s capital in Stafford, Va. Rappahannock is one of more than 200 facilities nationwide that contracts with U.S. Immigration and Customs Enforcement to house those awaiting a judge's decision on whether they can remain in the United States or will be deported back to their home country. On any given day, about 32,000 people are held in detention, many for violating immigration law — a civil, not criminal, offense.
Weak and distraught, the transgender woman calling Corado at 11 p.m from Rappahannock was one of them. Her name was Kripcia, and she had been held for eight months in what ICE calls "administrative segregation" — solitary confinement, in nonbureaucratic terms. A native of El Salvador, she was arrested in early 2011 for failure to pay a cab fare.
Kripcia had spent a minimum 22 hours per day in a tiny cell with little access to recreation or other people. This was not because she had defied any jail rules: It was for her own good, for her safety, she was told by officers. Kripcia’s cell was located in a special unit of the jail usually reserved for male sex offenders. She was told that it would be easier for guards to watch over her in this smaller area.
Corado had taken these calls before from the jail. A relentless activist with a reassuring voice, she's the sort of person you'd speed-dial in the heat of any emergency. With Kripcia deteriorating in isolation, Corado had hired an immigration lawyer to take on the case, a luxury in a system where 84% of detainees have no legal representation. As a result, Kripcia was supposed to be out of detention by Christmas. But the holiday came and went, and she was still at Rappahannock.
Ruby, I just want to die. I'm going crazy, Kripcia told Corado on the phone that evening. But if I have to die, I want to go back to my country. I can't die in here.
Promise me you’re not going to think those thoughts, Corado replied. Come on, work with me on this. Promise me. Just give it one more day.
"It's hard, you know? What do I really tell these people in detention?" Corado said through tears during a recent conversation at Casa Ruby, her soon-to-open Latino LGBT community center near Howard University. "Segregation is inhuman. And how they're treated, how they're abused? It's inexcusable. Even if they've done something wrong, you want the best for these people. But I've never seen a case of a transgender detainee who was actually treated like a human being."
Immigration detention is not supposed to be a form of punishment. While ICE, a division within the sprawling Department of Homeland Security, detains murderers, drug dealers, and other felons who pose significant security risks, they also hold asylum seekers fleeing desperate conditions in their home countries as well as the elderly, people who are in failing health, and family members of U.S. citizens. (Another group, unaccompanied minors who enter the U.S. without an adult relative, fall under the authority of a separate federal agency, the Department of Health and Human Services.)
Even as the Obama administration has dramatically expanded the use of detention as it pursues a record number of deportations, it also has sought to overhaul the facilities that house detainees and, in doing so, to change public perception — all of this in the absence of promised comprehensive immigration reform. For instance, ICE recently unveiled a new, privately run, civil detention facility in Karnes County, Texas, southeast of San Antonio, that has less of a penitentiary feel. It boasts better access to medical care and, as the White House touted this spring, provides detainees "more access to services, recreation, and natural light." Republicans in turn derided the administration’s attempt to improve conditions in a House Judiciary Committee meeting officially titled "Holiday on ICE."
ICE officials stressed that this initiative is no mere public relations stunt and issued an overhaul of detention standards in March. All detainees deserve dignity, the agency maintains, and that includes transgender detainees, who are among the most vulnerable individuals in the system. The latest ICE standards specifically address issues affecting trans detainees, calling for greater access to hormone therapy, a reduction in the use of administrative segregation, and perhaps most crucial, zero tolerance of sexual assault. Hundreds of sexual abuse allegations have been leveled by detainees in the past several years, according to documents obtained last year by the American Civil Liberties Union.
The problem, Corado and immigration advocates say, is that ICE detention standards aren’t legally binding. Homeland Security, bluntly described by one advocate as “a paramilitary organization,” has insisted on this.
The law that Homeland Security has resisted is known as the Prison Rape Elimination Act, or PREA. Faced with an inexcusable epidemic of rape in the U.S. prison system, Congress passed the bill on a bipartisan basis in 2003, and President George W. Bush signed it into law. PREA mandates consistent standards throughout the nation's prisons and jails for addressing sexual assault, and provides for anonymous reporting of complaints as well as outside investigations to ensure they are appropriately addressed. A lack of transparency is fertile soil for sexual abuse behind bars, on the part of both inmates and the staff who watch over them, lawmakers concluded.
Nearly a decade later, the Justice Department is still finalizing regulations for PREA, and in informal legal opinions, it has advised that immigration detention facilities should be subject to the law. But to the ire of some administration officials, Homeland Security has been recalcitrant, insisting that its own internal standards and oversight on immigration detention facilities should be the final word.
To address the jurisdictional impasse, the White House called a high-level meeting in early March between officials under Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano, multiple sources told The Advocate. It was the latest in a series of meetings DHS requested to assert its authority over detention standards. One administration official with knowledge of the meeting who spoke on the condition of anonymity said that the White House official who called the meeting, Cass Sunstein of the Office of Information and Regulatory Affairs, discarded Justice's legal opinion and indicated that the administration would allow DHS to issue its own standards.
This didn't go over well with several in attendance. The Justice Department representatives were "blindsided by the lengths to which DHS went to oppose DOJ's interpretation of PREA" as applied to immigration detention facilities, the official said. What's more, "We were surprised that the White House even went along with DHS," the official said. "To think that they are going to issue internal standards that are in any way comparable to what DOJ has promulgated is highly unlikely. … These [detainees] need and deserve the highest protections that we can offer them. And I have no reason to believe they are being protected to the extent that they could be.”
The Justice Department is expected to release its final PREA rules in the coming weeks, to be published in the Federal Register. "Of course, they won't be 'final,' because thereafter DHS will have to issue its own," the official said. "Note that DOJ is already two years late in issuing standards. So what's another year or two for [DHS], right?"
A White House spokesman declined comment on the PREA rules, as they have yet to be released. (A White House official later confirmed that the meeting took place, but disputed the "characterization" of it and did not elaborate further.)
Beyond this interagency squabble lie serious concerns for detainees from a range of officials and advocacy groups. In January, Rep. Jared Polis (D-Colo.), one of four openly gay members of Congress, joined Rep. Mike Quigley (D-Ill.) in calling for an investigation of abuse claims in ICE detention facilities (Polis believes that PREA should apply to immigration detention facilities, a spokesman said). Last summer United Nations Special Rapporteur on Torture Juan Mendez charged that ICE had violated provisions of the U.N.'s Convention Against Torture regarding the alleged abuse of more than a dozen gay and transgender detainees held in California, Texas, Pennsylvania, and other states, as detailed by a 2011 complaint from the advocacy group National Immigrant Justice Center.
Among the more chilling details in the complaint is the story of a transgender woman, referred to in redacted documents only as "B," who was held at the Santa Ana City Jail in Orange County, Calif. “B” was violently forced to perform oral sex on a male detainee while riding in a van en route to an immigration court hearing in 2010. The detention guards detailed in the complaint were often ignorant of the needs of transgender detainees — or simply showed contempt for their very existence. Following the U.N. pressure, ICE responded in a statement that a Homeland Security civil rights office would investigate, though officials declined to discuss the ongoing inquiry. "This is a widespread problem," said Jane Zurnamer, the National Immigrant Justice Center's director of policy. "If ICE can't protect these vulnerable people, they shouldn't be allowed to detain them."
But Andrew Lorenzen-Strait is convinced that ICE can do so, both safely and humanely. An attorney with a background in immigration and child advocacy issues, Lorenzen-Strait joined ICE in 2008 as a senior adviser on detention issues. He was tapped in February to become the agency's first public advocate in a newly created office with 30 staffers nationwide. Lorenzen-Strait is gay and married.
Some critics derided his new office as another example of PR masquerading as actual reform, but Lorenzen-Strait strongly contested this. "The public advocate office is not window dressing. It's a legitimate position that has teeth," he said during a recent interview in his office at ICE headquarters, a few blocks from the National Mall. "We want to make sure that detention is only used to make sure individuals comply with immigration proceedings and to mitigate flight risk. When you're in detention, there should be no degradation. We do have effective oversight to make sure that people don't languish, because they shouldn't."
LGBT issues became a key concern for ICE as President Obama took office. Nearly everyone with expertise on the matter agrees that the current administration better understands the needs of transgender detainees than its predecessors. Under George W. Bush, detention conditions for transgender individuals were severely inadequate in terms of protection and medical care. At least one transgender woman, and possibly two, died in detention during that time.
In formulating the new detention standards, ICE worked with stakeholder groups including the National Immigrant Justice Center, the National Center for Transgender Equality, and Immigration Equality. Over two years, the groups made progress on several key issues. One was a commitment to better hormone therapy access. Despite conservative backlash against ICE, that recommended policy is a no-brainer, Lorenzen-Strait said. "If a transgender individual was taking hormone therapy before they were in custody, it's a medical need, and that's what should be driving the decision, not anything else,” he said. “Prudent minds can and should agree here."
Meanwhile, administrative segregation shouldn’t be considered the default option for transgender detainees who have done nothing to warrant solitary confinement. "Because there's a tendency to believe that a transgender detainee may feel further victimization, there's been a presumption of segregation," Lorenzen-Strait said. "We put out a policy that says 'no' to that presumption. We look at a totality of circumstances, and ask whether a detainee could be housed in the general population with effective monitoring."
Following the National Immigrant Justice Center complaint, ICE created a dedicated protective custody unit for transgender and gay detainees in the Santa Ana City Jail. Lorenzen-Strait dispatched a team member last month to review the facility, and reported that detainees “feel more welcome, and there's a greater understanding of their needs," he said.
Talia Inlender, an immigration attorney who works often with detainees at the jail, had a more mixed review. “Although there have been important improvements for gay and transgender immigration detainees in Santa Ana, problems persist,” she said. “Delays in medical care and complaints of mistreatment remain. Having robust and enforceable detention standards for medical care and legal rights would be a big step forward, and detaining fewer gay and transgender people in these facilities would be an even bigger step.”
Lorenzen-Strait declined to discuss specific policy decisions regarding PREA but was adamant that his office had laid the groundwork for effective response to sexual assaults. "We believe that there's no daylight between PREA and our sexual assault standard, which had robust input from the NGO [nongovernmental organization] community. We have a strong, layered approach to compliance, and we're going to take sexual assault seriously."
The timeline for implementing such standards in the nation's detention facilities is an ambitious one. Lorenzen-Strait said that the detention centers operated by ICE will adopt the regulations by June. Privately run facilities, such as the new Karnes County center near San Antonio, are expected to implement the standards by July, he said, with a goal of all facilities holding detainees becoming compliant by year's end.
Advocates as well as some administration officials are dubious about ICE's ability to do so. This is not to say that Lorenzen-Strait isn’t well regarded among advocates interviewed for this article. His office’s commitment to the well-being of LGBT detainees wasn’t questioned in multiple interviews. But the new standards will require extensive contract renegotiations with large, private contractors, such as Corrections Corporation of America and Geo Group, which runs Karnes County. "There's no obligation for any of the contract facilities to modify these contracts," said Chris Daley, deputy executive director of Just Detention International. "And it's not at all clear that facilities, particularly county jails, are going to do this at the request of DHS."
Even if they did so, local jails would be burdened with implementing two sets of standards: those mandated by the Justice Department for inmates, and those put forth by DHS for immigration detainees.
"The standards seem like pie in the sky at this point," said Rosalba Davis, a former staff attorney for Immigration Equality who is now in private practice. "Each detention center operates like its own fiefdom and doesn't feel bound by the national standards. I hope this changes, though. I hope the detention centers start realizing that treating detainees humanely and with dignity is not difficult."
Dulce (left) and Ruby Corado
At Immigration Equality, Rosalba Davis had navigated many of those fiefdoms, including Rappahannock. Last year she worked with a transgender woman named Dulce from Guanajuato, Mexico, who originally fled to the U.S. in the 1990s following a sexual assault. Dulce has the effervescence of an Almodóvar film actress, yet is shy when speaking about her time in detention. She had been transferred to Rappahannock following an arrest for shoplifting shoes at a Kmart. Upon arrival, Dulce was put into an isolation cell (el hoyo, or "the hole") for six days with nothing but a pair of sheets and a thin, wet mattress thrown onto the floor. “I remember asking a female sergeant, ‘Why did you put me here, in the hole? It’s the place for punishment. What did I do?’” Dulce recalled. “She told me they didn’t know where else they could put me.”
Dulce was transferred to the same area where Kripcia had been held, the one designated for male sex offenders. She waited four months before her first court appearance and eventually spent eight months at the facility. CAIR Coalition, a local immigrant advocacy group, found out about Dulce’s case, which was soon taken up by Davis. "When I found out that Dulce was being held with sex offenders, I was not sure what to do about it," she said. "It all seemed so backwards to me."
Dulce had little interaction with her fellow detainees, but some conversations she did have scared her, as she recounted to the court last year. “I have not felt safe here and several detainees have made harassing comments,” she wrote. “When New York State passed gay marriage in July , we were watching the TV coverage and one of the detainees said that he wanted to be like Franco and make them all ‘disappear.’ He was telling me he wanted to kill all the gay people, including me. I try to ignore these comments and keep the peace but sometimes I feel unsafe and scared here.”
The officer handling Dulce's case seemed perpetually confused about her particular circumstances, according to Davis. “Over the course of my representation, he had very little patience,” Davis said of the ICE officer and his handling of Dulce’s requests, which included hormone therapy and a chaplain visit after Dulce learned that her mother had died (both were denied). "He even hung up on me once when I challenged his decision to continue to detain her after the immigration court granted her relief.”
The legal relief that eventually got Dulce out of ICE detention is known as "withholding of removal," and allows an individual to remain in the country, to obtain a work permit, and to pursue an education, which Dulce is now doing. But Ruby Corado, who has helped Dulce find a place to live in Washington since she was released, likens the impermanent legal classification to "life support."
"It can be taken away very easily," Corado said. "Immigration can just pull the plug on you and deport you anytime they want to. There's really no protection."
Absent safe facilities for transgender individuals, advocates have called for alternatives to detention in appropriate cases. Research shows that putting trans detainees on ankle bracelet monitoring results in significant savings for the government — $14 per day compared to $100 or more a day for the cost of detention, according to Homeland Security's own figures.
"Nobody should be subjected to these kinds of abuses, and people need to hear these stories," said Harper Jean Tobin, director of policy for the National Center for Transgender Equality. "I think there has been an increasing meanness in our country toward people who are undocumented. Unfortunately, that's certainly had an effect on the progress we have and haven't made in securing better treatment in detention."
Because of Corado’s efforts, Kripcia has since been released but has not yet been granted withholding of removal. She now volunteers with Corado’s organization and awaits a court decision on whether she can remain in the country.
Andrew Harmon is the Washington Correspondent for The Advocate. Twitter: @andrew_harmon
For more information on this issue, see below the short documentary Transgression, produced by Daniel Rotman, Morgan Hargrave, Toni Marzal, and TJ Barber.