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.)