Federal Agencies at Fault in Trans Immigrant's Death, Complaint Says

Lawyers for the family of transgender immigrant Roxsana Hernandez, who died while in custody of U.S. immigration authorities, have filed a complaint holding federal immigration agencies and their contractors responsible for her death.

Hernandez, a 33-year-old from Honduras, died May 25, 2018, after being transferred to a hospital from the Cibola County Correctional Center, a privately run prison in New Mexico. The officially noted cause of death was complications of pneumonia and HIV, but civil rights groups have said she was abused while in custody and that her death was preventable.

The Transgender Law Center and the law office of R. Andrew Free announced Thursday that they had filed a Federal Tort Claim Act complaint against the Department of Homeland Security, Customs and Border Protection, and Immigration and Customs Enforcement listing 10 charges under which the legal groups hold the agencies and their contractors responsible for Hernandez's death.

They "failed to provide her with adequate medical care despite the fact that she was visibly ill from the time she was taken into CBP custody until her death, and CBP and ICE employees knew she was HIV positive and without antiretroviral medication, violating the agencies' own policies, causing her emotional distress, physical harm, and death," the complaint says.

Documents received from ICE and released Thursday include the transcript of an interview indicating Hernandez's "credible fear" of returning to Honduras, in which she described being raped by a gang in her country; a hospital log from her time in Cibola General Hospital and Lovelace Medical Center; and a case log from DHS's Office of Inspector General. The documents include an affidavit from another trans detainee saying that Hernandez's illness worsened while she was in custody but she was not allowed to see a doctor until her fellow detainees took action.

Another document shows that ICE was obligated to preserve video footage of Hernandez's time in detention. An analyst with ICE's Office of Professional Responsibility had asked via email that "all facility video footage" and other records related to Hernandez's time at the Cibola County prison, May 16-17, 2018, be retained, with "all" underlined.

The request was sent in early June of 2018, but emails from two months later indicated that the video no longer existed, as surveillance video is usually preserved for no more than 90 days. The newly released email underscores ICE's duty to preserve it, according to Transgender Law Center officials.

"It's completely ridiculous to suggest they didn't know they were supposed to preserve critical video footage -- the most basic thing you do when there's some type of investigation, or you expect to be sued," Dale Melchert, a staff attorney at the Transgender Law Center, told BuzzFeed News.

"The U.S. government and their agents made decisions that contributed to Roxsana's death," Umi Vera, campaign and organizing director for Familia: Trans Queer Liberation Movement, said in TLC's release. "We've heard from our members who've survived being incarcerated in detention centers that the inadequate care that Roxsana received is similar to the lack of medical attention they received, even when requested through formal procedures. Many of them feel lucky to be alive. All of these federal agencies and private prisons must be held accountable to prevent the deaths of other trans and queer migrants."