No Transit
By: Robert A Stribley
Tags: LGBTQ, Immigration, Transgender, Asylum Seekers, Human Rights

No Transit

The Criminal Treatment of Transgender Asylum Seekers in the United States

Over the past four years, the Trump administration enacted an unprecedented reduction in the number of asylum seekers admitted to the United States, slashing admissions to a level approximately 16 percent of the cap the Obama administration offered in 2016. Transgender asylum seekers, who are already more at-risk than typical applicants now face tremendous hurdles and abuse as they try to survive in the opaque confines of this increasingly constrictive immigration system.

By their own accounting, the Department of Homeland Security had approximately 300 transgender asylum seekers in their custody in 2019. Under U.S. law, anyone has the right to present themselves as an asylum seeker at the U.S. border or within the United States — regardless of how and where they enter. Before they can be removed, the law requires they be given the opportunity to present their case for a “credible fear” screening before a judge or qualified asylum officer. However, transgender asylum-seekers find themselves housed in detention centers at rates over twice that of typical applicants, their average detainment being about 99 days. They’re also unlikely to have their cases reviewed by individuals familiar with their unique needs and circumstances both as transgender individuals and in the context of their home countries.

Once here, trans asylum seekers experience mistreatment in multiple ways. Significantly, they are not typically placed in housing reflecting their gender identity, despite this being an ICE directive established under the Obama administration. This practice places them at risk for harassment and sexual assault. In fact, according to a report by the Center for American Progress, LGTBQ asylum seekers in general are 97 times more likely to experience sexual assault than typical detainees. This staggering statistic reflects the fact that such detainees also may suffer multiple instances of sexual assault in custody.

Additionally, transgender detainees seldom receive the level of mental health and medical attention they need. Commonly, such trans-specific treatment includes affirming psycho-social services, provisions for ongoing hormone replacement treatment, post-surgical care, and medication and treatment for any health conditions, such as HIV. Consider, during this pandemic, too, the impact of COVID-19 upon transgender asylum seekers, as members of the LGTBQ+ community whose vulnerabilities are already amplified.

One of several images released by ICE for the Cibola Country Correctional Center on social media as publicity for their dedicated housing for transgender detainees

Even facilities dedicated to transgender asylum seekers fail to meet their particular needs. The Cibola County Correctional Center, a private prison in Milan, New Mexico, was shut down in 2016 after complaints of repeated medical violations and at least three health-related deaths there. Remarkably, Cibola reopened just three months later as a detention facility, which now includes a dedicated unit housing 60 transgender women. Apparently, many previous guards were reinstated there. Cibola is run by CoreCivic, a private company, which contracts with ICE to profit off of detainees. As is often the case, the facility’s remote location makes it difficult for lawyers to work with asylum seekers. In mid 2019, seeking attention, 29 transgender detainees at Cibola collaborated on an open letter complaining about sub-standard medical attention and abuse at the hands of the facility’s employees.

One of the women signing that letter was Alejandra Barrera. After fleeing El Salvador, due to multiple instances of sexual assault by both Salvadoran military and MS-13 gang members, Barrera found her way to the U.S. where she spent two years in detention at Cibola with no explanation for why she could not be released. She requested but was denied proper medical attention six different times. She was denied parole five times. She says six of her teeth were removed at the facility due to inadequate dental care.

Roxsana Hernández Rodriguez died after 5 days in custody at Cibola Country Correctional Center — Photo from Transgender Law Center

In 2018 Roxsana Hernández Rodriguez died from HIV-related complications after five days in custody at Cibola. She had been housed in a cell known to be so cold, it was dubbed an “ice box,” and she arrived at the nearby hospital with symptoms of pneumonia and dehydration. After reporting showed that ICE had deleted video surveillance footage of Roxsana’s time in custody, an independent autopsy later concluded she had also been beaten.

Earlier this year, a leaked DHS memo detailed how a transgender detainee with HIV bled from her rectum for 13 days without medical attention at Cibola. The email also revealed how other detainees sometimes waited up to 17 days for medical attention in conditions considered unsanitary. Consequently, in January, 27 trans women were transferred from Cibola to facilities in Tacoma, Washington and Aurora, Colorado, where they hoped to receive better medical care.

Elsewhere, however, the conditions aren’t necessarily any better. In 2019 Johana Medina León, a 25-year-old Salvadoran asylum seeker died of pneumonia in El Paso, TX. She had been detained for over a month and had repeatedly requested medical attention.

Detainees are also likely to be punished at the hands of facility employees. In the New Yorker, Alejandra Barrera explained how an entire hall of detainees were pepper sprayed because two women were fighting. She also said she was denied water. A 2016 Human Rights Watch report detailed the routine abuse of transgender women in these facilities, including sexual assault and harassment by male detainees and guards, subjecting them to “the same kinds of abuses that drive many transgender women to flee their home countries in the first place.” Such detainees suffer this punishment and abuse despite having committed no crime in seeking asylum.

Though many Americans feel compassion for these asylum-seekers, they may not realize their treatment actually breaches both international and U.S. law. The United States ratified the 1967 Protocol Relating to the Status of Refugees in 1968, essentially agreeing to the 1951 Convention Relating to the Status of Refugees, as well. Article VI of the U.S. Constitution demands we consider “all” signed treaties as “the supreme Law of the Land.” The U.S. further cemented these rights for asylum seekers when Congress passed the Refugee Act of 1980. The existence of that Act negates some already dubious claims that these treaties are not “self-executing.” The Trump administration, for example, argued it could rightfully shut down asylum admissions during COVID-19 since the U.S. had no “legal obligation to conform its conduct to international treaties that are not self-executing or otherwise implemented into domestic law by an Act of Congress.” Besides, the Constitution makes no such distinction between self executing and non self-executing treaties. In summary, these laws require that transgender asylum seekers receive humane housing and medical attention while their cases are examined by qualified individuals.

Solutions

The incoming Biden administration now has the opportunity to ensure a just and humane process for transgender asylum-seekers in the United States.

To do so, several issues must be addressed.