Over the last few days, the story of British trans woman comedian Avery Edison’s detention by Canadian immigration authorities captured international attention. Due to previous visa issues, Avery was stopped at the Toronto airport and detained for one night in solitary confinement at a men’s jail. Avery live-tweeted the initial stages of her detention at the airport. Public outrage and mobilization led to Avery’s transfer on Tuesday, February 11, to a women’s jail.
Tragically, this situation highlights the devastating experiences that many transgender immigrants, particularly trans women of color, face within the immigration detention system—as well as in prisons and other forms of incarceration more generally—throughout the U.S. every single day. For example, Krypcia, a trans woman who immigrated to the U.S. from El Salvador, spent eight months in solitary confinement in an immigration detention facility. You can read her personal account of her experiences here.
Most transgender women in immigration detention are housed either in the general male population or in solitary confinement, which is recognized as a form of torture, particularly for those fleeing persecution and dealing with untreated PTSD.
The injustices of the immigration detention system experienced by Avery and many other transgender people are why Transgender Law Center now has an Immigration Detention Project, made possible with funding through a Soros Justice Fellowship. Below we describe some of the work that is happening in the world of advocacy around immigration detention issues that we have been involved with.
Making Sure Humanitarian Parole Is Available:
Asylum is a form of legal status that protects immigrants who have been persecuted or believe that they will be harmed if they go back to their birth countries based on a number of particular protected characteristics, including gender identity and sexual orientation. People who are granted asylum are allowed to stay in the U.S., get a work permit and some public benefits, and eventually apply for a green card and U.S. citizenship. Asylum is an incredibly important part of the U.S. immigration system, because we are not supposed to deport people to countries where they will be harmed or killed. You can read more information about asylum in our fact sheet.
When an immigrant asks for asylum at a port of entry into the United States (such as an airport or at the border) or when encountering border patrol within two weeks of entering the country, they are given a “credible fear” interview, which is similar to an asylum interview. If they pass the interview, have a sponsor within the U.S. who will financially support them, and meet a few other requirements, Immigration and Customs Enforcement (ICE) policies state (.pdf) that they should be released from detention on “humanitarian parole” until their asylum case is processed. Because many transgender immigrants to the United States are fleeing persecution in their birth countries and also unfortunately frequently face inhumane treatment within U.S. immigration detention centers, this policy holds great potential for helping transgender asylum-seekers avoid being held for months or years in ICE detention centers.
This past November, Santiago Garcia, a queer undocumented activist affiliated with the National Immigrant Youth Alliance, infiltrated the El Paso Detention Center. In the detention facility, Santiago discovered many cases of individuals who qualified for release under ICE’s “humanitarian parole” policy but were still being detained by ICE months later. One of the people that Santiago met was a transgender woman from Mexico named Viesca who had been detained since August despite passing her credible fear interview. She had been forced to shower with men and reported being continuously harassed by the guards. Like almost all detained immigrants, she did not have a lawyer. Unfortunately, by the time that Transgender Law Center learned about her situation and tried to intervene, it was too late: she had just accepted “voluntary” deportation rather than remain in detention any longer. Transgender Law Center joined with other civil rights and immigrants’ rights organizations to request a thorough case-by-case review of the individuals detained in the El Paso Detention Center, which you can also join in demanding here.
Additionally, in mid-December, the U.S. House of Representatives Judiciary Committee held a hearing on the asylum system, particularly focusing on the credible fear interviews, and considered potentially increasing restrictions to make accessing asylum even more difficult.
Transgender Law Center joined 117 other organizations in a letter that strongly emphasized the importance of the credible fear interview and humanitarian parole and discouraged further restrictions on asylum.
Ending the Bed Mandate:
Finally, a major priority of the immigrants’ rights movement is to eliminate the “bed mandate,” which is language in the Department of Homeland Security Appropriations Bill which requires that 34,000 people be locked up in immigration detention every single day. Until the bed mandate is ended, release of immigrants from detention or their placement into community-based alternatives to imprisonment result in ICE locking up more immigrants, including transgender people who as mentioned above often experience serious harms in detention. You can read more about the bed mandate here. Transgender Law Center has signed on to letters to Congress and the President to end this unjust policy. Similarly, when ICE announced plans to open up a new facility to detain immigrants in Santa Maria, on the central coast of California, Transgender Law Center joined in the opposition to this expansion of federal detention facilities and to any more immigrants being detained.
Reports Highlighting Injustices:
Cornell Law School’s Advocacy for LGBT Communities Clinic and United We Dream’s Queer Undocumented Immigrants Project released a report in November entitled Broken Dreams: How Enforcement-Only Bills in the House of Representatives Threaten to Further Marginalize the LGBT Undocumented. Transgender Law Center participated in the launch of this Report at Congressman Mark Takano’s office, leading a discussion of the general situation facing transgender undocumented immigrants under current immigration law. Other panelists spoke about the potential impacts of the SAFE Act, the Legal Workforce Act, the Agricultural Guestworker Act, and the SKILLS Visa Act which were proposed in the House of Representatives, and about their own experiences as LGBT undocumented immigrants. The full report can be read here.
Also in November, Sharita Gruberg of the Center for American Progress published a report called Dignity Denied: LGBT Immigrants in U.S. Immigration Detention. The report highlights the unacceptable levels of “sexual assault . . . , withholding of medical treatment, verbal and physical abuse . . . , the use of solitary confinement based solely on the sexual orientation or gender identity of the immigrant, . . . being humiliated by guards … and inappropriate use of restraints” experienced by detained LGBT immigrants, especially transgender women. The full report can be read here. In November, we participated on a panel launching the report along with representatives from the National Center for Transgender Equality, the National Immigrant Justice Center, and Community Initiatives for Visiting Immigrants in Confinement (CIVIC).
On January 1st, California’s new Transparency and Responsibility Using State Tools Act (TRUST Act) went into effect. That law limits law enforcement officials’ ability to detain immigrants who are otherwise eligible for release solely so that they can be turned over to Immigration and Customs Enforcement, unless certain conditions are met. Many transgender immigrants, particularly women of color, have faced harassment by police and pretextual arrests (such as for jaywalking or marijuana possession) in which charges are immediately dropped but they are then held for ICE to put into deportation proceedings. Such practices contribute to making many transgender immigrants afraid of the police, even in situations in which they experience violence from others.
Transgender Law Center was involved with the campaign for the TRUST Act: participants in our 2012 Transgender Advocacy Day educated lawmakers about its importance, and we co-authored a letter with Lambda Legal urging Governor Brown to sign it into law. Since the signing of the law, we have participated in strategizing around the implementation of the law, including meeting with Sheriff Ahern of Alameda County (who is also President of the California State Sheriffs’ Association). The TRUST Act is a promising start to ending the collaboration between law enforcement and immigration authorities that has led to so much injustice. You can learn more about the TRUST Act here.
What You Can Do:
To learn more about the daily experiences of transgender people in immigration detention, especially transgender women of color, you can read the following articles:
o Transgender Asylum Seekers Face Deportation Revolving Door
o Transgender Detainees Face Challenges
o Transgender Immigrant Detainees Face Isolation
• CIVIC runs visitation programs across the country that aim “to end the isolation and abuse of people in immigration detention,” including transgender immigrants. You can learn more about participating in one of CIVIC’s visitation programs here.
• You can support local organizations working to release transgender immigrants from immigration detention such as the Queer Detainee Empowerment Project in New York City and the Rainbow Defense Fund in Arizona
• You can participate in the National Day of Action Against Deportations on April 5th all across the country to protest the 2 million deportations under the Obama Administration and demand an end to deportations. More information can be found here.