Immigration Detention for LGBTQ+ Foreign Nationals & Their Legal Protections
While deportation proceedings are pending, foreign nationals may be held in one of the 200 jail facilities around the country. These are facilities run by United States Immigration and Customs Enforcement (ICE).
Many LGBTQ+ and HIV-positive immigration detainees are subject to particularly serious abuses during detention. Abuses may include denial of medical and mental health treatment, rape and sexual assault, harassment by personnel and officers, and arbitrary long-term solitary confinement (supposedly for the inmate’s own protection). LGBTQ+ individuals are 15 times more likely to experience sexual assault than their heterosexual and cisgender counterparts. In some cases, people living with HIV have their health status exposed. Transgender women may be put in male facilities. Often, the detainees have come to the United States to escape persecution, but continue to be abused in detention centers.
Detainees experiencing mistreatment while in Department of Homeland Security (DHS) or ICE custody have some forms of recourse available to them, though the outcomes can vary greatly by facility.
Filing a Complaint About Abuse
If you are abused, harassed or discriminated against as a detainee, you can report the incident to staff. However, some detainees feel unsafe reporting their mistreatment directly to staff because the conduct at issue is being perpetrated by the staff. In this instance, you can contact ICE headquarters by calling a toll-free hotline at (855) 448-6903. You should also log or record when the mistreatment occurs and state what happened on each occasion. Your log may be used as evidence to show a violation of your rights.
You can also file a complaint with the DHS Office of Civil Rights and Civil Liberties using an official complaint form and a letter. You can attach any relevant documents to this letter. The Office of Civil Rights and Civil Liberties can review complaints and launch investigations to determine whether there has been a violation. If there is a finding that your civil rights have been violated, the office can make formal recommendations and possibly enact a policy change.
Contact a Lawyer
A detainee who has experienced severe mistreatment in a detention center, whether or not it is based on their affiliation with the LGBTQ+ community, should record the incidents and consider contacting an attorney.
In some cases, it may be wise and necessary to ask someone else to take these steps for you. An attorney may also be able to bring a federal civil rights lawsuit on your behalf. The ACLU has also filed several lawsuits on behalf of detainees, and other organizations offer various forms of advocacy in this context.
About 75 transgender prisoners are detained by ICE on a typical night. These detainees are often the most vulnerable to sexual abuse by guards or personnel. They may also be denied necessary hormones and other medications, even though several United States Circuit Courts have determined that denial of hormones is a violation of the 8th amendment requirement that those incarcerated receive adequate medical care. Often transgender detainees are placed in solitary confinement for long periods of time, purportedly to guard against the risk of sexual assault.
Some progress occurred during the administration of President Barack Obama in the form of a memo about how to treat transgender immigrant detainees. A set of policies had already been released in ICE's 2011 detention standards. However, these policies were voluntary and didn't include enforcement provisions. Among other things, the Obama administration’s memo explained how to determine gender identity and asked that immigrants be housed in facilities appropriate to their gender identities.
Withholding of Removal and Asylum
Immigrants in detention can apply for withholding of removal or asylum. Withholding of removal is granted by an immigration judge in cases where an applicant can show more than a 50% chance of persecution in his or her home country due to race, religion, nationality, membership in a particular social group, or political opinion. This order is like asylum in that it protects someone from deportation if they fear persecution, but it carries some important distinctions. Unlike asylum, you do not have to apply within one year of entering the United States, and while certain crimes might disqualify you from asylum they may not disqualify you from withholding of removal.
People ineligible for withholding of removal or asylum may find relief under the Convention Against Torture.
If you are ineligible for both asylum and withholding of removal, however, relief under the Convention Against Torture may be possible. Those who have been sentenced to five or more total years of imprisonment due to aggravated felony convictions, drug sales convictions, or a serious nonpolitical crime outside the United States typically need to apply for this type of relief. Those who qualify for relief under the Convention Against Torture are typically required to remain in mandatory detention during the course of their removal proceedings.