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National Immigrant Justice Center files mass civil rights complaint on behalf of LGBT immigrant detainees [15 April, 2011]

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Originally published in Windy City Times, April 15, 2011

The National Immigrant Justice Center (NIJC), a project of the Heartland Alliance, recently released a mass civil rights complaint about the “abuse and mistreatment” of thirteen immigrant detainees in the custody of the Department of Homeland Security (DHS). The complaint was filed with the DHS's Office of Civil Rights and Civil Liberties and Office of Inspector General on April 13.

The complainants are all gay and/or transgender individuals, and their complaints list and detail systemic forms of abuse related to their sexuality and/or gender identity. In the cases described, HIV-positive detainees were denied their HIV medication, people identified as gay or “homosexual” suffered sexual epithets hurled at them and those identified as gender non-conforming were held in long-term solitary confinement, ostensibly for their protection, or subjected to various forms of sexual harassment and assault.

Juan (only first names are used in the complaint, and some are changed to ensure the privacy of the complainants) was sexually assaulted by two other detainees but only transferred to another facility after three months of his reporting the incident, despite his repeatedly asking for a transfer. Steve, an HIV-positive individual, was taken to the doctor's office for a regular checkup and endured having blood drawn from the veins on the back of his hands because a facility officer refused to unshackle them, even after repeated requests from the doctor and nurse. Monica, an MTF transgender inmate, has been denied her hormone treatments for over five months and has received no treatment for her trauma-related depression.

These are the issues facing LGBTQ asylum seekers in the United States. Mary Meg McCarthy, executive director of NIJC, spoke to Windy City Times about the legal and political conundrums that asylees face and the organization's research into the systemic abuse inflicted upon so many which prompted the complaint. She says it is the first of its kind and has been in process for about a year.

It is not illegal to seek asylum in the United States and, in fact, McCarthy emphaisized, it is actually a right to do so: “Under immigration laws, [in the cases of] individuals who do not have legal status upon entering the country, the government may detain those individuals [in administrative or civil custody]. These individuals face, oftentimes, indefinite detention unless their immigration case is resolved. That's a concern to us and contrary to international law. The United Nations High Commissioner for Refugees has issued guidelines regarding detention of asylum seekers and [recommended that] those individuals are to have what they call individualized assessments as to whether or not they are a danger to the community or a flight risk. And if the answer is no, they should be released.”

NIJC hopes for specific outcomes from this complaint. McCarthy said one goal was that individuals such as these thirteen and the many others whose cases may not even be heard of, are not detained. She added, “We are also hoping for the Obama administration to immediately investigate these allegations and take steps to remedy them and implement the recommendations we set forth.” NIJC is also hoping that the administration “will apply the protections of the Prison Rape Elimination Act,” which is currently under consideration by the Department of Justice. Another component, according to her, is that some individuals are being mandatorily detained if they have committed some type of offense in the United States, “so we would advocate that the government does have discretion to review their detention and that their detention should not be arbitrary and prolonged without any kind of review.”

The fact that asylees can be detained on arbitrary grounds has meant an explosion in the number of detainees. According to McCarthy, immigration officers detain 33,400 individuals (immigrants, refugees, and asylum seekers) a day in 250-300 jails across the country. Many times, this happens in remote areas where they have no access to attorneys (they do not have a right to court-appointed counsel) or pro bono counsel, all of which is compounded by the fact that an asylee or refugee is more likely to be very poor and/or not fluent in English. In addition, they are often fleeing abuse and torture in the jails of their native countries, suffer from trauma and may not even be aware of their rights to medical treatment.

Owen Daniel-McCarter is a lead attorney and founder of Transformative Justice Law Project, which seeks to bring more attention and legal aid to people in the prison system. The group defines itself as “deeply committed to prison abolition, transformative justice, and gender self-determination.” He praised the NIJC complaint, saying that “this effort to raise awareness in a public forum of what is happening to LGBT folks in detention is really important, and I'm grateful that NIJC has filed this complaint. Most people have no awareness that such instances of abuse are even happening.”

Saying that the kinds of accounts presented in the complaint were just “the tip of the iceberg” and calling the detention system a “fortress of violence,” Daniel-McCarter said that, “immigration detention as a whole has so little accountability.” He spoke of TJLP clients' experiences in detention, “where folks are placed in facilities according to the sex assigned at birth - which results in women being placed in men's facilities - verbal harassment, physical assault, and denial of medical care.” He pointed out that the last was not just restricted to transgender inmates but reflected, on the whole, the way the medical system “is used as another way to harass people in jails.”

Describing living conditions, he said that detainees were often living with 50-80 people in bunk beds, cots, or on the floor, and that part of the goal, for activists, ought to be to make sure that “we see the root causes of harassment as coming from the institution,” and that detainees are often “mirroring” the behavior of keepers and enforcers when they abuse each other.” Because of what he calls a culture of acceptance of such behavior, Daniel-McCarter “tend[s] not to blame other detainees for homophobic and transphobic behavior.”

However, Daniel-McCarter also wants a shift in how such matters are addressed, saying that, “There needs to be a conversation simultaneous with legal efforts like this and we need to think of the structural problems with the immigration and the detention system as a whole.” He would like people, in thinking about the issues facing immigrants in detention, “to also be addressing all of the huge problems happening inside of prisons and just a lack of accountability as a whole, when we have systems of incarceration and detention of any kind. I worry that [the complaint] has the potential to glorify the prison system. What does this do as far as further institutionalizing or accepting the use of immigration detention at all? Why are LGBT folks being disproportionately deported? [How do we address the] inherent heterosexism within immigration law as a whole?”

Daniel-McCarter acknowledged that none of these were easily resolvable: “It's this problem that all of us struggle with as attorneys – what are the limitations to a litigation strategy? And those are just conversations that the legal system as a whole doesn't allow us to have. It would be amazing if there were some sort of progressive, grassroots activism, happening in Chicago separate from NIJC, that supports this and also asks questions that force us to move beyond, 'What's happening in detention?' to 'Why do we have detention?'” He emphasized the importance of the NIJC complaint, saying that, “What they're doing within the legal framework is absolutely progressive and trying to push the boundaries of what ICE [Immigrations and Customs Enforcement], DHS and DOJ and have been doing so far.”

NIJC has begun an online letter writing campaign,which can be found at McCarthy, in speaking to the need for the LGBTQ community to respond to this matter, said, “We hope this will encourage the community to become aware of these issues happening to its brothers and sisters who are oftentimes invisible in our communities, and to talk about this and raise it with government officials.”


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