Stiches or Surgery? What Will it Take to Fix Our Broken Immigration System? September 3, 2015 8:30 a.m. – 10:00 a.m.
Moderator:
Name: Arnulfo D. Hernandez, Esq. Title: HNBA Immigration Section Chair Employer: Hernandez Law Firm Email: [email protected]
Panelists:
Name: Director Sarah Saldaña Title: Director, U.S. Immigration and Custom Enforcement Employer: Email: Assistant to Director: Staci Leake - [email protected]
Name: Professor Jennifer Chacon Title: Professor of Law Employer: University of California, Irvine, School of Law (Visiting Professor at Stanford University) Email: [email protected]
Name: Rachel Velasquez - Title: 2L – Vanderbilt University Law School Employer Email: [email protected]
Name: Penni P. Bradshaw, Esq. Title: Partner – Immigration Practice Group Chair Employer: Constangy, Brooks, Smith & Prophet, LLP Email: [email protected]
Name: Flor Bermudez, Title: Detention Project Director Employer – Transgender Law Center Email: [email protected]
Arnulfo D. Hernández HERNANDEZ & ASSOCIATES, P.C. 1490 Lafayette Street, Suite 307 Denver, Colorado 80218 (303) 623-1122 | http://www.hdezlaw.com
Arnulfo D. Hernández, Esq., As a managing partner at Hernandez & Associates, P.C., in Denver, Colorado, Arnulfo D. Hernandez concentrates his practice on immigration law and criminal defense litigation, particularly cases in which both practice areas intersect. Fluent in Spanish, Arnulfo represents immigrants and their families in the Denver metropolitan area before federal and state courts as well as federal agencies such as the Board of Immigration Appeals, the Executive Office for Immigration Review and numerous consulates around the world. He is also admitted to practice before multiple federal appellate courts, the U.S. Tax Court and the U.S. District Court for the District of Colorado.
After attending the Universidad Del Noreste, A.C, in Tampico, Mexico, in 1997, Arnulfo earned his undergraduate degree with dean's list honors from the University of the Incarnate Word in San Antonio, Texas, in 2001, majoring in both political science and psychology. He earned his Juris Doctor from the Sturm College of Law at the University of Denver in 2005. Two years later, he obtained his Master of Laws in taxation from the same institution.
Arnulfo began his legal career as a clerk for the Procuraduría General de Justicia del Estado de Guanajuato in Mexico before clerking for the Foreign Prosecutions Unit at the Colorado State Attorney General's office. He then worked as an associate attorney at the Law Firm of Joseph C. Cohen, P.C., from 2005 to 2007, after which he founded Hernandez & Associates, P.C.
He is a member of numerous professional associations, including the Colorado Hispanic Bar Association, for which he serves on the board of directors. A distinguished member of the Robert C. Rhone-Ava M. Brackett American Inn of Court, Arnulfo has an extensive record of pro bono work that includes working with two regional legal clinics since 2005.
EDUCATION
UNIVERSITY OF DENVER | STURM COLLEGE OF LAW & DANIELS COLLEGE OF BUSINESS, Denver, Colorado LL.M., May 2007 UNIVERSITY OF DENVER | STURM COLLEGE OF LAW, Denver, Colorado Juris Doctor, May 2005 UNIVERSIDAD DE GUANAJUATO, Guanajuato, México | Legal Externship Program 2003 UNIVERSITY OF THE INCARNATE WORD, San Antonio, Texas Bachelor of Arts in Political Science, Cum Laude, May 2001 Bachelor of Arts in Psychology, Cum Laude, May 2001 UNIVERSIDAD DEL NORESTE, Tampico, Tamaulipas, México General Latin American Studies, 1995-1997 BAR ADMISSIONS
State Courts of Colorado United States District Court for the State of Colorado United States 10th Circuit Court of Appeals United States 9th Circuit Court of Appeals United States Tax Court Executive Office of Immigration Review PROFESSIONAL AFFILIATIONS
American Bar Association Criminal Justice Section | Immigration Committee Faculty of Federal Advocates National Hispanic Bar Association 2014-2015 Chair, Immigration Section Colorado Bar Association CBA Immigration Law | Section Member CBA Criminal Law | Section Member CBA Taxation Law | Section Member Denver Bar Association National Immigration Project of the National Lawyers Guild American Immigration Lawyers Association Colorado Chapter of AILA | Section Member National Association of Criminal Defense Lawyers Colorado Criminal Defense Bar Life Member Colorado Hispanic Bar Association Member 2013-2014 Elected Board Member 2013-2014 Chair, Education Committee 2014-2015 Chair, Nominations and Endorsement Committee 2015 President Elect Rhone-Brackett Chapter of the American Inns of Court
EXPERIENCE
HERNANDEZ & ASSOCIATES, P.C. | Managing Partner Law firm specializes in Immigration & Naturalization Law and Criminal Defense. Represent clients from over 30 countries in 10 states. Removal based immigration related litigation experience before Colorado District Federal Court, the Executive Office for Immigration Review, the Board of Immigration Appeals, and the 9th & 10th Circuit Court of Appeals. Wide ranging federal and state criminal defense litigation experience from low level misdemeanors to multiple felony indictments.
COHEN LAW FIRM, P.C. | Associate Attorney Law firm specialized in civil litigation and employment law. Litigated cases involving injury law, contractual disputes, wrongful termination actions as well as wills & estates challenges.
FOREIGN PROSECUTIONS UNIT | Attorney General’s Office of Colorado Prepared and filed criminal cases, in Spanish, for México’s Federal Criminal Tribunal for prosecution. Case load involved foreign born Colorado murder fugitives evading justice in México. Drafted and edited the Article IV Foreign Prosecutions Manual for the State of Colorado. Publication distributed statewide to law enforcement agencies.
CLERKSHIP | Procuraduría General de Justicia del Estado de Guanajuato Prepared both criminal and civil legal briefs, in Spanish, which were submitted to the proper fact finding tribunal for adjudication before a trier of fact. Prepared discovery by composing interrogatories and requesting production of documents. Managed and prepared cases set for litigation. BIOGRAPHY Sarah R. Saldaña Director, U.S. Immigration and Customs Enforcement
As ICE’s Director, Sarah R. Saldaña leads the largest investigative agency within the U.S. Department of Homeland Security. Created in 2003, ICE has a budget of approximately $6 billion and has nearly 20,000 employees in 400 offices in all 50 states and 48 countries.
In this role, Director Saldaña advances ICE’s mission to promote homeland security and public safety through the criminal and civil enforcement of approximately 400 federal laws governing border control, customs, trade and immigration.
Previously, Director Saldaña served as the United States Attorney for the Northern District of Texas. In that position, she led a staff of more than 200 employees, including approximately 100 attorneys.
Prior to that, she served as an Assistant U.S. Attorney for the Northern District of Texas, where she prosecuted a variety of criminal cases, including bank and mortgage fraud, civil rights, human trafficking and public corruption. She also served as the Deputy Criminal Chief in charge of the District’s Major Fraud and Public Corruption section. Before joining the Department of Justice, she worked in private practice and at the Equal Employment Opportunity Commission, Housing and Urban Development, the Department of Labor.
Director Saldaña graduated Summa Cum Laude from Texas A&I University and earned her J.D. degree from Southern Methodist University.
Director Saldaña is the recipient of several meritorious awards, including Latina Attorney of the Year by the Hispanic National Bar Association and SMU Dedman School of Law’s Distinguished Spanish Alumni Award. In September 2011, Director Saldaña became Texas’s first Latina chief prosecutor. Director Saldaña also holds the distinction of being the first Latina appointed by President Barack Obama and confirmed by the U.S. Senate as ICE’s Director.
U.S. Immigration and Customs Enforcement (ICE) is the largest investigative arm of the Department of Homeland Security. ICE is comprised of three integrated divisions that form a 21st. century law enforcement agency with broad responsibilities for a number of key homeland security priorities. For more information, visit: www.ICE.gov. Current as of 12/23/2014 Jennifer M. Chacón holds a J.D. from Yale Law School (1998) and an A.B. in International Relations from Stanford University (1994). She is a Professor in the School of Law at the University of California, Irvine, where she is also the former Senior Associate Dean of Academic Affairs. She is currently a Visiting Professor of Law at Stanford Law School and has previously served as a Visiting Professor of Law at Harvard Law School. She is the author of more than 30 law review articles, book chapters, expert commentaries and shorter articles and essays discussing immigration, criminal law, constitutional law and citizenship issues.
Professor Chacón has served on the Nominations Committee of the Law and Society Association and chaired the 2014 Immigration Law Professors Workshop Planning Committee. She is admitted to practice in New York and is a member of the New York City Bar Association, where she has served on the Committee on State Affairs and contributed to projects undertaken by the Immigration and Nationality Law Committee.
Professor Chacόn was an associate with the New York law firm of Davis Polk and Wardwell from 1999-2003. She clerked for the Honorable Sidney R. Thomas of the Ninth Circuit from 1998-1999. Before teaching at U.C. Irvine, she was a professor at the U.C. Davis School of Law, where she received the Distinguished Teaching Award in 2009. JENNIFER MARIE CHACÓN
Professor of Law University of California, Irvine, School of Law 401 E. Peltason Dr. Irvine, California
ACADEMIC EMPLOYMENT
Professor of Law (2009-present); Senior Associate Dean for Academic Affairs, (2010-2011), University of California, Irvine, School of Law.
Current and Recent Courses: Constitutional Law, Criminal Law, Criminal Procedure, Critical Identity Theory, Immigration Law and Policy (including Asylum & Refugee Law), Interdisciplinary Immigration Colloquium, Legislative Drafting Clinic: Farmworkers Rights, Statutory Analysis
Visiting Professor of Law (2015-2016), Stanford Law School
Courses: Criminal Law (Fall 2015); Immigration Law and Policy (Winter 2016); Noncitizens in the Criminal Justice System (Winter 2016)
Visiting Professor of Law (2014-2015), Harvard Law School
Courses: Criminal Law (Fall 2014); Criminal Procedure (Spring 2015); Immigration Law and Policy (Spring 2015)
Thelton E. Henderson Visiting Scholar-in-Residence, University of California, Berkeley, School of Law (September 2012)
Professor of Law 2008-2009, Acting Professor of Law 2004-2008, King Hall School of Law, University of California at Davis
Decanal Fellow, Yale Law School, New Haven, Connecticut, 2003-2004
TEACHING DISTINCTIONS
Harvard Law School, Shatter the Ceiling Award for Excellence in Advancing Racial Equality in the Classroom 2014-2015
UC Irvine School of Law, Distinguished Teaching Award Nominee 2012-2013; 2013-2014
UC Davis School of Law, Distinguished Teaching Award Winner 2008-2009; Nominee: 2007-2008 EDUCATION
J.D., 1998, Yale Law School
▪ Teaching Assistant, Professor Paul Kahn, Constitutional Law, Fall 1997 ▪ Submissions Editor, Yale Journal of International Law, 1996-1998 ▪ Immigration Clinic 1996-1997 ▪ Latino Law Students Association, Chair 1996-1997; Member 1995-1998 ▪ Thomas Lecture Series Committee Member 1995-1997
A.B. 1994, with Distinction, Stanford University
OTHER LEGAL EMPLOYMENT
Associate, Davis Polk & Wardwell, New York, New York, 1999-2003 Antitrust, securities, employment, bankruptcy and general commercial litigation; pro bono capital habeas representation
Law Clerk, The Honorable Sidney R. Thomas, United States Court of Appeals for the Ninth Circuit, Billings, Montana, 1998-1999
Summer Associate, Davis Polk & Wardwell, New York, New York, Summer 1998
Intern, Office of the Legal Advisor, U.S. Department of State, Washington, D.C., Summer 1997
Summer Associate, Morrison & Foerster LLP, San Francisco, California, Summer 1997
Exchange Instructor, Yale Linkage Program, Comparative Criminal Procedure Seminar, Santiago, Chile, August 1996
Intern (Yale Schell Fellow), Instituto de Estudios Comparados en Ciencias Penales de Guatemala, Guatemala City, Guatemala, May-July 1996
2
PUBLICATIONS
Articles
Liminal Legality: Legal Subjects along the Civil-Criminal Border, DENV. U. L. REV. (forthcoming 2015)
The Transformation of Immigration Federalism, 21 WILLIAM & MARY BILL OF RIGHTS JOURNAL 577 (2013), reprinted in IMMIGRATION REGULATION IN FEDERAL STATES: CHALLENGES AND RESPONSES IN COMPARATIVE PERSPECTIVE (Sasha Bagley & Delphine Nakacha, eds., Springer Press, 2014).
Overcriminalizing Immigration, 102 J. CRIM. L. & CRIMINOLOGY 613 (2012)
The Expansion of Border Exceptionalism, 38 FORDHAM URB. L.J. 129 (2010)
Tensions and Tradeoffs: Protecting Trafficking Victims in the Era of Immigration Enforcement, 158 U. PENN. L. REV. 1609 (2010), reprinted in 31 IMMIGR. & NAT’LITY L. REV. 277 (2010)
A Diversion of Attention: Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights, 59 DUKE L. REV. 1563 (2010)
Managing Migration Through Crime, 109 COL. L. REV. SIDEBAR 135 (2009)
Dr. King, Nonviolence and Immigration, 32 N.Y.U. JOURNAL OF LAW AND SOCIAL CHANGE 465 (2009)
Race as a Diagnostic Tool: Latinos in California, Post-209, 96 CAL. L. REV. 1215 (2008)
Dred Scott, Citizenship and Family: Some Lessons for Contemporary Immigration Policy, 27 WASH. U. JOURNAL OF LAW AND POLICY 45 (2008), reprinted in 29 IMMIGR. & NAT’LITY L. REV. 633 (2008)
Unsecured Borders: Immigration Restrictions, Crime Control and National Security, 39 CONN. L. REV. 1827 (2007) (lead article); reprinted in 28 IMMIGR. & NAT’LITY L. REV. 613 (2007)
Loving Across Borders: Immigration Law and the Limits of Loving, 2007 U. WIS. L. REV. 345 (2007)
Whose Community Shield?: Examining the Removal of the “Criminal Street Gang Member,” U. CHICAGO L. FORUM (2007)
Misery and Myopia: Understanding the Failures of U.S. Efforts to Stop Human Trafficking, 74 FORDHAM L. REV. 2977 (2005); reprinted in 27 IMMIGR. & NAT’LITY L. REV. 331 (2006)
3 Essays
Immigration Detention: No Turning Back?, 113 SOUTH ATLANTIC QUARTERLY 621 (Summer 2014)
Feminists at the Border: Militarism in the Work of Ann Scales, 91 DENV. U. L. REV 85 (2013)
Policing Immigration after Arizona, 3 WAKE FOREST JOURNAL OF LAW AND POLICY 231 (2013)
Opening Hearts and Minds: A Response to Angela Onwuachi-Willig’s According to Our Hearts, 16 IOWA J. OF GENDER, RACE AND JUSTICE 725 (2013)
The Mercer Girls Guide to Immigration Law: A Response to Kerry Abrams, 64 VANDERBILT L. REV. EN BANC 15 (2011)
Statutory Analysis: Using Criminal Law to Highlight Issues in Statutory Interpretation, 1 U.C. IRVINE LAW REVIEW 131 (2011)
Book Chapters
The Security Myth: Punishing Immigrants in the Name of National Security, in IMMIGRATION, INTEGRATION AND SECURITY: EUROPE AND AMERICA IN COMPARATIVE PERSPECTIVE (Pittsburgh Press: 2008); reprinted in GOVERNING IMMIGRATION THROUGH CRIME: A READER (Julie A. Dowling & Jonathan Xavier Inda, eds., Stanford University Press, 2013)
Expert Commentary
Arizona's S.B. 1070 in the U.S. Supreme Court: Who Won, Why, and What Now?, LexisNexis Emerging Issues Law Center, July 2012
Carachuri-Rosendo v. Holder: Supreme Court Further Defines "Aggravated Felonies", LexisNexis Emerging Issues Law Center, June 2010
Border Searches of Electronic Data, LexisNexis Emerging Issues Law Center, June 30, 2008
Shorter Publications
Decriminalization and Its Discontents (reviewing Alexandra Natapoff, Misdemeanor Decriminalization, 68 VAND. L. REV. ___ (forthcoming 2015), JOTWELL.com, March 20, 2015
Who is Responsible for U.S. Immigration Policy?, 14 INSIGHTS ON LAW AND SOCIETY Vol. 3 pp. 20-24 (Spring 2014)
The Rise of Automated Policing (reviewing Anil Kalhan, Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 OHIO ST. L.J. 1105 (2013), JOTWELL.com, March 24, 2014 4 Sowing the Seeds of Distrust in Immigration Policy, crImmigration.com, May 23, 2013
In the Name of Border Security, crImmigration.com, May 21, 2013
Expanding the Canon (reviewing Devon W. Carbado and Cheryl I. Harris, Undocumented Criminal Procedure, 58 UCLA L. REV. 1543 (2011)) JOTWELL.com, January 25, 2013
Does the Making or Subscribing to a False Tax Return Qualify as an Aggravated Felony for Immigration Purposes, AMERICAN BAR ASSOCIATION PREVIEW OF UNITED STATES SUPREME COURT CASES (October 2011)
Who Controls Immigration Policy? (commenting on Rick Su, Local Fragmentation as Immigration Regulation, 47 HOUS. L. REV. 367 (2010)) JOTWELL.com, April 7, 2011
It Is Time to Root out Sex-Based Stereotypes in Immigration law, LOS ANGELES DAILY JOURNAL, December 8, 2010
Tuition, Higher Education and Immigration Status, LOS ANGELES DAILY JOURNAL, October 25, 2010.
Lessons About Immigration Federalism, LOS ANGELES DAILY JOURNAL, September 23, 2010
America Chooses Best When It Chooses To Be Inclusive, LOS ANGELES DAILY JOURNAL, August 23, 2010
Effective Assistance of Counsel after Padilla v. Kentucky, LOS ANGELES DAILY JOURNAL, July 20, 2010
The Aggravation Continues, LOS ANGELES DAILY JOURNAL, June 18, 2010
Legal Ramifications of Arizona’s Immigration Law, LOS ANGELES DAILY JOURNAL, May 4, 2010
Perspectives: The Immigration Consequences of Criminal Convictions, LOS ANGELES DAILY JOURNAL, April 6, 2010
When Is a Habeas Corpus Petition Challenging a Resentencing a “Second or Successive” Petition?, AMERICAN BAR ASSOCIATION PREVIEW OF UNITED STATES SUPREME COURT CASES (March 2010)
Commentary on Nancy Morawetz, Rethinking Drug Inadmissibility, 50 WM & MARY L. REV. 163 (2008), JOTWELL.com, January 2010
Is There a Duress Exception to the “Persecutor Bar” to Asylum and Withholding of Removal?, AMERICAN BAR ASSOCIATION PREVIEW OF UNITED STATES SUPREME COURT CASES (November 2008)
5 Did a Washington Court’s Jury Instruction on Accomplice Liability Unconstitutionally Alleviate the Prosecution’s Burden? AMERICAN BAR ASSOCIATION PREVIEW OF UNITED STATES SUPREME COURT CASES (October 3, 2008)
Do Convictions of Felony State Drug Law Violations Equivalent to Federal Misdemeanors Constitute “Aggravated Felonies” for Purposes of Removal? AMERICAN BAR ASSOCIATION PREVIEW OF UNITED STATES SUPREME COURT CASES (October 3, 2006)
Who is Subject to the INA Provision for the Automatic Reinstatement of Removal Orders?, AMERICAN BAR ASSOCIATION PREVIEW OF UNITED STATES SUPREME COURT CASES (March 20, 2006)
Book Note, 21 Yale Journal of International Law 492 (1996) (reviewing ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS (1996))
Book Note, 21 Yale Journal of International Law 480 (1996) (reviewing MATTHEW CRAVEN, THE INTERNATIONAL COVENANT ON ECONOMIC AND CULTURAL RIGHTS: A PERSPECTIVE ON ITS DEVELOPMENT (1995))
Book Note, 21 Yale Journal of International Law 238 (1996) (reviewing IMPUNITY IN INTERNATIONAL HUMAN RIGHTS LAW AND PRACTICE (Naomi Roht-Arriaza ed., 1995))
WORKS IN PROGRESS
IMMIGRATION LAW with Kevin R. Johnson and Bill Ong Hing (Aspen Press Casebook, forthcoming)
Toward Justice: Thoughts on Michael A. Olivas’s “IIRIRA, the DREAM Act, and Undocumented College Student Residency,” in THE ACCIDENTAL HISTORIAN (NYU Press forthcoming 2015)
Prosecuting Human Trafficking (article in progress)
Students and the Deportation Machine (article in progress, co-authored with Amelia Álvarez)
Past as Prelude?: a Look Back at “Operation Wetback” (article in progress)
RESEARCH GRANTS
Co-Researcher, Presidential Authority Grant, Russell Sage Foundation for "Navigating Liminal Legalities Along Pathways to Citizenship: Immigrant Vulnerability and the Role of Mediating Institutions” (Summer 2014-Fall 2015)
UC Davis Small Grant in Aid of Research (July 2008-July 2010)
6 SELECTED MEDIA QUOTATIONS
Lorne Matalon, Texas County Refuses to Accept Federal Checkpoint Drug Cases, Fronteras Desk, run by various NPR affiliates, February 25, 2015
Jamie Hagan, Five Things You Didn’t Know about Human Trafficking, ROLLING STONE MAGAZINE, August 19, 2014
Immigration Detention, Univision 34, Los Angeles, California, September 24, 2012
Leigh Jones, Blockbuster Supreme Court Term Included Some Sleeper Cases, NATIONAL LAW JOURNAL, July 18, 2012
Joseph Serna, Panel Discusses Supreme Court, DAILY PILOT, July 18, 2012
Scott Martindale & Cindy Carcamo, Court: Illegal immigrant students can get in-state tuition, ORANGE COUNTY REGISTER, November 15, 2010.
Jennifer M. Chacón, U.S. Law Prevails, NEW YORK TIMES online edition, July 28, 2010, available at http://www.nytimes.com/roomfordebate/2010/07/28/whats-next-on-arizonas- immigration-law?hp (500 word commentary on S.B. 1070 litigation)
John Schwartz, High Court Long Shot Has Reputation for Compassion and Persuasion, NEW YORK TIMES, May 6, 2010 at A17
Truth-o-Meter: Arizona immigration law rewrite 'lays to rest' worries about racial profiling, Brewer says, ST. PETERSBURG TIMES, PolitiFact.com, May 4, 2010
Truth-o-Meter: Under the new Arizona immigration law, police can't stop someone to check their immigration status unless they think they see something illegal, ST. PETERSBURG TIMES, PolitiFact.com, April 28, 2010
Decriminalization is the Best Option, TUCSON CITIZEN, July 8, 2008
Immigration Enforcement in California Turns Focus to the Workplace, SACRAMENTO BEE, May 17, 2008
Appeals Court Upholds Search of Laptop at LAX, DAILY BREEZE, April 22, 2008
In sex trade, seller beware: Prostitute arrests far exceed those of customers in Sacramento County, new Bee database shows, SACRAMENTO BEE, April 6, 2008
Sidebar: If Your Laptop Could Testify, NEW YORK TIMES, January 7, 2008
Immigrant Workers Caught in a Net Cast for Gangs, NEW YORK TIMES, November 25, 2007
Immigration Crack Down Debated, CHRISTIAN SCIENCE MONITOR, November 3, 2006 7 Supreme Court Upholds Strict Illegal Immigrant Law, L.A. TIMES, June 23, 2006
Best of the Blogs, (citation to ImmigrationProf blog posting), PITTSBURGH TRIBUNE REVIEW, May 28, 2006
Rape Charges Thrown Out, But Cell Door Remains Shut, SACRAMENTO BEE, April 14, 2006
Fewer Are Sent to Death: Experts Differ on Reasons Why Capital Sentences Have Declined Since 2000, SACRAMENTO BEE, April 18, 2006
NSA’s Domestic Wiretapping Program KCRA Channel 3, Sacramento, CA, January 6, 2006
ImmigrationProf Blog co-editor, http://www.typepad.com/t/app/weblog/manage?blog_id=21253, Spring 2005- Fall 2007
8 SELECTED LECTURES, SYMPOSIA & OTHER INVITED PRESENTATIONS
Co-presenter (Prospective), “Liminal Legality,” Presentation of Russell Sage Foundation sponsored research to the Center on Law, Society and Culture, University of California, Irvine, Irvine, California, April 15, 2016
Panelist (Invited), Criminal Adjudication in the Age of Migration, University of Oxford, Oxford, England, UK, March 17-19, 2016
Faculty Workshop presentation (Invited), University of Iowa College of Law, Iowa City, Iowa, March 10, 2016
Panelist (Invited), “The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America,” Duke Law School, Durham, North Carolina, November 20, 2015
Diversity Lecturer (Invited), “The Naturalization of Racial Profiling,” Center for Social Justice and Public Service, Santa Clara Law, Santa Clara, California, October 15, 2015
Panelist (Invited), Transforming Migrations: Beyond the 1965 Immigration Act, University of California, Irvine, Irvine, California, October 9, 2015
Panelist (Invited), Immigration Law Plenary Panel, Hipanic National Bar Association Annual Meeting, Boston Massachusetts, September 4, 2015
Panelist, Careers in Immigration Law Teaching, Emerging Immigration Law Scholars Conference, University of Miami School of Law, Miami, Florida, June 12, 2015
Panelist, Confronting the Masses: Mass Incarceration and Mass Deportation, Law and Society Annual Meeting, Seattle, Washington, May 29, 2015
Faculty Workshop presentation, Northeastern Law School, Boston, Massachusetts, April 8, 2015
Panelist, Harvard Journal on Law & Gender Panel, Immigration Law and Gender Construction, April 6, 2015
Faculty Workshop presentation, Colorado University, Colorado University School of Law, Boulder, Colorado, April 3, 2015
Faculty Workshop presentation, Harvard Law School, Cambridge, Massachusetts, March 5, 2015
Faculty Workshop presentation, Boston University School of Law, Boston, Massachusetts, February 26, 2015
Panel Organizer and Participant, “Crimmigration” Matters, Alianza student event, Harvard Law School, February 18, 2015
9 Faculty Workshop presentation, Suffolk University Law School, Boston, Massachusetts, February 12, 2015
Keynote, Denver University Law Review Symposium on “Crimmigration: Current Issues at the Intersection of Criminal Law and Immigration Law,” Denver University School of Law, Denver, Colorado, February 6, 2015
Discussant, Panel on Detention, Expulsion and Security, Seminar on the Migration-Security Nexus in Switzerland and in Comparative Perspective, Neuchatel, Switzerland, November 14, 2014
Invited Lecture: “Immigration Enforcement,” All Souls Lecture Series, All Souls College, Oxford, UK, November 12, 2014
“Crimmigration in Context: Criminal Justice Policy and National Security,” Invited Keynote, The Borders of Crimmigration (Second CiNETS Conference), Leiden, Netherlands, October 9, 2014
“School to Deportation?”, Presenter, Southern California Criminal Justice Roundtable, July 29, 2014
Panelist, U.C. Irvine School of Law Supreme Court Review, July 10, 2014
Discussant, “Community Lawyers Between Market and State” Panel, Law and Society Annual Meeting, Minneapolis, Minnesota, May 31, 2014
“Understanding Societal Punishment of Immigrants,” Comments on Punishing Immigrants: Policy, Politics and Injustice (Charis Kubrin et al., eds., N.Y.U. Press 2013), Law and Society Annual Meeting, Minneapolis, MN, May 30, 2014
Organizer: Immigration Law Professors Workshop (gathering of 137 immigration law professors from across the country), University of California, Irvine, School of Law, May 22- 24, 2014
“Discrimination on the Basis of Criminal Record,” Post-Deportation Human Rights Conference, Dover, MA, May 2, 2014
“School to Deportation?” Invited Presentation, Family and Juvenile Law and Immigration Law Joint Program, American Association of Law Schools Annual Meeting, New York, NY, January 4, 2014
“Immigration and Governance: The Broader Significance of Recent Immigration Reform Proposals,” Invited Speaker, Immigration and Nationality Law Review, University of Cincinnati College of Law, Cincinnati, OH, November 22, 2013
“School to Deportation?” Invited Speaker, Faculty Workshop, Pepperdine University School of Law, Malibu, CA, November 11, 2013
10 “School to Deportation?” 2013 International Symposium on Illegality, Youth, and Belonging Conference, October 2013, Harvard University School of Education, Cambridge, MA, October 25, 2013
“Immigration and Governance: The Broader Significance of Recent Immigration Reform Proposals,” Immigration Reform Panel, West Coast Law and Society Retreat, Seattle, WA, September 21, 2013
Commentator: Blaming Drugs by Shima Baradaran, 5th Annual Southwest Criminal Law Conference, Davis, CA, September 6, 2013
“USICS’ Implementation of the Supreme Court Ruling on the Defense of Marriage Act,” Orange County Bar Association Immigration Law Section, Newport Beach, CA, August 6, 2013
“Pathway to Governing Through Immigration Security,” Panel Presentation on “Comprehensive Immigration Reform: Fountain of Hope or Pandora’s Box” Panel, Law and Society Association Annual Meeting, Boston, MA, June 2, 2013
“Beyond Crimmigration?”, Comments at Author Meets Reader panel discussion of SOCIAL CONTROL & JUSTICE: CRIMMIGRATION IN THE AGE OF FEAR (Maria Joao Guia, Maartje van der Woude & Joanne van der Leun, eds., Eleven International Publishing, 2013) at Law and Society Association Annual Meeting, Boston, MA, May 31, 2013
Regulating Immigration Lawyers and Representatives: Constitutional Issues, Invited Presentation, State Bar of California Meeting, Los Angeles, CA, May 22, 2013
“Criminal Adjudication,” Roundtable Workshop on RACE AND LAW (Guy Uriel Charles, Rick Banks & Kim Ford Mazrui, eds.), Stanford Law School, April 26-27, 2013
“The Context and Significance of Padilla v. Kentucky,” Padilla v. Kentucky Symposium, University of Tennessee School of Law, April 12, 2013
“Feminists at the Border,” Denver Law Review Symposium: On Having Fun & Raising Hell: Symposium Honoring the work of Professor Ann Scales, Denver University Sturm School of Law, March 30, 2013
“Border Militarization and Feminist Legal Theory,” Cesar Chavez Week Lunch Speaker Series, University of California, Davis, School of Law, March 28, 2013
“Overcriminalization and Anti-trafficking Policy,” Race, Domestic & Sexual Violence: From Prison Nation to Community Resistance Conference, University of California, Berkeley, School of Law, March 1, 2013
“Earning Citizenship,” Mid-Atlantic People of Color Legal Scholarship Conference, University of Pennsylvania School of Law, January 25, 2013
11 “Overcriminalizing Immigration,” BYU Law Review Symposium: Discretion and Deference: Immigrants, Citizens, and the Law, Provo, Utah, January 24, 2013
“Rethinking Antitrafficking Policy,” Panel on Labor Trafficking, Whittier Law School, November 2, 2012
Introduction, Human Rights First Symposium on Detention, University of California, Irvine, September 24, 2012
University of California, Berkley School of Law, Henderson Center for Social Justice Scholar-in-Residence, September 13-17, 2012. Presented “The Transformation of Immigration Federalism” to faculty (September 14, 2012) and students (September 17, 2012)
Panelists, Supreme Court Review, University of California, Irvine, School of Law, Irvine, California, July 17, 2012
“Immigration Issues,” Arizona Conference of Judges, Tucson, Arizona, June 21, 2012
“Past as Prelude: A Look Back at Operation Wetback,” Law and Society Association Annual Meeting, Honolulu, Hawaii, June 8, 2012
Panel Moderator, The Expanding Horizon of Refugee Protection — Asylum Law, Humanitarian Law and Human Rights Law, Hofstra Law School, Hempstead, New York, June 2, 2012
Panel Moderator, Sub-federal Criminal Justice Actors in Immigration Enforcement, Immigration Law Teachers Workshop, Hofstra Law School, Hempstead, New York, June 1, 2012
“Constructing Citizenship: What the Immigration Debate Reveals (and Conceals) About Citizenship,” Work-in-Progress Session, Immigration Law Professors Workshop, Hofstra Law School, Hempstead, New York, June 1, 2012.
“United States v. Arizona: A Primer,” Stanford Alumni of Orange County Breakfast Club Speaker Series, Mimi’s Cafe, Costa Mesa, California, May 2, 2012
“Constructing Citizenship: What the Immigration Debate Reveals (and Conceals) About Citizenship,” Citizenship-in-Question: Evidentiary Challenges for Jus Soli and Autochthony, from Authenticité to ‘Birtherism,’ Boston College, Newport Campus, April 20, 2012.
“Overcriminalizing Migration,” Faculty Workshop, Washington University School of Law, St. Louis, Missouri, April 9, 2012
“The Transformation of Immigration Federalism,” William and Mary Institute of the Bill of Rights Symposium, William and Mary Law School, March 30, 2012
Panel Moderator, Criminality and Identity, Reigniting Community APALSA Conference, University of California, Irvine, School of Law, Irvine, CA, March 16, 2012 12 “Criminalizing Migration,” Third Annual University of California Conference on International Migrationm, University of California, San Diego, February 10, 2012
“Overcriminalizing Migration,” Symposium on Overcriminalization, Northwestern University Law School, Chicago, Illinois, January 27, 2012
“Civil Rights, Immigrants’ Rights, Human Rights: Lessons from the Life and Work of Dr. Martin Luther King, Jr,” Martin Luther King, Jr., Luncheon of Executive Vice Chancellor and Provost Michael Gottfredson, University of California, Irvine, January 17, 2012
Panelist, Immigration Panel, Shaking the Foundations Conference, Stanford Law School, Stanford, California, October 29, 2011
Panelist, We the People: A Symposium on the U.S. Constitution and the Supreme Court, Arizona CLE Event, Peoria, Arizona, October 13, 2011
Panelist, “On Professionalism and Balance: Academic and Personal Success,” Ninth Annual LatCrit-SALT Junior Faculty Development Workshop (FDW), San Diego, California, October 6, 2011
“Designing Institutions,” Remarks for “Reshaping Institutions” Plenary Panel, American Association of Law Schools Workshop on Women Rethinking Equality, Washington, D.C., June 22, 2011
“The Criminalization of Migration,” Remarks for the “Immigration, Colonialism and Criminalization” Plenary Panel, Law and Society Association Annual Meeting, San Francisco, California, June 3, 2011
Moderator, Race, Class and Crime Panel, Searching for Equality: A Conference on Law, Race and Socio-Economic Class, University of California, Irvine, School of Law, March 18, 2011
Moderator, Sentencing Panel, Symposium – Federal Criminal Cases in the Post-Booker Era: Process vs. Outcomes, School of Criminology, Law & Society, University of California, Irvine, February 25, 2011
“The Transformation of Immigration Federalism”, Faculty Workshop, University of Houston Law Center, Houston, Texas, February 24, 2011
Moderator, Managing Immigrants Through Criminal Law, Persistent Puzzles in Immigration Law Symposium, Criminal University of California, Irvine, School of Law, February 17, 2011
“Criminal Law Federalism Meets Immigration,” Remarks for “The Good, the Bad and the Local: The Changing Face of Federalism in Criminal Justice” Panel, AALS Workshop on Criminal Justice: New Challenges and Persistent Controversies, AALS Annual Meeting, San Francisco, California, January 6, 2011
13 “What Immigration Enforcement Can Tell Us About Criminal Law Federalism,” Federalism at Work Conference, Loyola Law School, New Orleans, Louisiana, November 5, 2010.
Lunch Keynote Speaker, Beyond Arizona: Laws Targeting Migrants in the U.S. and Europe, University of California, Berkeley Law, Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity, October 25, 2010
“Border Exceptionalism in the Era of Interior Immigration Enforcement,” LatCrit Conference, Denver, Colorado, October 8, 2010.
Commentator, “Trends in Anti-Trafficking Legislation,” National People of Color Conference, Newark, New Jersey, September 11, 2010
Commentator, “The Cracked Mirror”, Southwestern Criminal Law Conference, Denver, Colorado, August 28, 2010.
“Rethinking Anti-Trafficking Law,” The Rights of Others: Immigrants as Workers, Colonial Subjects, and Trafficking Survivors Panel, Law and Society Annual Meeting, Chicago, Illinois, May 28, 2010
“Outside of Criminal Law,” Citizenship and Immigration--Immigration Policy and Reform: Rights and Wrongs Panel, Law and Society Annual Meeting, Chicago, Illinois, May 27, 2010
Panel Moderator, “Immigration Enforcement,” Immigration Law Teachers’ Workshop, DePaul University College of Law, Chicago, Illinois, May 24, 2010
“Immigration Enforcement and the Social Construction of Race,” Duke University School of Law Center on Law, Race and Politics Conference: From Slavery to Freedom to the White House: Race in 21st-Century America, A Conference in Honor of John Hope Franklin,” Raleigh-Durham, North Carolina, April 9, 2010
“A Diversion of Attention?: Immigration Courts and the Adjudication of Constitutional Rights,” Center for Comparative Immigration Studies Conference, University of California, San Diego, March 12, 2009
“Defining and Addressing the Problem of Human Trafficking,” Transportation Workers Union, Working Womens Subcommittee, Dallas, Texas, March 1, 2010
“Tensions and Tradeoffs: Protecting Trafficking Victims in the Era of Immigration Enforcement,” Loyola University School of Law, New Orleans, February 25, 2010
Panel Commentator, The “Crimmigration” Crisis, University of LaVerne College of Law, Ontario, CA, February 19, 2010
14 “A Diversion of Attention?: Immigration Courts and the Adjudication of Constitutional Rights,” Duke Law Journal Administrative Law Symposium, Duke Law School, Raleigh-Durham, NC, February 12, 2010
Keynote Speech: The Fourth Amendment and Modern Technology, Orange County Constitutional Rights Foundation High School Mock Trial Competition Awards Luncheon, Costa Mesa, CA, February 5, 2010
“Managing Migration Through Crime,” Chapman University School of Law, Law Review Symposium, Orange, CA, January 29, 2010
“Defining Immigrants’ Rights,” Orange County Human Rights Association “Immigrants’ Rights” event, University of California, Irvine, January 27, 2010
“Managing Migration Through Crime,” Southwestern Criminal Justice Workshop, Arizona University, Tucson, AZ, October 2, 2009
“Tensions and Tradeoffs: Protecting Trafficking Victims in the Era of Immigration Enforcement,” University of Pennsylvania Law Review Conference on Trafficking, November 13, 2009
Discussant: & Chair, “Citizenship and Belonging” Panel, Law and Society Conference, Denver, Colorado, May 30, 2009
Discussant: & Chair, “Regulating the Nation-State” Panel, Law and Society Conference, Denver, Colorado, May 28, 2009
“Criminal Procedural Norms and Immigration Enforcement,” Panel on “The Rights of Noncitizens,” University of California, Irvine, April 7, 2009
Discussant: & Chair, CRT 20 Conference, CRT and Immigration Roundtable, University of Iowa College of Law, April 4, 2009
“Criminal Procedural Norms and Immigration Enforcement,” AALS Annual Meeting, “Crimingration” Panel, San Diego, California, January 9, 2009
“Procedural Protections in the Age of Migration,” Panel on Noncitizens’ Access to Justice, Law and Society Conference, Montreal, Canada, May 30, 2008
Faculty Speaker, University of California, Davis, 2008 Graduation Ceremony
“Deportation and Family Unification,” Panel on Deportation/Post-Deportation, Immigration Law Professors’ Workshop, Miami, FL, May 2, 2008
Keynote Speaker, Hastings Journal of Race and Poverty Symposium, San Francisco, CA, April 17, 2008
15 “Immigration and National Security,” Panel on Immigration, Integration and Security, International Studies Association, San Francisco, CA, March 27, 2008
“Immigrants’ Rights and the Legacy of Martin Luther King, Jr.,” AALS Panel on Martin Luther King, Jr., sponsored by the Minority Group section, New York, New York, January 5, 2008
“Immigrants on a Silver Platter,” AALS Panel on “Crimmigration,” co-sponsored by the sections on Immigration and Local Government Law, New York, New York, January 3, 2008
“U.S. Anti-Trafficking Legislation,” Memorial Union II, UC Davis, November 2007
“The Use of Civil Deportations in Combating Urban Gangs,” Baldy Center for Law and Social Policy, University of Buffalo Law School, November 12, 2007
“Dred Scott, Family and Citizenship,” 2007 LatCrit Conference, Miami, Florida, October 2007
“The Criminal Procedural Consequences of Internal Border Patrolling,” Crimmigration Panel, Law and Society Conference, Berlin, Germany, July 2007
Faculty Speaker, King Hall Public Interest Graduation, University of California, Davis, April 21, 2007
Introduction, King Hall Prison Law Symposium, University of California, Davis, April 7, 2007
Panel Moderator, “Privacy, Policing Homosexuality and Enforcing Social Norms” Panel, U.C. Davis Law Review Symposium on Katz v. U.S., Davis, California, March 9, 2007. (Also served as symposium faculty sponsor)
“Loving Across Borders: Immigration Law and the Limits of Loving,” Panel on “Loving in Contradiction,” University of California, Berkeley, Boalt School of Law Symposium: “Loving by Law: Forty Years after Loving v. Virginia,” November 17, 2006
“Loving Across Borders: Immigration Law and the Limits of Loving,” University of Wisconsin School of Law Symposium on Loving v. Virginia, November 10, 2006
Panel Moderator, “Politics & Culture” Panel, Hemispheric Institute on the America’s Symposium on The Challenge of Women’s Movements in the Americas Today, University of California, Davis, November 3, 2006
“Whose Community Shield?: Removing Criminal Street Gang Members,” Panel on “Criminalization and Immigration Law,” University of Chicago Legal Forum on Immigration Law and Policy, Chicago, Illinois, October 27, 2006
“The Security Myth,” Conference on “Immigration, Liberty and Security from a Comparative Perspective,” Sciences Po, Paris, France, June 8, 2006 16 “The Security Myth,” Panel on “Race, Crime and Immigration,” California Western School of Law, San Diego, California, April 1, 2006
“Misery and Myopia: A Critique of the TVPA,” U.C. Berkeley Institute for the Study of Social Change (ISSC), Berkeley, California, March 20, 2006
Panel Moderator, Gag Rules and Value Imposition, U.C. Davis School of Law, JILP Symposium, Davis, California, March 3, 2006
“Homeland Security and Immigrants in Crisis,” Bay Area APALSA Conference 2006 Panel: “Times of Crisis: The Government’s Response to Immigrant Communities,” San Francisco, California, February 4, 2006
“Citizenship and the Challenges of Educational Access,” U.C. Davis School of Law, Panel on Affirmative Action, Immigration and Education, King Week, Davis, California, February 25, 2006
“The Big Dig,” Critical Relationships Panel, Tenth Annual LatCrit Conference, San Juan Puerto Rico, October 8, 2006.
“Constructing the Criminal Alien: The Synergistic Role of Immigration Law and Criminal Law in Defining the Threat Within,” University of Pittsburgh, Conference on Immigration and Security After 9/11, Pittsburgh, Pennsylvania, September 9, 2006
“How Civil Rights Laws (Should) Complement U.S. Criminal Procedure,” U.C. Davis School of Law, Panel Discussion on Civil Rights, U.S.A. Law Program, Davis, California, July 13, 2005 and July 13, 2006
Panel Moderator, “Defining the Voices of Critical Race Feminism,” Critical Race Feminism Symposium, University of California at Davis, California, April 1, 2005
“Legal Academia and the Corporate Law Firm: Comparing Norms of Gender Privilege,” Panel Discussion on “Gender Privilege,” Boalt Hall, University of California, Berkeley, March 30, 2005
“The Failures of the Trafficking Victims Protection Act,” in Panel Discussion on “Women and Diaspora,” University of California, Davis, School of Law, March 7, 2005
“The Rhetoric of Security and the Decline of Humanitarian Immigration Policies,” Panel Discussion on “Immigration After 9/11,” University of California, Davis, School of Law, February 23, 2005
“Victims and Criminals: The Predicament of Trafficking Victims in the United States,” Cultural Studies 206, Graduate Seminar of Nicole Fleetwood, University of California, Davis, November 9, 2004
17 “Constitutional Criminal Procedure,” Tufts University, Undergraduate Constitutional Law Class of Marilyn Glater, October 14, 2003
“Capital Punishment and the Constitution,” Tufts University, Undergraduate Constitutional Law Class of Marilyn Glater, October 16, 2003
“Issues in Capital Punishment and Mental Retardation,” Continuing Legal Education Seminar, Offices of Davis Polk & Wardwell, New York, New York, March 10, 2003
“Equal Protection and the Constitution,” Brooklyn College Political Science Class of Saru Jayaraman, Brooklyn, New York, Fall 2001
CONFERENCE ORGANIZATION
Academic Symposium Co-organizer, “Congressional Dysfunction and Executive Lawmaking in the Obama Presidency,” American Association of Law Schools Annual Meeting, Washington, D.C., January 5, 2015 (full day)
Chair, Conference Organizing Committee, Immigration Law Professors Workshop, May 2014
Co-organizer (with Katherine Darmer), Third Annual Southwestern Criminal Law Conference, University of California, Irvine, School of Law & Chapman School of Law, September 16-17, 2011
Conference Organizing Committee, Immigration Law Professors Workshop, Hempstead, New York, May 2012
Conference Organizing Committee, Immigration Law Professors Workshop, Chicago, Illinois, May 2010
Workshop Planning Committee, New Immigration Law Professors Conference, Hofstra School of Law, Hempstead, New York, July 2009
Conference Planning Committee, CRT 20: Honoring the Past, Charting the Future, University of Iowa College of Law, April 2-4, 2009
Faculty Development Workshop Coordinator, Thirteenth Annual Lat Crit Conference, October 2-4, 2008
Faculty Development Workshop Coordinator and Presenter, Twelfth Annual Lat Crit Conference, October 4-7, 2007
Organizing Committee and Panel Moderator, “Women’s Movements in Latin America,” Hemispheric Institute on the America’s Conference, U.C. Davis, November 3, 2006
Faculty Development Workshop Coordinator and Presenter, Tenth Annual Lat Crit Conference, San Juan, Puerto Rico, October 7, 2005 18 UNIVERSITY SERVICE
University of California, Irvine
University Service
Law School Representative, U.C. Irvine Committee on Promotion and Tenure, September 1, 2013-August 31, 2016
U.C. Irvine Provost Search Committee, 2012-2013
Law School Representative, U.C. Irvine Committee on Committees, September 1, 2010- August 31, 2013
U.C. Irvine Student Support Services (SSS) Faculty-Staff Advisory Board, March 2011- present
Law School Representative, U.C. Irvine Graduate Counsel, October 2009-December 31, 2010
Law School Service
Member, Appointments Committee, University of California, Irvine, School of Law, October 2010-January 2014.
Elected Member, Faculty Advisory Committee, University of California, Irvine, School of Law, July 2012-June 2013
Chair, Self-Study Committee, University of California, Irvine, School of Law, February 2012- July 2012
Chair, Curriculum Committee, University of California, Irvine, School of Law, July 2010- June 2011.
Chair, Admissions Committee, University of California, Irvine, School of Law, July 2009- June 2010.
University of California, Davis
System-wide Service
U.C. Davis Representative to the University of California system-wide Board of Admissions and Relations with Schools (BOARS), September 2005 – September 2007
BOARS Testing Subcommittee Chair, September 2006 – September 2007
University Service 19 U.C. Davis Recruitment Advisory Committee for Dean, School of Law, September 2007- March 2008
U.C. Davis Admissions & Enrollment Committee, March 2005 – September 2008
Law School Service
U.C. Davis School of Law LRAP Committee, August 2005 – July 2007
Student Advisor, La Raza La Students’ Association, August 2004 – June 2009
Faculty Advisor, U.C. Davis Law Review Symposium, U.C. Davis School of Law, March 2007
Faculty Participant, King Hall Outreach Program, designed to assist economically disadvantaged college students in preparing for law school and the law school admissions process (August 2004 – August 2008)
ADDITIONAL PROFESSIONAL SERVICE
Association of the Bar of the City of New York, Immigration and Nationality Law Committee, 2013-present
Advisor to the Executive Committee’s Section on Immigration Law, American Association of Law Schools, 2011-2014.1
Nominations Committee, Law and Society Association, 2010-2011
Outside Advisor, Immigration Transition Team of President-Elect Barack Obama, November 2008-January 2009
Convenor, Immigration Policy Advisory Committee, Barack Obama’s Presidential Campaign, March 2007-November 2008
Participant in American Bar Association Division for Public Education’s project on immigration and the law, Spring 2007
Peer reviews for Criminal Law & Philosophy; Criminology & Public Policy; Harvard Law Review; Human Rights Review; The Journal of International Migration and Immigration; The Journal of Ethnic & Migration Studies; The Journal of Criminal Justice; Law & Social Inquiry; New Criminal Law Review;
1 Despite being chosen by the members to serve on the section’s Executive Committee, my formal participation was not permitted because the University of California, Irvine, School of Law was not yet a AALS member school. However, I assisted in planning all AALS section programs during this time, and chaired the organizing committee of the 2014 Immigration Law Professors’ Workshop – a task that generally falls to the Section Chair.
20 Social Problems, Society and Punishment; Theoretical Criminology; Western Criminology Review; Yale Law Review; Aspen Publishers; Marshall Cavendish Benchmark; NYU Press, Wolters Kluwer Law and Business; and the National Science Foundation.
Association of the Bar of the City of New York, State Government Committee, Co-author of draft report, 2003-2004
AFFILIATIONS
Affiliated Faculty, U.C. Center for New Racial Studies, August 2010-present
Research Associate, U.C. Center for Comparative Immigration Studies, Spring 2010- present
Affiliated faculty, U.C. Irvine Center in Law, Society and Culture, 2010-present
Advisory Panel, Border Criminologies Group, Centre for Criminology, Oxford, UK, 2013-present
BAR ADMISSIONS
New York State (2000) Southern District of New York (2001) Eastern District of New York (2001)
PROFESSIONAL MEMBERSHIPS
American Bar Association Association of the Bar of the City of New York Society of American Law Teachers Law and Society Association Member
OTHER EMPLOYMENT
Legislative Assistant to the Honorable Ronald D. Coleman, United States House of Representatives, Washington, D.C., 1994-1995
Staff Member, Stanford Sierra Camp, Fallen Leaf Lake, California, Summer 1994
Lyndon B. Johnson Fellow, Office of the Honorable Ronald D. Coleman, United States House of Representatives, Washington, D.C., Summer 1992, Summer 1993
21 Brief Biography
Rachel Velasquez is currently a 2L at Vanderbilt Law School. During her first year she conducted research for an administrative law treatise and participated in the summer associate program at Cozen O’Connor in Philadelphia, Pennsylvania. The
Minority Corporate Counsel Association also selected her as a Lloyd M. Johnson scholarship recipient of 2014-2015.
Prior to law school, Rachel was Legislative Aide to United States Senator
Michael Bennet. Her policy portfolio included Judicial Affairs, Technology, and
Transportation. In 2013, she joined the policy team that drafted the Border Security,
Economic Opportunity, and Immigration Modernization Act (S. 744). During her time in the Senate, Rachel was also a Congressional Fellow at the Woodrow Wilson Policy
Center and a Security Scholar at the Truman National Security Project.
Rachel Velasquez [email protected] (720) 229-4947
EDUCATION Vanderbilt University Law School, Nashville, TN Candidate for J.D., May 2017 Honors & Activities: The Minority Corporate Counsel Association’s Scholarship Recipient; Vanderbilt Dean’s Scholarship Recipient; American Constitution Society (Vice President); Hispanic National Bar Association (Member); Branstetter Litigation and Dispute Resolution Program (Member).
American University, Washington, D.C. B.A. International Relations, cum laude, May 2012 Honors & Activities: Dean’s List; Alpha Chi Omega (Vice President); Phi Alpha Delta (Member).
EXPERIENCE Cozen O’Connor, Philadelphia, PA Summer Associate May 2015-July 2015 Writing memoranda and drafting court motions. Participating in Cozen O’Connor’s trial skills preparatory course.
Professor Edward Rubin, Nashville, TN Research Assistant, Spring Semester 2015 Conducted research regarding the notice-and-comment rulemaking process in federal agencies for Professor Rubin’s treatise.
U.S. Senator Michael Bennet, Washington, D.C. Legislative Aide, May 2012-May 2014 and Staff Assistant, January 2012-May 2012 Crafted bills, amendments, and meeting memoranda for the policy areas of Judicial Affairs, Latino Affairs, Technology, and Transportation; drafted speeches, media talking points, and letters to Congressional offices and the Administration; member of policy team that produced the Senate passed Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744).
Truman National Security Project Fellow: Spring 2014 - Deanne and Paul Shatz Congressional Security Scholars Program.
Woodrow Wilson Policy Center Fellow: Fall 2013 - Foreign Policy Congressional Fellowship Program.
Crisanta Duran, State Representative, Colorado HD5 Political Director: June 2010-November 2010 Created direct mail campaigns, fundraisers, and volunteer efforts that reached over 100,000 constituents; composed political messages that resulted in the candidate’s 56% landslide victory.
INTERESTS: Competing in triathlons and traveling. Penni Pearson Bradshaw
Contact Information: Constangy, Brooks, Smith & Prophete, LLP 100 North Cherry Street, Suite 300 Winston-Salem, NC 27101 336.721-1001 Fax: 336.748-9112 [email protected]
Penni P. Bradshaw concentrates her law practice in the areas of Immigration Law and Employment Law. A 1977 magna cum laude graduate of Randolph Macon Woman’s College (Phi Beta Kappa), Bradshaw was awarded her J.D. Degree with Honors from the University of North Carolina at Chapel Hill, where she was a Morehead Fellow, Research Editor of the Law Review, and a member of the honorary Order of the Coif. Ms. Bradshaw has practiced law since 1980 and is a Partner and the Immigration Practice Group Chair at Constangy, Brooks, Smith & Prophete.
A Board-Certified Specialist in Immigration Law, Ms. Bradshaw was named in the 2004 Business North Carolina “Legal Elite” as the top employment attorney in North Carolina. She currently chairs the Immigration Specialization Committee of the North Carolina State Bar. She has been nationally recognized by inclusion in “The Best Lawyers in America” for both Immigration Law and Employment Law. She has been named as a leading Immigration and Employment attorney in “Chambers USA America’s Leading Business Lawyers”, and has also been included in “Super Lawyers”. Ms. Bradshaw has also been listed in Who’s Who in America, Who’s Who in American Law, and The International Who’s Who of Professional & Business Women. An active member of the American Immigration Lawyers Association, Ms. Bradshaw has been a speaker on immigration law and employment law before such organizations as the American Bar Association, the American Immigration Lawyers’ Association, the North Carolina Bar Association, the South Carolina Bar Association, the Society for Human Resource Management, the American Home Furnishings Association, the Georgia Employers’ Association, and the North Carolina Association of Certified Public Accountants.
In addition to her demonstrated commitment to serving her clients’ legal needs, Ms. Bradshaw has shown an equal commitment to serving the needs of those in her community. She was a founding member of the Boards of Directors for both the Second Harvest Food Bank of Northwest North Carolina and Habitat for Humanity of Forsyth County. She has served as Chair of the Boards of Directors for the Salvation Army Girls Club, The Northwest North Carolina Chapter of the American Red Cross, Goodwill Industries of Northwest North Carolina, CareNet of the Triad and the Forsyth Technical Community College Foundation. She has also served on the Boards of the local United Way and Chamber of Commerce. Most recently, she has served on the Boards of The Ronald McDonald House of Winston-Salem and the Winston- Salem Symphony. In 2007, she was honored by the local United Way as its Adult Community Volunteer of the Year for her volunteer work at Brenner Children’s Hospital. Flor Bermudez 220 East 87th St. Apt. 5-E, New York, NY 10128 (646) 460-9784 [email protected]
EDUCATION Rutgers School of Law-Newark, Newark, NJ - J.D., May 2000 Honors: Rutgers Law Review, Articles Editor, C. Clyde Ferguson Scholarship, Arthur Kinoy Fellowship, Mexican American Legal Defense Fund Scholarship Activities: Association of Latin American Law Students, Public Interest Law Foundation, LGBT Caucus Rutgers University, New Brunswick, NJ - B.A. Chemistry, Labor Studies, May 1997
Bar Admissions: New York 2001. Court Admissions: U.S. Court of Appeals, Second Circuit, 2009, U.S. District Court of New York Eastern District, 2009, U.S. District Court of New York Southern District, 2009. Bar Memberships: National Hispanic Bar Association and American Bar Association. Honors: Best Attorney Under Forty Award 2012 – National Hispanic Bar Association; Best 40 Under Forty Award, National LGBT Bar Association 2012; Daynard Public Interest Fellow, Northeastern Law School, 2011; Union Square Award, 2005 Volunteer Activities: Queer Detainee Empowerment Project (QDEP) Host Family - December 2014 – Present. Non-Profit Board of Director Memberships: Treasurer of the Board of Directors - January 2014- Present. Streetwise & Safe, a multi-strategy initiative working to build and share leadership, skills, knowledge and community among LGBTQQ youth of color who experience criminalization, particularly in the context of the policing of poverty, “quality of life” offenses, and involvement or perceived involvement in survival economies.
WORK EXPERIENCE Transgender Law Center, Oakland, CA - May. 2015 – Present Detention Project Director • Train litigate precedent-setting cases in trial courts and on appeal, including developing litigation strategy, managing relationships with co-counsel, performing legal research, and drafting briefs. • In coalition with other organizations, engage in advocacy with prisons, jails, and other detention facilities and law enforcement agencies to improve policies and conditions for TGNC people. • Analyze and draft potential legislation, regulations, and policies; draft persuasive materials aimed at decision makers; and provide technical assistance to other advocates on bill language and strategy. • Engage in education efforts for community members and attorneys, including speaking at conferences, trainings, and webinars. • Engage in education efforts for law enforcement and detention facilities about TGNC people, their needs, and their legal rights. Lawyers for Children, New York, NY - Oct. 2012 – Present Mental Health and Advocacy Project Director & Staff Attorney • Handle all aspects of family court litigation on behalf of children and adolescents in foster care affected by mental health issues. Manage discovery, motion practice, trials, dispositional hearings primarily in voluntaries, abuse and neglect cases, termination of parental rights, paternity, visitation and custody proceedings. • Engage in advocacy work to ensure that children in foster care receive timely, comprehensive mental health evaluations by trained professionals; quality, individualized mental health services in the least restrictive placements possible; appropriate school-based services; and psychotropic drugs only if needed after consideration of their neurological effects. • Train attorney and social workers on mental health related issues including landscape of available resources placement options in NYC; psychotropic medications; legal strategies to challenge psychiatric medication reviews; and NYC Children Services Principles to Inform Child Welfare Decision-making Regarding Mental Health Issues.
Sylvia Rivera Law Project, New York, NY - Sept. 2011 – October 2012 Volunteer Spanish Intake • Performed intakes in Spanish in the drop-in clinic for low income transgender people and transgender people of color regarding name changes, assistance updating immigration documents, adjustment of status, removal defense, asylum, among others issues. Lambda Legal Defense and Education Fund, New York, NY - Sept. 2007 – Present Youth in Out-of-Home Care Staff Attorney • Handle all aspects of civil rights litigation including legal research and writing, devising litigation strategies, conducting each stage of litigation in trial and appellate state and federal courts, on behalf of lesbian, gay, bisexual and transgender (LGBT) youth in foster care, juvenile detention and in homeless systems of care. Supervise affiliated attorneys and legal student interns’ legal work. • Conceptualize, develop and advocate for the implementation of legislation and LGBT inclusive child welfare/juvenile justice policy recommendations at national, state and local levels. • Conduct LGBT competency trainings, including train-the-trainer sessions, for all professionals involved in family/juvenile court and out-of-home care services. • Developed LGBT policies for the Youth Study Center, a juvenile detention center in Philadelphia. • Collaborated with other LGBT advocates in New York City in negotiating issues related to LGBT prisoners at Rikers Island, NYC Department of Correction’s largest pre-trial jail.
Open Society Institute Community Fellowship, Esperanza del Barrio, New York, NY - Sept. 2003 - Aug. 2007 Executive Director • Worked with founding Board of Directors to establish the organization’s mission, bylaws, policies and operating rules. Prepared and filed all incorporating and tax-exempt paperwork. Engaged board members and stakeholders in strategic planning at start-up and after the third year of existence. • Developed and implemented fundraising plan, including building an individual donor base, securing foundation and government funds and establishing a policy for membership dues and benefits. • Raised and managed a yearly budget including multiple government contracts. Conducted monthly fiscal analysis and generated financial reports (cash/flow and projected/revenue). • Oversaw the day-to-day operations of the organization. Established and managed 8 programs and hired, trained and supervised 13 staff.
Open Society Institute Community Fellowship, Esperanza del Barrio, New York, NY - Sept. 2003 - Aug. 2007 Legal Director • Directed legal clinic that provided legal representation, advice and referrals for indigent clients in the areas of family law, landlord/tenant, tax disputes, consumer issues, domestic violence, immigration law, schools and estate planning. • Supervised attorneys representing clients in misdemeanor and felony cases in New York Criminal Courts as well as in administrative proceedings in front of the NYC Environmental Control Board. Handled all phases of litigation from arraignment to trial and/or sentencing. Filed administrative appeals. • Provided expert level legal advice on strategic, regulatory, statutory and procedural matters related to establishing and maintaining a street vending enterprise in New York City. • Represented clients in police misconduct civil complaints. Engaged in advocacy and direct negotiation with the NYC Police Department on behalf of clients regarding enforcement issues. • Engaged in legislative advocacy at state and municipal levels, including developing strategies for enacting, implementing, or defeating legislation.
Criminal Defense Attorney, Part Time Solo Practice, New York, NY - Sept. 2001 – Aug. 2007 • Represented defendants charged with misdemeanor and felony offenses in New York Criminal Courts including arraignments, bail applications, hearings on motions, plea bargaining, trial and sentencing. Filed Article 78 proceedings. • Assisted prisoners/detainees and their families in documenting and reporting incidents of harassment, physical/mental abuse, and neglect by correction officers and other NYS/NYC Department of Corrections staff.
Skadden Arps Public Interest Fellowship, Urban Justice Center, New York, NY - Sept. 2001 - Aug. 2003 Staff Attorney • Provided legal assistance to members of Mothers on the Move, a community organization in the South Bronx. • Organized and represented tenant associations in affirmative litigation to improve conditions of dilapidated apartment buildings, group rent strikes and other matters related to housing. • Provided representation to individual tenants in landlord-tenant cases in Housing Court and administrative hearings. Handled all aspects of housing court litigation including pre-trial negotiations and motion practice. • Negotiated and drafted temporary building-wide relocation agreements. • Conducted legal education workshops in Spanish and English in the areas of tenant rights, civil rights, public benefits and immigration.
Judicial Clerk, New Jersey Supreme Court, Justice Gary Stein, Hackensack, NJ - Sept. 2000 - Aug. 2001 • Performed extensive legal research, wrote legal memoranda and drafted opinions for the Supreme Court of New Jersey.
Judicial Clerk, SDNY, Magistrate Judge Ronald L. Ellis - Jan. 2000 - May 2000 • Assisted law clerks with legal research, legal memoranda and drafted opinions for federal habeas corpus claims.
Law Student Intern, Rutgers Constitutional Litigation Clinic, Newark, NJ - Sept. 1998 - May 2000 • Conducted factual investigations, interviewed witnesses, assessed incoming inquiries and researched relevant constitutional legal issues in a case against INS for violations of international human rights of asylum seekers detained at the Elizabeth INS detention center. Prepared and defended clients during depositions.
Summer Associate, Local 1199, Levy, Ratner and Behroozi, P.C., New York, NY - Summer 1999 • Assisted attorneys handling all aspects of matters related to NLRB charges, arbitrations and charges field at the New York Division of Human Rights. Performed extensive legal research and wrote briefs on various aspects of labor litigation.
Law Student Intern, National Labor Relations Board, Newark, NJ - Fall 1999 • Assisted attorney with legal research, factual investigations, settlement meetings and client interviews.
Law Student Intern, AFSC – Immigrant Rights Project, Newark, NJ - Summer 1998 • Assisted attorney in preparing applications and supporting documentation, including asylum applications, VAWA, family-based, naturalizations, etc. Interviewed clients and filing paperwork for immigrants in deportation proceedings, asylum based on sexual orientation and family petition cases. Researched case law and country conditions as supporting evidence for asylum cases.
SKILLS Fluent in Spanish, both verbal and written. Proficient with Westlaw, Lexis/Nexis, windows-based word-processing, spreadsheets, databases and Internet programs. Course Materials (articles, publications, other materials) Nonimmigrant Admissions to the United States: 2013
KATIE FOREMAN AND RANDALL MONGER
Nonimmigrants are foreign nationals granted temporary admission to the United States. The major purposes for which nonimmigrant admission may be authorized include temporary visits for business or pleasure, academic or vocational study, temporary employment, or to act as a representative of a foreign government or international organization. The Department of Homeland Security (DHS) collects information on the characteristics of certain nonimmigrant admissions from I-94 arrival records. This Office of Immigration Statistics Annual Flow Report presents information gathered from I-94s on the number and characteristics of nonimmigrant admissions to the United States in 2013.1
Box 1. Change to 2013 I-94 admissions data Beginning in April 2013, the U.S. Department of Homeland Security, Customs and Border Protection (CBP) automated the I-94 process for nonimmigrants admitted at air and sea ports. This transition from paper Form I-94s to electronic I-94 re- cords at air and sea ports resulted in a dramatic increase in the reported number of business and tourist travelers from Cana- da. Before April 2013, Canadian business and tourist visitors were generally not required to fill out the paper Form I-94 and were therefore typically not included in I-94 admissions data. Since the conversion to the electronic I-94, CBP automatically generates I-94 records for Canadian nonimmigrant visitors admitted at air and sea ports and includes these records in the I-94 nonimmigrant admission data. Admission counts for nonimmigrants who entered at land ports or who were from countries other than Canada were not affected by the transition to the electronic I-94 at air and sea ports.
During 2013, there were 173 million nonimmigrant admissions to the United States according to DHS work- load estimates.2 These admissions included tourists and business travelers from Canada, Mexican nationals with Border Crossing Cards, and nonimmigrants who were issued Form I-94 (I-94 admissions).3 I-94 admissions accounted for 35 percent (61.1 million) of total non- immigrant admissions (see Figure 1). Ninety percent of I-94 admissions were temporary visitors for business and pleasure, while 4.9 percent were temporary work- ers and families and 2.9 percent were students. The leading countries of citizenship for I-94 admissions were Mexico, the United Kingdom, and Canada.
DEFINING “NONIMMIGRANT” Nonimmigrants are aliens whose classes of admission are specified in section 101(a)(15) of the Immigration
1 In this report, years refer to fscal years (October 1 to September 30). 2 U.S. Department of Homeland Security, Customs and Border Protection (CBP), Operations Management Reporting, Fiscal Year 2013. 3 For this report, I-94 admissions refer to admissions documented with paper Form I-94/I-94Ws or electronic I-94/I-94Ws.
Office of Immigration Statistics POLICY DIRECTORATE
Prof. Chacon and Nationality Act (INA).4 Examples of nonimmigrant classes of requirement as well, but beginning in April 2013, admissions of admission include foreign government officials; temporary these visitors were recorded with an electronic I-94. visitors for business and pleasure; aliens in transit; treaty traders The Border Crossing Card (BCC) or “laser visa” issued to Mexican and investors; academic and vocational students; temporary nationals is a machine-readable card that is valid for 10 years and workers; exchange visitors; athletes and entertainers; victims of contains a biometric indicator, such as a fingerprint. Applicants for certain crimes; and certain family members of U.S. citizens AND a BCC must meet the same qualifications as applicants for a B1/B2 lawful permanent residents. Maximum duration of stay is visa (temporary visitor for business or pleasure), have a valid determined by class of admission. 5NLIKE A PERSON GRANTED LAWFUL Mexican passport, and demonstrate that they will return to Mexico PERMANENT RESIDENT STATUS WHO IS AUTHORIZED TO LIVE WORK AND upon completion of their stay. STUDY IN THE 53 PERMANENTLY A NONIMMIGRANT IS AUTHORIZED A TEMPORARY STATUS FOR A SPECIFIC PURPOSE The nonimmigrant’s I-94 Admissions activities, such as employment, travel, and accompaniment by Visa Required. If a visa is necessary for entry, the foreign national typi- dependents, are prescribed by his or her class of admission. cally must apply at a U.S. embassy or consulate. The Online In this report, nonimmigrant admissions refer to the number of Nonimmigrant Visa Application, Form DS-160, or the Nonimmigrant events (i.e., admissions to the United States) rather than to the num- Visa Application, Form DS-156, must be submitted for all applicants. ber of individual nonimmigrants admitted. Admission numbers In addition, an interview generally is required for applicants aged 14 presented in this report will differ from the number of Department to 79 years. Possession of a valid visa does not guarantee admission. A of State nonimmigrant visa issuances, which include all nonimmi- CBP officer determines if the nonimmigrant may enter the United grant visas that were issued regardless of whether, or how many States and the authorized duration of stay. Prior to April 2013, for- times, the foreign national was admitted to the United States. eign nationals with nonimmigrant visas were required to complete the paper Form I-94. Beginning in April 2013, those with nonimmi- THE NONIMMIGRANT ADMISSIONS PROCESS grant visas admitted at air and sea ports had an electronic I-94 gener- ated to record their admissions while individuals admitted at land Eligibility ports were still required to complete the paper I-94. In order to qualify for admission in a nonimmigrant status, a for- eign national generally must meet all of the following criteria: Visa Waiver Program. The Visa Waiver Program (VWP) allows nationals establish that the visit will be temporary, agree to depart at the of designated countries to travel to the United States as tourists or end of the authorized stay, possess a valid passport maintain a business travelers without a visa for a period not to exceed 90 foreign residence (in most cases), be admissible to the U.S. or days. It was initially established as a pilot program in 1986 with have been granted a waiver for any grounds of inadmissibility, the intent to eliminate barriers to travel, to facilitate tourism, and and abide by the terms and conditions of admission. to promote better relations with U.S. allies. Qualified nationals of VWP countries must be admissible to the United States and not Documentary Requirements have violated the terms of any previous admission under the VWP; possess a valid unexpired machine-readable passport; travel on an Prior to April 2013, applicants for nonimmigrant admission were approved carrier and possess a round trip ticket if arriving by air required to complete a paper Form I-94/I-94W or Electronic or sea; obtain travel authorization from ESTA; and waive their System for Travel Authorization (ESTA)6 registration to be admitted right to contest an immigration officer’s determination of admis- to the United States. Starting in April 2013, instead of requiring a sibility and the right to contest removal, other than on the basis of nonimmigrant to complete the paper Form I-94/I-94W, CBP an application for asylum. At air and sea ports, an electronic I-94W began generating electronic I-94s to record nonimmigrant arrivals record is created upon admission for ESTA-registered VWP at air and sea ports. Nonimmigrants are still required to complete entrants. At land ports, the paper Form I-94W is required. the paper Form I-94/I-94W at land ports of entry. Mexican Nationals of VWP countries must obtain a visa if they are traveling nationals with Border Crossing Cards (traveling within the border to the U.S. for a purpose other than tourism or business or if their zone for a limited duration) and Canadian tourist and business stay will exceed 90 days. travelers admitted at land ports of entry are generally exempt from the I-94 requirement.7 Prior to April 2013, Canadian tourist and At the beginning of fiscal year 2013, 36 countries participated in business travelers at air and sea ports were exempt from the I-94 the Visa Waiver Program: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France,
4 There are a few nonimmigrant classes under statutory authority other than section 101(a)(15), Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, in particular, NAFTA nonimmigrants and nationals of the Freely Associated States admitted under Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the the Compacts of Free Association between the United States and the Republic of the Marshall Islands, the Federated States of Micronesia and Palau. Netherlands, New Zealand, Norway, Portugal, San Marino, 5 Commonly referred to as a lawful permanent resident (LPR) or “green card” recipient. Singapore, South Korea, Slovakia, Slovenia, Spain, Sweden, 6 ESTA is an internet-based system that determines the preliminary eligibility of visitors to be admit- Switzerland, and the United Kingdom. Effective November 1, 2012, ted under the Visa Waiver Program prior to their embarking on trips to the United States. ESTA Taiwan was admitted to the Visa Waiver Program. Chile was admit- registration must be renewed every two years or when a visitor’s passport expires, whichever occurs earlier. An electronic I-94W record is created upon admission at air and sea ports for ESTA- ted to the Visa Waiver Program effective March 31, 2014 (after the registered VWP entrants. time period covered by this report.) 7 North Atlantic Treaty Organization (NATO) offcials (seeking N1-N5 nonimmigrant classifcation) were also not required to submit an I-94 but may do so to document their admissions.
2 The Guam-Commonwealth of the Northern Marianas Islands Visa DATA Waiver Program (GCVWP) permits nationals of designated countries The data in this report were obtained from TECS, a computer system and geographic areas to be admitted to Guam or the Commonwealth used by CBP, which compiles and maintains information collected of the Northern Marianas Islands (CNMI) without a visa. Admissions from nonimmigrants on the paper Form I-94/I-94W and electronic under the GCVWP may not exceed 45 days in Guam and/or CNMI. I-94/I-94W. Information collected from these I-94 records includes In 2013, Australia, Brunei, Hong Kong, Japan, Malaysia, Nauru, New arrival and departure dates, port of entry, class of admission, coun- Zealand, Papua New Guinea, South Korea, Singapore, Taiwan, and the try of citizenship, state of destination, age, and sex. Caution should 8 United Kingdom were included in the GCVWP. be exercised when interpreting trends in I-94 admissions, as year- Canadian Tourist and Business Admissions at Air and Sea Ports. Canadian short- to-year fluctuations may reflect changes in data collection in addi- term business and tourist visitors to the United States are required to tion to variation in travel patterns. For example, land admissions possess a valid passport or other Western Hemisphere Travel Initiative increased markedly in 2010 and 2011 because of changes in the (WHTI) approved form of identification.9 These visitors are generally way admissions were counted.10 As another example, Canadian not required to obtain a visa or register with ESTA. Prior to April admissions increased substantially from 2012 to 2013 because in 2013, these Canadian business and tourist travelers were also not typi- April 2013, at air and sea ports, CBP began recording Canadian cally required to complete a paper Form I-94. However, after CBP tourist and business travelers as B1 or B2 admissions with elec- automated the I-94 process at air and sea ports in April 2013, CBP tronic I-94s. These Canadian admissions were not included in the began generating electronic I-94s for short term Canadian tourists I-94 data before April 2013 because Canadian tourist and business and business travelers admitted at air and sea ports. Prior to April travelers were not typically required to fill out a paper Form I-94. 2013, these visitors were not included in the I-94 admissions data. Since April 2013, Canadian tourist and business travelers admitted at CHARACTERISTICS OF I-94 NONIMMIGRANT air and sea ports have been recorded in the I-94 data as B1 or B2 ADMISSIONS admissions. Canadian business and tourist travelers admitted at land Class of Admission ports of entry are still not typically required to complete a paper Form I-94 and are therefore generally not included in I-94 data. There were 61,052,260 I-94 nonimmigrant admissions in 2013 (see Table 1). The largest category of admission in 2013 was tem- 8 On November 28, 2009, the GCVWP replaced the Guam Visa Waiver Program (GVWP) which porary visitors for pleasure which represented 79 percent of I-94 permitted nationals of participating countries to be admitted to Guam without a visa. Australia, Brunei, Indonesia, Japan, Malaysia, Nauru, New Zealand, Papua New Guinea, South Korea, Sin- admissions. This category includes the B2 (temporary visitors for gapore, Samoa, Solomon Islands, Taiwan, the United Kingdom, and Vanuatu were included in the GVWP when it ended. 10 2011 was the frst full year in which nearly all I-94/I94W land admissions were recorded. See 9 WHTI approved travel documents include an Enhanced Driver’s License, Enhanced Identifcation Monger and Mathews (2011) for a more detailed discussion of how counting changes affected Card, or Trusted Traveler Program card. admissions.
Table 1. Nonimmigrant Admissions (I-94 only) by Class of Admission: Fiscal Years 2011 to 2013 2013 2012 2011 Class of admission Number Percent Number Percent Number Percent Total ...... 61,052,260 100.0 53,887,286 100.0 53,082,286 100.0 Temporary workers and families ...... 2,996,743 4.9 3,049,419 5.7 3,385,775 6.4 Temporary workers and trainees ...... 1,853,915 3.0 1,900,582 3.5 2,092,028 3.9 CNMI-only transitional worker (CW1) ...... 1,642 — D— —— Workers in specialty occupations (H1B) ...... 474,355 0.8 473,015 0.9 494,565 0.9 Chile and Singapore Free Trade Agreement (H1B1) ...... 8 — D— 30 — Registered nurses participating in the Nursing Relief for Disadvantaged Areas Act (H1C) ...... 7 — 29 — 124 — Agricultural workers (H2A) ...... 204,577 0.3 183,860 0.3 188,411 0.4 Nonagricultural workers and returning H2B workers (H2B, H2R) ...... 104,993 0.2 82,921 0.2 79,862 0.2 Trainees (H3) ...... 4,117 — 4,081 — 3,279 — Workers with extraordinary ability or achievement and their assistants (O1, O2) . . 87,366 0.1 70,611 0.1 67,724 0.1 Internationally recognized athletes or entertainers (P1) ...... 85,583 0.1 84,209 0.2 84,545 0.2 Artists or entertainers in reciprocal exchange or culturally unique programs (P2, P3) ...... 21,818 — 22,116 — 22,660 — Workers in international cultural exchange programs (Q1)...... 2,685 — 2,494 — 2,331 — Workers in religious occupations (R1) ...... 14,191 — 15,906 — 19,683 — North American Free Trade Agreement (NAFTA) professional workers (TN) ...... 612,535 1.0 733,692 1.4 899,455 1.7 Spouses and children of temporary workers and trainees (CW2, H4, O3,P4, R2, TD) ...... 240,038 0.4 227,637 0.4 229,359 0.4 Intracompany transferees ...... 723,641 1.2 717,893 1.3 788,187 1.5 Intracompany transferees (L1) ...... 503,206 0.8 498,899 0.9 562,776 1.1 Spouses and children of intracompany transferees (L2) ...... 220,435 0.4 218,994 0.4 225,411 0.4 Treaty traders and investors and spouses and children (E1 to E3) ...... 373,360 0.6 386,472 0.7 454,101 0.9 Representatives of foreign media and their spouses and children (I1) ...... 45,827 0.1 44,472 0.1 51,459 0.1
See footnotes at end of table.
3
Proff. Chacon Table 1. Nonimmigrant Admissions (I-94 only) by Class of Admission: Fiscal Years 2011 to 2013 — Continued 2013 2012 2011 Class of admission Number Percent Number Percent Number Percent Students ...... 1,669,225 2.7 1,653,576 3.1 1,788,962 3.4 Academic students (F1) ...... 1,577,509 2.6 1,566,815 2.9 1,702,730 3.2 Vocational students (M1) ...... 19,106 — 17,600 — 18,824 — Spouses and children of academic and vocational students (F2, M2) ...... 72,610 0.1 69,161 0.1 67,408 0.1 Exchange visitors ...... 492,937 0.8 475,232 0.9 526,931 1.0 Exchange visitors (J1) ...... 433,534 0.7 421,425 0.8 469,993 0.9 Spouses and children of exchange visitors (J2) ...... 59,403 0.1 53,807 0.1 56,938 0.1 Diplomats and other representatives ...... 373,330 0.6 365,779 0.7 377,830 0.7 Ambassadors, public ministers, career diplomats, consular offcers, other foreign government offcials and their spouses, children, and attendants (A1 to A3) . . 200,825 0.3 207,349 0.4 215,186 0.4 Representatives to international organizations and their spouses, children, and attendants (G1 to G5) ...... 141,744 0.2 135,623 0.3 139,378 0.3 NATO offcials and their families (N1 to N7) ...... 30,761 0.1 22,807 — 23,266 — Temporary visitors for pleasure ...... 48,346,018 79.2 42,041,426 78.0 40,591,607 76.5 Temporary visitors for pleasure (B2) ...... 29,915,467 49.0 24,476,086 45.4 23,806,138 44.8 Visa Waiver Program – temporary visitors for pleasure (WT) ...... 17,168,958 28.1 16,380,307 30.4 15,718,710 29.6 Guam – CNMI Visa Waiver Program – temporary visitors for pleasure to Guam or Northern Mariana Islands (GMT) ...... 1,261,593 2.1 1,185,033 2.2 1,066,759 2.0 Temporary visitors for business ...... 6,299,533 10.3 5,707,218 10.6 5,696,503 10.7 Temporary visitors for business (B1) ...... 3,498,688 5.7 2,972,355 5.5 3,055,932 5.8 Visa Waiver Program - temporary visitors for business (WB) ...... 2,798,130 4.6 2,731,887 5.1 2,637,166 5.0 Guam – CNMI Visa Waiver Program - temporary visitors for business to Guam or Northern Mariana Islands (GMB) ...... 2,715 — 2,976 — 3,405 — Transit aliens ...... 628,711 1.0 313,514 0.6 322,499 0.6 Aliens in continuous and immediate transit through the United States (C1) . . . . . 608,396 1.0 289,105 0.5 296,636 0.6 Aliens in transit to the United Nations (C2) ...... 2,269 — 4,158 — 4,397 0.0 Foreign government offcials, their spouses, children, and attendants in transit (C3) . . . 18,046 — 20,251 — 21,466 — Commuter Students ...... 105,263 0.2 115,561 0.2 108,894 0.2 Canadian or Mexican national academic commuter students (F3) ...... 105,263 0.2 115,561 0.2 108,892 0.2 Canadian or Mexican national vocational commuter students (M3) ...... —— —— D— Alien fancé(e)s of U.S. citizens and children ...... 29,773 — 32,102 0.1 27,700 0.1 Fiancé(e)s of U.S. citizens (K1) ...... 26,046 — 27,977 0.1 24,112 — Children of K1 (K2) ...... 3,727 — 4,125 — 3,588 — Alien spouses of U.S. citizens and children, immigrant visa pending ...... 1,679 — 5,152 — 20,977 — Spouses of U.S. citizens, visa pending (K3) ...... 1,262 — 4,534 — 17,874 — Children of U.S. citizens, visa pending (K4) ...... 417 — 618 — 3,103 — Alien spouses of U.S. permanent residents and children, immigrant visa pending ...... 1,335 — 3,075 — 9,122 — Spouses of permanent residents, visa pending (V1) ...... 867 — 1,928 — 3,659 — Children of permanent residents, visa pending (V2) ...... 271 — 449 — 2,546 — Dependents of V1 or V2, visa pending (V3) ...... 197 — 698 — 2,917 — Other ...... 87 — 91 — 93 — Unknown ...... 107,626 0.2 125,141 0.2 225,393 0.4 X Not applicable. — Represents zero or rounds to 0.0. D Data withheld to limit disclosure. Source: U.S. Department of Homeland Security, Customs and Border Protection (CBP), TECS, Arrival File, Fiscal Years 2011 to 2013. pleasure) and WT (Visa Waiver Program—temporary visitors for Country of Citizenship pleasure) classes of admission which accounted for 49 and 28 per- The leading countries of citizenship for nonimmigrant admissions cent, respectively, of all admissions. Approximately 10 percent of to the United States in 2013 were Mexico (29 percent), the United admissions in 2013 were in the temporary visitors for business Kingdom (7.5 percent), Canada (7.3 percent), Japan (7.0 per- category of admission. B1 (temporary visitors for business) admis- cent), Germany (3.9 percent), Brazil (3.5 percent), China (3.4 sions represented 5.7 percent of all admissions and WB (Visa percent), France (3.2 percent), South Korea (2.7 percent), and Waiver Program—temporary visitors for business) accounted for India (2.4 percent) (see Table 2). Admissions from Canada 4.6 percent. Five percent of all admissions were by temporary increased from 1,466,120 in 2012 to 4,445,881 in 2013 because workers and their families. The leading classes of admission in this CBP began recording Canadian air and sea admissions of tourists category were TN NAFTA professional workers (1.0 percent), H1B and business travelers in April 2013. workers in specialty occupations (0.8 percent), and L1 intracom- pany transferees (0.8 percent). F1 academic students represented Port of Entry 2.6 percent of I-94 admissions and nearly all of the admissions in The largest 20 ports of entry represented 67 percent of nonimmi- the student category. grant admissions in 2013 (see Table 3). About half of all nonim- migrants were admitted through the following ports of entry: New York (10 percent), Miami (9.3 percent), Los Angeles (6.8
4 Table 2. Nonimmigrant Admissions (I-94 only) by Country of Citizenship: Fiscal Years 2011 to 2013 2013 2012 2011 Country of citizenship Number Percent Number Percent Number Percent Total ...... 61,052,260 100.0 53,887,286 100.0 53,082,286 100.0 Mexico ...... 17,980,784 29.5 16,462,118 30.5 17,052,559 32.1 United Kingdom ...... 4,566,669 7.5 4,486,666 8.3 4,547,728 8.6 Canada ...... 4,445,881 7.3 1,466,120 2.7 1,868,179 3.5 Japan ...... 4,298,081 7.0 4,141,299 7.7 3,777,643 7.1 Germany ...... 2,359,681 3.9 2,308,207 4.3 2,182,441 4.1 Brazil ...... 2,143,154 3.5 1,792,425 3.3 1,539,015 2.9 China ...... 2,098,801 3.4 1,756,747 3.3 1,364,078 2.6 France ...... 1,959,424 3.2 1,913,551 3.6 1,845,227 3.5 Korea, South ...... 1,656,795 2.7 1,527,085 2.8 1,460,972 2.8 India ...... 1,491,712 2.4 1,296,276 2.4 1,222,302 2.3 Other ...... 17,886,490 29.3 16,461,702 30.5 15,737,991 29.6 Unknown ...... 164,788 0.3 275,090 0.5 484,151 0.9 Source: U.S. Department of Homeland Security, Customs and Border Protection (CBP), TECS, Arrival File, Fiscal Years 2011 to 2013.
Table 3. Nonimmigrant Admissions (I-94 only) by Port of Entry: Fiscal Years 2011 to 2013 2013 2012 2011 Port of entry Number Percent Number Percent Number Percent Total ...... 61,052,260 100.0 53,887,286 100.0 53,082,286 100.0 New York, NY ...... 6,129,709 10.0 5,744,877 10.7 5,344,781 10.1 Miami, FL ...... 5,679,558 9.3 5,115,113 9.5 4,712,293 8.9 Los Angeles, CA ...... 4,165,812 6.8 3,905,034 7.2 3,734,815 7.0 Newark, NJ ...... 2,148,824 3.5 2,088,591 3.9 2,181,506 4.1 Honolulu, HI ...... 2,107,178 3.5 1,892,134 3.5 1,581,719 3.0 San Francisco, CA ...... 1,986,263 3.3 1,859,836 3.5 1,777,202 3.3 San Ysidro, CA ...... 1,981,939 3.2 2,082,911 3.9 2,781,270 5.2 Chicago, IL ...... 1,832,126 3.0 1,606,615 3.0 1,596,960 3.0 Otay Mesa, CA ...... 1,523,289 2.5 1,303,897 2.4 1,215,475 2.3 Atlanta, GA ...... 1,516,566 2.5 1,379,717 2.6 1,397,240 2.6 Houston, TX ...... 1,501,909 2.5 1,382,759 2.6 1,425,534 2.7 Juarez-Lincoln Bridge, TX ...... 1,446,231 2.4 1,302,120 2.4 1,273,830 2.4 Toronto, Canada ...... 1,323,357 2.2 404,655 0.8 381,181 0.7 Agana, GU ...... 1,293,000 2.1 1,202,976 2.2 1,083,381 2.0 Washington, DC ...... 1,239,607 2.0 1,165,318 2.2 1,127,737 2.1 Nogales, AZ ...... 1,144,427 1.9 1,012,572 1.9 1,056,990 2.0 Orlando, FL ...... 1,117,181 1.8 1,048,272 1.9 924,684 1.7 Dallas, TX ...... 1,112,289 1.8 914,619 1.7 795,472 1.5 Boston, MA ...... 861,150 1.4 660,107 1.2 628,687 1.2 Hidalgo, TX ...... 838,216 1.4 797,264 1.5 642,152 1.2 Other ...... 19,888,346 32.6 16,841,339 31.3 17,232,077 32.5 Unknown ...... 215,283 0.4 176,560 0.3 187,300 0.4 Source: U.S. Department of Homeland Security, Customs and Border Protection (CBP), TECS, Arrival File, Fiscal Years 2011 to 2013. percent), Newark (3.5 percent), Honolulu (3.5 percent), San Age and Sex Francisco (3.3 percent), San Ysidro (3.2 percent), Chicago (3.0 In 2013, 60 percent of I-94 admissions were accounted for by percent), Otay Mesa (2.5 percent), Atlanta (2.5 percent), and individuals aged 25 to 54, and 51 percent of nonimmigrant Houston (2.5 percent). admissions were male (see Table 5). Age and sex distributions remained relatively unchanged between 2011 and 2013. State of Destination The most frequent states of destination for I-94 nonimmigrant admissions in 2013 were California (18 percent), Florida (13 per- cent), Texas (13 percent), and New York (11 percent) (see Table 4). These four states represented the destinations of 55 percent of for- eign nationals admitted.
5 Table 4. Nonimmigrant Admissions (I-94 only) by State of Destination: Fiscal Years 2011 to 2013 2013 2012 2011 State of destination Number Percent Number Percent Number Percent Total ...... 61,052,260 100.0 53,887,286 100.0 53,082,286 100.0 California ...... 11,182,804 18.3 10,208,709 18.9 10,306,971 19.4 Florida ...... 8,089,139 13.2 7,234,508 13.4 6,690,019 12.6 Texas ...... 7,605,578 12.5 6,854,454 12.7 6,559,787 12.4 New York ...... 6,805,732 11.1 6,409,286 11.9 6,226,198 11.7 Hawaii ...... 2,261,576 3.7 1,969,089 3.7 1,666,432 3.1 Nevada ...... 2,128,680 3.5 1,793,376 3.3 1,729,040 3.3 Arizona ...... 1,952,808 3.2 1,749,492 3.2 1,800,715 3.4 Washington ...... 1,415,063 2.3 1,262,020 2.3 1,158,160 2.2 Illinois ...... 1,197,625 2.0 1,021,476 1.9 979,740 1.8 Massachusetts ...... 1,056,505 1.7 963,171 1.8 930,826 1.8 Other ...... 10,986,783 18.0 10,147,921 18.8 10,196,030 19.2 Unknown ...... 6,369,967 10.4 4,273,784 7.9 4,838,368 9.1 Source: U.S. Department of Homeland Security, Customs and Border Protection (CBP), TECS, Arrival File, Fiscal Years 2011 to 2013.
Table 5. REFERENCES Nonimmigrant Admissions (I-94 only) by Age and Sex: Fiscal Years 2011 to 2013 Monger, Randall and Mathews, Megan, 2011. 2013 2012 2011 “Nonimmigrant Admissions to the United States: Characteristic Number Percent Number Percent Number Percent 2010,” Office of Immigration Statistics, Policy AGE Directorate, U.S. Department of Homeland Total ...... 61,052,260 100.0 53,887,286 100.0 53,082,286 100.0 Under 18 years . . . . . 6,922,805 11.3 6,067,171 11.3 5,771,094 10.9 Security, http://www.dhs.gov/xlibrary/assets/ 18 to 24 years ...... 5,672,694 9.3 4,978,091 9.2 4,910,932 9.3 statistics/publications/ni_fr_2010.pdf 25 to 34 years ...... 12,929,049 21.2 11,433,982 21.2 11,402,173 21.5 35 to 44 years ...... 12,866,158 21.1 11,685,053 21.7 11,844,788 22.3 45 to 54 years ...... 10,885,774 17.8 9,566,343 17.8 9,422,045 17.7 55 to 64 years ...... 7,132,243 11.7 6,181,493 11.5 6,003,548 11.3 65 years and over . . . 4,580,183 7.5 3,873,243 7.2 3,623,230 6.8 Unknown ...... 63,354 0.1 101,910 0.2 104,476 0.2 SEX Total ...... 61,052,260 100.0 53,887,286 100.0 53,082,286 100.0 Male ...... 31,420,318 51.5 27,825,034 51.6 27,385,129 51.6 Female ...... 29,285,737 48.0 25,605,018 47.5 24,867,990 46.8 Unknown ...... 346,205 0.6 457,234 0.8 829,167 1.6 Source: U.S. Department of Homeland Security, Customs and Border Protection (CBP), TECS, Arrival File, Fiscal Years 2011 to 2013.
6 Appendix A. Nonimmigrant Classes of Admission — Continued Class Description Temporary Workers and Families Temporary workers and trainees CW1 ...... CNMI-only transitional workers CW2 ...... Spouses and children of CW1 H1B ...... Workers in specialty occupations H1B1 ...... Chile and Singapore Free Trade Agreement aliens H1C ...... Registered nurses participating in the Nursing Relief for Disadvantaged Areas H2A ...... Agricultural workers H2B ...... Nonagricultural workers H2R ...... Returning H2B workers H3 ...... Trainees H4 ...... Spouses and children of H1, H2, or H3 O1 ...... Workers with extraordinary ability or achievement O2 ...... Workers accompanying and assisting in performance of O1 workers O3 ...... Spouses and children of O1 and O2 P1 ...... Internationally recognized athletes or entertainers P2 ...... Artists or entertainers in reciprocal exchange programs P3 ...... Artists or entertainers in culturally unique programs P4 ...... Spouses and children of P1, P2, or P3 Q1 ...... Workers in international cultural exchange programs R1 ...... Workers in religious occupations R2 ...... Spouses and children of R1 TN ...... North American Free Trade Agreement (NAFTA) professional workers TD ...... Spouses and children of TN Intracompany transferees L1 ...... Intracompany transferees L2 ...... Spouses and children of L1 Treaty traders and investors E1 ...... Treaty traders and their spouses and children E2 ...... Treaty investors and their spouses and children E2C ...... Treaty traders and their spouses and children CNMI-only E3 ...... Australian Free Trade Agreement principals, spouses and children Representatives of foreign information media I1 ...... Representatives of foreign information media and spouses and children Students F1 ...... Academic students F2 ...... Spouses and children of F1 M1 ...... Vocational students M2 ...... Spouses and children of M1 Exchange visitors J1 ...... Exchange visitors J2 ...... Spouses and children of J1 Diplomats and other representatives A1 ...... Ambassadors, public ministers, career diplomatic or consular officers and their families A2 ...... Other foreign government officials or employees and their families A3 ...... Attendants, servants, or personal employees of A1 and A2 and their families G1 ...... Principals of recognized foreign governments G2 ...... Other representatives of recognized foreign governments G3 ...... Representatives of nonrecognized or nonmember foreign governments G4 ...... International organization officers or employees G5 ...... Attendants, servants, or personal employees of representatives N1 to N7 . . . . . North Atlantic Treaty Organization (NATO) officials, spouses, and children Temporary visitors for pleasure B2 ...... Temporary visitors for pleasure WT ...... Visa Waiver Program – temporary visitors for pleasure GT ...... Guam Visa Waiver Program – temporary visitors for pleasure to Guam GMT ...... Guam-CNMI – temporary visitors for pleasure to Guam or Northern Mariana Islands
7 Appendix A. Nonimmigrant Classes of Admission — Continued Class Description Temporary visitors for business B1 ...... Temporary visitors for business WB ...... Visa Waiver Program – temporary visitors for business GB ...... Guam Visa Waiver Program – temporary visitors for business to Guam GMB ...... Guam-CNMI – temporary visitors for business to Guam or Northern Mariana Islands Transit aliens C1 ...... Aliens in continuous and immediate transit through the United States C2 ...... Aliens in transit to the United Nations C3 ...... Foreign government officials, their spouses, children, and attendants in transit Commuter Students F3 ...... Canadian or Mexican national academic commuter students M3 ...... Canadian or Mexican national vocational commuter students Alien Fiancé(e)s of U.S. citizens K1 ...... Fiancé(e)s of U.S. citizens K2 ...... Children of K1 Legal Immigration Family Equity (LIFE) Act K3 ...... Spouses of U.S. citizens, immigrant visa pending K4 ...... Children of K3, immigrant visa pending V1 to V3 . . . . . Spouses and children of permanent residents, immigrant visa pending Other categories N8 ...... Parents of international organization special immigrants N9 ...... Children of N8 or international organization special immigrants Q2 ...... Irish Peace Process Cultural and Training Program aliens Q3 ...... Spouses and children of Q2 Source: U.S. Department of Homeland Security.
8 Getting Through Customs: An Update on Immigration Law
Tips for I-9 Compliance, Preparing for ICE Audits and Dealing with Undocumented Workers Impacted by the Recent Executive Orders
Florida Seminar 2015
Penni P. Bradshaw Constangy, Brooks & Smith, LLP 100 N. Cherry Street, Suite 300 Winston-Salem, NC 27101 [email protected] (336) 721-6842
Jeanette K. Phelan Constangy, Brooks & Smith, LLP 200 W. Forsyth Street, Suite 1700 Jacksonville, FL 32202 [email protected] (904) 357-2663
P. Bradshaw 2015 UPDATE ON IMMIGRATION LAW
TABLE OF CONTENTS
Preparing for ICE Audits and Avoiding Liability...... 3
I. INTRODUCTION ...... 3
II. ILLEGAL IMMIGRANTS/UNDOCUMENTED WORKERS ...... 4
III. EMPLOYER VERIFICATION OF WORK AUTHORIZATION ...... 5
IV. THE PROBLEM OF DOCUMENT FRAUD...... 11
V. E-VERIFY ...... 12
VI. SOCIAL SECURITY NO-MATCH LETTERS ...... 15
VII. EXPANDING GROUNDS OF EMPLOYER LIABILITY -- “CONSTRUCTIVE KNOWLEDGE AND IMMIGRATION STATUS DISCRIMINATION” ...... 17
VIII. CURRENT ENFORCEMENT EFFORTS – ICE AUDITS ...... 19
IX. DEFERRED ACTION FOR CHILDHOOD ARRIVALS (“DACA”) ...... 21
X. DEFERRED ACTION FOR PARENTAL ACCOUNTABILITY (“DAPA”) ...... 22
XI. SUMMARY OF CURRENT WORK VISA OPTIONS FOR EMPLOYERS ...... 23
A. H-1B Visas ...... 23
B. H-2B Work Visas ...... 26
C. H-3 Work Visas ...... 26
D. E-l Treaty Trader Visas ...... 27
E. E-2 Treaty-Investor Visas ...... 28
F. L-l Visas ...... 29
G. O Visas ...... 31
H. Canadian and Mexican Business Visitors ...... 32
I. TN Visas ...... 33
J. B-1 "Business Visitor" Visas ...... 34
~ 2 ~ Tips for I-9 Compliance, Preparing for ICE Audits and Dealing with Undocumented
Workers Impacted by the Recent Executive Orders
I. INTRODUCTION
The immigration laws touch all employers these days. In recent years, we have seen an increased globalization of markets and business organizations, including multi-national employers.
Many U.S. employers are hiring recent college grads from other countries. Multi-national companies wish to transfer workers from abroad to the U.S.
In addition, U.S. companies are sending their own workers abroad, not only for sales and manufacturing positions, but also to head up important service functions which have been “out- sourced” to those countries. At the same time, the number of undocumented persons in the U.S. workforce has increased substantially.
Under the U.S. immigration laws, an individual who is not a U.S. citizen or national, or a
U.S. permanent resident (green card holder) cannot visit or reside in the U.S. without permission.
Similarly, such individual cannot work in the U.S. without permission. As a general rule, all individuals who are not U.S. citizens/nationals or U.S. permanent residents are required to have work visas or work cards in order to live and work in the United States.
Under the Immigration Reform and Control Act (IRCA), employers must comply with federal regulations which require them to verify – through the preparation of an I-9 form – that each new hire has authorization to work in the United States. Employers who fail to comply with the “I-9 requirements” are subject to substantial civil fines and even potential criminal liability. Certain federal contractors are required to use the on-line E-Verify system to further ensure that their
~ 3 ~ employees are work authorized. A growing number of States are also requiring employers to use the federal E-Verify system.
II. ILLEGAL IMMIGRANTS/UNDOCUMENTED WORKERS
A significant root cause of illegal immigration into the U.S. is the unavailability of work visas for individuals who do not work in professional-level jobs requiring a college degree. With the exception of individuals transferred here from abroad by their foreign employer, certain trainees or seasonal workers, and athletes and entertainers and other persons of distinction, work visas are not granted to those lacking a college degree or equivalent and who work in jobs which do not require a college degree.
As a result, persons from other countries wanting to work in the U.S. in such fields as food service, housekeeping, construction, landscaping, manufacturing and the like generally cannot obtain work visas under the current law. (By comparison, many European countries have long had
“guest worker” programs.)
The Pew Hispanic Center estimates that there are at least 10 million undocumented men and women (“illegal immigrants”) currently in the U.S., who in turn are parents to 1.6 million undocumented children and over 3 million children who are U.S. citizens by virtue of their birth in this country. The Department of Homeland Security estimates that over 65 percent of these undocumented persons have lived in the United States for 10 years or more. The Urban Institute estimates that of the10 million illegal immigrants currently in the United States, 55% to 60% are from Mexico. Of the remaining 40% to 45%, two-thirds are of the Hispanic origin.
The influx of illegal immigrants increased significantly from 1990 to 2010, but most recently has leveled off. According to the Pew Hispanic Center, between 1990 and 2000 an estimated 5.5
~ 4 ~ million immigrants unlawfully settled in the United States. (It is noteworthy that between 1990 and
2000, the number of Border Patrol Agents was increased from 3,600 to 10,000.)
By comparison, the “net” illegal migration (undocumented persons entering the U.S. minus undocumented persons leaving the U.S.) is now close to zero. The numbers have been driven down both by fewer new arrivals, more removals (i.e., deportations), and an increased number of undocumented persons who are leaving the U.S. (apparently for lack of work or fear of removal).
Although many illegal immigrants crossed the border “without inspection”, others entered with valid visas (such as visitor visas or student visas) and simply “over stayed”.
III. EMPLOYER VERIFICATION OF WORK AUTHORIZATION
Illegal immigration is not a “new” problem. In the mid-1980s, Congress decided to enlist the private sector (employers) to help enforce the federal immigration laws in conjunction with the grant of “amnesty” to some 3 million undocumented persons who were living in the U.S. at that time.
Recognizing that many illegal immigrants come to the U.S. seeking employment, Congress believed that if employers were required to verify the work authorization of all new hires – and refused to hire those persons who lacked the appropriate work authorization documents – many undocumented (illegal immigrant) foreign workers would stop coming to the United States.
Congress through the Immigration Reform and Control Act (IRCA) in 1986 further sought to end unauthorized employment by imposing strong civil and criminal penalties on employers who knowingly hired or continued to employ aliens who are not authorized to work in the United States.
Under IRCA, employers are required to verify employee identity and authorization to work in the United States for all new hires. Employers do this by completing form I-9 for all new hires within three days of hire. (Employees must complete their section of the I-9 form no later than their
~ 5 ~ actual first day of work.) The I-9 form requires the employer representative to attest under penalty of perjury that s/he has examined each employee’s documents and has verified the authorization to work in the United States.
In addition to requiring employers to complete I-9s for all new hires, IRCA makes it illegal for an employer to:
1. Knowingly hire for employment in the United States an alien who is not authorized to
work.
2. Hire any individual without verifying identity and work authorization.
3. Continue the employment of a person if the employer knows or should know the
person is not authorized to work.
4. Knowingly forge, counterfeit, alter, or falsely make any document for the purpose of
satisfying any immigration-related requirement.
5. Knowingly use, accept or receive any false document for the purpose of satisfying any
immigration-related requirement.
6. Discriminate in hiring or firing against a citizen or intending citizen on the basis of
national origin or citizenship status.
7. Intentionally require an employee to present any specific document or combination of
documents for 1-9 purposes.
8. Intentionally require an employee to present more or different documents than are
minimally required for the employment verification process.
9. Intentionally refuse to honor documents tendered by an employee that reasonably
appear to be genuine.
~ 6 ~ All employers are covered, regardless of size. Employers must verify identity and employability by completing Form I-9 for each person hired after November 6, 1986 (the effective date of IRCA).
The employee completes Section 1 of the form, which calls for name, address, date of birth,
Social Security number, and the details of the person’s immigration status, including expiration date, for those temporarily authorized to work in the U.S. The current version of the I-9 form also has sections in which the employee may voluntarily provide his or her email address and telephone number.
It is a violation of IRCA for the employer representative to complete the form on behalf of the new hire, unless the new hire is under age 18 or lacks the ability to complete it. The I-9
“Handbook for Employers” explains that a preparer may assist only “if the employee is unable to complete the form without assistance.”
Many employers now use electronic “on-boarding” systems, which not only collect the information on each new hire, but also have the ability to “generate” the I-9 form. The
Department of Homeland Security (which enforces the I-9 regulations) has cautioned employers about using electronic systems, which “pre-populate” Section I of the I-9 form. The employee must at minimum be permitted to review and attest to the accuracy of the information in Section I and must either electronically or manually sign and date the form.
The employee in addition to completing Section I presents documents to establish identity and employment eligibility. A list of valid I-9 documents is provided in the instructions to Form I-9, and should be made available to the employee.
~ 7 ~ If an interpreter translates the I-9 form for the employee, the interpreter completes and signs that section of the form. Note that the interpreter is not authorized to fill out the I-9 form for the employee.
There is a Spanish-language version of the I-9 form, but it can only be used by employers in
Puerto Rico, where both English and Spanish are “official” languages.
Note that the employer is ultimately liable for proper completion of the I-9 form and must ensure that Section 1 of the form is properly completed by the employee. One benefit of using an electronic I-9 system is that most systems will not permit the I-9 to be completed if any required information has not been filled in, thus avoiding potential fines for I-9 errors in the event of an audit.
In addition, many electronic systems can automatically submit the E-Verify case once the I-9 is done.
BEST PRACTICE: Train those who administer I-9 forms to check the forms for completeness at the time they are done.
BEST PRACTICE: Consider implementing an electronic system for completion of the I-9
Form.
Again, employees must complete Section 1 of the I-9 form no later than their first day of work (for employees hired for three days or less, the entire form must be completed prior to commencement of employment). New hires can complete Section 1 of the I-9 form at any time after the offer of employment has been made (for example, several days before beginning work). However, the I-9 form must not be used as a “screening” tool (for examples with applicants who have not yet received an offer of employment).
An employer representative must complete Section 2 of the I-9 form by the end of the third business day, or within 3 days after the first day the employee actually works, even if the employee is not scheduled to work for some or all of that period. Here, too, the law does not prohibit
~ 8 ~ verification before employment begins, but verifying applicants prior to extending a job offer
(“screening”) is prohibited.
BEST PRACTICE: The employer representative should complete Section 2 of the I-9 form at the same time the new hire completes Section 1.
Make sure the employer representative writes down all of the required information for the documents presented: issuing authority, title of document, document number and (if there is one) the expiration date. Limit the use of abbreviations. The I-9 “Handbook for Employers” in its most recent version has indicated that “SSA” (for Social Security Administration) and DL (for driver’s license) are both acceptable.
BEST PRACTICE: Print a copy of the I-9 “Handbook for Employers” available at www.uscis.gov. for use as a reference tool.
Beware of “over-documenting” the I-9. The employer representative should fill out only List
A or only List B/List C, even if the new hire has presented more documents than needed.
The employer representative in completing Section 2 attests under penalty of perjury that s/he has “inspected” the documents and they appear to be genuine. Note that I-9’s must be completed “in person” – they cannot be completed by “long distance” and still comply with the required employer attestation.
The Verification Division of USCIS has stated that completion of Section 2 requires “active review” which it defined as “tactile review” – the employer representative must touch/examine the documents in person. Accordingly, an I-9 cannot be completed using Skype to “view” the documents.
It is permitted to hire a notary or other person to act as the employer’s “agent” for purposes of the in-person completion of the I-9 process for a “remote” hire. That person writes in the Company information in Section 2 of the form, and writes “Agent” as the position title.
~ 9 ~ A new I-9 form is not required for an individual re-hired within three years of completing a prior I-9 form. Instead, the employer may update the prior I-9 form by confirming that the employment eligibility document originally presented remains valid. If so, the employer merely records the re-hire information in Section 3 “Re-verification” section at the bottom of page 2 of the I-9 form. However, employers may opt to complete new I-9 forms whenever a former employee is re-hired.
BEST PRACTICE: By completing new I-9 forms for all re-hires, the employer avoids the potential for misapplication of the “three-year rule”.
Reverification of Current Employees — If the employee’s work authorization document has an expiration date, the employer must reverify the employee’s authorization to work prior to the expiration of the current work authorization document. Reverification is done by examining a new work authorization document and completing Section 3 at the bottom of page 2 of the I-9. (The new document information should be recorded in Section 3 and the employer representative should sign and date Section 3 of the form.)
Note that reverification is not necessary for identity documents such as drivers’ licenses.
Similarly, U.S. passports and green cards, although they carry expiration dates, do not require reverification. It is only if the employee’s work authorization has an expiration date (work visa, EAD work card) that the employer would re-verify.
BEST PRACTICE: Instruct your I-9 preparers that only those new hires who check the fourth box at the top of the I-9 are ever to be re-verified. Develop a “tickler” (reminder) system to ensure that all workers with time-limited work authorization are properly re-verified.
~ 10 ~ I-9 forms must be retained for the longer of three years from the date employment commences or one year from the date employment terminates. This means an employer must have in its possession an I-9 form for every current employee hired after November 6, 1986.
BEST PRACTICE: It is recommended that employers keep 1-9 forms in a file or notebook apart from personnel files. Periodically remove the I-9s for terminated employees and keep them in a separate file or notebook for the duration of the retention period.
BEST PRACTICE: It is recommended that employers make legible copies of the documents presented and keep them with the I-9 form. These photocopies can then be used for self-audits or to prove the employer’s good faith in preparing I-9 forms. (The most recent guidelines for ICE auditors provide that fines for certain “technical” violations can be avoided if the employer has legible copies of the underlying documentation on which the “missing” information appears, such as the expiration date of a driver’s license.)
In addition to ICE, the USDOL and OFCCP generally inspect I-9 forms during routine audits.
IV. THE PROBLEM OF DOCUMENT FRAUD
The two documents most frequently presented by new hires to complete the 1-9 process are a driver’s license (identify document) and Social Security card (work authorization document).
Bogus Social Security cards are easily obtained in the United States.
Under the federal REAL ID law (put in place after “9/11”), the States were required to tighten up the procedures for issuing drivers’ licenses, requiring applicants (both for new licenses and renewals) to document that they have a lawful immigration status in the U.S. So while it used to be easy for undocumented persons (illegal aliens) to obtain real drivers’ licenses, this is no longer the
~ 11 ~ case. With an estimated 10 million undocumented persons in the U.S., employers can anticipate that some new hires will be presenting bogus documents.
CIS has made it clear that employers are not held to a standard of determining the authenticity of documents such as Social Security cards or green cards, unless these appear fraudulent on their face.
BEST PRACTICE: Employers should examine both the front and back of the documents presented, checking especially for misspellings.
Examples of bogus documents are attached as Exhibit 1.
In the past, CIS has focused its enforcement efforts primarily on those persons manufacturing and selling fraudulent documents, not those who purchase them. However, criminal charges of
“identity theft” have been brought against some illegal aliens who used bogus Social Security cards or other false documents to obtain their jobs. Employers knowingly accepting bogus documents could face criminal charges.
Thousands of undocumented workers obtained certified copies of birth certificates belonging to Puerto Ricans, and were to use these to “assume” the identity of a Puerto Rican person and obtain a “replacement” Social Security card for that person, thereafter using those same documents to obtain a U.S. driver’s license in that person’s name. This “scheme” was so pervasive that in 2010, the government of Puerto Rico voided all previously issued birth certificates, putting in place a system for re-issuance of birth certificates with new “safeguards” in place.
V. E-VERIFY
In part because of the challenge of document fraud (that is, completing an I-9 form does not necessarily ensure that new hires really have permission to work in the U.S.), the federal government
~ 12 ~ years ago introduced the “Basic Pilot Program”, an on-line system designed to enable employers to do further verification of the work authorization of their new hires.
In a nutshell, that system combined the databases of the Social Security Administration and the Department of Homeland Security (Immigration) to verify that the information given by the new hire on the I-9 form was “accurate”. The Program has been re-designed and re-named several times over the years, most recently as “E-Verify”.
Except for certain federal contractors (as discussed below), participation in the program from a federal law standpoint has always been entirely voluntary. (DHS indicates that some 482,000 companies are now participating in the voluntary E-Verify program.) However, a growing number of
States are now requiring employers to use the “voluntary” E-Verify. In addition, some private companies are requiring employers to use E-Verify if they want to do business with that company.
The U.S. Supreme Court several years ago upheld as valid the section of the Arizona immigration law that required all employers in that State to use E-Verify. The Court held that a
State has the power to require use of E-Verify as a condition for doing business in that State. At the time of that Supreme Court decision, Colorado, Mississippi, Missouri, Pennsylvania, South
Carolina, Tennessee, Virginia, and West Virginia all had some type of E-Verify requirement.
Several other states (including Georgia and North Carolina) soon followed suit.
Although Florida has not passed a law requiring employers in the State to use E-Verify,
Governor Scott by Executive Order required all State agencies under the direction of the
Governor to use the federal E-Verify system to check the work authorization/identity of all new hires. The Executive Order also required these State agencies in turn to require all their contractors (and their subcontractors) to use E-Verify.
~ 13 ~ E-Verify for Federal Contractors: There is one exception to the rule that E-Verify can
only be used with new hires. Executive Order 12989 for the first time not only permitted but
required mandatory use of E-Verify for certain federal contractors. The regulations apply to federal
contracts worth at least $100,000 with a period of performance longer than 120 days.
Subcontracts worth $3,000 or more flowing from such prime contracts are also covered.
Contracts for commercially available off-the-shelf items and for work performed outside the
United States are not covered by these requirements. Importantly, employers do not automatically become subject to mandatory E-Verify; such obligation begins only when the employer receives a contract or subcontract with the “FAR language.” Excerpts from contracts and addendums with the FAR language are attached as Exhibit 2.
Prior to Executive Order 12989, the E-Verify system had been used solely for verifying employment eligibility of new hires. Under Executive Order 12989, however, companies with covered contracts must E-Verify not only all new hires, but also all current employees (hired after November 6, 1986) who work directly on the covered federal contract. The Executive
Order does not include employees normally performing support (“back office”) work, such as indirect or overhead functions, and who do not perform any substantial duties under the contract.
Procedurally, companies awarded covered contracts are required to enroll in E-Verify
within 30 days of the contract award date. Companies will then have 90 days to begin using E-
Verify for employees already on staff who are assigned to work on the federal contracts. After
this 90-day phase-in period, employers must verify all new hires within three business days of
employment. As is the case with I-9s, employers may verify new hires after an offer of
employment has been accepted (but before employment starts), but are not permitted to use the
system to verify the employment eligibility of applicants.
~ 14 ~ Covered contractors have the option of verifying their entire workforce (new hires and all
employees, even if not assigned to a federal contract), but they must notify the Department of
Homeland Security through the “Maintain Company” page on the E-Verify system, and must initiate a query for each employee in the workforce within 180 days of such notification.
If a covered contractor is already participating in voluntary E-Verify, it is required to update its company information on the “Maintain Company” page to reflect that it is now a government contractor user. The DHS website offers detailed information on registering a company to use the E-Verify system, FAQs, and on-line tutorials.
“The Bottom Line”: Use of the I-9 form without further verification does not ensure that new hires actually have work authorization, as most of the estimated 10 million undocumented persons in the United States use fraudulent documents or stolen/”borrowed” identities to obtain employment. Although far from perfect, the E-Verify system is helping employers better determine which individuals are unauthorized, and may have a “deterrent” effect as well, by discouraging those who cannot “pass muster” from applying for jobs. (Employers enrolled in E-
Verify are required to display a poster notifying applicants of such participation.)
BEST PRACTICE: Consider enrolling in voluntary E-Verify. A growing number of
States require its use. Congress is considering requiring its use. Employers cannot realistically rely on the I-9 form to ensure that new hires have permission to work in the U.S.
VI. SOCIAL SECURITY NO-MATCH LETTERS
A related issue with respect to work verification arises when employers receive letters
from the Social Security Administration informing them that certain of their employees’
names and Social Security numbers do not “match”. DHS takes the position that receipt of such
notice from the Social Security Administration puts an employer on notice that the employee in
~ 15 ~ question may in fact lack proper work authorization. The standard languages in these SSA letters advises employers to request these workers to visit the local Social Security office to “clarify” the situation. However, there is nothing to be “clarified” for undocumented workers (who lack authorization to legally work in the U.S. and are thus statutorily ineligible to receive Social
Security cards).
In late November of 2010, the Office of Special Counsel for Immigration-Related Unfair
Employment Practices of the U.S. Justice Department issued guidance (Exhibit 3) for employers in dealing with Social Security “no match” letters. The guidance indicates that while employers should not take any adverse employment action against an individual simply because his or her name appears on a “no match” letter, the employer does have an obligation to follow up by bringing the matter to the employee’s attention and requesting that the employee take steps to “correct” the issue.
Employers are advised to give employees a “reasonable” amount of time to “correct” the issue. The Office of Special Counsel references 120 days as a presumed “reasonable” time.
Employers are not, however, given any concrete guidance by the OSC on how to verify, during this process, that an employee is in fact truly work authorized. (Please note that it would violate their
Memorandum of Understanding for employers enrolled in voluntary E-Verify, to use the system to check the immigration status of current employees.)
The OSC cautions employers against requiring employees to provide any particular type of documentation in response to the “no match” letter, but there is no guidance on what type of documentation an employee might provide and what an employer might in turn do to make sure that the new documentation itself is legitimate. (As a practical matter, individuals who are
“undocumented” are working without authorization because there is no current path available to
~ 16 ~ them to work legally in the United States, and certainly there is nothing that the local Social Security office can do to assist an individual with obtaining a lawful immigration status.)
BEST PRACTICE: Prudent employers should follow up with the government agency from which the employee’s “new” documentation comes (such as the Social Security Administration or the Department of Homeland Security/Immigration Service) to verify its validity, and should document these efforts.
BEST PRACTICE: Although it has long been recommended that employers not accept a
“new identity” from a current employee whose name has appeared on a “no match” letter, with the implementation of the “Deferred Action” Programs DACA and DAPA (discussed below), the federal government is encouraging employers to accept such documentation from DACA and DAPA recipients.
VII. EXPANDING GROUNDS OF EMPLOYER LIABILITY -- “CONSTRUCTIVE KNOWLEDGE AND IMMIGRATION STATUS DISCRIMINATION”
The Department of Homeland Security has made it clear that it is focusing on employer good faith and “constructive knowledge” in evaluating potential violations of IRCA’s prohibition of
“continuing to employ” unauthorized workers. In its “Worksite Enforcement Advisory” (Exhibit 4) issued in February 2008, which is still the most recent such Advisory available, it provided guidance to employers on current ICE worksite enforcement. The “Advisory” specifically acknowledges the significant problem with bogus Social Security cards and gave employers “things to look for” as part of 1-9 compliance.
The “Advisory” also makes it clear that employers should follow up on “no-match” letters. (“Check with your employee to verify the information given to you is correct. Verify any corrections with SSA. Encourage the employee to resolve the issue with SSA and ensure any corrections are valid by checking again with SSA.”)
~ 17 ~ Examples of information resulting in constructive knowledge to the employer include a third-party payroll system reporting that an employee name and Social Security number do not match, or an individual providing documentation from the IRS re: unpaid taxes on wages earned at your company, when that individual has never worked at your company.
An appropriate response would be to inform the employee that an issue has arisen with his immigration status/work authorization and give the employee a reasonable amount of time to provide additional documentation. Again, the employer should not require the employee to provide a particular document; the choice of which document to present should be the employee’s
(as it is with I-9s).
It is noteworthy that the guidance from the Office of Special Counsel for Immigration-
Related Unfair Employment Practices of the U.S. Justice Department (Exhibit 3 above) mentions several types of “third party” information which could give rise to a duty to inquire further on the part of employers. Although the guidance clearly states that receipt of a “no match” letter in and of itself would not necessarily give an employer “constructive knowledge”, employers were urged to do appropriate follow up if they received information raising questions about an employee’s status from such sources as a background check, an identity theft-related inquiry, or a health care provider which provides services to employees pursuant to an employer- sponsored health plan.
The Office of Special Counsel is also responsible for investigation claims of discrimination based on an individual’s immigration status. A review of conciliation/settlement agreements and employer fines made public by the Office of Special Counsel shows that often the claims arise out of employers’ good faith actions which unintentionally violate IRCA.
~ 18 ~ For example, as noted above, employers should never “re-verify” expiring green cards.
An employer who does so and who precludes an employee from working until s/he presents a new green card, would be liable for backpay as well as fines.
Employers who require new hires to present specific documents (for example asking permanent residents to show their green cards) are also subject to fines (and to backpay if the job offer was withdrawn). It is important to know that the Office of Special Council monitors employers’ E-Verify usage, and may conduct an investigation if an employer has a larger percentage of “List A” documents used in its cases.
VIII. CURRENT ENFORCEMENT EFFORTS – ICE AUDITS
The Immigration and Customs Enforcement (ICE) agency, the enforcement arm of the
U.S. Department of Homeland Security, since late 2009 has issued I-9 audit notices to thousands of businesses. Fiscal years 2013 and 2014 each saw a record number of audits, with ICE collecting millions of dollars in fines from employers.
In an I-9 audit, the employer is typically requested to submit its I-9s, payroll records, payroll tax filings (“941s”), information on related companies, and prior Social Security no- match letters, so that ICE can determine whether the employer is in compliance with federal employment eligibility verification laws.
A sample “Notice of Inspection” (NOI) is attached as Exhibit 5. Typically, an employer is given only three business days in which to turn over its documents to ICE.
A finding of noncompliance can lead to fines and, in the case of “pattern or practice” violations, criminal penalties or debarment from federal contracts.
BEST PRACTICE: Companies should complete an internal audit of their I-9s, to be prepared in the event of an ICE audit.
~ 19 ~ At the conclusion of each audit, employers are given a list of workers with “suspect” documents or other “discrepancies”. Unless the workers choose to challenge the finding (and provide additional documentation of their identity and immigration status to ICE to verify), their employment must be terminated within 10 days.
Attached as Exhibit 6 is an internal guide for ICE agents doing I-9 audits. It contains a schedule of suggested fines for I-9 violations. The levels of fines rise dramatically based on the percentage of I-9s that have errors or omissions. For first time violators, the fines range from
$110 to $935 per I-9. Note that a single error on a I-9 (such as a failure to date, a failure to check an immigration status box in Section I, or failure to fill in a document’s expiration date) could lead to a fine.
In late September 2010, ICE announced that Abercrombie & Fitch had agreed to pay a fine of over $1 million for I-9 violations. It is noteworthy that none of the violations in that case involved “knowing” employment of undocumented workers. The fine was for paperwork violations only.
In October of 2010, ICE announced that Catholic Healthcare West agreed to pay a fine of
$257,000 after it was found to have “over-documented” its I-9s for new hires who were not U.S. citizens.
In August of 2011, Ketchikan Drywall Services turned over 535 I-9’s to ICE as part of a routine audit. Of those, 225 were found to have some sort of paperwork violation. The company was assessed a fine of $173,250 which reflected a cost of $770 per I-9, for each form which contained an error.
~ 20 ~ In light of this trend, employers are well-advised to prepare for the possibility of an I-9 audit, by reviewing their I-9s for completeness and accuracy. Again, a good starting point for understanding the I-9 process is to review the “Handbook for Employers”.
If a need for corrections is found during an internal audit, the person making the corrections should “initial and date” in the margin of the I-9 form. ICE has indicated that if multiple markings and/or different color inks are found on I-9s without initials/dates, ICE will treat the original error as uncorrected. Only the employee can make corrections in Section 1.
Only an employer representative can make corrections in Section 2, but any authorized employer representative can make such corrections..
Guidance on correcting I-9s from “I-9 Central” is attached as Exhibit 7.
IX. DEFERRED ACTION FOR CHILDHOOD ARRIVALS (“DACA”)
On June 15, 2012, the Department of Homeland Security announced a special program to benefit undocumented young people age 30 and under who had been bought to this country as children. These individuals could not work legally in the United States, and faced significant issues in obtaining post-secondary education.
“Deferred action” means that the government will permit these individuals to self- identify and formally request that DHS “defer” for a period of at least three years, any adverse action against them, such as removal (deportation). One of the most significant benefits of applying for “Deferred Action” is that the individual will be issued a work card (EAD) valid for three years. Once the individual has the work card, he or she will be eligible to obtain a Social
Security card, can work lawfully, and (in most states) can obtain a driver’s license.
~ 21 ~ On November 20, 2014, President Obama announced that the upper age limit would be
removed from DACA. The government began accepting applications from eligible individuals
in February of 2015.
X. DEFERRED ACTION FOR PARENTAL ACCOUNTABILITY (“DAPA”)
On November 20, 2014, President Obama announced a series of Executive Actions which
he described as intended to put in place a temporary potential fix for challenges arising from the
current U.S. immigration laws. The DAPA program will be available beginning in June to
undocumented persons who are parents of U.S. citizens or U.S. permanent residents who have
been continuously present in the U.S. since January 1, 2010 who do not have any serious
criminal record. Similar to DACA, recipients of DAPA will also receive EAD work cards valid
for three years, and will be issued Social Security cards.
Many of them have previously worked and completed I-9 forms. Accordingly, it is increasingly common for employers to face situations in which current employees come forward and admit that they either presented bogus documents or used another person’s identity at the time of hire, but they now have a valid EAD work card and Social Security number pursuant to
DACA. Employers have several options with respect to how to respond. Because IRCA makes it unlawful only for an employer to knowingly hire or “continue to employ” an individual who lacks work authorization, there is no prohibition of permitting that person to continue to work, as he or she is now work-authorized.
Some employers may have “honesty” policies which provide that any falsification in the hiring process is grounds for immediate termination. Although an employer could opt to
terminate the employment of a DACA beneficiary, the federal government has indicated that it
will closely scrutinize such terminations to ensure that they are not discriminatory. An employer
would need to be prepared to show that it had terminated the employment of similarly-situated
~ 22 ~ non-foreign workers in keeping with this policy, lest the government (either the EEOC or the
Office of the Special Counsel of the U.S. Justice Department) take the position that the
termination was discriminatory.
BEST PRACTICE: It is clear from a public policy standpoint that the Federal government
is encouraging employers to continue DACA beneficiaries’ employment once they have their EAD
work cards. Formal “Guidance” from DHS on how to handle I-9s for such works is attached as
Exhibit 8. Prudent employers may avoid liability for discrimination claims by permitting these
individuals to continue to work.
XI. SUMMARY OF CURRENT WORK VISA OPTIONS FOR EMPLOYERS
A. H-1B Visas
Most foreign nationals working in the United States as professionals have H-1B work
visas. The H-1B visa is initially granted for a period of up to three years, and is renewable up to a
total of six years.
As a general rule, H-1B visas are available only to persons who will be employed as
professionals, or more particularly, be employed in a "specialty occupation", which is defined as
"an occupation that requires (a) theoretical and practical application of a body of specialized
knowledge, and (b) attainment of a bachelor's or higher degree in the specific specialty (or its
equivalent) as a minimum for entry into the United States." 1NA § 2l4(i)(l), 8 USC § 1184(i)(l),
To establish that a job qualifies for a specialty occupation under CIS regulations, one or more of
the following criteria must be shown:
• A bachelor's or higher degree or its equivalent is normally the minimum entry
requirement for the profession.
~ 23 ~ • The degree requirement is common to the industry or, in the alternative, the position is
so complex or unique that it can be performed only by an individual with a
degree.
• The employer normally requires a degree or its equivalent for the position.
• The nature of this specific duty is so specialized and complex that the knowledge
required to perform the duties is usually associated with the attainment of a
bachelor's or higher degree.
8 CFR § 214,2(h)(4)(iii)(A).
As a general rule, the required degree must be in a "specialty" field. In recent years,CIS has begun to take the position that an occupation which may be filled by persons having degrees in a variety of related fields is not by definition a specialty occupation. For example, H-1B visas have been denied for Marketing positions on grounds that degrees in Business, Marketing,
Communications or Psychology may all qualify an applicant.
The H-1B visa is available to individuals who hold a four-year university degree (or its equivalent in academic course work and prior job experience) and who will be employed in a position that requires that level of education.
There are several intermediate steps to obtain the H-1B visa which precede the filing of the visa petition with the CIS Service Center. The petitioning employer must file Form ETA 9035 electronically with the U.S. Department of Labor and that form must be "certified" by DOL before the H-1B petition may be filed with CIS. This form essentially requires the employer to attest that it will be paying the H-1B worker the higher of either (a) the "actual wage" the employer pays to other individuals similarly employed with similar experience and qualifications or (b) the "prevailing wage" for that position in the geographical area of employment. The approach used by the
~ 24 ~ employer to determine both the prevailing wage and the actual wage must comply with procedures set forth in the DOL Regulations. See 20 CFR § 655.730(b)(3).
The employer must also attest that the working conditions for the H-1B worker will not adversely effect working conditions of U.S. workers, and that there is no strike, lock-out, or work stoppage on-going, that the employer has given its employees notice of the filing of the
ETA 9035 either through posting or notice to a bargaining representative (if applicable), and that the employer has provided, or will provide, a copy of the ETA 9035 to the H-1B worker. The notices must remain posted for a total of ten (10) business days.
In addition, the employer is required to make available at its offices "for public examination" a copy of the ETA 9035 and necessary supporting documentation regarding the H-
1B worker and other similarly-situated employees (known as the “public access” file). The
Department of Labor has established a complaint procedure in the event that employers fail to comply with their attestations in Form ETA 9035.
Employers hiring H-1B workers should be aware that if the foreign worker is dismissed before the end of the period of authorized stay, the employer becomes liable for the reasonable costs of return transportation of the beneficiary "abroad", defined to mean the employee's last place of foreign residence. See 8 CFR § 214.2(h)(4)(iii)(E). Arguably any dismissal is covered, including termination for cause. The only exception is when the foreign worker voluntarily terminates employment.
One significant challenge employers face in hiring H-1B workers is the annual quota
(“cap”) of new H-1B work visas. There are 65,000 new H-1Bs available each U.S. Fiscal Year, with an additional 20,000 for those holding advanced degrees from U.S. universities. Some
172,500 petitions were filed for the 85,000 available H-1B visas last year, meaning that there was
~ 25 ~ only a 50-50 chance of receiving an H-1B visa.
Certain types of employers, including colleges and universities, not-for-profits affiliated with colleges and universities, and not-for-profit research organizations are “exempt” from the annual quota.
There are special H-1B1 visas outside the quota available to nationals of Singapore and
Chile, and a parallel E-3 visa available to Australians.
B. H-2B Work Visas
The H-2B visa provides work authorization in situations of temporary need where there is a demonstrated shortage of U.S. workers. The petitioning employer can show either
(1) a one-time special occurrence leading it to require additional workers or can show (2) a seasonal or peak load need for additional workers. To obtain the H-2B visa, the employer must first obtain a prevailing wage determination from USDOL, and then list the job openings with the state Job Service and run a series of newspaper ads to attempt to fill the openings with
U.S. workers. A formal application is then submitted to USDOL, with an attestation by the employer of its recruitment efforts and its inability to locate sufficient U.S. workers.
If approved by the Department of Labor, the application is "certified" and the employer can then submit the actual H-2B visa petition to CIS.
Employers who apply to hire H-2B workers are required to pay at minimum a wage set by the USDOL.
C. H-3 Work Visas
H-3 trainee visas are available to individuals coming to the U.S. to receive training in various fields of endeavor. The foreign worker must actually receive training to be eligible for this type of work visa, as the statute specifically provides that the training program may not be
~ 26 ~ "designed primarily to provide productive employment". Nonetheless, the nature of most training programs permits certain tasks to be performed as incidental and necessary to the training. See 8 CFR § 214.2(h)(7)(ii)(A)(3).
In support of the H-3 visa petition, the prospective employer must show that the proposed training is not readily available in the foreign worker's own country, that the foreign worker will not be placed in a position in the normal operation of the business in which U.S. workers are regularly employed, that the foreign worker will not engage in productive employment unless such employment is incidental and necessary to the training, and that the training will benefit the foreign worker in pursuing a career aboard. The employer must submit a detailed written training program which describes the type of training and supervision to be given and also sets forth in some detail the proportion of time that will be devoted to productive employment.
As a general rule, CIS will not approve training programs which lack a fixed schedule, objectives, or means of evaluation, which are somehow incompatible with the nature of the employer's business or enterprise, are to be provided to a foreign worker who already possesses substantial training and expertise in the proposed field of training, when the training is in a field for which it is unlikely that the skill will be used outside the United States, or which is essentially designed to recruit and train foreign workers to staff facilities within the United States. See 8 CFR §
214.2(h)(7)(iii). The maximum validity period for an H-3 trainee visa is two years.
D. E-l Treaty Trader Visas
The E-l Treaty Trader visas permit foreign nationals to come to the U.S. to carry on substantial trade (including trade in services or trade in technology) between the United States and their home country, or to develop and direct the operations of an enterprise in which the foreign worker has invested or is actively in the process of investing, a substantial amount of capital. See 8
~ 27 ~ U.S.C. § 1101(a)(15)(E); 8 C.FR § 214.2(e). In the case of treaty traders, the trade must be
"international" and must also be "substantial". The business must not be “marginal”, meaning that a small business owner must be able to generate revenue above a level needed simply to support himself and his family. In addition, the trade must be principally between the United States and the visa holder's home country.
E. E-2 Treaty-Investor Visas
For E-2 Treaty Investor visas, the investment must similarly be "substantial." The
Regulations indicate that indebtedness secured by the assets of the business will not be considered a qualifying investment, even where the indebtedness is secured by personal assets in addition to the assets of the business. To be in the "process of investing" for E visa purposes, the funds or assets to be invested must be irrevocably committed and the alien must be close to the start of actual business operations.
Another alternative is for the foreign individual to purchase an established business, in which case a binding agreement of purchase and sale could be submitted to CIS. It is often more difficult for the foreign individual starting a new business to make the showing of irrevocable commitment of the entire qualifying investments. Goods or equipment transferred in kind can be considered part of the qualifying investment. With respect to the requirement that the investment be "substantial," the Regulations do not set forth any specific minimum dollar figure. Rather, CIS is to look at the future of the business in determining what level of investment would be necessary. As a rule of thumb, many practitioners consider an investment of less than $50,000 likely to be held insufficient. See 8 U.S.C. § 1101(a)(15)(E), 8 C.F.R. § 214.2(e).
Unlike the spouses of H visa holders, spouses of E visa holders are eligible to obtain EAD work cards and work in the United States.
~ 28 ~ F. L-l Visas
L-l intracompany transferee visas are available to persons who have worked abroad for at least one year within the preceding three years in an executive/managerial (L-lA), or specialized knowledge (L-1B) capacity for an affiliated business entity and who are being transferred temporarily to the United States to work in either an executive/managerial or specialized knowledge capacity. 8 U.S.C. § 1101(a)(15)(L).
For the L-1A visa, the term "managerial capacity" means an assignment within an organization in which the employee primarily:
1. manages the organization, or a department, subdivision, function, or
component of the organization;
2. supervises and controls the work of other supervisory, professional, or
managerial employees, or manages an essential function within the
organization, or a department or subdivision of the organization;
3. has the authority to hire and fire, or recommend those as well as other
personnel actions, if another employer or other employees are directly
supervised; or, if no other employee is directly supervised, functions at a
senior level within the organization hierarchy or with respect to the
function managed; and
4. exercises discretion over the day-to-day operations of the activity or
function for which the employee has authority. (A first-line supervisor is
not considered to be acting in a managerial capacity merely by virtue of his
or her supervisory duties unless the employees supervised are
professional)
~ 29 ~ In addition, for the L-1A visa, the term "executive capacity" means an assignment within an organization in which the employee primarily:
1. directs the management of the organization or major component or
function of the organization;
2. establishes the goals and policies of the organization, component, or
function;
3. exercises wide latitude and discretionary decision-making; and
4. receives only general supervision or direction from higher level executives,
the board of directors, or stockholders of the organization.
Staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity. The CIS is to take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. See 8 U.S.C. § 1101(a)(44).
For the L-1B visa, it must be shown that the foreign worker has “specialized knowledge”
which is defined as:
special knowledge possessed by an individual of the petitioning
organization's product, service, research, equipment, techniques,
management, or other interests, and its application in
international markets, where an advanced level of knowledge or
expertise in the organization's processes and procedures.
8 C.F.R. § 214.2(1)(1)(ii)(D).
In recent years, CIS has adopted a very narrow interpretation of what qualifies as
“specialized knowledge”. Recent statistics show that more than 30% of L-1B petitions are being
~ 30 ~ denied. The Obama administration has indicated that it plans to issue guidance to USCIS in an effort to make the L-1B visa easier to obtain.
There are special regulations which apply to persons being transferred as L-l intracompany transferees for the purposes of opening a new office. A "new office" is defined as "an organization which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year." 8 C.F.R. § 214.2(l)(l)(ii)(F), In these cases, the petitioning employer must produce additional evidence to CIS, which should include evidence of office space and a business plan and additional evidence with respect to the nature of the start-up activities.
Spouses of L-1 visa holders are eligible to obtain EAD work cards to work in the United
States.
G. O Visas
The O visa category is for highly talented or accomplished foreign nationals who often may not qualify in other work-related non-immigrant categories (such as H or L). The O-l category is for individuals of extraordinary ability in the sciences, arts, education, business or athletics. The 0-2 category is for certain aliens accompanying 0-1 aliens in the arts or athletics, (the 0-3 category provides visas for dependents of aliens in these categories.) Under the regulations, "extraordinary ability" means "a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor." Pursuant to 8 C.F.R. § 214.2(o)(3)(iii), extraordinary ability is demonstrated by showing receipt of a major, internationally recognized award, such as the Nobel Prize, or documentation of at least three of the following:
1. receipt of nationally or internationally recognized prizes/awards for
excellence in the field;
2. membership in associations in the field that require outstanding
~ 31 ~ achievement of their members, as adjudged by recognized national or
international experts;
3. published material and professional or major trade publications or major
media about the alien;
4. participation on a panel or as a judge of the work of others in the same or
allied field of specialization;
5. original scientific, scholarly or business-related contributions of major
significance;
6. authorship of scholarly articles and professional journals or other major
media;
7. current or previous employment in a critical or essential capacity for
organizations and establishments that have a distinguished reputation; or
8. past or proffered high salary or other remuneration for services,
evidenced by contracts or other reliable evidence.
8 C.F.R. § 214.2(o)(3)(ii),
The regulations also provide that if the above categories do not "readily apply" to the alien's field of endeavor, additional "comparable evidence" can be submitted. There are similar standards for artists and entertainers seeking O-l status, which relate more specifically to the arts.
H. Canadian and Mexican Business Visitors
Citizens of Canada and Mexico are permitted temporary entries as business persons under NAFTA (the North American Free Trade Agreement). These individuals must present proof of citizenship (in the case of Canadian applicants) and valid entry documents such as a
~ 32 ~ passport and visa or Mexican border crossing card (in the case of Mexican applicants). Both
Canadian and Mexican applicants must provide a description of the purpose of their entry and evidence demonstrating that they are seeking to enter under one of the categories specified by
NAFTA. Business visitors can enter under NAFTA for purposes of sales, distribution, and marketing (includes for example, market research/analysis, trade fairs, and promotional work). Also included are after-sales service and certain general service work (professionals, management, financial services, public relations, tourism personnel).
I. TN Visas
In addition to the general business category, special work visas called TN ("Treaty
NAFTA") visas are available to both Canadian and Mexican citizens whose occupations appear on the NAFTA Occupations List (Exhibit 9). These visas can be a good alternative to other work visas such as the H-1B professional work visa. Canadians are issued TNs in three-year increments shown on their I-94 arrival/departure records. Mexicans are similarly eligible for an approval for TNs in three-year increments, but are issued visas with just one year of validity at a time.
Canadian and Mexican citizens seeking to enter the United States with TN visas are prohibited from engaging in self employment. The Canadian or Mexican citizen may in fact be self employed in his or her own country, but the business activity may not be performed for a U.S. entity or corporation in the United States of which the Canadian or Mexican citizen is the sole or controlling shareholder or owner.
Only a U.S. employer can apply for a TN visa on behalf of a Mexican citizen, but either a
U.S. or foreign employer (including a non-Canadian employer petitioning on behalf of a Canadian citizen employee) may apply for a TN visa.
~ 33 ~ Canadian citizens may file their applications for TN status directly with an immigration officer either at a port of entry (border crossing) or an international airport. No prior
CIS approval is required. A Canadian TN applicant is not required to obtain a visa stamp at a
U.S. Consulate. Rather, the Canadian citizen who seeks a TN visa presents documentation establishing eligibility at the border crossing or international airport. This documentation typically includes proof of Canadian citizenship, a letter offering employment in a NAFTA-listed occupation, evidence of professional qualifications.
The procedure to obtain the TN visa is slightly more complex for Mexican nationals, as they must present this same documentation at a U.S. Consulate in Mexico.
Spouses and unmarried minor children of TN visa holders may obtain TD visas. TD visa holders are not eligible to work in the U.S.
J. B-1 "Business Visitor" Visas
B-1 business visitors are admitted for the purpose of engaging in business, but not for the purpose of being employed. The term "business" as used in INA § 101(a)(15)(B) refers to
"conventions, conferences, consultations and other legitimate activities of a commercial or professional nature. It does not include local employment or labor for hire." As a general rule, in order to obtain a B-1 business visitor visa, the individual must intend to maintain a foreign residence, must be entering the United States for a period of specifically limited duration, and must be seeking admission solely to engage in legitimate activities relating to business.
In determining whether to issue the visa, consular officials will ask whether the applicant has made arrangements such that adequate funds are available to avoid his or her unlawful employment in the United States. The visitor must present specific and realistic plans for the entire period of the visit, and must establish with reasonable certainty that departure from the United States will take
~ 34 ~ place upon the completion of the temporary visit (in other words, include information regarding the time projected for the visit which must be consistent with its stated purpose).
The consular officials also look to see if the applicant has demonstrated sufficient ties to his home country (such as permanent employment, meaningful business or family connections, close family ties, or other commitments which demonstrate a strong inducement to return from abroad). The applicant's prior immigration history will be considered by the consular officer in deciding whether to issue the requested visa.
As a general rule, a B-1 visitor visa is granted for an individual to engage in commercial transactions which do not involve gainful employment in the United States; to negotiate contracts; to consult with business associates; to participate in litigation; to participate in scientific, educational, professional, or business conventions, conferences, or seminars; or to undertake independent research.
In addition, B-l visas may be granted to commercial or industrial workers coming to the
United States to install, service or repair commercial or industrial equipment or machinery purchased from a company outside the United States, or to train U.S. workers to perform such services. Please note that in such cases, it is usually required that the contract of sale specifically require the seller to provide such services or training, and that the B-l visa applicant possess specialized knowledge essential to the seller's contractual obligation to perform the services or training, and the individuals must receive no remunerations from a U.S. source for their services.
B-l visitors are also available to various members of religious, charitable and voluntary service organizations and programs. They may also be issued to members of board of directors of
U.S. corporations attending the meeting of the board or performing other functions derivative of board membership.
~ 35 ~ 3177612.1
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» featured » EXPOSED: The devastating experiences that many transgender immigrants face…
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EXPOSED: The devastating experiences that many transgender immigrants face…
F. Bermudez 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 Avery Edison 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.
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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.
Download (PDF, 195KB) Page 1 of 10
December 12, 2013
The Honorable Robert Goodlatte Chairman House Committee on the Judiciary 2309 Rayburn House Office Building Washington, D.C. 20515
The Honorable John Conyers, Jr. Ranking Member House Committee on the Judiciary 2426 Rayburn House Office Building Washington, D.C. 20515
Dear Chairman Goodlatte and Ranking Member Conyers:
We, the undersigned 118 legal experts and organizations including civil rights, human rights, and faith- based organizations and non-profit legal service providers, respectfully write to discourage new restrictions to the asylum system. Our organizations include experts and practitioners in asylum and immigration law with experience representing arriving asylum seekers, including survivors of torture, rape, sexual assault and other forms of religious, political, and other persecution.
For decades, the United States has served as a refuge for individuals fleeing persecution on account of their race, religion, nationality, political opinion, or social group. American values reflect a moral duty to ensure the well-being of those seeking refuge in our country, and legal obligations under domestic and international law require protecting refugees who reach our borders. The bi-partisan Refugee Act of 1980 enshrined into domestic law our legal commitment to sheltering the persecuted, a commitment that we have repeatedly renewed in legislation to protect victims of torture.
The “credible fear” process is in many cases the only mechanism that stands between an arriving asylum seeker and immediate deportation. As part of the 1996 immigration laws, Congress created an “expedited removal” provision that allows for the summary deportation of those who, like many asylum seekers, arrive at our borders without valid entry documents. At the same time, Congress created the credible fear process as a safeguard to this process in order to try to protect those fleeing torture or persecution from being immediately deported. Under the credible fear process, U.S. Customs and Border Protection officials must refer a migrant who expresses a fear of persecution or torture to U.S. Citizenship and Immigration Services (USCIS), which determines whether that person’s fear is
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. Download (PDF, 103KB)
Page 1 of 4
Chairman Adrian Andrade Commissioner Rodger Brown Commissioner Robert Dickerson Commissioner Fred Quigley Commissioner Etta Waterfield City of Santa Maria Planning Commission City Clerk’s Office 110 East Cook Street, Room 3 Santa Maria, CA 93454
CC: Assistant City Attorney, Phillip Sinco
February 4, 2014
Dear Chairman Adrian Andrade and the City of Santa Maria Planning Commission:
We, the undersigned non-governmental civil rights, civil liberties, human rights, legal services, community-based and faith-based organizations, and individuals, write to urge you not to approve the developer’s permit to build a 12,700-square-foot office building to house an immigration facility for U.S. Immigration and Customs Enforcement (ICE).
In initial conversations with the Los Angeles Field Office of U.S. Immigration and Customs Enforcement (ICE), ICE described the new building as a “service processing center,” a “staging center,” and a “holding center.” After hundreds of community members filled the Santa Maria City Council chamber on January 21, 2014,1 the latest information we have received from ICE is that ICE is seeking to relocate the existing ERO personnel, who are working in temporary office space at the Federal Correctional Complex in Lompoc, to permanent office space in nearby Santa Maria. The new location will have secure space for interviewing and holding for up to 12 hours individuals who are coming into ICE custody following their release from area jails or prisons. According to ICE, it will not have overnight holding or bed space. However, as detailed in the planned development permit, the facility will have barbed wire on the perimeter fence and a six- foot-high security fence.2
Whether ICE’s presence takes the form of an office building, a short-term holding facility, or a long-term immigration detention facility, we oppose the increased presence of ICE in the City of Santa Maria. For your information, we have included an overview of the U.S. immigration detention system and an overview of how the community views ICE’s increased presence in Santa Maria:
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).
TRUST Act: 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:
Attend the 2014 Transgender Leadership Summit!
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.
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about | blog | get help | issues | events español| facebook | donate PAYOFFHow Congress Ensures Immigrant Detention Quota
April 2015 PAYOFF: with an Immigrant Detention Quota
April 2015
By: Bethany Carson and Eleana Diaz
Design & Layout: Catherine Cunningham
Grassroots Leadership would like to give special thanks to those who have been instrumental in the creation of this report: For their bravery in sharing their stories and dedication to working on behalf of those still caught in the immigration detention system: Solomon, Marichuy Leal, Muhammad Nazry (Naz) Mustakim, Hope Mustakim, and Henry Taracena. For their support in shaping and envisioning the report, researching and editing multiple drafts, providing frst-hand information, contributing images and graphics, and making valuable connections: Raul Alcaraz, Barbara Hines, Bob Libal, Jennifer Long, Christina Mansfeld, Aurea Martinez, Cristina Parker, Abraham Paulos, Carly Perez, Silky Shah, Mary Small, Stephanie Taylor, Olga Tomchin, Maru Mora Villalpando, and Carol Wu.
Cover photo: A sign that reads “End the Quota” was held in front of the U.S. Customs and Border Patrol Ofce in Washington, D.C. at a May 2014 protest to end the immigrant detention quota. Photo by Cristina Parker. EXECUTIVE SUMMARY In 2009, in the midst of a multi-year decline in the undocumented immigrant population,1 Senator Robert Byrd (D-WV), then Chairman of the Appropriations Subcommittee on Homeland Security, inserted the following language regarding Immigration and Customs Enforcement’s (ICE) detention budget into the Department of Homeland Security Appropriations Act of 2010: “…funding made available under this heading shall maintain a level of not less than 33,400 detention beds.” 2 This directive established what would become a controversial policy interpreted by ICE as a mandate to contract for and fll 33,400 (increased in 2013 to 34,000)3 detention beds on a daily basis. The directive would come to be known as the “immigrant detention quota” or “bed mandate.” The immigration detention quota is unprecedented; no other law enforcement agency operates under a detention quota mandated by Congress. Since its implementation, the quota has become a driver of an increasingly aggressive immigration enforcement strategy. The immigrant detention system has expanded signifcantly since the implementation of the quota, and the percent of the detained population held in private facilities has increased even more dramatically. Two major private prison corporations have emerged as the main corporate benefciaries of immigrant detention policies: Corrections Corporation of America (CCA) and GEO Group. This report provides an in-depth assessment of the inception and implementation of the quota, with a specifc focus on the role played by for-proft, private prison corporations. These companies have profted handsomely from the artifcial stability provided by the quota while contributing millions of dollars in federal lobbying expenditures and in campaign contributions to ensure their interests are met. This report also features testimony from people directly impacted by detention and deportation, revealing the momentous human cost of the quota.
KEY FINDINGS: 1. Private prison corporations have increased their share of the immigrant detention industry. Since just before the onset of the quota, the private prison industry has increased its share of immigrant detention beds by 13 percent. Sixty-two percent of4 all ICE immigration detention beds in the United States are now operated by for-proft prison corporations, up from 49 percent in 2009.5 Nine of the ten largest ICE detention centers are private.6 This is particularly noteworthy in light of the expansion of the entire ICE detention system by nearly 47 percent in the last decade.7 2. Private prison corporations lobby on immigration and immigrant detention issues that afect their bottom line. Contrary to private prison corporation claims that they do not lobby on issues related to immigration policy, between 2008 and 2014, CCA spent $10,560,000 in quarters where they lobbied on issues related to immigrant detention and immigration reform.8,a Of that amount, CCA spent $9,760,000, — 61 percent of total private prison lobbying expenditures — in quarters where they directly lobbied the DHS Appropriations Subcommittee,9,b which maintains the immigrant detention quota language and shapes the way in which it is interpreted. Lobbying disclosure forms
PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 | Page 3 reveal spending on: “Issues related to comprehensive immigration reform” (GEO Group, 2013), and “FY 2014 and FY 2015 Department of Homeland Security appropriations - provisions related to privately-operated ICE detention facilities” (CCA, 2014).10 Since 2010, CCA has spent at least 75 percent of its lobbying expenditures in quarters where it has lobbied directly on the DHS Appropriations Subcommittee.11 Though GEO Group has not directly lobbied the DHS Appropriations Subcommittee, the company recently began lobbying on immigration and immigrant detention issues, spending $460,000 between 2011 and 2014 in quarters when they lobbied on these issues.12 3. Two private prison corporations — CCA and GEO Group — dominate the immigration detention industry. Together, they operate eight of the ten largest immigrant detention centers. GEO and CCA combined operate 72 percent of the privately contracted ICE immigrant detention beds.13 In the years following the implementation of the immigrant detention quota, CCA and GEO expanded their share of the total ICE immigrant detention system from 37 percent in 2010 to 45 percent in 2014.14 GEO Group in particular has increased its share of the total ICE immigrant detention system to 25 percent in FY14 from 15 percent in FY10.15 Both companies have signifcantly augmented their profts since the implementation of the quota, CCA from $133,373,00016 in 2007 to $195,022,000 in 2014.17 GEO experienced an even more dramatic proft increase from $41,845,000 in 200718 to $143,840,000 in 2014, a 244 percent increase.19 4. CCA and GEO have recently expanded their immigrant detention capacity, including new contracts for detaining asylum-seeking families. Since FY2014, the most recent numbers released by ICE, both CCA and GEO have expanded their capacity for detaining women and children in new family detention centersc in South Texas.d The CCA-operated South Texas Family Residential Center in Dilley opened in December 2014 and currently holds about 480 women and children. It is under expansion to grow to an expected capacity of 2,400 by May 2015. If this expansion proceeds, Dilley will be the largest immigrant detention center in the U.S.20 The GEO-run Karnes County Residential Center opened in June 2014 and now holds around 600 women and children, but will expand to a capacity of 1,200.21 Additionally, in January 2015, GEO acquired LCS Corrections, which owns several large immigrant detention facilities in Texas and Louisiana, further increasing its share of the immigrant detention business.22 RECOMMENDATIONS: 1. Congress should eliminate the immigrant detention quota from its 2016 appropriations request. 2. ICE should reduce reliance on for-proft prison contractors. Congress should increase oversight within the contracting system and launch a system-wide review of the contracted prisons and their related intergovernmental service agreements. 3. ICE should end contracts at facilities with a record of abuse and penalize contractors found to have multiple incidents of abuse or mismanagement in their facilities. 4. Congress and the Administration should prioritize policies that expand the use of non-punitive, community- supported alternative to detention (ATD) programs. However, these measures must be used in place of current detention capacity, not in addition to it. The intent of any ATD program should be to reduce the population in immigration detention, with the ultimate goal of eliminating the immigration detention system entirely.
4 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 ORIGINS OF THE IMMIGRANT DETENTION QUOTA The inclusion of the immigrant detention quota in the Department of Homeland Security Appropriations Act of 2010 did not arise from an evident and pressing public need, but rather from political eforts aimed at increasing the number of immigrant detention beds. From 2000 to 2006, the average daily population (ADP) of immigrants in detention was relatively stable remaining around 20,000.23 (This was still a dramatic increase from the mid-90’s when the immigrant detention population was around 7,000.24) In 2004, the Intelligence Reform and Terrorism Prevention Act directed ICE to increase the number of beds by at least 8,000 each year from fscal years 2006 to 2010,25 though few of those beds were ever allocated.26 Chairman of the House Appropriations Committee Rep. Harold Rogers said in a 2006 meeting that he wanted “no empty beds,”27 and in the following year, the Department of Homeland Security Appropriations Act provided funding for an additional 6,700 beds, bringing the total to 27,500.28,29 Chairman of the Appropriations Subcommittee on Homeland Security Sen. Robert Byrd — whose political career began when he was appointed Exalted Cyclops within the Ku Klux Klan30 — was a longtime supporter of detention for undocumented immigrants and had often linked immigration to terrorism and even the destruction of the environment in his speeches.31 However, not much is known of Byrd’s exact thought process around the creation of the immigrant detention quota. He died shortly after it was established, and because it was quietly slipped into the DHS Appropriations Act of 2010 and not introduced as a piece of legislation, no public debate on the issue was held. Despite this, a former aide of Byrd’s divulged that the Senator was intent on using the quota to ensure that cost increases would not lead ICE to decrease the number of detention beds.32 Since 2010, the immigrant detention quota has become a driver of an increasingly aggressive immigration enforcement strategy. Unrelated to any change in immigration trends, the quota was raised from 33,400 to 34,000 in February of 2012.33 Additionally, under the Obama Administration the number of arrests and deportations has climbed to a record high averaging more than 380,000 per year34 and more than 2 million total since he took ofce.35 Subsequent eforts to strike the quota have proved unfruitful.36 Though the immigrant detention quota was bracketed in the Administration’s 2015 budget, indicating that it was recommended for removal, Congress did not eliminate the quota or reduce funding for bed space.37 While the Obama Administration remains opposed to the mechanism of the quota, its recently-released 2016 budget requests an increase of bed space to 34,040.
INCREASING PRIVATIZATION IN A GROWING IMMIGRANT DETENTION INDUSTRY As the number of detained immigrants increases, the share of immigrant detention beds granted to private prison corporations is also growing rapidly. In 2004, the ADP in ICE authorized immigrant detention facilities (both publicly and privately run) was 21,928.38 In the last decade, the immigrant detention system has grown by 47 percent to detain 32,163 immigrants per day in fscal year 2014.39 The percentage of immigrants detained in private prisons has risen even more dramatically. In 2009, just 49 percent40 of beds were privately run; today 62 percent of immigrant detention bed space is in private facilities — a 13 percentage point increase in just 5 years.41 Chart 1-A shows the growth of the overall number of immigrants detained in ICE-authorized facilities. Chart 1-AA displays the even steeper increase in privatization. Chart 1-A Chart 1-AA
Both ADP and privatization are divided unevenly between states. Chart 1-B shows the percentage of 2014 ICE ADP in each of the 10 states with the greatest ADP.42 Thirty percent of the ICE ADP is located in one state alone: Texas.43 Chart 1-C shows states with high levels of privatization among those with the 10 highest ADP’s.44 It’s worth noting that while Texas is about 20 percent less privatized than Washington or Georgia, it has the highest absolute number of private detention beds in the nation. At 7,602 private beds for immigrant detainees, Texas has 39 percent of all private detention beds in the country.45
Chart 1-B Chart 1-C
Currently, the cost of detention is roughly $160 per day per detainee, $5 million per day total, and $2 billion per year.46 Private prison corporations market their services on a platform of reducing these government costs. CCA, the nation’s largest private prison company, claims in a recent investor presentation, that it saves
6 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 the government 12 percent compared to government-run facilities.47 However, the company’s own footnote acknowledges that this statistic comes from a Temple University Center for Competitive Government study that “received funding by the private correctional industry.”48 Despite private prison claims, former ICE Executive Associate Director for Enforcement and Removal Operations, Gary Mead, admitted in 2012 that the government has not conducted internal research to determine the validity of private prison claims of running cheaper facilities. He added that, “…[private detention centers] are not our most expensive, they are not our cheapest [facilities].”49 Recent studies have cast doubt on the cost efectiveness of private prisons,50 along with the revelation that savings are often artifcially augmented by delegating labor to detainees who are paid $1 per day, rather than the minimum hourly wage that would be required for any other worker to complete the same task.51 Privately run detention centers also regularly implement cost-cutting measures on food, medical care, labor (in the form of wages, benefts, and training), and facilities. These bottom-line focused tactics result in inhumane and sometimes lethal conditions.52 Even though corporate claims of cost savings have not been corroborated, private prison corporations have enjoyed a 13 percentage point increase in their market share of immigrant detention from 2009 to 2014. This is particularly striking as the size of the industry has increased by 47 percent from 2004 to 2014.53 Chart 1-D below illustrates the ratio of beds held by the private prison industry as of fscal year 2014.55 Chart 1-D e,f
Chart 1-E shows the top 10 largest immigrant detention facilities in the nation, and the corporations that run them.56 Nine of the 10 are privately run, and all but two of these 10 detention centers are run by one of the two largest private prison corporations: Corrections Corporation of America or GEO Group.57 Chart 1-E Facility Location Company FY14 ADP 1 South Texas Detention Complex Pearsall, TX GEO 1722 2 Stewart Detention Center Lumpkin, GA CCA 1619 3 Eloy Federal Contract Facility Eloy, AZ CCA 1483 4 Northwest Detention Center Tacoma, WA GEO 1400 5 Adelanto Correctional Facility Adelanto, CA GEO 1209 6 Jena/LaSalle Detention Facility Jena, LA GEO 1033 7 Port Isabel Los Fresnos, TX Public 992 8 Joe Corley Detention Facility Conroe, TX GEO 958 9 Houston Contract Detention Facility Houston, TX CCA 942 10 Otero County Processing Center Chapparal, NM MTC58 845
In total, CCA and GEO each currently run 12 ICE-contracted facilities.59 The pie chart below (1-F) shows the market share of the immigrant detention industry operated by each private prison company.60 CCA and GEO together operate 72 percent of the private immigrant detention industry.61 This means that CCA and GEO combined detain 14,149 immigrants per day, or 45 percent of the entire ICE immigrant detention capacity in FY14, increased from 37 percent in FY10.62 GEO Group in particular has increased its share of the total immigrant detention system to 25 percent in FY14 from 15 percent in FY10.63 In January 2015, GEO acquired LCS Corrections, which operates several large immigrant detention facilities in Texas and Louisiana, further increasing its share of the immigrant detention business.64 Additionally, both CCA and GEO have won contracts for, or expanded, new family detention centers in South Texas recently opened by the Obama Administration in response to the arrival of Central American families seeking asylum at our southern border in summer 2014. The CCA-operated South Texas Family Residential Center in Dilley opened December 2014 and currently holds about 480 people and is under expansion to an expected capacity of 2,400 by May 2015.65 If this expansion proceeds, Dilley will be the largest immigrant detention center in the nation.66 The GEO-run Karnes County Residential Center opened in June 2014 now holds around 600 women and children, and the county voted in December 2014 to allow the facility to expand to a capacity of 1,200.67 GEO’s acquisition of LCS and the new CCA and expanded GEO family detention facilities are not refected in the charts below or average daily population calculations in this report as they are not included in the fscal year 2014 data reported by ICE. Therefore, the numbers in this report actually understate the current percentage of privatization, as well as the percent of GEO and CCA expansion, in the immigrant detention system. Chart 1-F
This expansion of private prison corporations further into immigrant detention has led to record profts. Both companies have signifcantly augmented their net revenue since the implementation of the quota, CCA from $133,373,00068 in 2007 to $195,022,000 in 2014.69 GEO experienced an even more dramatic proft increase from $41,845,00070 in 2007 to $143,840,000 in 2014, a 244 percent increase.71 Furthermore, private prison corporations have an incentive to push for every bed to be full; according to a 2014 CCA investor presentation, “flling vacant beds would add ≈ $1.00 to [Earnings Per Share] & [Adjusted Funds From Operations] per share.”72
8 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 CCA Stock Prices GEO Stock Prices
Above are graphs of CCA and GEO stock prices from 2010 through February 2015. CCA stock is up 21.56 percent in the past year and GEO stock is up 36.95 percent.73 The industry is confdent in its further growth despite recent criminal justice reforms — largely due to increasing demand for immigrant detention. As the President and CEO of CCA explained in a call for investors, “I think… there’s always going to be a demand for [immigration detention] beds. There is always going to be a strong demand regardless of what is being done at the national level as far as immigration reform.”74 In the case of GEO, their positive outlook is so strong that they expect to fll the new facilities they recently acquired through their acquisition of LCS, which have an average occupancy rate of 50 percent.75 George C. Zoley, Chairman and Chief Executive Ofcer of GEO, said about the acquisition: “The recently announced reactivation of a signifcant portion of our beds in inventory is indicative of the growing need for beds around the country, and this important strategic transaction will further position GEO to meet the demand for correctional and detention bed space in the United States.”76 Though some might call such confdence in a dramatic increase of population foolhardy, private estimates suggest that the private prison industry will acquire 80 percent of any future immigrant detention bed increases.77
MEET THE TWO LARGEST PRIVATE PRISON CORPORATIONS: CCA AND GEO GROUP The two largest (and publicly traded) private prison corporations, Corrections Corporation of America (CCA) and GEO Group, have a long-standing stake in the detention of immigrants. According to Tom Beasley, who founded CCA, the nation’s oldest and largest for-proft prison corporation, in 1983 alongside T. Don Hutto and Doctor Robert Crants, CCA was established on the idea that prisons could be sold “just like you were selling cars, or real estate, or hamburgers.”78 In fact, CCA’s frst venture upon its establishment was an immigrant detention center in Houston called the Houston Processing Center (HPC). According to a CCA spokesperson interviewed by Deportation Nation, the frst iteration of the HPC was in the remains of a shuttered local motel, where CCA held immigrants in detention while it built a new facility.79 The company has since grown into a billion-dollar, publicly traded corporation that uses its profts to lobby and contribute to campaigns that would beneft its business.80 GEO Group has employed similar strategies since its inception in 1984. The company, then CCA was called Wackenhut Corrections Corporation, secured its frst prison contract to detain 150 immigrants for the Immigration and Naturalization Service (now established on Immigration and Customs Enforcement) at what is now the Aurora Processing Center in Colorado.81 Between 2008 — just prior to the quota’s creation and right the idea that as new government regulations began to require lobbyists to divulge specifc prisons could be issue areas82 — and 2014, private prison companies spent $16,789,000 on federal lobbying.83 Of this, CCA and GEO spent the lion’s share with a combined total of sold “just like you $16,055,000.84 In this time the industry also supplied over $132,000 in campaign contributions to members of Congress on the Appropriations Subcommittee were selling cars, on Homeland Security, the birthplace and point of control for the immigrant or real estate, or detention quota.85 The shrewdly targeted campaign contributions have been documented and analyzed at length by multiple sources86,87 and indicate that hamburgers.” private prison companies are focusing eforts on swaying Congress members with clout on immigration issues and in the Appropriations Committee. A prime example of the close relationship between legislators and the private prison industry is illustrated by the drafting of Arizona’s controversial S.B. 1070 bill. S.B. 1070 was an attempt to create new classes of state crimes related to immigration and immigration status, including state felonies.88 By the time S.B. 1070 made it to the foor, 30 out of the bill’s 36 co-sponsors had received campaign contributions from private prison companies as well as private prison lobbyists.89 When Governor Jan Brewer signed it into law she did so after receiving substantial campaign contributions from CCA executives and hiring former CCA lobbyists as her top aides.90 Lawmakers also inserted this concession to the prison industry: “[S.B. 1070] stipulates that a person is not eligible for suspension or commutation of sentence or release on any basis until the sentence imposed is served.”91 An S.B. 1070 fact sheet created by the Arizona state Senate admitted, “The fscal impact is unknown; however, there may be additional costs associated with criminal prosecution and detention of persons who are accused and convicted of the crimes established in this legislation.”92 Evidently, CCA felt that these “additional costs” presented an opportunity well worth pursuing.
10 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 LOBBYING: PRIVATE PRISON CORPORATIONS’ SHADY BUT LUCRATIVE “INVESTMENTS” Private prison corporations have long claimed that they do not lobby on immigration policy that afects their business. GEO states in its annual 10-K report required by the Securities and Exchange Commission (SEC) that it “has never taken a position on incarceration or immigrant detention policies”93 and tells the public that it “has never directly or indirectly lobbied to infuence immigration policy,” has “not discussed any The quota immigration reform related matters with any members of Congress,” and “will not participate in the current immigration reform debate.” 94 CCA asserts that “our policy prohibits us from engaging in lobbying or advocacy eforts that would infuence enforcement eforts, parole standards, criminal laws, and sentencing policies.”95 stability for these However, these same corporations have spent over $13 million on federal lobbying companies at between 2008 and 2014. In the words of immigrant advocate Peter Cervantes- Gautschi, “that’s a lot of money to listen quietly.”96 Private prison corporations’ taxpayer expense, own documents undermine their argument that they do not lobby or otherwise advocate for increased numbers of people in their detention centers. In 2011, a a particularly lobbyist for Immigration Centers of America-Farmville, a private prison corporation, attractive wrote in a lobbying disclosure report that they “assisted Immigration Centers of America-Farmville to reach maximum inmate capacity.” “insurance policy” Furthermore, both CCA and GEO Group list immigration reform and other against the risks liberalization eforts as threats to their business outlooks in documents fled with the SEC. In its annual 10-K report released in February 2015, CCA admits that “We posed to their depend on a limited number of governmental customers for a signifcant portion of our revenues. We currently derive, and expect to continue to derive, a signifcant business by the portion of our revenues from a limited number of governmental agencies. The prospect of federal loss of, or a signifcant decrease in, business from the [Bureau of Prisons (BOP)], ICE, [U.S. Marshals Service (USMS)], or various state agencies could seriously immigration harm our fnancial condition and results of operations. The three primary federal governmental agencies with correctional and detention responsibilities, the BOP, reform. ICE, and USMS, accounted for 44% of our total revenues for the fscal year ended December 31, 2014 ($724.2 million).”97 GEO also stated in their 10-K report that “Immigration reform laws which are currently a focus for legislators and politicians at the federal, state and local level also could materially adversely impact us.” 98 This reveals a substantial proft motive to lobby not only for an increase in privatization, but also for the maintenance and increase in size of the overall immigrant detention system — including the immigrant detention quota. In fact, the quota creates artifcial stability for these companies at taxpayer expense, a particularly attractive “insurance policy” against the risks posed to their business by the prospect of federal immigration reform. This could explain why since the quota’s implementation, the industry has spent 61 percent of its total lobbying expenses in quarters when it lobbied on the DHS Appropriations Subcommittee, the birthplace and point of control for the quota.99 Substantiating these speculations on private prison industry proft incentives for lobbying, CCA and GEO Group have fled lobbying disclosure documents indicating that they lobby directly on issues related to immigration detention appropriations and immigration reform legislation. Between 2008 and 2014, the following phrases appear repeatedly in CCA and GEO lobbying documents: “Issues related to comprehensive immigration reform” (GEO Group, 2013), “Issues relating to housing of ICE prison inmatesg and transportation
of federal prisoners to be deported along the border region of Texas, New Mexico, Arizona and California” (GEO Group, 2014), “Issues and funding related to the Department of Homeland Security and Immigration and Customs Enforcement” (CCA, 2009), “FY 2014 and FY 2015 Department of Homeland Security appropriations — provisions related to privately-operated ICE detention facilities” (CCA, 2014).100 These documents reveal considerable expenditures on “That’s a lot of the DHS Appropriations Subcommittee as well as on immigrant detention and immigration issues as a whole. money to listen Below are charts illustrating the extent of this lobbying. Chart 2-A examines the quietly.” lobbying practices of CCA, the largest private prison company and the one that has historically been most active in lobbying and in directing funds specifcally toward lobbying the DHS Appropriations Subcommittee. The frst line series documents the total amount of money spent on lobbying by CCA each year ($13,635,000 total from 2008 to 2014).101 The second line series demonstrates the amount of money spent in quarters where CCA specifcally lobbied the DHS Appropriations Subcommittee ($9,760,000 from 2008 to 2014).102 The third line series illustrates the total amount spent in quarters where CCA lobbied on immigration or immigrant detention issues, including but not limited to lobbying the DHS Appropriations Subcommittee ($10,560,000 from 2008 to 2014).103 Lobbying directed at alternatives to detention (ankle bracelet monitoring and regular check-ins with law enforcement) has been excluded from all calculations of immigration lobbying for the purposes of more accurately tracking detention, although GEO does have a direct proft incentive in alternatives to detention through its subsidiary BI Technologies. Additionally, vaguely defned lobbying issues referencing detention (ex. Issues pertaining to the construction and management of privately-operated prisons and detention facilities) have been excluded. Lobbying is disclosed quarterly and spending is not broken out by issue, though specifc issues are listed on each disclosure form. Therefore, for both the second line series (DHS appropriations lobbying) and third line series (immigration issues lobbying), a substantial but unknown portion of CCA’s lobbying expenditures were used for DHS appropriations and immigration lobbying, respectively. Additionally, Chart 2-B shows that CCA spent an incredible percentage of its overall lobbying resources on immigration-related issues, including specifcally targeting the DHS appropriations process. Since 2010, CCA has spent at least 75 percent of its lobbying expenditures in quarters where it has directly lobbied the DHS Appropriations Subcommittee.104 Overall, from 2008-2014, the corporation has spent 77 percent of its lobbying resources in quarters when it lobbied on immigration issues.105 In 2011 alone, CCA spent $1,940,000 — 97 percent of its total lobbying — in quarters when it lobbied on immigration issues, including $1,660,000 in quarters where it lobbied on DHS appropriations.106 Chart 2-Ah
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12 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 Chart 2-B h
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Chart 2-C documents the total amount of money spent by CCA and GEO Group in quarters when they lobbied on immigration issues between 2008 and 2014 and in quarters when they lobbied the DHS Appropriations Subcommittee. Together, these corporations have spent $11,020,000 in quarters when they lobbied on immigration issues from 2008-2014, 98 percent of all private prison corporations’ lobbying on immigration.107 Additionally, they have spent 69 percent of their total lobbying resources in quarters when they lobbied on immigration issues, and 61 percent in quarters where they lobbied on DHS appropriations.108 In fact, an incredible 58 percent of the $16,789,000 private prison lobbying from 2008- 2014 occurred in quarters when they lobbied on the DHS Appropriations Subcommittee.109 Chart 2-C h
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Chart 2-D shows the top lobbyists paid by private prison corporations by the total dollar amount lobbied between 2007-2014. Chart 2-D: Top 10 Private Prison Lobbyists, 2007-2014110 Lobbying Corporation Private Prison Corporation Total Amount Paid (2007-2014) CCA - Bart VerHulst & Jeremy Wiley CCA $9,840,000 Mc Bee Strategic Consulting, LLC CCA $2,270,000 Akin Gump Strauss Hauer & Feld, LLP CCA $2,130,000 Mehlman Castagnetti Rosen Bingel & Thomas, Inc. CCA $1,240,000 Lionel “Leo” Aguirre CCA & GEO $1,200,000 Podesta Group, Inc.* CCA & GEO $680,000 Sisco Consulting, LLC* CCA $670,000 Navigators Global, LLC GEO $610,000 Ridge Policy Group GEO $200,000 Public Policy Partners* GEO $160,000 *Not currently lobbying for either GEO or CCA
Both CCA and GEO Group have employed an impressive and bipartisan array of lobbyists. CCA has relied most heavily on in-house lobbying team Bart VerHulst & Jeremy Wiley. The company also employs high- powered frms including McBee Strategic Consulting, Akin Gump Strauss Hauer & Feld, and Mehlman Castaganetti Rosen Bingel & Thomas. GEO’s current lobbyists include Lionel “Leo” Aguirre, Navigators Global LLC, and the Ridge Policy Group, named for and headed by former DHS Secretary Tom Ridge. These choices refect a practice of hiring people with infuence in federal agencies related to immigrant detention. GEO’s most consistent lobbyist is Aguirre, a Texan who has been on the company’s payroll since at least 2008 and also lobbies on behalf of GEO in his home state. He is the widower of Lena Guerrero, a three-term Texas state representative and the frst Latina chair of the Texas Railroad Commission, the powerful agency in charge of regulating the oil and gas industry. Lionel himself was an executive in the state comptroller’s ofce before moving into the private sector.111 The Ridge Policy Group is headed by Tom Ridge, the frst head of the Department of Homeland Security, the agency responsible for the contract with GEO to detain families in Karnes City, as well as its 11 other immigrant detention facilities.112 Taken as a whole, lobbying data from private prison corporations along with their own statements about profts and risk factors demonstrate a clear intent to maintain the immigrant detention quota and avoid any policies that would cause a signifcant decrease in immigrant detention. Immigrants in detention have become one of the fastest growing segments of the incarcerated population.113 Immigrant detention in ICE facilities alone accounts for 13 percent of total revenue for CCA and 15.6 percent of revenue for GEO.114,115 The role the quota has played in artifcially stabilizing these corporations’ revenue from federal immigration enforcement has helped them to double in value since 2010, at the expense of taxpayers, detained immigrants, their families, and communities.116 Undoubtedly, the existence of the quota plays a large part in the corporations’ confdence expressed to shareholders that profts from immigrant detention facilities will continue. As the CCA President and CEO put it: “There is always going to be a strong demand [for immigrant detention beds] regardless of what is being done at the national level as far as immigration reform.”117 The exorbitant expenses private prison corporations feel obligated to spend to convince lawmakers to maintain such high levels of immigrant detention, the overt racism of the legislators who frst dreamed up the quota, and the unprecedented nature of a congressionally mandated law enforcement quota seriously call into question both its necessity and morality.
14 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 HUMAN COST While the non-monetary efects of the quota may be mere externalities to private prison corporations, this policy has concrete human costs to people who don’t have the power or resources to buy the ears of legislators. Since its implementation, this arbitrary quota has created headaches and heartaches for those detained, their families and communities, and even DHS and ICE (by their own admission).118 Each day thousands of families are separated While the non- by ICE.119 The following testimonies from people who have experienced detention frst-hand show the harm that is done by the immigrant detention quota, and the monetary effects i system of immigrant detention as a whole. of the quota MARICHUY LEAL may be mere Detained 9 months in CCA-run Eloy Detention Center in Arizona externalities to Marichuy was brought to the U.S. from Sinaloa, Mexico when she was 6 years old and grew up in Phoenix, Arizona. In her youth, she was sentenced to a year private prison in Arizona State Prison in Yuma for drug charges. “I was going through a lot corporations, of problems with my family because they wouldn’t accept me for who I am, a trans woman,” Marichuy said. After serving a year in prison, she was deported this policy has to Mexico because of her immigration status. concrete human After being deported, Marichuy was tortured in Nogales, Mexico because of her identity as a transgender woman. She was stabbed and has a scar on her costs to people head where she was attacked. She fed to Agua Prieta, Mexico but her attackers were following her so she presented herself at the Douglas, Arizona border to who don’t have seek asylum in the U.S. Rather than encountering safety, she was immediately the power or sent to the CCA-operated Eloy Detention Center in May 2013 where she was placed in a unit with 250 men. She was repeatedly called “faggot” by the resources to men she was detained with, which the guards ignored. There was no privacy for showers, and Marichuy recounts that the guards and other detained buy the ears of men would watch the trans women while they showered. She and other legislators. transgender women would try to put up a curtain when they showered so the guards and other men wouldn’t be able to see them, but they were written up for doing so. Marichuy says that she was repeatedly sexually harassed by the man who was her “cell mate.” She remembers that when she told her unit manager about the harassment, he said that she would just have to deal with it because they didn’t have any open cells. When she talked back to the unit manager, resisting this decision, they put her in segregation for two days as punishment. After she was released from segregation, she was returned to her cell with the same man who she had complained had harassed her. The night she returned to the cell, she says, the man raped and beat her in retaliation for her complaining to the Marichuy, on left, leads a march to free Nicoll, another transgender guards. The guards took her to the hospital, then woman in immigrant detention.
returned her to segregation for a week. Afterwards, Marichuy faced bullying from the guards and other detainees, who would tease her about her rape, saying “you know you liked it.” “The hardest part was… the bullying,” Marichuy said. “It was simply horrible. Every time they would tell me I would run to my room and cry.” “They put me in segregation punishing me,” Marichuy said. She said that what ICE ofcials call “protective custody” is really solitary confnement. She “ describes segregation as a place “where they keep you 24/7 locked up in a cell. My torture in They only take you out for an hour to shower and when they pull you out to Mexico didn’t shower they handcuf you. When you walk out of the cell there’s a little window, you put your hand up there before they open the door and they handcuf you [it]kept and they take you to the shower. There are some cages, you put your hand out, they take the handcufs, you shower...again handcufs, and then back to your going in the cell.” detention center There was a time during detention when she attempted to commit suicide. “[There are] a lot of psychological problems you sufer like depression for all the where supposedly punishment they do in there. When you’re being punished and discriminated I was going to be in there you can’t do nothing about it,” Marichuy said. “There’s a certain point that you just give up on everything.” She said there were also other trans safe...Supposedly women who tried to kill themselves while she was there because they couldn’t ICE has a policy that deal with how they were treated at the detention center. “My torture in Mexico didn’t fnish. My torture in Mexico kept going in the no discrimination detention center where supposedly I was going to be safe,” Marichuy said. “Supposedly ICE has a policy that no discrimination and no abuse is tolerated and no abuse is in the detention centers and that’s not true. Trans women and the LGBT tolerated in the community aren’t safe in detention centers. I wasn’t safe. We’re asking for help…but ICE and CCA…just punish us.” detention centers Comparing the Arizona State Prison with the CCA-managed Eloy ICE detention and that’s not true. center, Marichuy says that even though it’s still a jail, she “always wanted to be in [Arizona State] prison where I [had been] rather than sufering all that Trans women and discrimination and abuse that’s going on inside the [Eloy] detention center.” Even though she has heard reports of abuses against trans women in the the LGBT community Arizona State Prison, she felt like there was more respect from the guards. She aren’t safe in also had more privacy there, as she had her own cell and showers had curtains. In contrast, Marichuy could only describe the conditions at Eloy as “something detention centers. I terrible.” wasn’t safe.” Marichuy was released from Eloy in January 2014 after paying a $7500 bond and continues to fght her asylum case. She is now part of the Queer Undocumented Immigrant Project (QUIP) as the coordinator of visitation for trans and LGBTQ immigrants in Eloy. The organization provides support letters, visitation, and counseling to trans and LGBTQ people detained at Eloy. They also participate in organizing marches and to put pressure on ICE to release trans women from detention centers. “Releasing transgender [people] from detention centers is going to give us more power,” Marichuy said. “My goal is to close the detention centers…or at least change the policies they have. I don’t want other trans or LGBTQ people to have the same experience I had in the detention centers…That’s why I’m here fghting for justice.”
16 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 SOLOMON Detained 5 months in Port Isabel, South Texas Detention Complex (GEO) and Stewart Detention Center (CCA) in Georgia Solomon came to the United States in March 2014 feeing political persecution in his home country of Ethiopia. He was imprisoned by the Ethiopian government for 9 months for supporting his brother, a political activist, who was garnering votes as an opposition party leader. A month after he got out of prison in Ethiopia, the “They treat you government sent him a court paper. He knew that he would not be released again if he returned, so he fed to Sudan with his wife and daughter and stayed like a criminal,” in hiding there for nearly a month. Solomon then paid a smuggler $20,000 from his business that he sold to get him and his family to Mexico. They he said. “Even in drove to the Mexican border city of Reynosa and were put in the immigration my country when detention center at the border. Solomon said that he was one of the lucky ones who the taxi driver took straight to the border checkpoint. He recounted I go to prison I’m hearing of others taken to the “mafa” with the collusion of local police and held for ransom until their families could pay for their release to the border. “The never cuffed like police and mafa are the same,” he said. that.” “Immigration is terrifying,” Solomon said. He said that it was cold and they provided only a plastic blanket. The day after they arrived at the immigration center, they took his wife and young daughter to another wing and transferred him to Port Isabel Detention Center in Los Fresnos, Texas. He was held in a large room with 80 or 90 people with 3 toilets and 2 showers in view of everyone. “The worst part is Africans don’t like to see somebody using the bathroom,” Solomon said. “We spent 4 days without using it.” He spent 4 or 5 days in Port Isabel, was transferred to South Texas Detention Complex in Frio, Texas for 2 weeks, and then was transferred to Stewart Detention Center in Atlanta for nearly 5 months. In total, he was detained for 5 months and 15 days. “The worst part is we were handcufed, from the top to the [bottom],” Solomon said. When being transferred from South Texas to Atlanta, Georgia, they spent 3 or 4 hours on the bus, and then a plane fight, continuously handcufed. Solomon recalled that when they were transferred between each location, they were put in a smaller room with only a cement foor and no bed for a day or two. “You are stuck for 24 hours in one room...that makes you sick,” he said. Speaking of the regimented prison schedules, being told when to go to sleep and being called for breakfast and lunch at the same time each day, Solomon said, “they treat you like a baby.” Still, he said that the Stewart Detention Center was an improvement over the Texas detention centers because at least there the detained immigrants could go outside for an hour, and were allowed to walk outside to the “chow hall” in another building rather than having food brought to their cells. He said that in the South Texas Detention Complex, there were procedures that treated detained immigrants like criminals. For example, a guard would walk behind each handcufed detainee whenever they were transferred between diferent holding areas within the facility. “The sufering starts from immigration,” Solomon said, emphasizing how frequently the immigrants were searched at the border detention center. He said that he never expected to be detained when he came to the U.S. “They treat you like a criminal,” he said. “Even in my country when I go to prison I’m never cufed like that.” Solomon has now won his asylum case and is living in a transitional shelter. He is working to support his wife and 2-year-old daughter, and hopes to fnd a better paying job and begin saving towards a house for his family.
MUHAMMAD NAZRY (NAZ) MUSTAKIM Detained 10 months in South Texas Detention Complex in Pearsall, Texas HOPE MUSTAKIM, Naz’s wife and advocate Naz was brought to the U.S. from Singapore as a child, and was a long-time green card holder. In 2005 he was arrested for possession with intent to deliver, successfully completed rehabilitation, and in 2007 accepted a plea bargain for 10 years probation. He was never advised by an immigration attorney in court, so never told that by accepting the plea bargain his green card would be revoked. Naz got married in 2010, had a steady job as a “Are you coming supervisor at a call center, and even renewed his green card — apparently with no home?” problem — the same year. In March 2011, immigration ofcers showed up at newlyweds Naz and Hope’s doorstep at 7 a.m. “We thought it was his probation ofcer,” Hope said. “He went to the door… and it was 4 fully-armed ICE ofcers, so he was like, ‘can I help you?’” They then told him that he was being put in removal proceedings due to his felony drug charge. Naz asked if he could get his coat and tell his wife, and ICE sent a female agent into the room with the couple. “So he woke me up and told me that immigration police were here and I said ‘who are they looking for?’” Hope said. “And he was like, well, it’s me.” The couple had no idea what it meant to be put in removal proceedings, and had only recently began watching documentaries on the border and immigration issues. “It was just so far of our radar,” Hope said. She recalls that she started crying when she fgured out they were taking Naz, and the ICE ofcer in the room told her not to worry, that she could bail him out, he would have a hearing in a year, and you can ask the judge to lower the bond — none of which turned out to be true. “They were just feeding us stuf so they didn’t have to deal with the emotions,” Hope said. At that time, Naz was a supervisor at a call center who had just built his own team for a project that started the week he was detained. “When I got picked up on the way to the Waco ofce I text my supervisor saying that hey, I’m going to be late. Immigration ofcers came knocking at my door, and it’ll be straightened out but I’m going to be late,” Naz said. “That day I had a big meeting with our clients. As things unraveled more and more, I was like, I might have to miss today; I have to go down to San Antonio to take care of something.” He called his wife and told her that he couldn’t bond out at the Waco ofce and had to go to Pearsall, a town they had never heard of, 4 hours south. He still expected to take a bus home that day. When Hope didn’t hear anything from Naz for 24 hours, she searched online for a number for “Pearsall immigration” and found the number for the South Texas Detention Center. She called and said she thought they had her husband there and they asked for his A number.”j Hope recalled that she didn’t even know what an A-number was. “They were just so rushed and disinterested.” They told her Naz would call when he got out of holding. When Naz frst arrived at the South Texas Detention Center, he was confused because “what they told him was, you’re going to a court hearing for a bond,” Hope said. “He shows up and he’s like, where’s the court? He thought he was going to an ofce building.” Naz said that “whenever they brought us to STDC, there were
18 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 hundreds of us being herded in.” He was put in a holding tank with about 50 other people. “It’s like a jail,” Naz said. “It was flthy and there were people sleeping just waiting to be called up.” He didn’t speak Spanish, so was disoriented by commands given by the guards. “It was like something camisa something your shirt,” Naz remembers. “Even though it’s “They wanted us to take everything of except for your pants and your shirt and put it in the bin. They were screaming at us telling us that.” a civil immigrant The people being processed into STDC were asked if they were going to fght detention center their case. If they said yes, as did Naz, they stayed in holding to wait for space in the dorms to open up. If they said no they were taken to sign their voluntary it’s run more like a departure papers, without consulting with an attorney. Naz waited 24 hours there and then lined up “and they gave us a mattress and 3 sets of clothes, a prison” blanket and toothbrush...and that was when I was like, I guess I’m going to be here more than a day.” It wasn’t until two weeks in detention that he got to meet with an ICE ofcer and found out that he didn’t get a bond. “That’s two weeks where you’re like, did you go to court, did you get a bond, are you coming home?” Hope said. “The frst [time Hope came to visit] was very, very sad,” Naz said. “We haven’t seen each other for 2 or 3 weeks and we were newlyweds…we just sat down and looked at each other and then we just cried.” There are no contact visits allowed at STDC, so they touched their hands together through the glass. They couldn’t feel each other, so they would knock on the glass to feel the vibration. “It’s like we are worse criminals than the people in prison,” Naz said. In detention, the day started at 4:30 in the morning, when they were sometimes rudely awakened by guards banging on the bunks and shouting at them to wake up for breakfast. “The whole place is run by the detainees themselves,” Naz said. He worked in the kitchen and cleaning the holding tank. “Just in the kitchen, there are 20 people each shift and there are 4 shifts, so that’s 80 detainees working.” They also invent competitions so the detainees will clean their dorms. Detainees who work get paid $3 per day. “It’s weird how we get to work in the detention facility when we can’t work out in public,” Naz said. “Even though it’s a civil immigrant detention center it’s run more like a prison / homeless shelter. We get screamed at, we get yelled at, we get threats...if you don’t listen you’ll go into the hole,” Naz said. “There’s always the count every so often. Once I was on the phone and I was actually praying with my wife and I was trying to fnish up. I was running late and so they called the sergeant and made a big deal out of it and said, I’m gonna “I was disoriented throw you in the hole.” There was nothing to do, but even the little rings they would make out of bottle caps to pass the time were considered contraband. the whole time Naz also missed seeing the grass, as even the recreation area is bricked up to the sky with bars on top. He remembers cleaning the holding tank with a door - 10 months. I to the outside “and I can see far in the distance there’s trees out there and I’m felt like it was like, okay I’m still on Earth.” Getting adequate medical care was nearly impossible. Ibuprofen is prescribed a bad dream, a for everything, whether a cold or if you fell of your bunk. Naz was told to put nightmare.” in a request for a band-aid for an open burn wound, even though processing a request takes at least two days. He was also told to put in a request when he fell on his back playing basketball and was in severe pain. He did, but then went to the doctor that night and said he had to see a doctor now. But when he told the guard that his level of pain was 8 (“because I
wasn’t dying”) he didn’t hear anything. At morning, he was required to work but because he was up and walking around, he was again told to simply put in a request. For Hope, “It was the most surreal thing. Just “ totally, completely unexpected,” she said. It’s like daily you’re “Some people live in fear, which is terrible, just staring down and I feel like, is it worse to live in fear and have it happen, or to be so totally ignorant a black hole and and shocked by it. I was disoriented the whole time — 10 months. I felt like it was a bad dream, a nightmare.” She spent $400 you don’t feel like a month to talk to him on the phone, and a fortune in legal fees. She was in you’re anyone to college at Baylor and almost had to quit because she didn’t know how they would pay for it. People paid for their mortgage and churches would open anyone. Even as a their doors when she came to visit Naz twice a month. U.S. citizen, I felt so One court case, where they expected to bail out Naz, was postponed when the prosecutors for DHS advised their attorney to go in a diferent direction with betrayed.” their case, and they agreed it was best in the long term. Hope remembers, “the judge was fipping through his calendar and he was like, ‘November, no, no. How about December, hmm maybe January… Naz turned around and looked at me and his face was just, he was so upset and shocked and I knew I had to be strong for him in that moment because if not we would have both lost it.” “That’s the hard thing,” Naz said. “In criminal court, if you go to jail you know how long you’re going to serve. In the immigration detention center you’re just waiting.” “You’re at the mercy of everyone else...and their backlog,” Hope said. “It’s like cruel and unusual punishment...there’s no end in sight. Your families don’t know when it’s going to end… It’s like daily you’re just staring down a black hole and you don’t feel like you’re anyone to anyone. Even as a U.S. citizen, I felt so betrayed.” Hope was Naz’s biggest advocate, communicating with their attorney and fghting for better ofers. At one point she was told by the D.A. that the best deal she could give Naz was to serve 5 years in prison and then go back to ICE custody and then fght his immigration case all over again. “It was an election season, and she said ‘I can’t appear soft on crime,’” Hope said. “She had her own motives. When Naz’s attorney told me that, I was crying… does she even know that he’s married, does she even know that we want to have kids, and that 5 years is a long time?” Eventually, the case was dropped because there had never been enough evidence in Naz’s original drug case, which the couple found out second-hand from talking to a reporter. Still, ICE wouldn’t release Naz until an Al-Jazeera reporter brought cameras into the facility to talk to him. “I don’t know why they were trying so hard to keep him there,” Hope said. Naz was fnally released in February 2012 after being detained for 10 months — longer than he and Hope had been married before he was detained. The couple now live in Waco with their baby son. They regularly speak about their experience at events around the country and organize against detention in their own community. “I don’t think private prisons like us very much,” Naz said. “We’re done with this, but it’s not over for millions of other people,” Hope said. “Anytime you have a quota that you have to meet, you’re automatically going to lean toward incarcerating someone as opposed to freeing them, because then you have to go and fnd someone else… I don’t think we’re ever going to see a real big bipartisan push [for reform] whenever money is incentivizing detention.”
20 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 HENRY TARACENA Detained 5 months at the GEO-run Northwest Detention Center in Tacoma, WA Henry came to the U.S. from Tabasco, Mexico when he was 19, and has now “I never went lived in the U.S. for more than 20 years. In 2009, he was unjustly deported because of a suspended license. He was detained for only a few days, without back to being ever being told that he was eligible to apply for bond. The same year, he returned to the U.S. and continued working without incident. the same In 2014, ICE raided his workplace looking for him, specifcally. “They were person I was going around looking for me as if I were a criminal,” Henry said. “Everyone at my work thought that I was a criminal… but in reality it was nothing.” before.” Henry spent 5 months inside the Northwest Detention Center in Tacoma, Washington. “When I entered the detention center my life changed,” Henry said. “I never went back to being the same person I was before.” Henry described the severely lacking conditions in the GEO-run detention center. While detained, he saw people with cancer and other serious illnesses not cared for properly, and people in pain who had to wait long stretches of time for medical care. “It really scared me,” he said. He also said that recreation was dangerous due to the nature of the space. “They have a small room that according to them is the recreation area… but it’s so small that someone was always hurting themselves… because it was a square with cement walls.” The air conditioning was extremely cold, and smelled of chemicals, to the point that people developed sores on their skin from prolonged exposure. He also described unsanitary conditions full of dirt and mold. The facility was cleaned with only mild soap, and all the clothes were washed together interchangeably, causing illnesses to spread easily. Food was not nutritious, and given in small portions. “[People] entered healthy and came out sick,” Henry said. The detained immigrants worked for $1 per day to run the facility. Henry said he didn’t mind working to occupy himself, but that the guards would treat them as if they were obligated to work all the time. “Inside there is a [guard] that shouts at the workers horribly,” he said. “They make you feel like you are a criminal, not a detained person. [The guards] think that they’re superior to us… they didn’t respect us as if we were people.” He also described how in the kitchen, where he worked, detainees were forced to sign many forms related to using knives and cooking equipment without adequate time to read what they were signing. Knowing that he was unable to leave his room, or even see outside was the most difcult part of being detained for Henry, who sufers from PTSD. “There are no windows in the detention center. You’re enclosed,” he said. “I explained perfectly to the director of the detention center that I was sufering from Post-Traumatic Stress Disorder, and that I had to be in a place [with windows], and he told me no,” Henry said. “My psychologist was telling me that yes, I should be in a room where at least there were windows and I “[People] could see outside.” The majority of rooms were large with no windows that allowed people to see outside, which Henry said makes people become more entered healthy depressed. “The detention centers aren’t set up well to care for people,” Henry said. “They need to be closed.” and came out While in detention, Henry helped to organize a hunger strike, the second sick” at the facility, by sending messages from the kitchen to other “pods” of detainees who were meeting with religious groups from the outside. They sent them notes on slips of paper, asking if they would help support them in a hunger strike to expose the injustices that were occurring inside the facility. Those who worked in the kitchen or laundry room
sent notes to other leaders, arranging a time to meet in the library to plan their demands and what action they would take. For three days, Henry said around 900 detainees refused to eat, himself among them. “I chose to [participate in the hunger strike] because [I saw] other people sufering, people not receiving medical care, minors arriving at the detention center without anyone having checked that they’re under age… there were “One person by many calamities… we had to do something. One person by himself can’t do himself can’t do anything but together we can do a great deal.” After the third day of the hunger strike, the ICE feld ofce director met with anything but some of the detainees to ask what they wanted. They described the problems together we can do with conditions at the facility, the high bonds ($7,500 was common), and that people without criminal records were being placed in detention. They a great deal.” promised changes, but Henry refected that they should have gotten them in writing because “they ignored us and many things have not changed.” After being released from detention, Henry continued to communicate with leaders inside the detention center to organize a third hunger strike at the facility. He helped coordinate with other advocates to amplify the voices of the people inside the facility by protesting outside, and connecting with advocates for hunger strikers at GEO immigrant detention facilities in the U.K. “The treatment of undocumented people is unjust,” Henry said. “We did the hunger strike… principally because they are breaking up families.” Thinking of the children separated from one or both of their parents, and the trauma it causes them gives him strength to continue fghting for meaningful reform to the immigration system. “Not only in detention centers, but in the entire U.S. the system is bad,” Henry said. “Private prisons are causing harm.” Henry now lives with his brother near Seattle and has received a human rights award for his continued advocacy for immigrants detained at the Northwest Detention Center.
Henry, in blue, receives a human rights award for his leadership in the hunger strikes at Northwest Detention Center.
22 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 A SNAPSHOT OF THE PRIVATE CONCLUSIONS IMMIGRANT DETENTION The immigrant detention quota must be eliminated. The quota INDUSTRY TODAY: enriches private prison corporations at taxpayer expense, and • Private prison corporations operate 62% further entrenches a system that punishes immigrants and tears of all ICE immigration detention beds in apart families. It is telling that such a quota mandated by Congress the U.S. Private prison corporations operate 9 of does not exist in any other law enforcement agency, and that its • the 10 largest ICE immigrant detention development was not in response to any change in immigration centers in the U.S. patterns, but was highly infuenced by political gain and personal • The industry is dominated by two biases. The immigrant detention quota continues to be a prime corporations - CCA and GEO - which example of how money and political gain can drive policy decisions. together operate 45% of total ICE It serves as an “insurance policy” for private companies, artifcially detention beds, and 72 percent of stabilizing the immigrant detention industry at taxpayer expense. privately contracted ICE detention beds. It also provides political cover for congressional anti-immigrant • Together, CCA and GEO are currently politicians who wish to bind the hands of any future administration under expansion to have the capacity with a more lenient immigration enforcement policy. Those harmed to detain 3,600 asylum-seeking mothers by the immigrant detention quota have far less power and money: and children. Together, CCA and GEO spent immigrants, their families, and the average American taxpayer. • $11,020,000 in federal lobbying To fully honor the rights and dignity of in quarters when they lobbied on the immigrant community, DHS and ICE immigration issues, from 2008-2014. must stop contracting with private prison • CCA spent $9,760,000 from 2008-2014 companies. The industry will always be in quarters when they lobbied on the bound by the cardinal rule of corporate DHS Appropriations Subcommittee, survival: proft. CCA and GEO Group, as which maintains the immigrant publicly traded entities are obligated to act detention quota language. CCA and GEO are making record profts in the best interest of their shareholders, • spurred by their expansion farther into rather than in the interest of those they hold immigrant detention, at $195,022,000 in their facilities or the families they leave for CCA and $143,840,000 for GEO in behind. The private prison industry has 2014. shown their willingness to spend exorbitant sums lobbying legislators and contributing to campaigns in order to control their “risk factors” and ensure the proftability of their business. This system encourages legislators to follow the money rather than the best interest of those they govern, or any moral compass, when making policy decisions on immigrant detention. Ultimately, the practice of immigration detention must be wholly eliminated. The directives that subject immigrants to detention and deportation are deeply fawed, as shown by the stories of detained immigrants featured in this report. These guidelines must be reexamined and alternatives to detention should be implemented with the purpose of decreasing the number of immigrants in detention. Asylum seekers such as Marichuy and Solomon, as well as asylum- seeking families, should be immediately released to non-punitive community support programs while their cases are evaluated. For immigrants who have grown up in the U.S. and have committed a crime, subjecting them to an additional layer of incarceration based solely on their immigration status unjustly punishes them due to their identity, as does denying them a chance at the redemption aforded all other individuals in society. END NOTES a. Immigration issues lobbying calculations include the amount lobbied in quarters when issues related to immigration were among the issues listed in the corporation’s disclosure form. A signifcant but unknown portion of lobbying expenditures in these quarters was spent on immigration issues. Lobbying directed at alternatives to detention (ankle bracelet monitoring and regular check-ins with law enforcement) has been excluded from all calculations of immigration lobbying for the purposes of more accurately tracking detention, although GEO does have a direct proft incentive in alternatives to detention through its subsidiary BI Technologies. Additionally, vaguely defned lobbying issues referencing detention (ex. Issues pertaining to the construction and management of privately-operated prisons and detention facilities) have been excluded. b. DHS appropriations lobbying calculations include the amount lobbied in quarters when DHS appropriations was among the issues the corporation listed in their lobbying disclosure form. A signifcant but unknown portion of lobbying expenditures in these quarters was spent on DHS appropriations. c. Detention facilities for asylum-seeking mothers with children apprehended crossing the southern border. d. GEO’s Karnes County Residential Center is included in FY14 data, but has an ADP of only 84, a fraction of the women and children detained at Karnes today. CCA’s South Texas Family Residential Center in Dilley, TX did not yet exist at the close of FY14. Instead, FY14 statistics refect family detention at Artesia Family Residential Center in New Mexico, an ICE-run facility that was closed in December 2014. e. Private companies in legend from left to right: Corrections Corporation of America, GEO Group, Management and Training Corporation, Emerald Corrections, LCS Corrections, Community Education Centers, LaSalle Corrections, Immigration Centers of America f. LCS was purchased by GEO in January 2015. These statistics are from fscal year 2014, so refect the two companies as separate entities. g. Tellingly, this GEO Group lobbyist refers to individuals in civil immigration detention custody as “prison inmates” though people in civil detention are not incarcerated. h. In all lobbying expenditure charts, DHS appropriations lobbying means the amount lobbied in quarters when DHS appropriations was among the issues the corporation listed in their lobbying disclosure form. Immigration issues lobbying means the amount lobbied in quarters when issues related to immigration, such as immigration reform legislation, were among the issues listed in the corporation’s disclosure form. Lobbying directed at alternatives to detention (ankle bracelet monitoring and regular check-ins with law enforcement) has been excluded from all calculations of immigration lobbying for the purposes of more accurately tracking detention, although GEO does have a direct proft incentive in alternatives to detention through its subsidiary BI Technologies. Additionally, vaguely defned lobbying issues referencing detention (ex. Issues pertaining to the construction and management of privately-operated prisons and detention facilities) have been excluded. For both DHS appropriations and immigration lobbying line series, a signifcant but unknown portion of lobbying expenditures in the quarters included went towards these issues. Due to the way the data is collected, it is impossible to calculate expenditures on these issues more specifcally. i. The following testimonies are based on interviews with formerly detained immigrants. Though everything contained in these testimonies is consistent with reports we hear regularly, Grassroots Leadership did not independently fact check their stories. Testimonies are based on how each individual perceived their experience, and told from their unique perspective. j. Alien numbers, also called A-numbers are identifcation numbers issued to non-citizens by the U.S. government.
24 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 28. President Bush Signs Department of Homeland Security Appropriations Act. The White House. October 4, 2006. http://georgewbush-whitehouse.archives.gov/news/ REFERENCES releases/2006/10/20061004-2.html 29. Department of Homeland Security Appropriations Act, 2007. (2006, January 3). Government Printing Ofce. http://www.gpo.gov/fdsys/pkg/BILLS-109hr5441enr/ 1. U.S. Unauthorized Immigration Population Trends, 1990-2012. (2013, September pdf/BILLS-109hr5441enr.pdf 23). Pew Research Centers Hispanic Trends Project. http://www.pewhispanic. org/2013/09/23/unauthorized-trends/#All 30. Pianin, E. (2005, June 19). A senator’s shame. The Washington Post. http://www. washingtonpost.com/wp-dyn/content/article/2005/06/18/AR2005061801105.html 2. Department of Homeland Security Appropriations Act, 2010. (2009, October 28). Government Printing Ofce. http://www.gpo.gov/fdsys/pkg/PLAW-111publ83/pdf/ 31. Congressional Record, Volume 147 Issue 115 (Thursday, September 6, 2001). p. PLAW-111publ83.pdf 16581 - 16584. Google Books. http://bit.ly/1MLbqxc 3. Immigrant detention bed quota timeline. (2014, March 20). National Immigrant 32. Taylor, L. (2014, March 12). Rights groups want to end mandate that keeps Justice Center. http://immigrantjustice.org/sites/immigrantjustice.org/fles/ immigration detention beds full. Imagine 2050. http://imagine2050.newcomm. Immigration_Detention_Bed_Quota_Timeline_2014_03_1.pdf org/2014/03/12/end-the-quota-immigrant-dentention-bed- mandate/#sthash. LOluTVIh.dpuf 4. Immigration and Customs Enforcement. ERO Custody Management Division. List of facilities analyzed by Grassroots Leadership from documents titled “DMCP 33. Immigrant detention bed quota timeline. (2014, March 20). National Immigrant Authorized Facilities” and “ICE Authorized Facilities Matrix.” March 5, 2015. Justice Center. http://immigrantjustice.org/sites/immigrantjustice.org/fles/ Immigration_Detention_Bed_ Quota_Timeline_2014_03_1.pdf 5. Expose & Close: Executive Summary. (n.d.). Detention Watch Network. http://www. detentionwatchnetwork.org/sites/detentionwatchnetwork.org/fles/ExposeClose/ 34. FY 2013 ICE Immigration Removals. (n.d.). Immigration and Customs Enforcement. Expose-Executive11-15.pdf https://www.ice.gov/removal-statistics/ 6. Immigration and Customs Enforcement. ERO Custody Management Division. 35. Vicens, A. (2014, April 4). The Obama administration’s 2 million deportations, List of facilities analyzed by Grassroots Leadership from documents titled “DMCP explained. Mother Jones. http://www.motherjones.com/politics/2014/04/obama- Authorized Facilities” and “ICE Authorized Facilities Matrix.” March 5, 2015. administration-record-deportations 7. Grassroots Leadership calculation from http://www.ice.gov/doclib/foia/reports/ 36. Deutch, T. (2013, June 5). H.R. 2217, Department of Homeland Security ero-facts-and-statistics.pdf (2007) and analysis of “ICE Authorized Facilities Matrix” Appropriations Act, 2014. Congressional Record. https://beta.congress.gov/ document (2014). March 5, 2015. congressional-record/2013/6/5/house-section/article/H3129-1 8. Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation & 37. Taylor, L. (2014, March 12). Rights groups want to end mandate that keeps Records. immigration detention beds full. Imagine 2050. http://imagine2050.newcomm. org/2014/03/12/end-the-quota-immigrant-dentention-bed- mandate/#sthash. 9. Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation & LOluTVIh.dpuf Records. 38. ICE FOIA Report, ERO Facts and Statistics. http://www.ice.gov/doclib/foia/reports/ 10. LDA Reports (n.d.). U.S. Senate: Legislation & Records. ero-facts-and-statistics.pdf 11. Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation & 39. Immigration and Customs Enforcement. ERO Custody Management Division. List of Records. facilities analyzed by Grassroots Leadership from document titled “ICE Authorized 12. Ibid. Facilities Matrix.” March 5, 2015. 13. Immigration and Customs Enforcement. ERO Custody Management Division. List of 40. Expose & Close: Executive Summary. (n.d.). Detention Watch Network. http://www. facilities analyzed by Grassroots Leadership from document titled “ICE Authorized detentionwatchnetwork.org/sites/detentionwatchnetwork.org/fles/ExposeClose/ Facilities Matrix.” March 5, 2015. Expose-Executive11-15.pdf 14. Immigration and Customs Enforcement. ERO Custody Management Division. 41. Immigration and Customs Enforcement. ERO Custody Management Division. List of List of facilities analyzed by Grassroots Leadership from documents titled “DMCP facilities analyzed by Grassroots Leadership from document titled “ICE Authorized Authorized Facilities” and “ICE Authorized Facilities Matrix.” March 5, 2015. Facilities Matrix.” March 5, 2015. 15. Ibid. 42. Ibid. 16. CCA 10-K SEC fling, February 2008. https://www.last10k.com/sec-flings/ 43. Ibid. CXW/0000950144-08-001419.htm 44. Ibid. 17. CCA 10-K SEC fling, February 2015. http://www.sec.gov/Archives/edgar/ 45. Ibid. data/1070985/000119312515061839/d853180d10k.htm#fn853180_1 46. The math of immigrant detention: The runaway costs for immigration detention 18. GEO 10-K SEC fling February 2008. http://quote.morningstar.com/stock-fling/ do not add up to sensible policies. (n.d.). National Immigration Forum. http://www. Annual-Report/2007/12/30/t.aspx?t=XNYS:GEO&ft=10-K&d=3867146f1ead698c immigrationforum.org/images/uploads/mathofmmigrationdetention.pdf 19. GEO 10-K SEC fling, February 2015. http://quote.morningstar.com/stock-fling/ 47. CCA Investor Presentation. February 2014. https://drive.google.com/drive/u/1/#folde Annual-Report/2014/12/31/t.aspx?t=XNYS:GEO&ft=10-K&d=28a59a1705dea99e02 rs/0BxXblSbt3qwYc3U0NlhvS1ZsMDA/0BxXblSbt3qwYcmM2OFlTc3BjZjQ cd90f5c8ae0faf 48. Ibid. 20. Will Weissert, “Texas immigration family lockup will be nation’s largest,” The Associated Press, December 15, 2014, http://www.thestate. 49. Private prison companies making big bucks on locking up undocumented com/2014/12/15/3875832/texas-immigration-family-lockup.html. immigrants. (2012, August 2). NY Daily News. http://www.nydailynews.com/news/ national/private-prison-companies-making-big- bucks-locking-undocumented- 21. Jessie Degollado, “Karnes County approves family detention expansion,” KSAT, immigrants-article-1.1127465#ixzz309brH592 December 16, 2014, http://www.ksat.com/content/pns/ksat/news/2014/12/16/ karnes-county-approves-family-detention-center-expansion.html. 50. Kish, R., & Lipton, A. (2013, February 6). Do private prisons really ofer savings compared to their public counterparts?. Economic Afairs. http://onlinelibrary.wiley. 22. Emma Randles. The GEO Group acquires LCS Corrections, expanding their reach in com.ezproxy.lib.utexas.edu/doi/10.1111/ecaf.12005/pdf Texas. Texas Prison Bid’ness. January 27, 2015. http://www.texasprisonbidness.org/ immigration-detention/geo-group-acquires-lcs-corrections-expanding-their-reach- 51. Kunichof, Y. (2012, July 27). “Voluntary” work program run in private detention texas centers pays detained immigrants $1 a day. Truthout. http://truth-out.org/news/ item/10548-voluntary-work-program-run-in-private-detention-centers-pays- 23. Source detained-immigrants-1-a-day 24. FY 1994 through FY2005 CRS presentation of published DHS data. http:// 52. Venters, H., Dasch-Goldberg, D., Rasmussen, A., & Keller, A. (2009, May 1). Into digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1712&context=key_ the abyss: mortality and morbidity among detained immigrants. Human Rights workplace Quarterly. http://muse.jhu.edu.ezproxy.lib.utexas.edu/journals/human_rights_ 25. Intelligence Reform and Terrorism Prevention Act of 2004. (2004, December 17). quarterly/v031/31.2.venters.html Government Printing Ofce.
Management Division. List of facilities analyzed by Grassroots Leadership from 85. Selway, W., & Newkirk, M. (2013, September 23). Congress Mandates Jail Beds for document titled “ICE Authorized Facilities Matrix.” March 5, 2015. 34,000 Immigrants as Private Prisons Proft. Bloomberg. http://www.bloomberg.com/ news/2013-09-24/congress-fuels-private-jails-detaining-34-000-immigrants.html 55. Immigration and Customs Enforcement. ERO Custody Management Division. List of facilities analyzed by Grassroots Leadership from document titled “ICE Authorized 86. Ibid. Facilities Matrix.” March 5, 2015. 87. Flatow, N. (2013, February 21). Republicans With Infuence On Immigration 56. Immigration and Customs Enforcement. ERO Custody Management Division. List of Debate Are Top Recipients Of Private Prison Contributions. Think Progress. http:// facilities analyzed by Grassroots Leadership from document titled “ICE Authorized thinkprogress.org/justice/2013/02/21/1624061/report-republicans-with-infuence- Facilities Matrix.” March 5, 2015. on-immigration-debate-are-top-recipients-of-private-prison-contributions/ 57. Ibid. 88. Arizona Senate Research. (2010, January 15). Arizona State Senate, Forty-ninth Legislature, Second Regular Session, Fact Sheet on S.B. 1070. http://www.azleg.gov/ 58. Management and Training Corporation legtext/49leg/2r/summary/s.1070pshs.doc.htm 59. Immigration and Customs Enforcement. ERO Custody Management Division. List of 89. Gaming the system: How the political strategies of private prison companies facilities analyzed by Grassroots Leadership from document titled “ICE Authorized promote inefective incarceration policies. (2011, June 1). Justice Policy Institute. Facilities Matrix.” March 5, 2015. Includes new family detention facilities not listed in FY2014 data. 90. Cervantes-Gautschi, P. (n.d.). Wall Street & Our Campaign to Decriminalize Immigrants. Social Policy. http://www.socialpolicy.org/index.php/component/ 60. Immigration and Customs Enforcement. ERO Custody Management Division. List of content/article/30-online-only-features/478-wall-street-a-our-campaign-to- facilities analyzed by Grassroots Leadership from document titled “ICE Authorized decriminalize-immigrants Facilities Matrix.” March 5, 2015. 91. Ibid. 61. Ibid. 92. Ibid. 62. Immigration and Customs Enforcement. ERO Custody Management Division. List of facilities analyzed by Grassroots Leadership from documents titled “DMCP 93. William Selway and Margaret Newkirk. Congress Mandates Private Jail Beds for Authorized Facilities” and “ICE Authorized Facilities Matrix.” March 5, 2015. 34,000 Immigrants. Bloomberg Business. http://www.bloomberg.com/news/ articles/2013-09-24/congress-fuels-private-jails-detaining-34-000-immigrants 63. Ibid. 94. Pablo Paez, Vice President of GEO Group’s corporate relations (Fang, L., 2013) 64. Emma Randles. The GEO Group acquires LCS Corrections, expanding their reach in Texas. Texas Prison Bid’ness. January 27, 2015. http://www.texasprisonbidness.org/ 95. CCA 10-K SEC fling, February 2015. http://www.sec.gov/Archives/edgar/ immigration-detention/geo-group-acquires-lcs-corrections-expanding-their-reach- data/1070985/000119312515061839/d853180d10k.htm#fn853180_1 texas 96. Private prison companies making big bucks on locking up undocumented 65. Will Weissert, “Texas immigration family lockup will be nation’s largest,” immigrants. Associated Press. August 2, 2012. http://www.nydailynews.com/news/ The Associated Press, December 15, 2014, http://www.thestate. national/private-prison-companies-making-big-bucks-locking-undocumented- com/2014/12/15/3875832/texas-immigration-family-lockup.html. immigrants-article-1.1127465#ixzz309brH592 66. Ibid. 97. CCA 10-K SEC fling, February 2015. http://www.sec.gov/Archives/edgar/ data/1070985/000119312515061839/d853180d10k.htm#fn853180_1 67. Jessie Degollado, “Karnes County approves family detention expansion,” KSAT, December 16, 2014, http://www.ksat.com/content/pns/ksat/news/2014/12/16/ 98. GEO 10-K SEC fling, February 2015. http://quote.morningstar.com/stock-fling/ karnes-county-approves-family-detention-center-expansion.html. Annual-Report/2014/12/31/t.aspx?t=XNYS:GEO&ft=10-K&d=28a59a1705dea99e02 cd90f5c8ae0faf 68. CCA 10-K SEC fling, February 2008. https://www.last10k.com/sec-flings/ CXW/0000950144-08-001419.htm 99. Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation & Records. 69. CCA 10-K SEC fling, February 2015. http://www.sec.gov/Archives/edgar/ data/1070985/000119312515061839/d853180d10k.htm#fn853180_1 100. LDA Reports. (n.d.). U.S. Senate: Legislation & Records. 70. GEO 10-K SEC fling February 2008. http://quote.morningstar.com/stock-fling/ 101. Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation & Annual-Report/2007/12/30/t.aspx?t=XNYS:GEO&ft=10-K&d=3867146f1ead698c Records. 71. GEO 10-K SEC fling, February 2015. http://quote.morningstar.com/stock-fling/ 102. Ibid. Annual-Report/2014/12/31/t.aspx?t=XNYS:GEO&ft=10-K&d=28a59a1705dea99e02 103. Ibid. cd90f5c8ae0faf 104. Ibid. 72. CCA Investor Presentation. February 2014. https://drive.google.com/drive/u/1/#folde rs/0BxXblSbt3qwYc3U0NlhvS1ZsMDA/0BxXblSbt3qwYcmM2OFlTc3BjZjQ 105. Ibid. 73. http://topics.nytimes.com/top/news/business/companies/corrections-corporation- 106. Ibid. of-america/index.html 3/3/2015. 107. Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation & 74. Wessler, S. (2013, February 14). CEO of largest private prison company: No worries Records. about immigration reform. Colorlines. http://colorlines.com/archives/2013/02/ ceo_of_largest_private_prison_company_in_us_says_hes_not_worried_about_ 108. Ibid. immigration_reform.html 109. Ibid. 75. The GEO Group Announces Acquisition of Eight Correctional and Detention 110. Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation & Facilities Totalling More Than 6,500 Beds. Business Wire. January 26, 2015. http:// Records. www.businesswire.com/news/home/20150126005618/en/GEO-Group-Announces- Acquisition-Correctional-Detention-Facilities#.VQnSRmbYl6g 111. Matt Pulle, “The GEO Group’s team of all-star lobbyists” Texas Watchdog, June 15, 2009 http://www.texaswatchdog.org/2009/06/the-geo-groups-team-of-all- 76. Ibid. star-lobbyists/ http://www.myplainview.com/article_a26a18b1-bc7a-56c9-be56- 77. The math of immigrant detention: The runaway costs for immigration detention af70f9593784.html do not add up to sensible policies. (n.d.). National Immigration Forum. http://www. 112. United States Securities and Exchange Commission. Accessed July 2, 2014 http:// immigrationforum.org/images/uploads/mathofmmigrationdetention.pdf www.sec.gov/Archives/edgar/data/923796/000119312514264220/d755717d8k.htm 78. The Dirty Thirty: Nothing to Celebrate About 30 Years of Corrections Corporation of 113. Mark Hugo Lopez and Michael T. Light. A Rising Share: Hispanics and Federal Crime. America. (n.d.). Grassroots Leadership. http://grassrootsleadership.org/cca-dirty-30 Pew Research Center. http://www.pewhispanic.org/2009/02/18/a-rising-share- 79. “Houston Processing Center” https://www.youtube.com/watch?v=1QPYCznI9MU hispanics-and-federal-crime/ 80. Our History. (n.d.). Corrections Corporation of America. http://cca.com/our-history 114. CCA 10-K SEC fling, February 2015. http://www.sec.gov/Archives/edgar/ data/1070985/000119312515061839/d853180d10k.htm#fn853180_1 81. About Us. (n.d.). GEO Group. http://www.geogroup.com/about_us 115. GEO 10-K SEC fling, February 2015. http://quote.morningstar.com/stock-fling/ 82. Lobbying Disclosure. (2008, January 1). Ofce of the Clerk: U.S. House of Annual-Report/2014/12/31/t.aspx?t=XNYS:GEO&ft=10-K&d=28a59a1705dea99e02 Representatives. http://lobbyingdisclosure.house.gov/amended_lda_guide.html cd90f5c8ae0faf 83. Grassroots Leadership analysis of LDA Reports. (n.d.). U.S. Senate: Legislation & 116. Selway, W., & Newkirk, M. (2013, September 23). Congress Mandates Jail Beds for Records. http://www.senate.gov/legislative/Public_Disclosure/LDA_reports.htm 34,000 Immigrants as Private Prisons Proft. Bloomberg. http://www.bloomberg.com/ news/2013-09-24/congress-fuels-private-jails-detaining-34-000-immigrants.html 84. Ibid.
26 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015 117. Wessler, S. (2013, February 14). CEO of largest private prison company: No worries about immigration reform. Colorlines. http://colorlines.com/archives/2013/02/ ceo_of_largest_private_prison_company_in_us_says_hes_not_worried_about_ immigration_reform.html 118. Figueroa, I. (2014, January 31). The Bed Quota: Mandatory Detention and the Denial of Justice. UNC School of Law: Conference on Race, Class, Gender and Ethnicity. http://blogs.law.unc.edu/crcge/2014/01/31/the-bed-quota-mandatory-detention- and-the-denial-of-justice/ 119. ICE Total Removals. (n.d.). Immigration and Customs Enforcement. http://www.ice. gov/doclib/about/ofces/ero/pdf/ero-removals1.pdf
PAYOFF: with an Immigrant Detention Quota
April 2015
For more information, please contact
Grassroots Leadership [email protected] or (512) 499-8111 Twitter: @Grassroots_News www.grassrootsleadership.org ARTICLE: LGBTI MIGRANTS IN IMMIGRATION DETENTION: A GLOBAL PERSPECTIVE Winter, 2014
Reporter 37 Harv. J.L. & Gender 1
Length: 21084 words
Author: Shana Tabak & Rachel Levitan*
* Shana Tabak is a Practitioner-in-Residence at American University’s International Human Rights Law Clinic. Rachel Levitan is Senior Counsel, Refugees and Migration, at HIAS, where she specializes in the international protection concerns of particularly vulnerable refugee populations. Many thanks to Christina Fialho, Taja-Nia Henderson, Ian Kysel, Nicole LaViolette, Jayesh Rathood, Ariel Shidlo, Brenda Smith, and Munmeeth Soni for helpful comments and conversations regarding this Article; to Beverley Mbu, Katerina Herodotu, Matthew Warren, and Carol Wu for substantive research; and to Marie Vanderbilt, David Martinez, and Olga Morkova for invaluable editing assistance. The authors also wish to thank Sei Young Pyo and the staff of the Harvard Journal of Law and Gender for their meticulous review of this Article.
LexisNexis Summary
… Thus, nonconforming sexual orientation or gender identity often exposes detained LGBTI migrants, similar to LGBTI inmates in non-immigration prison settings, to sexual assault and other identity-based harassment and violence from both prison officials and other detainees. … These include: first, an overview of factors contributing to LGBTI migration generally; second, a discussion of states’ expanding practice of immigration detention; and third, an assessment of the ways in which detention compromises the human rights of all migrant detainees, including LGBTI persons. … This requirement not only implies that individuals who are capable of hiding their sexual orientation or gender identity have nothing to fear in their country of origin, assuming that they can remain discreet or tolerate a measure of internalized repression, but also presumes that individuals who can, should ″self-protect″ in this manner against LGBTI-based persecution and eliminate the need for them to apply for asylum at all. … Research indicates that LGBTI detainees in both immigration and non-immigration contexts, particularly transgender individuals and gender nonconforming gay men, are more vulnerable to sexual violence in detention than heterosexual, gender-conforming inmates. … LGBTI asylum seekers and refugees report trauma-related mental health problems as a result of the persecution experienced based on their sexual orientation or gender identity, often experienced repeatedly over a lifetime. … It is crucial that all detention officials be trained in basic concepts relating to sexual orientation and gender nonconformity, the protection gaps experienced by LGBTI migrants--including the persecution that many have experienced in countries of origin--and the best ways to provide physical, medical, legal, and other protections in a detention setting while upholding the migrants’ dignity and basic human rights.
Text
[*1] Introduction
In recent years, the state practice of detaining migrants has come under close examination for the multiple ways in which detention is likely to compromise [*2] the human rights of detainees. 1 With this Article we turn our attention to the special concerns of lesbian, gay, bisexual, transgender, and intersex (″LGBTI″) detained migrants, a subgroup of vulnerable
1 See, e.g., Eleanor Acer & Jake Goodman, Reaffirming Rights: Human Rights Protections of Migrants, Asylum Seekers and Refugees in Immigration Detention, 24 Geo. Immigr. L.J. 507, 509-15 (2010); Michelle Brane & Christiana Lundholm, Human Rights Behind Bars: Advancing the Rights of Immigration Detainees in the United States through Human Rights Frameworks, 23 Geo. Immigr. L.J. Page 2 of 31 37 Harv. J.L. & Gender 1, *3 detainees that has largely remained invisible in detention systems across the globe. 2 Some of these individuals may be refugees seeking asylum based on previous persecution experienced due to their sexual orientation or gender identity, or on other grounds of persecution listed under the 1951 United Nations Convention relating to the Status of Refugees; others may simply be migrants who left their home countries for other reasons and who are then detained. Regardless, when placed in detention, sexual minority or gender nonconforming migrants 3 often face unique challenges in which their human rights may be compromised.
Although all detainees are vulnerable to human rights abuses, LGBTI detainees are particularly susceptible to heightened levels of physical and mental abuse. This abuse often includes targeted violence and sexual assault, [*3] because perpetrators of violence often choose victims that appear to be the most vulnerable. 4 For example, LGBTI detainees may be singled out for harassment or abuse by virtue of their perceived nonconformity with heterosexual gender norms. 5 Thus, nonconforming sexual orientation or gender identity often exposes detained LGBTI migrants, similar to LGBTI inmates in non-immigration prison settings, to sexual assault and other identity-based harassment and violence from both prison officials and other detainees. 6 These abuses may, in turn, have the effect of exacerbating depression, anxiety, and other psychological aftereffects experienced by LGBTI people due to persecution in their countries of origin. 7 LGBTI detainees also suffer unique challenges regarding access to medical care appropriate to their needs, including hormone therapy for transgender individuals and HIV treatment for those who are HIV positive. 8 Each of these potential abuses is compounded
147, 152-64 (2008); see also Anil Kalhan, Rethinking Immigration Detention, 110 Colum. L. Rev. Sidebar 42, 46-49 (2010) (describing in detail various hardships imposed by detention). 2 While there may not be a universally accepted definition of the term ″migrant,″ see Global Migration Grp., International Migration and Human Rights 7 (2008), archived at http://perma.cc/0VUBZs3FbRD, for the purposes of this Article, the authors will use the definition in the proposed International Migrants Bill of Rights [hereinafter IMBR]. Article 1(1) of the proposed IMBR defines a ″migrant″ as ″a person who has left a State of which he or she is a citizen, national, or habitual resident.″ IMBR Network, International Migrants Bill of Rights: Draft in Progress,24 Geo. Immigr. L.J. 399, 400 (2010). In addition, we will use the term ″migrant″ within this Article to include the categories of both asylum seekers and refugees. The term ″asylum seeker″ refers to an individual seeking recognition by a government or United Nations body as a ″refugee″ under the United Nations Convention relating to the Status of Refugees, Jul. 28, 1951, 189 U.N.T.S. 137, 152-53 [hereinafter Refugee Convention or 1951 Convention], or a domestic law incorporating the ″refugee″ definition. A ″refugee″ refers to an individual who has been legally recognized as such under either the Refugee Convention, see id. at 152, or a domestic equivalent. As detailed in this Article, asylum seekers and refugees are entitled to specific protections under international refugee law, which does not benefit all migrants.
We also use the term ″irregular migrant″ throughout the Article to refer to an individual who has crossed a border, entering a country of which he or she is not a national, without legal authorization to do so. While the terms ″illegal″ or ″undocumented″ are often used in the United States immigration context, see Emily Guskin, ’Illegal,’ ’Undocumented,’ ’Unauthorized’: News Media Shift Language on Immigration, Fact Tank (Jun. 17, 2013), archived at http://perma.cc/0CeBzsYoNvx, we use the term ″irregular migrant″ in this Article to reflect the term used more commonly in European and other international contexts, see Christal Morehouse & Michael Blomfield, Transatlantic Council on Migration, Irregular Migration in Europe 4 (2011), archived at http://perma.cc/0jJth2jg378.
3 We use ″sexual minorities″ interchangeably with ″LGBTI″ in this piece, referring to individuals who may experience discrimination or persecution based on their sexual orientation or gender identity. 4 See Annette de la Torre, Note, Is Ze an American or a Foreigner? Male or Female? Ze’s Trapped!, 17 Cardozo J.L. & Gender 389, 404 (2011). 5 See id. at 403-04, 409. 6 See National Prison Rape Elimination Commission, National Prison Rape Elimination Commission Report 73-74 (2009), archived at http://perma.cc/0i82A7z1 hTj.
7 See, e.g., American Civil Liberties Union of Ariz., In their own Words: Enduring Abuse in Arizona Immigration Detention Centers 22-25 (2011), archived at http://perma.cc/0hBFAxzU4YZ.
8 See infra Part III.C.1. Page 3 of 31 37 Harv. J.L. & Gender 1, *3 in the context of detention by frequent and severe stigmatization, isolation, and even solitary confinement of LGBTI individuals. 9
These abuses have not gone completely unnoticed by the international community, though it is only in recent years that attention has been cast on these concerns. In October 2012, the United Nations High Commissioner for Refugees (″UNHCR″) issued its new 2012 Detention Guidelines governing the detention of refugees. 10 Intended to provide guidance to governments, legal practitioners, decisionmakers, and advocates, they provide valuable leadership regarding the special concerns of LGBTI asylum-seekers in detention. Guideline 9.7 provides as follows:
Measures may need to be taken to ensure that any placement in detention of lesbian, gay, bisexual, transgender or intersex asylum-seekers avoids exposing them to risk of violence, ill-treatment or physical, mental or sexual abuse; that they have access to appropriate medical care and counseling, where applicable; and that detention personnel and all other officials in the public and private [*4] sector who are engaged in detention facilities are trained and qualified, regarding international human rights standards and principles of equality and non-discrimination, including in relation to sexual orientation or gender identity. Where their security cannot be assured in detention, release or referral to alternatives to detention would need to be considered. In this regard, solitary confinement is not an appropriate way to manage or ensure the protection of such individuals. 11
Perhaps the most progressive and comprehensive iteration of UNHCR’s standards of detention for LGBTI asylum-seekers, the 2012 Detention Guidelines capture the range of harms that sexual minorities face when placed in immigration detention facilities. Although these guidelines are extremely welcome, UNHCR’s new Detention Guidelines alone are insufficient to address the severe problems that characterize the detention of sexual minority migrants more broadly. Though the guidelines provide valuable insight to states that may be well aware of the violations faced by LGBTI detainees, these detainees are often invisible within detention systems, such that it is crucial that advocates call attention to who exactly these individuals are and what specific violations they face.
Detention in and of itself can constitute a violation of international refugee and human rights law, as has been well documented. 12 The human rights of all detainees are jeopardized when they are detained, and LGBTI detainees are not unique in facing particular challenges as a group. A variety of subgroups of detainees, such as women, unaccompanied minors, and disabled people, may face specific and distinct persecutions. 13 We believe that important parallels to the LGBTI experience can be drawn from the scholarship considering the rights violations experienced by these individuals, given how all of these populations are often doubly marginalized, vulnerable not only to identity-based targeting that may lead to their becoming migrants in the first place, but also to targeting while detained, both from detention officials and other detainees.
The challenges that sexual minority detainees face in a global context are similar, but have not heretofore been extensively addressed in legal scholarship. 14 As will be discussed below, this dearth of information may be [*5] due to a variety of
9 See infra Part III.B. 10 U.N. High Comm’r for Refugees, Detention Guidelines: Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum-Seekers and Alternatives to Detention (2012), archived at http://perma.cc/0ZwerD WfGxr [hereinafter Detention Guidelines]. These replace detention guidelines issued in 1999, U.N. High Comm’r for Refugees, UNHCR’s Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum-Seekers (1999), archived at http://perma.cc/0DwpsdAaBWZ. 11 Detention Guidelines, supra note 10, at 39.
12 See, e.g., Guy S. Goodwin-Gill & Jane McAdam, The Refugee in International Law 462-64 (2007) (discussing the limitations on the imposition of detention and conditions in detention facilities to stay in compliance with international law); see also infra Part I.C.
13 See infra Part III. 14 For discussion of specific cases highlighting concerns of transgender migrants and detainees in the U.S. immigration system, see Pooja Gehi, Struggles from the Margins: Anti-Immigrant Legislation and the Impact on Low-Income Transgender People of Color, 30 Women’s Rts. L. Rep. 315 (2009) (discussing general treatment and subsequent marginalization of transgender individuals under Page 4 of 31 37 Harv. J.L. & Gender 1, *5 factors that contribute to the difficulty in documenting their needs, including general invisibility, as well as the challenges in identifying and gaining access to these groups.
With this Article, we aim to shed light on the detention of LGBTI migrants, a human rights problem that is not merely national but global, and yet insufficiently addressed by either legal or empirical study. We characterize the specific challenges that LGBTI individuals may face in detention, in the hope that practitioners, government authorities, and academics alike will benefit from increased awareness. Further, we identify the specific protection gaps for LGBTI detainees. States that choose to detain migrants must respond to these protection gaps if they are to comply with their obligations under international human rights law.
In addition to identifying and analyzing the situation of LGBTI migrants within international law, we further aim to call attention to the insufficient visibility of the unique challenges that LGBTI individuals may face in detention and seek more specific recommendations from the international community and compliance from detaining states. Although UNHCR’s directive in the 2012 Detention Guidelines on the treatment of LGBTI detainees is an important advance, we argue that further guidance is required in order for states to sufficiently address this problem.
Our scope in this Article is global--we seek to draw experiences, both good practices and key challenges, from a variety of nations across the world. Taking a global perspective on LGBTI immigration detention is critical to evaluating patterns of state treatment and short-and long-term impact. Because there is a significant lack of research on this issue, and many barriers that prevent researchers from accessing LGBTI migrants in detention, it can be very difficult to obtain accurate and specific statistics regarding this population. Extrapolation from global trends can provide a preliminarily useful ″bird’s-eye″ perspective, flagging issues that may not be obvious and alerting states and advocates to challenges observed globally that may also require attention in their own backyards.
Part I of this Article begins with a background on the practice of immigration detention and the ways in which detention has the potential to compromise basic human rights, including special protections for LGBTI individuals. Part II focuses on the threshold question of the identification of [*6] LGBTI individuals. When, how, and, perhaps most importantly, by whom should identification of sexual minorities occur, in order to best prevent human rights abuses? In order to grapple with this threshold question, the Article draws parallels to global trends in jurisprudence exploring whether or not LGBTI people have an obligation to be ″discreet,″ or pass a credibility assessment regarding their sexual orientation or gender identity, before meriting protection under international refugee law.
Part III details the specific challenges faced by individuals whose sexual orientation or gender identity may result in increased risk if they are placed in immigration detention. The Article addresses concerns such as violence by facility staff and inmates, barriers to accessing medical and mental health care, and challenges securing legal services. Access to legal representation can be especially crucial for detainees who wish to challenge their detention and gain meaningful access to a country’s domestic asylum system--if they are eligible for it--or other legal recourse that may free them from detention.
Finally, in the Recommendations and Conclusions, the Article first offers a call for increased research, awareness, and data collection on this topic, and second, preliminary recommendations that may ameliorate conditions for LGBTI detainees. We argue that ultimately, states must heed the recommendations by UNHCR and other international and nongovernmental organizations by providing alternatives to detention for all self-identifying sexual minorities, establishing noncustodial measures and alternative sentencing procedures. Recognizing that states’ decisions to detain can be rooted in a complicated, multifaceted rationale, we acknowledge that a recommendation to end all detention, even for the most vulnerable migrants, including LGBTI populations, may be untenable and lack practical meaning. Therefore, we offer suggestions to improve immigration law) and Laurel Anderson, Commentary, Punishing the Innocent: How the Classification of Male-to-Female Transgender Individuals in Immigration Detention Constitutes Illegal Punishment Under the Fifth Amendment, 25 Berkeley J. Gender L. & Just. 1 (2010) (examining transgender detainee treatment in the U.S. context). See also Karma R. Chavez, Spatializing Gender Performativity: Ecstasy and Possibilities for Livable Life in the Tragic Case of Victoria Arellano, 33 Women’s Stud. in Comm. 1 (2010) (applying theories of gender performativity and gender identity to U.S. immigration detention situations). Various human rights organizations have also reported on the global nature of these abuses. See, e.g., Human Rights First, Persistent Needs and Gaps: The Protection of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugees 6-9 (2010), archived at http://perma.cc/0NoM7XqezWr (describing protection gaps for LGBTI migrants, including in the detention setting). Page 5 of 31 37 Harv. J.L. & Gender 1, *6 upon protections for LGBTI detainees, if states determine that they must be detained. Yet we reiterate that detention in the immigration context should always be used as a last resort in exceptional cases, and urge state officials to consider the numerous alternatives to detention. If and when it is applied, detention should be implemented on an individual case-by-case assessment, not as a blanket policy.
I. Detention of Irregular Migrants and Effects on LGBTI Populations
Immigration detention has been described by one advocacy group as ″a growing phenomenon of modern governance as governments strive to regulate growing cross-border migration and limit the number of migrants who do not have legal status on their territory.″ 15 As states have expanded the [*7] practice of immigration detention, it has become critical that state governments and the international community devote greater attention and commitment to upholding the human rights of migrants in detention. While sovereign states have the authority to regulate migration flows within their borders, this regulation must not come at the cost of international human rights law. 16
Despite states’ legal obligations under human rights and refugee law, violations of detainees’ rights abound across the globe. 17 These violations include physical and sexual violence perpetrated both by facility staff and other inmates, indefinite or arbitrary detention of migrants, and severe lack of access to medical care. 18
This section lays the groundwork for Part III, which offers a detailed analysis of the ways that immigration detention compromises the human rights of LGBTI people in immigration detention. In this section, we provide the reader with background on a number of different substantive areas necessary for later analysis. These include: first, an overview of factors contributing to LGBTI migration generally; second, a discussion of states’ expanding practice of immigration detention; and third, an assessment of the ways in which detention compromises the human rights of all migrant detainees, including LGBTI persons.
A. Factors Contributing to LGBTI Migration
LGBTI migrants may experience a variety of push or pull factors that lead to the choice to depart their home countries. In some cases, the decision to emigrate is explicitly motivated by persecution suffered as a result of a migrant’s gender identity or sexual orientation. In other cases, LGBTI migrants’ decision to emigrate is rooted in more general desires, such as for a better economic situation or freedom of political opinion or religious beliefs. In either case, however, LGBTI individuals who migrate have likely lived through human rights violations in their home countries related to sexual orientation or gender nonconformance.
[*8] The push factors that encourage LGBTI individuals to leave their home countries are substantial. Indeed, in some cases the decision to leave is a matter of life or death. Suzanne B. Goldberg, in a formative article written in 1993, identified common types of persecution experienced by sexual minorities throughout the world as: ″police harassment and assault, involuntary institutionalization and electroshock and drug ’treatments,’ punishment under laws that impose extreme
15 Int’l Det. Coal. & La Trobe Refugee Research Ctr., There are Alternatives: A Handbook for Preventing Unnecessary Immigration Detention 6 (2011) [hereinafter IDC Report].
16 Office of the U.N. High Comm’r for Human Rights, Administrative Detention of Migrants 1, archived at http://perma.cc/ 0VTTnXrLSMt. 17 See, e.g., Rep. of the Working Grp. on Arbitrary Det., PP 59-65, Human Rights Council 13th Sess., Mar. 1-26, 2010, U.N. Doc. A/HRC/13/30 (Jan. 18, 2010); Parliamentary Assembly of the Council of Eur., Detention of Asylum Seekers and Irregular Migrants in Europe, P 3-4, 6-7, Resolution 1707 (2010) (Jan. 28, 2010), archived at http://perma.cc/8YHK-XLZE. See generally G.A. Res. 67/172, U.N. Doc. A/RES/67/172 (Dec. 20, 2012) (calling attention to the lack of human rights protection for migrants). See also U.N. High Comm’r for Human Rights, Opening Remarks to the Panel Discussion on ″Human Rights of Migrants in Detention Centres″ (Sept. 17, 2009), archived at http://perma.cc/0UtcEVKnmo1 (″The human rights treaty bodies, the Special Procedures of the Human Rights Council and the Universal Periodic Review process have underscored with increasing urgency concerns about human rights violations related to the detention of migrants, and of asylum seekers.″).
18 See sources cited supra note 17. Page 6 of 31 37 Harv. J.L. & Gender 1, *8 penalties including death for consensual lesbian or gay sexual relations, murder by paramilitary death squads, and government inaction in response to criminal assaults against lesbians and gay men.″ 19
Unfortunately, two decades later, sexual minorities worldwide continue to face severe discrimination and persecution at the hands of both private and state actors. Criminalization of same-sex relationships is still widespread. In seventy-six nations, engaging in consensual same-sex sexual activities between adults is a criminal act 20--often for both sexes, though sometimes only for men. 21 Although such criminalization is specific to nonconforming sexual orientation and does not normally refer to or otherwise criminalize transgender or intersex gender identity, oftentimes the criminalization of same-sex sexual activity acts as an ″indicator″ that those with nonconforming gender identity may be persecuted as well. 22 Nonconforming gender identity may also specifically be prosecuted under laws targeting cross-dressing or punished under other non-gender-specific legal doctrines. 23
Though not all countries impose criminal sanctions on same-sex relationships, this does not necessarily indicate a lack of persecution or discrimination against LGBTI individuals. Sexual and gender minorities, including transgender and intersex people, may still feel severe persecution in places where legal restrictions are unenforced or do not exist. 24 Even in countries where the laws are progressive on non-heteronormative sexual identity and [*9] gender nonconformity, such as in South Africa, pervasive social stigma and deeply held biases against sexual minorities have continued to lead to severe identity-based violence, including murder. 25 These daily-lived experiences of persecution, discrimination, criminalization, and social and familial stigma may become important considerations in evaluating the choices that sexual minorities face, and the behaviors they exhibit, if and when they are detained by other states once they have left their home countries.
In addition to the push factors of persecution and discrimination in their home countries, individuals may also be motivated to migrate by the potential pull factor of recent international media attention paid to LGBTI rights, especially in the West, and notable rights advancements made in these legal systems. Due to this reporting on LGBTI communities and those who speak out publically and ardently regarding LGBTI rights, potential migrants may be increasingly aware that greater protections for LGBTI rights may exist outside of their home country. 26 This ″magnet″ theory may explain LGBTI migration to countries that are known to be more hospitable for LGBTI individuals. 27
19 Suzanne B. Goldberg, Give Me Liberty or Give Me Death: Political Asylum and the Global Persecution of Lesbians and Gay Men, 26 Cornell Int’l L.J. 605, 605-06 (1993). 20 Lucas Paoli Itaborahy & Jingshu Zhu, Int’l Lesbian Gay Bisexual Trans & Intersex Ass’n, State-sponsored Homophobia: A world survey of laws: Criminalization, Protection and Recognition of Same-Sex Love 22 (2013), archived at http://perma.cc/0jDfQVnNVej. 21 Sabine Jansen & Thomas Spijkerboer, COC Nederland, Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe 21 (2011).
22 See id. 23 Id. For example, in Turkey, the Law on Misdemeanors prohibiting ″public exhibitionism″ and ″offences against public morality″ is used to impose fines against transgender people, Eur. Comm’n, Turkey 2009 Progress Report, at 26, SEC (2009) 1334 (Oct. 14, 2009). Courts have also on occasion applied the principle of ″unjust provocation″ in favor of perpetrators of crimes against transgender people. Id.
24 See Jansen & Spijkerboer, supra note 21, at 27-31 (documenting that even in countries where no criminal sanctions have ever been imposed or enforced against LGBTI people, they may face significant discrimination from national authorities or non-state actors).
25 Human Rights Watch, ’We’ll Show You You’re a Woman’: Violence and Discrimination Against Black Lesbians and Transgender Men in South Africa 1-2, 13-14 (2011), archived at http://perma.cc/0qXeikfC9dh. 26 For examples, see the following articles and videos discussing the circumstances leading to the murder of LGBT activist David Kato in Uganda: Jeffrey Gettleman, Ugandan Who Spoke Up for Gays is Beaten to Death, N.Y. Times (Jan. 27, 2011), archived at http://perma.cc/0Yn6rADaxVt; Xan Brooks & Elliot Smith, Call Me Kuchu: ’Nobody Expected David Kato to be Killed’, Guardian (Nov. 5, 2012), http://www. guardian.co.uk/film/video/2012/nov/05/call-me-kuchu-david-kato-video (last visited Nov. 12, 2013); Joelle Fiss, The Murder of David Kato: One Year Later, Human Rights First (Jan. 26, 2012), archived at http://perma.cc/0b1KxJEpZSY.
27 Thanks to Jayesh Rathood for helpful discussions prompting this line of thinking. Page 7 of 31 37 Harv. J.L. & Gender 1, *9
Regardless of why they choose to leave, it is clear today that many LGBTI individuals become global migrants. As the following sections discuss, their decision to leave coincides with a global increase in irregular migration and the detention of such migrants by receiving countries. As a result, the number of LGBTI migrants in detention also has grown.
B. States’ Expanding Practice of Immigration Detention
A complex variety of societal and political factors explain why states pursue detention of migrants. These include rises in xenophobia and racism in many parts of the world that fuel intolerance toward migrant populations. 28 Security concerns, especially in the wake of the 9/11 attacks, have commonly been cited by Western government leaders as a rationale for increased monitoring of national borders. 29 Yet the most common explanation [*10] offered by states for their expanded practice of detention is that, as they are confronted with increasing numbers of migrants, detention provides a means of controlling migration flows and deterring further irregular migration. 30 In addition to controlling migration flows, the United States further argues that detention facilitates deportation and protects the public from any dangers posed by detainees as they await their removal. 31
The Parliamentary Assembly of the Council of Europe recently noted that European member states had significantly expanded their use of detention as a response to the arrival of asylum seekers and irregular migrants. 32 Similarly, in the past decade, the United States has expanded its use of detention facilities for migrants. 33 This trend is reflected by the number of noncitizens detained by the U.S. Department of Homeland Security: in 1994, 6,785 people were in immigration detention per day in the United States; 34 by 2012, that number had increased almost fivefold to 32,953. 35 This increase in the practice of detention is evident in a variety of other countries as well. 36
28 Shyla Vohra, Detention of Irregular Migrants and Asylum Seekers, in International Migration Law: Developing Paradigms and Key Challenges 49, 64-65 (Ryszard Cholewinski, Richard Perruchoud & Euan MacDonald eds., 2007).
29 Id. at 64; IDC Report, supra note 15, at 10. 30 See Parliamentary Assembly of the Council of Eur., supra note 17, P 1; Jesuit Refugee Service Europe, Alternatives to Detention of Asylum Seekers 2 (Working Paper, 2008), archived at http://perma.cc/0TQz5FububH.
31 Alina Das, Immigration Detention: Information Gaps and Institutional Barriers to Reform, 80 U. Chi. L. Rev. 137, 138-39 (2013).
32 Comm. on Migration, Refugees and Population of the Parliamentary Assembly of the Council of Eur., The Detention of Asylum Seekers and Irregular Migrants in Europe Report, P 1, Doc. 12105 (Jan. 11, 2010) (referring in particular to the United Kingdom, France, and Italy).
33 Human Rights First, U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison 17 (2009), archived at http://perma.cc/0p8jJtJVCmR.
34 Donald Kerwin & Serena Yi-Ying Lin, Immigration Detention: Can ICE Meet its Legal Imperatives and Case Management Responsibilities? 6 (2009), archived at http://perma.cc/0Hkw9Zhqf4J.
35 Alison Siskin, Cong. Research Serv., RL32369, Immigration-Related Detention: Current Legislative Issues 13 (2012). The increase in detention in the United States was undoubtedly stimulated by the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in scattered sections of 8 and 18 U.S.C.), which expanded the federal government’s capacity to legally detain noncitizens. See Kerwin & Lin, supra note 34, at 6.
36 See NGO Statement on International Protection: Agenda Item 5. a), delivered to the Exec. Comm. of the U.N. High Comm’r for Refugees, 61st Sess., Oct. 4-8, 2010, 7 (2010), archived at http://perma.cc/0XdPUmeifz8; Robyn Sampson & Grant Mitchell, Global Trends in Immigration Detention and Alternatives to Detention: Practical, Political and Symbolic Rationales, 1 J. Migration & Hum. Security 97, 100 (2013). Page 8 of 31 37 Harv. J.L. & Gender 1, *10
Despite the prevalence of detention, it is unclear that detention meets the presumptive goals of states that choose to detain, namely deterring migrants from crossing their borders without authorization. 37 Furthermore, it appears that irregular migration is increasing globally, despite the attempts of governments to secure their borders against irregular migrants. 38
[*11] The international community has begun to respond to the violations of human rights law inherent in detention. 39 In 2008, for example, the United Nations General Assembly called for states to ″respect the human rights and the inherent dignity of migrants and … put an end to arbitrary arrest and detention.″ 40 The Working Group on Arbitrary Detention under the United Nations Human Rights Council has issued numerous reports citing the dangers of arbitrary detention; its mandate was renewed in 2010 for an additional three years to pursue ″the investigation of instances of alleged arbitrary deprivation of liberty.″ 41 UNHCR has reiterated its concerns regarding the effects of detention on refugee populations; one senior officer remarked that ″detention is generally an extremely blunt instrument to counter irregular migration. There is no empirical evidence that the threat of being detained deters irregular migration or discourages people from seeking asylum.″ 42 NGOs dedicated to the issue of detention have similarly identified concerns with the worrisome expansion of migrant detention 43 and worked to frame their advocacy from a rights-based perspective, citing norms under international law and regional human rights standards that protect irregular migrants. 44 Scholarly attention has also turned to the human rights and refugee rights violations within detention centers, although these violations have been little explored from the specific perspective of LGBTI migrants. 45 Despite the best efforts of international organizations, NGOs, and [*12] academia to address the growing phenomenon of migrant detention, problems remain acute.
C. International Human Rights Law and Immigration Detention
Detention of migrants, as currently practiced in most countries, does not comport with international law. This has become evident as international judicial bodies have clarified the legal rights of those in detention, and as more and more human
37 See Alice Edwards, Methods of First Resort: Alternatives to Immigration Detention in Comparative Perspective, 7 Equal Rts. Rev. 117, 117 (2011).
38 Id. 39 See, e.g., Global Migration Group, Statement of the Global Migration Group on the Human Rights of Migrants in Irregular Situation (Sept. 30, 2010), archived at http://perma.cc/0y3hKDTe8pB. 40 G.A. Res. 63/184, U.N. Doc. A/RES/63/184 (Dec. 18, 2008), P 9.
41 Rep. of the Working Grp. on Arbitrary Det., P 1, Human Rights Council 16th Sess., Feb. 28-Mar. 25, 2011, U.N. Doc. A/HRC/16/47 (Jan. 19, 2011).
42 UNHCR Urges States to Avoid Detaining Asylum-Seekers, U.N. High Comm’r for Refugees (May 12, 2011), archived at http://perma.cc/0VbyDwYmZ9e. 43 See IDC Report, supra note 15, at 10-11 (identifying ″serious concerns″ with the expanded use of immigration detention, given that detention is not an effective deterrent and that it interferes with human rights and with detainees’ health and wellbeing).
44 See, e.g., Int’l Det. Coal., Migrants Forum in Asia, Migrants Rights. Int’l & Nat’l Network for Immigrant and Refugee Rights, Statement to the Human Rights Council 12th Session, Geneva Meeting on Migrants in Detention, 17th September, 2009, McGill Univ. Hans & Tamar Oppenheimer Chair in Pub. Int’l Law (Sept. 17th, 2009), archived at http://perma.cc/0Ajy34A97GH.
45 See, e.g., Acer & Goodman, supra note 1 (describing the numerous human rights protections available to detainees, but with no discussion of LGBTI-specific challenges); see also Edwards, supra note 37 (same). In the United States, LGBTI detention conditions have drawn recent attention as a result of a complaint filed against the U.S. Department of Homeland Security’s Office of Civil Rights and Civil Liberties in 2011, alleging systemic abuse of LGBTI detainees related to their sexuality and/or gender identity. See Yasmin Nair, NIJC Files Mass Civil Rights Complaint on Behalf of LGBT Immigrant Detainees, Windy City Times (Apr. 13, 2011), archived at http://perma.cc/056FSZ1Z ye6. See also Christina Fialho, A Model Immigration Detention Facility for LGBTI? 42 Forced Migration Rev. 50 (2013) (describing filed complaint and response from the Department of Homeland Security, which established one immigration custody unit as an LGBTI-only facility in the Santa Ana City Jail in California). Page 9 of 31 37 Harv. J.L. & Gender 1, *12 rights violations have been documented across the globe relating to detention. 46 Among the central protections of human rights law that relate to detainees are the prohibition of torture, the prohibition of arbitrary detention, and the right to liberty. 47 In addition, the global human rights framework provides nondiscrimination clauses, guaranteeing that the numerous human rights protections are available for all individuals, regardless of any given person’s status of citizenship or migration. The United Nations Human Rights Committee (″HRC″), for instance, has clarified with regard to the International Covenant on Civil and Political Rights (″ICCPR″) that the ″general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens,″ and confirms that such rights ″apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.″ 48 Thus, migrants never lose the benefits provided by their inherent human rights while they are in detention.
Beyond the provisions that apply to all human beings under human rights law, special provisions are afforded individuals who qualify as refugees and asylum seekers under the Refugee Convention and 1967 Protocol Relating to the Status of Refugees. 49 These include the 1951 Convention’s freedom of movement provisions 50 and accordant prohibitions on penalizing migrants for illegal entry or presence 51 or limiting their freedom of movement any more than deemed necessary. 52 Due to the grave potential for violations of the Refugee Convention, UNHCR has indicated that there exist [*13] only a limited number of circumstances under which detention should be contemplated by a government. 53 According to the Executive Committee of UNHCR, states may only resort to detention for the purposes of: (1) verifying identity; (2) verifying claims of refugee status; (3) handling asylum seekers who have destroyed their travel or identity documents or have used fraudulent documents in order to mislead immigration authorities; or (4) protecting national security. 54 These circumstances are defined as situations of necessity, and national law must clearly lay out provisions for such detention if states intend to detain at all. 55
In recent years, human rights tribunals and bodies have promulgated standards beyond the general protections offered to all detainees that apply specifically to LGBTI populations. The HRC, as the treaty-monitoring body that evaluates state compliance of the ICCPR, has reiterated in a number of cases that human rights principles of the ICCPR apply equally to
46 See supra note 17. See also IDC Report, supra note 15, at 11 (explaining how detention interferes with individuals’ human rights).
47 See generally U.N. Human Rights Comm., Gen. Comment No. 15: The Position of Aliens under the Covenant, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. I) (Apr. 11, 1986) (discussing torture, right to liberty, and nondiscrimination); U.N. Comm. on the Elimination of Racial Discrimination, Gen. Recommendation No. 30: Discrimination against Non-Citizens, P 19, U.N. Doc. A/59/18 (Jan. 10, 2004) (discussing arbitrary detention and nondiscrimination).
48 U.N. Human Rights Comm., supra note 47, P 1. See also U.N. Human Rights Comm., Gen. Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, P 10, U.N. Doc. CCPR/C/21/Rev.1/Add. 13 (Mar. 29, 2004) (affirming the principles behind General Comment No. 15).
49 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267. 50 See Refugee Convention, supra note 2, arts. 26. 51 Id. art. 31(1).
52 Id. art. 31(2). 53 See U.N. High Comm’r for Refugees, Exec. Comm. Conclusions on Detention of Refugees and Asylum-Seekers, U.N. Doc. A/41/12/Add.1 (Oct. 13, 1986).
54 Id. (″In view of the hardship which [detention] involves, detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order.″).
55 See id. Page 10 of 31 37 Harv. J.L. & Gender 1, *13 all without discrimination to LGBTI populations. 56 Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (″ICESCR″) mandates states to guarantee covenant rights ″without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,″ the expansiveness of which undeniably covers discrimination based on LGBTI status. 57 Consequently, state parties to the ICCPR and the ICESCR must ensure protection of all covenant rights for all LGBTI migrants within their territories as set forth in both treaties. In addition to these basic human rights standards, the international community has promulgated a set of principles specifically addressing the rights of LGBTI people. The Yogyakarta Principles, a series of proposed norms developed in 2006 by a group of experts on sexual orientation and [*14] gender identity, lay out the primary international law protections for sexual minorities and offer states guidance, although not binding authority, on best practices for ensuring human rights of LGBTI populations. 58
Though the recommendations of these international human rights bodies have been crucial for global advancement of LGBTI rights, little jurisprudence or guidance exists that addresses the specific harms LGBTI migrants face while detained. As of this writing, the only occasion on which an international tribunal found an international law violation specific to LGBTI migrant detention came as recently as October 2012. The European Court of Human Rights (″ECHR″) held in X v. Turkey that segregating LGBTI detainees violates their human rights if it deprives them of meaningful access to detention center services or is tantamount to penal solitary confinement. 59 This holding marked the first and only occasion in which the ECHR found a violation specific to sexual orientation or gender identity with regard to Article III of the European Convention on Human Rights prohibiting punishment that amounts to torture or inhuman or degrading treatment. 60
The lack of development in international law jurisprudence specifically addressing LGBTI individuals in immigration detention is unsurprising, considering how difficult it is to determine the nature and extent of LGBTI migrant detention on a global scale. LGBTI people who find themselves in immigration detention reflect a diverse population of individuals who have left their countries of origin for a variety of reasons. Yet due to the difficulty of accessing these populations and the common, though not universal, lack of willingness of LGBTI individuals to identify themselves as LGBTI unless identified by others, it is difficult to secure data on how many LGBTI irregular migrants have left their homes as a result of LGBTI-specific persecution, as a result of other types of persecution, or simply as a result of other factors which may have caused them to seek a better life outside their home countries. 61
Better understanding the factors that influence LGBTI individuals’ decisions to migrate may shed light on what choices they face if they are placed in detention. Individuals who have come of age in societies where nonconforming sexual identity or gender identity is criminalized may not be comfortable [*15] self-identifying as ″out″ when they have not done
56 See International Covenant on Civil and Political Rights art. 26, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR] (″All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.″). The HRC articulated in Toonen v. Australia that the reference to ″sex″ in the ICCPR’s antidiscrimination provision ″is to be taken as including sexual orientation.″ See U.N. Human Rights Comm., Views of the Human Rights Comm. under Art. 5, Para. 4, of the Optional Protocol to the Int’l Covenant on Civil & Political Rights, P 8.7, U.N. Doc. CCPR/C/50/D/488/1992 (Mar. 31, 1994).
57 International Covenant on Economic, Social and Cultural Rights art. 2(2), Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].
58 The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (2007), archived at http://perma.cc/0eHAQVDMetK.
59 X v. Turkey, App. No. 24626/09, 6-9 (2012), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113876, archived at http://perma.cc/0MLWY7cBEs7.
60 For more commentary on the impact of this particular case, see Paul Johnson, The Impact of X. v. Turkey: Homosexuality and the ECHR, Jurist.org (Oct. 9, 2012, 9:10 PM), archived at http://perma.cc/0u92jFa7RfM. 61 In particular, there is a significant lack of data regarding intersex migrants in detention, possibly because many intersex individuals identify publicly as either male or female, not as ″intersex,″ and may not identify as sexual minorities, making it hard to reach the intersex population. Page 11 of 31 37 Harv. J.L. & Gender 1, *15 so previously. Just as an individual’s choice to reveal or hide his sexual orientation or gender identity is the result of a complicated and varied set of factors, equally complex factors are also likely to come into play in determining how best to provide protection for LGBTI migrants in detention.
Better understanding the factors that influence LGBTI individuals’ decisions to migrate may shed light on what choices they face if they are placed in detention. Individuals who have come of age in societies where nonconforming sexual identity or gender identity is criminalized may not be comfortable self-identifying as ″out″ when they have not done so previously. Just as an individual’s choice to reveal or hide his sexual orientation or gender identity is the result of a complicated and varied set of factors, equally complex factors are also likely to come into play in determining how best to provide protection for LGBTI migrants in detention.
II. Identification of LGBTI Migrants
Prior to identifying the failings of detention systems for LGBTI migrants, it is necessary to answer a threshold question: Who comprises the group of LGBTI migrants in detention? This issue touches upon important questions regarding whether individuals, states, or other actors should have the agency to determine the process by which a person is labeled as LGBTI within a detention system, and subsequently whether that person receives special protections as a result of that identification. At what point in the detention process should a person be identified as LGBTI, and who should make this identification?
Detained LGBTI migrants share many characteristics with other vulnerable groups in detention. For example, women in detention may have specific physical and mental health needs, such as a need for maternal health services, 62 assistance with the aftereffects of rape, 63 or protection from sexual violence while detained. 64 Similarly, children face unique challenges if they are deprived of education or appropriate mental health treatment, 65 are detained [*16] with juvenile offenders irrespective of whether they themselves are offenders, 66 or put into solitary confinement. 67 Migrant detainees who suffer from mental illness face especially difficult circumstances as they may be unable to advocate for themselves, and ″may be punished for behavior they cannot control.″ 68 Further, they may be denied medical treatment for mental disabilities when the disabilities are not made known to detention staff. LGBTI detainees face many challenges similar to those experienced by other vulnerable groups. As will be discussed in Part III of this article, some examples of the special
62 See, e.g., Eve B. Burton & David B. Goldstein, Vietnamese Women and Children Refugees in Hong Kong: An Argument Against Arbitrary Detention, 4 Duke J. Comp. & Int’l L. 71, 76-77 (1993).
63 See, e.g., id. at 76. 64 See, e.g., Mark Townsend, Detainees at Yarl’s Wood Immigration Centre ’Facing Sexual Abuse’, Guardian (Sept. 14, 2013), archived at http://perma.cc/07Ym3XS5Eea.
65 See, e.g., Terry Hutchinson & Fiona Martin, Mental Health and Human Rights Implications for Unaccompanied Minors Seeking Asylum in Australia, 1 J. Migration & Refugee Issues 1, 19-20 (2006) (suggesting that unaccompanied children detainees whose mental health issues are left untreated are more susceptible to distress regarding detention conditions and long-term loss of social cohesion); Michael A. Olivas, Unaccompanied Refugee Children: Detention, Due Process, and Disgrace, 2 Stan. L. & Pol’y Rev. 159, 160 (1990) (noting that detained children in the United States have virtually no access to health care, mental health counseling, or education); M. Stern, The Educational Rights of Asylum Seeking Children: Observing Failure, 5 Pub. Space: J.L. & Soc. Just. 1, 1-7 (2010) (detailing inadequate educational facilities for children detained in Christmas Island, Australia); Lisa Rodriguez Navarro, Comment, An Analysis of Treatment of Unaccompanied Immigrant and Refugee Children in INS Detention and Other Forms of Institutionalized Custody, 19 Chicano-Latino L. Rev. 589, 602 (1998) (indicating that access to psychiatric care in U.S. detention centers is problematic, despite over fifty percent of children suffering from post-traumatic stress disorder). 66 See, e.g., Emily A. Benfer, Note, In the Best Interests of the Child: An International Human Rights Analysis of the Treatment of Unaccompanied Minors in Australia and the United States, 14 Ind. Int’l & Comp. L. Rev. 729, 745 (2004). 67 See, e.g., id. 68 Bill Ong Hing, Systemic Failure: Mental Illness, Detention, and Deportation, 16 U.C. Davis J. Int’l L. & Pol’y 341, 364 (2009). See also Nora J. Kenworthy, Asylum’s Asylum: Undocumented Immigrants, Belonging, and the Space of Exception at a State Psychiatric Center, 71 Hum. Org. 123, 124-125 (2012) (noting that mental illness affected ″abilities to claim rights, citizenship, and belonging″ in migrants to the United States); Claire O’Connor, The Impact of Detention on the Mental Health of Immigration Detainees: Implications Page 12 of 31 37 Harv. J.L. & Gender 1, *16 challenges that LGBTI detainees experience can include increased vulnerability to violence and sexual abuse, subjection to solitary confinement, and lack of appropriate medical treatment and mental health services.
Despite these commonalities, one challenge that distinguishes LGBTI detainees from other vulnerable populations is the difficulty of identifying individual members of this group. This issue may not typically arise when considering the needs of other potentially vulnerable groups in detention, as there may not be any choice involved with regard to identification. For example, women are typically separated from men in the context of detention in the same way that public bathrooms tend to be categorized: by biological sex. 69 Similarly, children need not choose to ″come out″ and identify themselves as children; their birthdates identify them as such. Although the mentally ill are perhaps not as easily identifiable as other vulnerable groups, some of these individuals may not have the choice to ″come out″; their vulnerability may be rooted in a medical condition that is difficult or impossible to hide. Though it is accurate that other mentally ill individuals may be [*17] missed by authorities and may be detained with the general population, the mental health profession has nonetheless set professional standards to diagnose mental illnesses, which may be used to determine whether or not a person falls into this vulnerable group in the detention context. Thus, because the characteristics associated with membership in such groups are for the most part more obvious, reports and analyses on the protection gaps faced by vulnerable populations such as women, children, and the mentally ill do not generally address the issue of identification. 70
On the other hand, within the diverse group classified as LGBTI, no standards exist to classify LGBTI detainees as such. Furthermore, sexual minorities may have varying abilities to ″pass″ or ″cover,″ choosing not to identify, visibly or otherwise, with a vulnerable group. This potential for invisibility presents both opportunities and challenges for LGBTI detainees.
Sexual minorities are incredibly heterogeneous within the LGBTI umbrella. ″LGBTI″ is an imperfect name for a group that encompasses a variety of people, some of whom may easily ″pass″ as gender-conforming, such as lesbian women or gay men whose outward expression and behavior conform to culturally heteronormative presentations of gender. These people may never be identified by others as LGBTI unless they choose to be, or they may be ″out″ and present as such. Others may not have the option of concealing their gender identity while in detention. For instance, transgender individuals in the earlier stages of transition through hormonal therapy or other treatments may be particularly visible within a detained population. Thus, within the LGBTI group, visibility varies greatly, as does the likelihood of experiencing identity-based targeting due to an individual’s visibility as nonconforming in sexual orientation or gender.
Even within the group of LGBTI detainees who have the ability to ″pass″ and do not obviously present as belonging to a vulnerable subgroup of detainees, multiple subtle issues regarding LGBTI self-identification and expression arise. Although some LGBTI people may make conscious choices about how to present or not present, depending on where the person is in the ″coming out″ process, not all may be self-aware enough to articulate their identity as such. Scholars who have explored the psychological complexities around the process of self-identifying as LGBTI have commented that ″in the absence of a safe environment, many LGBT individuals are not able to work through the internal processes necessary to allow them to integrate the multiple aspects of their sexuality.″ 71 Thus, processes by which individuals determine how or even whether to self-identify as LGBTI are enormously complex.
The diversity among LGBTI detainees not only indicates that different subgroups may require different types of protection, but also presents an [*18] additional challenge: when an individual has the capacity to control her outwardly expressed identity, and thus disassociate from a vulnerable group, should she still be classified as part of a vulnerable population, given that she needs to obfuscate her sexual orientation or gender identity while she is detained? for Failure to Deliver Adequate Mental Health Services--Who Cares, 9 U. Tech. Sydney L. Rev. 125, 134 (2007) (illustrating Australian examples of detention and deportation of migrants with severe mentally illness).
69 See Detention Guidelines, supra note 10, at 29 (emphasizing the need to segregate men from women and children from adults in detention facilities unless they are within the same family unit). Certainly, identification as one sex or another is much more complex, and it is problematic that detention centers assume that groupings like ″women″ or ″men″ are stable or exist in contrast to each other, given that both intersex and transgender people complicate this analysis. 70 See, e.g., sources cited supra notes 62-68. 71 Ariel Shidlo & Joanne Ahola, Mental Health Challenges of LGBT Forced Migrants, 42 Forced Migration Rev. 9, 9 (2013). Page 13 of 31 37 Harv. J.L. & Gender 1, *18
Ironically, an LGBTI detainee’s expression of nonconforming sexual orientation or gender identity may either lead to a protection gap, in the shape of increased persecution and abuse based on the public knowledge of that status, or to increased protections, in the shape of tailored treatment aimed at the specific needs of individuals in that group. This dilemma implicates the debate raised by Kenji Yoshino’s seminal article Covering. 72 Yoshino claims that gays and lesbians may assimilate within society in a number of ways: (1) by converting their identity and becoming straight; (2) by ″passing″ as straight and hiding their identity; or (3) by ″covering,″ a process through which LGBTI people downplay their identities in a way that ″makes it easy for others to disattend [their] orientation.″ 73 Yoshino’s principal argument posits that as individuals in society are forced to either pass or cover their sexual identities in order to experience certain protections, they are also left bereft of other protections they might be entitled to as a result of their vulnerable status being expressed.
LGBTI individuals in detention are faced with this same challenge--public expression of their sexual orientation or gender identity while detained may result in increased protection, if it is recognized appropriately, but to claim this status more often than not exposes LGBTI people to increased violations of their basic human rights. The dilemma that revealing one’s sexual orientation or gender identity may either lead to increased protection or increased rights violations highlights the difficulty in determining whether LGBTI migrants in detention should be compelled either to reveal or obfuscate their LGBTI status. The increased likelihood of abuse no matter how LGBTI migrants present also suggests that although obfuscation of LGBTI status may be deemed acceptable to some LGBTI detainees, the elimination of choice regarding how to express one’s sexual orientation or gender identity is an imperfect solution in the detention context. Though this question is not directly addressed under international law, two parallel areas of jurisprudence provide insight as to how human rights and refugee law might best consider this question.
A. The ″Discretion″ Requirement
That many LGBTI migrants are effectively forced to hide their sexual orientation or gender identity in detention in order to protect themselves from bias-motivated harm has not been adjudicated in immigration courts or [*19] widely discussed in scholarly literature. Yet an important parallel can be drawn between this issue and the issue of whether applicants for asylum should be required to exercise discretion regarding their sexual orientation or gender identity.
The so-called ″discretion″ requirement has recently been addressed within the jurisprudence of domestic immigration courts. Courts in the United States, Canada, Australia, the United Kingdom, and New Zealand have found that LGBTI individuals are eligible for asylum in those countries as members of a particular social group subject to persecution under the 1951 Convention. 74 Yet some of those courts have questioned whether refugees who may face persecution in their countries of origin due to their LGBTI status are legally required, before being eligible for asylum, to have exercised ″discretion″ in the expression of their sexual orientation or gender identity in their home countries.
If applied, the discretion requirement allows adjudicators to impose an expectation or duty on LGBTI applicants to have behaved ″discreetly″ while residing in their countries of origin--to conceal their sexual orientation or gender identity--to avoid persecution. This requirement not only implies that individuals who are capable of hiding their sexual orientation or gender identity have nothing to fear in their country of origin, assuming that they can remain discreet or tolerate a measure
72 Kenji Yoshino, Covering, 111 Yale L.J. 769 (2002).
73 Id. at 772. 74 Under the Refugee Convention, in order to qualify for refugee status, an individual must experience persecution as a result of race, religion, nationality, membership in a particular social group, or political opinion. Refugee Convention, supra note 2, art. 1(A)(2). Nonconforming sexual orientation has been accepted as the basis for a persecuted social group under the Refugee Convention in some major refugee-receiving countries since the 1990s. See, e.g., Matter of Toboso-Alfonso, 20 I&N Dec. 819 (B.I.A. 1990) (U.S.); Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 (Can.); N93/00593 [1994] RRTA 108 (Austl.); R v. Immigration Appeal Tribunal, ex parte Shah, (1992) 2 A.C. 629 (U.K.); Refugee Appeal No. 1312/93 Re GJ (unreported) Refugee Status Appeals Authority, 30 August 1995 (N.Z.). Page 14 of 31 37 Harv. J.L. & Gender 1, *19 of internalized repression, 75 but also presumes that individuals who can, should ″self-protect″ in this manner against LGBTI-based persecution and eliminate the need for them to apply for asylum at all. Accordingly, a United Kingdom case held that the key inquiry was whether living in discretion in one’s home country was reasonably tolerable, in which case an individual could not be granted asylum. 76
Decisions in 2003 and 2011 of the High Court in Australia 77 and the Supreme Court of the United Kingdom 78 eliminated the so-called discretion [*20] requirement, bringing each country’s laws in line with United States, Canada, and New Zealand law, 79 as well as UNHCR’s guidance on this topic. 80 In Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs, the Australian High Court noted the discrepancy between their courts’ approaches toward LGBTI refugees and other refugees, for instance refugees with political opinion claims, who would never be required under refugee law to be discreet about the political beliefs upon which their past persecution or fear of future persecution was based. 81 The court further found that ″to say that a decision-maker ’expects’ that [a] person will live discreetly [in their home country] may … be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is ’expected’ to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do.″ 82 Similarly, in HJ and HT, the Supreme Court of the United Kingdom overturned the jurisprudence of prior cases, which had required an examination of discretion. 83 Despite these rebukes by Australia and the United Kingdom, the asylum law of several other countries still maintains the discretion requirement. 84
In debating the merits of the discretion requirement, some scholars have criticized what is seen as an undue and potentially dangerous widening of the necessarily narrow requirements for refugee status under the 1951 Convention, claiming that if individuals are able to avoid state persecution by suppressing their sexual orientation or gender expression and thus their identities, then these applicants do not have a genuinely well-founded fear of persecution in their home country as required
75 See Jenni Millbank, From Discretion to Disbelief: Recent Trends in Refugee Determinations on the Basis of Sexual Orientation in Australia and the United Kingdom, 13 Int’l J. Hum. Rights 391, 398 (2009). 76 J v. Sec’y of State for the Home Dep’t, [2006] EWCA (Civ) 1238, [2007] Imm. A.R. 73 (appeal taken from Asylum & Immigr. Trib.) (Eng.) (″[The court] will have to ask itself whether ’discretion’ is something that the appellant can reasonably be expected to tolerate … .″). 77 Appellant S395/2002 v. Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473. 78 HJ (Iran) v. Sec’y of State for the Home Dep’t (HJ and HT), [2010] UKSC 31, [2011] 1 A.C. 596 (appeal taken from Eng. & Wales).
79 See U.S., Can., and N.Z. cases cited supra note 74. 80 U.N. High Comm’r for Refugees, UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity 8 (2008), archived at http://perma.cc/03H9B8zd57n (″Being compelled to forsake or conceal one’s sexual orientation and gender identity, where this is instigated or condoned by the State, may amount to persecution.″).
81 See James C. Hathaway & Jason Pobjoy, Queer Cases Make Bad Law, 44 N.Y.U. J. Int’l L. & Pol. 315, 326-27 (2012). 82 Appellant S395/2002, 216 CLR at 501. 83 HJ and HT, [2010] UKSC 31, [2011] 1 A.C. 596.
84 Jansen & Spijkerboer, supra note 21, at 33-36. The publication reports that discretion reasoning still occurs in the majority of European Union member states. Id. at 34 (examples were found in: Austria (mostly for bisexuals), Belgium, Bulgaria, Cyprus, Denmark, Finland, France, Germany, Hungary, Ireland, Malta, Netherlands, Norway, Poland, Romania, Spain, and Switzerland). Close to the time of publication of this Article, however, the Court of Justice of the European Union rejected the discretion argument, holding that gay asylum seekers cannot be reasonably expected to ″conceal [their] homosexuality in [their] country of origin.″ See Joined Cases C-199/12 to C-201/12, X, Y, Z v. Minister voor Immigratie en Asiel, para. 76, Curia (Nov. 7, 2013), http://curia. europa.eu/juris/document/document.jsf?text=&docid=144215&pageIndex=0& doclang=en&mode=req&dir=&occ=first&part=1&cid=529418, archived at http://perma.cc/KN7T-WB7V. Page 15 of 31 37 Harv. J.L. & Gender 1, *20 by the statute. 85 Under the 1951 Convention, only persons able to show a forward-looking risk of persecutory [*21] harm can establish a ″well-founded fear,″ and hence qualify as refugees. 86 Yet, the Australian and United Kingdom courts abolished the discretion requirement despite the notion that ″none of the applicants would face the real risk of physical abuse--because they understandably decided that disguising their sexual identity and avoiding conduct associated with their sexuality was the safest course of action.″ 87 This, according to the critique, raises a ″crucial challenge to satisfaction of the Convention’s ’well-founded fear’ requirement.″ 88 The counterargument posits that requiring individuals to obscure their sexual identity nullifies the core tenets of the 1951 Convention, and that the approaches taken by the high courts of Australia and the United Kingdom are fully within the contours of determining refugee status under the Convention. 89
B. Credibility Assessments in Immigration Evaluations
A second area of jurisprudence that is instructive in our analysis of the identification process of LGBTI detainees is credibility assessments of LGBTI applicants for asylum, specifically, the challenges that arise when immigration systems evaluate whether asylum should be granted on the basis of sexual orientation or gender identity (″SOGI″) status.
Assessing the credibility of a refugee claim is a crucial component of a refugee status determination. 90 However, a central problem with the legal determination of SOGI asylum claims is that individuals are forced to demonstrate that they are ″credibly″ identifiable as LGBTI to a finder of fact. 91 This bar may be difficult for someone to meet if he has not had, or does not have at the time of seeking asylum, concrete evidence of this identity, such as a relationship with someone of the same sex, or evidence of hormonal therapy or attempts to receive such therapy for the purpose of transitioning between genders. 92
Another issue in assessing the credibility of an asylum claim based on SOGI status is rooted in stereotypical assumptions regarding what constitutes [*22] LGBTI behavior. For example, research has demonstrated that in a high number of cases, tribunal evaluations used ″highly stereotyped and Westernised notions of ’gayness’ as a template that, when applicants did not fit, led to their claim of sexual identity being rejected.″ 93 In the United States, adjudicators’ assumptions regarding LGBTI individuals have also been identified as problematic. For example, in 2004, the U.S. Board of Immigration Appeals affirmed the findings of an immigration judge who recognized that a Mexican man was homosexual, yet claimed that his appearance was not stereotypically gay enough to merit protection. 94 A central concern in these claims is the non-probative and insensitive interrogation of the applicants’ sexual practices and gender expression, which would not occur with asylum
85 Hathaway & Pobjoy, supra note 81, at 331-33. 86 See Refugee Convention, supra note 2, art. 1(A)(2).
87 Hathaway & Pobjoy, supra note 81, at 331. 88 Id. 89 See Ryan Goodman, Asylum and the Concealment of Sexual Identity: Where Not to Draw the Line, 44 N.Y.U. J. Int’l L. & Pol. 407, 425-443 (2012) (critical responses to Hathaway and Pobjoy). 90 See generally Steve Norman, Assessing the Credibility of Refugee Applicants: A Judicial Perspective, 19 Int’l J. Refugee L. 273 (2007) (defending the use of credibility assessments in Australian refugee determination).
91 See Nick J. Mule & Erika Gates-Gasse, Envisioning LGBT Refugee Rights in Canada: Exploring Asylum Issues 20-21 (2012), archived at http://perma.cc/0SaoYQnUC4g.
92 See, e.g., Sarah Hinger, Finding the Fundamental: Shaping Identity in Gender and Sexual Orientation Based Asylum Claims, 19 Colum. J. Gender & L. 367, 387-392 (2010); Nicole LaViolette, Sexual Orientation, Gender Identity and the Refugee Determination Process in Canada 20-22 (2013), archived at http://perma.cc/0RzrAusM1zK. 93 Millbank, supra note 75, at 392. See also Nicole LaViolette, supra note 92, at 22-28; Sean Rehaag, Patrolling the Borders of Sexual Orientation: Bisexual Refugee Claims in Canada, 53 McGill L.J. 59 (2008) (on assessing the credibility of bisexuality).
94 In re Soto Vega. No. A-95880786 (B.I.A. January 27, 2004). See also Fadi Hanna, Case Comment, Punishing Masculinity in Gay Asylum Claims, 114 Yale L.J. 913 (2004) (critiquing the original decision in In re Soto Vega, in which the immigration judge explained, ″I didn’t see anything in his appearance, his dress, his manner, his demeanor, his gestures, his voice, or anything of that nature that remotely approached some of the stereotypical things that society assesses to gays″). Page 16 of 31 37 Harv. J.L. & Gender 1, *22 claims by heterosexual or gender-conforming applicants, and may contribute to discrimination against and even exoticization of LGBTI asylum seekers. Additionally, the stereotyped expectations for LGBTI people’s behavior may pressure them into what Yoshino refers to as ″reverse covering″--manipulating their external presentation to fit the evaluator’s stereotypes. 95 These problems present within the evaluation of SOGI asylum claims may also plague the process by which a state identifies the LGBTI individuals in its immigration detention systems. As demonstrated by the discussion of both the discretion requirement and credibility assessments, determining the best way of proving that a person should be identified as LGBTI is a difficult task. Finders of fact must recognize that identities exist on a continuum, and are culturally varied and dependent on local norms. The debate surrounding the discretion requirement reveals that, although LGBTI status may be malleable for some individuals to some extent, its malleability is not an indicator that it can be, or should be, suppressed entirely. Similar to SOGI status in immigration proceedings, it follows that individuals in detention should not be required or pressured to suppress their sexual orientation or gender identity for protection from targeted abuse. Discussions on credibility assessments further suggest that the very need to mask certain aspects of an individual’s sexual orientation or gender identity in order to survive may indicate that, upon arrival at immigration adjudication, her external presentation may not accord with the expectations an adjudicator would have for a person of that sexual orientation or gender identity. Similar challenges are also likely to arise within the immigration detention context, as a person may not outwardly [*23] express a sexual orientation or gender identity upon arrival, yet that same status may be present and indicate a need for additional protections.
C. Lessons Learned Regarding Identification of LGBTI Migrants in Detention
The debates surrounding both the discretion requirement and credibility assessments of LGBTI asylum seekers contribute to the question of how LGBTI migrants should be afforded specific protections as a vulnerable group when detained, since at least some members of this population may also be faced with the choice of whether and how to express their sexual or gender identity while in detention. In contrast to the asylum adjudication context, however, very little information is available describing the identification process of LGBTI migrants who arrive in immigration detention centers. It is clear that absent some means of identification, it is very difficult for such facilities to address the special vulnerabilities that LGBTI migrants in detention face. The options for how a state may identify LGBTI detainees, however, are limited. States may either develop mechanisms within their detention facilities to identify and classify LGBTI detainees, create mechanisms for self-identification by LGBTI detainees, or take a hybrid approach between these options. Further, once LGBTI detainees are identified, whether by others or through self-identification, a subsequent question arises of whether those individuals prefer to receive protection specific to their sexual orientation or gender identity. Nonetheless, regardless of what approach is used, the presence of LGBTI migrants in detention is problematic. For, while forcibly ″outing″ LGBTI migrants would violate their human rights, relying on self-identification can contribute to the protection gap. Given this intractable reality, we argue that states should avoid detaining LGBTI migrants entirely when at all possible.
In an asylum context, it is clear that LGBTI migrants should be afforded the right to self-identify. As articulated by the high courts of Australia and the United Kingdom, requiring an individual to obfuscate her sexual orientation or gender identity in order to obtain protection for persecution under international law compromises that individual’s basic human rights. 96 This is particularly true in the context of LGBTI migrants who are refugees due to the persecution they have faced on account of their gender non-conforming status. Requiring individuals to conceal their membership in a religious, racial, or social group to avoid persecution would nullify the purpose of the Refugee Convention as a protection regime. 97 Similarly, requiring detained LGBTI migrants who are seeking asylum to conceal their identities in [*24] order to avoid mistreatment in detention would be completely inappropriate, especially when considering the possibility that it is the societal demand of modification of behavior itself, or the impact that the modification has on the applicant, that may be the relevant persecutory harm.
95 Yoshino, supra note 72, at 909. 96 See generally supra notes 77-83 (describing court’s findings that discretion requirement was inconsistent with international law).
97 See Goodman, supra note 89, at 425-443 (arguing that requiring individuals to obscure their sexual identity nullifies the core tenets of the 1951 Refugee Convention). Page 17 of 31 37 Harv. J.L. & Gender 1, *24
Likewise, as discussed previously in the context of credibility assessments for LGBTI asylum applicants, basing standards for access to legal protections on static expectations of gender performance is problematic. One prominent report published by COC Netherlands, an LGBTI advocacy organization, examines differences between European states’ evaluations of LGBTI asylum claims. The report recommends that sexual orientation and gender identity should, in principle, be established through self-identification 98 in order to avoid reliance on sexual orientation and gender stereotypes imposed by untrained interviewers, judges, or decision-makers. 99 Such recommendations are similarly applicable in a detention context. Giving staff at detention facilities responsibility for determining the sexual orientation or gender identity of detainees could similarly result in a troubling reliance on rigid stereotypes and the creation of pressures for LGBTI migrants to conform their behavior to obtain needed protection.
While leaving LGBTI migrants to self-identify may be preferable in some ways, in a detention context, this approach can contribute to the protection gap that such migrants face. For, relying on detained LGBTI individuals to self-identify to determine eligibility for special protection does little to protect those who decide not to identify themselves at all once they are placed in detention facilities. Indeed, in many cases, expecting LGBTI detainees to self-identify may be unrealistic. LGBTI detainees may never have experienced being ″out″ before they are placed in immigration detention. Some individuals may have always concealed their sexual orientation or gender identity in their home countries because they feared harm from others, including their family members, friends, neighbors, society generally, or state authorities. Once placed in detention, it may be unreasonable to expect that these individuals would willingly self-identify as LGBTI. These same individuals, however, may still find themselves experiencing discrimination or abusive treatment at the hands of other inmates or detention personnel, even though they have not outwardly identified themselves as nonconforming in sexual orientation or gender.
Given these tensions, states should avoid detaining LGBTI migrants entirely when at all possible. This best practice ensures that states do not put LGBTI detainees in a position in which they are forced to conceal their LGBTI identity or risk facing persecution while detained. If states decide, [*25] however, for intricate reasons of policy necessity, that LGBTI migrants must be detained, they must be ready to grapple with the difficulty of LGBTI detainee identification. Exploring the discretion requirement and credibility assessments that are relevant in the asylum context reveals a number of factors that should be taken into consideration regarding the identification of LGBTI people in detention. First, they show the importance of allowing self-identification and creating opportunities to self-identify for individuals whose perception of self-identity is complicated by multiple layers of persecution, trauma, internalized homophobia, and other mental health-related concerns. Second, they point toward the fact that states must take into account that the presentation of sexual orientation and gender identity can be manipulated consciously or unconsciously, and that identity exists on a spectrum of varying externalized presentations and internalized feelings of self that do not fit neatly into Western notions of non-heteronormative sexual orientation or gender identity. Finally, these factors clarify that detention centers must provide adequate training for detention staff regarding these complexities.
Certainly, no simple answers exist to the problem of LGBTI status identification in the detention context. Yet, meaningful grappling with this question is essential in order to understand and address the protection gaps that face LGBTI migrants, and ensure that the individuals most in need of protection do not fall through the cracks because a detention system failed to identify them. Thus, it is important that advocates continue to monitor this question, collect and implement best practices, and continue to critically evaluate them over time.
III. Specific Protection Gaps Faced by LGBTI Migrants in Detention
When detaining LGBTI migrants, states are confronted with a variety of unique protection concerns. These potential violations are problematic from a general human rights perspective. They are particularly egregious in circumstances in which an individual seeks refuge specifically on account of her LGBTI status, only to be placed in detention and confront the same types of discrimination, persecution, or abuse that led to the search for asylum in the first instance. These
98 See Jansen & Spijkerboer, supra note 21, at 17 (″We emphasise that self-identification is crucial. A person in a monogamous heterosexual marriage may, nevertheless, experience her-or himself as lesbian, gay or bisexual.″).
99 See id. at 47-63 (detailing key issues when interviewers, judges, and other decision-makers, such as medical or psychological professionals, are called to identify migrants as LGBTI). Page 18 of 31 37 Harv. J.L. & Gender 1, *25 circumstances are of particular concern because the state involved may be in violation of both general international human rights law and its obligations under the 1951 Convention. The section below details four specific areas of concern that emerge among the potential human rights violations experienced by LGBTI detainees. 100
[*26]
A. Physical Violence, Sexual Violence, and Aftereffects of Violence
Best practices suggest that immigration detention facilities should be segregated by sex. 101 However, such sex-segregated facilities are not designed to safely accommodate LGBTI migrants. LGBTI detainees regularly experience identity-based physical and sexual harassment and violence, 102 as well as verbal abuse (including harassment and threats of rape) by both other detainees 103 and facility staff. 104 Research indicates that LGBTI detainees in both immigration and non-immigration contexts, particularly transgender individuals and gender nonconforming gay men, are more vulnerable to sexual violence in detention than heterosexual, gender-conforming inmates. 105 [*27] Transgender women, who are usually housed with
100 We note that since the majority of research and litigation challenging conditions experienced by LGBTI migrants in detention has taken place in the United States, this section centers primarily on conditions the United States and extrapolates from this data to immigration detention across the globe. Little evidence is available documenting global trends, in part to due to barriers researchers face accessing immigration detention facilities, see, e.g., Human Rights Watch, Stuck in a Revolving Door: Iraqis and Other Asylum Seekers and Migrants at the Greece/Turkey Entrance to the European Union 16-17 (2008), archived at http://perma.cc/0eMVHtRKnmC (describing the suboptimal conditions under which detention centers granted interviews with detainees, if at all), and the relative newness of this research area. To counter the lack of research, we also occasionally extrapolate from data collected about LGBTI prisoners in the criminal context to draw conclusions for LGBTI detainees in the immigration context. 101 See Detention Guidelines, supra note 10, at 29 (emphasizing the need to segregate men from women and children from adults in detention facilities unless they are within the same family unit). For country profiles on detention infrastructure, including on sex segregation, see Global Detention Project: Country Profiles, Global Detention Project, http://www.globaldetentionproject.org/countries.html (last visited Nov. 10, 2013), archived at http://perma.cc/0bgr31rYxJV. 102 See, e.g., European Union Agency for Fundamental Rights, Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States: Part II - The Social Situation 99-100 (2009), archived at http://perma.cc/0aBfxjpjPVK. See generally Conditions of Detention, Immigration Equality, http://www.immigrationequality.org/issues/detention/conditions-of-detention (last visited Nov. 12, 2013), archived at http://perma.cc/0mKkhLcPMM5 (focused on U.S. immigration detention). 103 Jansen & Spijkerboer, supra note 21, at 78.
104 See Comments to article from Ariel Shidlo, Clinical Assistant Professor of Psychology, Weill Cornell Medical Coll., to authors (Sept. 30, 2013) (on file with author) (″In my interviews with LGBT asylum seekers who have been in immigration detention, some former detainees reported that detention offers either directly or indirectly verbally abused them. For example, one FtoM transgender detainee who was housed with women was harassed by an officer: when he was in the women’s bathroom, the officer taunted him that he wanted to sexually assault female detainees. An example of indirect verbal abuse was the use of a female name to refer to a gay male detainee. These instances of anti-LGBT verbal abuse at the hands of officers left deep psychological scars in former detainees years after the incidents occurred.″).
105 See Stop Prisoner Rape, In the Shadows: Sexual Violence in U.S. Detention Facilities 12, 14 (2006), archived at http://perma.cc/06ckvFLngTc (noting, in discussing detainees in both immigration detention and criminal incarceration in the United States, that ″gay and transgender detainees, or those who are small, effeminate, and perceived to be gay or gender variant, experience rates of prisoner rape that are several times higher than those for inmates overall″ and that ″gay and transgender inmates are perhaps the hardest hit by sexual violence in custody. A study of one institution reported that 41 percent of gay inmates had been sexually assaulted, a rate that was three times higher than that for the institution overall.″). See also Erwin de Leon, The Plight of LGBT Immigrant Detainees, Feet in 2 Worlds (Feb. 15, 2012), archived at http://perma. cc/08ed4B1Hr7T (″The University of California’s Center for Evidence Based Corrections found in 2007 that ’sexual assault is 13 times more prevalent among transgender inmates, with 59% reporting being sexually assaulted.’″). Page 19 of 31 37 Harv. J.L. & Gender 1, *27 men in sex-segregated immigrant detention facilities, 106 are perhaps the most vulnerable to this abuse; in the United States, for instance, one in five transgender women prisoners have been sexually assaulted by prison staff or other inmates. 107
Detention facility officials may often choose to interpret any outward signs of homosexual orientation or transgender identity as evidence of ″consent to rape,″ and ignore complaints of sexual violence brought by sexual minority detainees. 108 Meanwhile, the few available reports on detention-based violence against sexual and gender minorities suggest that LGBTI detainees are reluctant to complain of sexual violence for fear of deportation 109 or retribution from staff or other detainees, 110 compounding their vulnerability to physical and sexual abuse. LGBTI migrants held in immigration detention facilities are additionally vulnerable to sexual violence because of overcrowding and a general lack of governmental oversight or civil society monitoring of these facilities. 111
The physical and psychological aftereffects of rape and other forms of sexual violence include sleep and eating disorders, depression, anxiety, hyper-vigilance, and post-traumatic stress disorder (″PTSD″). 112 For LGBTI migrants, sexual violence in immigration detention follows what is often a lifetime of physical assault, rape, and sexual harassment. 113 As a result, the [*28] impact of sexual violence in detention may be particularly devastating, both physically and emotionally, by exacerbating emotional scars, leading to more severe psychological damage and symptoms. 114
When detention authorities either engage in or fail to take appropriate measures to respond to physical and sexual violence directed at LGBTI detainees, their actions clearly violate the prohibition of torture or cruel, inhuman, or degrading treatment as defined by applicable human rights instruments. The ICCPR, for instance, obligates states to ensure that ″all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human
106 Amy Lieberman, Complaints by Transgender Detainees Quantify Abuse, Women’s eNews (Sept. 3, 2013), archived at http://perma.cc/0C6sKab8EMD (″Transgender women are typically housed with men or in solitary confinement.″).
107 Jaime M. Grant et al., Nat’l Gay & Lesbian Task Force & Nat’l Ctr. for Transgender Equal., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey 168 (2011), archived at http://perma.cc/0rNsNYHDN iv. For other relevant statistics on harassment and physical or sexual assault, see id. at 166-68. Little research has been conducted on the rates of detention-based violence against out lesbians and transgender men. Anecdotal evidence indicates that transgender men housed in women’s prisons face physical and sexual violence, but more often from guards than from other inmates. Alexander L. Lee, Nowhere to Go But Out, Part III.A (2003) (unpublished note), http://www.justdetention.org/pdf/nowheretogobutout.pdf, archived at http://perma.cc/04Hg4BNia65. The lack of research on violence against lesbian women and transgender men may be in part due to the fact that women’s detention facilities usually receive considerably less public attention than do men’s. See id. at Part III.
108 See Stop Prisoner Rape, supra note 105, at 14 (speaking in general about prisoners and immigration detainees). 109 Id. at 15. 110 Id. at 10. 111 Id. at 15; Stop Prisoner Rape, No Refuge Here: A First Look at Sexual Abuse in Immigration Detention 1-2, 8 (2004), archived at http://perma.cc/0Eyy T57ggjM. 112 Effects of Sexual Assault, Rape, Abuse & Incest Nat’l network, http://www. rainn.org/get-information/effects-of-sexual-assault (last visited Nov. 12, 2013), archived at http://perma.cc/043aKyqcPjb; Carol E. Jordan et al., Violence and Women’s Mental Health: The Impact of Physical, Sexual, and Psychological Aggression, 6 Ann. Rev. Clinical Psychol. 607, 613-14 (2010).
113 Shidlo & Ahola, supra note 71, at 9; see also Human Rights Watch, supra note 100 (chronicling anecdotal cases of rape and sexual assault of South African lesbians and transgender men). Recognition of the prevalent violence experienced by LGBTI persons led to the 2011 adoption by the Human Rights Council of the first United Nations resolution on sexual orientation and gender identity, H.R.C. Res. 17/19, U.N. Doc. A/HRC/RES/17/19 (July 14, 2011), and subsequent report on the issue, U.N. High Comm’r for Human Rights, Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on Their Sexual Orientation and Gender Identity: Rep. of the United Nations High Commissioner for Human Rights, U.N. Doc. A/HRC/19/41 (Nov. 17, 2011).
114 See Robert W. Dumond, The Sexual Assault of Male Inmates in Incarcerated Settings, 20 Int’l J. Soc. Law 135, 141-48 (1992) (identifying trends of re-victimization of rape survivors in U.S. prison context). Page 20 of 31 37 Harv. J.L. & Gender 1, *28 person.″ 115 As explained by the HRC, this entails a positive obligation to see that detained persons suffer no additional constraints other than the deprivation of liberty and that their dignity ″be guaranteed under the same conditions as for that of free persons.″ 116 Accordingly, the United Nations has previously recognized that such physical and sexual violence in the detention setting constitutes torture. 117 Failing to protect LGBTI detainees against physical or sexual violence in the detention setting is thus an unquestionable violation of the Universal Declaration of Human Rights (″UDHR″), 118 the International Covenant on Civil and Political Rights (″ICCPR″), 119 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (″CAT″), 120 as well as applicable regional instruments prohibiting torture and cruel, inhuman, or degrading treatment and guaranteeing security of the person, due process, dignity, and humanity. 121
[*29]
B. Social Isolation and Segregation of LGBTI Detainees
LGBTI migrants experience both social and physical isolation in detention. 122 Social isolation can occur for several reasons. Other detainees may isolate LGBTI migrants out of prejudice. Conversely, many LGBTI migrants isolate themselves from other detainees from their home countries in order to avoid potentially negative consequences of disclosing their sexual orientation. 123 This social isolation in detention mirrors what many sexual minorities experience in their countries of origin and may exacerbate feelings of depression or PTSD, and lead to other mental health consequences. 124
115 ICCPR, supra note 56, art. 10(1). 116 U.N. Human Rights Comm., Gen. Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of their Liberty), P 3, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. I) (Apr. 10, 1992).
117 See U.N. ESCOR, 48th Sess., 21st mtg., P 35, U.N. Doc. E/CN.4/1992/SR.21 (Feb. 21, 1992) (noting that ″since … rape and other forms of sexual assault … in detention were a particularly ignominious violation of the inherent dignity and right to physical integrity of the human being, they accordingly constituted an act of torture″). See also Just Detention International, Prisoner Rape is Torture Under International Law (2009), archived at http://perma.cc/0H4ZvXr7jbk.
118 See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, arts. 1-3, 5, 7, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) [hereinafter UDHR].
119 See ICCPR, supra note 56, art. 7. 120 See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment arts. 1-2, 16, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT].
121 While we have not included a detailed analysis of the ways protection gaps that LGBTI migrants face in immigration detention facilities violate regional human rights instruments, a number of such provisions may be applicable, depending on the type and location of the violations. See, e.g., African Charter on Human and People’s Rights art. 5, June 27, 1981, 1520 U.N.T.S. 217, 245 (prohibiting torture and cruel, inhuman or degrading treatment); Organization of American States, American Convention on Human Rights art. 5(2), Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 397 (prohibiting torture and cruel, inhuman or degrading punishment); Organization of American States, Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women art. 9, June 9, 1994, 33 I.L.M. 1534 (outlining needs of particularly vulnerable women, including ″migrants, refugees or displaced persons,″ in the face of rape, sexual abuse, and torture); European Convention for the Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 4, 1950, 213 U.N.T.S. 222, 224 (prohibiting torture and inhuman or degrading treatment). 122 See generally U.N. High Comm’r for Refugees, The Protection of Lesbian, Gay, Bisexual, Transgender and Intersex Asylum-Seekers and Refugees: Discussion Paper (Sept. 22, 2010), archived at http://perma.cc/0YGryZSUg9o (identifying various causes and impacts of social and physical isolation). 123 European Union Agency for Fundamental Rights, supra note 102, at 99-100.
124 See infra Part III.D. Page 21 of 31 37 Harv. J.L. & Gender 1, *29
In addition, LGBTI migrants may be physically isolated as a matter of policy. 125 Officials at facilities where migrants are detained sometimes proactively isolate LGBTI individuals from the general population, allegedly for their own protection: in the United States, for instance, LGBTI detainees are often placed in administrative segregation--an allegedly non-punitive form of isolation 126--because of their actual or perceived vulnerability to sexual violence. 127 Detaining states may thus cite safety, security, or public [*30] health as the basis for segregating sexual minorities from other detainees. 128 However, these reasons are neither acceptable under international law nor justified in practice. Rather, in reality, such practices are seriously detrimental to migrants’ safety, security, and health.
In many immigrant detention centers, such administrative segregation is indistinguishable from solitary confinement, involving confinement for 23 hours a day in a small cell with extremely limited access to the outdoors, other people, or activities like exercise. 129 Prolonged or indefinite solitary confinement has been shown to have a particularly devastating psychological impact, which in some cases is irreversible. 130 This practice can lead to severe mental health aftereffects and may exacerbate PTSD or other conditions developed by survivors of violence in their countries of origin or during migration. 131 Often, it is difficult or impossible for detainees to avoid segregation. This may expose already vulnerable LGBTI detainees to potential mistreatment, including further sexual violence, by facility staff. 132
Isolating LGBTI detainees violates their international human rights in a number of ways. 133 Subjecting LGBTI migrants to administrative segregation [*31] may constitute a violation of the right to equal protection of the law if conditions of
125 Throughout this section, when we discuss forced isolation rising to the level of a violation of human rights, we refer to isolation that is excessive in length or that takes place in conditions of detention that are substandard. In some very limited situations, such as at night, LGBTI migrant detainees may prefer isolation. However, true consent to be placed in isolation may be difficult to obtain in detention and will often involve the risk of physical or sexual violence by prison officials that takes place out of view of potential witnesses.
126 The U.S. Immigrations and Customs Enforcement defines administrative segregation as ″nonpunitive status in which restricted conditions of confinement are required only to ensure the safety of detainees or others, the protection of property, or the security or good order of the facility.″ U.S. Immigration & Customs Enforcement, Performance-Based National Detention Standards 2011 181 (2013), archived at http://perma.cc/0htKpdoCV1X. 127 Many sexual minorities are subject to involuntary solitary confinement, purportedly to provide them protection from sexual and physical violence. See Nat’l Immigrant Justice Ctr. & Physicians for Human Rights, Invisible in Isolation: The Use of Segregation and Solitary Confinement in Immigration Detention 9, 19-20 (2012), archived at http://perma.cc/0BG7QwezzEq; see, e.g., Johnson, supra note 60. 128 For instance, the U.S. Immigration and Customs Enforcement has specifically noted that administrative segregation may be used as a last resort for detainees with special vulnerabilities, ″[including] those … who would be susceptible to harm in general population due in part to their sexual orientation or gender identity.″ U.S. Immigration & Customs Enforcement, Directive 11065.1: Review of the Use of Segregation for ICE Detainees 1-2 (2013), archived at http://perma.cc/0ruDsRgHP kG. Many prisons also uphold segregation policies based on HIV/AIDS status; in such places, those who test positive upon arrival, or who are already known to be HIV positive, are housed in separate prison accommodations. Am. Civil Liberties Union Nat’l Prison Project & Human Rights Watch, Sentenced to Stigma: Segregation of HIV-Positive Prisoners in Alabama and South Carolina 3 (2010), archived at http://perma.cc/0EuoEK3275w. In Alabama and South Carolina, the two remaining states in the United States where such policies still exist, most prisoners who test positive are required to wear an armband or badge to signify their HIV positive status. See id. at 1, 26.
129 Nat’l Immigrant Justice Ctr. & Physicians for Human Rights, supra note 127, at 9-10 (2012) (stating that detainees in administrative segregation are placed in a tiny cell, rarely allowed out, and fed different food from the general detention center population).
130 Special Rapporteur of the Human Rights Council, Interim Rep. of the Special Rapporteur of the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, P 26, U.N. Doc. A/66/268 (Aug. 5, 2011) (by Juan E. Mendez). See also Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J.L. & Pol’y 325, 328-29 (2006). 131 Nat’l Immigrant Justice Ctr. & Physicians for Human Rights, supra note 127, at 13. 132 See Special Rapporteur of the Human Rights Council, supra note 130, P 70 (″Because of the absence of witnesses, solitary confinement increases the risk of acts of torture and other cruel, inhuman or degrading treatment or punishment.″)
133 The European Court of Human Rights has recognized that ″complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other Page 22 of 31 37 Harv. J.L. & Gender 1, *31 segregation limit access to the basic rights accorded to other detainees. 134 Segregation on the basis of sexual orientation constitutes a violation of the nondiscrimination principles set out in Article 7 of the UDHR, which provides that all people are ″equal before the law and are entitled without any discrimination to equal protection of the law″ and ″to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.″ 135 Such segregation also violates Articles 2 and 26 of the ICCPR. Article 2(1) provides that all individuals within a state party’s jurisdiction may access the rights set out in the ICCPR without distinction 136 and Article 26 guarantees all persons equal and effective protection of the law, without discrimination on any ground. 137 The isolation of LGBTI detainees runs a significant risk of violating both nondiscrimination provisions. 138
Placing LGBTI migrants in segregation may also rise to the level of torture or cruel, inhuman, or degrading treatment as defined by applicable human rights instruments. If the conditions of isolation are so inadequate that they lead to severe physical or mental pain or suffering, the isolation may amount to torture or to cruel and inhuman treatment prohibited by Article 5 of the UDHR; 139 Article 7 of the ICCPR; 140 and Article 16 of the CAT. 141 Such isolation will also violate detainees’ human rights if it is excessive or indefinite in length, or when the length of isolation is not communicated to the LGBTI detainee, which violates the right to due process set out in Article 9 of the ICCPR. 142 International human rights bodies have also held that isolating detainees amounts to torture or inhuman or degrading [*32] treatment when the conditions of isolation are so poor that it is tantamount to conditions of penal solitary confinement. 143
If the sexual minority detainee is a minor, any form or duration of isolation will constitute cruel, inhuman, or degrading treatment. According to the United Nations Committee on the Rights of the Child, minors should in principle not be detained at all, and in the extremely limited circumstances in which their detention is justified, states must make all efforts reason.″ Ilascu and others v. Moldova and Russia, 2004-VII Eur. Ct. H.R. 179, 288 (2004). Isolation of LGBTI detainees in the United States has also been held to violate due process rights set out in the U.S. Constitution. See, e.g., R.G. v. Koller, 415 F. Supp. 2d 1129 (D. Haw. 2006) (holding that placing LGBTI juvenile offenders in isolation to protect them from abuse violated their due process rights); Tates v. Blanas, No. S-00-2539 OMP P, 2003 U.S. Dist. LEXIS 26029, 2003 WL 23864868 (E.D. Cal. Mar. 6, 2003) (holding that a blanket policy of placing all transgender detainees in ″total separation,″ thus exposing them to harsh conditions normally reserved for the most dangerous inmates, violated transgender inmate’s constitutional rights); but see Estate of DiMarco v. Wyoming Dep’t of Corr., Div. of Prisons, 473 F.3d 1334 (10th Cir. 2007) (reversing district court judgment, which had held that segregating intersex prisoner from the general population of a male prison for 438 days in severe conditions violated her due process rights). See also Nat’l Ctr. for Lesbian Rights, Rights of Transgender Prisoners 1-2 (2006), archived at http://perma.cc/0gnVfxTqxqs (explaining the potential constitutional violations in administrative segregation of transgender prisoners). 134 See C.H.R. Res. 1995/44, U.N. Doc. E/CN.4/1995/L.11/Add.3 (Mar. 6, 1995) (confirming that ″’other status’ in non-discrimination provisions″ can be ″interpreted to cover health status, including HIV/AIDS″).
135 UDHR, supra note 118, art. 7.
136 ICCPR, supra note 56, art. 2. 137 Id., art. 26. 138 The reference to ″sex″ in both ICCPR provisions has been interpreted to include sexual orientation. See U.N. Human Rights Comm., supra note 56, P 8.7.
139 UDHR, supra note 118, art. 5. 140 ICCPR, supra note 56, art. 7.
141 CAT, supra note 120, art. 16. 142 ICCPR, supra note 56, art. 9(1). 143 See Special Rapporteur of the Human Rights Council, supra note 130, P 74 (stating that ″where the physical conditions of solitary confinement are so poor and the regime so strict that they lead to severe mental and physical pain or suffering of individuals who are subjected to the confinement, the conditions of solitary confinement amount to torture or to cruel and inhuman treatment″); X v. Turkey, App. No. 24626/09 (2012), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113876, archived at http://perma.cc/ 0MLWY7cBEs7 (plaintiff’s isolation conditions amounted to inhuman and degrading treatment). Page 23 of 31 37 Harv. J.L. & Gender 1, *32 to allow for the immediate release of children into other forms of appropriate accommodation. 144 The isolation of LGBTI minors in immigration detention would be an egregious violation of the Convention on the Rights of the Child.
Isolating LGBTI detainees who are mentally disabled or suffer from a previously existing mental condition, including the aftereffects of persecution in the country of origin, will likely violate the Convention on the Rights of Persons with Disabilities (″CRPD″). Article 14 of the CRPD specifically provides that persons with disabilities are entitled to enjoy their rights to liberty and security on an equal basis with others, and can be lawfully deprived of their liberty only for the reasons, and in accordance with the procedures, that would be applicable to other persons in the same jurisdiction. 145 Isolating LGBTI detainees with mental disabilities may also violate Article 10 of the ICCPR, which holds that all those deprived of their liberty must be treated with humanity and dignity. 146 This provision has been interpreted in conjunction with the United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, which upholds the basic rights of persons with mental illnesses or disabilities. 147
In light of the severe physical and psychological harm that often results from isolating LGBTI detainees, and the international law that is relevant to such treatment and its effects, authorities who detain LGBTI migrants run the very real risk of engaging in a practice constituting torture or cruel, inhuman, or degrading treatment and in a violation of due process and related rights set out in international legal instruments.
[*33]
C. Barriers to Medical Care
Another significant problem faced by LGBTI migrants in immigration detention is lack of access to adequate medical care. Many migrants suffer from physical aftereffects of persecution in their countries of origin 148 and harm experienced during the migration process. 149 Because migrants are on the move, they may not try to get treatment until they arrive in countries of first asylum. However, in immigration detention, the lack of access to medical care is particularly pronounced; for example, recent reports have focused on the barriers to medical care experienced by migrants in detention in Asia, the Middle East, North Africa, and the United States. 150 These and other reports indicate that in many immigration detention
144 See U.N. Comm. on the Rights of the Child, Gen. Comment No. 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, P 61, U.N. Doc. CRC/GC/2005/6 (Sept. 1, 2005).
145 Convention on the Rights of Persons with Disabilities art. 14, Dec. 13, 2006, 2515 U.N.T.S. 3. 146 ICCPR, supra note 56, art. 10(1).
147 See G.A. Res. 46/119, U.N. Doc. A/RES/46/119 (Dec. 17, 1991). 148 See supra Part I.C.
149 Reports on Eritrean migrants, for instance, indicate that they suffer physical torture during migration. See, e.g., Mirjam van Reisen et al., Human Trafficking in the Sinai: Refugees Between Life and Death 4 (2012), archived at http://perma.cc/0EowH6grbjZ (describing torture of Eritrean and other refugees in the Sinai, including ″severe beating, electrocution, water-drowning, burning, hanging, hanging by hair, and amputation of limbs″). This can lead to severe physical aftereffects. See, e.g., U.N. High Comm’r for Refugees, Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report - Universal Periodic Review: Israel 2 (2013), archived at http://perma. cc/0iY5gXDuDhs (noting after interviews of more than 500 asylum-seekers held hostage in the Sinai who had been ″subjected to abuse and torture at the hands of traffickers/smugglers attempting to extort money from their families″ that ″[all] the men and women interviewed bore visible scars, wounds and injuries attesting to the physical abuse they endured; injuries that were often so serious that it required medical intervention″).
150 See, e.g., Human Rights Watch, Ad Hoc and Inadequate: Thailand’s Treatment of Refugees and Asylum Seekers 30-31 (2012), archived at http://perma.cc/06cobPAyjAL (focusing on Thailand); Human Rights Watch, supra note 100, at 55, 63, 84 (focusing on Greece and Turkey); Rachel Levitan, Esra Kaytaz & Oktay Durukan, Unwelcome Guests: The Detention of Refugees in Turkey’s ″Foreigners’ Guesthouses″, 26 Refuge 77, 84 (2009) (Turkey); Human Rights Watch, Sinai Perils: Risks to Migrants, Refugees, and Asylum Seekers in Egypt and Israel 68-70 (2008), archived at http://perma.cc/0yzskA3B1BK (Egypt); Human Rights Watch, Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers 74, 80, 86 (2009), archived at http://perma.cc/0tR8ViSu8uL (Libya); Human Rights Watch, Detained and Dismissed: Women’s Page 24 of 31 37 Harv. J.L. & Gender 1, *33 facilities, only urgent [*34] medical care is provided, interpreters are rarely provided during medical procedures, and medical expenses are often borne by the detainees. 151
These factors stand in the way of appropriate medical care, and can seriously impair detainees’ health. 152 These problems are exacerbated by the unhealthy environment within many detention facilities--including crowded conditions and substandard hygiene, 153 which may increase the spread of communicable diseases and worsen the physical state of detainees with preexisting medical conditions.
We argue that the unhealthy nature of many detention facilities and the barriers to adequate medical care that often exist are especially problematic for LGBTI migrants who are held in such places. Many LGBTI asylum seekers and migrants enter detention with specific medical needs and have particular vulnerabilities relating to their physical health. Some of these health needs flow from sexually transmitted infections (″STIs″) more common in the LGBTI population and from gender reassignment and transition among transgender detainees. 1. Lack of Treatment for and Exposure to HIV/AIDS and Other Sexually Transmitted Infections
One particular health problem of concern for LGBTI migrants is the lack of protection, treatment, and care for HIV/AIDS and other STIs. LGBTI migrants in detention face significant exposure to HIV/AIDS and other STIs. Some arrive in detention infected, often due to exposure to sexual violence or a history of sex work. 154 Others are infected in detention, where rates of HIV/AIDS and other STIs tend to be higher than in the general population. 155 [*35] As observed by UNAIDS, the joint United Nations program focused on achieving universal access to HIV prevention and treatment,
Struggles to Obtain Health Care in United States Immigration Detention 24-63 (2009), available at http://perma.cc/0BYQ27FMjZ1 (United States, on women’s health); William Fisher, ICE Ignores Health of Immigration Detainees, Public Record (Dec. 21, 2010), archived at http://perma.cc/0F1WmgDoJCu (health care inadequacy in U.S. detention centers); Dana Priest & Amy Goldstein, System of Neglect: As Tighter Immigration Policies Strain Federal Agencies, the Detainees in Their Care Often Pay a Heavy Cost, Wash. Post, May 11, 2008, at A1 (United States). See also Special Rapporteur on the Human Rights of Migrants, Rep. of the Special Rapporteur on the Human Rights of Migrants, Human Rights Council, P 25, U.N. Doc. A/HRC/20/24 (Apr. 2, 2012) (by Francois Crepeau) (″The Special Rapporteur has … been made aware that mental and physical health of migrant detainees is often neglected. Doctors and nurses are not always available and may not have the authority to properly treat their patients, inter alia when they need hospitalization.″).
151 Office of the U.N. High Comm’r for Human Rights, supra note 16, at 12. 152 See, e.g., Tania Nicole Masmas, Asylum seekers in Denmark - A Study of Health Status and Grade of Traumatization of Newly Arrived Asylum Seekers, 18 Torture 77, 78 (2008) (noting that the physical and mental health of traumatized asylum seekers to Denmark is affected upon arrival in Denmark and waiting time in asylum centers leads to further deterioration in health). 153 Special Rapporteur on the Human Rights of Migrants, supra note 150, P 25.
154 Many LGBTI refugees report experiences of sexual violence throughout their lives, which may form the core of their claims for refugee status on the basis of sexual orientation or gender identity in the first place; others report engaging in survival sex work both in countries of origin and of migration, often because of family and community rejection and lack of access to other forms of employment or livelihood. See Yiftach Millo, Hebrew Immigrant Aid Society, Invisible in the City: Protection Gaps Facing Sexual Minority Refugees and Asylum Seekers in Urban Ecuador, Ghana, Israel, and Kenya (2013), archived at http://perma.cc/0U3pbrfSeSy; Human Rights First, The Road to Safety: Strengthening Protections for LGBTI Refugees in Uganda and Kenya (2012), archived at http://perma.cc/ 0uyY7PV4C8i; Neil Grungras, Rachel Levitan & Amy Slotek, Unsafe Haven: Security Challenges Facing LGBT Asylum Seekers and Refugees in Turkey, 24 Praxis: Fletcher J. of Human Security 41, 43, 50-51 (2009). It perhaps goes without saying that sexual violence and unprotected sex during sex work are both leading causes of HIV/AIDS and other STIs. 155 Because there is little research on HIV/AIDS infection in detention centers, we extrapolate this conclusion from research on HIV/AIDS infection in domestic prisons. For instance, in the United States, which has the highest prison population in the world, Tyjen Tsai & Paola Scommegna, U.S. Has World’s Highest Incarceration Rate, Population Reference Bureau (Aug. 2012), archived at http://perma.cc/0eRfGkXt4R1, around 1.5 percent of detainees are HIV positive, Bureau of Justice Statistics, U.S. Dep’t of Justice, Bulletin: HIV in Prisons 2001-2010 5 (2012), archived at http://perma.cc/0sLd7j4iQry, in comparison to the less than half percent rate in the general population, J. Taussig et. al., HIV Transmission Among Male Inmates in a State Prison System--Georgia, 1992-2005, 55 Morbidity & Mortality Wkly. Rep. 421, 421 (2006). For information on reasons for higher HIV/AIDS infection rates in U.S. prisons, see Christopher P. Krebs & Melanie Simmons, Intraprison HIV Transmission: An Assessment of Whether It Occurs, How It Occurs, and Who is at Risk, 14 AIDS Educ. & Prevention 53 (2002); Sandra A. Springer & Frederick L. Altice, Managing HIV/AIDS in Correctional Page 25 of 31 37 Harv. J.L. & Gender 1, *35 overcrowding in prison facilities, combined with a culture of violence and fear, create ideal breeding grounds for continued transmission of HIV. 156 UNAIDS further recognizes that sex and sexual violence between men is a significant cause of the spread of HIV in prison facilities worldwide. 157 Becoming infected as a result of sexual violence in detention is a particular concern to gender nonconforming men and transgender women, who often face higher risks of sexual violence than other detainees. 158
Regardless of whether LGBTI migrants are exposed to HIV/AIDS or other STIs prior to or during detention, it appears likely that LGBTI migrants in detention may be denied medical treatment for these conditions. 159 Medical staff and other facility staff may also fail to uphold basic confidentiality during diagnosis or treatment of HIV/AIDS or during other medical examinations, 160 thus violating Article 17 of the ICCPR, which prohibits ″arbitrary [*36] or unlawful interference″ with privacy. 161 Article 17 has been interpreted to ″encompasses obligations to respect physical privacy, … including the need to respect confidentiality of all information relating to a person’s HIV status.″ 162
When LGBTI migrants in detention infected with HIV/AIDS or other STIs face significant challenges accessing the appropriate medical care, such circumstances may reinforce the isolation, identity-related violence, and social stigma they face in detention, especially if their status becomes widely known to other detainees and staff due to breaches in confidentiality by medical facility staff.
2. Lack of Hormonal Treatment for Transgender Migrants
In addition to the health care provision gaps addressed above, transgender immigrant detainees may have very limited access to hormone treatment and other treatments associated with gender transition, which can lead to severe mental health
Settings, 2 Current HIV/AIDS Rep. 165, 165 (2005). Similarly, while approximately 17.8 percent of the South African population is HIV positive, UNAIDS, Global Report: UNAIDS Report on the Global AIDS Epidemic 2010 181 (2010), archived at http://perma.cc/ 0p6mqPKGEzy, a 2002 estimate measured that as much as 41.4 percent of incarcerated people were infected with HIV, World Health Org., Effectiveness of Interventions to Address HIV in Prisons 18 (2007), archived at http://perma.cc/0UWpDJuGeDu. For more general information on internationally occurring trends of high HIV infection rates in prisons, see U.N. Office on Drugs and Crime, HIV/AIDS Prevention, Care, Treatment and Support in Prison Settings: A Framework for an Effective National Response vii (2006), archived at http://perma.cc/0YkANeTxSqd. 156 Joint U.N. Programme on HIV/AIDS, Prisons and AIDS: UNAIDS Technical Update 2 (1997), archived at http://perma.cc/ 0wp3HZZAJL4. 157 See id. at 3.
158 See supra Part III.A. 159 See Joint U.N. Programme on HIV/AIDS, supra note 156, at 5 (noting only minimal health care is provided to prisoners with HIV or AIDS). Though very little data or anecdotal evidence is available documenting the experiences of migrants in detention with HIV/AIDS, based on reports exposing the entrenched sexual exploitation of sexual minority migrants, see supra note 154, combined with the many reports describing barriers to medical treatment in immigration detention facilities, see supra notes 150-173, it appears reasonable to assume that in most parts of the world, many LGBTI migrants are denied access to medical treatment for HIV/AIDS or other STIs while in detention. 160 See, e.g., Comments from Shidlo, supra note 104 (″In my interviews with LGBT asylum seekers who have been detained, one former detainee reported that a detention center officer violated confidentiality about his HIV status. After the former detainee told the officer that he was seeking asylum because of his sexual orientation and that he was HIV-positive, the officer placed a placard outside his cell that included his HIV status, his name, his date of birth, and the country that he was from. Other detainees who were from the same Central American small town that the HIV-positive detainee was from saw this placard. Later on, the former detainee discovered that rumors about his HIV status had spread throughout the town he was from and as a result he was doubly afraid to be forced back if he were to be deported.″). 161 ICCPR, supra note 56, art. 17.
162 Office of the U.N. High Comm’r for Human Rights & Joint U.N. Programme on HIV/AIDS, International Guidelines on HIV/AIDS and Human Rights: 2006 Consolidated Version, at 90, U.N. Doc. HR/PUB/06/9, U.N. Sales No. E.06.XIV.4 (2006). Page 26 of 31 37 Harv. J.L. & Gender 1, *36 consequences. 163 Research shows that transgender people tend to experience high levels of depression and anxiety, particularly when they are unable to express their deeply felt gender identities. 164 Transgender migrants who are unable to access hormone treatment may be at higher risk for depression, anxiety, and stress than those able to access such treatment. 165
Lack of access to hormone therapy may also lead to greater exposure to physical and sexual violence by immigration detention facility officers and other detainees. Transgender migrants who were able to ″pass″ as their self-identified gender prior to detention may no longer pass if they are denied [*37] access to previously available hormone treatment, putting them at greater risk of physical and sexual violence. 166 Transgender men detained with other male immigrant detainees, for instance, may be at particularly high risk for violence if their birth sex is discovered. 167
In the United States, access to hormone treatment for immigrant detainees is spotty at best. In 2011, the U.S. Federal Bureau of Prisons decided to allow transgender inmates to access hormone treatment regardless of whether they were receiving this treatment at the time they were detained. 168 Immigration detention policy in the United States, however, lags behind in comparison, and is more restrictive: though the federal guidelines for immigration detention, revised in 2012, allow transgender immigrant detainees to receive hormone treatment, this benefit is only afforded if a detainee was undergoing such treatment prior to being detained. 169 This is the case even if, due to the increased stressors of detention, transgender detainees experience intense feelings of ″gender discordance,″ which may make it particularly appropriate to administer hormone therapy and similar transition treatments. 170 The guidelines’ ″freeze frame″ approach thus does not assist transgender immigrant detainees who did not receive hormone treatment before being detained or were unable to get access to them in their home country.
Neither treatment for HIV/AIDS and other STIs nor hormone therapy is adequately provided in the immigration detention context. As observed by the NGO Immigration Equality regarding immigration detention in the United States, ″LGBT immigrants in detention today face grim prospects.″ 171 Not only are LGBTI migrants subject to general mistreatment by
163 We extrapolate this conclusion from denial of hormone treatment in the U.S. prison context. See Darren Rosenblum, ″Trapped″ in Sing Sing: Transgendered Prisoners Caught in the Gender Binarism, 6 Mich. J. Gender & L. 499, 545-48 (2000); Immigration Equality, supra note 102 (under ″My Partner Is a Transgender Man Who Was not Taking Hormones before Being Detained, Can He Get Them now?″). 164 Key Transgender Health Concerns, Vanderbilt Univ. School of Med., https://medschool.vanderbilt.edu/lgbti/health/transgender (last visited Nov. 12, 2013), archived athttp://perma.cc/0kszVD9w7v4.
165 See Stacey L. Colton Meier et al., The Effects of Hormonal Gender Affirmation Treatment on Mental Health in Female-to-Male Transsexuals, 15 J. Gay & Lesbian Mental Health 281 (2011) (medical study examining relationship of provision of hormone therapy to transgender men and levels of depression, anxiety, and stress). 166 See Immigration Equality, supra note 102 (under ″I am a transgender woman in immigration detention. To ensure my safety, should I request protective custody?″)(″Transgender people can understandably feel unsafe in detention. Those who have taken steps to transition may be more readily identifiable as targets for sexual or physical violence.″) 167 Email from Ceren Ozturk, Legal Advisor, Helsinki Citizens’ Assembly Refugee Advocacy and Support Program, to Rachel Levitan (Oct. 23, 2013, 10:38 EST) (on file with author) (affidavit regarding confidential interview with transgender male detainee in Istanbul).
168 Federal Bureau of Prisons Makes Major Change in Transgender Medical Policy, Nat’l Ctr. for Lesbian Rights (Sept. 30, 2011), archived at http://perma.cc/0J9d JGbyGT7. 169 U.S. Immigration & Customs Enforcement, supra note 126, at 296.
170 Immigration Equality, supra note 102 (″My Partner Is a Transgender Man Who Was not Taking Hormones before Being Detained, Can He Get Them Now?″).
171 Id. (under ″What type of place is an immigration detention center? What can my loved one expect there as an LGBT person?″). Page 27 of 31 37 Harv. J.L. & Gender 1, *37 medical personnel, including invasive and voyeuristic examinations, 172 but the ″overall lack of adequate health care means that LGBT people who require a regular regimen of HIV medication or hormone therapy simply do [*38] not receive proper care.″ 173 In immigration detention centers where conditions may be worse than those in facilities in the United States, it is possible that sexual minorities are even less likely to get the care they need.
Immigration detention authorities’ failure to respond to the health concerns of LGBTI migrants implicates fundamental human rights. Detaining states that are signatories to the ICESCR who fail to meet the medical needs of LGBTI detainees may violate their obligation under Article 12(1) to uphold ″the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.″ 174 The intentional denial of hormone therapy to a transgender woman in detention, for instance, would undermine her physical health, perhaps expose her to a greater risk of physical and sexual violence, and would have a significantly negative impact on her mental health. 175 Furthermore, lack of appropriate medical care may violate sexual minorities’ international legal protections to the right to health and medical care enshrined in Article 25 of the UDHR 176 and reinforced by the ICESCR, 177 which are inseparable from provisions on the right to life articulated by the UDHR 178 and ICCPR, 179 and the right to freedom from degrading treatment addressed above.
D. Mental Health Violations: High Incidence of Mental Distress and PTSD
Another significant issue that detained LGBTI migrants face relates to the particular mental health needs that many migrants experience. In general, migrants throughout the world, particularly asylum seekers, report high levels of mental illness, including depression, PTSD, and other such mental health difficulties, compared with the population at large. 180 A comprehensive body of research has documented mental illness, particularly depression [*39] and PTSD, amongst post-conflict populations. 181 Depression and PTSD are also manifest amongst asylum seeker populations. 182
172 See, e.g., Interview with transgender refugee [name and location redacted for confidentiality] (Dec. 13, 2011) (testifying that while detained for two months, doctors examined her twice, asking her questions that focused almost exclusively on her gender, and allowed into the examination room other staff who whispered to each other, suppressed laughs, and stared at her). 173 Immigration Equality, supra note 102 (under ″What type of place is an immigration detention center? What can my loved one expect there as an LGBT person?″).
174 ICESCR, supra note 57, art. 12(1). The ICESCR recognizes that while developing countries are under a duty of progressive realization with regard to enforcing rights under the Covenant, developed countries are responsible for ensuring Covenant rights ″to the maximum of … available resources.″ See Comm. on Econ., Soc. Cultural Rights, Gen. Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), U.N. Doc. E/1991/23 (Dec. 14, 1990) (interpreting the meaning of the progressive-realization requirement).
175 See sources cited supra note 163. 176 UDHR, supra note 118, art. 25(1). 177 See Comm. on Econ., Soc. & Cultural Rights, Gen. Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Int’l Covenant on Econ., Soc. & Cultural Rights), U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000).
178 UDHR, supra note 118, art. 3. 179 ICCPR, supra note 56, art. 6(1).
180 Zachary Steel et al., Part I--The Mental Health Impacts of Migration: The Law and Its Effects; Failing to Understand: Refugee Determination and the Traumatized Applicant, 27 Int’l J.L. & Psychiatry 511, 514-15 (2004).
181 See Paul Bolton et al., The Mental Health and Psychosocial Effects of Organized Violence: A Qualitative Study in Northern Haiti, 49 Transcultural Psychiatry 590 (2012) (finding possible depression and PTSD in Haitians exposed to organized violence); Verena Ertl et al., Validation of a Mental Health Assessment in an African Conflict Population, 1 Int’l Persp. Psychol: Res. Prac. Consultation 19 (2011) (finding PTSD in war-affected Ugandans); Kenneth E. Miller et al., Daily Stressors, War Experiences, and Mental Health in Afghanistan, 45 Transcultural Psychiatry 611 (2008) (finding PTSD in war-affected Afghan women and general distress in war-affected Afghan men); Susanne Schaal et al., Rates of Trauma Spectrum Disorders and Risks of Posttraumatic Stress Disorder in a Sample of Orphaned and Widowed Genocide Survivors, 2 Eur. J. Psychotraumatology 1 (2011) (finding depression and PTSD in Rwandan widow and orphan genocide survivors); Inga Schalinski et al., Female Dissociative Responding to Extreme Sexual Violence in a Chronic Crisis Page 28 of 31 37 Harv. J.L. & Gender 1, *39
Many of these symptoms result from traumas that migrants experience in their countries of origin. Triggers include exposure to war, terrorism, natural disaster, and famine. 183 Particularly noteworthy is the consistently high rate of asylum seekers who present with a history of exposure to torture. 184 Psychological, cognitive, and behavioral symptoms reported by migrants exposed [*40] to such stressors may include failure to function in daily life, suicidal tendencies, social withdrawal, self-neglect, and aggression. 185
The migration process itself also traumatizes migrants. 186 Some observe extremely harsh conditions traveling by sea, 187 or observe other migrants they are traveling with murdered at the hands of smugglers. 188 Migrants are also exposed to post-migration stressors, including lack of access to basic services, limited work opportunities, and discrimination based on xenophobia. 189 Lengthy and complicated asylum procedures may be particularly associated with the deterioration in mental health, including the exacerbation of symptoms of depression and PTSD. 190
Setting: The Case of Eastern Congo, 24 J. Traumatic Stress 235 (2011) (finding predictability of PTSD in female war-affected Congolese).
182 See Kenneth Carswell et al., The Relationship Between Trauma, Post-Migration Problems and the Psychological Well-Being of Refugees and Asylum Seekers, 57 Int’l J. Soc. Psychiatry 107 (2011) (finding PTSD and distress in refugees and asylum seekers in United Kingdom due to post-migration problems); Alison Gerard & Sharon Pickering, The Crime and Punishment of Somali Women’s Extra-Legal Arrival in Malta, 52 Brit. J. Criminology 514, 525 (2012) (finding indefinite detention in Malta as contributing to depression in Somali refugee women); Masmas et al., supra note 152 (finding PTSD in both torture survivor and non-tortured asylum seekers in Denmark); Gillian Morantz et al., The Divergent Experiences of Children and Adults in the Relocation Process: Perspectives of Child and Parent Refugee Claimants in Montreal, 25 J. Refugee Stud. 71 (2011) (finding trends of depression in children and parent asylum seekers in Canada); Derrick Silove et al., Anxiety, Depression and PTSD in Asylum-Seekers: Associations With Pre-Migration Trauma and Post-Migration Stressors, 170 Brit. J. Psychiatry 351 (1997) (finding depression, PTSD, and anxiety in asylum seekers in Australia). See also Derrick Silove et al., No Refuge from Terror: The Impact of Detention on the Mental Health of Trauma-Affected Refugees Seeking Asylum in Australia, 44 Transcultural Psychiatry 359 (2007) (collecting data and studies identifying depression and PTSD among other mental health issues in asylum seekers in Australia); Sierra van Wyk et al., A Longitudinal Study of Mental Health in Refugees from Burma: The Impact of Therapeutic Interventions, 46 Austl. & N.Z. J. Psychiatry 995, 995-96 (2012) (assembling studies identifying depression and PTSD among other mental health issues in asylum seekers).
183 Andres J. Pumariega et al., Mental Health of Immigrants and Refugees, 41 Cmty. Mental Health J. 581, 583 (2005). 184 Most studies document rates of up to thirty-five percent, depending on the definition of torture employed. See Angela Burnett & Michael Peel, Asylum Seekers and Refugees in Britain: The Health of Survivors of Torture and Organised Violence, 322 Brit. Med. J. 606, 607 (2001) (″Estimates of the proportion of asylum seekers who have been tortured vary from 5-30%, depending on the definition of torture used and their country of origin.″); David P. Eisenman et al., Survivors of Torture in a General Medical Setting: How Often Have Patients Been Tortured, and How Often is it Missed?, 172 W. J. Med. 301, 301 (2000) (″Five percent to 35% of the world’s refugees are estimated to have been tortured.″). See also Zachary Steel et al., Association of Torture and Other Potentially Traumatic Events With Mental Health Outcomes Among Populations Exposed to Mass Conflict and Displacement: A Systematic Review and Meta-Analysis, 302 JAMA 537, 547 (2009) (collecting 84 published surveys and finding 21% of refugee or conflict-afflicted participants reported personal experiences of torture).
185 See Burnett & Peel, supra note 184, at 608. 186 See, e.g., Erhabor Sunday Idemudia et al., Migration Challenges Among Zimbabwean Refugees Before, During and Post Arrival in South Africa, 5 J. Injury & Violence Res. 17, 22 (2013) (identifying the witnessing and experiencing of threats of or actual violence and survival sex as traumatizing experiences for Zimbabwean migrants to South Africa); Pumariega et al., supra note 183, at 583 (identifying disconnection from family and traumatic journeys as traumatizing experiences for migrants to the United States).
187 See, e.g., Human Rights Watch, Pushed Back, Pushed Around, supra note 150, at 41-46. 188 Sigal Rozen, Hotline for Migrant Workers & Physicians for Human Rights - Israel, Tortured in Sinai, Jailed in Israel: Detention of Slavery and Torture Survivors Under the Anti-Infiltration Law 9 (2012), archived at http://perma.cc/0VxThQp9pJM.
189 Pumariega et al., supra note 183, at 584.
190 See, e.g., Cornelis J. Laban et al., Impact of a Long Asylum Procedure on the Prevalence of Psychiatric Disorders in Iraqi Asylum Seekers in the Netherlands, 192 J. Nervous & Mental Disease 843 (2004); Steel et al., supra note 180, at 515-16. Page 29 of 31 37 Harv. J.L. & Gender 1, *40
A growing body of research indicates that the practice of detaining migrants, coupled with the often indefinite nature of this detention, exacerbates mental illness in migrants. 191 Increasingly, studies indicate that the detention of asylum seekers in countries of first asylum has a particularly detrimental impact on the mental health of this already traumatized population. 192 These [*41] findings suggest that ″policies regarding the long-term detention of asylum seekers should be reconsidered.″ 193
LGBTI migrants, like other migrants generally, may suffer significant mental health impacts from their experiences in their home countries, in transit, and once they arrive in their destination, particularly when they end up detained. LGBTI asylum seekers and refugees report trauma-related mental health problems as a result of the persecution experienced based on their sexual orientation or gender identity, often experienced repeatedly over a lifetime. 194 This harm includes physical and sexual violence, and various forms of harassment and discrimination, experienced in a variety of both private and public settings, carried out by wide-ranging perpetrators, including family, peers, employers, and strangers. 195 The relentlessness of persecution in the lives of LGBTI people is extremely common; as noted by Ariel Shidlo and Joanne Ahola, ″Lesbian, gay, bisexual and transgender … forced migrants around the world report a history of multiple traumatic events across their lifespan… . Many suffer from significant mental health consequences as a result of a lifetime of cumulative trauma.″ 196
The psychological consequences of this often unremitting harm include depression, panic and anxiety, traumatic brain injury, and substance abuse. 197 Sexual minority migrants may also suffer from both PTSD, which is characterized by the ″re-experiencing of traumatic events, numbing and avoidance of thinking about these events, and hyper-arousal,″ and complex PTSD, which is characterized by ″self-destructive behaviour, amnesia, intense shame, difficulties with intimacy, experiencing bodily pains in response to psychological distress, and despair about finding loving relationships.″ 198 In addition, the sexual violence that is prevalent in many detention settings may re-traumatize LGBTI rape survivors. 199 Since LGBTI migrants so often experience sexual violence in their countries of origin, they may be entering detention facilities with more severe mental after effects of rape and suffer greater trauma if sexually abused in detention.
Detaining states that cause, exacerbate, or fail to respond to the mental health concerns of LGBTI migrants risk violating fundamental human rights. State signatories to the ICESCR may violate the rights of LGBTI detainees to ″enjoyment of
191 See Allen S. Keller et al., The Impact of Detention on the Health of Asylum Seekers, 26 J. Ambulatory Care Mgmt. 383 (2003) (finding that anxiety, depression, and PTSD in detained asylum seekers in the United States is significantly correlated to length of detention); Katy Robjant et al., Psychological Distress Amongst Immigration Detainees: A Cross-Sectional Questionnaire Study, 48 Brit. J. Clinical Psychol. 275, 282 (2009) (finding that depression and anxiety in detained asylum seekers in the United Kingdom interacts with length of detention). See also Mina Fazel & Derrick Silove, Detention of Refugees: Australia Has Given Up Mandatory Detention Because It Damages Detainees’ Mental Health, 332 Brit. Med. J. 251, 251 (2006) (questioning the effectiveness of psychiatric treatment in the setting of indefinite detention, which may have been the root cause of refugees’ mental illness).
192 See Katy Robjant et al., Mental Health Implications of Detaining Asylum Seekers: Systematic Review, 194 Brit. J. Psychiatry 306 (2009) (assembling studies finding anxiety, depression, and PTSD in detained migrants). See also Masao Ichikawa et al., Effect of Post-Migration Detention on Mental Health Among Afghan Asylum Seekers in Japan, 40 Austl. & NZ J. Psychiatry 341 (2006) (finding higher scores for anxiety, depression, and PTSD in detained versus non-detained Afghan asylum seekers in Japan); 193 Keller et al., supra note 191, at 383.
194 Shidlo & Ahola, supra note 71, at 9. 195 See id. 196 Id. 197 Id.
198 Id. 199 See Dumond, supra note 114 (looking at re-victimization of male rape survivors in U.S. prison context); see also Marylene Cloitre et al., Posttraumatic Stress Disorder, Self-and Interpersonal Dysfunction Among Sexually Retraumatized Women, 10 J. Traumatic Stress 437, 447-51 (1997) (identifying mental health issues associated with the re-traumatization of women rape survivors in general). Page 30 of 31 37 Harv. J.L. & Gender 1, *41 the highest attainable standard″ of mental health by failing [*42] to respond to their psychological needs. 200 Furthermore, lack of appropriate mental health care may violate sexual minorities’ international human rights to health and medical care as enshrined in the UDHR 201 and reinforced by the ICESCR, 202 which are tied to provisions on the right to life articulated by the UDHR 203 and ICCPR, 204 and the right to freedom from degrading treatment articulated above. The mental deterioration caused by lengthy, often indefinite, detention, combined with substandard detention conditions means that few enjoy the standard of mental health guaranteed by ICESCR, UDHR, or ICCPR.
Recommendations & Conclusions
This Article has demonstrated the severe harms detained LGBTI migrants experience and the need for specific protections within this community. Yet these insights are incomplete without a more nuanced and complete understanding of the exact harms that LGBTI detainees face across the world. Thus, it is essential that researchers, scholars, and government officials pay more attention to the distinct needs of LGBTI detainees. More substantive data will help people better understand the severity of the human rights violations against LGBTI detainees, drawing attention to a group that has typically fallen off the radar of policies meant to safeguard detainees, and enabling states to garner the political will to reform those policies in light of their unique needs. As noted at the outset of this Article, there is a serious lack of either detailed empirical data or legal scholarship on the particular problems that LGBTI migrants face when they are subject to immigrant detention. Much of what is known is based on anecdotal evidence and not rigorous research; therefore, further investigation is required before the extent of the problems experienced by LGBTI detainees can be fully understood. Such increases in research, awareness, and data collection on this topic are a necessary first step before determining preliminary recommendations that ameliorate conditions for LGBTI detainees.
In addition to providing an analysis of the human rights violations confronting LGBTI migrants in detention, we conclude that as a preliminary matter, detention should never be applied to the most vulnerable populations. Alternatives to detention must be explored by states in search of politically viable means to approach noncitizen populations within their borders. Alternative proposals to detention have been widely discussed among advocates. 205 [*43] Not only do these non-detention approaches reflect greater awareness of the potential for abuse and problems common in detention, they may also be appealing from a financial or efficacy-measuring perspective. 206
Reiterating that detention is never advisable for LGBTI and other vulnerable migrant populations, we recognize that it may not be politically feasible for states that detain migrants to efficiently implement alternatives to detention. If states do determine that detention is necessary, they should take drastic measures to remedy the severe human rights problems that LGBTI detainees often face. As discussed in this Article, available evidence points to the existence of significant concerns regarding lack of protection for the human rights of LGBTI detainees, and the need for increased safeguards for this vulnerable population. It is clear that immigration detention inherently implicates human rights norms for all detainees when it is discriminatory, prolonged, and occurs in substandard facilities. This is especially true for LGBTI detainees who face heightened risk of physical and sexual assault, solitary confinement, and limited access to physical and mental health care.
200 ICESCR, supra note 57, art. 12(1).
201 UDHR, supra note 118, art. 25(1). 202 See Comm. on Econ., Soc. & Cultural Rights, supra note 177. 203 UDHR, supra note 118, art. 3.
204 ICCPR, supra note 56, art. 6(1). 205 See, e.g., IDC Report, supra note 15, at 13, 16-50 (describing research into the various policy alternatives to detention as currently practiced and expanding on the Community Assessment and Placement model in particular). 206 See id. at 5 (″Research shows that cost-effective and reliable alternatives to detention are currently used in a variety of settings and have been found to benefit a range of stakeholders affected by this area of policy.″). See also Das, supra note 31, at 149-50, 161-62 (focusing on the ineffectiveness and costliness of mandatory detention policies as currently practiced, and supporting the use of a risk assessment tool to determine ideal scope of detention). Page 31 of 31 37 Harv. J.L. & Gender 1, *43
In order to ameliorate the serious problems faced by LGBTI detainees, we make a number of recommendations to states. First, with regard to the threshold question of how to identify LGBTI migrants, it is crucial that states recognize the complexity of LGBTI identities and the many barriers to and risks of identification. We advocate that all detainees, regardless of whether they are identifiably gender nonconforming, be given the opportunity to discuss their specific needs as they may relate to sexual orientation or gender identity. Although ideally the choice to identify as LGBTI lies with an individual, we recognize that, as discussed above, not all LGBTI migrants are in a position to be able to self-identify, an action that may expose them to further persecution in detention.
In addition to allowing for appropriate identification measures for LGBTI migrants, ensuring LGBTI prisoner safety and ending discrimination and abuse in detention, both by prison officials and other detainees, must be top priorities. Appropriate training for detention facility staff is also crucial--these individuals must be trained in and sensitized to the protection needs of LGBTI migrants. 207 It is crucial that all detention officials be [*44] trained in basic concepts relating to sexual orientation and gender nonconformity, the protection gaps experienced by LGBTI migrants--including the persecution that many have experienced in countries of origin--and the best ways to provide physical, medical, legal, and other protections in a detention setting while upholding the migrants’ dignity and basic human rights. Finally, access to appropriate health care, welfare services, and contact with the outside world--including legal counsel and external LGBTI support systems--must be ensured.
Again, though there are numerous ways states might improve LGBTI detainee protections, detention in the immigration context should always be used as a last resort. UNHCR’s recent guidelines governing the detention of refugees, 208 though commendable, are nonetheless insufficient on their own to address the severe problems that characterize the detention of LGBTI migrants. If states determine that they must detain LGBTI migrants at all, they must develop express recommendations regarding how best to identify these vulnerable populations and prevent their exposure to specific types of abuse and discrimination. Ultimately, states should heed the recommendations by UNHCR and migrant advocates by providing alternatives to detention for all self-identifying sexual minorities, and by establishing noncustodial measures and alternative sentencing procedures.
This Article has highlighted several potential approaches that states may adopt to ameliorate these situations. It also highlights the pressing nature of the issue and encourages states, international agencies, and NGOs to collaborate extensively to determine the most effective approaches to better addressing LGBTI needs in detention facilities. Ultimately, the violations LGBTI migrants suffer in detention are not simply a subset of LGBTI rights, migrant, asylum seeker, and refugee rights, or detention rights. These violations encompass fundamental human rights which are explicitly protected under international law and which the global human rights system should seek to uphold regardless of citizenship, sexual orientation, or gender identity.
Harvard Journal of Law & Gender Copyright (c) 2014 President and Fellows of Harvard College Harvard Journal of Law & Gender
207 For a focused analysis on possible forms of sensitivity training of personnel and adjudicators dealing with LGBT migrants, as well as the limitations of such training, see Nicole LaViolette, Overcoming Problems with Sexual Minority Refugee Claims: Is LGBT Cultural Competency Training the Solution?, in Fleeing Homophobia: Sexual Orientation, Gender Identity and Asylum 189 (Thomas Spijkerboer ed., 2013). 208 Detention Guidelines, supra note 10. Search
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WORLD Women Are Still Locked in Immigration Detention Cells With Men Just Because They're Trans A former detainee says Immigration and Customs Enforcement must stop housing transgender women with men in private prisons. In a word, it's about rape.
BY THOM SENZEE MAY 25 2015 11:28 AM ET
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By the time Marichuy Leal Gamino reached a port of entry into the United States, she had already been stabbed in the stomach and legs in what she says was a transphobic attack that occurred along the U.S. border with Mexico near Arizona.
But unlike an estimated 80 percent of migrant women entering the U.S. through its border with Mexico, the now- 23-year-old trans woman says she was not raped on her journey Eloy Detention Center to the "Land of the Free."
The rape didn't happen until she found herself locked in a cell with a mentally disturbed man, in a privately operated prison under contract with the Department of Homeland Security's Immigration and Customs Enforcement agency. She was awaiting a decision on her request for asylum when she was attacked.
"Transgender women are not safe in detention because they put us in with the men," Gamino told The Advocate during a recent phone interview from her residence in Phoenix. "We don't know when something's going to happen. There are detainees locked up for long periods, sometimes in isolation. People go crazy. That cellmate I had was not all there. He would always talk sexually to me. I told the guards and they did nothing. ... The guard saw him [exposing himself] to me, and they did nothing." MOST POPULAR In fact, says Gamino, some guards even facilitated the alleged abuse she experienced in ICE custody. The Top 175 Essential Films of All Time for LGBT Viewers "There was a unit manager ... who treated detainees so bad that he lost control of the unit and [prison administrators] had to kick him out, because people would scream the minute he walked onto the unit," she said.
Gamino was released from the privately run lock-up in January, but only on bail, and only after an aggressive lobbying campaign by a coalition of groups to raise funds and awareness about the LGBTs and the National Parks abuse Gamino allegedy suffered. Gamino now counts herself a member of the advocacy groups that pushed for her freedom, working to eliminate private prisons and detention facilities in the U.S.
The alleged assault took place last August, while Gamino was held in a privately run men's Kentucky Gov. to Defiant Clerk: detention facility in Eloy, Ariz. When she informed facility officials of the rape, Gamino says she License Same-Sex Marriages or was coerced into signing a statement claiming the sexual assault was "consensual." Resign
According to Phoenix TV station KSAZ, the Eloy Police Department is investigating the alleged rape. Prison officials refused to comment; however, ICE officials confirmed that there was an American Samoa Remains Lone Holdout Over U.S. Marriage incident that included an initial allegation from Gamino of rape at the hands of her former Equality cellmate.
"U.S. Immigration and Customs Enforcement is firmly committed to providing for the safety and Op-ed: How the Media Looks at welfare of all those in its custody," said an ICE spokesperson in a statement provided to The HIV in 2015 (It Mostly Doesn't) Advocate. "ICE has a strict zero tolerance policy for any kind of abusive or inappropriate behavior in its facilities and takes any allegations of such mistreatment very seriously."
But Gamino says she had previously informed officials that her alleged assailant made derogatory WATCH: Cops Respond to remarks and threatened her with rape before the assault. She further contends those officials took Kentucky Gay Couple Requesting Marriage License no action to prevent the alleged attack.
After reporting the attack, Gamino was placed in solitary confinement for "protection," according to officials — though advocates called the move "punishment" for speaking out about her treatment.
Gamino (pictured right) says her time at Eloy was torturous. But the thought of going back to Mexico is even more frightening.
"Transgender women and other immigrants who are running away from abuse in other countries come asking for asylum, and then they put us in custody where the abuse continues," Gamino said. "It's FOLLOW US the same situation. I'll get killed if they make me go back home, to the town where I was in Mexico. And I'll be tortured in a men's facility if ICE takes me into custody again."
As she awaits her asylum hearing, Gamino — who grew up Arizona after being brought to Phoenix at age 6 — is cautiously optimistic.
"I feel pretty confident that I will get asylum, but nothing is guaranteed," she said. "My final court date is July 23. I grew up here in the U.S. I want to stay here, because I don't know anything about being from Mexico. I'm from here."
Gamino's troubling experience as an ICE detainee has given the young woman a new purpose in life. She has become an advocate for the rights of other immigrants, detainees, and prisoners as a newly minted detainee-rights coordinator for Phoenix-based Arcoíris Liberation Team.
Arcoíris frequently helps organize marches, demonstrations, and protests, including one held late last month in Phoenix aimed at celebrating the release of Nicoll Hernández-Polanco, a 24-year- old Guatemalan trans woman who was allegedly sexually abused, then temporarily placed in solitary confinement by officials. Hernández-Polanco was held for more than six months at an all- male Immigration and Customs Enforcement detention center in Florence, Ariz. In addition to being a celebration of victory in securing the release and granting of asylum for Hernández-Polanco, the April march in Phoenix was intended to draw attention to dangerous conditions many LGBT people, not just transgender detainees and prisoners, face in all types of law enforcement custody.
A report by Human Rights Watch published in 2001 titled, “No Escape: Male Rape in U.S. Prisons,” is often credited with having inspired passage in of the 2003 Prison Rape Elimination Act. The act called for a sweeping survey of the American penal and detention system to be conducted within two years. But the problem was so complex it took six years before audits of the nation's detention centers began.
The resulting National Prison Rape Commission Report clearly delineated the LGBT population as being particularly vulnerable. "Research on sexual abuse in correctional facilities consistently documents the vulnerability of men and women with non-heterosexual orientations (gay, lesbian, or bisexual) as well as individuals whose sex at birth and current gender identity do not correspond (transgender or intersex)," the report concluded.
The report quotes Scott Long, then-director of the Lesbian, Gay, Bisexual, and Transgender Rights Program at Human Rights Watch, who told the Commission, “Every day, the lives and the physical integrity of lesbian, gay, bisexual, and transgender people are at stake within our prison systems.”
According to the report, the "discrimination, hostility, and violence members of these groups often face in American society are amplified in correctional environments and may be expressed by staff, as well as other incarcerated persons."
That sentiment clearly fits the pattern evident in the allegations of both Hernández-Polanco and Gamino.
A U.S. Department of Justice official who is considered an expert on PREA recently told the Washington Blade that considerations about population placement, or deciding where to house LGBT inmates, in the era of PREA are just one part of the safe-detention puzzle.
“For example, PREA calls for changes in language that has been used in facilities in the past,” TWITTER DOJ's Laura Brisbin said. “We talk about respectful communications — how do you do it and still get the kind of behavior you need for conformity in a locked-down situation.” Advocate Staff Tweets from a list by The Advocate In a recent article, titled "Why Americans Don't Care About Prison Rape," The Nation linked Members of our reporting and editing team. to the story of a man identified only as "Rodney." A gay former prisoner who claims to have been raped in two Louisiana prisons, Rodney told prisoner-rights group Just Detention that in one of shift by msnbc 2h the incidents, "a man entered the shower with me and ordered me to face the wall or he would @shiftmsnbc 'break my fucking neck.' This man was literally twice my size and so I faced the wall without .@janetmock on erasing the public shaming and question. I felt his hand on me and I tried to move away. He ordered me not to move as he sexually harrasment attached to dating trans women: shift.msnbc.com pic.twitter.com/hqHpXMLHm4 assaulted me. I cried silently." Retweeted by Mitch Kellaway While the PREA Commission Report makes clear that lesbian, gay, and bisexual detainees and inmates are at risk, it emphasizes the fact that transgender detainees are especially vulnerable to sexual abuse and rape.
The PREA Commission Report lays out the heightened risk factors plainly:
"Male-to-female transgender individuals are at special risk. Dean Spade, founder of the Sylvia Rivera Law Project, testified before the Commission that one of his transgender
clients was deliberately placed in a cell with a convicted sex offender to be raped. The Expand assaults continued for more than 24 hours, and her injuries were so severe that she had to be hospitalized. Legal cases confirm the targeting of transgender individuals. In 2008, Andy Semler 48m a male officer at the Correctional Treatment Facility in the District of Columbia was @AndyTehNerd convicted of sexually assaulting a transgender individual in the restroom by forcing her Don't put the bulk of the burden on trans men to "redefine masculinity". Trans folks' genders are to perform fellatio on him." already hyperscrutinized. Step up, cis men Retweeted by Mitch Kellaway The underlying problem, notes the report, is housing: Expand
"Like the individual just discussed, most male-to-female transgender individuals who VICE News 50m are incarcerated are placed in men’s prisons, even if they have undergone surgery or @vicenews hormone therapies to develop overtly feminine traits. Their obvious gender VICE will join @POTUS on the first-ever presidential nonconformity puts them at extremely high risk for abuse." visit to a federal prison for an upcoming #VICEonHBO special: A Department of Justice audit released last month criticized one of the nation's two largest private corrections contractors for mismanagement of a prison in western Texas that was plagued by unrest, a death, and a riot. The audit cited lack of medical care and sufficient correctional staff as significant problems.
Compiled by the DOJ's inspector general, the audit stopped short of calling for an end to the practice of outsourcing the management and operations of corrections facilities to private companies. But it did recommend greater federal oversight of facilities like the one in which Gamino was housed.
For her part, Gamino says she wants to see an end to the widespread practice of outsourcing corrections contracts to private companies, for state prison or federal immigration detention.
But another report, released in early April by anti-incarceration group Grassroots Leadership, finds that ultimate goal should be the complete removal of for-profit operation of ICE detention centers.
The report, titled Payoff: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota, says private corrections giants enjoy a unique position in terms of being guaranteed a revenue stream via a congressional mandate. The report names GEO Group, which runs the Texas prison named in the DOJ report, and Corrections Corporation of America, the operator of the facility where Gamino alleges she was raped, as key perpetrators of this prison-for- profit situation.
Grassroots Leadership reports that the Department of Homeland Security Appropriations Act of 2010 includes language that has been interpreted as requiring Immigration and Customs Enforcement to fill 33,400 beds (later increased to 34,000 beds) with detained immigrants on a daily basis.
"The directive would come to be known as the 'immigrant detention quota' or 'bed mandate,'" reads the report. "The immigration detention quota is unprecedented; no other law enforcement agency operates under a detention quota mandated by Congress."
Grassroots Leadership's Payoff report included Gamino's story, beginning with her childhood in Phoenix, where she grew up after being brought from Sinaloa, Mexico, when she was 6 years old.
Grassroots Leadership's report shed light on how Gamino initially came to be in state prison — then ICE — custody:
"[Gamino] was sentenced to a year in Arizona State Prison in Yuma for drug charges. 'I was going through a lot of problems with my family because they wouldn’t accept me for who I am, a trans woman,' Marichuy said. After serving a year in prison, she was deported to Mexico because of her immigration status.
After being deported, Marichuy was tortured in Nogales, Mexico because of her identity as a transgender woman. She was stabbed and has a scar on her head where she was attacked. She fled to Agua Prieta, Mexico, but her attackers were following her, so she presented herself at the Douglas, Arizona border to seek asylum in the U.S. Rather than encountering safety, she was immediately sent to the CCA-operated Eloy Detention Center in May 2013 where she was placed in a unit with 250 men. She was repeatedly called 'faggot' by the men she was detained with, which the guards ignored. There was no privacy for showers, and Marichuy recounts that the guards and other detained men would watch the trans women while they showered. She and other transgender women would try to put up a curtain when they showered so the guards and other men wouldn’t be able to see them, but they were written up for doing so."
The Advocate reached out to Corrections Corporation of America officials at the Eloy Detention Center for comment about Gamino's allegations of abuse and negligence. They referred us to ICE, which provided The Advocate with this written reply:
"The Department of Homeland Security Office of the Inspector General and ICE’s Office of Professional Responsibility investigates all allegations of sexual abuse or other misconduct and takes appropriate action — whether it is pursuing criminal charges or administrative action — when such allegations are substantiated. Posters displayed in all ICE detention facilities direct detainees how to initiate a formal complaint. ICE meets routinely with nongovernmental organizations and other stakeholders as a part of the agency’s detention working groups. As a result of these discussions as well as the agency’s overall detention reform efforts, ICE has issued formal guidance to address the care and housing of vulnerable and special needs detainees.”
But posters and guidance for vulnerable and special-needs detainees aren't enough, according to Grassroots Leadership. The organization's report included several recommendations to improve the plight of immigrants and others in custody, including elimination of the ICE "bed quota," decreasing dependence upon and ultimately eliminating private prison companies, increasing oversight of and penalties for infractions by companies like CCA and GEO Group, as well as increasing the use of "community-supported" alternatives to detention, especially for immigrants, such as Gamino, who are seeking asylum from abusive situations in their countries of origin.
Grassroot Leadership's report also included a personal message from Gamino, who says she is haunted by the knowledge that while she is out of the "nightmare" of detention at Eloy, women like Greta Soto-Moreno and Margot Corrales-Antunes are still housed with men at the detention facility in Arizona's southern desert.
But ICE officials stand by their record regarding the care of LGBT detainees. In fact, an ICE spokeswoman who The Advocate interviewed for this story said the organization understands there's a case to be made for providing separate accommodations for lesbian, gay, bisexual, and transgender detainees.
Indeed, such segregated detention spaces, sometimes called "pods" in the prison community, are currently being utilized at an Orange County, Calif., jail in Santa Ana. The facility, which is under contract by ICE, has developed what some call a cutting-edge approach to ensuring safety and respect for LGBT detainees, with a specially designed LGBT unit that is not technically considered segregated. Unfortunately, the number of beds is limited, and a detainee may only be sent to ICE's Santa Ana City Jail LGBT Unit when a bed is available and when, on a case-by-case basis, it is determined that the unit is the only safe option for the detainee.
Officials at ICE point to several policies that were adopted beginning in 2009 as part of the agency's Detention Reform Initiative, which they say are intended to protect and better serve LGBTs in detention, as well as the general population.
Under that initiative, the agency has been working to reduce transfers, improve access to counsel and visitation, promote of recreation, improve confinement facilities, ensure quality medical care, protect vulnerable populations, and "carefully circumscribing the proper use of segregation," officials told The Advocate.
Additionally, said ICE, accommodations are sometimes made specifically for LGBT detainees, such as no-cost continuation of hormone treatment for transgender asylum-seekers who were receiving treatment prior to detention.
But all of that doesn't change the harsh reality for LGBT people detained in ICE detention centers and prisons around the country.
Recalling that she often saw guards at Eloy Detention Center pulling the long hair of trans women detained at the privately run facility, Gamino said it's clear that ICE doesn't understand — or perhaps doesn't care — why transgender women should not be housed with men.
"It's a no-brainer," she said. "It's about rape — avoiding the rape of transgender women by not housing us with men."
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Deb Rina Carr · Top Commenter By following the outdated ignorant binary way of gender roles the problem exists. The transexual propaganda is also contributing to the root of the problem take for example "individuals whose sex at birth and current gender identity do not correspond (transgender or intersex" Really ? Really ? the writer discounts and throws away the gender identity of intersexed. Enforcing the binary model as surely as Hitler and Uganda kill the gays (non binary) but pay for the knife (trans) to fix the problem of non binary. Reply · Like · 1 · Follow Post · May 25 at 12:36pm
Greg Moats · Top Commenter · Bourgade Catholic another I am a victim... i am persecuted... Reply · Like · Follow Post · May 25 at 1:09pm
Sally Angela Wolf · Top Commenter · Halifax, Nova Scotia That's because they ARE. Unlike the christians who claim to be persecuted Reply · Like · 1 · May 26 at 2:56pm
Greg Moats · Top Commenter · Bourgade Catholic Sally Angela wolf yea, we should take in every wierfo, criminal and he-she from around the globe. Reply · Like · May 26 at 3:56pm
Chikita Bananovich · Gentleman of Leisure at Las Vegas, Nevada Greg Moats. Well, Jesus did. Are you too good for it? Reply · Like · 1 · May 26 at 10:30pm
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