By Amy Lieberman
Tuesday, October 1, 2013
Regulatory reform is expected to gradually improve housing safety for transgender detainees. At the same time the Department of Homeland Security is cutting beds and exploring programs that move at-risk people out of locked-in facilities and into houses and hotels.
Credit: Amy Lieberman
NEW YORK (WOMENSENEWS)--Sarah Vidal, an attorney at the South Texas Pro Bono Asylum Representation Project, is representing a 29-year-old transgender woman from Honduras who has been housed since February at the all-male Port Isabel Detention Center in Los Fresnos, Texas.
Her client, like a number of other detainees, is seeking asylum. In her case it's because of her gender identity. If she were to go back to Honduras she worries what would happen to her as a transgender woman. A judge initially denied her case and it is now before the Board of Immigration Appeals.
Vidal's client lives in a dorm with about 20 men and has filed formal complaints alleging an attempted rape, as well as ongoing harassing comments by detainees and guards.
"I am not sure why she was placed in an all-male facility," Vidal said in a phone interview. "She alleges that when she asked about it they told her that because she is a man they are putting her in a male facility. I think they are making the decision based on formal documentation, not as to how she identifies or the fact that she has had surgeries that clearly indicate she is transitioning into becoming a biological woman."
The Department of Homeland Security (DHS) is set to release new federal regulations that would legally prevent transgender women from being housed with men in immigration detention facilities as part of an effort to reduce the incidence of rape and other forms of sex assault.
The deadline for this addition to the Prison Rape Elimination Act was the end of September but that may have been overshot.
"This is sort of an ongoing process and we hope DHS will do it faster rather than slower," said Harper Jean Tobin, director of policy at the Washington-based social justice organization the National Center for Transgender Equality, in a phone interview. "We think they can do that."
As the DHS revises its regulations, it is also pursuing alternate detention models, especially for at-risk populations.
The agency has requested a reduction of beds to 31,800 in immigration detention facilities across the country for the coming year, dropping the bed count by 1,000 from its 2011-2013 budget. It is estimated to cost $119 a day to house each detainee from this October to next September.
In the case of Vidal's client, a switch outside the existing system could mean being moved from a locked-in, all-male detention setting into a family's home or a hotel.
This Risk Classification Assessment program, which is expected to roll out fully nationwide this year, is supposed to be incorporated automatically into the book-in process at U.S. Immigration and Customs Enforcement (ICE).
Identifying as LGBTQ (lesbian, gay, bisexual, transgender, queer) is one the determinate factors that would lead a person to be flagged as vulnerable, said Tobin.
But it is not yet clear if every LGBTQ person flagged as vulnerable will automatically be sent to a separate living arrangement outside of a detention facility.
The program requires ICE guards to screen incoming detainees to "determine whether there is any special vulnerability that may impact custody," according to ICE.
Sixteen LGBT formerly detained asylum seekers -- foreigners seeking the legal protection and right to remain in the United States -- are now living in host homes in the Boston area. Their host homes are coordinated through the Political Asylum/Immigration Representation Project (PAIR), which also provides food cards, transportation, medical referrals and job training. Released asylum seekers are eligible to legally work 150 days after they file for asylum, if there is no resolution to their case after that time, but many wind up waiting until after their cases have been settled.
PAIR is part of a larger national network called the Lutheran Immigration and Refugee Service, which since January 2012 has signed two agreements with ICE authorizing the release of at-risk detainees.
Seven organizations, from Boston and New York to Austin, are receiving these released at-risk people. In addition to being LBQT, an at-risk person could be the primary caretaker of a minor child, a pregnant or nursing woman or an elderly person, over 55 years old.
The target is to absorb 100 people each year into host homes -- which the government does not fund -- and cluster homes, said Megan Bremer, interim director for Lutheran Immigration and Refugee Service's program Access to Justice. Housing capacity remains an obstacle, added Bremer, as released detainees will exit detention without a place to stay, ineligible for community-based services.
"We are coming out of a decade where detention was the norm and it was presumed there was a need to detain all of the individuals that were apprehended," she said. "There is just now this very recent policy shift that is saying, this should be an individualized policy assessment to determine whether or not these people actually need to be detained."
Housing reforms have developed naturally at some detention centers.
In Pearsall, Texas, transgender women are housed together in a separate dorm known in the South Texas Detention Complex as "Frank Charlie." The federal detention facility is privately contracted, managed by the international corporation GEO Group.
"From what I can remember they used to put them in segregation," said Benicio Diaz, a senior staff attorney with the San Antonio-based legal organization American Gateways, referring to transgender detainees.
The separation of transgender women from the general male population started about a year ago, said Diaz, who regularly meets with immigrants at the South Texas Detention Complex and offers legal rights and awareness education workshops.
This same housing model--informally reached in the case of Frank Charlie--is mirrored by an official pilot program in Santa Ana, Calif., where about 30 transgender, bisexual and gay detainees are housed together in the Santa Ana City Jail.
In New York City another model for housing undocumented immigrants outside locked-in detention facilities is being tried out in a hotel normally reserved for seafarers and international tourists.
There are always at least two rooms that remain reserved and ready -- bedcovers tucked, surfaces of end tables and desks wiped clean -- for certain guests who may or may not arrive late into the day at the Seafarers and International House in downtown Manhattan. The urban Lutheran ministry that manages this 84-room guesthouse wants to be prepared in case an asylum seeker is released from detention and shows up unannounced.
Most days, the number of asylum seekers occupying the simple, private rooms at the guesthouse wavers between just two and six.
Last year, Seafarers hosted 29 asylum seekers, following their release by ICE from the Elizabeth Detention Center, a privately contracted facility so close to Newark Liberty International Airport in New Jersey that the roar of planes taking off can be heard inside the sealed walls. In 2011, Seafarers gave keys to 30 released asylum seekers, who stayed on for free at the public guesthouse for one to three months.
"One of our biggest challenges is finding out from ICE when they are going to release people and obviously how long they are going to keep them in detention for so we can be prepared for it and we are not booked out," said Chris Roehrer, director of development at the Seafarers and International House.
Following periodic talks with ICE last year, the guesthouse anticipated an uptick in released immigrants deemed not dangerous and not a flight risk, not only asylum seekers whose claims of fear of persecution in their home countries have all but been verified by a U.S. judge.
"So far, we haven't seen it," said Roehrer in an interview in his office.
Cutting the number of beds will let ICE place "low-risk, non-mandatory detainees" in alternative programs to detention facilities, like electronic monitoring, according to the budget. ICE appears to also cautiously be warming to the idea of turning over a sliver of its work to a string of networks and organizations like Seafarers.
Some of the asylum seekers who stay at Seafarers and International Guesthouse have come with scars from the torture they experienced and witnessed firsthand in Darfur, in western Sudan, said Roehrer. One asylum seeker was a victim of female genital mutilation. He is not sure if any of the asylum seekers have been transgender, but said he does not want to speculate either way, as the hotel guests at least did not outwardly identify as such.
The biggest issue for these people is trust, said Roehrer, which social workers and ministry staff at Seafarers work to carefully gain back. When people are released from the remote Elizabeth Detention Center, they are placed outside the facility, regardless of the weather, without any direction to transport.
"If you have been running from your life and have seen a few members of your family knocked off, maybe, and come to this country and are imprisoned in circumstances that are not pleasant, you are likely not going to trust many people," said Roehrer. "Many of these people are very fearful. It's a process to gain their confidence, to connect them with an expat community, to get them back on their feet."
To help people who will continue being housed inside the system, Tobin, of the National Center for Transgender Equality, hopes a new set of legally binding standards on sexual assault under the Prison Rape Elimination Act, or PREA, rules will call for swift modification of contracts between the DHS and the variety of private for-profit companies that detain the majority of detainees in custody of ICE.
When the rules come out – expected this fall – for foreigners seeking the legal protection and right to remain in the United States, Tobin does not expect that the new housing standards for transgender women will be implemented in a speedy, uniform way due to the fragmented structure of immigration processing and detention facilities that, on any given day, involve between 20,000 and 30,000 people.
"A lot of the things about the system -- how heavily it relies on private prisons and county and city jails -- make it difficult for ICE to monitor and enforce its standards and for advocates to monitor what is going on in there," said Tobin. "What we do know is that ICE's most recent detention standards are still not being enforced in the majority of their facilities and even where they are it is difficult to say how closely they are being complied with."
Michelle Brane, the director of migrant rights and justice at the New York-based Women's Refugee Commission, estimates the existing detention standards on housing, health and sexual assault now cover 80 percent of detainees.
The new rules under the PREA will replace these internal sets of non-legally binding DHS regulations known as the Performance Based National Detention Standards, which the Inter American Commission on Human Rights has said do not adequately address the widespread problem of sexual abuse and assault in ICE detention facilities.
Instituted in three successive versions--from 2000, 2008 and 2011--the standards have not adequately addressed the problem of asylum seekers who get housed either in isolation or with detainees they consider the opposite gender.
The Performance Based National Detention Standards of 2011 say that staff "shall consider" how transgender detainees self-identify his or her gender when making a housing assignment. They also call for transgender detainees to be searched in private and for transgender detainees previously taking hormone therapy to continue their treatment.
The new regulations say inmates at a high risk for sexual victimization cannot be placed in involuntary segregated housing, unless there is no other possible housing alternative. Time in segregation for such detainees cannot surpass 30 days. Housing placements of transgender and intersex detainees must be based on their gender identity. Bi-annual assessments of their housing must be conducted to review safety threats. Housing placements must be made case by case.
Such reforms are meant to bring the DHS, by the end of the year, in line with federal protections extended to other federal confinement facilities, namely prisons and jail, under the PREA, a federal law passed in 2003.
Although not formally released yet, Homeland Security's new regulations are widely expected to require regular audits to assess compliance with rules about the investigation, discipline and prosecution of perpetrators and the education of staff and contractors.
While bringing the detention system in line with federal reforms for jails and prisons, the new regulations do lose some ground in comparison with the internal detention standards. They do not, for instance, require access to hormone therapy, a key medical issue for transgender detainees.
Amy Lieberman is a journalist based in New York City. She has reported since January from the U.S. and Mexico as part of a reporting grant from the Fund for Investigative Journalism on the issues affecting transgender women in detention and seeking asylum. Follow her @amylieberman.