How ICE is Abusing Trans Asylum Seekers

Mitch Lensink

In recent weeks, Americans have been following the news with horror as the United States Government willingly separates children from their families, in an effort to send a message to people who are attempting to flee to safety that they are not welcome here. This latest initiative passed down by the Trump administration is appalling, but not entirely surprising. Even during the Obama administration, Immigration and Customs Enforcement (ICE) was allowed to carry out human rights violations largely unchecked by Congress or any oversight committees. The treatment of gender variant, trans, and queer people by ICE and the Department of Justice (DOJ) in the immigration system is particularly troubling, and speaks to a broader problem that haunts American Society.

American citizens who identify as trans or non-binary very often face discrimination and violence, and they are forced to make peace with a country that refuses to lift up their voices or see them as people. Many trans people fleeing from South and Central America see crossing the border as the only option to save their lives. Yet, when they arrive, they are confronted with a broken system that was set up without ever considering their needs. This is the same country that can’t figure out how to allow trans children to use the bathroom, because the government refuses to acknowledge they exist. Trans and nonbinary people of color especially face several barriers to equal treatment in America. They are often excluded from traditional safety nets and stuck in a cycle of poverty as a result. Not only do trans people entering the United States face stigma because of their gender identity, their race or ethnicity, and their socioeconomic status, but they are also singled out because of their immigration status.

When entering the country, trans people usually seek asylum, and have to prove that they face a credible threat to their safety due to violence or torture. They are detained by ICE while they await a decision on their request for asylum, and many are moved from immigration detention facilities to prisons or jails, due to overcrowding. Although they have attempted to enter the United States legally, they are placed in custody alongside people who have been convicted of criminal offenses.

When LGBTQ+ people enter detention facilities, they face a much higher risk of experiencing sexual and physical violence against them by guards and inmates than members of the general population. ICE has no written policies to determine how trans detainees are placed, and the placement of individuals is entirely up to the discretion of each specific detention center. These centers are rarely prepared to deal with the needs of trans people. For instance, people who have undergone male-to-female transition are mainly detained in male housing units, a practice which serves to retraumatize people seeking asylum because of treatment they endured in their home country.

Because the DOJ has neither the funding, nor the desire to adequately address the needs of transgender and queer detainees, these people are often confined to “administrative segregation,” or solitary confinement, in order to reduce the number of assault complaints they receive. Instead of protecting those who are being detained, this practice criminalizes them, and puts them at even greater risk for assault by guards. However, solitary confinement does reduce the amount of reported abuse of people in DOJ custody by ensuring that victims are isolated from potential witnesses. Detainees are confined to their bare cells for up to 23 hours a day with very little social interaction or mental stimulation. There is no oversight of ICE’s implementation of solitary confinement, and no limit on how many consecutive days a person can be confined.

As early as 2011, the United Nations Special Rapporteur on Torture declared that solitary confinement for more than fifteen days constitutes torture and inhumane treatment, and that the practice should be banned by all of its member states (including the United States). It cited a study that found that isolation for just a few days can cause lasting mental damage to adults with no pre-existing mental illness. Excessive solitary confinement can exacerbate pre-existing mental illnesses, and lead to additional problems upon release into society. For some asylum seekers who already suffer from post-traumatic stress disorder or depression, just a few days of isolation can cause permanent psychological damage. However, many detainees are held in administrative segregation until their cases come to adjudication, which can take weeks or months.

If the federal government made the simple choice to prioritize human rights, they could pretty easily address many of these issues. As long as asylum seekers do not pose a credible threat to society, there is legal ground to simply release them while they await their hearings. Systems such as supervised release, enrollment in community programs, and the use of ankle monitors have proven effective in ensuring that asylum seekers honor their court appearances. Not only are these approaches more humane, they also save the government money. Holding an asylum seeker in a government detention facility costs $100 per day, whereas ankle monitoring and supervised release cost about $14 per day.

In addition to the government’s gross dismissal of the humanity of trans immigrants, ICE also happens to be violating the fifth amendment rights of these asylum seekers. Under the fifth amendment, detainees who have not been found guilty of a crime are protected from having punitive measures taken against them, such as solitary confinement. This is a basic tenet of the Bill of Rights: a person is innocent until proven guilty. And that is what is most troubling about the Trump administration’s immigration policies to date. Their zero tolerance policy at the Mexican border criminalizes those who attempt to seek refuge in the United States, even if they do so lawfully.

Now, more than ever, we need to decide what kind of a nation we’d like to live in. Many of the people fleeing to the United States are doing so to escape rape, torture, unimaginable cruelty, and even death. The American dream at its most idealized has always been freedom, opportunity, and a chance for new beginnings. If we allow our fellow human beings to be further victimized in the process of seeking residence in our country, we risk breaking them and stripping them of their dignity before they ever have a chance to achieve that dream. If Mr. Trump and the Republican leadership of Congress ever hope to make America great again, they will have to start by making America great to begin with.