What Will it Take to Fix Our Broken Immigration System?

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: ahernandez@hdezlaw.com
Panelists:
Name: Director Sarah Saldaña
Title: Director, U.S. Immigration and Custom Enforcement
Employer:
Email: Assistant to Director: Staci Leake - staci.leake@ice.dhs.gov
Name: Professor Jennifer Chacon
Title: Professor of Law
Employer: University of California, Irvine, School of Law (Visiting Professor at
Stanford University)
Email: jchacon@law.uci.edu
Name: Rachel Velasquez Title: 2L – Vanderbilt University Law School
Employer
Email: rachvelasquez@gmail.com
Name: Penni P. Bradshaw, Esq.
Title: Partner – Immigration Practice Group Chair
Employer: Constangy, Brooks, Smith & Prophet, LLP
Email: pbradshaw@constangy.com
Name: Flor Bermudez,
Title: Detention Project Director
Employer – Transgender Law Center
Email: flor@transgenderlawcenter.org
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
INTERNATIONAL HUMAN RIGHTS LAW AND PRACTICE (Naomi Roht-Arriaza ed., 1995))
IN
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-arizonasimmigration-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 2224, 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,
University Law School, Chicago, Illinois, January 27, 2012
Northwestern
“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, 2010August 31, 2013
U.C. Irvine Student Support Services (SSS) Faculty-Staff Advisory Board, March 2011present
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 2012July 2012
Chair, Curriculum Committee, University of California, Irvine, School of Law, July 2010June 2011.
Chair, Admissions Committee, University of California, Irvine, School of Law, July 2009June 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 2007March 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;
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.
1
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 2010present
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
Rachel.A.Velasquez@Vanderbilt.edu
(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
PBradshaw@constangy.com
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 WinstonSalem 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
flor.bermudez.attorney@gmail.com
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 records at air and sea ports resulted in a dramatic increase in the reported number of business and tourist travelers from Canada. 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 workload 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 nonimmigrant admissions (see Figure 1). Ninety percent of
I-94 admissions were temporary visitors for business
and pleasure, while 4.9 percent were temporary workers 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 fiscal 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
admission include foreign government officials; temporary
visitors for business and pleasure; aliens in transit; treaty traders
and investors; academic and vocational students; temporary
workers; exchange visitors; athletes and entertainers; victims of
certain crimes; and certain family members of U.S. citizens AND
lawful permanent residents. Maximum duration of stay is
determined by class of admission. 5NLIKEAPERSONGRANTEDLAWFUL
PERMANENT RESIDENT STATUS WHO IS AUTHORIZED TO LIVE WORK AND
STUDY IN THE 53 PERMANENTLY A NONIMMIGRANT IS AUTHORIZED A
TEMPORARY STATUS FOR A SPECIFIC PURPOSE The nonimmigrant’s
activities, such as employment, travel, and accompaniment by
dependents, are prescribed by his or her class of admission.
In this report, nonimmigrant admissions refer to the number of
events (i.e., admissions to the United States) rather than to the number of individual nonimmigrants admitted. Admission numbers
presented in this report will differ from the number of Department
of State nonimmigrant visa issuances, which include all nonimmigrant visas that were issued regardless of whether, or how many
times, the foreign national was admitted to the United States.
THE NONIMMIGRANT ADMISSIONS PROCESS
Eligibility
In order to qualify for admission in a nonimmigrant status, a foreign national generally must meet all of the following criteria:
establish that the visit will be temporary, agree to depart at the
end of the authorized stay, possess a valid passport maintain a
foreign residence (in most cases), be admissible to the U.S. or
have been granted a waiver for any grounds of inadmissibility,
and abide by the terms and conditions of admission.
Documentary Requirements
Prior to April 2013, applicants for nonimmigrant admission were
required to complete a paper Form I-94/I-94W or Electronic
System for Travel Authorization (ESTA)6 registration to be admitted
to the United States. Starting in April 2013, instead of requiring a
nonimmigrant to complete the paper Form I-94/I-94W, CBP
began generating electronic I-94s to record nonimmigrant arrivals
at air and sea ports. Nonimmigrants are still required to complete
the paper Form I-94/I-94W at land ports of entry. Mexican
nationals with Border Crossing Cards (traveling within the border
zone for a limited duration) and Canadian tourist and business
travelers admitted at land ports of entry are generally exempt from
the I-94 requirement.7 Prior to April 2013, Canadian tourist and
business travelers at air and seaports were exempt from the I-94
4
There are a few nonimmigrant classes under statutory authority other than section 101(a)(15),
in particular, NAFTA nonimmigrants and nationals of the Freely Associated States admitted under
the Compacts of Free Association between the United States and the Republic of the Marshall
Islands, the Federated States of Micronesia and Palau.
5
Commonly referred to as a lawful permanent resident (LPR) or “green card” recipient.
6
ESTA is an internet-based system that determines the preliminary eligibility of visitors to be admitted under the Visa Waiver Program prior to their embarking on trips to the United States. ESTA
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 ESTAregistered VWP entrants.
7
North Atlantic Treaty Organization (NATO) officials (seeking N1-N5 nonimmigrant classification)
were also not required to submit an I-94 but may do so to document their admissions.
2
requirement as well, but beginning in April 2013, admissions of
these visitors were recorded with an electronic I-94.
The Border Crossing Card (BCC) or “laser visa” issued to Mexican
nationals is a machine-readable card that is valid for 10 years and
contains a biometric indicator, such as a fingerprint. Applicants for
a BCC must meet the same qualifications as applicants for a B1/B2
visa (temporary visitor for business or pleasure), have a valid
Mexican passport, and demonstrate that they will return to Mexico
upon completion of their stay.
I-94 Admissions
Visa Required. If a visa is necessary for entry, the foreign national typically must apply at a U.S. embassy or consulate. The Online
Nonimmigrant Visa Application, Form DS-160, or the Nonimmigrant
Visa Application, Form DS-156, must be submitted for all applicants.
In addition, an interview generally is required for applicants aged 14
to 79 years. Possession of a valid visa does not guarantee admission. A
CBP officer determines if the nonimmigrant may enter the United
States and the authorized duration of stay. Prior to April 2013, foreign nationals with nonimmigrant visas were required to complete
the paper Form I-94. Beginning in April 2013, those with nonimmigrant visas admitted at air and seaports had an electronic I-94 generated to record their admissions while individuals admitted at land
ports were still required to complete the paper I-94.
Visa Waiver Program. The Visa Waiver Program (VWP) allows nationals
of designated countries to travel to the United States as tourists or
business travelers without a visa for a period not to exceed 90
days. It was initially established as a pilot program in 1986 with
the intent to eliminate barriers to travel, to facilitate tourism, and
to promote better relations with U.S. allies. Qualified nationals of
VWP countries must be admissible to the United States and not
have violated the terms of any previous admission under the VWP;
possess a valid unexpired machine-readable passport; travel on an
approved carrier and possess a round trip ticket if arriving by air
or sea; obtain travel authorization from ESTA; and waive their
right to contest an immigration officer’s determination of admissibility and the right to contest removal, other than on the basis of
an application for asylum. At air and sea ports, an electronic I-94W
record is created upon admission for ESTA-registered VWP
entrants. At land ports, the paper Form I-94W is required.
Nationals of VWP countries must obtain a visa if they are traveling
to the U.S. for a purpose other than tourism or business or if their
stay will exceed 90 days.
At the beginning of fiscal year 2013, 36 countries participated in
the Visa Waiver Program: Andorra, Australia, Austria, Belgium,
Brunei, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the
Netherlands, New Zealand, Norway, Portugal, San Marino,
Singapore, South Korea, Slovakia, Slovenia, Spain, Sweden,
Switzerland, and the United Kingdom. Effective November 1, 2012,
Taiwan was admitted to the Visa Waiver Program. Chile was admitted to the Visa Waiver Program effective March 31, 2014 (after the
time period covered by this report.)
The Guam-Commonwealth of the Northern Marianas Islands Visa
Waiver Program (GCVWP) permits nationals of designated countries
and geographic areas to be admitted to Guam or the Commonwealth
of the Northern Marianas Islands (CNMI) without a visa. Admissions
under the GCVWP may not exceed 45 days in Guam and/or CNMI.
In 2013, Australia, Brunei, Hong Kong, Japan, Malaysia, Nauru, New
Zealand, Papua New Guinea, South Korea, Singapore, Taiwan, and the
United Kingdom were included in the GCVWP.8
Canadian Tourist and Business Admissions at Air and Sea Ports. Canadian shortterm business and tourist visitors to the United States are required to
possess a valid passport or other Western Hemisphere Travel Initiative
(WHTI) approved form of identification.9 These visitors are generally
not required to obtain a visa or register with ESTA. Prior to April
2013, these Canadian business and tourist travelers were also not typically required to complete a paper Form I-94. However, after CBP
automated the I-94 process at air and sea ports in April 2013, CBP
began generating electronic I-94s for short term Canadian tourists
and business travelers admitted at air and sea ports. Prior to April
2013, these visitors were not included in the I-94 admissions data.
Since April 2013, Canadian tourist and business travelers admitted at
air and sea ports have been recorded in the I-94 data as B1 or B2
admissions. Canadian business and tourist travelers admitted at land
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.
8
On November 28, 2009, the GCVWP replaced the Guam Visa Waiver Program (GVWP) which
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, Singapore, Samoa, Solomon Islands, Taiwan, the United Kingdom, and Vanuatu were included in the
GVWP when it ended.
9
WHTI approved travel documents include an Enhanced Driver’s License, Enhanced Identification
Card, or Trusted Traveler Program card.
DATA
The data in this report were obtained from TECS, a computer system
used by CBP, which compiles and maintains information collected
from nonimmigrants on the paper Form I-94/I-94W and electronic
I-94/I-94W. Information collected from these I-94 records includes
arrival and departure dates, port of entry, class of admission, country of citizenship, state of destination, age, and sex. Caution should
be exercised when interpreting trends in I-94 admissions, as yearto-year fluctuations may reflect changes in data collection in addition to variation in travel patterns. For example, land admissions
increased markedly in 2010 and 2011 because of changes in the
way admissions were counted.10 As another example, Canadian
admissions increased substantially from 2012 to 2013 because in
April 2013, at air and sea ports, CBP began recording Canadian
tourist and business travelers as B1 or B2 admissions with electronic I-94s. These Canadian admissions were not included in the
I-94 data before April 2013 because Canadian tourist and business
travelers were not typically required to fill out a paper Form I-94.
CHARACTERISTICS OF I-94 NONIMMIGRANT
ADMISSIONS
Class of Admission
There were 61,052,260 I-94 nonimmigrant admissions in 2013
(see Table 1). The largest category of admission in 2013 was temporary visitors for pleasure which represented 79 percent of I-94
admissions. This category includes the B2 (temporary visitors for
10
2011 was the first full year in which nearly all I-94/I94W land admissions were recorded. See
Monger and Mathews (2011) for a more detailed discussion of how counting changes affected
admissions.
Table 1.
Nonimmigrant Admissions (I-94 only) by Class of Admission: Fiscal Years 2011 to 2013
2013
Class of admission
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Temporary workers and families . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Temporary workers and trainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CNMI-only transitional worker (CW1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Workers in specialty occupations (H1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chile and Singapore Free Trade Agreement (H1B1) . . . . . . . . . . . . . . . . . . . . . .
Registered nurses participating in the Nursing Relief for Disadvantaged
Areas Act (H1C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Agricultural workers (H2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nonagricultural workers and returning H2B workers (H2B, H2R) . . . . . . . . . . . . .
Trainees (H3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Workers with extraordinary ability or achievement and their assistants (O1, O2) . .
Internationally recognized athletes or entertainers (P1) . . . . . . . . . . . . . . . . . . .
Artists or entertainers in reciprocal exchange or culturally unique
programs (P2, P3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Workers in international cultural exchange programs (Q1). . . . . . . . . . . . . . . . . .
Workers in religious occupations (R1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
North American Free Trade Agreement (NAFTA) professional workers (TN) . . . . . .
Spouses and children of temporary workers and trainees
(CW2, H4, O3,P4, R2, TD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Intracompany transferees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Intracompany transferees (L1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Spouses and children of intracompany transferees (L2) . . . . . . . . . . . . . . . . . . .
Treaty traders and investors and spouses and children (E1 to E3) . . . . . . . . . . . . . .
Representatives of foreign media and their spouses and children (I1) . . . . . . . . . . . .
2012
2011
Number
Percent
Number
Percent
Number
Percent
61,052,260
2,996,743
1,853,915
1,642
474,355
8
100.0
4.9
3.0
—
0.8
—
53,887,286
3,049,419
1,900,582
D
473,015
D
100.0
5.7
3.5
—
0.9
—
53,082,286
3,385,775
2,092,028
—
494,565
30
100.0
6.4
3.9
—
0.9
—
7
204,577
104,993
4,117
87,366
85,583
—
0.3
0.2
—
0.1
0.1
29
183,860
82,921
4,081
70,611
84,209
—
0.3
0.2
—
0.1
0.2
124
188,411
79,862
3,279
67,724
84,545
—
0.4
0.2
—
0.1
0.2
21,818
2,685
14,191
612,535
—
—
—
1.0
22,116
2,494
15,906
733,692
—
—
—
1.4
22,660
2,331
19,683
899,455
—
—
—
1.7
240,038
723,641
503,206
220,435
373,360
45,827
0.4
1.2
0.8
0.4
0.6
0.1
227,637
717,893
498,899
218,994
386,472
44,472
0.4
1.3
0.9
0.4
0.7
0.1
229,359
788,187
562,776
225,411
454,101
51,459
0.4
1.5
1.1
0.4
0.9
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
Class of admission
Students . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Academic students (F1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Vocational students (M1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Spouses and children of academic and vocational students (F2, M2) . . . . . . . . .
Exchange visitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exchange visitors (J1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Spouses and children of exchange visitors (J2) . . . . . . . . . . . . . . . . . . . . . . . . .
Diplomats and other representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ambassadors, public ministers, career diplomats, consular officers, other foreign
government officials and their spouses, children, and attendants (A1 to A3) . .
Representatives to international organizations and their spouses, children,
and attendants (G1 to G5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
NATO officials and their families (N1 to N7) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Temporary visitors for pleasure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Temporary visitors for pleasure (B2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Visa Waiver Program – temporary visitors for pleasure (WT) . . . . . . . . . . . . . . . .
Guam – CNMI Visa Waiver Program – temporary visitors for pleasure to Guam
or Northern Mariana Islands (GMT) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Temporary visitors for business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Temporary visitors for business (B1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Visa Waiver Program - temporary visitors for business (WB) . . . . . . . . . . . . . . . .
Guam – CNMI Visa Waiver Program - temporary visitors for business to
Guam or Northern Mariana Islands (GMB) . . . . . . . . . . . . . . . . . . . . . . . . . . .
Transit aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Aliens in continuous and immediate transit through the United States (C1) . . . . .
Aliens in transit to the United Nations (C2) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Foreign government officials, their spouses, children, and attendants in transit (C3) . . .
Commuter Students . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Canadian or Mexican national academic commuter students (F3) . . . . . . . . . . . .
Canadian or Mexican national vocational commuter students (M3) . . . . . . . . . . .
Alien fiancé(e)s of U.S. citizens and children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Fiancé(e)s of U.S. citizens (K1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Children of K1 (K2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Alien spouses of U.S. citizens and children, immigrant visa pending. . . . . . . . . . . . . . . .
Spouses of U.S. citizens, visa pending (K3). . . . . . . . . . . . . . . . . . . . . . . . . . . .
Children of U.S. citizens, visa pending (K4) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Alien spouses of U.S. permanent residents and children, immigrant visa pending . . . . . .
Spouses of permanent residents, visa pending (V1) . . . . . . . . . . . . . . . . . . . . . .
Children of permanent residents, visa pending (V2) . . . . . . . . . . . . . . . . . . . . . .
Dependents of V1 or V2, visa pending (V3) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Unknown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2012
2011
Number
Percent
Number
Percent
Number
Percent
1,669,225
1,577,509
19,106
72,610
492,937
433,534
59,403
373,330
2.7
2.6
—
0.1
0.8
0.7
0.1
0.6
1,653,576
1,566,815
17,600
69,161
475,232
421,425
53,807
365,779
3.1
2.9
—
0.1
0.9
0.8
0.1
0.7
1,788,962
1,702,730
18,824
67,408
526,931
469,993
56,938
377,830
3.4
3.2
—
0.1
1.0
0.9
0.1
0.7
200,825
0.3
207,349
0.4
215,186
0.4
141,744
30,761
48,346,018
29,915,467
17,168,958
0.2
0.1
79.2
49.0
28.1
135,623
22,807
42,041,426
24,476,086
16,380,307
0.3
—
78.0
45.4
30.4
139,378
23,266
40,591,607
23,806,138
15,718,710
0.3
—
76.5
44.8
29.6
1,261,593
6,299,533
3,498,688
2,798,130
2.1
10.3
5.7
4.6
1,185,033
5,707,218
2,972,355
2,731,887
2.2
10.6
5.5
5.1
1,066,759
5,696,503
3,055,932
2,637,166
2.0
10.7
5.8
5.0
2,715
628,711
608,396
2,269
18,046
105,263
105,263
—
29,773
26,046
3,727
1,679
1,262
417
1,335
867
271
197
87
107,626
—
1.0
1.0
—
—
0.2
0.2
—
—
—
—
—
—
—
—
—
—
—
—
0.2
2,976
313,514
289,105
4,158
20,251
115,561
115,561
—
32,102
27,977
4,125
5,152
4,534
618
3,075
1,928
449
698
91
125,141
—
0.6
0.5
—
—
0.2
0.2
—
0.1
0.1
—
—
—
—
—
—
—
—
—
0.2
3,405
322,499
296,636
4,397
21,466
108,894
108,892
D
27,700
24,112
3,588
20,977
17,874
3,103
9,122
3,659
2,546
2,917
93
225,393
—
0.6
0.6
0.0
—
0.2
0.2
—
0.1
—
—
—
—
—
—
—
—
—
—
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
pleasure) classes of admission which accounted for 49 and 28 percent, respectively, of all admissions. Approximately 10 percent of
admissions in 2013 were in the temporary visitors for business
category of admission. B1 (temporary visitors for business) admissions represented 5.7 percent of all admissions and WB (Visa
Waiver Program—temporary visitors for business) accounted for
4.6 percent. Five percent of all admissions were by temporary
workers and their families. The leading classes of admission in this
category were TN NAFTA professional workers (1.0 percent), H1B
workers in specialty occupations (0.8 percent), and L1 intracompany transferees (0.8 percent). F1 academic students represented
2.6 percent of I-94 admissions and nearly all of the admissions in
the student category.
4
Country of Citizenship
The leading countries of citizenship for nonimmigrant admissions
to the United States in 2013 were Mexico (29 percent), the United
Kingdom (7.5 percent), Canada (7.3 percent), Japan (7.0 percent), Germany (3.9 percent), Brazil (3.5 percent), China (3.4
percent), France (3.2 percent), South Korea (2.7 percent), and
India (2.4 percent) (see Table 2). Admissions from Canada
increased from 1,466,120 in 2012 to 4,445,881 in 2013 because
CBP began recording Canadian air and sea admissions of tourists
and business travelers in April 2013.
Port of Entry
The largest 20 ports of entry represented 67 percent of nonimmigrant admissions in 2013 (see Table 3). About half of all nonimmigrants were admitted through the following ports of entry:
New York (10 percent), Miami (9.3 percent), Los Angeles (6.8
Table 2.
Nonimmigrant Admissions (I-94 only) by Country of Citizenship: Fiscal Years 2011 to 2013
2013
Country of citizenship
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Japan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Brazil. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Korea, South . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Unknown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2012
2011
Number
Percent
Number
Percent
Number
Percent
61,052,260
17,980,784
4,566,669
4,445,881
4,298,081
2,359,681
2,143,154
2,098,801
1,959,424
1,656,795
1,491,712
17,886,490
164,788
100.0
29.5
7.5
7.3
7.0
3.9
3.5
3.4
3.2
2.7
2.4
29.3
0.3
53,887,286
16,462,118
4,486,666
1,466,120
4,141,299
2,308,207
1,792,425
1,756,747
1,913,551
1,527,085
1,296,276
16,461,702
275,090
100.0
30.5
8.3
2.7
7.7
4.3
3.3
3.3
3.6
2.8
2.4
30.5
0.5
53,082,286
17,052,559
4,547,728
1,868,179
3,777,643
2,182,441
1,539,015
1,364,078
1,845,227
1,460,972
1,222,302
15,737,991
484,151
100.0
32.1
8.6
3.5
7.1
4.1
2.9
2.6
3.5
2.8
2.3
29.6
0.9
Number
Percent
Number
Percent
Number
Percent
61,052,260
6,129,709
5,679,558
4,165,812
2,148,824
2,107,178
1,986,263
1,981,939
1,832,126
1,523,289
1,516,566
1,501,909
1,446,231
1,323,357
1,293,000
1,239,607
1,144,427
1,117,181
1,112,289
861,150
838,216
19,888,346
215,283
100.0
10.0
9.3
6.8
3.5
3.5
3.3
3.2
3.0
2.5
2.5
2.5
2.4
2.2
2.1
2.0
1.9
1.8
1.8
1.4
1.4
32.6
0.4
53,887,286
5,744,877
5,115,113
3,905,034
2,088,591
1,892,134
1,859,836
2,082,911
1,606,615
1,303,897
1,379,717
1,382,759
1,302,120
404,655
1,202,976
1,165,318
1,012,572
1,048,272
914,619
660,107
797,264
16,841,339
176,560
100.0
10.7
9.5
7.2
3.9
3.5
3.5
3.9
3.0
2.4
2.6
2.6
2.4
0.8
2.2
2.2
1.9
1.9
1.7
1.2
1.5
31.3
0.3
53,082,286
5,344,781
4,712,293
3,734,815
2,181,506
1,581,719
1,777,202
2,781,270
1,596,960
1,215,475
1,397,240
1,425,534
1,273,830
381,181
1,083,381
1,127,737
1,056,990
924,684
795,472
628,687
642,152
17,232,077
187,300
100.0
10.1
8.9
7.0
4.1
3.0
3.3
5.2
3.0
2.3
2.6
2.7
2.4
0.7
2.0
2.1
2.0
1.7
1.5
1.2
1.2
32.5
0.4
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
Port of entry
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
New York, NY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Miami, FL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Los Angeles, CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Newark, NJ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Honolulu, HI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
San Francisco, CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
San Ysidro, CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chicago, IL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Otay Mesa, CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Atlanta, GA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Houston, TX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Juarez-Lincoln Bridge, TX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Toronto, Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Agana, GU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Washington, DC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nogales, AZ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Orlando, FL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dallas, TX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Boston, MA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hidalgo, TX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Unknown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2012
2011
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
Francisco (3.3 percent), San Ysidro (3.2 percent), Chicago (3.0
percent), Otay Mesa (2.5 percent), Atlanta (2.5 percent), and
Houston (2.5 percent).
State of Destination
Age and Sex
In 2013, 60 percent of I-94 admissions were accounted for by
individuals aged 25 to 54, and 51 percent of nonimmigrant
admissions were male (see Table 5). Age and sex distributions
remained relatively unchanged between 2011 and 2013.
The most frequent states of destination for I-94 nonimmigrant
admissions in 2013 were California (18 percent), Florida (13 percent), Texas (13 percent), and New York (11 percent) (see Table 4).
These four states represented the destinations of 55 percent of foreign nationals admitted.
5
Table 4.
Nonimmigrant Admissions (I-94 only) by State of Destination: Fiscal Years 2011 to 2013
2013
State of destination
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hawaii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nevada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Massachusetts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Unknown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2012
2011
Number
Percent
Number
Percent
Number
Percent
61,052,260
11,182,804
8,089,139
7,605,578
6,805,732
2,261,576
2,128,680
1,952,808
1,415,063
1,197,625
1,056,505
10,986,783
6,369,967
100.0
18.3
13.2
12.5
11.1
3.7
3.5
3.2
2.3
2.0
1.7
18.0
10.4
53,887,286
10,208,709
7,234,508
6,854,454
6,409,286
1,969,089
1,793,376
1,749,492
1,262,020
1,021,476
963,171
10,147,921
4,273,784
100.0
18.9
13.4
12.7
11.9
3.7
3.3
3.2
2.3
1.9
1.8
18.8
7.9
53,082,286
10,306,971
6,690,019
6,559,787
6,226,198
1,666,432
1,729,040
1,800,715
1,158,160
979,740
930,826
10,196,030
4,838,368
100.0
19.4
12.6
12.4
11.7
3.1
3.3
3.4
2.2
1.8
1.8
19.2
9.1
Source: U.S. Department of Homeland Security, Customs and Border Protection (CBP), TECS, Arrival File, Fiscal Years 2011 to 2013.
REFERENCES
Table 5.
Nonimmigrant Admissions (I-94 only) by Age and Sex: Fiscal Years 2011 to 2013
2013
Characteristic
2012
2011
Number
Percent
Number
Percent
Number
Percent
AGE
Total . . . . . . . . . .
Under 18 years . . . . .
18 to 24 years . . . . . .
25 to 34 years . . . . . .
35 to 44 years . . . . . .
45 to 54 years . . . . . .
55 to 64 years . . . . . .
65 years and over . . .
Unknown . . . . . . . . . .
61,052,260
6,922,805
5,672,694
12,929,049
12,866,158
10,885,774
7,132,243
4,580,183
63,354
100.0
11.3
9.3
21.2
21.1
17.8
11.7
7.5
0.1
53,887,286
6,067,171
4,978,091
11,433,982
11,685,053
9,566,343
6,181,493
3,873,243
101,910
100.0
11.3
9.2
21.2
21.7
17.8
11.5
7.2
0.2
53,082,286
5,771,094
4,910,932
11,402,173
11,844,788
9,422,045
6,003,548
3,623,230
104,476
100.0
10.9
9.3
21.5
22.3
17.7
11.3
6.8
0.2
SEX
Total . . . . . . . . . .
Male . . . . . . . . . . . . .
Female . . . . . . . . . . .
Unknown . . . . . . . . . .
61,052,260
31,420,318
29,285,737
346,205
100.0
51.5
48.0
0.6
53,887,286
27,825,034
25,605,018
457,234
100.0
51.6
47.5
0.8
53,082,286
27,385,129
24,867,990
829,167
100.0
51.6
46.8
1.6
Source: U.S. Department of Homeland Security, Customs and Border Protection (CBP), TECS, Arrival File, Fiscal Years 2011
to 2013.
6
Monger, Randall and Mathews, Megan, 2011.
“Nonimmigrant Admissions to the United States:
2010,” Office of Immigration Statistics, Policy
Directorate, U.S. Department of Homeland
Security, http://www.dhs.gov/xlibrary/assets/
statistics/publications/ni_fr_2010.pdf
Appendix A.
Nonimmigrant Classes of Admission — Continued
Class
Description
Temporary Workers and Families
Temporary workers and trainees
CW1 . . . . . . . .
CW2 . . . . . . . .
H1B . . . . . . . .
H1B1 . . . . . . .
H1C . . . . . . . .
H2A . . . . . . . .
H2B . . . . . . . .
H2R . . . . . . . .
H3 . . . . . . . . .
H4 . . . . . . . . .
O1 . . . . . . . . .
O2 . . . . . . . . .
O3 . . . . . . . . .
P1 . . . . . . . . . .
P2 . . . . . . . . . .
P3 . . . . . . . . . .
P4 . . . . . . . . . .
Q1 . . . . . . . . .
R1 . . . . . . . . .
R2 . . . . . . . . .
TN . . . . . . . . . .
TD . . . . . . . . . .
CNMI-only transitional workers
Spouses and children of CW1
Workers in specialty occupations
Chile and Singapore Free Trade Agreement aliens
Registered nurses participating in the Nursing Relief for Disadvantaged Areas
Agricultural workers
Nonagricultural workers
Returning H2B workers
Trainees
Spouses and children of H1, H2, or H3
Workers with extraordinary ability or achievement
Workers accompanying and assisting in performance of O1 workers
Spouses and children of O1 and O2
Internationally recognized athletes or entertainers
Artists or entertainers in reciprocal exchange programs
Artists or entertainers in culturally unique programs
Spouses and children of P1, P2, or P3
Workers in international cultural exchange programs
Workers in religious occupations
Spouses and children of R1
North American Free Trade Agreement (NAFTA) professional workers
Spouses and children of TN
Intracompany transferees
L1 . . . . . . . . . .
L2 . . . . . . . . . .
Intracompany transferees
Spouses and children of L1
Treaty traders and investors
E1 . .
E2 . .
E2C.
E3 . .
.
.
.
.
.
.
.
.
.
.
.
.
.....
.....
.....
.....
Treaty traders and their spouses and children
Treaty investors and their spouses and children
Treaty traders and their spouses and children CNMI-only
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 . . . . . . . . . .
F2 . . . . . . . . . .
M1 . . . . . . . . .
M2 . . . . . . . . .
Academic students
Spouses and children of F1
Vocational students
Spouses and children of M1
Exchange visitors
J1 . . . . . . . . . .
J2 . . . . . . . . . .
Exchange visitors
Spouses and children of J1
Diplomats and other representatives
A1 . . . . . . . . . .
A2 . . . . . . . . . .
A3 . . . . . . . . . .
G1 . . . . . . . . .
G2 . . . . . . . . .
G3 . . . . . . . . .
G4 . . . . . . . . .
G5 . . . . . . . . .
N1 to N7 . . . . .
Ambassadors, public ministers, career diplomatic or consular officers and their families
Other foreign government officials or employees and their families
Attendants, servants, or personal employees of A1 and A2 and their families
Principals of recognized foreign governments
Other representatives of recognized foreign governments
Representatives of nonrecognized or nonmember foreign governments
International organization officers or employees
Attendants, servants, or personal employees of representatives
North Atlantic Treaty Organization (NATO) officials, spouses, and children
Temporary visitors for pleasure
B2 .
WT .
GT . .
GMT
........
........
........
........
Temporary visitors for pleasure
Visa Waiver Program – temporary visitors for pleasure
Guam Visa Waiver Program – temporary visitors for pleasure to Guam
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 . .
WB . .
GB . .
GMB .
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
Temporary visitors for business
Visa Waiver Program – temporary visitors for business
Guam Visa Waiver Program – temporary visitors for business to Guam
Guam-CNMI – temporary visitors for business to Guam or Northern Mariana Islands
Transit aliens
C1 . . . . . . . . .
C2 . . . . . . . . .
C3 . . . . . . . . .
Aliens in continuous and immediate transit through the United States
Aliens in transit to the United Nations
Foreign government officials, their spouses, children, and attendants in transit
Commuter Students
F3 . . . . . . . . . .
M3 . . . . . . . . .
Canadian or Mexican national academic commuter students
Canadian or Mexican national vocational commuter students
Alien Fiancé(e)s of U.S. citizens
K1 . . . . . . . . .
K2 . . . . . . . . .
Fiancé(e)s of U.S. citizens
Children of K1
Legal Immigration Family Equity (LIFE) Act
K3 . . . . . . . . .
K4 . . . . . . . . .
V1 to V3 . . . . .
Spouses of U.S. citizens, immigrant visa pending
Children of K3, immigrant visa pending
Spouses and children of permanent residents, immigrant visa pending
Other categories
N8
N9
Q2
Q3
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
Parents of international organization special immigrants
Children of N8 or international organization special immigrants
Irish Peace Process Cultural and Training Program aliens
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
pbradshaw@constangy.com
(336) 721-6842
Jeanette K. Phelan
Constangy, Brooks & Smith, LLP
200 W. Forsyth Street, Suite 1700
Jacksonville, FL 32202
jphelan@constangy.com
(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 “outsourced” 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 EVerify 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 EVerify 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 ImmigrationRelated 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 employersponsored 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 nomatch 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 selfidentify 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 H1B 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
~ 31 ~
that require outstanding
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
~ 36 ~
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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 faithbased 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 sixfoot-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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How 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 first-hand information, contributing images and graphics, and making valuable
connections: Raul Alcaraz, Barbara Hines, Bob Libal, Jennifer Long, Christina Mansfield, 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
Office 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 fill 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 significantly 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 beneficiaries 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
specific focus on the role played by for-profit, private prison corporations. These companies have profited
handsomely from the artificial 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-profit 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 affect
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 significantly augmented their profits 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 profit 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-profit 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, communitysupported 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 efforts
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 fiscal 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 office.35
Subsequent efforts 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 fiscal 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 effectiveness of private prisons,50
along with the revelation that savings are often artificially 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, benefits, 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 fiscal 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
1
2
3
4
5
6
7
8
9
10
Facility
South Texas Detention Complex
Stewart Detention Center
Eloy Federal Contract Facility
Northwest Detention Center
Adelanto Correctional Facility
Jena/LaSalle Detention Facility
Port Isabel
Joe Corley Detention Facility
Houston Contract Detention Facility
Location
Pearsall, TX
Lumpkin, GA
Eloy, AZ
Tacoma, WA
Adelanto, CA
Jena, LA
Los Fresnos, TX
Conroe, TX
Houston, TX
Company
GEO
CCA
CCA
GEO
GEO
GEO
Public
GEO
CCA
FY14 ADP
1722
1619
1483
1400
1209
1033
992
958
942
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 reflected in the charts below or average daily population calculations in this
report as they are not included in the fiscal 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 profits.
Both companies have significantly 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
profit 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, “filling 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 confident 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 fill 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 Officer of GEO, said
about the acquisition: “The recently announced reactivation of a significant 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 confidence 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-profit 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 first 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 first 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 profits to lobby
and contribute to campaigns that would benefit its business.80 GEO Group has
employed similar strategies since its inception in 1984. The company, then
called Wackenhut Corrections Corporation, secured its first prison contract to
detain 150 immigrants for the Immigration and Naturalization Service (now
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
as new government regulations began to require lobbyists to divulge specific
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
$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
on Homeland Security, the birthplace and point of control for the immigrant
detention quota.85 The shrewdly targeted campaign contributions have been
documented and analyzed at length by multiple sources86,87 and indicate that
private prison companies are focusing efforts on swaying Congress members
with clout on immigration issues and in the Appropriations Committee.
CCA was
established on
the idea that
prisons could be
sold “just like you
were selling cars,
or real estate, or
hamburgers.”
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 floor, 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 fiscal 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 affects
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 influence immigration policy,” has “not discussed any
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 efforts that would influence
enforcement efforts, parole standards, criminal laws, and sentencing policies.”95
However, these same corporations have spent over $13 million on federal lobbying
between 2008 and 2014. In the words of immigrant advocate Peter CervantesGautschi, “that’s a lot of money to listen quietly.”96 Private prison corporations’
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
lobbyist for Immigration Centers of America-Farmville, a private prison corporation,
wrote in a lobbying disclosure report that they “assisted Immigration Centers of
America-Farmville to reach maximum inmate capacity.”
The quota
Furthermore, both CCA and GEO Group list immigration reform and other
liberalization efforts as threats to their business outlooks in documents filed with
the SEC. In its annual 10-K report released in February 2015, CCA admits that “We
depend on a limited number of governmental customers for a significant portion
of our revenues. We currently derive, and expect to continue to derive, a significant
portion of our revenues from a limited number of governmental agencies. The
loss of, or a significant decrease in, business from the [Bureau of Prisons (BOP)],
ICE, [U.S. Marshals Service (USMS)], or various state agencies could seriously
harm our financial condition and results of operations. The three primary federal
governmental agencies with correctional and detention responsibilities, the BOP,
ICE, and USMS, accounted for 44% of our total revenues for the fiscal year ended
December 31, 2014 ($724.2 million).”97
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.
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 profit 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 artificial 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 profit incentives for lobbying, CCA and GEO
Group have filed 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
the DHS Appropriations Subcommittee as well as on immigrant detention and
immigration issues as a whole.
“That’s a lot of
money to listen
quietly.”
Below are charts illustrating the extent of this lobbying. Chart 2-A examines the
lobbying practices of CCA, the largest private prison company and the one that
has historically been most active in lobbying and in directing funds specifically
toward lobbying the DHS Appropriations Subcommittee. The first 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 specifically
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 profit incentive in alternatives to
detention through its subsidiary BI Technologies. Additionally, vaguely defined 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 specific 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 specifically 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
*
*
12 | PAYOFF: How Congress Ensures Private Prison Profit with an Immigrant Detention Quota | April 2015
Chart 2-B h
*
*
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 20082014 occurred in quarters when they lobbied on the DHS Appropriations Subcommittee.109
Chart 2-C h
*
*
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
Mc Bee Strategic Consulting, LLC
Akin Gump Strauss Hauer & Feld, LLP
Mehlman Castagnetti Rosen Bingel & Thomas, Inc.
Lionel “Leo” Aguirre
Podesta Group, Inc.*
Sisco Consulting, LLC*
Navigators Global, LLC
Ridge Policy Group
Public Policy Partners*
CCA
CCA
CCA
CCA
CCA & GEO
CCA & GEO
CCA
GEO
GEO
GEO
$9,840,000
$2,270,000
$2,130,000
$1,240,000
$1,200,000
$680,000
$670,000
$610,000
$200,000
$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 highpowered firms 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 reflect a practice of hiring people
with influence 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 first 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 office before moving into the private sector.111
The Ridge Policy Group is headed by Tom Ridge, the first 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
profits and risk factors demonstrate a clear intent to maintain the immigrant detention quota and avoid
any policies that would cause a significant 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 artificially 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’ confidence expressed to shareholders that profits 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 first 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 effects 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
by ICE.119 The following testimonies from people who have experienced detention
first-hand show the harm that is done by the immigrant detention quota, and the
system of immigrant detention as a whole.i
MARICHUY LEAL
Detained 9 months in CCA-run Eloy Detention Center in Arizona
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
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.
Marichuy, on left, leads a march to free Nicoll, another transgender
woman in immigrant detention.
While the nonmonetary effects
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.
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
guards. The guards took her to the hospital, then
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.”
“My torture in
Mexico didn’t
[it]kept
going in the
detention center
where supposedly
I was going to be
safe...Supposedly
ICE has a policy that
no discrimination
and no abuse is
tolerated in the
detention centers
and that’s not true.
Trans women and
the LGBT community
aren’t safe in
detention centers. I
wasn’t safe.”
“They put me in segregation punishing me,” Marichuy said. She said that
what ICE officials call “protective custody” is really solitary confinement. She
describes segregation as a place “where they keep you 24/7 locked up in a cell.
They only take you out for an hour to shower and when they pull you out to
shower they handcuff 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 handcuff you
and they take you to the shower. There are some cages, you put your hand out,
they take the handcuffs, you shower...again handcuffs, and then back to your
cell.”
There was a time during detention when she attempted to commit suicide.
“[There are] a lot of psychological problems you suffer like depression for all the
punishment they do in there. When you’re being punished and discriminated
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
women who tried to kill themselves while she was there because they couldn’t
deal with how they were treated at the detention center.
“My torture in Mexico didn’t finish. My torture in Mexico kept going in the
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
in the detention centers and that’s not true. Trans women and the LGBT
community aren’t safe in detention centers. I wasn’t safe. We’re asking for
help…but ICE and CCA…just punish us.”
Comparing the Arizona State Prison with the CCA-managed Eloy ICE detention
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 suffering all that
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
Arizona State Prison, she felt like there was more respect from the guards. She
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
terrible.”
Marichuy was released from Eloy in January 2014 after paying a $7500
bond and continues to fight 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
fighting 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 fleeing 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
government sent him a court paper. He knew that he would not be released
again if he returned, so he fled to Sudan with his wife and daughter and stayed
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
drove to the Mexican border city of Reynosa and were put in the immigration
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
hearing of others taken to the “mafia” with the collusion of local police and held
for ransom until their families could pay for their release to the border. “The
police and mafia are the same,” he said.
“They treat you
like a criminal,”
he said. “Even in
my country when
I go to prison I’m
never cuffed like
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 handcuffed, 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 flight, continuously handcuffed. Solomon recalled that when they
were transferred between each location, they were put in a smaller room with only a cement floor 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 handcuffed detainee whenever they were transferred
between different holding areas within the facility.
“The suffering 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
cuffed 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 find 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
supervisor at a call center, and even renewed his green card — apparently with no
problem — the same year.
“Are you coming
home?”
In March 2011, immigration officers showed up at newlyweds Naz and Hope’s
doorstep at 7 a.m. “We thought it was his probation officer,” Hope said. “He went to
the door… and it was 4 fully-armed ICE officers, 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 off our radar,” Hope said. She recalls that she started crying
when she figured out they were taking Naz, and the ICE officer
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 stuff 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 office I
text my supervisor saying that hey, I’m going to be late. Immigration officers 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 office 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 first 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 office 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 filthy 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.
“They wanted us to take everything off except for your pants and your shirt and
put it in the bin. They were screaming at us telling us that.”
The people being processed into STDC were asked if they were going to fight
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
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
blanket and toothbrush...and that was when I was like, I guess I’m going to be
here more than a day.”
“Even though it’s
a civil immigrant
detention center
it’s run more like a
prison”
It wasn’t until two weeks in detention that he got to meet with an ICE officer 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 first [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 finish up. I was running late and so
they called the sergeant and made a big deal out of it and said, I’m gonna
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.
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
to the outside “and I can see far in the distance there’s trees out there and I’m
like, okay I’m still on Earth.”
“I was disoriented
the whole time
- 10 months. I
felt like it was
a bad dream, a
nightmare.”
Getting adequate medical care was nearly impossible. Ibuprofen is prescribed
for everything, whether a cold or if you fell of your bunk. Naz was told to put
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.
“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.”
For Hope, “It was the most surreal thing. Just
totally, completely unexpected,” she said.
“Some people live in fear, which is terrible,
and I feel like, is it worse to live in fear and
have it happen, or to be so totally ignorant
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
a month to talk to him on the phone, and a fortune in legal fees. She was in
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
their doors when she came to visit Naz twice a month.
One court case, where they expected to bail out Naz, was postponed when the
prosecutors for DHS advised their attorney to go in a different direction with
their case, and they agreed it was best in the long term. Hope remembers, “the
judge was flipping 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 fighting for better offers. 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 fight 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 finally 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 find 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
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
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.
“I never went
back to being
the same
person I was
before.”
In 2014, ICE raided his workplace looking for him, specifically. “They were
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.”
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 difficult part of being
detained for Henry, who suffers 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 suffering
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
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
depressed. “The detention centers aren’t set up well to care for people,” Henry
said. “They need to be closed.”
“[People]
entered healthy
and came out
sick”
While in detention, Henry helped to organize a hunger strike, the second
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
suffering, people not receiving medical care, minors arriving at the detention
center without anyone having checked that they’re under age… there were
many calamities… we had to do something. One person by himself can’t do
anything but together we can do a great deal.”
“One person by
himself can’t do
anything but
together we can do
a great deal.”
After the third day of the hunger strike, the ICE field office director met with
some of the detainees to ask what they wanted. They described the problems
with conditions at the facility, the high bonds ($7,500 was common), and
that people without criminal records were being placed in detention. They
promised changes, but Henry reflected 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 fighting 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
CONCLUSIONS
The immigrant detention quota must be eliminated. The quota
enriches private prison corporations at taxpayer expense, and
further entrenches a system that punishes immigrants and tears
apart families. It is telling that such a quota mandated by Congress
does not exist in any other law enforcement agency, and that its
development was not in response to any change in immigration
patterns, but was highly influenced by political gain and personal
biases. The immigrant detention quota continues to be a prime
example of how money and political gain can drive policy decisions.
It serves as an “insurance policy” for private companies, artificially
stabilizing the immigrant detention industry at taxpayer expense.
It also provides political cover for congressional anti-immigrant
politicians who wish to bind the hands of any future administration
with a more lenient immigration enforcement policy. Those harmed
by the immigrant detention quota have far less power and money:
immigrants, their families, and the average American taxpayer.
•
•
•
•
•
A SNAPSHOT OF THE PRIVATE
IMMIGRANT DETENTION
INDUSTRY TODAY:
Private prison corporations operate 62%
of all ICE immigration detention beds in
the U.S.
Private prison corporations operate 9 of
the 10 largest ICE immigrant detention
centers in the U.S.
The industry is dominated by two
corporations - CCA and GEO - which
together operate 45% of total ICE
detention beds, and 72 percent of
privately contracted ICE detention beds.
Together, CCA and GEO are currently
under expansion to have the capacity
to detain 3,600 asylum-seeking mothers
and children.
Together, CCA and GEO spent
$11,020,000 in federal lobbying
in quarters when they lobbied on
immigration issues, from 2008-2014.
CCA spent $9,760,000 from 2008-2014
in quarters when they lobbied on the
DHS Appropriations Subcommittee,
which maintains the immigrant
detention quota language.
CCA and GEO are making record profits
spurred by their expansion farther into
immigrant detention, at $195,022,000
for CCA and $143,840,000 for GEO in
2014.
To fully honor the rights and dignity of
the immigrant community, DHS and ICE
•
must stop contracting with private prison
companies. The industry will always be
bound by the cardinal rule of corporate
survival: profit. CCA and GEO Group, as
publicly traded entities are obligated to act
•
in the best interest of their shareholders,
rather than in the interest of those they hold
in their facilities or the families they leave
behind. The private prison industry has
shown their willingness to spend exorbitant
sums lobbying legislators and contributing to campaigns in order to control their
“risk factors” and ensure the profitability 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
flawed, 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 asylumseeking 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 afforded 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 significant 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 profit incentive in alternatives to detention
through its subsidiary BI Technologies. Additionally, vaguely defined 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 significant 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 reflect 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 fiscal year 2014, so reflect 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 profit incentive in alternatives to
detention through its subsidiary BI Technologies. Additionally, vaguely defined 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 significant 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 specifically.
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 identification 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
REFERENCES
1.
U.S. Unauthorized Immigration Population Trends, 1990-2012. (2013, September
23). Pew Research Centers Hispanic Trends Project. http://www.pewhispanic.
org/2013/09/23/unauthorized-trends/#All
2.
Department of Homeland Security Appropriations Act, 2010. (2009, October 28).
Government Printing Office. http://www.gpo.gov/fdsys/pkg/PLAW-111publ83/pdf/
PLAW-111publ83.pdf
28.
President Bush Signs Department of Homeland Security Appropriations Act. The
White House. October 4, 2006. http://georgewbush-whitehouse.archives.gov/news/
releases/2006/10/20061004-2.html
29.
Department of Homeland Security Appropriations Act, 2007. (2006, January 3).
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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
31.
Congressional Record, Volume 147 Issue 115 (Thursday, September 6, 2001). p.
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32.
Taylor, L. (2014, March 12). Rights groups want to end mandate that keeps
immigration detention beds full. Imagine 2050. http://imagine2050.newcomm.
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LOluTVIh.dpuf
3.
Immigrant detention bed quota timeline. (2014, March 20). National Immigrant
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4.
Immigration and Customs Enforcement. ERO Custody Management Division.
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Authorized Facilities” and “ICE Authorized Facilities Matrix.” March 5, 2015.
33.
Expose & Close: Executive Summary. (n.d.). Detention Watch Network. http://www.
detentionwatchnetwork.org/sites/detentionwatchnetwork.org/files/ExposeClose/
Expose-Executive11-15.pdf
Immigrant detention bed quota timeline. (2014, March 20). National Immigrant
Justice Center. http://immigrantjustice.org/sites/immigrantjustice.org/files/
Immigration_Detention_Bed_ Quota_Timeline_2014_03_1.pdf
34.
FY 2013 ICE Immigration Removals. (n.d.). Immigration and Customs Enforcement.
https://www.ice.gov/removal-statistics/
5.
6.
Immigration and Customs Enforcement. ERO Custody Management Division.
List of facilities analyzed by Grassroots Leadership from documents titled “DMCP
Authorized Facilities” and “ICE Authorized Facilities Matrix.” March 5, 2015.
35.
Vicens, A. (2014, April 4). The Obama administration’s 2 million deportations,
explained. Mother Jones. http://www.motherjones.com/politics/2014/04/obamaadministration-record-deportations
7.
Grassroots Leadership calculation from http://www.ice.gov/doclib/foia/reports/
ero-facts-and-statistics.pdf (2007) and analysis of “ICE Authorized Facilities Matrix”
document (2014). March 5, 2015.
36.
Deutch, T. (2013, June 5). H.R. 2217, Department of Homeland Security
Appropriations Act, 2014. Congressional Record. https://beta.congress.gov/
congressional-record/2013/6/5/house-section/article/H3129-1
8.
Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation &
Records.
37.
9.
Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation &
Records.
Taylor, L. (2014, March 12). Rights groups want to end mandate that keeps
immigration detention beds full. Imagine 2050. http://imagine2050.newcomm.
org/2014/03/12/end-the-quota-immigrant-dentention-bed- mandate/#sthash.
LOluTVIh.dpuf
10.
LDA Reports (n.d.). U.S. Senate: Legislation & Records.
38.
11.
Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation &
Records.
ICE FOIA Report, ERO Facts and Statistics. http://www.ice.gov/doclib/foia/reports/
ero-facts-and-statistics.pdf
39.
12.
Ibid.
Immigration and Customs Enforcement. ERO Custody Management Division. List of
facilities analyzed by Grassroots Leadership from document titled “ICE Authorized
Facilities Matrix.” March 5, 2015.
13.
Immigration and Customs Enforcement. ERO Custody Management Division. List of
facilities analyzed by Grassroots Leadership from document titled “ICE Authorized
Facilities Matrix.” March 5, 2015.
40.
Expose & Close: Executive Summary. (n.d.). Detention Watch Network. http://www.
detentionwatchnetwork.org/sites/detentionwatchnetwork.org/files/ExposeClose/
Expose-Executive11-15.pdf
14.
Immigration and Customs Enforcement. ERO Custody Management Division.
List of facilities analyzed by Grassroots Leadership from documents titled “DMCP
Authorized Facilities” and “ICE Authorized Facilities Matrix.” March 5, 2015.
41.
Immigration and Customs Enforcement. ERO Custody Management Division. List of
facilities analyzed by Grassroots Leadership from document titled “ICE Authorized
Facilities Matrix.” March 5, 2015.
15.
Ibid.
42.
Ibid.
16.
CCA 10-K SEC filing, February 2008. https://www.last10k.com/sec-filings/
CXW/0000950144-08-001419.htm
43.
Ibid.
44.
Ibid.
45.
Ibid.
46.
The math of immigrant detention: The runaway costs for immigration detention
do not add up to sensible policies. (n.d.). National Immigration Forum. http://www.
immigrationforum.org/images/uploads/mathofimmigrationdetention.pdf
47.
CCA Investor Presentation. February 2014. https://drive.google.com/drive/u/1/#folde
rs/0BxXblSbt3qwYc3U0NlhvS1ZsMDA/0BxXblSbt3qwYcmM2OFlTc3BjZjQ
48.
Ibid.
49.
Private prison companies making big bucks on locking up undocumented
immigrants. (2012, August 2). NY Daily News. http://www.nydailynews.com/news/
national/private-prison-companies-making-big- bucks-locking-undocumentedimmigrants-article-1.1127465#ixzz309brH592
50.
Kish, R., & Lipton, A. (2013, February 6). Do private prisons really offer savings
compared to their public counterparts?. Economic Affairs. http://onlinelibrary.wiley.
com.ezproxy.lib.utexas.edu/doi/10.1111/ecaf.12005/pdf
51.
Kunichoff, Y. (2012, July 27). “Voluntary” work program run in private detention
centers pays detained immigrants $1 a day. Truthout. http://truth-out.org/news/
item/10548-voluntary-work-program-run-in-private-detention-centers-paysdetained-immigrants-1-a-day
52.
Venters, H., Dasch-Goldberg, D., Rasmussen, A., & Keller, A. (2009, May 1). Into
the abyss: mortality and morbidity among detained immigrants. Human Rights
Quarterly. http://muse.jhu.edu.ezproxy.lib.utexas.edu/journals/human_rights_
quarterly/v031/31.2.venters.html
53.
Immigration and Customs Enforcement. ERO Custody Management Division.
List of facilities analyzed by Grassroots Leadership from documents titled “DMCP
Authorized Facilities” and “ICE Authorized Facilities Matrix.” March 5, 2015.
54.
ICE FOIA Report, ERO Facts and Statistics. http://www.ice.gov/doclib/foia/reports/
ero-facts-and-statistics.pdf & Immigration and Customs Enforcement. ERO Custody
17.
CCA 10-K SEC filing, February 2015. http://www.sec.gov/Archives/edgar/
data/1070985/000119312515061839/d853180d10k.htm#fin853180_1
18.
GEO 10-K SEC filing February 2008. http://quote.morningstar.com/stock-filing/
Annual-Report/2007/12/30/t.aspx?t=XNYS:GEO&ft=10-K&d=3867146f1ead698c
19.
GEO 10-K SEC filing, February 2015. http://quote.morningstar.com/stock-filing/
Annual-Report/2014/12/31/t.aspx?t=XNYS:GEO&ft=10-K&d=28a59a1705dea99e02
cd90f5c8ae0faf
20.
Will Weissert, “Texas immigration family lockup will be nation’s largest,”
The Associated Press, December 15, 2014, http://www.thestate.
com/2014/12/15/3875832/texas-immigration-family-lockup.html.
21.
Jessie Degollado, “Karnes County approves family detention expansion,” KSAT,
December 16, 2014, http://www.ksat.com/content/pns/ksat/news/2014/12/16/
karnes-county-approves-family-detention-center-expansion.html.
22.
Emma Randles. The GEO Group acquires LCS Corrections, expanding their reach in
Texas. Texas Prison Bid’ness. January 27, 2015. http://www.texasprisonbidness.org/
immigration-detention/geo-group-acquires-lcs-corrections-expanding-their-reachtexas
23.
Source
24.
FY 1994 through FY2005 CRS presentation of published DHS data. http://
digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1712&context=key_
workplace
25.
Intelligence Reform and Terrorism Prevention Act of 2004. (2004, December 17).
Government Printing Office. <http://www.intelligence.senate.gov/laws/pl108-458.
pdf>
26.
Congressional Record, V. 151, Pt. 12, July 14 to July 22, 2005. Government Printing
Office. pg 16048-16049. July 14, 2005. http://bit.ly/193qkl6
27.
Document on file with author.
Management Division. List of facilities analyzed by Grassroots Leadership from
document titled “ICE Authorized Facilities Matrix.” March 5, 2015.
55.
Immigration and Customs Enforcement. ERO Custody Management Division. List of
facilities analyzed by Grassroots Leadership from document titled “ICE Authorized
Facilities Matrix.” March 5, 2015.
56.
Immigration and Customs Enforcement. ERO Custody Management Division. List of
facilities analyzed by Grassroots Leadership from document titled “ICE Authorized
Facilities Matrix.” March 5, 2015.
57.
Ibid.
58.
Management and Training Corporation
59.
Immigration and Customs Enforcement. ERO Custody Management Division. List of
facilities analyzed by Grassroots Leadership from document titled “ICE Authorized
Facilities Matrix.” March 5, 2015. Includes new family detention facilities not listed in
FY2014 data.
60.
Immigration and Customs Enforcement. ERO Custody Management Division. List of
facilities analyzed by Grassroots Leadership from document titled “ICE Authorized
Facilities Matrix.” March 5, 2015.
61.
Ibid.
62.
Immigration and Customs Enforcement. ERO Custody Management Division.
List of facilities analyzed by Grassroots Leadership from documents titled “DMCP
Authorized Facilities” and “ICE Authorized Facilities Matrix.” March 5, 2015.
63.
Ibid.
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/
immigration-detention/geo-group-acquires-lcs-corrections-expanding-their-reachtexas
85.
Selway, W., & Newkirk, M. (2013, September 23). Congress Mandates Jail Beds for
34,000 Immigrants as Private Prisons Profit. Bloomberg. http://www.bloomberg.com/
news/2013-09-24/congress-fuels-private-jails-detaining-34-000-immigrants.html
86.
Ibid.
87.
Flatow, N. (2013, February 21). Republicans With Influence On Immigration
Debate Are Top Recipients Of Private Prison Contributions. Think Progress. http://
thinkprogress.org/justice/2013/02/21/1624061/report-republicans-with-influenceon-immigration-debate-are-top-recipients-of-private-prison-contributions/
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/
legtext/49leg/2r/summary/s.1070pshs.doc.htm
89.
Gaming the system: How the political strategies of private prison companies
promote ineffective incarceration policies. (2011, June 1). Justice Policy Institute.
90.
Cervantes-Gautschi, P. (n.d.). Wall Street & Our Campaign to Decriminalize
Immigrants. Social Policy. http://www.socialpolicy.org/index.php/component/
content/article/30-online-only-features/478-wall-street-a-our-campaign-todecriminalize-immigrants
91.
Ibid.
92.
Ibid.
93.
William Selway and Margaret Newkirk. Congress Mandates Private Jail Beds for
34,000 Immigrants. Bloomberg Business. http://www.bloomberg.com/news/
articles/2013-09-24/congress-fuels-private-jails-detaining-34-000-immigrants
94.
Pablo Paez, Vice President of GEO Group’s corporate relations (Fang, L., 2013)
95.
CCA 10-K SEC filing, February 2015. http://www.sec.gov/Archives/edgar/
data/1070985/000119312515061839/d853180d10k.htm#fin853180_1
96.
Private prison companies making big bucks on locking up undocumented
immigrants. Associated Press. August 2, 2012. http://www.nydailynews.com/news/
national/private-prison-companies-making-big-bucks-locking-undocumentedimmigrants-article-1.1127465#ixzz309brH592
65.
Will Weissert, “Texas immigration family lockup will be nation’s largest,”
The Associated Press, December 15, 2014, http://www.thestate.
com/2014/12/15/3875832/texas-immigration-family-lockup.html.
66.
Ibid.
97.
67.
Jessie Degollado, “Karnes County approves family detention expansion,” KSAT,
December 16, 2014, http://www.ksat.com/content/pns/ksat/news/2014/12/16/
karnes-county-approves-family-detention-center-expansion.html.
CCA 10-K SEC filing, February 2015. http://www.sec.gov/Archives/edgar/
data/1070985/000119312515061839/d853180d10k.htm#fin853180_1
98.
GEO 10-K SEC filing, February 2015. http://quote.morningstar.com/stock-filing/
Annual-Report/2014/12/31/t.aspx?t=XNYS:GEO&ft=10-K&d=28a59a1705dea99e02
cd90f5c8ae0faf
Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation &
Records.
68.
CCA 10-K SEC filing, February 2008. https://www.last10k.com/sec-filings/
CXW/0000950144-08-001419.htm
99.
69.
CCA 10-K SEC filing, February 2015. http://www.sec.gov/Archives/edgar/
data/1070985/000119312515061839/d853180d10k.htm#fin853180_1
100. LDA Reports. (n.d.). U.S. Senate: Legislation & Records.
70.
GEO 10-K SEC filing February 2008. http://quote.morningstar.com/stock-filing/
Annual-Report/2007/12/30/t.aspx?t=XNYS:GEO&ft=10-K&d=3867146f1ead698c
101. Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation &
Records.
71.
GEO 10-K SEC filing, February 2015. http://quote.morningstar.com/stock-filing/
Annual-Report/2014/12/31/t.aspx?t=XNYS:GEO&ft=10-K&d=28a59a1705dea99e02
cd90f5c8ae0faf
102. Ibid.
72.
CCA Investor Presentation. February 2014. https://drive.google.com/drive/u/1/#folde
rs/0BxXblSbt3qwYc3U0NlhvS1ZsMDA/0BxXblSbt3qwYcmM2OFlTc3BjZjQ
73.
http://topics.nytimes.com/top/news/business/companies/corrections-corporationof-america/index.html 3/3/2015.
74.
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
75.
The GEO Group Announces Acquisition of Eight Correctional and Detention
Facilities Totalling More Than 6,500 Beds. Business Wire. January 26, 2015. http://
www.businesswire.com/news/home/20150126005618/en/GEO-Group-AnnouncesAcquisition-Correctional-Detention-Facilities#.VQnSRmbYl6g
76.
Ibid.
77.
The math of immigrant detention: The runaway costs for immigration detention
do not add up to sensible policies. (n.d.). National Immigration Forum. http://www.
immigrationforum.org/images/uploads/mathofimmigrationdetention.pdf
78.
The Dirty Thirty: Nothing to Celebrate About 30 Years of Corrections Corporation of
America. (n.d.). Grassroots Leadership. http://grassrootsleadership.org/cca-dirty-30
79.
“Houston Processing Center” https://www.youtube.com/watch?v=1QPYCznI9MU
80.
Our History. (n.d.). Corrections Corporation of America. http://cca.com/our-history
81.
About Us. (n.d.). GEO Group. http://www.geogroup.com/about_us
82.
Lobbying Disclosure. (2008, January 1). Office of the Clerk: U.S. House of
Representatives. http://lobbyingdisclosure.house.gov/amended_lda_guide.html
83.
Grassroots Leadership analysis of LDA Reports. (n.d.). U.S. Senate: Legislation &
Records. http://www.senate.gov/legislative/Public_Disclosure/LDA_reports.htm
84.
Ibid.
103. Ibid.
104. Ibid.
105. Ibid.
106. Ibid.
107. Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation &
Records.
108. Ibid.
109. Ibid.
110. Grassroots Leadership analysis of LDA Reports (n.d.). U.S. Senate: Legislation &
Records.
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-allstar-lobbyists/ http://www.myplainview.com/article_a26a18b1-bc7a-56c9-be56af70f9593784.html
112. United States Securities and Exchange Commission. Accessed July 2, 2014 http://
www.sec.gov/Archives/edgar/data/923796/000119312514264220/d755717d8k.htm
113. Mark Hugo Lopez and Michael T. Light. A Rising Share: Hispanics and Federal Crime.
Pew Research Center. http://www.pewhispanic.org/2009/02/18/a-rising-sharehispanics-and-federal-crime/
114. CCA 10-K SEC filing, February 2015. http://www.sec.gov/Archives/edgar/
data/1070985/000119312515061839/d853180d10k.htm#fin853180_1
115. GEO 10-K SEC filing, February 2015. http://quote.morningstar.com/stock-filing/
Annual-Report/2014/12/31/t.aspx?t=XNYS:GEO&ft=10-K&d=28a59a1705dea99e02
cd90f5c8ae0faf
116. Selway, W., & Newkirk, M. (2013, September 23). Congress Mandates Jail Beds for
34,000 Immigrants as Private Prisons Profit. Bloomberg. http://www.bloomberg.com/
news/2013-09-24/congress-fuels-private-jails-detaining-34-000-immigrants.html
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-detentionand-the-denial-of-justice/
119. ICE Total Removals. (n.d.). Immigration and Customs Enforcement. http://www.ice.
gov/doclib/about/offices/ero/pdf/ero-removals1.pdf
PAYOFF:
with an Immigrant Detention Quota
April 2015
For more information, please contact
Grassroots Leadership
info@grassrootsleadership.org 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
14
See infra Part III.
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).
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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
68
See, e.g., id.
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).
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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.).
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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).
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.
117
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
162
ICCPR, supra note 56, art. 17.
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
190
Pumariega et al., supra note 183, at 584.
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.
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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
559
MAY 25 2015 11:28 AM ET
89
25
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.
Eloy Detention Center
But unlike an estimated 80
percent of migrant women
entering the U.S. through its
border with Mexico, the now23-year-old trans woman says
she was not raped on her journey
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."
In fact, says Gamino, some guards even facilitated the alleged abuse she experienced in ICE
custody.
"There was a unit manager ... who treated detainees so bad that he lost control of the unit and
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[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
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.
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The alleged assault took place last August, while Gamino was held in a privately run men's
detention facility in Eloy, Ariz. When she informed facility officials of the rape, Gamino says she
was coerced into signing a statement claiming the sexual assault was "consensual."
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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
incident that included an initial allegation from Gamino of rape at the hands of her former
cellmate.
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"U.S. Immigration and Customs Enforcement is firmly committed to providing for the safety and
welfare of all those in its custody," said an ICE spokesperson in a statement provided to The
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."
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But Gamino says she had previously informed officials that her alleged assailant made derogatory
remarks and threatened her with rape before the assault. She further contends those officials took
no action to prevent the alleged attack.
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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
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-yearold 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 allmale Immigration and Customs Enforcement detention center in Florence, Ariz.
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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,”
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.”
In a recent article, titled "Why Americans Don't Care About Prison Rape," The Nation linked
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
the incidents, "a man entered the shower with me and ordered me to face the wall or he would
'break my fucking neck.' This man was literally twice my size and so I faced the wall without
question. I felt his hand on me and I tried to move away. He ordered me not to move as he sexually
assaulted me. I cried silently."
TWITTER
Advocate Staff
Tweets from a list by The Advocate
Members of our reporting and editing team.
shift by msnbc
@shiftmsnbc
2h
.@janetmock on erasing the public shaming and
harrasment attached to dating trans women:
shift.msnbc.com pic.twitter.com/hqHpXMLHm4
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
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,
a male officer at the Correctional Treatment Facility in the District of Columbia was
convicted of sexually assaulting a transgender individual in the restroom by forcing her
to perform fellatio on him."
The underlying problem, notes the report, is housing:
"Like the individual just discussed, most male-to-female transgender individuals who
are incarcerated are placed in men’s prisons, even if they have undergone surgery or
hormone therapies to develop overtly feminine traits. Their obvious gender
nonconformity puts them at extremely high risk for abuse."
Expand
Andy Semler
@AndyTehNerd
48m
Don't put the bulk of the burden on trans men to
"redefine masculinity". Trans folks' genders are
already hyperscrutinized. Step up, cis men
Retweeted by Mitch Kellaway
Expand
VICE News
@vicenews
50m
VICE will join @POTUS on the first-ever presidential
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-forprofit 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."
TAGS: IMMIGRATION, WORLD, TRANSGENDER
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READER COMMENTS (7)
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Deb Rina Carr ·
Posting as Cam Osaurus ▾
Comment
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 ·
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1 · May 26 at 10:30pm
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