Department of Homeland Security Should Release LGBTQ and HIV-Positive Individuals from Detention

a. Detention is Particularly Dangerous for LGBTQ and HIV-Positive (LGBTQ/H) People – Over the last several decades, Immigration and Customs Enforcement (ICE) has increasingly placed immigrants in detention facilities, including LGBTQ/H people. The detention system now includes more than 200 private detention facilities, county jails, and ICE run facilities. These facilities are rife with abuse against LGBTQ/H people (and others), including: severe medical neglect; negligent HIV care; high rates of sexual harassment and assault; rampant use of solitary confinement as a so-called protective mechanism for LGBTQ/H people; and unsanitary living conditions.¹ Not only do the U.S.’s immigration detention practices violate its obligations under domestic and international law, they also cost taxpayers billions of dollars each year.²

The situation for LGBTQ/H immigrants is particularly dire. According to a report by the Center for American Progress, LGBTQ people are 97 times more likely to be sexually victimized in immigration detention than the non-LGBTQ population.³ Transgender women are at the highest risk of assault. Staff and other detained people viciously attack, belittle, and sexually assault or rape transgender women. It is a human rights disaster.
When an LGBTQ/H person is threatened or attacked, ICE has three primary options for offering protection: 1) transfer the immigrant or their assailant to a different housing unit or detention facility; 2) place the immigrant in solitary confinement for their own protection; or 3) parole the immigrant. The first option still leaves LGBTQ/H people at risk of attack. The second option is no more tenable, as “protective” isolation is inhumane and psychologically damaging. The only real solution is to release LGBTQ/H people on parole.

The COVID-19 pandemic has further exacerbated problems within these facilities. And although ICE has the discretion to release thousands of detained people, it continues to confine immigrants in unsanitary and dangerous conditions. First, there are no facilities in which social distancing is possible. Second, many LGBTQ/H immigrants are denied basic hygiene products like masks, soap, and toilet paper. With the closing of the border, the number of detained people has dropped significantly during the pandemic. Nevertheless, the number of people who have died in ICE custody in 2020 is double the number in 2019.⁴ Subjecting LGBTQ/H immigrants to such conditions during a pandemic, especially those with compromised immune systems, is a human rights violation.

Solution: DHS (Department of Homeland Security) should presume release on recognizance or parole for all LGBTQ/H people. This presumption should also apply to people subject to mandatory detention as set forth below. The DOJ should take the position that “custody” means more than the incarceration of a detained person within four walls and issue precedential authority to that effect.

i. Applicants for Admission Under INA Section 235(b) – Under INA Section 212(d)(5), DHS may parole an applicant for admission to the United States “for urgent humanitarian reasons or significant public benefit.” The parole of LGBTQ and HIV-positive immigrants should be deemed always in the public interest.

ii. Individuals in Expedited Removal – Expedited removal should not be used at all, and any immigrant slated for removal should be put into regular removal proceedings. To the extent that anyone is subjected to expedited removal, individuals awaiting a credible fear interview are eligible for parole when “parole is required to meet a medical emergency.”⁵ Given the remarkable levels of physical, psychological, and health-related abuse LGBTQ/H immigrants face in detention, DHS should presume that they are experiencing (or will experience) a medical emergency in detention by definition and parole them.

iii. INA Section 236(a) – Detention under INA Section 236(a) is discretionary, and immigrants are eligible for conditional parole.⁶ All LGBTQ and HIV-positive immigrants should be deemed presumptively eligible for conditional parole.

iv. INA Section 236(c) – As noted above, the DOJ should clarify that “custody” means more than confinement within four walls. Alternative-to-detention programming is remarkably effective, humane, and cost effective. Alternative-to-detention programs should be deemed to satisfy the mandatory detention provisions of the INA. Moreover, DHS maintains inherent authority and discretion to release individuals subject to 236(c) for humanitarian reasons.⁷ DHS should exercise such authority to release LGBTQ and HIV-positive people given the dangers of detention for this community.

v. Regardless of Any Other Changes, All Transgender or HIV-Positive Individuals Should Be Immediately Released from Detention. Given the well-documented and egregious abuse of transgender people in immigration detention, it is abundantly clear that the DHS cannot house this population safely. Given the pandemic, and chronically substandard HIV care in detention, people living with HIV are also at great risk. Accordingly, an immediate review of cases of transgender or HIV-positive people in detention must be commenced and they should be released from detention as soon as possible.

vi. DHS Should Review and Redetermine Prior Custody Decisions – In accordance with the above, ICE should begin review of the custody decisions of all detained LGBQ/H individuals. The review should include cases where bond was previously issued.

1. Bond Should Not Be Used as a Condition of Release – Requiring bond as a condition of release results in wealth-based detention. If a bond is not required, it should not be issued. The poor will never be able to pay a bond. If a bond is ever required, the issuer should consider the actual financial means of the individual receiving the bond. For many non-citizens, even a $1,500 bond is an insurmountable obstacle that will result in unnecessary, prolonged, or indefinite detention.

1. Gruberg, S. (Nov. 2013). Dignity Denied, LGBT Immigrants in U.S. Immigration Detention, Center for American Progress, available at: https://cdn.americanprogress.org/wp-content/uploads/2013/11/ImmigrationEnforcement-1.pdf?_ga=2.191133282.913567675.1604939269-899552766.
2. Infographic: Immigration Detention, National Immigration Forum, available at: https://immigrationforum.org/article/infographic-immigration-detention.
3. Gruberg, S. (May 30, 2018). ICE’s Rejection of Its Own Rules Is Placing LGBT Immigrants at Severe Risk of Sexual Abuse, Center for American Progress, available at: https://www.americanprogress.org/issues/lgbtq-rights/news/2018/05/30/451294/ices-rejection-rules-placing-lgbt-immigrants-severe-risk-sexual-abuse.
4. Aleaziz, H. (Aug. 30, 2020). A 50-Year-Old Honduran Immigrant Who Died in ICE Custody Had Tested Positive for COVID-19, BuzzFeed News, available at: https://www.buzzfeednews.com/article/hamedaleaziz/a-50-year-old-honduran-immigrant-who-died-in-ice-custody.
5. 8 C.F.R. § 235.3(b)(4)(ii).
6. 8 U.S.C. § 1226(a)(1), (2); see also 8 C.F.R. § 236.1(c)(8).
7. See, e.g., Brief for American Immigration Council as Amici Curiae Supporting Petitioners-Appellees, Hope v. Warden York Cty. Prison, No. 20-1784 (3d Cir. 2020) available at https://www.americanimmigrationcouncil.org/sites/default/files/amicus_briefs/hope_et_al_v_doll_et_al_amicus_brief.pdf.
8. Luan, L. (May 2, 2018). Profiting from Enforcement: The Role of Private Prisons in U.S. Immigration Detention, Migration Policy Institute, available at: https://www.migrationpolicy.org/article/profiting-enforcement-role-private-prisons-us-immigration-detention.