Congress' Costly Detention Quota: A Little-Known Congressional Quota is Placing LGBT Immigrants in Grave Danger
SOURCE: AP/Kate Brumback
Beginning in 2009, Congress directed the U.S. Department of Homeland Security, or DHS, to detain a set number of immigrants each day in an attempt to force the department to increase deportations. Today, this arbitrary congressional quota requires that DHS maintain bed space to jail 34,000 immigrants every day—regardless of DHS’s actual need to detain immigrants and at a cost of more than $2 billion per year. An estimated 70 percent of immigrants in detention facilities fall into the mandatory detention category; this means that 30 percent of the 34,000 immigrants detained each day would be eligible for release if not for the quota. Removing the quota would save taxpayers at least $600 million per year and prevent tens of thousands of people from being unnecessarily imprisoned.
As discussed in previous Center for American Progress reports, LGBT immigrants in detention facilities are especially vulnerable to abuse and mistreatment. The bed quota restricts Immigration and Customs Enforcement’s, or ICE’s, ability to make individualized custody determinations, such as release on bond or placement in less restrictive and less costly alternatives to detention, that take into account the particular vulnerabilities of LGBT immigrants. The result is that LGBT immigrants—including those fleeing danger to seek asylum—are placed in jails where they are at risk of sexual and physical abuse, simply so ICE can meet this arbitrary quota.
LGBT people in detention face numerous risks
Immigrants in detention face many of the dangers prevalent in prisons; in fact, many are detained in actual prison cells, rather than immigration-specific facilities. Instead of finding safety in the United States, asylum seekers who fled persecution and imprisonment in their home countries, often due to their LGBT status, are subjected to further trauma when they are handcuffed and placed in immigration detention facilities.
Several reports by nongovernmental organizations and investigative reporters have uncovered incidents of sexual assault, denial of medical care, prolonged use of solitary confinement, verbal and physical abuse, and even death among immigrants in detention facilities. The situation is particularly dangerous for LGBT immigrants, who are 15 times more likely than other detainees to be sexually assaulted in confinement. A Freedom of Information Act request filed by the Center for American Progress found 200 reported incidents of abuse against LGBT immigrants in detention facilities since 2008.
Why LGBT people are detained
ICE has used an automated Risk Classification Assessment, or RCA, instrument since 2012 to determine whether an individual should be detained, released, or placed into detention alternatives. LGBT status is considered a special vulnerability in custody determinations ; therefore, under the RCA tool, LGBT immigrants should be released or placed in less restrictive alternatives to detention whenever possible. Despite the use of the RCA tool to determine custody needs, ICE officers make the final case determination. Because ICE officers are bound by the detention bed quota, both LGBT and non-LGBT immigrants who should be released under the RCA tool are detained instead.
In some cases, ICE must initially place an immigrant in custody, although alternatives to detention could eventually be an option. Mandatory detention rules dictate that people suspected of committing certain crimes, including controlled-substance violations and prostitution, be placed in detention. An estimated 70 percent of immigrants in detention fall under these mandatory detention requirements. Asylum seekers fleeing persecution in their home countries are also subject to mandatory detention, which is particularly relevant for LGBT immigrants. More than 70 countries criminalize same-sex relationships, including Uganda, Nigeria, and India. LGBT people living in these countries are at risk of abuse and even death. The United States recognizes persecution based on sexual orientation and gender identity as grounds for asylum, but the process is extremely difficult, particularly for an individual who is not represented by an attorney and who is detained with limited resources and without access to the evidence needed to prove a claim.
In addition to those who are subject to mandatory detention, an estimated 10,000 people are detained each day simply because they lack legal status and come into contact with law enforcement or immigration enforcement personnel. LGBT immigrants live at the intersection of two marginalized communities and face multiple forms of profiling. They are therefore more likely to come into contact with law enforcement through policies such as HIV criminalization, police using condom possession as evidence of prostitution, and the targeting of transgender women for alleged sex work, or “walking while trans.” As a result, these immigrants are at increased risk of detention under dragnet immigration enforcement policies.
For example, ICE detained Wilfrido “Perla” Lopez-Roque, an HIV-positive transgender woman, at the Santa Ana Jail in Santa Ana, California. She came to the United States more than 25 years ago to flee incidents of brutal sexual violence in Mexico but was caught by ICE last year at a roadside checkpoint in San Diego County. Lopez-Roque petitioned for asylum, claiming that if she were deported to Mexico she would be killed because of her gender identity. Three convictions for prostitution between 1990 and 2007 led the U.S. government to argue that her HIV status made those charges a “particularly serious crime” and a deportable offense, despite her attorneys’ argument that there was no sex in the cases and therefore no risk of spreading the disease. Lopez-Roque spent more than one year in a jail that advocates have criticized for its employees’ verbal abuse of and improper medical care for transgender detainees. Unlike the vast majority of immigrants in detention, Lopez-Roque was fortunate enough to be represented by an attorney and released. LGBT immigrants in detention who do not have access to counsel have only a 3 percent chance of being granted any form of relief.
Obstacles to releasing people from detention
While individuals in the mandatory detention category may be released on bond or into less restrictive and less costly alternatives to detention, the quota makes it difficult for this to occur—even when authorities determine that immigrants are not flight risks or dangers to the community. Although the average stay in detention is one month, individuals fighting their deportation cases are detained for much longer periods of time. The average stay for asylum seekers is 102 days, and immigrants in detention who are eventually determined to be eligible to remain in the United States spend an average of 334 days in conditions that are often dangerous.
Recent court cases suggest that many people in prolonged mandatory detention would be eligible for release if they had the opportunity to appear before a judge. The 9th U.S. Circuit Court of Appeals recently ruled that the government’s mandatory detention authority is limited to six months, after which immigrants are entitled to a bond hearing. In nearly 70 percent of California cases reviewed by a judge since a September 2012 California federal district court ruling, the judge determined that the individual was eligible for release.
With such a large portion of immigrant detainees potentially eligible for release, the immigrant bed quota seems increasingly outdated, inefficient, and inhumane. It is unconscionable to subject LGBT immigrants—including asylum seekers fleeing persecution—to abuse and mistreatment in immigration detention facilities simply to meet a quota.
Sharita Gruberg is a Policy Analyst for LGBT Progress at the Center for American Progress.
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