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Report documents abuse of LGBTQ asylum seekers in ICE custody

Incidents took place during Biden administration

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Eloy Detention Center, a privately-run ICE detention center in Eloy, Ariz. (Washington Blade photo by Michael K. Lavers)

Human Rights First on Thursday released a report that documents the abuse of LGBTQ asylum seekers who entered U.S. Immigration and Customs Enforcement custody after President Biden took office.

The report notes an ICE PREA (Prison Rape Elimination Act of 2003) coordinator at the LaSalle ICE Processing Center in Jena, La., in October 2021 “prevented” a transgender Mexican man “from providing his attorney a draft copy of the complaint he wished to file” after he was sexually assaulted. Several trans asylum seekers at the same facility said guards “subjected them to transphobic verbal abuse and other mistreatment.”

“A Mexican transgender man reported that in August 2021 a guard pointed at him and said, ‘How many of them are there? That’s not a real man.’,” reads the report. “Guards intentionally called him ‘ma’am’ and ‘girl’ and used incorrect pronouns despite his repeated attempts to correct them.”

The report notes the U.S. Citizenship and Immigration Service’s Houston Asylum Office last spring “went forward with a CFI (‘credible fear’ interview)” for a gay activist from Angola, “even though he expressed that he was suffering symptoms of COVID-19, pain from a recent physical assault, and psychological distress from conditions of confinement, resulting in a negative credible fear finding.”

“The man told the asylum officer that he was experiencing anxiety and felt claustrophobic in the ‘tight space’ where the telephonic interview was being conducted,” reads the report. “The asylum officer proceeded with the CFI during which the man was unable to disclose that he is gay because he was afraid that the officer would inform others at the detention center of his sexuality.”

“He feared that such disclosure would further endanger his life since in detention he had been threatened and harassed by people who called him homophobic slurs, according to his attorney at the Southeast Immigrant Freedom Initiative,” it adds.

Asylum seekers with HIV denied medication

Pablo Sánchez Gotopo, a Venezuelan man with AIDS, died in ICE custody on Oct. 1, 2021. Sánchez had been in ICE custody at the Adams County Detention Center in Natchez, Miss., before his death.

The report not only mentions Sánchez’s death, but other cases of asylum seekers with HIV/AIDS who said they suffered mistreatment while in ICE custody. One case the report cites is a Cuban asylum seeker who said he was “denied access to HIV medication” while in ICE custody at La Palma Correctional Center in Eloy, Ariz., from April-July 2021.

“Despite sending around nine requests for treatment to medical staff, he reported to his attorney at Immigration Equality that he did not receive HIV medication for at least two-and-a-half months,” reads the report.

The report also documents the prolonged detention of asylum seekers who are LGBTQ and/or living with HIV.

Several trans women from Jamaica who were in ICE custody at La Palma Correctional Center and the Eloy Detention Center in Eloy, Ariz., “were subjected to months of traumatic and unnecessary detention before they received CFIs (‘credible fear’ interviews), which confirmed their fear of persecution.” The report notes ICE did not release a bisexual asylum seeker from Ghana from La Palma Correctional Center last spring until an immigration judge granted him bond, even though he passed his “credible fear” interview.

The report cites a trans asylum seeker from Honduras who the Department of Homeland Security detained at the Otay Mesa Detention Center in San Diego for two months, even though he received an exemption to Title 42 that allowed him into the U.S. last summer.

Title 42 is a Centers for Disease Control and Prevention policy that closed the Southern border to most asylum seekers and migrants because of the pandemic. The Biden administration earlier this month announced it will terminate the policy on May 23.

The report notes a gay asylum seeker from Senegal did not receive his “credible fear” interview until he had been in ICE custody for three months. The report also cites the case of an LGBTQ person from Russia who the Department of Homeland Security detained at La Palma Correctional Center, even though he and his partner asked for asylum together at a port of entry in California.

“Under its flawed enforcement priorities, which effectively treat asylum seekers as detention priorities and do not contain exemptions for sexual orientation or gender identity, the Biden administration has detained many LGBTQ asylum seekers for months in ICE detention centers where they are particularly vulnerable to violence,” reads the report.

The report cites studies that indicates detained LGBTQ asylum seekers are 97 times “more likely to experience sexual assault and abuse than non-LGBTQ individuals.”

“Transgender people face a high risk of violence, discrimination and medical neglect in ICE detention, which has resulted in multiple recent deaths,” reads the report. “DHS has long recognized that detained LGBTQ people have ‘special vulnerabilities’ based on sexual orientation and gender identity and issued guidance on release of transgender individuals. Yet despite a February 2021 memorandum committing to ‘protect the human rights of lesbian, gay, bisexual, and transgender persons everywhere,’ the Biden administration continues to detain LGBTQ people, including asylum seekers who request protection at the border.”

Human Rights Report in its report makes a number of recommendations to the Biden administration, the Department of Homeland Security and Congress.

To the Biden administration:

  • End the mass jailing of asylum seekers and shift to community-based case support programs in cases where such support is needed. Community-based case support programs, which generate high appearance rates, should be used rather than “alternative to detention” programs that resort to punitive and intrusive ankle shackles and electronic surveillance or that amount to house arrest.
  • Do not designate or treat asylum seekers as priorities for detention, enforcement, or other punitive treatment. The administration and DHS should rescind the 2021 enforcement priorities memorandum and replace the policy with a protection framework that designates categories of individuals, including asylum seekers, as priorities for protection.
  • Support legislation, including the Dignity for Detained Immigrants Act, limiting the use of immigration detention and mandating bond redetermination hearings before an immigration judge for anyone subjected to immigration detention.
  • Work with Congress to further reduce funding for immigration detention and to instead fund: case support programs; the cost effective and successful Legal Orientation Program (LOP), which should be expanded to border shelter networks as well as all DHS facilities where asylum seekers are held, including CBP and Border Patrol facilities; and expanded legal representation for asylum seekers and other immigrants.

To the Department of Homeland Security:

  • Apply all applicable parole, bond, and other criteria with a presumption that release of asylum seekers is in the public interest, consistent with U.S. human rights and refugee treaty obligations, including the right to liberty under the ICCPR.
  • Issue parole guidance that includes a presumption that release of asylum seekers serves a significant public interest. The guidance should: apply to all asylum seekers regardless of whether they requested asylum at ports of entry or after entering the United States away from a port of entry and regardless of whether they are subjected to expedited removal; prohibit the use of bond as a condition for release on parole; and make all individuals seeking protection, including those placed in reinstated removal proceedings (which should not be used), eligible for parole consideration under the guidance.
  • Issue regulations that include a strong presumption against the use of detention, shifting the burden of proof to the government instead of the non-citizen in all custody determinations to show by clear and convincing evidence that the non-citizen should remain detained.
  • The Office of Inspector General and Office for Civil Rights and Civil Liberties should closely monitor and investigate allegations of abuse, improper use of force and solitary confinement, detention center conditions, medical neglect, racist treatment, disparate impact on Black asylum seekers in ICE detention facilities. These investigations must include interviews with asylum seekers, attorneys, independent medical experts, rights monitors, and relevant non-governmental actors.
  • ICE and detention facility operators should work with communities to implement Independent Medical Oversight Boards (IMOB) to increase public transparency and accountability on the delivery of quality medical and mental health care for detained individuals. The IMOB should have authority to review individual cases and medical files brought before it by detained individuals, attorneys, or advocates to ensure adequate care. IMOB members could include medical and mental health professionals, representatives of advocacy or community-based groups, and attorneys familiar with detention settings.
  • Avoid the use of the flawed and inefficient expedited removal process and instead refer asylum seekers for asylum adjudication before the USCIS Asylum Office. As Human Rights First and other NGOs have repeatedly explained, these adjudications should not take place within or rely on the expedited removal process.
  • To the extent expedited removal remains in U.S. law, DHS and the Department of Justice should issue regulations to, at a minimum, ensure access to counsel before and during credible fear interviews; provide appropriate interpretation, prohibit CFIs from being conducted in a language other than the asylum seeker’s native or best language, and permit asylum seekers to apply for asylum without a CFI if an interpreter in their native or best language is not readily available; and revise the March 2022 Interim Final Rule to preserve to the fullest extent a critical asylum office mechanism for review of erroneous negative credible fear determinations. DHS should not conduct these flawed interviews in CBP or ICE detention.

To the U.S. Congress:

  • Adopt legislation, including the Dignity for Detained Immigrants Act, limiting the use of immigration detention and mandating bond redetermination hearings before an immigration judge for anyone subjected to immigration detention.
  • Sharply limit funding for immigration detention to decrease its massive overuse and instead fund community-based case support programs, which should be employed only when additional measures are determined necessary to assure appearance in an individual case.
  • Support—along with state, local, and private entities—funding for universal legal representation without any carve-outs. Congress should also expand funding for LOP and improve access to counsel at immigration detention facilities, including by setting requirements for a minimum number of confidential attorney-client visitation rooms by facility capacity and guaranteeing in-person, contact visits for attorney- client meetings.
  • Conduct vigorous oversight on the administration’s compliance with laws, rules, and other authorities that authorize release of eligible asylum seekers from detention; access to counsel in detention; abuse, conditions, racist treatment, and disparate impact of detention on Black asylum seekers; continued violence, mistreatment, and unsafe placements of LGBTQ asylum seekers; unjustified and dangerous use of solitary confinement; and ICE’s failure to comply with necessary medical and mental health care to asylum seekers and immigrants in detention, as provided for by the NDS.
  • Ensure DHS complies with all legal requirements to provide data and information on the detention of asylum seekers, including reporting to Congress mandated by the Haitian Refugee Immigration Fairness Act of 1998. These reports have not been released publicly since the FY 2015 to 2017 reports were obtained through FOIA and posted by Human Rights First.

An ICE spokesperson on Friday in a statement to the Washington Blade responded to the report.

“U.S. Immigration and Customs Enforcement (ICE) focuses its civil immigration enforcement priorities on the apprehension and removal of noncitizens who pose a threat to our national security, public safety and border security,” said the spokesperson. “ICE takes seriously the health, safety, and welfare of those in our care, and commits to protecting their rights under the law.”

“In FY21, ICE shifted its operations away from the detention of families while adapting new and existing detention capacity to address an influx along the Southwest Border,” added the spokesperson. “ICE also previously announced it would discontinue or limit the use of certain detention facilities and will continue to monitor the quality of treatment of detained individuals, the conditions of detention, and other factors relevant to the continued operation of each facility, while assessing its operational needs for detention.” 

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How a pro-transgender memo sneaked through the Trump administration

2020 memo an outlier amid otherwise hostile policy

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By the time the Trump administration ended, it had solidified a reputation for being hostile to transgender people — barring them from military service and reversing regulations aimed at ensuring non-discrimination protections regardless of gender identity — but one minor policy decision managed to sneak through affirming the acceptance of employees going through gender transition.

Top officials at the Defense Intelligence Agency, a company support agency for the U.S. government, outlined in a memo dated June 15, 2020 the process for employees and supervisors to “navigate transitioning while employed at the DIA.” The document, which was not previously made available to the public, was obtained earlier this month by the Washington Blade through an appeal of a request under the Freedom of Information Act.

“Transitioning in the workplace is a personal decision,” the memo says. “DIA encourages transitioning employees to openly communicate during the transitioning process; discuss plans for workplace transition with their supervisor or manager; and, as appropriate, include any steps that will prompt workplace changes (e.g., transitioning employees may begin using a different name or pronoun).”

Because the fundamental nature of a memo outlining steps to help employees in the workplace transition is contrary to the overwhelming anti-transgender outlook of the Trump administration, the DIA memo appears to have been an internal effort shielded from the White House at the time as opposed to a government-wide initiative.

The DIA guidance for transgender employees runs contrary to other sweeping Trump administration policies that sought to enable discrimination against transgender people, including the military policy former President Trump issued via Twitter in 2017 outright banning them from service “in any capacity.”

Other anti-trans actions include the Department of Health & Human Services rescinding an Obama-era regulation that barred health care providers and insurers from discriminating against transgender patients, including the denial of transition-related care, which was orchestrated by then-director of Office of Civil Rights Roger Severino and came just days before the DIA memo.

Both the military ban and the health care rollback have since been reversed under the Biden administration.

Another Trump-era policy at a comparable scope to the DIA memo to employees, however, was the U.S. Office of Personal Management deleting on a page on its website outlining the guidance for accommodating federal workers going through the transition process. The DIA memo, which facilitates those transitions within that one agency, contradicts the message sent by the deletion of the OPM resource.

Although two sources familiar with the document told the Washington Blade it was timed for Pride month (which would be consistent with the June publication date), it would also be consistent with the U.S. Supreme Court’s decision in Bostock v. Clayton County, which determined anti-LGBTQ discrimination is a form of illegal sex discrimination. After all, the Bostock decision came out on the same day as the date on the DIA memo.

A defense insider familiar with the DIA memo, who spoke on condition of anonymity, was among those who said the memo went out in recognition of Pride month and said it was intended to ensure there was guidance for transition at the agency.

“We had a number of different individuals who were going through the transition process and management needed to understand what the policy as they dealt with the individuals who were going through transition,” the insider said.

The insider said production of the memo “wasn’t part of any government wide effort” and completely within DIA. The memo, the insider said, wasn’t creating any new policy for the agency, but “looking at existing policy, and then providing our manager and our workforce clear guidance.”

Asked whether there was any backlash to the memo, the insider said, “No, I would say absolutely not.” Once the guidance went out, the insider said, he “didn’t hear anything from outside the organization” about it.

In response to a follow-up question on whether the White House or Pentagon under Trump expressed any objections to the guidance, the insider denied that was the case: “No one said anything to me about it.”

Other highlights of the memo include options for diversity training to better understand transition-related issues; instructions to refer to employees by the name and pronoun of their choice; a reminder the Defense Intelligence Agency has no dress code, therefore employees are allowed to wear attire in the manner they choose; and a guarantee employees shall have access to restrooms consistent with their gender identity. Employees may transition without prior coordination, the memo says, or may do so while creating a transition plan that includes the date the transition will begin, whether time off is needed and how to discuss the situation with colleagues.

“Employees can use the restroom and other facilities that best align with their gender identity and are not restricted to use of a single-user restroom,” the memo says. “Employees are not required to undergo or provide proof of any medical procedures to use restroom facilities designed for use by a specific gender.”

Additionally, the document outlines the process for administrative record updates, including making a request for a gender marker changer through human resources, updating personnel files, and changing DIA and intelligence community badges and identification cards.

A DIA spokesperson, in response to email inquiries from the Washington Blade on the document, confirmed the memo was issued to coincide with Pride month and remains in effect to this day.

“Released jointly to the DIA civilian workforce by the DIA Chief of Staff, Equal Opportunity and Diversity Office, and Office of Human Resources, the memo titled ‘Gender Transition in the Workplace for Civilian Employees’ serves to notify DIA civilian employees of the Agency’s position on supporting Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ) employees, including those taking steps to align themselves more fully with their gender identities,” the DIA spokesperson said. “The memo was released in June 2020 to coincide with Pride Month and serves as active guidance.”

In many cases, regulations and guidance would have to go through the White House Office of Management & Budget or Office of Information and Regulatory Affairs, but not necessarily, especially an internal memo to supervisors and employees to reinforce policy that purportedly was already in place.

A Trump White House official said he was unaware of the document until the Blade brought it to his attention and said it would not have come to the White House because it was never published in the Federal Register. The Office of Management & Budget didn’t respond to the Blade’s request to comment on whether it ever was brought to the attention of the White House at the time of its publication in 2020.

While regulations within U.S. agencies go to the White House for review and consultations, government agencies as well as businesses often consult transgender groups for assistance in developing guidance for transitioning in the workforce, such as the National Center for Transgender Equality.

Mara Keisling, a transgender advocate who served as executive director of the advocacy group during the Trump administration, said she was completely unaware of the memo until the Blade brought it to her attention, although DIA would have been “required by law” to have such a policy for transgender workers after the Supreme Court’s decision in Bostock.

“We would have been happy to see it, but this was not the Trump administration doing something good,” Keisling said. “This was HR bureaucrats, I don’t mean bureaucrat in a bad way at all. This is HR bureaucrats following the law, and it clearly didn’t rise to the level of the White House.”

Keisling said she was unaware of any similar guidance for gender transition coming from a U.S. agency during the Trump administration. However, she disclosed her organization was able to work with federal workers to get “a couple of sneaky things done the White House didn’t know about” consistent with the DIA memo, although she didn’t elaborate.

“And super importantly, it’s the intelligence community and defense and intelligence, which Defense Intelligence Agency obviously is both,” Keisling said. “They have a little more autonomy than others anyway, so … if you told me there was something surprising from somewhere on a personnel issue, I would have guessed that it was somewhere in the intelligence report or Foreign Service community.”

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Texas to resume abuse investigations into families with trans children

“To be clear the Supreme Court has not directed Commissioner Masters & DFPS to continue investigating parents of trans youth for child abuse”

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In a statement issued Thursday, the Texas Department of Family and Protective Services (DFPS) agency announced that it will resume abuse investigations into families with transgender kids.

“DFPS treats all reports of abuse, neglect, and exploitation seriously and will continue to investigate each to the full extent of the law,” the statement read.

The Dallas Morning News reported that the DFPS statement, while not addressing the investigations into medical treatments for trans youth, indirectly indicated that these probes will now continue.

Current state law does not explicitly define gender affirming medical treatments, such as puberty blockers and hormone therapy as child abuse. A DFPS spokesman did not comment when asked if the agency plans to continue investigating such treatments as child abuse, the Dallas Morning News noted.

The Texas Supreme Court ruled last week that DFPS can continue to investigate families in the state who provide medically necessary care for their Trans children, excluding the parties in the litigation that brought the matter forward in a lawsuit filed in March.

In its decision, the court emphasized that neither Attorney General Paxton nor Governor Abbott has the power or authority to direct DFPS to investigate the provision of medically necessary lifesaving health care for transgender youth as child abuse. But the court limited the order blocking all investigations to the specific plaintiffs who filed suit.

Trans activist Landon Richie who has been deeply involved in the efforts to mitigate the anti-trans actions by Texas lawmakers and has led protests against the transphobic actions by Texas Governor Greg Abbott and Attorney General Ken Paxton told the Blade:

“To be clear, the Texas Supreme Court has not directed Commissioner Masters and DFPS to continue investigating parents of trans youth for child abuse. While the decision means now only the named plaintiffs in the lawsuit have protection, it reiterates that Attorney General Paxton’s opinion and Governor Abbott’s letter are not binding and not enforceable, meaning DFPS’s actions moving forward are at the discretion of Commissioner Masters only and not the state leadership’s directives. The Texas Supreme Court allowing for the district court to provide a temporary injunction is a good sign for people’s protection. 

It bears reminding families in Texas and around the country that today’s decision (and yesterday’s regarding gender-affirming care at UT Southwestern and Texas Children’s) reaffirms what we already know: opinions are only opinions and the people in power cannot abuse that power to abuse trans people. We know decisions can change at a moment’s notice and that this fight will take years, but to our families and communities under attack, please remain strong and take a moment to breathe. We’re in this together. “

An employee of DFPS who was a litigant in the lawsuit is represented by the ACLU of Texas.

Brian Klosterboer, an attorney with the ACLU of Texas who is on the team representing that unnamed employee, said the state’s decision to reopen the cases is unfortunate and unlawful. He said his team believes that the high court’s decision removes any responsibility for Texans to report trans youth getting treatments, the Dallas Morning News reported.

“We are going to be closely monitoring what the agency does. We would encourage families that have any reason to believe that they have an investigation to seek legal help,” Klosterboer said.

“Abbott’s letter and Paxton’s opinion did not change Texas law,” he added. “Gender affirming health care is still legal in all 50 states.”

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Florida

“Don’t Say Gay” student leader says school stopping run for student leadership

Jack Petocz organized a state-wide student protest against Florida’s “Don’t Say Gay” bill & annoyed administrators suspended him

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Jack Petocz (Center) at the Harvard Kennedy School of Government earlier this Spring (Courtesy of Jack Petocz/Facebook)

Jack Petocz, a Flagler Palm Coast High School junior, organized a state-wide student protest against Florida’s “Don’t Say Gay” bill this past March, and at his school, annoyed administrators suspended him.

On Tuesday, Petocz said that the school’s disciplinary action is now preventing him from running for senior class president.

“When I returned, the administration assured me that no further disciplinary action would be taken. A month later, they broke this verbal agreement and placed a level 3 referral on my record. Now, due to this high level of discipline, I am being prevented from running for senior class president. I am continuing to be punished for standing up for my identity and against widespread hatred.”

The suspension over the student walkout became a viral moment that propelled the 17-year-old into the national spotlight and into the national discourse over a spate of harsh laws targeting the LGBTQ+ community.

17-year-old Cameron Driggers, a student LGBTQ+ activist-organizer of the group Recall Flagler County School Board and co-leader of the walk-out, his friend’s suspension inspired him to create a petition on Change.org to pressure Flagler Palm Coast High School Principal Greg Schwartz to rescind his seemingly arbitrary decision to suspend Petocz.

One protest at the school over its suspension of Petocz brought together a grizzled and proud Out gay U.S. Marine Corps veteran accompanied by his fellow vets, who alongside with Driggers and the other young adolescent activists protested in a rally in front of the school at the same time Petocz and his father were inside meeting with Flagler Palm Coast High School Principal Greg Schwartz, hoping to get him to rescind his seemingly arbitrary decision to suspend Petocz.

Jack Petocz (with bullhorn) leads Flagler Palm Coast High School protest against DSG bill (Photo by Alysa Vidal)

Later on during the day Driggers posted to the Change.org petition the news that Principal Schwartz had backed off.

“Recall FCSB is pleased to announce that Jack’s suspension has ended and he is back on-campus. We are grateful for the thousands of people around the globe that shared, tweeted and protested in support of Jack, the organizer behind the state-wide Don’t Say Gay Walkout. Over 7500 signatures were collected on a condemnation of Principal Greg Schwartz’ conduct last Thursday. With Jack back on campus, Recall FCSB will continue to empower student leaders in and out of school,” Driggers wrote.

Principal Schwartz also committed to removing the ‘disciplinary action’ from Petocz’s school record.

On Tuesday, Petocz announced that Principal Schwartz and other school officials are barring him from running for an elected student office.

In response to the news, PEN America issued the following statement from Jonathan Friedman, director of the Free Expression and Education program:

“By going back on their word and imposing a red mark on Jack Petocz’s disciplinary record, the Flagler Palm Coast High School administration appears bent on retaliating against him for organizing the walkout against the ‘Don’t Say Gay’ bill. This is unconscionable. Jack exercised his right to protest as a citizen, and he led the walkout with the school’s approval. No student ought to be intimidated or punished by school authorities for their political speech, and the school already told him he would not be disciplined. This is especially troubling alongside news of other efforts to censor or intimidate students raising their voices for LGBTQ+ rights across Florida. The leaders of Flagler Palm Coast High School should remove this infraction from his record so that he can run for class president just like any other student.”

On Twitter, Petocz urged people to contact his school to get officials to reverse this latest decision.

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