GettyImages-1056338190.jpg

The Transgender Law Center (TLC), Ballard Spahr LLP, and the Rapid Defense Network filed a class-action complaint Thursday against the Department of Homeland Security (DHS) and the Department of Justice (DOJ) seeking the supervised release of all trans people in Immigration and Customs Enforcement (ICE) custody. Arguing that “ICE has not provided and cannot implement sufficient measures to curb the spread of COVID-19 in its facilities,” the complaint says that trans people are being put “at unreasonable and unconstitutional risk of infection, disease, and death” by the government, according to the lawsuit seeking relief on behalf of all detained trans people.

Since March 19 when ICE reported its first case of COVID-19 in a detention center, outbreaks have spread to at least 32 detention centers across the country. As of April 21, the federal immigration agency has publicly reported 285 confirmed cases of COVID-19, 253 of which are detained people. At least 10 facilities detaining transgender people are experiencing reported outbreaks, according to the complaint. 

Trans people are detained all over the country, according to TLC’s legal director, Lynly Egyes, but the precise number of detained trans people and their exact locations are unknown. ICE is not forthcoming with this information. As of right now, TLC knows the location of 60 trans people who are detained in various conditions–sometimes trans women are detained alongside cisgender men, for example, and other times trans people are placed in solitary confinement.

ICE was forced to create “LGBTQ pods”—units used specifically for LGBTQ+ immigrants—following a 2011 complaint against DHS on behalf of 13 LGBTQ+ asylum-seekers and migrants who were denied medical care for chronic conditions, sexually assaulted and physically abused by guards and other detained people, and placed in solitary confinement. ICE had to disband its only remaining “trans pod” in January of this year, roughly five months after a “secret memo” was sent by a top DHS official to ICE leadership revealing that detained trans people sometimes waited “up to 17 days for urgently needed medical care, were exposed to poor sanitation and quarantine practices during a chickenpox and mumps outbreak, and didn’t get medications as directed by a doctor for illnesses such as diabetes, epilepsy, and tuberculosis,” BuzzFeed reported.

Immigrants in the transgender unit, located within Milan, New Mexico’s Cibola County Correctional Center, were also reportedly housed in an area that was not “appropriately cleaned and sanitized,” which contributed to the spread of infectious diseases.

Because the exact number and locations of trans detainees are unknown, TLC, Ballard Spahr LLP, and the Rapid Defense Network pursued a class-action lawsuit “so that no one is left out,” Egyes said. There are 13 named plaintiffs from six different countries seeking to represent the proposed class, which would include all transgender people currently in ICE custody and those who may be detained as the COVID-19 pandemic unfolds. Most of the plaintiffs are asylum-seekers who fled their home countries due to fear of violence and persecution, but now they face dangerous conditions in detention related to COVID-19, including “a lack of social distancing, a lack of access to daily medications and vital health information, and irresponsible and inadequate medical care,” according to the complaint.

These are women like “RH,” who is detained at Caroline Detention Facility in Virginia and suffers from asthma, requiring her to use an inhaler three times a day, and “KM,” who is living with HIV while detained at Nevada Southern Detention Facility. Staff sometimes do not provide KM with her antiretroviral medication, requiring her to miss doses, and there are detained people in her pod showing possible COVID-19 symptoms, including coughing and fever.

Detained trans people are especially vulnerable to developing the most serious complications from COVID-19, as they are more likely to have underlying health conditions, including diabetes, high blood pressure, and immune suppression caused by HIV or viral hepatitis, according to TLC. They are also far more likely to suffer from mental health issues such as depression, anxiety, and post-traumatic stress disorder, all of which is compounded by being detained in a system that routinely denies medical care, affirming surgery, and appropriate housing based on their gender identity.

Legal advocates are demanding that ICE use already-existing mechanisms to release transgender people from custody, including allowing them to parole out of detention or allowing for their supervised release.

“Their release could take shape in many different ways. So many different mechanisms already exist and are used all the time,” Egyes said. “We’ve also raised over $100,000 to cover the humanitarian needs of people who would be released. This is a very organized effort on behalf of organizations, attorneys, organizers, and foundations, all of whom are stepping up. We just need ICE to do the right thing and release people.”

In a statement to Prism, ICE said it could not comment on pending litigation, but clarified that because of COVID-19, the agency “is reviewing cases of individuals in detention deemed to be at higher risk for severe illness as a result of COVID-19” and that they “may place individuals in a number of alternatives to detention options.” ICE also said that decisions to release individuals in custody occur “on a case-by-case basis.” As of April 10, ICE has released 693 people as a result of COVID-19, according to an agency spokesperson.

Egyes said ICE is making a “deliberate choice” to keep trans people in detention.

“Historically, ICE has not been able to care for transgender people in immigrant detention. This has been proven time and time again through multiple complaintsdetailing horrific medical treatment and it has been illustrated by the deaths of transgender people in detention,” Egyes said. “ICE cannot keep people safe and in some cases, it can be one or two [ICE employees] in detention centers who have the discretion to make decisions for many detained people.”

As an example, Egyes cited the case of Chin Tsui, a trans migrant released from ICE custody in March, just one day before the World Health Organization declared COVID-19 a pandemic. Tsui spent over two years in detention, including 19 months in solitary confinement. ICE refused to release Tsui, even after law enforcement confirmed he was a victim of trafficking, after TLC got the conviction vacated that made him deportable, and after his case was terminated and there were no proceedings against him. ICE chose to release Tsui only after he received an emergency pardon from New York Gov. Andrew Cuomo.

“ICE was making a deliberate choice to continue detaining Chin, and they had the power and discretion to do that,” Egyes said. “If they were willing to do this to a victim of trafficking, who wouldn’t they do this to?”

Tina Vásquez

Tina Vásquez is a contributing writer at Prism. She covers gender justice, workers' rights, and immigration. Follow her on Twitter @TheTinaVasquez.