Ibrahim came to America for refuge as a gay man. Living in Guinea, where same-sex activity is illegal, his long-term partner was murdered for his sexuality and Ibrahim feared he would be killed next.
“He knew the US had respect for gay rights, which isn’t true in a lot of places in the world,” Keren Zwick, Ibrahim’s attorney, told me. “A family member helped him get out of the country, and he came to the Western Hemisphere as a stowaway on a boat.”
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But when Ibrahim (whose name has been changed to protect his identity) arrived in the US and asked for refugee status, he wasn’t expecting to be thrown into county jail. He would remain there for seven months, in constant fear of abuse by fellow inmates, until he finally won his asylum case.
The United States has long been a destination for immigrants seeking refuge from anti-LGBTQ laws and customs in their home countries. But a growing number, like Ibrahim, are now being placed into detention centers after entering the United States, despite being at high risk for abuse in detention.
Immigration and Customs Enforcement (ICE) increased its detention of asylum seekers like Ibrahim threefold between 2010 and 2014, placing many in mandatory detention, according to a report published this summer by Human Rights Watch. In the past year, ICE detained 20 percent more of LGBTQ immigrants who did not require mandatory detention last year than it did the year prior, according to a new report by the Center for American Progress (CAP).
This is perfectly legal per the Immigration and Nationality Act, which states that people without legal immigration paperwork caught within 120 miles of the border can be placed into expedited removal proceedings, which includes detention. Even asylum seekers who have passed a credible fear interview can be “detained for further consideration of the application for asylum.”
But ICE’s own guidelines acknowledge that LGBTQ immigrants—those who “fear any harm in detention based on his/her sexual orientation or gender identity”—are an especially vulnerable population who should not be detained unless necessary.
“This is a small group of people who are extremely vulnerable to abuse in detention,” Sharita Gruberg, author of the CAP report, told me of LGBTQ immigrants. “If ever a population should be released [from] detention this should be them, yet ICE detains them as the rule not the exception.”
She and other immigration advocates said ICE should instead use alternatives to detention, such as periodic check-ins and reminders of immigrants’ court dates.
Gruberg’s report found that in fiscal year 2015, officials locked up 88 percent of immigrants who self-identified as LGBTQ and specifically expressed fear of abuse in detention in their initial intake interviews with ICE. The prior year, officials had detained 68 percent of those individuals.
“LGBT immigrants were detained with startling regularity regardless of legal requirements, vulnerability to abuse, or even the absence of flight risk or risk to public safety,” the CAP report found. “The rate of LGBT immigrant detention has continued to climb.”
The growth of LGBTQ incarceration follows a larger trend of immigrant detentions, according to Michael Tan, a staff attorney with the ACLU Immigrant Rights Project.
“We’ve never seen this many people detained ever,” Tan told me. In the past 20 years, the number of immigrants detained has jumped from an average of 8,500 to 45,000 per night. Both Tan and Gruberg said there was inadequate data to tell whether the increase in LGBTQ detainees was proportionate to that of the overall immigrant population.
Most recently, the increase in detention has been due to an uptick in incarcerating asylum seekers: In fiscal year 2010, 15,683 asylum seekers (45 percent of all asylum seekers in court proceedings) were detained, which jumped to 44,228 (77 percent of asylum seekers in court proceedings) in fiscal year 2014, according to the Human Rights First report.
For LGBTQ immigrants and asylum seekers, that presents a major problem. A 2013 study by CAP found that LGBTQ detainees were 15 times more likely to be sexually assaulted in detention than non-LGBTQ detainees, and it revealed a “systemic nature of abuse” against LGBTQ people in immigration detention, including sexual assault, withholding of medical treatment, solitary confinement, inappropriate use of restraints, and verbal and physical abuse by guards. That report found that between 2008 and 2013, at least 200 LGBT detainees made formal complaints to ICE about such abuses.
The increased incarceration, said Gruberg, blatantly contradicts ICE’s stated guidelines in its Risk Classification Assessment (RCA), which recommends not to detain anyone with a “special vulnerability,” including disabilities, serious illnesses, or risk based on sexual orientation.
“RCA will never recommend detention to an individual with a special vulnerability unless subject to mandatory detention,” ICE stated in a 2013 presentation to the National Disability Rights Network.
Not only does the detention of LGBTQ individuals flout RCA recommendations, but Gutenberg said it also contradicts a 2014 memo from the Department of Homeland Security Secretary Jeh Johnson, which stated that the DHS should not detain vulnerable individuals whose detention is “not in the public interest.” (Johnson did not specifically mention LGBTQ individuals in the memo, but Gutenberg said they clearly fell into the category not recommended for detention.)
“When the memo came out advocates from the LGBT community assumed LGBT individuals were included in the protected category, because gender and sexuality are included in the special vulnerabilities in the intake form,” Gruberg told me.
Now, ICE continues to incarcerate even more asylum seekers. Zwick explained that per the 2014 memo from DHS, the government’s top detention and deportation priority is “aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States,” which includes all recent border crossers, even those seeking asylum.
“The really messed up thing about immigration right now is that the November 2014 memo set up priorities and the number one priority is anyone who’s arrived recently,” Zwick said. “So all asylum seekers are a number one priority.”
Even as the US government has grown harsher on asylum seekers, more and more people have flocked to the country for refuge, especially LGBTQ individuals.
“In the last five years, we’ve seen an increase in people seeking asylum because of sexual and gender orientation,” Zwick told me. “The US has become pretty well known with respect to its freedom, ever since nationwide gay marriage”—and that reputation holds, even if those seeking its freedoms end up behind bars.
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