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Transgender detainees need protection — a letter from lawmakers doesn't provide it

Transgender detainees need protection — a letter from lawmakers doesn't provide it
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House Appropriations Committee member Rep. Mike Quigley (D-Ill.) wrote a letter to ICE’s Acting Director, Matthew T. Albence, demanding the release of transgender migrants who are being held at ICE detention facilities.

It has been signed by 45 members.

Quigley is a Vice-Chair of the Congressional LGBT Equality Caucus.

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The letter explains that transgender migrants face a heightened and unique set of injustices in immigration detention because they are particularly vulnerable to physical assault and medical neglect. Inhumane conditions and systematic abuses are evidenced in countless reports and in accounts from formerly detained migrants.

Moreover, ICE’s pervasive use of solitary confinement has put them at risk of physical and mental health deterioration and made them vulnerable to sexual assault. LBGT migrants in detention are 97 times more likely to be sexually victimized than the non-transgender population.

Quigley’s concerns appear to be justified, and ICE is not doing as much as it should to deal with the problems he has raised. A September 2019 report from the DHS Office of Inspector General revealed that ICE is not providing enough oversight at its detention facilities.

That however does not justify ignoring the law. ICE’s failure with regard to protecting transgender detainees — by itself — cannot justify flouting the statutory detention provisions in the Immigration and Nationality Act (INA).

The boring but important part:

INA § 236(a) authorizes the arrest and detention of aliens who are subject to removal proceedings pending a determination on whether they will be removed from the United States.  It provides discretion, however, to release them on a case-by-case basis if they post a bond or, when appropriate, on a promise to return for scheduled proceedings.

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INA § 236(c) requires mandatory detention of aliens who fall within certain enumerated criminal or terrorism-related categories, with some exceptions.

INA § 235(b) generally requires the detention of aliens seeking admission and certain aliens who are in the United States physically but were not lawfully admitted. Parole is available for urgent humanitarian reasons or significant public benefit.

INA § 241(a) generally requires detention of up to 90 days for aliens who are subject to final orders of removal while arrangements are being made to deport them, and they may be detained longer if the agency cannot deport them during the 90-day period.

Problem with the letter

Quigley’s demand letter does not provide a legitimate basis for disregarding those provisions of the law.

It bases the demand on language that can be found on page 37 of the Committee Report accompanying the recently-enacted FY2020 Consolidated Appropriations Act, which reads as follows:

“Transgender Detainees.—The Committee directs ICE to limit the detention of individuals who self-identify as transgender to facilities subject to a contract formally modified pursuant to Attachment 1 of the June 19, 2015 ICE memo entitled ‘Further Guidance Regarding the Care of Transgender Individuals,’ unless the individual has voluntarily declined placement in such a facility after being informed of the opportunity to do so.”

According to Rep. Quigley’s letter, no existing ICE detention contract has been formally modified per the 2015 memo, so ICE is legally obligated to release all transgender individuals from its custody immediately.

That 2015 memorandum was written by Thomas Homan, who was ICE’s Executive Associate Director at the time. He wrote it to provide further guidance on the placement and care of transgender adult detainees; it supplements existing standards and regulations on sexual abuse and assault prevention.

But the memo does not establish a legal right to the recommended treatment.

In fact, it closes with the disclaimer that: “This guidance is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.”

Process does matter

If the House Appropriations Committee really wanted to waive the statutory detention provisions with respect to transgender detainees, why wasn’t the waiver included in the statutory language of the appropriations bill?

Almost continuously since the 44th Congress, House rules have contained language forbidding the inclusion in general appropriation bills of language changing existing law.

House Rule XXI provides that, with two exceptions, a provision changing existing law may not be included in a general appropriation bill or in an amendment to the bill.

The exceptions are for germane provisions that change existing law in a way that would retrench expenditures and for the rescission of previously enacted appropriations, neither of which applies to waiving statutory detention provisions for transgender detainees.

These restrictions, however, are only enforced if a Member objects by raising a point of order.

Where such a point of order is raised against a provision in a general appropriation bill, the burden of proof is on the Appropriations Committee to show that the language is valid under applicable precedents and does not change existing law.

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Similarly, the proponent of an amendment against which a point of order has been raised has the burden of proving that the amendment does not change existing law.

Short of changing the Immigration and Nationality Act itself, the Appropriations Committee could have protected transgender detainees without creating rule XXI issues. They just had to include funding provisions in the bill for the creation of detention facilities that are appropriate for detaining “vulnerable populations,” which wouldn’t just benefit transgender detainees. Appropriate detention facilities are needed for children and families too.

There are legal ways — easily within the rules — to ensure protection of transgender detainees and other vulnerable populations.

Why haven’t they done that?

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.