Related

Nearly 24,000 Transgender Americans May Lose Right to Vote Because of Strict ID Laws

Had she been apprehended at a port of entry, as are roughly two-thirds of all would-be immigrants, instead of via the criminal justice system, Vasquez would have been taken into custody by U.S. Customs and Border Patrol. According to DHS, one category of deportation proceedings has nearly doubled in less than 10 years: expedited removal, whereby undocumented immigrants are denied counsel or a hearing before an immigration judge and sent home. To protect against improper removal of those who might be eligible for asylum, CBP is required to ask detainees who may be shuffled into an expedited removal process if they fear persecution or torture in their countries of origin and whether they are afraid of returning. If the answer to either question is yes, CBP is obligated to refer the migrant to an asylum counselor at United States Citizenship and Immigration Services, who will determine his or her eligibility to apply for asylum or other protection. But despite CBP’s being responsible for more than half of apprehensions, it accounted for only 26 percent of “credible fear” referrals to USCIS from 2009 to 2013, according to data provided to Human Rights Watch by USCIS.

“Sending someone who qualifies for asylum back to a situation where they face really serious harm and not providing them adequate opportunities to make a claim for asylum is a violation of international law,” said Clara Long, a researcher at Human Rights Watch and author of a report the organization published on credible fear screenings. “It’s also a violation of federal law.”

Given her experiences, Vasquez would almost certainly have qualified for asylum, but because she missed the one-year deadline, she was not given the opportunity to apply.

Once a migrant has lost the option of asylum, either by missing the one-year deadline or as a result of the failure of officials to facilitate applications, there is little hope it will be granted. Vasquez felt she had no good options. The odds were against her case—one study found that fewer than 5 percent of detainees obtain favorable outcomes from removal proceedings—and detention had been agonizing. Twenty-three hours a day in isolation, compounded by physical and verbal abuse from guards. During the one hour she was allowed to leave her cell, she stayed inside out of fear. She was unsure how much more she could bear.

Without the possibility of asylum, and rather than face more time in solitary, Vasquez chose to return to El Salvador. She hoped that since her departure more than a decade earlier, things had changed.

(Map: Google Maps)

In the hills and mountains that surround the town where Vasquez was born, neat black roads wind through lush greenery down to the shimmering ocean. Vasquez’s father was a fisher, and she grew up with her parents and five siblings in an airy house in a beach town on the Pacific coast.

When Vasquez arrived back in El Salvador in December 2009, she had full breasts, but her head was closely shorn from the jailhouse haircut. She still wasn’t accustomed to the image that looked back at her from the mirror, and to those who had not seen her in years her appearance was even more jarring. “I was scared. It was a journey I had not planned,” she says. Though things had initially been rocky with her family, in the intervening years they had come to support her. Still, her mom was shocked to see her. "You can imagine—she was used to seeing me with long hair, all made up, and then I arrived with breasts and my hair. It was so difficult to live there because the people were scandalized because they saw my chest, because they saw my short hair—they saw me as between a man and a woman, and they didn't understand," she says.

She arrived during a tumultuous time for LGBT Salvadorans. The previous spring, a left-wing president had been elected, the first in 20 years. The new leadership began allowing LGBT groups to register as officially recognized organizations, a privilege that had been all but impossible under previous administrations. The LGBT community seemed poised to come out of the shadows.

In response, anti-LGBT activists mobilized to ban same-sex marriage. Each time LGBT policy is liberalized, anti-LGBT hysteria finds its way to the fore, explains Ernesto Zelayandia, a Salvadoran LGBT activist and a fellow at the Human Rights Campaign. “For the conservative sectors, once there was a switch in government this opened the gates for a great debate on marriage equality,” he says. Hundreds of parents took their children out of school to rally in support of the ban, and churches organized prayer chains. “Whenever there is protest and demonstrations from the conservative sector, there is an increase in the events of violence against LGBT people,” Zelayandia says.

LGBT Salvadorans rallied in May 2012 to demand investigations into alleged hate crimes in San Salvador. (Photo: Ulises Rodriguez/Reuters)

The ban failed to pass, but the damage had been done. A rash of hate crimes swept across the country. In one gruesome month, five LGBT individuals were murdered, most of them bearing signs of torture, including dismemberment, according to a report, Sexual Diversity in El Salvador, by the International Human Rights Law Clinic at the University of California, Berkeley. Only one article in a major Salvadoran newspaper was published about them. “The impunity for violent crimes against LGBT individuals is sky-high,” says Zelayandia, citing more than 130 murders of LGBT people since the ’90s. “None of them has been solved.”

The International Human Rights Law Clinic report also describes a total lack of interest among officials when LGBT individuals reported cases of rape and assault. Some even reported violations at the hands of police.

Amid this fraught atmosphere, Vasquez decided after just a few weeks to make the journey back to the United States. “Definitely, I could not live there,” she says of El Salvador. She took “La Bestia,” the notoriously dangerous freight train through Central America favored by those bound for the United States and a perennial source of great promise and fear. Over the course of three months, she fled to Guatemala, where she caught the train and rode north. CBP agents apprehended her as soon as she crossed the border at Laredo. Because she had been through official deportation proceedings once already, crossing into the country without authorization was a criminal offense, punishable by up to two years in prison. There are various conditions under which undocumented migrants can be held without trial, and Vasquez was placed in a federal prison to serve time for “illegal reentry.” She was also subject to an immigration process, similar to expedited removal, whereby she could be deported without seeing a judge—and was not eligible to apply for asylum.

Nicoll Hernández-Polanco, a trans woman from Guatemala, was detained by ICE for six months in a men’s facility in Arizona. (Photo: TransgenderLawCenter.org)

Immigrant detention in the U.S. is under civil jurisdiction, not criminal. Yet at any given time hundreds of detainees are held in segregation and varying degrees of isolation, a tool prisons commonly use as punishment. LGBT detainees in particular are often placed in solitary confinement to protect them from violent or vituperative cell mates. According to complaints filed with the DHS Office of Inspector General, detention officials also use solitary as a form of harassment or punishment for being trans.

Protective solitary confinement can have debilitating effects on the health of trans detainees. A recent study published in the American Journal of Public Health found that prisoners in solitary confinement committed more than half of all incidents of self-harm recorded in New York City jails. According to Sen. Dick Durbin, studies show that half of all prison suicides happen in solitary.

Many human rights advocates and psychologists maintain that prolonged solitary confinement is inhumane and tantamount to torture. In a 2011 report to the United Nations, Juan Méndez, the U.N. special rapporteur on torture, said the practice constitutes “cruel, inhuman or degrading treatment or punishment and even torture” and called for an absolute ban on solitary confinement for longer than 15 days. Yet, aside from one LGBT-only detention “pod” in California, it is the only alternative to housing vulnerable populations with those who would abuse them. Still, given the choice, some would prefer the threat of abuse to the effects of solitary. “I’ve had clients who had been sexually assaulted and then put in solitary who would much rather go back to the situation in which they were sexually assaulted than to be in solitary for even a single more day,” says Tomchin, who is now a deportation defense coordinator and staff attorney at the National Day Laborer Organizing Network.

Comprehensive records are not collected, but immigration attorneys and trans immigrant experts estimate that the vast majority of trans detainees are housed in gender-inappropriate facilities and face extreme risk of sexual and physical abuse. That contradicts policy. In 2003, Congress passed the Prison Rape Elimination Act, which charged the Department of Justice with creating and implementing standards for eliminating rape in the prison system and clearly signaled that detention facilities would be covered by the resulting regulations. DOJ took nearly a decade to release its guidelines, and when it finally did, in May 2012, ICE and CBP were exempted. DHS, of which ICE and CBP are a part, was tasked with crafting its own guidelines. In Texas, where Vasquez was held, Gov. Rick Perry in 2014 told DOJ he would just ignore the federal directive on the grounds that it was onerous and impractical.

The DHS guidelines came in April of last year and—to the pleasant surprise of the LGBT community—they are more progressive than many were expecting. They allow for facilities to consider the self-identified gender of the detainee when determining where the detainee should be held. The document also created more accountability of officials when detainees are put into segregation or solitary confinement, and emphasized that such measures should be used only as a method of last resort.

“Unfortunately,” Tomchin says, “ICE never follows its own rules. From my perspective as an advocate and someone who tries to work with ICE to make better policies, it’s very frustrating, because it doesn’t matter what policies they come up [with], it doesn’t matter what rules they agree to, if they refuse to implement them and follow them.” The abuse and protective segregation of Gamino took place months after the adoption of the new guidelines.

After several months again in the custody of the United States government, much of it in solitary confinement, Vasquez was deported in September 2010. When she arrived back in El Salvador the second time, little had changed. Despite a 2010 decree prohibiting discrimination based on sexual orientation and gender identity, and the creation of a government office focused on sexual diversity, the specter of anti-LGBT violence still loomed.

Vasquez was despondent. “I arrived in a country I didn’t want to be in,” she says. As soon as she left the airport, she says, a truck full of armed men kidnapped her, gang-raped her, beat her severely, and left her at the side of the road to die. A woman came across Vasquez and helped her to the police to report the abuse. Instead of taking note of her case, an officer at the station forced her to perform oral sex on him before telling her the men should have killed her and throwing her out of the station. (Local police could not be reached for comment.)

MORE IN TAKEPART FEATURES: The Surprising City Where Rape Victims Are Finding Justice

sign up for the takepart features email Add context and dimension to the issues you care about with personal stories and gripping long form narratives reported from the inside of where news is happening. Email By submitting the form above, you agree to TakePart's Terms of Use and Privacy Policy . You can unsubscribe at any time. Contact us here

Determined to escape the violence, she again made her way north. “I left the same day. The same minute,” she says. “To stay in El Salvador where they will kill you or to leave? There was no choice.” She hitchhiked through Central America to Chiapas, Mexico, where a trans woman and her family took her in. She stayed with them from September 2010 through February 2011 and then made her way to the United States—where she was again apprehended. She served time in prison again before being sent to the Port Isabel Service Processing Center, just north of the Rio Grande in Texas and among the largest immigrant detention centers in the state, with a capacity of more than 1,200. Advocates have detailed numerous human rights abuses and other issues there. In 2009 and again in 2010, detainees went on hunger strikes to protest the use of solitary confinement and violations of due process.

Detention itself makes the likelihood that immigrants will qualify for successful resolution to their cases extremely low. Claims for asylum and similar protections require reams of evidence that are difficult to obtain under the best of circumstances. Compounding matters is that undocumented immigrants in removal proceedings have no right to legal counsel.

Accessing Justice, a report based on an investigation organized by Judge Robert A. Katzmann of the Second U.S. Circuit Court of Appeals, found that representation and detention were the biggest factors affecting the outcome of an immigrant’s case. Though the findings are derived from New York City data, experts say the broad strokes apply to cases around the country. Seventy-four percent of immigrants who are not detained and have legal representation obtain a successful outcome, according to the report. For those detained and unrepresented, the figure plummets to 3 percent. Fewer than half of detained immigrants are able to secure representation for their removal proceedings.

Even if detainees are lucky enough to find representation, insecurity and a culture of trans-phobia prevail. “We get calls every day from desperate transgender people in detention,” said Clement Lee, an attorney at the LGBT-focused nonprofit Immigration Equality. “It is structured in a way such that, especially for transgender asylum claims, people have some incentive to give up.”

Vasquez was able to secure a hearing before Judge William Peterson, then a resident judge at Port Isabel’s immigration court. After months in detention and with Immigration Equality’s help, she put together a claim for “withholding of removal” and represented herself before the judge. Withholding of removal, a bastardized version of asylum, was her best option. With no pathway to citizenship and recipients disallowed from leaving the country and ineligible to sponsor spouses or children, it has fewer protections than the real thing yet is more difficult to obtain. Nonetheless, it lifts the possibility of deportation, and any chance Vasquez had at obtaining asylum from within detention had passed long ago.

On June 19, 2012, she was granted withholding, and all deportation orders against her were removed. ICE released her from detention, and she was given a worker’s permit, a social security number, and a government I.D. She moved back to New York City, where she now lives and works cleaning offices. In October 2014, the name on her immigration documentation was changed to Johanna.

Sitting in the cramped kitchen of her basement apartment in Queens in May, the cinder-block walls painted a vibrant green, Vasquez tries to stay optimistic. She has come a long way from that bus stop in Houston, but her future is uncertain. Withholding of removal must be renewed every year, and there’s no guarantee that her status will continue. Not being able to leave the country and see her family wears on her. “My mom is 83 years old, and if something happens, I can’t even go to visit her. It’s hard,” she says. If she wants to be considered for full asylum, she will need to reopen her case, running the risk of losing her current status and being deported.

Still, she acts as though her future is in New York. She is looking around at colleges and plans to take some classes, perhaps get a degree. For the time being, at least, she’s secure and looking toward what’s next. A year ago, she started dating a new boyfriend, Edwin. They live together in a three-bedroom apartment they share with others. She shows a photo of their smiling faces.

“You know, we go from happiness to sadness to pain. And the younger years are really hard. I have scars from when my dad would hit me because I went around saying I was a girl,” says Vasquez. “We have gone through a lot. If you ask me if I am happy? Yes. I learned to love myself the way I am. I look in the mirror, and I see the woman I want to see.”

But issues remain. “I’m afraid of having problems with the police,” says Vasquez, particularly that they will harass her and her boyfriend, thinking Edwin has hired her as a prostitute. Nonetheless, she has hope for the future. She says there’s more help for people like her, more people fighting for trans rights, and she has some sense of normalcy. “I have a life,” she says. “How can I say it? I have as normal of a life as I can have.”