By Sarah Morrison
There was widespread celebration earlier in the year when Obama’s administration announced an ambitious plan to transform the nature of national immigrant detention centers. But while there has been some movement towards law reform, immigrant and civil rights groups are concerned that the most vulnerable immigrant populations remain at risk.
John Morton, the assistant secretary for Immigration and Customs Enforcement (ICE), announced in August that the government would transform the way the nation detains immigrant violators, creating what he called a “truly civil detention system.” But while there have been small inroads made by the Administration – including the lifting of the twenty-two year long ban on travel to the U.S. by people with HIV – immigrants detained in the country with the virus are still not offered the care they desperately need.
The HIV travel ban was enacted in 1987 during a time when fear about the virus was rife, and affects visiting tourists and foreigners who seek legal immigration to the U.S. Under the ban, United States health authorities have been required to list H.I.V. infection as a “communicable disease of public health significance.” Most non-U.S. citizens with such a disease cannot travel to the United States according to immigration law.
At a White House ceremony, October 30th, President Obama announced that a rule canceling the controversial HIV travel ban would be shortly published, with regulations expected to take effect on Jan 4th 2010 following a routine implementation period.
However, while officials at immigration advocate groups said the lifting of the ban is an important step towards the de-stigmatization of a disease that has been commonly misunderstood, they added that HIV-Positive immigrants in national detention centers would be unhelped by this new rule.
“The ban has largely prevented people from coming to the U.S on short time visas or from getting green cards here,” said Victoria Neilson, legal director for Immigration Equality, an organization that fights for equality under U.S. immigration law for lesbian, gay, bisexual, transgender, and HIV-positive individuals. “In terms of people ending up in detention because they are here without legal statuses, it is unlikely the lifting of the ban will effect them at all.”
She added that standards for providing medical care for HIV-Positive immigrants in detention are still inadequate, having changed little since 23-year old Victoria Reyes*, a transgender HIV-Positive detainee from Mexico, died in July 2007 in ICE custody.
Victoria was sent to San Pedro Service Processing Center after initially being stopped by officials for driving without a license. Having no legal papers, she spent eight weeks at the center, until she died in federal immigration custody. According to her cellmates, Victoria’s heath deteriorated when medical staff refused her access to her regular HIV medication. They also said Victoria experienced ridicule and harassment at the hands of the center’s staff.
Victoria’s death hit the headlines and fuelled a Human Rights Watch investigation into the services available for HIV-Positive immigrant detainees.
Victoria’s story is told by her mother Olga in Underground America: Narratives of Undocumented Lives. According to Olga, the ICE staff, security, and nurses at the center treated transgender detainees with contempt, humiliating them at every chance. She said: “They would laugh at them, mock them or make comments.”
When Olga was finally authorized to visit her daughter in detention, she found her dying, chained to a bed. Olga said: “She tried to raise her arms to hug me but they fell. She was so pale. She had lost weight. She was too weak. I saw her mouth try to form a kiss but she couldn’t. I could see how hard it was for her to breathe. You could see it in her chest. She didn’t deserve to die like that. She was already in agony.”
While Neilson told Voice of Witness that the “entire detention system is broken for everybody,” she stressed that “vulnerable populations are at the greatest risk.”
“The vast majority of them are not violent criminals, but detention takes a terrible human toll on the individuals involved,” she said.
According to a 2009 US Department of Homeland Security (DHS) report, there were almost 400,000 people in immigration custody or supervision in fiscal year 2008, and a Human Rights Watch report initiated after Victoria’s death noted that the number of detainees with HIV are not even accounted for.
According to the report titled, Chronic Indifference: HIV/AIDS Services for Immigrants Detained by the United States, not only was Victoria refused essential medication for her HIV, but the centers in general provided “substandard policies and procedures for providing life-saving care.”
Its findings included a failure by detention centers to consistently deliver anti-retroviral medications, to conduct necessary tests in a timely manner, to prevent opportunistic infections, to ensure continuity of care including access to necessary specialty care, and a failure to ensure confidentiality of medical care, exposing detainees to discrimination and harassment.
When the report was published, its writer and researcher for the health and human rights division at Human Rights Watch, Meghan McLemore, said: “Without improved standards for medical care, strengthened external and internal oversight and meaningful accountability to the public, immigrant detainees with HIV/AIDS will continue to needlessly suffer, and in some cases, die in US immigration detention.”
While the San Pedro Processing Center, where Victoria was housed, has now been closed by U.S. Immigration and Customs Enforcement (ICE), McLemore told Voice of Witness that there have been no drastic changes this year to regulations enforcing HIV care in detention centers.
While the delivery of detainee medical care is shared by the Division of Immigration Health Services (DIHS), sheriffs departments, and private prison providers, the ICE does not have a centralized electronic medical records system for all facilities, and little information is available about the population as a whole. The number of detainees with HIV are still not accounted for and while new national standards exist, they are still not legally enforceable.
“There have been improvements on paper for detainees with HIV – in the form of performance-based national detention standards – but there is a still a long way to go and regulations are not what we want them to be,” McLemore said. “There is still no formal administration, which means that changes are optional, giving detainees no legal resource based on fixed standards.”
She said that while the DHS is still not accounting for the numbers of HIV-Positive detainees, the new administration seems more open to policy change. “They know they don’t have a handle of what is out there, in terms of HIV and other chronic diseases, but they seem more willing to engage with the advocate community that can help and advise them.”
In a 35-page report produced for Janet Napolitano, the secretary of homeland security, by Dora B. Schriro in October, recommendations were made on how to improve medical care services. Schriro advised the ICE to establish one integrated medical care system and adopt an approach to assessing and managing medical care across the agency, including a system of medical care records for all detainees.
For Neilson, Victoria’s story is an important insight into the need for alternatives to the current detention system. She said: “If the department can’t give people with HIV the medical care they need while in detention, then they should not be detaining them at all. There are alternatives available, and we are hopeful that things will change, but it will take a lot of political will to dismantle a system built up over the last eight years.”
More information about Victoria’s story can be found in Underground America: Narratives of Undocumented Lives.
*Victoria’s name has been changed to protect the identity of her mother.
