Immigration and Customs Enforcement has refused to release a transgender migrant woman from detention in an all-male facility, according to ICE and the woman's attorneys, even though advocates say she has a credible asylum claim and has faced abuse from guards and fellow detainees.
The case of Nicoll Hernández-Polanco, an asylum seeker from Guatemala now detained in Florence, Arizona, has become a rallying point for immigrant rights groups and the LGBT community, with some advocates arguing that ICE should stop detaining transgender people altogether.
Hernández-Polanco, 24, began the process of transitioning to female at age 14, which advocates say opened her up to abuse from her family and violence from gangs. She first crossed into the United States illegally as an unaccompanied minor at age 17, fleeing violence in Guatemala.
She was deported and spent much of the next few years living in migrant shelters in Mexico. In October, Hernández-Polanco returned to the United States and turned herself in to authorities at the border, claiming asylum based on her fear of persecution because of her gender identification.
She was placed in an all-male detention center, despite Department of Homeland Security regulations saying that ICE should take gender identification into account when assigning migrants to detention facilities. Advocates say that since being detained, Hernández-Polanco has been assaulted by another detainee, and that guards have groped her during routine pat-downs and referred to her using slurs like “it” and “woman with balls.”
“Unfortunately, Nicoll’s case has been really typical,” Olga Tomchin, a fellow at the Transgender Law Center, told The Huffington Post. “Nicoll clearly identifies as a woman. She’s been on hormones for years. She presents herself as a woman. She has said she does not want to be housed with men, that she doesn’t feel safe, and ICE has ignored its own rules.”
Attempts to interview Hernández-Polanco by phone were unsuccessful. Hernández-Polanco’s attorneys declined to comment on the specifics of her pending asylum claim for fear of jeopardizing it, but said they had trouble understanding why ICE refuses to release her from detention while the case moves forward.
“The only thing that they’ve mentioned is that they consider her a flight risk because of the prior deportation,” Hernández-Polanco's attorney, Heather Hamel, told HuffPost. “But we’ve even offered that she be released subject to ankle monitoring or subject to court-ordered supervision. Those requests were denied. At this point, why she remains in detention is anyone’s guess.”
U.S. law affords some protections for transgender migrants in detention. In 2012, the Obama administration instructed the Department of Homeland Security to conform to the requirements of the Prison Rape Elimination Act, which included drafting new rules to better guarantee the safety of lesbian, gay, bisexual, transgender, intersex and gender-nonconforming detainees.
Current regulations say that ICE should take the gender identification of transgender and intersex detainees into consideration when assigning them to a detention center.
“U.S. Immigration and Customs Enforcement (ICE) is firmly committed to providing for the safety and welfare of those in custody,” ICE said in a statement. “ICE has a strict zero tolerance policy for any kind of abusive or inappropriate behavior in its facilities and takes any allegations of such mistreatment very seriously.”
But advocates say ICE routinely fails to follow its own rules, calling the Hernández-Polanco case emblematic of a wider problem.
“ICE has shown over and over again that they are incapable of detaining transgender people with even minimal levels of dignity and safety,” Tomchin said. "We really believe that the only solution is for ICE to not detain trans people at all.”
This post has been updated to clarify the source of the information in the first paragraph and the order of events in Hernández-Polanco's life.