Abstract
As immigration detention has increased in the United States over the past two decades, legislative changes have placed LGBTQ immigrants at a higher risk of being detained because of deportation policies that focus on poverty-related crime and increasingly stringent asylum requirements. Once detained, these immigrants are subjected to significantly higher rates of violence and are often denied access to essential medical care. Exacerbating the problems of detention for all detainees, there are no substantive legislative or regulatory standards governing detention conditions, and the Department of Homeland Security’s internal standards are poorly enforced and often not even binding. While there are constitutional limits to what detainees can be subjected to, most circuit courts have held that detainees are not entitled to any protections beyond those given criminal prisoners. Litigation by LGBTQ people in criminal incarceration has yielded some successes that may be imported into the detention context to improve conditions, but litigation is an uncertain and difficult route for advocates to take, particularly given uncertainties about detainees’ access to the court system. Ultimately, the most meaningful advocacy may be outside of the litigation arena, advocating for legislative and regulatory changes. One obvious goal of advocacy may be to increase standards and oversight for detention conditions, but this may be difficult to achieve meaningfully and may result in an unintended entrenchment of policies favoring increased detention. A more promising route is for LGBTQ-focused organizations to work with other stakeholder communities in advocating for significant decreases in the number of people detained.
