Series: Gender and Justice in America

The intersection of immigration and criminal justice for women, girls, and transgender people

Juhu Thukral Director of law and advocacy at The Opportunity Agenda
Apr 25, 2016

Americans are currently in a self-reflective mood: Primary voting turnout for the 2016 Presidential election has so far been extremely robust, with no hint of slowing down—a sure sign people are invested in who we are and where we are going as a country. Related to this political interest is the ongoing desire of many to see policy change in two of our most traditionally “stuck” legal systems: criminal justice and immigration.

What most Americans may not know is how intertwined these systems have become, especially in the name of public safety. On Monday, April 18th, the Supreme Court heard oral arguments on a case challenging President Obama’s immigration executive actions to help families get on the roadmap to citizenship. Without this action, these families would be in jeopardy of separation, detention, and deportation. This kind of policy has a direct effect on the lives of millions of immigrants, especially on women and on families, where women so often take the lead and shoulder huge responsibility.

The biggest example of how enmeshed the criminal justice and immigration systems have become is the record number of deportations authorized by the Obama Administration. Immigrants are often detained in jails and prisons designed for the domestic criminal justice system and, more recently, in detention facilities run by private corporations. Due process rights, attention to basic needs, and protection from abuse are largely absent in detention facilities and throughout the deportation process. This mirrors the experience of many who go through the criminal justice system, but with even less guarantee of access to human and civil rights.

The use of military-style tactics employed by Customs and Border Protection in its policing of border communities throughout the southern U.S. border is another way these systems mirror each other. The reports of racial profiling, excessive force, and killing of unarmed civilians speak directly to the experiences black and brown communities have endured with local police, leading to the urgent work being done by Black Lives Matter, the Movement for Black Lives, and the groups rallying around #SayHerName.

Finally, the policing of immigrant communities directly puts people into the criminal justice system, often as a result of profiling based on race, gender, gender identity, and/or perceived sexual orientation. Once immigrants are caught in the net of the police and the criminal courts, they are taken to the immigration system for scrutiny and possible deportation, being punished twice, even if they have done nothing wrong.

The impact of policing, raids, detention, and deportation on immigrants, people profiled as being foreign-born or non-citizens, and their loved ones is profound. But often, policymakers, communities, and advocates overlook the unique impact of these policies and practices on immigrant women, girls, and transgender people. The collision of such practices on matters related to work, immigration status, family, gender, gender identity, and perceived sexual orientation often amplify both the urgency and the consequences of being in what is likely a vulnerable situation.

A bright light in this area is the work of the We Belong Together campaign, which specifically focuses on the contributions and needs of immigrants who are women and girls, with a clear immigration policy agenda speaking to their needs. On their website, they clearly state the necessary elements for a path forward:

  • Create a broad and clear roadmap to citizenship for all members of the undocumented community.
  • Keep families together and ensure due process.
  • Reunify families separated by the family visa backlogs.
  • Value women workers.
  • Protect survivors of violence and trafficking.
  • Reform the costly, inefficient and inhumane detention system and end the practice of detaining families.
  • Promote immigrant integration that includes and empowers women.

 But even more than the needs of cisgender women and girls (women whose gender identity aligns with their sex assigned at birth), discourse and policy on immigration almost completely ignores the needs of transgender immigrants, who are profiled and policed at alarmingly high rates. Human Rights Watch has just released a groundbreaking report on the abuse of transgender women placed in immigrant detention. The report calls for an end to detention of transgender immigrant women, or at a minimum, an end to housing them with cisgender male detainees. It also calls for access to basic health care, given the unique medical needs of transgender women and for addressing and ending physical abuse and sexual assault of transgender women in detention.

Our current national moment of reflection and pushing ourselves to identify as a forward-looking nation is a huge opportunity to re-examine and end the increasing link between our criminal justice and immigration systems. Fortunately, strong communities and savvy advocates are leading the way in outlining concrete solutions for dignified and just treatment for women, girls, and transgender people who are immigrants.

Through the Gender & Justice in America blog series, Vera will explore issues facing justice-involved women and girls in the fields of adult corrections, youth justice, immigration, victimization, substance use, and mental health.