State Violence and Comprehensive Immigration Reform
by Devon G. Peña
“Death is unspeakable. It is silenced by the austere and pious rhetoric of nationalism, ‘honor’, ‘compassion’, and the ‘culture of life’ itself.” — Stuart J. Murray, “Thanatopolitics,” p. 196
“Death is not a biological moment but a political decision.” — Lindsay A. Hall, “Death, power, and the body,” p. ii
Let us never forget Victoria Arellano. She was a 23-year-old transgender immigrant from Mexico murdered by the U.S. Department of Homeland Security while in detention in May of 2007. It has been six years almost to the day and no one has ever been charged with her murder or even discharged from staff positions at the Customs and Border Enforcement (CBE) detention center on Terminal Island in San Pedro, California where she was killed. It is ironic that until the 19th century Terminal Island was known as La Isla del Muerto (The Island of the Dead).
I was reminded of Victoria’s death this morning after awakening from a restless sleep. This may sound odd but what woke me up was my inability to stop thinking about the implications posed by the passage of the current Gang of Eight immigration reform packet, as it now seems it might. What will it mean for Mexican and other undocumented immigrants? I am finishing Dispossession: The Performative in the Political (2013), a book in which Judith Butler and Athena Athanasiou engage in a lengthy conversation about the conditions and struggles of people who are dispossessed — those who have lost land, property, citizenship, or even a sense of a broader belonging to the world (alienation?).
In a chapter entitled, “Trans-border affective foreclosures and state racism,” Athanasioiu, a Greek political anthropologist and feminist scholar, poses a series of questions that seldom if ever get addressed by the scholars, pundits, and legislators who control and constrain the contemporary discourses on public policy for immigration reform. Athanasiou asks:
We have to ask which affective bonds get recognized and which ones remain foreclosed, unintelligible, misrecognized, repudiated, or censured, for example by migration policies in the Euro-Atlantic. What does it mean for a nation-state to judge, evaluate, valorize, and sanction the worth of certain gendered and affective enactments over others through its migration policies?
Athanasiou is asking a question rooted in an understanding of the history of U.S. immigration law and policy with a long history of heteronormativity — that is, our immigration laws exclude the entry of lesbian, gay, bisexual, transgender, and queer migrants because they do not conform to heterosexual desires and affections. This is the “affective foreclosure” Athanasiou is criticizing in this passage. She goes on to illustrate how this works in real terms by reference to the case of Victoria Arellano:
The subjection of trans people to the legal and illegal violence of the nation-state is a case in point. Victoria Arellano, a transsexual Mexican immigrant to the United States, died in 2007 from complications of AIDS after being denied medical attention while in the custody of the Department [sic] of Immigration and Customs Enforcement. That instance of the state letting a person die posed urgent questions regarding the conditions and norms of intelligibility that render certain affective bonds valuable and others nationally irrelevant or threatening in immigration policies. Victoria Arellano was transformed into a perversely gendered and racialized deadly figure, [used] to demarcate a viable, vital, and life-worthy national population. What would it take to make her life, death, and abjection intelligible and response-able? What ideas of the human are implied by prohibitions, protections, and adjudications related to the protocols of Euro-Atlantic immigration [laws]. (2013:165; brackets added)
The death of Victoria Arellano reveals the heart of darkness of the ‘American’ soul and removes any doubt that the postliberal minimalist state operates its surveillance and disciplinary machines through the techniques and strategies of biopolitics and thanatopolitics. In other words, the politics of death are as important as the politics of the regulation of life. Recall now that a postliberal minimalist state dispenses with any notions of equal protection or due process. It does not even feign to abide by the rule of law. It does not have to protect life, or rather, it can choose which lives are worth protecting — this is the minimalist part. Post-liberal also means never having to say you’re sorry (there is no judicial accountability) and the state can ignore the suffering caused by its policies in the enactment of a heteronormative order that suspends the rule of law.
Arellano was born with male genitalia and brought to the United States by her parents as a child. Had she lived and aspired to attend a college she would have qualified for the Obama Administration’s deferred action status for DREAM Act-eligible students. She was a bright, vivacious, kind, and decent person. Victoria also had AIDS but according to Sandra Hernández, in a June 2008 article in the Los Angeles Times, at the time of her arrest she exhibited no symptoms of the disease because of the medication she took daily. Hernández reports that, “once detained, her health began to deteriorate. She lost weight and became sick. She repeatedly pleaded with staff members at the detention center to see a doctor to get the antibiotics she needed to stay alive, according to immigrant detainees with whom Arellano shared a dormitory-style cell. But her requests were routinely ignored.”
By the time Victoria received medical attention it was too late. She was taken to the facility’s infirmary two months into her detention and died from an AIDS-related infection. Several sources testified that she had been raped by a guard at the detention center, an example of rampant sexual violence against detainees. Her family filed a wrongful death lawsuit. I have not yet been able to ascertain the status of this lawsuit but I suspect that it was either dismissed or settled in favor of the DHS.
This case seems to me like an example of the death through willful medical neglect and is as much a form of murder as killing someone with a gunshot or stabbing. There are very few studies that address the denial of healthcare and medical services to immigrant detainees (e.g., Clark 2008) and even fewer peer-reviewed article on transgender detainees (O’Day-Senior 2008-09). One report, featured in the Los Angeles Magazine, affirms that 74 persons died while being held by immigration officials between 2004 and 2008. A comprehensive and authoritative Washington Post investigation from 2008 found that:
The most vulnerable detainees, the physically sick and the mentally ill, are sometimes denied the proper treatment to which they are entitled by law and regulation. They are locked in a world of slow care, poor care and no care, with panic and coverups among employees watching it happen, according to a Post investigation… The investigation found a hidden world of flawed medical judgments, faulty administrative practices, neglectful guards, ill-trained technicians, sloppy record-keeping, lost medical files and dangerous staff shortages. It is also a world increasingly run by high-priced private contractors. There is evidence that infectious diseases, including tuberculosis and chicken pox, are spreading inside the centers.
The systematic health care and medical neglect of immigrant detainees has led to direct resistance inside the facilities including a widely reported riot in April 2008 at the Mira Loma detention facility in California by inmates protesting these conditions and abuses. This was also the case with the circumstances surrounding the willful medical neglect that led to the death of Victoria Arellano. In the aforementioned LA Times article, Sandra Hernández reports that:
The task of caring for Arellano fell to her fellow detainees. They dampened their own towels and used them to cool her fever; they turned cardboard boxes into makeshift trashcans to collect her vomit. As her condition worsened, the detainees, outraged that Arellano was not being treated, staged a strike: They refused to get in line for the nightly head count until she was taken to the detention center’s infirmary… Officials relented, and Arellano was sent to the infirmary, then to a hospital nearby. But after two days there — and after having spent two months at the federally operated facility — she died of an AIDS-related infection.
The resistance of Victoria’s fellow detainees, and their noble efforts at providing her with care, is indicative of the desperate measures pursued by persons who are dispossessed, in this context of their basic civil and human rights. They have truly been reduced to the abject status of Homo sacer — reduced to bodies lacking legal or political status and barely allowed to live because they have been rendered illegible and illegal and thus disposable.
I draw several lessons from the case of the killing of Victoria Arellano and the acts of solidarity of her fellow detainees.
The regime of neoliberal governmentality (the system of the conduct of conduct) that currently dominates U.S. public policy making and the juridical order is actively dismantling investments in the ‘social sector’ — healthcare, housing, education, labor and environmental protections — and this applies to the nation’s immigration enforcement and detention infrastructure, which is a “space of neoliberal neglect” to borrow a phrase from my colleague Michelle Tellez (in press). This means our apprehension, detention, and deportation system is a form of institutionalized discrimination and state violence that violates the due process and equal protection guarantees of the 14th Amendment.
The regime harbors extremist resentiments that increase the likelihood that detention staff will target any body that fails to conform to heteronormative expectations. This too is a form of structural violence and institutionalized discrimination.
The spontaneous group culture of detainees can exhibit a surprisingly high level of camaraderie and solidarity across divisions of gender and sexuality. These patterns and practices of solidarity must be recognized and valued as models for more equitable and coeval normative orders that transcend and challenge the dominant ‘American’ mode of heteronormativity.
Finally, these lessons must become integral aspects of any discourse on comprehensive immigration reform. Indeed, the case of Victoria Arellano led to the development of a comprehensive set of proposals for reform of this regime by a diverse coalition of human rights activist organizations. (These policy recommendation were outlined in a letter submitted on September 12, 2007 to Julie L. Myers, Assistant Secretary of Immigration and Customs Enforcement, Department of Homeland Security by a coalition consists of African Services Committee, AIDS Action Council, amfAR, Bienestar, Gay Men’s Health Crisis, Immigration Equality, Latino Commission on AIDS, Less AIDS Lesotho, National Association of People With AIDS, National Center for Lesbian Rights, New York Immigration Coalition, Sylvia Rivera Law Project, Transgender Law Center.) These proposals include the following 16 recommendations for policy reform:
- Implement revised standards that are enforceable and legally binding in all ICE/DHS detention facilities, regardless of whether said facilities are operated by the federal government, private companies, or state/county/local agencies. Detainees, their families, and their representatives must have legal recourse when these standards are violated.
- Provide effective internal and external oversight of detention conditions and treatment of detainees. This would include the establishment of an ombudsman, ongoing monitoring and frequent inspections with subsequent reports released to Congress and made available to the public.
- Immediately rectify any and all breaches of detention standards, including denial of medical care.
- Increase the availability of medical personnel to see detained individuals who are in need of care, regardless of whether or not a detainee has made a formal request for care. Currently, facilities with over 200 detainees are only required to schedule “sick calls” five days a week, while facilities with fewer than 50 detainees need only provide access to medical personnel one day a week. This is grossly insufficient.
- Strengthen the DHS/ICE national detention standards to comply with human rights principles.
- Ensure that treatment regimens, including medication for HIV/AIDS and related infections and hormone therapy for transgender detainees are not interrupted.
- Adhere to international covenants and treaties mandating the humane treatment of all detainees, including the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.
- Pursue non-custodial alternatives (e.g., parole, supervised release to family members, regular reporting requirements, bond options) for immigration detainees, particularly for those individuals whose health or personal safety would be imperiled by detention.
- End the practice of prolonged and indefinite detention, which is a violation of both international and U.S. law.
- Publicly report all deaths that occur in ICE custody, refer them immediately to the Office of the Inspector General for investigation, and make the results of each inquiry available to the public as soon as it is complete.
- End the practice of placing immigration detainees with the general inmate population.
- Ensure that the safety of detainees, particularly transgender detainees is the paramount consideration when deciding whether to place an individual with the male or female population. Solitary confinement must not be considered a viable option.
- Grant transgender detainees the right to choose to be housed in a facility that corresponds with their gender identity, regardless of which sex is listed on their legal documents and/or regardless of their birth-sex.
- Revise the DOM [Detention Operations Manual] to address the particular needs of gay men, lesbians, bisexuals, and transgender men and women, including health and safety issues.
- Train all staff in all facilities where ICE detainees are held to comply with these standards and safeguard the inherent dignity of all persons.
- We are bringing this matter to the attention of our elected officials and we urge you to take prompt and necessary action to prevent further threats to health and loss of life among immigrants in ICE detention.
None of the measures actually require legislation and could be implemented via the discretionary administrative law powers of the DHS and the Executive branch. These policy shifts could be formulated and implemented by the Secretary of Homeland Security or President Obama via Executive Order. It is time for us to renew pressure on the DHS and the President to comply with the Constitutional rights guaranteed all persons within the jurisdiction of the nation; this applies to all persons and not just citizens.
The struggle for the recognition of the rights of queer undocumented immigrants continues to gather strength. There are several national organizations mobilizing to affect the course of comprehensive immigration reform. One important example of this type of mobilization is the Washington, D.C.-based Queer Undocumented Immigrant Project (QUIP). The activists with QUIP are “calling for a pathway for citizenship that doesn’t leave anyone behind” and they insist that we “will not choose one issue over the other…Protecting the unity of our immigrant families and dignity of our LGBTQ communities is at the center of our organizing and advocacy efforts.”
This means that all of us, citizens and aspiring citizens, have a moral obligation to actively resist the thanatopolitics of the U.S. government and much of our highly uncivil civic culture. We must not allow this system to render death as unspeakable. We must not allow the death of Victoria Arellano and countless others to be “silenced by the austere and pious rhetoric of nationalism”. We just force the state to make the political decision that death in detention from willful medical neglect will no longer be tolerated. Nothing less than our status as a civil society and as a nation truly committed to the democratic rule of law is at stake.
Print Sources Cited
Butler, Judith and Athanasiou, Athena 2013. Dispossession: The performative in the political. Cambridge: Polity Press.
Clark, Brietta R. 2008. The immigrant health care narrative and what it tells us about the US. Health care system. Annals of Health Law 17:229. Available at URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1888526.
Hall, Lindsay A. 2007. Death, power, and the body: A bio-political analysis of death and dying. Masters Thesis in Political Science. Virginia Polytechnic Institute and State University (May 7, 2007). Available at URL: http://scholar.lib.vt.edu/theses/available/etd-05152007-134833/unrestricted/etd.pdf (accessed May 20, 2013).
O’Day-Senior, Dana 2008-09. The forgotten frontier? Healthcare for transgender detainees in immigration and customs enforcement detention. Hastings Law Journal 60:453.
Stuart, Murray 2006. Thanatopolitics: On the use of death for mobilizing political life. Polygraph 18:193-215.
Devon G. Peña, Ph.D., is a lifelong activist in the environmental justice and resilient agriculture movements, and is Professor of American Ethnic Studies, Anthropology, and Environmental Studies at the University of Washington in Seattle. His books include Mexican Americans and the Environment: Tierra y Vida (2005) and the edited volume Chicano Culture, Ecology, Politics: Subversive Kin (1998). Dr. Peña is the founding editor of the Environmental & Food Justice blog, and is a Contributing Author for New Clear Vision.