MENSTRUAL JUSTICE IN IMMIGRATION DETENTION.

• Author: Gomez, Valeria
• Position: Symposium Conference: Are You There Law? It's Me, Menstruation

Abstract

The menstrual injustices experienced by noncitizens detained in immigration facilities--a particularly vulnerable subset of menstruators in carceral spaces--are largely ignored. Menstruating detainees are forced to rely on the immigration system to provide adequate access to menstrual products, and on detention facilities to engage in safe menstrual management and corresponding dignity. Unfortunately, the immigration system fails many detainees, and the defining characteristics of immigration detention--the lack of access to counsel and significant geographic and social isolation that people in custody face--exacerbate the problem. Despite these isolating factors, detainees are finding ways to share their struggles with menstrual injustices. This Essay aims to categorize, amplify, and contextualize these experiences, and the need for thoughtful reform.

INTRODUCTION

Menstrual justice combats systems that oppress people related to menstruation. (1) Immigration detention is one such system depriving menstruators of privacy and dignity. For example, Customs and Border Patrol ("CBP") detained sixteen-year-old "Maria" for four hours in a room with 100 people. Guards told her to "do it on" herself when she asked for the restroom; they also threw away her extra clothing. CBP transported her to another facility, to a 10x14 foot room containing a sink and toilet "bathroom area" with only three five-foot-high walls. Children held up blankets for privacy. Toilet paper was replenished only once a day. Maria and another girl had their periods and were each provided one menstrual pad daily. Guards failed to provide soap, more than one shower, a change of clothes, or "extra" pads, even when a girl visibly bled through her pants. Without an alternative, stained clothes and soiled underwear were worn throughout detention. (2)

While stories like Maria's are rarely heard, they are not rare. In the immigration detention system, girls, women, transgender boys and men, and nonbinary individuals rely exclusively on facility provision of adequate menstrual products and safe, dignified menstruation experiences. This Essay identifies and contextualizes detainees' experiences with menstruation and the structures that keep them hidden. Part I explains why and where noncitizens may be detained. Part II identifies existing menstrual injustices. Part III outlines proposals for reform and calls on stakeholders to talk directly with detainees to improve law and policy to provide menstrual justice in immigration detention. Ultimately, rather than opine about what menstrual justice could look like in these spaces, this Essay concludes with a call to center the voices of noncitizens with past and current experience related to menstruation in immigration detention to develop responses that provide true menstrual justice to menstruators trapped in those spaces.

1. The Immigration Detention System

   Immigration detention is a form of civil detention that largely mirrors the carceral settings in the criminal justice system. Most individuals, however, are not detained pursuant to a criminal conviction; they are held to await an immigration agency decision about whether they can stay in the United States. As a result, they have less access to counsel, to a stable physical location, or to community, social, and religious support systems. (3)

   The Department of Homeland Security ("DHS") may detain individuals in an agency or subcontractor facility in several situations. Individuals suspected of being in or trying to enter the United States unlawfully may be detained in short-term facilities, called hold rooms, for up to seventy-two hours by CBP or up to twelve hours by Immigration and Customs Enforcement ("ICE"). (4) People stay until processed and are usually later transferred to long-term detention or deported through an expedited removal.

   Noncitizens awaiting an immigration court hearing or deportation are held in longer-term immigration detention facilities. Detainees may include individuals near the border who have requested an asylum-screening interview, are contesting removability in pending immigration proceedings, or are awaiting deportation. ICE operates or works with subcontractors to operate these centers, where immigrants may wait days, weeks, months, or years. ICE also contracts with private, for-profit companies to operate detention facilities, and with government subcontractors, who reserve space in state and county and city jails or prisons. Generally, conditions for immigrants detained in longer-term facilities are barely distinguishable from those for individuals serving criminal sentences. (5) Schedules, movement, meals, phone calls, possessions, and visitors are all controlled.

   DHS may detain unaccompanied noncitizen children for a short time; thereafter, the Department of Health and Human Services' Office of Refugee Resettlement ("ORR") assumes custody while an appropriate sponsor is determined. ORR subcontracts with state-licensed facilities to provide long-term care for children, such as foster homes or shelters.

   Adults detained with their children may reside together in "family residential centers," which must comport with certain child-welfare standards. (6) Conditions are less restrictive than those in adult detention, but the facilities still control schedules, visitations, phone calls, mealtimes, and movement.

   Many of these facilities are in remote locations, severely limiting access to the outside world. Detainees rely primarily on phone calls to connect with family, social and religious support, and advocates. Consequently, the ability to ask...