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Subject: U.S. Immigation and transsexuals - sometimes yes, sometimes noBut "no" can be very very bad
Ftom the Village Voice
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The Gatekeeper: Watch on the INS (third part)
by Alisa SolomonTranssexual Christina Madrazo Says She Was Raped by a Guard in an INS
Detention Center. Now She's Suing the U.S. for $15 Million.
Nightmare in Miami
Christina Madrazo was waiting for the spin cycle to finish in a Miami
laundromat when she noticed something that might put an end to her
troubles: a law firm's ad in a Spanish-language newspaper that said
there were ways undocumented immigrants could become legal. Seven
years had passed since Madrazo first snuck across the Rio Grande,
fleeing the violence and rejection she had endured as a transsexual
in Mexico, and she was tired of hiding. Without legal status, she
couldn't seek legitimate work, much less pursue her dream of becoming
a fashion designer, so she'd been trying to piece together a living
with a series of under-the-table odd jobs. Often she went to bed
hungry.Worse, the fear of being deported to Mexico throbbed constantly at
the back of her mind. And if she ever forgot it, every time she
looked in the mirror a scar next to her dainty right eyebrow reminded
her of the beatings she'd taken from assailants who called her
maricón ("faggot") and insisted, with fists and heavy shoes, that
she "act like a man." At the attorney's office, she was heartened to
learn that sexual orientation was a category recognized in U.S.
asylum law. She applied right away.But instead of granting her the freedom "just to live my life and be
myself," the Immigration and Naturalization Service rejected her
plea, and on May 4, 2000, took her straight from a hearing to the
notorious Krome detention center on the swampy outskirts of Miami.
Confined there for about three weeks, Madrazo alleges she was raped
by an INS guard. Twice. On April 1, she will file a $15 million
lawsuit against the U.S. government, charging the country from which
she sought refuge with subjecting her to brutal attack. Her asylum
appeal is still pending.The lawsuit comes amid a string of high-profile embarrassments for
the beleaguered immigration agency. Last week, four top officials in
the INS were replaced in the wake of revelations that a Florida
flight school received notification that visas had been approved for
hijackers Mohamed Atta and Marwan al-Shehhi six months to the day
after they crashed jets into the World Trade Center.
After she reported the second rape, Madrazo, too, was removed from
Krome—to a psychiatric hospital where she was detained for two months
in a ward for severely psychotic people. "Were they trying to say I
was crazy?" she asks, her voice trembling. Madrazo prefers not to
talk about the suffering of the other patients, but does allow how
disturbing it is "when you are clear in your mind to be in a place
where nobody is clear in theirs." Even at the hospital, she'd be put
in leg irons and handcuffs any time she wanted to go outside for some
air. At least she was able to get her hormones and the psychiatrist
there was "considerate," she says. On July 24, 2000, in one of the
INS's famously mystifying moves, she was abruptly released. But to
this day she has nightmares about "that monster" who assaulted her.
She expects they'll go away only when she feels she has done
everything possible to defend her rights. "I need justice," she
says. "That's all. I need to be respected as a woman."Madrazo, 36, was born to a middle-class family in Coatzacoalcos, a
small coastal city in the Mexican state of Veracruz. The youngest of
eight children, she remembers a "happy and beautiful" childhood—until
she was about seven and "they realized I was kind of different." But
Madrazo had sensed since even earlier that "mentally I am a woman,
though physically I was born a man." She was constantly bullied by
kids at school, and Madrazo's own brothers tried to pound some
machismo into her. Even her mother berated her: "Why do you want to
wear those girlish clothes? Why do you have to move like that?"Madrazo found some support from a local transgender
hairdresser. "After school I would run away for a little while to see
her," she recalls. "I wanted to be like her." But Madrazo could also
see the men driving by, shouting insults and throwing things at the
salon. "I don't know how she had the strength," Madrazo says. By the
time she hit adolescence, Madrazo was plotting an escape from her
town; she was also taking female hormones, which she could buy
without a prescription at a pharmacy. At 15, she left Coatzacoalcos
for good. Until she arrived in South Beach a decade later, Madrazo
did not have a home again.Mexico's larger cities were a little easier to get lost in, but
Madrazo was dismissed from job after job when bosses decided that the
slender, 5-7 worker with long hair and tapered fingernails was just
too unsettling, too wrong, too queer for what Madrazo calls "my very
very macho country." Still, she managed to save up the $500 she
needed to get breast implants in Mexico City in the mid '80s.Soon after, Madrazo joined a traveling transvestite show, and lip-
synched her way across Mexico, performing at town fairs and hotels.
But even this troupe was expected to dress "normally" after the
curtain came down. It wasn't really a career, says Madrazo. "It was a
place for us to hide and cry together, a place for us to have some
kind of community." And the harassment never ceased. In 1991, Madrazo
crossed the border from Juárez to El Paso and immediately boarded a
bus bound for Miami. "I had heard there was an open gay community
there," she says.But Miami's gay community is one of the most conservative in the
country. Sure, some white, moneyed gay men hit the clubs in South
Beach and hit on the Latino boys who hang out in them. But
politically, there is little contact, much less common cause, between
Miami's gay Latinos and Anglos, and even less when it comes to the
trans community. "Transgender Latinos face a lot of rejection from
white gay men," says activist Luisa Rondón of the nascent group Miami
Acción Positiva.Madrazo found that scraping by in South Beach was as tough as
anywhere else. In the early '90s, she was busted twice for soliciting—
one charge she calls routine harassment that trans women often face,
the other a measure of "how desperate I was." Destitute and homesick,
she decided in 1995 to return to Mexico to make one last attempt
to "see if I could get a normal life in my country." The answer was a
swift and certain no. One friend from the troupe had died; another
was wasting away with AIDS. Getting hired in a straight job had only
gotten harder. She worked in stores for as long as they'd let her. In
1998, the beating that left the scar on her face propelled her across
the border again. This time, she would try to become legal.She had reason to hope. Immigration law had changed since she had
first fled north. On June 16, 1994, then attorney general Janet Reno
issued an order that directed immigration officials to recognize gay
men and lesbians as a "social group"—a designation required for
eligibility in political asylum cases. (The order responded to a 1989
case of a gay Cuban man, the first to be granted asylum by an
immigration judge on the basis of sexual-orientation discrimination.)Though transgender people were not explicitly named as part of
that "social group"—nor as a "social group" of their own—in
immigration courts around the country, transgender applicants were
beginning to win asylum on the basis of sexual orientation or gender
persecution. For instance, in 1997, a male-to-female transsexual from
Peru was granted asylum because she was "taunted, humiliated, and
physically attacked by her family, classmates, teachers, and
strangers on the street," and "arrested and detained [by the Peruvian
police] for being a gay man." And in a groundbreaking decision in
2000—albeit one that technically applies only locally—California's
Ninth Circuit granted asylum to Mexican Geovanni Hernández-Montiel,
asserting that "gay men with female sexual identities in Mexico
constitute a protected 'particular social group' under the asylum
statute." (The Ninth Circuit thus overturned a Board of Immigration
Appeals decision that had suggested that Hernández-Montiel merely
needed to alter his appearance—essentially, butch up—if he didn't
want to be persecuted.)Indeed, after her first hearing, Madrazo received a letter from the
INS informing her that she had conditionally been granted asylum. She
merely had to be fingerprinted and go through some other checks. At a
second hearing, she was told that the agency was having some doubts:
Authorities were concerned that she had left the U.S. and come back,
and they had also dug up the old soliciting misdemeanor. ("I am
ashamed of it," says Madrazo, "but do I deserve to be deported or
raped because of it?")The INS told her she would have to attend a third hearing before a
final decision would be made. Madrazo arrived at the hearing on May
4, 2000, carrying just a small purse. When the judge gave her the
heartbreaking news that her request for asylum was denied, she left
the courtroom to find two guards expecting her. "Come with us," one
said. For Madrazo, "It was the beginning of a big scary movie. What?
Why? Me? What is my crime? They put handcuffs on me and I was crying
all the way down the elevator and into the car." According to
Madrazo's attorney, Robert Sheldon, detentions in cases like hers are
extremely rare, even bizarre. "It was a total shock to us," he says.At Krome, authorities didn't know whether to put Madrazo in the men's
dorm or the women's. So they put her in solitary confinement.
Isolated and distraught, she struggled to find "the light in my
spirit" to keep from crumbling in her dank little cell. Ten days into
her detention, Lemar Smith was put on duty near Madrazo's cell. At
138 pounds, Madrazo felt intimated by the guard, who weighs, she
figures, 300 pounds.On Saturday night, May 13, she has detailed in the lawsuit claim,
Smith came into her cell and closed the door: "He ordered me to take
off my blouse and my brassiere. I asked, 'Why?' He responded firmly
and in a commanding way, telling me to shut up and be obedient. Lost
in terror, I decided to do what he said. He immediately ordered me to
come closer and he forced me down on a chair that was stuck to a
table next to the wall. He pulled down his zipper and took out his
penis, already erect. He took me by my back, he tightly held my neck
and pulled my hair and he ordered me to perform oral sex. I couldn't.
He told me not to vomit, took me by the neck, and shoved me against
the wall, threatening me, saying that I knew what would happen if I
said anything. Immediately afterwards, he turned me over, pulled down
my pants, and painfully sodomized me for about 15 minutes until he
heard keys and put his penis in his pants." (Smith was not available
for comment and his attorney did not answer calls. Though Smith never
testified during hearings on the allegations, his attorney maintained
that the sexual relations were consensual.)"My fear was incredible," Madrazo recalls, "I didn't know if anybody
would help me or protect me—nobody had given me simple human
treatment since they took me there. But I decided I had to fight. I
had been punished my whole life since I was little and that made me
emotionally strong."After a few days, Madrazo confided about the rape to a Krome
psychiatrist and to a representative from the Mexican consulate, who
made a visit to Krome. And with their support, she made an official
complaint to a Krome captain on May 20. But the next night, Smith
brought her dinner tray to her cell. Later, he returned. Says
Madrazo, "He did it again.""I wanted to scream, but I couldn't," Madrazo recalls. "He told me if
I say anything, I'm gonna pay. I felt so angry, so impotent. He
called me a bitch and said I deserved it, like he was glad."This time, Madrazo went to the doctor first thing in the morning, and
told what had happened. A Krome official asked her, "How are you
going to prove it?" And she gave a ready answer: "I have his sperm."
She had kept her soiled underwear as evidence.Sheldon demanded Madrazo's immediate release, but she was taken to
the psychiatric hospital. Weeks later, an immigration judge granted
her release—on a bond of $15,000, a sum far beyond Madrazo's means.
She remained in the institution while the investigation lumbered on.
The FBI had to order Smith to comply with a blood test, but the DNA
matched. "That," says attorney Sheldon, "is the only reason they
haven't deported Christina."On August 31, 2000, a month after Madrazo's July release,
investigators came up with the indictment. Last May, Sheldon was
shocked again when prosecutors let Smith cop a plea. Sheldon suspects
that the government didn't want the embarrassment of having to
explain why they'd allow a guard to keep watch over a woman he'd
raped a week before—better to agree that the sex was consensual. U.S.
Attorney Scott Ray, who prosecuted the case, discounts the theory. "I
just didn't have proof beyond a reasonable doubt," he says.What raised the doubt? Some of Madrazo's semen was found on a towel
in the bathroom of her cell. While involuntary ejaculations are
certainly possible even during a rape, Ray says that Madrazo had no
answer for why her sperm would be there, and that raised questions
about her credibility. Sheldon scoffs at this reasoning. Madrazo
wishes she could laugh at it: "What does it have to do with
anything?"Ray agrees that "there's no such thing as consensual sex" between a
detainee and a guard. "That's why it's a crime." And he also figures
that Madrazo has a good chance of winning a settlement under the tort
claims act for the distress she suffered—the burden of proof is far
lower in such civil claims than the "beyond a reasonable doubt"
standard required in criminal cases. Madrazo and Sheldon filed such a
claim in May 2000, demanding $1 million, but the government's only
reply was to ask, in a letter of September 14, 2001, for further
explanation of the damages they were seeking—and whether she would
settle for less. When such a claim is not dealt with, aggrieved
parties may sue, as long as they file within two years of the alleged
crime. So that is what Madrazo and Sheldon are ready to do.Sheldon knows that they are about to go up against "the biggest and
most powerful law firm in the world." But both are determined. Says
Madrazo, "I can't forget about it. I can't move on with my life
unless I know we tried to get justice." Now working part-time doing
alterations for a clothing shop, Madrazo knows, too, that the fight
will not only be hard. It will be ugly. "Transsexuals have the worst
reputation," she says. "They will try to find everything bad about me
and use it against me. They will try to destroy me."Sheldon acknowledges the point, but sees the case a little
differently. True, none of this would have happened to Madrazo if she
weren't transsexual. But, he says, "I see it more as an immigration
issue than as transsexual issue. Somebody comes to the U.S. and asks
for asylum, and we put that person in detention? That innocent person
seeking asylum? Where she gets raped? Immigrants just can't be
treated that way."
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This is the third of an ongoing series investigating the INS.Contact the author: asolomon@villagevoice.com
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Kitty Trauma Victim #123
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