Nightmare in Miami

Transsexual Christina Madrazo Says She Was Raped by a Guard in an INS Detention Center. Now She's Suing the U.S. for $15 Million.

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.)

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