By Michael Musto
By Capt. James Van Thach told to Jonathan Wei
By Kera Bolonik
By Michael Musto
By Nick Pinto
By Steve Weinstein
By Michael Musto
By Michael Musto
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.
In addition to the relentless charges of ineptitude and inefficiencyfrom government inspection agencies as well as from members of Congress on both sides of the aislethe INS is under a constant barrage of accusations of misconduct. Last year, the Justice Department fielded 4200 allegations that INS personnel had committed, among other infractions, sexual assault, drug smuggling, theft, and even murder.
Many of those complaints involve INS detention centers, where more than 20,000 people are locked up on any given day. The chargeswhich range from denial of toiletries to threats, beatings, and sexual abuseare not so different from the sort of grievances filed by inmates in prisons. But INS detaineeswho are not serving criminal sentences, but are held pending the outcome of deportation proceedingsare not guaranteed attorneys and, as they have not been sentenced, have no idea how long they might remain shut up in detention. (According to the INS, the average stay is 40 days, but thousands, including asylum seekers, languish for months, even years.) Many don't understand English. It's easy, then, for INS personnel to abuse detaineesto coerce favors with promises of release, warnings of transfer to harsher facilities, or threats of deportation, even when the officials don't really have the power to make such decisions.
Not surprisingly, many detainees are too petrified to protestwhich means the accusations on record may be only a small fraction of the actual abuses, advocates say. Madrazo was the exception. She confided in several officials after the first rape and within days filed a formal complaint. She also went directly to officials immediately after the second.
Madrazo's allegations emboldened about a dozen of the roughly 100 women at the 500-bed, low-security facility to come forward with myriad tales of sexual misconduct, ranging from adolescent-style flirtations to downright assault. Women told advocates that guards rubbed up against them or fondled them during searches. They said guards and deportation officers propositioned them, often promising gifts of cosmetics or other contraband in exchange for sexual favors. The women described barely concealed encounters between INS personnel and detainees, from a guard masturbating while a detainee danced for him to ongoing affairs. Many who weren't involved in such liaisons said they were threatened with deportation if they snitched. Two women got pregnant at Krome that yearone after sex with a guard, another after sex with a male detainee. All told, some 15 officers were named. Nine were transferred from Krome to desk jobs after the allegations surfaced. Krome's reform-minded director abruptly resigned.
The complaints launched a federal investigation by the several agencies of the Justice Departmentthe FBI, the Office of Public Integrity, the Office of the Inspector General, and the U.S. Attorney's Office. So far, it has resulted in two convictions. In the most recent, in October, former INS guard Clarence Parker pleaded guilty to engaging in a sexual act, which he said was consensual. When he was sentenced to three years' probation in December, it was revealed that after Parker lost his job at Krome in the wake of the allegation, he was hired at a Florida facility for juvenile sex offenders. The Miami Heraldreported that a Krome supervisor had given him a rating of "very good" on a job reference. The judge at his sentencing ordered him to resign his new post immediately, saying, "It's like putting an arsonist in the fire department."
The other man convicted was Lemar Smith, the guard Madrazo says raped her. Charged by federal prosecutors with two counts of felony rape and two misdemeanor counts of "sex with a ward," and facing up to 42 years in prison, Smith pleaded guilty to the lesser charges. He was sentenced on July 24, 2001, to eight months in prison and a year's probation.
The Justice Department refuses to comment on the ongoing investigation, but advocates for detainees fear that the government has stopped far short of uncoveringand rooting outwidespread corruption and abuse. For Cheryl Little of the Florida Immigrant Advocacy Center, which provides pro bono legal assistance to Krome detainees, "It's déjà vu all over again." In 1990, the FBI was called in after detainees swore complaints that guards at Krome routinely coerced sexual favors from them. Its findings were never disclosed and, as far as advocates know, no disciplinary actions were taken. Some names of INS employees cited by detainees a decade ago come up again and again in the recent complaints, yet these officers remain on duty.
In the meantime, Krome has stopped housing women altogether. As the investigation intensified, most of the women who gave testimony were released for their own safety, and in December 2000, all of Krome's remaining female detainees were transferred to a local high-security prison called the Turner Guilford Knight Correctional Center, where some were put into solitary confinement. Amnesty International summed up the move in the title of a statement on the scandal: "Women Asylum Seekers Punished for State's Failure to Protect Them." Some witnesses to the alleged misconduct have been deported.
After she reported the second rape, Madrazo, too, was removed from Krometo 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" childhooduntil 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 solicitingone 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 ownin 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 2000albeit one that technically applies only locallyCalifornia'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 appearanceessentially, butch upif 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 menobody 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 releaseon 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 beforebetter 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 sufferedthe 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 seekingand 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."
This is the third of an ongoing series investigating the INS.
Contact the author: firstname.lastname@example.org
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