Immigration Article of the Day: Immigration Detention as a Violation of Transgender Detainees’ Substantive Due Process Rights by Emily Torstveit Ngara

Noncitizens in immigration proceedings are often subject to civil detention pending a final decision on their case. Transgender individuals in immigration detention are at high risk for physical and sexual assault, cruel and degrading treatment, denial of necessary medical care, and protective isolation. The well-documented harms caused to transgender individuals in detention violate Fifth Amendment substantive due process. This Article documents the harms of immigration detention specific to the transgender community, reviews substantive due process jurisprudence in the civil detention context, and analogizes Eighth Amendment claims for transgender prisoners to substantive due process claims. Immigration detention is predicated on the government’s interest in noncitizens appearing for their hearings. The Article concludes by exploring alternatives to detention that are effective enough to safeguard the government’s interest while promoting the fair application of our immigration laws and safeguarding the rights of transgender noncitizens.

KJ