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ICE must release details about transgender woman’s death, Ninth Circuit rules

San Francisco Chronicle logo San Francisco Chronicle 5/20/2022 By Bob Egelko

Immigration officials must release information they have withheld about the death of a transgender woman who was in their custody after fleeing persecution in her home country, a federal appeals court has ruled.

Roxsana Hernandez, 33, who was from Honduras, reached the border with other transgender asylum-seekers in May 2018. The court said she was in deteriorating health, with untreated HIV, but U.S. Immigration and Customs Enforcement shuttled her and the others to a series of holding centers, with no medical care and little food provided.

A week after arriving, Hernandez was transferred to a New Mexico facility run by CoreCivic, an ICE contractor, then taken to a hospital, where she died 16 days after entering the U.S. A lawsuit by her family and the Transgender Law Center in San Francisco accused ICE and U.S. Customs and Border Protection, which had also held her in custody, of causing her death through negligence and discrimination.

After the government declined to provide information about her treatment and death, attorneys filed a Freedom of Information Act suit, which produced more than 1,700 documents but no information about the cause of death or numerous emails exchanged between the agencies. U.S. Magistrate Judge Sallie Kim of San Francisco ruled that the response had been adequate but the Ninth U.S. Circuit Court of Appeals disagreed.

The Freedom of Information Act was passed “to ensure an informed citizenry, promote official transparency, and provide a check against government impunity,” Judge M. Margaret McKeown said in the 3-0 ruling, issued May 12. “Yet here the advocates’ FOIA requests met first with silence and then with stonewalling.”

Despite releasing some documents, McKeown said, the agencies failed to show their decisions to withhold others were reasonable or legally justified. For example, she said, a document on the cause of Hernandez’s death, and related press releases, were withheld because the government described them as “drafts.” The court said they must be turned over.

McKeown said the agencies also refused to search 48 email accounts, citing privacy concerns, and in the process wrongfully withheld information about decisions and communications relating to the woman’s death. They also withheld documents that allegedly involved law enforcement procedures, which are exempt from FOIA disclosure, but in the process may have wrongfully concealed guidelines about detaining and transporting immigrants, McKeown said.

She said ICE even refused to provide the lawyers with a statement Hernandez had made to CoreCivic saying she had fled Honduras because a group of gang members “raped and tried to kill me.” The court ordered the case returned to Kim so that the magistrate could oversee the legally required disclosures.

Irene Lax, a lawyer for Hernandez’s estate, called the ruling “an important victory in the nearly four-year battle to uncover truth, demand accountability and deliver justice for Roxsana, her family, her community of transgender asylum-seekers on the caravan that was transported with her, and all people in ICE’s deadly custody.”

“My sister came to the U.S. in search of safety and protection from the horrific violence she experienced as a trans woman in Honduras, and what she found instead was abuse, discrimination and neglect,” Jenny Hernández Rodríquez, sister of Roxsana Hernandez, said in a statement released by the lawyers.

ICE did not respond to requests for comment.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko

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