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Migrants watch others stand next to the border wall in Ciudad Juarez, Mexico, Dec. 21, 2022, on the other side of the border from El Paso, Texas. (AP) Migrants watch others stand next to the border wall in Ciudad Juarez, Mexico, Dec. 21, 2022, on the other side of the border from El Paso, Texas. (AP)

Migrants watch others stand next to the border wall in Ciudad Juarez, Mexico, Dec. 21, 2022, on the other side of the border from El Paso, Texas. (AP)

Grace Abels
By Grace Abels May 9, 2023

Democratic bill doesn’t ban detaining LGBTQ+ immigrants, but sets criteria DHS must meet to do so

If Your Time is short

  • U.S. Sen. Cory Booker, D-N.J., introduced a bill that sets standards that the federal government must meet to detain "vulnerable persons," this classification would apply to LGBTQ+ people.

  • The bill would establish a "presumption of release" for most migrants and favor placing LGBTQ+ migrants in "community-based supervision programs." Experts say that LGBTQ+ immigrants in detention are more vulnerable to sexual assault, violence, and harassment. 

  • The bill would not "ban" the detention of LGBTQ+ people. They could still be subject to detention if there was evidence that they were a flight risk or threat to the community.

Immigration and LGBTQ+ issues are regular fodder for Fox News discourse. In a recent broadcast, the two issues intersected.

"Democrats are giving illegal migrants another tool to break into our country," Fox News personality Will Cain said April 24 on "Jesse Watters Primetime."  "This week, they introduced a bill that would ban detaining gay illegal immigrants. If a migrant gets caught crossing the border, all they would have to say is they are gay or lesbian or bisexual or trans and then Border Patrol lets them go, they are out of detention."

Cain was referring to S. 1208, also called the "Dignity for Detained Immigrants Act of 2023," which was introduced in the House in 2021 and recently reintroduced in the U.S. Senate by Sen. Cory Booker, D-N.J. The legislation is unlikely to become law in the current divided Congress. 

The bill would establish a "presumption of release" for all migrants waiting for a judge to hear their case against deportation. To continue to detain people after they are initially taken into custody, the Department of Homeland Security would have to provide evidence that they’re a flight risk or danger to the community. It outlines additional criteria to detain "vulnerable persons," including LGBTQ+ people. 

If the bill became law, it would not categorically prohibit detaining LGBTQ+ migrants, but would require DHS justification for why traditional detainment was necessary.

A spokesperson for Fox News pointed PolitiFact to the bill but otherwise did not respond to a request for comment.

Will Cain on Jesse Watters Primetime on April 24, discussing the Dignity for Detained Immigrants Act

Several factors determine who is detained

Title 42 is a public health policy that since March 2020 allowed Border Patrol to quickly expel migrants arriving at the border, without letting them apply for asylum.

After Title 42’s May 11 expiration, most migrants coming to the United States without documentation will face the possibility of detention if they’re let into the country.

Migrants who fear returning to their home countries can request asylum. Asylum officers first interview the migrants to determine if their fear is credible and if so, they are detained or released into the U.S. to wait for an immigration judge to hear their cases. 

With limited detention space, U.S. Immigration and Customs Enforcement officers decide whom to detain and whom to release by considering a migrant’s criminal history, flight risk and whether they pose a credible threat to the community. Migrants who are not detained may be released on parole and given a "notice to appear" before an immigration judge.

Deciding whom to detain isn't new. Every administration can change the guidelines ICE officers need to consider. The Obama administration introduced guidelines for detaining transgender migrants. Biden’s administration outlined certain enforcement and detainment priorities, but courts partially blocked them.

New legislation would change detention for all migrants

Booker’s bill would establish a "presumption of release" for migrants awaiting removal hearings — and this change would apply to all migrants, not just LGBTQ+ people. After taking initial custody, it would require DHS to provide "clear and convincing evidence" that the migrant was a flight risk or a threat to the community and merited detention.

"The presumption of release isn't necessarily a higher bar to detention," said Rebekah Wolf, policy counsel at the American Immigration Council, but "it's putting the burden back on the government to prove why someone should be detained as opposed to an immigrant having to prove why they shouldn't be detained."

"Presumption of release" applies only to pre-hearing detention, said Rick Su, a University of North Carolina law professor. Once someone has been issued a final order for removal the bill’s LGBTQ+ protections do not apply. 

Additionally, the bill sets an even higher standard for the detention of "vulnerable persons," which include people who are:

For this group, DHS would have to demonstrate "that it is unreasonable or not practicable" to place them in a "community-based supervision program," as opposed to detention. 

Booker spokesperson Maya Krishna-Rogers said the proposal aims to provide "more humane and effective alternatives" to detention. 

"We’ve heard stories of the inhumane treatment suffered by immigrants in detention centers, and these abuses are often amplified for members of vulnerable communities, including women, survivors of gender-based violence, asylum seekers, people under the age of 21, and LGBTQ+ people," Krishna-Rodgers said.

The bill would establish a community-based supervision program, "outside of the purview" of ICE that could provide alternatives to detention and support services. 

But experts were clear: The bill does not say you cannot detain vulnerable migrants, including LGBTQ+ people, it just outlines higher standards that must be met to do so.

"The idea that it's a ‘get out of jail free’ card is just not accurate," said Wolf. 

The bill makes it no easier for LGBTQ+ people to be granted asylum, either; it affects detention only in the interim. "They all still have to establish in front of a court that they have a basis for being here and if they can't establish that, then they will be deported," said Wolf.

Experts say LGBTQ + migrants face unique vulnerabilities in detention 

As in American prisons, LGBTQ+ detainees are at higher risk of sexual assault and can be subjected to virulent homophobia and transphobia creating "an atmosphere of hostility and fear," said Bridget Crawford, legal director at Immigration Equality, an LGBTQ and HIV-positive immigrant rights organization. 

Crawford noted instances of medical malpractice, preventable deaths, and prolonged use of solitary confinement, sometimes for a person’s protection, that can have serious mental health consequences. 

Wolf said that detained LGBTQ+ people are more vulnerable to abuse by other detained people and by guards.

Our ruling

Cain said Democrats "introduced a bill that would ban detaining gay illegal immigrants."

S. 1208, sponsored by a Democrat, sets standards that the federal government must meet to detain "vulnerable persons.’" This classification includes LGBTQ+ immigrants, but doesn’t outright "ban" their detention. 

LGBTQ+ people who are flight risks or threats to the community can still be detained — but it would be up to immigration officials to prove that they meet that detention threshold.

We rate Cain’s claim Mostly False. 

Our Sources

Interview with Rick Su, a law professor at University of North Carolina, May 2, 2023

Interview with Rebekah Wolf, policy counsel at the American Immigration Council, May 2, 2023

Interview with Colleen Putzel-Kavanaugh, Research Assistant with the U.S. Immigration Policy Program at the Migration Policy Institute, May 2, 2023

Email and Phone Interview with Bridget Crawford, Legal Director at Immigration Equality, May 3-4, 2023

Email Interview with Maya Krishna-Rogers, Press Secretary for U.S. Senator Cory Booker, May 8, 2023

U.S. Congress, "S.1208 - Dignity for Detained Immigrants Act of 2023," April 19, 2023 

Axios, "U.S. braces for border chaos with Title 42 set to expire next week," May 2, 2023 

Congressional Research Service, "Expedited Removal of Aliens: An Introduction," March 25, 2022

American Immigration Council, "Asylum in the United States," August 16, 2022

Department of Homeland Security, "Credible Fear," December 12, 2022

Congressional Research Service, "The Law of Immigration Detention: A Brief Introduction," September 1, 2022

Associated Press,"What happens when migrants arrive at US border," June 26, 2019

Immigration Justice Campaign, "Parole from ICE Detention: An Overview of the Law," April 15, 2020 

U.S. Immigration and Customs Enforcement, "Further Guidance Regarding the Care of Transgender Detainees," June 19, 2015 

The Washington Post, "Federal court partially blocks Biden ‘priority’ system for immigration enforcement," March 22, 2022

American Immigration Council, "Federal Judge Blocks ICE Enforcement Guidelines and Attempts to Upend Prosecutorial Discretion," August 19, 2021

Prison Policy Initiative, "Visualizing the unequal treatment of LGBTQ people in the criminal justice system," March 2, 2021

NBC News, "LGBTQ migrants 97 times more likely to be sexually assaulted in detention, report says," June 6, 2018

The New Yorker, "The Harrowing, Two-Year Detention of a Transgender Asylum Seeker," October 31, 2019

The New York Times, "Independent Autopsy of Transgender Asylum Seeker Who Died in ICE Custody Shows Signs of Abuse," November 27, 2018

American Civil Liberties Union New Mexico, "Detention Conditions Impacting the Safety and Well-Being of LGBTQ Immigrants in the Otero County Processing Center," March 25, 2019

House Appropriations Committee Hearing, "Fiscal Year 2024 Request for the U.S. Immigration and Customs Enforcement Agency," April 18, 2023 

Fox News,"Jesse Watters Primetime," April 24, 2023 

U.S. Immigration and Customs Enforcement, "Guidelines for the Enforcement of Civil Immigration Law," September 30, 2021

International Journal of Transgender Health, "Latinx trans immigrants’ survival of torture in U.S. detention: A qualitative investigation of the psychological impact of abuse and mistreatment," July 19, 2021

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Democratic bill doesn’t ban detaining LGBTQ+ immigrants, but sets criteria DHS must meet to do so

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