ICE Is Refusing to Release A Legally Mandated Review of Roxsana Hernandez’s Death

· Updated on November 29, 2018

ICE is refusing to release a legally-required report on the death of transgender asylum seeker Roxsana Hernandez after a bombshell autopsy suggested she was likely beaten in custody.

Per Congress, the agency must publish a report within 30 days of an in-custody death. As of Wednesday, it has been 187 days since Hernandez died after reportedly suffering complications of pneumonia.

ICE still has not released a report.

Instead, the agency erroneously claimed to INTO that its press release announcing her death constitutes its report.

“Accountability dies in the darkness that they’re creating,” said Lynly Egyes, litigation director at the Transgender Law Center (TLC), which is filing a wrongful death suit in Hernandez’s case. “They’re claiming that they have this review or that she wasn’t abused in custody, but aren’t submitting the information to those who are requesting it.”

On Monday, The Daily Beast broke the news that Hernandez was likely severely abused in custody, according to an autopsy commissioned by TLC and immigration attorney R. Andrew Free. The autopsy, obtained by INTO, noted significant hemorrhage to Herandez’s chest and wrists, consistent with handcuffs.

“The second autopsy disclosed evidence of physical abuse, with deep bruising,” pathologist Dr. Kris Sperry wrote. “According to observations of other detainees who were with Ms. Hernandez…the diarrhea and vomiting episodes persisted over multiple days with no medical evaluation or treatment, until she was gravely ill.”

On Monday, ICE attempted to discredit the autopsy by emailing media outlets off-the-record tips that Dr. Sperry resigned from his position as Georgia’s chief medical examiner in disgrace.

Sperry retired in 2015 after The Atlanta Journal-Constitution published a scathing report on Sperry’s time moonlighting as a paid forensic consultant. Sperry did not face legal action and has continued to practice in Georgia.

INTO was among the outlets to receive the off-the-record tip from ICE on Sperry. INTO is taking the exceedingly rare step of not honoring the off-the-record because the information was sent without prior agreement between INTO and ICE, and the agency has refused to corroborate its assertions.

On Tuesday, LGBTQ advocates confirmed that multiple media agencies had received the same tip from ICE and were looking into Sperry’s past.

Sperry did not respond to a request to comment for this article.

But Free, who is pursuing Hernandez’s case with TLC and hired Sperry, charged that he has never been disqualified as an expert.

“ICE can take issue with the events that led to his resignation,” said Free. “But they have not taken issue with his science, and the reason they haven’t is because he is a sound scientist.”

On the record, ICE strongly refuted claims that Hernandez suffered abuse in custody.

“A review of Hernandez’s death conducted by ICE Health Service Corps medical professionals confirmed that she suffered from a history of untreated HIV,” the agency wrote in a statement released to INTO.  “At no time did the medical personnel treating Ms. Hernandez at Cibola General Hospital or Lovelace Medical Center raise any issues of suspected physical abuse.”

Asked to provide the review into Hernandez’s death, ICE media spokespeople declined, repeatedly referencing its initial death notice and challenging INTO to submit a Freedom of Information Act Request to obtain such information.

“Pursuant to policy and as outlined in the agency’s announcement of her passing, a thorough investigation of this incident by the appropriate parties is being conducted in order to affirm that ICE protocols were followed,” wrote Jennifer D. Elzea, ICE press secretary, in an email. “The results of the review, once completed, will be available via FOIA.”

ICE, however, is required to make an initial public report on an in-custody death within 30 days and finalize it within 60 days.

Danielle Bennett, another spokesperson for the agency, claimed “the press release is the initial review. Those are typically posted within one to two days after the death occurs, well within the 30-day window.”

Heidi Altman, director of policy at the National Immigrant Justice Center, said Congress explicitly wrote language into the appropriations bill to prevent ICE from shirking its responsibility to report on the underlying facts that contribute to deaths in detention.

“It just couldn’t be more obvious that this was not the Congressional intent behind this,” said Altman. “It’s not ambiguous when you talk about death report, which is what the language says.”

INTO has submitted a FOIA request for all reports and documents related to Hernandez’s death investigation, regardless.

Photo credit: Transgender Law Center. 

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