Democratic Sens. Kamala Harris and Richard Blumenthal have sent a letter to the Justice Department demanding a special counsel investigate whether immigration authorities broke the law when failing to preserve surveillance video footage of a transgender detainee who died in ICE custody.
Harris, a presidential hopeful, and Blumenthal signed the letter days after BuzzFeed News reported that ICE had deleted the surveillance footage of Roxsana Hernández, a 33-year-old asylum-seeker who had traveled to the border with a Central American caravan last spring.
"There remain significant factual disputes relating to the circumstances surrounding Ms. Hernandez's death," the Oct. 31 letter to Attorney General Bill Barr states. "Ms. Hernandez's surviving family, the United States Congress, and the American people deserve answers."
In November 2018, the Transgender Law Center and Free filed a notice of wrongful death claim, which it said was the first step in attempting to hold parties responsible in Hernández’s death.
In an Aug. 22, 2018, email, an analyst in ICE's Office of Professional Responsibility asked for a CD of the video surveillance. The footage was of Hernández’s time at the Cibola County Correctional Center (CCCC) in Milan, New Mexico. The emails were obtained through a public records request.
“The requested video is no longer available," a supervisory detention and deportation officer said in an Aug. 28, 2018, email. "The footage is held in memory up to around 90 days. They attempted to locate and was negative.”
Attorneys representing Hernández's family in a potential lawsuit said that under federal rules, ICE is required to preserve evidence, including electronic information, if it reasonably anticipates it will be part of litigation. The lawyers maintain that ICE should have anticipated being sued over her death.
Hernández was in the custody of ICE at a private prison operated by CoreCivic when she died in 2018 at a hospital in Albuquerque, New Mexico. CoreCivic, previously known as Corrections Corporations of America, is one of the largest private prison companies in the US.
ICE declined to comment, and CoreCivic said there was no indication of willful action by the company to delete the video. Digital camera equipment is not capable of retaining images beyond 90 days at Cibola, said Brandon Bissell, a spokesperson for the prison company.
Hernández had been held at the Cibola County Correctional Center, a federal prison facility in Milan, New Mexico, prior to her death.
An independent autopsy requested by the family determined the cause of death was most likely severe complications of dehydration combined with complications from HIV. The independent autopsy also found that Hernández appeared to have been physically abused before she died.
The New Mexico Office of the Medical Investigator said it did not share the conclusion that Hernández had been physically abused and said fractures of the ribs and sternum were consistent with CPR. The office determined her cause of death was multicentric Castleman disease due to AIDS.
An internal ICE report into Hernández’s death reviewed by BuzzFeed News found no indication that she was given antiretrovirals for HIV by Customs and Border Protection or ICE.
According to ICE's detention standards, HIV-positive detainees transferred from one detention facility to another must be provided with a 30-day supply of medication. Hernández was taken to two detention facilities before arriving at the facility in Milan, New Mexico. ICE said it didn't have enough time to evaluate what the most effective HIV treatment would've been before Hernández was sent to a hospital.
The detainee death review also noted that immigration officers are expected to report medical concerns or complaints to health care professionals, but none were voiced by Hernández or observed by officers.
"It is noteworthy and of concern that Hernandez was immunocompromised and ill" when ICE officers took custody of her and transferred her to two detention cites before arriving at Cibola, the report states. By the time she reached Cibola County Correctional Center, she was so ill "that a physician ordered her immediate transport to the emergency room," the review added.
Still, the detainee death review found there were no deficiencies in ICE Performance-Based National Detention Standards.
But Harris and Blumenthal said in the letter that there remain serious questions related to the circumstances surrounding Hernandez's death, including whether she suffered physical abuse while in US custody, and whether, "in light of her physical symptoms," she received appropriate medical care.