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Gay detainee accuses immigration authorities of endangering his life

KEN WILLIAMS | San Diego Gay and Lesbian News
Friday, April 5, 2013
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SAN DIEGO – A 26-year-old gay man is accusing two immigration guards in El Centro, Calif. of making anti-gay slurs at him, violently roughing him up while in custody, and putting in danger his health and his life.

He is pleading for immigration officials to give him a crucial medicine needed to prevent seizures and a special diet necessary to control his colitis.

Ivan “Max” Flores Acosta, of New York City, attempted to enter the United States from Mexico on March 15 without having legal paperwork. Immigration authorities detained him at El Centro Service Processing Center in California’s Imperial County. What happened to Acosta while he was in custody at the processing center will be detailed later.

Ivan “Max” Flores Acosta

Ivan “Max” Flores Acosta (left) and his fiancé Donald Ziccardi

Acosta’s background

Acosta has lived in the United States since he was 13, when his family legally arrived here carrying visas. He was raised and schooled in South Carolina, and briefly attended the University of Charleston. At age 19, he moved to New York.

Lately, Acosta has been working part time and attending classes full time at a community college with the goal of eventually going to Columbia Law School and becoming a lawyer.

About 2½ years ago, Acosta met Donald Ziccardi, and they fell madly in love. A while ago, the couple began talking about getting married in New York, where same-sex marriage is legal.

“We were going to get married on New Year’s Eve, but that never happened,” Ziccardi, the fiancé, said late Thursday night from his home in the Big Apple. “Then we talked about a Valentine’s Day wedding, and for some reason or another, we didn’t.” Regret and despair laced his voice.

Because the Defense of Marriage Act (DOMA) discriminates against gay and lesbian couples who marry, a legal same-sex marriage would still not have allowed Ziccardi to sponsor Acosta for a green card, even though straight binational couples can do that.

Ziccardi calls his fiancé “Max” and clearly loves his younger partner. “Max is a smart kid. He’s very articulate; he’s very, very bright.”

In February, the sky fell on Acosta. His story took an unbelievable turn that has separated him from the person he loves, from his family, from the life he has known for the past 13 years, from his work, and from his studies. There is no guarantee that he will ever be allowed to return to New York City, to reunite with Ziccardi, or to marry the man of his dreams.

Stories like Acosta’s play out over and over again. According to the Human Rights Campaign, an estimated 1 million LGBT adult immigrants live here, of which about two-thirds are documented and one-third are undocumented.

Stories like Acosta’s and Ziccardi’s – binational couples who want to marry and live happily ever after – continue to tug at heart strings. HRC estimates that 32,300 LGBT binational couples are living in the U.S. today. And until DOMA is struck down by the U.S. Supreme Court or repealed by Congress, these same-sex couples are being split apart whenever the government gets involved.

How the sky fell on Acosta

A simple misunderstanding at a New York pharmacy triggered Acosta’s nightmare.

“Max was in CVS pharmacy and took out of his gym bag a moisturizer to apply to his face,” Ziccardi said. “The assistant store manager accused him of ‘stealing’ the product and called the police.”

Acosta said he was taken to a police precinct, where he was fingerprinted and held in temporary custody. Acosta said he was told that he was going to be released within hours because there was not enough evidence for an arrest.

Ziccardi confirmed Acosta’s story, saying the case was subsequently dismissed because the District Attorney’s Office agreed that the product had been used before. So, to this day, Acosta’s record is clean, never having committed or been convicted of a crime.

But a scan of Acosta’s fingerprints brought in the U.S. Immigration and Customs Enforcement (ICE) because his student visa had expired in 2011, Acosta said Thursday afternoon during a lengthy cell phone call from the Otay Detention Facility in Otay Mesa. Acosta had attempted to speak with San Diego Gay & Lesbian News on Wednesday afternoon via a public telephone at the facility. But the call, which was being monitored by authorities, was abruptly cut off and the private phone number was blocked by ICE and further attempts to speak to SDGLN failed. On Thursday, Acosta was successful in talking to SDGLN by using a cell phone he was able to borrow.

Deported to Mexico

Last month, ICE transported Acosta from New York to Brownsville, Texas, and deported him across the Rio Grande to Matamoros in the Mexican state of Tamaulipas.

Acosta found himself alone in a country that is foreign to him even though he is a native, and separated from everything near and dear to him.

“I tried to come home,” Acosta said. “All of my family lives in the United States. I don’t know anybody in Mexico and I don’t have a home or a job there. … I feel like I’m an American. I grew up here. I feel like I belong here. I felt out of place in Mexico.”

Acosta has even participated in the American political process: “I worked for the Obama re-election campaign last year,” he said.

From Matamoros, Acosta and a few other deportees took a bus to Tijuana, where they hoped to find a way to cross the border.

His plan, Acosta said, was to ask for political asylum once he crossed the border because he did not feel safe in Mexico as an openly gay man. Although same-sex marriage has been legalized in Mexico City and Oaxaca, many parts of Mexico have not transformed as quickly on LGBT rights. For example, SDGLN news headlines over the past two years have told of the murder of an openly gay U.S. journalist in Mexico City, the torturing and killing of a transgender woman near Monterrey, and the fatal bashing of an LGBT leader in Chilpancingo.

What happened in El Centro?

Acosta said immigration authorities in El Centro mocked him for asking for political asylum and made fun of him for being openly gay.

When authorities decided to move him to the Otay Detention Facility in San Diego County, Acosta said, a male guard treated him badly. Acosta, who is 5-8 and weighs 140 pounds, described his attacker as a bilingual Latino man who was about 5-11 and weighing about 185 pounds.

“I was lying in bed when the officer called my name,” he said. “Pick up your shit! You’re leaving.”

Confused, Acosta said he asked where they were taking him. The guard told him to shut up and barked orders at him to collect his belongings.

“He pushed me. I kept walking,” Acosta recalled. “He yelled at me: ‘What’s wrong with you? You walk like a girl! Are you a homo?’”

Acosta said he told the guard: “I’m gay, and that doesn’t mean that I don’t have any rights.”

That statement seemed to infuriate the guard, who with a tone of disgust spit out: “You faggots are the worst!”

Acosta said the guard jumped him and choked him. “You are shit!” the guard yelled as he grabbed Acosta’s arms at the shoulder and began violently shaking the detainee’s body. “I swear I’m going to break your head wide open!”

The threat terrified Acosta, who suffered a skull fracture about 10 years ago and lost a piece of his skull. Acosta must deal with non-epileptic post-traumatic seizures, Ziccardi said, and needs a daily medication called Midazolam that helps control seizures. Acosta said ICE has denied his request for his medicine. He also has a condition called ulcerative colitis, which requires a special diet that is also being denied him. Acosta said the colitis has flared up since he has been detained.

Meanwhile, another male guard tried to calm down the agitated officer, who told his buddy that Acosta was “a faggot.”

“He kicked me, then I ran toward where they discharged detainees,” Acosta said. “Another detainee told me to look at my shoulder, and that’s when I realized that I had been injured.”

Acosta then decided to memorize the guard’s name.

“When he saw me looking at his name tag, that angered him even more,” Acosta said. “He grabbed my shirt and tried to lift me off the floor. … He grabbed my jaw, and hurt me.”

“Why do you want my name?” the guard asked, and threatened him again if he ratted on him.

Acosta said he had a cowboy hat and boots among his possessions, and the guards began humiliating him about being gay. “Homos aren’t allowed to get married,” one of the guards said, mentioning California’s Proposition 8.

The tormenting finally stopped when a female guard arrived on the scene.

“She had heard them making fun of me for being gay,” Acosta said. “She called them horrible beings. She encouraged me to report them.”

Waiting game

Acosta is waiting to hear back from an immigration lawyer … and waiting and waiting. Too many detainees, not enough immigration lawyers.

Ziccardi is feeling helpless, and through a media contact reached out to SDGLN for help.

“It is unbelievable what the immigration policies are and the way they treat immigrants,” he said.

The ordeal is taking its toll on both men. Acosta’s health is endangered. Ziccardi said he is not doing all that well either, worrying about the love of his life and clinging to hope that they will soon be reunited and can finally get married.

“The slow wheels of justice,” Ziccardi said. “Max won’t have his case looked at for another four to six weeks.”

Ziccardi fears for Acosta’s safety.

“Being gay (in detention) is a license to be abused,” Ziccardi said. He is highly critical of the two guards and their treatment of Acosta. “They put his life in danger,” he said, and confirmed that Acosta has filed a complaint against the two guards with ICE. To date, no authorities have responded to the complaint.

“I feel discriminated against and ignored,” Acosta said. “After filing the report, nobody has gotten back with me.

“I hope that justice will be served in my case.”

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