Congress is finally extending a decade-old set of protections against sexual assault to the ballooning population of the immigration detention system, but advocates say it’s still not enough.
WASHINGTON — A decade after the U.S. Congress passed a landmark law aimed at eliminating sexual assault in prisons, the federal government is on the verge of extending those same protections to the country’s sprawling immigration detention system.
While advocacy groups are lauding the step, many are cautioning that the Department of Homeland Security has refused to incorporate multiple recommendations that immigrant rights and civil liberties activists have been urging for years. While DHS has said that other laws and regulations already cover these issues, watchdogs note that those other policies are not being adequately enforced.
Further, questions remain about when, exactly, the new rule will be implemented outside of the federal system, including in the many county and private prisons that house a significant proportion of the massive U.S. immigration detention system population.
For years, immigrants in detention or awaiting deportation from the United States have been warned of high levels of sexual abuse, and official findings have confirmed that the system has been unable to ensure either prisoner safety or adequate remediation. Yet, until last week’s finalization of new guidance, the Department of Justice had specifically exempted immigration detention facilities from the safeguards offered by the Prison Rape Elimination Act, largely due to differing interpretations of the language of the 2003 law.
“While extremely late, this is clearly a substantive step forward. By and large, the changes are strong,” Ruthie Epstein, a legislative policy analyst with the American Civil Liberties Union, told MintPress News.
“Of course, like any new policy out of D.C., the devil will be in the implementation. We certainly have concerns about certain pieces of the rule, but in general, this rule is a positive move towards preventing sexual assault and abuse for immigration detainees and providing real accountability and protection for those victims,” she said.
Among the primary concerns for advocacy groups that have been working on this issue for the past decade, is the fact that the new rule will not actually be implemented uniformly. Indeed, while the PREA safeguards are to be extended to detainees in the federal system within two months, the county and privately-run facilities that contract with DHS may not have to comply for years.
“According to the text of the rule, the federal government will only be able to incorporate these standards in contracting facilities when contracts are renewed or otherwise substantively modified,” Epstein explained.
“This raises tremendous concerns regarding the protection of detainees. Many of these contracts are auto-renewals or have terms of 10 or 20 years,” she said, “so we’re very worried about implementation.”
40 percent unreported
The PREA safeguards have remained withheld from immigration detainees over the past decade, even as the number of such detainees has swollen to record highs. Congress currently mandates that DHS’s Immigration and Customs Enforcement agency hold a minimum of 34,000 people on immigration charges every day.
Despite recent mounting pressure, the Obama administration is continuing record-high deportations, averaging around 1,100 per day. The president has now deported roughly two million people during his terms in office. (President Obama claims he doesn’t have legal authority to rein in these deportation levels, though others disagree.)
The exact extent of the sexual assault problem within the U.S. immigration detention system is unclear, however, in part because the mechanisms set up to facilitate the reporting process appear to be weak. According to official statistics, ICE formally reported 215 allegations of sexual assault between October 2009 and March 2013, but last year, an official government audit found that the ICE’s data on sexual abuse and related allegations were incomplete.
“ICE data did not include all reported allegations,” the Government Accountability Office, the federal government’s official watchdog agency, found in November. Of a sample group of facilities visited by GAO researchers, 40 percent of allegations of sexual abuse had not been reported to the ICE headquarters.
“Detainees may also face barriers to reporting abuse,” the report stated. A review of data from 2010 through 2012, for instance, found that around 14 percent of phone calls placed to a hotline within the DHS Office of the Inspector General failed to go through “because, for example, the call was not answered.”
DHS formally published the new rule last week, though it has been in the works since President Obama issued a directive in 2012. Momentum to finalize the rule also came from the re-authorization, late last year, of the Violence Against Women Act (VAWA), broad protective legislation that had been allowed to lapse due to conservative objections. That law, co-authored by Sen. Patrick Leahy (D-VT), directed DHS to comply with PREA in all of its facilities.
“This step by DHS marks important progress toward fulfilling the mission … to protect all victims from sexual assault and domestic violence,” Sen. Leahy said following finalization of the new guidance. “As I have said many times, ‘a victim is a victim is a victim.’ [VAWA] was designed to protect all victims. That includes doing all we can to prevent the sexual assault and abuse of immigrants in our detention facilities.”
The new regulations mandate that all facilities that hold immigration detainees — whether overseen by DHS or private contractors — follow a “zero tolerance” policy regarding sexual abuse.
This will include significant new training for staff members, as well as the provision of expanded education and medical services for detainees. Audits are now to be carried out every three years by an external agency, though this is far less frequent than the annual audits called for by advocacy groups.
The standards will outlaw searches of female detainees by male guards and limit the use of isolation for abuse victims, though not end the use of segregation entirely. They will also ban examinations of transgender detainees’ genitals, though concerns remain over the heightened vulnerability of LGBT detainees.
Late last year, the Center for American Progress, a liberal think tank here, examined five years’ worth of official documents obtained through Freedom of Information Act requests involving LGBT detainees held by ICE. The evidence suggested that LGBT detainees were up to 15 times more likely to be sexually assaulted than others in the system.
However, DHS has now decided that it will not comply with a range of recommendations that advocates say would have further reduced the vulnerability of LGBT detainees.
“In our experience, the transgender community is one of the most vulnerable communities throughout the criminal justice system, and we’re very disappointed that DHS did not adopt recommendations to house individuals according to their gender identity,” Claudia Valenzuela, associate director for litigation at the National Immigrant Justice Center, a legal advocacy group, told MintPress.
“We’re also disappointed that the final regulations didn’t state that solitary confinement would be used only as a last resort, particularly for vulnerable individuals. We had suggested considering alternatives to detention for individuals whose safety cannot be guaranteed in a custodial setting. There are other options out there, particularly in keeping with the ‘zero tolerance’ policy,” she added.
Still, Valenzuela also agrees that the new rule offers strong, though belated, protections, and noted that the most pressing issue now is uneven implementation.
“Even though these regulations fail to include some of the really important protections we would have liked, we still would like to see them uniformly applied across all facilities that hold immigration detainees, and we’ll continue our advocacy to get the agency to require its contract facilities to incorporate the PREA regulations in their agreements,” she said.
“To the extent that the agency declined to incorporate our recommendations due to existing policy, we will also be focusing on the other guidance that’s out there,” she said. “If you’re going to rely on existing policy as a reason not to make these reforms, then we really need to make sure that the agency is applying those other regulations.”