by Derek Gilna

Ten years after the federal government passed the Prison Rape Elimination Act (PREA), which applied to Bureau of Prison (BOP) facilities, the Justice Department by rule has finally extended those same protections to the undocumented in Department of Homeland Security (DHS) Immigration and Customs Enforcement (ICE) facilities.  PREA was passed by Congress after numerous studies determined that federal prisoners in the BOP system were often victims of sexual assault.

Although immigrant rights organizations lauded the move, as a positive one, they were quick to point out that it will not immediately affect those individuals confined in private facilities contracting with ICE to house immigration detainees. DHS and ICE hold approximately 34,000 detainees on an average day. Additionally, Juvenile rights advocates are also concerned about the risk of sexual abuse faced by the increasing number of unaccompanied children illegally entering the U.S. in recent months.

Most experts agree that sexual abuse is underreported by at least half in the BOP system, which generally houses American citizens and adult undocumented individuals convicted of crimes.  However, such individuals have various constitutional protections available to them and access to a grievance process and legal assistance, as well as telephone and restricted internet access to the outside world.  Detained immigrants without documentation have few rights and are generally reluctant to complain about their treatment.  Such individuals are extremely vulnerable to sexual abuse by their fellow prisoners and by a number of correctional officers.  

“While extremely late, this is clearly a substantial step forward.   By and large, the changes are strong,” said Ruthie Epstein of the American Civil Liberties Union. “Of course,” she said, ”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.”

It has been difficult to determine the exact number of immigration detainees that have been sexually abused, ICE indicated that 215 allegations were made between October 2009 and March 2013.  The Government Accountability Office (GAO), however, has concluded that, “ICE data did not include all reported allegations...Detainees may also face barriers to reporting abuse.” The GAO noted that the ICE sexual abuse hotline was not answered around 14 percent of the time, “because, for example, the call was not answered.”

Claudia Valenzuela, associate director for litigation at the National Immigrant Justice Center, also welcomes the changes but said, “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 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 allegations in their agreements.”  ICE contractors are not obligated to implement the new PREA regulations until their current contracts expire.

See: “Anti-Rape Legislation to apply to immigrant prisons,” by Carey L Biron, http://www.mintpressnews.com, March 13, 2014.