Don’t Exempt These Facilities from Protection Measures
February 15, 2011
Rape is rape, whether in a federal prison, a local lockup, or an immigration detention facility. By excluding these detainees, the attorney general’s proposed standards put an already vulnerable population at even greater risk than the general prison population.
Jamie Fellner, senior counsel for the US program at Human Rights Watch

(Washington, DC) - President Barack Obama should direct the Justice Department to apply Prison Rape Elimination Act standards to detainees in US immigration facilities, Human Rights Watch and 10 other organizations said today in a letter to the president.

The office of Attorney General Eric Holder, on February 3, 2011, released proposed standards under the law for detecting, preventing, reducing, and punishing sexual abuse of people in government custody. The standards would exclude detainees in US immigration facilities even though the law calls for establishing standards for all federal, state, and local confinement facilities.

"Rape is rape, whether in a federal prison, a local lockup, or an immigration detention facility," said Jamie Fellner, senior counsel for the US program at Human Rights Watch. "By excluding these detainees, the attorney general's proposed standards put an already vulnerable population at even greater risk than the general prison population."

Other groups that signed the letter are: the American Civil Liberties Union, Immigration Equality, Just Detention International, National Immigrant Justice Center, National Immigration Forum, Physicians for Human Rights, Prison Fellowship, Southern Center for Human Rights, Texas Civil Rights Project, and the Women's Refugee Commission. The groups urged the attorney general's office to amend the proposed rules to include protection for people in immigration detention.

The Prison Rape Elimination Act, passed unanimously by Congress and signed into law in 2003 by President George W. Bush, affirmed a national imperative to protect everyone in government custody, adults and children, from sexual abuse. The National Prison Rape Elimination Commission (NPREC) was created under the law to study the causes and consequences of prison rape and to recommend national standards to eliminate it. Fellner served as one of eight members of the commission.

Sexual violence in immigration detention facilities is a serious problem. The commission's report summarized widespread accounts of sexual abuse for over two decades at the Krome immigration detention facility in Miami, Florida. A 2010 Human Rights Watch report compiled over 50 documented incidents and allegations of sexual assault, abuse, and harassment in immigration detention since the formation of Immigration and Customs Enforcement (ICE) in 2003. These may represent a small proportion of the actual cases, since immigrants in detention are often afraid to report an incident or are deported before they are able to make a report.

Immigration detention is the fastest-growing incarceration system in the US. In 2009 ICE had custody of between 380,000 and 442,000 people in about 300 US detention facilities. Some were held in service processing centers operated directly by ICE and others in contract detention facilities managed by private companies, state and county jails under contract with ICE, or facilities run by the Federal Bureau of Prisons. Juvenile immigrant detainees are held in facilities operated by the US Department of Health and Human Services. While the average immigration detainee is detained 30 days, detention can last years for some.

For the purposes of the law, Congress defined "prison" to mean "any confinement facility of a Federal, State, or local government, whether administered by such government or by a private organization on behalf of such government."

Following the plain language of the statute, the commission included immigration detention facilities within the scope of its work. One of its public hearings focused on adults and children in immigration facilities, and a Department of Homeland Security representative testified. The commission's final report included a chapter on the sexual abuse of immigrants in detention facilities awaiting administrative action on their legal status. The commission's proposed standards include special protection for these detainees to respond to their unique needs and vulnerabilities and the current lack of accountability for those who abuse them.

Every indication is that Congress intended immigration detention facilities to be subject to standards under the Prison Rape Elimination Act, the groups said. In addition to the act's inclusive definition of a prison, Congressional committee reports stress the application of its protections to both criminal and civil detainees, including immigrants. Consistent with this interpretation, the Bureau of Justice Statistics, which the act authorized to collect statistics on prison rape, includes immigration detention facilities in gathering its data.

"Attorney General Holder's exclusion of detainees in immigration facilities from the PREA standards is as unexpected as it is wrong," Fellner said. "This last-minute turnaround by the Department of Justice flies in the face of what we know about sexual abuse in immigration facilities and of Congress's commitment to protect anyone the government deprives of their liberty from rape."