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Battling Prison Rape: Immigration Detainees Deserve Protection, Too

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By Joanne Lin, Legislative Counsel, ACLU Washington Legislative Office

The Department of Homeland Security assumes that mass detention is the key to immigration enforcement. But in fact, our detention system locks up thousands of immigrants unnecessarily every year, exposing detainees to brutal and inhumane conditions of confinement at massive costs to American taxpayers. Throughout the next two weeks, check back daily for posts about the costs of immigration detention, both human and fiscal, and what needs to be done to ensure fair and humane policy.

Mayra Soto, a woman who suffered persecution for her sexual orientation in Mexico, was once raped in a Mexican jail. She later fled to the United States and was incarcerated in an immigration detention facility, where she was once again raped – this time, by an immigration detention officer.

"To this day, the thought of what that immigration officer did to me makes me nauseous and fills me with fear, disgust and anger," she said in testimony before the National Prison Rape Elimination Commission in 2006, noting that she could not believe a guard who was supposed to protect her ended up causing her the most harm.

Immigration detainees, like everyone in custody, are extremely vulnerable to abuse. Language and cultural barriers, histories of state-sanctioned abuse in their home countries, and a fear that reporting abuse will result in deportation all increase the likelihood that detainees will not feel safe reporting sexual abuse and that perpetrators will not be held accountable. Immigration detainees are civil detainees, and unlike criminal detainees, have no right to an attorney.  As a result, immigration detainees may neither be aware of their right to be free from sexual abuse, nor what recourse is available if they are sexually assaulted.

Horror at custodial abuses like Mayra's pushed the Senate and the House of Representatives to unanimously pass the Prison Rape Elimination Act (PREA) of 2003. The intent of PREA to include immigration detention in its standards is clear. The statute defines "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." And statements in the House Judiciary Committee report emphasize the application of the statute's protections to both criminal and civil detainees.

While Congress intended for PREA to protect every individual in government custody, the Department of Justice (DOJ) earlier this year issued a proposed rule omitting immigration detainees from PREA coverage.  Under the proposed rules, for example, an immigration detainee in a local jail would be protected by PREA, but would lose that protection if transferred to an Immigration and Customs Enforcement (ICE) facility.

Excluding immigration detention from standards that prevent, detect and respond to sexual assault in custody is not only unjustifiable, but also unconscionable. It ignores the history of sexual assault in immigration detention, is inconsistent with the intent of PREA and the administration's own efforts at detention reform and threatens the safety of the hundreds of thousands of men, women and unaccompanied children who experience ICE custody every year.

As a first step to address the systemic problem of sexual assault in immigration custody, the Obama administration must ensure that the final DOJ rule implementing PREA covers all immigration detainees, including the hundreds, if not thousands, of victims who remain voiceless and vulnerable under the current system.

Please urge President Obama to revise the DOJ PREA rule to protect all persons in government custody from sexual abuse.