The Department of Homeland Security finally issues credible sexual assault protection for immigrants in detention. Will Health and Human Services follow suit?
Last week, after years of debate over whether immigrants in their custody needed protections against sexual assault, the Department of Homeland Security (DHS) released long-awaited draft regulations that detail the agency's plan to satisfy the requirements of the Prison Rape Elimination Act (PREA). It has taken enormous amounts of time and advocacy to reach this place, but this is a major victory. These regulations are a critical step for creating real safeguards to protect the human rights of immigrants in detention. Immigrants in detention -- who often do not speak English, are facing deportation and have little access to lawyers -- deserve the same protections as everyone who is in confinement in the United States.
PREA, the first legislation that intended to create a zero-tolerance policy for sexual abuse and assault in all confinement facilities, passed unanimously in Congress in 2003. Enactment and implementation of the regulations has been repeatedly delayed. When the Justice Department (DOJ) issued its draft regulations in June 2010, immigration detention was specifically excluded on the basis that DOJ regulations could not apply to DHS or the Department of Health and Human Services (HHS), in whose jurisdiction immigrants are confined.
In May 2012, the White House issued final DOJ regulations and, in a memorandum, required that all other federal agencies that confine and detain draft their own PREA regulations.
The Women's Refugee Commission welcomes DHS's draft regulations as an important step toward fundamentally reducing the threat of sexual assault and rape in immigration detention centers while creating more meaningful pathways to recourse and justice for those immigrants who are victims of assault.
The regulations are a significant improvement over previous DHS standards. According to DHS, Immigration and Customs Enforcement (ICE) records show 138 sexual abuse allegations at ICE detention facilities from 2010 through June 2012, demonstrating that despite their claim of zero tolerance for rape and sexual assault, improvements were desperately needed. Customs and Border Protection has not published statistics and has no meaningful complaint process. The new standards apply to confinement by ICE and CBP. Protections for those being held in CBP facilities is particularly significant. Until now, CBP afforded shockingly little protection against sexual assault to those in its custody and the Women's Refugee Commission has been advocating for years that they require increased oversight and accountability (see the report, "Forced From Home: The Lost Boys and Girls of Central America," and blogs, "The Changing Face of Migration: When Will the U.S. Response Change As Well?" and "Getting Away With Murder at the Border" for more).
Despite this very significant advance, some gaps do remain and the Women's Refugee Commission will be submitting comments to the agency regarding critical improvements, including protections and U-Visa (a special visa available for victims of crime) certification for victims of sexual assault, comprehensive independent audits and protections against deportation while an investigation is being conducted.
Once the regulations are finalized, implementation of the standards will be critical. New regulations are useless if they are not taken seriously. DHS cannot delay in ensuring that all its contracts include full compliance with the standards. This includes regular, independent audits of DHS facilities, comprehensive training and access to resources for facility and agency officials, and perhaps most importantly, ensuring that local officials are well versed both in how to foster safer environments in immigration detention but also held accountable to ensure that individual cases of assault are investigated and that victims have access to justice.
In all of these cases, detention should be avoided unless necessary to ensure appearance or for national security purposes. In addition to the hundreds of thousands of migrants held in detention each year by the Department of Homeland Security, the Department of Health and Human Services (HHS) is charged with the care and custody of thousands of unaccompanied minors who come to the United States seeking protection or reunification with family.
While DHS has acted decisively in response to the President's Memorandum, we are still awaiting action from HHS. The Women's Refugee Commission has been anticipating a formal statement from HHS, which uses a wide range of facilities and contracts for the custody of these children, explaining their position regarding PREA rulemaking. We have written expensively on this issue and the importance of not leaving these particularly vulnerable unaccompanied children without critical protections. (See, for example, "Unaccompanied Children Must Be Protected by the Prison Rape Elimination Act" and "It's Time to Protect Women and Children in Immigration Detention from Rape.")
HHS contracts with a wide range of facilities from foster care or secure confinement for children in its custody. Many of these facilities, while providing critical care to children, are locked, surrounded by fences and have rigid restrictions on telephone calls and visitation. Current policies and procedures do not provide sufficient protections. While no official statement has been made at this time, HHS has indicated that it will be publishing for comment in the Federal Register critical portions of its Policies and Procedures Manual that are being revised to afford stronger protections against sexual assault and rape for children in their care.
While we are disappointed that HHS does not recognize that its facilities constitute confinement under PREA's definition, the revisions are expected to be a significant step towards providing these vulnerable children with the protection they need and deserve. Ultimately this is our primary concern and we look forward to the opportunity to review improved procedures drafted by HHS in early 2013.