Prisoner and refugee right groups are concerned that a law intended to protect all incarcerated people will not apply to undocumented individuals in ICE custody, if changes aren’t made before the law goes into effect in the coming weeks.
The Prison Rape Elimination Act (PREA) was unanimously approved by Congress and signed by former President George W. Bush in 2003. The law provides specific guidelines on how prison staff should respond to reports of sexual assault, and promotes sexual assault prevention and victim’s rights.
But, the regulations– created by the U.S. Department of Justice— do not protect or apply to individuals in held in the U.S. Department of Homeland Security’s (DHS) detention centers, said Michelle Brane of the Women’s Refugee Commission.
“Convicted criminals would receive a higher level of protection against sexual assault than immigrants, including unaccompanied children, who have not been convicted of any crime and who are in administrative civil custody,” said Brane.
More than 400,000 individuals are processed through these Department of Homeland Security facilities every year, according to DHS records. These individuals are in custody awaiting deportation proceedings.
“To have the Department of Homeland Security say that PREA rights do not apply to these individuals is absolutely outrageous,” said Pat Nolan, president of the advocacy group, Justice Fellowship.
“How can we allow this to happen? This is a stain on our national honor. When someone is in prison, we take away their ability to protect themselves. People deserve to be protected from being raped,” said Nolan.
Standards set forth by the legislation would require that all detention center have a procedure on how to handle allegations of sexual assault, complete criminal background checks for all employees and provide advanced sexual abuse training to staff.
Currently, as well as under the proposed changes, the Department of Homeland Security’s standards do not include any of these regulations, said Brane.
Immigrant rights groups and numerous legislators are requesting that the Secretary of Homeland Security, Janet Napolitano, and Attorney General Eric Holder make the tougher PREA standards apply to Department of Homeland Security detention centers, too.
Under current law, DHS detention centers have a separate, less rigid set of guidelines than those proposed by the U.S. Department of Justice.
When the law was drafted in 2003, Immigration and Naturalization Services-now known as Immigrations Customs Enforcement (ICE)- fell under the jurisdiction of the Department of Justice. But since the creation of the Department of Homeland Security in 2003, ICE has been under that agency’s jurisdiction.
Individuals in administrative civil custody do not have a right to attorney, as criminals do, and may not know that they have a right to be free of sexual abuse or how they can report sexual assaults, said Brane.
The Department of Homeland Security’s Performance Based National Detention Standards-the rules under which detention centers operate- are legally unenforceable. Or, as Jane Zurnamer of the National Immigrant Justice Center said, “They don’t have any teeth.”
If the more strict Department of Justice standards are not applied to ICE detention centers, victims of sexual assaults in these facilities will continue to suffer silently, experts say.
In 2011, the National Immigrant Justice Center filed a civil rights complaint against DHS on the behalf of 14 individuals who suffered assault in immigration detention centers. One of the victims was assaulted in an Illinois detention center.
The organization is requesting the closure of three immigrant detention centers in the Midwest; two located in Illinois. The three detention centers have been non-compliant with the Department of Homeland Security’s standards for years, said Zurnamer.
DHS could not be reached for comment.
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