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Government Recognizes Need for Sexual Assault Prevention; Fails to Create Enforceable Human Rights Protections for Detained Immigrants

Statement of Mary Meg McCarthy, Executive Director, Heartland Alliance’s National Immigrant Justice Center

After more than 10 years of advocacy by Heartland Alliance’s National Immigrant Justice Center (NIJC) and a broad coalition of allies, the U.S. Department of Homeland Security (DHS) released final Prison Rape Elimination Act (PREA) regulations. These regulations demonstrate the government’s recognition that immigrants it incarcerates must be protected from sexual violence, yet the regulations fall far short of ensuring effective safeguards for detainees, particularly sexual minorities and other vulnerable immigrants.

While we recognize the significant progress that has been made in convincing the U.S. government that it must address sexual assault in the immigration detention system, we fear that these rules will mean little to many detained immigrants who remain vulnerable to violence. In just the past six months, NIJC has provided legal counsel for three individuals who reported sexual abuse in DHS custody who would be excluded from the agency’s PREA regulations. NIJC will continue to advocate for comprehensive implementation of PREA at every facility that detains immigrants, and ensure that DHS is accountable for monitoring and enforcing these protections.

NIJC calls on DHS to:

1. Mandate the application of regulations to all forms of custody, including all contract facilities, short-term holding facilities, and transport. Until all detention centers and county jails adhere to PREA, individuals in DHS custody will be at risk of sexual assault.

  • Accelerate the PREA implementation timeline so that all DHS detainees are protected under PREA and oversight measures begin within 18 months.
  • Incorporate into the regulations the specific provisions in the 2011 Performance-Based National Detention Standards, 2012 Sexual Assault and Prevention Directive, 2013 Segregation Directive, and memos outlining the agency’s prosecutorial discretion policy. DHS’s failure to incorporate the specific provisions contained in these earlier policies and directives is contrary to a “zero-tolerance” policy on sexual abuse of detained immigrants.
  • Require annual audits of all facilities, including holding facilities. Under DHS’s current implementation and auditing timelines, many facilities will not be held accountable to implement PREA’s protections for nearly a decade.

2. Eliminate the use of solitary confinement as a form of “protective custody” for individuals who cannot be safely detained with the general prison population.

  • Establish the use of solitary confinement only as a “last resort” when other custodial options have been exhausted.
  • Require regular DHS Immigration and Customs Enforcement field office reviews of solitary confinement placements which extend beyond 14 days and require field officers to identify other housing options, such as alternatives to detention (ATD).

3. Establish more robust protections for particularly vulnerable immigrants, including transgender individuals and other sexual minorities and victims of sexual assault.

  • Require facilities to house transgender individuals according to their gender identity. When such placement is not possible, transgender individuals should be placed in ATD programs.
  • Allow all individuals who are victims of abuse while in DHS custody to apply for U visa protection, require DHS officials to sign U visa certification forms, and refrain from deporting U visa-eligible individuals while applications and investigations are pending.