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Thorough Implementation Required to Protect People in Department’s Custody

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

Today, as the U.S. Department of Homeland Security (DHS) rolls out its Prison Rape Elimination Act (PREA) regulations at immigration detention centers nationwide, DHS Secretary Jeh Johnson must ensure thorough implementation of these regulations to protect men and women in DHS custody.

Heartland Alliance’s National Immigrant Justice Center (NIJC) advocated for these regulations for more than a decade, following passage of PREA in 2003. While implementation officially begins today, there are too many unanswered questions which jeopardize the effectiveness of the PREA regulations and, as a result, the safety of the 400,000 individuals DHS detains each year. Therefore, DHS Secretary Johnson must act immediately to ensure that the people DHS detains are free from violence and abuse by closing these five loopholes: 

  1. The DHS PREA regulations do not immediately apply to all individuals in immigration detention and implementation in all facilities is not guaranteed.
  2. DHS uses over 250 facilities but will only “endeavor to ensure” that facilities owned by Immigration and Customs Enforcement (ICE), privately-contracted facilities, and local jails exclusively used by ICE adopt the new regulations within 18 months. There is no planned implementation of the PREA regulations at other detention facilities where nearly half of the immigration detainee population is held, leaving many thousands of people vulnerable to violence and abuse.
    • For example, NIJC client, Audemio Orozco-Ramirez, a father of seven and long-time U.S. resident, was raped when he was housed with criminal inmates at the Jefferson County Jail in Boulder, Montana in fall 2013. Although PREA regulations could have prevented his assault and assisted him with reporting it to facility officials, flawed implementation plans mean that facilities like his may not be covered in the foreseeable future. It also remains uncertain who bears the responsibility for ensuring compliance with PREA in the first place. 
  3. There is a lack of clarity regarding how PREA applies to immigration detainees held in government detention facilities or jails negotiated through the U.S. Marshals Service contracts, which account for more than half of all facilities used by ICE. As a result, no single agency has responsibility for ensuring compliance with PREA.
  4. Implementation in privately-contracted facilities and local jails is delayed until these facilities renew or substantially modify their current contracts, or begin a new contract with ICE. Further, the DHS contract renegotiation process is largely non-transparent. Many contracts persist for extended periods of time, possibly years, or routinely rollover, leaving detainees and their advocates uncertain when PREA regulations will be incorporated.
  5. Less oversight is planned for “holding facilities,” which U.S. Customs and Border Protection (CBP) uses for shorter periods of time and are already less accountable than ICE detention facilities. Under PREA, holding facilities deemed “low-risk” will only be audited every five years instead of every three years. This is particularly problematic because many holding facilities are in remote areas and are used to detain people immediately after they are apprehended, when they are most vulnerable, unaware of their rights, and without legal counsel.

In light of these flaws, NIJC calls on DHS to:

  • Accelerate the implementation timeline so that all DHS detainees are protected under PREA and oversight measures begin within 18 months. DHS must make public its implementation schedule and provide regular status updates on the incorporation of PREA regulatory provisions into facility contracts. Without access to this critical information, meaningful oversight cannot be accomplished.
  • Clarify which agencies are responsible for PREA implementation and compliance in every facility holding immigration detainees, particularly U.S. Marshals facilities.
  • Institute annual audits of all facilities used and contracted by DHS for immigration detention, including CBP holding facilities regardless of whether they are assessed as low-risk.