A Policy Brief from Heartland Alliances National Immigrant Justice Center

Defending Human Rights & Due Process

August 2011

The Prison Rape Elimination Act

Obama Must Protect Immigrants from Sexual Assault
Congress passed PREA to prevent sexual violence in all U.S. prisons and jails, but the Obama administration refuses to apply the law to immigration detention.
Sexual violence is pervasive in Americas prisons and jails. An estimated 88,500 inmates reported at least one incident of sexual victimization by another inmate or facility staff in 2008 and 2009.1 The actual number of assaults was likely higher because sexual abuse often goes unreported. Congress took an important step to prevent sexual abuse in prison when it passed the Prison Rape Elimination Act (PREA), which set a zero-tolerance standard for prison rape and created guidelines to hold correctional facilities accountable for protecting inmates.2 But the Obama administration refuses to apply these protections to the 400,000 immigrants, refugees, and asylum seekers it detains every year, even though a 2010 report by Human Rights Watch uncovered numerous allegations of sexual abuse in immigration detention facilities.3 Attorney General Eric Holders proposed regulations for PREA exempt detention centers, prisons, and county jails if they have contracts with the Department of Homeland Security (DHS) to hold immigrants.4

Protection from sexual abuse should not depend on where an individual is incarcerated: It must be universal.
U.S. Attorney General Eric Holder in his introduction to proposed PREA standards in the Federal Register

This exemption is flawed and dangerous. It violates basic human rights standards and undermines Congresss intent to ensure that all people detained in the United States are safe from rape and sexual assault.5 It also contradicts recommendations of the National Prison Rape Elimination Commission, a nonpartisan task force Congress established to draft the PREA regulations. The commission noted that detained immigrants heightened vulnerability and unusual circumstances require special intervention.6 The attorney generals decision to deny basic protections to thousands of detained immigrants betrays his own recognition that [p]rotection from sexual abuse should not depend on where an individual is incarcerated: It must be universal.7 NIJC continues in partnership with Just Detention International, the DHS-NGO Enforcement Working Group, and other nongovernmental organizations to press the Obama administration to apply PREA to all detention facilities that hold immigrants.
www.immigrantjustice.org

Defending Human Rights & Due Process Policy Brief

Why Detained Immigrants Need PREAs Protections

Immigrants face particular challenges that prevent them from reporting abuse, including: Language barriers: Many detained immigrants have limited English skills and are unable to find trusted interpreters to help them report abuse. Fear of retaliation: Immigrants fear that reporting assaults will exacerbate the abuse or even lead to deportation. Lack of legal counsel: Unlike criminal defendants, detained immigrants do not have a right to appointed counsel and are often unaware of the rights they do have. Many cannot locate lawyers or other advocates to help them report abuse. Post-traumatic stress: Many detained immigrants have suffered sexual abuse or other violence in their home countries. They may be too afraid, or too traumatized, to report abuse when it happens in DHS custody. In recent years, our nations prisons have made progress in preventing and responding to sexual assault and harassment, largely thanks to the Prison Rape Elimination Act. Given the recent reports of abuses in immigration detention centers, it is clear that strong protections against these abuses need to be implemented in these detention centers as well. We urge implementation of strong standards reflecting the purpose of the Prison Rape Elimination Act in all correctional facilities, including immigration detention facilities. Letter to DHS Secretary Janet Napolitano and U.S. Attorney General Eric Holder, signed by 38 members of the U.S. House of Representatives, June 29, 20119

Systemic Abuse Against Sexual Minorities in ICE Custody

Raquel, a transgender woman held at county jails in Illinois and Wisconsin, describes her experience in DHS custody as living in hell. Jail officers placed her in solitary confinement. Her only human contact was with jail officers who yelled at her, used homophobic slurs and other degrading names, and physically assaulted her. NIJC filed a mass civil rights complaint in April 2011 to DHS on behalf of Raquel and 13 other transgender and gay immigrants who suffered assault and mistreatment in immigration detention. The complaint urges the Obama administration to address a systemic breakdown that fails to protect sexual minorities and other vulnerable populations from mental and physical abuse in DHS custody. Many of these women and men came to the United States to escape persecution in their native countries, only to face violence in the detention system. Since NIJC filed the complaint, policy makers and advocates from across the country including 38 members of Congress and members of the New York City Council have spoken out to defend the rights of detained lesbian, gay, bisexual, and transgender immigrants and to call on the Obama administration to apply PREA to immigration detention facilities.

2 - Heartland Alliances National Immigrant Justice Center

www.immigrantjustice.org

August 2011

PREA Reduces Sexual Assault in Prisons and Jails

DHS has failed to protect men and women in its custody from sexual assault. It is time for the Obama administration to apply PREAs common-sense standards to all immigration detention facilities. According to PREAs proposed regulations, detention facilities must, among other requirements: standards p Provide adequate staffing to ensure PREAsthe detention are enforced, including proper oversight of population and staff to prevent assaults

PREA and International Law

The Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR), both ratified by the United States, prohibit the mistreatment of individuals in government custody: ICCPR Article 10: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. CAT Article 1 & 16: States are accountable for actions done with the acquiescence of a public official or other person acting in an official capacity. The United Nations Committee Against Torture has expressed concern about the United States mistreatment of detained immigrants and the sexual abuse to which they are subjected.10

p Post written instructions on how to report sexual abuse reports p Investigategroups orfiled through third parties such as advocacy legal counsel p Provide access to confidential emotional support services p Establish internal protocols for responding to reports p Create protocols to ensure that detainees who report
assaults are not subject to retaliation compliance

p Allow independent organizations to audit PREA

Isolated and Vulnerable: Asylum Seeker Cut Off from Help After Sexual Assault
A Thai asylum seeker was sexually assaulted by criminal inmates while in DHS custody in a Wisconsin jail. She reported the assaults to jail guards who refused to help, even after one attack resulted in hospitalization. Because the jail facility did not allow her to have a private telephone conversation, she could not safely tell her lawyer about the incident for three months. Her lawyer intervened and she finally was transferred to another local facility. The victim continued to suffer emotional trauma for several months after she was released from detention. Under PREA, the jail would have been required to provide adequate monitoring as an ongoing prevention measure and to promptly address the womans incident reports, ensure her safety, and provide emotional support services.

www.immigrantjustice.org

Heartland Alliances National Immigrant Justice Center - 3

Defending Human Rights & Due Process Policy Brief

Protect the human rights of detained immigrants

Tell U.S. Attorney General Eric Holder to uphold his committment to universal protection for all people in American prisons and jails. Ask him to implement the PREA regulations and include immigration detention facilities as mandated by Congress and international law. Send an email to Attorney General Holder at www.immigrantjustice.org/action/prea or call (202) 353-1555.

Take Action

More Resources
Combating Rape in Prisons, Little and Late, Just Detention International, May 2011. http://www. justdetention.org/en/jdinews/2011/05_05_11.aspx Prison Rape and the Government, The New York Review of Books, March 2011. http://www.nybooks. com/articles/archives/2011/mar/24/prison-rape-andgovernment/?pagination=false&printpage=true National Standards to Prevent, Detect, and Respond to Prison Rape (Proposed Rules), Department of Justice, Federal Register 76, No 23., February 2011. http://www.ojp.usdoj.gov/ programs/pdfs/prea_nprm.pdf Detained and at Risk, Human Rights Watch, August 2010. http://www.hrw.org/en/node/92629 Prison Rape Elimination Act of 2003, Pub. L. 108-79, 117 Stat. 972 (2003), 42 U.S.C.A. 15601-09. Available at http://www.justdetention.org/pdf/PREA.pdf

Sources: 1. Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-09, Bureau of Justice Statistics. http://bjs. ojp.usdoj.gov/content/pub/press/svpjri0809pr.cfm

2. Prison Rape Elimination Act of 2003, Pub. L. 108-79, 117 Stat. 972 (2003), 42 U.S.C.A. 15602. 3. Detained and at Risk, Human Rights Watch, August 2010, p. 3. http://www.hrw.org/en/node/92629 4. National Standards To Prevent, Detect, and Respond to Prison Rape (Proposed Rules), Federal Register 76:23 (February 3, 2011), p. 6265. http://www.ojp.usdoj.gov/ programs/pdfs/prea_nprm.pdf (accessed August 3, 2011) 5. The provisions of this legislation, including both the reporting requirements and the standards and protections developed by the Attorney General, are intended to apply to all individuals detained in the United States in both civil and criminal detentions. U.S. House Committee on the Judiciary, Report on the Prison Rape Reduction Act of 2003, 108th Cong., 1st sess., 2003, H. Rept. 108-219, p. 14. http:// frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_ cong_reports&docid=f:hr219.108.pdf (accessed August 9, 2011) 6. National Prison Rape Elimination Commission Report, June 2009, p. 36. http://cybercemetery.unt.edu/archive/ nprec/20090820155502/http://nprec.us/files/pdfs/NPREC_ FinalReport.PDF (accessed July 13, 2011) 7. Federal Register, p. 6250. 8. National Prison Rape Elimination Commission Report, p. 175. 9. Representatives Judy Chu and Jared Polis, et. al., in letter to DHS Secretary Janet Napolitano and U.S. Attorney General Eric Holder, June 29, 2011. http://www.immigrantjustice.org/stop-abuse-detained-lgbt-immigrants 10. Human Rights Watch, p. 4.
4 - Heartland Alliances National Immigrant Justice Center

Heartland Alliances National Immigrant Justice Center (NIJC) is a Chicago-based nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees and asylum seekers through a unique combination of direct services, policy reform, impact litigation, and public education. NIJC gratefully acknowledges the U.S. Human Rights Fund for its support of this publication. NIJC is solely responsible for the content of this document. Contact NIJCs Director of Policy Jane Zurnamer at (312) 660-1344 or jzurnamer@heartlandalliance.org

www.immigrantjustice.org