September 12, 2011 Review Panel on Prison Rape U.S.

Department of Justice 810 Seventh Street NW Washington, DC 20531 Current Exclusion of Immigration Detention Facilities from the PREA Protections Dear members of the Department of Justices Review Panel on Prison Rape, Thank you for providing us with an opportunity to submit testimony concerning the exemption of immigration detention facilities from the proposed regulations under the Prison Rape Elimination Act (PREA). In his introductory remarks regarding the implementation of PREA, Attorney General Holder confirmed Protection from sexual abuse should not depend on where an individual is 1 incarcerated: It must be universal. There is no justification for failing to apply this principle to immigrants and asylum seekers who are in U.S. federal custody. In fact, the National Prison Rape Elimination Commission a nonpartisan task force Congress established to draft the PREA regulations recognized that detained immigrants require special intervention due to their heightened vulnerability and unusual circumstances. 2 Failing to apply the PREA standards to immigrant detainees who are held in civil, not criminal custody, blatantly ignores these realities. Detained Immigrants are Particularly Vulnerable to Sexual Abuse in Custody We are in a unique position to attest to the particular challenges that individuals face in immigration detention. 3 Immigrants in custody of the Department of Homeland Security (DHS) face numerous obstacles that make them highly vulnerable to sexual assault. Many detained immigrants are either unable or unwilling to report sexual abuse due to language barriers, cultural differences, and a fear that reporting abuse will result in deportation or retaliation by prison guards. The fear of reporting assault is often exacerbated by a history of sexual violence and state-sanctioned abuse that individuals experienced in their home countries. Moreover, unlike criminal defendants, detained immigrants do not have the right to a court-appointed attorney. Lack of representation means that most are not aware of their right to be free from sexual abuse, and often do not know where to turn if they are sexually assaulted. The result is that the perpetrators of sexual abuse in immigration facilities act with immunity for their crimes.
4 NIJCs client Juan illustrates this extreme vulnerability. Immigration and Customs Enforcement (ICE) detained Juan, a gay man seeking asylum, in a remote area of the Southeast. Juan faced obstacles typical of immigrants in isolated detention centers: he lacked legal representation and had limited capacity to communicate with guards or his deportation officer. When other detainees learned that Juan was gay, they forced him to perform oral sex. Initially, Juan did not report the attack because of fear of retaliation, but when the men were no longer held at the same facility, Juan reported the incident to his consulate, the only outside contact he had at the time. On advice from the consulate, immigration officers informed Juan that he would be transferred to another facility. However, weeks passed without transfer, with no investigation by the facility into the

National Standards to Prevent, Detect, and Respond to Prison Rape, Notice of Proposed Rulemaking, 76 Fed. Reg. 6248, 6250 (Feb. 3, 2011). 2 National Prison Rape Elimination Commission Report, 36 (Jun. 2009), http://cybercemetery.unt.edu/archive/nprec/20090820155502/http://nprec.us/files/pdfs/NPREC_FinalReport.PDF 3 Heartland Alliances National Immigrant Justice Center (NIJC) is a Chicago-based non-profit organization dedicated to ensuring human-rights protections and access to justice for immigrants, refugees, and asylum seekers. We provide legal services to more than 10,000 non-citizens every year, and many of our clients are in the custody of the Department of Homeland Security. We perform more than 35 Know Your Rights presentations for detained immigrants every year, and provide direct representation to hundreds of immigrant detainees annually. 4 Juan is a pseudonym. National Immigrant Justice Center Heartland Alliance for Human Needs & Human Rights Phone: 312.660.1370 | Fax: 312.660.1505 | www.immigrantjustice.org

assault, and with delayed attention to his deteriorating mental health needs. Under the current Department of Justice (DOJ) regulations, Juan would not be protected under PREA. The Circumstances Surrounding Immigration Detention Are Uniquely Problematic Each year the U.S. government detains more than 400,000 immigrants and asylum seekers. 5 Over recent years, this population has grown exponentially, with a 60 percent rise in immigrant detainees. 6 The U.S. government currently contracts with approximately 250 county jails, private prisons, and detention facilities to house the immigrant population. This outsourcing manifests in inconsistent treatment of immigrant detainees where training and sensitivity around the unique needs of the population varies widely. Moreover, there are no legally enforceable detention standards for facilities housing immigrant detainees. This major deficiency coupled with the remote location of many facilities and the corresponding lack of access to legal counsel, results in significant barriers to effective oversight and monitoring. For example, the Orleans Parish Sheriffs Office (OPSO) in New Orleans, Louisiana, detains immigrants even though it is under investigation as a facility with one of the highest incidents of reported sexual abuse. The culture of sexual violence at OPSO and the behavior of staff at the facilities within its jurisdiction is extremely concerning. If DOJ fails to extend the PREA protections to immigrant detainees, immigrants at OPSO are at a heightened risk of victimization and sexual abuse may continue against detained immigrants without any procedural safeguards. The David Moss Criminal Justice Center (David Moss CJC) in Tulsa County, Louisiana, provides another illustration of the inconceivable ramifications of exempting immigration detention facilities from the PREA protections. As of July 18, 2011, there were 174 immigrants detained at the David Moss CJC, but the application of PREA to these immigrants will depend upon the individual policies of the facility and its decision-makers. This jail-by-jail management approach is contrary to the zero-tolerance intention of Congress that PREA be applied universally to all individuals in custody in the U.S. It is illogical to have PREA implemented at some facilities and not others, creating an inconsistent, patchwork system of protection against prison rape and a situation where an individuals fate is left to the discretion of local sheriff offices and jail administrators. Urgent Request for Extension of PREA Protections to Immigration Detention Facilities The pervasive and systemic problem of sexual abuse in immigration detention is well 7 documented, including by DOJ. In April 2011, we filed a civil rights complaint with DHS on behalf of 13 clients, many of whom are victims of egregious sexual violence in immigration custody. 8 We urgently request that DOJ extend PREA to immigration detention facilities to ensure that all individuals in custody, criminal or civil, are protected against prison rape as Congress intended. If you require any further assistance, please do not hesitate to contact me at (312) 660-1344 or via email at jzurnamer@heartlandalliance.org Sincerely,

Jane Zurnamer Director of Policy

The Fiscal Year 2011 Budget for ICE Before the House Comm. on Appropriations Subcomm. on Homeland Security, th 111 Cong. (2010). 6 Moving Toward More Effective Immigration Detention Management: Hearing on Immigration Detention Management th Before the House Comm. on Homeland Security, Border, Maritime, and Global Counterterrorism, 111 Cong. (2009) (statement of NIJC) 7 Press Release, DOJ, Former T. Don Hutto Correction Center Employee Pleads Guilty to Civil Rights Charges (Sept. 7, 2011); Human Rights Watch, Detained and at Risk (Aug. 2010), http://www.hrw.org/reports/2010/08/25/detained-and-risk; 8 Press Release, NIJC, Mass Civil Rights Complaint Details Systemic Abuse of Sexual Minorities in U.S. Immigration Detention (Apr. 13, 2011)