The PBS show Frontline, documenting harsh conditions in Department of Homeland Security (DHS) detention facilities, recently told the story of an immigrant whom it called “Mary.” During a routine traffic stop in Florida, police discovered that Mary’s visa had expired. They sent her to the Willacy Detention Center in southern Texas; there, over the course of three months, she was repeatedly raped by one of her guards. Finally, unable to endure further abuse and told by other detainees that she would face retaliation if she complained, she stopped fighting deportation and asked to be sent home to Canada, leaving behind four young children who were born in the US. It has now been two years since she has seen them.
Perhaps the worst part of this immensely distressing story is how unexceptional it is. There is abundant evidence that rape is a systemic problem in our immigration detention facilities—for women, for men, and, as the Women’s Refugee Commission has documented, for children. In 2010, Human Rights Watch released a report based on over fifty known incidents and allegations of sexual abuse of immigration detainees. The American Civil Liberties Union has discovered 185 government reports of such allegations since 2007, and a senior ACLU staff attorney says this is only “the tip of the iceberg.” Based on studies by the Bureau of Justice Statistics, the US government estimates that over 216,600 people are sexually abused in its prisons, jails, and juvenile detention facilities every year. Such comprehensive data do not exist for DHS facilities, and many fewer people are held in immigration detention than in prisons and jails. However, there is good reason to believe that, proportionally, the rates of abuse may be even higher for immigrants in government custody than for prisoners.
In 2003, Congress tried to address this problem by passing the Prison Rape Elimination Act (PREA). As is unmistakably clear from the bill’s language and its history, Congress intended it to apply to immigration detention, as well as to other kinds. Now, more than eight years later, Attorney General Eric Holder is set to establish new national standards on sexual abuse in detention, as PREA mandated. But if he sticks to the Justice Department’s most recent draft version of the standards, they will not apply to immigration detention.
In the days after the Frontline program aired, Secretary of Homeland Security Janet Napolitano was asked by members of the US Senate and House whether she thought the proposed national standards should also apply to immigrants in DHS custody. Napolitano never answered the question clearly. Instead she mentioned her department’s policy of zero tolerance for sexual abuse and its own internal standards, seeming to suggest that she considered them sufficient. Indeed, it is widely understood in Washington that Napolitano does not want her agency subjected to Justice Department regulations. But exempting Homeland Security from the new standards would be disastrous. Detained immigrants are in a uniquely vulnerable position, and the Department of Homeland Security has repeatedly failed to protect them on its own.
Immigration detention, which is run primarily through DHS’s Immigration and Customs Enforcement division (ICE), is the fastest-growing system of incarceration in the United States. In 2006, approximately 250,000 people passed through it. This October the Obama administration, evidently determined to prove itself a strict enforcer of immigration law, announced it had deported nearly 400,000 people through the DHS system in fiscal year 2011. Immigration detention is considered civil or administrative confinement, rather than criminal or punitive, but in practice this is a thin distinction. Almost all immigration detention facilities were originally built as prisons and jails, and the atmosphere inside them is very much what is euphemistically called “correctional.”
Immigrants in civil detention actually have fewer legal rights than their criminal counterparts. Unlike people charged with crimes, detained immigrants do not have a right to a government-appointed attorney, and because few can pay for one, only about sixteen percent have legal representation. And DHS not only oversees the detention of immigrants, it decides their legal status and whether or not they are to be deported. If this were taking place within the criminal justice system, it would be as if the jailors of a man awaiting trial were then to serve as his judge and jury.
Terrified of deportation and separation from their families, immigrants in detention are often extremely reluctant to file grievances against facilities run by the very people who can expel them from the country; and there is little question that deportation is sometimes used as retribution against immigration detainees who complain, and sometimes as a way of forestalling investigations into abuses. And it’s clear that facilities holding people who do not feel able to complain are particularly fertile grounds for abuse, as are institutions that can easily deport witnesses against them.
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In 2006, our organization, Just Detention International, arranged for Esmeralda Mayra Soto to testify at a hearing of the National Prison Rape Elimination Commission. A transgender woman, Esmeralda fled to the US in 2002 after being raped many times in Mexico. More than a year later, she was taken into custody at her place of employment for not having a work permit and detained at a California immigration facility. During her first days there, while she was waiting to see a lawyer, an officer twice forced her to perform oral sex on him. She is now in this country legally, having obtained a form of asylum, but except in the most technical sense the US has hardly given her refuge. It would be hard to imagine a greater betrayal of the ideals and origins of a nation of immigrants than systemic abuse of this kind, perpetrated as it usually is by agents of the government.
Even Holder’s Department of Justice has written that “protection from sexual abuse should not depend on where an individual is incarcerated: It must be universal.” Why then did it draft standards that do not apply to immigration detention?
The answer has to do with an accident of timing. After the 2003 PREA legislation was written (but before it had been voted on), Congress, reacting to the September 11 attacks, disbanded the Immigration and Naturalization Service, which had been a division of the Justice Department, and created a new independent agency, the Department of Homeland Security, to replace it. If immigration detention facilities were still managed by the Justice Department, any standards it issued would automatically cover them. However, Holder is apparently reluctant to impose regulations on another executive agency. This is a lawyer’s quibble, and a poor one at that. The Department of Justice has imposed regulations on other departments before. No matter how uncomfortable he finds the situation, Holder must meet his statutory responsibilities.
He cannot accept DHS arguments that its internal standards are enough to address the problem. Prison systems have never been able to address sexual abuse adequately on their own: this is why Congress passed PREA in the first place. Indeed, DHS’s continuing failures to prevent sexual abuse perfectly illustrate the shortcomings of such self-policing—a disappointment all the more striking because, as advocates on behalf of immigration detainees generally acknowledge, divisions of the Department have made sincere attempts to improve.
No matter how good their intentions, institutions answerable only to themselves are rarely able to create meaningful systems of external oversight or accountability. The overarching problem with DHS’s internal standards, as the National Immigration Law Center put it, is that “there are no real penalties for facilities’ noncompliance with even the most fundamental portions of the detention standards or for repeated, serious violations of the standards.” ICE is now proposing to adopt a new set of internal standards, but there is little reason to believe that these will be much better than its previous efforts. The new standards were supposed to be released in 2010. However, apparently because of union resistance, no one now thinks they will be enacted before 2012.
The national PREA standards will have to include robust measures for external oversight, enforcement, and accountability. They have been subjected to extensive scrutiny and revision through several public comment periods, and will not only be stronger but much more durable than DHS’s internal regulations. Holder must insist that the national standards apply to immigration detention facilities, as Congress intended. And Napolitano should stop fighting the true reform her agency so desperately needs.
