Rape endemic in immigration detainee facilities; Holder still dithers on new standards

by on December 8, 2011  •  In Criminal law

As I have noted before, Attorney General Holder is obligated under the Prison Rape Elimination Act (PREA) to promulgate national standards to curb rape in prisons and other detention facilities. He testified a year and a half ago about the cruelty of prison rape, stating that the standards were needed "yesterday." 

There are still no final standards.

And as common as rape of women and trans prisoners is in general population and maximum security prisons, there is good reason to believe that it may be even more widespread in detention facilities run by the Department of Homeland Security.  In light of that, it is outrageous that the draft standards issued by DoJ do not apply to DHS facilities. Unless AG Holder broadens the scope of the final standards, those prisons will remain uncovered. 

PREA was enacted in 2003 with a broad definition of prisons and jails and no exclusion of immigration facilities. (117 Stat. 988) Eight years later, however, DHS was created as a separate Cabinet-level agency. Attorney General Holder is electing to interpret this accident of timing as a reason not to cover DHS facilities. You can sign a petition sponsored by the ACLU urging him to reverse that position. 

From Just Detention International:

[Esmeralda Mayra Soto, a] transgender woman, 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…

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…

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.


The overarching problem with DHS’s internal standards, [according to] the National Immigration Law Center, 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 Secretary Napolitano should stop fighting the true reform her agency so desperately needs.


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