LGBT Asylum News: US government defending asylum seeker exclusion from prison rape law

Saturday 17 September 2011

US government defending asylum seeker exclusion from prison rape law

By Jane Zurnamer

Dear members of the Department of Justice’s 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 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.” 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. 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.

NIJC’s 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 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. Over recent years, this population has grown exponentially, with a 60 percent rise in immigrant detainees.

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 Sheriff’s 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 individual’s 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 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. 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.

This testimony on 'Current Exclusion of Immigration Detention Facilities from the PREA Protections' was delivered 12 September 2011 to a Review Panel on Prison Rape at the U.S. Department of Justice.

Jane Zurnamer is Director of Policy, National Immigrant Justice Center.

Take Action: Protect the human rights of detained immigrants

Tell US Attorney General Eric Holder to uphold his commitment 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.