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Contemplating the Scope of Sexual Abuse in Immigrant Detention Settings
By Robert Winters, JD, Professor, School of Criminal Justice, Purdue Global University
Published: 07/01/2013

Incarceration
The Prison Rape Elimination Act (PREA) was passed in 2003 and implemented by executive order in 2012, but the reorganization prompted by the events of 9/11 inadvertently created a legal technicality that left immigration detention facilities exempt from PREA. Now immigrant rights advocates are concerned that this omission has rendered these facilities “black holes” in which sexual abuse of detainees may be occurring unchecked.

The Immigration and Naturalization Service (INS) was included in PREA, but the same year that the U.S. Congress enacted the law, INS was dissolved as part of the creation of the Department of Homeland Security (DHS) and its responsibilities assigned to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), which are tasked with enforcing immigration laws in the nation’s interior and along its borders respectively. The Enforcement and Removal Operations division of ICE uses over 250 state and local detention facilities that house about two-thirds of the detainee population. The balance of that population (ICE had funding approval for an average of 33,400 beds in fiscal 2011) is divided among contract facilities (17 percent), ICE-operated service processing centers (13 percent), and allocated portions of Bureau of Prisons facilities (3 percent).

In fiscal 2012 the U.S. Border Patrol (the primary enforcement arm of CBP) apprehended 364,768 people across all sectors (Coastal, Northern, and Southwest), with the vast majority detained in the Southwest Border Sector (356,873). A little-known fact, however, is that CBP operates short-term holding facilities—many of them tiny—along the three border sectors and in every U.S. airport. These low-profile detention facilities are a significant concern for advocacy groups such as the American Civil Liberties Union (ACLU) and the Women’s Refugee Commission (WRC).

ICE facilities are governed by the 2008 Performance-Based National Detention Standards (PBNDS), which replaced the National Detention Standards created in 2000. ICE utilizes an inspection program to ensure compliance with these standards (including in privately-owned contract facilities), and at the end of 2011 the agency had on-site monitors posted at 51 facilities that housed about 80 percent of the total ICE detainee population under its On-Site Detention Compliance Oversight Program. While many corrections professionals are familiar with one or both programs, they may be surprised to learn that no such oversight governs CBP temporary holding facilities.

Simply put, there is no outside inspection of these CBP facilities. While detainees are not typically held for long periods—those who will be are typically remanded to ICE custody—CBP has routine procedures that advocates insist create opportunities for abuse. These include the unaccompanied transport of detainees and the separation of children and parents at the time of arrest. The ACLU and WRC both report claims by female detainees of sexual assaults during transportation to deportation or even release from custody.

The detainee population has grown explosively over the past decade and a half as a result of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The law created criteria for mandatory detention of undocumented immigrants, foremost among them conviction for misdemeanor crimes. Perhaps surprisingly, the number of detainees has little relation to the number of illegal aliens arrested by the Border Patrol. The agency’s fact sheet that provides annual apprehension statistics from 1925 to 2012 actually shows that the sustained peak in apprehensions occurred in the mid- to late 1990s. Annual figures exceeded 1 million every year from 1990 to 2001, ranging from a low of 1,031,668 in 1994 to a high of 1,676,438 in 2000. Arrests dropped below the 1 million mark in 2007 and fell precipitously even further thanks to the financial crisis and recession, from 1,089,092 in 2006 to 876,704 in 2007 and to a low of 340,252 in 2011, rising only slightly to 364,768 in 2012.

It is ICE, however, that is responsible for policing immigration in the nation’s interior, for example mounting workplace raids that resulted in mass arrests of dozens or even hundreds of undocumented workers. The ACLU reports an increase of 500 percent in the number of detention facilities for illegal immigrants between 1996, when IIRIRA was enacted, and 2010. Consequently, the budgets for immigration enforcement agencies in fiscal 2012 totaled almost $18 billion, exceeding the $14.4 billion appropriated for the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Drug Enforcement Agency, and the U.S. Secret Service combined.

Despite the substantial number of detainees now in U.S. custody—a figure that has increased over 70 percent since 2002—there have been relatively few officially-reported sexual abuse claims: 168 from 2010 to 2012. ICE says that only seven of those were found to be substantiated upon investigation. Advocates, however, fear that most abuses have either gone unreported entirely or have had reports smothered at the lowest levels. Compared to traditional prison inmates, illegal immigrants are at even more of a disadvantage in the power relationships with staff, and the language barrier is often yet another obstacle for them.

Although U.S. Attorney General Eric Holder excluded immigration detention centers from the regulations that implemented PREA proposed in early 2011, the relevant agencies have begun crafting their own standards. DHS announced in December 2012 a proposed set of rules designed to essentially mimic the requirements of PREA, inviting comments from interested outside groups such as Amnesty International and the ACLU. In March of this year the Violence Against Women Act (VAWA) was reauthorized, and that legislation included provisions directing DHS to establish such regulations that will cover both CBP and ICE. The Obama administration has also been pressuring DHS to take this step.

Advocates have argued that PREA was intended to cover immigration detention as well as criminal incarceration, and that avoiding implementing its provisions has been an evasion based on a legal technicality. DHS, however, counters that its internally-crafted standards will “meet or exceed” the requirements of PREA. Once proper rules are in place, advocates will likely press for additional outside oversight to ensure adherence to them, in the name of protecting a particularly vulnerable detainee population.

About the author:

Corrections.com author, Robert Winters, holds a Juris Doctorate degree and is a Professor with Kaplan University. He is also a member of the National Criminal Justice Association and serves as a Western Regional Representative, a member of the National Advisory Board and their National Elections Committee.

Other articles by Winters



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