Lost in Detention

Will immigrant detainees get protection from abuse?

Thursday, February 2nd, 2012 

This story is being co-published with National Journal.

The Government Accountability Office has agreed to launch an investigation into sexual abuse at U.S. immigration detention centers, following recent reports of abuse and a request from 30 members of Congress that GAO conduct an inquiry. The announcement comes as the Obama administration decides whether it will include immigrant detainees, the fastest-growing incarcerated population in the country, in pending regulations on prison rape prevention due out early this year.

Officials in the Justice and Homeland Security departments have been debating whether the new regulations, which will be enforced by DOJ, should cover immigration detention centers, which are under DHS jurisdiction. Human-rights activists, angered by the internal debate, say that Congress intended Justice to include immigrant detainees in its new regulations and are calling on the White House to intervene in the matter.

“We’re talking about men, women, children less protected because of petty policy politics,” said Chris Daley, deputy executive director of Just Detention International, a cosigner of a December letter sent by 30 human-rights organizations to President Obama asking him to include immigrant detainees under Justice’s new protections.

The issue gained attention in Congress last October when Sen. Dick Durbin (D-Ill.), recounted watching the Investigative Reporting Workshop and FRONTLINE’s co-production of Lost in Detention, during which a woman described her rape at an immigration detention center. The detainee said that a contract guard sexually assaulted her and then threatened her if she reported the attack. Fearing for her safety, she requested to be deported as soon as possible, abandoning her fight to stay with her four children, who are U.S. citizens.

Another case at the same facility — the Willacy Detention Center in Raymondville, Texas — was cited at a congressional briefing on Dec. 7 as an example of why the administration should include immigration detainees in the new regulations. On Aug. 4, contract guard Edwin Rodriguez pleaded guilty to forcing a female immigration detainee into a guard bathroom and having intercourse with her. Although the detainee immediately complained, internal e-mails show that officials did not put Rodriguez on leave until eight months later.

Justice is finalizing the rape-prevention regulations under the authority of the Prison Rape Elimination Act, a 2003 law that Congress passed unanimously. DHS is working behind the scenes to prevent the new regulations from covering immigration facilities, according to Brenda Smith, a former member of the congressionally appointed Prison Rape Elimination Commission. The commission studied the issue for five years and recommended standards to Justice. Instead, DHS is updating its own internal standards to be more like the PREA standards recommended by the panel. Immigration and Customs Enforcement spokeswoman Gillian Christensen said that the prison act’s “most critical” standards now cover half of its detainee population.

Daley and other human-rights activists say that ICE’s standards lack teeth and oversight. Citing ongoing abuses and delay, activists say that DHS’s efforts are falling short, and they want the facilities to be included in the Justice regulations.

When Attorney General Eric Holder proposed regulations in January 2011, he excluded immigration detention centers. His attorneys concluded that PREA applies only to the Bureau of Prisons, which is under Justice. The immigration centers moved from Justice over to the newly formed DHS after members of Congress drafted PREA.

Smith, who has been involved in the matter since recommending the new standards to Justice, said she believes that Holder wanted to cover the immigrant centers but decided he didn’t have the authority. Holder also met resistance from DHS.

Reps. Frank Wolf (R-Va.) and Bobby Scott (D-Va.) wrote DHS Secretary Janet Napolitano in December urging her to support the new regulations and stating that the law’s original intent was to include immigrant detainees under the statute’s protections.

Recently released government documents show more than 170 claims of sexual abuse in immigration detention centers over the last four years.

The immigration-detainee population has increased more than 70 percent since 2002, when members of Congress began crafting PREA. More than 350,000 immigrants are detained each year, waiting for the federal authorities to decide whether they will be deported or can stay.

Human-rights activists are especially upset about a last-minute curveball that might come from DHS. A top department official confirmed that DHS is considering crafting its own PREA regulations. “To start now is crazy. They have been working on modifying their standards for years now, and they still haven’t gotten them in place,” says Michelle Brané, director of detention and asylum at the Women’s Refugee Commission.

The DHS official denied the department is stalling; the official said it is a top priority to cover all detainees with pending internal standards that “meet or exceed” those proposed at the Justice Department. DHS, the official added, is looking at the fastest way of implementing them, including introducing its own regulations.

Sources inside the administration say that the debate over applying rape-prevention regulations to immigration detention facilities has been contentious. For its part, Justice is keeping mum: “The rule is in draft form, subject to interagency collaboration, and we are not allowed to discuss its contents until the rule is final,” said Justice Department spokeswoman Adora Andy.