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    Protecting all detained immigrants from rape and abuse

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    The Women's Refugee Commission helped draft and joined 45 other organizations in signing a letter to Secretary Janet Napolitano calling for the Department of Homeland Security to develop strong, comprehensive Prison Rape Elimination Act (PREA) standards based closely on those issued by the Department of Justice.

    Dear Secretary Napolitano:

    We write to provide our support for the development of comprehensive standards by the Department of Homeland Security (DHS) to implement the Prison Rape Elimination Act (PREA). As noted in the May 17th White House memorandum to the heads of executive departments and agencies, President Obama directed “all agencies with Federal confinement facilities that are not already subject to the Department of Justice’s final [PREA] rule to work with the Attorney General to propose, within 120 days of the date of this memorandum, any rules or procedures necessary to satisfy the requirements of PREA and to finalize any such rules or procedures within 240 days of their proposal.”

    We are encouraged to hear from DHS that it plans to implement PREA through formal rulemaking. No internal policy or procedures would be sufficient to provide the protections detailed in PREA and reflected in the final Department of Justice (DOJ) standards.

    We are also encouraged to hear that the regulations being developed by DHS will cover detainees in both Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) custody. ICE’s most recent Performance-Based National Detention Standards (PBNDS) are, of course, limited to ICE facilities and troublingly exempt short-term hold facilities from their sexual abuse prevention standards. This exemption violates the intent of PREA, which explicitly sought to cover lockups (see also the comprehensive final DOJ standards for lockups). ICE’s PBNDS, while an improvement over past ICE standards, fall short of the protections called for in PREA. The fact that the PBNDS are not in effect in all ICE facilities also leaves many ICE detainees without protections required by PREA.

    As we recognize the compressed time frame faced by DHS for the development of its proposed standards, we would like to draw attention to some of our major concerns related to the development of these standards.

    The comprehensive standards issued on May 17th are a product of almost a decade of work by the National Prison Rape Elimination Commission (NPREC) and the Department of Justice. There is no way that DHS will be able to duplicate the scope of this effort in one year. Because the PBNDS are not comprehensive and vary from the DOJ standards, they should not serve as the model for drafting regulations. For these reasons, we urge DHS to use the DOJ standards as a template for its own standards. There is no reason that the proposed DHS standards should not track closely to the DOJ standards, and there should be a strong presumption against varying from them. We also recommend that when DHS determines it is necessary to deviate from the DOJ final standards, it clearly justify the deviations to allow for informed and constructive commentary.

    Closely hewing to the final DOJ standards would recognize how extensively NPREC and DOJ worked to develop the standards. It would also emphasize the importance of consistent treatment ofimmigration detainees. Detainees are often transferred between facilities—they may be held through an Intergovernmental Service Agreement (IGSA) in a county jail that follows the DOJ PREA standards and then be transferred to dedicated immigration facilities that will soon apply DHS standards. Vastly different standards (for example, different grievance and reporting processes, screening, or staff training) between facilities that detain immigrants will undercut the protections of PREA. Detainees cannot be expected to be aware of shifting rights between facilities. As the National Sheriffs’ Association advised Congress, “DHS PREA standards need to be consistent with [the Department of Justice’s] PREA standards. This would ensure that there are not differing standards for jails based on where the federal, state, or local detainees are held, as well as help with the swift and successful implementation of final PREA standards.”1

    Moreover, DHS holds many detainees in county jails through IGSAs. Yet PREA does not contain noncompliance sanctions for county jails that fail to adopt or implement rape elimination standards. Immigration detainees could therefore be completely excluded from PREA protections depending on the facility where they are held. DHS has the means to avoid this gap in protection. DHS should propose a regulation stating that it will not contract with any facilities that do not implement DOJ PREA protections. In addition, DHS should include acceptance of its forthcoming PREA regulations as a condition of every contract renegotiation it undertakes, including those that precede issuance of the final rule.

    We would like to meet with you or your staff to discuss these recommendations in further detail, prior to the issuance of the Department’s draft standards. Please have your staff contact Antonio Ginatta, US advocacy director at Human Rights Watch, at 202-612-4343.

    Sincerely,

    Human Rights Watch

    American Civil Liberties Union

    American Immigration Lawyers Association

    Americans for Immigrant Justice, formerly Florida Immigrant Advocacy Center

    Amnesty International

    Asian American Institute, a member of the Asian American Center for Advancing Justice

    Asian American Justice Center, a member of the Asian American Center for Advancing Justice

    Blacks in Law Enforcement of America

    BreakOUT!

    Detention Watch Network

    The Episcopal Church

    The Fellowship of Affirming Ministries

    Florida Coastal Immigration Rights Clinic

    Franciscan Action Network

    Global Justice Institute

    Heartland Alliance’s National Immigrant Justice Center

    Human Rights First

    Illinois Coalition for Immigrant and Refugee Rights

    Immigration Equality

    International CURE

    Iowa Coalition Against Sexual Assault

    Just Detention International

    Kids in Need of Defense

    Las Americas Immigrant Advocacy Center

    Latin American Association

    Lutheran Immigration and Refugee Service

    Metropolitan Community Churches

    NAACP

    National Center for Transgender Equality

    National Gay and Lesbian Task Force

    National Immigration Forum

    National Immigration Law Center

    NETWORK, A National Catholic Social Justice Lobby

    Northwest Immigrant Rights Project

    Peace Over Violence

    Physicians for Human Rights

    The Reformed Church of Highland Park, NJ

    Rights Working Group

    Sisters of Mercy Institute Justice Team

    South Asian Americans Leading Together

    Student Action with Farmworkers

    Texas Association Against Sexual Assault

    Transgender Law Center

    United Methodist Church, General Board of Church and Society

    Who Is My Neighbor? Inc.

    Women’s Refugee Commission