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Women’s Refugee Commission welcomes announcement and calls for response from the Department of Health and Human Services

Washington, D.C., December 7, 2012—This week, the Department of Homeland Security released long-awaited draft regulations that detail the agency’s plan to satisfy the requirements of the Prison Rape Elimination Act (PREA). PREA, the first legislation that intended to create a zero-tolerance policy for sexual abuse and assault in all confinement facilities, passed unanimously in Congress in 2003. Enactment and implementation of the regulations has been repeatedly delayed.  When the Justice Department (DOJ) issued its draft regulations in June 2010, immigration detention was specifically excluded on the basis that DOJ regulations could not apply to the Departments of Homeland Security (DHS) or Health and Human Services (HHS) in whose jurisdiction immigrants are confined.

In May 2012, the White House issued final DOJ regulations and, in a memorandum, required that all other federal agencies that confine and detain draft their own PREA regulations. The Women’s Refugee Commission welcomes DHS’s draft regulations as an important step toward fundamentally reducing the threat of sexual assault and rape in immigration detention centers while creating more meaningful pathways to recourse and justice for those immigrants who are victims of assault. The public will have the opportunity to provide comments on the regulations before the deadline for publishing final PREA regulations. 

“Though it has taken enormous amounts of time and advocacy to reach this place, these regulations are a critical step for creating real safeguards to protect immigrants in detention,” said Michelle Brané, director of the Women's Refugee Commission’s Migrant Rights and Justice Program. “Immigrants in detention, who often do not speak English, are facing deportation and have little access to lawyers, deserve the same protections as everyone who is in confinement in the United States.”

The regulations are a significant improvement over previous DHS standards and include protections for conducting strip searches and information about access to immigration recourse for victims of crime. The new standards apply to confinement by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).  Protections for those being held in CBP facilities is particularly significant.  Until now, CBP afforded shockingly little protection against sexual assault to those in its custody. 

Despite this very significant advance, some gaps do continue and the Women’s Refugee Commission will be submitting comments to the agency regarding critical improvements, including protections and U-Visa (a special visa available for victims of crime) certification for victims of sexual assault, comprehensive independent audits and protections against deportation while an investigation is being conducted. 

“Once the regulations are finalized, implementation of the standards will be critical,” noted Brané. “This includes regular, independent audits of DHS facilities, comprehensive training and access to resources for facility and agency officials, and perhaps most importantly, ensuring that local officials are well versed both in how to foster safer environments in immigration detention but also held accountable to ensure that individual cases of assault are investigated and that victims have access to justice.”

The Women’s Refugee Commission has been anticipating a formal statement from the Department of Health and Human Services (HHS), responsible for thousands of unaccompanied alien children (UACs) in its custody, explaining their position regarding PREA rulemaking.  While no official statement has been made at this time, HHS has indicated that it will be publishing for comment in the Federal Register critical portions of its Policies and Procedures Manual that are being revised to afford stronger protections against sexual assault and rape for children in their care. 

“While the Women’s Refugee Commission is disappointed that HHS does not recognize that its facilities constitute confinement by PREA’s definition, the revisions are expected to be a significant step towards providing these vulnerable children with the protection they need and deserve,” said Brané. “HHS facilities holding unaccompanied children that are locked and restrict movement are confinement, and these children must be afforded protection.  We look forward to the opportunity to review improved procedures drafted by HHS in early 2013.”

Michelle Brané is available to comment at 646.717.7191.