As the eight-year-long effort to implement the landmark Prison Rape Elimination Act (PREA) nears conclusion, people who run afoul of the nation’s immigration laws could still find themselves beyond the reach of federal protection of prisoners from sexual abuse.

Immigrants in the custody of Immigration and Customs Enforcement (ICE) are among the country’s most vulnerable detainees. Many speak little English, and fear retribution if they report sexual or physical abuse.

But a proposed rule released in January by the Department of Justice excluded them from the expanded federal protections against sexual abuse or harassment of prisoners under PREA, passed unanimously in 2003.

The proposed rule shocked civil liberties and immigrant rights advocates, said Joanne Lin, legislative counsel with the American Civil Liberties Union (ACLU).

“We believe that when Congress passed PREA in 2003, Congress intended to cover immigration detainees,” Lin added.

ICE contends that its own internal standards protect against abuse.

“ICE maintains a strict zero tolerance policy for any kind of abusive or inappropriate behavior and requires all contractors working with the agency to adhere to this policy,” said ICE spokesperson Gillian M. Christensen in a statement.

But can ICE effectively police its far-flung facilities–many of which are operated by private companies or local law enforcement?

EDITORS NOTE: for a viewpoint on the impact of prison privatization on this issue, see Will Matthews’ recent post.

Documents obtained under the Freedom of Information Act by the ACLU show at least 170 reports of sexual assault from detainees in U.S. facilities over the last four years. An investigation by PBS’s Frontline in October found about a dozen stories of sexual abuse at a single Texas facility.

While these numbers represent only a fraction of the thousands who are detained by ICE each year, advocates such as Emily Butera, senior program officer at the Women’s Refugee Commission, believe they represent “only the tip of the iceberg.”

“People (in detention) don’t know where to speak out, how to speak out, or are too afraid to,” said Butera, whose organization regularly monitors conditions in detention through visits to facilities and interviews with detainees.

The problem was recognized by the 2009 report produced by the commission appointed to formulate national standards for the law. After five years of study, the commission called for a zero-tolerance policy for sex and sexual assault, limitations on cross-gender pat-downs and greater protections for juveniles in detention, among others.

Recommendations included special protections for ICE detainees, such as measures to assure they were separated from the general population in jails, to offer them access to counseling and to provide better access to outside groups for reporting.

“Because immigration detainees are confined by the agency with the power to deport them, officers have an astounding degree of leverage,” the commissioners wrote. “The fear of deportation cannot be overstated and also functions to silence many individuals who are sexually abused.”

DOJ missed the June 2010 deadline to release its standards. The proposed rule issued more than six months later did not take up the commission’s recommendations on ICE detainees. No one knows the precise contents of the rule DOJ submitted about two weeks ago to White House Office of Management and Budget (OMB), responsible for coordinating the executive branch review of significant regulations before publication. Advocates believe ICE continues to oppose including its detainees under PREA.

Those who want to assure they are don’t have time on their side. OMB has up to 90 days to review the rule.

Keeping Detainees Safe

In response to the complaints of ACLU and immigrant advocates, ICE claims it has stepped up monitoring detention facilities, and will soon release standards that “mirror many of the crucial provisions” of PREA, an ICE spokesperson told The Crime Report.

These standards come as part of a larger effort to improve ICE facilities in what ICE Secretary John Morton in 2009 dubbed a “truly civil detention system.” But change at ICE is often slowed by internal bureaucratic hurdles — and complicated by the polarized atmosphere around immigration.

ICE’s new standards, originally slated to be enacted in 2010, have been delayed several times. Just Detention International, a Washington-based advocacy group that works to halt sexual abuse in custody, said the most recent public draft of the standards falls short of what is needed to keep detainees safe.

Among the shortcomings highlighted by Just Detention: they do not detail how a detainee can report abuse; they don’t provide confidential support services for victims; and they don’t provide for outside audits.

For many advocates, the battle over applying PREA to immigration facilities boils down to a single question: can ICE monitor itself?

Chris Daley of Just Detention said Congress answered the question when it passed PREA. It wasn’t just ICE, Daley said. No facility can grapple with the issue alone.

“What Congress said is that you can’t do it,” says Daley. “You can’t police yourselves.”

But the PREA commissioners appointed by Congress have also stepped into the fray. On November 30, Judge Reggie B. Walton, former commission chair, sent a letter to Janet Napolitano, Secretary of the Department of Homeland Security, which oversees ICE, urging her to apply PREA to ICE facilities.Â

“Excluding immigration detention facilities from PREA’s requirements and from compliance with the final regulations that the Department of Justice will adopt pursuant to PREA would fly in the face of congressional intent and would leave detainees vulnerable to continued abuse,” Walton wrote.

Nevertheless, advocates believe DHS pushed DOJ to exempt its facilities in the proposed rule, fighting against measures that would require it to bow to rules from an outside agency.

“I think every corrections system wants as much control over what happens in their facility as possible,” said Chris Daley. “DHS is fighting for control over how it runs its system.”

DOJ declined to comment for this article.

Passing On Complaints

The reports obtained by the Frontline and the ACLU show that while DHS routinely refers for review complaints it receives to offices like ICE’s Office for Professional Responsibility or the DHS Inspector Generals Office (IG), which investigate claims, those offices do not reply. There is no comprehensive record of what happens to such cases.

At least one detainee alleged retaliation after reporting abuse. Of the 170 allegations of abuse, the DHS IG issued reports on just 15.

It found six reports substantiated in whole or part. Two men have been convicted of sexual abuse. Three more were terminated from their posts.

One of the two convictions to result from allegations involved a man named Donald Dunn, a transportation officer at a privately-run detention facility in Texas. He was charged assaulting female detainees over the course of seven months as he transported them from the facility.

According to a lawsuit filed by the Texas ACLU, Dunn would pull over by the side of the road, unlock the back of the van where the women were detained, and grope them.

Dunn’s activities came to light on May 6, 2010 when one of his victims reported the incident to an employee at the airport where Dunn dropped her off after she was released from detention.

According to the lawsuit, he assaulted at least eight other women who had been too afraid to report the abuse, or not known how. Dunn pleaded guilty to three counts of official oppression and two counts of unlawful restraint and was sentenced to a year in jail and two years probation.

He was charged with federal deprivation of rights charges in September, to which he also pleaded guilty, and was sentenced to ten months.

Locking Up Immigrants

America has the largest immigrant detention system in the world, holding more than 32,000 people each day. Though not technically penal institutions, facilities for immigrants look, and often are, nearly identical to those used by the criminal justice system — and have many of the same problems, including sexual abuse.

ICE requires that upon admittance facilities provide each detainee with an orientation and a guidebook outlining procedures and how to report grievances or abuse. But detainees have repeatedly told monitors from the Women’s Refugee Commission that they never receive the guidebook. Others said they get it only in English, which many cannot read.

ICE is in the process of drafting updated standards for its facilities, which would include guidance for addressing sexual abuse among the wider rules. ICE has said the standards will hew closely to those of PREA. But American University Professor Brenda Smith, who sat on the PREA commission, believes that even the updated standards fall short.

“They’re not as comprehensive” as PREA, said Smith. She believes oversight is the key to fighting the problem, and added that because ICE relies heavily on private companies who are exempt from disclosure under the Freedom of Information Act, continuing abuse may go unobserved.

“They’ve got their policies,” Smith said of ICE, “but there’s no way to know whether they are adhering to them.”

Further complicating matters is the fact that, if the DOJ exclusion is approved, ICE detainees may have different protections against abuse, depending on the day.

Detainees would be covered by PREA during a stay in jail, which, as a correctional facility, is covered under the Act. But when the immigrant is moved to an ICE facility, PREA’s writ would no longer operate.

ICE leases about half of its beds from local prisons and jails around the nation, according to a recent report from the advocacy group Human Rights First.

But it also relies heavily on private prison companies like the Corrections Corporation of America and the GEO Group. Some of the country’s largest ICE facilities, such as the Stewart Detention Center in Georgia and Arizona’s Eloy Detention Center, are privately run.

The debate over providing PREA protection also casts light on the complexity of creating and implementing policy in a sprawling immigration system deeply entangled with the criminal penal system — but is in fact civil.

Detention Limbo

People charged with, and detained for, civil immigration violations have different rights than people charged with a crime.

“In the criminal context when you are charged with a crime, every person has the right to an attorney,” said the ACLU’s Lin. “In the civil immigration context if you are arrested by ICE you have the right to an attorney if you can afford one. If you can’t afford one, you are on your own.”

Immigrants suspected of being undocumented, overstaying their visa or other violations are entitled to a legal process to determine whether they have a right to remain in the country. This is a civil, rather than criminal, matter. They come before a judge in an administrative hearing to determine their right to stay in the county.

Immigrants are often unable to afford a lawyer. A report by the Vera Institute found that between 2006 and 2007, about 84 percent of detained immigrants did not have representation. They represent themselves.

This lack of access to representation can be exacerbated by repeated relocations. ICE has the right to move detainees to facilities anywhere in the country. Most are in remote towns near few legal services. Detainees live separated from their families and often virtually incommunicado. A recent report by Human Rights Watch found more than 1.4 million detainee transfers between 1999 and 2008.

The Executive Office of Immigration Review (EOIR), the branch of the DOJ that adjudicates immigration proceedings declared in its 2010 statistical report that the large number of immigrants representing themselves was “of great concern” because, without council, individuals may understand neither the nature of the proceedings, nor their rights.

With the OMB deadline approaching, advocates have stepped up their efforts. Last week, advocates organized a Congressional briefing to argue their case. While they spoke to a room of Congressional staffers, they hoped the message would echo in the White House.

“This isn’t about politics,” said Daley of Just Detention. “This isn’t about inter-departmental problems. It’s just incredibly important that these folks are safe.”

Lisa Riordan Seville is deputy managing editor of The Crime Report. She welcomes comments from readers.