New Regulations to Prevent Sexual Abuse in Immigration Detention

This month, the Department of Homeland Security (DHS) at long last published the Prison Rape Elimination Act (PREA) regulations to prevent, detect and respond to sexual abuse and assault in DHS confinement facilities.

LGBT people in custody are particularly vulnerable and are at heightened risk for sexual assault and physical abuse, as Lambda Legal noted in joint comments on the DHS’ proposed regulations.

Many LGBT immigrants flee persecution as a result of their sexual orientation or gender identity, only to face sexual assault and harassment in immigration detention facilities in the United States. Transgender people, in particular, are at high risk for abuse. The Congressional Research Service reported that 20 percent of substantiated allegations of sexual abuse in these facilities involve transgender people.

The PREA protections adopted by the Department of Justice in 2012 did not extend to people in immigration detention facilities, despite the fact that they face the same issues as people in prisons, jails and lockups. In May 2012, the Obama administration addressed the omission and announced that the PREA regulations would apply to DHS immigration detention centers as well as DOJ facilities, a crucial decision.

The week DHS released its new regulations, I chatted with Olga Tomchin, the Soros Justice Fellow at the Transgender Law Center, who led the coalition that successfully advocated for the release of a transgender woman from immigration detention in Louisiana. This recent victory is worth celebrating.

The woman, whom I’ll call Milagros, was held for weeks in solitary confinement in a men’s detention facility solely because she is transgender, and the facility decided to hold her in isolation for her “protection,” instead of finding safe housing for her in the general population. Milagros’ use of the telephone, her means to connect to her family and attorney, was also restricted as a consequence of her confinement in isolation. This was closer to torture than protection.

The psychological and physiological harms of solitary confinement are increasingly and deservedly in the public eye. Last month Lambda Legal submitted written testimony to a Senate hearing on the use of solitary in the United States, sponsored by Senator Dick Durbin.

While an important step forward, the new DHS standards are not perfect. For example, the DHS regulations provide: “The facility should assign detainees vulnerable to sexual abuse or assault to administrative segregation for their protection until an alternative means of separation from likely abusers can be arranged, and such an assignment shall not ordinarily exceed a period of 30 days” (6 C.F.R. § 115.43[b]). Thirty days is certainly too long for protective segregation, and the standard does not detail the effort that must be expended to locate safe alternative housing before a facility can resort to housing vulnerable LGBT immigrants in isolation.

Of equal concern are:

1. the failure of the regulations to prohibit retaliatory deportation of those who report abuse,

2. the caveat that transgender detainees be given the opportunity to shower separately from other detainees only when operationally feasible, and

3. the fact that the regulations apply to DHS contract facilities only when substantive contract modifications are negotiated, which may mean a delay of years.

Moreover, the regulations entirely fail to address DHS’ abhorrent bed mandate, which ICE interprets as a requirement that it maintain and fill 34,000 beds daily.  

While overall the regulations have fallen short of what LGBT advocates have asked, there are some positive developments. The standards overall strive to reduce the prevalence of rape and sexual assault in immigration detention facilities. With respect to transgender detainees, they prohibit searches for the sole purpose of determining their genital characteristics and prohibit housing assignments based solely on identity documents or physical anatomy, requiring facilities to consider transgender detainees’ self-identification of gender and self-assessment of safety.

Now it remains to be seen how the implementation process will unfold. Written standards may differ from what occurs in practice. For LGBT immigrants, it is crucial that the new adopted DHS regulations be implemented fully and expeditiously. We must be vigilant to ensure this is so.

It is often said that a society can be measured by how it treats its most vulnerable members. LGBT detainees made invisible by the walls of an immigration detention facility are certainly among the most vulnerable. We cannot turn our backs.