Yesterday, the Department of Homeland Security (“DHS”) published a set of regulations related to the application of the Prison Rape Elimination Act (“PREA”) in immigration detention facilities. Like PREA, these new regulations are intended to address the widespread problem of sexual abuse within the jails and jail-like facilities that DHS uses to detain scores of immigrants pending the outcome of their cases. Immigration Equality commends DHS for including a number of important protections for lesbian, gay, bisexual, and transgender (LGBT) immigrants in these regulations.
These regulations come at a time when strong protections for LGBT detainees are urgently needed. Immigration Equality’s detained clients have endured incidents of attempted sexual assault as well as torturous conditions of solitary confinement in facilities often ill-equipped to house LGBT people safely. Facing bleak choices between sexual harassment and crushing isolation, some detained LGBT asylum-seekers simply “give up” and accept deportation to a country where they fear violence and murder, rather than to continue suffering in detention.
When these new regulations go into effect in 2013, they will represent the first time legally binding rules will compel immigration detention facilities to recognize that LGBT people may be uniquely vulnerable to sexual assault in detention. The regulations require detention staff to take steps to mitigate this danger to LGBT detainees with respect to placement in housing, recreation, bathing, searches, staff training and other day-to-day activities. Notably, for the first time, immigration detention facilities will be compelled by law to take into account a person’s gender self-identification when making housing decisions for transgender detainees.
The PREA regulations proposed yesterday are far superior in enforcement power than previous measures taken by DHS that, although positive are neither as comprehensive nor carry the same weight of law. As recently as 2008, the largely non-binding Performance Based National Detention Standards (“PBNDS”) made no reference whatsoever to LGBT people. Although Immigration Equality worked to revise these standards in 2011 to impose least-restrictive housing measures on LGBT detainees, the regulations published today will go farther in protecting LGBT immigrant detainees at risk of sexual assault.
Immigration Equality continues to believe that those who violate civil immigration laws should not be detained, we are still concerned about how universally DHS will implement these regulations in privately run detention centers. Nevertheless, these regulations represent a significant step toward reforming a detention system that has been particularly dangerous for LGBT immigrants. While Immigration Equality plans to continue working with DHS and other stakeholders to ensure that the finalized version of these regulations are effective, thorough, and meaningful in protecting LGBT immigrants at risk of sexual assault in detention.