[Federal Register Volume 79, Number 45 (Friday, March 7, 2014)]
[Rules and Regulations]
[Pages 13100-13183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-04675]
[[Page 13099]]
Vol. 79
Friday,
No. 45
March 7, 2014
Part II
Department of Homeland Security
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6 CFR Part 115
Standards To Prevent, Detect, and Respond to Sexual Abuse and Assault
in Confinement Facilities; Final Rule
Federal Register / Vol. 79 , No. 45 / Friday, March 7, 2014 / Rules
and Regulations
[[Page 13100]]
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DEPARTMENT OF HOMELAND SECURITY
6 CFR Part 115
[ICEB-2012-0003]
RIN 1653-AA65
Standards To Prevent, Detect, and Respond to Sexual Abuse and
Assault in Confinement Facilities
AGENCY: Department of Homeland Security.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) is issuing
regulations setting standards to prevent, detect, and respond to sexual
abuse and assault in DHS confinement facilities.
DATES: This rule is effective May 6, 2014.
FOR FURTHER INFORMATION CONTACT: Alexander Y. Hartman, Office of
Policy; U.S. Immigration and Customs Enforcement, Department of
Homeland Security; Potomac Center North, 500 12th Street SW.,
Washington, DC 20536; Telephone: (202) 732-4292 (not a toll-free
number).
SUPPLEMENTARY INFORMATION:
I. Abbreviations
ANPRM Advance Notice of Proposed Rulemaking
ASR Administrative Stay of Removal
BJS Bureau of Justice Statistics
BOP Bureau of Prisons
CBP U.S. Customs and Border Protection
CDF Contract Detention Facility
CFR Code of Federal Regulations
CMD Custody Management Division
CRCL DHS Office for Civil Rights and Civil Liberties
DHS Department of Homeland Security
DOJ Department of Justice
DSM Detention Service Manager
ERO ICE Enforcement and Removal Operations
FOD ICE Field Office Director
FR Federal Register
FOJC ICE Field Office Juvenile Coordinator
FSA Flores v. Reno Settlement Agreement
HHS Department of Health and Human Services
HSI ICE Homeland Security Investigations
ICE U.S. Immigration and Customs Enforcement
IGA Intergovernmental Agreement
IGSA Intergovernmental Service Agreement
INA Immigration and Nationality Act
IRFA Initial Regulatory Flexibility Analysis
IRIA Initial Regulatory Impact Analysis
JIC Joint Intake Center
LEP Limited English Proficient/Proficiency
LGBTI Lesbian, Gay, Bisexual, Transgender, Intersex
LGBTIGNC Lesbian, Gay, Bisexual, Transgender, Intersex, Gender Non-
conforming
MOU Memorandum of Understanding
NAICS North American Industry Classification System
NDS National Detention Standards
NPREC National Prison Rape Elimination Commission
NPRM Notice of Proposed Rulemaking
ODO ICE Office of Detention Oversight
OIG DHS Office of the Inspector General
OMB Office of Management and Budget
OPR ICE Office of Professional Responsibility
ORR HHS Office of Refugee Resettlement
PBNDS Performance Based National Detention Standards
PRA Paperwork Reduction Act of 1995
PREA Prison Rape Elimination Act of 2003
PSA Prevention of Sexual Assault
QAT Quality Assurance Team
RCA Risk Classification Assessment
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
SAAPID Sexual Abuse and Assault Prevention and Intervention
Directive
SAFE Sexual Assault Forensic Examiner
SANE Sexual Assault Nurse Examiner
SBA Small Business Administration
SIJ Special Immigrant Juvenile
SPC Service Processing Center
TVPRA Trafficking Victims Protection Reauthorization Act
UMRA Unfunded Mandate Reform Act of 1995
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
USMS U.S. Marshals Service
VAWA Reauthorization Violence Against Women Reauthorization Act of
2013
II. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this regulatory action is to set standards to
prevent, detect, and respond to sexual abuse in Department of Homeland
Security (DHS) confinement facilities.\1\ Sexual violence, against any
victim, is an assault on human dignity and an affront to American
values. Many victims report persistent, even lifelong mental and
physical suffering. As the National Prison Rape Elimination Commission
(NPREC) explained in its 2009 report:
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\1\ As discussed in greater detail below, in this final rule,
``sexual abuse'' includes sexual abuse and assault of a detainee by
another detainee, as well as sexual abuse and assault of a detainee
by a staff member, contractor, or volunteer.
Until recently . . . the public viewed sexual abuse as an
inevitable feature of confinement. Even as courts and human rights
standards increasingly confirmed that prisoners have the same
fundamental rights to safety, dignity, and justice as individuals
living at liberty in the community, vulnerable men, women, and
children continued to be sexually victimized by other prisoners and
corrections staff. Tolerance of sexual abuse of prisoners in the
government's custody is totally incompatible with American
values.\2\
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\2\ National Prison Rape Elimination Commission Report 1 (2009),
http://www.ncjrs.gov/pdffiles1/226680.pdf.
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DHS is committed to preventing, detecting, and responding to sexual
abuse in facilities used to detain individuals for civil immigration
purposes. Sexual abuse is not an inevitable feature of detention, and
with DHS's strong commitment, DHS immigration detention and holding
facilities have a culture that promotes safety and refuses to tolerate
abuse. DHS is fully committed to its zero-tolerance policy against
sexual abuse in its confinement facilities, and these standards will
strengthen that policy across DHS confinement facilities. DHS is also
fully committed to the full implementation of the standards in DHS
confinement facilities, and to robust oversight of these facilities to
ensure this implementation.
The standards build on current U.S. Immigration and Customs
Enforcement (ICE) Performance Based National Detention Standards
(PBNDS) and other DHS detention policies. The standards also respond to
the President's May 17, 2012 Memorandum, ``Implementing the Prison Rape
Elimination Act,'' which directs all agencies with Federal confinement
facilities to work with the Attorney General to create rules or
procedures setting standards to prevent, detect, and respond to sexual
abuse in confinement facilities, and to the Violence Against Women
Reauthorization Act of 2013 (VAWA Reauthorization), which directs DHS
to publish a final rule adopting national standards for the detection,
prevention, reduction, and punishment of rape and sexual assault in
facilities that maintain custody of aliens detained for a violation of
U.S. immigrations laws. See Public Law 113-4 (Mar. 7, 2013).
B. Summary of the Provisions of the Regulatory Action
The DHS provisions span eleven categories that were originally used
by the NPREC to discuss and evaluate prison rape elimination standards:
Prevention planning, responsive planning, training and education,
assessment for risk of sexual victimization and abusiveness, reporting,
official response following a detainee \3\ report, investigations,
discipline, medical and mental care, data collection and review, and
audits and compliance. Each provision under these categories reflects
the context of DHS confinement of individuals and draws upon the
particular experiences
[[Page 13101]]
and requirements DHS faces in fulfilling its missions.
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\3\ For simplicity, all persons confined in DHS immigration
detention facilities and holding facilities are referred to as
``detainees'' in this rulemaking.
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For example, DHS has broken down the standards to cover two
distinct types of facilities: (1) Immigration detention facilities,
which are overseen by ICE and used for longer-term detention of aliens
in immigration proceedings or awaiting removal from the United States;
and (2) holding facilities, which are used by ICE and U.S. Customs and
Border Protection (CBP) for temporary administrative detention of
individuals pending release from custody or transfer to a court, jail,
prison, other agency or other unit of the facility or agency.
In addition, the standards reflect the characteristics of the
population encountered by DHS in carrying out its border security and
immigration enforcement missions by providing, for example, language
assistance services for limited English proficient (LEP) detainees,
safe detention of family units, and other provisions specific to DHS's
needs. A more detailed discussion of all of the provisions in the
rulemaking is included below in Section V of this preamble,
``Discussion of PREA Standards,'' including a section-by-section
analysis of the DHS rule.
In this final rule, DHS has modified the proposed regulatory text
in multiple areas, including the following:
In addition to implementing these standards at both DHS
facilities and at non-DHS facilities whenever there is a new contract
or contract renewal, DHS will also implement the standards at non-DHS
facilities whenever there is a substantive contract modification.
In addition to requiring that assessments for risk of
victimization or abusiveness include an evaluation of whether the
detainee has been incarcerated previously, DHS is now also requiring
consideration of whether the detainee has been detained previously.
DHS now requires immigration detention facilities to
notify a regional ICE supervisor no later than 72 hours after the
initial placement into segregation whenever a detainee has been held in
administrative segregation on the basis of a vulnerability to sexual
abuse or assault. Upon receipt of such notification, the official must
conduct a review of the placement to consider whether continued
segregation is warranted, whether any less restrictive housing or
custodial alternatives may exist (such as placing the detainee in a
less restrictive housing option at another facility or other
appropriate custodial options), and whether the placement is only as a
last resort and when no other viable housing options exist.
DHS now requires immigration detention facilities to
notify a regional ICE supervisor whenever a detainee victim has been
held in administrative segregation for longer than 72 hours. Upon
receipt of such notification, the official must conduct a review of the
placement to consider whether placement is only as a last resort and
when no other viable housing options exist, and, in cases where the
detainee victim has been held in segregation for longer than five days,
whether the placement is justified by extraordinary circumstances or is
at the request of the detainee.
DHS is now requiring immigration detention facilities to
complete sexual abuse incident reviews within 30 days of the completion
of the investigation, and is requiring that the review include
consideration of whether the incident or allegation was motivated by,
among other things, sexual orientation or gender identity.
DHS is now requiring explicitly that facilities keep data
collected on sexual abuse and assault incidents in a secure location.
DHS is now requiring that the agency maintain sexual abuse
data for at least 10 years after the date of the initial collection
unless Federal, State, or local law requires otherwise.
DHS has also modified the regulatory text and clarified its
interpretation of the rule in a number of ways, as explained more fully
below.
C. Costs and Benefits
The anticipated costs of full nationwide compliance with the rule
as well as the benefits of reducing the prevalence of sexual abuse in
DHS immigration detention facilities and holding facilities, are
discussed at length in section VI, entitled ``Statutory and Regulatory
Requirements--Executive Orders 12866 and 13563'' and in the
accompanying Regulatory Impact Analysis (RIA), which is found in the
docket for this rulemaking.
As shown in the Summary Table below, DHS estimates that the full
cost of compliance with these standards at all covered DHS confinement
facilities would be approximately $57.4 million over the period 2013-
2022, discounted at 7 percent, or $8.2 million per year when annualized
at a 7 percent discount rate. This is the estimated cost of compliance
if all facilities adopt and implement the standards within the first
year after the rule is finalized. This is an accurate reflection of
implementation of these standards in holding facilities, which are
fully owned and operated by DHS agencies. However, the annual cost for
implementation at immigration detention facilities, most of which are
governed by a contract with another entity, will likely be less,
because it depends on the pace of contract renewals and substantive
modifications which are unlikely to be universally completed in the
first year after the rule is finalized. DHS has not endeavored in the
RIA to project the actual pace of implementation.
With respect to benefits, DHS conducts what is known as a ``break
even analysis,'' by first estimating the monetary value of preventing
various types of sexual abuse (incidents involving violence,
inappropriate touching, or a range of other behaviors) and then, using
those values, calculating the reduction in the annual number of victims
that would need to occur for the benefits of the rule to equal the cost
of compliance. This analysis begins by estimating the recent levels of
sexual abuse in covered facilities using data from 2010, 2011, and
2012. In 2010, ICE had four substantiated sexual abuse allegations in
immigration detention facilities, two in 2011, and one in 2012. There
were no substantiated allegations by individuals detained in a DHS
holding facility. (This does not include allegations involved in still-
open investigations or allegations outside the scope of these
regulations.) In the RIA, DHS extrapolates the number of substantiated
and unsubstantiated allegations at immigration detention facilities
based on the premise that there may be additional detainees who may
have experienced sexual abuse, but did not report it.
Next, DHS estimates how much monetary benefit (to the victim and to
society) accrues from reducing the annual number of victims of sexual
abuse. This is, of course, an imperfect endeavor, given the inherent
difficulty in assigning a dollar figure to the cost of such an event.
Executive Order 13563 recognizes that some benefits and costs are
difficult to quantify, and directs agencies to use the best available
techniques to quantify benefits and costs. Executive Order 13563 also
states that agencies ``may consider (and discuss qualitatively) values
that are difficult or impossible to quantify, including equity, human
dignity, fairness, and distributive impacts.'' Each of these values is
relevant here, including human dignity, which is offended by acts of
sexual abuse.
DHS uses the Department of Justice (DOJ) estimates of unit
avoidance values for sexual abuse, which DOJ extrapolated from the
existing economic and criminological literature regarding
[[Page 13102]]
rape in the community.\4\ The RIA concludes that when all facilities
and costs are phased into the rulemaking, the breakeven point would be
reached if the standards reduced the annual number of incidents of
sexual abuse by 122 from the estimated benchmark levels, which is 147
percent of the total number of assumed incidents in ICE confinement
facilities, including an estimated number of those who may not have
reported an incident.\5\
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\4\ Department of Justice, National Standards to Prevent,
Detect, and Respond to Prison Rape, Final Rule, Final Regulatory
Impact Analysis, Docket No. DOJ-OAG-2011-0002, available at
www.regulations.gov.
\5\ As discussed in Chapter 1, and shown in Table 17 of the RIA,
the benchmark level of sexual abuse includes all types of sexual
abuse, including offensive touching (for instance, during a pat-down
search), voyeurism, harassment, and verbal abuse.
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There are additional benefits of the rule that DHS is unable to
monetize or quantify. Not only will victims benefit from a potential
reduction in sexual abuse in facilities, so too will DHS agencies and
staff, other detainees, and society as a whole. As noted by Congress,
sexual abuse increases the levels of violence within facilities. Both
staff and other detainees will benefit from a potential reduction in
levels of violence and other negative factors. 42 U.S.C. 15601(14).
This will improve the safety of the environment for other detainees and
workplace for facility staff. In addition, long-term trauma from sexual
abuse in confinement may diminish a victim's ability to reenter society
resulting in unstable employment. Preventing these incidents will
decrease the cost of health care, spread of disease, and the amount of
public assistance benefits required for victims upon reentry into
society, whether such reentry is in the United States or a detainee's
home country.
Chapter 3 of the RIA presents detailed descriptions of the
monetized benefits and break-even results. The Summary Table, below,
presents a summary of the benefits and costs of the final rule. The
costs are discounted at seven percent.
Summary Table--Estimated Costs and Benefits of Final Rule
[$Millions]
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Immigration
detention Holding facilities Total DHS PREA
facilities rulemaking
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10-Year Cost Annualized at 7% Discount Rate......... $4.9 $3.3 $8.2
% Reduction of Sexual Abuse Victims to Break Even N/A N/A *147%
With Monetized Costs...............................
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Non-monetized Benefits.............................. An increase in the general wellbeing and morale of
detainees and staff, the value of equity, human dignity,
and fairness for detainees in DHS custody.
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Net Benefits........................................ As explained above, we did not estimate the number of
incidents or victims of sexual abuse this rule would
prevent. Instead, we conducted a breakeven analysis.
Therefore, we did not estimate the net benefits of this
rule.
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* For ICE confinement facilities.
III. Background
Rape is violent, destructive, and a crime, no matter where it takes
place. In response to concerns related to incidents of rape of
prisoners in Federal, State, and local prisons and jails, as well as
the lack of data available about such incidents, the Prison Rape
Elimination Act (PREA) was enacted in September 2003. See Public Law
108-79 (Sept. 4, 2003). Some of the key purposes of the statute were to
``develop and implement national standards for the detection,
prevention, reduction, and punishment of prison rape,'' and to
``increase the available data and information on the incidence of
prison rape.'' 42 U.S.C. 15602(3), (4).
To accomplish these ends, PREA established the National Prison Rape
Elimination Commission (NPREC) to conduct a ``comprehensive legal and
factual study of the penalogical, physical, mental, medical, social,
and economic impacts of prison rape in the United States,'' and to
recommend national standards for the reduction of prison rape. 42
U.S.C. 15606(d). PREA charged the Attorney General, within one year of
NPREC issuing its report, to ``publish a final rule adopting national
standards for the detection, prevention, reduction, and punishment of
prison rape . . . based upon the independent judgment of the Attorney
General, after giving due consideration to the recommended national
standards provided by [NPREC] . . . and being informed by such data,
opinions, and proposals that the Attorney General determines to be
appropriate to consider.'' 42 U.S.C. 15607(a)(1)-(2).
The NPREC released its findings and recommended national standards
in a report (the NPREC report) dated June 23, 2009. The report is
available at http://www.ncjrs.gov/pdffiles1/226680.pdf. In that report,
NPREC set forth four sets of recommended national standards for
eliminating prison rape and other forms of sexual abuse. Each set was
applicable to one of four confinement settings: (1) Adult prisons and
jails; (2) lockups; (3) juvenile facilities; and (4) community
corrections facilities. NPREC report at 215-235. The NPREC report
recommends supplemental standards for facilities with immigration
detainees. Id. at 219-220. Specifically, and of particular interest to
DHS, the NPREC made eleven recommendations for supplemental standards
for facilities with immigration detainees and four recommendations for
supplemental standards for family facilities. NPREC asserted that
standards for facilities with immigrant detainees must be enforced in
any facility that is run by ICE or through an ICE contract.
A. Department of Justice Rulemaking
In response to the NPREC report, a DOJ PREA Working Group reviewed
the NPREC's proposed standards to assist in the rulemaking process. DOJ
published an advance notice of proposed rulemaking (ANPRM) on March 10,
2010 (75 FR 11077). Commenters on the ANPRM generally supported the
broad goals of PREA and the overall intent of the NPREC's
recommendations, with some division over the merits of a number of the
NPREC's recommended national standards.
[[Page 13103]]
DOJ then issued a notice of proposed rulemaking (NPRM) on February
3, 2011, setting forth proposed national PREA standards. 76 FR 6248
(Feb. 3, 2011). In response to the NPRM, DOJ received over 1,300
comments that provided general assessments of DOJ's efforts as well as
specific and detailed recommendations regarding each standard.
Pertinent to DHS, there was specific concern expressed by the
commenters with respect to NPREC's recommended supplemental standards
for immigration detention number six, which proposed to mandate that
immigration detainees be housed separately from criminal detainees. The
DOJ NPRM noted that several comments to the DOJ ANPRM raised a concern
that this requirement would impose a significant burden on jails and
prisons, which often do not have the capacity to house immigration
detainees and criminal detainees separately. Id. The DOJ NPRM also
noted DOJ's concern about other proposed supplemental standards, such
as imposing separate training requirements and requiring agencies to
attempt to enter into separate memoranda of understanding with
immigration-specific community service providers. Id. Furthermore,
comments to the DOJ NPRM addressed whether the proposed standards
should cover immigration detention facilities, prompting DOJ to examine
the application of PREA to other Federal confinement facilities, which
is discussed further below.
Following the public comment period for its NPRM, DOJ issued a
final rule setting a national framework of standards to prevent,
detect, and respond to prison rape at DOJ confinement facilities, as
well as State prisons and local jails. 77 FR 37106 (June 20, 2012).
B. Application of PREA Standards to Other Federal Confinement
Facilities
DOJ's NPRM interpreted PREA to bind only facilities operated by the
Bureau of Prisons (BOP), and extended the standards to U.S. Marshals
Service (USMS) facilities under other authorities of the Attorney
General. 76 FR 6248, 6265. Numerous commenters criticized this
interpretation of the statute. In light of those comments, DOJ re-
examined whether PREA extends to Federal facilities beyond those
operated by DOJ and concluded that PREA does, in fact, encompass any
Federal confinement facility ``whether administered by [the] government
or by a private organization on behalf of such government.'' 42 U.S.C.
15609(7).
In its final rule, DOJ further concluded that, in general, each
Federal department is accountable for, and has statutory authority to
regulate, the operations of its own facilities and, therefore, is best
positioned to determine how to implement the Federal laws and rules
that govern its own operations, the conduct of its own employees, and
the safety of persons in its custody. 77 FR 37106, 37113. In
particular, DOJ noted that DHS possesses great knowledge and experience
regarding the specific characteristics of its immigration facilities,
which differ in certain respects from DOJ, State, and local facilities
with regard to the manner in which they are operated and the
composition of their populations. Thus, and given each department's
various statutory authorities to regulate conditions of detention, DOJ
stated that Federal departments with confinement facilities, like DHS,
would work with the Attorney General to issue rules or procedures
consistent with PREA.
C. The Presidential Memorandum on Implementing the Prison Rape
Elimination Act and the Violence Against Women Reauthorization Act of
2013
On May 17, 2012, the same day DOJ released its final rule,
President Obama issued a Presidential Memorandum reiterating the goals
of PREA and directing Federal agencies with confinement facilities that
are not already subject to the DOJ final rule to propose rules or
procedures necessary to satisfy the requirements of PREA within 120
days of the Memorandum. In the Memorandum, the President firmly
establishes that sexual violence, against any victim, is an assault on
human dignity and an affront to American values, and that PREA
established a ``zero-tolerance standard'' for rape in prisons in the
United States. The Memorandum further expresses the Administration's
conclusion that PREA encompasses all Federal confinement facilities,
including those operated by executive departments and agencies other
than DOJ, whether administered by the Federal Government or by an
organization on behalf of the Federal Government, and that each agency
is responsible for, and must be accountable for, the operations of its
own confinement facilities. The President charged each agency, within
the agency's own expertise, to determine how to implement the Federal
laws and rules that govern its own operations, but to ensure that all
agencies that operate confinement facilities adopt high standards to
prevent, detect, and respond to sexual abuse. The President directed
all agencies with Federal confinement facilities that are not already
subject to the DOJ final rule, such as DHS, to work with the Attorney
General to propose rules or procedures that will satisfy the
requirements of PREA.
Additionally, on March 7, 2013, the VAWA Reauthorization was
enacted, which included a section addressing sexual abuse in custodial
settings. See Public Law 113-4 (Mar. 7, 2013). Among requirements
addressing certain Federal agencies, the law directs DHS to publish a
final rule adopting national standards for the detection, prevention,
reduction, and punishment of rape and sexual assault in facilities that
maintain custody of aliens detained for a violation of U.S.
immigrations laws. Id. The standards are to apply to DHS-operated
detention facilities and to detention facilities operated under
contract with DHS, including contract detention facilities (CDFs) and
detention facilities operated through an intergovernmental service
agreement (IGSA) with DHS. Id. The statute requires that the DHS
standards give due consideration to the recommended national standards
provided by NPREC. Id.
Sexual abuse in custodial environments is a serious concern with
dire consequences for victims. DHS is firmly committed to protecting
detainees from all forms of sexual abuse. By this regulation, DHS
responds to and fulfills the President's directive and the requirements
of the VAWA Reauthorization by creating comprehensive, national
regulations for the detection, prevention, and reduction of sexual
abuse at DHS immigration detention facilities and at DHS holding
facilities that maintain custody of aliens detained for violating U.S.
immigration laws.
D. DHS Proposed Rule and Public Comments
On December 19, 2012, DHS published an NPRM entitled Standards To
Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement
Facilities; Proposed Rule. 77 FR 75300. On January 2, 2013 DHS
published an Initial Regulatory Impact Analysis (IRIA), which presented
a comprehensive assessment of the benefits and costs of DHS's proposed
standards in both quantitative and qualitative terms. The IRIA was
summarized in the proposed rule and was published in full in the docket
(ICEB-2012-003) on the regulations.gov Web site. The public comment
period on the NPRM originally was scheduled to end on February 19,
2013. Due to scheduled maintenance to the Federal
[[Page 13104]]
eRulemaking Portal, DHS extended the comment period by one week until
February 26, 2013. 78 FR 8987. DHS received a total of 1,724 comments
on the proposed rule. No public meeting was requested, and none was
held.
Commenters included private citizens, professional organizations,
social service providers, and advocacy organizations concerned with
issues involving detainee safety and rights, sexual violence,
discrimination, and the mental health of both the detainees and the
facility employees. In general, commenters supported the goals of PREA
and DHS's proposed rule. However, some commenters, particularly
advocacy groups concerned with protecting the health and safety of the
detainees, expressed concern that the proposed rule did not go far
enough towards achieving the goals that PREA set forth. Some comments
were outside the scope of the proposed rule, and therefore have not
been included in the DHS responses and changes in the final rule below.
DHS thanks the public for its interest and participation.
Members of Congress and others have also expressed interest in this
rulemaking. In describing the potential positive impacts of the VAWA
Reauthorization, Senator Richard Durbin--both a PREA and VAWA
Reauthorization legislative co-sponsor--referred to the importance of
the bill's provision regarding implementation of PREA standards by DHS.
Specifically, Senator Durbin applauded DHS's efforts, through its
proposed rule, to implement rules consistent with PREA's goals. 159
Cong. Rec. S503 (daily ed. Feb. 7, 2013) (statement of Sen. Durbin).
Senator Durbin noted that, ``It was critical . . . to have a provision
in this VAWA Reauthorization that clarifies that standards to prevent
custodial rape must apply to immigration detainees--all immigration
detainees--a provision that codifies the good work DHS is now doing and
ensures strong regulations pertaining to immigration will remain in
place in the future.'' Id. DHS appreciates this strong statement of
confidence in DHS's proposed rule, by a legislator who advocated for
the original PREA legislation.
When the public comment period closed, DHS carefully reviewed each
comment and deliberated internally on the revisions that the commenters
proposed.
E. Types of DHS Confinement Facilities
This rule applies to just two types of confinement facilities: (1)
Immigration detention facilities and (2) holding facilities.
Section 115.5 defines an immigration detention facility as a
``confinement facility operated by or pursuant to contract with [ICE]
that routinely holds persons for over 24 hours pending resolution or
completion of immigration removal operations or processes, including
facilities that are operated by ICE, facilities that provide detention
services under a contract awarded by ICE, or facilities used by ICE
pursuant to an Intergovernmental Service Agreement.'' These facilities
are designed for long-term detention (more than 24 hours) and house the
largest number of DHS detainees. ICE is the only DHS component agency
with immigration detention facilities, and it has several types of such
facilities: Service processing center (SPC) facilities are ICE-owned
facilities staffed by a combination of Federal employees and contract
staff; CDFs are owned by private companies and contracted directly with
ICE; and detention services at IGSA facilities are provided to ICE by
States or local governments through agreements and may be owned by the
State or local government, or a private entity.\6\ There are two types
of IGSA facilities: Dedicated IGSA facilities, which house detained
aliens only, and non-dedicated (i.e., shared) IGSA facilities, which
may house a variety of detainees and inmates.
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\6\ In the preamble of the proposed rule, DHS listed
Intergovernmental Agreement (IGA) facilities among the types of
immigration detention facilities. Upon further review, DHS has
determined that ICE does not contract with state or local
governments using IGAs, and therefore has no immigration detention
facilities that qualify as IGAs (as opposed to IGSAs). As discussed
in greater detail below, although ICE is an authorized user of USMS
IGA facilities, the facilities and their immigration detainees would
be covered by the DOJ PREA standards and not the provisions within
Subpart A of these proposed rules.
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The standards set forth in Subpart A of these proposed regulations
are meant ultimately to apply to all of these various types of
immigration detention facilities--but not, notably, to facilities
authorized for use by ICE pursuant to agreements with BOP or pursuant
to agreements between DOJ and state or local governments or private
entities (e.g., USMS IGA facilities). Those facilities and their
immigration detainees are covered by the DOJ PREA standards and not the
provisions within Subpart A of these proposed rules.
These regulations do not apply to CDF and IGSA facilities directly;
rather, standards for these facilities will be phased in through new
contracts, contract renewals, or substantive contract modifications.
Specifically, the regulations require that when contracting for the
confinement of detainees in immigration detention facilities operated
by non-DHS private or public agencies or other entities, DHS component
agencies include in any new contracts, contract renewals, or
substantive contract modifications the obligation to adopt and comply
with these standards. (Covered substantive contract modifications would
include, for example, changes to the bed/day rate or the implementation
of stricter standards, but not the designation of a new Contracting
Officer.) In other words, DHS intends to enforce the standards though
terms in its contracts with facilities.
Section 115.5 defines a holding facility similarly to DOJ's
definition of ``lockup.'' A ``holding facility'' is a facility that
contains holding cells, cell blocks, or other secure enclosures that
are: (1) Under the control of the agency; and (2) primarily used for
the short-term confinement of individuals who have recently been
detained pending release or transfer to or from a court, jail, prison,
or other agency. These facilities, which are operated by ICE, CBP, or
other DHS components, are designed for confinement that is short-term
in nature, but are permanent structures intended primarily for the
purpose of such confinement. Temporary-use hold rooms and other types
of short-term confinement areas not primarily used for confinement are
not amenable to compliance with these standards, but are covered by
other DHS policies and procedures. We discuss the distinctions between
these facilities in more detail later in this rule.
1. ICE Detention Facilities
As stated above, the NPREC report contained eleven recommended
standards for facilities with immigration detainees and four
recommended standards specifically addressing family facilities. ICE
oversees immigration detention facilities nationwide. The vast majority
of facilities are operated through government contracts, State and
local entities, private entities, or other Federal agencies. ICE
Enforcement and Removal Operations (ERO) is the program within ICE that
manages ICE operations related to the immigration detention system.
ERO is responsible for providing adequate and appropriate custody
management to support the immigration removal process. This includes
providing traditional and alternative custody arrangements for those in
removal proceedings, providing aliens access to legal resources and
representatives of advocacy groups, and facilitating the appearance of
detained aliens at immigration court hearings.
[[Page 13105]]
Through various immigration detention reform initiatives, ERO is
committed to providing and maintaining appropriate conditions of
confinement, providing required medical and mental healthcare, housing
detainees in the least restrictive setting commensurate with their
criminal background, ensuring appropriate conditions for all detainees,
employing fiscal accountability, increasing transparency, and
strengthening critical oversight, including efforts to ensure
compliance with applicable detention standards through inspection
programs.
The ERO Custody Management Division (CMD) provides policy and
oversight for the administrative custody of immigration detainees, a
highly transient population and one of the most diverse of any
correctional or detention system in the world. CMD's mission is to
manage ICE detention operations efficiently and effectively to provide
for the safety, security and care of aliens in ERO custody.
As of spring 2012, ERO was responsible for providing custody
management to approximately 158 authorized immigration detention
facilities, consisting of 6 SPCs, 7 CDFs, 9 dedicated IGSA facilities,
and 136 non-dedicated IGSA facilities (of which 64 are covered by the
DOJ PREA rule, not this rule, because they are USMS IGA facilities).
ERO has 91 other authorized immigration detention facilities that
typically hold detainees for more than 24 hours and less than 72 hours,
including 55 USMS IGA facilities and 36 non-dedicated IGSA facilities.
In addition, ICE has 149 holding facilities that hold detainees for
less than 24 hours. These holding facilities are nationwide and are
located within ICE ERO Field and Sub-Field Offices.\7\
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\7\ Facilities ICE used as of spring 2012, and the sexual abuse
and assault standards to which facilities were held accountable or
planned to be held accountable at that time, serve as the baseline
for the cost estimates for this rulemaking.
---------------------------------------------------------------------------
2. ICE Sexual Abuse and Assault Policies
These regulations for immigration detention facilities and holding
facilities support existing sexual abuse policies promulgated by ICE,
including ICE's PBNDS 2011 and its 2012 Sexual Abuse and Assault
Prevention and Intervention Directive (SAAPID),\8\ which provide strong
safeguards against all sexual abuse of individuals within its custody,
consistent with the goals of PREA.
---------------------------------------------------------------------------
\8\ ICE, Performance-Based National Detention Standards (2011),
http://www.ice.gov/doclib/detention-standards/2011/pbnds2011.pdf;
ICE, Directive No. 11062.1: Sexual Abuse and Assault Prevention and
Intervention (2012), http://www.ice.gov/doclib/foia/dro_policy_memos/sexual-abuse-assault-prevention-intervention-policy.pdf. These
documents are available, redacted as appropriate, in the docket for
this rule where indicated under ADDRESSES.
---------------------------------------------------------------------------
ICE's PBNDS 2011 standard on ``Sexual Abuse and Assault Prevention
and Intervention'' was developed in order to enhance protections for
immigration detainees as well as ensure a swift and effective response
to allegations of sexual abuse. This standard derived in significant
part from earlier policies contained in ICE's PBNDS 2008, promulgated
in response to the passage of PREA, and took into consideration the
subsequently released recommendations of the NPREC (including those for
facilities housing immigration detainees) in June 2009 and ensuing
draft standards later issued by DOJ in its ANPRM in March 2010. In
drafting the PBNDS 2011, ICE also incorporated the input of the DHS
Office for Civil Rights and Civil Liberties (CRCL), local and national
advocacy organizations, and representatives of DOJ (including
correctional experts from BOP) on methods for accomplishing the
objectives of PREA in ICE's operational context, and closely consulted
information and best practices reflected in policies of international
corrections systems, statistical data on sexual violence collected by
the DOJ Bureau of Justice Statistics (BJS), and reports published by
the United Nations High Commissioner for Refugees and the Inter-
American Commission on Human Rights of the Organization of American
States regarding sexual abuse and other issues affecting vulnerable
populations in U.S. correctional systems. The PBNDS 2011 establish
responsibilities of all immigration detention facility staff with
respect to preventative measures such as screening, staff training, and
detainee education, as well as effective response to all incidents of
sexual abuse, including timely reporting and notification, protection
of victims, provision of medical and mental health care, investigation,
and monitoring of incident data.
The PBNDS 2008 standard on Sexual Abuse and Assault Prevention and
Intervention and the Family Residential Standards also contain robust
safeguards against sexual abuse of ICE detainees, establishing similar
requirements with respect to each of the issues covered by the PBNDS
2011 Sexual Abuse standard. In addition, ICE has made great strides in
incorporating standards specific to sexual abuse and assault in NDS
facilities. In fact, since the publication of the NPRM a substantial
number of NDS facilities with which ICE maintains IGSAs have agreed to
implement the PBNDS 2011's Sexual Abuse and Assault Prevention and
Intervention standard. Excluding those detainees who are held in DOJ-
contracted facilities (and are therefore covered by the DOJ rule), as
of July 2013 approximately 94% of ICE detainees, on average, are housed
in facilities that have adopted a sexual abuse and assault standard
under PBNDS 2011, PBNDS 2008, or Family Residential Standards.\9\
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\9\ Less than one-third of ICE's average detainee population is
currently housed in facilities governed by the agency's 2000
National Detention Standards (NDS), which does not contain a
standard specific to sexual abuse prevention and intervention--and
nearly half of those detainees are in USMS IGA facilities. A
substantial number of NDS facilities with which ICE maintains an
IGSA have agreed to implement the PBNDS 2011's Sexual Abuse and
Assault Prevention and Intervention standard. Again excluding
detainees who are held in DOJ-contracted facilities (and are
therefore covered by the DOJ PREA rule), as of July 2013, nearly
three quarters of ICE detainees housed in NDS IGSA facilities are
covered by the PBNDS 2011 sexual abuse and assault standard. For
more information on the standards applicable to DOJ facilities, see
the discussion infra.
---------------------------------------------------------------------------
The 2012 ICE SAAPID complements the requirements established by the
detention standards by delineating ICE-wide policy and procedures and
corresponding duties of employees for reporting, responding to,
investigating, and monitoring incidents of sexual abuse. Regardless of
the standards applicable to a particular facility, ICE personnel are
required under this Directive to ensure that the substantive response
requirements of PBNDS 2011 are met, and that incidents receive timely
and coordinated agency follow-up. In conjunction with the PBNDS, the
SAAPID ensures an integrated and comprehensive system of preventing and
responding to all incidents or allegations of sexual abuse of
individuals in ICE custody.
On September 4, 2013, ICE issued a directive entitled ``Review of
the Use of Segregation for ICE Detainees.'' The directive establishes
policy and procedures for ICE review of detainees placed into
segregated housing. It is intended to complement the requirements of
the 2011 PBNDS, the 2008 PBNDS, NDS and other applicable policies. The
directive states that placement in segregation should occur only when
necessary and in compliance with applicable detention standards, and
includes a notification requirement whenever a detainee has been held
continuously in segregation for 14 days out of any 21 day period and a
72-hour notification requirement for detainees placed in segregation
due to a special vulnerability, including for detainees susceptible to
harm due to sexual orientation or gender identity, and detainees who
have been victims--in or
[[Page 13106]]
out of ICE custody--of sexual assault, torture, trafficking, or abuse.
ICE's combined policies prescribe a comprehensive range of
protections against sexual abuse, addressing prevention planning,
reporting, response and intervention, investigation, and oversight,
including: Articulation of facility zero-tolerance policies;
designation of facility and component sexual assault coordinators;
screening and classification of detainees; staff training; detainee
education; detainee reporting methods; staff reporting and
notification; first responder duties following incidents or allegations
of sexual abuse (including to protect victims and preserve evidence);
emergency and ongoing medical and mental health services; investigation
procedures and coordination; discipline of assailants; and sexual abuse
incident data collection and review.
These policies are tailored to the particular operational and
logistical circumstances encountered in the DHS confinement system in
order to maximize the effective achievement of the goals of PREA within
the immigration detention context. To further improve transparency and
enforcement, DHS has decided to issue this regulation and adopt the
overall structure of the DOJ standards, as well as the wholesale text
of various individual DOJ standards where DHS has deemed them
appropriate and efficacious, to meet the President's goal of setting
high standards, government-wide, consistent with the goals of PREA and
Congress's expressed intent that DHS adopt national standards for the
detection, prevention, reduction, and punishment of rape and sexual
assault in immigration confinement settings. Where appropriate, DHS
also has used the results of DOJ research and considered public
comments submitted in response to the DOJ ANPRM and NPRM in formulating
the DHS standards.
3. U.S. Customs and Border Protection Holding Facilities
CBP has a priority mission of keeping terrorists and their weapons
out of the United States. CBP also is responsible for securing and
facilitating trade and travel while enforcing hundreds of U.S. statutes
and regulations, including immigration and drug laws. All persons,
baggage, and other merchandise arriving in or leaving the United States
are subject to inspection and search by CBP officials for a number of
reasons relating to its immigration, customs, and other law enforcement
activities.
CBP detains individuals in a wide range of facilities. CBP detains
some individuals in secured detention areas, while others are detained
in open seating areas where agents or officers interact with the
detainee. CBP uses ``hold rooms'' in its facilities for case processing
and to search, detain, or interview persons who are being processed.
CBP does not currently contract for law enforcement staff within its
holding facilities; CBP employees oversee detainees directly.
CBP generally detains individuals for only the short time necessary
for inspection and processing, including pending release or transfer of
custody to appropriate agencies. Some examples of situations in which
CBP detains individuals prior to transferring them to other agencies
are: (1) Persons processed for administrative immigration violations
may, for example, be repatriated to a contiguous territory or
transferred to ICE pending removal from the United States or removal
proceedings with the Executive Office of Immigration Review; (2)
unaccompanied alien children placed in removal proceedings under Sec.
240 of the Immigration and Nationality Act (INA), 8 U.S.C. 1229a, are
transferred, in coordination with ICE, to the Department of Health and
Human Services (HHS), Office of Refugee Resettlement (ORR); and (3)
persons detained for criminal prosecution are temporarily held pending
case processing and transfer to other Federal, State, local or tribal
law enforcement agencies. CBP policies and directives currently cover
these and other detention scenarios.
4. CBP Detention Directives and Guidance
The various CBP policies and directives containing guidance on the
topics addressed in these regulations include, but are not limited to:
Personal Search Handbook, Office of Field Operations, CIS HB 3300-
04B, July 2004--describes in detail the procedures for personal
searches. The handbook further explains the procedures for
transportation and detention of, and reporting procedures for, persons
detained for prolonged medical examinations as well as detentions
lasting more than two hours.
CBP Directive No. 3340-030B, Secure Detention, Transport and Escort
Procedures at Ports of Entry--establishes CBP's policy for the
temporary detention, transport, and escort of persons by the Office of
Field Operations. The policy also provides guidance on issues regarding
the detention of juveniles, medical situations, meals, water,
restrooms, phone notifications, sanitation of the hold room,
restraining procedures, classification of detainees, transportation,
emergency procedures, escort procedures, transfer procedures, and
property disposition.
U.S. Border Patrol Policy No. 08-11267, Hold Rooms and Short-Term
Custody--establishes national policy describing the responsibilities
and procedures for the short-term custody of persons in Border Patrol
hold rooms pending case disposition. The policy also contains
requirements regarding the handling of juveniles in Border Patrol
custody.
DHS referenced all of these policies in its consideration of DHS-
wide standards to prevent, detect, and respond to sexual abuse in DHS
confinement facilities. The policies are available, redacted as
appropriate, in the docket for this rule at www.regulations.gov.
IV. Discussion of PREA Standards
A. DHS's PREA Standards
With this final rule, DHS reiterates that sexual violence against
any victim is an assault on human dignity. Such acts are particularly
damaging in the detention environment, where the power dynamic is
heavily skewed against victims and recourse is often limited. Until
recently, however, this has been viewed by some as an inevitable aspect
of detention within the United States. This view is not only incorrect
but incompatible with American values.
As noted in the NPRM, DHS keeps records of any known or alleged
sexual abuse incidents in its facilities. DHS reiterates that the
allegations that have been tracked are unacceptable, both to DHS and
the Administration, which has articulated a ``zero-tolerance'' standard
for sexual abuse in confinement facilities. Accordingly, DHS continues
to work to achieve its mandate to eliminate all such incidents.
With respect to this rule, DHS did not begin its work from a blank
slate. Many correctional administrators have developed and implemented
policies and practices to more effectively prevent and respond to
sexual abuse in confinement facilities, including DHS confinement
facilities. DHS applauds these efforts, and views them as an excellent
first step. However, as noted in the NPRM, DHS has decided to
promulgate regulations to meet PREA's goals and comply with the
President's directive that can be applied effectively to all covered
facilities in light of their particular physical characteristics, the
nature of their diverse populations, and resource constraints.
[[Page 13107]]
DHS appreciates the considerable work DOJ has done in this area,
and also recognizes that each DHS component has extensive expertise
regarding its own facilities, particularly those housing unique
populations, and that each DHS component is best positioned to
determine how to implement the Federal laws and rules that govern its
own operations, the conduct of its own employees, and the safety of
persons in its custody. Thus DHS, because of its own unique
circumstances, has adopted the overall structure of DOJ's regulations
and has used its content to inform the provisions of the NPRM and this
final rule, but has tailored individual provisions to maximize their
efficacy in DHS confinement facilities.
DHS also reemphasizes that these standards are not intended to
establish a safe harbor for otherwise constitutionally-deficient
conditions regarding detainee sexual abuse. Likewise, while the DHS
standards aim to include a variety of best practices due to the need to
adopt standards applicable to a wide range of facilities while
accounting for costs of implementation, the standards do not
incorporate every promising avenue of combating sexual abuse. The
standards represent policies and practices that are attainable by DHS
components and their contractors, while recognizing that other DHS
policies and procedures can, and in some cases currently do, exceed
these standards in a variety of ways. DHS applauds such efforts, and
encourages its components and contractors to further support the
identification and adoption of additional innovative methods to protect
detainees from sexual abuse.
B. Section by Section Analysis
The DHS rule follows the DOJ rule in devising separate sets of
standards tailored to different types of confinement facilities
utilized by DHS: Immigration detention facilities and holding
facilities. Each set of standards consists of the same eleven
categories used by the DOJ rule: Prevention planning, responsive
planning, training and education, assessment for risk of sexual
victimization and abusiveness, reporting, official response following a
detainee report, investigations, discipline, medical and mental care,
data collection and review, and audits and compliance. As in the DOJ
rule, a General Definitions section applicable to both sets of
standards is provided.
General Definitions (Sec. 115.5)
Sections 115.5 and 115.6 provide definitions for key terms used in
the standards, including definitions related to sexual abuse. The
definitions in this section largely mirror those used in the DOJ rule,
with adjustments as necessary for DHS operational contexts. DHS has
also largely relied on the NPREC's definitions in the Glossary sections
that accompanied the NPREC's four sets of standards, but has made a
variety of adjustments and has eliminated definitions for various terms
that either do not appear in the DHS standards or whose meaning is
sufficiently clear so as not to need defining.
Facility, holding facility--transportation. Numerous commenters,
including advocacy groups and former Commissioners of NPREC, questioned
this definition of facility, noting that it did not extend to custodial
transport, when detainees are in transit between facilities. An
advocacy group stated that the transfer of detainees, either between
facilities or to facilitate removal, is a common aspect of immigration
detention, necessitating clear inclusion of PREA protections during
these situations. Another advocacy group stated that detainees are
vulnerable when being transported and that, unlike within the DOJ
system, facility staff regularly transport immigration detainees. One
organization stated that definitions for both facility and holding
facility should explicitly include transportation settings to provide
for zero tolerance of abuse in such situations, with some groups
stating that such definitions should include the language in PBNDS
Sec. 1.3 that addresses transportation.
DHS has considered these comments and decided to adopt the scope of
the proposed rule--immigration detention facilities and holding
facilities. DHS notes that some standards indirectly cover custodial
transport. For example, the DHS standards cover all staff conduct,
including staff and employee conduct while transporting detainees.
In addition, DHS has addressed custodial transport in numerous
other contexts. The written zero tolerance policy applies to all forms
of sexual abuse and assault by agency employees and contractors. This
policy applies to transport of detainees in DHS custody to and from
holding facilities and immigration detention facilities, between a
holding facility and a detention facility, and to custodial transport
for the purposes of removal. Moreover, the ICE SAAPID provides
protection for all detainees when they are in ICE custody, including
custodial transport. And whenever DHS is alerted to an alleged incident
of sexual abuse and assault during DHS transport to or from a holding
facility or immigration detention facility or during DHS custodial
transport for the purposes of removal, such allegations are required to
be documented and promptly reported to the Joint Intake Center (JIC)
and the PSA Coordinator, and will promptly receive appropriate follow-
up, including a sexual abuse incident review at the conclusion of the
investigation by the appropriate investigative authorities. In
situations involving transportation between a holding facility
maintained by one DHS component and an immigration detention facility
maintained by another component, the Prevention of Sexual Assault (PSA)
Coordinators at each component will be responsible for addressing the
allegation in their respective annual reports.
By including explicit references to such custodial transportation
in its policies, DHS reaffirms its commitment to preventing, detecting,
and responding to sexual abuse and assault against individuals detained
in DHS custody. Consistent with DOJ's approach, however, DHS declines
to include additional separate standards on transportation.
One advocacy group, basing its comment on ICE standards under
PBNDS, suggested a separate section in the final rule addressing
transportation that would require that two transportation staff members
be assigned to transport a single detainee, including at least one
staff member of the same gender as the detainee, except in exigent
circumstances. The suggested standards would specify similar
requirements for multiple-detainee transit, provide detailed
timekeeping accountability guidelines for exigent circumstances
situations, provide documentation requirements when aberrations from
the above suggestions occur, and provide separate rules for conduct and
documentation requirements of pat-downs during transportation. The
group also suggested the standards require minors to be separated from
unrelated adults at all times during transport, seated in an area of
the vehicle near officers, and remain under their close supervision.
Additionally, the commenter suggested detainees of different genders be
transported separately--or, if in one vehicle, in separately
partitioned areas--with transgender detainees being transported in a
manner corresponding to their gender identity.
As noted above, DHS recognizes the importance of protecting
detainees in all custodial settings, including during transport. For
this reason, and as noted by the commenters, ICE has promulgated, and
is currently in the process of implementing, 2011 PBNDS, which provides
greater protection for
[[Page 13108]]
detainees being transported while in ICE custody. These detention
standards include a number of the protections recommended by the
commenter, as do--to a lesser extent--the PBNDS 2008 and NDS. As noted
above, detainees in ICE custody are also protected by DHS's zero-
tolerance policy, ICE's zero-tolerance policy and ICE's SAAPID which
prohibits sexual abuse and assault by any ICE employee in any custodial
setting. CBP detainees are protected under DHS's zero-tolerance policy
and other policies, including CBP Directive No. 3340-030B, Secure
Detention, Transport and Escort Procedures at Ports of Entry.
Following careful review, DHS determined that the combination of
generally applicable provisions of this final rule and other existing
policies address the commenters' concerns in an effective and
operationally practicable way. Therefore, DHS has decided not to add
specific transportation standards to the regulation and instead, relies
on existing policies and guidelines which provide for detainee
protection.
Facility, holding facility--temporary-use holding rooms. Former
Commissioners of NPREC and some advocacy groups recommended that DHS
extend the definition of holding facility to include temporary-use
holding rooms not in immigration detention facilities or holding
facilities, but in locations sporadically used to detain for short
periods of time during other DHS operations, such as U.S. Coast Guard
vessels, conference rooms, and hotel rooms. Groups urged DHS to include
additional regulatory protections for this temporary type of
confinement. Although such temporary-use facilities are covered by
existing policy, the former Commissioners recommended that DHS
memorialize such guidance in binding Federal standards.
DHS reiterates that its zero-tolerance policy applies to all of its
detention settings, and additional existing policies also cover
temporary-use holding rooms. Moreover, any allegation of sexual abuse
and assault will be reported to the JIC promptly and will promptly
receive appropriate follow-up, regardless of the particular setting
within DHS control in which the allegation arises. As DHS noted in the
proposed rule, this rulemaking defines facility and holding facility
broadly, including a number of settings that, while built for the
purpose of detaining individuals, are used infrequently. DHS declines
to further extend the requirements of the rule to settings that are not
built for the purposes of detaining individuals, as many of the
provisions, including those pertaining to supervision and monitoring
and upgrades to facilities and technologies, would be impracticable,
inefficient, and at times impossible to apply outside of the contexts
contemplated in the rule as drafted.
Former NPREC Commissioners commented that based on the proposed
rule's definition of facility, it is unclear whether external audit
standards apply to contract facilities. To clarify, DHS notes that the
external audit standards do apply to all facilities, including contract
facilities, in which the standards have been adopted.
Exigent circumstances. Multiple commenters objected to the
definition of ``exigent circumstances'' as too broad. The rule allows
detainee pat-down and strip search searches to be conducted by staff of
the opposite sex in exigent circumstances. The former NPREC
Commissioners commented that the definition might weaken the effect of
the proposed standards by too readily allowing cross-gender searches.
The Commissioners recommended that DHS replace ``exigent
circumstances'' with a more restrictive exception, such as ``in case of
emergency circumstances.'' Another group stated that many standards
would not apply because exigent circumstances exceptions could be
continuously invoked and swallow the rule, suggesting instead that the
definition specify that a threat must be of serious nature. One
organization suggested replacing the word ``unforeseen'' in the
definition with ``unforeseeable.''
After considering these comments, DHS has determined to retain the
definition in the final rule. The definition in Sec. 115.5 is properly
tailored to ensure that standards are followed except in ``temporary
and unforeseen circumstances that require immediate action in order to
combat a threat to the security or institutional order of a facility or
a threat to the safety or security of any person.'' It is necessary for
operational purposes to carve out a limited exception to certain
standards. For example, threats to the safety of a detainee or officer
must be considered. In addition, a facility might have to adjust to the
unforeseen absence of a staff member whose presence is typically
necessary to carry out a specific standard.
Contractor. Multiple commenters suggested that DHS clarify the
definition of contractor to include all employees and subcontractors of
the person or entity referred to in the relevant provision. In response
to these comments, DHS notes that it considers all facility employees
and sub-contractors to be covered under the final rule's definition of
staff in Sec. 115.5, which ``means employees or contractors of the
agency or facility, including any entity that operates within the
facility.''
Family unit. Multiple commenters recommended changing the
requirement in the proposed rule that provided that to qualify as a
family unit under Subpart A, none of the juvenile(s) or his/her/their
parent(s) or legal guardian(s) may have a known history of criminal or
delinquent activity. The commenters expressed concern that this could
lead to the separation of a detained family where a member had a non-
violent adjudication or committed a non-violent offense years ago,
where a member committed an immigration-related crime, or where a
juvenile was engaged in a delinquent activity. Some groups suggested
that the qualifier ``violent'' be used to describe disqualifying
criminal or delinquent activity and that only ``violent criminal or
delinquent activity, or . . . sexual abuse, violence or substance abuse
that could reasonably put the safety or well-being of other family
members at risk'' should prevent an otherwise qualifying group from
falling into the family unit definition. One group recommended that
protection of the family unit be paramount, with exceptions being
narrower than in the proposed rule. The former Commissioners also
seemed to assert that the definition could exclude situations where
juveniles are accompanied by non-parental family members or family
friends, and further expressed concern that the definition was too
narrow and could jeopardize keeping family units intact. Advocacy
groups stated the definition should better reflect ``the child's lived
reality'' and more closely comply with existing Federal standards.
While DHS must take steps to ensure the safety of minors in its
custody, the agency also recognizes the important goal of keeping
families intact. DHS has revised the ``family unit'' definition in the
final rule to provide a more straightforward regulatory description in
a manner that accords with current ICE policy and that recognizes the
need for flexibility due to the operational realities of ensuring a
safe detention environment. DHS's revised definition states that family
unit means a group of detainees that includes one or more non-United
States citizen juvenile(s) accompanied by his/her/their parent(s) or
legal guardian(s), whom the agency will evaluate for safety purposes to
protect juveniles from sexual abuse and violence. This modified
definition ensures the necessary language to qualify as a ``family
unit'' under the
[[Page 13109]]
Family Detention and Intake Guidance remains in the regulatory text.
The revised definition also permits the agency to maintain needed
flexibility to ensure the safety of juveniles in DHS custody.
Revising the ``family unit'' definition as applied in Subpart A to
allow all individuals with a non-violent criminal history to stay with
minors, and to expand the definition of family to include non-parental
family members or family friends, as recommended by commenters,
potentially could conflict with the intent behind ICE's Family
Detention and Intake Guidance, which seeks to protect children from
abuse and human trafficking. DHS therefore declines to incorporate that
specific recommendation into the revised definition.
One commenter suggested revising the definition of family unit to
include not only non-U.S. citizen juvenile(s) accompanied by their
parents or legal guardians, but also non-U.S. citizen juveniles
accompanied by ``a sponsor approved by'' HHS/ORR. The commenter stated
that ``[i]n the context of apprehension and enforcement, a family unit
should be broadened to include ORR-approved sponsors because they have
the authority to release unaccompanied children to a `suitable family
member' per 8 U.S.C. 1232(c).''
The definition of ``family unit'' relates to placement in the ICE
Family Residential Program. An unaccompanied alien child without a
parent or legal guardian would not meet the criteria set forth in the
definition of a ``family unit'' for these purposes. An unaccompanied
alien child would not be accompanied by a sponsor approved by HHS/ORR
until after they are transferred from DHS to HHS/ORR. Once an
unaccompanied alien child is transferred to HHS/ORR, they are no longer
within DHS's jurisdiction. Furthermore, because the purpose of this
final rule is to prevent, detect, and respond to sexual abuse and
assault in confinement facilities, addressing the treatment of a family
unit during apprehension and enforcement is outside the scope of this
rule.
Gay, lesbian, bisexual. One immigration advocacy group requested
that the final rule define these terms, in addition to already included
definitions of transgender, intersex, and gender nonconforming. The
group suggested first looking to the U.S. Citizenship and Immigration
Services (USCIS) Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI)
Asylum Module's definitions regarding sexual orientation, gay, lesbian,
heterosexual/straight, and bisexual.
After considering the comment to include these terms in the final
rule, DHS decided not to add them to the definitions section for
several reasons. First, DHS used the DOJ PREA final rule--which does
not define gay, lesbian, and bisexual--as a general guide when
determining which definitions should be included. Second, as a general
matter, the regulation currently relies on self-identification for
classification and protective purposes.
Security staff, law enforcement staff. A collection of advocacy
groups suggested that the proposed definitions' distinction between
security staff who operate at immigration detention facilities, and law
enforcement staff who operate in a holding facility, should be
eliminated and consolidated under one ``security staff'' definition so
that security personnel at each type of facility are labeled in the
same way. The groups contended that DHS does not need to differentiate
like the DOJ standards, and suggests consolidating by adding ``or
holding facility'' to the conclusion of the ``security staff''
definition.
DHS notes that under the final rule, there is a meaningful
difference between security staff and law enforcement staff. Unlike
holding facilities, which are staffed by law enforcement officers from
either ICE or CBP, immigration detention facilities use a wide range of
staffing, including personnel from private companies who are not law
enforcement officers. The general definitions of ``law enforcement
staff'' and ``security staff'' recognize this distinction and allow DHS
to tailor its rule to the specific contexts at issue.
Definitions Related to Sexual Abuse and Assault (Sec. 115.6)
Sexual abuse. One commenter stated that the current definition
should include language from the definition implemented by DOJ,
including unwelcome sexual advances, requests for sexual favors, or
verbal comments, gestures or actions of a derogatory or offensive
sexual nature. The commenter encouraged DHS to add this language
because the actions that are described in DOJ's definition seem more
likely to occur than the proposed rule's description of sexual abuse. A
number of advocacy groups commented that the part of the proposed
sexual abuse definition addressing threats, intimidation, harassment,
profane or abusive language, or other actions or communications
coercing or pressuring into a sexual act, should include ``requests''
and should also encompass ``encouraging'' detainees to engage in such
an act.
It appears that the commenters are comparing the DHS definition of
sexual abuse to the definition of sexual harassment in DOJ's standards.
DHS has not added this language because the DHS standards already
include a similar definition of sexual harassment within the current
DHS definition of sexual abuse. Specifically, the DHS definition of
sexual abuse in Sec. 115.6 forbids ``threats, intimidation, or other
actions or communications by one or more detainees aimed at coercing or
pressuring another detainee to engage in a sexual act.'' DHS believes
that this coverage under the definition of sexual abuse is sufficient
and accomplishes the objective sought by the commenter. DHS also notes
that the standards include sexual harassment in the definition of staff
on detainee sexual abuse.
Regarding the proposed rule's provision on inappropriate visual
surveillance, certain advocacy groups requested that the standards
specifically include within the definition of sexual abuse acts of
voyeurism by staff members, contractors, or volunteers. The commenters
suggested that explicitly incorporating voyeurism into the definition
was necessary in order to capture the complete scope of prohibited
behavior. The suggested more expansive definition would include
unnecessary or inappropriate visual surveillance of a detainee,
including requiring a detainee to expose his or her buttocks, genitals,
or breasts, or unnecessarily viewing or taking images of all or part of
a detainee's naked body or of a detainee performing bodily functions.
DHS has considered this suggested addition to the standards and the
DHS final rule now expressly includes voyeurism by a staff member,
contractor, or volunteer as a type of sexual abuse. Voyeurism is
defined as ``inappropriate visual surveillance of a detainee for
reasons unrelated to official duties. Where not conducted for reasons
relating to official duties, the following are examples of voyeurism:
Staring at a detainee who is using a toilet in his or her cell to
perform bodily functions; requiring an inmate detainee to expose his or
her buttocks, genitals, or breasts; or taking images of all or part of
a detainee's naked body or of a detainee performing bodily functions.''
One commenter suggested that the sexual abuse definition account
for a detained child's legal inability to consent to sex with an adult.
DHS recognizes the extreme importance of protecting minors while in
custody and remains fully committed to that end.
[[Page 13110]]
DHS notes that existing Federal and State laws legally preclude the
possibility of consent by a detainee to sexual relations with a staff
member while in custody, and moreover provide that any such sexual acts
be criminalized, regardless of the age of the detainee. DHS considers
the existence of these legal prohibitions outside the context of the
regulation to authoritatively establish the legal inability of a child
to consent to sex with an adult while in detention. For this reason,
DHS declines to incorporate additional language to the regulation in
response to the comment.
Coverage of DHS Immigration Detention Facilities (Sec. 115.10);
Coverage of DHS Holding Facilities (Sec. 115.110)
Summary of Proposed Rule
The standards contained in the proposed rule clarified that ICE
immigration detention facilities are governed by Subpart A of the rule.
DHS holding facilities are governed by Subpart B. DHS recognizes that
to effectively prevent, detect, and respond to sexual abuse in its
facilities, DHS must have strong standards appropriate to each unique
context. Immigration detention facilities and holding facilities are
different by nature and need to have a respectively different set of
standards tailored to each of them for an effective outcome.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. Regarding coverage, one organization expressed concern
that agency policies should include zero tolerance of sexual abuse
during transportation of detainees in DHS custody, as well as in
detention facilities. The group suggested stating in Subpart B's
coverage standard that the standard covers transportation to or from
DHS holding facilities in addition to holding facilities themselves.
Response. Please see DHS's response in the discussion of Sec.
115.5 above.
Zero Tolerance; PSA Coordinator (Sec. Sec. 115.11, 15.111)
Summary of Proposed Rule
The standards in the proposed rule required that each covered
agency have a written zero-tolerance policy toward sexual abuse,
outlining the agency's approach to preventing, detecting, and
responding to such conduct. DHS also proposed that each covered agency
appoint an upper-level, agency-wide PSA Coordinator to oversee agency
efforts to comply with the DHS standards and that each immigration
detention facility covered by Subpart A have its own written zero-
tolerance policy and appoint a Prevention of Sexual Assault (PSA)
Compliance Manager to oversee facility efforts in this regard.
Changes in Final Rule
DHS is adopting the regulation as proposed, with one technical
revision to the PSA Coordinator's title.
Comments and Responses
Comment. The organization that suggested changes regarding covering
transportation in Sec. 115.110 also recommended revising paragraph (b)
to include in the PSA Coordinator's responsibilities for protecting
detainees in the agency's custody, including detainees being
transported to or from its holding facilities while in DHS custody, in
addition to those held in all of its holding facilities.
Response. As previously stated, DHS has zero tolerance for all
forms of sexual abuse and assault of individuals in custody. This
applies to DHS custodial transport to and from holding facilities and
immigration detention facilities, between a holding facility and a
detention facility, and for the purposes of removal. The PSA
Coordinators will oversee all component efforts to comply with the
standards, including zero tolerance. It is not necessary to revise the
rule to include a reference to transportation.
Comment. Former NPREC Commissioners noted that under the proposed
standards, facilities have considerable discretion to determine their
sexual abuse policies; therefore, prior to permitting detainees to be
confined in a facility, DHS should ensure its policies are consistent
with PREA standards.
Response. DHS concurs that it is important to ensure that facility
policies are consistent with PREA standards. Section 115.11(c) already
requires DHS to review each facility's sexual abuse and assault policy,
as required by subsection (c). Therefore, no additional changes are
required.
Comment. An advocacy group commented generally that DHS should
allocate sufficient staff and provide them with the authority and time
to continually monitor the policies enacted by the facilities to
reflect the zero-tolerance goal.
Response. DHS recognizes the importance of dedicating personnel to
implement, monitor, and oversee these efforts and has employed a full-
time PSA Coordinator. Section 115.11(b) already provides that the PSA
Coordinator shall have sufficient time and authority to monitor
implementation.
Contracting With Non-DHS Entities for Confinement of Detainees
(Sec. Sec. 115.12, 115.112)
Summary of Proposed Rule
The standards contained in the proposed rule required that covered
agencies that contract for the confinement of detainees include in new
contracts or contract renewals the other party's obligation to comply
with the DHS sexual abuse standards.
Changes in Final Rule
DHS revised Sec. Sec. 115.12 and 115.112 to require the agency to
include the entity's obligation to adopt and comply with these
standards in all substantive contract modifications.
Comments and Responses
Comment. Multiple commenters suggested that contract facilities or
IGSA facilities housing detainees should be required to adopt DHS
sexual abuse standards within a specified timeframe, with some urging
no delay in application and others urging compliance within 90 days or
a year after the standards' effective date. The commenters believe that
without a specific timeframe, or compliance schedule similar to that
applicable to DHS's own facilities, contract facilities could delay
implementing these standards. Commenters expressed concern over the
potential lag between the standards' effective date and their
implementation at non-DHS facilities.
Among the commenters that recommended requiring adoption of the
standards during any contract modification, some commenters suggested a
set timeline of 90 days after the standards' effective date for DHS to
proactively initiate contract modification or modification-related
negotiations with any existing non-DHS facility. One such commenter
suggested eliminating ``contact renewals'' as a scenario for when
compliance with the standards would be triggered. The commenters also
proposed that any such negotiations conclude within 270 days of the
standards' effective date. Additionally the commenters, in paragraph
(b), would also include ``contract modifications'' in the monitoring
process, to allow DHS to monitor compliance for modified contracts.
Commenters also recommended that DHS create a new requirement that any
failure to adopt the changes via contract in the specified
[[Page 13111]]
timeframe would disqualify the facility from continuing to detain
individuals until remedied. One group suggested that compliance with
the proposed 90-day timeline be verified by an independent auditing
process.
Response. Based on ICE's past experience with the contract
negotiation process, it can take one year or more to complete a
contract renegotiation for a single detention facility. ICE cannot
reasonably conduct such large numbers of contract negotiations
simultaneously in such a short period of time. Given that there are 132
covered immigration detention facilities that would need to adopt the
standards, without some additional appropriation to address these
staffing and logistical challenges, bringing contract negotiations to
conclusion within one year is not operationally feasible.
DHS remains committed to protecting its immigration detainees from
incidents of sexual abuse and assault. With that goal in mind, DHS,
through ICE, will endeavor to ensure that SPCs, CDFs, and dedicated
IGSAs adopt the standards set forth in this regulation within 18 months
of the effective date. These facilities currently hold more than half
of the immigration detainees in ICE custody and therefore should be
DHS's highest priority.
DHS, through ICE, will also make serious efforts to initiate the
renegotiation process with the remaining covered facilities as quickly
as operational and budgetary constraints will allow. As a matter of
policy, DHS will seek to prioritize implementation to reduce the most
risk as early as possible, taking into consideration all relevant
factors, including the resources necessary to reopen and negotiate
contracts, the size and composition of each facility's detainee
population, the marginal cost of implementing the standards of each
facility, the detention standards currently in effect at each facility,
the prevalence of substantiated incidents of sexual abuse at each
facility, and other available information related to the adequacy of
each facility's existing safeguards against sexual abuse and assault.
In further recognition of DHS's pledge to abide by the principles
set forth in this regulation, DHS has revised Sec. Sec. 115.12 and
115.112 to require components to include these standards in contracts
for facilities that undergo any substantive contract modification after
the effective date. Under this provision, DHS would include the PREA
standards in any contract modification that affects the substantive
responsibilities of either party. (Covered substantive contract
modifications would include, for example, changes to the bed/day rate
or the implementation of stricter standards, but not the designation of
a new Contracting Officer.) This change endeavors to ensure that
facilities come into compliance with the regulation at a faster rate,
but not in a manner that is operationally impossible for DHS.
Comment. Former Commissioners of NPREC raised an issue regarding
applicability of DOJ and DHS standards. The former Commissioners
recommended that DHS clarify which of the two sets of standards applies
to immigration detainees held in state prisons or jails, lock-ups, or
community residential settings. According to the comment, DOJ's
standards are ``facility driven'' as opposed to driven by sub-
population of inmates. ``If a facility meets one of the definitions for
covered facility types under DOJ's Standards, then the Standards apply
to the entire facility.'' The former Commissioners therefore urged that
DHS clarify the application of DHS standards in facilities also covered
by the DOJ standards.
The former Commissioners also recommended that DHS ensure that its
detainees benefit from the most protective standards possible,
regardless of whether their detainees happened to be placed in a DOJ-
covered facility. To that end, the former Commissioners recommended
that DHS avoid comingling DHS detainees with other populations. This
would ease application of immigration standards to immigration
detainees and provide them the special protections they need, so--for
facilities housing inmates and detainees--housing detainees separately
throughout their time in custody is necessary.
Response. As noted above, DHS, through ICE, will endeavor to ensure
that SPCs, CDFs, and dedicated IGSAs adopt the standards set forth in
this regulation within 18 months of the effective date. These
facilities currently hold more than half of the immigration detainees
in ICE custody and therefore are appropriately DHS's highest priority.
When DHS and a facility agree to incorporate these standards into a
contract, such standards are binding on the facility with respect to
DHS detainees, notwithstanding any separate obligations the facility
might have under the DOJ rule. DHS's standards, though not identical
with DOJ's standards, are not inconsistent with them either.
While some immigration detention facilities only house immigration
detainees, for operational and financial reasons, ICE cannot rely
solely on such facilities to meet the agency's detention needs. As a
result, some detainees are held in non-dedicated IGSAs and a
significant number (approximately 20 percent of the average daily
population of ICE detainees) are also held in BOP facilities or state,
local, and private facilities operated under agreement between the
servicing facility and a component of DOJ. Such agreements are often
negotiated and executed by USMS. DHS components can benefit from such
agreements as authorized users and via other indirect arrangements,
which often do not afford DHS an opportunity to negotiate specific
terms and conditions at length. For these facilities, DHS relies on
DOJ's national standards to provide a baseline of PREA protections.
In part because DHS does not currently maintain privity of contract
with these facilities, however, DHS does not consider them to fall
within the ambit of Sec. Sec. 115.12 and 115.112. The standards set
forth in Subpart A do not apply to facilities used by ICE pursuant to
an agreement with a DOJ entity (e.g., BOP facilities) or between a DOJ
entity (e.g., USMS) and a state or local government or private entity.
These facilities are not immigration detention facilities as the term
is defined in the regulation because they are not ``operated by or
pursuant to contract with U.S. Immigration and Customs Enforcement.''
Instead, the servicing facility, including its immigration detainees,
is covered by the DOJ PREA standards.
Similarly, holding facilities that are authorized for use by ICE
and CBP pursuant to an agreement between a DOJ entity and a state or
local government or a private entity are not included in the definition
of holding facility in Sec. 115.5 or the scope provision in Sec.
115.112 because DHS is not a party to the agreement with the servicing
facility and these facilities are not under the control of the agency.
DHS recognizes that facilities might find it easier to comply with
a single set of standards, rather than multiple standards
simultaneously. DHS has attempted to strike a balance that covers as
many detainees as possible, without imposing unnecessary burdens on
facilities. DHS's approach in this area is consistent with the
Presidential Memorandum, which specifically directed Federal agencies
with confinement facilities that are not already subject to the DOJ
final rule to establish standards necessary to satisfy the requirements
of PREA. The Memorandum stated clearly that each agency is responsible
for, and must be accountable for, the operations of its own confinement
facilities. VAWA 2013
[[Page 13112]]
confirmed this view, by requiring that DHS finalize standards for
``detention facilities operated by the Department of Homeland Security
and . . . detention facilities operated under contract with the
Department.'' The latter category ``includes, but is not limited to
contract detention facilities and detention facilities operated through
an intergovernmental service agreement with the Department of Homeland
Security.'' 42 U.S.C. 15607.
In short, DHS believes that facilities will know which standards to
apply based on their relationship with DHS and the agreements they have
executed. DHS and DOJ are committed to ensuring smooth implementation
of their respective standards. If implementation reveals that
facilities would benefit from further guidance regarding the
applicability of each agency's standards, DHS and DOJ will work to
provide such guidance. DHS makes no changes to the regulatory text as a
result of this comment.
Comment. One commenter suggested that DHS further clarify more
directly how the standards apply to private parties contracting with
the government, noting concern about a possibility that contractual
remedies will serve as insufficient deterrents against such private
contractors who may potentially violate the standards.
Response. DHS recognizes the concern of commenters that private
entities running detention facilities adequately comply with these
standards. DHS currently enforces detention standards through contracts
with facilities and believes that PREA will be effectively implemented
through new contracts, contract renewals, and substantive contract
modifications. DHS, through ICE, can transfer detainees from facilities
that do not uphold PREA standards after adoption and it can terminate a
facility's contract, which ICE has done in the past and will continue
to do if a facility is unable to provide adequate care for detainees.
Comment. A range of advocacy groups suggested adding a paragraph to
Sec. 115.12 that would mirror the provision in Subpart B's similar
proposed standard at Sec. 115.112. The change would require all
standards in Subpart A that apply to the government also apply to the
contractor and all rules that apply to staff or employees also apply to
contractor staff; the groups expressed concern that without this
language, poorly performing contractors could attempt to excuse
themselves when failing to fully comply with the standards.
Response. DHS declines to add paragraph (c) from Sec. 115.112 to
Sec. 115.12 based on the inherent differences between the facilities
covered by Subpart A and Subpart B, respectively. To the extent
appropriate, Subpart A applies to DHS employees and contractors alike;
as Sec. 115.5 states, the term ``staff'' includes ``employees or
contractors of the agency or facility, including any entity that
operates within the facility.''
DHS included Sec. 115.112(c) in Subpart B because DHS rarely uses
contractors to run holding facilities and would only need to use
contractors on a short-term basis. In rare instances where DHS
contracts for holding facility space, paragraph (c) provides an
additional layer of protection; despite the short-term nature of the
detention, contractors must be fully aware of the obligation to abide
by the standards set forth in this rule.
Comment. Former NPREC Commissioners suggested that the standard
include a requirement that all contracts entered into between DHS and
contracting facilities directly, through IGSAs, or through other
arrangements include contract language requiring that the facilities
abide by the applicable PREA standards. Some commenters suggested
provisions regarding consequences for failure of contract facilities to
comply with PREA, including taking away funding from noncompliant
facilities, removing detainees, and closer monitoring or even criminal
or civil sanctions for facilities that fail to comply repeatedly.
Relatedly, some members of Congress have suggested strict and tangible
sanctions for noncompliance, include termination of contracts, to
ensure that individuals will not be housed in facilities that cannot
protect them.
Response. As noted above, the final rule requires that the DHS
include in new contracts, contract renewals, and substantive contract
modifications the entity's obligation to adopt and comply with the
standards set forth in this regulation. DHS disagrees about the need to
articulate punitive measures for noncompliant facilities in the
regulation. DHS, through ICE, has longstanding and well-established
procedures for sanctioning under-performing facilities that violate its
detention standards, including by putting any detainee in danger. For
example, if ICE determines that a facility is not compliant with
relevant detention standards, it can reduce the number of detainees
held by the facility or impose a corrective action plan on the
facility. If ICE determines that detainees remain at risk, ICE will
terminate the facility's contract and remove all detainees from the
facility.
Comment. One advocacy group suggested requiring robust oversight of
the standards' implementation in contract facilities, including
descriptions of the manner in which contract monitoring will be
conducted, the frequency of monitoring, and the party or parties
responsible for monitoring.
Response. Once the standards set forth in this regulation are
adopted by a facility, the facility will be expected to comply with
them and will be subjected to DHS and ICE's multi-layered inspection
and oversight process which will include an evaluation of compliance
with these standards.
Currently at ICE, ERO contracts for independent inspectors to
review conditions of confinement at ICE facilities on an annual or
biennial basis, with follow-up inspections scheduled as required. All
ICE facilities with an average daily population of 50 or more detainees
are inspected on an annual basis. In addition, ERO employs 40 on-site
Federal Detention Service Managers (DSMs) at key ICE detention
facilities to monitor and inspect components of facility operations for
compliance with ICE detention standards. Currently, DSMs are assigned
to 52 detention facilities, covering approximately 83 percent of ICE's
detained population. ERO also contracts for a Quality Assurance Team
(QAT) comprised of three subject matter experts in the fields of
corrections and detention. The QAT performs quality assurance reviews
at the facilities that have assigned DSMs. The purpose of the QAT
reviews is to ensure that DSMs are effectively monitoring the
operations of the facility and addressing concerns.
The ICE Office of Detention Oversight (ODO), within the Office of
Professional Responsibility (OPR), conducts compliance inspections at
selected detention facilities where detainees are housed for periods in
excess of 72 hours. ODO selects facilities to inspect based on a
variety of considerations, including significant compliance issues or
deficiencies identified during ERO inspections, concerns identified or
raised by the DSMs, detainee complaints, and allegations reported or
referred by the DHS Office of Inspector General (OIG) or the ICE JIC.
ODO provides its compliance inspection reports, recommendations and
identified best practices to ERO and ICE leadership who ensure
appropriate corrective action plans are developed and put in place at
detention facilities.
At the Department level, CRCL reviews allegations related to civil
rights and civil liberties issues in immigration detention facilities.
The OIG also may
[[Page 13113]]
respond to certain complaints by conducting investigations. The OIG
will refer certain complaints to ERO.
Detainee Supervision and Monitoring (Sec. Sec. 115.13, 115.113)
Summary of Proposed Rule
The standards contained in the proposed rule required the agency or
the facility to make its own comprehensive assessment of adequate
supervision levels, taking into account its use, if any, of video
monitoring or other technology. The agency or facility must reassess
such adequate supervision and monitoring at least annually and the
assessment will include an examination of the adequacy of resources it
has available to ensure adequate levels of detainee supervision and
monitoring. Each immigration detention facility must also conduct
frequent unannounced security inspections to identify and deter sexual
abuse of detainees.
Changes in Final Rule
DHS added two factors for the facility to consider when determining
adequate levels of detainee supervision and determining the need for
video monitoring. These factors are (1) generally accepted detention
and correctional practices and (2) any judicial findings of inadequacy.
DHS also made a minor change to Sec. 115.13(d). Instead of
prohibiting staff from alerting others that ``supervisory rounds'' are
occurring, DHS prohibits staff from alerting others about the
``security inspections.'' The purpose of this change is to make the
provision more consistent with the rest of the paragraph, which refers
to such checks as security inspections rather than supervisory rounds.
Comments and Responses
Comment. A number of commenters requested generally that this
section more closely resemble DOJ's standards regarding supervision and
monitoring. A human rights advocacy group requested that DOJ's more
specific list of factors in paragraph (a) be included. Under this
approach, the rule would explicitly require facilities to consider,
when determining adequate staffing levels, past findings of supervision
inadequacies by courts or internal or external oversight bodies. These
considerations would be in addition to the considerations set forth in
the proposed section's paragraph (c), which provides that ``the
facility shall take into consideration the physical layout of each
facility, the composition of the detainee population, the prevalence of
substantiated and unsubstantiated incidents of sexual abuse, the
findings and recommendations of sexual abuse incident review reports,
and any other relevant factors, including but not limited to the length
of time detainees spend in agency custody.''
Response. DHS respectfully disagrees with the notion that its
supervision and monitoring provision must include the same enumerated
factors included in DOJ's regulation regarding facilities. DOJ's rule
is intended to cover a broad range of Federal and State facilities
managed and overseen by a variety of different government
organizations. By contrast, ICE oversees detainee supervision and
monitoring at all immigration detention facilities. ICE uses its well-
established detention standards to ensure that facilities are properly
and effectively supervising detainees. DHS agrees, however, that a
number of factors from DOJ's regulation have application in the DHS
context. DHS has therefore incorporated into its regulation the
following two additional factors: (1) Generally accepted detention and
correctional practices and (2) any judicial findings of inadequacy.
Comment. A number of comments addressed the requirements for
security inspections. Regarding the standard in Sec. 115.113 for
holding facilities specifically, one organization suggested that DHS
add a requirement that such facilities conduct periodic unannounced
security inspections just as in Subpart A, stating that video
monitoring is not a substitute for adequate staffing and also
suggesting that the clauses in both proposed sections allowing video
monitoring where applicable be struck from paragraph (a) and instead
included in paragraph (b) as a part of the requirement to develop and
document supervision guidelines.
Response. DHS defines a holding facility similarly to DOJ's
definition of ``lockup.'' The DOJ rule requires unannounced security
inspections of adult prisons and jails, but not of lockups. Similarly,
DHS provides for such inspections in its immigration detention
facilities, but not in its holding facilities. This is because holding
facilities, like lockups, generally provide detention for much shorter
periods of time.
Comment. Commenters suggested adding another requirement for
intermediate-level or higher-level supervisors to conduct more
inspections.
Response. DHS notes that by focusing on having only mid- to high-
level supervisors conduct inspections, the facilities would not be
effectively accomplishing the main purpose of the provision, which is
to deter sexual assault and abuse. DHS believes that facility staff are
trained and qualified to conduct security inspections and that these
inspections are an effective and efficient deterrent to sexual abuse
and assault. Because deterrence is the primary purpose of this
requirement, and because, in its experience, non-supervisory
inspections are an effective deterrent, DHS declines to make the
suggested revisions.
Comment. Another comment criticized Sec. 115.13 generally for not
articulating the frequency (e.g., regular inspections) or location of
the inspections (e.g., throughout the facility). The commenter believed
this would result in minimal deterrent effect and low likelihood of
identifying misconduct as it occurs.
Response. DHS notes that paragraph (d) provides for unannounced
security inspections, which may occur with varying frequency and in any
part of a facility. These unannounced inspections are meant to act as a
deterrent, and are not meant to catch detainees and/or staff in acts of
sexual assault or abuse. Unannounced security inspections are an
effective tool used by facilities to deter a wide range of detainee and
employee misconduct.
Comment. Multiple commenters suggested additional requirements for
the proposed standards on developing and documenting comprehensive
detainee supervision guidelines. One comment recommended that DHS
require facility-specific development and implementation of a concrete
staffing and monitoring plan, with a specific provision for adequate
numbers of supervisors. Another comment recommended that DHS adopt an
analogue to paragraph (b) of the DOJ standard, which requires that
``the facility shall document and justify all deviations from the
[staffing] plan.'' Comments also suggested that the agency also
document any needed adjustments identified in the annual review, and
that--when not in compliance with the staffing plan--a facility should
be required to document and justify all deviations, for measuring and
compliance during auditing and oversight.
Response. These standards require that each immigration detention
facility develop and document comprehensive detainee supervision
guidelines, to ensure that the facility maintains sufficient
supervision of detainees to protect detainees against sexual abuse. As
explained above, the sufficiency of supervision depends on a variety of
factors, including, but not limited to, the physical layout of each
facility, the
[[Page 13114]]
composition of the detainee population, and each facility's track
record in detainee protection.
Currently, NDS relies on performance-based inspections to determine
whether a facility has adequate supervision and monitoring. ICE's 2008
PBNDS and 2011 PBNDS require that facility administrators determine the
security needs based on a comprehensive staffing analysis and staffing
plan that is reviewed and updated at least annually. Section 115.13
enhances ICE's detention standards by requiring that facilities develop
and document comprehensive detainee supervision guidelines which will
be reviewed annually. Unlike the facilities that fall under DOJ's final
rule, ICE has direct oversight over immigration detention facilities
and can, through its well-established inspection process, effectively
determine whether a facility's detainee supervision guidelines are
inadequate and whether a facility is not providing adequate supervision
and monitoring.
Furthermore, requiring every facility to adopt specific staffing
ratios under this regulation could significantly increase contract
costs without commensurate benefits. In short, DHS has determined that
it can make more effective use of limited resources by mandating
comprehensive guidelines that each facility will review annually and
auditors will examine on a regular basis.
DHS declines to require facilities to document deviations from
supervision guidelines because we do not believe this additional
documentation would materially assist ICE monitoring of conditions
generally and compliance with the supervision guidelines in particular.
Through its comprehensive facility oversight and inspection programs,
ICE has sufficient tools to ensure that facilities effectively
supervise detainees and comply with these regulations. And if ICE
determines after an inspection that a facility has failed to meet the
standards set forth in Sec. 115.13 or failed adequately justify
deviations from supervision guidelines, ICE has direct authority to
remove detainees from the facility. DHS has therefore elected to
proceed with the proposed rule's approach.
Comment. One group suggested that, in regard to the standard on
determining adequate levels of detainee supervision and video
monitoring in paragraph (c), an annual review should assess
effectiveness and identify changes that may be necessary to improve
effectiveness and allow implementation.
Response. As discussed above, staffing levels, detainee
supervision, and video monitoring are inspected on a regular basis.
Once a facility adopts these standards, it also will be subject to
regular auditing by an outside entity pursuant to the audit requirement
in this regulation. Under section 115.203, such audits must include an
evaluation of (1) whether facility policies and procedures comply with
relevant detainee supervision and monitoring standards and (2) whether
the facility's implementation of such policies and procedures does not
meet, meets, or exceeds the relevant standards. 6 CFR 115.203(b)-(c).
Juvenile and Family Detainees (Sec. Sec. 115.14, 115.114)
Summary of Proposed Rule
The standards contained in the proposed rule required juveniles to
be detained in the least restrictive setting appropriate to the
juvenile. The Subpart A standard required immigration detention
facilities to hold juveniles apart from adult detainees, minimizing
sight, sound, and physical contact, unless the juvenile is in the
presence of an adult member of the family unit, and provided there are
no safety or security concerns with the arrangement. That standard
further required that facilities provide priority attention to
unaccompanied alien children, as defined by 6 U.S.C. 279, who would be
transferred to an HHS/ORR facility.
Changes in Final Rule
DHS made minor changes to Sec. 115.14(a), (d), and (e) of the
final rule. The ``in general'' and ``should'' language that was
suggested in the NPRM was removed in paragraph (a) to ensure a clear
requirement that juveniles shall be detained in the least restrictive
setting appropriate to the juvenile's age and special needs, provided
that such setting is consistent with the need to protect the juvenile's
well-being and that of others, as well as with any other laws,
regulations, or legal requirements.
DHS made a technical change to paragraph (d) to maintain
consistency between this regulation and the statutory provision at 8
U.S.C. 1232(b)(3). DHS clarified that paragraph (e) does not apply if
the juvenile described in the paragraph is not also an unaccompanied
alien child.
Regarding the Subpart B standard at Sec. 115.114, DHS added the
same change in paragraph (a) as in Sec. 115.14(a) for consistency. DHS
also added more specific language in paragraph (b) to require that
unaccompanied juveniles generally be held separately from adult
detainees. The final standard also clarifies that a juvenile may
temporarily remain with a non-parental adult family member if the
family relationship has been vetted to the extent feasible, and the
agency determines that remaining with the non-parental adult family
member is appropriate, under the totality of the circumstances.
Comments and Responses
Comment. Commenters expressed concern that the standards should not
allow for housing of juveniles in adult facilities, particularly if not
held with adult family members. One human rights advocacy group stated
that as proposed, the standard on separating juveniles does not set
forth specific steps to prevent unsupervised contact with adults.
Response. It is DHS policy to keep children separate from unrelated
adults whenever possible. To take into account, in part, the resulting
settlement agreement between the legacy INS and plaintiffs from class
action litigation, known as the Flores v. Reno Settlement Agreement
(FSA), INS--and subsequently DHS--have put in place policies covering
detention, release, and treatment of minors in the immigration system
nationwide. Both the FSA and the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (TVPRA) inform DHS
policies regarding juveniles. There are sometimes instances in which
ICE personnel reasonably believe the juvenile to be an adult because
the juvenile has falsely represented himself or herself as an adult and
there is no available contrary information or reason to question the
representation. Under existing policy, ICE officers must base age
determinations upon all available evidence regarding an alien's age,
including the statement of the alien.
In promulgating these PREA standards, DHS attempted to codify the
fundamental features of its policy in regulation, while maintaining a
certain amount of flexibility for situations such as brief confinement
in temporary holding facilities. Additionally, DHS, through ICE, must
and does enforce the Juvenile Justice and Delinquency Prevention Act,
which requires that alien juveniles not charged with any offense not be
placed in secure detention facilities or secure correctional facilities
and not be detained or confined in any institution in which they have
contact with adult inmates. See 42 U.S.C. 5633.
Comment. Former Commissioners of NPREC and other groups recommended
that both the Subpart A and B standards require all sight and sound
separation from non-familial adults, as DOJ's standard does. Some
members of Congress commented generally that the
[[Page 13115]]
standards on housing of juveniles should be revisited to be in line
with DOJ's standard. For the Subpart A standard, comments suggested
more explicit language requiring facilities to separate juveniles by
sight, sound, and physical contact to clarify the degree of separation
required; they recommended that DHS eliminate the language of
``minimizing'' such situations.
Regarding the Subpart B standard, a commenter suggested physical
contact, sight, and sound restrictions be in place particularly for
shared dayrooms, common spaces, shower areas, and sleeping quarters.
Similarly, one group comment suggested adding language to define the
meaning of ``separately'' in Subpart B's unaccompanied alien children
provision to ensure placement outside of the sight and sound of, and to
prevent physical contact with, adult detainees to the greatest degree
possible.
Response. Regarding Subpart A, DHS does not believe the suggested
changes are appropriate, as the DHS standard is tailored to the unique
characteristics of immigration detention and the variances among
confinement facilities for DHS detainees. With respect to the Subpart A
standard for immigration detention facilities, juveniles are primarily
held in such facilities under the family residential program. (Rarely,
DHS must detain a minor who is not unaccompanied but who is, for
example, a lawful permanent resident who has committed a serious crime.
In this rare circumstance, DHS uses an appropriate juvenile detention
facility which is subject to regular inspection by ICE.) Under the
family residential program, juveniles are held with adult family
members--not solely with other juveniles as would be the case in the
context of DOJ's traditional juvenile settings. Juveniles in the family
residential setting for immigration detention may have some contact
with adults; however, an adult family member will be present. Given the
unique nature of the family detention setting, maintaining the
standard's language as proposed is the best and most straightforward
way to meet PREA's goals.
The burden of inserting additional specific restrictions would be
particularly high because unaccompanied alien children are generally
transferred to an HHS/ORR facility within a short period of time--72
hours at most--after determining that he or she is an unaccompanied
alien child, except in exceptional circumstances.\10\ DHS does not
believe the best approach is to wholly transfer DOJ's standard, which
fits the correctional system rather than immigration juvenile detention
system, to the DHS context in the manner described by the commenters.
---------------------------------------------------------------------------
\10\ ICE will occasionally and for short periods of time house
unaccompanied alien children whose transfer to HHS/ORR is pending in
IGSA juvenile detention facilities. These facilities are subject to
inspection and oversight by ICE.
---------------------------------------------------------------------------
Regarding the Subpart B standard, DHS notes that its standard is
consistent with, and in some ways more detailed than, the analogous DOJ
standard. Finally, DHS intends that the word ``separately'' be
understood according to the plain meaning of the word. To keep the
standards straightforward and easily administrable, DHS declines to
create a separate definition of the term for purposes of these
standards.
Comment. One commenter suggested adding requirements for separation
outside of housing units to mirror the DOJ standard's requirement of
sight and sound separation. The commenter also recommended adding
requirements for direct staff supervision when not separated.
Response. Consistent with the reasoning above, DHS does not believe
changes to conform with the DOJ standard in this manner are
appropriate, as the DHS standard is tailored to the unique
characteristics of immigration detention and the variances among
confinement facilities for DHS detainees.
Comment. An immigration advocacy group commented that it had
received preliminary data as a result of a request under the Freedom of
Information Act, and that data show thousands of children, including
many under the age of 14, have been housed in adult facilities. The
commenter wrote that such a practice would violate the terms and
conditions of the FSA, which sets forth a policy for the detention,
release, and treatment of minors in the custody of then-INS and
requires that unaccompanied minors be generally separated from
unrelated adults. The commenter also wrote that PREA regulations that
discourage but do not prohibit this practice are insufficient to
protect this exceptionally vulnerable population from potential sexual
abuse.
Response. DHS has examined available data on this subject, and
determined that the commenter's conclusions do not reflect ICE
practices. DHS assures the commenter as follows:
Any individual who claims to be a juvenile during
processing or while in detention is immediately separated from the
general adult population pending the results of an investigation into
the claim;
All unaccompanied alien children are required to be
transferred to an HHS/ORR facility within 72 hours after determining
that the child is an unaccompanied alien child, except in exceptional
circumstances;
As stated in Sec. 115.14(b), juveniles will be held with
adult members of the family unit only when there are no safety or
security concerns with the arrangement; and
As indicated in Sec. 115.114, if juveniles are detained
in holding facilities, they shall generally be held separately from
adult detainees. Where, after vetting the familial relationship to the
extent feasible, the agency determines it is appropriate, under the
totality of the circumstances, the juvenile may temporarily remain with
a non-parental family member.
Comment. Some commenters suggested that more explicit language be
incorporated in the standards to prevent abusive use of restrictive
confinement in all types of facilities. Multiple groups expressed
concern that administrative segregation for juveniles must be limited.
One group stated that any separation of juveniles from adult
facilities, which it supported, should not subject them to harmful
segregation or solitary confinement. Others suggested strict limits,
including for all forms of protective custody, with a collection of
groups suggesting an explicit prohibition on administrative segregation
and solitary confinement if needed to comply with the juvenile and
family detainee requirements. The groups suggested removing the phrase
``[in] general'' in paragraph (a) of the Subpart A and B standards
regarding making juvenile detention as least restrictive as possible.
One organization suggested requirements for when isolation is necessary
to protect a juvenile, including documenting the reason therefor,
reviewing the need daily, and ensuring daily monitoring by a medical or
mental health professional.
Response. Upon reconsideration based upon these comments, DHS has
concluded that in the interest of clarity removing the introductory
words ``[in] general'' from paragraph (a) is appropriate. However, DHS
does not see a need for an explicit regulatory prohibition on
administrative segregation, solitary confinement, and the like in this
context; concerns about overly restrictive confinement for juveniles
should be alleviated by the strong standards in both subparts--further
strengthened in this final rule--requiring juveniles to be detained in
the least restrictive setting appropriate to the juvenile's age and
special needs, taking into account safety concerns,
[[Page 13116]]
laws, regulations, and legal requirements. Administrative segregation
and solitary confinement clearly do not comply with the requirement
that juveniles be detained in the ``least restrictive setting
appropriate.''
Additionally, the TVPRA mandates that, except in exceptional
circumstances, DHS turn over any unaccompanied child to HHS/ORR within
72 hours of determining that the child is an unaccompanied alien child
and that ORR promptly place the child in the least restrictive setting
that is in the child's best interest. See 8 U.S.C. 1232(b)(3),
(c)(2)(A).\11\ Therefore, the types of segregation described by the
commenters are generally neither feasible nor permissible for such
children.
---------------------------------------------------------------------------
\11\ In addition, under 8 U.S.C. 1232(c)(2)(B), if an
unaccompanied alien child reaches 18 years of age and is transferred
to DHS custody, DHS must consider placement in the least restrictive
setting available after taking into account the alien's danger to
self, danger to the community, and risk of flight. Such aliens are
eligible to participate in alternative to detention programs,
utilizing a continuum of alternatives based on the alien's need for
supervision, which may include placement of the alien with an
individual or an organizational sponsor, or in a supervised group
home.
---------------------------------------------------------------------------
These concerns appear even further diminished when taking into
account that under ICE policy juveniles are to be supervised in an
alternate setting which would generally not include administrative
segregation. Because Subpart A of these standards implements safeguards
that will allow a juvenile to be in the presence of an adult member of
the family unit when no safety or security concerns exist, accompanied
children remaining in immigration detention will not present situations
of serious concern either. For these same reasons, DHS declines to
adopt the additional suggested requirements regarding isolation.
Comment. Multiple commenters recommended that when possible and in
the best interest of the juvenile, family units should remain intact
during detention. Some commenters suggested that DHS include this
principle in the regulation. Some commenters also recommended expanding
the definition of family unit to account for more expansive
understandings of parentage and guardianship in many countries of
origin. They suggested that if there are concerns about a child's
safety with a family member, other than a parent or legal guardian, DHS
assess the relationship and safety and make appropriate placements,
including admitting such a family unit while providing separate housing
for the child in the same facility.
Response. For immigration detention facilities, DHS has set a
regulatory ``floor'' in Sec. 115.14 and in the regulatory definition
of family unit. This suite of requirements provide that facilities do
not hold juveniles apart from adults if the adult is a member of the
family unit, provided there are no safety or security concerns with the
arrangement. DHS holds immigration detention facilities and holding
facilities accountable for complying with a range of policy, and now
regulatory, requirements.
With respect to the suggestion that DHS add regulatory language
addressing intact family unit detention, DHS declines to adopt such a
standard. ICE has found that the PREA standards' definition of family
unit and current ICE policy, specifically ICE's Family Detention and
Intake Guidance, has worked well, and to the extent that deficiencies
might exist, DHS does not believe that addressing them in regulation
would be beneficial to the affected population.
With respect to expanding the regulation's treatment of the family
unit beyond the parent or legal guardian, DHS declines to expand the
``family unit'' definition, given the legal requirement for DHS to
transfer unaccompanied alien children to HHS, generally within 72 hours
of determining that the child is an unaccompanied alien child. See 8
U.S.C. 1232(b)(3). Under the Homeland Security Act of 2002, adopted by
the TVPRA, an ``unaccompanied alien child'' is defined, in part, as a
child for whom ``there is no parent or legal guardian'' either in the
United States or available in the United States to provide care and
custody. 6 U.S.C. 279(g)(2); see also 8 U.S.C. 1232(g). DHS's
definition of ``family unit'' takes these provisions on unaccompanied
alien children into account.
However, for Subpart B, as indicated above, DHS has revised Sec.
115.114 to provide that where the agency determines that it is
appropriate, under the totality of the circumstances and after vetting
the familial relationship to the extent feasible, the juvenile may
temporarily remain with a non-parental adult family member.
Comment. One organization suggested a more bright line mandate
regarding the proposed standard's paragraph (d) by requiring the
transfer of unaccompanied alien children to HHS/ORR within the
timeframe proposed. Another advocacy group emphasized the importance of
adequate training and procedures for meeting the timeframe for
transfer.
Response. DHS has considered these comments; however, the standard
as proposed, which mandates the transfer of unaccompanied alien
children within the 72-hour timeframe except in exceptional
circumstances, is consistent with the TVPRA requirements. DHS is
confident that the transfer of unaccompanied alien children to ORR will
continue to be carried forth expeditiously. DHS will strictly enforce
this regulatory provision, as it will all PREA standards. With respect
to the observation on the importance of adequate training and internal
procedures to support timely transfer to ORR, DHS takes the comments
under advisement for purposes of developing its training curriculum.
Comment. An advocacy group recommended ensuring adequate training
regarding the enforcement of the standards in general and procedures to
avoid sexual abuse or assault of minors in DHS custody. The group
suggested that DHS regularly update and implement field guidance
regarding age determinations and related custody decisions, consistent
with HHS/ORR program instructions.
Response. DHS makes changes to existing guidance on issues such as
age determinations and custody to reflect new laws, policies, or
practices, or as otherwise needed.
Comment. A number of comments recommended additional protection for
unaccompanied children and families in family facilities specifically.
The former NPREC Commissioners recommended that DHS separate provisions
dealing with unaccompanied minors from provisions dealing with
families. Similarly, one advocacy group stated that, because in its
view detaining juveniles in family facilities does not eliminate sexual
assault risk and may create a greater risk, DHS should include
additional standards specific to the family unit setting.
The former NPREC Commissioners specifically suggested DHS adopt
additional standards that would apply to the family facility setting
specifically. Proposed provisions included screening/vetting of
immigration detainees in family facilities, reporting of sexual abuse
in family facilities, investigations in family facilities, and access
to medical and mental health care in family facilities. The former
Commissioners believe that these additional measures would improve
protections in family settings.
Response. DHS has considered these comments and declines to make
the suggested changes to the proposed standard. DHS grouped the
provisions specific to all juvenile detention and
[[Page 13117]]
family detention in one section in order to account for current
immigration detention and holding facility practice and policy. Under
current practice and policy, a single facility might detain individuals
as well as families. (In other words, families detained while
travelling or living together may be detained together, even if the
facility usually holds detainees as individuals only.) Given this
context, DHS believes that streamlining juvenile-specific regulatory
standards in a single location strengthens protections, as responsible
officials are able to refer to a ``one-stop shop'' in Sec. Sec. 115.14
and 115.114. DHS believes that its decision to streamline the standards
will not decrease the level of protection to young detainees. DHS will
carefully monitor policies and the implementation of this approach and
make future policy or regulatory changes if necessary.
With respect to the former NPREC Commissioners' specific proposals
for family unit detention and/or family facilities, ICE already has
strong policies in place regarding these matters. These standards and
ICE policies include detailed provisions on screening/vetting of
immigration detainees, reporting of sexual abuse, investigations, and
access to medical and mental health care. Again, in addition to the
PREA regulatory standards that address these topics generally for all
detainees, the 2007 Residential Standard addressing Sexual Abuse and
Assault Prevention and Intervention ensures that individuals in family
and residential settings are protected by measures relating to these
precise topics.
Comment. One commenter recommended that DHS promulgate a separate
set of standards to prevent abuse in facilities that detain children.
The group expressed that a significantly improved accounting for the
needs of and special risks faced by such youth is necessary.
Response. DHS has considered this comment and, as a policy matter,
declines to set forth differing abuse-prevention standards depending on
whether a specific detainee population happens to be present at a
specific point in time. Because DOJ's standards address juvenile-only
facilities through either the juvenile justice system or the criminal
justice system, DOJ's standards specifically included a definition of a
juvenile facility. See 77 FR 37105, at 37115. But immigration detention
facilities and temporary holding facilities are not so easily
characterized. For example, family unit detention includes juveniles as
well as adults. PREA protections apply to a family unit detention
facility in the same manner that they apply to other immigration
detention facilities. The potential benefits of creating a separate set
of standards for this context are not apparent, especially in light of
the fact that the applicable standards in Part A are robust.
With respect to juveniles detained outside of family units, as
noted above, unaccompanied alien children are generally placed with ORR
almost immediately; ORR is responsible for making decisions related to
the care and custody of such children in their charge. For the 72-hour
intervening period up to which DHS may generally maintain custody,
concerns about abuse should be alleviated by the strong requirements in
both subparts that generally prohibit juveniles from being held with
adult detainees in non-familial situations. DHS believes that the final
standards on juvenile and family detainees, with the revisions noted
above, sufficiently protect juveniles in immigration detention and
holding facilities. Due to these factors, DHS has declined to
promulgate a wholly separate set of standards for facilities that house
juveniles.
Comment. One comment suggested explicit requirements that, absent
exigent circumstances, juveniles have access to daily outdoor
recreation; a number of groups suggested the same standard for large
muscle exercise, legally required special education services, and--to
the extent possible--other programs.
Response. Except to the extent affected by standards designed to
prevent, detect, and respond to sexual abuse and assault in detention
facilities, access to activities and other services is outside the
scope of this rulemaking. Therefore, it is not necessary to include a
list of specific kinds of juvenile detainee activities and access in
these standards.
Comment. One advocacy group suggested a requirement that children
have meaningful access to their attorneys during interactions with DHS
officials, including such interactions after transfer to HHS/ORR.
Response. This comment is outside the scope of this rulemaking. DHS
therefore declines to address it here.
Limits to Cross-Gender Viewing and Searches (Sec. Sec. 115.15,
115.115)
Summary of Proposed Rule
The standards contained in the proposed rule required policies and
procedures that enable detainees to shower (where showers are
available), perform bodily functions, and change clothing without being
viewed by staff of the opposite gender, except in exigent circumstances
or when such viewing is incidental to routine cell checks or is
otherwise appropriate in connection with a medical examination or bowel
movement under medical supervision. The standards also required that
staff of the opposite gender announce their presence when entering an
area where detainees are likely to be showering, performing bodily
functions, or changing clothing. The proposed rule prohibited cross-
gender strip searches except in exigent circumstances, or when
performed by medical practitioners and prohibits facility staff from
conducting body cavity searches of juveniles, requiring instead that
all body cavity searches of juveniles be referred to a medical
practitioner.
In Subpart A, the proposed rule generally prohibited cross-gender
pat-down searches of female detainees, unless in exigent circumstances.
The proposed rule permitted cross-gender male detainee pat-down
searches when, after reasonable diligence, staff of the same gender was
not available at the time the search or in exigent circumstances. The
proposed rule required that any cross-gender pat-down search conducted
pursuant to these exceptions be documented. The proposed rule required
these policies and procedures to be implemented at the same time as all
other requirements placed on facilities resulting from this rulemaking.
The proposed rule did not prohibit cross-gender pat-down searches in
Sec. 115.115 of Subpart B because of the exigencies encountered in the
holding facility environment and the staffing and timing constraints in
those small and short-term facilities.
In both immigration detention facilities and holding facilities the
proposed rule prohibited examinations of detainees for the sole purpose
of determining the detainee's gender. The proposed rule further
required that all security and law enforcement staff be trained in
proper procedures for conducting all pat-down searches.
Changes in Final Rule
In paragraph (i) of Sec. 115.15, DHS changed the text to prohibit
a facility from searching or physically examining a detainee for the
sole purpose of determining the detainee's genital characteristics. The
previous language used the phrase ``gender'' instead of ``genital
characteristics.'' The final rule also revises paragraph (i) to allow a
detainee's gender to be determined as part of a standard medical
examination that is routine for all detainees during intake or other
processing procedures. The final rule also revises Sec. Sec. 115.15(j)
[[Page 13118]]
and 115.115(f) to clarify that pat-down searches must be conducted
consistent with all agency policy.
Comments and Responses
Comment. A number of commenters believed the same prohibition on
cross-gender pat-down searches should apply to all detainees. Two sets
of advocacy groups and another organization suggested eliminating
paragraph (b), which allows cross-gender searches of males in limited
circumstances. A number of these and other groups suggested changing
paragraph (c) to prohibit all cross-gender pat-down searches, not just
for female detainees, except in exigent circumstances; some members of
Congress commented in favor of doing so in order to meet ``civil
confinement standards.''
Multiple commenters, including the NPREC Commissioners, criticized
the inclusion of ``exigent circumstances'' as an exception to cross-
gender searches. These commenters perceived the exception to be overly
broad. One commenter expressed dissatisfaction with the term
``reasonable diligence'' for similar reasons. The commenter suggested a
standard that would require facilities to have sufficient male and
female staff to sharply limit cross-gender pat-down searching of men.
Another commenter recommended narrowing the circumstances under which
cross-gender pat downs of males are permitted.
A number of advocacy groups suggested explicitly requiring that
facilities cannot restrict a detainee's access to regularly available
programming or other opportunities in order to comply with the
restrictions on cross-gender viewing and searches.
Response. DHS adopted a standard that generally prohibits, with
limited exceptions, cross-gender pat-down searches of female and male
detainees in order to further PREA's mandate of preventing sexual abuse
without compromising security in detention, or infringing impermissibly
on the employment rights of officers.
DHS declines to incorporate the commenters' suggestion to extend
the same coverage for both male and female pat-down searches. Female
detainees are especially vulnerable to sexual abuse during a pat-down
search because of their disproportionate likelihood of having
previously suffered abuse. According to studies, women with sexual
abuse histories are particularly traumatized by subsequent abuse.\12\
For detainees who have experienced past sexual abuse, even
professionally conducted cross-gender pat-down searches may be
traumatic and perceived as abusive. See Jordan v. Gardner, 986 F.2d
1521, 1526 (9th Cir. 1993) (en banc) (striking down cross-gender pat
downs of female inmates as unconstitutional ``infliction of pain'' when
there was evidence that a high percentage of female inmates had a
history of traumatic sexual abuse by men and were being traumatized by
the cross-gender pat-down searches).
---------------------------------------------------------------------------
\12\ See Barbara Bloom, Barbara Owen, and Stephanie Covington,
Gender-Responsive Strategies: Research, Practice, and Guiding
Principles for Women Offenders, at 37, NIC (2003) (``In addition,
standard policies and procedures in correctional settings can have
profound effects on women with histories of trauma and abuse, and
often act as triggers to retraumatize women who have post-traumatic
stress disorder (PTSD).''); Danielle Dirks, Sexual Revictimization
and Retraumatization of Women in Prison, 32 Women's Stud. Q. 102,
102 (2004) (``For women with previous histories of abuse, prison
life is apt to simulate the abuse dynamics already established in
these women's lives, thus perpetuating women's further
revictimization and retraumatization while serving time.'').
---------------------------------------------------------------------------
Because females are disproportionately vulnerable to sexual abuse
and trauma in the cross-gender pat down context, the prohibition of
such pat downs unless there are exigent circumstances is a crucial
protection in furtherance of PREA. DHS goes a step further than DOJ by
also prohibiting cross-gender pat downs of male detainees, but allows
for two exceptions--exigent circumstances, and circumstances where
staff of the same gender are not available. The slightly different
standard reflects the fact that men are less likely to be abused by
cross-gender pat-down searches.
A categorical prohibition on cross-gender pat-down searches of male
detainees except in exigent circumstances may not be operationally
possible at facilities that detain males but have higher proportions of
female staff. Such facilities could not guarantee the availability of
adequate numbers of male staff without engaging in potential employment
discrimination as a result of attempts to inflate staffing of one
gender. Likewise, DHS declines to require facilities to maintain male
and female staff sufficient to avoid cross-gender pat-down searches in
all cases. Such a mandate could result in the unintended consequence of
employment discrimination in facilities.
In response to commenters concerned that prohibiting cross-gender
pat downs will lead to a restriction of detainees' access to
programming, DHS notes that any restriction based on a lack of
appropriate staffing for pat downs is unacceptable and is not standard
practice. DHS will ensure that immigration detention facilities are
allowing detainees equal access to programming without regard to
detainee gender or staffing limitations.
Comment. Multiple commenters and other groups expressed concerns
with the phrase ``incidental to routine cell checks'' and suggested it
be removed as an exception allowing cross-gender viewing, a sentiment
with which former NPREC Commissioners commented they agreed. One
commenter suggested the phrase could allow a facility to not take
needed steps and then simply claim staff viewing is exempted as
incidental.
Response. DHS respectfully disagrees with the commenters that
viewing incidental to routine cell checks is a gateway for abuse in
detention. The final rule provides adequate protection by requiring
each facility to have policies and procedures that oblige staff of the
opposite gender to announce their presence when entering an area where
detainees are likely to be showering, performing bodily functions, or
changing clothing.
Comment. Two comments suggested removing the provisions that allow
cross-gender searches when safety, security, and related interests are
at stake, out of apparent concern that the provision's breadth would
allow facilities to ``mask abusive use of searches.''
Response. Maintaining safety, security and other related interests
in detention in order to protect detainees, staff, contractors,
volunteers, and visitors is the highest priority for DHS. Searches are
an effective and proven tool to ensure the safety of every person in
the detention environment. As such, the final standard maintains
paragraph (a), which explains why searches are a necessary part of
detention.
Comment. Two comments suggested that the provision in paragraph (i)
regarding preventing searches for the sole purpose of determining
``gender'' be revised to instead prevent searching solely for
determining ``genital characteristics.'' In the following sentence of
the provision, the groups also suggest that ``genital status'' replace
``gender'' for when employees can take other steps to determine.
Another advocacy group suggested clear standards for classifying as
male or female based on a range of issues including self-identification
and a medical assessment, and not based solely on external genitalia or
identity documents.
Regarding the same provision, another commenter suggested removing
``as part of a broader medical examination conducted in private, by a
medical practitioner'' as a means for making the
[[Page 13119]]
determination, and instead replacing it with ``through a routine
medical examination that all detainees must undergo as part of intake
or other processing procedure.''
Response. After considering the comments regarding paragraph (i),
DHS has revised the language to prevent searches for the sole purpose
of determining ``a detainee's genital characteristics'' instead of ``a
detainee's gender.'' DHS also clarifies that while medical examinations
may be done to determine gender, they must be part of a standard
medical exam that is routine for all detainees during intake or other
processing procedures. DHS believes that the final rule allows a range
of issues to be considered for gender determination. In addition to
medical examinations, the determination may be made during conversation
and by reviewing medical records.
Comment. One advocacy group suggested that searches of transgender
and intersex detainees should have clear standards and by default be
conducted by female personnel, as the group contends risk of sexual
abuse is generally lower when the search is conducted by females.
Two comments suggested adding a provision in paragraphs (j) and
(f), for Subparts A and B, respectively, to require that same-gender
searches for transgender and intersex detainees be conducted based on a
detainee's gender identity absent a safety-based objection by the
detainee. One commenter also suggested that we replace the phrase
``existing agency policy'' with ``these regulations, and compatible
agency policy'' for clarity.
Response. DHS respectfully disagrees with the commenters about
including specific provisions within this section describing how pat-
down searches should be conducted for transgender and intersex
detainees. While a facility can, on a case-by-case basis, adopt its own
policies for pat-down searches of transgender or intersex detainees,
the agency does not believe that an additional mandatory rule is
necessary in this context. DHS believes pat-down searches must be
conducted in a professional manner for all detainees and is reluctant
to carve out unique pat-down search standards for transgender and
intersex detainees. Additional standards may make the regulation more
cumbersome to implement on a day-to-day basis.
DHS declines to change the wording of Sec. Sec. 115.15(j) and
115.115(f) to ``compatible agency policy,'' because once a facility
adopts the standards set forth in this regulation, the facility is
expected to abide by the standards in cross-gender viewing and
searches. Existing agency policy will not conflict with these
standards. In consideration of the commenter's concern, however, DHS
has revised the final rule for clarity. The final rule now requires
pat-down searches to be conducted ``consistent with security needs and
agency policy, including consideration of officer safety.''
Comment. Multiple comments dealt with juvenile pat-down searches.
One group suggested that training for employees, contractors, and
volunteers having contact with juveniles must include child-specific
modules. Another commenter suggested a requirement that male juveniles
only be subjected to cross-gender pat-down searches in exigent
circumstances.
Response. In addition to the ``floor'' set by this regulation, DHS
has established procedures for the custody and processing of juveniles
for intake or transfer to ORR. DHS also provides training related to
the treatment of juveniles in basic training and in follow-up training
courses on a periodic basis. For example, ICE's Family Residential
Standards, applicable to juveniles in the immigration detention
facility context, provide that a pat-down search shall only occur when
reasonable and articulable suspicion can be documented. The standard on
searches also provides a requirement for explicit authorization by the
facility administrator or assistant administrator in order for a child
resident fourteen years old or younger to be subject to a pat-down,
requires facilities to have further written policy and procedures for
such searches, and provides that such searches should be conducted by a
staff member of the same gender as the detainee. The stated goal of the
standard is to ensure that residential searches are conducted without
unnecessary force and in ways that preserve the dignity of the
individual being searched. All staff must receive initial and annual
training on effective search techniques. Standards applicable to all
minors held by ICE ensure that the least intrusive practical search
method is employed and include similar pat-down parameters to those
described above. These policies are the best practices for the agency
and subsequent revisions to the final rule are unnecessary.
Comment. Regarding the Subpart B-specific paragraph (d), one
collective group comment suggested provisions be added requiring agency
policies addressing health, hygiene, and dignity in facilities,
requiring replacement garments and access to showers when necessary,
and allowing separate showering for transgender and intersex detainees.
Response. These issues are of great importance to DHS, but
requiring such separate policies would be outside the scope of this
rulemaking. Section 115.115(d) requires policies and procedures that
enable detainees to shower, perform bodily functions, and change
clothing without being viewed by staff of the opposite gender, with
limited exceptions.
Given the limited infrastructure of holding facilities (most do not
include showers), DHS does not believe that requiring separate
showering for transgender and intersex detainees is an efficient use of
limited resources.
Comment. One commenter suggested the standards should embody
American Bar Association Standards on the Treatment of Prisoners. Those
standards may provide strategies and devices to allow personnel of the
opposite gender of a prisoner to supervise the prisoner without viewing
the prisoner's private bodily areas.
Response. DHS believes that the requirements set forth in
Sec. Sec. 115.15 and 115.115 establish sufficient safeguards to limit
the cross-gender viewing of detainees by staff, and are fully
consistent with the above-referenced standards.
Accommodating Detainees With Disabilities and Detainees With Limited
English Proficiency (Sec. Sec. 115.16, 115.116)
Summary of Proposed Rule
The standards in the proposed rule required each agency and
immigration detention facility to develop methods to ensure that
inmates who are LEP or disabled are able to report sexual abuse and
assault to staff directly, and that facilities make accommodations to
convey sexual abuse policies orally to inmates with limited reading
skills or who are visually impaired. The proposed standards required
each agency and immigration detention facility to provide in-person or
telephonic interpretation services in matters relating to allegations
of sexual abuse, unless the detainee expresses a preference for a
detainee interpreter and the agency determines that is appropriate.
Changes in Final Rule
In response to a comment received regarding another section of the
standards, DHS is modifying this language by clarifying that a detainee
may use another detainee to provide interpretation where the agency
determines that it is both appropriate and consistent with DHS policy.
[[Page 13120]]
Comments and Responses
Comment. One commenter expressed concern that further explanation,
outside of ``literature describing the protection'' for detainees, is
necessary.
Response. DHS recognizes the importance of ensuring that all
detainees, regardless of disability or LEP status, can communicate
effectively with staff without having to rely on detainee interpreters,
in order to facilitate reporting of sexual abuse as accurately and
discreetly as possible and to provide meaningful access to the agency's
sexual abuse and assault prevention efforts. As a result, this standard
includes other methods of communication aside from written materials to
ensure that every detainee is educated on all aspects of the agency's
efforts to prevent, detect, and respond to sexual abuse. Such methods
include in-person, telephonic, or video interpretive services, as well
as written materials that are provided in formats or through methods
that ensure effective communication with detainees who may have
disabilities that result in limited literate and vision abilities.
The final standard, in conjunction with Federal statutes and
regulations protecting the rights of individuals with disabilities and
LEP individuals, protects all inmates while providing agencies with
discretion in how to provide requisite information and interpretation
services. The final standard does not go beyond that which is required
by statute, but clarifies the agencies' specific responsibilities with
regard to PREA related matters and individuals who are LEP or who have
disabilities.
Hiring and Promotion Decisions (Sec. Sec. 115.17, 115.117)
Summary of Proposed Rule
The standards in the proposed rule prohibited the hiring of an
individual that may have contact with detainees and who previously
engaged in sexual abuse in an institutional setting; who has been
convicted of engaging in sexual activity in the community facilitated
by force, the threat of force, or coercion; or who has been civilly or
administratively adjudicated to have engaged in such activity. The
standards also required that any substantiated allegation of sexual
abuse made against staff be taken into consideration when making
promotion decisions. The standards in the proposed rule also required a
background investigation before the agency or facility hires employees,
contractors, or staff who may have contact with detainees. The
standards further required updated background investigations every five
years for agency employees and for facility staff who may have contact
with detainees and who work in immigration-only facilities.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. Commenters suggested changing the background investigation
standard's language to include making the investigation a requirement
for staff that work in facilities that house a mix of residents,
including non-immigration inmates, but may have contact with detainees.
The commenters suggest separating this requirement out from the
investigation requirement for all facility staff who work in
immigration-only detention facilities for purposes of clarity.
Response. DHS recognizes the critical importance of performing
thorough background investigations as part of the hiring and promotion
process. DHS remains committed to ensuring such background
investigations are conducted prior to hiring new staff that may have
contact with detainees, or before enlisting the services of any
contractor who may have contact with detainees. However, DHS declines
to expand the requirement for background investigations to include
staff that work in facilities with non-immigration inmates and do not
have contact with detainees due to the lack of DHS authority.
Comment. Commenters suggested requiring that background
investigations for all employees who may have contact with juveniles
must include records related to child abuse, domestic violence
registries and civil protection orders. One commenter also suggested
these background requirements be explicit for all new staff that may
have contact with female detainees.
Response. DHS agrees that criminal records related to allegations
that a potential employee has engaged in child abuse, domestic violence
registries and civil protection orders are an important component of
the background investigation. The standard background investigation
process for employees and staff already includes the search of such
records. Therefore, no additional changes are required.
Comment. A commenter recommended that DHS investigate to discover
if border officers themselves have been hurt as children or adults
because of the commenter's belief that if it is in their history, they
will be more apt to abuse others.
Response. DHS declines to implement a per se rule that a past
history as a victim of abuse will serve as an automatic disqualifier
for employment. Past victimization is not necessarily a useful
indicator of future likelihood to engage in abuse. Moreover, DHS
believes that any blanket rule disqualifying past victims of abuse from
employment would be discriminatory and cannot be accepted.
Comment. Regarding the Subpart A standard on hiring and promotion,
a commenter stated that it is unclear why paragraph (g)--applying the
requirements of the section otherwise applicable to the agency also to
contract facilities and staff--only appears in this section on hiring
and promotion issues, rather than in all standards.
Response. DHS included Sec. 115.17(g) to clarify that any
standards applicable to the agency also extend to any contracted
facilities and staff, as well. By its terms, much of the rest of the
regulation also applies to non-DHS facilities, to the extent that they
meet the definition of immigration detention facility under Subpart A.
Although paragraph (g) may be redundant, DHS is retaining it for
clarity nonetheless.
Upgrades to Facilities and Technologies (Sec. Sec. 115.18, 115.118)
Summary of Proposed Rule
The standards in the proposed rule required agencies and facilities
to take into account how best to combat sexual abuse when designing or
expanding facilities and when installing or updating video monitoring
systems or other technology.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
DHS did not receive any public comments on this provision during
the public comment period.
Evidence Protocols and Forensic Medical Examinations (Sec. Sec.
115.21, 115.121)
Summary of Proposed Rule
The standards contained in the proposed rule required agencies and
facilities responsible for investigating allegations of sexual abuse to
adopt a protocol for the preservation of usable physical evidence as
well as to provide detainee victims access to a forensic medical
examination at no cost to the detainee. The standard further required
that such developed protocols be appropriate for juveniles, where
applicable, and that outside victim
[[Page 13121]]
services be available after incidents of sexual abuse to the extent
possible.
In situations when the component agency or facility is not
responsible for investigating alleged sexual abuse within their
facilities, the proposed standards required them to request that the
investigating entity follow the relevant investigatory requirements set
out in the standard.
Changes in Final Rule
DHS made one change to this provision, providing that a Sexual
Assault Forensic Examiner (SAFE) or a Sexual Assault Nurse Examiner
(SANE) should be used where practicable.
Comments and Responses
Comment. With respect to forensic medical examinations, some
advocacy groups commented that before a child undergoes such an
examination or interview, facility officials should contact and provide
advance notice to the juvenile's legal guardian or other appropriate
person or entity. For unaccompanied alien children, the groups suggest
requiring the agency to immediately notify and consult with HHS/ORR
regarding the forensic examination and facilitate the immediate
transfer upon request of ORR and the juvenile. One commenter suggested
adding a provision in case a legal guardian is an alleged perpetrator,
in which case the agency should be required to notify a designated
state or local services agency under applicable mandatory reporting
laws.
Response. DHS declines to make the suggested revisions because they
would have no practical application in this context. First, it would
not be appropriate to immediately transfer a juvenile who was sexually
assaulted, even if requested by ORR and the juvenile, as the juvenile
should first be referred to an appropriate medical care professional
and local law enforcement agency, potentially in conjunction with the
appropriate child welfare authority. Responsibility for determining who
has legal authority to make decisions on behalf of the juvenile would
lie with the investigating law enforcement agency and the medical
provider because the juvenile would be a victim involved in a criminal
investigation.
Second, juveniles in the family residential program would be
present as a member of a family unit and therefore would be with an
individual who possesses authority for making legal determinations for
the juvenile present at the facility.
With respect to the comment about reporting abuse by a parent or
guardian, DHS notes that agencies are already required by applicable
state laws to report all incidents of child sexual abuse or assault,
including incidents where the parent or legal guardian is the
perpetrator, to designated law enforcement agencies. The law
enforcement official is then responsible for ensuring that child
welfare services are notified where appropriate. Therefore, the
inclusion of this provision in these standards is not necessary.
Comment. A commenter recommended that DHS provide a means for
protection from removal--including withholding of removal,
prosecutorial discretion, or deferred action--while an investigation
into a report of abuse is ongoing, and also require facilities to
provide application information to detainee victims and, if applicable,
parents, guardians, or legal representatives.
Response. DHS recognizes that in some cases, it may be appropriate
for ICE not to remove certain detainee victims.\13\ However, DHS does
not believe that every detainee who reports an allegation should
necessarily receive some type of relief or stay of removal. OPR has the
authority to approve deferred action for victimized detainees when it
is legally appropriate.
---------------------------------------------------------------------------
\13\ See U.S. Immigration and Customs Enforcement, Policy No.
10076.1, Prosecutorial Discretion: Certain Victims, Witnesses, and
Plaintiffs (2011), available at http://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf and U.S. Immigration and
Customs Enforcement, Policy No. 10075.1, Exercising Prosecutorial
Discretion Consistent with Civil Immigration Enforcement Priorities
of the Agency for the Apprehension, Detention, and Removal of Aliens
(2011), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
---------------------------------------------------------------------------
As mandated in Sec. Sec. 115.22(h) and 115.122(e), all alleged
detainee victims of sexual abuse that is criminal in nature will be
provided U nonimmigrant status (also known as ``U visa'') information.
OPR and Homeland Security Investigations (HSI) have the delegated
authority for ICE to certify USCIS Form I-918, Supplement B for victims
of qualifying criminal activity that ICE is investigating where the
victim seeks to petition for U nonimmigrant status.
Because these are routine agency practices and subject to agency
discretion, DHS has declined to make changes in the final rule to
specifically address the various prosecutorial discretion methods that
may be used. ICE can and will use these prosecutorial discretion
methods for detainees with substantiated sexual abuse and assault
claims.
Comment. One commenter recommended that facilities make updated
lists of resources and referrals to appropriate professionals available
if and when assault happens.
Response. DHS declines to make this recommended edit to the current
provision because it is outside the scope of the provision. Section
115.53 currently requires facilities to have access for detainees to
current community resources and services and should satisfy the
commenter's request.
Comment. One collective comment from advocacy groups suggested a
number of added provisions for proposed paragraph (c)'s forensic
medical examination requirement. The groups suggested that the facility
arrange for the examination ``when developmentally appropriate'' and
that another requirement be added that the examination is performed by
a SAFE or a SANE, with other qualified medical practitioners only being
allowed to examine if a SAFE or SANE cannot be made available. The
agency or facility would then have to document efforts to provide a
SAFE or SANE. Regarding such examinations for juveniles, the groups
suggested requiring that, except in exigent circumstances, the
evaluations be conducted by a qualified professional with expertise in
child forensic interviewing techniques.
Response. It is not necessary for a medical practitioner to be a
SAFE or SANE to be qualified to perform a complete forensic
examination. Many detention facilities are located in rural communities
where there are healthcare professionals who are qualified to perform
forensic exams, but may not have a SAFE or SANE designation. Adding a
SAFE or SANE requirement to the provision could in some circumstances
lead to delayed treatment, as there might not be a SAFE or SANE nearby
to the facility. As a result, DHS declines to absolutely require use of
a SAFE or SANE. DHS, however, has added to the standard that
examinations should be performed by a SAFE or SANE where practicable.
With respect to the comment about developmentally appropriate
evaluations, DHS notes that under Sec. Sec. 115.21(a) and 115.121(a),
uniform evidence protocols must be developmentally appropriate.
Policies To Ensure Investigation of Allegations and Appropriate Agency
Oversight (Sec. Sec. 115.22, 115.122)
Summary of Proposed Rule
The standards contained in the proposed rule mandated that each
allegation of sexual abuse have a
[[Page 13122]]
completed investigation by the appropriate investigative authority.
Each agency and immigration detention facility would establish and
publish a protocol for investigation for investigating or referring
allegations of sexual abuse. All allegations received by the facility
would be promptly referred to the agency and, unless the allegation did
not involve potential criminal behavior, promptly referred for
investigation to an appropriate law enforcement agency. Finally, when
an allegation of detainee abuse that is criminal in nature is being
investigated, each agency would ensure that any alleged detainee victim
of criminal abuse is provided access to relevant information regarding
the U nonimmigrant visa process.
Changes in Final Rule
DHS made one clarification to both subparts, in paragraphs (h) and
(e), respectively, that replaces the term ``U nonimmigrant visa
information'' with ``U nonimmigrant status information.'' This change
is consistent with the term used in the Form I-918 (Petition for U
Nonimmigrant Status). DHS also changed both paragraphs to make clear
its intention that the information be timely provided.
Comments and Responses
Comment. In connection with the proposed requirement that each
facility ensure allegations are reported to an appropriate law
enforcement agency for criminal investigation, several commenters
recommended that DHS remove the exception for allegations that do not
involve potentially criminal behavior. One group stated that any
allegation of sexual abuse as defined in proposed Sec. 115.6 is
potentially criminal.
Response. DHS agrees with the commenter that both appropriate
agency oversight and criminal referrals are essential components of DHS
efforts in this context. DHS is therefore implementing standards that
require strong and transparent agency and facility protocols for
reporting and referring allegations of sexual abuse. Under the
regulation, covered agencies and facilities must promptly report all
sexual abuse allegations to the appropriate administrative offices,
without exception. Also under the regulation, covered agencies and
facilities must promptly refer all potentially criminal sexual abuse
allegations to a law enforcement agency with the legal authority to
conduct criminal investigations.
DHS agrees that acts of sexual abuse, as defined in this
regulation, most often involve ``potentially criminal behavior.'' DHS
anticipates, however, that covered agencies and facilities may at times
receive complaints that are framed as sexual abuse allegations, but do
not rise to the level of potentially criminal behavior. For consistency
with the DOJ standards, and to ensure that mandatory referrals do not
deplete scarce criminal investigative resources, DHS declines to
require referral to a criminal investigative entity in all cases.
Comment. Commenters also recommended that DHS insert a requirement
that the facility head or an assignee must request the law enforcement
investigation, and that the facility's own investigation must not
supplant or impede a criminal one.
Response. DHS declines to require the facility head to request the
law enforcement investigation and declines to incorporate a requirement
that the facility's own investigation must not supplant or impede a
criminal one. These revisions are not necessary because under this
regulation, PBNDS 2011, and the SAAPID, all investigations into alleged
sexual assault must be prompt, thorough, objective, fair, and conducted
by qualified investigators. Furthermore, facilities are required to
coordinate and assist outside law enforcement agencies during their
investigations and therefore not impede those investigations. DHS
declines to add the suggested language because it does not strengthen
the investigative mandates that are currently in place.
Comment. A commenter suggested, regarding the requirement that the
facility ensure incidents be promptly reported to the JIC, ICE's OPR,
or the DHS OIG, as well as the appropriate ICE Field Office Director
(FOD), that the language ``ensure that the incident is promptly
reported'' be replaced with ``report.''
Response. In some cases, the incident will be reported by an ERO
officer and not an employee of the facility or the facility
administrator. In such cases, the facility will have met the standards
of the provision by ensuring that the incident was reported while not
doing the reporting itself. Therefore, DHS declines making this
addition as it does not believe this change will make the provision
more effective.
Comment. Multiple commenters suggested a requirement that the
detainee victim not be removed while an investigation is pending,
unless the detainee victim specifically and expressly waives this
prohibition in writing. In the case of a family unit, the
recommendation would require that no non-abuser family members be
removed during the pending investigation. The groups also suggested the
standard prevent the victim from being transferred to another facility
in a way that materially interferes with the investigation of the
allegation unless essential to the protection of the victim, in which
case the agency must ensure that the victim continues to be available
to cooperate with the investigation.
Several advocacy groups, including a number of collective advocate
comments, suggested a further provision be added to require that the
agency ensure the victim is not removed from the United States if the
victim indicates a wish to petition for U nonimmigrant status and moves
to file such a petition within a reasonable period, so long as the
victim cooperates with the investigation and the allegations are not
found to be unfounded. In such a case, one group suggested the agency
should be required to ensure the victim is not removed before obtaining
necessary certified documents to apply for such status; others
suggested a bar on removal unless the U nonimmigrant petition is denied
by USCIS.
Response. DHS recognizes that in some cases, it may be appropriate
for ICE not to remove certain detainee victims.\14\ However, DHS does
not believe that every detainee who reports an allegation should
receive some type of stay of removal. OPR has the authority to approve
deferred action for victimized detainees when it is legally
appropriate. As mandated in Sec. Sec. 115.22 (h) and 115.122 (e), all
alleged detainee victims of sexual abuse that is criminal in nature
will be provided U nonimmigrant status information. OPR and HSI have
the delegated authority for ICE to certify USCIS Form I-918, Supplement
B for victims of qualifying criminal activity that ICE is investigating
where the victim seeks to petition for U nonimmigrant status. Because
these are routine agency practices and subject to agency discretion,
DHS has declined to make changes in the final rule to specifically
address the various prosecutorial discretion methods that may be used.
ICE can and will use these prosecutorial discretion methods for
detainees with
[[Page 13123]]
substantiated sexual abuse and assault claims.
---------------------------------------------------------------------------
\14\ See U.S. Immigration and Customs Enforcement, Policy No.
10076.1, Prosecutorial Discretion: Certain Victims, Witnesses, and
Plaintiffs (2011), available at http://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf and U.S. Immigration and
Customs Enforcement, Policy No. 10075.1, Exercising Prosecutorial
Discretion Consistent with Civil Immigration Enforcement Priorities
of the Agency for the Apprehension, Detention, and Removal of Aliens
(2011), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
---------------------------------------------------------------------------
Furthermore, when a victimized detainee is petitioning for U
nonimmigrant status, appears to have been a victim of qualifying
criminal activity, and appears to meet the helpfulness requirement for
the investigation or prosecution, prosecutorial discretion should be
utilized by ICE. To prevent unintended removals, OPR must sign off on
any ERO request to remove a victimized detainee when an investigation
has been filed and is pending. DHS does not believe that adding the
suggested language substantially strengthens the current provision as
it is current practice and therefore DHS declines the recommendation.
Comment. Several commenters suggested that there be increased
access to existing types of legal status for abuse survivors.
Response. DHS is currently able to provide detainee victims with
information concerning U nonimmigrant status when the sexual abuse is
criminal in nature. DHS may also effect deferred action or significant
public benefit parole when appropriate. DHS declines to make additional
changes in this rulemaking because any additional access to existing
types of legal status for abuse victims other than what is currently
authorized would be outside the scope of this rulemaking.
Comment. Several advocacy groups recommended the standards relating
to access to U nonimmigrant status information contain more detailed
requirements. A number of comments suggested expanding the provision to
ensure that the information include instructions on how to apply and
contact legal experts for information to assist with the process. Some
of these comments suggested specifically providing that the PSA
Compliance Manager (or his or her assignee)--rather than the
``agency''--should ensure the alleged detainee victim be provided
access to the information, in order to clarify who has responsibility
for providing the U nonimmigrant status information. One group
recommended that access to U nonimmigrant status information be
provided not later than two weeks following an incident.
Response. DHS agrees that these provisions should be more specific,
and therefore has clarified the regulatory text to make clear its
intention that access to the information should be provided in a timely
manner--i.e., within a reasonable period of time, under the totality of
the circumstances. This change is consistent with current ICE practice
and responsive to the concerns highlighted by the commenters, and
reserves appropriate flexibility for the agency to tailor its practice
to specific circumstances. DHS notes that ICE already provides access
to approved informational materials or appropriate national hotlines.
Given the potentially broad scope of this provision (which applies
to all allegations of sexual assault), DHS believes that additional
changes would be unnecessary and potentially counterproductive to the
goal of providing timely, accurate, and useful access to information.
For instance, with respect to the question of who ought to provide U
nonimmigrant status information, DHS agrees with the commenter that a
facility's PSA Compliance Manager is one good option for providing such
information. However, ICE OPR would also provide such information
pursuant to the SAAPID, section 5.7, which states that ``in cases where
the allegation involves behavior that is criminal in nature, OPR, in
coordination with the FOD and/or HSI SAC, as appropriate, will ensure
any alleged victim of sexual abuse or assault who is an alien is
provided access to U non-immigrant visa information. . . .''
DHS does not believe that including these detailed requirements in
a regulatory provision or designating the PSA Compliance Manager as the
individual responsible for providing the information to qualifying
detainees would strengthen this provision or provide more support to
the detainee. DHS notes that it also already provides such information
to the public on DHS Web sites and through DHS's Blue Campaign to end
human trafficking.
Comment. Several advocacy groups suggested that the standard
require the facility head or his or her assignee to make every effort
to ensure that the victim has legal counsel who can provide advice on
petitions for U nonimmigrant status, unless law enforcement
investigators were to determine the allegation to be unfounded.
Response. DHS declines to add the suggested language with respect
to legal counsel. Immigration detention facilities already provide
information about legal services to detainees, consistent with existing
standards regarding access to the law library and other information
about legal services. Facilities also facilitate access to legal
counsel through visitation and communication by telephone. DHS notes
that Sec. 115.53 requires facilities to ensure detainees have access
to current community resources and services.
Comment. One group recommended that access to U nonimmigrant status
information be provided not later than two weeks following an incident.
Response. ICE's SAAPID, section 5.7, sets forth the agency's
responsibilities for providing U nonimmigrant status information to
sexual assault victims. The Directive states that OPR, in coordination
with the FOD and/or HSI SAC, will ensure alleged victims of sexual
abuse or assault who have made allegations involving criminal behavior
will be provided access to U nonimmigrant status information. DHS
believes that this policy ensures victims will have timely access to
the U nonimmigrant status information. Accordingly, DHS declines to
implement a two week regulatory requirement.
Comment. Collective comments from advocates suggested a requirement
that the agency designate various qualified staff members or DHS
employees to complete USCIS Form I-918, Supplement B for any detainee
victim of sexual abuse who meets U nonimmigrant status certification
requirements. A comment noted that this ``is meant to prevent qualified
agency personnel from declining to assist a detainee with a U visa
application.'' The same comment noted that in some cases, agencies do
not complete the Supplement B ``because of a lack of understanding
[that] completing Supplement B is not an admission of liability on the
part of the agency but simply an acknowledgement that the detainee was
or is likely to be helpful in an investigation.''
Response. U nonimmigrant status is available to victims of certain
qualifying crimes under U.S. laws who assist law enforcement in the
investigation or prosecution of the criminal activity. The only
agencies that have authority to certify the Form I-918, Supplement B
are those Federal, State, or local agencies with responsibility for the
investigation or prosecution of a qualifying crime or criminal
activity, including agencies with criminal investigative jurisdiction.
See 8 CFR 214.14(a)(2). OPR and HSI have been delegated the authority
for ICE to complete and certify the USCIS Form I-918, Supplement B when
they are the investigating authority on a Federal case for victims of
qualifying criminal activity. ERO does not have this delegated
authority because ERO does not have criminal investigative
jurisdiction.
In most instances where a detainee would seek to petition for U
nonimmigrant status, the appropriate investigative authority and
therefore the
[[Page 13124]]
certifying agency would be local law enforcement. With respect to the
specific request that DHS prevent qualified agency personnel from
declining to assist a detainee with a U nonimmigrant petition, DHS
declines to set such policy in this context. DHS has clearly delegated
authority to select officers who may certify a U nonimmigrant petition.
These officers receive appropriate training with regard to this process
and must use their professional judgment when deciding whether to
certify petitions. DHS does not believe it is necessary or appropriate
to require additional involvement in the certification process for U
nonimmigrant petitions.
Comment. One commenter suggested that DHS extend the visa
information provisions to include a requirement that an alleged
detainee victim of sexual abuse receive notification and assistance for
Special Immigrant Juvenile status and T nonimmigrant status (commonly
known as the ``T visa'').
Response. DHS declines to accept the suggested language, as T
nonimmigrant status and Special Immigrant Juvenile (SIJ) status are
outside the scope of this rulemaking. Whereas an alleged incident of
sexual assault of a detainee may constitute a qualifying criminal
activity for U nonimmigrant status, this rulemaking is not germane to T
nonimmigrant status, which is for certain victims of a severe form of
human trafficking. SIJ status is applicable to an alien child who must
meet certain criteria including: (1) Having been declared dependent on
a juvenile court, or legally committed to or placed under the custody
of a state agency, individual, or entity; (2) that the child cannot be
reunified with a parent because of abuse, abandonment, neglect, or a
similar reason under state law; and (3) that it is not within the best
interest of the child to return to his/her home country. See 8 U.S.C.
1101(a)(27)(J). For those unaccompanied alien children who may seek SIJ
status, DHS's custody of the unaccompanied alien child would generally
be limited to 72 hours after determining that the child is an
unaccompanied alien child, after which the child would be transferred
from DHS custody to HHS/ORR custody. As a result, DHS would no longer
have jurisdiction over the unaccompanied alien child, making
notification and assistance for SIJ status outside the scope of this
rule.
Comment. Two comments suggested standards be added--in accordance
with what a comment described as standard child welfare practices when
juveniles are survivors of sexual abuse--to require that if the alleged
detainee victim is an ``unaccompanied alien child in removal,'' the PSA
Compliance Manager or his or her assignee notify ORR immediately and
facilitate the immediate transfer of the juvenile to ORR, so long as
the detainee victim wishes to remain in the United States while the
investigation is pending. Additionally, the groups suggest that if the
detainee victim is a juvenile in a family unit and the sole parent or
legal guardian in that unit has allegedly victimized any juvenile, the
PSA Compliance Manager or its assignee be required to consult with the
designated state or local mandatory reporting agency regarding the
release and placement of all juvenile(s) in the family unit with a
state or local social services agency. The group suggests that if the
state or local social services agency refrains from assuming custody
but a criminal or administrative investigation results in ``a
finding,'' the juveniles must be deemed unaccompanied and ORR must be
notified for the transfer.
Response. DHS declines to add the suggested language concerning
this population. Unaccompanied alien children are generally transferred
to an HHS/ORR facility within 72 hours. Moreover, taken together,
various provisions in the regulations appropriately address the concern
raised by the comment. Section 115.14 addresses issues relating to
juvenile detainees. If an alleged victim is under the age of 18,
Sec. Sec. 115.61(d) and 115.161(d) require the agency to report the
allegation to the designated state or local services agency under
applicable mandatory reporting laws. Per Sec. Sec. 115.64 and 115.116,
upon learning of an allegation that a detainee was sexually abused, the
first responder must separate the alleged victim and abuser. DHS
believes the requirements in these referenced sections provide
sufficient protections that adequately meet the goals of the comments'
suggested changes.
Staff Training (Sec. Sec. 115.31, 115.131)
Summary of Proposed Rule
The standards in the proposed rule required all employees that have
contact with detainees as well as all facility staff receive training
concerning sexual abuse, with refresher training provided as
appropriate. The standards mandated that current staff complete the
training within one year of the effective date of the standard for
immigration detention facilities and within two years of the effective
date of the standard for holding facilities.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. A number of advocacy group commenters objected to the
timeframe for initial training. With respect to Subpart A's requirement
that the agency train, or require the training of, all facility staff
and agency employees who may have contact with immigration detention
facility detainees within one year, one advocacy group suggested that
the standard require training completion within a shorter time period
of six months. With respect to Subpart B, commenters suggested that all
training pertaining to holding facilities be completed within one year
of this publication.
Response. DHS has considered these comments and determined that the
proposed standard still provides the most aggressive timeframe
appropriate for training in immigration detention facilities. DHS's
timeframe is in line with the DOJ standard's one-year period for
employees who may have contact with inmates. DHS declines to shorten
the timeframe for training in holding facilities, in light of the large
number of CBP personnel who will receive the training.
Comment. Commenters suggested that training be ongoing, with a
number of groups suggesting adopting DOJ's language on mandatory
refresher training every two years and refresher information on current
sexual abuse and harassment policies in years when training is not
required. According to some advocacy groups, the intent of the ongoing
training rather than one-time training would be to ensure that staffs
focus on zero tolerance and appreciation of an abuse-free environment,
to allow staff to share experiences about implementation of the
standards, and to increase the likelihood that training themes are
internalized in daily staff-detainee interactions.
Response. With respect to Subpart A, the proposed rule stated that
the agency or facility shall provide refresher information every two
years. With respect to Subpart B, the proposed rule stated that the
agency shall provide refresher information, as appropriate. DHS
proposed these refresher requirements to foster a culture of awareness,
without denying its component agencies the flexibility necessary to
adjust refresher training requirements to respond to operational
realities. Considerations include the time and cost of developing
adequate training that is sufficiently tailored to
[[Page 13125]]
the unique immigration detention population and the time and cost for
staff to participate in such training.
With respect to Subpart A specifically, DHS, through CRCL and ICE,
has developed a training module on ``Preventing and Addressing Sexual
Abuse and Assault in ICE Detention'' which the ICE Director required in
ICE's 2012 SAAPID to have been already completed for all ICE personnel
who may have contact with individuals in ICE custody and which is also
required for newly hired officers and agents. This module specifically
addresses the zero-tolerance policy for sexual abuse and assault, among
other issues. The training has recently been updated to incorporate
certain terms and language from the proposed rule, and will be updated
again following this final rule. ICE believes that this training module
addresses the substantive concerns expressed by the commenters.
Comment. One commenter suggested that contractors be included in
the training requirements along with current facility staff and agency
employees, and that it should be specified that the training be by DHS
or using DHS-approved materials, and that the agency documentation
requirement in Subpart B be applicable to contractors and volunteers in
addition to employees.
Response. Section 115.31, outlining training requirements for
detention facility staff, embraces contractors who work and provide
regularly recurring services in detention facilities. The rule's
definition of contractor excludes individuals, hired on an intermittent
basis to provide services for the facility or the agency. These
contractors, who do not provide services on a recurring basis pursuant
to a contractual agreement, are covered under section 115.32 of these
standards. These PREA standards are applicable within one year to the
facilities required to implement them; PBNDS 2011 Sec. 2.11, which is
in the process of being implemented through modification agreements,
which have already been implemented in a large number of over-72-hour
facilities, also requires staff training on a facility's sexual abuse
or assault prevention and intervention program for employees,
volunteers and contract personnel and in refresher training based on
level of contact with detainees, among other criteria, with the zero-
tolerance policy being a requirement for having any contact with
detainees. Additionally, some facilities that have not yet agreed to
modification agreements are operating under PBNDS 2008, which contains
a substantially similar training requirement for employees, volunteers,
and contract personnel on those standards' Sexual Abuse and Assault
Prevention and Intervention Program, with annual refresher training
thereafter. Finally, DHS will endeavor to ensure that facilities are
compliant with PREA standards as quickly as operational and budget
constraints will allow, ensuring that SPCs, CDFs and dedicated IGSAs
are compliant within 18 months of the effective date of this
regulation. For these reasons, contractor and volunteer personnel will
be adequately aware of the zero-tolerance policy.
Comment. Two advocacy groups suggested language be added to ensure
that staff who may interact with detainees understand the training,
either through a comprehension examination or through some form of
verification of training.
Response. The mandatory training module mentioned above for ICE
employees who have contact with detainees contains 10 pre-test
questions and 10 post-test questions covering key teaching points. The
learner must receive an 80% passing score on the post-test to receive
verification of completing the training. The slides include the correct
answers and additional explanation following each question. DHS is
confident this training module serves the purposes of examination and
verification. Once an immigration detention facility has adopted these
standards, the agency will ensure pursuant to this section that all
facility staff, including employees or contractors of the facility,
complete similar training. Subsection (c) already requires that the
agency and each facility shall document that staff have completed
applicable training.
Comment. One commenter stated that all components of the DOJ
training standard should be incorporated into the DHS standard. Another
commenter recommended generally that the standard on staff training
should be revisited to be in line with DOJ's standard. Similarly, the
former NPREC Commissioners suggested adding the following training
components from the Commission's draft standards and DOJ's final
standards: The right of inmates and employees to be free from
retaliation for reporting sexual abuse and sexual harassment; the
dynamics of sexual abuse and sexual harassment in confinement; the
common reactions of sexual abuse and sexual harassment victims; and how
to detect and respond to signs of threatened and actual sexual abuse.
The former Commissioners and other groups also expressed concern that
the provision should include training on sensitivity to culturally
diverse detainees, some of which may have different understandings of
acceptable and unacceptable sexual behavior.
Response. The DHS provision regarding staff training provides
detailed and comprehensive expectations for training. DHS rejects using
the DOJ standard's exact language because DHS's standard provides the
agency greater flexibility to ensure that the provision is consistent
with existing detention standards. ICE's current training curriculum
focuses on promoting techniques of effective communication with
detainees from all backgrounds and in a variety of settings. The
curriculum is a skills-based approach that emphasizes the importance of
interacting with all detainees in a culturally sensitive manner. ICE
intends to continue to provide such training, and to modify it as
necessary in the coming years. ICE does not believe, however, that an
independent regulatory requirement to conduct such training would
meaningfully enhance the experience of ICE detainees.
Comment. Some advocacy groups focused on need for specifically
addressing training for juveniles for employees who may be in contact
with them. A collection of groups suggested a training requirement in
this area that would include factors making youth vulnerable to sexual
abuse and sexual harassment; adolescent development for girls and boys,
including normative behavior; the prevalence of trauma and abuse
histories among youth in confinement facilities; relevant age of
consent and mandatory reporting laws; and child-sensitive interviewing
techniques.
Response. DHS appreciates the commenter's input, and will consider
including this information in future curricula. For purposes of this
rulemaking, however, DHS is satisfied that the current list of training
requirements in regulation is sufficiently detailed to accomplish the
core goal, while leaving the agency flexibility to prioritize and
develop training on additional topics over time. As noted above, the
current list of topics is consistent with existing detention standards
(PBNDS 2011, PBNDS 2008, and FRS) covering approximately 94% of ICE
detainees, on average, excluding those detainees who are held in DOJ
facilities (and are therefore covered by the DOJ rule). Additionally,
regarding training geared toward juveniles, all ICE Field Office
Juvenile Coordinators (FOJCs) are required to attend training to
fulfill their responsibilities to find suitable placement of juveniles
in
[[Page 13126]]
facilities designated for juvenile occupancy, and all ERO officers
undergo basic training that includes a juvenile component. FOJCs are
trained in the demeanor, tone and simple type of language to use when
speaking to all minors and on the importance of building rapport with
them to reinforce a feeling of safety. Maintaining flexibility to adapt
these training requirements through policy will ensure employees in
contact with juveniles are trained based upon the most current
developments relating to juvenile interaction and protection.
Comment. One group suggested adding a requirement that training be
tailored to the gender of the detainees at the employee's facility,
with the employee receiving additional training if reassigned from a
facility that houses detainees of only one sex to a facility housing
only detainees of the opposite sex.
Response. As with the comment immediately above, DHS intends that
all detainees be protected from sexual abuse and assault through
implementation of comparable measures across the board for all
detainees in covered facilities. Additionally, DHS has considered
general concerns about employee transfer and is confident that the
training standard's requirement for refresher information, both in
Subpart A and in Subpart B, will address the potential for any changes
in training needs over time or between facilities.
Comment. An advocacy group expressed concern about the provision in
paragraph (a)(7) regarding training on effectively and professionally
communicating with detainees, including lesbian, gay, bisexual,
transgender, intersex, and gender non-conforming (LGBTIGNC) detainees,
stating that the standard should extend further to include sensitivity
training. Another group suggested this provision also explicitly
include detainees who do not speak English, and detainees who may have
survived trauma in their countries of origin.
Response. DHS has considered these suggestions; however, the 2012
SAAPID--which requires training for all ICE personnel who may have
contact with individuals in ICE custody--provides for training on
vulnerable populations, including ensuring professional, effective
communication with LGBTIGNC detainees and other vulnerable individuals.
The 2012 SAAPID also includes training on accommodating LEP
individuals. DHS believes these training requirements to be sufficient
to address the concerns regarding sensitivity for LGBTIGNC, LEP, and
trauma survivor detainees. For the same reasons expressed above, DHS
declines to incorporate these requirements into the regulation.
Comment. One group suggested replacing the training provision in
paragraph (a)(8) regarding procedures for reporting knowledge or
suspicion of sexual abuse with training on ``how to fulfill their
responsibilities under agency sexual abuse and sexual harassment
prevention, detection, reporting, and response policies and
procedures.''
Response. DHS believes it is not necessary to broaden proposed
paragraph (a)(8) in this way. The intent of the enumerated requirements
in paragraph (a) was to designate specific elements of sexual abuse
training which are mandated for all employees who have contact with
detainees and for all facility staff. Additionally, paragraph (a) of
each provision already requires generally that training for facility
staff as well as employees, contractors, and volunteers, respectively,
address fulfilling the responsibilities under each Subpart's standards.
The proposed revision would be redundant and potentially confusing.
Comment. A group suggested adding a training provision on complying
with relevant law related to mandatory reporting of sexual abuse to
outside authorities.
Response. DHS has considered this comment and determined that
proposed paragraphs (8) and (9) requiring training on various aspects
of reporting sexual abuse or suspicion of abuse are sufficient to cover
this and other aspects of reporting.
Other Training; Notification to Detainees of the Agency's Zero-
Tolerance Policy (Sec. Sec. 115.32, 115.132)
Summary of Proposed Rule
The standard in Sec. 115.32 of the proposed rule required all
volunteers and contractors at immigration detention facilities that
have contact with detainees receive training concerning sexual abuse.
The standard in Sec. 115.132 of the proposed rule required the agency
to make public its zero-tolerance policy regarding sexual abuse and
ensure that key information regarding the policy is available for
detainees.
Changes in Final Rule
DHS clarified that the training requirements in the Subpart A
standard apply to contractors who provide services to the facility on a
non-recurring basis. DHS also revised the title of the standard for
clarity and consistency. As noted above, contractors who provide
services to the facility on a recurring basis are covered by Sec.
115.31.
DHS also removed the word ``may'' from paragraph (c) of the same
standard, for consistency with paragraph (a). Prior to the change, the
substantive training requirement in this section applied to those ``who
have contact with detainees,'' but the documentation requirement
applied to those ``who may have contact with immigration detention
facility detainees.''
Comments and Responses
Comment. One advocacy group was concerned that the training
requirements applicable to contractors and volunteers should be the
same as described in proposed Sec. 115.31(a) for employees, with
additional training being provided based on the services the
individuals provide and level of contact they have with detainees.
Response. DHS has considered this suggestion; however, because
immigration detention facilities host a wide range of volunteers and
specialized contractors who provide valuable services to facilities and
detainees, requiring the same training level for these individuals may
result in a reduction or delay in services. The proposed separate
unique standard in Subpart A allowing for areas of flexibility for
volunteers and other contractors who provide services on a non-
recurring basis was determined to be more sufficient to accomplish the
core education goal without unintended impact. The standard sets a
``floor'' for basic training under the regulation, but also directs
additional training for volunteers and other contractors based on the
services they provide and level of contact they have with detainees.
Comment. A comment from an advocacy group raised the same concerns
with this standard regarding the timeframe prior to initial training,
the lack of mandatory refresher training, and lack of an examination to
test each trainee's comprehension.
Response. DHS declines to make any changes to Sec. 115.32 for the
same reasons described regarding these suggested changes to Sec. Sec.
115.31 and 115.131.
Comment. Some commenters were concerned that there should be a
requirement that these types of facility workers receive comprehensive
training, including LGBTI-related training. An advocacy group suggested
training for volunteers and contractors include child-specific modules
and prevent re-victimization of children who are victims of sexual
abuse.
Response. DHS appreciates the commenter's input, and will consider
[[Page 13127]]
including this information in future curricula. For purposes of this
rulemaking, however, DHS is satisfied that the current list of training
requirements in regulation is sufficiently detailed to accomplish the
core goal, while leaving the agency flexibility to prioritize and
develop training on additional topics over time. As noted above, the
current list of topics is consistent with existing detention standards.
Comment. A group suggested the standard should include a time limit
in which volunteers or contractors must be trained to prevent ambiguity
over the timing for these types of individuals to come into compliance
before contact with detainees would be forbidden.
Response. The final rule is effective May 6, 2014. Covered
facilities must meet the requirements of Sec. 115.32 by the date that
any new contract, contract renewal, or substantive contract
modification takes effect.
Comment. One advocacy group suggested that DHS develop
comprehensive training materials, including information about
conducting appropriate, culturally-sensitive communication with
immigration detainees and how staff can fulfill their responsibilities
under the PREA standards.
Response. DHS agrees with this suggestion, but does not believe
additional rule revisions are necessary. Paragraph (a) of the Subpart A
standard already requires a facility to ensure that all volunteers and
contractors who have contact with detainees have been trained on their
responsibilities under the agency's and the facility's sexual abuse
prevention, detection, intervention and response policies and
procedures. DHS will take reasonable steps to ensure that staff,
contractors, and volunteers are familiar with and comfortable using
appropriate terms and concepts when discussing sexual abuse with a
diverse population, and equipped to interact with immigration detainees
who may have experienced trauma.
Detainee Education (Sec. 115.33)
Summary of Proposed Rule
The standard in the proposed rule mandated that upon custody
intake, each facility provide detainees information about the agency's
and the facility's zero-tolerance policies with respect to all forms of
sexual abuse, including instruction on a number of specified topics.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. One commenter stated that the standards should contain
additional explanation to detainees regarding the PREA standards beyond
the explanations, information, notification, and orientation
descriptions in the proposed standard. The commenter was concerned that
detainees fear reporting seemingly based upon potential retaliation.
Response. Paragraph (a) of the proposed standard already required
that, at a minimum, the intake process at orientation contain
instruction on, among other areas, ``Prohibition against retaliation,
including an explanation that reporting sexual abuse shall not
negatively impact the detainee's immigration proceedings.'' DHS
believes this explicitly enumerated content requirement, along with the
other five minimum requirements, are sufficient to address the
commenter's concern.
Comment. One advocacy group expressed concerns that the proposed
standard failed to address the education of current detainees who will
not receive the information at the time of their intake; the commenting
group suggested such detainees be required to complete the education
within a relatively short specified period of the effective date of the
DHS standards, such as one month.
Some commenters expressed concerns over the potentially
overwhelming nature of the amount of information contained in an up-
front education requirement and the possibility that detainees may not
fully understand DHS's multi-faceted initiative upon intake, a
potentially stressful time.
A number of advocacy groups suggested adding a 30-day time period
following intake for completion of instruction on all the areas that
were to be addressed upon intake in the proposed standard; within this
period, the agency would provide comprehensive education to detainees
either in person or through video.
One group suggested requiring facilities to repeat PREA education
programs every 30 days, of which the detainee could opt out.
Response. The average length of stay in immigration detention
facilities is approximately 30 days, and the median length of stay is
shorter still--8 days. Thus it is common that a detainee will be
confined in a facility for less than one month, and it would not be
practical or effective to place a one-month-from-effective date
requirement for education for those detainees who have already gone
through intake prior to the effective date of the final rule.
Likewise, there would not be a practical need to provide refresher
education after 30 days from intake; this negates the need for any
opting-out of such refresher education. Providing the information up-
front to detainees is not only the most practical solution given the
nature of immigration detention, but also ensures the detainee is
informed at the earliest point possible to maximize prevention of
sexual abuse and assault.
After the intake education and in cases where intake has taken
place prior to the effective date of this final rule, detainees can
refer back to aids such as the Detainee Handbook and posters with
sexual abuse prevention information, as needed.
Comment. Some commenters suggested that additional information
should be conveyed to detainees, including information regarding their
legal rights. One advocacy group suggested revising the provision on
the Detainee Handbook to require that the Handbook contain more
comprehensive information, including detainees' rights and
responsibilities related to sexual abuse, how to contact the DHS OIG
and CRCL, the zero-tolerance policy, and other policies related to
sexual abuse prevention and response.
Response. DHS agrees that the information described is important
for protecting detainees. Accordingly, DHS has already required public
posting and distribution of similar information under paragraphs (d)
and (e) of the proposed standard. ICE's Detainee Handbook contains
detailed information about sexual abuse and assault, including
definitions for detainee-on-detainee and staff-on-detainee sexual abuse
and assault; information about prohibited acts and confidentiality;
instructions on how to report assaults to the facility, the FOD, DHS,
or ICE; next steps after a sexual assault is reported; what to expect
in a medical exam; understanding the investigative process; and the
emotional consequences of sexual assault. DHS believes that in addition
to the paragraphs (d) and (e), the information provided in the Detainee
Handbook provides sufficient protection to address the commenters'
concerns. ICE will review and update the Detainee Handbook as necessary
or useful.
Comment. One group suggested requiring that upon a detainee's
transfer to another facility, the detainee receive a refresher of the
facility's sexual abuse prevention, detection, and response standards.
Response. A general orientation process that includes the
information
[[Page 13128]]
described in this standard is a requirement each time a detainee enters
a new facility, including when transferred from another facility;
therefore, it is not necessary to create a separate standard regarding
refresher information upon an immigration detainee's transfer.
Comment. Regarding the proposed standard to ensure education
materials are accessible to all detainees, one advocacy group suggests
adding a requirement that if a detainee cannot read or does not
understand the language of the orientation and/or Handbook, the
facility administrator would provide the material using audio or video
recordings in a language the detainee understands, arrange for the
orientation materials to be read to the detainee, or provide a
translator or interpreter within seven days.
Response. DHS understands the concern expressed by this comment;
however, the standards found in Sec. Sec. 115.16 and 115.116 regarding
accommodating LEP detainees are adequate to address any problems with
accessibility with respect to orientation materials. Under those
provisions, the agency and each facility must ensure meaningful access
to all aspects of the agency's and facility's efforts to prevent,
detect, and respond to sexual abuse--which would include the education
requirements at orientation. Moreover, DHS policy addresses DHS-wide
efforts to provide meaningful access to people with limited English
proficiency. Information regarding these efforts is publicly available
at the following link: http://www.dhs.gov/department-homeland-security-language-access-plan. To further strengthen Sec. Sec. 115.16 and
115.116, DHS revised the language to require the component and each
facility to provide in-person or telephonic interpretation services
that enable effective, accurate, and impartial interpretation, by
someone other than another detainee, unless the detainee expresses a
preference for another detainee to provide interpretation and the
agency determines that such interpretation is appropriate and
consistent with DHS policy.
Comment. Some members of Congress commented generally that the
standard regarding detainee education should be revised to be in line
with DOJ's standard.
Response. DHS's detainee education provision is detailed and
comprehensive. It is also tailored to the unique characteristics of
immigration detention and the variances among confinement facilities
for DHS detainees. DHS believes that merely repeating the DOJ standard
would be inappropriate in this context. The major difference between
the two Departments' standards is that DOJ is responsible for ensuring
that current inmates receive the PREA education within one year of the
rule's implementation. DHS's detainee population has an average length
of stay of 30 days, resulting in a much more transient population. To
ensure that all current detainees receive the PREA-related information,
DHS relies on several material sources posted throughout the
facilities, such as handbooks, pamphlets, notices, local organization
information, PSA Compliance Manager information, etc. For those
detainees that are LEP, visually impaired, or otherwise disabled, DHS
provides the necessary resources, such as interpreters, for those
detainees to still obtain the knowledge that is provided by the posted
visuals.
Specialized Training: Investigations (Sec. Sec. 115.34, 115.134)
Summary of Proposed Rule
The standards in the proposed rule required that the agency or
facility provide specialized training to investigators that conduct
investigations into allegations of sexual abuse at confinement
facilities and that all such investigations be conducted by qualified
investigators.
Changes in Final Rule
DHS is adopting the regulation as proposed, with a minor technical
change clarifying the scope of the documentation requirement.
Comments and Responses
Comment. Some commenters suggested additional details of the
specialized investigative training be expressly required by the
standard, including techniques for interviewing sexual abuse victims,
proper use of Miranda and Garrity warnings, sexual abuse evidence
collection in confinement settings, and the criteria and evidence
required for administrative action or prosecution referral. One group
suggested the standard expressly require this specialized training to
be separate from staff training.
Response. DOJ's final rule regarding specialized training
standardizes training for a broad spectrum of federal, state and local
investigators. DHS is not faced with the same challenges and maintains
direct control over investigators and their training. DHS believes that
its current policies and procedures effectively govern specialized
training for investigators. General training on investigation
techniques is included in OPR Special Agent Training and is covered in
OPR's Investigative Guidebook and other internal policies and training.
In addition, ICE's 2012 SAAPID prescribes more detailed requirements
for the content of specialized investigator training, requiring that
such training for agency investigators cover, at a minimum,
interviewing sexual abuse and assault victims, sexual abuse and assault
evidence collection in confinement settings, the criteria and evidence
required for administrative action or prosecutorial referral, and
information about effective cross-agency coordination in the
investigation process. DHS believes that this standard maintains a
proper focus on PREA implementation--training tailored for sexual abuse
detection and response through the investigative process.
DHS declines to require the specialized training provision to state
that such training be provided separately from staff training. The fact
that the PREA standards differentiate between staff training and
specialized training and specifically denote the types of agency
employees and facility staff who must participate demonstrate DHS's
commitment to ensuring that additional higher-level training will be
provided to those who require it.
Comment. One group requested clarification in the standard as to
whether DHS intends the specialized training apply to persons
responsible for investigations in state, local, or private facilities,
in addition to training for ICE and CBP personnel.
Response. To clarify, while the agency is responsible for and will
be directly training its own personnel in this manner, the standard
also requires each facility to train their own personnel that will be
working on the investigations addressed in the standard. Any criminal
investigations will continue to be handled by the relevant outside law
enforcement personnel.
Comment. One group suggested a provision be added expressly
requiring that investigators receive the training mandated for
employees and for contractors and volunteers under Sec. Sec. 115.31
and 115.32, respectively.
Response. Paragraph (a) of this section makes clear that
investigators must receive the general training mandated for employees
and facility staff under Sec. 115.31, in addition to the specialized
training outlined by Sec. 115.34.
[[Page 13129]]
Specialized Training: Medical and Mental Health Care (Sec. 115.35)
Summary of Proposed Rule
The standard in the proposed rule required that the agency provide
specialized training to DHS employees who serve as medical and mental
health practitioners in immigration detention facilities where such
care is provided.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. Commenters suggested that the standard be expanded for
medical and mental health practitioners. These commenters made the
following recommendations:
1. Practitioners who are not DHS or agency employees but who work
in the facilities should receive similar specialized training, and any
facility that does not use DHS medical practitioners should provide
training for its own medical providers;
2. Such practitioners should receive the training mandated for
employees and for contractors and volunteers under Sec. Sec. 115.31
and 115.32, respectively, depending upon the practitioner's status at
the agency;
3. The agency should maintain documentation that medical and mental
health practitioners have received and understand the training, either
from the agency or elsewhere;
4. The practitioners should receive special training for
sensitivity to culturally diverse populations, including appropriate
terms and concepts to use when discussing sex and sexual abuse, and
sensitivity and awareness regarding past trauma that may have been
experienced by immigration detainees;
5. The training be universally implemented and ingrained into the
work of all employees, contractors, and volunteers coming into detainee
contact; and
6. A number of groups suggested that the standard contain training
specifically on LGBTI issues, including training to ensure competent,
appropriate communications with LGBTIGNC detainees.
Response. With respect to the first recommendation, DHS believes
that adding standards requiring facility medical staff to receive
training to ensure that victims of sexual abuse are examined and
treated thoroughly and effectively is redundant. The staff are already
receiving the necessary training provided through Sec. 115.35(c).
Adding more specific criteria in this section concerning specialized
training to medical providers would make the regulations redundant and
cumbersome. DHS declines to make this revision.
With respect to the second and third recommendations, DHS believes
that adding standards mandating that practitioners receive the training
under Sec. Sec. 115.31 and 115.32, respectively, would also be
redundant. The medical and mental health practitioners would already be
obligated to receive the training required under Sec. Sec. 115.31 and
115.32, as the positions fall under the definitions of staff,
contractor, and volunteer listed in Sec. 115.5 of this final rule.
Under Sec. Sec. 115.31 and 115.32 the training the practitioners
receive would then be documented; as such DHS declines to make this
revision.
With respect to the fourth recommendation, DHS believes that adding
standards for sensitivity to culturally diverse populations, including
appropriate terms and concepts to use when discussing sex and sexual
abuse, and sensitivity awareness regarding past trauma that may have
been experienced by immigration detainees, would be superfluous and
potentially beyond DHS's relative expertise when compared to the
extensive training on medical and mental health care already received
by certified medical health care professionals. Furthermore, any new or
additional terms or concepts will likely be taught during the required
training described in Sec. 115.35(c). Adding this specific requirement
to this standard would also be redundant and therefore, not add to the
goal or integrity of the rule. DHS declines to make this revision.
With respect to the fifth recommendation, DHS believes that
additional revisions are unnecessary to ensure that training is
universally implemented and ingrained into the work of all employees,
contractors, and volunteers coming into detainee contact. The portions
of this regulation on training and education are designed to ensure
that all employees, contractors, and volunteers are trained and
educated to prevent, detect and respond to sexual abuse of detainees
while in DHS custody. Inserting additional explicit requirements would
be redundant. DHS therefore declines to revise the proposed rule in
response to this comment.
With respect to the sixth recommendation, DHS believes that adding
a standard requiring training specifically on LGBTI issues, including
training to ensure competent, appropriate communications with LGBTI
detainees, would be redundant to current ICE practice and policy, as
well as provisions of the proposed rule. The 2012 SAAPID--required to
have been already completed for all ICE personnel who may have contact
with individuals in ICE custody and required for newly hired officers
and agents--provides training on vulnerable populations, including
ensuring professional, effective communication with LGBTI detainees.
Furthermore, under Sec. Sec. 115.31 and 115.131, practitioners will
already be required to receive training relating to this population of
detainees. Section 115.32 requires practitioner volunteers and
contractors to receive similar training as well, due to their close
level of contact to most if not all detainees. DHS therefore declines
to revise the proposed rule in response to this comment.
Comment. One advocacy group suggested that in paragraph (a), the
basic specialized training provision of the standard, the qualifier
``where medical and mental health care is provided'' be removed to
clarify in the agency's detention standard that all immigration
detention facilities should provide access to medical and mental health
care.
Response. Views on the general structure of immigration detention
facility medical and mental care are outside the scope of this
rulemaking.
Assessment for Risk of Victimization and Abusiveness (Sec. Sec.
115.41, 115.141)
Summary of Proposed Rule
The standards in the proposed rule mandated that the facility
assess all detainees on intake to identify those likely to be sexual
aggressors or sexual victims and required that the detainees be housed
to prevent potential sexual abuse. The standard for immigration
detention facilities further required that the facility reassess each
detainee's risk of victimization or abusiveness between 60 and 90 days
from the date of initial assessment as well as any other time when
warranted to avoid incidents of abuse or victimization.
Changes in Final Rule
Sections 115.41 and 115.141 of the final rule have been revised to
require that assessments for risk of victimization or abusiveness
include an evaluation of whether the detainee has been previously
detained in addition to previously incarcerated. A technical revision
also is incorporated into Sec. 115.41(a) to clarify that the victims
that the provision describes are sexual abuse victims.
Comments and Responses
Comment. A number of advocacy groups suggested that among the risk
[[Page 13130]]
factors listed in the standard, DHS should also require the facility to
consider whether a detainee is ``perceived'' to be LGBTIGNC. (The
proposed rule focused on whether the detainee ``has self-identified''
as LGBTIGNC.) Commenters argued that the risk of sexual victimization
for those who are perceived as LGBTIGNC is similar to the risk of
sexual victimization for those who self-identify as LGBTIGNC.
Response. DHS disagrees with the addition of ``perceived'' LGBTIGNC
status to the criteria which facilities must consider in assessing
detainees for risk of sexual victimization would assist in accurate
identification of likely victims. Unlike self-identification as
LGBTIGNC (currently included in paragraph (c)(7) of the standard), a
detainee's ``perceived'' LGBTIGNC status cannot be reliably ascertained
by facility staff as it will vary based on individual perceptions and
cannot be standardized. In addition, a requirement for facility staff
to make subjective determinations regarding an individual's LGBTIGNC
status may lead to potentially discriminatory decisions by staff.
Comment. Some commenters and advocacy groups encouraged DHS to
consider options other than detention for vulnerable populations. For
example, some groups suggested requiring that vulnerable individuals--
including LGBT and mentally ill detainees--should be detained in only
extraordinary circumstances or be candidates for alternatives to
detention under the standards, including humanitarian parole, bond
release, in-person and telephonic check-ins, or electronic monitoring.
Others suggested that LGBT individuals or sexual abuse victims who
cannot be safely housed by the government be released or granted
prosecutorial discretion rather than be detained.
Response. DHS believes that existing ICE screening methods and
practices sufficiently address the concern expressed by these
commenters. The agency's Risk Classification Assessment (RCA)
instrument evaluates the potential vulnerability of all individuals
apprehended by ICE to determine whether detention is appropriate, or
whether some form of release under supervision or alternatives to
detention may be preferable. RCA screenings consider a wide range of
factors that may represent a special vulnerability in the custody
context, including physical or mental illness or disability, sexual
orientation/gender identity, and prior history of abuse or
victimization, among others.
Comment. A collection of advocacy groups suggested adding the word
``abuse'' to paragraph (a) when describing intake identification of
potential victims, which would seemingly more fully describe the kind
of potential sexual victimization.
Response. DHS agrees with the concern expressed in this comment and
has made the recommended change.
Comment. Two collective comments from many groups also suggested
explicitly requiring that the vulnerability assessments be conducted
using an objective screening instrument, to ensure useful assessments
and avoid any confusion.
Response. DHS believes that Sec. Sec. 115.41 and 115.141 as
currently written clearly set forth the factors that a facility must
consider to adequately assess detainees for risk of sexual
victimization. With respect to Subpart A, ICE's current screening
methods for assigning detainees to a particular security level employ
the standardized RCA instrument to guide decision-making using
objective criteria and a uniform scoring system; in addition, the
specific criteria in the regulation complement already existing
classification requirements in ICE's detention standards that are
designed for the purpose of assigning detainees to the least
restrictive housing consistent with safety and security. If DHS were to
require the use of an objective screening instrument in all immigration
detention facilities, the cost of developing and implementing such an
instrument in all covered facilities would be prohibitive for ICE.
Comment. With respect to paragraph (c), which sets forth additional
considerations for the assessment for risk of victimization, commenters
suggested adding a provision that the facility consider information
made available by the detainee through the assessment process.
Additionally, they suggest revising the ``previous incarceration''
factor to also include previous detention.
Response. The proposed and final rule mandate that information made
available by the detainee through the assessment process be considered
as part of the screening, through the requirement at paragraph (c)(9)
that facilities consider ``the detainee's own concerns about his or her
physical safety.'' DHS accepts the proposed revision to paragraph
(c)(4) to require that previous detention history, as well as previous
incarceration history, be considered.
Comment. One commenter suggested a requirement that female
detainees and minors be screened, assessed, and provided with treatment
during confinement.
Response. The proposed and final rules clearly require that female
detainees and minors be afforded each of the protections outlined by
the standards, including with regard to screening, assessment, and
treatment.
Comment. A commenter suggested adding a specific requirement for
assessment with respect to juvenile detainees (including juvenile
overnight detainees in the holding facility context). The comment
suggested that qualified professionals conduct such assessments out of
sight and sound of any adult detainees outside of the family unit, and
that if a family unit member is suspected of posing a danger to the
health or well-being of the juvenile, qualified professionals conduct
such assessments out of sight and sound of all adult detainees.
Response. Juveniles in custody as part of the Family Residential
Program pursuant to Sec. 115.14 are accompanied by an adult family
member who would be present during any questioning, unless the presence
of the adult would pose a risk to the juvenile.
Moreover, DHS believes that Sec. Sec. 115.14 and 115.114, in
conjunction with Sec. Sec. 115.41 and 115.141, provide sufficient,
comprehensive protection to juvenile detainees in immigration detention
and holding facility settings. The Sec. Sec. 115.14 and 115.114
standards ensure that the need to protect the juvenile's well-being
(and that of others) is observed, while providing that the juvenile be
detained in the least restrictive setting appropriate to the juvenile's
age and special needs. They also reinforce the importance of any other
applicable laws, regulations, or legal requirements.
Sections 115.41(a) and 115.141(b) are intended to ensure the safety
of all detainees (including juveniles) who may be held overnight in
holding facilities with other detainees. Paragraph (c) in both sections
also makes certain that the agency considers the age of the detainee as
a criterion in assessing the detainee's risk for sexual victimization.
This standard, as proposed and in final form, is consistent with DOJ's
standards and--in conjunction with Sec. Sec. 115.14 and 115.114--will
protect juveniles in holding facilities.
The DHS standard provides more detailed protection than the DOJ
standard by stating explicitly that staff must ask each detainee about
his or her own concerns regarding physical safety. Moreover, DHS notes
that it is impractical to require, in the context of holding
facilities, that all conversations with juveniles take place ``out of
sight
[[Page 13131]]
and sound.'' Given the many facilities that fall within the definition
of holding facilities, separate spaces are not always available.
Finally, DHS notes that unaccompanied alien children, as defined by 6
U.S.C. 279, are generally transferred to an HHS/ORR facility within 72
hours.
Use of Assessment Information (Sec. 115.42)
Summary of Proposed Rule
The standard in the proposed rule required the facilities to use
the information obtained in the risk assessment process to separate
detainees who are at risk of abuse from those at risk of being sexually
abusive. The proposed standard provided that facilities shall make
individualized determinations about how to ensure the safety of each
detainee, and required that, in placing transgender or intersex
detainees, the agency consider on a case-by-case basis whether a
placement would ensure the detainee's health and safety, and whether
the placement would present management or security problems. The
proposed standard also provided that transgender and intersex detainee
placement be reassessed at least twice each year, and that such
detainee's own views as to their safety be given serious consideration.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. One advocacy group and some commenters suggested that the
rule allow the agency to place LGBTI detainees with other LGBTI
detainees on a voluntary basis, for the purpose of protecting such
detainees. Similarly, commenters suggested provisions--described as
being partly based on DOJ standards both regarding adult confinement
facilities and civil juvenile detention facilities--that would prohibit
LGBTI unit assignment solely on the basis of identification or status,
but which would allow for such detainees to agree to be assigned to an
LGBTI housing area, so long as detainees in any such facility, unit, or
wing have access to programs, privileges, education, and work
opportunities to the same extent as other detainees. Some members of
Congress commented generally that the standard regarding housing of
LGBTI detainees should be revisited to be in line with DOJ's standard.
Response. As DHS noted in the proposed rule, the proposal does not
include a ban on assigning detainees to particular units solely on the
basis of sexual orientation or gender identity, but requires that the
facility consider detainees' gender self-identification and make an
individualized assessment of the effects of placement on detainee
mental health and well-being. DHS believes that retaining some
flexibility will allow facilities to employ a variety of options
tailored to the needs of detainees with a goal of offering the least
restrictive and safest environment for individuals. DHS acknowledges
that placement of detainees in special housing for any reason is a
serious step that requires careful consideration of alternatives. In
consideration of the risks associated with special housing, DHS takes
great care to ensure that detainees who are placed in any type of
special housing receive access to the same programs and services
available to detainees in the general population.
Comment. One advocacy group suggested modifying paragraph (b) to
provide that in addition to considering gender self-identification in
making placement decisions, the facility should also consider sexual
orientation and gender identity.
Response. The protections outlined in paragraph (b) of this
standard are intended to address issues and concerns unique to
transgender and intersex detainees, including the use of physical
anatomical traits and medical assessments to appropriately classify and
house individuals. DHS believes that safety and welfare concerns
related to screening of gay, lesbian, bisexual, and other gender non-
conforming individuals are adequately addressed by the requirements of
Sec. Sec. 115.41 and 115.42.
Comment. Regarding the same paragraph, commenters suggested that
the first sentence be clarified to state more specifically that ``[i]n
deciding whether to assign a transgender or intersex inmate to a
facility for male or female detainees, and in making other housing and
programming assignments, the agency or facility'' is to consider the
issues included in the proposed provision. The stated purpose of this
change is to ``put[] facility staff on clear notice that transgender
detainees can be housed based on their gender identity.''
Response. As recommended by the commenters, the proposed and final
rules prohibit facilities from making placement decisions for
transgender or intersex detainees solely on the basis of identity
documents or physical anatomy. Covered facilities making assessment and
housing decisions for a transgender or intersex detainee must consider
a variety of factors, including the detainee's gender self-
identification and health and safety needs, the detainee's self-
assessed safety needs, and the advice of a medical or mental health
practitioner.
DHS declines to incorporate the additional specific reference to
single-gender facilities, to maintain flexibility to address these
issues through guidance, on case-by-case basis, and consistent with
developing case law.
Comment. One comment suggested applying the rest of the paragraph
to the ``agency'' as well as facilities. This change would require the
agency to consider the relevant factors not only once the detainee has
arrived at a given facility, but before sending the detainee to that
facility. This could eliminate the need to transfer a transgender or
intersex detainee from one single-gender facility to another.
Response. DHS declines to make the additional suggested changes.
Although the PREA standards do not specifically state that the agency
consider enumerated factors for transgender and intersex detainee
placement, they do provide effective guidelines for assessing risk for
all detainees pursuant to Sec. 115.41. This section mandates that the
facility use the risk assessment information to inform assignment of
detainees to housing, recreation and other activities, and volunteer
work. This section also describes additional factors for the facility
to use in its assessment of transgender and intersex detainees in
particular and requires the agency to make individualized
determinations to ensure the safety of each detainee. Because DHS,
unlike DOJ, has more direct oversight regarding the treatment of all
detainees in immigration detention facilities, DHS determined that
requiring the agency to also use the risk assessment information would
not provide additional protections for transgender and intersex
detainees, and could cause operational confusion about the facility's
responsibilities under this section.
Comment. Commenters suggested adding a prohibition on any
facilities, for the purpose of preventing sexual abuse, adopting
restrictions on detainees' access to medical or mental health care, or
on manners of dress or grooming traditionally associated with one
gender or another. One comment suggested there could be constitutional
concerns if such access were to be restricted.
Response. DHS has determined that an explicit prohibition against
restrictions on access to medical or mental health care is unnecessary.
Access to medical or mental health care that is medically necessary and
appropriate may not be limited under ICE's detention standards. In
addition,
[[Page 13132]]
grooming and dress requirements are generally outside the scope of this
rule. Neither the NPREC Commission Report nor the DOJ final rule
included standards on this issue, and DHS did not raise this issue for
comment in its NPRM. Although DHS declines to include in this final
rule a provision on this issue, we note that as a matter of practice,
ICE generally does not accept or have dress or appearance restrictions
based on gender. NDS and PBNDS 2008 and 2011 reaffirm detainees' right
to nondiscrimination based on gender and sexual orientation.
Comment. In paragraph (c), two comments suggested that the
qualifying phrase ``[w]hen operationally feasible'' be removed to
ensure that facilities always provide transgender and intersex
detainees with the ability to shower privately.
Response. DHS declines to make the proposed change, based on
infrastructural limitations of housing and showering capacities at many
facilities. While some immigration detention facilities may have the
infrastructural capacity to permit transgender and intersex detainees
to shower privately, this cannot be guaranteed at all facilities. DHS
therefore requires the flexibility in Sec. 115.42 to accommodate
facilities where only open shower areas exist for detainee use.
Comment. One commenter suggested that detainees with no criminal
record should not be housed alongside criminal detainees.
Response. DHS believes that existing ICE classification processes
and related requirements for detention facilities sufficiently address
this concern, ensuring that housing decisions are based on an objective
and standardized assessment of each detainee's criminal background and
likely security risks.
Comment. A human rights advocacy group and former Commissioners of
NPREC recommended that immigration detainees be housed separately from
inmates; the advocacy group suggested that if cohabitation is in fact
necessary, the detainees should be assigned to cells or areas that
allow for no unsupervised contact between detainees and inmates. The
former Commissioners stated there should be heightened protection for
those immigration detainees identified as abuse-vulnerable during the
screening process.
Response. ICE contracts with detention facilities generally require
that immigration detainees be housed separately from any criminal
inmates that may also be present at the facility. DHS notes that a
categorical prohibition on commingling of immigration and criminal
detainees may not yield sufficient benefits to justify the cost,
because detention facilities generally use a classification system,
like the system employed by ICE, to govern the housing and programming
activities of its inmates to ensure safety.
Protective Custody (Sec. 115.43)
Summary of Proposed Rule
The proposed standard provided that vulnerable detainees may be
placed in involuntary segregated housing only after an assessment of
all available alternatives has been made--and only until an alternative
housing arrangement can be implemented. The standard also provided that
segregation shall not ordinarily exceed 30 days. In addition, the
proposed standard provided that, to the extent possible, involuntary
protective custody should not limit access to programming.
Changes in Final Rule
The final standard adds a requirement for facilities to notify the
appropriate ICE FOD no later than 72 hours after the initial placement
into segregation, whenever a detainee has been placed in administrative
segregation on the basis of a vulnerability to sexual abuse or assault.
Upon receiving such notification, the ICE FOD must review the
placement to consider its continued necessity, whether any less
restrictive housing or custodial alternatives may be appropriate and
available, and whether the placement is only as a last resort and when
no other viable housing options exist.
The final standard clarifies that it applies to administrative
segregation of vulnerable detainees for a reason connected to sexual
abuse or assault. As noted below, ICE has issued a segregation review
policy directive which establishes policy and procedures for ICE review
and oversight of segregated housing decisions. The final standard also
makes technical changes in paragraphs (a) and (b) for the purpose of
clarity.
Comments and Responses
Comment. Numerous groups, including a collection of advocacy groups
and former Commissioners of NPREC, criticized the language regarding
the ``ordinarily'' 30-day limit on protective housing as providing too
much leeway for facilities to maintain that no better alternatives were
available. The groups suggested restricting more narrowly any
extensions, with some groups stating there should be no exceptions to
the 30-day limit, instead substituting either release and potential
alternatives to detention thereafter if the detainee cannot be safely
housed in a detention facility, or more appropriate housing away from
the problematic facility. Another human rights group suggested
requiring any facility housing detainees in administrative segregation
for more than 30 days to notify the appropriate agency supervisor, to
conduct a prompt review of the continuing necessity for the
segregation--also recommended by the former Commissioners--and to work
with the facility to establish an alternative housing situation. Some
other groups suggested specific processes regarding notification of the
FOD after various periods of days of administrative segregation, with
one group suggesting further official notification and consideration of
detainee transfer to general population in an alternate facility or
placement in an alternative to the detention program.
Some groups suggested DHS consider altogether releasing victim-
detainees anytime a facility cannot safely separate them without
resorting to protective custody, with such custody being reserved for
only limited, emergency, or exigent situations.
Response. A categorical 30-day limitation on the use of
administrative segregation to protect detainees may not be possible
depending on available alternative housing and custodial options for
ensuring the safe placement of vulnerable detainees. However, DHS
agrees that agency oversight over cases of administrative segregation
would assist in effectuating the spirit of the standard, and has
amended the standard to require agency review of such cases in order to
ensure the continued appropriateness of segregation and to evaluate
whether any less restrictive custodial alternatives may be appropriate
and available.
Furthermore, ICE has finalized a segregation review policy
directive which establishes policy and procedures for ICE review and
oversight of segregated housing decisions. The ICE segregation review
directive is intended to complement the requirements of PBNDS 2011,
PBNDS 2008, NDS, and other applicable ICE policies. Proceeding by
policy in this area is consistent with Sec. 115.95 of the regulation,
which authorizes both agencies and facilities to implement policies
that include additional requirements. The directive would also be
consistent with Sec. 115.43(e) of the final rule, which requires
facilities to notify the appropriate FOD no later than 72 hours after
initial placement into segregation whenever a detainee has
[[Page 13133]]
been placed administrative segregation on the basis of a vulnerability
to sexual abuse or assault.
Comment. With respect to supervisory staff review during
administrative segregation periods, one commenter suggested that the
facility administration be required to notify the FOD when a detainee
has been held in segregation for 20 days. The comment also suggested
the review occur each week after seven days ``for the remaining 20
days,'' rather than every week for the first 30 days and every 10 days
thereafter.
Response. The final rule includes a change that requires facilities
to notify the local ICE FOD no later than 72 hours after initial
placement into segregation if a detainee has been held in
administrative segregation on the basis of a vulnerability to sexual
abuse or assault. The final rule also retains the other extensive
review requirements contained in the proposed rule, because facility
staff review of ongoing segregation placement is an effective tool. As
noted above, ICE has finalized a directive for ICE to review and
provide oversight of a facility's decision to place detainees in
segregated housing.
Comment. Former Commissioners of NPREC additionally found the term
``reasonable efforts'' problematic for imprecision, stating that its
interpretation could vary among facilities.
Response. DHS believes that ``reasonable efforts'' to provide
appropriate housing for vulnerable detainees will necessarily vary
across facilities, depending on available resources and the
circumstances of individual cases, and cannot be defined with precision
ex ante.
Comment. Regarding protective custody for juvenile detainees, one
commenter suggested a maximum limit of two days. Another suggested
language that would require facilities to make best efforts to avoid
placing juveniles in isolation, and that would prohibit--absent exigent
circumstances--agencies from denying juveniles daily large-muscle
exercise and legally required education services, along with other
programs and work opportunities to the extent possible. This group
recommended that when isolation is necessary to protect a juvenile, the
facility must document the reason it is necessary, review the need at
least daily, and ensure daily monitoring by a medical or mental health
professional.
Response. DHS has determined such a provision to be unnecessary,
since unaccompanied juveniles are generally not detained in ICE's
detention system for longer than 72 hours, during which time they would
not be placed in protective custody. In addition, DHS notes that access
to activities and other services is outside the scope of this
rulemaking, except to the extent affected by standards designed to
prevent, detect, and respond to sexual abuse and assault in detention
facilities.
Comment. One advocacy group suggested a provision be added to the
standard to require facilities to submit a quarterly report to ICE ERO
containing statistics and reasons regarding protective custody. The
provision would also require that, as part of the standards' auditing
process, the agency review all instances involving the use of
administrative segregation, and that--where a facility is found to have
relied on segregation for purposes other than as the least restrictive
means--the facility be subject to appropriate remedial measures
consistent with the overall audit scheme.
Response. DHS believes that current facility reports to ICE
regarding individual instances of protective custody, as required by
ICE's detention standards, suffice to facilitate effective agency
oversight of these cases. As noted above, ICE has finalized a directive
for ICE to review and provide oversight of a facility's decision to
place detainees in segregated housing, and this directive includes
additional reporting requirements.
Comment. Some advocate comments, including one from former
Commissioners of NPREC, suggested further oversight or record-keeping
similar to DOJ's standards for facilities where protective custody or
administrative segregation are implemented. A number of these groups,
including two collective group comments, suggested that proposed
paragraph (a) be modified or a new paragraph be created to ensure
``detailed documentation'' of the reasons for placing an individual in
administrative segregation and also include ``the reason why no
alternative means of separation from likely abusers can be arranged.''
The same groups also suggested similar changes--in line with DOJ's
standards--to proposed paragraph (c), including documenting duration of
protective custody and requiring reasonable steps to remedy conditions
that limit access, including a prohibition on denial of access to
telephones and counsel. In a similar vein, one group suggested the
agency be informed each time a suspected victim is placed in custody.
Former Commissioners suggested that any segregated individuals have
access to programs, privileges, education, and work opportunities to
the extent possible, but if restricted, required documentation of: the
limited opportunities, the duration, and the reasons therefor.
Response. ICE's existing detention standards uniformly require that
facilities document the precise reasons for placement of an individual
in administrative segregation, as well as (under PBNDS 2008 and 2011)
any exceptions to the general requirement that detainees in protective
custody be provided access to programs, visitation, counsel, and other
services available to the general population to the maximum extent
practicable, consistent with the practices advocated by commenters. ICE
has also finalized a segregation review policy directive which
establishes policy and procedures for ICE review and oversight of
segregated housing decisions.
Comment. Some groups and a collective comment of advocates
suggested including a provision that would make explicit that
protective custody always be accomplished in the least restrictive
manner capable of maintaining the safety of the detainee and the
facility; commenters expressed concern about long-term detrimental
health effects from segregation. One commenter stated his belief that
segregation can be used for punitive purposes rather than to protect
detainees, which should be addressed.
Response. DHS believes the concern is adequately addressed by the
revised rule, which requires that use of administrative segregation to
protect vulnerable populations be used only as a last resort and when
no other viable housing option exist.
Comment. One advocacy group suggested detailed requirements
describing the minimum privileges of detainees in protective custody,
including normal access to educational and programming opportunities;
at least five hours a day of out-of-cell time, including at least one
hour daily large muscle exercise that includes access to outdoor
recreation; access to the normal meals and drinking water, clothing,
and medical, mental health and dental treatment; access to personal
property, including televisions and radios; access to books, magazines,
and other printed material; access to daily showers; and access to the
normal correspondence privileges and number of visits and phone calls,
including but not limited to comparable level of contact with family,
friends, legal guardians, and legal assistance.
Response. Existing ICE detention standards address in detail the
minimum programs, services, and privileges to which detainees in
segregation must be afforded access,
[[Page 13134]]
including recreation, visitation, legal counsel and materials, health
services, meals, correspondence, religious services, and personal
hygiene items, among others. DHS does not believe that this level of
specificity is necessary to additionally include in this regulation.
Detainee Reporting (Sec. Sec. 115.51, 115.151)
Summary of Proposed Rule
Sections 115.51 and 115.151 of the proposed rule required agencies
to enable detainees to privately report sexual abuse, prohibit
retaliation for reporting the abuse, and related misconduct. The
proposed standards required DHS to provide instruction to detainees on
how to confidentially report such misconduct. The proposed standards
also required that DHS provide and facilities inform detainees of at
least one way to report sexual abuse to an outside public or private
entity that is not affiliated with the agency, and that is able to
receive and immediately forward the detainee's reports of sexual abuse
to agency officials, while allowing the detainee to remain anonymous,
upon request.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. Commenters expressed general concern regarding the manner
in which reporting opportunities may be available. One advocacy group
suggested that allowing posting of information regarding consular
notification as a means to satisfy the requirement that detainees have
at least one way to report sexual abuse outside the agency is
inadequate because cultural or other concerns may prevent victims from
being able or willing to inform an official of their government. The
group also expressed concern that other avenues be available to the
detainee regardless of whether detained in a holding facility. Former
Commissioners of NPREC stressed the need for detainees to have the
ability to report sexual abuse to non-staff outside the agency or
facility, while another commenter suggested there be either a separate
entity or an assigned trustworthy officer to whom a detainee could
report an incident. One organization stated the standard should require
proactive notification to detainees of opportunities to report crimes
confidentially, one-on-one, to an auditor.
Response. DHS believes that these provisions adequately address the
important need for detainees to have multiple methods of reporting
sexual assault and abuse. This key protection requirement is reflected
in the standard and in current agency practices. With regard to
immigration detention facilities, detainees can report incidents in
several ways, including by calling the JIC or the point of contact
listed on the sexual abuse and assault posters. Detainees may also call
the OIG, the Community and Detainee Helpline, or report incidents to
CRCL. The Detainee Handbook and posters provide contact information to
detainees and also note that detainee reports are confidential. With
respect to holding facilities, detainees are provided with multiple
ways to privately report sexual abuse, including reporting to the DHS
OIG.
Comment. The former Commissioners suggested including volunteers
and medical and mental health practitioners in the standard due to
their unique situation of common contact with detainees.
Response. The purpose of this provision is to ensure that the
agency and facilities create effective procedures for detainee incident
reporting. Although the provision does not explicitly address reporting
to volunteers or healthcare practitioners, nothing in this standard
prohibits such reporting. In this connection, DHS notes that volunteers
and healthcare practitioners will receive specialized training
regarding how to recognize and handle detainees who have been sexually
abused or assaulted and how to respond to detainee allegations. DHS
believes that volunteers and healthcare practitioners will be a
valuable resource for detainees, but declines to add specific
regulatory provisions for individual avenues of reporting, beyond those
already identified in the regulation.
Comment. Some members of Congress commented generally that the
standard regarding abuse reports and responses to reports of abuse
should be revisited to be in line with DOJ's standard.
Response. DHS respectfully notes that with regard to detainee
reporting, the final standards are closely aligned with DOJ's inmate
reporting provisions. The final standard allows for multiple ways to
privately report sexual abuse, retaliation for reporting sexual abuse,
or staff neglect or violations of responsibilities.
Comment. One organization suggested that any translations of a
detainee's complaints should be provided by a ``neutral'' translation
company at no cost to the detainee.
Response. DHS routinely uses translation services during interviews
and when taking complaints. When staff members or employees do not
speak the same language as the detainee, they may use a third party
translation service that is under contract with the agency. The
translation service fees are not charged to the detainee and although
the fees are paid by DHS, the translation companies are not otherwise
affiliated with the agency.
Comment. An organization stated that the standard should include a
provision allowing staff to report sexual abuse anonymously.
Response. Under the final standard staff are required to report
incidents of sexual abuse, and may fulfill that obligation by reporting
outside the chain of command. Separate and apart from this obligation,
staff may call the JIC and OIG with anonymous reports of sexual abuse
and assault. Therefore, DHS declines to add a specific regulatory
provision allowing staff to report abuse anonymously.
Comment. The former Commissioners suggested including an explicit
provision in this standard and in Sec. 115.52 prohibiting any report
by a detainee regarding sexual abuse from being referred to a staff
member who is the subject of the complaint.
Response. DHS recognizes the importance of ensuring that alleged
abusers are not involved in any way with a detainee who lodges a
complaint, and agrees that referral to the subject of a complaint would
be inappropriate. Accordingly, multiple provisions of this regulation
separate the detainee victim from the subject of a complaint, including
a requirement that the agency review and approve facility policies and
procedures for staff reporting. Moreover, the regulation requires such
procedures to include a method by which staff can report outside of the
chain of command. More comprehensive, appropriately tailored rules will
be contained therein.
Similarly, Sec. 115.66 requires that volunteers, staff, and
contractors who are suspected of perpetrating sexual abuse be removed
from duties requiring detainee contact, and Sec. 115.166 requires
agency management to take appropriate action when an allegation has
been made. Further, Sec. Sec. 115.64 and 115.164 require covered
entities, upon learning of an allegation that a detainee was sexually
abused, to separate the alleged victim and abuser. Current policy would
prevent an individual who is the subject of an allegation from being
responsible for investigating the allegation. Taken together, these
factors sufficiently address the concern that underlines the comment,
and DHS declines to amend the regulatory text to further address the
issue.
[[Page 13135]]
Comment. A human rights advocacy group suggested that the standard
specify that detainees are able to make free, preprogrammed calls to
the OIG and CRCL, and that facilities must provide access to
telephones, along with contact information to reach consular officials.
Response. Under current agency practice, all calls made by a
detainee to the OIG and the JIC are preprogrammed and free of charge.
CRCL is unable to handle a large volume of calls from detainees and is
not staffed outside of business hours, but detainees may send written
complaints to CRCL, including by email. The standard already requires
that facilities provide instructions on how detainees may contact their
consular official.
Comment. An advocacy group and former Commissioners of NPREC
recommended including a provision that DHS will not remove from the
country or transfer to another facility detainees who report or make a
grievance regarding sexual abuse before the investigation of the abuse
is complete, except at the detainee's request.
Response. DHS routinely considers whether detainees are suitable
candidates for alternatives to detention or prosecutorial discretion.
Certainly, DHS through ICE evaluates the detention status and removal
proceedings for any sexual abuse victim to determine whether the
detainee should be placed on an order of supervision, released on bond,
or whether he or she is eligible for a form of prosecutorial discretion
such as deferred action or parole. ICE's OPR has the authority to
approve deferred action for victimized detainees on a case-by-case
basis where appropriate. As mandated in Sec. Sec. 115.22(h) and
115.122(e), all alleged detainee victims of sexual abuse that is
criminal in nature will be provided U nonimmigrant status information.
OPR and HSI have the delegated authority to certify USCIS Form I-918,
Supplement B for victims of qualifying criminal activity that ICE is
investigating where the victim seeks to petition for U nonimmigrant
status. Because these are routine agency practices and subject to
agency discretion, DHS has declined to make changes in the final rule
to specifically address the various methods that could be used to
release a detainee victim from detention. The agency, through ICE, can
and will use these methods for detainees with substantiated sexual
abuse and assault claims. DHS does not believe that a uniform stay of
removal for all aliens who lodge complaints is warranted.
With regard to transfers, ICE policy 11022.11, entitled Detainee
Transfers, governs the transfer of all aliens in ICE custody. Pursuant
to the policy, transfers are discouraged unless a FOD or his or her
designee deems the transfer necessary for the following reasons: (a) To
provide appropriate medical or mental health care; (b) to fulfill an
approved transfer request by the detainee; (c) for the safety and
security of the detainee, other detainees, detention personnel, or any
ICE employee; (d) at ICE's discretion, for the convenience of the
agency when the venue of DOJ Executive Office for Immigration Review
proceedings is different than the venue in which the alien is detained;
(e) to transfer to a more appropriate facility based on the detainee's
individual circumstances and risk factors; (f) upon termination of
facility use; or (g) to relieve or prevent facility overcrowding. ICE's
transfer policy is designed to limit transfers for all aliens and
provides adequate protection for aliens who have sexual abuse
complaints or grievances.
Comment. One group suggested that the standard provide for young
survivors of sexual abuse to have the option of release on their own
recognizance and to remain lawfully in the United States during the
investigation. Another organization and a collective comment of
advocacy groups stated that the standard should provide for an
assessment of any alleged victim who has reported abuse to determine if
he or she would be safer under alternatives to detention.
Response. DHS routinely considers whether detainees are suitable
candidates for alternatives to detention. Certainly, DHS through ICE
evaluates the detention status of any sexual abuse victim to determine
whether the detainee should be placed on an order of supervision,
released on bond, or granted parole or deferred action. Because these
are routine agency practices and subject to agency discretion, DHS has
declined to make changes in the final rule to specifically address the
various methods that could be used to release a detainee victim from
detention.
Comment. Some commenters expressed concern in regard to both this
reporting standard and other of the proposed standards that detainees
may fear speaking up due to retaliation or are unlikely to report
incidences of sexual abuse to officers.
Response. DHS acknowledges that some detainees may fear reporting
sexual abuse. As such, the final standard includes Sec. Sec. 115.67
and 115.167 which protect detainees from retaliation. Also, the
standard as well as current practices provide multiple ways a detainees
can report sexual abuse that do not involve confronting an officer or
staff member.
Comment. One collective comment from advocacy groups suggested that
DHS make explicit in paragraph (a) that the policies and procedures to
be developed by the agency to ensure multiple ways of private detainee
reporting are to be available while in custody and after release or
removal.
Response. The agency recognizes the benefit to detainees of
reporting incidents of sexual abuse or assault to a private entity.
Detainees in immigration facilities already have access to phone
numbers for many private organizations that provide assistance in
response to a wide range of complaints or inquiries.
Once a detainee has been removed or is otherwise no longer in
agency custody, the agency is not obligated to provide reporting
procedures. However, it is available to former detainees to contact the
OIG, the JIC, CRCL or a private entity to report any incidents even
after they are no longer in agency custody.
Grievances (Sec. 115.52)
Summary of Proposed Rule
The standard contained in the proposed rule prohibited the facility
from imposing any deadline on the submission of a grievance regarding
sexual abuse incidents. The standard mandated that facilities allow
detainees to file a formal grievance at any time before, during, after,
or in lieu of lodging an informal complaint related to sexual abuse.
The standard further required the facility to issue a decision on the
grievance within five days of receipt.
Changes in Final Rule
DHS is modifying paragraph (e) by adding a requirement that the
facility respond to an appeal of the grievance decision within 30 days
and by requiring facilities to send all grievances related to sexual
abuse to the appropriate ICE Field Office Director at the end of the
grievance process.
Comments and Responses
Comment. Some commenters suggested that DHS provide additional
processes and procedures for emergency grievances. One advocacy group
suggested that proposed paragraph (c)'s requirement for protocol on
time-sensitive, immediate-threat grievances is too open-ended, as it
should set out criteria or guidance as to what facilities'
[[Page 13136]]
procedures should accomplish and require agency approval of the
procedures. Another organization stated the filing process itself for
an emergency at-risk grievance should be explicitly included in the
standard, for when a detainee alleges he or she is subject to a
substantial risk or imminent sexual abuse.
Response. The final standard is meant to enhance existing agency
policies and detention standards that seek to prevent, detect, and
respond to sexual abuse incidents by establishing general regulatory
requirements for immigration detention facilities. ICE's detention
standards provide detailed grievance procedures, including requirements
for individual facility emergency grievance processes. Common elements
of these procedures have been included in the regulatory language.
However, the agency believes that its longstanding grievance procedures
are comprehensive and adequately address the public's concerns.
Furthermore, each facility's grievance procedures are inspected to
ensure that they are being properly executed.
Comment. An advocacy group suggested that proposed paragraph (e)'s
grievance-response timeframe should also include a provision adding a
30-day maximum time limit for the agency's response to an appeal of an
agency's decision on a grievance.
Response. DHS accepts the suggested revision to the grievance
appeal process described in paragraph (e) by including a requirement to
respond to an appeal of the grievance decision within 30 days.
Comment. Regarding the substance of the grievance itself, a group
suggested that the standard should require that no sexual abuse-related
grievance should be denied based upon any detainee failure to properly
fill out and submit a formal grievance; the substance of the grievance
should be sufficient to trigger the facility's response on the merits.
Response. Any allegation of sexual assault is thoroughly
investigated by the agency or by local law enforcement, if appropriate.
The fact that a grievance form was not properly filled out or submitted
would never be grounds to not investigate a detainee's abuse claim.
Comment. A commenter expressed concern that the standard should
require facilities to provide DHS with a copy of each grievance and
disposition so DHS can effectively monitor the facilities.
Response. DHS has revised the regulatory text to require facilities
to send all grievances related to sexual abuse and the facility's
decisions with respect to such grievances to the appropriate ICE Field
Office Director at the end of the grievance process. In addition,
facilities are required under Sec. Sec. 115.89 and 115.189 to keep all
grievances on file. Each facility is inspected under Sec. Sec. 115.88
and 115.188 to ensure that it is following the grievance process and
handling each grievance properly.
Detainee Access to Outside Confidential Support Services (Sec. 115.53)
Summary of Proposed Rule
The standard contained in the proposed rule required agencies to
provide detainees with access to outside confidential support services
and that the information about these services will be provided to them.
The standard further required that detainees and these confidential
support services will have reasonable communication in as private a
manner as possible.
Changes in Final Rule
DHS is adding paragraph (d) requiring facilities to inform
detainees, prior to giving them access to outside resources, of the
extent to which such communications will be monitored and to which
reports of abuse will be forwarded to authorities in accordance with
mandatory reporting laws.
Comments and Responses
Comment. One commenter suggested that when an assault occurs,
facilities should make available to detainees updated lists of
resources and referrals to professionals.
Response. DHS agrees that detainees should have access to resources
and referrals to professionals when appropriate. The final standards
adequately address these needs in this section and also in Sec. Sec.
115.21, 115.81-83. This section provides that each facility use
available community resources and services to provide support to
detainees. In addition, Sec. 115.53 requires facilities to maintain or
attempt to enter into agreements with community service providers or
national organizations that provide legal advocacy and emotional
support. Section 115.33 also requires facilities to provide detainees
with information about local organizations that can assist detainees. A
detainee does not have to wait for his or her allegation to be
substantiated before being able to use these services; the facility
must make the services available much earlier on.
Section 115.21, which covers forensic medical examinations,
requires facilities to make use of outside victim services following
sexual abuse incidents. These services include rape crisis center
information, a qualified staff member from a community-based
organization, or a qualified agency staff member. Section 115.21 also
provides that a forensic medical examination shall be arranged when
appropriate for medical or evidentiary reasons and at no cost to the
detainee.
Sections 115.81-115.83 require referrals for medical follow-up,
unimpeded access to emergency medical treatment and crisis intervention
services, medical and mental health evaluations, and follow-up
services.
Comment. Commenters expressed concerns over confidentiality
provisions in this standard. Regarding the outside support services, an
advocacy group stated that all communications between detainees--
particularly LGBTI detainees--and such organizations should remain
confidential, with a detainee being notified when confidentiality of a
communication is not guaranteed. Two collections of advocacy groups
expressed similar concern, calling for replacing ``in as confidential a
manner as possible'' with complete confidentiality, and adding
requirements for an exception that--when such confidentiality is not
possible--the facility document the reason(s) therefor and inform the
detainee of the extent of monitoring and the extent of any forwarding
of reports of abuse to authorities under mandatory reporting laws. Some
members of Congress also stated that full confidentiality is necessary
in communications with service providers like rape crisis counselors.
Another advocacy group as well as a collection of youth, immigration
and disability groups and a human rights group focused, respectively,
on the specific needs for confidentiality in regard to medical and
mental health care records and also trauma and support services.
Response. DHS agrees that it is important for all victims,
regardless of their sexual orientation, to have access to confidential
services. The standard requires agencies to ``enable reasonable
communication between detainees and these organizations and agencies,
in as confidential a manner as possible.'' Unfortunately, DHS cannot
guarantee complete confidentiality in all situations, because it may be
difficult for agencies to ensure complete confidentiality with all
forms of communication due to factors such as the physical layout of
the facility or the use of automatic phone monitoring systems, which
may be difficult to suspend for support calls without requiring the
detainee to make a specific request. As a result of confidentiality
[[Page 13137]]
concerns, DHS added paragraph (d), which will require facilities to
inform detainees prior to giving them access to outside resources, of
the extent to which such communications will be monitored and the
extent to which reports of abuse will be forwarded to authorities in
accordance with mandatory reporting laws.
As ICE's Detainee Handbook explains, communications between
detainees and investigators are private and detainees' medical and
administrative files are locked in secure areas to ensure
confidentiality.
DHS encourages facilities to establish multiple procedures for
detainee victims of sexual abuse to contact external advocacy and
support groups. While not ensuring ideal privacy, phones may provide
the best opportunity for detainees to ask for assistance in a timely
manner. Privacy concerns may be addressed through other means of
contacting outside organizations, such as allowing confidential
correspondence, opportunities for phone contact in more private
settings, or the ability of the detainee to make a request to contact
an outside advocate through a chaplain, clinician, or other service
provider.
Third-Party Reporting (Sec. Sec. 115.54, 115.154)
Summary of Proposed Rule
Standards 115.54 and 115.154 in the proposed rule required
facilities to establish a method to receive third-party reports of
sexual abuse and publicly distribute information on how to report such
abuse on behalf of a detainee.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
DHS did not receive any public comments on this provision during
the public comment period.
Staff Reporting Duties (Sec. Sec. 115.61, 115.161)
Summary of Proposed Rule
The standards in the proposed rule required that staff immediately
report: (1) Any knowledge, suspicion, or information regarding an
incident of sexual abuse that occurred in a facility; (2) retaliation
against detainees or staff who reported such an incident; and (3) any
staff neglect or violation of responsibilities that may have
contributed to an incident or retaliation. The proposed standards
prohibited the agency from revealing any information related to a
sexual abuse report to anyone other than to the extent necessary to
make medical treatment, investigation, law enforcement, and other
security and management decisions.
Changes in Final Rule
DHS now explicitly requires covered staff to report retaliation
against detainees or staff who participated in an investigation of an
incident of sexual abuse that occurred in a facility. Previously, the
reporting requirement in these standards did not explicitly cover such
retaliation (although it did cover retaliation against detainees or
staff who reported an incident of sexual abuse). Otherwise, DHS is
adopting the regulation as proposed.
Comments and Responses
Comment. A commenter suggested expanding paragraph (a) to require
staff to report not only ``any knowledge, suspicion, or information
regarding . . . retaliation against detainees or staff who reported''
an incident of sexual abuse, but also any knowledge, suspicion, or
information regarding retaliation against detainees or staff that
provided information pertaining to such an incident.
Response. DHS agrees that anti-retaliation measures are of
paramount importance in this context, and has therefore included a
range of measures, including Sec. Sec. 115.67 and 115.167, intended to
deter retaliatory conduct. Under these provisions, agency employees
(and others) may not retaliate against any person, including a
detainee, for, inter alia, reporting, complaining about, or
participating in an investigation into an allegation of sexual abuse.
With respect to staff reporting specifically and in response to the
comment, DHS revised Sec. Sec. 115.61(a) and 115.161(a) to require all
staff to immediately report retaliation against detainees or staff who
reported or participated in an investigation about sexual abuse
incidents. Prior to this revision, the reporting requirement did
require reporting about retaliation against detainees or staff who
reported an incident of sexual abuse, but did not explicitly cover
reports of retaliation against individuals who participated in
investigations.
Comment. An advocacy group suggested adding language to paragraph
(a) that would allow staff to anonymously report sexual abuse and
harassment of detainees.
Response. DHS agrees that it is essential for staff to have
anonymous methods of reporting sexual abuse and assault incidents.
Under 2006 agency policy and the SAAPID, agency staff is required to
ensure immediate reporting of any incident of sexual abuse or assault
by the facility to the local ICE personnel, who must then notify the
ICE JIC telephonically within two hours and in writing within 24 hours.
Reporting directly to the JIC allows staff to report incidents
anonymously without having to report up through their chain of command.
DHS believes that the allowance of anonymous reporting is adequately
addressed between these policies and paragraph (a) of this standard
which allows for ``methods by which staff can report outside of the
chain of command.'' Because an express regulatory provision would be
redundant to a number of measures that are currently in place, and
because DHS believes that the anonymous reporting option must be
carefully controlled to ensure that staff also meet their mandatory
reporting duties properly and effectively, DHS does not believe that
the recommended added language is necessary.
Protection Duties (Sec. Sec. 115.62, 115.162)
Summary of Proposed Rule
The standards contained in the proposed rule required that when an
agency employee or facility staff has a reasonable belief that a
detainee is subject to a substantial risk of imminent sexual abuse, he
or she must take immediate action to protect the detainee.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
DHS did not receive any public comments on this provision during
the public comment period.
Reporting to Other Confinement Facilities (Sec. Sec. 115.63, 115.163)
Summary of Proposed Rule
The standards contained in the proposed rule mandated that upon
receiving an allegation that a detainee was sexually abused while
confined at another facility, the facility receiving the allegation
must (1) notify the appropriate office of the facility where the sexual
abuse is alleged to have occurred as soon as possible, but no later
than 72 hours after receiving the allegation; and (2) document the
efforts taken under this section. The agency office that receives such
notification, to the extent covered by the regulation, must ensure the
allegation is referred for investigation.
[[Page 13138]]
Changes in Final Rule
DHS is modifying the notification language in paragraph (a) for
both Sec. 116.63 and Sec. 115.163 to require agencies and facilities
that receive allegations of abuse at a different facility to notify the
appropriate office of the agency or the administrator of the facility
where the alleged abuse occurred.
Comments and Responses
Comment. The former Commissioners of NPREC recommended that DHS
define who specifically in the agency or facility is required to notify
another facility, upon receiving an allegation of detainee sexual abuse
in another facility. The group suggested following the DOJ PREA final
rule by using the term ``facility head.''
Response. DHS understands the concern of confusion as to who is
responsible for reporting allegations to other confinement facilities
and has subsequently revised Sec. 115.63. With regard to Subpart A,
the SAAPID requires that when an alleged assault is reported at another
facility, the facility receiving the allegation report it to the
administrator of the facility where the alleged sexual abuse or assault
occurred. DHS revised Sec. 115.63, which complements the SAAPID, and
also revised Sec. 115.163 to now require notification to ``the
appropriate office of the agency or the administrator of the facility
where the alleged abuse occurred.'' The provision allows notification
to the appropriate office of the agency because in some cases the
allegations may concern ICE or CBP holding facilities for which
notification to the JIC would be more appropriate, for any of a range
of reasons. Under the DHS standard as well as the DOJ standard, if a
covered facility learns of sexual abuse in another facility, the
covered facility will notify the other facility, and document such
notification in writing. DHS believes that as currently written the
provision satisfies the concern for facility to facility reporting and
does not believe that adding ``facility head'' will strengthen the
provision as currently written.
For Subpart B facilities, where detention is relatively brief, and
in order to minimize delay, the agency official responsible for
notifying another confinement facility of an allegation of sexual abuse
will depend on which office receives the allegation. DHS believes that
specifying ``facility head'' within this section will limit which
office can either notify or be notified and may therefore postpone the
communication between facilities which would not be in the best
interest of the victim. For this reason, DHS believes that the
provision will be most effective as currently written and declines to
adopt the ``facility head'' language.
Responder Duties (Sec. Sec. 115.64, 115.164)
Summary of Proposed Rule
The standards contained in the proposed rule required that the
first employee or staff member that responds to the sexual abuse report
separate the alleged victim and abuser and preserve and protect the
crime scene until evidence can be collected.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
DHS did not receive any public comments on this provision during
the public comment period.
Coordinated Response (Sec. Sec. 115.65, 115.165)
Summary of Proposed Rule
Sections 115.65 and 115.165 in the proposed rule required a
multidisciplinary team approach in the response to an incident of
sexual abuse.
Changes in Final Rule
DHS revised each standard to clarify that notification requirements
related to the transfer of detainee victims of sexual abuse will differ
depending on whether or not the receiving facility is covered by these
standards. As in the proposed rule, when the receiving facility is not
covered by these standards, the sending facility must inform the
receiving facility of the incident and the victim's potential need for
medical or social services, unless the victim requests otherwise.
Otherwise, DHS is adopting the regulation as proposed.
Comments and Responses
DHS did not receive any public comments on this provision during
the public comment period.
Protection of Detainees From Contact With Alleged Abusers (Sec. Sec.
115.66, 115.166)
Summary of Proposed Rule
The standard in the proposed rule with respect to immigration
detention facilities required the agency or facility to remove from all
duties requiring detainee contact, pending the outcome of an
investigation, staff, contractors, and volunteers suspected of
perpetrating sexual abuse. The standard with respect to holding
facilities required agency management to consider such removal for each
allegation of sexual abuse, and to do so if the seriousness and
plausibility of the allegation make removal appropriate.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. Some commenters suggested that as with immigration
detention facilities, holding facilities that have staff, contractors,
or volunteers that are suspected of sexual abuse should remove such
persons from all duties requiring detainee contact pending the outcome
of an investigation. They believe that requiring removal is important
for the protection of the victim as well as others in the facilities.
An advocacy group commented that leaving Sec. 115.166(a) unrevised
will leave open the possibility for a perpetrator to continue to have
access to the detainees during the reporting and investigating
processes.
Response. DHS believes that the language used in Sec. 115.166 is
the appropriate approach to protect detainees while an investigation is
pending in a holding facility. DHS recognizes the desire for
consistency between Subpart A and Subpart B of the regulation. However,
DHS believes that Sec. 115.166, as proposed and in final form,
appropriately addresses the unique needs associated with holding
facilities, including limited staffing resources. Furthermore, Sec.
115.166 requires supervisors to affirmatively consider removing staff
pending the completion of an investigation, and to remove them if the
seriousness and plausibility of the allegation make such removal
appropriate (as opposed to automatically placing employees on
administrative duties even where, for example, the allegations are not
plausible because the subject of the allegation was not on duty at the
time of the alleged incident).
With respect to ICE holding facilities, the SAAPID reinforces the
regulation by requiring the removal of an ICE employee, facility
employee, contractor, or volunteer suspected of perpetrating sexual
abuse or assault to be removed from all duties requiring detainee
contact pending the outcome of an investigation. The term ``suspected
of'' is intended to allow the agency or facility a modest exercise of
discretion with respect to whether any suspicion exists. By requiring
that the individual be ``suspected of'' perpetrating sexual abuse and
assault, DHS intends to
[[Page 13139]]
ensure that staff, contractors, and volunteers are not removed for
plainly implausible or plainly erroneous allegations (e.g., a detainee
may claim that a specific staff member assault him when, in fact, that
staff member was not at the facility during the alleged incident).
DHS believes that by assigning staff, contractors, and volunteers
to duties away from detainees when necessary, DHS will provide
sufficient protection to detainees.
Comment. Some commenters suggested adding the same language that is
currently in DOJ's PREA final rule concerning collective bargaining
agreements. The DOJ standard prevents an agency or governmental entity
responsible for collective bargaining on the agency's behalf from
entering into or renewing any collective bargaining agreement or other
agreement that limits the agency's ability to remove staff suspected of
perpetuating sexual abuse from contact with any inmates pending the
outcome of an investigation. The commenters believe that this
adjustment will prevent DHS from entering into collective bargaining
agreements that frustrate the objective of the standard.
Response. DHS respectfully declines to add the language concerning
collective bargaining agreements. DHS believes adding the language
suggested by the commenters is unnecessary. The DHS rule requires
affirmative steps in response to an allegation of sexual abuse. Removal
from detainee interaction during the investigation process is required
for staff, contractors, and volunteers suspected of perpetrating sexual
abuse in immigration detention facilities. In response to an allegation
of sexual abuse in a holding facility, agency management shall remove
any staff, contractor, or volunteer from duties requiring detainee
contact pending the outcome of an investigation, where the seriousness
and plausibility of the allegation make removal appropriate. This
provides a greater level of protection and requires more significant
affirmative action than a limitation on collective bargaining
agreements.
Comment. Some commenters suggested changing Sec. 115.66 to apply
not to staff, contractors, or volunteers that are ``suspected of
perpetrating'' sexual abuse, but to staff, contractors, or volunteers
that are ``alleged to have perpetrated'' sexual abuse.
Response. PBNDS 2011 uses the term, ``suspected of perpetrating.''
The use of conflicting terms could pose bargaining issues. ``Suspected
of perpetrating'' allows for a modest exercise of discretion to
determine whether an allegation has any reasonable basis in fact. DHS
believes that the use of the term ``suspected of perpetrating'' as
opposed to ``alleged to have perpetrated'' will adequately ensure the
safety and security of detainees.
Agency Protection Against Retaliation (Sec. Sec. 115.67, 115.167)
Summary of Proposed Rule
The standards contained in the proposed rule required that agency
and facility staff and employees not retaliate against any person,
including a detainee, who reports, complains about, or participates in
an investigation into an allegation of sexual abuse, or for
participating in sexual activity as a result of force, coercion,
threats, or fear of force.
Changes in Final Rule
DHS added a new paragraph (b) to Subpart A of the final rule which
requires the agency or facility to ``employ multiple protection
measures, such as housing changes, removal of alleged staff or detainee
abusers from contact with victims, and emotional support services for
detainees or staff that fear retaliation for reporting sexual abuse or
for cooperating with investigations.''
Comments and Responses
Comment. Many commenters suggested adding language that will
protect from retaliatory deportation any detainees who report, complain
about, or participate in an investigation into an allegation of sexual
abuse, or for participating in sexual activity as a result of force.
Response. DHS agrees that removal should never be used solely to
retaliate against a detainee who reports sexual abuse. To address this
concern, Sec. Sec. 115.67 and 115.167 explicitly prohibit any
retaliatory behavior, which is a broader form of protection and is
therefore adequate to address this risk.
Comment. Multiple commenters suggested that the standards in
Sec. Sec. 115.67 and 115.167 should be replaced with the corresponding
DOJ PREA standards. Some members of Congress commented generally that
the retaliation standard should be revisited to be in line with DOJ's
standard. One commenter notes that the DOJ PREA standards detail
specific protection measures that the agency must take to ensure
retaliation does not occur.
Response. In response to comments about aligning DHS's Sec. 115.67
standards with DOJ's, DHS again reviewed the DOJ final rule and added a
new paragraph to Subpart A of the final rule, which requires the agency
to use multiple measures to protect detainees who fear reporting sexual
abuse or fear cooperating with investigations.
DHS did not incorporate the language used in DOJ's paragraph (a)
because DHS's language provides greater protection by prohibiting
retaliation immediately, instead of relying on a policy to be drafted
in the future. Given ICE's more direct oversight over its immigration
detention facilities, the agency is in a better position to prohibit
and take action against acts of retaliation by detainees or staff.
DOJ's paragraph (d) was not incorporated for the same reason, and
because status checks are redundant--for 90 days following a report of
sexual abuse, the agency or facility must monitor to see if there are
facts that may suggest possible retaliation by detainees or staff, and
shall act promptly to remedy any such retaliation. DHS believes that
its final rule is tailored effectively to immigration detention and
therefore, does not need to mirror the DOJ rule to provide adequate
protection to detainees.
DHS chose not to include proposed language about employing multiple
protection measures in Subpart B. Given the relatively short time of
detention in holding facilities, housing assignments are not
applicable. Section 115.164, Responder Duties, includes a requirement
to separate the alleged victim and abuser. With respect to the comment
regarding providing emotional support services to staff, note that CBP
offers a full range of assistance to agency employees through the
WorkLife4You Program and the Employee Assistance Program.
Comment. One commenter suggested the addition of a paragraph in
Sec. 115.67 that would require the facility's PSA Compliance Manager,
or assignee, to make sure the mandates of Sec. 115.22 are fulfilled.
Response. Sections 115.11(d) and 115.111(d) already serve this
function by ensuring the PSA Compliance Manager has ``sufficient time
and authority to oversee facility efforts to comply with facility
sexual abuse prevention and intervention policies and procedures.''
Comment. One commenter suggested that this standard explicitly
address transferring victims as a form of retaliation or as a means of
protection from alleged perpetrators.
Response. DHS recognizes the need to eliminate unnecessary detainee
transfers. Eliminating unwarranted transfers of sexual assault victims
for retaliatory reasons are a high priority for the agency. ICE Policy
11022.11,
[[Page 13140]]
entitled Detainee Transfers, was developed and implemented to reduce
detainee transfers and specifically notes that transfers should not be
conducted unless certain articulated factors are considered by the FOD
or his or her designee. DHS believes that the protections afforded by
ICE's transfer policy apply to all detainees, not just those who have
made sexual assault allegations or those participating in
investigations. Section 115.67 of these standards also includes an
explicit prohibition against any form of agency retaliation against
victims of sexual abuse or assault, including retaliatory housing
changes.
Post-Allegation Protective Custody (Sec. 115.68)
Summary of Proposed Rule
The standard contained in the proposed rule required the facility
to place detainee victims of sexual abuse in a supportive environment
that is the least restrictive housing option possible. The standard
provided that detainee victims shall not be returned to the general
population until proper re-assessment is completed. The standard
further required that detainee victims are not to be held for longer
than five days in any type of administrative segregation, except in
unusual circumstances or at the request of the detainee.
Changes in Final Rule
The final rule adds a requirement for facilities to notify the
appropriate ICE FOD whenever a detainee victim has been held in
administrative segregation for 72 hours.
Upon receipt of such notification, the final rule also requires
that the ICE FOD conduct a review of the placement to consider whether
the placement is only as a last resort and when no other viable housing
options exist, and whether--in the case of a detainee victim held in
administrative segregation for longer than five days--whether the
placement is justified by extraordinary circumstances or is at the
detainee's request.
Comments and Responses
Comment. One advocacy group suggested adding a statement in
paragraph (b) requiring the facility to report to the agency within 24
hours the placement of suspected sexual abuse victims in protective
custody.
Response. As noted above, the final rule adds a requirement for
facilities to notify the appropriate ICE FOD whenever a detainee victim
has been held in administrative segregation for 72 hours. ICE notes
that it has also chosen to proceed by policy in this area, as noted
above in the discussion relating to Sec. 115.43.
Comment. Some commenters suggested further defining the term
``unusual circumstances'' in paragraph (b) to include the actual
circumstances in which prolonged protective custody might be warranted.
Commenters wrote that vulnerable detainees may request protective
custody for a prolonged period of time because they are unaware of
their rights.
An advocacy group suggested that the agency supervisor be notified
when a detainee is placed in administrative custody for more than five
days. Once the agency supervisor is notified, this person should be
tasked with conducting a review of the segregation as well as looking
for other placements for the detainee as long as the detainee is not
subject to mandatory detention.
Response. The final standard includes new requirements for agency
notification whenever an individual has been held in administrative
segregation for 72 hours, and agency review of such cases to determine
whether the placement is only as a last resort and when no other viable
housing options exist. Where a detainee victim has been held in
administrative segregation for longer than five days, the agency must
also review whether the placement is justified by extraordinary
circumstances, or is at the detainee's own request. DHS does not
believe that further definition of the term ``unusual circumstances''
is necessary based on any concern that detainees' lack of awareness of
their rights will lead them to request prolonged protective custody. In
ICE's experience, detainees are not likely to affirmatively request
continued protective custody unless they desire to remain segregated.
This final rule includes strong provisions on detainee education in
this context.
Comment. One commenter stated that protective custody should only
be used as a last resort.
Response. Section 115.68 has been revised to require the FOD to
determine whether the placement in segregation is used only as a last
resort and when no other viable housing options exist.
Comment. One commenter recommended that paragraph (c) have a
defined timeline for reassessments.
Response. Paragraph (b) of this standard imposes a 5-day limitation
on the continuous segregation of detainee victims in protective
custody, inclusive of any time necessary to complete a re-assessment.
The final rule also requires facilities to notify the ICE FOD whenever
a detainee victim has been held in administrative segregation for 72
hours.
Comment. Multiple commenters suggested that, for alleged victims
who have been placed in post-allegation protective custody, DHS should
incorporate a strong presumption of full release from custody,
potentially under programs that provide alternatives to detention.
Response. Under the regulation, the facility shall place detainee
victims of sexual abuse in a supportive environment that is the least
restrictive housing option possible. A detainee who is in post-
allegation protective custody shall not be returned to the general
population until completion of a proper re-assessment, taking into
consideration any increased vulnerability of the detainee as a result
of the sexual abuse. In light of the strong protections required under
this standard, and because alternatives to detention programs continue
to be available under the regulation, DHS declines to incorporate a
presumption in favor of release. In addition to the detainee's personal
vulnerability, DHS will continue to make release decisions based upon
other generally applicable factors, including, inter alia, individual
security considerations, applicable statutory detention mandates, and
available custodial options in each case.
Criminal and Administrative Investigations (Sec. Sec. 115.71, 115.171)
Summary of Proposed Rule
The standards contained in the proposed rule required
investigations by the agency or the facility with the responsibility
for investigating the allegation(s) of sexual abuse be prompt,
thorough, objective, and conducted by specially trained, qualified
investigators. The proposed standard also required agencies and
facilities to conduct an administrative investigation of (1) any
substantiated allegation and (2) any unsubstantiated allegation that,
upon review, the agency deems appropriate for further administrative
investigation.
Changes in Final Rule
DHS made minor revisions to the Subpart B provision, to clarify
that responsibility for conducting criminal and administrative
investigations or referring allegations to the appropriate
investigative authorities ultimately lies with the agency, and not the
facility. Otherwise, DHS is adopting the regulation as proposed.
Comments and Responses
Comment. Commenters suggested that all allegations of sexual abuse
be
[[Page 13141]]
investigated, including third party and anonymous reports. There was a
recommendation that DHS cross-reference this standard with Sec. 115.34
with regard to the requisite qualifications of the investigator.
Response. Section 115.22 requires that all allegations of sexual
abuse be investigated. The purpose of Sec. 115.71(a) is to clarify
investigative responsibility (e.g., the division of responsibility
between the agency/facility/state/local law enforcement) and to require
that investigators be properly trained and qualified. Allegations may
be made directly by a detainee or by a third party such as an attorney,
a family member, another detainee, a staff member, or an anonymous
party. The source of the allegation does not affect the requirement
that all allegations of sexual abuse be investigated. DHS clarifies
here that specialized training for investigators is addressed in Sec.
115.34.
Comment. There were several advocacy groups that suggested that
prosecutorial discretion be exercised with regard to victims and
witnesses of sexual abuse and assault, especially young survivors of
sexual abuse and assault. Other commenters suggested that victims be
given the option of release on their own recognizance during the
investigation process with the understanding that they would remain in
the United States lawfully. A similar suggestion was made by another
commenter in that victims should be given the ability to be released on
their own recognizance, on bond, or through an alternative detention
program and the ability to stay in the United States while the
investigation is carried out.
Response. Tools for prosecutorial discretion already are available
for victims of sexual abuse and assault.\15\ Deferred action refers to
the decision-making authority of ICE, among other entities, to allocate
resources in the best possible manner to focus on high priority cases,
potentially deferring action on cases with a lower priority. Deferred
action can be used by ICE for any alien victim, including a victim in
detention, due to the victim's status as an important witness in an
ongoing investigation or prosecution.
---------------------------------------------------------------------------
\15\ See generally id.
---------------------------------------------------------------------------
Administrative Stay of Removal (ASR) is another discretionary tool
that permits ICE to temporarily delay the removal of an alien. Any
alien, or law enforcement agency on behalf of an alien, who is the
subject of a final order of removal may request ASR from ICE. An ASR
may be granted after the completion of removal proceedings up to the
moment of physical removal.
Longer term immigration relief may be available, including in the
form of U nonimmigrant status. U nonimmigrant status protects victims
of qualifying crimes (including sexual assault and felonious assault)
who have suffered substantial mental or physical abuse as a result of
the crime and are willing to assist law enforcement authorities in the
investigation or prosecution of the criminal activity. U nonimmigrant
status is self-petitioning and requires a law enforcement
certification.
DHS also routinely considers whether detainees may be suitable
candidates for release on their own recognizance or on bond, or
participation in an alternative to detention program.
Evidentiary Standard for Administrative Investigations (Sec. Sec.
115.72, 115.172)
Summary of Proposed Rule
The standards contained in the proposed rule required that agencies
not impose a standard higher than a preponderance of the evidence in
determining whether allegations of sexual abuse are substantiated.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
DHS did not receive any public comments on this provision during
the public comment period.
Reporting to Detainees (Sec. 115.73)
Summary of Proposed Rule
The standard found in Sec. 115.73 in the proposed rule required
the agency to notify the detainee of the result of the investigation
when the detainee is still in immigration detention, as well as where
otherwise feasible.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. One advocacy group suggested that holding facilities have
a comparable provision with what is currently proposed for immigration
detention facilities. They further suggested that there be an attempt
for DHS to forward the outcome of the investigation to the detainee,
especially when the detainee is still in detention due to their belief
that if there is a lack of incident follow-up there will be a lack of
accountability within the holding facility.
Response. DHS notes that DOJ did not apply its standards regarding
reporting to inmates in the context of lockups, due to the short-term
nature of lockup detention. Similarly, due to the short-term nature of
detention in holding facilities, DHS declines to accept the suggestion
to include a provision on detainee notification of investigative
outcomes for allegations made in holding facilities.
Comment. Some commenters suggested that DHS's proposed standard
should follow the DOJ standard. The DOJ standard describes what type of
notification will be delivered to the inmate concerning their abuser
and the investigation, that such notifications will be documented, and
that notifications will no longer be required when the inmate/victim is
released from custody. A commenter wrote that failure to provide
updates on the agency's response to an allegation of sexual abuse
increases the survivor's anxiety about future abuse and decreases the
survivor's belief that his or her report is being taken seriously.
Response. DHS does not believe it is necessary to adopt the DOJ
standard on notifications. ICE already has the responsibility to inform
detainees of the outcome of any investigation as well as any responsive
action taken. In instances in which the detainee has been moved to
another facility, coordination between facilities is required, in part
to ensure that the investigative outcome can be shared with the
detainee.
With regard to notifying the detainee of actions taken against an
employee, DHS agrees that agency follow-up can be of great importance
to victims, and therefore requires the agency to notify the detainee as
to the result of the investigation and any responsive action taken. In
the immigration detention facility context, DHS has also undertaken to
perform this follow-up whenever feasible, even after the detainee has
been released from custody. As DHS noted in its proposal, DHS believes
that its approach strikes the proper balance between staff members'
privacy and the detainee's right to know the outcome of the
investigation.
In light of the breadth of the DHS provision, DHS notes that in its
experience, state privacy laws and union guidelines may prohibit
sharing certain information about disciplinary actions taken against
employees. Releasing details about an employee's punishment could be in
violation of these privacy laws or policies. DHS cannot require that
specific information about sanctions taken against an
[[Page 13142]]
employee be included in post-investigation follow-up with the detainee.
However, consistent with the regulatory text, where the information is
available to the agency and can be provided in accordance with law, it
will be provided.
Disciplinary Sanctions for Staff (Sec. Sec. 115.76, 115.176)
Summary of Proposed Rule
The standards contained in the proposed rule provided that staff
shall be subject to disciplinary actions up to and including
termination for violating agency sexual abuse policies, and that
termination shall be the presumptive disciplinary sanction for staff
that engaged in or threatened to engage in sexual abuse, as defined in
the regulation. The proposed standards further provided that if a staff
member is terminated for violating such policies, or if a staff member
resigns in lieu of termination, a report must be made to law
enforcement agencies (unless the activity was not criminal) and to any
relevant licensing bodies, to the extent known.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. One commenter suggested that repeat offenders should be
subjected to criminal and civil sanctions, and facilities that have
recurrences of sexual abuse and assault claims (paying specific
attention to juvenile facilities) should be penalized and closely
monitored. Another commenter suggested that if multiple substantiated
cases of sexual abuse have been found in a facility, the facility
should be closed or lose its contract with DHS.
Response. DHS declines to make the requested revision to the
standard. DHS does not have criminal prosecution authority.
Furthermore, the PREA statute itself does not provide for civil
penalties, as suggested by the comment. DHS takes extremely seriously
any allegations or substantiated incidents of sexual abuse. All
facilities will be closely monitored for how they respond to sexual
abuse and assault reports; address safety, medical, and victim services
issues; and coordinate criminal and administrative investigative
efforts. While monitoring is recognized as a crucial element, DHS does
not concur with the suggestion that facilities with recurring
allegations or a higher number of allegations should always be
penalized, as the subsequent investigation may or may not substantiate
an allegation. In addition, detainee population size must be taken into
account when assessing the number of allegations at a given facility
over a period of time. However, when investigations or audits reveal a
policy, procedural, or systemic issue at the facility that has
contributed to sexual abuse or assault, DHS will use its authority to
ensure that corrective actions are promptly taken. DHS emphasizes the
importance of working with the facility to take corrective and
preventive action as the appropriate response.
DHS recognizes that detainees who are minors have special
vulnerabilities. With the exception of juveniles in the Family
Residential Program, and rare cases where minors with criminal records
are held in juvenile detention facilities, most juveniles are in the
care and custody of HHS/ORR, other than the brief period of time that
such unaccompanied juveniles are in ICE custody prior to transfer to
ORR. The monitoring of those facilities is within the purview of HHS
and outside the scope of DHS authority.
Comment. One commenter recommended that any person(s) regardless of
whether they are staff, contractors, or volunteers, and regardless of
whether they work in a DHS facility or contract facility, should be
removed from their position at a detention facility for violating
agency sexual abuse or sexual harassment policies.
Response. DHS agrees that violation of agency sexual abuse and
assault policies merits discipline of employees and contractors, up to
and including removal. However, DHS does not have authority to require
contract facilities to remove employees from employment entirely, but
only to require reassignment to a position where there will not be
contact with detainees. As such, the comment cannot be implemented as
recommended.
Corrective Action for Contractors and Volunteers (Sec. Sec. 115.77,
115.177)
Summary of Proposed Rule
The standards contained in the proposed rule required that any
contractor or volunteer who has engaged in sexual abuse be prohibited
from contact with detainees. The proposed rule further required that
reasonable efforts be made to report to any licensing body, to the
extent known, incidents of substantiated sexual abuse by a contractor
or volunteer.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. One commenter suggested that entities that have repeat
offenses be subject to both criminal and civil sanctions by the agency.
The commenter further suggested that contracted parties be subject to
the same standards as non-contracted parties and should have further
repercussions for their actions other than employee dismissal. The
commenter suggested that a facility found to have repeat incidents
should be subject to harsher penalties and be monitored more closely.
Response. Similar to the response regarding Sec. Sec. 115.76 and
115.176, DHS believes that a change is not warranted or appropriate to
prescribe both criminal and civil sanctions. DHS does not have criminal
prosecution authority and the PREA statute similarly does not provide
for civil penalties. Nevertheless, DHS takes extremely seriously any
allegations or substantiated incidents of sexual abuse.
Contract employees are subject to the same standards as agency
employees and investigations into allegations made against contractors
are no less thorough than those made against agency employees. All
facilities will be closely monitored for how they respond to sexual
abuse and assault reports; address safety, medical, and victim services
issues; and coordinate criminal and administrative investigative
efforts. DHS believes that the best approach to remedy a situation of
recurring sexual abuse and assault claims varies with the
circumstances, and may include disciplining or removing individual
employees involved in the abuse, working with the facility to take
corrective and preventive action, regular facility monitoring, as well
as terminating a contract with a facility in its entirety.
Comment. One commenter recommended that any person(s) violating
agency sexual abuse or sexual harassment policies be removed from their
position at the detention facility regardless of whether the employee
is staff, a contractor, or a volunteer and regardless of whether the
person works in a DHS facility or contract facility.
Response. As discussed above in response to the comment received on
Sec. Sec. 115.76 and 115.176, DHS agrees that violation of agency
sexual abuse and assault policies merits discipline of employees and
contractors, up to and including removal. However, DHS does not have
authority to require contract
[[Page 13143]]
facilities to remove employees from employment entirely, but only to
require reassignment to a position where there will not be contact with
detainees. Accordingly, the comment cannot be implemented as
recommended.
Disciplinary Sanctions for Detainees (Sec. 115.78)
Summary of Proposed Rule
The standard contained in the proposed rule mandated that detainees
be subject to disciplinary sanctions after they have been found to have
engaged in sexual abuse. The standard mandates that discipline be
commensurate with the severity of the committed prohibited act and
pursuant to a formal process that considers the detainee's mental
disabilities or mental illness, if any, when subjecting the detainee to
disciplinary actions.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. One commenter suggested that paragraph (a) specify that
detainees will only face disciplinary action for detainee-on-detainee
sexual abuse because the language in paragraph (e). Paragraph (e)
prohibits the facility from disciplining a detainee for sexual contact
with staff unless there is a finding that the staff member did not
consent to such contact.
Response. DHS declines to make the proposed change to paragraph (a)
because this modification would preclude DHS from disciplining a
detainee found to have engaged in sexual contact with a non-consenting
staff member (pursuant to paragraph (e) of this standard). DHS believes
it is important to retain the authority to discipline a detainee for
engaging in sexual abuse of a staff member.
Comment. One commenter suggested that two provisions from the DOJ
PREA standard be adopted by DHS. One provision in the DOJ rule allows
for the facility to require the abuser to participate in mental health
interventions as a condition of access to programming or other
benefits. The other provision in the DOJ rule allows for an agency to
prohibit, in its discretion, all sexual activity between inmates and if
such activity occurs, the agency may discipline the inmates for this
activity. It further specifies that the agency is not able to deem such
activity to be sexual abuse if it determines that the activity is not
coerced.
Response. DHS declines to accept either of the proposed changes
from this comment. Whereas the purpose of incarceration by DOJ includes
punishment and rehabilitation--thus making therapy and counseling more
widely appropriate--the purpose of immigration detention is to
facilitate appearance at immigration proceedings and removal.
Accordingly, mandating therapy or counseling as a condition of access
to programming or other benefits would not be appropriate in this
context.
DHS notes, however, that Sec. 115.83 of the regulation includes
provisions for voluntary access to ongoing medical and mental health
care for sexual abuse victims and abusers, when deemed appropriate by
mental health practitioners. With regard to the second proposal, DHS
also rejects the recommendation to prohibit a finding of sexual abuse
when there is no element of coercion in sexual activity between
detainees. This clarification is unnecessary as the standards define
detainee-on-detainee sexual abuse to exclude incidents of consensual
sexual conduct between detainees. A provision explicitly authorizing
the agency to prohibit all sexual activity between detainees (including
consensual sexual activity) is similarly unnecessary, as ICE's
detention standards already contain such a prohibition.
Comments. A few advocacy groups suggested specifying in paragraph
(b) that the circumstances of the prohibited act, the detainee's
disciplinary history, and the sanctions imposed for comparable offenses
by other detainees with similar histories should be taken into
consideration when determining the appropriate disciplinary action.
These advocacy groups stated that it is important that the sanctions
against detainees be appropriate and fair for the offense. One
commenter stated that adding this additional language will help prevent
the misuse of the regulations to inappropriately punish LGBTI
detainees.
Response. DHS concurs with the commenters that disciplinary
sanctions must be fair and appropriate. With this very objective in
mind, the regulation provides that each facility holding detainees in
custody shall have a detainee disciplinary system with progressive
levels of reviews, appeals, procedures, and documentation procedure,
which imposes sanctions in an objective manner commensurate with the
severity of the disciplinary infraction. In addition, the regulation
requires the disciplinary process to consider whether a detainee's
mental disabilities or mental illness contributed to his or her
behavior when determining what type of sanction, if any, should be
imposed on the detainee. DHS believes that these protections are
sufficient to ensure that disciplinary sanctions are fair and
appropriate, and therefore DHS does not adopt the changes requested by
the commenters on this point.
Comments. An advocacy group suggested that there be a new Sec.
115.178 in Subpart B applicable to holding facilities. This recommended
standard would include a provision in which when there is probable
cause that a detainee has sexually abused another detainee, the issue
shall be referred from the agency to the proper prosecuting authority.
This provision would further require the agency to inform any third-
party investigating entity of this policy. The advocacy group believed
that it was an oversight that DHS did not include this section in
Subpart B of the proposed rule.
Response. DHS appreciates the comment recommending addition of a
new Sec. 115.178 applicable to holding facilities only. However, DHS
declines to make this change because DHS does not discipline detainees
in holding facilities. Sections 115.21 and 115.121 set forth
requirements to ensure each agency and facility establishes a protocol
for the investigation of allegations of sexual abuse, or the referral
of allegations of sexual abuse to the appropriate investigative
authorities. In general, the appropriate investigative authority is
responsible for making referrals for prosecution. Accordingly, DHS
declines to add a new Sec. 115.178 as suggested.
Medical and Mental Health Assessments; History of Sexual Abuse (Sec.
115.81)
Summary of Proposed Rule
The standard contained in the proposed rule required that pursuant
to the assessment for risk of victimization and abusiveness in Sec.
115.41, facility staff will ensure immediate referral to a qualified
medical or mental health practitioner, as appropriate, for detainees
found to have experienced prior sexual victimization or perpetrated
sexual abuse. For medical referrals, the medical professional was
required to provide a follow-up health evaluation within two working
days from the date of the initial assessment. For mental health
referrals, the mental health professional was required to provide a
follow-up mental health evaluation within 72 hours from the date of the
referral.
Changes in Final Rule
The final rule includes minor changes to paragraph (a). The phrase
``subject to
[[Page 13144]]
the circumstances surrounding the indication'' was removed and the term
``as appropriate'' was moved within the paragraph.
Comments and Responses
Comment. One commenter suggested that there should be specific
provisions within the standard concerning the follow-up mental health
services after the initial evaluation.
Response. Section 115.81 requires that detainees who have
experienced prior sexual victimization or perpetrated sexual abuse
receive referrals for follow-up medical and/or mental health care as
appropriate. In addition, ICE's detention standards provide
comprehensive requirements for the mental health care of all detainees,
including follow-up mental health evaluations as appropriate, and
referral to external specialized providers as necessary. Because ICE
detention standards outline these requirements, adding a provision
specifically targeted to sexual abuse and assault victims is not
necessary.
Comment. A human rights group suggested that paragraph (a) be
written more clearly and specifically about what the circumstances
might be concerning when a staff member would make a referral for a
detainee to seek a follow-up with a medical or mental health
practitioner. The commenter suggested that if DHS does not choose to
clarify this language, DHS should remove the language altogether.
Response. DHS agrees with the comment. Upon consideration, DHS
decided to strike the phrase ``subject to the circumstances surrounding
the indication'' from Sec. 115.81(a).
Comment. Multiple commenters suggested adding the confidentiality
provision that is currently in the DOJ PREA rule. The statement would
ensure that the information relating to a sexual abuse or assault
incident will remain limited to medical and mental health practitioners
and other staff, as necessary. Access to information would be as
necessary to inform treatment plans and security and management
decisions, such as housing, bed placement, work, education, and program
assignments, or as otherwise required by Federal, State, or local law.
Response. Section 115.61 of the standards requires that information
related to a sexual abuse incident be limited to those needed to
protect the safety of the victim, provide medical treatment,
investigate the incident, or make other pertinent security and
management decisions. DHS believes that this provision adequately
addresses the concern expressed by these commenters.
Comment. An advocacy group recommended adding a statement that is
in the DOJ final rule concerning detainee consent. The DOJ rule states
that if a detainee confirms prior sexual victimization, unless the
detainee is less than 18 years of age, the medical and mental health
practitioners must obtain consent from the detainee before reporting
the information.
Response. Again, Sec. 115.61 of the standards requires that
information related to a sexual abuse incident be limited to the
information needed to protect the safety of the victim, provide medical
treatment, investigate the incident, or make other pertinent security
and management decisions. DHS believes that this provision adequately
addresses the concern expressed by these commenters.
Comment. A commenter suggested that a provision be added for women
and girls to be screened, assessed, and provided with treatment during
confinement. The commenter urged for this provision to be mandated for
minors.
Response. The proposed and final rules clearly require that female
detainees and minors be afforded each of the protections outlined by
the standards, including with regard to screening, assessment, and
treatment.
Access to Emergency Medical and Mental Health Services (Sec. Sec.
115.82, 115.182)
Summary of Proposed Rule
The standards in the proposed rule required detainee victims of
sexual abuse to have timely, unimpeded access to emergency medical
treatment at no financial cost to them.
Changes in Final Rule
DHS made a minor change to the final rule by deleting the phrase
``where appropriate under medical or mental health professional
standards'' in Sec. 115.82(a) because the phrase was superfluous. DHS
revised Sec. 115.182 to clarify that for holding facilities as well as
immigration detention facilities, emergency medical treatment and
crisis intervention services will be provided in accordance with
professionally accepted standards of care. The relevant portion of
Sec. 115.182 now mirrors the language in Sec. 115.82. DHS also
deleted the phrases ``in immigration detention facilities'' and ``in
holding facilities'' from Sec. 115.82(a) and Sec. 115.182(a)
respectively, to clarify the scope of the provision.
Comments and Responses
Comment. Multiple commenters suggested that DHS include in Sec.
115.182 specific provisions concerning the types of treatment available
to detainees from emergency medical providers. Under Sec. 115.82,
these treatments include emergency contraception and sexually
transmitted infections prophylaxis, which are particularly time-
sensitive. One of the legal associations further suggested that Sec.
115.182 also contain a provision that would allow for referrals for
follow-up services and continued care by the agency or facility for
detainees to continue treatment upon transfer to another facility or
release from custody.
Response. DHS has considered the comments, and has revised Sec.
115.182 to mirror Sec. 115.82 by adding that detainee victims of
sexual abuse in holding facilities shall have timely access not only to
emergency medical treatment, but also to crisis intervention services,
including emergency contraception and sexually transmitted infections
prophylaxis in accordance with professionally accepted standards of
care. DHS disagrees that detainee victims in holding facilities should
receive referrals for follow-up care because the short-term nature of
the detention makes this impracticable.
Comment. Multiple commenters suggested that this section be
modified to ensure that victimized detainees receive expedited access
to emergency contraception. This access should be provided as quickly
as possible after the incident. The commenters believe this is an
appropriate provision to include because emergency contraception can
prevent pregnancy within five days of intercourse but it is more
effective if it is taken within three days.
Response. The final rule clearly states that victims of sexual
abuse ``shall have timely unimpeded access to emergency medical
treatment and crisis intervention services, including emergency
contraception . . . in accordance with professionally accepted
standards of care.'' The medical professionals who provide care to
detainees are in the best position to administer emergency
contraception. Mandating a specific timeline is not appropriate for
this regulation. DHS believes that the final rule, as written, will
ensure that victims have timely access to emergency contraception.
Comment. Multiple commenters expressed concern about the lack of
correct information and education about transmission of sexually
transmitted diseases and infections. Commenters suggested expanding
relevant provisions in this section to explicitly refer to all forms of
sexual abuse. The language proposed would specifically include victims
of oral, anal, or vaginal sexual
[[Page 13145]]
abuse due to non-consensual oral, anal, and vaginal touching or
penetration. One of these commenters also suggested the removal of the
phrase ``where appropriate under medical or mental health professional
standards,'' written in paragraph (a) of this section.
Response. The final rule contains a thorough definition of sexual
abuse and assault in Sec. 115.6, which includes the specific areas of
abuse as noted by the commenters. DHS declines to add to the definition
of sexual abuse in this provision because it would be redundant and
could potentially conflict with the final rule's definition of sexual
abuse and assault.
After considering the comments to Sec. 115.82(a), DHS decided not
to include the phrase ``where appropriate under medical or mental
health standards'' in the final rule.
Ongoing Medical and Mental Health Care for Sexual Abuse Victims and
Abusers (Sec. 115.83)
Summary of Proposed Rule
The standard in the proposed rule required that victims of sexual
abuse in detention receive access to ongoing medical and mental health
care as necessary without financial cost to the victim. The standard
also requires that this care be consistent with the community level of
care for as long as such care is needed.
Changes in Final Rule
DHS made one minor change to the final rule by replacing the word
``incarcerated'' with ``detained'' in Sec. 115.83(d).
Comments and Responses
Comments. A commenter had concerns about the medical and mental
health care being age appropriate for all detainees, specifically
citing children and adolescents. The commenter suggested adding the
phrase ``age appropriate'' when referring to the medical and mental
health evaluations and treatments discussed in paragraph (a).
Response. DHS recognizes the importance of detainees received ``age
appropriate'' care. However, because medical personnel are expected and
obligated to provide age appropriate care as a duty under the medical
standard of care, adding this language would be superfluous.
Comment. A commenter expressed concern about victims of various
forms of sexual abuse, which includes oral, anal, and vaginal abuse,
receiving access to ongoing medical and mental health care services due
to the misinformation about the different ways sexually transmitted
diseases can be spread. Therefore, the commenter suggests revising the
language to specify the different types of sexual abuse that detainees
may encounter.
Response. Sexual abuse and assault is thoroughly defined in Sec.
115.6. The specific types of abuse set forth in the Definitions section
apply to the final rule in its entirety.
Comment. A commenter suggested guaranteeing the confidentiality of
medical and mental health records because confidential trauma
counseling and medical and mental health care are essential to
recovery.
Response. Maintaining the confidentiality of medical records is a
DHS priority for every detainee. As such, ICE's detention standards
contain explicit requirements for ensuring this confidentiality in all
circumstances. Given the overarching confidentiality concern, DHS does
not believe that revising this section provides greater protection to
detainees than that which is already contained in the proposed and
final rules.
Comment. Commenters suggested the provision be edited to explicitly
state the full range of services and information that should be made
available to victims of sexual abuse. One commenter suggested that DHS
align the final rule's provision on pregnancy-related services with
PBNDS. The commenter noted that under ICE PBNDS provide that when a
detainee decides to terminate her pregnancy, ICE must arrange for
transportation at no cost to the detainee. The commenter also noted
that ICE PBNDS provide that ICE will assume all costs associated with
the detainee's abortion when the pregnancy results from rape or incest
or when continuing the pregnancy will endanger the life of the woman.
The commenter recommended that DHS include those provisions in
paragraph (d) to build upon best practices and have consistent
regulatory and sub-regulatory guidance.
Response. DHS agrees that women who become pregnant after being
sexually abused in detention must receive comprehensive information
about and meaningful access to all lawful pregnancy-related medical
services at no financial cost. The final standard includes language
that requires victims to receive timely and comprehensive information
about all lawful pregnancy-related medical services, and that access to
pregnancy-related medical services must be timely. Also, facilities are
required to provide information about and access to ``all lawful''
pregnancy-related medical services. These requirements include by
implication the additional 2011 PBNDS provisions referenced above.
Comment. Commenters also suggested that DHS clarify that detention
facilities must provide detainees medically accurate and unbiased
information about pregnancy-related services, including abortion. The
commenter stated that this is particularly relevant where the detention
facility uses religiously affiliated institutions to provide care to
inmates. The commenter stated that a woman should always be able to
have accurate information about all of her options; information should
never be provided with the intent to coerce, shame, or judge.
Response. DHS clarifies that the standard requires that covered
detainee victims receive medically accurate and unbiased information,
including information about abortion. This is part of the requirement
that facilities provide ``comprehensive'' information about all lawful
pregnancy-related medical services.
Comment. Commenters also suggested adding language clarifying that
transportation services would be given to victims needing medical
services when the detention facility is unable to provide such services
in a timely manner.
Response. Additional guidance on transportation is unnecessary
given the requirement that victims be provided ``timely access'' to all
lawful pregnancy-related medical services--which, when necessary,
includes transportation.
Comment. Commenters suggested that DHS remove the phrase ``vaginal
penetration'' in paragraph (d) because pregnancy can occur without
penetration.
Response. DHS does not believe that Sec. 115.83(d) should be
revised to include a broader definition of penetration. Paragraph (d)
applies to a limited set of circumstances in which a female victim
becomes pregnant after sexual abuse. Some sort of penetration pursuant
to the definition in Sec. 115.6 must occur in order for the victim to
become pregnant. The phrase ``vaginal penetration'' provides a clear
guideline to the agency or facility about when it is appropriate to
administer pregnancy tests.
Comment. Commenters suggested that DHS remove the phrase ``by a
male abuser'' because detainees could also be abused by females. The
commenters expressed concern that if the language is retained, the
victims of female abusers will not receive critical health care
services.
Response. DHS declines to make the suggested revision, because the
phrase ``by a male abuser'' in Sec. 115.83(d) relates to the
possibility of pregnancy, and in
[[Page 13146]]
no way mitigates a female victim's right to care if the abuser is
female. The remaining provisions in Sec. 115.83 apply to all incidents
of detainee sexual abuse and are not limited by gender.
Comment. A commenter suggested that full confidential rape
counseling or mental health care be provided to a sexual abuse victim.
Another commenter suggested that the language be improved to include
unmonitored telephone calls from detainee victims to non-governmental
organizations or rape crisis organizations as opposed to the OIG or
other offices affiliated with ICE or DHS. This commenter also stated
that detainees do not always have phone access to call the JIC because
some facilities may have the number blocked on their telephone system.
Response. While DHS appreciates the commenters' concern about the
benefits of confidential rape counseling, mental health care, and
unmonitored phone calls to lodge complaints or seek help, DHS believes
that provisions relating to access to outside confidential support
services set forth in Sec. 115.53 are adequate to address these
concerns.
Comment. Multiple commenters suggested that DHS clarify the
regulations to include treatment for sexually transmitted infections,
including HIV-related post-exposure prophylaxis for victims of sexual
abuse. Commenters observed that paragraph (e) calls for access to
testing, but not treatment. Commenters expressed concern that without
treatment, sexually transmitted infections can lead to more serious and
possibly permanent complications. They suggested that the regulation
state explicitly that victims will receive ongoing regular treatment.
Response. DHS recognizes the importance of providing testing for
sexually transmitted infections, and included paragraph (e) in the
proposed rule which requires facilities to offer such tests, as
medically appropriate to victims of sexual abuse while detained. DHS
clarifies that paragraph (a) requires that all detainees who have been
victimized by sexual abuse have access to treatment. Paragraph (b)
requires that the evaluation and treatment include, as appropriate,
follow-up services, treatment plans, and, when necessary, referrals for
continued care following their transfer to or placement in another
facility or release from custody. DHS trusts that medical practitioners
administering such tests will adhere to professionally accepted
standards for pre- and post-test counseling and treatment.
Sexual Abuse Incident Reviews (Sec. Sec. 115.86, 115.186)
Summary of Proposed Rule
The standards in the proposed rule set forth requirements for
sexual abuse incident reviews, including when reviews should take place
and who should participate. The standards also required the facility to
forward all reports and responses to the agency PSA Coordinator. The
proposed rule further required an annual review of all sexual abuse
investigations, in order to assess and improve sexual abuse
intervention, prevention, and response efforts.
Changes in Final Rule
Section 115.86(a) now includes a requirement that facilities must
conclude incident reviews within 30 days of the completion of the
investigation. Section 115.186(a) now includes a requirement that the
agency review shall ordinarily occur within 30 days of the agency
receiving the investigation results from the investigative authority.
The slightly different formulation for Subpart B reflects the fact that
frequently the agency that oversees a holding facility is not the
investigative authority.
Section 115.86(b) now requires facility incident review teams to
(1) consider whether the incident or allegation was motivated by race,
ethnicity, gender identity, or lesbian, gay, bisexual, transgender, or
intersex identification status (or perceived status); and (2) consider
whether the incident or allegation was motivated by gang affiliation or
other group affiliation.
Section 115.86(c) now requires facility incident review teams to
prepare a report of their findings and any recommendations for
improvement and submit such report to the facility administrator, the
FOD or his or her designee, and the agency PSA Coordinator. If no
allegations were made at a facility during the annual reporting period,
a negative report is required.
Comments and Responses
Comment. One comment suggested that DHS track whether the victims
are LGBTIGNC. A commenter suggested that this would be a way to track
whether the regulations are effective.
Response. DHS does not fully concur with the commenter's suggestion
to track LGBTIGNC status in the incident review context. Many detainees
choose to not disclose to staff or others in the detention setting that
they identify as lesbian, gay, bisexual, transgender, or intersex. In
the event that a detainee does not affirmatively disclose this
information in the context of making a report or otherwise, DHS
believes it might be inappropriate to require staff to question the
detainee about his or her sexual orientation and gender identity for
these purposes. DHS believes that this could constitute a breach of
detainees' privacy, especially detainees who prefer to not share this
information openly.
DHS agrees, however, that LGBTIGNC status can contribute to
vulnerability. DHS is therefore revising the Subpart A standard to
require facilities to take into account whether the incident or
allegation was motivated by race, ethnicity, gender identity, or
lesbian, gay, bisexual, transgender, or intersex identification status
(or perceived status); or gang affiliation; or was motivated or
otherwise caused by other group dynamics at the facility. In practice,
this requires the facility to affirmatively consider the possibility
that these factors motivated the incident or allegation, and to record
this information if known. It does not, however, require facilities to
affirmatively inquire as to the victim's sexual orientation and gender
identity. DHS also is adding a requirement to Sec. Sec. 115.87(d)(2)
and 115.187(b)(2) that the agency PSA Coordinator must aggregate
information regarding whether the victim or perpetrator has self-
identified as gay, lesbian, bisexual, transgender, intersex, or gender
nonconforming.
Comment. Multiple commenters suggested matching DHS's proposed
Sec. Sec. 115.86 and 115.186 to DOJ's corresponding sections in their
PREA rule. The relevant provisions of DOJ's rule include the following:
1. The review must be concluded within 30 days of the conclusion of
the investigation.
2. The review team must include upper-level management officials,
with input from line supervisors, investigators, and medical or mental
health practitioners.
3. The review team must consider whether the incident or allegation
was motivated by race; ethnicity; gender identity; lesbian, gay,
bisexual, transgender, or intersex identification, status, or perceived
status; or gang affiliation; or was motivated or otherwise caused by
other group dynamics at the facility.
4. The review team must examine the area in the facility where the
incident allegedly occurred to assess whether physical barriers in the
area may enable abuse.
5. The review team must assess the adequacy of staffing levels in
that area during different shifts.
[[Page 13147]]
6. The review team must assess whether monitoring technology should
be deployed or augmented to supplement supervision by staff.
7. The review team must submit its report to both the facility head
and the agency PREA compliance manager.
The commenters stated that the additional language would better protect
detainees and encourage the overall goal of eliminating sexual abuse in
facilities by helping facilities identify and fill gaps in current
policies and procedures.
Response. DHS has considered each of these recommendations
carefully, and has revised its proposal to incorporate provisions
implementing items 1 and 3, as noted above. DHS understands the
importance of reviewing reported incidents to better protect detainees
and help facilities identify and fill gaps in current policies and
procedures. To achieve this, Sec. Sec. 115.87 and 115.187 require the
collection of all case records associated with claims of sexual abuse,
including incident reports. The data collected is required to be shared
with the PSA Compliance Manager and DHS entities, including ICE
leadership and, upon request, CRCL.
Under Sec. 115.88, after this data is reviewed by agency
leadership, the agency will issue a report that will identify problem
areas and patterns to be improved upon, potentially including items 4-6
in the list above. In short, DHS believes that the final regulation
sufficiently accounts for the considerations raised by the commenters.
Comment. One commenter suggested that DHS require that the PSA
Compliance Manager be an upper-level facility official.
Response. DHS rejects the suggestion to require that the PSA
Compliance Manager be an upper-level facility official, as facilities
should have some discretion about whom they choose for this role.
Smaller facilities may not always have an upper-level official
available to fulfill the role of PSA Compliance Manager.
Comment. Commenters suggested that DHS require that all incident
reviews be conducted by a team of upper-level management officials.
Response. DHS does not concur with the suggestion to require that
all incident reviews be conducted by a team of upper-level officials as
smaller facilities may not have the staffing resources and may elect to
have an individual, the PSA Compliance Manager, conduct the review.
Comment. One commenter suggested that a paragraph be added stating
that if a facility's annual review finds that there has been no report
of sexual abuse or assault then the report should reflect that
information. Another commenter suggested that each facility's annual
reviews be available to the public on their Web site as well as the
agency's Web site.
Response. DHS agrees with the suggestion to require that facilities
that do not have any sexual abuse or assault allegations in the
reporting period still be required to submit a negative report.
Facilities are required to provide results and findings of the annual
review to the agency PSA coordinator. The PSA coordinator will use
these reviews to develop the agency's annual report, which will be made
available to the public through the agency's Web site. DHS does not
believe, however, it is appropriate or necessary to mandate individual
facilities post the annual review on their Web site, as the reviews can
be accessed more easily through the single portal of the agency Web
site.
Comment. A commenter suggested that DHS require all immigration
detention facilities to comply with this standard immediately.
Response. DHS does not concur with the suggestion to add a
different implementation timeline for incident reviews than the rest of
the standards.
Data Collection (Sec. Sec. 115.87, 115.187)
Summary of Proposed Rule
The standards contained in the proposed rule required the facility
(in Subpart A) or agency (in Subpart B) to maintain case records
associated with claims of sexual abuse. The standards required the
agency to aggregate the incident-based data at least annually. The
standards further mandated that upon request the agency would be
required to provide all such data from the previous calendar year to
CRCL.
Changes in Final Rule
Sections 115.87(a) and 115.187(a) now include a requirement that
facilities keep data collected on sexual abuse and assault incidents in
a secure location. Sections 115.87(d)(2) and 115.187(b)(2) have been
revised to also require the PSA Coordinator to aggregate information
about whether the victim or perpetrator has self-identified as
LGBTIGNC. The requirement under Subpart B for the agency to provide all
data collected under Sec. 115.187 to the PSA Coordinator was removed
in order to ensure that the requirements in both subparts were
consistent. Such a requirement is not necessary and was not originally
included under Subpart A because the PSA Coordinator has been
designated as the agency point of contact to aggregate relevant data
pursuant to this regulation.
Comments and Responses
Comment. One commenter suggested that the data collected be kept in
a secure area to which unauthorized individuals would not have access.
Response. DHS concurs with this concern and accepts the change
suggested by the commenter.
Comment. One commenter suggested that paragraph (a) take effect
immediately and require all facilities to begin acquiring and
maintaining the necessary data.
Response. Currently facilities report all allegations through the
agency Field Office, which is responsible for issuing a Significant
Incident Report. The PSA Coordinator has access to all Significant
Incident Reports as well as the electronic investigative case files of
ICE's OPR. Therefore, it is not necessary to make the provision
applicable immediately as a process is already in place. In any case,
DHS does not concur with the suggestion to add a different
implementation timeline for data collection than the rest of the
standards.
Comment. A few commenters suggested that data be collected,
analyzed, and maintained for all facilities, including contract
facilities.
Response. The standard applies to all facilities, including
contract facilities. Therefore the requirements in these sections
regarding data collection also apply to all facilities.
Data Review for Corrective Action (Sec. Sec. 115.88, 118.188)
Summary of Proposed Rule
The standards contained in the proposed rule described how the
collected data would be analyzed and reported. The standards mandated
that agencies use the data to identify problem areas, take ongoing
corrective action, and prepare an annual report for each facility as
well as the agency as a whole, including a comparison with data from
previous years. The standards mandated that this report be made public
through the agency's Web site or other means to help promote agency
accountability.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. An advocacy group suggested that data be reviewed from all
facilities in which immigration detainees are confined.
Response. The standard, including data review, applies to all
facilities.
[[Page 13148]]
Comment. An advocacy group suggested that the reports that are
published on the public Web site be updated at least annually.
Response. Annual reports will include assessments and information
about progress and corrective actions from prior years.
Data Storage, Publication, and Destruction (Sec. Sec. 115.89, 115.189)
Summary of Proposed Rule
The standards in the proposed rule described how to store, publish,
and retain data collected pursuant to Sec. Sec. 115.87 and 115.187.
The standard required that the agency make the aggregated data publicly
available at least annually on its Web site and shall remove all
personal identifiers.
Changes in Final Rule
The final rule adds a requirement in both subparts that the agency
maintain sexual abuse data collected pursuant to the above-described
standard on data collection (Sec. Sec. 115.87 and 115.187) for at
least 10 years after the date of the initial collection unless Federal,
State, or local law requires otherwise.
Comments and Responses
Comment. Multiple commenters suggested that data be securely
retained under agency record retention policies and procedures,
including a requirement to retain the collected data for a minimum
period of time, preferably 10 years as contained in the DOJ standard.
Response. DHS has considered this comment and concurs that data
collected must be retained for an adequate length of time. Given the
interests involved and the possibility for legal action based on an
incident, a longer period--such as 10 years--would more appropriately
account for such interests. DHS agrees with the commenters, and the
final rule adds a paragraph requiring the agency to maintain the
collected data for a minimum of 10 years after the date of initial
collection, unless otherwise prohibited by law.
Comment. A commenter suggested that data from state and local
public facilities in which immigration detainees are confined should
also be made publicly available.
Response. The data retention requirement applies to all data
collected by facilities covered by the standards or by the agency. All
facilities are required to provide sexual abuse and assault data to the
agency PSA coordinator. The PSA coordinator will use this data to
develop the agency's annual report, which will be made available to the
public through the agency's Web site.
Comment. One commenter suggested replacing the Subpart B provision
with materially identical language, except that the commenter removed
part of an internal cross-reference.
Response. DHS declines to incorporate this revision, in the
interest of ensuring clarity and consistency purposes with the parallel
provision in Subpart A.
Audits of Standards (Sec. Sec. 115.93, 115.193)
Summary of Proposed Rule
The proposed rule mandated that audits under these sections shall
be conducted pursuant to Sec. Sec. 115.201 through 115.205 of Subpart
C. In Subpart A, the standard required audits of each immigration
detention facility at least once every three years. The proposed rule
allowed for expedited audits if the agency has reason to believe that a
particular facility is experiencing problems related to sexual abuse.
The Subpart B standard required, within three years, an initial round
of audits of each holding facility that houses detainees overnight.
Following the initial audit, the Subpart B standard required follow-up
audits every five years for low-risk facilities and every three years
for facilities not identified as low risk. All audits were required to
be coordinated by the agency with CRCL.
Changes in Final Rule
Section 115.93 previously required the agency to ensure that ``each
of its immigration detention facilities'' is audited at least once
during the initial three-year period. Due to confusion expressed by
some commenters, DHS now requires the agency to ensure that ``each
immigration detention facility'' is audited at least once during the
initial three-year period. In the interest of clarity, DHS modified
Sec. 115.93(b) to allow the agency to ``require'' rather than
``request'' an expedited audit and allows the agency to provide
resource referrals to facilities to assist with PREA-related issues.
DHS also revised Sec. Sec. 115.93 and 115.193 to allow CRCL to request
expedited audits if it has reason to believe that such an audit is
appropriate.
Comments and Responses
Comment. Some commenters, including advocacy groups, expressed
concern regarding whether contract facilities would be subject to
auditing. Commenters advised clarifying that audit standards in their
entirety would be a requirement for all facilities, including
facilities run by non-DHS private or public entities, and that they all
be audited on the same timeframe. One advocacy group suggested adding
clarifying language that describes auditing of ``each facility operated
by the agency, or by a private organization on behalf of the agency.''
It was also recommended that the standards clarify the point at which
the audit requirement is triggered based upon the standards,
particularly with regard to contract facilities. Former NPREC
Commissioners also recommended the standards clarify that it is
prohibited to hold detainees in any custodial setting where external
audits are not applicable.
Response. Under the standards as proposed and in final form, DHS
must ensure that each covered immigration detention facility and
holding facility, as defined in Sec. Sec. 115.5, 115.12, and 115.112,
undergoes an audit. DHS has revised Sec. 115.93(a) as indicated above
for clarity.
Regarding the timeframe for implementation of audits, both subparts
include a clear standard that for covered facilities established prior
to July 6, 2015, ICE and CBP coordinate audits within the timeframe
specified. Additionally, under Sec. 115.193, CBP will ensure holding
facilities that hold detainees overnight and established after July 6,
2015 are audited within three years.
DHS clarifies that in the immigration detention facility context, a
facility will not be audited until it has adopted the PREA standards.
However, DHS notes that immigration detention facilities are subject to
regular inspections under current contracts and detention standards
regardless of whether they are considered a covered facility pursuant
to this regulation or whether they have adopted the PREA standards.
DHS, through ICE, is committed to endeavoring to ensure that SPCs,
CDFs, and dedicated IGSAs adopt the standards set forth in this final
rule within 18 months of the effective date. Additionally, DHS, through
ICE, will make serious efforts to initiate the renegotiation process so
the remaining covered facilities adopt the standards and become subject
to auditing as quickly as operational and budgetary constraints will
allow. As noted previously, ICE can remove detainees from facilities
that do not uphold adopted sexual abuse and assault practices.
Comment. Commenters suggested that a paragraph be added to the
Subpart A standard requiring CRCL to create a process by which a member
of the public is able to recommend an
[[Page 13149]]
expedited audit of any facility if he or she believes that the facility
may be experiencing sexual abuse problems. The collection of groups
also recommended allowing the agency to order such an expedited audit
of a DHS-run facility and to request the expedited audit of a contract
facility for such problems. These groups believe that this modification
to the section is necessary for clarification purposes.
Response. DHS has considered these comments, but does not believe
that any benefit of standing up such a formal process justifies the
potential resource and logistical difficulties involved, especially
given the many ways in which the public can already raise such issues
with DHS. Members of the public always have the ability to reach out to
CRCL regarding any matter of interest or potentially problematic aspect
with regard to DHS's programs and mission, through CRCL's complaint
form or simply in writing. Additionally, as noted previously regarding
immigration detention facilities, detainees themselves are able to
report sexual abuse or assault problems in several ways, including by
calling the JIC or the point of contact listed on the sexual abuse and
assault posters. Detainees or members of the public may also call the
JIC and the OIG or report incidents to CRCL. The Detainee Handbook and
posters provide contact information to detainees and also note that
detainee reports are confidential.
Regarding agency ability to request audits, Sec. 115.93(b) was
revised in order to clarify that the agency can require an expedited
audit if the agency has reason to believe that a particular facility
may be experiencing problems relating to sexual abuse. Section 115.193
instructs the agency to prioritize audits based on whether a facility
has previously failed to meet the standards.
Comment. Some commenters suggested that holding facilities have an
audit cycle of three years as opposed to its proposed audit cycle of
five years. Commenters wrote that five years is an inadequate period of
time as compared to the DOJ standards. The former NPREC Commissioners
wrote that in all of its research on the issue of prison rape, NPREC
did not find that that size, physical structure or passing an audit
eliminated the need for oversight of a facility or agency. NPREC wrote
that many facilities that were classified as having ``low'' incidents
of sexual abuse by the data collected by BJS were often facilities
where there were leadership and culture issues, lack of reporting, lack
of access to medical and mental health, and notoriously poor
investigative structures.
Response. ICE has 149 holding facilities and CBP has 768 holding
facilities, for a total of 917 holding facilities. In considering the
appropriate audit cycle for holding facilities, DHS took into account
the extremely high number of facilities, as well as the unique elements
of holding facilities and the variances between holding facilities. For
example, some holding facilities are used for detention on a handful of
occasions per year, or less, and some holding facilities are in public
view (for example, in the airport context). Requiring more frequent
audits in those situations is neither operationally practical nor the
most efficient use of resources.
With this in mind, DHS proposed that all holding facilities that
house detainees overnight would be audited within three years of the
final rule's effective date. Thereafter, holding facilities would be
placed into two categories: (1) Facilities that an independent auditor
has designated as low risk, based on its physical characteristics and
passing its most recent audit; and (2) facilities that an independent
auditor has not designated as low risk. Facilities that are not
determined to be low risk will adhere to the three year audit cycle
recommended by commenters. Facilities that are determined to be low
risk will follow a five year audit cycle.
In making its proposal and considering the comments received, DHS
carefully considered the appropriate allocation of resources to ensure
an appropriate audit strategy that allocates the greatest portion of
limited resources to areas that are potentially higher risk. DHS also
took into account the variety of holding facilities. For example, not
all holding facilities are consistently used; some may be used to house
detainees overnight only a handful of times per year, and some may
generally be used to house only one detainee at a time.
With respect to the concerns raised by the former Commissioners of
NPREC, DHS agrees that size, physical structure, and past audit history
should not eliminate the need for oversight of a facility or agency.
Accordingly, DHS is requiring regular, independent, rigorous oversight
of all immigration detention facilities and immigration holding
facilities, regardless of each facility's size, physical structure, and
past audit history. DHS also agrees with the former Commissioners that
facilities with apparently ``low'' incidence of sexual abuse still
require careful scrutiny, not least because of the possibility of
under-reporting, poor investigative structures, and other factors cited
by the former Commissioners. Upon consideration, however, DHS has
determined that rather than leading to the conclusion that all
facilities must be audited every three years, these factors lead to the
conclusion that DHS ought to implement robust standards across the
board.
Upon consideration, DHS believes its audit program is
comprehensive, robust, and cost-efficient. DHS therefore maintains this
program in the final rule.
Additional Provisions in Agency Policies (Sec. 115.95, 115.195)
Summary of Proposed Rule
The standards in the proposed rule provided that the regulations in
both Subparts A and B establish minimum requirements for agencies and
facilities. Additional requirements from the agencies and facilities
may be included.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
DHS did not receive any public comments on this provision during
the public comment period.
Scope of Audits (Sec. 115.201)
Summary of Proposed Rule
The standard contained in the proposed rule mandated the
coordination with CRCL on the conduct and contents of the audit as well
as how the audits are to be conducted.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. A commenter suggested that an audit committee make
appropriate recommendations to Congress, which the commenter believed
would ensure PREA compliance.
Response. DHS has considered this comment but believes sufficient
protections are in place under the auditing standards and other
standards to reasonably ensure sexual abuse prevention is maximized.
Recommendations from audits are best addressed by the agency and the
facility in coordination. Furthermore, because DHS is accountable to
Congress and the public, the agency will provide information about
audits as required by Congressional and/or FOIA requests, as well as
pursuant to the proactive disclosure requirement of 115.203(f).
Comment. A commenter recommended that facility audit
[[Page 13150]]
mechanisms currently in place incorporate questions and checklists
relating to compliance with the PREA standards. Some examples of
current mechanisms that the commenter provided were detention service
monitors, external facility audits, and CRCL investigations.
Response. Due to implementation of these PREA standards, external
auditing will be required for all covered confinement settings, to be
carried out in the manner in which the auditing requirements are most
effectively and functionally implemented. DHS declines to prescribe in
regulations a specific form or process for this independent oversight.
Comment. A commenter suggested that ICE and contract employee
``whistleblowers'' should be protected, encouraged, and should have
direct access to auditors.
Response. DHS agrees that reporting any information concerning a
sexual abuse or assault incident occurring in a detention or holding
facility is vital in the fight against sexual abuse and assault in DHS
confinement facilities. This reporting includes whistleblowing on any
corruption or wrongdoing in an agency or facility setting. DHS believes
that this concern is addressed through the ICE Sexual Assault training
and by the publication of this regulation in that both of these
mechanisms will encourage whistleblowing by anyone with sexual abuse or
assault incident information.
Auditor Qualifications (Sec. 115.202)
Summary of Proposed Rule
The standard in the proposed rule required an auditor to attain
specific qualifications before being eligible for employment by the
agency to perform the required audits.
Changes in Final Rule
DHS revised the auditor certification provision in paragraph (b),
to make explicit agencies' responsibility to certify auditors in
coordination with DHS. Otherwise, DHS is adopting the regulation as
proposed.
Comments and Responses
Comment. A commenter recommended that the auditor be given
authority to transfer an alleged victimized detainee during the
investigation process.
Response. The ICE policy on Detainee Transfers, referred to
previously as governing the transfer of all aliens in ICE custody,
discourages transfers unless a FOD or his or her designee deems the
transfer necessary for the reasons previously enumerated. ICE's
transfer policy is designed to limit transfers for all aliens and
provides adequate protection for aliens who have sexual abuse
complaints or grievances. Providing regulatory authority for outside
auditors lacking direct accountability to the ICE policy in place to
protect detainees would not be appropriate. All auditors will have the
ability, however, to make such recommendations to the FOD or his or her
designee.
Comment. A commenter suggested that the auditor's standards and
contact information be provided to every detainee and for the detainee
to have the ability to confidentially contact the auditor for free.
Response. DHS agrees that detainees must have access to multiple
ways to report abuse. This regulation includes multiple standards that
ensure such access. In this case, however, DHS has determined that it
is more appropriate to provide an auditor with discretion to conduct
each investigation as it best sees fit, within the bounds of the PREA
standards and consistent with other DHS policies. Additionally,
paragraphs (i) and (j) of Sec. 115.201 should provide reasonably
sufficient avenues for detainee-auditor interaction by, respectively,
requiring the agency and facilities to allow the auditor to conduct
private interviews with detainees, and allowing detainees to send
confidential information or correspondence to the auditor.
Audit Contents and Findings (Sec. 115.203)
Summary of Proposed Rule
The standard contained in the proposed rule mandated specific
information that the auditor is required to include in its report to
DHS.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
Comment. A commenter suggested that the facility bear the burden of
demonstrating compliance with the PREA standards. It was recommended
that this requirement be added to paragraph (b).
Response. Under the regulation, covered facilities bear the burden
of compliance with all relevant provisions of the regulations; the
audit will be directed to determining the facility's success or failure
in that regard.
Audit Corrective Action Plan (Sec. 115.204)
Summary of Proposed Rule
The standard contained in the proposed rule required that when a
facility ``Does Not Meet Standard'' after an audit, a 180-day
corrective action plan is to be developed and implemented.
Changes in Final Rule
The final rule revises paragraph (b)'s description of the roles of
the various entities regarding development of the corrective action
plan in order to more clearly delineate responsibilities and to ensure
the independence of the auditor is not compromised.
Comments and Responses
Comment. An advocacy group suggested the removal of the phrase ``if
practicable'' written in paragraph (b). This change would require that
in all cases the auditor, agency, and the facility jointly develop a
corrective action plan to achieve compliance.
Response. DHS has considered the comment and agrees with the
concerns expressed. By removing the notion that the facility need not
be involved in development of the corrective action plan if
impracticable, DHS clarifies in the final rule that the agency and the
facility must develop the plan jointly. Additionally, DHS has
determined that including the auditor as a party responsible for
jointly developing the plan with the agency and the facility is not
appropriate. Because of the auditor's unique role as an outside,
independent analyst, and because the auditor may have further
involvement in ensuring the agency and facility meets the standards in
the future, removing the auditor from development of the corrective
action plan ensures that the auditor's independent judgment is not
compromised at any point. Under the final rule, the agency and the
facility (if the facility is not operated by the agency) will develop
the plan. The auditor can then effectively and independently make the
determination as to whether the agency and facility have achieved
compliance after the plan is implemented.
Comment. Several commenters suggested stating specific criteria
that a facility must meet following a finding of ``Does Not Meet
Standard.'' One group suggested creating a remediation plan for these
facilities and another advocacy group suggested providing a specified
period of time (suggested 180 days) for facilities to meet the
requirements in the plan. One commenter suggested a similar 6-month
probationary period. If
[[Page 13151]]
after this given period of time the facility does not meet the
requirements given in the remediation plan, the facility would be
terminated for an extended period of time (one commenter suggested
three years) from housing any DHS detainees. One commenter suggested
that this termination clause should also be listed in the agency/
facility contract. An advocacy group generally suggested that DHS adopt
a standard to prevent the housing of detainees in facilities that do
not comply with the majority of the PREA standards and that fail to
successfully implement a corrective action plan for those standards.
Response. The standards in the final rule and other DHS policies
have been developed to ensure that noncompliance is not tolerated. Even
prior to establishing these standards, ICE could withhold paying a
contract facility's invoice or could remove detainees from a
noncomplying facility. Facility contracts have already included and
will continue to include the option to terminate or discontinue holding
detainees if the facility does not meet standards after periods of
remediation.
With respect to the specific proposals at issue, DHS has concerns
that the suggested 180-day period of time to meet the requirements of a
corrective action plan and similar 6-month probationary period may not
be sufficiently long for many corrective actions, including, for
example, actions that require construction or other physical
renovation. Corrective action plans themselves are intended to create a
process that will lead to full compliance. Therefore, DHS does not
believe it is necessary to make changes to this standard.
Audit Appeals (Sec. 115.205)
Summary of Proposed Rule
The standard contained in the proposed rule allowed facilities to
appeal the findings from an audit.
Changes in Final Rule
DHS is adopting the regulation as proposed.
Comments and Responses
DHS did not receive any public comments on this provision during
the public comment period.
Additional Comments and Responses
The proposed rule posed several questions specifically regarding
audits. The following contains a summary of comments received regarding
the questions addressing these standards and the DHS response.
Question 1: Would external audits of immigration detention facilities
and/or holding facilities conducted through random sampling be
sufficient to assess the scope of compliance with the standards of the
proposed rule?
Commenters were nearly unanimous that auditing through random
sampling would not be sufficient. A collective comment of advocacy
groups stated that random sampling requires some consistency among
facilities in the broader sample; because of the variety of facilities
at issue, sampling could not be conducted accurately. Commenters also
pointed out that the degree of discretion vested in individual facility
heads, the differences among the populations being held, and the
differences in physical layout make use of random sampling insufficient
for measuring compliance across facilities.
Former NPREC Commissioners stated that no rational basis for random
sampling existed, as the only way to ensure detainees' safety from
abuse is regular audits of all facilities without exception, citing DOJ
final rule findings in support of a triennial cycle.
One human rights advocacy group found audits for cause acceptable,
but only if in addition to regular, periodic audits, with auditing
every three years being sufficient. The group stated that random audits
or audits only for cause would not meet objectives such as providing
oversight, transparency, accountability, and feedback in every
facility. The group agreed with requiring every agency to have a full
audit within the first three years after PREA's implementation, and if
a facility receives an extremely high audit score, such as 90%, then
the standard could allow a subsequent audit three years later to be a
more streamlined version. The group expressed concerns with audits
based on cause only, because it was unclear who would determine whether
cause existed and when and on what basis that decision would be made.
Response. DHS agrees with the commenters that external audits of
immigration detention facilities and holding facilities should not be
conducted through random sampling. Audits selected by random sampling
would not sufficiently assess the scope of compliance with PREA
standards. Therefore, the agency maintains the final rule language in
Sec. Sec. 115.93 and 115.193 setting forth the definitive audit
schedule for immigration detention facilities and holding facilities.
Question 2: Once a holding facility is designated as low risk, would it
be a more cost effective yet still sufficient approach to furthering
compliance with the standards to externally audit a random selection of
such facilities instead of re-auditing each such facility once every
five years?
DHS received conflicting comments in response to this question. A
collection of various advocacy groups responded negatively to the idea
of auditing a random selection of low-risk holding facilities instead
of re-auditing each periodically. The groups, rejecting any use of
random sampling, stated that any designation of a facility as low risk
would be a mistake that does not account for the scope of the culture
of change necessary to end the crisis of sexual abuse in confinement
facilities.
Response. DHS agrees with the commenters that audits of immigration
detention facilities and holding facilities should not be conducted
through random sampling. Audits selected by random sampling would not
sufficiently assess the scope of compliance with PREA standards.
Therefore, the agency maintains the final rule language in Sec. Sec.
115.93 and 115.193 setting forth the definitive audit schedule for
immigration detention facilities and holding facilities.
Question 3: Would the potential benefits associated with requiring
external audits outweigh the potential costs?
A commenter agreed that the benefits would outweigh the costs,
stating that a realistic, cost-effective monitoring system is critical
to the standards' overall effectiveness and impact. Commenters
suggested that the external scrutiny, oversight, transparency,
accountability, and credible assessment of safety that a qualified
independent entity would bring are vitally important for confinement
facilities, could identify systemic problems and could offer solutions.
Commenters believed that thorough audits will help prevent abuse,
improve facility safety, lead to more effective management, and,
ultimately, lower fiscal and human costs to the community.
The groups also noted that it seemed DHS cost projections did not
account for contract facilities already auditing under DOJ PREA
standards, but that--as a cost-related measure--the two audits could be
conducted simultaneously if the auditor were properly trained in
differences between the standards and wrote separate, but related,
reports for each set of standards. The group suggested that DHS
consider
[[Page 13152]]
offering an abbreviated auditor training and certification process for
auditors already certified by DOJ, focusing on the differences between
the two sets of standards, the principles of civil confinement, and the
unique features of DHS detainees.
Response. After reviewing the comments regarding Question 3, DHS
decided to maintain the audit provisions set forth in Subpart C despite
the fact that external auditing does incur financial costs to the
agency. DHS agrees that external audits will be a valuable tool in
assessing the standards' overall effectiveness and impact as well as
help to prevent abuse, improve facility safety, and lead to more
effective detention and custody management.
While DHS appreciates that some commenters acknowledged that
external audits are required by both DOJ and DHS and that the agencies
could be seen as conducting and financing redundant external audits,
DHS believes that the unique detention missions of each agency warrant
a separate audit process. If in the future DHS finds that an expedited
certification process is preferable, DHS can implement such a process
under Sec. 115.202(b).
Question 4: Is there a better approach to external audits other than
the approaches discussed in the proposed rule?
A commenter stated affirmatively that a better approach may exist,
acknowledging it may include additional but reasonable costs. The
groups expressed the following various changes that they believe would
be improvements: (1) Audits could be conducted on an unannounced basis
to ensure they are reviewing typical conditions; (2) facilities which
have been required to take corrective action after an initial audit
could be required to undergo a follow-up audit 18 months later to
assess improvement; (3) auditors could be required to work in teams
that include advocates and/or former detainees to increase
comprehensiveness of inspection; (4) such teams could be required to
meet with a certain percentage of current and former detainees and
employees, contractors, and volunteers to accrue information; and (5)
DHS could require that all facilities submit to expedited audits when
requested by CRCL.
The collection of groups expressed that they believed DHS could
amend its PREA auditing standards at a later date if, for example,
after two complete three-year audit cycles under the groups' suggested
standard, DHS could then better determine which facilities could
appropriately be audited on a less-frequent basis; the data from the
two cycles could also allow advocates to have concrete data to comment
on such a revised plan.
Response. DHS appreciates the constructive comments provided by
advocacy groups regarding the audit process. DHS is not substantively
revising the audit provision in the final rule because the agency
believes that the final rule provides an effective and efficient
framework for external audits.
In response to the specific comments, DHS notes that unannounced
audits would be overly burdensome for the facility and for agency
personnel. Section 115.204 requires facilities with a finding of ``Does
Not Meet Standards'' with one or more standards have 180 days to
develop a corrective action plan. After the 180-day corrective action
period, the auditor will issue a final determination as to whether the
facility has achieved compliance. The agency will use this assessment
to determine what steps are necessary to bring the facility into
compliance or to determine that the facility is not safe for detainees
and therefore, whether detainees must be transferred to other
facilities. This process is an effective safeguard and therefore, an
automatic 18-month follow-up audit is not necessary. DHS does not
mandate the exact composition of the audit team, but rather requires
that the audit be conducted by entities or individuals outside of the
agency that have relevant audit experience. Paragraph (g) of Sec.
115.201 already requires that the auditor interview a representative
sample of detainees and staff. Finally, the agency does not believe
that the agency's resources would be maximized if CRCL could
automatically trigger expedited audits. CRCL already has the authority
to conduct reviews related to civil rights and civil liberties issues
at any facility that houses detainees. However, DHS acknowledges that
CRCL will play an important role in developing audit procedures and
guidelines. In light of this, Sec. Sec. 115.93 and 115.193 have been
revised to allow CRCL to request expedited audits if it has reason to
believe that such an audit is appropriate.
Question 5: In an external auditing process, what types of entities or
individuals should qualify as external auditors?
Some commenters described specific types of individuals who would
or would not qualify as external auditors, while one set of advocates
described typical characteristics contributing to a quality auditor.
One commenter stated that such external auditors should consist of
members of non-governmental organizations, attorneys, community
members, media, and former detainees. Another organization stated that
auditors should simply not be employees of DHS or the detention center,
seemingly meaning the facility being audited; yet another set of groups
stated that prior corrections or detention official experience alone
would not suffice. Another commenter suggested that auditing requires a
well-founded individual or team with prior expertise and/or training in
both sexual violence dynamics and detention environments, with state
certification in rape crisis counseling being a strongly-preferred
qualification. Commenters wrote that requirements must include
demonstrable skills in gathering information from traumatized
individuals and ability to ascertain clues of possible concerns that
detainees and others may not feel comfortable sharing.
Response. The agency in conjunction with CRCL is required by this
rule to develop and issue guidance on the conduct of and contents of
the audit. The agency must also certify all auditors and develop and
issue procedures regarding the certification process, which must
include training requirements.
Finally, DHS received a number of generalized comments relevant to
the rulemaking but which did not specifically fall within any
particular standard as embodied in the proposed rule.
Comment. Numerous comments were supportive of the standards,
stating it is a good idea to promulgate a rule to prevent such assault
and abuse.
Response. DHS agrees that this rule is an important tool for the
agency to prevent, detect, and respond to sexual abuse and assault in
confinement facilities.
Comment. Former Commissioners of NPREC suggested that DHS engage
BJS to work to collect data on the prevalence of sexual abuse in DHS
facilities, with the results of such surveys being available to the
public. The former Commissioners believed the data to be necessary both
for DHS and for the public to be able to understand the scope of abuse
and to monitor the impact and success of the standards.
Response. DHS has considered the suggested approach in this
comment; however, given the current budgetary environment, DHS does not
have the resources to expend personnel and/or funds to develop and
execute a separate additional survey and accompanying interagency
agreement at this time. DHS
[[Page 13153]]
notes that BJS recently conducted a survey that included ICE
facilities.\16\
---------------------------------------------------------------------------
\16\ BJS, Sexual Victimization in Prisons and Jails Reported by
Inmates, 2011-12: Nat'l Inmate Survey, 2011-12 (May 2013), http://www.bjs.gov/content/pub/pdf/svpjri1112.pdf.
---------------------------------------------------------------------------
In addition, the need for such a survey is negated by the fact that
DHS itself, through ICE, has conducted surveys of the detainee
population. The surveys have focused on conditions of detention,
including the grievance process, staff retaliation, intake education--
including regarding how to contact ICE personnel--posting of legal
assistance information, and the Detainee Handbook, with space to add
other information that the detainee may wish to share. DHS may consider
conducting similar surveys in the future for comparison purposes.
Several commenters generally suggested that various standards
should include ``critical protections'' for LGBTI detainees, in
addition to the specific areas where LGBTI-related comments are listed
above. Areas where commenters believed these protections are needed
include in Sec. Sec. 115.15, 115.115, Limits to cross-gender viewing
and searches; Sec. 115.42, Use of assessment information; Sec.
115.43, Protective custody; Sec. Sec. 115.62, 115.162, (Agency)
Protection duties; Sec. 115.53, Detainee access to outside
confidential support services; and Sec. 115.78, Disciplinary sanctions
for detainees.
Response. As noted elsewhere that the issue has specifically
arisen, DHS generally provides safety and security measures for all
populations, including all those that may be vulnerable; DHS declines
to make specific changes for the standards referred to in these
comments, as the standards are intended to be flexible enough to fit
many situations.
V. Regulatory Analysis
We developed this rule after considering numerous statues and
executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statues or executive orders.
A. Executive Orders 12866 and 13563
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both the costs and
benefits of reducing costs of harmonizing rules, and of promoting
flexibility. This rule is a ``significant regulatory action,'' although
not an economically significant regulatory action, under Sec. 3(f) of
Executive Order 12866. Accordingly, the Office of Management and Budget
(OMB) has reviewed this regulation.
1. Synopsis
Sexual violence against any victim is an assault on human dignity
and an affront to American values. Many victims report persistent, even
lifelong mental and physical suffering. As the National Prison Rape
Elimination Commission (NPREC) explained in its 2009 report:
Until recently . . . the public viewed sexual abuse as an
inevitable feature of confinement. Even as courts and human rights
standards increasingly confirmed that prisoners have the same
fundamental rights to safety, dignity, and justice as individuals
living at liberty in the community, vulnerable men, women, and
children continued to be sexually victimized by other prisoners and
corrections staff. Tolerance of sexual abuse of prisoners in the
government's custody is totally incompatible with American
values.\17\
---------------------------------------------------------------------------
\17\ National Prison Rape Elimination Commission Report 1
(2009), http://www.ncjrs.gov/pdffiles1/226680.pdf.
As discussed in the accompanying RIA, ICE keeps records of any
sexual abuse allegation made by detainees at all facilities in which it
holds detainees in its Joint Integrity Case Management System (JICMS).
In estimating the current level of sexual abuse for purposes of this
analysis, DHS relies on facility-reported data in ICE's JICMS database.
In 2010, ICE had four substantiated sexual abuse allegations in
immigration detention facilities, two in 2011, and one in 2012. There
were no substantiated allegations by individuals detained in a DHS
holding facility.\18\ In the RIA, DHS extrapolates the number of
substantiated and unsubstantiated allegations at immigration detention
facilities based on the premise that there may be additional detainees
who may have experienced sexual abuse but did not report it. Table 1
below summarizes the estimated number of sexual abuse allegations at
ICE confinement facilities.
---------------------------------------------------------------------------
\18\ This does not include allegations involved in still-open
investigations or allegations outside the scope of these
regulations.
Table 1--Estimated Benchmark Level of Adult Sexual Abuse at ICE Confinement Facilities, by Approach and Type of
Allegation
----------------------------------------------------------------------------------------------------------------
Lower bound Adjusted
Class code Subject approach Primary approach
----------------------------------------------------------------------------------------------------------------
1: Nonconsensual Acts--High........... Detainee-on-Detainee.... 0.0 4.9 9.9
Staff-on Detainee....... 0.0 3.8 7.7
Unknown................. 0.0 0.0 0.0
-----------------------------------------------
Subtotal.......................... ........................ 0.0 8.8 17.6
----------------------------------------------------------------------------------------------------------------
2: Nonconsensual Acts--Low............ Detainee-on-Detainee.... 0.0 4.9 9.9
Staff-on-Detainee....... 1.8 5.7 9.6
Unknown................. 0.0 0.8 1.6
-----------------------------------------------
Subtotal.......................... ........................ 1.8 10.6 19.5
----------------------------------------------------------------------------------------------------------------
3: ``Willing'' Sex with Staff......... Detainee-on-Detainee.... 0.0 0.0 0.0
Staff-on-Detainee....... 0.0 1.0 1.9
Unknown................. 0.0 0.0 0.0
-----------------------------------------------
Subtotal.......................... ........................ 0.0 1.0 1.9
----------------------------------------------------------------------------------------------------------------
[[Page 13154]]
4: Abusive Sexual Contacts--High...... Detainee-on-Detainee.... 2.6 5.5 8.4
Staff-on-Detainee....... 0.0 0.0 0.0
Unknown................. 0.0 0.0 0.0
-----------------------------------------------
Subtotal.......................... ........................ 2.6 5.5 8.4
----------------------------------------------------------------------------------------------------------------
5: Abusive Sexual Contacts--Low....... Detainee-on-Detainee.... 2.6 18.2 33.8
Staff-on-Detainee....... 0.0 0.0 0.0
Unknown................. 0.0 0.0 0.0
-----------------------------------------------
Subtotal.......................... ........................ 2.6 18.2 33.8
----------------------------------------------------------------------------------------------------------------
6: Staff Sexual Misconduct Touching Detainee-on-Detainee.... 0.0 0.0 0.0
Only. Staff-on-Detainee....... 0.0 20.2 40.4
Unknown................. 0.0 0.0 0.0
-----------------------------------------------
Subtotal.......................... ........................ 0.0 20.2 40.4
----------------------------------------------------------------------------------------------------------------
Sexual Harassment Not Involving Detainee-on-Detainee.... 0.0 5.6 11.3
Touching. Staff-on-Detainee....... 3.5 13.3 23.1
Unknown................. 0.0 0.0 0.0
-----------------------------------------------
Subtotal.......................... ........................ 3.5 18.9 34.4
-----------------------------------------------
Total......................... ........................ 10.4 83.2 156.0
----------------------------------------------------------------------------------------------------------------
Note: Details may not sum to total due to rounding for shown values.
In order to address the allegations of sexual abuse at DHS
immigration detention and holding facilities, the final rule sets
minimum requirements for the prevention, detection, and response to
sexual abuse. Specifically, the rule establishes standards for
prevention planning; prompt and coordinated response and intervention;
training and education of staff, contractors, volunteers and detainees;
proper treatment for victims; procedures for investigation, discipline
and prosecution of perpetrators; data collection and review for
corrective action; and audits for compliance with the standards. DHS
estimates that the full cost of compliance with these standards at all
covered DHS confinement facilities will be approximately $57.4 million
over the period 2013-2022, discounted at 7 percent, or $8.2 million per
year when annualized at a 7 percent discount rate.
With respect to benefits, DHS conducts what is known as a ``break
even analysis,'' by first estimating the monetary value of preventing
various types of sexual abuse (incidents involving violence,
inappropriate touching, or a range of other behaviors) and then, using
those values, calculating the reduction in the annual number of victims
that would need to occur for the benefits of the rule to equal the cost
of compliance. When all facilities and costs are phased into the
rulemaking, the break even point would be reached if the standards
reduced the annual number of incidents of sexual abuse by 122 from the
estimated benchmark levels, which is 147 percent of the total number of
assumed incidents in ICE confinement facilities, including an estimated
number of those who may not have reported an incident.\19\
---------------------------------------------------------------------------
\19\ As discussed in Chapter 1, and shown in Table 17, of the
accompanying RIA, the benchmark level of sexual assaults includes
all types of sexual assaults.
---------------------------------------------------------------------------
There are additional benefits of the rule that DHS is unable to
monetize or quantify. Not only will victims benefit from a potential
reduction in sexual abuse in facilities, so too will DHS agencies and
staff, other detainees, and society as a whole. As noted by Congress,
sexual abuse increases the levels of violence within facilities. Both
staff and other detainees will benefit from a potential reduction in
levels of violence and other negative factors. 42 U.S.C. 15601(14).
This will improve the safety of the environment for other detainees and
workplace for facility staff. In addition, long-term trauma from sexual
abuse in confinement may diminish a victim's ability to reenter society
resulting in unstable employment. Preventing these incidents will
decrease the cost of health care, spread of disease, and the amount of
public assistance benefits required for victims upon reentry into
society, whether such reentry is in the United States or a detainee's
home country.
Table 2, below, presents a summary of the benefits and costs of the
final rule. The costs are discounted at seven percent.
Table 2--Estimated Costs and Benefits of Final Rule
[$millions]
----------------------------------------------------------------------------------------------------------------
Immigration
detention Holding Total DHS PREA
facilities facilities rulemaking
----------------------------------------------------------------------------------------------------------------
10-Year Cost Annualized at 7% Discount Rate..................... $4.9 $3.3 $8.2
[[Page 13155]]
% Reduction of Sexual Abuse Victims to Break Even with Monetized N/A N/A 147%*
Costs..........................................................
-----------------------------------------------
Non-monetized Benefits.......................................... An increase in the general wellbeing and
morale of detainees and staff, the value of
equity, human dignity, and fairness for
detainees in DHS custody.
Net Benefits.................................................... As explained above, we did not estimate the
number of incidents or victims of sexual abuse
this rule would prevent. Instead, we conducted
a breakeven analysis. Therefore, we did not
estimate the net benefits of this rule.
----------------------------------------------------------------------------------------------------------------
* For ICE confinement facilities.
2. Summary of Affected Population
This rule covers two types of confinement facilities: (1)
Immigration detention facilities, and (2) holding facilities.
Immigration detention facilities, which are operated or supervised by
ICE, routinely hold persons for over 24 hours pending resolution or
completion of immigration removal or processing. Holding facilities,
used and maintained by DHS components including ICE and CBP, tend to be
short-term. The analysis below presents immigration detention
facilities and holding facilities separately.
This rule directly regulates the Federal Government, notably any
DHS agency with immigration detention facilities or holding facilities.
This rule also affects private and public entities that operate
confinement facilities under contracts or agreements with DHS. The
sections below describe and quantify, where possible, the number of
affected immigration detention facilities and holding facilities.
a. Subpart A--Immigration Detention Facilities
ICE is the only DHS component with immigration detention
facilities. ICE holds detainees during proceedings to determine whether
they will be removed from the United States, and pending their removal,
in ICE-owned facilities or in facilities contracting with ICE.
Therefore, though this rule directly regulates the Federal Government,
it requires that its standards ultimately apply to some State and local
governments as well as private entities through contracts with DHS. The
types of authorized ICE immigration detention facilities are as
follows:
Service Processing Center (SPC)--full service immigration
facilities owned by the government and staffed by a combination of
Federal and contract staff;
Contract Detention Facility (CDF)--owned by a private
company and contracted directly with the government; and
Intergovernmental Service Agreement Facility (IGSA)--
facilities at which detention services are provided to ICE by State or
local government(s) through agreements with ICE and which may fall
under public or private ownership and may be fully dedicated
immigration facilities (housing detained aliens only) or non-dedicated
facilities (housing various detainees).
ICE enters into IGSAs with States and counties across the country
to use space in jails and prisons for civil immigration detention
purposes. Some of these facilities are governed by IGSAs that limit the
length of an immigration detainee's stay to less than 72 hours. Some of
these facilities have limited bed space that precludes longer stays by
detainees. Others are used primarily under special circumstances such
as housing a detainee temporarily to facilitate detainee transfers or
to hold a detainee for court appearances in a different jurisdiction.
In some circumstances the under-72-hour facilities house immigration
detainees only occasionally.
ICE owns or has contracts with approximately 158 authorized
immigration detention facilities that hold detainees for more than 72
hours.\20\ The 158 facilities consist of 6 SPCs, 7 CDFs, 9 dedicated
IGSA facilities, and 136 non-dedicated IGSA facilities. Sixty four of
the non-dedicated IGSA facilities are covered by the DOJ PREA, not this
rule, because they are USMS IGA facilities. As the USMS IGA facilities
are not within the scope of this rulemaking, this analysis covers the
94 authorized SPC, CDF, dedicated IGSA, and non-dedicated IGSA
immigration detention facilities that hold detainees for more than 72
hours.
---------------------------------------------------------------------------
\20\ As noted above, facilities ICE used as of spring 2012, and
the sexual abuse and assault standards to which facilities were held
accountable or planned to be held accountable at that time, serve as
the baseline for the cost estimates for this rulemaking.
---------------------------------------------------------------------------
ICE additionally has 91 authorized immigration detention facilities
that are contracted to hold detainees for less than 72 hours.\21\ All
91 facilities are non-dedicated IGSA facilities, but 55 of them are
covered by the DOJ PREA rule, not this rule, because they are USMS IGA
facilities. Again, ICE excludes the USMS IGA facilities from the scope
of this rulemaking and analysis; the analysis covers the 36 authorized
non-dedicated IGSA immigration detention facilities that hold detainees
for under 72 hours. Facilities that are labeled by ICE as ``under 72-
hour'' still meet the definition of immigration detention facilities,
because they process detainees for detention intake. Detainees housed
in these facilities are processed into the facility just as they would
be in a long-term detention facility.
---------------------------------------------------------------------------
\21\ As noted above, facilities ICE used as of spring 2012, and
the sexual abuse and assault standards to which facilities were held
accountable or planned to be held accountable at that time, serve as
the baseline for the cost estimates for this rulemaking.
---------------------------------------------------------------------------
Furthermore, ICE also has two authorized family residential
centers. These are IGSA facilities that house only ICE detainees. One
of the facilities accommodates families subject to mandatory detention
and the other is a dedicated female facility. ICE family residential
centers are subject to the immigration detention facility standards
proposed in Subpart A. The table below
[[Page 13156]]
summarizes the facilities included in this analysis.
Table 1--Summary of ICE Authorized Immigration Detention Facilities
----------------------------------------------------------------------------------------------------------------
Family
Facility Over 72 hours Under 72 hours residential
----------------------------------------------------------------------------------------------------------------
Non-Dedicated IGSA.............................................. 74 36 0
SPC............................................................. 6 0 0
CDF............................................................. 7 0 0
Dedicated IGSA.................................................. 7 0 2
-----------------------------------------------
Total Covered by Rule....................................... 94 36 2
-----------------------------------------------
USMS IGA \a\.................................................... 64 55 0
===============================================
Total Authorized Facilities............................. 158 91 2
----------------------------------------------------------------------------------------------------------------
\a\ Not within the scope of the rulemaking. USMS confinement facilities are covered by DOJ's PREA regulations.
b. Subpart B--Holding Facilities
A holding facility may contain holding cells, cell blocks, or other
secure locations that are: (1) under the control of the agency and (2)
primarily used for the confinement of individuals who have recently
been detained, or are being transferred to another agency.
i. U.S. Immigration and Customs Enforcement
Most ICE holding rooms are in ICE field offices and satellite
offices. These rooms are rooms or areas that are specifically designed
and built for temporarily housing detainees in ICE ERO offices. It may
also include staging facilities. ICE holding facilities as presented in
this analysis are exclusive of hold rooms or staging areas at
immigration detention facilities, which are covered by the standards of
the immigration detention facility under Subpart A of this rule. ICE
has 149 holding facilities that are covered under Subpart B of the
rule.
ii. U.S. Customs and Border Protection
There is a wide range of facilities where CBP detains individuals.
Some individuals are detained in secured detention areas, while others
are detained in open seating areas where agents or officers interact
with the detainee. Hold rooms in CBP facilities where case processing
occurs are used to search, detain, or interview persons who are being
processed. CBP operates 768 holding facilities at ports of entry and
Border Patrol stations, checkpoints, and processing facilities across
the country.
The number of detainees in CBP custody fluctuates. Consequently, at
times CBP is unable to accommodate its short-term detention needs
through its facilities. Similar to ICE, CBP has entered into
approximately 14 contracts with State, local, and/or private entity
facilities on a rider to a USMS contract that provides for a consistent
arrangement with particular facilities to cover instances in which CBP
has insufficient space to detain individuals. Because CBP entered into
these contracts via a rider to a USMS contract, the impacts to these
facilities have been accounted for in the DOJ's PREA rule and to
consider them again here would double count any costs and/or benefits
associated with these facilities. As such, these facilities are
excluded from this analysis.
3. Costs of Rule
This rule covers DHS immigration detention facilities and holding
facilities. Table 3 summarizes the number of facilities covered by the
rulemaking over 10 years.
Table 3--Estimated Population Summary for Rule
----------------------------------------------------------------------------------------------------------------
Immigration Holding facilities
detention --------------------------------
Year facilities Total
---------------- ICE CBP
ICE
----------------------------------------------------------------------------------------------------------------
1............................................... 132 149 768 1,049
2............................................... 134 149 768 1,051
3............................................... 136 149 768 1,053
4............................................... 138 149 768 1,055
5............................................... 140 149 768 1,057
6............................................... 142 149 768 1,059
7............................................... 144 149 768 1,061
8............................................... 146 149 768 1,063
9............................................... 148 149 768 1,065
10.............................................. 150 149 768 1,067
----------------------------------------------------------------------------------------------------------------
The cost estimates set forth in this analysis represent the costs
of compliance with, and implementation of, the standards in facilities
within the scope of the rulemaking.\22\ This final rule implements many
of the proposed
[[Page 13157]]
standards in the NPRM. In addition, DHS made a number of changes to
provisions set forth in the NPRM based on public comments. These
changes are discussed previously in the preamble. DHS received no
public comments on the estimates in the economic analysis.
---------------------------------------------------------------------------
\22\ The baseline for these cost estimates is the sexual abuse
and assault standards to which facilities were held accountable or
planned to be held accountable at the time of writing the NPRM.
Since the NPRM, ICE has made great strides in implementing sexual
abuse and assault standards in facilities. As a result, the baseline
of the rule from which the costs and benefits of the rulemaking were
estimated, differ from the current sexual abuse and assault
standards at some facilities.
---------------------------------------------------------------------------
After analyzing the changes made in this final rule, DHS concludes
the only cost change from the NPRM with more than a de minimis impact
results from expanding the scope of training requirements for personnel
that have contact with detainees under Sec. 115.32. This change
resulted in an increase in estimated cost of approximately $16,000 per
year. DHS also fixed a mistake in estimating the year audits would
begin for facilities. Thus, this analysis estimates that compliance
with the standards, in the aggregate, will be approximately $57.4
million, discounted at 7 percent, over the period 2013-2022, or $8.2
million per year when annualized at a 7 percent discount rate. Table 4
below, presents a 10-year summary of the estimated benefits and costs
of the final rule.
Table 4--Total Cost of Final Rule
[$millions]
----------------------------------------------------------------------------------------------------------------
Immigration detention Holding facilities subpart B
facilities subpart A --------------------------------
Year -------------------------------- Total
Over 72 hours Under 72 hours ICE CBP
----------------------------------------------------------------------------------------------------------------
1............................... $3.9 $1.2 $0.0 $5.6 $10.7
2............................... 3.6 1.1 0.0 5.5 10.1
3............................... 3.6 1.1 0.0 3.6 8.3
4............................... 3.7 1.1 0.0 2.4 7.1
5............................... 3.7 1.1 0.0 2.4 7.2
6............................... 3.7 1.1 0.0 2.3 7.2
7............................... 3.8 1.1 0.0 2.3 7.2
8............................... 3.8 1.1 0.0 2.3 7.2
9............................... 3.8 1.1 0.0 2.3 7.2
10.............................. 3.8 1.2 0.0 2.3 7.2
-------------------------------------------------------------------------------
Total....................... 37.4 11.3 0.0 31.0 79.6
-------------------------------------------------------------------------------
1Total (7%)................. 26.2 7.9 0.0 23.2 57.4
-------------------------------------------------------------------------------
Total (3%).................. 31.9 9.6 0.0 27.2 68.7
-------------------------------------------------------------------------------
Annualized (7%)............. 3.7 1.1 0.0 3.3 8.2
-------------------------------------------------------------------------------
Annualized (3%)............. 3.7 1.1 0.0 3.2 8.0
----------------------------------------------------------------------------------------------------------------
The total cost, discounted at 7 percent, consists of $34.1 million
for immigration detention facilities under Subpart A, and $23.2 million
for holding facilities under Subpart B. The largest costs for
immigration detention facilities are for staff training, documentation
of cross-gender pat downs, duties for the PSA Compliance Manager, and
audit requirements. DHS estimates zero compliance costs for ICE holding
facilities under this rule as the requirements of ICE's SAAPID and
other ICE policies are commensurate with the requirements of the rule.
The largest costs for CBP holding facilities are staff training,
audits, and facility design modifications and monitoring technology
upgrades.
4. Benefits of the Rule
DHS has not estimated the anticipated monetized benefits of this
rule or how many incidents or victims of sexual abuse DHS anticipates
will be avoided by this rule. Instead, DHS conducts what is known as a
``break even analysis,'' by first estimating the monetary value of
preventing victims of various types of sexual abuse (from incidents
involving violence to inappropriate touching) and then, using those
values, calculating the reduction in the annual number of victims that
would need to occur for the benefits of the rule to equal the cost of
compliance. The NPRM estimated the benefits based on sexual abuse data
from 2011, the most recent full year of data at that time. DHS has
included sexual abuse data from 2010, 2011, and 2012 in this final
analysis. In addition, since the publication of the NPRM, ICE's PSA
Coordinator has reviewed the individual reports and data from these
years and assigned a level of sexual victimization to each based on the
levels used in the DOJ PREA RIA.\23\ This has allowed DHS to provide a
more comprehensive assessment of sexual abuse in ICE confinement
facilities, and the estimated avoidance value of preventing such abuse.
The DHS RIA concludes that when all facilities and costs are phased
into the rulemaking, the breakeven point will be reached if the
standards reduced the annual number of incidents of sexual abuse by 122
from the estimated benchmark level, which is 147 percent of the total
number of assumed incidents in ICE confinement facilities, including
those who may not have reported an incident.
---------------------------------------------------------------------------
\23\ Department of Justice, Regulatory Impact Analysis for the
National Standards to Prevent, Detect, and Respond to Prison Rape
under PREA, Table 1.1 on page 24 of 168, available at http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf.
---------------------------------------------------------------------------
There are additional benefits of the rule that DHS is unable to
monetize or quantify. Not only will victims benefit from a potential
reduction in sexual abuse in facilities, so too will DHS agencies and
staff, other detainees, and society as a whole. As noted by Congress,
sexual abuse increases the levels of violence within facilities. Both
staff and other detainees will benefit from a potential reduction in
levels of violence and other negative factors. 42 U.S.C. 15601(14).
This will improve the safety of the environment for other detainees and
workplace for facility staff. In addition, long-term trauma from sexual
abuse in confinement may diminish a victim's ability to reenter society
resulting in unstable
[[Page 13158]]
employment. Preventing these incidents will decrease the cost of health
care, spread of disease, and the amount of public assistance benefits
required for victims upon reentry into society, whether such reentry is
in the United States or a detainee's home country.
5. Alternatives
As alternatives to the regulatory regime discussed in this rule,
DHS examined three other options. The first is taking no regulatory
action. For over 72-hour immigration detention facilities, the 2011
PBNDS sexual abuse standards might reach all facilities over time as
the new version of the standards are implemented at facilities as
planned. However, in the absence of regulatory action, sexual abuse
standards for ICE's under 72-hour immigration detention facilities and
DHS's holding facilities would remain largely the same.
DHS also considered requiring the ICE immigration detention
facilities that are only authorized to hold detainees for under 72
hours to meet the standards for holding facilities under Subpart B,
rather than the standards for immigration detention in Subpart A, as
discussed in the final rule. The standards in Subpart B are somewhat
less stringent than those for immigration detention facilities, as
appropriate for facilities holding detainees for a much shorter time
and with an augmented level of direct supervision.
Finally, DHS considered changing the audit requirements under
Sec. Sec. 115.93 and 115.193. Immigration detention facilities
currently undergo several layers of inspections for compliance with
ICE's detention standards. This alternative would allow ICE to
incorporate the audit requirements for the standards into current
inspection procedures. However, it would require outside auditors for
all immigration detention facilities. For holding facilities that hold
detainees overnight, it would require 10 internal audits, 10 external
audits, and three audits by CRCL be conducted annually. The following
table presents the 10-year costs of the alternatives compared to the
costs of the final rule. These costs of these alternatives are
discussed in detail in Chapter 2 of the Final RIA.
Table 5--Cost Comparison of Regulatory Alternatives to the Final Rule
[$millions]
----------------------------------------------------------------------------------------------------------------
10-Year total costs by alternative Total Total (7%) Total (3%)
----------------------------------------------------------------------------------------------------------------
Alternative 1--No Action........................................ $0 $0 $0
Alternative 2--Under 72-Hour.................................... 77.4 55.7 66.7
Alternative 3--Final Rule....................................... 79.6 57.4 68.7
Alternative 4--Audit Requirements............................... 70.1 50.5 60.4
----------------------------------------------------------------------------------------------------------------
B. Executive Order 13132--Federalism
This final rule does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. This rule implements the Presidential
Memorandum of May 17, 2012 ``Implementing the Prison Rape Elimination
Act'' and the requirements found in the recently enacted VAWA
Reauthorization (Mar. 7, 2013) by setting forth national DHS standards
for the detection, prevention, reduction, and punishment of sexual
abuse in DHS immigration detention and holding facilities. In drafting
the standards, DHS was mindful of its obligation to meet the
President's objectives and Congress's intent while also minimizing
conflicts between State law and Federal interests.
Insofar, however, as the rule sets forth standards that might apply
to immigration detention facilities and holding facilities operated by
State and local governments and private entities, this rule has the
potential to affect the States, the relationship between the Federal
government and the States, and the distribution of power and
responsibilities among the various levels of government and private
entities. With respect to the State and local agencies, as well as the
private entities, that own and operate these facilities across the
country, the Presidential Memorandum provides DHS with no direct
authority to mandate binding standards for their facilities. However,
in line with Congress's and the President's statutory direction in the
VAWA Reauthorization that the standards are to apply to DHS-operated
detention facilities and to detention facilities operated under
contract with DHS, including CDFs and detention facilities operated
through an IGSA with DHS, these standards impact State, local, and
private entities to the extent that such entities make voluntary
decisions to contract with DHS for the confinement of immigration
detainees or that such entities and DHS agree to enter into a
modification or renewal of such contracts. This approach is fully
consistent with DHS's historical relationship to State and local
agencies in this context. Therefore, in accordance with Executive Order
13132, DHS has determined that this final rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Notwithstanding the determination that the formal consultation
process described in Executive Order 13132 is not required for this
rule, DHS welcomed consultation with representatives of State and local
prisons and jails, juvenile facilities, community corrections programs,
and lockups--among other individuals and groups--during the course of
this rulemaking.
C. Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
Sec. Sec. 3(a) and 3(b)(2) of Executive Order 12988.
D. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
(Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. 1532) generally requires
agencies to prepare a statement before submitting any rule that may
result in an annual expenditure of $100 million or more (adjusted
annually for inflation) by State, local, or tribal governments, or by
the private sector. DHS has assessed the probable impact of these
regulations and believes these regulations may result in an aggregate
expenditure by State and local governments of approximately $4.3
million in the first year.
However, DHS believes the requirements of the UMRA do not apply to
these regulations because UMRA excludes from its definition of
``Federal intergovernmental mandate'' those regulations imposing an
enforceable duty on other levels of government which are ``a condition
of Federal
[[Page 13159]]
assistance.'' 2 U.S.C. 658(5)(A)(i)(I). Compliance with these standards
would be a condition of ongoing Federal assistance through
implementation of the standards in new contracts and contract renewals.
While DHS does not believe that a formal statement pursuant to the UMRA
is required, it has, for the convenience of the public, summarized as
follows various matters discussed at greater length elsewhere in this
rulemaking which would have been included in a UMRA statement should
that have been required:
These standards are being issued pursuant to the
Presidential Memorandum of May 17, 2012, section 1101 of the VAWA
Reauthorization, and DHS detention authorities.
A qualitative and quantitative assessment of the
anticipated costs and benefits of these standards appears below in the
Regulatory Flexibility Act (RFA) section;
DHS does not believe that these standards will have an
effect on the national economy, such as an effect on productivity,
economic growth, full employment, creation of productive jobs, or
international competitiveness of United States goods and services;
Before it issued these final regulations DHS:
(1) Provided notice of these requirements to potentially affected
small governments by publishing the NPRM, and by other activities;
(2) Enabled officials of affected small governments to provide
meaningful and timely input, via the methods listed above; and
(3) Worked to inform, educate, and advise small governments on
compliance with the requirements.
As discussed above in the RIA summary, DHS has identified
and considered a reasonable number of regulatory alternatives and from
those alternatives has attempted to select the least costly, most cost
effective, or least burdensome alternative that achieves DHS's
objectives.
E. Small Business Regulatory Enforcement Fairness Act of 1996
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, DHS wants to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rulemaking. If the rule
would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact DHS via the address or phone
number provided in the FOR FURTHER INFORMATION CONTACT section above.
DHS will not retaliate against small entities that question or complain
about this rule or about any policy or action by DHS related to this
rule.
F. Regulatory Flexibility Act
DHS drafted this final rule so as to minimize its impact on small
entities, in accordance with the RFA, 5 U.S.C. 601-612, while meeting
its intended objectives. The term ``small entities'' comprises small
business, not-for-profit organizations that are independently owned and
operated and are not dominant in their fields, and governmental
jurisdictions with populations of less than 50,000. Based on presently
available information, DHS is unable to state with certainty that the
rule will not have any effect on small entities of the type described
in 5 U.S.C. 601(3). Accordingly, DHS has prepared a Final Regulatory
Flexibility Impact Analysis in accordance with 5 U.S.C. 604.
1. A Statement of the Need for, and Objectives of, the Rule
In 2003 Congress enacted PREA, Public Law 108-79 (Sept. 4, 2003).
PREA directs the Attorney General to promulgate national standards for
enhancing the prevention, detection, reduction, and punishment of
prison rape. On May 17, 2012, DOJ released a final rule setting
national standards to prevent, detect, and respond to prison rape for
facilities operated by BOP and USMS. The final rule was published in
the Federal Register on June 20, 2012. 77 FR 37106 (June 20, 2012). In
its final rule, DOJ concluded that PREA ``encompass[es] any Federal
confinement facility `whether administered by [the] government or by a
private organization on behalf of such government.' '' Id. at 37113
(quoting 42 U.S.C. 15609(7)). DOJ recognized, however, that, in
general, each Federal agency is accountable for, and has statutory
authority to regulate the operations of its own facilities and is best
positioned to determine how to implement Federal laws and rules that
govern its own operations, staff, and persons in custody. Id. The same
day that DOJ released its final rule, President Obama issued a
Presidential Memorandum directing Federal agencies with confinement
facilities to issue regulations or procedures within 120 days of his
Memorandum to satisfy the requirements of PREA. On March 7, 2013,
Congress enacted a statutory mandate in the VAWA Reauthorization
directing DHS to publish, within 180 days of enactment, a final rule
adopting national standards for the detection, prevention, reduction,
and punishment of rape and sexual assault in immigration confinement
settings. See Public Law 113-4 (Mar. 7, 2013). This regulation responds
to and fulfills the President's direction and the VAWA Reauthorization
statutory mandate by creating comprehensive, national regulations for
the detection, prevention, and reduction of prison rape at DHS
confinement facilities.
DHS uses a variety of legal authorities, which are listed below in
the ``Authority'' provision preceding the regulatory text, to detain
individuals in confinement facilities. Most individuals detained by DHS
are detained in the immigration removal process, and normally DHS
derives its detention authority for these actions from Sec. 236(a) of
the INA, 8 U.S.C. 1226(a), which provides the authority to arrest and
detain an alien pending a decision on whether the alien is to be
removed from the United States, and Sec. 241(a)(2) of the INA, 8
U.S.C. 1231(a)(2), which provides the authority to detain an alien
during the period following the issuance of an order of removal. DHS
components, however, use many other legal authorities to meet their
statutory mandates and to detain individuals during the course of
executing DHS missions.
The objective of the rule is to create minimum requirements for DHS
immigration detention and holding facilities for the prevention,
detection, and response to sexual abuse. The rule will ensure prompt
and coordinated response and intervention, proper treatment for
victims, discipline and prosecution of perpetrators, and effective
oversight and monitoring to prevent and deter sexual abuse.
2. A Statement of the Significant Issues Raised by the Public Comments
in Response to the Initial Regulatory Flexibility Analysis (IRFA), a
Statement of the Assessment of the Agency of Such Issues, and a
Statement of Any Changes Made in the Proposed Rule as a Result of Such
Comments
DHS did not receive any public comments in response to the initial
regulatory flexibility analysis.
3. The Response of the Agency to Any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration (SBA) in
Response to the Proposed Rule, and a Detailed Statement of Any Change
Made to the Proposed Rule in the Final Rule as a Result of the Comments
DHS did not receive comments from the Chief Counsel for Advocacy of
the
[[Page 13160]]
Small Business Administration in response to the proposed rule.
4. A Description of and an Estimate of the Number of Small Entities To
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is
Available
This rule will affect owners of DHS confinement facilities,
including private owners, State and local governments, and the Federal
government. DHS has two types of confinement facilities: (1)
Immigration detention facilities, and (2) holding facilities. Holding
facilities tend to be short-term in nature. ICE, in particular, is
charged with administration of the immigration detention facilities
while CBP and ICE each have many holding facilities under their
detention authority. The analysis below addresses immigration detention
facilities and holding facilities separately.
i. Immigration Detention Facilities
ICE divides its detention facilities into two groups: There are 158
for use over 72 hours, and 91 that typically hold detainees for more
than 24 hours and less than 72 hours. These are treated separately,
below. Further, there are several types of immigration detention
facilities. SPC facilities are ICE-owned facilities and staffed by a
combination of Federal and contract staff. CDFs are owned by a private
company and contracted directly with ICE. Detention services at IGSA
facilities are provided to ICE by State or local governments(s) through
agreements with ICE and may be owned by the State or local government,
or by a private entity. Finally, there are two types of IGSA
facilities: dedicated and non-dedicated. Dedicated IGSA facilities hold
only detained aliens whereas non-dedicated facilities hold a mixture of
detained aliens and inmates. ICE does not include USMS IGA facilities
used by ICE under intergovernmental agreements in the scope of this
rulemaking. Those facilities would be covered by the DOJ PREA
standards. Any references to authorized immigration detention
facilities are exclusive of these 119 USMS IGA facilities.
Of the current 158 ICE detention facilities that are for use over
72 hours, 6 are owned by the Federal government and are not subject to
the RFA. An additional 64 are covered not by this rule but by the DOJ
PREA rule, as USMS IGA facilities. Of the 88 facilities subject to the
RFA, there are 79 distinct entities. DHS uses ICE information and
public databases such as Manta.com and data from the U.S. Census Bureau
\24\ to search for entity type (public, private, parent, subsidiary,
etc.), primary line of business, employee size, revenue, population,
and any other necessary information. This information is used to
determine if an entity is considered small by the SBA size standards,
within its primary line of business.
---------------------------------------------------------------------------
\24\ U.S. Census Bureau, State and County QuickFacts, 2010
Population Data, available at http://quickfacts.census.gov/qfd/index.html.
---------------------------------------------------------------------------
Of the 79 entities owning immigration detention facilities and
subject to the RFA, the search returned 75 entities for which
sufficient data are available to determine if they are small entities,
as defined by the RFA. The table below shows the North American
Industry Classification System (NAICS) codes corresponding with the
number of facilities for which data are available. There are 27 small
governmental jurisdictions, one small business, and one small not-for-
profit. In order to ensure that the interests of small entities are
adequately considered, DHS assumes that all entities without available
ownership, NAICS, revenue, or employment data are small entities.
Therefore, DHS estimates there are a total of 33 small entities to
which this rule applies. The table below shows the number of small
entities by type for which data are available.
Table 5--Small Entities by Type--Immigration Detention Facilities
------------------------------------------------------------------------
Type Entities found SBA Size standard
------------------------------------------------------------------------
Small Governmental 27 Population less than
Jurisdiction. 50,000.
Small Business............... 1 $7 million (NAICS
488999); $30 million
(NAICS 488119).
Small Organization........... 1 Independently owned
and operated not-for-
profit not dominant
in its field.
--------------------
Subtotal................. 29
--------------------
Entities without Available 4
Information.
--------------------
Total Small Entities. 33
------------------------------------------------------------------------
ICE also has shorter-term immigration detention facilities, for
several reasons: Some of ICE's immigration detention facilities are
governed by IGSAs that limit the length of an immigration detainee's
stay to less than 72 hours for various reasons. Some of these
facilities have limited bed space that precludes longer stays by
detainees. Others are used primarily under special circumstances such
as housing a detainee temporarily to facilitate detainee transfers or
to hold a detainee for court appearances in a different jurisdiction.
In some circumstances the under 72-hour facilities are located in rural
areas that only occasionally have immigration detainees.
At the time of writing, ICE has 91 immigration detention facilities
which are used to detain individuals for less than 72 hours. Of those,
three are owned by the Federal or State government and are not subject
to the RFA. An additional 55 are covered not by this rule but by the
DOJ PREA rule, as USMS IGA facilities. Of the 33 facilities subject to
the RFA, all are owned by distinct entities. Again, DHS uses public
databases such as Manta.com and U.S. Census Bureau to search for entity
type, primary line of business, employee size, revenue, population, and
any other necessary information needed to determine if an entity is
considered small by SBA size standards.
Of the 33 entities owning immigration detention facilities and
subject to the RFA, all have sufficient data available to determine if
they are small entities as defined by the RFA. The table below shows
the NAICS codes corresponding with the number of facilities for which
data are available. DHS determines there are 10 small governmental
jurisdictions, 0 small businesses, and 0 small organizations. The table
below shows
[[Page 13161]]
the number of small entities by type for which data are available.
Table 6--Small Entities by Type--Other DHS Confinement Facilities
------------------------------------------------------------------------
Type Entities found SBA Size standard
------------------------------------------------------------------------
Small Governmental 10 Population less than
Jurisdiction. 50,000.
Small Business............... 0
Small Organization........... 0
--------------------
Total Small Entities..... 10
------------------------------------------------------------------------
At the time of writing, ICE has two immigration detention
facilities that are considered family residential facilities. Both are
owned by counties. Again, DHS uses public databases such as Manta.com
and U.S. Census Bureau to search for entity type, primary line of
business, employee size, revenue, population, and any other necessary
information needed to determine if an entity is considered small by SBA
size standards. DHS was able to obtain sufficient data to determine if
they are small entities. Based on the size of the counties, DHS
determines neither are considered small governmental jurisdictions as
defined by the RFA.
In summary, DHS estimates the number of small entities covered by
this rulemaking is 33 over 72-hour immigration detention facilities, 10
under 72-hour facilities, and 2 family residential facilities, for a
total of 45 small entities.
ii. Holding Facilities
U.S. Customs and Border Protection. CBP operates 768 facilities
with holding facilities. Of the 768, 364 are owned by private sector
entities. CBP is responsible for funding any facility modifications
once CBP has begun operations at the location. As such, any
modifications at these facilities as a result of this rule will have no
direct impact on the facilities.
U.S. Immigration and Customs Enforcement. Most ICE hold rooms are
in ICE field offices and satellite offices. ICE estimates it has 149
holding facilities that are covered under the rule. None of these
facilities are considered small entities under the RFA.
5. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the
Classes of Small Entities Which Will Be Subject to the Requirement and
the Types of Professional Skills Necessary for Preparation of the
Report or Record
With regard to non-DHS facilities, the requirements of the rule are
applicable only to new detention contracts with the Federal Government,
and to contract renewals. To the extent this rule increases costs to
any detainment facilities, which may be small entities, it may be
reflected in the cost paid by the Federal Government for the contract.
Costs associated with implementing the rule paid by the Federal
Government to small entities are transfer payments ultimately born by
the Federal Government. However, DHS cannot say with certainty how
much, if any, of these costs will be paid in the form of increased bed
rates for facilities. Therefore, for the purposes of this analysis, DHS
assumes all costs associated with the rule will be borne by the
facility. Of the 45 small entities, 37 operate under the NDS. The
following discussion addresses the standards that may create
implementation costs for facilities that are currently operating under
the ICE NDS.
i. Contracting With Other Non-DHS Entities for the Confinement of
Detainees, Sec. 115.12
The rule requires that any new contracts or contract renewals
comply with the rule and provide for agency contract monitoring to
ensure that the contractor is complying with these standards.
Therefore, DHS adds a 20-hour opportunity cost of time for the
contractor to read and process the modification, determine if a request
for a rate increase is necessary, and have discussions with the
government if needed. DHS estimates this standard may cost a facility
approximately $1,488 (20 hours x $74.41) in the first year.\25\
---------------------------------------------------------------------------
\25\ Bureau of Labor Statistics, Occupational Employment
Statistics (OES), May 2011, NAICS 999300, SOC 11-1021 General and
Operations Manager Median Hourly Wage, retrieved on June 29, 2012
from http://www.bls.gov/oes/2011/may/naics4_999300.htm. Loaded for
benefits. Bureau of Labor Statistics, Employer Cost for Employee
Compensation, June 2011, Table 3: Employer Costs per hour worked for
employee compensation and costs as a percent of total compensation:
State and local government workers, by major occupational and
industry group, Service Occupations, Salary and Compensation Percent
of Total Compensation, retrieved on June 29, 2012 from http://www.bls.gov/news.release/archives/ecec_09082011.pdf. $74.41 =
$44.42/0.597.
---------------------------------------------------------------------------
ii. Zero Tolerance of Sexual Abuse; Prevention of Sexual Assault
Coordinator, Sec. 115.11
The rule requires immigration detention facilities to have a
written zero-tolerance policy for sexual abuse and establish a PSA
Compliance Manager at each facility. ICE is not requiring facilities to
hire any new staff for these responsibilities; rather ICE believes the
necessary PSA Compliance Manager duties can be collateral duties for a
current staff member.
For some of the standards in this rulemaking, the actual effort
required to comply with the standard will presumably be undertaken by
the PSA Compliance Manager. The costs of compliance with those
standards are thus essentially subsumed within the cost of this
standard. For this reason, and to avoid double counting, many standards
are assessed as having minimal to zero cost even though they will
require some resources to ensure compliance; this is because the cost
of those resources is assigned to this standard to the extent DHS
assumes the primary responsibility for complying with the standard will
lie with the PSA Compliance Manager. The table below presents the
standards and requirements DHS assumes are the responsibility of the
PSA Compliance Manager, and are included in the costs estimated for
this standard.
Table 7--Assumed PSA Compliance Manager Duties--Immigration Detention
Facilities
------------------------------------------------------------------------
Standard
-------------------------------------------------------------------------
115.11 Zero tolerance of sexual abuse.
115.21 Evidence protocols and forensic medical examinations.
115.31 Staff training.
115.32 Volunteer and contractor training.
115.34 Specialized training: Investigations.
115.63 * Reporting to other confinement facilities.
115.65 Coordinated response.
115.67 Agency protection against retaliation.
115.86 Sexual abuse incident reviews.
115.87 Data collection.
[[Page 13162]]
115.93 * Audits.
------------------------------------------------------------------------
* Indicates new requirement for facilities under 2011 PBNDS or Family
Residential Standards.
DHS spoke with some SPCs and CDFs who had Sexual Abuse and Assault
Prevention Intervention Coordinators required under the 2008 PBNDS.
Based on these discussions, DHS estimates a PSA Compliance Manager will
spend, on average, 114 hours in the first year and 78 hours thereafter,
which includes writing/revising policies related to sexual abuse and
working with auditors. DHS estimates this standard may cost a facility
approximately $5,330 (114 hours x $46.75) in the first year.\26\
---------------------------------------------------------------------------
\26\ Bureau of Labor Statistics, Occupational Employment
Statistics (OES), May 2011, NAICS 999300, SOC 33-1011 First Line
Supervisors of Correctional Officers Median Hourly Wage, retrieved
on June 29, 2012 from http://www.bls.gov/oes/2011/may/oes331011.htm.
Loaded for benefits. $46.75 = $27.91/0.597
---------------------------------------------------------------------------
iii. Limits to Cross-Gender Viewing and Searches, Sec. 115.15
The requirement prohibits cross-gender pat-down searches unless,
after reasonable diligence, staff of the same gender is not available
at the time the pat-down search is required (for male detainees), or in
exigent circumstances (for female and male detainees alike). In
addition, it bans cross-gender strip or body cavity searches except in
exigent circumstances; requires documentation of all strip and body
cavity searches and cross-gender pat-down searches; prohibits physical
examinations for the sole purpose of determining genital
characteristics; requires training of law enforcement staff on proper
procedures for conducting pat-down searches, including transgender and
intersex detainees; and, implements policies on staff viewing of
showering, performing bodily functions, and changing clothes.
The restrictions placed on cross-gender pat-down searches will be a
new requirement for facilities operating under the NDS or 2008 PBNDS,
and a modified requirement for facilities operating under the 2011
PBNDS.\27\ ICE's detention population is 10 percent female, and 90
percent male. In comparison, 13 percent of correctional officers at
Federal confinement facilities \28\ and 28 percent at jails are
female.\29\ Though there may be disproportionate gender ratios of staff
to detainees at some individual facilities, the overall national
statistics do not indicate that there will be a significant problem
with compliance. Facilities are allowed to conduct cross-gender pat-
down searches on male detainees when, after reasonable diligence by the
facility, a member of the same gender is not available at the time. The
pat-down restrictions for female detainees are more stringent. Female
detainees only comprise 10 percent of the overall population, and one
to five percent are held at ICE's dedicated female facility. The Family
Residential Standards, under which the dedicated female facility
operates, already prohibit cross-gender pat-downs.
---------------------------------------------------------------------------
\27\ Specifically, the 2011 PBNDS permits cross-gender pat-down
searches of women when staff of the same gender is not available at
the time the pat-down search is required. Under the proposed
standard, cross-gender searches of females would be allowed only in
exigent circumstances.
\28\ Bureau of Justice Statistics, Census of State and Federal
Correctional Facilities, 2005, page 4, retrieved on August 13, 2012
from http://www.bjs.gov/content/pub/pdf/csfcf05.pdf.
\29\ Department of Justice, Final Regulatory Impact Analysis,
section 5.6.15.1 Analysis and Methodology for Adult Facilities of
standards 115.15, retrieved May 24 from www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf.
---------------------------------------------------------------------------
DHS does not expect any facilities to hire new staff or lay off any
staff specifically to meet the requirement. Instead, DHS expects that
facilities which may have an unbalanced gender ratio take this
requirement into consideration during hiring decisions resulting from
normal attrition and staff turnover. In the IRFA, DHS requested
comments from facilities on this conclusion. No comments were received
in response to this request.
DHS includes a cost for facilities to examine their staff rosters,
gender ratios, and staffing plans for all shifts for maximum compliance
with cross-gender pat downs. The length of time it takes for facilities
to adjust staffing plans, strategies, and schedules for gender balance
while ensuring there is adequate detainee supervision and monitoring
pursuant to Sec. 115.13 will vary with the size of the facility. DHS
estimates this may take a supervisor 12 hours initially. DHS
anticipates facilities will be able to incorporate these considerations
into regular staffing decisions in the future. DHS estimates the
restrictions on cross-gender pat-downs may cost a facility
approximately $561 (12 hours x $46.75) in the first year.
The requirement for documentation of cross-gender pat-down searches
is new for all facilities, regardless of the version of the detention
standards under which the facility operates. Presumably, cross-gender
pat-down searches of female detainees will occur rarely, as the rule
allows them in exigent circumstances only. However, cross-gender pat-
down searches of male detainees may happen more frequently. DHS
believes this requirement may be a notable burden on facilities both
for the process of documenting the pat-down, but also keeping these
records administratively. Therefore, as we discuss below, DHS estimates
an opportunity cost for this provision. ICE does not currently track
the number of cross-gender pat-down searches, or any pat-down searches
conducted. In the IRFA DHS requested comment from facilities on the
number of cross-gender pat-down searches conducted. No comments were
received in response to this request.
Because DHS believes this may be a noticeable burden on facilities,
DHS includes a rough estimate using assumptions. DHS also requested
comment on these assumptions in the IRFA. No comments were received in
response to this request. Detainees may receive a pat-down for a number
of reasons. All detainees receive a pat- down upon intake at the
facility, detainees may receive a pat-down after visitation, before
visiting the attorney room, if visiting medical, if in segregation,
etc. Therefore, DHS assumes that in any given day, approximately 50
percent of detainees may receive a pat-down. DHS uses the ratio of male
guards to male detainees and female guards to female detainees as a
proxy for the percentage of these pat-downs that will be cross-gender,
realizing that this may not be representative of every facility, the
circumstances at the time a pat-down is required, nor the results after
the staff realignment previously discussed. As referenced previously,
between 72 and 87 percent of guards are male and 90 percent of
detainees are male. Therefore, to estimate a rough order of magnitude,
DHS assumes between 3 and 18 percent of pat-downs of male detainees may
be cross-gender, with a primary estimate of 10 percent.
DHS finds the total average daily population of male detainees at
the 43 facilities classified as small entities and takes the average to
determine an average daily population of 93 for a facility classified
as a small entity (4,457 x 90% / 43). Then DHS applies the methodology
described above to estimate that approximately 2,000 cross gender pat-
downs may be conducted at an average small entity annually (93 male ADP
x 50% receive pat-down daily x 365 days x 10% cross-gender), which is
rounded to the nearest thousand due to uncertainty. DHS estimates it
will require an average of five minutes of staff for documentation. DHS
estimates
[[Page 13163]]
this standard may cost a facility approximately $5,435 (5 minutes x
$32.61 per hour), annually.
The total estimate per small entity for Sec. 115.15 is $5,996
($561 for staff realignment + $5,435 for cross-gender pat-down
documentation).
iv. Evidence Protocols and Forensic Medical Examinations, Sec. 115.21
The rule requires ICE and any of its immigration detention
facilities to establish a protocol for the investigation of allegations
of sexual abuse or the referral of allegations to investigators. In
addition, where appropriate, at no cost to the detainee, a forensic
medical exam should be offered and an outside victim advocate shall be
made available for support if requested.
DHS includes a cost for facilities to enter into a memorandum of
understanding (MOU) with entities that provide victim advocate
services, such as rape crisis centers. DHS estimates it will require
approximately 20 hours of staff time to negotiate and settle on each
MOU. DHS estimates this standard may cost a facility approximately
$1,488 (20 hours x $74.41).
v. Staff Training, Sec. 115.31
Under Sec. 115.31 the rule requires that any facility staff who
may have contact with immigration detention facilities have training on
specific items related to prevention, detection, and response to sexual
abuse. It also requires facilities to maintain documentation that all
staff have completed the training requirements. Staff includes any
employees or contractors of the agency or facility, including any
entity that operates within the facility. Contractor means a person who
or entity that provides services on a recurring basis pursuant to a
contractual agreement with the agency or facility.
DHS uses the National Institute of Corrections Information Center
2-hour training timeframe as an approximation for the length of the
training course to fulfill the proposed requirements. DHS estimates
this standard may cost a facility approximately $18,914 (2 hours x 290
staff x $32.61), annually.30 31
---------------------------------------------------------------------------
\30\ ICE does not keep record of the number of staff at contract
facilities. The estimates represent the results from a small sample,
stratified by facility type. ICE estimates approximately 290 staff
per facility.
\31\ Though there may be other types of staff that will require
this training, such as medical practitioners or administrative
staff, DHS assumes correctional officers and their supervisors
comprise the majority of staff with detainee contact.
---------------------------------------------------------------------------
vi. Other Training, Sec. 115.32
In the NPRM, Sec. 115.32 required that any volunteers and
contractors who may have contact with immigration detention facilities
also receive training on specific items related to prevention,
detection, and response to sexual abuse. In the final rule this was
changed to volunteers and other contractors. Other contractors are
those that do not have training requirements under Sec. 115.31, but
who have contact with detainees and provide services on a non-recurring
basis to the facility pursuant to a contractual agreement. The standard
also requires the agency or facility to maintain documentation that all
volunteers and other contractors have completed the training
requirements.
The provisions in this standard allow the level and type of
training required of volunteers and other contractors to be based upon
the services they provide and the level of contact they have with
detainees, but sets a minimum level requiring notification of the zero-
tolerance policy and reporting responsibilities and procedures. Because
of the regular nature of volunteers and the types of duties they
perform, DHS uses the same assumptions as staff for the frequency and
hours of training required of volunteers. DHS estimates this standard
for volunteers may cost approximately $2,008 per facility (2 hours x 30
volunteers x $33.47).32 33
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\32\ ICE does not keep record of the number of volunteers at
contract facilities. The estimates represent the results from a
small sample, stratified by facility type. ICE estimates
approximately 30 volunteers per facility.
\33\ Bureau of Labor Statistics, Occupational Employment
Statistics (OES), May 2011, SOC 00-0000 All Occupations Median
Hourly Wage, retrieved on August 16, 2012 from http://www.bls.gov/oes/2011/may/naics4_999300.htm. Loaded for benefits. $33.47 =
$19.98/0.597.
---------------------------------------------------------------------------
To provide flexibility to facilities to determine the appropriate
level of training necessary, the NPRM included training for contractors
under Sec. 115.31 and Sec. 115.32 recognizing there are different
types of contractors ranging from guards to those that come weekly to
service vending machines. In this final rule, DHS proposes to address
this flexibility in a different manner. DHS has removed from Sec.
115.32 contractors, as defined under Sec. 115.5 as a ``person or
entity that provides services on a recurring basis pursuant to a
contractual agreement with the agency or facility.'' The final rule
includes these types of recurring contractors solely under the training
requirements of Sec. 115.31. In recognition that there may be other
non-recurring contractors with access to detainees, DHS has included a
requirement for these other contractors to also undergo training
appropriate for the services they provide and level of contact they
have with detainees, under Sec. 115.32. This expands the training
requirements to a population that was not previously covered under the
NPRM. DHS estimates this standard for other contractors may cost
approximately $121 per facility (15 minutes x 20 other contractors x
$24.24).\34\
---------------------------------------------------------------------------
\34\ Bureau of Labor Statistics, Occupational Employment
Statistics (OES), May 2011, National, Weighted Average Median Wage
Rate for SOC 37-0000 Building Grounds Cleaning and Maintenance
Occupations; 47-0000 Construction and Extraction Occupations; and
49-0000 Installation, Maintenance, and Repair Occupations, retrieved
on June 13 2012 from http://www.bls.gov/oes/2011/may/oes_nat.htm.
Loaded for benefits.
Bureau of Labor Statistics, Employer Cost for Employee
Compensation, June 2011, Table 1: Employer Costs per hour worked for
employee compensation and costs as a percent of total compensation:
Civilian workers, by major occupational and industry group,
Management, professional, and related, Salary and Compensation
Percent of Total Compensation, retrieved on October 15, 2012 from
http://www.bls.gov/news.release/archives/ecec_09082011.pdf. $24.24
= $16.86/0.694.
---------------------------------------------------------------------------
The total estimated cost per facility for volunteer and other
contractor training is $2,129 ($2,008 for volunteers + $121 for other
contractors).
vii. Specialized Training: Investigations, Sec. Sec. 115.34, 115.134
The rule requires the agency or facility to provide specialized
training on sexual abuse and effective cross-agency coordination to
agency or facility investigators, respectively, who conduct
investigations into alleged sexual abuse at immigration detention
facilities.
DHS conducts investigations of all allegations of detainee sexual
abuse in detention facilities. The 2012 ICE SAAPID mandates that ICE's
OPR provide specialized training to OPR investigators and other ICE
staff. Facilities may also conduct their own investigations. However,
because ICE conducts investigations into the allegations, training for
facility investigators will likely be less specialized than required of
ICE investigators. DHS includes a cost for the time required for
training investigators. DHS estimates the training may take
approximately one hour. DHS estimates this standard may cost a facility
approximately $468 (1 hour x 10 investigators x
$46.75).35 36
---------------------------------------------------------------------------
\35\ ICE does not keep record of the number of investigators at
contract facilities. The estimates represent the results from a
small sample, stratified by facility type. ICE estimates 10
investigators per facility.
\36\ Bureau of Labor Statistics, Occupational Employment
Statistics (OES), May 2011, NAICS 99300, Median Wage Rate for SOC
33-1011 First-Line Supervisors of Correctional Officers, retrieved
on August 16, 2012 from http://www.bls.gov/oes/2011/may/naics4_999300.htm. Loaded for benefits. $46.75 = $27.91/0.597.
---------------------------------------------------------------------------
[[Page 13164]]
viii. Specialized Training: Medical and Mental Health Care, Sec.
115.35
The rule requires specialized training to DHS medical and mental
health care staff. In addition, it requires all facilities to have
policies and procedures to ensure that the facility trains or certifies
all full- or part-time facility medical and mental health care staff in
procedures for treating victims of sexual abuse, in facilities where
medical or mental health staff may be assigned these activities.\37\
---------------------------------------------------------------------------
\37\ ICE does not keep record of the number of medical and
mental health care providers at contract facilities. The estimates
represent the results from a small sample, stratified by facility
type. ICE estimates 30 medical and mental health care providers per
new facility.
---------------------------------------------------------------------------
DHS searched for continuing medical education courses that focused
on the evaluation and treatment for victims of sexual assault. Based on
the results, DHS estimates an average course will be one hour in length
and cost between $10 and $15, and can be completed online. DHS
estimates this standard may cost a facility approximately $1,957 (30
medical and mental health care practitioners x ($50.23 x 1 hr +
$15)).\38\
---------------------------------------------------------------------------
\38\ Bureau of Labor Statistics, Occupational Employment
Statistics (OES), May 2011, NAICS 99300, Weighted Average Median
Wage Rate for SOC 29-1062 Family and General Practitioners; 29-1066
Psychiatrists; 29-1071 Physician Assistants; 29-1111 Registered
Nurses; 29-2053 Psychiatric Technicians; and 29-2061 Licensed
Practical and Licensed Vocational Nurses, retrieved on August 16,
2012 from http://www.bls.gov/oes/2011/may/naics4_999300.htm. Loaded
for benefits. $50.23 = $29.99/0.597
---------------------------------------------------------------------------
ix. Detainee Access to Outside Confidential Support Services, Sec.
115.53
The rule requires facilities to maintain or attempt to enter into
MOUs with organizations that provide legal advocacy and confidential
emotional support services for victims of sexual abuse. It also
requires notices of these services be made available to detainees, as
appropriate.
DHS includes a cost for facilities to enter into a MOU with
entities that provide legal advocacy and confidential support services,
such as services provided by a rape crisis center. DHS estimates it
will require approximately 20 hours of staff time to negotiate and
settle on each MOU. DHS estimates this standard may cost a facility
approximately $1,488 (20 hours x $74.41).
x. Audits, Sec. 115.93
Facilities may also incur costs for re-audits. Re-audits can be
requested in the event that the facility does not achieve compliance
with each standard or if the facility files an appeal with the agency
regarding any specific finding that it believes to be incorrect. Costs
for these audits will be borne by the facility; however, the request
for these re-audits is at the discretion of the facility.
xi. Additional Implementation Costs
Facilities contracting with DHS agencies may incur organizational
costs related to proper planning and overall execution of the
rulemaking, in addition to the specific implementation costs facilities
are estimated to incur for each of the requirements. The burden
resulting from the time required to read the rulemaking, research how
it might impact facility operations, procedures, and budget, as well as
consideration of how best to execute the rulemaking requirements or
other costs of overall execution. This is exclusive of the time
required under Sec. 115.12 to determine and agree upon the new terms
of the contract and the specific requirements expected to be performed
by the facility PSA Compliance Manager under Sec. 115.11.
To account for these costs, DHS adds an additional category of
implementation costs for immigration detention facilities.
Implementation costs will vary by the size of the facility, a
facility's current practices, and other facility-specific factors. DHS
assumes the costs any additional implementation costs might occur as a
result of the standards with start-up costs, such as entering into
MOUs, rather than standards with action or on-going costs, such as
training. DHS estimates additional implementation costs as 10 percent
of the total costs of standards with a start-up cost. DHS requests
comment on this assumption. The tables below present the estimates for
additional implementation costs. DHS estimates this standard may cost a
facility approximately $1,579 in the first year (10% x ($1,488 for
Sec. 115.12 + $5,330 for Sec. 115.11 + $5,996 for Sec. 115.15 +
$1,488 for Sec. 115.21 + $1,488 for Sec. 115.53)).
xii. Total Cost per Facility
DHS estimates the total cost per immigration detention facility
under the NDS for compliance with the standards is approximately
$40,837 for the first year. In subsequent years, DHS estimates the
costs drop to approximately $31,033. The following table summarizes the
preceding discussion.
Table 8--Estimated Cost per Small Entity under NDS--Immigration
Detention Facilities
------------------------------------------------------------------------
Standard Cost in year 1 On-going cost
------------------------------------------------------------------------
115.12 Consulting with non-DHS $1,488 $0
entities for the confinement of
detainees......................
115.11 Zero tolerance of sexual 5,330 3,647
abuse; PSA Coordinator *.......
115.15 Limits to cross-gender 5,996 5,435
viewing and searches *.........
115.21 Evidence protocols and 1,488 0
forensic medical examinations..
115.31 Staff training *......... 18,914 18,914
115.327 Other training *........ 2,129 2,129
115.34 Specialized training: 468 0
Investigations.................
115.35 Specialized training: 1,957 0
Medical and mental health care.
115.53 Detainee access to 1,488 0
outside confidential support
Services.......................
Additional Implementation 1,579 908
Costs*.........................
---------------------------------------
Total....................... 40,837 31,033
------------------------------------------------------------------------
* Standards for which DHS estimates there may be on-going costs.
[[Page 13165]]
6. A Description of the Steps the Agency Has Taken to Minimize Any
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including A Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule, and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affected the
Impact on Small Entities Was Rejected
DHS considered a longer phase-in period for small entities subject
to the rulemaking. A longer period would reduce immediate burden on
small entities with current contracts. The current requirements require
that facilities comply with the standards upon renewal of a contract or
exercising a contract option. Essentially, this would phase-in all
authorized immigration detention facilities within a year of the
effective date of the final rule. DHS is willing to work with small
facilities upon contract renewal in implementing these standards.
DHS also considered requiring lesser standards, such as those under
the NDS or the 2008 PBNDS for small entities. However, DHS rejected
this alternative because DHS believes in the importance of protecting
detainees from, and providing treatment after, instances of sexual
abuse, regardless of a facility's size. In the IRFA DHS requested
comment on additional alternatives that might help reduce the impact on
small entities. No comments were received in response to this request.
G. Paperwork Reduction Act
DHS is setting standards for the prevention, detection, and
response to sexual abuse in its confinement facilities. For DHS
facilities and as incorporated in DHS contracts, these standards
require covered facilities to retain and report to the agency certain
specified information relating to sexual abuse prevention planning,
responsive planning, education and training, and investigations, as
well as to collect, retain, and report to the agency certain specified
information relating to allegations of sexual abuse within the covered
facility. As stated in the NPRM, DHS believes that most of the
information collection requirements placed on facilities are already
requirements derived from existing contracts with immigration detention
facilities. However, DHS included these requirements as part of an
information collection request associated with the proposed rule,
pursuant to the Paperwork Reduction Act of 1995 (PRA), so as to ensure
clarity of requirements associated with this rulemaking.
This final rule contains a new collection of information covered by
the PRA. The information collection described by DHS in the proposed
rule garnered no comments from the public, and thus no changes were
necessitated based upon any comments pertaining to the PRA aspects of
the rule. However, changes to the PREA standards made in response to
substantive comments on the NPRM and due to additional analysis
resulted in the total PRA burden hours being greater than those
estimated in DHS's initial information collection request.
DHS has submitted a revised information collection request to OMB
for review and clearance in accordance with the review procedures of
the PRA.
List of Subjects in 6 CFR Part 115
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Accordingly, Part 115 of Title 6 of the Code of Federal Regulations
is added to read as follows:
PART 115--SEXUAL ABUSE AND ASSAULT PREVENTION STANDARDS
Sec.
115.5 General definitions.
115.6 Definitions related to sexual abuse and assault.
Subpart A--Standards for Immigration Detention Facilities
Coverage
115.10 Coverage of DHS immigration detention facilities.
Prevention Planning
115.11 Zero tolerance of sexual abuse; Prevention of Sexual Assault
Coordinator.
115.12 Contracting with non-DHS entities for the confinement of
detainees.
115.13 Detainee supervision and monitoring.
115.14 Juvenile and family detainees.
115.15 Limits to cross-gender viewing and searches.
115.16 Accommodating detainees with disabilities and detainees who
are limited English proficient.
115.17 Hiring and promotion decisions.
115.18 Upgrades to facilities and technologies.
Responsive Planning
115.21 Evidence protocols and forensic medical examinations.
115.22 Policies to ensure investigation of allegations and
appropriate agency oversight.
Training and Education
115.31 Staff training.
115.32 Other training.
115.33 Detainee education.
115.34 Specialized training: Investigations.
115.35 Specialized training: Medical and mental health care.
Assessment for Risk of Sexual Victimization and Abusiveness
115.41 Assessment for risk of victimization and abusiveness.
115.42 Use of assessment information.
115.43 Protective custody.
Reporting
115.51 Detainee reporting.
115.52 Grievances.
115.53 Detainee access to outside confidential support services.
115.54 Third-party reporting.
Official Response Following a Detainee Report
115.61 Staff reporting duties.
115.62 Protection duties.
115.63 Reporting to other confinement facilities.
115.64 Responder duties.
115.65 Coordinated response.
115.66 Protection of detainees from contact with alleged abusers.
115.67 Agency protection against retaliation.
115.68 Post-allegation protective custody.
Investigations
115.71 Criminal and administrative investigations.
115.72 Evidentiary standard for administrative investigations.
115.73 Reporting to detainees.
Discipline
115.76 Disciplinary sanctions for staff.
115.77 Corrective action for contractors and volunteers.
115.78 Disciplinary sanctions for detainees.
Medical and Mental Care
115.81 Medical and mental health assessments; history of sexual
abuse.
115.82 Access to emergency medical and mental health services.
115.83 Ongoing medical and mental health care for sexual abuse
victims and abusers.
Data Collection and Review
115.86 Sexual abuse incident reviews.
115.87 Data collection.
115.88 Data review for corrective action.
115.89 Data storage, publication, and destruction.
Audits and Compliance
115.93 Audits of standards.
Additional Provisions in Agency Policies
115.95 Additional provisions in agency policies.
Subpart B--Standards for DHS Holding Facilities
Coverage
115.110 Coverage of DHS holding facilities.
[[Page 13166]]
Prevention Planning
115.111 Zero tolerance of sexual abuse; Prevention of Sexual Assault
Coordinator.
115.112 Contracting with non-DHS entities for the confinement of
detainees.
115.113 Detainee supervision and monitoring.
115.114 Juvenile and family detainees.
115.115 Limits to cross-gender viewing and searches.
115.116 Accommodating detainees with disabilities and detainees who
are limited English proficient.
115.117 Hiring and promotion decisions.
115.118 Upgrades to facilities and technologies.
Responsive Planning
115.121 Evidence protocols and forensic medical examinations.
115.122 Policies to ensure investigation of allegations and
appropriate agency oversight.
Training and Education
115.131 Employee, contractor, and volunteer training.
115.132 Notification to detainees of the agency's zero-tolerance
policy.
115.133 [Reserved]
115.134 Specialized training: Investigations.
Assessment for Risk of Sexual Victimization and Abusiveness
115.141 Assessment for risk of victimization and abusiveness.
Reporting
115.151 Detainee reporting.
115.152-115.153 [Reserved]
115.154 Third-party reporting.
Official Response Following a Detainee Report
115.161 Staff reporting duties.
115.162 Agency protection duties.
115.163 Reporting to other confinement facilities.
115.164 Responder duties.
115.165 Coordinated response.
115.166 Protection of detainees from contact with alleged abusers.
115.167 Agency protection against retaliation.
Investigations
115.171 Criminal and administrative investigations.
115.172 Evidentiary standard for administrative investigations.
Discipline
115.176 Disciplinary sanctions for staff.
115.177 Corrective action for contractors and volunteers.
Medical and Mental Care
115.181 [Reserved]
115.182 Access to emergency medical services.
Data Collection and Review
115.186 Sexual abuse incident reviews.
115.187 Data collection.
115.188 Data review for corrective action.
115.189 Data storage, publication, and destruction.
Audits and Compliance
115.193 Audits of standards.
Additional Provisions in Agency Policies
115.195 Additional provisions in agency policies.
Subpart C--External Auditing and Corrective Action
115.201 Scope of audits.
115.202 Auditor qualifications.
115.203 Audit contents and findings.
115.204 Audit corrective action plan.
115.205 Audit appeals.
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223,
1224, 1225, 1226, 1227, 1228, 1231, 1251, 1253, 1255, 1330, 1362; 18
U.S.C. 4002, 4013(c)(4); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C.
101, et seq.); 8 CFR part 2.
Sec. 115.5 General definitions.
For purposes of this part, the term--
Agency means the unit or component of DHS responsible for operating
or supervising any facility, or part of a facility, that confines
detainees.
Agency head means the principal official of an agency.
Contractor means a person who or entity that provides services on a
recurring basis pursuant to a contractual agreement with the agency or
facility.
Detainee means any person detained in an immigration detention
facility or holding facility.
Employee means a person who works directly for the agency.
Exigent circumstances means any set of temporary and unforeseen
circumstances that require immediate action in order to combat a threat
to the security or institutional order of a facility or a threat to the
safety or security of any person.
Facility means a place, building (or part thereof), set of
buildings, structure, or area (whether or not enclosing a building or
set of buildings) that was built or retrofitted for the purpose of
detaining individuals and is routinely used by the agency to detain
individuals in its custody. References to requirements placed on
facilities extend to the entity responsible for the direct operation of
the facility.
Facility head means the principal official responsible for a
facility.
Family unit means a group of detainees that includes one or more
non-United States citizen juvenile(s) accompanied by his/her/their
parent(s) or legal guardian(s), whom the agency will evaluate for
safety purposes to protect juveniles from sexual abuse and violence.
Gender nonconforming means having an appearance or manner that does
not conform to traditional societal gender expectations.
Holding facility means a facility that contains holding cells, cell
blocks, or other secure enclosures that are:
(1) Under the control of the agency; and
(2) Primarily used for the short-term confinement of individuals
who have recently been detained, or are being transferred to or from a
court, jail, prison, other agency, or other unit of the facility or
agency.
Immigration detention facility means a confinement facility
operated by or pursuant to contract with U.S. Immigration and Customs
Enforcement (ICE) that routinely holds persons for over 24 hours
pending resolution or completion of immigration removal operations or
processes, including facilities that are operated by ICE, facilities
that provide detention services under a contract awarded by ICE, and
facilities used by ICE pursuant to an Intergovernmental Service
Agreement.
Intersex means having sexual or reproductive anatomy or chromosomal
pattern that does not seem to fit typical definitions of male or
female. Intersex medical conditions are sometimes referred to as
disorders of sex development.
Juvenile means any person under the age of 18.
Law enforcement staff means officers or agents of the agency or
facility that are responsible for the supervision and control of
detainees in a holding facility.
Medical practitioner means a health professional who, by virtue of
education, credentials, and experience, is permitted by law to evaluate
and care for patients within the scope of his or her professional
practice. A ``qualified medical practitioner'' refers to such a
professional who has also successfully completed specialized training
for treating sexual abuse victims.
Mental health practitioner means a mental health professional who,
by virtue of education, credentials, and experience, is permitted by
law to evaluate and care for patients within the scope of his or her
professional practice. A ``qualified mental health practitioner''
refers to such a professional who has also successfully completed
specialized training for treating sexual abuse victims.
Pat-down search means a sliding or patting of the hands over the
clothed body of a detainee by staff to determine whether the individual
possesses contraband.
Security staff means employees primarily responsible for the
supervision and control of detainees in housing units, recreational
areas, dining
[[Page 13167]]
areas, and other program areas of an immigration detention facility.
Staff means employees or contractors of the agency or facility,
including any entity that operates within the facility.
Strip search means a search that requires a person to remove or
arrange some or all clothing so as to permit a visual inspection of the
person's breasts, buttocks, or genitalia.
Substantiated allegation means an allegation that was investigated
and determined to have occurred.
Transgender means a person whose gender identity (i.e., internal
sense of feeling male or female) is different from the person's
assigned sex at birth.
Unfounded allegation means an allegation that was investigated and
determined not to have occurred.
Unsubstantiated allegation means an allegation that was
investigated and the investigation produced insufficient evidence to
make a final determination as to whether or not the event occurred.
Volunteer means an individual who donates time and effort on a
recurring basis to enhance the activities and programs of the agency or
facility.
Sec. 115.6 Definitions related to sexual abuse and assault.
For purposes of this part, the term--
Sexual abuse includes--
(1) Sexual abuse and assault of a detainee by another detainee; and
(2) Sexual abuse and assault of a detainee by a staff member,
contractor, or volunteer.
Sexual abuse of a detainee by another detainee includes any of the
following acts by one or more detainees, prisoners, inmates, or
residents of the facility in which the detainee is housed who, by
force, coercion, or intimidation, or if the victim did not consent or
was unable to consent or refuse, engages in or attempts to engage in:
(1) Contact between the penis and the vulva or anus and, for
purposes of this paragraph (1), contact involving the penis upon
penetration, however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) Penetration, however slight, of the anal or genital opening of
another person by a hand or finger or by any object;
(4) Touching of the genitalia, anus, groin, breast, inner thighs or
buttocks, either directly or through the clothing, with an intent to
abuse, humiliate, harass, degrade or arouse or gratify the sexual
desire of any person; or
(5) Threats, intimidation, or other actions or communications by
one or more detainees aimed at coercing or pressuring another detainee
to engage in a sexual act.
Sexual abuse of a detainee by a staff member, contractor, or
volunteer includes any of the following acts, if engaged in by one or
more staff members, volunteers, or contract personnel who, with or
without the consent of the detainee, engages in or attempts to engage
in:
(1) Contact between the penis and the vulva or anus and, for
purposes of this paragraph (1), contact involving the penis upon
penetration, however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) Penetration, however slight, of the anal or genital opening of
another person by a hand or finger or by any object that is unrelated
to official duties or where the staff member, contractor, or volunteer
has the intent to abuse, arouse, or gratify sexual desire;
(4) Intentional touching of the genitalia, anus, groin, breast,
inner thighs or buttocks, either directly or through the clothing, that
is unrelated to official duties or where the staff member, contractor,
or volunteer has the intent to abuse, arouse, or gratify sexual desire;
(5) Threats, intimidation, harassment, indecent, profane or abusive
language, or other actions or communications, aimed at coercing or
pressuring a detainee to engage in a sexual act;
(6) Repeated verbal statements or comments of a sexual nature to a
detainee;
(7) Any display of his or her uncovered genitalia, buttocks, or
breast in the presence of an inmate, detainee, or resident, or
(8) Voyeurism, which is defined as the inappropriate visual
surveillance of a detainee for reasons unrelated to official duties.
Where not conducted for reasons relating to official duties, the
following are examples of voyeurism: staring at a detainee who is using
a toilet in his or her cell to perform bodily functions; requiring an
inmate detainee to expose his or her buttocks, genitals, or breasts; or
taking images of all or part of a detainee's naked body or of a
detainee performing bodily functions.
Subpart A--Standards for Immigration Detention Facilities Coverage
Sec. 115.10 Coverage of DHS immigration detention facilities.
This subpart covers ICE immigration detention facilities. Standards
set forth in this subpart A are not applicable to Department of
Homeland Security (DHS) holding facilities.
Prevention Planning
Sec. 115.11 Zero tolerance of sexual abuse; Prevention of Sexual
Assault Coordinator.
(a) The agency shall have a written policy mandating zero tolerance
toward all forms of sexual abuse and outlining the agency's approach to
preventing, detecting, and responding to such conduct.
(b) The agency shall employ or designate an upper-level, agency-
wide Prevention of Sexual Assault Coordinator (PSA Coordinator) with
sufficient time and authority to develop, implement, and oversee agency
efforts to comply with these standards in all of its immigration
detention facilities.
(c) Each facility shall have a written policy mandating zero
tolerance toward all forms of sexual abuse and outlining the facility's
approach to preventing, detecting, and responding to such conduct. The
agency shall review and approve each facility's written policy.
(d) Each facility shall employ or designate a Prevention of Sexual
Assault Compliance Manager (PSA Compliance Manager) who shall serve as
the facility point of contact for the agency PSA Coordinator and who
has sufficient time and authority to oversee facility efforts to comply
with facility sexual abuse prevention and intervention policies and
procedures.
Sec. 115.12 Contracting with non-DHS entities for the confinement of
detainees.
(a) When contracting for the confinement of detainees in
immigration detention facilities operated by non-DHS private or public
agencies or other entities, including other government agencies, the
agency shall include in any new contracts, contract renewals, or
substantive contract modifications the entity's obligation to adopt and
comply with these standards.
(b) Any new contracts, contract renewals, or substantive contract
modifications shall provide for agency contract monitoring to ensure
that the contractor is complying with these standards.
Sec. 115.13 Detainee supervision and monitoring.
(a) Each facility shall ensure that it maintains sufficient
supervision of detainees, including through appropriate staffing levels
and, where applicable, video monitoring, to protect detainees against
sexual abuse.
(b) Each facility shall develop and document comprehensive detainee
supervision guidelines to determine and meet the facility's detainee
supervision needs, and shall review those guidelines at least annually.
[[Page 13168]]
(c) In determining adequate levels of detainee supervision and
determining the need for video monitoring, the facility shall take into
consideration generally accepted detention and correctional practices,
any judicial findings of inadequacy, the physical layout of each
facility, the composition of the detainee population, the prevalence of
substantiated and unsubstantiated incidents of sexual abuse, the
findings and recommendations of sexual abuse incident review reports,
and any other relevant factors, including but not limited to the length
of time detainees spend in agency custody.
(d) Each facility shall conduct frequent unannounced security
inspections to identify and deter sexual abuse of detainees. Such
inspections shall be implemented for night as well as day shifts. Each
facility shall prohibit staff from alerting others that these security
inspections are occurring, unless such announcement is related to the
legitimate operational functions of the facility.
Sec. 115.14 Juvenile and family detainees.
(a) Juveniles shall be detained in the least restrictive setting
appropriate to the juvenile's age and special needs, provided that such
setting is consistent with the need to protect the juvenile's well-
being and that of others, as well as with any other laws, regulations,
or legal requirements.
(b) The facility shall hold juveniles apart from adult detainees,
minimizing sight, sound, and physical contact, unless the juvenile is
in the presence of an adult member of the family unit, and provided
there are no safety or security concerns with the arrangement.
(c) In determining the existence of a family unit for detention
purposes, the agency shall seek to obtain reliable evidence of a family
relationship.
(d) The agency and facility shall provide priority attention to
unaccompanied alien children as defined by 6 U.S.C. 279(g)(2),
including transfer to a Department of Health and Human Services Office
of Refugee Resettlement facility within 72 hours, except in exceptional
circumstances, in accordance with 8 U.S.C. 1232(b)(3).
(e) If a juvenile who is an unaccompanied alien child has been
convicted as an adult of a crime related to sexual abuse, the agency
shall provide the facility and the Department of Health and Human
Services Office of Refugee Resettlement with the releasable information
regarding the conviction(s) to ensure the appropriate placement of the
alien in a Department of Health and Human Services Office of Refugee
Resettlement facility.
Sec. 115.15 Limits to cross-gender viewing and searches.
(a) Searches may be necessary to ensure the safety of officers,
civilians and detainees; to detect and secure evidence of criminal
activity; and to promote security, safety, and related interests at
immigration detention facilities.
(b) Cross-gender pat-down searches of male detainees shall not be
conducted unless, after reasonable diligence, staff of the same gender
is not available at the time the pat-down search is required or in
exigent circumstances.
(c) Cross-gender pat-down searches of female detainees shall not be
conducted unless in exigent circumstances.
(d) All cross-gender pat-down searches shall be documented.
(e) Cross-gender strip searches or cross-gender visual body cavity
searches shall not be conducted except in exigent circumstances,
including consideration of officer safety, or when performed by medical
practitioners. Facility staff shall not conduct visual body cavity
searches of juveniles and, instead, shall refer all such body cavity
searches of juveniles to a medical practitioner.
(f) All strip searches and visual body cavity searches shall be
documented.
(g) Each facility shall implement policies and procedures that
enable detainees to shower, perform bodily functions, and change
clothing without being viewed by staff of the opposite gender, except
in exigent circumstances or when such viewing is incidental to routine
cell checks or is otherwise appropriate in connection with a medical
examination or monitored bowel movement. Such policies and procedures
shall require staff of the opposite gender to announce their presence
when entering an area where detainees are likely to be showering,
performing bodily functions, or changing clothing.
(h) The facility shall permit detainees in Family Residential
Facilities to shower, perform bodily functions, and change clothing
without being viewed by staff, except in exigent circumstances or when
such viewing is incidental to routine cell checks or is otherwise
appropriate in connection with a medical examination or monitored bowel
movement.
(i) The facility shall not search or physically examine a detainee
for the sole purpose of determining the detainee's genital
characteristics. If the detainee's gender is unknown, it may be
determined during conversations with the detainee, by reviewing medical
records, or, if necessary, learning that information as part of a
standard medical examination that all detainees must undergo as part of
intake or other processing procedure conducted in private, by a medical
practitioner.
(j) The agency shall train security staff in proper procedures for
conducting pat-down searches, including cross-gender pat-down searches
and searches of transgender and intersex detainees. All pat-down
searches shall be conducted in a professional and respectful manner,
and in the least intrusive manner possible, consistent with security
needs and agency policy, including consideration of officer safety.
Sec. 115.16 Accommodating detainees with disabilities and detainees
who are limited English proficient.
(a) The agency and each facility shall take appropriate steps to
ensure that detainees with disabilities (including, for example,
detainees who are deaf or hard of hearing, those who are blind or have
low vision, or those who have intellectual, psychiatric, or speech
disabilities) have an equal opportunity to participate in or benefit
from all aspects of the agency's and facility's efforts to prevent,
detect, and respond to sexual abuse. Such steps shall include, when
necessary to ensure effective communication with detainees who are deaf
or hard of hearing, providing access to in-person, telephonic, or video
interpretive services that enable effective, accurate, and impartial
interpretation, both receptively and expressively, using any necessary
specialized vocabulary. In addition, the agency and facility shall
ensure that any written materials related to sexual abuse are provided
in formats or through methods that ensure effective communication with
detainees with disabilities, including detainees who have intellectual
disabilities, limited reading skills, or who are blind or have low
vision. An agency or facility is not required to take actions that it
can demonstrate would result in a fundamental alteration in the nature
of a service, program, or activity, or in undue financial and
administrative burdens, as those terms are used in regulations
promulgated under title II of the Americans with Disabilities Act, 28
CFR 35.164.
(b) The agency and each facility shall take steps to ensure
meaningful access to all aspects of the agency's and facility's efforts
to prevent, detect, and respond to sexual abuse to detainees who are
limited English proficient, including steps to provide in-person or
telephonic interpretive services that enable effective, accurate, and
impartial
[[Page 13169]]
interpretation, both receptively and expressively, using any necessary
specialized vocabulary.
(c) In matters relating to allegations of sexual abuse, the agency
and each facility shall provide in-person or telephonic interpretation
services that enable effective, accurate, and impartial interpretation,
by someone other than another detainee, unless the detainee expresses a
preference for another detainee to provide interpretation and the
agency determines that such interpretation is appropriate and
consistent with DHS policy. The provision of interpreter services by
minors, alleged abusers, detainees who witnessed the alleged abuse, and
detainees who have a significant relationship with the alleged abuser
is not appropriate in matters relating to allegations of sexual abuse.
Sec. 115.17 Hiring and promotion decisions.
(a) An agency or facility shall not hire or promote anyone who may
have contact with detainees, and shall not enlist the services of any
contractor or volunteer who may have contact with detainees, who has
engaged in sexual abuse in a prison, jail, holding facility, community
confinement facility, juvenile facility, or other institution (as
defined in 42 U.S.C. 1997); who has been convicted of engaging or
attempting to engage in sexual activity facilitated by force, overt or
implied threats of force, or coercion, or if the victim did not consent
or was unable to consent or refuse; or who has been civilly or
administratively adjudicated to have engaged in such activity.
(b) An agency or facility considering hiring or promoting staff
shall ask all applicants who may have contact with detainees directly
about previous misconduct described in paragraph (a) of this section,
in written applications or interviews for hiring or promotions and in
any interviews or written self-evaluations conducted as part of reviews
of current employees. Agencies and facilities shall also impose upon
employees a continuing affirmative duty to disclose any such
misconduct. The agency, consistent with law, shall make its best
efforts to contact all prior institutional employers of an applicant
for employment, to obtain information on substantiated allegations of
sexual abuse or any resignation during a pending investigation of
alleged sexual abuse.
(c) Before hiring new staff who may have contact with detainees,
the agency or facility shall conduct a background investigation to
determine whether the candidate for hire is suitable for employment
with the facility or agency, including a criminal background records
check. Upon request by the agency, the facility shall submit for the
agency's approval written documentation showing the detailed elements
of the facility's background check for each staff member and the
facility's conclusions. The agency shall conduct an updated background
investigation every five years for agency employees who may have
contact with detainees. The facility shall require an updated
background investigation every five years for those facility staff who
may have contact with detainees and who work in immigration-only
detention facilities.
(d) The agency or facility shall also perform a background
investigation before enlisting the services of any contractor who may
have contact with detainees. Upon request by the agency, the facility
shall submit for the agency's approval written documentation showing
the detailed elements of the facility's background check for each
contractor and the facility's conclusions.
(e) Material omissions regarding such misconduct, or the provision
of materially false information, shall be grounds for termination or
withdrawal of an offer of employment, as appropriate.
(f) Unless prohibited by law, the agency shall provide information
on substantiated allegations of sexual abuse involving a former
employee upon receiving a request from an institutional employer for
whom such employee has applied to work.
(g) In the event the agency contracts with a facility for the
confinement of detainees, the requirements of this section otherwise
applicable to the agency also apply to the facility and its staff.
Sec. 115.18 Upgrades to facilities and technologies.
(a) When designing or acquiring any new facility and in planning
any substantial expansion or modification of existing facilities, the
facility or agency, as appropriate, shall consider the effect of the
design, acquisition, expansion, or modification upon their ability to
protect detainees from sexual abuse.
(b) When installing or updating a video monitoring system,
electronic surveillance system, or other monitoring technology in an
immigration detention facility, the facility or agency, as appropriate,
shall consider how such technology may enhance their ability to protect
detainees from sexual abuse.
Responsive Planning
Sec. 115.21 Evidence protocols and forensic medical examinations.
(a) To the extent that the agency or facility is responsible for
investigating allegations of sexual abuse involving detainees, it shall
follow a uniform evidence protocol that maximizes the potential for
obtaining usable physical evidence for administrative proceedings and
criminal prosecutions. The protocol shall be developed in coordination
with DHS and shall be developmentally appropriate for juveniles, where
applicable.
(b) The agency and each facility developing an evidence protocol
referred to in paragraph (a) of this section, shall consider how best
to utilize available community resources and services to provide
valuable expertise and support in the areas of crisis intervention and
counseling to most appropriately address victims' needs. Each facility
shall establish procedures to make available, to the full extent
possible, outside victim services following incidents of sexual abuse;
the facility shall attempt to make available to the victim a victim
advocate from a rape crisis center. If a rape crisis center is not
available to provide victim advocate services, the agency shall provide
these services by making available a qualified staff member from a
community-based organization, or a qualified agency staff member. A
qualified agency staff member or a qualified community-based staff
member means an individual who has received education concerning sexual
assault and forensic examination issues in general. The outside or
internal victim advocate shall provide emotional support, crisis
intervention, information, and referrals.
(c) Where evidentiarily or medically appropriate, at no cost to the
detainee, and only with the detainee's consent, the facility shall
arrange for an alleged victim detainee to undergo a forensic medical
examination by qualified health care personnel, including a Sexual
Assault Forensic Examiner (SAFE) or Sexual Assault Nurse Examiner
(SANE) where practicable. If SAFEs or SANEs cannot be made available,
the examination can be performed by other qualified health care
personnel.
(d) As requested by a victim, the presence of his or her outside or
internal victim advocate, including any available victim advocacy
services offered by a hospital conducting a forensic exam, shall be
allowed for support during a forensic exam and investigatory
interviews.
[[Page 13170]]
(e) To the extent that the agency is not responsible for
investigating allegations of sexual abuse, the agency or the facility
shall request that the investigating agency follow the requirements of
paragraphs (a) through (d) of this section.
Sec. 115.22 Policies to ensure investigation of allegations and
appropriate agency oversight.
(a) The agency shall establish an agency protocol, and shall
require each facility to establish a facility protocol, to ensure that
each allegation of sexual abuse is investigated by the agency or
facility, or referred to an appropriate investigative authority. The
agency shall ensure that an administrative or criminal investigation is
completed for all allegations of sexual abuse.
(b) The agency shall ensure that the agency and facility protocols
required by paragraph (a) of this section, include a description of
responsibilities of the agency, the facility, and any other
investigating entities; and require the documentation and maintenance,
for at least five years, of all reports and referrals of allegations of
sexual abuse.
(c) The agency shall post its protocols on its Web site; each
facility shall also post its protocols on its Web site, if it has one,
or otherwise make the protocol available to the public.
(d) Each facility protocol shall ensure that all allegations are
promptly reported to the agency as described in paragraphs (e) and (f)
of this section, and, unless the allegation does not involve
potentially criminal behavior, are promptly referred for investigation
to an appropriate law enforcement agency with the legal authority to
conduct criminal investigations. A facility may separately, and in
addition to the above reports and referrals, conduct its own
investigation.
(e) When a detainee, prisoner, inmate, or resident of the facility
in which an alleged detainee victim is housed is alleged to be the
perpetrator of detainee sexual abuse, the facility shall ensure that
the incident is promptly reported to the Joint Intake Center, the ICE
Office of Professional Responsibility or the DHS Office of Inspector
General, as well as the appropriate ICE Field Office Director, and, if
it is potentially criminal, referred to an appropriate law enforcement
agency having jurisdiction for investigation.
(f) When a staff member, contractor, or volunteer is alleged to be
the perpetrator of detainee sexual abuse, the facility shall ensure
that the incident is promptly reported to the Joint Intake Center, the
ICE Office of Professional Responsibility or the DHS Office of
Inspector General, as well as to the appropriate ICE Field Office
Director, and to the local government entity or contractor that owns or
operates the facility. If the incident is potentially criminal, the
facility shall ensure that it is promptly referred to an appropriate
law enforcement agency having jurisdiction for investigation.
(g) The agency shall ensure that all allegations of detainee sexual
abuse are promptly reported to the PSA Coordinator and to the
appropriate offices within the agency and within DHS to ensure
appropriate oversight of the investigation.
(h) The agency shall ensure that any alleged detainee victim of
sexual abuse that is criminal in nature is provided timely access to U
nonimmigrant status information.
Training and Education
Sec. 115.31 Staff training.
(a) The agency shall train, or require the training of, all
employees who may have contact with immigration detainees, and all
facility staff, to be able to fulfill their responsibilities under this
part, including training on:
(1) The agency's and the facility's zero-tolerance policies for all
forms of sexual abuse;
(2) The right of detainees and staff to be free from sexual abuse,
and from retaliation for reporting sexual abuse;
(3) Definitions and examples of prohibited and illegal sexual
behavior;
(4) Recognition of situations where sexual abuse may occur;
(5) Recognition of physical, behavioral, and emotional signs of
sexual abuse, and methods of preventing and responding to such
occurrences;
(6) How to avoid inappropriate relationships with detainees;
(7) How to communicate effectively and professionally with
detainees, including lesbian, gay, bisexual, transgender, intersex, or
gender nonconforming detainees;
(8) Procedures for reporting knowledge or suspicion of sexual
abuse; and
(9) The requirement to limit reporting of sexual abuse to personnel
with a need-to-know in order to make decisions concerning the victim's
welfare and for law enforcement or investigative purposes.
(b) All current facility staff, and all agency employees who may
have contact with immigration detention facility detainees, shall be
trained within one year of May 6, 2014, and the agency or facility
shall provide refresher information every two years.
(c) The agency and each facility shall document that staff that may
have contact with immigration facility detainees have completed the
training.
Sec. 115.32 Other training.
(a) The facility shall ensure that all volunteers and other
contractors (as defined in paragraph (d) of this section) who have
contact with detainees have been trained on their responsibilities
under the agency's and the facility's sexual abuse prevention,
detection, intervention and response policies and procedures.
(b) The level and type of training provided to volunteers and other
contractors shall be based on the services they provide and level of
contact they have with detainees, but all volunteers and other
contractors who have contact with detainees shall be notified of the
agency's and the facility's zero-tolerance policies regarding sexual
abuse and informed how to report such incidents.
(c) Each facility shall receive and maintain written confirmation
that volunteers and other contractors who have contact with immigration
facility detainees have completed the training.
(d) In this section, the term other contractor means a person who
provides services on a non-recurring basis to the facility pursuant to
a contractual agreement with the agency or facility.
Sec. 115.33 Detainee education.
(a) During the intake process, each facility shall ensure that the
detainee orientation program notifies and informs detainees about the
agency's and the facility's zero-tolerance policies for all forms of
sexual abuse and includes (at a minimum) instruction on:
(1) Prevention and intervention strategies;
(2) Definitions and examples of detainee-on-detainee sexual abuse,
staff-on-detainee sexual abuse and coercive sexual activity;
(3) Explanation of methods for reporting sexual abuse, including to
any staff member, including a staff member other than an immediate
point-of-contact line officer (e.g., the compliance manager or a mental
health specialist), the DHS Office of Inspector General, and the Joint
Intake Center;
(4) Information about self-protection and indicators of sexual
abuse;
(5) Prohibition against retaliation, including an explanation that
reporting sexual abuse shall not negatively impact the detainee's
immigration proceedings; and
(6) The right of a detainee who has been subjected to sexual abuse
to receive treatment and counseling.
[[Page 13171]]
(b) Each facility shall provide the detainee notification,
orientation, and instruction in formats accessible to all detainees,
including those who are limited English proficient, deaf, visually
impaired or otherwise disabled, as well as to detainees who have
limited reading skills.
(c) The facility shall maintain documentation of detainee
participation in the intake process orientation.
(d) Each facility shall post on all housing unit bulletin boards
the following notices:
(1) The DHS-prescribed sexual assault awareness notice;
(2) The name of the Prevention of Sexual Abuse Compliance Manager;
and
(3) The name of local organizations that can assist detainees who
have been victims of sexual abuse.
(e) The facility shall make available and distribute the DHS-
prescribed ``Sexual Assault Awareness Information'' pamphlet.
(f) Information about reporting sexual abuse shall be included in
the agency Detainee Handbook made available to all immigration
detention facility detainees.
Sec. 115.34 Specialized training: Investigations.
(a) In addition to the general training provided to all facility
staff and employees pursuant to Sec. 115.31, the agency or facility
shall provide specialized training on sexual abuse and effective cross-
agency coordination to agency or facility investigators, respectively,
who conduct investigations into allegations of sexual abuse at
immigration detention facilities. All investigations into alleged
sexual abuse must be conducted by qualified investigators.
(b) The agency and facility must maintain written documentation
verifying specialized training provided to investigators pursuant to
this section.
Sec. 115.35 Specialized training: Medical and mental health care.
(a) The agency shall provide specialized training to DHS or agency
employees who serve as full- and part-time medical practitioners or
full- and part-time mental health practitioners in immigration
detention facilities where medical and mental health care is provided.
(b) The training required by this section shall cover, at a
minimum, the following topics:
(1) How to detect and assess signs of sexual abuse;
(2) How to respond effectively and professionally to victims of
sexual abuse,
(3) How and to whom to report allegations or suspicions of sexual
abuse, and
(4) How to preserve physical evidence of sexual abuse. If medical
staff employed by the agency conduct forensic examinations, such
medical staff shall receive the appropriate training to conduct such
examinations.
(c) The agency shall review and approve the facility's policy and
procedures to ensure that facility medical staff is trained in
procedures for examining and treating victims of sexual abuse, in
facilities where medical staff may be assigned these activities.
Assessment for Risk of Sexual Victimization and Abusiveness
Sec. 115.41 Assessment for risk of victimization and abusiveness.
(a) The facility shall assess all detainees on intake to identify
those likely to be sexual aggressors or sexual abuse victims and shall
house detainees to prevent sexual abuse, taking necessary steps to
mitigate any such danger. Each new arrival shall be kept separate from
the general population until he/she is classified and may be housed
accordingly.
(b) The initial classification process and initial housing
assignment should be completed within twelve hours of admission to the
facility.
(c) The facility shall also consider, to the extent that the
information is available, the following criteria to assess detainees
for risk of sexual victimization:
(1) Whether the detainee has a mental, physical, or developmental
disability;
(2) The age of the detainee;
(3) The physical build and appearance of the detainee;
(4) Whether the detainee has previously been incarcerated or
detained;
(5) The nature of the detainee's criminal history;
(6) Whether the detainee has any convictions for sex offenses
against an adult or child;
(7) Whether the detainee has self-identified as gay, lesbian,
bisexual, transgender, intersex, or gender nonconforming;
(8) Whether the detainee has self-identified as having previously
experienced sexual victimization; and
(9) The detainee's own concerns about his or her physical safety.
(d) The initial screening shall consider prior acts of sexual
abuse, prior convictions for violent offenses, and history of prior
institutional violence or sexual abuse, as known to the facility, in
assessing detainees for risk of being sexually abusive.
(e) The facility shall reassess each detainee's risk of
victimization or abusiveness between 60 and 90 days from the date of
initial assessment, and at any other time when warranted based upon the
receipt of additional, relevant information or following an incident of
abuse or victimization.
(f) Detainees shall not be disciplined for refusing to answer, or
for not disclosing complete information in response to, questions asked
pursuant to paragraphs (c)(1), (c)(7), (c)(8), or (c)(9) of this
section.
(g) The facility shall implement appropriate controls on the
dissemination within the facility of responses to questions asked
pursuant to this standard in order to ensure that sensitive information
is not exploited to the detainee's detriment by staff or other
detainees or inmates.
Sec. 115.42 Use of assessment information.
(a) The facility shall use the information from the risk assessment
under Sec. 115.41 of this part to inform assignment of detainees to
housing, recreation and other activities, and voluntary work. The
agency shall make individualized determinations about how to ensure the
safety of each detainee.
(b) When making assessment and housing decisions for a transgender
or intersex detainee, the facility shall consider the detainee's gender
self-identification and an assessment of the effects of placement on
the detainee's health and safety. The facility shall consult a medical
or mental health professional as soon as practicable on this
assessment. The facility should not base placement decisions of
transgender or intersex detainees solely on the identity documents or
physical anatomy of the detainee; a detainee's self-identification of
his/her gender and self-assessment of safety needs shall always be
taken into consideration as well. The facility's placement of a
transgender or intersex detainee shall be consistent with the safety
and security considerations of the facility, and placement and
programming assignments for each transgender or intersex detainee shall
be reassessed at least twice each year to review any threats to safety
experienced by the detainee.
(c) When operationally feasible, transgender and intersex detainees
shall be given the opportunity to shower separately from other
detainees.
Sec. 115.43 Protective custody.
(a) The facility shall develop and follow written procedures
consistent with the standards in this subpart for
[[Page 13172]]
each facility governing the management of its administrative
segregation unit. These procedures, which should be developed in
consultation with the ICE Enforcement and Removal Operations Field
Office Director having jurisdiction for the facility, must document
detailed reasons for placement of an individual in administrative
segregation on the basis of a vulnerability to sexual abuse or assault.
(b) Use of administrative segregation by facilities to protect
detainees vulnerable to sexual abuse or assault shall be restricted to
those instances where reasonable efforts have been made to provide
appropriate housing and shall be made for the least amount of time
practicable, and when no other viable housing options exist, as a last
resort. 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.
(c) Facilities that place vulnerable detainees in administrative
segregation for protective custody shall provide those detainees access
to programs, visitation, counsel and other services available to the
general population to the maximum extent practicable.
(d) Facilities shall implement written procedures for the regular
review of all vulnerable detainees placed in administrative segregation
for their protection, as follows:
(1) A supervisory staff member shall conduct a review within 72
hours of the detainee's placement in administrative segregation to
determine whether segregation is still warranted; and
(2) A supervisory staff member shall conduct, at a minimum, an
identical review after the detainee has spent seven days in
administrative segregation, and every week thereafter for the first 30
days, and every 10 days thereafter.
(e) Facilities shall notify the appropriate ICE Field Office
Director no later than 72 hours after the initial placement into
segregation, whenever a detainee has been placed in administrative
segregation on the basis of a vulnerability to sexual abuse or assault.
(f) Upon receiving notification pursuant to paragraph (e) of this
section, the ICE Field Office Director shall review the placement and
consider:
(1) Whether continued placement in administrative segregation is
warranted;
(2) Whether any alternatives are available and appropriate, such as
placing the detainee in a less restrictive housing option at another
facility or other appropriate custodial options; and
(3) Whether the placement is only as a last resort and when no
other viable housing options exist.
Reporting
Sec. 115.51 Detainee reporting.
(a) The agency and each facility shall develop policies and
procedures to ensure that detainees have multiple ways to privately
report sexual abuse, retaliation for reporting sexual abuse, or staff
neglect or violations of responsibilities that may have contributed to
such incidents. The agency and each facility shall also provide
instructions on how detainees may contact their consular official, the
DHS Office of the Inspector General or, as appropriate, another
designated office, to confidentially and, if desired, anonymously,
report these incidents.
(b) The agency shall also provide, and the facility shall inform
the detainees of, at least one way for detainees to report sexual abuse
to a public or private entity or office that is not part of the agency,
and that is able to receive and immediately forward detainee reports of
sexual abuse to agency officials, allowing the detainee to remain
anonymous upon request.
(c) Facility policies and procedures shall include provisions for
staff to accept reports made verbally, in writing, anonymously, and
from third parties and to promptly document any verbal reports.
Sec. 115.52 Grievances.
(a) The facility shall permit a detainee to file a formal grievance
related to sexual abuse at any time during, after, or in lieu of
lodging an informal grievance or complaint.
(b) The facility shall not impose a time limit on when a detainee
may submit a grievance regarding an allegation of sexual abuse.
(c) The facility shall implement written procedures for identifying
and handling time-sensitive grievances that involve an immediate threat
to detainee health, safety, or welfare related to sexual abuse.
(d) Facility staff shall bring medical emergencies to the immediate
attention of proper medical personnel for further assessment.
(e) The facility shall issue a decision on the grievance within
five days of receipt and shall respond to an appeal of the grievance
decision within 30 days. Facilities shall send all grievances related
to sexual abuse and the facility's decisions with respect to such
grievances to the appropriate ICE Field Office Director at the end of
the grievance process.
(f) To prepare a grievance, a detainee may obtain assistance from
another detainee, the housing officer or other facility staff, family
members, or legal representatives. Staff shall take reasonable steps to
expedite requests for assistance from these other parties.
Sec. 115.53 Detainee access to outside confidential support services.
(a) Each facility shall utilize available community resources and
services to provide valuable expertise and support in the areas of
crisis intervention, counseling, investigation and the prosecution of
sexual abuse perpetrators to most appropriately address victims' needs.
The facility shall maintain or attempt to enter into memoranda of
understanding or other agreements with community service providers or,
if local providers are not available, with national organizations that
provide legal advocacy and confidential emotional support services for
immigrant victims of crime.
(b) Each facility's written policies shall establish procedures to
include outside agencies in the facility's sexual abuse prevention and
intervention protocols, if such resources are available.
(c) Each facility shall make available to detainees information
about local organizations that can assist detainees who have been
victims of sexual abuse, including mailing addresses and telephone
numbers (including toll-free hotline numbers where available). If no
such local organizations exist, the facility shall make available the
same information about national organizations. The facility shall
enable reasonable communication between detainees and these
organizations and agencies, in as confidential a manner as possible.
(d) Each facility shall inform detainees, prior to giving them
access to outside resources, of the extent to which such communications
will be monitored and the extent to which reports of abuse will be
forwarded to authorities in accordance with mandatory reporting laws.
Sec. 115.54 Third-party reporting.
Each facility shall establish a method to receive third-party
reports of sexual abuse in its immigration detention facilities and
shall make available to the public information on how to report sexual
abuse on behalf of a detainee.
[[Page 13173]]
Official Response Following a Detainee Report
Sec. 115.61 Staff reporting duties.
(a) The agency and each facility shall require all staff to report
immediately and according to agency policy any knowledge, suspicion, or
information regarding an incident of sexual abuse that occurred in a
facility; retaliation against detainees or staff who reported or
participated in an investigation about such an incident; and any staff
neglect or violation of responsibilities that may have contributed to
an incident or retaliation. The agency shall review and approve
facility policies and procedures and shall ensure that the facility
specifies appropriate reporting procedures, including a method by which
staff can report outside of the chain of command.
(b) Staff members who become aware of alleged sexual abuse shall
immediately follow the reporting requirements set forth in the agency's
and facility's written policies and procedures.
(c) Apart from such reporting, staff shall not reveal any
information related to a sexual abuse report to anyone other than to
the extent necessary to help protect the safety of the victim or
prevent further victimization of other detainees or staff in the
facility, or to make medical treatment, investigation, law enforcement,
or other security and management decisions.
(d) If the alleged victim is under the age of 18 or considered a
vulnerable adult under a State or local vulnerable persons statute, the
agency shall report the allegation to the designated State or local
services agency under applicable mandatory reporting laws.
Sec. 115.62 Protection duties.
If an agency employee or facility staff member has a reasonable
belief that a detainee is subject to a substantial risk of imminent
sexual abuse, he or she shall take immediate action to protect the
detainee.
Sec. 115.63 Reporting to other confinement facilities.
(a) Upon receiving an allegation that a detainee was sexually
abused while confined at another facility, the agency or facility whose
staff received the allegation shall notify the appropriate office of
the agency or the administrator of the facility where the alleged abuse
occurred.
(b) The notification provided in paragraph (a) of this section
shall be provided as soon as possible, but no later than 72 hours after
receiving the allegation.
(c) The agency or facility shall document that it has provided such
notification.
(d) The agency or facility office that receives such notification,
to the extent the facility is covered by this subpart, shall ensure
that the allegation is referred for investigation in accordance with
these standards and reported to the appropriate ICE Field Office
Director.
Sec. 115.64 Responder duties.
(a) Upon learning of an allegation that a detainee was sexually
abused, the first security staff member to respond to the report, or
his or her supervisor, shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect, to the greatest extent possible, any
crime scene until appropriate steps can be taken to collect any
evidence;
(3) If the abuse occurred within a time period that still allows
for the collection of physical evidence, request the alleged victim not
to take any actions that could destroy physical evidence, including, as
appropriate, washing, brushing teeth, changing clothes, urinating,
defecating, smoking, drinking, or eating; and
(4) If the sexual abuse occurred within a time period that still
allows for the collection of physical evidence, ensure that the alleged
abuser does not take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a security staff member,
the responder shall be required to request that the alleged victim not
take any actions that could destroy physical evidence and then notify
security staff.
Sec. 115.65 Coordinated response.
(a) Each facility shall develop a written institutional plan to
coordinate actions taken by staff first responders, medical and mental
health practitioners, investigators, and facility leadership in
response to an incident of sexual abuse.
(b) Each facility shall use a coordinated, multidisciplinary team
approach to responding to sexual abuse.
(c) If a victim of sexual abuse is transferred between facilities
covered by subpart A or B of this part, the sending facility shall, as
permitted by law, inform the receiving facility of the incident and the
victim's potential need for medical or social services.
(d) If a victim is transferred from a DHS immigration detention
facility to a facility not covered by paragraph (c) of this section,
the sending facility shall, as permitted by law, inform the receiving
facility of the incident and the victim's potential need for medical or
social services, unless the victim requests otherwise.
Sec. 115.66 Protection of detainees from contact with alleged
abusers.
Staff, contractors, and volunteers suspected of perpetrating sexual
abuse shall be removed from all duties requiring detainee contact
pending the outcome of an investigation.
Sec. 115.67 Agency protection against retaliation.
(a) Staff, contractors, and volunteers, and immigration detention
facility detainees, shall not retaliate against any person, including a
detainee, who reports, complains about, or participates in an
investigation into an allegation of sexual abuse, or for participating
in sexual activity as a result of force, coercion, threats, or fear of
force.
(b) The agency shall employ multiple protection measures, such as
housing changes, removal of alleged staff or detainee abusers from
contact with victims, and emotional support services for detainees or
staff who fear retaliation for reporting sexual abuse or for
cooperating with investigations.
(c) For at least 90 days following a report of sexual abuse, the
agency and facility shall monitor to see if there are facts that may
suggest possible retaliation by detainees or staff, and shall act
promptly to remedy any such retaliation. Items the agency should
monitor include any detainee disciplinary reports, housing or program
changes, or negative performance reviews or reassignments of staff. DHS
shall continue such monitoring beyond 90 days if the initial monitoring
indicates a continuing need.
Sec. 115.68 Post-allegation protective custody.
(a) The facility shall take care to place detainee victims of
sexual abuse in a supportive environment that represents the least
restrictive housing option possible (e.g., protective custody), subject
to the requirements of Sec. 115.43.
(b) Detainee victims shall not be held for longer than five days in
any type of administrative segregation, except in highly unusual
circumstances or at the request of the detainee.
(c) A detainee victim who is in protective custody after having
been subjected to sexual abuse shall not be returned to the general
population until completion of a proper re-assessment, taking into
consideration any increased vulnerability of the detainee as a result
of the sexual abuse.
(d) Facilities shall notify the appropriate ICE Field Office
Director
[[Page 13174]]
whenever a detainee victim has been held in administrative segregation
for 72 hours.
(e) Upon receiving notification that a detainee victim has been
held in administrative segregation, the ICE Field Office Director shall
review the placement and consider:
(1) Whether the placement is only as a last resort and when no
other viable housing options exist; and
(2) In cases where the detainee has been held in administrative
segregation for longer than 5 days, whether the placement is justified
by highly unusual circumstances or at the detainee's request.
Investigations
Sec. 115.71 Criminal and administrative investigations.
(a) If the facility has responsibility for investigating
allegations of sexual abuse, all investigations into alleged sexual
abuse must be prompt, thorough, objective, and conducted by specially
trained, qualified investigators.
(b) Upon conclusion of a criminal investigation where the
allegation was substantiated, an administrative investigation shall be
conducted. Upon conclusion of a criminal investigation where the
allegation was unsubstantiated, the facility shall review any available
completed criminal investigation reports to determine whether an
administrative investigation is necessary or appropriate.
Administrative investigations shall be conducted after consultation
with the appropriate investigative office within DHS, and the assigned
criminal investigative entity.
(c)(1) The facility shall develop written procedures for
administrative investigations, including provisions requiring:
(i) Preservation of direct and circumstantial evidence, including
any available physical and DNA evidence and any available electronic
monitoring data;
(ii) Interviewing alleged victims, suspected perpetrators, and
witnesses;
(iii) Reviewing prior complaints and reports of sexual abuse
involving the suspected perpetrator;
(iv) Assessment of the credibility of an alleged victim, suspect,
or witness, without regard to the individual's status as detainee,
staff, or employee, and without requiring any detainee who alleges
sexual abuse to submit to a polygraph;
(v) An effort to determine whether actions or failures to act at
the facility contributed to the abuse; and
(vi) Documentation of each investigation by written report, which
shall include a description of the physical and testimonial evidence,
the reasoning behind credibility assessments, and investigative facts
and findings; and
(vii) Retention of such reports for as long as the alleged abuser
is detained or employed by the agency or facility, plus five years.
(2) Such procedures shall govern the coordination and sequencing of
the two types of investigations, in accordance with paragraph (b) of
this section, to ensure that the criminal investigation is not
compromised by an internal administrative investigation.
(d) The agency shall review and approve the facility policy and
procedures for coordination and conduct of internal administrative
investigations with the assigned criminal investigative entity to
ensure non-interference with criminal investigations.
(e) The departure of the alleged abuser or victim from the
employment or control of the facility or agency shall not provide a
basis for terminating an investigation.
(f) When outside agencies investigate sexual abuse, the facility
shall cooperate with outside investigators and shall endeavor to remain
informed about the progress of the investigation.
Sec. 115.72 Evidentiary standard for administrative investigations.
When an administrative investigation is undertaken, the agency
shall impose no standard higher than a preponderance of the evidence in
determining whether allegations of sexual abuse are substantiated.
Sec. 115.73 Reporting to detainees.
The agency shall, when the detainee is still in immigration
detention, or where otherwise feasible, following an investigation into
a detainee's allegation of sexual abuse, notify the detainee as to the
result of the investigation and any responsive action taken.
Discipline
Sec. 115.76 Disciplinary sanctions for staff.
(a) Staff shall be subject to disciplinary or adverse action up to
and including removal from their position and the Federal service for
substantiated allegations of sexual abuse or for violating agency or
facility sexual abuse policies.
(b) The agency shall review and approve facility policies and
procedures regarding disciplinary or adverse actions for staff and
shall ensure that the facility policy and procedures specify
disciplinary or adverse actions for staff, up to and including removal
from their position and from the Federal service, when there is a
substantiated allegation of sexual abuse, or when there has been a
violation of agency sexual abuse rules, policies, or standards. Removal
from their position and from the Federal service is the presumptive
disciplinary sanction for staff who have engaged in or attempted or
threatened to engage in sexual abuse, as defined under the definition
of sexual abuse of a detainee by a staff member, contractor, or
volunteer, paragraphs (1)-(4) and (7)-(8) of the definition of ``sexual
abuse of a detainee by a staff member, contractor, or volunteer'' in
Sec. 115.6.
(c) Each facility shall report all removals or resignations in lieu
of removal for violations of agency or facility sexual abuse policies
to appropriate law enforcement agencies, unless the activity was
clearly not criminal.
(d) Each facility shall make reasonable efforts to report removals
or resignations in lieu of removal for violations of agency or facility
sexual abuse policies to any relevant licensing bodies, to the extent
known.
Sec. 115.77 Corrective action for contractors and volunteers.
(a) Any contractor or volunteer who has engaged in sexual abuse
shall be prohibited from contact with detainees. Each facility shall
make reasonable efforts to report to any relevant licensing body, to
the extent known, incidents of substantiated sexual abuse by a
contractor or volunteer. Such incidents shall also be reported to law
enforcement agencies, unless the activity was clearly not criminal.
(b) Contractors and volunteers suspected of perpetrating sexual
abuse shall be removed from all duties requiring detainee contact
pending the outcome of an investigation.
(c) The facility shall take appropriate remedial measures, and
shall consider whether to prohibit further contact with detainees by
contractors or volunteers who have not engaged in sexual abuse, but
have violated other provisions within these standards.
Sec. 115.78 Disciplinary sanctions for detainees.
(a) Each facility shall subject a detainee to disciplinary
sanctions pursuant to a formal disciplinary process following an
administrative or criminal finding that the detainee engaged in sexual
abuse.
(b) At all steps in the disciplinary process provided in paragraph
(a), any sanctions imposed shall be commensurate with the severity of
the committed prohibited act and intended
[[Page 13175]]
to encourage the detainee to conform with rules and regulations in the
future.
(c) Each facility holding detainees in custody shall have a
detainee disciplinary system with progressive levels of reviews,
appeals, procedures, and documentation procedure.
(d) The disciplinary process shall consider whether a detainee's
mental disabilities or mental illness contributed to his or her
behavior when determining what type of sanction, if any, should be
imposed.
(e) The facility shall not discipline a detainee for sexual contact
with staff unless there is a finding that the staff member did not
consent to such contact.
(f) For the purpose of disciplinary action, a report of sexual
abuse made in good faith based upon a reasonable belief that the
alleged conduct occurred shall not constitute falsely reporting an
incident or lying, even if an investigation does not establish evidence
sufficient to substantiate the allegation.
Medical and Mental Care
Sec. 115.81 Medical and mental health assessments; history of sexual
abuse.
(a) If the assessment pursuant to Sec. 115.41 indicates that a
detainee has experienced prior sexual victimization or perpetrated
sexual abuse, staff shall, as appropriate, ensure that the detainee is
immediately referred to a qualified medical or mental health
practitioner for medical and/or mental health follow-up as appropriate.
(b) When a referral for medical follow-up is initiated, the
detainee shall receive a health evaluation no later than two working
days from the date of assessment.
(c) When a referral for mental health follow-up is initiated, the
detainee shall receive a mental health evaluation no later than 72
hours after the referral.
Sec. 115.82 Access to emergency medical and mental health services.
(a) Detainee victims of sexual abuse shall have timely, unimpeded
access to emergency medical treatment and crisis intervention services,
including emergency contraception and sexually transmitted infections
prophylaxis, in accordance with professionally accepted standards of
care.
(b) Emergency medical treatment services provided to the victim
shall be without financial cost and regardless of whether the victim
names the abuser or cooperates with any investigation arising out of
the incident.
Sec. 115.83 Ongoing medical and mental health care for sexual abuse
victims and abusers.
(a) Each facility shall offer medical and mental health evaluation
and, as appropriate, treatment to all detainees who have been
victimized by sexual abuse while in immigration detention.
(b) The evaluation and treatment of such victims shall include, as
appropriate, follow-up services, treatment plans, and, when necessary,
referrals for continued care following their transfer to, or placement
in, other facilities, or their release from custody.
(c) The facility shall provide such victims with medical and mental
health services consistent with the community level of care.
(d) Detainee victims of sexually abusive vaginal penetration by a
male abuser while incarcerated shall be offered pregnancy tests. If
pregnancy results from an instance of sexual abuse, the victim shall
receive timely and comprehensive information about lawful pregnancy-
related medical services and timely access to all lawful pregnancy-
related medical services.
(e) Detainee victims of sexual abuse while detained shall be
offered tests for sexually transmitted infections as medically
appropriate.
(f) Treatment services shall be provided to the victim without
financial cost and regardless of whether the victim names the abuser or
cooperates with any investigation arising out of the incident.
(g) The facility shall attempt to conduct a mental health
evaluation of all known detainee-on-detainee abusers within 60 days of
learning of such abuse history and offer treatment when deemed
appropriate by mental health practitioners.
Data Collection and Review
Sec. 115.86 Sexual abuse incident reviews.
(a) Each facility shall conduct a sexual abuse incident review at
the conclusion of every investigation of sexual abuse and, where the
allegation was not determined to be unfounded, prepare a written report
within 30 days of the conclusion of the investigation recommending
whether the allegation or investigation indicates that a change in
policy or practice could better prevent, detect, or respond to sexual
abuse. The facility shall implement the recommendations for
improvement, or shall document its reasons for not doing so in a
written response. Both the report and response shall be forwarded to
the agency PSA Coordinator.
(b) The review team shall consider whether the incident or
allegation was motivated by race; ethnicity; gender identity; lesbian,
gay, bisexual, transgender, or intersex identification, status, or
perceived status; or gang affiliation; or was motivated or otherwise
caused by other group dynamics at the facility.
(c) Each facility shall conduct an annual review of all sexual
abuse investigations and resulting incident reviews to assess and
improve sexual abuse intervention, prevention and response efforts. If
the facility has not had any reports of sexual abuse during the annual
reporting period, then the facility shall prepare a negative report.
The results and findings of the annual review shall be provided to the
facility administrator, Field Office Director or his or her designee,
and the agency PSA Coordinator.
Sec. 115.87 Data collection.
(a) Each facility shall maintain in a secure area all case records
associated with claims of sexual abuse, including incident reports,
investigative reports, offender information, case disposition, medical
and counseling evaluation findings, and recommendations for post-
release treatment, if necessary, and/or counseling in accordance with
these standards and applicable agency policies, and in accordance with
established schedules. The DHS Office of Inspector General shall
maintain the official investigative file related to claims of sexual
abuse investigated by the DHS Office of Inspector General.
(b) On an ongoing basis, the PSA Coordinator shall work with
relevant facility PSA Compliance Managers and DHS entities to share
data regarding effective agency response methods to sexual abuse.
(c) On a regular basis, the PSA Coordinator shall prepare a report
for ICE leadership compiling information received about all incidents
or allegations of sexual abuse of detainees in immigration detention
during the period covered by the report, as well as ongoing
investigations and other pending cases.
(d) On an annual basis, the PSA Coordinator shall aggregate, in a
manner that will facilitate the agency's ability to detect possible
patterns and help prevent future incidents, the incident-based sexual
abuse data, including the number of reported sexual abuse allegations
determined to be substantiated, unsubstantiated, or unfounded, or for
which investigation is ongoing, and for each incident found to be
substantiated, information concerning:
(1) The date, time, location, and nature of the incident;
[[Page 13176]]
(2) The demographic background of the victim and perpetrator
(including citizenship, age, gender, and whether either has self-
identified as gay, lesbian, bisexual, transgender, intersex, or gender
nonconforming);
(3) The reporting timeline for the incident (including the name of
individual who reported the incident, and the date and time the report
was received);
(4) Any injuries sustained by the victim;
(5) Post-report follow up responses and action taken by the
facility (e.g., housing placement/custody classification, medical
examination, mental health counseling, etc.); and
(6) Any sanctions imposed on the perpetrator.
(e) Upon request, the agency shall provide all data described in
this section from the previous calendar year to the Office for Civil
Rights and Civil Liberties no later than June 30.
Sec. 115.88 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant
to Sec. 115.87 of this part in order to assess and improve the
effectiveness of its sexual abuse prevention, detection, and response
policies, practices, and training, including by:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective
actions for each immigration detention facility, as well as the agency
as a whole.
(b) Such report shall include a comparison of the current year's
data and corrective actions with those from prior years and shall
provide an assessment of the agency's progress in preventing,
detecting, and responding to sexual abuse.
(c) The agency's report shall be approved by the agency head and
made readily available to the public through its Web site.
(d) The agency may redact specific material from the reports, when
appropriate for safety or security, but must indicate the nature of the
material redacted.
Sec. 115.89 Data storage, publication, and destruction.
(a) The agency shall ensure that data collected pursuant to Sec.
115.87 are securely retained in accordance with agency record retention
policies and the agency protocol regarding investigation of
allegations.
(b) The agency shall make all aggregated sexual abuse data from
immigration detention facilities under its direct control and from any
private agencies with which it contracts available to the public at
least annually on its Web site consistent with existing agency
information disclosure policies and processes.
(c) Before making aggregated sexual abuse data publicly available,
the agency shall remove all personal identifiers.
(d) The agency shall maintain sexual abuse data collected pursuant
to Sec. 115.87 for at least 10 years after the date of the initial
collection unless Federal, State, or local law requires otherwise.
Audits and Compliance
Sec. 115.93 Audits of standards.
(a) During the three-year period starting on July 6. 2015, and
during each three-year period thereafter, the agency shall ensure that
each immigration detention facility that has adopted these standards is
audited at least once.
(b) The agency may require an expedited audit if the agency has
reason to believe that a particular facility may be experiencing
problems relating to sexual abuse. The agency may also include
referrals to resources that may assist the facility with PREA-related
issues.
(c) Audits under this section shall be conducted pursuant to
Sec. Sec. 115.201 through 115.205.
(d) Audits under this section shall be coordinated by the agency
with the DHS Office for Civil Rights and Civil Liberties, which may
request an expedited audit if it has reason to believe that an
expedited audit is appropriate.
Additional Provisions in Agency Policies
Sec. 115.95 Additional provisions in agency policies.
The regulations in this subpart A establish minimum requirements
for agencies and facilities. Agency and facility policies may include
additional requirements.
Subpart B--Standards for DHS Holding Facilities Coverage
Sec. 115.110 Coverage of DHS holding facilities.
This subpart B covers all DHS holding facilities. Standards found
in subpart A of this part are not applicable to DHS facilities except
ICE immigration detention facilities.
Prevention Planning
Sec. 115.111 Zero tolerance of sexual abuse; Prevention of Sexual
Assault Coordinator.
(a) The agency shall have a written policy mandating zero tolerance
toward all forms of sexual abuse and outlining the agency's approach to
preventing, detecting, and responding to such conduct.
(b) The agency shall employ or designate an upper-level, agency-
wide PSA Coordinator with sufficient time and authority to develop,
implement, and oversee agency efforts to comply with these standards in
all of its holding facilities.
Sec. 115.112 Contracting with non-DHS entities for the confinement of
detainees.
(a) An agency that contracts for the confinement of detainees in
holding facilities operated by non-DHS private or public agencies or
other entities, including other government agencies, shall include in
any new contracts, contract renewals, or substantive contract
modifications the entity's obligation to adopt and comply with these
standards.
(b) Any new contracts, contract renewals, or substantive contract
modifications shall provide for agency contract monitoring to ensure
that the contractor is complying with these standards.
(c) To the extent an agency contracts for confinement of holding
facility detainees, all rules in this subpart that apply to the agency
shall apply to the contractor, and all rules that apply to staff or
employees shall apply to contractor staff.
Sec. 115.113 Detainee supervision and monitoring.
(a) The agency shall ensure that each facility maintains sufficient
supervision of detainees, including through appropriate staffing levels
and, where applicable, video monitoring, to protect detainees against
sexual abuse.
(b) The agency shall develop and document comprehensive detainee
supervision guidelines to determine and meet each facility's detainee
supervision needs, and shall review those supervision guidelines and
their application at each facility at least annually.
(c) In determining adequate levels of detainee supervision and
determining the need for video monitoring, agencies shall take into
consideration the physical layout of each holding facility, the
composition of the detainee population, the prevalence of substantiated
and unsubstantiated incidents of sexual abuse, the findings and
recommendations of sexual abuse
[[Page 13177]]
incident review reports, and any other relevant factors, including but
not limited to the length of time detainees spend in agency custody.
Sec. 115.114 Juvenile and family detainees.
(a) Juveniles shall be detained in the least restrictive setting
appropriate to the juvenile's age and special needs, provided that such
setting is consistent with the need to protect the juvenile's well-
being and that of others, as well as with any other laws, regulations,
or legal requirements.
(b) Unaccompanied juveniles shall generally be held separately from
adult detainees. The juvenile may temporarily remain with a non-
parental adult family member where:
(1) The family relationship has been vetted to the extent feasible,
and
(2) The agency determines that remaining with the non-parental
adult family member is appropriate, under the totality of the
circumstances.
Sec. 115.115 Limits to cross-gender viewing and searches.
(a) Searches may be necessary to ensure the safety of officers,
civilians and detainees; to detect and secure evidence of criminal
activity; and to promote security, safety, and related interests at DHS
holding facilities.
(b) Cross-gender strip searches or cross-gender visual body cavity
searches shall not be conducted except in exigent circumstances,
including consideration of officer safety, or when performed by medical
practitioners. An agency shall not conduct visual body cavity searches
of juveniles and, instead, shall refer all such body cavity searches of
juveniles to a medical practitioner.
(c) All strip searches and visual body cavity searches shall be
documented.
(d) The agency shall implement policies and procedures that enable
detainees to shower (where showers are available), perform bodily
functions, and change clothing without being viewed by staff of the
opposite gender, except in exigent circumstances or when such viewing
is incidental to routine cell checks or is otherwise appropriate in
connection with a medical examination or monitored bowel movement under
medical supervision. Such policies and procedures shall require staff
of the opposite gender to announce their presence when entering an area
where detainees are likely to be showering, performing bodily
functions, or changing clothing.
(e) The agency and facility shall not search or physically examine
a detainee for the sole purpose of determining the detainee's gender.
If the detainee's gender is unknown, it may be determined during
conversations with the detainee, by reviewing medical records (if
available), or, if necessary, learning that information as part of a
broader medical examination conducted in private, by a medical
practitioner.
(f) The agency shall train law enforcement staff in proper
procedures for conducting pat-down searches, including cross-gender
pat-down searches and searches of transgender and intersex detainees.
All pat-down searches shall be conducted in a professional and
respectful manner, and in the least intrusive manner possible,
consistent with security needs and agency policy, including
consideration of officer safety.
Sec. 115.116 Accommodating detainees with disabilities and detainees
who are limited English proficient.
(a) The agency shall take appropriate steps to ensure that
detainees with disabilities (including, for example, detainees who are
deaf or hard of hearing, those who are blind or have low vision, or
those who have intellectual, psychiatric, or speech disabilities), have
an equal opportunity to participate in or benefit from all aspects of
the agency's efforts to prevent, detect, and respond to sexual abuse.
Such steps shall include, when necessary to ensure effective
communication with detainees who are deaf or hard of hearing, providing
access to in-person, telephonic, or video interpretive services that
enable effective, accurate, and impartial interpretation, both
receptively and expressively, using any necessary specialized
vocabulary. In addition, the agency shall ensure that any written
materials related to sexual abuse are provided in formats or through
methods that ensure effective communication with detainees with
disabilities, including detainees who have intellectual disabilities,
limited reading skills, or who are blind or have low vision. An agency
is not required to take actions that it can demonstrate would result in
a fundamental alteration in the nature of a service, program, or
activity, or in undue financial and administrative burdens, as those
terms are used in regulations promulgated under title II of the
Americans with Disabilities Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful
access to all aspects of the agency's efforts to prevent, detect, and
respond to sexual abuse to detainees who are limited English
proficient, including steps to provide in-person or telephonic
interpretive services that enable effective, accurate, and impartial
interpretation, both receptively and expressively, using any necessary
specialized vocabulary.
(c) In matters relating to allegations of sexual abuse, the agency
shall provide in-person or telephonic interpretation services that
enable effective, accurate, and impartial interpretation, by someone
other than another detainee, unless the detainee expresses a preference
for another detainee to provide interpretation, and the agency
determines that such interpretation is appropriate and consistent with
DHS policy. The provision of interpreter services by minors, alleged
abusers, detainees who witnessed the alleged abuse, and detainees who
have a significant relationship with the alleged abuser is not
appropriate in matters relating to allegations of sexual abuse is not
appropriate in matters relating to allegations of sexual abuse.
Sec. 115.117 Hiring and promotion decisions.
(a) The agency shall not hire or promote anyone who may have
contact with detainees, and shall not enlist the services of any
contractor or volunteer who may have contact with detainees, who has
engaged in sexual abuse in a prison, jail, holding facility, community
confinement facility, juvenile facility, or other institution (as
defined in 42 U.S.C. 1997); who has been convicted of engaging or
attempting to engage in sexual activity facilitated by force, overt or
implied threats of force, or coercion, or if the victim did not consent
or was unable to consent or refuse; or who has been civilly or
administratively adjudicated to have engaged in such activity.
(b) When the agency is considering hiring or promoting staff, it
shall ask all applicants who may have contact with detainees directly
about previous misconduct described in paragraph (a) of this section,
in written applications or interviews for hiring or promotions and in
any interviews or written self-evaluations conducted as part of reviews
of current employees. The agency shall also impose upon employees a
continuing affirmative duty to disclose any such misconduct.
(c) Before hiring new employees who may have contact with
detainees, the agency shall require a background investigation to
determine whether the candidate for hire is suitable for employment
with the agency. The agency shall conduct an updated background
investigation for agency employees every five years.
(d) The agency shall also perform a background investigation before
[[Page 13178]]
enlisting the services of any contractor who may have contact with
detainees.
(e) Material omissions regarding such misconduct, or the provision
of materially false information, shall be grounds for termination or
withdrawal of an offer of employment, as appropriate.
(f) Unless prohibited by law, the agency shall provide information
on substantiated allegations of sexual abuse involving a former
employee upon receiving a request from an institutional employer for
whom such employee has applied to work.
(g) In the event the agency contracts with a facility for the
confinement of detainees, the requirements of this section otherwise
applicable to the agency also apply to the facility.
Sec. 115.118 Upgrades to facilities and technologies.
(a) When designing or acquiring any new holding facility and in
planning any substantial expansion or modification of existing holding
facilities, the agency shall consider the effect of the design,
acquisition, expansion, or modification upon the agency's ability to
protect detainees from sexual abuse.
(b) When installing or updating a video monitoring system,
electronic surveillance system, or other monitoring technology in a
holding facility, the agency shall consider how such technology may
enhance the agency's ability to protect detainees from sexual abuse.
Responsive Planning
Sec. 115.121 Evidence protocols and forensic medical examinations.
(a) To the extent that the agency is responsible for investigating
allegations of sexual abuse in its holding facilities, the agency shall
follow a uniform evidence protocol that maximizes the potential for
obtaining usable physical evidence for administrative proceedings and
criminal prosecutions. The protocol shall be developed in coordination
with DHS and shall be developmentally appropriate for juveniles, where
applicable.
(b) In developing the protocol referred to in paragraph (a) of this
section, the agency shall consider how best to utilize available
community resources and services to provide valuable expertise and
support in the areas of crisis intervention and counseling to most
appropriately address victims' needs.
(c) Where evidentiarily or medically appropriate, at no cost to the
detainee, and only with the detainee's consent, the agency shall
arrange for or refer the alleged victim detainee to a medical facility
to undergo a forensic medical examination, including a Sexual Assault
Forensic Examiner (SAFE) or Sexual Assault Nurse Examiner (SANE) where
practicable. If SAFEs or SANEs cannot be made available, the
examination can be performed by other qualified health care personnel.
(d) If, in connection with an allegation of sexual abuse, the
detainee is transported for a forensic examination to an outside
hospital that offers victim advocacy services, the detainee shall be
permitted to use such services to the extent available, consistent with
security needs.
(e) To the extent that the agency is not responsible for
investigating allegations of sexual abuse, the agency shall request
that the investigating agency follow the requirements of paragraphs (a)
through (d) of this section.
Sec. 115.122 Policies to ensure investigation of allegations and
appropriate agency oversight.
(a) The agency shall establish a protocol to ensure that each
allegation of sexual abuse is investigated by the agency, or referred
to an appropriate investigative authority.
(b) The agency protocol shall be developed in coordination with DHS
investigative entities; shall include a description of the
responsibilities of both the agency and the investigative entities; and
shall require the documentation and maintenance, for at least five
years, of all reports and referrals of allegations of sexual abuse. The
agency shall post its protocol on its Web site, redacted if
appropriate.
(c) The agency protocol shall ensure that each allegation is
promptly reported to the Joint Intake Center and, unless the allegation
does not involve potentially criminal behavior, promptly referred for
investigation to an appropriate law enforcement agency with the legal
authority to conduct criminal investigations. The agency may
separately, and in addition to the above reports and referrals, conduct
its own investigation.
(d) The agency shall ensure that all allegations of detainee sexual
abuse are promptly reported to the PSA Coordinator and to the
appropriate offices within the agency and within DHS to ensure
appropriate oversight of the investigation.
(e) The agency shall ensure that any alleged detainee victim of
sexual abuse that is criminal in nature is provided timely access to U
nonimmigrant status information.
Training and Education
Sec. 115.131 Employee, contractor, and volunteer training.
(a) The agency shall train, or require the training of all
employees, contractors, and volunteers who may have contact with
holding facility detainees, to be able to fulfill their
responsibilities under these standards, including training on:
(1) The agency's zero-tolerance policies for all forms of sexual
abuse;
(2) The right of detainees and employees to be free from sexual
abuse, and from retaliation for reporting sexual abuse;
(3) Definitions and examples of prohibited and illegal sexual
behavior;
(4) Recognition of situations where sexual abuse may occur;
(5) Recognition of physical, behavioral, and emotional signs of
sexual abuse, and methods of preventing such occurrences;
(6) Procedures for reporting knowledge or suspicion of sexual
abuse;
(7) How to communicate effectively and professionally with
detainees, including lesbian, gay, bisexual, transgender, intersex, or
gender nonconforming detainees; and
(8) The requirement to limit reporting of sexual abuse to personnel
with a need-to-know in order to make decisions concerning the victim's
welfare and for law enforcement or investigative purposes.
(b) All current employees, contractors and volunteers who may have
contact with holding facility detainees shall be trained within two
years of the effective date of these standards, and the agency shall
provide refresher information, as appropriate.
(c) The agency shall document those employees who may have contact
with detainees have completed the training and receive and maintain for
at least five years confirmation that contractors and volunteers have
completed the training.
Sec. 115.132 Notification to detainees of the agency's zero-tolerance
policy.
The agency shall make public its zero-tolerance policy regarding
sexual abuse and ensure that key information regarding the agency's
zero-tolerance policy is visible or continuously and readily available
to detainees, for example, through posters, detainee handbooks, or
other written formats.
Sec. 115.133 [Reserved]
Sec. 115.134 Specialized training: Investigations.
(a) In addition to the training provided to employees, DHS agencies
[[Page 13179]]
with responsibility for holding facilities shall provide specialized
training on sexual abuse and effective cross-agency coordination to
agency investigators who conduct investigations into allegations of
sexual abuse at holding facilities. All investigations into alleged
sexual abuse must be conducted by qualified investigators.
(b) The agency must maintain written documentation verifying
specialized training provided to agency investigators pursuant to this
section.
Assessment for Risk of Sexual Victimization and Abusiveness
Sec. 115.141 Assessment for risk of victimization and abusiveness.
(a) Before placing any detainees together in a holding facility,
agency staff shall consider whether, based on the information before
them, a detainee may be at a high risk of being sexually abused and,
when appropriate, shall take necessary steps to mitigate any such
danger to the detainee.
(b) All detainees who may be held overnight with other detainees
shall be assessed to determine their risk of being sexually abused by
other detainees or sexually abusive toward other detainees; staff shall
ask each such detainee about his or her own concerns about his or her
physical safety.
(c) The agency shall also consider, to the extent that the
information is available, the following criteria to assess detainees
for risk of sexual victimization:
(1) Whether the detainee has a mental, physical, or developmental
disability;
(2) The age of the detainee;
(3) The physical build and appearance of the detainee;
(4) Whether the detainee has previously been incarcerated or
detained;
(5) The nature of the detainee's criminal history; and
(6) Whether the detainee has any convictions for sex offenses
against an adult or child;
(7) Whether the detainee has self-identified as gay, lesbian,
bisexual, transgender, intersex, or gender nonconforming;
(8) Whether the detainee has self-identified as having previously
experienced sexual victimization; and
(9) The detainee's own concerns about his or her physical safety.
(d) If detainees are identified pursuant to the assessment under
this section to be at high risk of victimization, staff shall provide
such detainees with heightened protection, to include continuous direct
sight and sound supervision, single-cell housing, or placement in a
cell actively monitored on video by a staff member sufficiently
proximate to intervene, unless no such option is determined to be
feasible.
(e) The facility shall implement appropriate controls on the
dissemination of sensitive information provided by detainees under this
section.
Reporting
Sec. 115.151 Detainee reporting.
(a) The agency shall develop policies and procedures to ensure that
the detainees have multiple ways to privately report sexual abuse,
retaliation for reporting sexual abuse, or staff neglect or violations
of responsibilities that may have contributed to such incidents, and
shall provide instructions on how detainees may contact the DHS Office
of the Inspector General or, as appropriate, another designated office,
to confidentially and, if desired, anonymously, report these incidents.
(b) The agency shall also provide, and shall inform the detainees
of, at least one way for detainees to report sexual abuse to a public
or private entity or office that is not part of the agency, and that is
able to receive and immediately forward detainee reports of sexual
abuse to agency officials, allowing the detainee to remain anonymous
upon request.
(c) Agency policies and procedures shall include provisions for
staff to accept reports made verbally, in writing, anonymously, and
from third parties and to promptly document any verbal reports.
Sec. 115.152-115.153 [Reserved]
Sec. 115.154 Third-party reporting.
The agency shall establish a method to receive third-party reports
of sexual abuse in its holding facilities. The agency shall make
available to the public information on how to report sexual abuse on
behalf of a detainee.
Official Response Following a Detainee Report
Sec. 115.161 Staff reporting duties.
(a) The agency shall require all staff to report immediately and
according to agency policy any knowledge, suspicion, or information
regarding an incident of sexual abuse that occurred to any detainee;
retaliation against detainees or staff who reported or participated in
an investigation about such an incident; and any staff neglect or
violation of responsibilities that may have contributed to an incident
or retaliation. Agency policy shall include methods by which staff can
report misconduct outside of their chain of command.
(b) Staff members who become aware of alleged sexual abuse shall
immediately follow the reporting requirements set forth in the agency's
written policies and procedures.
(c) Apart from such reporting, the agency and staff shall not
reveal any information related to a sexual abuse report to anyone other
than to the extent necessary to help protect the safety of the victim
or prevent further victimization of other detainees or staff in the
facility, or to make medical treatment, investigation, law enforcement,
or other security and management decisions.
(d) If the alleged victim is under the age of 18 or considered a
vulnerable adult under a State or local vulnerable persons statute, the
agency shall report the allegation to the designated State or local
services agency under applicable mandatory reporting laws.
Sec. 115.162 Agency protection duties.
When an agency employee has a reasonable belief that a detainee is
subject to a substantial risk of imminent sexual abuse, he or she shall
take immediate action to protect the detainee.
Sec. 115.163 Reporting to other confinement facilities.
(a) Upon receiving an allegation that a detainee was sexually
abused while confined at another facility, the agency that received the
allegation shall notify the appropriate office of the agency or the
administrator of the facility where the alleged abuse occurred.
(b) The notification provided in paragraph (a) of this section
shall be provided as soon as possible, but no later than 72 hours after
receiving the allegation.
(c) The agency shall document that it has provided such
notification.
(d) The agency office that receives such notification, to the
extent the facility is covered by this subpart, shall ensure that the
allegation is referred for investigation in accordance with these
standards.
Sec. 115.164 Responder duties.
(a) Upon learning of an allegation that a detainee was sexually
abused, the first law enforcement staff member to respond to the
report, or his or her supervisor, shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect, to the greatest extent possible, any
crime scene until appropriate steps can be taken to collect any
evidence;
[[Page 13180]]
(3) If the sexual abuse occurred within a time period that still
allows for the collection of physical evidence, request the alleged
victim not to take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows
for the collection of physical evidence, ensure that the alleged abuser
does not take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a law enforcement staff
member, the responder shall be required to request that the alleged
victim not take any actions that could destroy physical evidence and
then notify law enforcement staff.
Sec. 115.165 Coordinated response.
(a) The agency shall develop a written institutional plan and use a
coordinated, multidisciplinary team approach to responding to sexual
abuse.
(b) If a victim of sexual abuse is transferred between facilities
covered by subpart A or B of this part, the agency shall, as permitted
by law, inform the receiving facility of the incident and the victim's
potential need for medical or social services.
(c) If a victim is transferred from a DHS holding facility to a
facility not covered by paragraph (b) of this section, the agency
shall, as permitted by law, inform the receiving facility of the
incident and the victim's potential need for medical or social
services, unless the victim requests otherwise.
Sec. 115.166 Protection of detainees from contact with alleged
abusers.
Agency management shall consider whether any staff, contractor, or
volunteer alleged to have perpetrated sexual abuse should be removed
from duties requiring detainee contact pending the outcome of an
investigation, and shall do so if the seriousness and plausibility of
the allegation make removal appropriate.
Sec. 115.167 Agency protection against retaliation.
Agency employees shall not retaliate against any person, including
a detainee, who reports, complains about, or participates in an
investigation into an allegation of sexual abuse, or for participating
in sexual activity as a result of force, coercion, threats, or fear of
force.
Investigations
Sec. 115.171 Criminal and administrative investigations.
(a) If the agency has responsibility for investigating allegations
of sexual abuse, all investigations into alleged sexual abuse must be
prompt, thorough, objective, and conducted by specially trained,
qualified investigators.
(b) Upon conclusion of a criminal investigation where the
allegation was substantiated, an administrative investigation shall be
conducted. Upon conclusion of a criminal investigation where the
allegation was unsubstantiated, the agency shall review any available
completed criminal investigation reports to determine whether an
administrative investigation is necessary or appropriate.
Administrative investigations shall be conducted after consultation
with the appropriate investigative office within DHS and the assigned
criminal investigative entity.
(c) The agency shall develop written procedures for administrative
investigations, including provisions requiring:
(1) Preservation of direct and circumstantial evidence, including
any available physical and DNA evidence and any available electronic
monitoring data;
(2) Interviewing alleged victims, suspected perpetrators, and
witnesses;
(3) Reviewing prior complaints and reports of sexual abuse
involving the suspected perpetrator;
(4) Assessment of the credibility of an alleged victim, suspect, or
witness, without regard to the individual's status as detainee, staff,
or employee, and without requiring any detainee who alleges sexual
abuse to submit to a polygraph;
(5) Documentation of each investigation by written report, which
shall include a description of the physical and testimonial evidence,
the reasoning behind credibility assessments, and investigative facts
and findings; and
(6) Retention of such reports for as long as the alleged abuser is
detained or employed by the agency, plus five years. Such procedures
shall establish the coordination and sequencing of the two types of
investigations, in accordance with paragraph (b) of this section, to
ensure that the criminal investigation is not compromised by an
internal administrative investigation.
(d) The departure of the alleged abuser or victim from the
employment or control of the agency shall not provide a basis for
terminating an investigation.
(e) When outside agencies investigate sexual abuse, the agency
shall cooperate with outside investigators and shall endeavor to remain
informed about the progress of the investigation.
Sec. 115.172 Evidentiary standard for administrative investigations.
When an administrative investigation is undertaken, the agency
shall impose no standard higher than a preponderance of the evidence in
determining whether allegations of sexual abuse are substantiated.
Discipline
Sec. 115.176 Disciplinary sanctions for staff.
(a) Staff shall be subject to disciplinary or adverse action up to
and including removal from their position and the Federal service for
substantiated allegations of sexual abuse or violating agency sexual
abuse policies.
(b) The agency shall review and approve policy and procedures
regarding disciplinary or adverse action for staff and shall ensure
that the policy and procedures specify disciplinary or adverse actions
for staff, up to and including removal from their position and from the
Federal service, when there is a substantiated allegation of sexual
abuse, or when there has been a violation of agency sexual abuse rules,
policies, or standards. Removal from their position and from the
Federal service is the presumptive disciplinary sanction for staff who
have engaged in or attempted or threatened to engage in sexual abuse,
as defined under the definition of sexual abuse of a detainee by a
staff member, contractor, or volunteer, paragraphs (1)-(4) and (7)-(8)
of the definition of ``sexual abuse of a detainee by a staff member,
contractor, or volunteer'' in Sec. 115.6.
(c) Each facility shall report all removals or resignations in lieu
of removal for violations of agency or facility sexual abuse policies
to appropriate law enforcement agencies, unless the activity was
clearly not criminal.
(d) Each agency shall make reasonable efforts to report removals or
resignations in lieu of removal for violations of agency or facility
sexual abuse policies to any relevant licensing bodies, to the extent
known.
Sec. 115.177 Corrective action for contractors and volunteers.
(a) Any contractor or volunteer suspected of perpetrating sexual
abuse shall be prohibited from contact with detainees. The agency shall
also consider whether to prohibit further contact with detainees by
contractors or volunteers who have not engaged in
[[Page 13181]]
sexual abuse, but have violated other provisions within these
standards. The agency shall be responsible for promptly reporting
sexual abuse allegations and incidents involving alleged contractor or
volunteer perpetrators to an appropriate law enforcement agency as well
as to the Joint Intake Center or another appropriate DHS investigative
office in accordance with DHS policies and procedures. The agency shall
make reasonable efforts to report to any relevant licensing body, to
the extent known, incidents of substantiated sexual abuse by a
contractor or volunteer.
(b) Contractors and volunteers suspected of perpetrating sexual
abuse may be removed from all duties requiring detainee contact pending
the outcome of an investigation, as appropriate.
Medical and Mental Care
Sec. 115.181 [Reserved]
Sec. 115.182 Access to emergency medical services.
(a) Detainee victims of sexual abuse shall have timely, unimpeded
access to emergency medical treatment and crisis intervention services,
including emergency contraception and sexually transmitted infections
prophylaxis, in accordance with professionally accepted standards of
care.
(b) Emergency medical treatment services provided to the victim
shall be without financial cost and regardless of whether the victim
names the abuser or cooperates with any investigation arising out of
the incident.
Data Collection and Review
Sec. 115.186 Sexual abuse incident reviews.
(a) The agency shall conduct a sexual abuse incident review at the
conclusion of every investigation of sexual abuse and, where the
allegation was not determined to be unfounded, prepare a written report
recommending whether the allegation or investigation indicates that a
change in policy or practice could better prevent, detect, or respond
to sexual abuse. Such review shall ordinarily occur within 30 days of
the agency receiving the investigation results from the investigative
authority. The agency shall implement the recommendations for
improvement, or shall document its reasons for not doing so in a
written response. Both the report and response shall be forwarded to
the agency PSA Coordinator.
(b) The agency shall conduct an annual review of all sexual abuse
investigations and resulting incident reviews to assess and improve
sexual abuse intervention, prevention and response efforts.
Sec. 115.187 Data collection.
(a) The agency shall maintain in a secure area all agency case
records associated with claims of sexual abuse, in accordance with
these standards and applicable agency policies, and in accordance with
established schedules. The DHS Office of Inspector General shall
maintain the official investigative file related to claims of sexual
abuse investigated by the DHS Office of Inspector General.
(b) On an annual basis, the PSA Coordinator shall aggregate, in a
manner that will facilitate the agency's ability to detect possible
patterns and help prevent future incidents, the incident-based sexual
abuse data available, including the number of reported sexual abuse
allegations determined to be substantiated, unsubstantiated, or
unfounded, or for which investigation is ongoing, and for each incident
found to be substantiated, such information as is available to the PSA
Coordinator concerning:
(1) The date, time, location, and nature of the incident;
(2) The demographic background of the victim and perpetrator
(including citizenship, age, gender, and whether either has self-
identified as gay, lesbian, bisexual, transgender, intersex, or gender
nonconforming);
(3) The reporting timeline for the incident (including the name of
individual who reported the incident, and the date and time the report
was received);
(4) Any injuries sustained by the victim;
(5) Post-report follow up responses and action taken by the agency
(e.g., supervision, referral for medical or mental health services,
etc.); and
(6) Any sanctions imposed on the perpetrator.
(c) The agency shall maintain, review, and collect data as needed
from all available agency records.
(d) Upon request, the agency shall provide all such data from the
previous calendar year to the Office for Civil Rights and Civil
Liberties no later than June 30.
Sec. 115.188 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant
to Sec. 115.187 in order to assess and improve the effectiveness of
its sexual abuse prevention, detection, and response policies,
practices, and training, including by:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective
actions for the agency as a whole.
(b) Such report shall include a comparison of the current year's
data and corrective actions with those from prior years and shall
provide an assessment of the agency's progress in preventing,
detecting, and responding to sexual abuse.
(c) The agency's report shall be approved by the agency head and
made readily available to the public through its Web site.
(d) The agency may redact specific material from the reports, when
appropriate for safety or security, but must indicate the nature of the
material redacted.
Sec. 115.189 Data storage, publication, and destruction.
(a) The agency shall ensure that data collected pursuant to Sec.
115.187 are securely retained in accordance with agency record
retention policies and the agency protocol regarding investigation of
allegations.
(b) The agency shall make all aggregated sexual abuse data from
holding facilities under its direct control and from any private
agencies with which it contracts available to the public at least
annually on its Web site consistent with agency information disclosure
policies and processes.
(c) Before making aggregated sexual abuse data publicly available,
the agency shall remove all personal identifiers.
(d) The agency shall maintain sexual abuse data collected pursuant
to Sec. 115.187 for at least 10 years after the date of the initial
collection unless Federal, State, or local law requires otherwise.
Audits and Compliance
Sec. 115.193 Audits of standards.
(a) Within three years of July 6, 2015, the agency shall ensure
that each of its immigration holding facilities that houses detainees
overnight and has adopted these standards is audited. For any such
holding facility established after July 6, 2015, the agency shall
ensure that the facility is audited within three years. Audits of new
holding facilities as well as holding facilities that have previously
failed to meet the standards shall occur as soon as practicable within
the three-year cycle; however, where it is necessary to prioritize,
priority shall be given to facilities that have previously failed to
meet the standards.
[[Page 13182]]
(1) Audits required under this paragraph (a) shall:
(i) Include a determination whether the holding facility is low-
risk based on its physical characteristics and whether it passes the
audit conducted pursuant to paragraph (a)(1)(ii) of this section,
(ii) Be conducted pursuant to Sec. Sec. 115.201 through 115.205,
and
(iii) Be coordinated by the agency with the DHS Office for Civil
Rights and Civil Liberties, which may request an expedited audit if it
has reason to believe that an expedited audit is appropriate.
(2) [Reserved]
(b) Following an audit, the agency shall ensure that any
immigration holding facility that houses detainees overnight and is
determined to be low-risk, based on its physical characteristics and
passing its most recent audit, is audited at least once every five
years.
(1) Audits required under this paragraph (b) shall:
(i) Include a determination whether the holding facility is low-
risk based on its physical characteristics and whether it passes the
audit conducted pursuant to paragraph (b)(1)(ii) of this section,
(ii) Be conducted pursuant to Sec. Sec. 115.201 through 115.205,
and
(iii) Be coordinated by the agency with the DHS Office for Civil
Rights and Civil Liberties, which may request an expedited audit if it
has reason to believe that an expedited audit is appropriate.
(2) [Reserved]
(c) Following an audit, the agency shall ensure that any
immigration holding facility that houses detainees overnight and is
determined to not be low-risk, based on its physical characteristics or
not passing its most recent audit, is audited at least once every three
years.
(1) Audits required under this paragraph (c) shall:
(i) Include a determination whether the holding facility is low-
risk based on its physical characteristics and whether it passes the
audit conducted by paragraph (c)(1)(ii) of this section,
(ii) Be conducted pursuant to Sec. Sec. 115.201 through 115.205,
and
(iii) Be coordinated by the agency with the DHS Office for Civil
Rights and Civil Liberties, which may request an expedited audit if it
has reason to believe that an expedited audit is appropriate.
(2) [Reserved]
Additional Provisions in Agency Policies
Sec. 115.195 Additional provisions in agency policies.
The regulations in this subpart B establish minimum requirements
for agencies. Agency policies may include additional requirements.
Subpart C--External Auditing and Corrective Action
Sec. 115.201 Scope of audits.
(a) The agency shall develop and issue an instrument that is
coordinated with the DHS Office for Civil Rights and Civil Liberties,
which will provide guidance on the conduct of and contents of the
audit;
(b) The auditor shall review all relevant agency policies,
procedures, reports, internal and external audits, and accreditations
for each facility type.
(c) The audits shall review, at a minimum, a sampling of relevant
documents and other records and information for the most recent one-
year period.
(d) The auditor shall have access to, and shall observe, all areas
of the audited facilities.
(e) The agency shall provide the auditor with relevant
documentation to complete a thorough audit of the facility.
(f) The auditor shall retain and preserve all documentation
(including, e.g., videotapes and interview notes) relied upon in making
audit determinations. Such documentation shall be provided to the
agency upon request.
(g) The auditor shall interview a representative sample of
detainees and of staff, and the facility shall make space available
suitable for such interviews.
(h) The auditor shall review a sampling of any available videotapes
and other electronically available data that may be relevant to the
provisions being audited.
(i) The auditor shall be permitted to conduct private interviews
with detainees.
(j) Detainees shall be permitted to send confidential information
or correspondence to the auditor.
(k) Auditors shall attempt to solicit input from community-based or
victim advocates who may have insight into relevant conditions in the
facility.
(l) All sensitive but unclassified information provided to auditors
will include appropriate designations and limitations on further
dissemination. Auditors will be required to follow all appropriate
procedures for handling and safeguarding such information.
Sec. 115.202 Auditor qualifications.
(a) An audit shall be conducted by entities or individuals outside
of the agency and outside of DHS that have relevant audit experience.
(b) All auditors shall be certified by the agency, in coordination
with DHS. The agency, in coordination with DHS, shall develop and issue
procedures regarding the certification process, which shall include
training requirements.
(c) No audit may be conducted by an auditor who has received
financial compensation from the agency being audited (except for
compensation received for conducting other audits, or other consulting
related to detention reform) within the three years prior to the
agency's retention of the auditor.
(d) The agency shall not employ, contract with, or otherwise
financially compensate the auditor for three years subsequent to the
agency's retention of the auditor, with the exception of contracting
for subsequent audits or other consulting related to detention reform.
Sec. 115.203 Audit contents and findings.
(a) Each audit shall include a certification by the auditor that no
conflict of interest exists with respect to his or her ability to
conduct an audit of the facility under review.
(b) Audit reports shall state whether facility policies and
procedures comply with relevant standards.
(c) For each of these standards, the auditor shall determine
whether the audited facility reaches one of the following findings:
Exceeds Standard (substantially exceeds requirement of standard); Meets
Standard (substantial compliance; complies in all material ways with
the standard for the relevant review period); Does Not Meet Standard
(requires corrective action). The audit summary shall indicate, among
other things, the number of provisions the facility has achieved at
each grade level.
(d) Audit reports shall describe the methodology, sampling sizes,
and basis for the auditor's conclusions with regard to each standard
provision for each audited facility, and shall include recommendations
for any required corrective action.
(e) Auditors shall redact any personally identifiable detainee or
staff information from their reports, but shall provide such
information to the agency upon request.
(f) The agency shall ensure that the auditor's final report is
published on the agency's Web site if it has one, or is otherwise made
readily available to the public. The agency shall redact any sensitive
but unclassified information
[[Page 13183]]
(including law enforcement sensitive information) prior to providing
such reports publicly.
Sec. 115.204 Audit corrective action plan.
(a) A finding of ``Does Not Meet Standard'' with one or more
standards shall trigger a 180-day corrective action period.
(b) The agency and the facility shall develop a corrective action
plan to achieve compliance.
(c) The auditor shall take necessary and appropriate steps to
verify implementation of the corrective action plan, such as reviewing
updated policies and procedures or re-inspecting portions of a
facility.
(d) After the 180-day corrective action period ends, the auditor
shall issue a final determination as to whether the facility has
achieved compliance with those standards requiring corrective action.
(e) If the facility does not achieve compliance with each standard,
it may (at its discretion and cost) request a subsequent audit once it
believes that is has achieved compliance.
Sec. 115.205 Audit appeals.
(a) A facility may lodge an appeal with the agency regarding any
specific audit finding that it believes to be incorrect. Such appeal
must be lodged within 90 days of the auditor's final determination.
(b) If the agency determines that the facility has stated good
cause for a re-evaluation, the facility may commission a re-audit by an
auditor mutually agreed upon by the agency and the facility. The
facility shall bear the costs of this re-audit.
(c) The findings of the re-audit shall be considered final.
Jeh Charles Johnson,
Secretary.
[FR Doc. 2014-04675 Filed 3-6-14; 8:45 am]
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