HELENA, Mont. – A national immigrants’ rights group on Friday filed a civil rights complaint with the U.S. Department of Homeland Security asking the agency to investigate the alleged rape of an undocumented Mexican national who was in the agency’s custody.

The complaint was filed with the agency’s Office for Civil Rights and Civil Liberties. It details the alleged assault on a 40-year-old laborer who was picked up by Immigration and Customs Enforcement officials after a routine traffic stop in Sidney. The laborer was being held at an ICE-contracted jail in Boulder when the alleged assault took place.

An attorney with the National Immigrant Justice Center said the case is a prime example of the need for DHS officials to hurry and adopt policies based on the 2003 Prison Rape Elimination Act into its regulations governing the detention of non-U.S. citizens.

On Tuesday, ICE issued a statement via email regarding the group’s complaint:

“U.S. Immigration and Customs Enforcement takes these allegations of sexual assault extremely seriously. We are working closely with Jefferson County Sheriff’s Office regarding its ongoing investigation. ICE’s Office of Professional Responsibility is also conducting a separate but related investigation of these very serious allegations,” the statement said.

NIJC attorney Claudia Valenzuela said civil immigration violators should not be treated or detained as criminals in the first place.

“The Supreme Court ruled long ago that immigration violations are civil violations and deportation is not a criminal punishment,” Valenzuela said. “We are very concerned about equating immigrant detainees with any sort of criminal offense or criminal punishment, and one of the big areas of concern for us is the issue of sexual assault within immigration detention facilities.

Valenzuela said immigrant detainees can become “perfect victims” for sexual assault because they often don’t speak English, are frightened by their imprisonment and are in the process of being removed from the country. If a rape victim is deported before he or she reports the assault to authorities, then often no one may ever know an assault occurred, Valenzuela said.

A U.S. Justice Department “National Crime Victimization Survey” from 2008-2012 found that nearly 60 percent of rapes are not reported in the United States. A 2007 report by the federal Bureau of Justice Statistics found that nearly one in 20 prisoners in the United States reported being the victim of rape or sexual abuse behind bars.

Valenzuela said that number could be higher because many immigrant detainees may never report an assault before being deported.

“We’ve been documenting these incidences for some years now,” Valenzuela said. “That’s why we’ve been working very actively to encourage the Department of Homeland Security to extend the Prison Rape Elimination Act standards that had been announced by the Department of Justice.”

Congress passed the Prison Rape Elimination Act, or PREA, after the nonprofit group Human Rights Watch issued a scathing 2001 report documenting widespread inmate on inmate sexual assault and sex slavery occurring within state and federal prison walls. The federal legislation, which passed by unanimous consent in both houses of Congress and signed by President George W. Bush in 2004, created a “zero-tolerance” policy for prison rape in the United States.

According to the NIJC complaint, the Jefferson County Jail is governed by the Department of Justice’s PREA rules, which say specific protections should be in place for individuals who are of limited English proficiency and victims of sexual assault while in custody.

“DHS has an obligation to secure the well-being of all individuals in its custody, as reflected in its own detention standards, statutes, regulations, and under the U.S. Constitution,” the complaint states.

However, in 2011, the Justice Department clarified its PREA rules to say that rules did not extend to individuals in DHS custody.

That lead to a May 17, 2012, memo from President Barack Obama administration instructing all executive branch agencies not covered by PREA rules to propose regulations of their own within 120 days of the memo, with final regulations to be issued 240 days from that date.

“To advance the goals of PREA, we must ensure that all agencies that operate confinement facilities adopt high standards to prevent, detect, and respond to sexual abuse,” Obama stated in the memo.

Valenzuela says in her complaint that the laborer’s detention should have been covered under DHS PREA regulations, but those regulations have never been implemented, despite the deadlines set forth by Obama’s 2012 memo.

In a statement, DHS said the agency has undertaken its own rule-making process to apply PREA to immigration confinement facilities and intends to finalize the rule-making by the end of the year.

“The Department of Homeland Security is deeply committed to eliminating sexual abuse in immigration detention; our zero-tolerance policy is a key part of immigration detention reform, which has been and continues to be a departmental priority,” the statement read in part.

Adams also reports for the Great Falls (Mont.) Tribune

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