Sex and Homeland Security

border patrol rapes

Detainees in the women’s wing for unauthorized immigrants at the Eloy Detention Facility, a private prison under contract by Immigration and Customs Enforcement, in Eloy, Ariz., in 2010. (John Moore/Getty Images)

John Kelly, Secretary of the Department of Homeland Security (DHS), sometimes responds to questions about stricter immigration enforcement on the southern U.S. border by suggesting it will deter women who otherwise risk sexual assault when they make the dangerous trip north.

“You’ll  probably. . .  have been [sexually] assaulted once—if you’re lucky,” the Secretary said in a typical response.

But if Secretary Kelly really wants to prevent, and punish, sexual assault, he can begin much closer to home.

From 2010 to 2016, there were “33,126 complaints of sexual and/or physical abuse against DHS component agencies.”

From 2010 to 2016, there were “33,126 complaints of sexual and/or physical abuse against DHS component agencies.” This data was reported by the San-Francisco-based Community Initiatives for Visiting Immigrants in Confinement (CIVIC) in an April 11th letter to Kelly and others, and is based on documents from the DHS Office of Inspector General (OIG). Of those complaints, 44% were made against Immigration and Customs Enforcement (ICE), and 31% against Customs and Border Protection (CBP).

The Inspector General’s office opened investigations into just 247 of the 33,126 complaints.

CIVIC, which organizes volunteer visitation to detainees and aims to end immigration detention altogether, obtained the OIG documents through a Freedom of Information Act (FOIA) request.

“We are preparing a response to the CIVIC letter,” Joanne Talbott of DHS Public Affairs wrote in a May 11 email.

Meanwhile, Talbot provided a prepared statement by DHS calling the CIVIC report “grossly inaccurate.” DHS “believes the overall incidence of such activity is very low,” the statement says, citing no evidence.

The issue of abuse by DHS agents is not new.

  • In 2014, the  Los Angeles Times reported that “13 of 809 abuse complaints sent to the [Border Patrol] agency’s internal affairs unit between January 2009 and January 2012 led to disciplinary action.”
  • In 2015, the  ACLU sued DHS “for its failure to produce records related to the abuse and mistreatment of children in the custody of” CBP and the Border Patrol.
  • In 2016,  Human Rights Watch reported that “ICE has failed to . . .  ensure that transgender women are protected from sexual abuse and harassment by guards.”

All of this was during the Obama years —before the Trump administration decided it was necessary to “to take the shackles off” ICE and CBP agents.

Sexual predators in ICE and the Border Patrol have been protected by the very nature of the immigration enforcement system.

As the Trump administration works toward expanding detention centers and gutting detention center standards, it seems inevitable that the number of such abuses will increase.

That’s because sexual predators in ICE and the Border Patrol have been protected by the very nature of the immigration enforcement system. Not only do officers have broad discretion in detaining, releasing, and transferring detainees; but when a victim is subject to deportation, speaks little or no English, and has no statutory right to legal assistance, she is of course even more vulnerable.

Retaliation against detainees who complain has always been the norm. This can include solitary confinement and transfer to distant detention centers, both of which were alleged by ICE detainees on hunger strike in Tacoma just last month.

The administration’s rhetoric about “shackles” has gotten plenty of attention. So did Kelly’s scripted petulance when he said critics  “should shut up and support” the troops. But the latter was only surprising because Kelly had fooled so many people with his mask of calm.

In fact, he had already given us several, less sensational, signals of the danger posed by his appointment.

DHS Secretary John Kelly. courtesy Joint Chiefs of Staff via Flickr

In January, during the chaotic days of the President’s first Executive Order on travel, Kelly gave a briefing at CBP headquarterswhich made clear how he would address alleged abuses in the agencies under his control.

When asked at that January briefing by a reporter from Congressional Quarterlywhether he was looking into allegations that DHS employees had violated court orders related to the Executive Order, Kelly said: “Without question, no member of the Homeland Security team ignored a court order, nor would they ignore a court order.

“I’ve heard these reports. I’ve asked people . . . [to] run down some information for me, and of course we don’t have any information [yet], but we would not ignore a court order.”

Translation: We haven’t investigated, but we know it’s not true.

Another reporter asked about allegations from lawyers at Dulles Airport that travelers had been denied access to counsel in violation of a court order, and that CBP officials had coerced lawful residents into abandoning their legal status.

CBP acting commissioner Kevin McAleenan came to the podium. He took issue with the first allegation, but his answer left open the possibility that the latter might have happened while his staff were still getting a handle on contradictory orders. McAleenan did not say his agents had broken the law, but he did promise to look into the allegations and to “make any corrections.”

Kelly smelled danger. Although he had just acknowledged that McAleenan knew more than he did about what actually took place in the airports, the Secretary stepped back to the microphone and, in a bit of heavy-handed theatre, directly addressed his subordinate instead of the press.

“Just to be clear . . . Kevin: to the best of our knowledge, no CBP officer knowingly, intentionally violated the court order?”

McAleenan: “That’s correct.”

Kelly: “Ok.”

(In April, the ACLU filed  lawsuits to obtain documents related to CBP’s implementation of the executive order because “the government has failed to substantively respond” to its  Freedom of Information Act requests.)

ICE and Border Patrol agents understand that the former Marine Corps general regularly praises their “heroic efforts” because he believes in the enforcer, not in the law. That’s why he could calmly   tell a congressional committee: “I have nothing but respect for judges, but in their world, it’s a very academic, very almost-in-a-vacuum discussion. And of course in their courtrooms, they’re protected by people like me.”

In this new version of political correctness, Kelly also seeks victimhood status for the heroes. At George Washington University, he whined that DHS agents “are often ridiculed and insulted. . . . and frequently convicted in the court of public opinion on unfounded allegations.”

In the history of ICE and the Border Patrol, whether Kelly wants to face it or not, “morale” has always meant the arbitrary exercise of authority with a minimum of constraint, oversight, or investigation into abuse allegations.

The Secretary’s political obligation is to bolster that paradigm; it’s why he was appointed.

But Kelly also has a legal obligation to protect the non-citizen detainees in his custody. There is no reason to believe he will have the courage for that job.

Mark Dow
Crime Report

Mark Dow is the author of American Gulag: Inside U.S. Immigration Prisons (California). He teaches English at Hunter College in New York. His commentary on Attorney General Jeff Sessions and ICE detainers appeared atAL.com. He welcomes comments from readers.