Download:
pdf |
pdfOffice of the Secretary, Homeland Security
lasting until, but not beyond, December 31, 2009. DHS shall notify a State of
its acceptance of the State’s request
for initial extension within 45 days of
receipt.
(b) States granted an initial extension may file a request for an additional extension until no later than
May 10, 2011, by submitting a Material
Compliance Checklist demonstrating
material compliance, per § 37.51(b) with
certain elements of subparts A through
E as defined by DHS. Such additional
extension request must be filed by December 1, 2009. DHS shall notify a
State whether an additional extension
has been granted within 45 days of receipt of the request and documents described above.
(c) Subsequent extensions, if any,
will be at the discretion of the Secretary.
[73 FR 5331, Jan. 29, 2008, as amended at 74
FR 49309, Sept. 28, 2009]
§ 37.65 Effect of failure to comply with
this part.
(a) Any driver’s license or identification card issued by a State that DHS
determines is not in compliance with
this part is not acceptable as identification by Federal agencies for official
purposes.
(b) Driver’s licenses and identification cards issued by a State that has
obtained an extension of the compliance date from DHS per § 37.51 are acceptable for official purposes until the
end of the applicable enrollment period
under § 37.5; or the State subsequently
is found by DHS under this Subpart to
not be in compliance.
(c) Driver’s licenses and identification cards issued by a State that has
been determined by DHS to be in material compliance and that are marked to
identify that the licenses and cards are
materially compliant will continue to
be accepted by Federal agencies after
the expiration of the enrollment period
under § 37.5, until the expiration date
on the face of the document.
Pt. 115
Subpart F—Driver’s Licenses and
Identification Cards Issued
Under section 202(d)(11) of
the REAL ID Act
§ 37.71 Driver’s licenses and identification cards issued under section
202(d)(11) of the REAL ID Act.
(a) Except as authorized in § 37.27,
States that DHS determines are compliant with the REAL ID Act that
choose to also issue driver’s licenses
and identification cards that are not
acceptable by Federal agencies for official purposes must ensure that such
driver’s licenses and identification
cards—
(1) Clearly state on their face and in
the machine readable zone that the
card is not acceptable for official purposes; and
(2) Have a unique design or color indicator that clearly distinguishes them
from driver’s licenses and identification cards that meet the standards of
this part.
(b) DHS reserves the right to approve
such designations, as necessary, during
certification of compliance.
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.
259
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00269
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Pt. 115
6 CFR Ch. I (1–1–15 Edition)
RESPONSIVE PLANNING
DATA COLLECTION AND REVIEW
115.21 Evidence protocols and forensic medical examinations.
115.22 Policies to ensure investigation of allegations and appropriate agency oversight.
115.86 Sexual abuse incident reviews.
115.87 Data collection.
115.88 Data review for corrective action.
115.89 Data storage, publication, and destruction.
TRAINING AND EDUCATION
AUDITS AND COMPLIANCE
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.
115.95 Additional provisions in agency policies.
ASSESSMENT FOR RISK OF SEXUAL
VICTIMIZATION AND ABUSIVENESS
Subpart B—Standards for DHS Holding
Facilities
115.41 Assessment for risk of victimization
and abusiveness.
115.42 Use of assessment information.
115.43 Protective custody.
115.93
Audits of standards.
ADDITIONAL PROVISIONS IN AGENCY POLICIES
COVERAGE
115.110
Coverage of DHS holding facilities.
PREVENTION PLANNING
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.
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
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.
115.141 Assessment for risk of victimization
and abusiveness.
REPORTING
115.151 Detainee reporting.
115.152–115.153 [Reserved]
115.154 Third-party reporting.
260
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00270
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
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
115.202
115.203
115.204
115.205
Scope of audits.
Auditor qualifications.
Audit contents and findings.
Audit corrective action plan.
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.
SOURCE: 79 FR 13165, Mar. 7, 2014, unless
otherwise noted.
§ 115.5 General definitions.
For purposes of this part, the term—
Agency means the unit or component
of DHS responsible for operating or su-
§ 115.5
pervising 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 nonUnited 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
261
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00271
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.6
6 CFR Ch. I (1–1–15 Edition)
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 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.
§ 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,
262
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00272
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
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
§ 115.11
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
§ 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
§ 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.
263
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00273
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.12
6 CFR Ch. I (1–1–15 Edition)
§ 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.
§ 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.
(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 le-
gitimate operational functions of the
facility.
§ 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.
§ 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
264
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00274
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
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
§ 115.16
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.
§ 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
265
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00275
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.17
6 CFR Ch. I (1–1–15 Edition)
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
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.
§ 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
266
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00276
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
detainees, the requirements of this section otherwise applicable to the agency
also apply to the facility and its staff.
§ 115.18 Upgrades
technologies.
to
facilities
and
(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
§ 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 quali-
§ 115.22
fied staff member from a communitybased 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.
(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.
§ 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
267
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00277
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.31
6 CFR Ch. I (1–1–15 Edition)
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
§ 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.
268
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00278
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
§ 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.
§ 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, staffon-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
§ 115.34
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.
(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.
§ 115.34 Specialized
tigations.
training:
(a) In addition to the general training provided to all facility staff and
employees pursuant to § 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.
269
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00279
Fmt 8010
Inves-
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.35
6 CFR Ch. I (1–1–15 Edition)
§ 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 parttime 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
§ 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 selfidentified as gay, lesbian, bisexual,
transgender, intersex, or gender nonconforming;
(8) Whether the detainee has selfidentified 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.
§ 115.42 Use of assessment information.
(a) The facility shall use the information from the risk assessment under
270
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00280
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
§ 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 selfidentification 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.
§ 115.43 Protective custody.
(a) The facility shall develop and follow written procedures consistent with
the standards in this subpart for 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
§ 115.43
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
271
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00281
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.51
6 CFR Ch. I (1–1–15 Edition)
(3) Whether the placement is only as
a last resort and when no other viable
housing options exist.
REPORTING
§ 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.
§ 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.
§ 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
272
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00282
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
such communications will be monitored and the extent to which reports
of abuse will be forwarded to authorities in accordance with mandatory reporting laws.
§ 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.
OFFICIAL RESPONSE FOLLOWING A
DETAINEE REPORT
§ 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.
§ 115.62
§ 115.64
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.
§ 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.
§ 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
273
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00283
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.65
6 CFR Ch. I (1–1–15 Edition)
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.
§ 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.
§ 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.
§ 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.
§ 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
§ 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 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:
274
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00284
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
(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
§ 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
§ 115.73
(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.
§ 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.
§ 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.
275
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00285
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.76
6 CFR Ch. I (1–1–15 Edition)
DISCIPLINE
§ 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 § 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.
§ 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.
§ 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 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.
276
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00286
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
MEDICAL AND MENTAL CARE
§ 115.81 Medical and mental health assessments; history of sexual abuse.
(a) If the assessment pursuant to
§ 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.
§ 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.
§ 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
§ 115.86
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
§ 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.
277
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00287
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.87
6 CFR Ch. I (1–1–15 Edition)
(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.
§ 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 incidentbased 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;
(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.
§ 115.88 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant to
§ 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
278
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00288
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
§ 115.112
indicate the nature of the material redacted.
ADDITIONAL PROVISIONS IN AGENCY
POLICIES
§ 115.89 Data storage, publication, and
destruction.
§ 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.
(a) The agency shall ensure that data
collected pursuant to § 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
§ 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
§ 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
§§ 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.
Subpart B—Standards for DHS
Holding Facilities
COVERAGE
§ 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
§ 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.
§ 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
279
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00289
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.113
6 CFR Ch. I (1–1–15 Edition)
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.
§ 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 incident
review reports, and any other relevant
factors, including but not limited to
the length of time detainees spend in
agency custody.
§ 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.
§ 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
280
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00290
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
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.
§ 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,
§ 115.117
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.
§ 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 selfevaluations 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
281
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00291
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.118
6 CFR Ch. I (1–1–15 Edition)
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 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.
§ 115.118 Upgrades
technologies.
to
facilities
and
(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
§ 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.
§ 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
282
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00292
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
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
§ 115.131 Employee, contractor,
volunteer training.
and
(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,
§ 115.134
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.
§ 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.
§ 115.133
[Reserved]
§ 115.134 Specialized training: Investigations.
(a) In addition to the training provided to employees, DHS agencies 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.
283
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00293
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.141
6 CFR Ch. I (1–1–15 Edition)
ASSESSMENT FOR RISK OF SEXUAL
VICTIMIZATION AND ABUSIVENESS
§ 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 selfidentified as gay, lesbian, bisexual,
transgender, intersex, or gender nonconforming;
(8) Whether the detainee has selfidentified 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
§ 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.
§§ 115.152–115.153
[Reserved]
§ 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
§ 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
284
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00294
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
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.
§ 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.
§ 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
§ 115.165
for investigation in accordance with
these standards.
§ 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;
(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.
§ 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
285
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00295
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.166
6 CFR Ch. I (1–1–15 Edition)
need for medical or social services, unless the victim requests otherwise.
§ 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.
§ 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
§ 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.
§ 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
§ 115.176 Disciplinary
staff.
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00296
Fmt 8010
for
(a) Staff shall be subject to disciplinary or adverse action up to and including removal from their position
286
VerDate Sep<11>2014
sanctions
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
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 § 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.
§ 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
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
§ 115.186
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
§ 115.181
[Reserved]
§ 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
§ 115.186 Sexual
views.
abuse
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00297
Fmt 8010
re-
(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
287
VerDate Sep<11>2014
incident
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.187
6 CFR Ch. I (1–1–15 Edition)
abuse intervention, prevention and response efforts.
§ 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 incidentbased 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.
§ 115.188 Data review for corrective
action.
(a) The agency shall review data collected and aggregated pursuant to
§ 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.
§ 115.189 Data storage,
and destruction.
(a) The agency shall ensure that data
collected pursuant to § 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
§ 115.187 for at least 10 years after the
date of the initial collection unless
Federal, State, or local law requires
otherwise.
288
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00298
Fmt 8010
publication,
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
AUDITS AND COMPLIANCE
§ 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.
(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
§§ 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 lowrisk, 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
§§ 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
§ 115.201
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
§§ 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
§ 115.195 Additional
agency policies.
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00299
Fmt 8010
in
The regulations in this subpart B establish minimum requirements for
agencies. Agency policies may include
additional requirements.
Subpart C—External Auditing and
Corrective Action
§ 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.
289
VerDate Sep<11>2014
provisions
Sfmt 8010
Q:\06\6V1.TXT
31
§ 115.202
6 CFR Ch. I (1–1–15 Edition)
(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.
§ 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.
§ 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
(including law enforcement sensitive
information) prior to providing such
reports publicly.
§ 115.204
Audit corrective action plan.
(a) A finding of ‘‘Does Not Meet
Standard’’ with one or more standards
290
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00300
Fmt 8010
Sfmt 8010
Q:\06\6V1.TXT
31
Office of the Secretary, Homeland Security
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
§ 115.205
subsequent audit once it believes that
is has achieved compliance.
§ 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 reevaluation, 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.
PARTS 116–199 [RESERVED]
291
VerDate Sep<11>2014
16:42 Feb 12, 2015
Jkt 235011
PO 00000
Frm 00301
Fmt 8010
Sfmt 8006
Q:\06\6V1.TXT
31
| File Type | application/pdf |
| File Title | CFR-2016-title6-vol1-part115.pdf |
| Author | saelmore |
| File Modified | 2017-05-31 |
| File Created | 2017-05-31 |