Immigration Oversight and Fairness Act - Directs the Secretary of Homeland Security to require live training of all Department of Homeland Security (DHS) personnel who come into contact with unaccompanied alien children.
Sets forth detention standards for immigration detention facilities.
Directs the Secretary to: (1) convene a detention advisory committee; (2) promulgate regulations regarding detainee care and custody; (3) implement secure alternatives to detention programs under which eligible aliens are released under supervision, assistance, and monitoring that ensure their appearance at all immigration interviews, appointments, and hearings; and (4) provide protective detention alternatives for specified categories of vulnerable aliens.
[Congressional Bills 111th Congress]
[From the U.S. Government Printing Office]
[H.R. 1215 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 1215
To reform immigration detention procedures, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 26, 2009
Ms. Roybal-Allard introduced the following bill; which was referred to
the Committee on the Judiciary, and in addition to the Committee on
Homeland Security, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To reform immigration detention procedures, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Immigration Oversight and Fairness
Act''.
SEC. 2. ENHANCED PROTECTIONS FOR VULNERABLE UNACCOMPANIED ALIEN
CHILDREN AND FEMALE DETAINEES.
(a) Mandatory Training.--The Secretary of Homeland Security, in
consultation with the Office of Refugee Resettlement of the Department
of Health and Human Services and independent child welfare experts,
shall mandate live training of all personnel who come into contact with
unaccompanied alien children (as defined in section 462 of the Homeland
Security Act of 2002 (6 U.S.C. 279)) in all relevant legal authorities,
policies, and procedures pertaining to this vulnerable population.
(b) Care and Transportation.--Notwithstanding any other provision
of law, the Secretary of Homeland Security shall ensure that all
unaccompanied children who will undergo any immigration proceedings
before the Department of Homeland Security and the Executive Office for
Immigration Review are duly transported and placed in the care and
legal and physical custody of the Office of Refugee Resettlement within
a maximum of 24 hours of their apprehension absent narrowly defined
exceptional circumstances, including a natural disaster or comparable
emergency beyond the control of the Secretary of Homeland Security or
the Office of Refugee Resettlement. The Secretary of Homeland Security
shall ensure that female officers are responsible and at all times
present during the transfer and transport of female detainees who are
in the custody of the Secretary of Homeland Security.
(c) Qualified Resources.--For purposes of this section, the
Secretary of Homeland Security shall provide adequately trained and
qualified staff resources at each major port of entry (as defined by
the U.S. Customs and Border Protection station assigned to that port
having in its custody over the past two fiscal years an average per
year of 50 or more unaccompanied alien children (as defined in section
462 of the Homeland Security Act of 2002 (6 U.S.C. 279))), including
U.S. Customs and Border Protection agents charged primarily with the
safe, swift, and humane transportation of unaccompanied alien children
to Office of Refugee Resettlement custody and independent licensed
social workers dedicated to ensuring the proper temporary care for the
children while in Department of Homeland Security custody prior to
their transfer to the Office of Refugee Resettlement, who will ensure
that each child--
(1) receives emergency medical care;
(2) receives mental health care in case of trauma and has
access to psychosocial health services;
(3) is provided with a pillow, linens, and sufficient
blankets to rest at a comfortable temperature, a bed, and a
mattress placed in an area specifically designated for
residential use;
(4) receives adequate nutrition;
(5) enjoys a safe and sanitary living environment;
(6) receives educational materials; and
(7) has access to at least three hours per day of indoor
and outdoor recreational programs and activities.
(d) Notification.--The Secretary of Homeland Security shall
immediately notify the Office of Refugee Resettlement of an
unaccompanied alien child in the custody of the Department of Homeland
Security to effectively and efficiently coordinate the child's transfer
to and placement with the Office of Refugee Resettlement.
(e) Notice of Rights and Access to Counsel.--The Secretary of
Homeland Security shall ensure that an independent licensed social
worker, as described in subsection (c), provides all unaccompanied
alien children upon apprehension with both a video orientation and oral
and written notice of their rights under the Immigration and
Nationality Act including their rights to relief from removal and their
rights to confer with counsel (as guaranteed under section 292 of such
Act), family, or friends while in the Department of Homeland Security's
temporary custody and relevant complaint mechanisms to report any abuse
or misconduct they may have experienced. The Secretary of Homeland
Security shall ensure that the video orientation and written notice of
rights is available in English and in the five most common native
languages spoken by the unaccompanied children held in custody at that
location during the preceding fiscal year, and that the oral notice of
rights is available in English and in the most common native language
spoken by the unaccompanied children held in custody at that location
during the preceding fiscal year.
(f) Confidentiality.--The Secretary of Health and Human Services
shall maintain the privacy and confidentiality of all information
gathered in the course of providing care, custody, placement and
follow-up services to unaccompanied alien children, consistent with the
best interest of the unaccompanied alien child, by not disclosing such
information to other government agencies or nonparental third parties.
The Secretary may share information when authorized to do so by the
child and when consistent with the child's best interest. The Secretary
may provide information to a duly recognized law enforcement entity, if
such disclosure would prevent imminent and serious harm to another
individual. All disclosures shall be duly recorded in writing and
placed in the child's files.
(g) Other Policies and Procedures.--The Secretary shall further
adopt fundamental child protection policies and procedures--
(1) for reliable age-determinations of children which
exclude the use of fallible forensic testing of children's bone
and teeth developed in consultation with medical and child
welfare experts;
(2) to ensure the safe and secure repatriation and
reintegration of unaccompanied alien children to their home
countries through specialized programs developed in close
consultation with the Secretary of State, the Office of the
Refugee Resettlement and reputable independent child welfare
experts including placement of children with their families or
nongovernmental agencies to provide food, shelter and
vocational training and microfinance opportunities;
(3) to utilize all legal authorities to defer the child's
removal if the child faces a risk of life-threatening harm upon
return including due to the child's mental health or medical
condition; and
(4) to ensure that unaccompanied alien children (as defined
in section 462 of the Homeland Security Act of 2002 (6 U.S.C.
279)) are physically separated from any adult who is not an
immediate family member and are separated by sight and sound
from immigration detainees and inmates with criminal
convictions, pretrial inmates facing criminal prosecution,
children who have been adjudicated delinquents or convicted of
adult offenses or are pending delinquency or criminal
proceedings, and those inmates exhibiting violent behavior
while in detention as is consistent with the Juvenile Justice
and Delinquency Prevention Act of 1974 (42 U.S.C. 5601 et
seq.).
SEC. 3. DETENTION CONDITIONS.
(a) Detention Requirements.--All detention facilities shall fully
comply with the following minimum requirements:
(1) Access to telephones.--Detention facilities shall
provide to detainees reasonable and equitable access to working
telephones, and the ability to contact, free of charge, legal
representatives, foreign consulates, the immigration courts,
the Board of Immigration Appeals, and the Federal courts, in
addition to persons and offices contacted for the purpose of
obtaining legal representation. Detention facilities shall
provide to detainees access to telephones during facility
working hours and on an emergency basis in accordance with the
following:
(A) The detention facility shall provide to each
detainee a copy of its rules governing telephone access
and shall post those rules, together with an
explanation of how to make calls, within sight of each
telephone available to detainees. These rules shall be
translated into Spanish and two additional languages
spoken by a substantial part of the detainee population
of the detention facility. If a detention facility has
determined that more than 5 percent of its population
is a certain ethnicity, the document should be
translated into that ethnicity's appropriate language.
The detention facility shall also provide oral
interpretation and written translation assistance to
detainees in reading any relevant materials required to
request telephone access, including oral interpretation
assistance for those who are not literate in English,
Spanish, and other languages spoken by the detainee
population of the facility.
(B) The rates charged for telephone calls shall be
reasonable and equitable and shall not significantly
impair detainees' access to telephones.
(C) The detention facility shall not restrict the
number of calls detainees may place to their legal
representatives or consular officials, or to any others
for the purpose of obtaining legal representation, or
limit the duration of those calls by rule or automatic
cut-off, unless necessary for security reasons. The
detention facility shall have a reasonable number of
working phones available to detainees, and at a minimum
one phone per each 25 users.
(D) The detention facility shall ensure the privacy
of telephone conversations between detainees and legal
representatives or consular officials, and calls made
for the purpose of obtaining legal representation.
Means to ensure privacy may include the use of privacy
panels, the placement of phones in housing pods, and
other appropriate measures.
(E) Detainees' telephone calls to a court, legal
representative, or consular official, or for the
purpose of obtaining legal representation, shall not be
monitored or recorded without a court order and without
prior notification to the detainee.
(F) The detention facility shall take and deliver
telephone messages to detainees as promptly as
possible, but no less often than twice a day. Detainees
shall be permitted to make confidential telephone calls
promptly within 8 hours of receipt of messages left by
a court, legal representative, prospective legal
representative, or consular official as soon as
reasonably possible after the delivery of the message.
(2) Quality of medical care.--Detention facilities shall
afford a continuum of prompt, high quality medical care,
including care to address medical needs that existed prior to
detention, at no cost to detainees. Such medical care shall
address all detainee health needs and shall include chronic
care, dental care, eye care, mental health care, individual and
group counseling, medical dietary needs, and other medically
necessary specialized care in accordance with the following:
(A) All detention facilities shall maintain current
accreditation by the National Commission on
Correctional Health Care and the Joint Commission on
the Accreditation of Health Care Organizations.
Detention facilities that are not accredited as of the
date of the enactment of this Act will obtain such
accreditation within one year, and if accreditation is
not obtained by that time the Secretary of Homeland
Security shall cease use of the facility. All
standards, policies and practices shall at a minimum
comply with the National Commission on Correctional
Health Care Standards for Health Services in Jails.
(B) All detention facilities shall have a
designated on-site health authority who is a physician,
a health services administrator, or a health agency.
Clinical decisions shall be made solely by a licensed
health care provider.
(C) Each immigration detainee shall receive a
comprehensive medical and mental health intake
screening by a qualified health care professional upon
arrival at the facility and each immigration detainee
shall receive a comprehensive medical and mental health
examination and assessment by a qualified health care
professional not later than 14 days after arrival.
(D) Any decision to deny requested medical care or
treatment, or care or treatment recommended by any
outside physician or specialist, to a detainee shall be
made within 72 hours or earlier if medically necessary
and shall be accompanied by a written explanation of
the reasons for the denial. This decision and the
written explanation of the decision shall be
simultaneously communicated to the detainee and to the
Secretary of Homeland Security.
(E) Detainees shall be afforded an opportunity to
obtain an appeal of any decisions denying a request for
medical treatment. Such an appeal or request for
reconsideration shall be resolved in writing within 7
days or earlier if medically necessary by an appeals
board that shall be composed of independent health care
professionals in the fields relevant to the request for
medical or mental health care. The written decision
shall be conveyed to the on-site medical provider and
the immigration detainee within 24 hours of a decision
by the appeals board.
(F) Except in emergency situations where informed
consent cannot reasonably be obtained, medical care and
treatment shall be provided only with the informed
consent of the detainee or a person authorized by the
detainee or applicable law to provide such consent.
(G) Involuntary psychotropic medication may be used
only if allowed by applicable law and then only in
emergency situations when a physician has determined,
after personally examining the patient, that--
(i) a detainee is imminently dangerous to
self or others due to a mental illness; and
(ii) involuntary psychotropic medication is
medically appropriate to treat the mental
illness and necessary to prevent harm. If a
detainee is represented by counsel, the
administration of any psychotropic drug to the
detainee shall be disclosed to the detainee's
counsel promptly and in any event within a
reasonable time prior to any hearing in which
the detainee will appear.
If a detainee is not represented by counsel, the
administration of any psychotropic drug to the detainee
shall, with the informed consent of the detainee, be
disclosed to the Immigration Court prior to any hearing
in which the detainee will appear. Any disclosure to
the court by any person of the administration of a
psychotropic drug to the detainee shall be filed under
seal and may be disclosed to other persons only in the
same manner and to the same extent that medical records
may be disclosed. Any detainee who receives medication
pursuant to this subparagraph must be afforded a
hearing pursuant to the procedures set forth in 28
C.F.R. 549.43, as described in Washington v. Harper,
494 U.S. 210 (1990), before the detainee may receive
medication again under this subparagraph.
(H) No drugs of any kind shall be administered to
detainees without their informed consent for the
purpose of sedation or controlling the detainee's
behavior during transportation or removal or for the
purpose of punishment.
(I) All detention facilities shall maintain
complete medical records for every detainee, which
shall be made available within 72 hours to any
detention facility to which the detainee may be
transferred. Medical records shall also be made
available within 72 hours to a detainee, his legal
representative, or other authorized individuals upon
request by the detainee. Any and all medical and mental
health records of a detainee shall be treated as
confidential, as required by the Health Insurance
Portability and Accountability Act of 1996.
(J) For each fiscal year after the passage of this
Act, the Secretary of Homeland Security shall report to
the Congress on a semiannual basis, and to Department
of Homeland Security Office of Inspector General within
48 hours of any in-custody death, information regarding
the death of any person who is in the custody of U.S.
Immigration and Customs Enforcement that, at a minimum,
includes--
(i) the name, gender, national origin,
alien number, and age of the deceased;
(ii) the date on which detention in U.S.
Immigration and Customs Enforcement custody
commenced;
(iii) the date and location of death;
(iv) the location of last detention;
(v) a brief description of the
circumstances surrounding the death;
(vi) the status and results of any
investigation(s) that has been conducted into
the circumstances surrounding the death;
(vii) each location where the individual
was held in U.S. Immigration and Customs
Enforcement custody or the custody of an entity
contracting with U.S. Immigration and Customs
Enforcement and the dates during which the
individual was held at each location; and
(viii) all medical records of the deceased.
(K) All detainee transfers shall take into
consideration the detainee's health and medical
fitness. Continuity of care shall be preserved during
and after transfers, and detainees shall suffer no
interruption in the provision of treatment, including
prescription medication.
(3) Sexual abuse regulations concerning care and custody of
detainees.--
(A) In general.--Detention facilities shall take
all necessary measures to prevent sexual abuse of
detainees, including sexual assaults, and shall observe
the minimum standards under the Prison Rape Elimination
Act of 2003 (42 U.S.C. 15601 et seq.).
(B) Measures where abuse occurs.--Where sexual
abuse occurs, detention facilities shall ensure that--
(i) prompt and appropriate medical
intervention is taken to minimize medical and
psychological trauma;
(ii) a medical history is taken and a
physical examination is conducted by qualified
and culturally appropriate medical
professionals to determine the extent of
physical injury and whether referral to another
medical facility is indicated;
(iii) prophylactic treatment, emergency
contraception, and follow-up for sexually
transmitted diseases are provided;
(iv) the case is evaluated by a qualified
mental health professional for crisis
intervention counseling and long-term follow-
up;
(v) victims are separated from their
abusers and are considered for release on
parole or for an alternative to detention
program; and
(vi) any and all medical and mental health
records arising out of a detainee's allegation
of sexual abuse shall be treated as
confidential, as required by the Health
Insurance Portability and Accountability Act of
1996.
(C) Reporting.--A detention facility shall not
subject any person to punishment or any other form of
retaliation for reporting incidents of sexual abuse.
(D) Investigation.--In all cases of alleged sexual
abuse, the detention facility shall conduct a thorough
and timely investigation and shall provide to the
Secretary of Homeland Security a report of the
circumstances and the response of the detention
facility. If the report is not completed within 30 days
after alleged sexual abuse comes to the attention of
the detention facility, the detention facility shall
submit to the Secretary of Homeland Security a
description of the status of the investigation and an
estimated date of completion 30 days after the alleged
sexual abuse comes to the attention of the detention
facility and every 30 days thereafter until the report
is provided to the Secretary of Homeland Security. The
report required by this subsection shall include at
minimum a determination of whether the alleged sexual
abuse occurred, an in-depth analysis of the relevant
facts including the causes of any sexual abuse that may
have occurred and whether and to what extent the
alleged abuse indicates a failure of policy, a failure
of training, a failure of oversight, or a failure of
management, and a description of the actions that the
facility will take to prevent the occurrence of similar
incidents in the future and a plan for monitoring the
implementation of those actions. The detention facility
shall provide to the Secretary of Homeland Security
periodic reports monitoring the implementation of the
plan in accordance with the schedule set forth in such
plan as approved by the Secretary of Homeland Security.
(4) Transfer of detainees.--
(A) Procedures.--In adopting procedures governing
the transfer of individuals detained under section 236
of the Immigration and Nationality Act (8 U.S.C. 1226),
and subject to the exception in subparagraph (D), the
Secretary of Homeland Security shall promulgate
regulations prohibiting transfer of a detainee if such
transfer would--
(i) negatively affect an existing attorney-
client relationship;
(ii) negatively affect the detainee's legal
proceedings, including merits or calendar
hearings, or a pending application with United
States Citizenship and Immigration Services or
the Executive Office for Immigration Review,
by--
(I) limiting the detainee's access
to securing legal representation;
(II) limiting the detainee's
ability to prepare a legal defense to
removal; or
(III) removing the detainee from
the legal venue of such proceeding;
(iii) negatively affect the detainee's
health and medical fitness; or
(iv) to the extent it does not conflict
with clauses (i), (ii), and (iii)--
(I) place the detainee in a
location more distant from the
detainee's residence than the original
detention location; or
(II) place the detainee in a
location more distant from family
members than the original detention
location.
(B) Notice.--Unless exigent circumstances dictate
an immediate transfer--
(i) the Secretary of Homeland Security
shall provide not less than 72 hours notice to
any detainee prior to transferring the detainee
to another detention facility;
(ii) detainees shall be afforded at least
one toll-free call following any transfer, and
within 24 hours after the detainee's arrival at
the transferee facility, the Secretary of
Homeland Security shall notify the detainee's
legal representative or if unrepresented, an
adult family member or other person designated
by the detainee, of the transfer and the
detainee's new location;
(iii) if removal proceedings are pending,
the Secretary of Homeland Security shall also
promptly notify the Immigration Court, Board of
Immigration Appeals, or the Circuit Court of
Appeals, as appropriate of the transfer and the
detainee's new address; and
(iv) the Secretary of Homeland Security
shall not transfer any detainee who has already
requested, and is awaiting, a bond hearing or a
bond redetermination hearing.
(C) Exception.--The Secretary may transfer a
detainee who has an existing attorney-client
relationship to an alternate detention facility if such
transfer is necessitated by a highly unusual emergency,
such as a natural disaster or comparable emergency.
(D) Protecting detainees legal rights.--If the
Secretary determines that a transfer is necessary due
to a highly unusual emergency, the Secretary shall
ensure that the detainee's legal rights are not
prejudiced and the existing attorney-client
relationship is not impaired, including evaluating the
location of the detention facility based on it
proximity to the detainee's counsel or nongovernmental
or pro bono organizations providing free or low cost
immigration legal services.
(E) Record.--In cases in which a detainee is
transferred, the Secretary shall make a record of the
reasons and circumstances necessitating such transfer.
(5) Notice.--
(A) In general.--Section 236 of the Immigration and
Nationality Act (8 U.S.C. 1226) is amended by adding at
the end the following:
``(f) Notice.--The Secretary of Homeland Security shall file the
notice to appear or other relevant charging document with the
immigration court and serve such notice on every alien detained under
this Act, within 48 hours of the detention of such alien. Any alien,
held for more than 48 hours shall be brought before an immigration
judge for a custody determination within 72 hours of the arrest or
detention of such alien. The requirements of this provision may be
tolled for no more than 30 days upon request from an alien who
demonstrates prima facie eligibility for affirmative relief. The
Secretary of Homeland Security shall--
``(1) document when a notice to appear is served on a
detainee in order to determine compliance by the Secretary of
Homeland Security with the 48-hour notice requirement; and
``(2) submit to the Committees on the Judiciary of the
Senate and the House of Representatives an annual report
concerning the Secretary of Homeland Security's compliance with
such notice requirement.''.
(B) Applicability of other law.--Nothing in section
236(f) of the Immigration and Nationality Act, as added
by subparagraph (A), shall be construed to repeal
section 236A of such Act (8 U.S.C. 1226a).
(b) Regulations Concerning Care and Custody of Detainees.--
(1) Rulemaking.--The Secretary of Homeland Security shall
promulgate new rules, or modify existing rules, based on the
report of the detention advisory committee established under
paragraph (2), to ensure detainees are treated humanely and
held in the least restrictive setting necessary for their
safety and to ensure compliance with the general minimum
requirements set forth in paragraph (3), standards regarding
classification of detainees set forth in paragraph (4), and the
special standards for vulnerable populations set forth in
paragraph (5). Such rules shall apply to all facilities in
which the Secretary of Homeland Security detains noncitizens,
including Service Processing Centers, Contract Detention
Facilities, State or local government facilities used by
Detention and Removal Operations through Intergovernmental
Service Agreements, Bureau of Prisons facilities, and any other
temporary or permanent facility used to hold detainees. The
rules required under this paragraph shall be promulgated not
later than 1 year after the Secretary of Homeland Security
receives the report of the detention advisory committee
established under paragraph (2), or 1 year after such report is
due, whichever is earlier.
(2) Detention advisory committee.--The Secretary of
Homeland Security shall convene, and receive a report from a
detention advisory committee comprised of experts from U.S.
Immigration and Customs Enforcement, U.S. Customs and Border
Protection, the Office of Refugee Resettlement, and Division of
Immigration Health Services in the Department of Health and
Human Services, and an equal number of independent experts from
nongovernmental organizations and intergovernmental
organizations with expertise in working on behalf of aliens
detained under immigration laws and vulnerable populations. The
independent experts shall at a minimum include representatives
of the American Bar Association and the United Nations High
Commissioner for Refugees. The detention advisory committee
shall review and revise all the guidelines found in the
Secretary of Homeland Security's Detention Operations Manual,
as amended, based on identifiable deficiencies and best
practices that treat aliens both safely and humanely. The
detention advisory committee shall submit a report to the
Secretary of Homeland Security within 12 months after the date
of the enactment of this Act. For good cause, the Secretary of
Homeland Security may extend the time for submission of the
advisory committees report for an additional six months.
(3) Training.--The Secretary of Homeland Security shall
develop and implement a training protocol for all personnel in
all facilities in which noncitizens are detained. The training
protocol shall include periodic updates to initial
comprehensive training. The Secretary shall monitor the
implementation of the protocol annually and shall ensure that
all personnel who are required to be trained under the protocol
have received the necessary training. The protocol shall
include--
(A) an overview of immigration detention and the
characteristics of the noncitizen detainee population;
(B) an overview of the detention standards;
(C) specific guidance on each of the detention
standards; and
(D) a description of the Secretary's quality
assurance procedures.
(4) General minimum requirements.--The Secretary of
Homeland Security's rules regarding conditions of detention
shall ensure that the following requirements are met:
(A) Fair and humane treatment.--Detainees shall not
be subject to cruel, degrading or inhumane treatment
such as verbal or physical abuse or harassment, sexual
abuse or harassment, or arbitrary punishment.
(B) Use of force and restraints.--Detainees shall
not be subjected to shackling, handcuffing, solitary
confinement, Tasers, electric shields, restraint
chairs, or strip searches unless and to the extent that
such techniques are necessary to ensure the security of
other detainees, staff, or the public and where no less
coercive or degrading measures are available to achieve
that end. These techniques shall in no event be used
for the purpose of humiliating detainees either within
or outside the detention facility. Detention facilities
shall adopt written policies pertaining to the use of
force and the use of restraints, and shall train all
staff on the proper use of such devices.
(C) Investigation of grievances.--Detainees shall
have the right to prompt, effective, transparent, and
impartial grievance procedures. Such procedures shall
include review of grievances by officials of the
Department of Homeland Security who do not work at the
same detention facility where the detainee filing the
grievance is detained in accordance with the following:
(i) An otherwise valid grievance shall not
be denied for noncompliance with a procedural
requirement if such noncompliance is due to
ignorance, fear, excusable neglect or other
reasonable cause.
(ii) Detainees shall be afforded the
opportunity to complain to staff of U.S.
Immigration and Customs Enforcement directly
and confidentially, outside the grievance
process.
(iii) Detainees shall not be subject to
retaliation for making use of the grievance
procedure or procedure for complaining directly
to staff of U.S. Immigration and Customs
Enforcement.
(iv) Detention facilities shall orally
inform detainees of the grievance procedure and
the procedure for complaining directly to staff
of U.S. Immigration and Customs Enforcement and
shall provide to every detainee a copy of those
procedures within 24 hours after admission. The
detention facility shall provide oral
interpretation and written translation
assistance to detainees in completing any
grievance or complaint forms or other relevant
materials required to comply with grievance
procedures.
(v) Detention facilities shall make an
annual report regarding the grievances
received, the responses made, and the time
period for response, and such report shall be
submitted to the Secretary of Homeland Security
on January 31 of each year.
(vi) All grievances shall be investigated.
(D) Location of facilities.--Detention facilities
shall be located, to the extent practicable, within 50
miles of a city or municipality in which there is a
demonstrated capacity to provide competent legal
representation by nonprofit legal aid organizations or
other pro bono attorneys to detained noncitizens,
including asylum seekers and other vulnerable immigrant
populations. The Secretary of Homeland Security shall
seek to use only facilities within the stated 50 mile
radius by January 1, 2012.
(E) Access to legal materials.--Detainees shall
have available an on-site law library with sufficient
space to facilitate detainees' legal research and
preparation of documents. The law library's holdings
shall include up-to-date copies of legal materials
designated by the Secretary of Homeland Security,
including immigration law materials. The law library
shall be provided with adequate equipment for legal
research and the preparation of legal documents. Such
equipment shall include, at a minimum, computers,
printers, typewriters, and copiers. Information
regarding the availability of the library, procedures
for requesting its use, and instruction on the use of
the library and library equipment shall be provided to
all detainees at the time of admission into the
detention facility, and shall be posted in the law
library together with a list of the library's holdings.
The detention facility will make available to detainees
any assistance that may be necessary to allow detainees
to use the library effectively and shall provide
special assistance as the Secretary of Homeland
Security may prescribe to detainees who are not
literate in English. Library services, including access
to databases and printing and copying, shall be
provided without charge to detainees.
(F) Legal visits.--
(i) In general.--Legal visits shall not be
restricted absent narrowly defined exceptional
circumstances, including a natural disaster or
comparable emergency beyond the control of the
Secretary of Homeland Security.
(ii) Procedures.--Detainees shall be
entitled to private meetings with their current
or prospective legal representatives or their
legal assistants. Interpreters shall be allowed
to accompany legal representatives and legal
assistants on legal visits subject to
appropriate security procedures. Legal visits
shall be permitted a minimum of 8 hours per day
on regular business days and 4 hours per day on
weekends and holidays, except that if lack of
space for interviews at the detention facility,
the conduct of immigration hearings on site, or
other factors lead to excessive delay between
the time the legal representative is ready to
visit the detainee and the time space becomes
available, the Secretary of Homeland Security
shall require such additional time for legal
visits or other measures as may be sufficient
to avoid excessive delay. Excessive delay for
purposes of this paragraph is delay of 2 hours
or more, occurring more than 2 times per month
over a 12-month period. Detention facilities
shall maintain a procedure allowing legal
representatives and legal assistants to call
ahead to determine if a detainee is held at
that facility, and they shall take messages
from legal representatives and promptly deliver
them to the detainee. Messengers, including
individuals who are not attorneys, legal
representatives, or legal assistants, shall be
permitted to deliver documents for detainees to
and from the facility. Detention facilities
shall promptly and prominently post the most
current official list of pro bono legal
organizations and their contact information in
detainee housing units and other appropriate
areas, and such lists shall be updated by the
Secretary of Homeland Security on a semi-annual
basis. Detention facilities may not retaliate
in any way, including denial or limitation of
access to detention facilities, for complaints
or public or private statements made by legal
representatives regarding the detention
facility's compliance with regulations relating
to conditions of detention.
(G) Special correspondence.--Special correspondence
shall not be read by staff of the detention facility or
other personnel, contractors, or agents of the
Secretary of Homeland Security, and shall not be opened
outside the presence of the detainee. For this purpose,
special correspondence includes detainees' written
communications to or from private attorneys and other
legal representatives; government attorneys; judges and
courts; embassies and consulates; the president and
vice president of the United States, members of the
Congress, officers and other personnel of the
Department of Justice; officers and other personnel of
the Department of Homeland Security; officers and other
personnel of the U.S. Public Health Service;
administrators of grievance systems; State and local
officials, representatives of the news media, and
representatives of nongovernmental organizations and
intergovernmental organizations working on behalf of
aliens held in detention and vulnerable populations.
Correspondence will only be treated as special
correspondence if marked ``special correspondence'' or
``legal mail'' or if the title and office of the sender
(for incoming correspondence) or addressee (for
outgoing correspondence) are unambiguously identified
on the envelope, clearly indicating that the
correspondence is special correspondence. Special
correspondence shall be promptly delivered and promptly
posted. In general, correspondence will be deemed
promptly delivered if it is delivered to the detainee
within 24 hours after its receipt by the detention
facility, and correspondence will be deemed promptly
posted if it is placed into the United States mail the
next day on which the Post Office is open for business
after the detainee places the correspondence in the
location designated by the facility for outgoing mail.
(H) Access to detention facilities.--Detention
facilities shall afford access as follows:
(i) Subject to reasonable conditions to
protect the security of the facility, detention
facilities shall afford access to private
attorneys, other legal representatives and
legal personnel such as paralegals and Board of
Immigration Appeals accredited representatives;
government attorneys; judges and courts;
embassies and consulates; the president and
vice president of the United States, members of
Congress and their staff; officers and other
personnel of the Department of Justice;
officers and other personnel of the Department
of Homeland Security; officers and other
personnel of the U.S. Public Health Service;
administrators of grievance systems; State and
local officials, representatives of the news
media, and representatives of nongovernmental
organizations, community service organizations,
and intergovernmental organizations.
(ii) Independent observers, including
nongovernmental organizations, shall be
permitted to conduct site visits, meet
privately with detainees, test telephones and
pro bono calling platforms, and take other
reasonable steps to monitor compliance with
regulations regarding conditions of detention.
Such observers and organizations shall not be
prohibited from issuing public reports on the
findings of monitoring visits.
(iii) Detention facilities shall
accommodate requests for facility tours within
a reasonable time not to exceed 1 week.
(iv) Access of media representatives to
detention facilities and individual detainees
may be restricted only to the extent necessary
to preserve the privacy of detainees, the
security and good order of the facility, the
safety of the interviewer, national security,
or any other obligation imposed by law or court
order. Such access may not be restricted based
on the content of the media representative's
reporting, and retaliation against detainees
and members of the media based on the content
of their speech shall be prohibited.
(v) Detention facilities may not retaliate
in any way, including denial or limitation of
access to detention facilities, against any
visitor for complaints, or public or private
statements, regarding the detention facility's
compliance with regulations relating to
conditions of detention.
(I) Translation capabilities.--Detention facilities
shall employ staff that, to the extent practicable, is
qualified in the languages represented in the
population of detainees at each such facility and shall
provide alternative translation services where
necessary.
(J) Recreational programs and activities.--
Detainees shall be afforded access of at least one hour
per day to indoor and outdoor recreational programs and
activities.
(K) Safe and sanitary living environment.--
Detention facilities shall house no more individuals
than permitted by the rated bed capacity for the
facility, where the rated bed capacity is defined by
the original design capacity, plus or minus capacity
changes resulting from building additions, reductions,
or revisions. Each detainee shall receive appropriate
clothing and a bed and a mattress placed in an area
specifically designated for residential use, rather
than an area re-tasked for residential use such as
common dayrooms, recreation areas, or visitation rooms.
Detention facilities shall be maintained in a safe and
sanitary condition, and adequate ventilation and
reasonably comfortable indoor temperatures shall be
maintained at all times.
(L) Legal orientation to ensure effective
immigration proceedings.--
(i) In general.--The Attorney General, in
consultation with the Secretary of Homeland
Security, shall ensure that all detained
aliens, including unaccompanied minors, in
immigration proceedings receive legal
orientation from an independent nongovernmental
organization through a program administered and
implemented by the Executive Office for
Immigration Review of the Department of
Justice.
(ii) Content of program.--The legal
orientation program developed pursuant to this
subparagraph shall be based on the Legal
Orientation Program carried out by the
Executive Office for Immigration Review on the
date of the enactment of this Act.
Presentations for minors shall utilize a child-
centered model.
(5) Classification.--The Secretary of Homeland Security's
rules shall ensure that detainees with no history of a criminal
conviction are separated by sight and sound from detainees and
inmates with criminal convictions, pretrial inmates facing
criminal prosecution, and those inmates exhibiting violent
behavior while in detention.
(6) Vulnerable populations.--The Secretary of Homeland
Security's rules regarding conditions of detention for
vulnerable populations shall--
(A) recognize the unique needs of asylum seekers,
victims of torture and trafficking, families with
children, detainees who do not speak English, detainees
with special religious, cultural or spiritual
considerations, and vulnerable populations listed in
section 4(c); and
(B) ensure that procedures and conditions of
detention are appropriate for such vulnerable
populations.
(7) Staffing.--For purposes of this subsection and
protecting vulnerable populations, the Secretary of Homeland
Security shall appoint at least three members to the
Directorate of Policy at the GS-15 level with substantial
academic credentials and expertise in working directly with
vulnerable populations including children, families and victims
of trafficking, trauma, and torture who shall be responsible
for setting, implementing, and overseeing policy and regulatory
developments concerning vulnerable populations.
SEC. 4. SECURE ALTERNATIVES TO DETENTION.
(a) In General.--Subject to the availability of appropriations, the
Secretary of Homeland Security shall fully implement and utilize secure
alternatives to detention programs.
(b) Secure Alternatives to Detention Programs.--
(1) Nature of the program.--For purposes of this section,
the programs referred to in subsection (a) are programs under
which eligible aliens are released under supervision,
assistance and monitoring that ensure they appear at all
immigration interviews, appointments, and hearings. The
elements of the secure alternatives to detention programs are--
(A) group presentations and individual screening;
(B) provision of services to aliens released; and
(C) on-going assistance, supervision, and
monitoring.
(2) Voluntary participation.--An alien's participation in
the program is voluntary and shall not confer any rights or
benefits to the alien under the Immigration and Nationality Act
(8 U.S.C. 1101 et seq.).
(3) Program development.--The program shall be developed in
accordance with the following guidelines:
(A) The Secretary of Homeland Security shall design
the program in consultation with nongovernmental
organizations and academic experts in both the
immigration and the criminal justice fields.
(B) All aliens in the custody of the Secretary of
Homeland Security deemed eligible for secure
alternatives to detention programs shall be released in
the least restrictive setting needed to ensure
appearance at all immigration interviews, appointments
and hearings. The programs shall utilize a continuum of
methods, including releasing the alien to an individual
or organizational sponsor, a supervised group home, or
a supervised, non-penal community setting.
(C) Nongovernmental organizations and State and
local social service agencies that serve immigrants
shall be contracted to conduct group and individual
screening and provide services to program participants.
(D) The Secretary of Homeland Security shall ensure
that each alien participates in a legal presentation
provided through the legal orientation presentation
program administered by the Executive Office for
Immigration Review.
(c) Protection of Vulnerable Populations.--Within 72 hours of
detaining an alien, the Secretary of Homeland Security shall screen the
alien to determine if he or she falls into the following designated
groups. Any alien described in the following designated groups who
meets the criteria set forth under section 236(b) of the Immigration
and Nationality Act, as amended by this Act, shall be released on
parole, a reasonable bond, or the alien's own recognizance subject to
the requirements of such section 236(b):
(1) Aliens who have serious medical or mental health needs
or a disability.
(2) Pregnant or nursing women.
(3) Aliens who are being detained with one or more of their
children.
(4) Aliens who provide financial, physical, and other
direct support to their minor children, parents, or other
dependents.
(5) Aliens who are over the age of 65.
(6) Children (as defined at section 101(c)(1) of the
Immigration and Nationality Act (8 U.S.C. 1101(c)(1))).
(7) Victims of abuse, violence, crime or trafficking.
(8) Asylum seekers and torture survivors who have
demonstrated a credible fear of persecution or a reasonable
fear of torture.
(9) Other groups designated in regulations or guidance
promulgated after the date of the enactment of this Act by the
Secretary of Homeland Security.
(10) Individuals who have a nonfrivolous claim to United
States citizenship or aliens who are eligible for relief under
a provision of the Immigration and Nationality Act.
(d) Options Regarding Detention Decisions for Vulnerable
Populations and Placement in Alternatives to Detention.--Section 236 of
the Immigration and Nationality Act (8 U.S.C. 1226) is amended--
(1) in subsection (a)--
(A) in the matter preceding paragraph (1), by
striking ``(c)'' and inserting ``(d)'';
(B) in paragraph (2)--
(i) in subparagraph (A), by striking ``or''
at the end;
(ii) in subparagraph (B), by striking
``but'' at the end; and
(iii) by inserting after subparagraph (B)
the following:
``(C) the alien's own recognizance; and'';
(C) by redesignating paragraph (3) as paragraph
(4); and
(D) by inserting after paragraph (2) the following:
``(3) may enroll the alien in a secure alternatives to
detention program; but'';
(2) by redesignating subsections (b), (c), (d), and (e) as
subsections (e), (f), (g), and (h) respectively;
(3) by inserting after subsection (a) the following:
``(b) Custody Decisions for Vulnerable Populations.--
``(1) In general.--Not later than 72 hours after an alien's
detention unless the 72 hour requirement is waived in writing
by the alien, an alien who is a member of a vulnerable
population (as defined by subsection (c)) shall be released
from the Secretary of Homeland Security's custody and shall not
be subject to electronic monitoring unless the Secretary of
Homeland Security demonstrates that the alien--
``(A) is subject to mandatory detention under
section 235(b)(1)(B)(iii)(IV), 236(c) or 236A; or
``(B) poses a flight risk or a risk to others or
national security.
``(2) Release.--An alien shall be released under this
subsection--
``(A) on the alien's own recognizance;
``(B) by posting a reasonable bond under subsection
(a); or
``(C) on parole in accordance with section
212(d)(5)(A).
``(c) Participation in Alternatives to Detention.--An alien who is
denied release on recognizance, parole, or bond, or is unable to pay
the bond shall be selected for participation in a secure alternatives
to detention program unless the Secretary of Homeland Security
demonstrates by substantial evidence that the alien--
``(1) is subject to mandatory detention under section
235(b)(1)(B)(iii)(IV) or 236A; or
``(2) is a flight risk or the alien's participation in the
program would create a risk to others or national security.
``(d) Decisions Under This Section.--In the case of a decision
under subsection (a), (b), or (c), the following shall apply:
``(1) The decision shall be made in writing and shall be
served upon the individual in the language spoken by the alien.
A decision to continue detention without bond or parole shall
specify in writing the reasons for that decision.
``(2) The decision shall be served upon the alien within 72
hours of the individual's detention or, in the case of an
individual subject to section 235, 238, or 241(a)(5) within 72
hours of a positive credible or reasonable fear determination.
``(3) An alien subject to this section, including all
aliens who are entitled to a removal hearing under section 240,
may at any time after being served with the Secretary of
Homeland Security's decision under subsections (a), (b), or (c)
request a redetermination of that decision by an immigration
judge.
``(4) All custody decisions by the Secretary of Homeland
Security shall be subject to redetermination by an immigration
judge. Nothing in this subsection shall be construed to prevent
an individual from requesting a bond redetermination.
``(5) The Attorney General or an immigration judge, at any
time, may redetermine an alien's classification under
subsection (c), the bond of someone released, or the custody
status of someone placed in an alternatives to detention
program. Nothing in this subsection would preclude a person
from being released on bond after initially participating in an
alternatives to detention program.''; and
(4) in subsection (f), as redesignated, in paragraph (2),
by inserting ``or for humanitarian reasons,'' after ``such an
investigation,''.
(e) Eligibility and Operations.--Nothing in this section shall be
construed to modify the care and custody of unaccompanied alien
children (as defined in section 462(g)(2) of the Homeland Security Act
(6 U.S.C. 279(g)(2))) who shall be considered to be in the care and
exclusive legal and physical custody of the Secretary of Health and
Human Services. Such children shall be subject to removal proceedings
under section 240 of the Immigration and Nationality Act (8 U.S.C.
1229a), with the exception of children from contiguous countries
eligible for administrative voluntary departure, and shall not be
permitted to participate in the program.
(f) Less Restrictive Custodial Detention.--If an alien is
determined not to meet the requirements for release on recognizance,
bond or parole, or subsequently does not meet the requirements for
secure alternatives to detention programs, the alien shall be
considered for placement in less restrictive forms of custody:
(1) Less restrictive forms of custodial detention include
electronic monitoring such as the use of ankle bracelets that
monitor an individual's movement and the use of similar
electronic devices.
(2) An individualized determination shall be made in each
alien's case about the use of electronic monitoring.
(3) Aliens who would otherwise be subject to detention
including under section 236 of such Act (8 U.S.C. 1226) may be
placed in electronic monitoring or other less restrictive forms
of custody.
(4) Subject to the availability of appropriations,
facilities shall be developed and used that offer the least
restrictive secure setting for aliens in custody.
SEC. 5. PROGRAM OVERSIGHT AND REVIEW.
(a) Relationships of Application to Certain Orders.--An alien who
is present in the United States and has been ordered excluded,
deported, removed, or ordered to depart voluntarily from the United
States under any provision of the Immigration and Nationality Act--
(1) notwithstanding such order, may be selected for a
secure alternatives to detention program; and
(2) shall not be required to file a separate motion to
reopen, reconsider, or vacate the exclusion, deportation,
removal, or voluntary departure order.
(b) Implementing Regulations.--Not later than 180 days after the
date of the enactment of this Act, the Secretary of Homeland Security
shall promulgate regulations to implement the secure alternatives to
detention programs.
(c) Reporting Requirements.--Not later than 365 days after the date
of the enactment of this Act and annually thereafter, the Secretary of
Homeland Security shall submit to the Committee on Homeland Security of
the House of Representatives, the Committee on the Judiciary of the
House of Representatives, the Committee on Homeland Security and
Governmental Affairs of the Senate, and the Committee on the Judiciary
of the Senate a report that details all policies, regulations, and
actions taken to comply with the provisions in this Act and the
amendments made by this Act, including efforts to increase the use of
the secure alternatives to detention programs, and a description of
efforts taken to ensure that all aliens in expedited removal
proceedings are residing under conditions that are safe, secure, and
healthy.
(d) Authorization of Appropriations.--There are authorized to be
appropriated to the Secretary of Homeland Security such sums as may be
necessary to carry out this Act and the amendments made by this Act.
Amounts appropriated pursuant to this subsection shall remain available
until expended.
<all>
Introduced in House
Introduced in House
Sponsor introductory remarks on measure. (CR H2866)
Referred to House Judiciary
Referred to the Committee on the Judiciary, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to House Homeland Security
Referred to the Subcommittee on Border, Maritime, and Global Counterterrorism.
Referred to the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law.
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