H. R. 933
To reform immigration detention procedures, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
March 3, 2011
Ms. ROYBAL-ALLARD (for herself and Mr. POLIS) 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
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. 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
(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
(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 CFR 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
(ii) the date on which detention in U.S. Immigration and Customs Enforcement
(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
(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
(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,
(I) limiting the detainee's access to securing legal representation;
(II) limiting the detainee's ability to prepare a legal defense to
(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
(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
(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
(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
(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
`(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
(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
(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.
(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
(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
(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 3(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. 3. 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
(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--
(A) in the matter preceding paragraph (1), by striking `(c)' and inserting
(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;
(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
`(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
`(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
`(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.';
(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. 4. 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.