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H.R. 3923: Dignity for Detained Immigrants Act of 2017

The text of the bill below is as of Oct 3, 2017 (Introduced).


I

115th CONGRESS

1st Session

H. R. 3923

IN THE HOUSE OF REPRESENTATIVES

October 3, 2017

(for himself, Ms. Jayapal, Mr. Blumenauer, Ms. Judy Chu of California, Mr. Cicilline, Mr. Cohen, Mr. Cummings, Mr. Danny K. Davis of Illinois, Mr. Ellison, Mr. Espaillat, Mr. Foster, Mr. Gallego, Mr. Gutiérrez, Ms. Hanabusa, Ms. Jackson Lee, Mr. Jeffries, Mr. Johnson of Georgia, Mr. Kennedy, Mrs. Lawrence, Ms. Lee, Ms. Lofgren, Mr. McGovern, Ms. Moore, Mr. Nadler, Ms. Norton, Mr. Payne, Mr. Quigley, Mr. Raskin, Ms. Roybal-Allard, Mr. Rush, Ms. Schakowsky, Mr. Veasey, Ms. Maxine Waters of California, Mrs. Watson Coleman, Mr. Polis, Ms. DelBene, Mr. Conyers, Ms. Barragán, Miss Rice of New York, Mr. Gomez, Ms. Pingree, Mrs. Napolitano, Mr. Lewis of Georgia, Ms. McCollum, Mr. Doggett, Mr. Serrano, and Mr. Grijalva) 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 provide standards for facilities at which aliens in the custody of the Department of Homeland Security are detained, and for other purposes.

1.

Short title

This Act may be cited as the Dignity for Detained Immigrants Act of 2017.

2.

Standards for DHS detention facilities

Not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security shall, by rulemaking, establish detention standards for each facility at which aliens in the custody of the Department of Homeland Security are detained. Such standards shall provide, at a minimum, the level of protections for detainees described in the American Bar Association’s Civil Immigration Detention Standards (adopted in August, 2012, and as amended in August, 2014). On a biennial basis, the Secretary shall review and update such standards, as appropriate.

3.

Oversight and transparency for DHS detention facilities

(a)

Periodic inspections

(1)

In general

On a periodic basis, and not less than annually, the Inspector General of the Department of Homeland Security shall conduct an unannounced inspection of each facility at which aliens in the custody of the Department of Homeland Security are detained in order to ensure that each such facility is in compliance with the standards under section 2. Not later than 60 days after conducting an inspection under this subsection, the Inspector General shall make a report of such inspection publicly available on the website of the Department of Homeland Security, and submit such report to the Secretary of Homeland Security.

(2)

Failure to comply with standards

(A)

Initial failure

In the case that the Inspector General determines that a facility has failed to comply with the standards under section 2 for the first time during any 2-year period, and that such noncompliance constitutes a deficiency that threatens the health, safety, or the due process rights of detainees, the Inspector General shall notify the Secretary of Homeland Security of such finding, and the Secretary shall—

(i)

in the case of a facility that is not owned by the Department of Homeland Security, impose a fine of not less than 10 percent of the value of the contract with the facility; and

(ii)

in the case of a facility that is owned by the Department of Homeland Security—

(I)

issue a written warning to the facility not later than 30 days after receiving such notification from the Inspector General, which shall include proposed remedial measures to be carried out not later than 60 days after the issuance of the warning; and

(II)

not later than 60 days after the issuance of the warning described in subclause (I), certify to the Inspector General that the remedial measures have been carried out.

(B)

Subsequent failures

In the case that the Inspector General determines that a facility has failed to comply with the standards under section 2 in two investigations under paragraph (1) during any 2-year period, and that such noncompliance constitutes a deficiency that threatens the health, safety, or the due process rights of detainees, the Inspector General shall notify the Secretary of Homeland Security of such finding, and the Secretary shall—

(i)

in the case of a facility that is not owned by the Department of Homeland Security, not later than 30 days after receiving such notification, transfer each detainee to a facility that does so comply, and terminate the contract with the owner of the facility; and

(ii)

in the case of a facility that is owned by the Department of Homeland Security, not later than 60 days after receiving such notification, transfer each detainee to a facility that does so comply, and suspend the use of such facility until such time as the Inspector General certifies to the Secretary that the facility is in compliance with such standards, and makes publicly available on the website of the Department of Homeland Security information relating to the remedial measures taken.

(b)

Investigations on death in custody

Not later than 30 days after the death of an alien in the custody of the Department of Homeland Security, the Secretary of Homeland Security shall conduct an investigation into that death, which shall include a root cause analysis that identifies any changes to policies or practices that could reduce the probability of such an event in the future. Not later than 60 days after such a death, the Secretary shall make a report describing the results of such investigation publicly available on the website of the Department of Homeland Security. The root cause analysis described in the previous sentence shall be performed in accordance with professional medical standards for investigating sentinel events in medical care facilities, including the Sentinel Event Policy promulgated by The Joint Commission.

(c)

Report to Congress

On an annual basis, the Secretary of Homeland Security shall submit to the Committees on the Judiciary of the House of Representatives and of the Senate a report on the inspections and oversight of facilities at which aliens in the custody of the Department of Homeland Security are detained. Such report shall include information relating to, for the preceding year—

(1)

each detention facility which the Inspector General found was not in compliance with the standards under section 2 pursuant to an investigation conducted under subsection (a)(1);

(2)

any remedial actions taken, or that the Secretary plans to take, in order to comply with such standards; and

(3)

whether the remedial actions described in paragraph (2) were successful in bringing the facility into compliance with such standards.

(d)

Classification of documents for purposes of FOIA

The reports under subsections (a) and (b), and any contract between the Department of Homeland Security and a private or public entity which provides for the use of a facility not owned by the Department of Homeland Security to detain aliens in the custody of the Department of Homeland Security are considered records for purposes of section 552 of title 5, United States Code, and do not qualify for the exception under subsection (b)(4) of such section.

(e)

Facilities matrix

On the first day of each month, the Secretary of Homeland Security shall ensure that there is publicly available on the website of the Department of Homeland Security, the following information relating to each facility at which aliens in the custody of the Department of Homeland Security may be detained:

(1)

The name and location of each facility.

(2)

Whether the facility houses adults, children, or both.

(3)

As of the first day of the month, the number of beds available in each facility, disaggregated by gender.

(4)

Whether the facility is used to detain aliens for longer than 72 hours, or for longer than 7 days.

(5)

The average number of aliens detained in the facility for the current year, and for the preceding month, disaggregated by gender and classification as a child or as an adult.

(6)

Whether the facility is in compliance with the standards under paragraph 2.

(7)

In the case of a facility that is not owned by the Department of Homeland Security, the nature of the contract providing for the detention of aliens at that facility.

(8)

The average number of days that an alien has been detained at the facility during the preceding month.

(f)

Online detainee locator system

The Secretary of Homeland Security shall ensure that the online detainee locator system maintained by the Department of Homeland Security, or any successor system, is updated not later than 12 hours after an alien is taken into custody or released from custody by the Department of Homeland Security, transferred to, or detained in, a detention facility, or removed from the United States.

(g)

Information collected and maintained for aliens in DHS custody

The Secretary of Homeland Security shall collect and maintain, for each alien in the custody of the Department of Homeland Security, the following information:

(1)

The gender and age of the alien.

(2)

The date on which the alien was detained.

(3)

Whether the alien is considered a vulnerable person (as such term is defined in section 236(g) of the Immigration and Nationality Act (8 U.S.C. 1226(g)) or a primary caregiver.

(4)

The provision of law under with the Secretary is authorized to detain the alien.

(5)

The location where the alien is detained.

(6)

Any transfer of the alien to another detention facility, and the reason for such transfer.

(7)

The status and basis of any removal proceedings.

(8)

The initial custody determination made by Immigration and Customs Enforcement, and any review of that determination.

(9)

If applicable, the date of the alien’s release or removal, and the reason for such release or removal.

(10)

Whether the alien is subject to a final order of removal.

4.

Cause of action

(a)

In general

An individual who is detained in a facility that is required to comply with the standards described in section 2, and who is injured as a result of a violation of such standards, may file a claim in the appropriate district court of the United States.

(b)

Recovery

In a civil action under this section, the court may order injunctive relief and compensatory damages, and may award the prevailing party reasonable attorney fees, and costs.

5.

DHS detention facility construction and maintenance

(a)

Restriction on construction of DHS facilities

Not later than 180 days before initiating, or entering into a contract for, the construction of a new facility or to expand an existing facility for the detention of aliens in the custody of the Department of Homeland Security, the Secretary of Homeland Security shall submit to the Committees on the Judiciary of the House of Representatives and of the Senate, the Committee on Homeland Security of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate a notification of the plan to construct or expand such facility, including the location, size, and capacity of such facility, the anticipated timeline and cost of constructing or expanding such facility, and the intended population to be detained at such facility, including the gender and ages of such population.

(b)

Phase-Out of private detention facilities and use of jails

(1)

Secure detention facilities

Beginning on the date of the enactment of this Act, the Secretary of Homeland Security may not enter into or extend any contract with any public or private entity which owns or operates a detention facility for use of that facility to detain aliens in the custody of the Department of Homeland Security, and shall terminate any such contract not later than the date that is 3 years after the date of the enactment of this Act. Beginning on the date that is 3 years after the date of the enactment of this Act, any facility at which aliens in the custody of the Department of Homeland Security are detained shall be owned and operated by the Department of Homeland Security.

(2)

Non-secure detention programs

Beginning on the date of the enactment of this Act, the Secretary of Homeland Security may not enter into or extend any contract with any public or private for-profit entity which owns or operates a program or facility that provides for non-residential detention-related activities for aliens who are subject to monitoring by the Department of Homeland Security, and shall terminate any such contract not later than the date that is 3 years after the date of the enactment of this Act. Beginning on the date that is 3 years after the date of the enactment of this Act, any such program or facility shall be owned and operated by a nonprofit organization or by the Department of Homeland Security.

(3)

Publication of plan

Not later than 60 days after the date of the enactment of this Act, the Secretary shall develop, and make publicly available, a plan and timeline for the implementation of this subsection.

6.

Appearance of detained aliens for other legal matters

The Secretary of Homeland Security shall make rules to ensure that any alien who is detained in the custody of the Department of Homeland Security, who is required to appear in Federal or State court (including family court) for another matter, is transported by an officer or employee of the Department of Homeland Security to such court proceeding.

7.

Procedures for detaining aliens

(a)

Probable cause and custody determination hearings

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended—

(1)

by amending subsection (a) to read as follows:

(a)

Arrest, detention, and release

On a warrant issued by an immigration judge, or pursuant to section 287(a)(2), the Secretary of Homeland Security may arrest an alien, and in accordance with this section, detain the alien or release the alien on bond, subject to conditions, or recognizance, pending a decision on whether the alien is to be removed from the United States.

;

(2)

by striking subsection (b);

(3)

by striking subsection (e);

(4)

by adding at the end the following:

(f)

Bond determination

In the case that an immigration judge makes a determination to release an alien on bond under this section, the immigration judge shall consider, for purposes of setting the amount of the bond, the alien’s financial position and ability to pay the bond without imposing financial hardship on the alien.

(g)

Custody determination

(1)

Initial determination

Not later than 48 hours after taking an alien into custody, the Secretary of Homeland Security shall make an initial custody determination with regard to that alien, and provide that determination in writing to the alien. If the Secretary determines that the release of an alien will not reasonably assure the appearance of the alien as required or will endanger the safety of any other person or the community, the custody determination under this paragraph will impose the least restrictive conditions, as described in paragraph (4).

(2)

Timing

If an alien seeks to challenge the initial custody determination under paragraph (1), the alien shall be provided with the opportunity for a hearing before an immigration judge to determine whether the alien should be detained, which hearing shall occur not later than 72 hours after the initial custody determination.

(3)

Presumption of release

In a hearing under this subsection, there shall be a presumption that the alien should be released. The Government shall have the duty of rebutting this presumption, which may only be shown based on clear and convincing evidence, including credible and individualized information, that the use of alternatives to detention will not reasonably assure the appearance of the alien at removal proceedings, or that the alien is a threat to another person or the community. The fact that an alien has a criminal charge pending against the alien may not be the sole factor to justify the continued detention of the alien.

(4)

Least restrictive conditions required

If an immigration judge determines pursuant to a hearing under this section that the release of an alien will not reasonably assure the appearance of the alien as required or will endanger the safety of any other person or the community, the immigration judge shall order the least restrictive conditions, or combination of conditions, that the judge determines will reasonably assure the appearance of the alien as required and the safety of any other person and the community, which may include secured or unsecured release on bond, or participation in a program described in subsection (i). Any conditions assigned to an alien pursuant to this paragraph shall be reviewed by the immigration judge on a monthly basis.

(5)

Special rule for vulnerable persons and primary caregivers

In the case that the alien who is the subject of a custody determination under this subsection is a vulnerable person or a primary caregiver, the alien may not be detained unless the Government shows, in addition to the requirements under paragraph (2), that it is unreasonable or not practicable to place the individual in a community-based supervision program.

(6)

Definition

In this subsection, the term vulnerable person means an individual who—

(A)

is under 21 years of age or over 60 years of age;

(B)

is pregnant;

(C)

identifies as lesbian, gay, bisexual, transgender, or intersex;

(D)

is victim or witness of a crime;

(E)

has filed a nonfrivolous civil rights claim in Federal or State court;

(F)

has a serious mental or physical illness or disability;

(G)

has been determined by an asylum officer in an interview conducted under section 235(b)(1)(B) to have a credible fear of persecution; or

(H)

has been determined by an immigration judge or the Secretary of Homeland Security to be experiencing severe trauma or to be a survivor of torture or gender-based violence, based on information obtained during intake, from the alien’s attorney or legal service provider, or through credible self-reporting.

(7)

Subsequent determinations

An alien who is detained under this section shall be provided with a de novo custody determination hearing under this subsection every 60 days, as well as upon showing of a change in circumstances or good cause for such a repeat hearing.

(h)

Release upon an order granting relief from removal

In the case of an alien with respect to whom an immigration judge has entered an order providing for relief from removal, including an order granting asylum, or providing for withholding, deferral, or cancellation of removal, which order is pending appeal, the Secretary of Homeland Security shall immediately release the alien upon entry of the order, and may impose only reasonable conditions on the alien’s release from custody.

(i)

Alternatives to detention

(1)

In general

The Secretary of Homeland Security shall establish programs that provide alternatives to detaining aliens, which shall offer a continuum of supervision mechanisms and options, including community-based supervision programs and community support. The Secretary may contract with nongovernmental community-based organizations to provide programs, which may include case management services, appearance assistance services, and screenings of aliens who have been detained.

(2)

Individualized determination required

In determining whether to order an alien to participate in a program under this subsection, the Secretary, or the immigration judge, as appropriate shall make an individualized determination to determine the appropriate level of supervision for the alien. Participation in a program under this subsection may not be ordered for an alien for whom it is determined that release on reasonable bond or recognizance will reasonably assure the appearance of the alien as required and the safety of any other person and the community.

; and

(5)

by striking Attorney General each place such term appears and inserting Secretary of Homeland Security.

(b)

Probable cause hearing

Section 287(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1357(a)(2)) is amended by striking but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States and inserting but the alien arrested shall be provided with a hearing before an immigration judge not later than 48 hours after being taken into custody to determine whether there is probable cause to believe that the alien does not have the right to enter or remain in the United States, which burden to establish probable cause shall be on the Government.

(c)

Mandatory detention repealed

The Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended—

(1)

by striking section 235(b)(1)(B)(iii)(IV);

(2)

by striking section 236(c);

(3)

by striking section 236A;

(4)

in section 238(a)(2), by striking pursuant to section 236(c); and

(5)

in section 506(a)(2)—

(A)

by amending the heading to read as follows: Release hearing for aliens detained; and

(B)

in subclause (A)—

(i)

in the matter preceding clause (i), by striking lawfully admitted for permanent residence; and

(ii)

by striking clause (i).

(d)

Aliens ordered removed

Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) is amended—

(1)

in paragraph (1), by striking 90 days each place it appears and inserting 60 days;

(2)

by amending paragraph (2) to read as follows:

(2)

Initial custody redetermination hearing

(A)

In general

Not later than 72 hours after the entry of a final administrative order of removal, the alien ordered removed shall be provided with a custody redetermination hearing before an immigration judge.

(B)

Presumption of detention

For purposes of the hearing under subparagraph (A), the alien shall be detained during the removal period unless the alien can show by clear and convincing evidence that the alien’s removal is not reasonably foreseeable and that the alien does not pose a risk to the safety of any individual or to the community.

;

(3)

in paragraph (3)—

(A)

in the heading, by striking 90-day and inserting 60-day; and

(B)

in the matter preceding subparagraph (A), by striking the alien, pending removal, shall be subject to supervision under the following: except as provided in paragraph (7), any alien who has been detained during the removal period shall be released from custody, pending removal, subject to individualized supervision requirements in accordance with;

(4)

by striking paragraph (6); and

(5)

by amending paragraph (7) to read as follows:

(7)

Subsequent custody redetermination hearings

(A)

In general

The Government may request a subsequent redetermination hearing before an immigration judge seeking continued detention for an alien ordered to be detained pursuant to paragraph (2) who has not been removed within the removal period.

(B)

Standard

An alien may only be detained after the removal period upon a showing by the Government that—

(i)

the alien’s removal is reasonably foreseeable; or

(ii)

the alien poses a risk to the safety of an individual or the community, which may only be established based on credible and individualized information that establishes objective risk factors, and may not be established based only the fact that the alien has been charged with or is suspected of a crime.

(C)

Period of detention

An alien may not be detained pursuant to an order under this paragraph for longer than a 60-day period. The Government may seek subsequent redetermination hearings under this paragraph in order to continue detaining an alien beyond each such 60-day period.

.