skip to main content

S. 3112 (115th): Dignity for Detained Immigrants Act of 2018

The text of the bill below is as of Jun 21, 2018 (Introduced).


II

115th CONGRESS

2d Session

S. 3112

IN THE SENATE OF THE UNITED STATES

June 21, 2018

(for himself, Mr. Leahy, Ms. Warren, Ms. Hirono, Mr. Blumenthal, Ms. Duckworth, Mr. Sanders, Mrs. Gillibrand, Mr. Merkley, and Mr. Wyden) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

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 2018.

2.

Standards for Department of Homeland Security detention facilities

(a)

Rulemaking

Not later than 1 year after the date of the enactment of this Act, the Secretary of Homeland Security shall promulgate regulations that establish detention standards for each facility at which aliens in the custody of the Department of Homeland Security are detained.

(b)

Minimum protections

The standards established under subsection (a) 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).

(c)

Updates

The Secretary shall review and update the standards established under subsection (a) on a biennial basis, as appropriate.

3.

Oversight and transparency for Department of Homeland Security detention facilities

(a)

Periodic inspections

(1)

In general

Not less frequently 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 established pursuant to section 2.

(2)

Report

Not later than 60 days after conducting an inspection under this paragraph (1), the Inspector General shall—

(A)

make a report of such inspection publicly available on a website of the Department of Homeland Security; and

(B)

submit such report to the Secretary of Homeland Security.

(3)

Failure to comply with standards

(A)

Initial failure

If the Inspector General determines that a facility has failed to comply with the standards established pursuant to section 2 for the first time during any 2-year period, and such noncompliance constitutes a deficiency that threatens the health, safety, or the due process rights of detainees—

(i)

the Inspector General shall notify the Secretary of Homeland Security of such finding; and

(ii)

the Secretary shall—

(I)

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

(II)

if the facility is owned by the Department of Homeland Security—

(aa)

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

(bb)

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

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

(i)

the Inspector General shall notify the Secretary of Homeland Security of such finding; and

(ii)

the Secretary shall—

(I)

if the facility is not owned by the Department of Homeland Security—

(aa)

transfer each detainee from such facility, not later than 30 days after receiving such notification, to a facility that complies with such standards; and

(bb)

terminate the contract with the owner of the facility; or

(II)

if the facility is owned by the Department of Homeland Security—

(aa)

transfer each detainee from such facility, not later than 60 days after receiving such notification, to a facility that complies with such standards; and

(bb)

suspend the use of such facility until after the Inspector General—

(AA)

certifies to the Secretary that the facility is in compliance with such standards; and

(BB)

posts information describing the remedial measures completed at such facility on a publicly available website of the Department of Homeland Security.

(b)

Investigations on death in custody

(1)

In general

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 such death, which shall include a root cause analysis that—

(A)

identifies any changes to policies or practices that could reduce the probability of such an event in the future; and

(B)

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 in 1996.

(2)

Report

Not later than 60 days after a death described in paragraph (1), the Secretary shall post a report describing the results of such investigation on a publicly accessible website of the Department of Homeland Security.

(c)

Report to Congress

The Secretary of Homeland Security shall submit an annual report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that—

(1)

describes the inspections and oversight of facilities at which aliens in the custody of the Department of Homeland Security are detained; and

(2)

includes information, with respect to the preceding year, relating to—

(A)

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

(B)

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

(C)

whether the remedial actions described in subparagraph (B) brought the facility into compliance with such standards.

(d)

Classification of documents for purposes of the Freedom of Information Act

The reports required under subsections (a)(2) and (b)(2), and any contract between the Department of Homeland Security and a private or public entity that 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 a publicly accessible website of the Department of Homeland Security contains information relating to each facility at which aliens in the custody of the Department of Homeland Security may be detained, including—

(1)

the name and location of each facility;

(2)

whether the facility houses adults, children, or both;

(3)

the number of beds available in each facility on the first day of the month, 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 established pursuant to section 2;

(7)

for each facility that is not owned by the Department of Homeland Security, the nature of the contract providing for the detention of aliens at such facility; and

(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—

(1)

taken into custody or released from custody by the Department of Homeland Security;

(2)

transferred to, or detained in, a detention facility; or

(3)

removed from the United States.

(g)

Information collected and maintained for aliens in the custody of the Department of Homeland Security

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

(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 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 which 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 U.S. Immigration and Customs Enforcement, and any review of such determination;

(9)

the date of the alien’s release or removal, if applicable, and the reason for such release or removal; and

(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 established pursuant to section 2, and 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—

(1)

order injunctive relief and compensatory damages; and

(2)

award the prevailing party reasonable attorney fees and costs.

5.

Department of Homeland Security detention facility construction and maintenance

(a)

Restriction on construction of detention facilities

Not later than 180 days before initiating, or entering into a contract for the construction of a new facility or the expansion of 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 Committee on the Judiciary of the Senate, the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on the Judiciary of the House of Representatives, and the Committee on Homeland Security of the House of Representatives, a plan for constructing or expanding such facility, including—

(1)

the location, size, and capacity of such facility;

(2)

the anticipated timeline and cost of constructing or expanding such facility; and

(3)

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

(A)

In general

The Secretary of Homeland Security—

(i)

may not enter into or extend any contract with any public or private entity, which owns or operates a detention facility, for the use of such facility to detain aliens in the custody of the Department of Homeland Security; and

(ii)

shall terminate any contract described in clause (i) not later than the date that is 3 years after the date of the enactment of this Act.

(B)

Ownership requirement

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

(A)

In general

The Secretary of Homeland Security—

(i)

may not enter into or extend any contract with any public or private for-profit entity for the operation of a program or the use of a facility for nonresidential, detention-related activities for aliens who are subject to monitoring by the Department of Homeland Security; and

(ii)

shall terminate any contract described in clause (i) not later than the date that is 3 years after the date of the enactment of this Act.

(B)

Ownership and operation requirement

Beginning on the date that is 3 years after the date of the enactment of this Act, any program or facility used for the activities described in subparagraph (A)(i) shall be owned and operated by a nonprofit organization or by the Department of Homeland Security.

(3)

Implementation plan

Not later than 60 days after the date of the enactment of this Act, the Secretary of Homeland Security shall develop, and make publicly available, a plan and a 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, and 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 subsections (b) and (e);

(3)

by redesignating subsections (c) and (d) as subsections (b) and (c), respectively;

(4)

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

(5)

by inserting after subsection (c), as redesignated, the following:

(d)

Bond determination

An immigration judge who releases an alien on bond under this section 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.

(e)

Custody determination

(1)

Initial determination

Not later than 48 hours after taking an alien into custody under the authority provided under this section or section 235, or with respect to an alien subject to a reinstated order of removal pursuant to section 241(a)(5) who has been found to have a credible or reasonable fear of return, 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 ensure 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 in accordance with paragraph (4).

(2)

Timing

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

(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 ensure 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 (g). 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

(A)

Defined term

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

(i)

is younger than 21 years of age or older than 60 years of age;

(ii)

is pregnant;

(iii)

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

(iv)

is a victim of or a witness to a crime;

(v)

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

(vi)

has a serious mental or physical illness or disability;

(vii)

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

(viii)

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.

(B)

Additional requirements

An alien who is the subject of a custody determination under this subsection and is a vulnerable person or a primary caregiver 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)

Subsequent determinations

An alien who is detained under this section shall be provided with a de novo custody determination hearing under this subsection—

(A)

every 60 days; and

(B)

by demonstrating a change in circumstances or good cause for such a repeat hearing.

(f)

Release upon an order granting relief from removal

The Secretary of Homeland Security—

(1)

shall immediately release 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, upon the entry of the order; and

(2)

may impose only reasonable conditions on such alien’s release from custody.

(g)

Alternatives to detention

(1)

In general

The Secretary of Homeland Security—

(A)

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; and

(B)

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

(A)

In general

In determining whether to order an alien to participate in a program under this subsection, the Secretary of Homeland Security, or the immigration judge, as appropriate shall make an individualized determination to determine the appropriate level of supervision for the alien.

(B)

Exemption

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 ensure the appearance of the alien as required and the safety of any other person and the community.

.

(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)

in section 235(b)—

(A)

in paragraph (1)(B)—

(i)

in clause (ii), by striking detained and inserting referred; and

(ii)

in clause (iii), by striking subclause (IV); and

(B)

in paragraph (2)(A), by striking detained and inserting referred;

(2)

in section 236, by striking subsection (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 paragraph 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;

(ii)

by striking clause (i); and

(iii)

by redesignating clauses (ii) and (iii) as clauses (i) and (ii), respectively.

(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 and inserting the following: except as provided in paragraph (6), 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; and

(4)

by striking paragraphs (6) and (7) and inserting the following:

(6)

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 on 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.

.