1.This Act may be cited as the
Secure and Safe Detention and Asylum
Act
.
2.In this Act:
(1)The term asylum seeker means an applicant for
asylum under section 208 of the Immigration and Nationality Act (8 U.S.C. 1158)
or for withholding of removal under section 241(b)(3) of such Act (8 U.S.C.
1231(b)(3)) or an alien who indicates an intention to apply for relief under
either such section and does not include a person with respect to whom a final
adjudication denying an application made under either such section has been
entered.
(2)Credible fear
of persecutionThe term credible fear of persecution
has the meaning given that term in section 235(b)(1)(B)(v) of the Immigration
and Nationality Act (8 U.S.C. 1225(b)(1)(B)(v)).
(3)The
term Department means the Department of Homeland Security.
(4)The
term detainee means an alien in the Department’s custody held in a
detention facility.
(5)The term detention facility means any
Federal facility in which an asylum seeker, an alien detained pending the
outcome of a removal proceeding, or an alien detained pending the execution of
a final order of removal, is detained for more than 72 hours, or any other
facility in which such detention services are provided to the Federal
Government by contract, and does not include detention at any port of entry in
the United States.
(6)Reasonable fear
of persecution or tortureThe term reasonable fear of
persecution or torture has the meaning described in section 208.31 of
title 8, Code of Federal Regulations.
(7)The
term Secretary
means the Secretary of Homeland Security.
(8)The
term standard means any policy, procedure, or other
requirement.
(9)The term vulnerable populations means
classes of aliens subject to the Immigration and Nationality Act (8 U.S.C. 1101
et seq.) who have special needs requiring special consideration and treatment
by virtue of their vulnerable characteristics, including experiences of, or
risk of, abuse, mistreatment, or other serious harms threatening their health
or safety. Vulnerable populations include the following:
(A)Asylum
seekers.
(B)Refugees admitted
under section 207 of the Immigration and Nationality Act (8 U.S.C. 1157) and
individuals seeking such admission.
(C)Aliens whose
deportation is being withheld under section 243(h) of the Immigration and
Nationality Act (as in effect immediately before the effective date of section
307 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(Public Law 104–208; 110 Stat. 3009–612)) or section 241(b)(3) of the
Immigration and Nationality Act (8 U.S.C. 1231(b)(3)).
(D)Aliens granted or
seeking protection under article 3 of the Convention Against Torture and other
Cruel, Inhumane, or Degrading Treatment or Punishment, done at New York,
December 10, 1994.
(E)Applicants for
relief and benefits under the Immigration and Nationality Act pursuant to the
amendments made by the Trafficking Victims Protection Act of 2000 (division A
of Public Law 106–386; 114 Stat. 1464), including applicants for nonimmigrant
status under subparagraph (T) or (U) of section 101(a)(15) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)).
(F)Applicants for
relief and benefits under the Immigration and Nationality Act pursuant to the
amendments made by the Violence Against Women Act of 2000 (division B of Public
Law 106–386; 114 Stat. 1491).
(G)Unaccompanied
alien children (as defined in 462(g) of the Homeland Security Act of 2002 (6
U.S.C. 279(g)).
3.Recording
secondary inspection interviews
(a)The Secretary shall establish quality assurance
procedures to ensure the accuracy and verifiability of signed or sworn
statements taken by employees of the Department exercising expedited removal
authority under section 235(b) of the Immigration and Nationality Act (8 U.S.C.
1225(b)).
(b)Factors
relating to sworn statementsAny sworn or signed written
statement taken of an alien as part of the record of a proceeding under section
235(b)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(A))
shall be accompanied by a recording of the interview which served as the basis
for that sworn statement.
(c)
(1)The recording of the interview shall also include the
written statement, in its entirety, being read back to the alien in a language
that the alien claims to understand, and the alien affirming the accuracy of
the statement or making any corrections thereto.
(2)The
recording shall be made in video, audio, or other equally reliable
format.
(d)
(1)Subsections (b)
and (c) shall not apply to interviews that occur at facilities exempted by the
Secretary pursuant to this subsection.
(2)The Secretary or
the Secretary’s designee may exempt any facility based on a determination by
the Secretary or the Secretary's designee that compliance with subsections (b)
and (c) at that facility would impair operations or impose undue burdens or
costs.
(3)The Secretary or
the Secretary’s designee shall report annually to Congress on the facilities
that have been exempted pursuant to this subsection.
(4)The exercise of
the exemption authority granted by this subsection shall not give rise to a
private cause of action.
(e)The
Secretary shall ensure that a professional fluent interpreter is used when the
interviewing officer does not speak a language understood by the alien and
there is no other Federal, State, or local government employee available who is
able to interpret effectively, accurately, and impartially.
(f)Recordings in
immigration proceedingsRecordings of interviews of aliens
described in subsection (b) shall be included in the record of a proceeding and
may be considered as evidence in any further proceedings involving the
alien.
4.Procedures
governing detention decisionsSection 236 of the Immigration and
Nationality Act (8 U.S.C. 1226) is amended—
(1)in subsection
(a)—
(A)in the matter
preceding paragraph (1)—
(i)in
the first sentence by striking Attorney General
and inserting
Secretary of Homeland Security
;
(ii)by
striking (c)
and inserting (d)
; and
(iii)in the second
sentence by striking Attorney General
and inserting
Secretary
;
(B)in paragraph
(2)—
(i)in
subparagraph (A)—
(I)by striking
Attorney General
and inserting Secretary
;
and
(II)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; or
(D)a secure
alternatives program as provided for in this section;
but
;
(2)by redesignating
subsections (b), (c), (d), and (e) as subsections (d), (e), (f), and (h),
respectively;
(3)by inserting
after subsection (a) the following new subsections:
(b)
(1)In the case of a decision under subsection (a) or (d),
the following shall apply:
(A)The decision
shall be made in writing and shall be served upon the alien. A decision to
continue detention without bond or parole shall specify in writing the reasons
for that decision.
(B)The decision
shall be served upon the alien within 72 hours of the alien’s detention or, in
the case of an alien subject to section 235 or 241(a)(5) who must establish a
credible fear of persecution or a reasonable fear of persecution or torture in
order to proceed in immigration court, within 72 hours of a positive credible
fear of persecution or reasonable fear of persecution or torture
determination.
(2)Criteria to be
consideredThe criteria to be considered by the Secretary and the
Attorney General in making a custody decision shall include—
(A)whether the alien
poses a risk to public safety or national security;
(B)whether the alien
is likely to appear for immigration proceedings; and
(C)any other
relevant factors.
(3)An alien subject to this section may at any time
after being served with the Secretary’s decision under subsections (a) or (d)
request a redetermination of that decision by an immigration judge. All
decisions by the Secretary to detain an alien without bond or parole shall be
subject to redetermination by an immigration judge within 2 weeks from the time
the alien was served with the decision, except that the alien may waive the
requirement that the redetermination occur within 2 weeks. The alien may
request another redetermination upon a showing of a material change in
circumstances since the last redetermination hearing.
(c)Exception for
Mandatory DetentionSubsection (b) shall not apply to any alien
who is subject to mandatory detention under section 235(b)(1)(B)(iii)(IV),
236(c), or 236A or who has a final order of removal and has no proceedings
pending before the Executive Office for Immigration
Review.
;
(4)in subsection
(d), as redesignated—
(A)by striking
Attorney General
and inserting Secretary
;
and
(B)by striking
or parole
and inserting , parole, or decision to
release;
;
(5)in subsection
(e), as redesignated—
(A)by striking
Attorney General
and inserting Secretary
each
place it appears; and
(B)in paragraph (2),
by inserting or for humanitarian reasons,
after such an
investigation,
;
(6)in subsection
(f), as redesignated—
(A)in the matter
preceding paragraph (1), by striking Attorney General
and
inserting Secretary
;
(B)in paragraph (1),
in subparagraphs (A) and (B), by striking Service
and inserting
Department of Homeland Security
; and
(C)in paragraph (3),
by striking Service
and inserting Secretary of Homeland
Security
;
(7)by inserting
after subsection (f), as redesignated, the following new subsection:
(g)If an immigration judge’s custody decision has been stayed
by the action of an officer or employee of the Department of Homeland Security,
the stay shall expire in 30 days, unless the Board of Immigration Appeals
before the expiration of the 30 days, and upon motion, enters an order
continuing the stay.
;
and
(8)in subsection
(h), as redesignated—
(A)by striking
Attorney General’s
and inserting Secretary of Homeland
Security’s
; and
(B)by striking
Attorney General
and inserting Secretary
.
5.Legal
Orientation Program
(a)The Attorney General, in consultation with the Secretary,
shall ensure that all detained aliens in immigration and asylum proceedings
receive legal orientation through a program administered and implemented by the
Executive Office for Immigration Review of the Department of Justice.
(b)The legal orientation program developed pursuant to this
section 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.
(c)Expansion of
Legal AssistanceThe Secretary shall ensure the expansion through
the United States Citizenship and Immigration Services of public-private
partnerships that facilitate pro bono counseling and legal assistance for
asylum seekers awaiting a credible fear of persecution interview, as a
continuation of existing programs, such as the pilot program developed in
Arlington, Virginia by the United States Citizenship and Immigration
Services.
6.
(a)The Secretary shall ensure that standards governing
conditions and procedures at detention facilities are fully implemented and
enforced, and that all detention facilities comply with the standards.
(b)The Secretary shall promulgate new standards, or modify
existing detention standards, to improve conditions in detention facilities.
The improvements shall address at a minimum the following policies and
procedures:
(1)Fair and humane
treatmentProcedures to ensure that detainees are not subject to
degrading or inhumane treatment such as physical abuse, sexual abuse or
harassment, or arbitrary punishment.
(2)Limitations on
solitary confinementProcedures limiting the use of solitary
confinement, shackling, and strip searches of detainees to situations where the
use of such techniques is necessitated by security interests or other
extraordinary circumstances.
(3)Investigation
of grievancesProcedures for the prompt and effective
investigation of grievances raised by detainees.
(4)Procedures permitting detainees sufficient access to
telephones, and the ability to contact, free of charge, legal representatives,
the immigration courts, the Board of Immigration Appeals, and the Federal
courts through confidential toll-free numbers.
(5)Location of detention facilities, to the extent
practicable, near sources of free or low-cost legal representation with
expertise in asylum or immigration law.
(6)Procedures
governing transfers of detaineesProcedures governing the
transfer of a detainee that take into account—
(A)the detainee’s
access to legal representatives; and
(B)the proximity of
the facility to the venue of the asylum or removal proceeding.
(7)The employment of detention facility staff that, to
the extent practicable, are qualified in the languages represented in the
population of detainees at a detention facility, and the provision of
alternative translation services when necessary.
(8)Recreational
programs and activitiesDaily access to indoor and outdoor
recreational programs and activities.
(c)
(1)The Secretary shall ensure that prompt and adequate
medical care is provided at no cost to detainees, including dental care, eye
care, mental health care, and where appropriate, individual and group
counseling, medical dietary needs, and other medically necessary specialized
care.
(2)The Secretary shall ensure that medical facilities in
all detention facilities maintain current accreditation by the National
Commission on Correctional Health Care (NCCHC).
(3)The Secretary shall ensure that complete medical records
are maintained for every detainee, and that the records are made available upon
request to the detainee, his legal representative, or other authorized
individuals.
(d)Special
Standards for Noncriminal DetaineesThe Secretary shall promulgate new
standards, or modifications to existing standards, that—
(1)recognize the
distinctions between persons with criminal convictions or a history of violent
behavior and all other detainees; and
(2)ensure that
procedures and conditions of detention are appropriate for a noncriminal,
nonviolent population.
(e)Special
Standards for Vulnerable PopulationsThe Secretary shall
promulgate new standards, or modifications to existing standards, that—
(1)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 other vulnerable
populations; and
(2)ensure that
procedures and conditions of detention are appropriate for the populations
listed in this subsection.
(f)
(1)The Secretary shall ensure that personnel in detention
facilities are given specialized training to better understand and work with
the population of detainees held at the facilities where such personnel work.
The training should address the unique needs of—
(A)asylum
seekers;
(B)victims of
torture or other trauma; and
(C)other vulnerable
populations.
(2)The training required by this subsection shall be
designed to better enable personnel to work with detainees from different
countries, and detainees who cannot speak English. The training shall emphasize
that many detainees have no criminal records and are being held for civil
violations.
7.Office of
Detention Oversight
(a)Establishment
of the Office
(1)There is established within the Department an Office of
Detention Oversight (in this section referred to as the
Office
).
(2)The head of the Office shall be an Administrator who shall
be appointed by, and shall report to, the Secretary.
(3)The
Office shall be established and the Administrator of the Office appointed not
later than 180 days after the date of the enactment of this Act.
(b)Responsibilities
of the Office
(1)Inspections of
detention centersThe Administrator of the Office shall—
(A)undertake
frequent and unannounced inspections of all detention facilities;
(B)develop a
procedure for any detainee or the detainee’s representative to file a written
complaint directly with the Office; and
(C)report to the
Secretary and to the Assistant Secretary of Homeland Security for U.S.
Immigration and Customs Enforcement all findings of a detention facility’s
noncompliance with detention standards.
(2)The
Administrator of the Office shall—
(A)initiate
investigations, as appropriate, into allegations of systemic problems at
detention facilities, incidents that constitute serious violations of detention
standards, or other matters related to mistreatment of detainees;
(B)report to the
Secretary and the Assistant Secretary of Homeland Security for U.S. Immigration
and Customs Enforcement the results of all investigations; and
(C)refer matters,
where appropriate, for further action to—
(i)the
Department of Justice;
(ii)the Office of
the Inspector General of the Department;
(iii)the Office of
Civil Rights and Civil Liberties of the Department; or
(iv)any other
relevant office or agency.
(3)
(A)The Administrator of the Office shall submit to the
Secretary, the Committee on the Judiciary and the Committee on Homeland
Security and Governmental Affairs of the Senate, and the Committee on the
Judiciary and the Committee on Homeland Security of the House of
Representatives an annual report on the Administrator’s findings on detention
conditions and the results of the investigations carried out by the
Administrator.
(B)Each report required by subparagraph (A) shall
include—
(i)a
description of the actions to remedy findings of noncompliance or other
problems that are taken by the Secretary or the Assistant Secretary of Homeland
Security for U.S. Immigration and Customs Enforcement, and each detention
facility found to be in noncompliance; and
(ii)information
regarding whether such actions were successful and resulted in compliance with
detention standards.
(4)Review of
complaints by detaineesThe Administrator of the Office shall
establish procedures to receive and review complaints of violations of the
detention standards promulgated by the Secretary. The procedures shall protect
the anonymity of the claimant, including detainees, employees, or others, from
retaliation.
(c)Cooperation
With Other Offices and AgenciesWhenever appropriate, the
Administrator of the Office shall cooperate and coordinate its activities
with—
(1)the Office of the
Inspector General of the Department;
(2)the Office of
Civil Rights and Civil Liberties of the Department;
(3)the Privacy
Officer of the Department;
(4)the Civil Rights
Division of the Department of Justice; or
(5)any other
relevant office or agency.
(d)The Secretary shall ensure that—
(1)all deaths of
detainees and other aliens in the Department's custody, or other deaths related
to operations or actions of employees of U.S. Immigration and Customs
Enforcement or U.S. Customs and Border Protection, are reported to—
(A)the Office of
Detention Oversight, if the death occurred in a detention facility;
(B)the Office of the
Inspector General of the Department;
(C)the legal
representative of the deceased alien, if the Department is on notice that a
representative has been retained on the alien's behalf;
(D)the immediate
family of the deceased alien, if the Department has contact information for an
immediate family member; and
(E)relevant State
and local government officials, including the coroner and the local law
enforcement agency with jurisdiction in the location where the death
occurred;
(2)a thorough
investigation is conducted into each death by—
(A)the Office of
Detention Oversight;
(B)the Office of the
Inspector General of the Department; or
(C)another
appropriate office with investigative authority in the Department or other
Federal agency; and
(3)a report
describing the results of the investigation into each death is provided
to—
(A)the
Secretary;
(B)the Committee on
the Judiciary and Committee on Homeland Security and Governmental Affairs of
the Senate; and
(C)the Committee on
the Judiciary and the Committee on Homeland Security of the House of
Representatives.
8.Secure
alternatives program
(a)The Secretary shall establish a secure alternatives
program under which an alien who has been detained may be released under
enhanced supervision to prevent the alien from absconding and to ensure that
the alien makes appearances related to such detention.
(b)
(1)Nationwide
implementationThe Secretary shall facilitate the development of
the secure alternatives program on a nationwide basis, as a continuation of
existing pilot programs such as the Intensive Supervision Appearance Program
developed by the Department.
(2)Utilization of
alternativesThe secure alternatives program shall utilize a
continuum of alternatives based on the alien’s need for supervision, including
placement of the alien with an individual or organizational sponsor, or in a
supervised group home.
(3)Aliens eligible
for secure alternatives program
(A)Aliens who would otherwise be subject to detention based
on a consideration of the release criteria in section 236(b)(2) of the
Immigration and Nationality Act, or who are released pursuant to section
236(e)(2) of such Act, shall be considered for the secure alternatives
program.
(B)Secure alternatives programs shall be designed to ensure
sufficient supervision of the population described in subparagraph (A).
(4)The
Secretary shall enter into contracts with qualified nongovernmental entities to
implement the secure alternatives program.
(5)In designing such program, the Secretary
shall—
(A)consult with
relevant experts; and
(B)consider programs
that have proven successful in the past, including the Appearance Assistance
Program developed by the Vera Institute and the Intensive Supervision
Appearance Program.
9.Less restrictive
detention facilities
(a)The
Secretary shall facilitate the construction or use of secure but less
restrictive detention facilities.
(b)In
developing detention facilities pursuant to this section, the Secretary
shall—
(1)consider the
design, operation, and conditions of existing secure but less restrictive
detention facilities, such as the Department’s detention facilities in Broward
County, Florida, and Berks County, Pennsylvania;
(2)to the extent
practicable, construct or use detention facilities where—
(A)movement within
and between indoor and outdoor areas of the facility is subject to minimal
restrictions;
(B)detainees have
ready access to social, psychological, and medical services;
(C)detainees with
special needs, including those who have experienced trauma or torture, have
ready access to services and treatment addressing their needs;
(D)detainees have
ready access to programs and recreation;
(E)detainees are
permitted contact visits with legal representatives and family members;
and
(F)special
facilities are provided to families with children.
(c)Facilities for
Families With ChildrenFor situations where release or secure
alternatives programs are not an option, the Secretary shall, to the extent
practicable, ensure that special detention facilities are specifically designed
to house parents with their minor children, including ensuring that—
(1)procedures and
conditions of detention are appropriate for families with minor children;
and
(2)living and
sleeping quarters for children under 14 years of age are not physically
separated from at least 1 of the child's parents.
(d)Placement in
Nonpunitive FacilitiesAmong the factors to be considered with
respect to placing a detainee in a less restrictive facility is whether the
detainee is—
(1)an asylum
seeker;
(2)part of a family
with minor children;
(3)a member of a
vulnerable population; or
(4)a nonviolent,
noncriminal detainee.
(e)Where necessary, the Secretary shall promulgate new
standards, or modify existing detention standards, to promote the development
of less restrictive detention facilities.
10.Authorization
of appropriations; effective date
(a)Authorization
of AppropriationsThere are authorized to be appropriated such
sums as are necessary to carry out this Act.
(b)This Act and the amendments made by this Act shall take
effect on the date that is 180 days after the date of the enactment of this
Act.