[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1215 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 1215

  To reform immigration detention procedures, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           February 26, 2009

Ms. Roybal-Allard introduced the following bill; which was referred to 
  the Committee on the Judiciary, and in addition to the Committee on 
 Homeland Security, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
  To reform immigration detention procedures, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Immigration Oversight and Fairness 
Act''.

SEC. 2. ENHANCED PROTECTIONS FOR VULNERABLE UNACCOMPANIED ALIEN 
              CHILDREN AND FEMALE DETAINEES.

    (a) Mandatory Training.--The Secretary of Homeland Security, in 
consultation with the Office of Refugee Resettlement of the Department 
of Health and Human Services and independent child welfare experts, 
shall mandate live training of all personnel who come into contact with 
unaccompanied alien children (as defined in section 462 of the Homeland 
Security Act of 2002 (6 U.S.C. 279)) in all relevant legal authorities, 
policies, and procedures pertaining to this vulnerable population.
    (b) Care and Transportation.--Notwithstanding any other provision 
of law, the Secretary of Homeland Security shall ensure that all 
unaccompanied children who will undergo any immigration proceedings 
before the Department of Homeland Security and the Executive Office for 
Immigration Review are duly transported and placed in the care and 
legal and physical custody of the Office of Refugee Resettlement within 
a maximum of 24 hours of their apprehension absent narrowly defined 
exceptional circumstances, including a natural disaster or comparable 
emergency beyond the control of the Secretary of Homeland Security or 
the Office of Refugee Resettlement. The Secretary of Homeland Security 
shall ensure that female officers are responsible and at all times 
present during the transfer and transport of female detainees who are 
in the custody of the Secretary of Homeland Security.
    (c) Qualified Resources.--For purposes of this section, the 
Secretary of Homeland Security shall provide adequately trained and 
qualified staff resources at each major port of entry (as defined by 
the U.S. Customs and Border Protection station assigned to that port 
having in its custody over the past two fiscal years an average per 
year of 50 or more unaccompanied alien children (as defined in section 
462 of the Homeland Security Act of 2002 (6 U.S.C. 279))), including 
U.S. Customs and Border Protection agents charged primarily with the 
safe, swift, and humane transportation of unaccompanied alien children 
to Office of Refugee Resettlement custody and independent licensed 
social workers dedicated to ensuring the proper temporary care for the 
children while in Department of Homeland Security custody prior to 
their transfer to the Office of Refugee Resettlement, who will ensure 
that each child--
            (1) receives emergency medical care;
            (2) receives mental health care in case of trauma and has 
        access to psychosocial health services;
            (3) is provided with a pillow, linens, and sufficient 
        blankets to rest at a comfortable temperature, a bed, and a 
        mattress placed in an area specifically designated for 
        residential use;
            (4) receives adequate nutrition;
            (5) enjoys a safe and sanitary living environment;
            (6) receives educational materials; and
            (7) has access to at least three hours per day of indoor 
        and outdoor recreational programs and activities.
    (d) Notification.--The Secretary of Homeland Security shall 
immediately notify the Office of Refugee Resettlement of an 
unaccompanied alien child in the custody of the Department of Homeland 
Security to effectively and efficiently coordinate the child's transfer 
to and placement with the Office of Refugee Resettlement.
    (e) Notice of Rights and Access to Counsel.--The Secretary of 
Homeland Security shall ensure that an independent licensed social 
worker, as described in subsection (c), provides all unaccompanied 
alien children upon apprehension with both a video orientation and oral 
and written notice of their rights under the Immigration and 
Nationality Act including their rights to relief from removal and their 
rights to confer with counsel (as guaranteed under section 292 of such 
Act), family, or friends while in the Department of Homeland Security's 
temporary custody and relevant complaint mechanisms to report any abuse 
or misconduct they may have experienced. The Secretary of Homeland 
Security shall ensure that the video orientation and written notice of 
rights is available in English and in the five most common native 
languages spoken by the unaccompanied children held in custody at that 
location during the preceding fiscal year, and that the oral notice of 
rights is available in English and in the most common native language 
spoken by the unaccompanied children held in custody at that location 
during the preceding fiscal year.
    (f) Confidentiality.--The Secretary of Health and Human Services 
shall maintain the privacy and confidentiality of all information 
gathered in the course of providing care, custody, placement and 
follow-up services to unaccompanied alien children, consistent with the 
best interest of the unaccompanied alien child, by not disclosing such 
information to other government agencies or nonparental third parties. 
The Secretary may share information when authorized to do so by the 
child and when consistent with the child's best interest. The Secretary 
may provide information to a duly recognized law enforcement entity, if 
such disclosure would prevent imminent and serious harm to another 
individual. All disclosures shall be duly recorded in writing and 
placed in the child's files.
    (g) Other Policies and Procedures.--The Secretary shall further 
adopt fundamental child protection policies and procedures--
            (1) for reliable age-determinations of children which 
        exclude the use of fallible forensic testing of children's bone 
        and teeth developed in consultation with medical and child 
        welfare experts;
            (2) to ensure the safe and secure repatriation and 
        reintegration of unaccompanied alien children to their home 
        countries through specialized programs developed in close 
        consultation with the Secretary of State, the Office of the 
        Refugee Resettlement and reputable independent child welfare 
        experts including placement of children with their families or 
        nongovernmental agencies to provide food, shelter and 
        vocational training and microfinance opportunities;
            (3) to utilize all legal authorities to defer the child's 
        removal if the child faces a risk of life-threatening harm upon 
        return including due to the child's mental health or medical 
        condition; and
            (4) to ensure that unaccompanied alien children (as defined 
        in section 462 of the Homeland Security Act of 2002 (6 U.S.C. 
        279)) are physically separated from any adult who is not an 
        immediate family member and are separated by sight and sound 
        from immigration detainees and inmates with criminal 
        convictions, pretrial inmates facing criminal prosecution, 
        children who have been adjudicated delinquents or convicted of 
        adult offenses or are pending delinquency or criminal 
        proceedings, and those inmates exhibiting violent behavior 
        while in detention as is consistent with the Juvenile Justice 
        and Delinquency Prevention Act of 1974 (42 U.S.C. 5601 et 
        seq.).

SEC. 3. DETENTION CONDITIONS.

    (a) Detention Requirements.--All detention facilities shall fully 
comply with the following minimum requirements:
            (1) Access to telephones.--Detention facilities shall 
        provide to detainees reasonable and equitable access to working 
        telephones, and the ability to contact, free of charge, legal 
        representatives, foreign consulates, the immigration courts, 
        the Board of Immigration Appeals, and the Federal courts, in 
        addition to persons and offices contacted for the purpose of 
        obtaining legal representation. Detention facilities shall 
        provide to detainees access to telephones during facility 
        working hours and on an emergency basis in accordance with the 
        following:
                    (A) The detention facility shall provide to each 
                detainee a copy of its rules governing telephone access 
                and shall post those rules, together with an 
                explanation of how to make calls, within sight of each 
                telephone available to detainees. These rules shall be 
                translated into Spanish and two additional languages 
                spoken by a substantial part of the detainee population 
                of the detention facility. If a detention facility has 
                determined that more than 5 percent of its population 
                is a certain ethnicity, the document should be 
                translated into that ethnicity's appropriate language. 
                The detention facility shall also provide oral 
                interpretation and written translation assistance to 
                detainees in reading any relevant materials required to 
                request telephone access, including oral interpretation 
                assistance for those who are not literate in English, 
                Spanish, and other languages spoken by the detainee 
                population of the facility.
                    (B) The rates charged for telephone calls shall be 
                reasonable and equitable and shall not significantly 
                impair detainees' access to telephones.
                    (C) The detention facility shall not restrict the 
                number of calls detainees may place to their legal 
                representatives or consular officials, or to any others 
                for the purpose of obtaining legal representation, or 
                limit the duration of those calls by rule or automatic 
                cut-off, unless necessary for security reasons. The 
                detention facility shall have a reasonable number of 
                working phones available to detainees, and at a minimum 
                one phone per each 25 users.
                    (D) The detention facility shall ensure the privacy 
                of telephone conversations between detainees and legal 
                representatives or consular officials, and calls made 
                for the purpose of obtaining legal representation. 
                Means to ensure privacy may include the use of privacy 
                panels, the placement of phones in housing pods, and 
                other appropriate measures.
                    (E) Detainees' telephone calls to a court, legal 
                representative, or consular official, or for the 
                purpose of obtaining legal representation, shall not be 
                monitored or recorded without a court order and without 
                prior notification to the detainee.
                    (F) The detention facility shall take and deliver 
                telephone messages to detainees as promptly as 
                possible, but no less often than twice a day. Detainees 
                shall be permitted to make confidential telephone calls 
                promptly within 8 hours of receipt of messages left by 
                a court, legal representative, prospective legal 
                representative, or consular official as soon as 
                reasonably possible after the delivery of the message.
            (2) Quality of medical care.--Detention facilities shall 
        afford a continuum of prompt, high quality medical care, 
        including care to address medical needs that existed prior to 
        detention, at no cost to detainees. Such medical care shall 
        address all detainee health needs and shall include chronic 
        care, dental care, eye care, mental health care, individual and 
        group counseling, medical dietary needs, and other medically 
        necessary specialized care in accordance with the following:
                    (A) All detention facilities shall maintain current 
                accreditation by the National Commission on 
                Correctional Health Care and the Joint Commission on 
                the Accreditation of Health Care Organizations. 
                Detention facilities that are not accredited as of the 
                date of the enactment of this Act will obtain such 
                accreditation within one year, and if accreditation is 
                not obtained by that time the Secretary of Homeland 
                Security shall cease use of the facility. All 
                standards, policies and practices shall at a minimum 
                comply with the National Commission on Correctional 
                Health Care Standards for Health Services in Jails.
                    (B) All detention facilities shall have a 
                designated on-site health authority who is a physician, 
                a health services administrator, or a health agency. 
                Clinical decisions shall be made solely by a licensed 
                health care provider.
                    (C) Each immigration detainee shall receive a 
                comprehensive medical and mental health intake 
                screening by a qualified health care professional upon 
                arrival at the facility and each immigration detainee 
                shall receive a comprehensive medical and mental health 
                examination and assessment by a qualified health care 
                professional not later than 14 days after arrival.
                    (D) Any decision to deny requested medical care or 
                treatment, or care or treatment recommended by any 
                outside physician or specialist, to a detainee shall be 
                made within 72 hours or earlier if medically necessary 
                and shall be accompanied by a written explanation of 
                the reasons for the denial. This decision and the 
                written explanation of the decision shall be 
                simultaneously communicated to the detainee and to the 
                Secretary of Homeland Security.
                    (E) Detainees shall be afforded an opportunity to 
                obtain an appeal of any decisions denying a request for 
                medical treatment. Such an appeal or request for 
                reconsideration shall be resolved in writing within 7 
                days or earlier if medically necessary by an appeals 
                board that shall be composed of independent health care 
                professionals in the fields relevant to the request for 
                medical or mental health care. The written decision 
                shall be conveyed to the on-site medical provider and 
                the immigration detainee within 24 hours of a decision 
                by the appeals board.
                    (F) Except in emergency situations where informed 
                consent cannot reasonably be obtained, medical care and 
                treatment shall be provided only with the informed 
                consent of the detainee or a person authorized by the 
                detainee or applicable law to provide such consent.
                    (G) Involuntary psychotropic medication may be used 
                only if allowed by applicable law and then only in 
                emergency situations when a physician has determined, 
                after personally examining the patient, that--
                            (i) a detainee is imminently dangerous to 
                        self or others due to a mental illness; and
                            (ii) involuntary psychotropic medication is 
                        medically appropriate to treat the mental 
                        illness and necessary to prevent harm. If a 
                        detainee is represented by counsel, the 
                        administration of any psychotropic drug to the 
                        detainee shall be disclosed to the detainee's 
                        counsel promptly and in any event within a 
                        reasonable time prior to any hearing in which 
                        the detainee will appear.
                If a detainee is not represented by counsel, the 
                administration of any psychotropic drug to the detainee 
                shall, with the informed consent of the detainee, be 
                disclosed to the Immigration Court prior to any hearing 
                in which the detainee will appear. Any disclosure to 
                the court by any person of the administration of a 
                psychotropic drug to the detainee shall be filed under 
                seal and may be disclosed to other persons only in the 
                same manner and to the same extent that medical records 
                may be disclosed. Any detainee who receives medication 
                pursuant to this subparagraph must be afforded a 
                hearing pursuant to the procedures set forth in 28 
                C.F.R. 549.43, as described in Washington v. Harper, 
                494 U.S. 210 (1990), before the detainee may receive 
                medication again under this subparagraph.
                    (H) No drugs of any kind shall be administered to 
                detainees without their informed consent for the 
                purpose of sedation or controlling the detainee's 
                behavior during transportation or removal or for the 
                purpose of punishment.
                    (I) All detention facilities shall maintain 
                complete medical records for every detainee, which 
                shall be made available within 72 hours to any 
                detention facility to which the detainee may be 
                transferred. Medical records shall also be made 
                available within 72 hours to a detainee, his legal 
                representative, or other authorized individuals upon 
                request by the detainee. Any and all medical and mental 
                health records of a detainee shall be treated as 
                confidential, as required by the Health Insurance 
                Portability and Accountability Act of 1996.
                    (J) For each fiscal year after the passage of this 
                Act, the Secretary of Homeland Security shall report to 
                the Congress on a semiannual basis, and to Department 
                of Homeland Security Office of Inspector General within 
                48 hours of any in-custody death, information regarding 
                the death of any person who is in the custody of U.S. 
                Immigration and Customs Enforcement that, at a minimum, 
                includes--
                            (i) the name, gender, national origin, 
                        alien number, and age of the deceased;
                            (ii) the date on which detention in U.S. 
                        Immigration and Customs Enforcement custody 
                        commenced;
                            (iii) the date and location of death;
                            (iv) the location of last detention;
                            (v) a brief description of the 
                        circumstances surrounding the death;
                            (vi) the status and results of any 
                        investigation(s) that has been conducted into 
                        the circumstances surrounding the death;
                            (vii) each location where the individual 
                        was held in U.S. Immigration and Customs 
                        Enforcement custody or the custody of an entity 
                        contracting with U.S. Immigration and Customs 
                        Enforcement and the dates during which the 
                        individual was held at each location; and
                            (viii) all medical records of the deceased.
                    (K) All detainee transfers shall take into 
                consideration the detainee's health and medical 
                fitness. Continuity of care shall be preserved during 
                and after transfers, and detainees shall suffer no 
                interruption in the provision of treatment, including 
                prescription medication.
            (3) Sexual abuse regulations concerning care and custody of 
        detainees.--
                    (A) In general.--Detention facilities shall take 
                all necessary measures to prevent sexual abuse of 
                detainees, including sexual assaults, and shall observe 
                the minimum standards under the Prison Rape Elimination 
                Act of 2003 (42 U.S.C. 15601 et seq.).
                    (B) Measures where abuse occurs.--Where sexual 
                abuse occurs, detention facilities shall ensure that--
                            (i) prompt and appropriate medical 
                        intervention is taken to minimize medical and 
                        psychological trauma;
                            (ii) a medical history is taken and a 
                        physical examination is conducted by qualified 
                        and culturally appropriate medical 
                        professionals to determine the extent of 
                        physical injury and whether referral to another 
                        medical facility is indicated;
                            (iii) prophylactic treatment, emergency 
                        contraception, and follow-up for sexually 
                        transmitted diseases are provided;
                            (iv) the case is evaluated by a qualified 
                        mental health professional for crisis 
                        intervention counseling and long-term follow-
                        up;
                            (v) victims are separated from their 
                        abusers and are considered for release on 
                        parole or for an alternative to detention 
                        program; and
                            (vi) any and all medical and mental health 
                        records arising out of a detainee's allegation 
                        of sexual abuse shall be treated as 
                        confidential, as required by the Health 
                        Insurance Portability and Accountability Act of 
                        1996.
                    (C) Reporting.--A detention facility shall not 
                subject any person to punishment or any other form of 
                retaliation for reporting incidents of sexual abuse.
                    (D) Investigation.--In all cases of alleged sexual 
                abuse, the detention facility shall conduct a thorough 
                and timely investigation and shall provide to the 
                Secretary of Homeland Security a report of the 
                circumstances and the response of the detention 
                facility. If the report is not completed within 30 days 
                after alleged sexual abuse comes to the attention of 
                the detention facility, the detention facility shall 
                submit to the Secretary of Homeland Security a 
                description of the status of the investigation and an 
                estimated date of completion 30 days after the alleged 
                sexual abuse comes to the attention of the detention 
                facility and every 30 days thereafter until the report 
                is provided to the Secretary of Homeland Security. The 
                report required by this subsection shall include at 
                minimum a determination of whether the alleged sexual 
                abuse occurred, an in-depth analysis of the relevant 
                facts including the causes of any sexual abuse that may 
                have occurred and whether and to what extent the 
                alleged abuse indicates a failure of policy, a failure 
                of training, a failure of oversight, or a failure of 
                management, and a description of the actions that the 
                facility will take to prevent the occurrence of similar 
                incidents in the future and a plan for monitoring the 
                implementation of those actions. The detention facility 
                shall provide to the Secretary of Homeland Security 
                periodic reports monitoring the implementation of the 
                plan in accordance with the schedule set forth in such 
                plan as approved by the Secretary of Homeland Security.
            (4) Transfer of detainees.--
                    (A) Procedures.--In adopting procedures governing 
                the transfer of individuals detained under section 236 
                of the Immigration and Nationality Act (8 U.S.C. 1226), 
                and subject to the exception in subparagraph (D), the 
                Secretary of Homeland Security shall promulgate 
                regulations prohibiting transfer of a detainee if such 
                transfer would--
                            (i) negatively affect an existing attorney-
                        client relationship;
                            (ii) negatively affect the detainee's legal 
                        proceedings, including merits or calendar 
                        hearings, or a pending application with United 
                        States Citizenship and Immigration Services or 
                        the Executive Office for Immigration Review, 
                        by--
                                    (I) limiting the detainee's access 
                                to securing legal representation;
                                    (II) limiting the detainee's 
                                ability to prepare a legal defense to 
                                removal; or
                                    (III) removing the detainee from 
                                the legal venue of such proceeding;
                            (iii) negatively affect the detainee's 
                        health and medical fitness; or
                            (iv) to the extent it does not conflict 
                        with clauses (i), (ii), and (iii)--
                                    (I) place the detainee in a 
                                location more distant from the 
                                detainee's residence than the original 
                                detention location; or
                                    (II) place the detainee in a 
                                location more distant from family 
                                members than the original detention 
                                location.
                    (B) Notice.--Unless exigent circumstances dictate 
                an immediate transfer--
                            (i) the Secretary of Homeland Security 
                        shall provide not less than 72 hours notice to 
                        any detainee prior to transferring the detainee 
                        to another detention facility;
                            (ii) detainees shall be afforded at least 
                        one toll-free call following any transfer, and 
                        within 24 hours after the detainee's arrival at 
                        the transferee facility, the Secretary of 
                        Homeland Security shall notify the detainee's 
                        legal representative or if unrepresented, an 
                        adult family member or other person designated 
                        by the detainee, of the transfer and the 
                        detainee's new location;
                            (iii) if removal proceedings are pending, 
                        the Secretary of Homeland Security shall also 
                        promptly notify the Immigration Court, Board of 
                        Immigration Appeals, or the Circuit Court of 
                        Appeals, as appropriate of the transfer and the 
                        detainee's new address; and
                            (iv) the Secretary of Homeland Security 
                        shall not transfer any detainee who has already 
                        requested, and is awaiting, a bond hearing or a 
                        bond redetermination hearing.
                    (C) Exception.--The Secretary may transfer a 
                detainee who has an existing attorney-client 
                relationship to an alternate detention facility if such 
                transfer is necessitated by a highly unusual emergency, 
                such as a natural disaster or comparable emergency.
                    (D) Protecting detainees legal rights.--If the 
                Secretary determines that a transfer is necessary due 
                to a highly unusual emergency, the Secretary shall 
                ensure that the detainee's legal rights are not 
                prejudiced and the existing attorney-client 
                relationship is not impaired, including evaluating the 
                location of the detention facility based on it 
                proximity to the detainee's counsel or nongovernmental 
                or pro bono organizations providing free or low cost 
                immigration legal services.
                    (E) Record.--In cases in which a detainee is 
                transferred, the Secretary shall make a record of the 
                reasons and circumstances necessitating such transfer.
            (5) Notice.--
                    (A) In general.--Section 236 of the Immigration and 
                Nationality Act (8 U.S.C. 1226) is amended by adding at 
                the end the following:
    ``(f) Notice.--The Secretary of Homeland Security shall file the 
notice to appear or other relevant charging document with the 
immigration court and serve such notice on every alien detained under 
this Act, within 48 hours of the detention of such alien. Any alien, 
held for more than 48 hours shall be brought before an immigration 
judge for a custody determination within 72 hours of the arrest or 
detention of such alien. The requirements of this provision may be 
tolled for no more than 30 days upon request from an alien who 
demonstrates prima facie eligibility for affirmative relief. The 
Secretary of Homeland Security shall--
            ``(1) document when a notice to appear is served on a 
        detainee in order to determine compliance by the Secretary of 
        Homeland Security with the 48-hour notice requirement; and
            ``(2) submit to the Committees on the Judiciary of the 
        Senate and the House of Representatives an annual report 
        concerning the Secretary of Homeland Security's compliance with 
        such notice requirement.''.
                    (B) Applicability of other law.--Nothing in section 
                236(f) of the Immigration and Nationality Act, as added 
                by subparagraph (A), shall be construed to repeal 
                section 236A of such Act (8 U.S.C. 1226a).
    (b) Regulations Concerning Care and Custody of Detainees.--
            (1) Rulemaking.--The Secretary of Homeland Security shall 
        promulgate new rules, or modify existing rules, based on the 
        report of the detention advisory committee established under 
        paragraph (2), to ensure detainees are treated humanely and 
        held in the least restrictive setting necessary for their 
        safety and to ensure compliance with the general minimum 
        requirements set forth in paragraph (3), standards regarding 
        classification of detainees set forth in paragraph (4), and the 
        special standards for vulnerable populations set forth in 
        paragraph (5). Such rules shall apply to all facilities in 
        which the Secretary of Homeland Security detains noncitizens, 
        including Service Processing Centers, Contract Detention 
        Facilities, State or local government facilities used by 
        Detention and Removal Operations through Intergovernmental 
        Service Agreements, Bureau of Prisons facilities, and any other 
        temporary or permanent facility used to hold detainees. The 
        rules required under this paragraph shall be promulgated not 
        later than 1 year after the Secretary of Homeland Security 
        receives the report of the detention advisory committee 
        established under paragraph (2), or 1 year after such report is 
        due, whichever is earlier.
            (2) Detention advisory committee.--The Secretary of 
        Homeland Security shall convene, and receive a report from a 
        detention advisory committee comprised of experts from U.S. 
        Immigration and Customs Enforcement, U.S. Customs and Border 
        Protection, the Office of Refugee Resettlement, and Division of 
        Immigration Health Services in the Department of Health and 
        Human Services, and an equal number of independent experts from 
        nongovernmental organizations and intergovernmental 
        organizations with expertise in working on behalf of aliens 
        detained under immigration laws and vulnerable populations. The 
        independent experts shall at a minimum include representatives 
        of the American Bar Association and the United Nations High 
        Commissioner for Refugees. The detention advisory committee 
        shall review and revise all the guidelines found in the 
        Secretary of Homeland Security's Detention Operations Manual, 
        as amended, based on identifiable deficiencies and best 
        practices that treat aliens both safely and humanely. The 
        detention advisory committee shall submit a report to the 
        Secretary of Homeland Security within 12 months after the date 
        of the enactment of this Act. For good cause, the Secretary of 
        Homeland Security may extend the time for submission of the 
        advisory committees report for an additional six months.
            (3) Training.--The Secretary of Homeland Security shall 
        develop and implement a training protocol for all personnel in 
        all facilities in which noncitizens are detained. The training 
        protocol shall include periodic updates to initial 
        comprehensive training. The Secretary shall monitor the 
        implementation of the protocol annually and shall ensure that 
        all personnel who are required to be trained under the protocol 
        have received the necessary training. The protocol shall 
        include--
                    (A) an overview of immigration detention and the 
                characteristics of the noncitizen detainee population;
                    (B) an overview of the detention standards;
                    (C) specific guidance on each of the detention 
                standards; and
                    (D) a description of the Secretary's quality 
                assurance procedures.
            (4) General minimum requirements.--The Secretary of 
        Homeland Security's rules regarding conditions of detention 
        shall ensure that the following requirements are met:
                    (A) Fair and humane treatment.--Detainees shall not 
                be subject to cruel, degrading or inhumane treatment 
                such as verbal or physical abuse or harassment, sexual 
                abuse or harassment, or arbitrary punishment.
                    (B) Use of force and restraints.--Detainees shall 
                not be subjected to shackling, handcuffing, solitary 
                confinement, Tasers, electric shields, restraint 
                chairs, or strip searches unless and to the extent that 
                such techniques are necessary to ensure the security of 
                other detainees, staff, or the public and where no less 
                coercive or degrading measures are available to achieve 
                that end. These techniques shall in no event be used 
                for the purpose of humiliating detainees either within 
                or outside the detention facility. Detention facilities 
                shall adopt written policies pertaining to the use of 
                force and the use of restraints, and shall train all 
                staff on the proper use of such devices.
                    (C) Investigation of grievances.--Detainees shall 
                have the right to prompt, effective, transparent, and 
                impartial grievance procedures. Such procedures shall 
                include review of grievances by officials of the 
                Department of Homeland Security who do not work at the 
                same detention facility where the detainee filing the 
                grievance is detained in accordance with the following:
                            (i) An otherwise valid grievance shall not 
                        be denied for noncompliance with a procedural 
                        requirement if such noncompliance is due to 
                        ignorance, fear, excusable neglect or other 
                        reasonable cause.
                            (ii) Detainees shall be afforded the 
                        opportunity to complain to staff of U.S. 
                        Immigration and Customs Enforcement directly 
                        and confidentially, outside the grievance 
                        process.
                            (iii) Detainees shall not be subject to 
                        retaliation for making use of the grievance 
                        procedure or procedure for complaining directly 
                        to staff of U.S. Immigration and Customs 
                        Enforcement.
                            (iv) Detention facilities shall orally 
                        inform detainees of the grievance procedure and 
                        the procedure for complaining directly to staff 
                        of U.S. Immigration and Customs Enforcement and 
                        shall provide to every detainee a copy of those 
                        procedures within 24 hours after admission. The 
                        detention facility shall provide oral 
                        interpretation and written translation 
                        assistance to detainees in completing any 
                        grievance or complaint forms or other relevant 
                        materials required to comply with grievance 
                        procedures.
                            (v) Detention facilities shall make an 
                        annual report regarding the grievances 
                        received, the responses made, and the time 
                        period for response, and such report shall be 
                        submitted to the Secretary of Homeland Security 
                        on January 31 of each year.
                            (vi) All grievances shall be investigated.
                    (D) Location of facilities.--Detention facilities 
                shall be located, to the extent practicable, within 50 
                miles of a city or municipality in which there is a 
                demonstrated capacity to provide competent legal 
                representation by nonprofit legal aid organizations or 
                other pro bono attorneys to detained noncitizens, 
                including asylum seekers and other vulnerable immigrant 
                populations. The Secretary of Homeland Security shall 
                seek to use only facilities within the stated 50 mile 
                radius by January 1, 2012.
                    (E) Access to legal materials.--Detainees shall 
                have available an on-site law library with sufficient 
                space to facilitate detainees' legal research and 
                preparation of documents. The law library's holdings 
                shall include up-to-date copies of legal materials 
                designated by the Secretary of Homeland Security, 
                including immigration law materials. The law library 
                shall be provided with adequate equipment for legal 
                research and the preparation of legal documents. Such 
                equipment shall include, at a minimum, computers, 
                printers, typewriters, and copiers. Information 
                regarding the availability of the library, procedures 
                for requesting its use, and instruction on the use of 
                the library and library equipment shall be provided to 
                all detainees at the time of admission into the 
                detention facility, and shall be posted in the law 
                library together with a list of the library's holdings. 
                The detention facility will make available to detainees 
                any assistance that may be necessary to allow detainees 
                to use the library effectively and shall provide 
                special assistance as the Secretary of Homeland 
                Security may prescribe to detainees who are not 
                literate in English. Library services, including access 
                to databases and printing and copying, shall be 
                provided without charge to detainees.
                    (F) Legal visits.--
                            (i) In general.--Legal visits shall not be 
                        restricted absent narrowly defined exceptional 
                        circumstances, including a natural disaster or 
                        comparable emergency beyond the control of the 
                        Secretary of Homeland Security.
                            (ii) Procedures.--Detainees shall be 
                        entitled to private meetings with their current 
                        or prospective legal representatives or their 
                        legal assistants. Interpreters shall be allowed 
                        to accompany legal representatives and legal 
                        assistants on legal visits subject to 
                        appropriate security procedures. Legal visits 
                        shall be permitted a minimum of 8 hours per day 
                        on regular business days and 4 hours per day on 
                        weekends and holidays, except that if lack of 
                        space for interviews at the detention facility, 
                        the conduct of immigration hearings on site, or 
                        other factors lead to excessive delay between 
                        the time the legal representative is ready to 
                        visit the detainee and the time space becomes 
                        available, the Secretary of Homeland Security 
                        shall require such additional time for legal 
                        visits or other measures as may be sufficient 
                        to avoid excessive delay. Excessive delay for 
                        purposes of this paragraph is delay of 2 hours 
                        or more, occurring more than 2 times per month 
                        over a 12-month period. Detention facilities 
                        shall maintain a procedure allowing legal 
                        representatives and legal assistants to call 
                        ahead to determine if a detainee is held at 
                        that facility, and they shall take messages 
                        from legal representatives and promptly deliver 
                        them to the detainee. Messengers, including 
                        individuals who are not attorneys, legal 
                        representatives, or legal assistants, shall be 
                        permitted to deliver documents for detainees to 
                        and from the facility. Detention facilities 
                        shall promptly and prominently post the most 
                        current official list of pro bono legal 
                        organizations and their contact information in 
                        detainee housing units and other appropriate 
                        areas, and such lists shall be updated by the 
                        Secretary of Homeland Security on a semi-annual 
                        basis. Detention facilities may not retaliate 
                        in any way, including denial or limitation of 
                        access to detention facilities, for complaints 
                        or public or private statements made by legal 
                        representatives regarding the detention 
                        facility's compliance with regulations relating 
                        to conditions of detention.
                    (G) Special correspondence.--Special correspondence 
                shall not be read by staff of the detention facility or 
                other personnel, contractors, or agents of the 
                Secretary of Homeland Security, and shall not be opened 
                outside the presence of the detainee. For this purpose, 
                special correspondence includes detainees' written 
                communications to or from private attorneys and other 
                legal representatives; government attorneys; judges and 
                courts; embassies and consulates; the president and 
                vice president of the United States, members of the 
                Congress, officers and other personnel of the 
                Department of Justice; officers and other personnel of 
                the Department of Homeland Security; officers and other 
                personnel of the U.S. Public Health Service; 
                administrators of grievance systems; State and local 
                officials, representatives of the news media, and 
                representatives of nongovernmental organizations and 
                intergovernmental organizations working on behalf of 
                aliens held in detention and vulnerable populations. 
                Correspondence will only be treated as special 
                correspondence if marked ``special correspondence'' or 
                ``legal mail'' or if the title and office of the sender 
                (for incoming correspondence) or addressee (for 
                outgoing correspondence) are unambiguously identified 
                on the envelope, clearly indicating that the 
                correspondence is special correspondence. Special 
                correspondence shall be promptly delivered and promptly 
                posted. In general, correspondence will be deemed 
                promptly delivered if it is delivered to the detainee 
                within 24 hours after its receipt by the detention 
                facility, and correspondence will be deemed promptly 
                posted if it is placed into the United States mail the 
                next day on which the Post Office is open for business 
                after the detainee places the correspondence in the 
                location designated by the facility for outgoing mail.
                    (H) Access to detention facilities.--Detention 
                facilities shall afford access as follows:
                            (i) Subject to reasonable conditions to 
                        protect the security of the facility, detention 
                        facilities shall afford access to private 
                        attorneys, other legal representatives and 
                        legal personnel such as paralegals and Board of 
                        Immigration Appeals accredited representatives; 
                        government attorneys; judges and courts; 
                        embassies and consulates; the president and 
                        vice president of the United States, members of 
                        Congress and their staff; officers and other 
                        personnel of the Department of Justice; 
                        officers and other personnel of the Department 
                        of Homeland Security; officers and other 
                        personnel of the U.S. Public Health Service; 
                        administrators of grievance systems; State and 
                        local officials, representatives of the news 
                        media, and representatives of nongovernmental 
                        organizations, community service organizations, 
                        and intergovernmental organizations.
                            (ii) Independent observers, including 
                        nongovernmental organizations, shall be 
                        permitted to conduct site visits, meet 
                        privately with detainees, test telephones and 
                        pro bono calling platforms, and take other 
                        reasonable steps to monitor compliance with 
                        regulations regarding conditions of detention. 
                        Such observers and organizations shall not be 
                        prohibited from issuing public reports on the 
                        findings of monitoring visits.
                            (iii) Detention facilities shall 
                        accommodate requests for facility tours within 
                        a reasonable time not to exceed 1 week.
                            (iv) Access of media representatives to 
                        detention facilities and individual detainees 
                        may be restricted only to the extent necessary 
                        to preserve the privacy of detainees, the 
                        security and good order of the facility, the 
                        safety of the interviewer, national security, 
                        or any other obligation imposed by law or court 
                        order. Such access may not be restricted based 
                        on the content of the media representative's 
                        reporting, and retaliation against detainees 
                        and members of the media based on the content 
                        of their speech shall be prohibited.
                            (v) Detention facilities may not retaliate 
                        in any way, including denial or limitation of 
                        access to detention facilities, against any 
                        visitor for complaints, or public or private 
                        statements, regarding the detention facility's 
                        compliance with regulations relating to 
                        conditions of detention.
                    (I) Translation capabilities.--Detention facilities 
                shall employ staff that, to the extent practicable, is 
                qualified in the languages represented in the 
                population of detainees at each such facility and shall 
                provide alternative translation services where 
                necessary.
                    (J) Recreational programs and activities.--
                Detainees shall be afforded access of at least one hour 
                per day to indoor and outdoor recreational programs and 
                activities.
                    (K) Safe and sanitary living environment.--
                Detention facilities shall house no more individuals 
                than permitted by the rated bed capacity for the 
                facility, where the rated bed capacity is defined by 
                the original design capacity, plus or minus capacity 
                changes resulting from building additions, reductions, 
                or revisions. Each detainee shall receive appropriate 
                clothing and a bed and a mattress placed in an area 
                specifically designated for residential use, rather 
                than an area re-tasked for residential use such as 
                common dayrooms, recreation areas, or visitation rooms. 
                Detention facilities shall be maintained in a safe and 
                sanitary condition, and adequate ventilation and 
                reasonably comfortable indoor temperatures shall be 
                maintained at all times.
                    (L) Legal orientation to ensure effective 
                immigration proceedings.--
                            (i) In general.--The Attorney General, in 
                        consultation with the Secretary of Homeland 
                        Security, shall ensure that all detained 
                        aliens, including unaccompanied minors, in 
                        immigration proceedings receive legal 
                        orientation from an independent nongovernmental 
                        organization through a program administered and 
                        implemented by the Executive Office for 
                        Immigration Review of the Department of 
                        Justice.
                            (ii) Content of program.--The legal 
                        orientation program developed pursuant to this 
                        subparagraph shall be based on the Legal 
                        Orientation Program carried out by the 
                        Executive Office for Immigration Review on the 
                        date of the enactment of this Act. 
                        Presentations for minors shall utilize a child-
                        centered model.
            (5) Classification.--The Secretary of Homeland Security's 
        rules shall ensure that detainees with no history of a criminal 
        conviction are separated by sight and sound from detainees and 
        inmates with criminal convictions, pretrial inmates facing 
        criminal prosecution, and those inmates exhibiting violent 
        behavior while in detention.
            (6) Vulnerable populations.--The Secretary of Homeland 
        Security's rules regarding conditions of detention for 
        vulnerable populations shall--
                    (A) recognize the unique needs of asylum seekers, 
                victims of torture and trafficking, families with 
                children, detainees who do not speak English, detainees 
                with special religious, cultural or spiritual 
                considerations, and vulnerable populations listed in 
                section 4(c); and
                    (B) ensure that procedures and conditions of 
                detention are appropriate for such vulnerable 
                populations.
            (7) Staffing.--For purposes of this subsection and 
        protecting vulnerable populations, the Secretary of Homeland 
        Security shall appoint at least three members to the 
        Directorate of Policy at the GS-15 level with substantial 
        academic credentials and expertise in working directly with 
        vulnerable populations including children, families and victims 
        of trafficking, trauma, and torture who shall be responsible 
        for setting, implementing, and overseeing policy and regulatory 
        developments concerning vulnerable populations.

SEC. 4. SECURE ALTERNATIVES TO DETENTION.

    (a) In General.--Subject to the availability of appropriations, the 
Secretary of Homeland Security shall fully implement and utilize secure 
alternatives to detention programs.
    (b) Secure Alternatives to Detention Programs.--
            (1) Nature of the program.--For purposes of this section, 
        the programs referred to in subsection (a) are programs under 
        which eligible aliens are released under supervision, 
        assistance and monitoring that ensure they appear at all 
        immigration interviews, appointments, and hearings. The 
        elements of the secure alternatives to detention programs are--
                    (A) group presentations and individual screening;
                    (B) provision of services to aliens released; and
                    (C) on-going assistance, supervision, and 
                monitoring.
            (2) Voluntary participation.--An alien's participation in 
        the program is voluntary and shall not confer any rights or 
        benefits to the alien under the Immigration and Nationality Act 
        (8 U.S.C. 1101 et seq.).
            (3) Program development.--The program shall be developed in 
        accordance with the following guidelines:
                    (A) The Secretary of Homeland Security shall design 
                the program in consultation with nongovernmental 
                organizations and academic experts in both the 
                immigration and the criminal justice fields.
                    (B) All aliens in the custody of the Secretary of 
                Homeland Security deemed eligible for secure 
                alternatives to detention programs shall be released in 
                the least restrictive setting needed to ensure 
                appearance at all immigration interviews, appointments 
                and hearings. The programs shall utilize a continuum of 
                methods, including releasing the alien to an individual 
                or organizational sponsor, a supervised group home, or 
                a supervised, non-penal community setting.
                    (C) Nongovernmental organizations and State and 
                local social service agencies that serve immigrants 
                shall be contracted to conduct group and individual 
                screening and provide services to program participants.
                    (D) The Secretary of Homeland Security shall ensure 
                that each alien participates in a legal presentation 
                provided through the legal orientation presentation 
                program administered by the Executive Office for 
                Immigration Review.
    (c) Protection of Vulnerable Populations.--Within 72 hours of 
detaining an alien, the Secretary of Homeland Security shall screen the 
alien to determine if he or she falls into the following designated 
groups. Any alien described in the following designated groups who 
meets the criteria set forth under section 236(b) of the Immigration 
and Nationality Act, as amended by this Act, shall be released on 
parole, a reasonable bond, or the alien's own recognizance subject to 
the requirements of such section 236(b):
            (1) Aliens who have serious medical or mental health needs 
        or a disability.
            (2) Pregnant or nursing women.
            (3) Aliens who are being detained with one or more of their 
        children.
            (4) Aliens who provide financial, physical, and other 
        direct support to their minor children, parents, or other 
        dependents.
            (5) Aliens who are over the age of 65.
            (6) Children (as defined at section 101(c)(1) of the 
        Immigration and Nationality Act (8 U.S.C. 1101(c)(1))).
            (7) Victims of abuse, violence, crime or trafficking.
            (8) Asylum seekers and torture survivors who have 
        demonstrated a credible fear of persecution or a reasonable 
        fear of torture.
            (9) Other groups designated in regulations or guidance 
        promulgated after the date of the enactment of this Act by the 
        Secretary of Homeland Security.
            (10) Individuals who have a nonfrivolous claim to United 
        States citizenship or aliens who are eligible for relief under 
        a provision of the Immigration and Nationality Act.
    (d) Options Regarding Detention Decisions for Vulnerable 
Populations and Placement in Alternatives to Detention.--Section 236 of 
the Immigration and Nationality Act (8 U.S.C. 1226) is amended--
            (1) in subsection (a)--
                    (A) in the matter preceding paragraph (1), by 
                striking ``(c)'' and inserting ``(d)'';
                    (B) in paragraph (2)--
                            (i) in subparagraph (A), by striking ``or'' 
                        at the end;
                            (ii) in subparagraph (B), by striking 
                        ``but'' at the end; and
                            (iii) by inserting after subparagraph (B) 
                        the following:
                    ``(C) the alien's own recognizance; and'';
                    (C) by redesignating paragraph (3) as paragraph 
                (4); and
                    (D) by inserting after paragraph (2) the following:
            ``(3) may enroll the alien in a secure alternatives to 
        detention program; but'';
            (2) by redesignating subsections (b), (c), (d), and (e) as 
        subsections (e), (f), (g), and (h) respectively;
            (3) by inserting after subsection (a) the following:
    ``(b) Custody Decisions for Vulnerable Populations.--
            ``(1) In general.--Not later than 72 hours after an alien's 
        detention unless the 72 hour requirement is waived in writing 
        by the alien, an alien who is a member of a vulnerable 
        population (as defined by subsection (c)) shall be released 
        from the Secretary of Homeland Security's custody and shall not 
        be subject to electronic monitoring unless the Secretary of 
        Homeland Security demonstrates that the alien--
                    ``(A) is subject to mandatory detention under 
                section 235(b)(1)(B)(iii)(IV), 236(c) or 236A; or
                    ``(B) poses a flight risk or a risk to others or 
                national security.
            ``(2) Release.--An alien shall be released under this 
        subsection--
                    ``(A) on the alien's own recognizance;
                    ``(B) by posting a reasonable bond under subsection 
                (a); or
                    ``(C) on parole in accordance with section 
                212(d)(5)(A).
    ``(c) Participation in Alternatives to Detention.--An alien who is 
denied release on recognizance, parole, or bond, or is unable to pay 
the bond shall be selected for participation in a secure alternatives 
to detention program unless the Secretary of Homeland Security 
demonstrates by substantial evidence that the alien--
            ``(1) is subject to mandatory detention under section 
        235(b)(1)(B)(iii)(IV) or 236A; or
            ``(2) is a flight risk or the alien's participation in the 
        program would create a risk to others or national security.
    ``(d) Decisions Under This Section.--In the case of a decision 
under subsection (a), (b), or (c), the following shall apply:
            ``(1) The decision shall be made in writing and shall be 
        served upon the individual in the language spoken by the alien. 
        A decision to continue detention without bond or parole shall 
        specify in writing the reasons for that decision.
            ``(2) The decision shall be served upon the alien within 72 
        hours of the individual's detention or, in the case of an 
        individual subject to section 235, 238, or 241(a)(5) within 72 
        hours of a positive credible or reasonable fear determination.
            ``(3) An alien subject to this section, including all 
        aliens who are entitled to a removal hearing under section 240, 
        may at any time after being served with the Secretary of 
        Homeland Security's decision under subsections (a), (b), or (c) 
        request a redetermination of that decision by an immigration 
        judge.
            ``(4) All custody decisions by the Secretary of Homeland 
        Security shall be subject to redetermination by an immigration 
        judge. Nothing in this subsection shall be construed to prevent 
        an individual from requesting a bond redetermination.
            ``(5) The Attorney General or an immigration judge, at any 
        time, may redetermine an alien's classification under 
        subsection (c), the bond of someone released, or the custody 
        status of someone placed in an alternatives to detention 
        program. Nothing in this subsection would preclude a person 
        from being released on bond after initially participating in an 
        alternatives to detention program.''; and
            (4) in subsection (f), as redesignated, in paragraph (2), 
        by inserting ``or for humanitarian reasons,'' after ``such an 
        investigation,''.
    (e) Eligibility and Operations.--Nothing in this section shall be 
construed to modify the care and custody of unaccompanied alien 
children (as defined in section 462(g)(2) of the Homeland Security Act 
(6 U.S.C. 279(g)(2))) who shall be considered to be in the care and 
exclusive legal and physical custody of the Secretary of Health and 
Human Services. Such children shall be subject to removal proceedings 
under section 240 of the Immigration and Nationality Act (8 U.S.C. 
1229a), with the exception of children from contiguous countries 
eligible for administrative voluntary departure, and shall not be 
permitted to participate in the program.
    (f) Less Restrictive Custodial Detention.--If an alien is 
determined not to meet the requirements for release on recognizance, 
bond or parole, or subsequently does not meet the requirements for 
secure alternatives to detention programs, the alien shall be 
considered for placement in less restrictive forms of custody:
            (1) Less restrictive forms of custodial detention include 
        electronic monitoring such as the use of ankle bracelets that 
        monitor an individual's movement and the use of similar 
        electronic devices.
            (2) An individualized determination shall be made in each 
        alien's case about the use of electronic monitoring.
            (3) Aliens who would otherwise be subject to detention 
        including under section 236 of such Act (8 U.S.C. 1226) may be 
        placed in electronic monitoring or other less restrictive forms 
        of custody.
            (4) Subject to the availability of appropriations, 
        facilities shall be developed and used that offer the least 
        restrictive secure setting for aliens in custody.

SEC. 5. PROGRAM OVERSIGHT AND REVIEW.

    (a) Relationships of Application to Certain Orders.--An alien who 
is present in the United States and has been ordered excluded, 
deported, removed, or ordered to depart voluntarily from the United 
States under any provision of the Immigration and Nationality Act--
            (1) notwithstanding such order, may be selected for a 
        secure alternatives to detention program; and
            (2) shall not be required to file a separate motion to 
        reopen, reconsider, or vacate the exclusion, deportation, 
        removal, or voluntary departure order.
    (b) Implementing Regulations.--Not later than 180 days after the 
date of the enactment of this Act, the Secretary of Homeland Security 
shall promulgate regulations to implement the secure alternatives to 
detention programs.
    (c) Reporting Requirements.--Not later than 365 days after the date 
of the enactment of this Act and annually thereafter, the Secretary of 
Homeland Security shall submit to the Committee on Homeland Security of 
the House of Representatives, the Committee on the Judiciary of the 
House of Representatives, the Committee on Homeland Security and 
Governmental Affairs of the Senate, and the Committee on the Judiciary 
of the Senate a report that details all policies, regulations, and 
actions taken to comply with the provisions in this Act and the 
amendments made by this Act, including efforts to increase the use of 
the secure alternatives to detention programs, and a description of 
efforts taken to ensure that all aliens in expedited removal 
proceedings are residing under conditions that are safe, secure, and 
healthy.
    (d) Authorization of Appropriations.--There are authorized to be 
appropriated to the Secretary of Homeland Security such sums as may be 
necessary to carry out this Act and the amendments made by this Act. 
Amounts appropriated pursuant to this subsection shall remain available 
until expended.
                                 <all>