[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3923 Introduced in House (IH)]

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115th CONGRESS
  1st Session
                                H. R. 3923

 To provide standards for facilities at which aliens in the custody of 
    the Department of Homeland Security are detained, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 3, 2017

Mr. Smith of Washington (for himself, Ms. Jayapal, Mr. Blumenauer, Ms. 
  Judy Chu of California, Mr. Cicilline, Mr. Cohen, Mr. Cummings, Mr. 
Danny K. Davis of Illinois, Mr. Ellison, Mr. Espaillat, Mr. Foster, Mr. 
 Gallego, Mr. Gutierrez, Ms. Hanabusa, Ms. Jackson Lee, Mr. Jeffries, 
   Mr. Johnson of Georgia, Mr. Kennedy, Mrs. Lawrence, Ms. Lee, Ms. 
 Lofgren, Mr. McGovern, Ms. Moore, Mr. Nadler, Ms. Norton, Mr. Payne, 
 Mr. Quigley, Mr. Raskin, Ms. Roybal-Allard, Mr. Rush, Ms. Schakowsky, 
 Mr. Veasey, Ms. Maxine Waters of California, Mrs. Watson Coleman, Mr. 
 Polis, Ms. DelBene, Mr. Conyers, Ms. Barragan, Miss Rice of New York, 
  Mr. Gomez, Ms. Pingree, Mrs. Napolitano, Mr. Lewis of Georgia, Ms. 
 McCollum, Mr. Doggett, Mr. Serrano, and Mr. Grijalva) introduced the 
 following bill; which was referred to the Committee on the Judiciary, 
and in addition to the Committee on Homeland Security, for a period to 
      be subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the jurisdiction of the 
                          committee concerned

_______________________________________________________________________

                                 A BILL


 
 To provide standards for facilities at which aliens in the custody of 
    the Department of Homeland Security are detained, and for other 
                               purposes.

    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 ``Dignity for Detained Immigrants Act 
of 2017''.

SEC. 2. STANDARDS FOR DHS DETENTION FACILITIES.

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

SEC. 3. OVERSIGHT AND TRANSPARENCY FOR DHS DETENTION FACILITIES.

    (a) Periodic Inspections.--
            (1) In general.--On a periodic basis, and not less than 
        annually, the Inspector General of the Department of Homeland 
        Security shall conduct an unannounced inspection of each 
        facility at which aliens in the custody of the Department of 
        Homeland Security are detained in order to ensure that each 
        such facility is in compliance with the standards under section 
        2. Not later than 60 days after conducting an inspection under 
        this subsection, the Inspector General shall make a report of 
        such inspection publicly available on the website of the 
        Department of Homeland Security, and submit such report to the 
        Secretary of Homeland Security.
            (2) Failure to comply with standards.--
                    (A) Initial failure.--In the case that the 
                Inspector General determines that a facility has failed 
                to comply with the standards under section 2 for the 
                first time during any 2-year period, and that such 
                noncompliance constitutes a deficiency that threatens 
                the health, safety, or the due process rights of 
                detainees, the Inspector General shall notify the 
                Secretary of Homeland Security of such finding, and the 
                Secretary shall--
                            (i) in the case of a facility that is not 
                        owned by the Department of Homeland Security, 
                        impose a fine of not less than 10 percent of 
                        the value of the contract with the facility; 
                        and
                            (ii) in the case of a facility that is 
                        owned by the Department of Homeland Security--
                                    (I) issue a written warning to the 
                                facility not later than 30 days after 
                                receiving such notification from the 
                                Inspector General, which shall include 
                                proposed remedial measures to be 
                                carried out not later than 60 days 
                                after the issuance of the warning; and
                                    (II) not later than 60 days after 
                                the issuance of the warning described 
                                in subclause (I), certify to the 
                                Inspector General that the remedial 
                                measures have been carried out.
                    (B) Subsequent failures.--In the case that the 
                Inspector General determines that a facility has failed 
                to comply with the standards under section 2 in two 
                investigations under paragraph (1) during any 2-year 
                period, and that such noncompliance constitutes a 
                deficiency that threatens the health, safety, or the 
                due process rights of detainees, the Inspector General 
                shall notify the Secretary of Homeland Security of such 
                finding, and the Secretary shall--
                            (i) in the case of a facility that is not 
                        owned by the Department of Homeland Security, 
                        not later than 30 days after receiving such 
                        notification, transfer each detainee to a 
                        facility that does so comply, and terminate the 
                        contract with the owner of the facility; and
                            (ii) in the case of a facility that is 
                        owned by the Department of Homeland Security, 
                        not later than 60 days after receiving such 
                        notification, transfer each detainee to a 
                        facility that does so comply, and suspend the 
                        use of such facility until such time as the 
                        Inspector General certifies to the Secretary 
                        that the facility is in compliance with such 
                        standards, and makes publicly available on the 
                        website of the Department of Homeland Security 
                        information relating to the remedial measures 
                        taken.
    (b) Investigations on Death in Custody.--Not later than 30 days 
after the death of an alien in the custody of the Department of 
Homeland Security, the Secretary of Homeland Security shall conduct an 
investigation into that death, which shall include a root cause 
analysis that identifies any changes to policies or practices that 
could reduce the probability of such an event in the future. Not later 
than 60 days after such a death, the Secretary shall make a report 
describing the results of such investigation publicly available on the 
website of the Department of Homeland Security. The root cause analysis 
described in the previous sentence shall be performed in accordance 
with professional medical standards for investigating sentinel events 
in medical care facilities, including the Sentinel Event Policy 
promulgated by The Joint Commission.
    (c) Report to Congress.--On an annual basis, the Secretary of 
Homeland Security shall submit to the Committees on the Judiciary of 
the House of Representatives and of the Senate a report on the 
inspections and oversight of facilities at which aliens in the custody 
of the Department of Homeland Security are detained. Such report shall 
include information relating to, for the preceding year--
            (1) each detention facility which the Inspector General 
        found was not in compliance with the standards under section 2 
        pursuant to an investigation conducted under subsection (a)(1);
            (2) any remedial actions taken, or that the Secretary plans 
        to take, in order to comply with such standards; and
            (3) whether the remedial actions described in paragraph (2) 
        were successful in bringing the facility into compliance with 
        such standards.
    (d) Classification of Documents for Purposes of FOIA.--The reports 
under subsections (a) and (b), and any contract between the Department 
of Homeland Security and a private or public entity which provides for 
the use of a facility not owned by the Department of Homeland Security 
to detain aliens in the custody of the Department of Homeland Security 
are considered records for purposes of section 552 of title 5, United 
States Code, and do not qualify for the exception under subsection 
(b)(4) of such section.
    (e) Facilities Matrix.--On the first day of each month, the 
Secretary of Homeland Security shall ensure that there is publicly 
available on the website of the Department of Homeland Security, the 
following information relating to each facility at which aliens in the 
custody of the Department of Homeland Security may be detained:
            (1) The name and location of each facility.
            (2) Whether the facility houses adults, children, or both.
            (3) As of the first day of the month, the number of beds 
        available in each facility, disaggregated by gender.
            (4) Whether the facility is used to detain aliens for 
        longer than 72 hours, or for longer than 7 days.
            (5) The average number of aliens detained in the facility 
        for the current year, and for the preceding month, 
        disaggregated by gender and classification as a child or as an 
        adult.
            (6) Whether the facility is in compliance with the 
        standards under paragraph 2.
            (7) In the case of a facility that is not owned by the 
        Department of Homeland Security, the nature of the contract 
        providing for the detention of aliens at that facility.
            (8) The average number of days that an alien has been 
        detained at the facility during the preceding month.
    (f) Online Detainee Locator System.--The Secretary of Homeland 
Security shall ensure that the online detainee locator system 
maintained by the Department of Homeland Security, or any successor 
system, is updated not later than 12 hours after an alien is taken into 
custody or released from custody by the Department of Homeland 
Security, transferred to, or detained in, a detention facility, or 
removed from the United States.
    (g) Information Collected and Maintained for Aliens in DHS 
Custody.--The Secretary of Homeland Security shall collect and 
maintain, for each alien in the custody of the Department of Homeland 
Security, the following information:
            (1) The gender and age of the alien.
            (2) The date on which the alien was detained.
            (3) Whether the alien is considered a vulnerable person (as 
        such term is defined in section 236(g) of the Immigration and 
        Nationality Act (8 U.S.C. 1226(g)) or a primary caregiver.
            (4) The provision of law under with the Secretary is 
        authorized to detain the alien.
            (5) The location where the alien is detained.
            (6) Any transfer of the alien to another detention 
        facility, and the reason for such transfer.
            (7) The status and basis of any removal proceedings.
            (8) The initial custody determination made by Immigration 
        and Customs Enforcement, and any review of that determination.
            (9) If applicable, the date of the alien's release or 
        removal, and the reason for such release or removal.
            (10) Whether the alien is subject to a final order of 
        removal.

SEC. 4. CAUSE OF ACTION.

    (a) In General.--An individual who is detained in a facility that 
is required to comply with the standards described in section 2, and 
who is injured as a result of a violation of such standards, may file a 
claim in the appropriate district court of the United States.
    (b) Recovery.--In a civil action under this section, the court may 
order injunctive relief and compensatory damages, and may award the 
prevailing party reasonable attorney fees, and costs.

SEC. 5. DHS DETENTION FACILITY CONSTRUCTION AND MAINTENANCE.

    (a) Restriction on Construction of DHS Facilities.--Not later than 
180 days before initiating, or entering into a contract for, the 
construction of a new facility or to expand an existing facility for 
the detention of aliens in the custody of the Department of Homeland 
Security, the Secretary of Homeland Security shall submit to the 
Committees on the Judiciary of the House of Representatives and of the 
Senate, the Committee on Homeland Security of the House of 
Representatives, and the Committee on Homeland Security and 
Governmental Affairs of the Senate a notification of the plan to 
construct or expand such facility, including the location, size, and 
capacity of such facility, the anticipated timeline and cost of 
constructing or expanding such facility, and the intended population to 
be detained at such facility, including the gender and ages of such 
population.
    (b) Phase-Out of Private Detention Facilities and Use of Jails.--
            (1) Secure detention facilities.--Beginning on the date of 
        the enactment of this Act, the Secretary of Homeland Security 
        may not enter into or extend any contract with any public or 
        private entity which owns or operates a detention facility for 
        use of that facility to detain aliens in the custody of the 
        Department of Homeland Security, and shall terminate any such 
        contract not later than the date that is 3 years after the date 
        of the enactment of this Act. Beginning on the date that is 3 
        years after the date of the enactment of this Act, any facility 
        at which aliens in the custody of the Department of Homeland 
        Security are detained shall be owned and operated by the 
        Department of Homeland Security.
            (2) Non-secure detention programs.--Beginning on the date 
        of the enactment of this Act, the Secretary of Homeland 
        Security may not enter into or extend any contract with any 
        public or private for-profit entity which owns or operates a 
        program or facility that provides for non-residential 
        detention-related activities for aliens who are subject to 
        monitoring by the Department of Homeland Security, and shall 
        terminate any such contract not later than the date that is 3 
        years after the date of the enactment of this Act. Beginning on 
        the date that is 3 years after the date of the enactment of 
        this Act, any such program or facility shall be owned and 
        operated by a nonprofit organization or by the Department of 
        Homeland Security.
            (3) Publication of plan.--Not later than 60 days after the 
        date of the enactment of this Act, the Secretary shall develop, 
        and make publicly available, a plan and timeline for the 
        implementation of this subsection.

SEC. 6. APPEARANCE OF DETAINED ALIENS FOR OTHER LEGAL MATTERS.

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

SEC. 7. PROCEDURES FOR DETAINING ALIENS.

    (a) Probable Cause and Custody Determination Hearings.--Section 236 
of the Immigration and Nationality Act (8 U.S.C. 1226) is amended--
            (1) by amending subsection (a) to read as follows:
    ``(a) Arrest, Detention, and Release.--On a warrant issued by an 
immigration judge, or pursuant to section 287(a)(2), the Secretary of 
Homeland Security may arrest an alien, and in accordance with this 
section, detain the alien or release the alien on bond, subject to 
conditions, or recognizance, pending a decision on whether the alien is 
to be removed from the United States.'';
            (2) by striking subsection (b);
            (3) by striking subsection (e);
            (4) by adding at the end the following:
    ``(f) Bond Determination.--In the case that an immigration judge 
makes a determination to release an alien on bond under this section, 
the immigration judge shall consider, for purposes of setting the 
amount of the bond, the alien's financial position and ability to pay 
the bond without imposing financial hardship on the alien.
    ``(g) Custody Determination.--
            ``(1) Initial determination.--Not later than 48 hours after 
        taking an alien into custody, the Secretary of Homeland 
        Security shall make an initial custody determination with 
        regard to that alien, and provide that determination in writing 
        to the alien. If the Secretary determines that the release of 
        an alien will not reasonably assure the appearance of the alien 
        as required or will endanger the safety of any other person or 
        the community, the custody determination under this paragraph 
        will impose the least restrictive conditions, as described in 
        paragraph (4).
            ``(2) Timing.--If an alien seeks to challenge the initial 
        custody determination under paragraph (1), the alien shall be 
        provided with the opportunity for a hearing before an 
        immigration judge to determine whether the alien should be 
        detained, which hearing shall occur not later than 72 hours 
        after the initial custody determination.
            ``(3) Presumption of release.--In a hearing under this 
        subsection, there shall be a presumption that the alien should 
        be released. The Government shall have the duty of rebutting 
        this presumption, which may only be shown based on clear and 
        convincing evidence, including credible and individualized 
        information, that the use of alternatives to detention will not 
        reasonably assure the appearance of the alien at removal 
        proceedings, or that the alien is a threat to another person or 
        the community. The fact that an alien has a criminal charge 
        pending against the alien may not be the sole factor to justify 
        the continued detention of the alien.
            ``(4) Least restrictive conditions required.--If an 
        immigration judge determines pursuant to a hearing under this 
        section that the release of an alien will not reasonably assure 
        the appearance of the alien as required or will endanger the 
        safety of any other person or the community, the immigration 
        judge shall order the least restrictive conditions, or 
        combination of conditions, that the judge determines will 
        reasonably assure the appearance of the alien as required and 
        the safety of any other person and the community, which may 
        include secured or unsecured release on bond, or participation 
        in a program described in subsection (i). Any conditions 
        assigned to an alien pursuant to this paragraph shall be 
        reviewed by the immigration judge on a monthly basis.
            ``(5) Special rule for vulnerable persons and primary 
        caregivers.--In the case that the alien who is the subject of a 
        custody determination under this subsection is a vulnerable 
        person or a primary caregiver, the alien may not be detained 
        unless the Government shows, in addition to the requirements 
        under paragraph (2), that it is unreasonable or not practicable 
        to place the individual in a community-based supervision 
        program.
            ``(6) Definition.--In this subsection, the term `vulnerable 
        person' means an individual who--
                    ``(A) is under 21 years of age or over 60 years of 
                age;
                    ``(B) is pregnant;
                    ``(C) identifies as lesbian, gay, bisexual, 
                transgender, or intersex;
                    ``(D) is victim or witness of a crime;
                    ``(E) has filed a nonfrivolous civil rights claim 
                in Federal or State court;
                    ``(F) has a serious mental or physical illness or 
                disability;
                    ``(G) has been determined by an asylum officer in 
                an interview conducted under section 235(b)(1)(B) to 
                have a credible fear of persecution; or
                    ``(H) has been determined by an immigration judge 
                or the Secretary of Homeland Security to be 
                experiencing severe trauma or to be a survivor of 
                torture or gender-based violence, based on information 
                obtained during intake, from the alien's attorney or 
                legal service provider, or through credible self-
                reporting.
            ``(7) Subsequent determinations.--An alien who is detained 
        under this section shall be provided with a de novo custody 
        determination hearing under this subsection every 60 days, as 
        well as upon showing of a change in circumstances or good cause 
        for such a repeat hearing.
    ``(h) Release Upon an Order Granting Relief From Removal.--In the 
case of an alien with respect to whom an immigration judge has entered 
an order providing for relief from removal, including an order granting 
asylum, or providing for withholding, deferral, or cancellation of 
removal, which order is pending appeal, the Secretary of Homeland 
Security shall immediately release the alien upon entry of the order, 
and may impose only reasonable conditions on the alien's release from 
custody.
    ``(i) Alternatives to Detention.--
            ``(1) In general.--The Secretary of Homeland Security shall 
        establish programs that provide alternatives to detaining 
        aliens, which shall offer a continuum of supervision mechanisms 
        and options, including community-based supervision programs and 
        community support. The Secretary may contract with 
        nongovernmental community-based organizations to provide 
        programs, which may include case management services, 
        appearance assistance services, and screenings of aliens who 
        have been detained.
            ``(2) Individualized determination required.--In 
        determining whether to order an alien to participate in a 
        program under this subsection, the Secretary, or the 
        immigration judge, as appropriate shall make an individualized 
        determination to determine the appropriate level of supervision 
        for the alien. Participation in a program under this subsection 
        may not be ordered for an alien for whom it is determined that 
        release on reasonable bond or recognizance will reasonably 
        assure the appearance of the alien as required and the safety 
        of any other person and the community.''; and
            (5) by striking ``Attorney General'' each place such term 
        appears and inserting ``Secretary of Homeland Security''.
    (b) Probable Cause Hearing.--Section 287(a)(2) of the Immigration 
and Nationality Act (8 U.S.C. 1357(a)(2)) is amended by striking ``but 
the alien arrested shall be taken without unnecessary delay for 
examination before an officer of the Service having authority to 
examine aliens as to their right to enter or remain in the United 
States'' and inserting ``but the alien arrested shall be provided with 
a hearing before an immigration judge not later than 48 hours after 
being taken into custody to determine whether there is probable cause 
to believe that the alien does not have the right to enter or remain in 
the United States, which burden to establish probable cause shall be on 
the Government''.
    (c) Mandatory Detention Repealed.--The Immigration and Nationality 
Act (8 U.S.C. 1101 et seq.) is amended--
            (1) by striking section 235(b)(1)(B)(iii)(IV);
            (2) by striking section 236(c);
            (3) by striking section 236A;
            (4) in section 238(a)(2), by striking ``pursuant to section 
        236(c)''; and
            (5) in section 506(a)(2)--
                    (A) by amending the heading to read as follows: 
                ``Release hearing for aliens detained''; and
                    (B) in subclause (A)--
                            (i) in the matter preceding clause (i), by 
                        striking ``lawfully admitted for permanent 
                        residence''; and
                            (ii) by striking clause (i).
    (d) Aliens Ordered Removed.--Section 241(a) of the Immigration and 
Nationality Act (8 U.S.C. 1231(a)) is amended--
            (1) in paragraph (1), by striking ``90 days'' each place it 
        appears and inserting ``60 days'';
            (2) by amending paragraph (2) to read as follows:
            ``(2) Initial custody redetermination hearing.--
                    ``(A) In general.--Not later than 72 hours after 
                the entry of a final administrative order of removal, 
                the alien ordered removed shall be provided with a 
                custody redetermination hearing before an immigration 
                judge.
                    ``(B) Presumption of detention.--For purposes of 
                the hearing under subparagraph (A), the alien shall be 
                detained during the removal period unless the alien can 
                show by clear and convincing evidence that the alien's 
                removal is not reasonably foreseeable and that the 
                alien does not pose a risk to the safety of any 
                individual or to the community.'';
            (3) in paragraph (3)--
                    (A) in the heading, by striking ``90-day'' and 
                inserting ``60-day''; and
                    (B) in the matter preceding subparagraph (A), by 
                striking ``the alien, pending removal, shall be subject 
                to supervision under'' the following: ``except as 
                provided in paragraph (7), any alien who has been 
                detained during the removal period shall be released 
                from custody, pending removal, subject to 
                individualized supervision requirements in accordance 
                with'';
            (4) by striking paragraph (6); and
            (5) by amending paragraph (7) to read as follows:
            ``(7) Subsequent custody redetermination hearings.--
                    ``(A) In general.--The Government may request a 
                subsequent redetermination hearing before an 
                immigration judge seeking continued detention for an 
                alien ordered to be detained pursuant to paragraph (2) 
                who has not been removed within the removal period.
                    ``(B) Standard.--An alien may only be detained 
                after the removal period upon a showing by the 
                Government that--
                            ``(i) the alien's removal is reasonably 
                        foreseeable; or
                            ``(ii) the alien poses a risk to the safety 
                        of an individual or the community, which may 
                        only be established based on credible and 
                        individualized information that establishes 
                        objective risk factors, and may not be 
                        established based only the fact that the alien 
                        has been charged with or is suspected of a 
                        crime.
                    ``(C) Period of detention.--An alien may not be 
                detained pursuant to an order under this paragraph for 
                longer than a 60-day period. The Government may seek 
                subsequent redetermination hearings under this 
                paragraph in order to continue detaining an alien 
                beyond each such 60-day period.''.
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