[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3112 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  2d Session
                                S. 3112

 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 SENATE OF THE UNITED STATES

                             June 21, 2018

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

_______________________________________________________________________

                                 A BILL


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

    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 2018''.

SEC. 2. STANDARDS FOR DEPARTMENT OF HOMELAND SECURITY DETENTION 
              FACILITIES.

    (a) Rulemaking.--Not later than 1 year after the date of the 
enactment of this Act, the Secretary of Homeland Security shall 
promulgate regulations that establish detention standards for each 
facility at which aliens in the custody of the Department of Homeland 
Security are detained.
    (b) Minimum Protections.--The standards established under 
subsection (a) shall provide, at a minimum, the level of protections 
for detainees described in the American Bar Association's Civil 
Immigration Detention Standards (adopted in August, 2012, and as 
amended in August, 2014).
    (c) Updates.--The Secretary shall review and update the standards 
established under subsection (a) on a biennial basis, as appropriate.

SEC. 3. OVERSIGHT AND TRANSPARENCY FOR DEPARTMENT OF HOMELAND SECURITY 
              DETENTION FACILITIES.

    (a) Periodic Inspections.--
            (1) In general.--Not less frequently than annually, the 
        Inspector General of the Department of Homeland Security shall 
        conduct an unannounced inspection of each facility at which 
        aliens in the custody of the Department of Homeland Security 
        are detained in order to ensure that each such facility is in 
        compliance with the standards established pursuant to section 
        2.
            (2) Report.--Not later than 60 days after conducting an 
        inspection under this paragraph (1), the Inspector General 
        shall--
                    (A) make a report of such inspection publicly 
                available on a website of the Department of Homeland 
                Security; and
                    (B) submit such report to the Secretary of Homeland 
                Security.
            (3) Failure to comply with standards.--
                    (A) Initial failure.--If the Inspector General 
                determines that a facility has failed to comply with 
                the standards established pursuant to section 2 for the 
                first time during any 2-year period, and such 
                noncompliance constitutes a deficiency that threatens 
                the health, safety, or the due process rights of 
                detainees--
                            (i) the Inspector General shall notify the 
                        Secretary of Homeland Security of such finding; 
                        and
                            (ii) the Secretary shall--
                                    (I) impose a fine of not less than 
                                10 percent of the value of the contract 
                                with a facility that is not owned by 
                                the Department of Homeland Security; 
                                and
                                    (II) if the facility is owned by 
                                the Department of Homeland Security--
                                            (aa) issue a written 
                                        warning to the facility not 
                                        later than 30 days after 
                                        receiving such notification 
                                        from the Inspector General, 
                                        which shall include proposed 
                                        remedial measures to be carried 
                                        out not later than 60 days 
                                        after the issuance of the 
                                        warning; and
                                            (bb) not later than 60 days 
                                        after the issuance of the 
                                        warning described in subclause 
                                        (I), certify to the Inspector 
                                        General that the remedial 
                                        measures have been carried out.
                    (B) Subsequent failures.--If the Inspector General 
                determines that a facility has failed to comply with 
                the standards under section 2 in 2 investigations under 
                paragraph (1) during any 2-year period, and such 
                noncompliance constitutes a deficiency that threatens 
                the health, safety, or due process rights of 
                detainees--
                            (i) the Inspector General shall notify the 
                        Secretary of Homeland Security of such finding; 
                        and
                            (ii) the Secretary shall--
                                    (I) if the facility is not owned by 
                                the Department of Homeland Security--
                                            (aa) transfer each detainee 
                                        from such facility, not later 
                                        than 30 days after receiving 
                                        such notification, to a 
                                        facility that complies with 
                                        such standards; and
                                            (bb) terminate the contract 
                                        with the owner of the facility; 
                                        or
                                    (II) if the facility is owned by 
                                the Department of Homeland Security--
                                            (aa) transfer each detainee 
                                        from such facility, not later 
                                        than 60 days after receiving 
                                        such notification, to a 
                                        facility that complies with 
                                        such standards; and
                                            (bb) suspend the use of 
                                        such facility until after the 
                                        Inspector General--

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

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

    (b) Investigations on Death in Custody.--
            (1) In general.--Not later than 30 days after the death of 
        an alien in the custody of the Department of Homeland Security, 
        the Secretary of Homeland Security shall conduct an 
        investigation into such death, which shall include a root cause 
        analysis that--
                    (A) identifies any changes to policies or practices 
                that could reduce the probability of such an event in 
                the future; and
                    (B) shall be performed in accordance with 
                professional medical standards for investigating 
                sentinel events in medical care facilities, including 
                the Sentinel Event Policy promulgated by The Joint 
                Commission in 1996.
            (2) Report.--Not later than 60 days after a death described 
        in paragraph (1), the Secretary shall post a report describing 
        the results of such investigation on a publicly accessible 
        website of the Department of Homeland Security.
    (c) Report to Congress.--The Secretary of Homeland Security shall 
submit an annual report to the Committee on the Judiciary of the Senate 
and the Committee on the Judiciary of the House of Representatives 
that--
            (1) describes the inspections and oversight of facilities 
        at which aliens in the custody of the Department of Homeland 
        Security are detained; and
            (2) includes information, with respect to the preceding 
        year, relating to--
                    (A) each detention facility that the Inspector 
                General determined was not in compliance with the 
                standards established under section 2 pursuant to an 
                investigation conducted under subsection (a)(1);
                    (B) any remedial actions that the Secretary has 
                taken, or plans to take, to comply with such standards; 
                and
                    (C) whether the remedial actions described in 
                subparagraph (B) brought the facility into compliance 
                with such standards.
    (d) Classification of Documents for Purposes of the Freedom of 
Information Act.--The reports required under subsections (a)(2) and 
(b)(2), and any contract between the Department of Homeland Security 
and a private or public entity that provides for the use of a facility 
not owned by the Department of Homeland Security to detain aliens in 
the custody of the Department of Homeland Security are considered 
records for purposes of section 552 of title 5, United States Code, and 
do not qualify for the exception under subsection (b)(4) of such 
section.
    (e) Facilities Matrix.--On the first day of each month, the 
Secretary of Homeland Security shall ensure that a publicly accessible 
website of the Department of Homeland Security contains information 
relating to each facility at which aliens in the custody of the 
Department of Homeland Security may be detained, including--
            (1) the name and location of each facility;
            (2) whether the facility houses adults, children, or both;
            (3) the number of beds available in each facility on the 
        first day of the month, disaggregated by gender;
            (4) whether the facility is used to detain aliens for 
        longer than 72 hours, or for longer than 7 days;
            (5) the average number of aliens detained in the facility 
        for the current year, and for the preceding month, 
        disaggregated by gender and classification as a child or as an 
        adult;
            (6) whether the facility is in compliance with the 
        standards established pursuant to section 2;
            (7) for each facility that is not owned by the Department 
        of Homeland Security, the nature of the contract providing for 
        the detention of aliens at such facility; and
            (8) the average number of days that an alien has been 
        detained at the facility during the preceding month.
    (f) Online Detainee Locator System.--The Secretary of Homeland 
Security shall ensure that the online detainee locator system 
maintained by the Department of Homeland Security, or any successor 
system, is updated not later than 12 hours after an alien is--
            (1) taken into custody or released from custody by the 
        Department of Homeland Security;
            (2) transferred to, or detained in, a detention facility; 
        or
            (3) removed from the United States.
    (g) Information Collected and Maintained for Aliens in the Custody 
of the Department of Homeland Security.--The Secretary of Homeland 
Security shall collect and maintain, for each alien in the custody of 
the Department of Homeland Security--
            (1) the gender and age of the alien;
            (2) the date on which the alien was detained;
            (3) whether the alien is considered a vulnerable person (as 
        defined in section 236(g) of the Immigration and Nationality 
        Act (8 U.S.C. 1226(g)) or a primary caregiver;
            (4) the provision of law under which the Secretary is 
        authorized to detain the alien;
            (5) the location where the alien is detained;
            (6) any transfer of the alien to another detention 
        facility, and the reason for such transfer;
            (7) the status and basis of any removal proceedings;
            (8) the initial custody determination made by U.S. 
        Immigration and Customs Enforcement, and any review of such 
        determination;
            (9) the date of the alien's release or removal, if 
        applicable, and the reason for such release or removal; and
            (10) whether the alien is subject to a final order of 
        removal.

SEC. 4. CAUSE OF ACTION.

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

SEC. 5. DEPARTMENT OF HOMELAND SECURITY DETENTION FACILITY CONSTRUCTION 
              AND MAINTENANCE.

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

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, and who is required to appear in Federal or State court 
(including family court) for another matter, is transported by an 
officer or employee of the Department of Homeland Security to such 
court proceeding.

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