[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2415 Introduced in House (IH)]
<DOC>
116th CONGRESS
1st Session
H. R. 2415
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
April 30, 2019
Ms. Jayapal (for herself and Mr. Smith of Washington) 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 2019''.
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 meaningful 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
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
constitutional 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) Notification of Death in Custody.--Not later than 24 hours
after the death of an alien in the custody of the Department of
Homeland Security, the Secretary of Homeland Security shall notify 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 of the death of such alien.
(c) 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, practices, training
curricula, staffing, or potential system-wide errors 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 must include appropriately qualified personnel,
which, at a minimum, will consist of a medical professional qualified
in any field germane to the death, and 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.
(d) Definition.--The term ``death of an alien in the custody of the
Department of Homeland Security'' means any death of an alien occurring
while the alien is under the supervision of the Department of Homeland
Security, regardless of the location of the death, if the death may
have resulted from a health problem, which began, existed during, or
was exacerbated during the detention of the alien.
(e) 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.
(f) 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.
(g) 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 section 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, median, 25th quartile, and 50th quartile
number of days that an alien has been detained at the facility
during the preceding month.
(h) 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.
(i) 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) The country of origin of the alien.
(4) 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.
(5) The provision of law under with the Secretary is
authorized to detain the alien.
(6) The location where the alien is detained.
(7) Any transfer of the alien to another detention
facility, and the reason for such transfer.
(8) The status and basis of any removal proceedings.
(9) The initial custody determination made by Immigration
and Customs Enforcement, and any review of that determination.
(10) If applicable, the date of the alien's release or
removal, and the reason for such release or removal.
(11) Whether the alien is subject to a final order of
removal.
(12) Whether the alien was apprehended as part of a family
unit.
(13) Whether the alien was separated from a family unit.
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. The Secretary will make this information publicly available
on the website of the Department of Homeland Security.
(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 or agreement 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 subsections (b), (c), (d), and (e);
(3) by adding at the end the following:
``(b) 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, and set bond
at no amount greater than necessary to ensure the alien's appearance
for removal proceedings.
``(c) Custody Determination.--
``(1) Initial determination.--Not later than 48 hours after
taking an alien into custody under the authority provided by
this section or section 235 of this Act, or those subject to a
reinstated order of removal pursuant to section 241(a)(5) who
have 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, 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 Secretary of Homeland Security 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 ensure 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 ensure the appearance of the alien as required and
the safety of any other person and the community, which may
include release on recognizance, secured or unsecured release
on bond, or participation in a program described in subsection
(f). 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 Secretary of Homeland Security demonstrates, in
addition to the requirements under paragraph (3), that it is
unreasonable or not practicable to place the individual in a
community-based supervision program.
``(6) Definitions.--In this subsection:
``(A) Material witness.--The term `material
witness' means an individual who presents a declaration
to an attorney investigating, prosecuting, or defending
the workplace claim or from the presiding officer
overseeing the workplace claim attesting that, to the
best of the declarant's knowledge and belief,
reasonable cause exists to believe that the testimony
of the individual will be relevant to the outcome of
the workplace claim.
``(B) Primary caregiver.--The term `primary
caregiver' means a person who is established to be a
caregiver, parent, or close relative caring for or
traveling with a child.
``(C) Vulnerable person.--The term `vulnerable
person' means an individual who--
``(i) is under 21 years of age or over 60
years of age;
``(ii) is pregnant;
``(iii) identifies as lesbian, gay,
bisexual, transgender, or intersex;
``(iv) is a victim or witness of a crime;
``(v) has filed a nonfrivolous civil rights
claim in Federal or State court;
``(vi) has filed, or is a material witness
to, a bonafide workplace claim;
``(vii) has a serious mental or physical
illness or disability;
``(viii) 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 torture;
``(ix) has limited English language
proficiency and is not provided access to
appropriate and meaningful language services in
a timely fashion; or
``(x) 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.
``(D) Workplace claim.--The term `workplace claim'
means any written or oral claim, charge, complaint, or
grievance filed with, communicated to, or submitted to
the employer, a Federal, State, or local agency or
court, or an employee representative related to the
violation of applicable Federal, State, and local labor
laws, including laws concerning wages and hours, labor
relations, family and medical leave, occupational
health and safety, civil rights, or nondiscrimination.
``(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 hearing.
``(d) 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.
``(e) Prohibition on Detention of Children.--Notwithstanding any
other provision of this Act, the Secretary of Homeland Security is
prohibited from detaining anyone under the age of 18 in a facility
operated or contracted by U.S. Immigration and Customs Enforcement.
``(f) 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
ensure the appearance of the alien as required and the safety
of any other person and the community.
``(3) Prohibition on fees for monitoring devices.--In a
case in which an alien is required to wear an ankle monitor or
other homing device as an alternative to detention, the alien
may not be charged any fee associated with such monitor or
device that exceeds the cost of maintaining and operating such
monitor or device.''; and
(4) 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 Secretary of Homeland Security''.
(c) Mandatory Detention Repealed.--
(1) In general.--The Immigration and Nationality Act (8
U.S.C. 1101 et seq.) is amended--
(A) in section 235(b)--
(i) in paragraph (1)(B)--
(I) in clause (ii), by striking
``detained'' and inserting
``referred''; and
(II) in clause (iii), by striking
subclause (IV); and
(ii) in paragraph (2)(A), by striking
``detained'' and inserting ``referred'';
(B) by striking section 236A;
(C) in section 238(a)(2), by striking ``pursuant to
section 236(c),''; and
(D) in section 506(a)(2)--
(i) by amending the heading to read as
follows: ``Release hearing for aliens
detained''; and
(ii) in subparagraph (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.
(2) Conforming amendments.--Section 241(c)(3)(A)(ii) of the
Immigration and Nationality Act (8 U.S.C. 1231(c)(3)(A)(ii)) is
amended--
(A) in subclause (I), by striking the comma at the
end and inserting ``; or'';
(B) in subclause (II), by striking ``, or'' and
inserting a period; and
(C) by striking subclause (III).
(d) Aliens Ordered Removed.--
(1) In general.--Section 241(a) of the Immigration and
Nationality Act (8 U.S.C. 1231(a)) is amended--
(A) in paragraph (1), by striking ``90 days'' each
place it appears and inserting ``60 days'';
(B) 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 or that the alien
does not pose a risk to the safety of any individual or
to the community.'';
(C) in paragraph (3)--
(i) in the heading, by striking ``90-day''
and inserting ``60-day''; and
(ii) 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'';
(D) by amending paragraph (6) to read as follows:
``(6) Subsequent custody redetermination hearings.--
``(A) In general.--The Secretary of Homeland
Security 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
Secretary of Homeland Security 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 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 Secretary of Homeland
Security may seek subsequent redetermination hearings
under this paragraph in order to continue detaining an
alien beyond each such 60-day period.''; and
(E) by striking paragraph (7).
(2) Technical and conforming amendments.--The Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended--
(A) in section 238 (8 U.S.C. 1228)--
(i) in subsection (a)(1), in the first
sentence--
(I) by striking ``section
241(a)(2)(A)(iii)'' and inserting
``section 237(a)(2)(A)(iii)'';
(II) by striking ``section
241(a)(2)(A)(ii)'' and inserting
``section 237(a)(2)(A)(ii)''; and
(III) by striking ``section
241(a)(2)(A)(i)'' and inserting
``237(a)(2)(A)(i)''; and
(ii) in the second subsection (c)--
(I) in paragraph (2)(B), by
striking ``section 241(a)(2)(A)'' and
inserting ``section 237(a)(2)(A)''; and
(II) in paragraph (4), by striking
``section 241(a)'' and inserting
``section 237(a)'';
(B) in section 276(b)(4) (8 U.S.C. 1326(b)(4)), by
striking ``section 241(a)(4)(B)'' and inserting
``section 237(a)(4)(B)''; and
(C) in section 501(1) (8 U.S.C. 1531(1)), by
striking ``section 241(a)(4)(B)'' and inserting
``section 237(a)(4)(B)''.
SEC. 8. SENSE OF CONGRESS.
It is the sense of Congress that detention, even for a short period
of time, inflicts severe, irreparable harm on children and should be
avoided.
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