[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3645 Introduced in Senate (IS)]

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116th CONGRESS
  2d Session
                                S. 3645

To require the release of most aliens detained by U.S. Immigration and 
     Customs Enforcement during a national emergency related to a 
                         communicable disease.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 7, 2020

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

_______________________________________________________________________

                                 A BILL


 
To require the release of most aliens detained by U.S. Immigration and 
     Customs Enforcement during a national emergency related to a 
                         communicable disease.

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

SECTION 1. SHORT TITLES.

    This Act may be cited as the ``Federal Immigrant Release for Safety 
and security Together Act'' or the ``FIRST Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Covered health condition.--The term ``covered health 
        condition'', with respect to an individual, means the 
        individual--
                    (A) is pregnant;
                    (B) has chronic lung disease or asthma;
                    (C) has congestive heart failure, coronary artery 
                disease, or hypertension;
                    (D) has diabetes;
                    (E) has epilepsy;
                    (F) has a neurological condition that weakens the 
                ability to cough;
                    (G) has human immunodeficiency virus (HIV);
                    (H) has chronic liver or kidney disease (including 
                hepatitis and dialysis patients);
                    (I) has blood disorders (including sickle cell 
                anemia);
                    (J) has inherited metabolic disorders;
                    (K) had a stroke;
                    (L) has a developmental delay;
                    (M) has cancer or has had cancer during the last 12 
                months;
                    (N) has a weakened immune system; or
                    (O) has any other condition identified by the 
                Centers for Disease Control and Prevention to increase 
                the risk of serious illness from a communicable 
                disease.
            (2) Covered individual.--The term ``covered individual'' 
        means an individual who--
                    (A) is 50 years of age or older;
                    (B) is 21 years of age or younger; or
                    (C) has a covered health condition.
            (3) Enforcement action.--The term ``enforcement action'' 
        means an apprehension or arrest for the purpose of immigration 
        enforcement.
            (4) National emergency related to a communicable disease.--
        The term ``national emergency related to a communicable 
        disease'' means--
                    (A) an emergency involving Federal primary 
                responsibility determined to exist by the President 
                under section 501(b) of the Robert T. Stafford Disaster 
                Relief and Emergency Assistance Act (42 U.S.C. 5191(b)) 
                with respect to a communicable disease; or
                    (B) a national emergency declared by the President 
                under the National Emergency Act (50 U.S.C. 1610 et 
                seq.) with respect to a communicable disease.
            (5) Sensitive location.--The term ``sensitive location'' 
        means all physical space located within 1,000 feet of--
                    (A) a medical treatment or health care facility, 
                including a hospital, an office of a health care 
                practitioner, an accredited health clinic, an alcohol 
                or drug treatment center, an emergent or urgent care 
                facility, and a community health center;
                    (B) a location at which emergency service providers 
                distribute food or provide shelter;
                    (C) an organization that provides--
                            (i) disaster or emergency social services 
                        and assistance;
                            (ii) services for individuals experiencing 
                        homelessness, including food banks and 
                        shelters; or
                            (iii) assistance for children, pregnant 
                        women, victims of crime or abuse, or 
                        individuals with significant mental or physical 
                        disabilities;
                    (D) a public assistance office, including any 
                Federal, State, or municipal location at which 
                individuals may apply for or receive unemployment 
                compensation or report violations of labor and 
                employment laws;
                    (E) a Federal, State, or local courthouse, 
                including the office of the legal counsel or 
                representative of an individual;
                    (F) a domestic violence shelter, rape crisis 
                center, supervised visitation center, family justice 
                center, or victim services provider;
                    (G) an office of the Social Security 
                Administration;
                    (H) a childcare facility or a school, including a 
                preschool, primary school, secondary school, post-
                secondary school up to and including a college or 
                university, and any other institution of learning such 
                as a vocational or trade school;
                    (I) a church, synagogue, mosque or any other 
                institution of worship, such as a building rented for 
                the purpose of a religious service;
                    (J) the site of a funeral, wedding, or any other 
                public religious ceremony;
                    (K) in the case of a jurisdiction in which a 
                shelter-in-place order is in effect during a 
                coronavirus public health emergency, any business 
                location considered to provide an essential service, 
                such as a pharmacy or a grocery store; and
                    (L) any other location specified by the Secretary 
                of Homeland Security.

SEC. 3. RELEASE OF CERTAIN COVERED INDIVIDUALS.

    (a) Release.--During the period beginning on the date on which a 
national emergency related to a communicable disease is declared, the 
Secretary of Homeland Security shall release from detention all covered 
individuals who are in the custody of U.S. Immigration and Customs 
Enforcement without requiring any covered individual to post a bond.
    (b) Exception.--In carrying out subsection (a), the Secretary--
            (1) may not release any individual determined, by clear and 
        convincing evidence, to be likely to pose a specific and 
        substantial risk of causing bodily injury or using violent 
        force against the person of another;
            (2) shall place, in the A-file of each individual described 
        in paragraph (1), documentation of the determination described 
        in such paragraph, including the evidence used to make such 
        determination;
            (3) not later than 180 days after the date on which the 
        national emergency relating to a communicable disease expires, 
        shall submit a report to Congress that documents--
                    (A) the demographic data (including country of 
                origin, race, gender, age, the status and basis of 
                removal proceedings, and criminal history) of the 
                individuals denied release pursuant to paragraph (1); 
                and
                    (B) the justification for such denials; and
            (4) may not use the results of any determination under 
        paragraph (1) as evidence in any underlying immigration 
        proceeding.
    (c) Notice.--The Secretary shall provide notice to nonprofit 
organizations providing services to immigrants in the communities 
surrounding a detention facility if more than 25 individuals are 
released from such facility in a 24-hour period.

SEC. 4. REVIEW OF IMMIGRATION FILES.

    (a) Mandatory Review.--
            (1) In general.--Notwithstanding any other provision of law 
        that mandates detention, the Secretary of Homeland Security 
        shall determine whether each individual in detention who is not 
        a covered individual will remain in detention for the duration 
        of a national emergency.
            (2) Process.--Not later than 7 days after the declaration 
        of a national emergency related to a communicable disease, the 
        Secretary shall establish a process for reviewing the 
        immigration files of all individuals in detention who are not 
        covered individuals, and apply a presumption that aliens should 
        be released based upon the need to significantly reduce the 
        detention population due to the risk of spread of a 
        communicable disease in congregate setting.
    (b) Exceptions.--
            (1) In general.--In carrying out subsection (a), the 
        Secretary--
                    (A) may only rebut the presumption of release based 
                on a credible and individualized determination by clear 
                and convincing evidence that--
                            (i) the use of alternatives to detention, 
                        including release on recognizance or parole, 
                        will not reasonably ensure the appearance of 
                        the individual at removal proceedings; or
                            (ii) the individual is likely to pose a 
                        specific and substantial risk of causing bodily 
                        injury or using violent force against the 
                        person of another;
                    (B) may not release an individual with a final 
                order of removal entered against him or her, after all 
                appeals have been exhausted if the removal of such 
                alien is reasonably foreseeable; and
                    (C) may not use the results of any determination 
                under this section as evidence in any underlying 
                immigration proceeding.
            (2) Pending criminal charge or past convictions.--For 
        purposes of paragraph (1)(A), the Secretary may not justify the 
        continued detention of an individual solely based on the fact 
        that the individual--
                    (A) has a criminal charge pending against him or 
                her; or
                    (B) was convicted of a crime more than 5 years 
                previously.
            (3) Reasonably foreseeable defined.--
                    (A) In general.--For purposes of paragraph (1)(C), 
                the removal of an alien is reasonably foreseeable if 
                the Government--
                            (i) has already obtained travel documents 
                        for the alien; or
                            (ii) can demonstrate, by clear and 
                        convincing evidence, that such travel documents 
                        will likely be obtained within 10 days.
                    (B) Exception.--For purposes of paragraph (1)(C), 
                the removal of an alien is not reasonably foreseeable 
                if such removal is not likely during the period of the 
                national emergency related to a communicable disease 
                due to--
                            (i) the unavailability of transportation 
                        options to the country of removal; or
                            (ii) the refusal of the country of removal 
                        to accept the repatriation of the alien during 
                        such period.
    (c) Report.--Not later than 180 days after the expiration of the 
national emergency related to a communicable disease, the Secretary of 
Homeland Security shall submit a report to Congress that documents--
            (1) the demographic data (including country of origin, 
        race, gender, age, the status and basis of removal proceedings, 
        and criminal history) of the individuals denied release 
        pursuant to subsection (a); and
            (2) the justification for such denials.

SEC. 5. LIMITATION ON INTERIOR ENFORCEMENT.

    (a) In General.--Except as provided in subsection (c), beginning on 
the date on which a national emergency related to a communicable 
disease is declared and ending on the date that such national emergency 
expires, U.S. Immigration and Customs Enforcement shall take measures 
to prevent the spread of the communicable viral disease by suspending--
            (1) the requirement that individuals under supervision or 
        enrolled in Enforcement and Removal Operations' Intensive 
        Supervision Appearance Program report in-person;
            (2) enforcement in sensitive locations without a valid 
        judicial warrant; and
            (3) enforcement actions.
    (b) Suspension of Collateral Arrests.--Except as provided in 
subsection (c), if an individual, who is only in violation of civil 
immigration law, is encountered by U.S. Immigration and Customs 
Enforcement, the individual may be issued charging documents, but may 
not be taken into custody or placed in detention.
    (c) Exception.--The suspensions under subsections (a)(1), (a)(3), 
and (b) shall not apply to individuals who are determined, by clear and 
convincing evidence, to be likely to pose a specific and substantial 
risk of causing bodily injury or using violent force against another 
person.

SEC. 6. ACCESS TO TELEPHONIC AND VIDEO COMMUNICATION AND HYGIENE 
              PRODUCTS.

    During the period beginning on the date on which a national 
emergency related to a communicable disease is declared and ending on 
the date that is 60 days after the expiration of such national 
emergency, the Secretary shall ensure that--
            (1) all persons in the custody of U.S. Immigration and 
        Customs Enforcement--
                    (A) have access to telephonic or video 
                communication at no cost to the detained individual;
                    (B) have access to free, unmonitored phone calls, 
                at any time, to contact attorneys or legal service 
                providers in a sufficiently private space to protect 
                confidentiality;
                    (C) are permitted to receive legal correspondence 
                by fax or email rather than postal mail; and
                    (D) are provided sufficient soap, hand sanitizer, 
                and other hygiene products; and
            (2) nonprofit organizations providing legal orientation 
        programming or know-your-rights programming to immigrants are 
        permitted broad and flexible access--
                    (A) to provide group presentations by video-
                conference; and
                    (B) to schedule and receive free calls or televideo 
                conferences from individuals in custody for individual 
                orientations.

SEC. 7. EXPIRATION OF NATIONAL EMERGENCY RELATED TO A COMMUNICABLE 
              DISEASE.

    (a) In General.--Any individual who has been granted release from 
immigration detention under this Act may not be redetained solely as a 
result of the expiration of the national emergency related to a 
communicable disease.
    (b) Grounds for Redetention.--Upon the expiration of the national 
emergency related to a communicable disease, the Secretary of Homeland 
Security may not redetain a covered individual who was released from 
detention pursuant to section 3 unless the Secretary, in consultation 
with the Director of U.S. Immigration and Customs Enforcement, 
determines, by clear and convincing evidence, including credible and 
individualized information, that--
            (1) the use of alternatives to detention, including release 
        on recognizance or parole, will not reasonably ensure the 
        appearance of the covered individual at removal proceedings; or
            (2) the covered individual is a threat to another person or 
        the community.
    (c) Pending Criminal Charge or Past Convictions.--For purposes of 
subsection (b), the Secretary may not justify the redetention of a 
covered individual solely based on the fact that the individual--
            (1) has a criminal charge pending against him or her; or
            (2) was convicted of a crime more than 5 years previously.
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