S.3114 - Secure and Safe Detention and Asylum Act
A bill to provide safeguards against faulty asylum procedures, to improve conditions of detention for detainees, and for other purposes.
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Mr. LIEBERMAN (for himself, Mr. BROWNBACK, Mr. KENNEDY, and Mr. HAGEL) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink
SECTION 1. SHORT TITLE.
SEC. 2. DEFINITIONS.
(1) ASYLUM SEEKER- The term ‘asylum seeker’ means an applicant for asylum under section 208 of the Immigration and Nationality Act (
(2) CREDIBLE FEAR OF PERSECUTION- The term ‘credible fear of persecution’ has the meaning given that term in section 235(b)(1)(B)(v) of the Immigration and Nationality Act (
(5) DETENTION FACILITY- The term ‘detention facility’ means any Federal facility in which an asylum seeker, an alien detained pending the outcome of a removal proceeding, or an alien detained pending the execution of a final order of removal, is detained for more than 72 hours, or any other facility in which such detention services are provided to the Federal Government by contract, and does not include detention at any port of entry in the United States.CommentsClose CommentsPermalink
(6) REASONABLE FEAR OF PERSECUTION OR TORTURE- The term ‘reasonable fear of persecution or torture’ has the meaning described in section 208.31 of title 8, Code of Federal Regulations.CommentsClose CommentsPermalink
(9) VULNERABLE POPULATIONS- The term ‘vulnerable populations’ means classes of aliens subject to the Immigration and Nationality Act (
(C) Aliens whose deportation is being withheld under section 243(h) of the Immigration and Nationality Act (as in effect immediately before the effective date of section 307 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (
(D) Aliens granted or seeking protection under article 3 of the Convention Against Torture and other Cruel, Inhumane, or Degrading Treatment or Punishment, done at New York, December 10, 1994.CommentsClose CommentsPermalink
(E) Applicants for relief and benefits under the Immigration and Nationality Act pursuant to the amendments made by the Trafficking Victims Protection Act of 2000 (division A of
(F) Applicants for relief and benefits under the Immigration and Nationality Act pursuant to the amendments made by the Violence Against Women Act of 2000 (division B of
SEC. 3. RECORDING SECONDARY INSPECTION INTERVIEWS.
(a) In General- The Secretary shall establish quality assurance procedures to ensure the accuracy and verifiability of signed or sworn statements taken by employees of the Department exercising expedited removal authority under section 235(b) of the Immigration and Nationality Act (
(b) Factors Relating to Sworn Statements- Any sworn or signed written statement taken of an alien as part of the record of a proceeding under section 235(b)(1)(A) of the Immigration and Nationality Act (
(1) IN GENERAL- The recording of the interview shall also include the written statement, in its entirety, being read back to the alien in a language that the alien claims to understand, and the alien affirming the accuracy of the statement or making any corrections thereto.CommentsClose CommentsPermalink
(2) The Secretary or the Secretary’s designee may exempt any facility based on a determination by the Secretary or the Secretary’s designee that compliance with subsections (b) and (c) at that facility would impair operations or impose undue burdens or costs.CommentsClose CommentsPermalink
(e) Interpreters- The Secretary shall ensure that a professional fluent interpreter is used when the interviewing officer does not speak a language understood by the alien and there is no other Federal, State, or local government employee available who is able to interpret effectively, accurately, and impartially.CommentsClose CommentsPermalink
(f) Recordings in Immigration Proceedings- Recordings of interviews of aliens described in subsection (b) shall be included in the record of a proceeding and may be considered as evidence in any further proceedings involving the alien.CommentsClose CommentsPermalink
SEC. 4. PROCEDURES GOVERNING DETENTION DECISIONS.
‘(A) The decision shall be made in writing and shall be served upon the alien. A decision to continue detention without bond or parole shall specify in writing the reasons for that decision.CommentsClose CommentsPermalink
‘(B) The decision shall be served upon the alien within 72 hours of the alien’s detention or, in the case of an alien subject to section 235 or 241(a)(5) who must establish a credible fear of persecution or a reasonable fear of persecution or torture in order to proceed in immigration court, within 72 hours of a positive credible fear of persecution or reasonable fear of persecution or torture determination.CommentsClose CommentsPermalink
‘(3) CUSTODY REDETERMINATION- An alien subject to this section may at any time after being served with the Secretary’s decision under subsections (a) or (d) request a redetermination of that decision by an immigration judge. All decisions by the Secretary to detain an alien without bond or parole shall be subject to redetermination by an immigration judge within 2 weeks from the time the alien was served with the decision, except that the alien may waive the requirement that the redetermination occur within 2 weeks. The alien may request another redetermination upon a showing of a material change in circumstances since the last redetermination hearing.CommentsClose CommentsPermalink
‘(c) Exception for Mandatory Detention- Subsection (b) shall not apply to any alien who is subject to mandatory detention under section 235(b)(1)(B)(iii)(IV), 236(c), or 236A or who has a final order of removal and has no proceedings pending before the Executive Office for Immigration Review.’;CommentsClose CommentsPermalink
‘(g) Administrative Review- If an immigration judge’s custody decision has been stayed by the action of an officer or employee of the Department of Homeland Security, the stay shall expire in 30 days, unless the Board of Immigration Appeals before the expiration of the 30 days, and upon motion, enters an order continuing the stay.’; andCommentsClose CommentsPermalink
SEC. 5. LEGAL ORIENTATION PROGRAM.
(a) In General- The Attorney General, in consultation with the Secretary, shall ensure that all detained aliens in immigration and asylum proceedings receive legal orientation through a program administered and implemented by the Executive Office for Immigration Review of the Department of Justice.CommentsClose CommentsPermalink
(b) Content of Program- The legal orientation program developed pursuant to this section shall be based on the Legal Orientation Program carried out by the Executive Office for Immigration Review on the date of the enactment of this Act.CommentsClose CommentsPermalink
(c) Expansion of Legal Assistance- The Secretary shall ensure the expansion through the United States Citizenship and Immigration Services of public-private partnerships that facilitate pro bono counseling and legal assistance for asylum seekers awaiting a credible fear of persecution interview, as a continuation of existing programs, such as the pilot program developed in Arlington, Virginia by the United States Citizenship and Immigration Services.CommentsClose CommentsPermalink
SEC. 6. CONDITIONS OF DETENTION.
(a) In General- The Secretary shall ensure that standards governing conditions and procedures at detention facilities are fully implemented and enforced, and that all detention facilities comply with the standards.CommentsClose CommentsPermalink
(b) Procedures and Standards- The Secretary shall promulgate new standards, or modify existing detention standards, to improve conditions in detention facilities. The improvements shall address at a minimum the following policies and procedures:CommentsClose CommentsPermalink
(1) FAIR AND HUMANE TREATMENT- Procedures to ensure that detainees are not subject to degrading or inhumane treatment such as physical abuse, sexual abuse or harassment, or arbitrary punishment.CommentsClose CommentsPermalink
(2) LIMITATIONS ON SOLITARY CONFINEMENT- Procedures limiting the use of solitary confinement, shackling, and strip searches of detainees to situations where the use of such techniques is necessitated by security interests or other extraordinary circumstances.CommentsClose CommentsPermalink
(4) ACCESS TO TELEPHONES- Procedures permitting detainees sufficient access to telephones, and the ability to contact, free of charge, legal representatives, the immigration courts, the Board of Immigration Appeals, and the Federal courts through confidential toll-free numbers.CommentsClose CommentsPermalink
(5) LOCATION OF FACILITIES- Location of detention facilities, to the extent practicable, near sources of free or low-cost legal representation with expertise in asylum or immigration law.CommentsClose CommentsPermalink
(7) TRANSLATION CAPABILITIES- The employment of detention facility staff that, to the extent practicable, are qualified in the languages represented in the population of detainees at a detention facility, and the provision of alternative translation services when necessary.CommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary shall ensure that prompt and adequate medical care is provided at no cost to detainees, including dental care, eye care, mental health care, and where appropriate, individual and group counseling, medical dietary needs, and other medically necessary specialized care.CommentsClose CommentsPermalink
(2) MEDICAL FACILITIES- The Secretary shall ensure that medical facilities in all detention facilities maintain current accreditation by the National Commission on Correctional Health Care (NCCHC).CommentsClose CommentsPermalink
(3) MEDICAL RECORDS- The Secretary shall ensure that complete medical records are maintained for every detainee, and that the records are made available upon request to the detainee, his legal representative, or other authorized individuals.CommentsClose CommentsPermalink
(1) recognize the unique needs of asylum seekers, victims of torture and trafficking, families with children, detainees who do not speak English, detainees with special religious, cultural or spiritual considerations, and other vulnerable populations; andCommentsClose CommentsPermalink
(1) IN GENERAL- The Secretary shall ensure that personnel in detention facilities are given specialized training to better understand and work with the population of detainees held at the facilities where such personnel work. The training should address the unique needs of--CommentsClose CommentsPermalink
(2) SPECIALIZED TRAINING- The training required by this subsection shall be designed to better enable personnel to work with detainees from different countries, and detainees who cannot speak English. The training shall emphasize that many detainees have no criminal records and are being held for civil violations.CommentsClose CommentsPermalink
SEC. 7. OFFICE OF DETENTION OVERSIGHT.
(C) report to the Secretary and to the Assistant Secretary of Homeland Security for U.S. Immigration and Customs Enforcement all findings of a detention facility’s noncompliance with detention standards.CommentsClose CommentsPermalink
(A) initiate investigations, as appropriate, into allegations of systemic problems at detention facilities, incidents that constitute serious violations of detention standards, or other matters related to mistreatment of detainees;CommentsClose CommentsPermalink
(A) IN GENERAL- The Administrator of the Office shall submit to the Secretary, the Committee on the Judiciary and the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committee on the Judiciary and the Committee on Homeland Security of the House of Representatives an annual report on the Administrator’s findings on detention conditions and the results of the investigations carried out by the Administrator.CommentsClose CommentsPermalink
(i) a description of the actions to remedy findings of noncompliance or other problems that are taken by the Secretary or the Assistant Secretary of Homeland Security for U.S. Immigration and Customs Enforcement, and each detention facility found to be in noncompliance; andCommentsClose CommentsPermalink
(4) REVIEW OF COMPLAINTS BY DETAINEES- The Administrator of the Office shall establish procedures to receive and review complaints of violations of the detention standards promulgated by the Secretary. The procedures shall protect the anonymity of the claimant, including detainees, employees, or others, from retaliation.CommentsClose CommentsPermalink
(1) all deaths of detainees and other aliens in the Department’s custody, or other deaths related to operations or actions of employees of U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection, are reported to--CommentsClose CommentsPermalink
(E) relevant State and local government officials, including the coroner and the local law enforcement agency with jurisdiction in the location where the death occurred;CommentsClose CommentsPermalink
SEC. 8. SECURE ALTERNATIVES PROGRAM.
(a) Establishment of Program- The Secretary shall establish a secure alternatives program under which an alien who has been detained may be released under enhanced supervision to prevent the alien from absconding and to ensure that the alien makes appearances related to such detention.CommentsClose CommentsPermalink
(1) NATIONWIDE IMPLEMENTATION- The Secretary shall facilitate the development of the secure alternatives program on a nationwide basis, as a continuation of existing pilot programs such as the Intensive Supervision Appearance Program developed by the Department.CommentsClose CommentsPermalink
(2) UTILIZATION OF ALTERNATIVES- The secure alternatives program shall utilize a continuum of alternatives based on the alien’s need for supervision, including placement of the alien with an individual or organizational sponsor, or in a supervised group home.CommentsClose CommentsPermalink
(A) IN GENERAL- Aliens who would otherwise be subject to detention based on a consideration of the release criteria in section 236(b)(2) of the Immigration and Nationality Act, or who are released pursuant to section 236(e)(2) of such Act, shall be considered for the secure alternatives program.CommentsClose CommentsPermalink
SEC. 9. LESS RESTRICTIVE DETENTION FACILITIES.
(1) consider the design, operation, and conditions of existing secure but less restrictive detention facilities, such as the Department’s detention facilities in Broward County, Florida, and Berks County, Pennsylvania;CommentsClose CommentsPermalink
(c) Facilities for Families With Children- For situations where release or secure alternatives programs are not an option, the Secretary shall, to the extent practicable, ensure that special detention facilities are specifically designed to house parents with their minor children, including ensuring that--CommentsClose CommentsPermalink
(d) Placement in Nonpunitive Facilities- Among the factors to be considered with respect to placing a detainee in a less restrictive facility is whether the detainee is--CommentsClose CommentsPermalink
(e) Procedures and Standards- Where necessary, the Secretary shall promulgate new standards, or modify existing detention standards, to promote the development of less restrictive detention facilities.CommentsClose CommentsPermalink