H.R. 4620 — Introduced in House

I 113th CONGRESS 2d Session H. R. 4620 IN THE HOUSE OF REPRESENTATIVES May 8, 2014 Mr. Smith of Washington (for himself, Ms. DelBene, Mr. Deutch, Mr. Foster, Mr. Larsen of Washington, Mr. Polis, Mr. Quigley, and Mr. Vela) 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 ensure the humane treatment of persons detained pursuant to the Immigration and Nationality Act. 1. Short title This Act may be cited as the Accountability in Immigration Detention Act of 2014. 2. Minimum detention center standards (a) Definitions In this section: (1) Detention facility The term detention facility means a Federal, State, or local government facility, or a privately owned and operated facility, that is used, in whole or in part, to hold individuals under the authority of the Director of U.S. Immigration and Customs Enforcement or the Commissioner of U.S. Customs and Border Protection, including facilities that hold such individuals under a contract or agreement with the Director or the Commissioner. (2) Secretary The term Secretary means the Secretary of Homeland Security. (3) Detainees The term detainee means an individual who is subject to detention under the Immigration and Nationality Act. (b) Detention requirements The Secretary shall ensure that all persons detained pursuant to the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) are treated humanely and shall ensure that all detention facilities comply with the following minimum requirements: (1) Fair and humane treatment Detainees shall not be subject to degrading or inhumane treatment, such as physical abuse, sexual abuse or harassment, psychological abuse, retaliatory actions, arbitrary punishment, or discrimination based on nationality, sexual orientation, race, gender identity, or religion. (2) Detention facility standards Detention facilities shall comply fully with the national standards for the detection, prevention, reduction, and punishment of prison rape pursuant to section 8 of the Prison Rape Elimination Act of 2003 (42 U.S.C. 15607). (3) Limitations on solitary confinement Detainees shall not be subject to solitary confinement, shackling, or strip searches, except to the extent that such techniques are necessary to ensure the security of other detainees, staff, or the public and only if less coercive measures will not ensure the security of other detainees, staff, and the public. Decisions to place detainees in solitary confinement shall be reported to the Field Officer Director at a minimum for any placement lasting at least 3 days continuously or 3 days out of a 7 day period, and reviewed on a weekly basis thereafter. (4) Investigation of grievances Detainees shall have the right to prompt, effective, and impartial investigations of grievances related to conditions of detention. No detainee shall be retaliated against for filing a complaint or grievance or for organizing peaceful demonstrations. (5) Access to telephones Detainees shall have sufficient access to telephones, and the ability to contact, free of charge, legal representatives, foreign consulates, the immigration courts, the Board of Immigration Appeals, Family Courts, local criminal courts, the UN Refugee Agency, and the Federal courts. The rates charged for telephone calls shall be reasonable and shall not significantly impair detainees’ access to telephones. (6) Location of facilities All detention facilities whose date of first use by the Department of Homeland Security occurs after the date of the enactment of this Act shall be located and within 50 miles of a community in which there is a demonstrated capacity to provide free or low-cost legal representation by— (A) nonprofit legal aid organizations; or (B) pro bono attorneys with expertise in asylum or immigration law. (7) Procedures governing transfer of detainess Procedures governing the transfer of a detainee shall take into account— (A) the detainee’s access to legal representatives; (B) the proximity of the facility to the venue of the asylum or removal proceeding; (C) the detainee’s proximity to scheduled bond hearings; and (D) the detainee’s proximity to family members. Prior to transfer, the Secretary shall give advance notice to the detainee, the attorney of the detainee, and the family of the detainee. (8) Interpretation and translation capabilities Detention facilities shall employ staff, including medical personnel, who, to the extent practicable, are qualified in the languages represented in the population of detainees at a detention facility, and alternative interpreter and translation services shall be made available. Detention facilities shall not rely on detainees to translate or interpret for one another. (9) Recreational programs and activities All detainees, including detainees in administrative or disciplinary segregation, shall be afforded daily access to indoor and outdoor recreational programs and activities. All detainees shall have access to religious services and reading materials necessary to their religious practice. (10) Vulnerable populations Procedures and conditions of detention shall accommodate the unique needs of asylum seekers, victims of torture and trafficking, families with children, detainees with special religious, cultural, or spiritual considerations, pregnant women, nursing mothers, individuals older than 65 years of age, and other vulnerable populations. (11) Quality of medical care (A) Right to medical care The Secretary shall ensure that prompt and adequate emergency, primary, specialty, and hospital medical care is provided at no cost to detainees, including dental care, eye care, mental health care, individual and group counseling, and services with respect to medical dietary needs. (B) Procedures The Secretary shall ensure that procedures for providing medical care to detainees include comprehensive intake screening, effective continuity of care, prompt responses to requests for medical care or treatment, and accurate and timely distribution of prescribed medication. (C) Medical facilities The Secretary shall ensure that medical facilities in all detention facilities maintain current accreditation by the National Commission on Correctional Health Care. (D) 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, the detainee's legal representative, or other authorized individuals. (12) Voluntary work Detainees may have opportunities to work and earn money while in detention, subject to the number of work opportunities available. Detainees shall be able to volunteer for work assignments but otherwise shall not be required to work, subject to the following: (A) Available work opportunities shall be provided in order to reduce idleness and improve morale, but shall not be provided for the economic benefit of the detention center. Detainees shall not be the main source of labor for the essential functions required to operate detention facilities. (B) All work opportunities shall comply with Occupational Safety and Health Administration protections. (C) The Rate of Pay for voluntary work shall be reviewed by the Secretary on an annual basis. (D) The Secretary shall provide and make publically available a report on the rate of pay, job descriptions, and full time equivalents for employed detainees compared to full time staff in each detention facility to the Committee on the Judiciary of the House, the Committee on the Judiciary of the Senate, Committee on Homeland Security of the House, and Committee on Homeland Security & Governmental Affairs of the Senate. (13) Legal orientation programs The Attorney General, in consultation with the Secretary, shall ensure that all detained aliens in immigration and asylum proceedings receive legal orientation through the Legal Orientation Program administered and implemented by the Executive Office for Immigration Review of the Department of Justice. (14) Legal access All detainees shall have access to a properly equipped law library, legal materials and equipment to facilitate the preparation of documents. All detainees shall have meaningful access to law libraries, legal materials, and equipment. Special consideration shall be given to detainees facing deadlines or time constraints. (c) Rulemaking (1) In general The Secretary shall prescribe regulations, using the procedures for negotiated rulemakings under subchapter III of chapter 5 of title 5, United States Code, to establish standards to ensure detainees held under the authority of the Director of U.S. Immigration and Customs Enforcement or the Commissioner of U.S. Customs and Border Protection are treated humanely and to ensure compliance with the minimum requirements set forth in subsection (b). (2) Representation of negotiated rulemaking committee Any negotiated rulemaking committee established by the Secretary pursuant to paragraph (1) shall include representatives and experts from— (A) relevant agencies of the Department; (B) the Office of Refugee Resettlement at the Department of Health and Human Services; (C) representatives of State and local governments; (D) the United States Commission on International Religious Freedom; (E) nongovernmental organizations with expertise working on behalf of aliens in detention facilities, including organizations that emphasize protections for vulnerable populations; (F) nongovernmental organizations with expertise advocating for asylum seekers; (G) labor organizations that represent employees who work at detention facilities; (H) accrediting bodies for medical care in settings comparable to detention facilities, such as the National Commission on Correctional Health Care, or other experts in the field of providing quality medical care in such settings; and (I) a person appointed by— (i) the majority leader of the House of Representatives; (ii) the minority leader of the House of Representatives; (iii) the majority leader of the Senate; and (iv) the minority leader of the Senate. (3) Time requirement The procedures for the negotiated rulemaking referred to in paragraph (1) shall be conducted in a timely manner to ensure that— (A) any recommendations with respect to proposed regulations are provided to the Secretary not later than 1 year after the date of enactment of this Act; and (B) a final rule is promulgated not later than 1 year and 6 months after the date of enactment of this Act. 3. Alternatives to detention (a) In general The Secretary shall establish nationwide alternatives to detention programs that incorporate case management services in each field office of the Department to ensure appearances at immigration proceedings and public safety. (b) Contract authority The Secretary may contract with nongovernmental community-based organizations to conduct screening of detainees and operate community-based supervision programs. The Secretary shall regularly assess the demand for alternative to detention programs and make available sufficient alternative to detention slots regardless of proximity to available detention beds. Alternative programs shall offer a continuum of supervision mechanisms and options, including community support, depending on an assessment of each individual’s circumstances. The Secretary may contract with nongovernmental organizations to implement secure alternatives that maintain custody over the alien. (1) Information regarding the amount of slots available in each area shall be made public. (c) Individualized determinations In determining whether to use alternatives to detention programs, the Secretary shall make an individualized determination, and for each individual placed in an alternatives to detention program, shall review the level of supervision on a monthly basis. Alternatives to detention programs shall not be used when release on bond or recognizance is determined to be a sufficient measure to ensure appearances at immigration proceedings and public safety. (d) Custody The Secretary may use alternatives to detention programs to maintain custody over any alien detained under the Immigration and Nationality Act, except for aliens detained under section 236A of such Act (8 U.S.C. 1226a). If an individual is not eligible for release from custody or detention, the Secretary shall consider the alien for placement in alternative programs that maintain custody over the alien, including the use of electronic ankle devices. (e) Vulnerable Populations (Access to Alternatives) In determining whether to place a detainee in an alternatives to detention program, the Secretary shall consider whether the detainee is a member of a vulnerable population (as identified in section 2(b)(10)). Notwithstanding section 236 of the Immigration and Nationality Act, a member of a vulnerable population whose needs cannot be adequately met by a detention facility may not be held in a detention facility except in the case of what the Secretary determines to be exceptional circumstances. 4. Detention capacity (a) In general Notwithstanding any other provision of law, the number of detention beds maintained shall be determined by the Secretary of Homeland Security and shall be based solely on detention needs. (b) Sense of Congress It is the sense of Congress that appropriations Acts shall not mandate maintenance of a minimum number of detention beds. 5. Oversight of detention facilities (a) Definitions In this section: (1) Applicable standards The term applicable standards means the most recent version of detention standards and detention-related policies issued by the Secretary or the Director of U.S. Immigration and Customs Enforcement, or the Commissioner of U.S. Customs and Border Protection in compliance with section 2. (2) Detention facility The term detention facility means a Federal, State, or local government facility, or a privately owned and operated facility, that is used, in whole or in part, to hold individuals under the authority of the Director of U.S. Immigration and Customs Enforcement, including facilities that hold such individuals under a contract or agreement with the Director. (b) Oversight requirements (1) Annual inspection All detention facilities shall be inspected by the Secretary on an annual basis and an independent (third party) auditor, on a biannual basis, for compliance with applicable detention standards issued by the Secretary and other applicable regulations in compliance with section 2. (2) Routine oversight In addition to annual inspections, the Secretary shall conduct routine oversight of detention facilities, including unannounced inspections. (3) Availability of records All detention facility contracts, memoranda of agreement, financial records, evaluations, audits, and reviews shall be considered records for purposes of section 552(f)(2) of title 5, United States Code. (4) Consultation The Secretary shall seek input on an annual basis from nongovernmental organizations regarding their independent opinion of specific facilities. The Secretary shall provide a report on the opinions gathered and the response of the Secretary to any concerns expressed in those consultations to the Committee on the Judiciary of the House of Representatives, the Committee on the Judiciary 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. (5) Access Facilities shall permit representatives of the news media and nongovernmental organizations to have access to nonclassified and non-confidential information about their operation; given appropriate notice, to tour facilities; and with permission from the detainees, to interview individual detainees. (c) Compliance mechanisms (1) Agreements (A) New agreements Compliance with applicable standards and rules of the Secretary, and meaningful financial penalties for failure to comply, shall be a material term in any new contract, memorandum of agreement, or any renegotiation, modification, or renewal of an existing contract or agreement, including fee negotiations, executed with detention facilities. (B) Existing agreements Not later than 180 days after the promulgation of the rule, the Secretary shall secure a modification incorporating these terms for any existing contracts or agreements that will not be renegotiated, renewed, or otherwise modified. (C) Cancellation of agreements Unless the Secretary provides a reasonable extension to a specific detention facility that is negotiating in good faith, contracts or agreements with detention facilities that are not modified within 180 days of the promulgation of the rule, will be cancelled. (D) Provision of information In making modifications under this paragraph, the Secretary shall require that detention facilities provide to the Secretary all contracts, memoranda of agreement, evaluations, and reviews regarding the facility not later than 180 days after any modification. The Secretary shall make these materials publicly available. (2) Financial penalties (A) Requirement to impose Subject to subsection (b), the Secretary shall impose meaningful financial penalties upon facilities that fail to comply with applicable detention standards issued by the Secretary and other applicable regulations. (B) Timing of imposition Financial penalties imposed under subparagraph (A) shall be imposed 120 days after a facility fails to achieve an adequate or the equivalent median score in any performance evaluation. (C) Waiver The requirements of subparagraph (A) may be waived if the facility corrects the noted deficiencies and receives an adequate score in not more than 90 days. (D) Multiple offenders In cases of persistent and substantial noncompliance, including scoring less than adequate or the equivalent median score in 2 consecutive inspections, the Secretary shall terminate contracts or agreements for the operation and use of such facilities within 60 days, or in the case of facilities operated by the Secretary, such facilities shall be closed within 90 days. (d) Reporting requirements (1) Objectives Not later than June 30 of each year, the Secretary shall prepare and submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on inspection and oversight activities of detention facilities. (2) Contents Each report submitted under paragraph (1) shall include— (A) a description of each detention facility found to be in noncompliance with applicable detention standards issued by the Department and other applicable regulations; (B) a description of the actions taken by the Department to remedy any findings of non-compliance or other identified problems, including financial penalties, contract or agreement termination, or facility closure; and (C) information regarding whether the actions described in subparagraph (B) resulted in compliance with applicable detention standards and regulations.