I 

113TH CONGRESS 

1ST SESSION H. R. 639 

To reform immigration detention procedures, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 13, 2013 

Ms. ROYBAL-ALLARD 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 reform immigration detention procedures, and for other 

purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Immigration Oversight 

5 and Fairness Act’’. 

6 SEC. 2. DETENTION CONDITIONS. 

7 (a) DETENTION REQUIREMENTS.—All detention fa8 cilities shall fully comply with the following minimum re9 quirements: 


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1 (1) ACCESS TO TELEPHONES.—Detention facili2 ties shall provide to detainees reasonable and equi3 table access to working telephones, and the ability to 

4 contact, free of charge, legal representatives, foreign 

5 consulates, the immigration courts, the Board of Im6 migration Appeals, and the Federal courts, in addi7 tion to persons and offices contacted for the purpose 

8 of obtaining legal representation. Detention facilities 

9 shall provide to detainees access to telephones dur10 ing facility working hours and on an emergency 

11 basis in accordance with the following: 

12 (A) The detention facility shall provide to 

13 each detainee a copy of its rules governing tele14 phone access and shall post those rules, to15 gether with an explanation of how to make 

16 calls, within sight of each telephone available to 

17 detainees. These rules shall be translated into 

18 Spanish and two additional languages spoken 

19 by a substantial part of the detainee population 

20 of the detention facility. If a detention facility 

21 has determined that more than 5 percent of its 

22 population is a certain ethnicity, the document 

23 should be translated into that ethnicity’s appro24 priate language. The detention facility shall also 

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1 lation assistance to detainees in reading any 

2 relevant materials required to request telephone 

3 access, including oral interpretation assistance 

4 for those who are not literate in English, Span5 ish, and other languages spoken by the detainee 

6 population of the facility. 

7 (B) The rates charged for telephone calls 

8 shall be reasonable and equitable and shall not 

9 significantly impair detainees’ access to tele10 phones. 

11 (C) The detention facility shall not restrict 

12 the number of calls detainees may place to their 

13 legal representatives or consular officials, or to 

14 any others for the purpose of obtaining legal 

15 representation, or limit the duration of those 

16 calls by rule or automatic cut-off, unless nec17 essary for security reasons. The detention facil18 ity shall have a reasonable number of working 

19 phones available to detainees, and at a min20 imum one phone per each 25 users. 

21 (D) The detention facility shall ensure the 

22 privacy of telephone conversations between de23 tainees and legal representatives or consular of24 ficials, and calls made for the purpose of ob25 taining legal representation. Means to ensure 


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1 privacy may include the use of privacy panels, 

2 the placement of phones in housing pods, and 

3 other appropriate measures. 

4 (E) Detainees’ telephone calls to a court, 

5 legal representative, or consular official, or for 

6 the purpose of obtaining legal representation, 

7 shall not be monitored or recorded without a 

8 court order and without prior notification to the 

9 detainee. 

10 (F) The detention facility shall take and 

11 deliver telephone messages to detainees as 

12 promptly as possible, but no less often than 

13 twice a day. Detainees shall be permitted to 

14 make confidential telephone calls promptly 

15 within 8 hours of receipt of messages left by a 

16 court, legal representative, prospective legal 

17 representative, or consular official as soon as 

18 reasonably possible after the delivery of the 

19 message. 

20 (2) QUALITY OF MEDICAL CARE.—Detention fa21 cilities shall afford a continuum of prompt, high22 quality medical care, including care to address med23 ical needs that existed prior to detention, at no cost 

24 to detainees. Such medical care shall address all de25 tainee health needs and shall include chronic care, 


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1 dental care, eye care, mental health care, individual 

2 and group counseling, medical dietary needs, and 

3 other medically necessary specialized care in accord4 ance with the following: 

5 (A) All detention facilities shall maintain 

6 current accreditation by the National Commis7 sion on Correctional Health Care and the Joint 

8 Commission on the Accreditation of Health 

9 Care Organizations. Detention facilities that are 

10 not accredited as of the date of the enactment 

11 of this Act will obtain such accreditation within 

12 one year, and if accreditation is not obtained by 

13 that time the Secretary of Homeland Security 

14 shall cease use of the facility. All standards, 

15 policies and practices shall at a minimum com16 ply with the National Commission on Correc17 tional Health Care Standards for Health Serv18 ices in Jails. 

19 (B) All detention facilities shall have a des20 ignated on-site health authority who is a physi21 cian, a health services administrator, or a 

22 health agency. Clinical decisions shall be made 

23 solely by a licensed health care provider. 

24 (C) Each immigration detainee shall re25 ceive a comprehensive medical and mental 


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1 health intake screening by a qualified health 

2 care professional upon arrival at the facility and 

3 each immigration detainee shall receive a com4 prehensive medical and mental health examina5 tion and assessment by a qualified health care 

6 professional not later than 14 days after ar7 rival. 

8 (D) Any decision to deny requested med9 ical care or treatment, or care or treatment rec10 ommended by any outside physician or spe11 cialist, to a detainee shall be made within 72 

12 hours or earlier if medically necessary and shall 

13 be accompanied by a written explanation of the 

14 reasons for the denial. This decision and the 

15 written explanation of the decision shall be si16 multaneously communicated to the detainee and 

17 to the Secretary of Homeland Security. 

18 (E) Detainees shall be afforded an oppor19 tunity to obtain an appeal of any decisions de20 nying a request for medical treatment. Such an 

21 appeal or request for reconsideration shall be 

22 resolved in writing within 7 days or earlier if 

23 medically necessary by an appeals board that 

24 shall be composed of independent health care 

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1 quest for medical or mental health care. The 

2 written decision shall be conveyed to the on-site 

3 medical provider and the immigration detainee 

4 within 24 hours of a decision by the appeals 

5 board. 

6 (F) Except in emergency situations where 

7 informed consent cannot reasonably be ob8 tained, medical care and treatment shall be pro9 vided only with the informed consent of the de10 tainee or a person authorized by the detainee or 

11 applicable law to provide such consent. 

12 (G) Involuntary psychotropic medication 

13 may be used only if allowed by applicable law 

14 and then only in emergency situations when a 

15 physician has determined, after personally ex16 amining the patient, that— 

17 (i) a detainee is imminently dangerous 

18 to self or others due to a mental illness; 

19 and 

20 (ii) involuntary psychotropic medica21 tion is medically appropriate to treat the 

22 mental illness and necessary to prevent 

23 harm. If a detainee is represented by coun24 sel, the administration of any psychotropic 

25 drug to the detainee shall be disclosed to 


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1 the detainee’s counsel promptly and in any 

2 event within a reasonable time prior to any 

3 hearing in which the detainee will appear. 

4 If a detainee is not represented by counsel, the 

5 administration of any psychotropic drug to the 

6 detainee shall, with the informed consent of the 

7 detainee, be disclosed to the Immigration Court 

8 prior to any hearing in which the detainee will 

9 appear. Any disclosure to the court by any per10 son of the administration of a psychotropic 

11 drug to the detainee shall be filed under seal 

12 and may be disclosed to other persons only in 

13 the same manner and to the same extent that 

14 medical records may be disclosed. Any detainee 

15 who receives medication pursuant to this sub16 paragraph must be afforded a hearing pursuant 

17 to the procedures set forth in 28 CFR 549.43, 

18 as described in Washington v. Harper, 494 U.S. 

19 210 (1990), before the detainee may receive 

20 medication again under this subparagraph. 

21 (H) No drugs of any kind shall be admin22 istered to detainees without their informed con23 sent for the purpose of sedation or controlling 

24 the detainee’s behavior during transportation or 

25 removal or for the purpose of punishment. 


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1 (I) All detention facilities shall maintain 

2 complete medical records for every detainee, 

3 which shall be made available within 72 hours 

4 to any detention facility to which the detainee 

5 may be transferred. Medical records shall also 

6 be made available within 72 hours to a de7 tainee, his legal representative, or other author8 ized individuals upon request by the detainee. 

9 Any and all medical and mental health records 

10 of a detainee shall be treated as confidential, as 

11 required by the Health Insurance Portability 

12 and Accountability Act of 1996. 

13 (J) For each fiscal year after the passage 

14 of this Act, the Secretary of Homeland Security 

15 shall report to the Congress on a semiannual 

16 basis, and to Department of Homeland Security 

17 Office of Inspector General within 48 hours of 

18 any in-custody death, information regarding the 

19 death of any person who is in the custody of 

20 U.S. Immigration and Customs Enforcement 

21 that, at a minimum, includes— 

22 (i) the name, gender, national origin, 

23 alien number, and age of the deceased; 


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1 (ii) the date on which detention in 

2 U.S. Immigration and Customs Enforce3 ment custody commenced; 

4 (iii) the date and location of death; 

5 (iv) the location of last detention; 

6 (v) a brief description of the cir7 cumstances surrounding the death; 

8 (vi) the status and results of any in9 vestigation(s) that has been conducted into 

10 the circumstances surrounding the death; 

11 (vii) each location where the indi12 vidual was held in U.S. Immigration and 

13 Customs Enforcement custody or the cus14 tody of an entity contracting with U.S. Im15 migration and Customs Enforcement and 

16 the dates during which the individual was 

17 held at each location; and 

18 (viii) all medical records of the de19 ceased. 

20 (K) All detainee transfers shall take into 

21 consideration the detainee’s health and medical 

22 fitness. Continuity of care shall be preserved 

23 during and after transfers, and detainees shall 

24 suffer no interruption in the provision of treat25 ment, including prescription medication. 


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1 (3) SEXUAL ABUSE REGULATIONS CONCERNING

2 CARE AND CUSTODY OF DETAINEES.— 

3 (A) IN GENERAL.—Detention facilities 

4 shall take all necessary measures to prevent 

5 sexual abuse of detainees, including sexual as6 saults, and shall observe the minimum stand7 ards under the Prison Rape Elimination Act of 

8 2003 (42 U.S.C. 15601 et seq.). 

9 (B) MEASURES WHERE ABUSE OCCURS.— 

10 Where sexual abuse occurs, detention facilities 

11 shall ensure that— 

12 (i) prompt and appropriate medical 

13 intervention is taken to minimize medical 

14 and psychological trauma; 

15 (ii) a medical history is taken and a 

16 physical examination is conducted by quali17 fied and culturally appropriate medical 

18 professionals to determine the extent of 

19 physical injury and whether referral to an20 other medical facility is indicated; 

21 (iii) prophylactic treatment, emer22 gency contraception, and follow-up for sex23 ually transmitted diseases are provided; 

24 (iv) the case is evaluated by a quali25 fied mental health professional for crisis 


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1 intervention counseling and long-term fol2 low-up; 

3 (v) victims are separated from their 

4 abusers and are considered for release on 

5 parole or for an alternative to detention 

6 program; and 

7 (vi) any and all medical and mental 

8 health records arising out of a detainee’s 

9 allegation of sexual abuse shall be treated 

10 as confidential, as required by the Health 

11 Insurance Portability and Accountability 

12 Act of 1996. 

13 (C) REPORTING.—A detention facility shall 

14 not subject any person to punishment or any 

15 other form of retaliation for reporting incidents 

16 of sexual abuse. 

17 (D) INVESTIGATION.—In all cases of al18 leged sexual abuse, the detention facility shall 

19 conduct a thorough and timely investigation 

20 and shall provide to the Secretary of Homeland 

21 Security a report of the circumstances and the 

22 response of the detention facility. If the report 

23 is not completed within 30 days after alleged 

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1 mit to the Secretary of Homeland Security a 

2 description of the status of the investigation 

3 and an estimated date of completion 30 days 

4 after the alleged sexual abuse comes to the at5 tention of the detention facility and every 30 

6 days thereafter until the report is provided to 

7 the Secretary of Homeland Security. The report 

8 required by this subsection shall include at min9 imum a determination of whether the alleged 

10 sexual abuse occurred, an in-depth analysis of 

11 the relevant facts including the causes of any 

12 sexual abuse that may have occurred and 

13 whether and to what extent the alleged abuse 

14 indicates a failure of policy, a failure of train15 ing, a failure of oversight, or a failure of man16 agement, and a description of the actions that 

17 the facility will take to prevent the occurrence 

18 of similar incidents in the future and a plan for 

19 monitoring the implementation of those actions. 

20 The detention facility shall provide to the Sec21 retary of Homeland Security periodic reports 

22 monitoring the implementation of the plan in 

23 accordance with the schedule set forth in such 

24 plan as approved by the Secretary of Homeland 

25 Security. 


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1 (4) TRANSFER OF DETAINEES.— 

2 (A) PROCEDURES.—In adopting proce3 dures governing the transfer of individuals de4 tained under section 236 of the Immigration 

5 and Nationality Act (8 U.S.C. 1226), and sub6 ject to the exception in subparagraph (D), the 

7 Secretary of Homeland Security shall promul8 gate regulations prohibiting transfer of a de9 tainee if such transfer would— 

10 (i) negatively affect an existing attor11 ney-client relationship; 

12 (ii) negatively affect the detainee’s 

13 legal proceedings, including merits or cal14 endar hearings, or a pending application 

15 with United States Citizenship and Immi16 gration Services or the Executive Office for 

17 Immigration Review, by— 

18 (I) limiting the detainee’s access 

19 to securing legal representation; 

20 (II) limiting the detainee’s ability 

21 to prepare a legal defense to removal; 

22 or 

23 (III) removing the detainee from 

24 the legal venue of such proceeding; 


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1 (iii) negatively affect the detainee’s 

2 health and medical fitness; or 

3 (iv) to the extent it does not conflict 

4 with clauses (i), (ii), and (iii)— 

5 (I) place the detainee in a loca6 tion more distant from the detainee’s 

7 residence than the original detention 

8 location; or 

9 (II) place the detainee in a loca10 tion more distant from family mem11 bers than the original detention loca12 tion. 

13 (B) NOTICE.—Unless exigent cir14 cumstances dictate an immediate transfer— 

15 (i) the Secretary of Homeland Secu16 rity shall provide not less than 72 hours 

17 notice to any detainee prior to transferring 

18 the detainee to another detention facility; 

19 (ii) detainees shall be afforded at least 

20 one toll-free call following any transfer, 

21 and within 24 hours after the detainee’s 

22 arrival at the transferee facility, the Sec23 retary of Homeland Security shall notify 

24 the detainee’s legal representative or if un25 represented, an adult family member or 


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1 other person designated by the detainee, of 

2 the transfer and the detainee’s new loca3 tion; 

4 (iii) if removal proceedings are pend5 ing, the Secretary of Homeland Security 

6 shall also promptly notify the Immigration 

7 Court, Board of Immigration Appeals, or 

8 the Circuit Court of Appeals, as appro9 priate of the transfer and the detainee’s 

10 new address; and 

11 (iv) the Secretary of Homeland Secu12 rity shall not transfer any detainee who 

13 has already requested, and is awaiting, a 

14 bond hearing or a bond redetermination 

15 hearing. 

16 (C) EXCEPTION.—The Secretary may 

17 transfer a detainee who has an existing attor18 ney-client relationship to an alternate detention 

19 facility if such transfer is necessitated by a 

20 highly unusual emergency, such as a natural 

21 disaster or comparable emergency. 

22 (D) PROTECTING DETAINEES LEGAL

23 RIGHTS.—If the Secretary determines that a 

24 transfer is necessary due to a highly unusual 

25 emergency, the Secretary shall ensure that the 


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1 detainee’s legal rights are not prejudiced and 

2 the existing attorney-client relationship is not 

3 impaired, including evaluating the location of 

4 the detention facility based on it proximity to 

5 the detainee’s counsel or nongovernmental or 

6 pro bono organizations providing free or low 

7 cost immigration legal services. 

8 (E) RECORD.—In cases in which a de9 tainee is transferred, the Secretary shall make 

10 a record of the reasons and circumstances ne11 cessitating such transfer. 

12 (5) NOTICE.— 

13 (A) IN GENERAL.—Section 236 of the Im14 migration and Nationality Act (8 U.S.C. 1226) 

15 is amended by adding at the end the following: 

16 ‘‘(f) NOTICE.—The Secretary of Homeland Security 

17 shall file the notice to appear or other relevant charging 

18 document with the immigration court and serve such no19 tice on every alien detained under this Act, within 48 

20 hours of the detention of such alien. Any alien, held for 

21 more than 48 hours shall be brought before an immigra22 tion judge for a custody determination within 72 hours 

23 of the arrest or detention of such alien. The requirements 

24 of this provision may be tolled for no more than 30 days 

25 upon request from an alien who demonstrates prima facie 


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1 eligibility for affirmative relief. The Secretary of Home2 land Security shall— 

3 ‘‘(1) document when a notice to appear is 

4 served on a detainee in order to determine compli5 ance by the Secretary of Homeland Security with 

6 the 48-hour notice requirement; and 

7 ‘‘(2) submit to the Committees on the Judiciary 

8 of the Senate and the House of Representatives an 

9 annual report concerning the Secretary of Homeland 

10 Security’s compliance with such notice require11 ment.’’. 

12 (B) APPLICABILITY OF OTHER LAW.— 

13 Nothing in section 236(f) of the Immigration 

14 and Nationality Act, as added by subparagraph 

15 (A), shall be construed to repeal section 236A 

16 of such Act (8 U.S.C. 1226a). 

17 (b) REGULATIONS CONCERNING CARE AND CUSTODY

18 OF DETAINEES.— 

19 (1) RULEMAKING.—The Secretary of Homeland 

20 Security shall promulgate new rules, or modify exist21 ing rules, based on the report of the detention advi22 sory committee established under paragraph (2), to 

23 ensure detainees are treated humanely and held in 

24 the least restrictive setting necessary for their safety 

25 and to ensure compliance with the general minimum 


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1 requirements set forth in paragraph (3), standards 

2 regarding classification of detainees set forth in 

3 paragraph (4), and the special standards for vulner4 able populations set forth in paragraph (5). Such 

5 rules shall apply to all facilities in which the Sec6 retary of Homeland Security detains noncitizens, in7 cluding Service Processing Centers, Contract Deten8 tion Facilities, State or local government facilities 

9 used by Detention and Removal Operations through 

10 Intergovernmental Service Agreements, Bureau of 

11 Prisons facilities, and any other temporary or per12 manent facility used to hold detainees. The rules re13 quired under this paragraph shall be promulgated 

14 not later than 1 year after the Secretary of Home15 land Security receives the report of the detention ad16 visory committee established under paragraph (2), 

17 or 1 year after such report is due, whichever is ear18 lier. 

19 (2) DETENTION ADVISORY COMMITTEE.—The 

20 Secretary of Homeland Security shall convene, and 

21 receive a report from a detention advisory committee 

22 comprised of experts from U.S. Immigration and 

23 Customs Enforcement, U.S. Customs and Border 

24 Protection, the Office of Refugee Resettlement, and 

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1 partment of Health and Human Services, and an 

2 equal number of independent experts from non3 governmental organizations and intergovernmental 

4 organizations with expertise in working on behalf of 

5 aliens detained under immigration laws and vulner6 able populations. The independent experts shall at a 

7 minimum include representatives of the American 

8 Bar Association and the United Nations High Com9 missioner for Refugees. The detention advisory com10 mittee shall review and revise all the guidelines 

11 found in the Secretary of Homeland Security’s De12 tention Operations Manual, as amended, based on 

13 identifiable deficiencies and best practices that treat 

14 aliens both safely and humanely. The detention advi15 sory committee shall submit a report to the Sec16 retary of Homeland Security within 12 months after 

17 the date of the enactment of this Act. For good 

18 cause, the Secretary of Homeland Security may ex19 tend the time for submission of the advisory commit20 tees report for an additional six months. 

21 (3) TRAINING.—The Secretary of Homeland 

22 Security shall develop and implement a training pro23 tocol for all personnel in all facilities in which non24 citizens are detained. The training protocol shall in25 clude periodic updates to initial comprehensive trainVerDate Mar 15 2010 04:56 Feb 22, 2013 Jkt 029200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\H639.IH H639

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1 ing. The Secretary shall monitor the implementation 

2 of the protocol annually and shall ensure that all 

3 personnel who are required to be trained under the 

4 protocol have received the necessary training. The 

5 protocol shall include— 

6 (A) an overview of immigration detention 

7 and the characteristics of the noncitizen de8 tainee population; 

9 (B) an overview of the detention stand10 ards; 

11 (C) specific guidance on each of the deten12 tion standards; and 

13 (D) a description of the Secretary’s quality 

14 assurance procedures. 

15 (4) GENERAL MINIMUM REQUIREMENTS.—The 

16 Secretary of Homeland Security’s rules regarding 

17 conditions of detention shall ensure that the fol18 lowing requirements are met: 

19 (A) FAIR AND HUMANE TREATMENT.—De20 tainees shall not be subject to cruel, degrading 

21 or inhumane treatment such as verbal or phys22 ical abuse or harassment, sexual abuse or har23 assment, or arbitrary punishment. 

24 (B) USE OF FORCE AND RESTRAINTS.— 

25 Detainees shall not be subjected to shackling, 


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1 handcuffing, solitary confinement, Tasers, elec2 tric shields, restraint chairs, or strip searches 

3 unless and to the extent that such techniques 

4 are necessary to ensure the security of other de5 tainees, staff, or the public and where no less 

6 coercive or degrading measures are available to 

7 achieve that end. These techniques shall in no 

8 event be used for the purpose of humiliating de9 tainees either within or outside the detention 

10 facility. Detention facilities shall adopt written 

11 policies pertaining to the use of force and the 

12 use of restraints, and shall train all staff on the 

13 proper use of such devices. 

14 (C) INVESTIGATION OF GRIEVANCES.—De15 tainees shall have the right to prompt, effective, 

16 transparent, and impartial grievance proce17 dures. Such procedures shall include review of 

18 grievances by officials of the Department of 

19 Homeland Security who do not work at the 

20 same detention facility where the detainee filing 

21 the grievance is detained in accordance with the 

22 following: 

23 (i) An otherwise valid grievance shall 

24 not be denied for noncompliance with a 

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1 ance is due to ignorance, fear, excusable 

2 neglect or other reasonable cause. 

3 (ii) Detainees shall be afforded the 

4 opportunity to complain to staff of U.S. 

5 Immigration and Customs Enforcement di6 rectly and confidentially, outside the griev7 ance process. 

8 (iii) Detainees shall not be subject to 

9 retaliation for making use of the grievance 

10 procedure or procedure for complaining di11 rectly to staff of U.S. Immigration and 

12 Customs Enforcement. 

13 (iv) Detention facilities shall orally in14 form detainees of the grievance procedure 

15 and the procedure for complaining directly 

16 to staff of U.S. Immigration and Customs 

17 Enforcement and shall provide to every de18 tainee a copy of those procedures within 24 

19 hours after admission. The detention facil20 ity shall provide oral interpretation and 

21 written translation assistance to detainees 

22 in completing any grievance or complaint 

23 forms or other relevant materials required 

24 to comply with grievance procedures. 


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1 (v) Detention facilities shall make an 

2 annual report regarding the grievances re3 ceived, the responses made, and the time 

4 period for response, and such report shall 

5 be submitted to the Secretary of Homeland 

6 Security on January 31 of each year. 

7 (vi) All grievances shall be inves8 tigated. 

9 (D) LOCATION OF FACILITIES.—Detention 

10 facilities shall be located, to the extent prac11 ticable, within 50 miles of a city or municipality 

12 in which there is a demonstrated capacity to 

13 provide competent legal representation by non14 profit legal aid organizations or other pro bono 

15 attorneys to detained noncitizens, including asy16 lum seekers and other vulnerable immigrant 

17 populations. The Secretary of Homeland Secu18 rity shall seek to use only facilities within the 

19 stated 50-mile radius by January 1, 2014. 

20 (E) ACCESS TO LEGAL MATERIALS.—De21 tainees shall have available an on-site law li22 brary with sufficient space to facilitate detain23 ees’ legal research and preparation of docu24 ments. The law library’s holdings shall include 

25 up-to-date copies of legal materials designated 


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1 by the Secretary of Homeland Security, includ2 ing immigration law materials. The law library 

3 shall be provided with adequate equipment for 

4 legal research and the preparation of legal doc5 uments. Such equipment shall include, at a 

6 minimum, computers, printers, typewriters, and 

7 copiers. Information regarding the availability 

8 of the library, procedures for requesting its use, 

9 and instruction on the use of the library and li10 brary equipment shall be provided to all detain11 ees at the time of admission into the detention 

12 facility, and shall be posted in the law library 

13 together with a list of the library’s holdings. 

14 The detention facility will make available to de15 tainees any assistance that may be necessary to 

16 allow detainees to use the library effectively and 

17 shall provide special assistance as the Secretary 

18 of Homeland Security may prescribe to detain19 ees who are not literate in English. Library 

20 services, including access to databases and 

21 printing and copying, shall be provided without 

22 charge to detainees. 

23 (F) LEGAL VISITS.— 

24 (i) IN GENERAL.—Legal visits shall 

25 not be restricted absent narrowly defined 


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1 exceptional circumstances, including a nat2 ural disaster or comparable emergency be3 yond the control of the Secretary of Home4 land Security. 

5 (ii) PROCEDURES.—Detainees shall be 

6 entitled to private meetings with their cur7 rent or prospective legal representatives or 

8 their legal assistants. Interpreters shall be 

9 allowed to accompany legal representatives 

10 and legal assistants on legal visits subject 

11 to appropriate security procedures. Legal 

12 visits shall be permitted a minimum of 8 

13 hours per day on regular business days 

14 and 4 hours per day on weekends and holi15 days, except that if lack of space for inter16 views at the detention facility, the conduct 

17 of immigration hearings on site, or other 

18 factors lead to excessive delay between the 

19 time the legal representative is ready to 

20 visit the detainee and the time space be21 comes available, the Secretary of Home22 land Security shall require such additional 

23 time for legal visits or other measures as 

24 may be sufficient to avoid excessive delay. 

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1 graph is delay of 2 hours or more, occur2 ring more than 2 times per month over a 

3 12-month period. Detention facilities shall 

4 maintain a procedure allowing legal rep5 resentatives and legal assistants to call 

6 ahead to determine if a detainee is held at 

7 that facility, and they shall take messages 

8 from legal representatives and promptly 

9 deliver them to the detainee. Messengers, 

10 including individuals who are not attor11 neys, legal representatives, or legal assist12 ants, shall be permitted to deliver docu13 ments for detainees to and from the facil14 ity. Detention facilities shall promptly and 

15 prominently post the most current official 

16 list of pro bono legal organizations and 

17 their contact information in detainee hous18 ing units and other appropriate areas, and 

19 such lists shall be updated by the Sec20 retary of Homeland Security on a semi-an21 nual basis. Detention facilities may not re22 taliate in any way, including denial or limi23 tation of access to detention facilities, for 

24 complaints or public or private statements 

25 made by legal representatives regarding 


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1 the detention facility’s compliance with 

2 regulations relating to conditions of deten3 tion. 

4 (G) SPECIAL CORRESPONDENCE.—Special 

5 correspondence shall not be read by staff of the 

6 detention facility or other personnel, contrac7 tors, or agents of the Secretary of Homeland 

8 Security, and shall not be opened outside the 

9 presence of the detainee. For this purpose, spe10 cial correspondence includes detainees’ written 

11 communications to or from private attorneys 

12 and other legal representatives; government at13 torneys; judges and courts; embassies and con14 sulates; the president and vice president of the 

15 United States, members of the Congress, offi16 cers and other personnel of the Department of 

17 Justice; officers and other personnel of the De18 partment of Homeland Security; officers and 

19 other personnel of the U.S. Public Health Serv20 ice; administrators of grievance systems; State 

21 and local officials, representatives of the news 

22 media, and representatives of nongovernmental 

23 organizations and intergovernmental organiza24 tions working on behalf of aliens held in deten25 tion and vulnerable populations. CorrespondVerDate Mar 15 2010 04:56 Feb 22, 2013 Jkt 029200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\H639.IH H639

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1 ence will only be treated as special correspond2 ence if marked ‘‘special correspondence’’ or 

3 ‘‘legal mail’’ or if the title and office of the 

4 sender (for incoming correspondence) or ad5 dressee (for outgoing correspondence) are un6 ambiguously identified on the envelope, clearly 

7 indicating that the correspondence is special 

8 correspondence. Special correspondence shall be 

9 promptly delivered and promptly posted. In 

10 general, correspondence will be deemed prompt11 ly delivered if it is delivered to the detainee 

12 within 24 hours after its receipt by the deten13 tion facility, and correspondence will be deemed 

14 promptly posted if it is placed into the United 

15 States mail the next day on which the Post Of16 fice is open for business after the detainee 

17 places the correspondence in the location des18 ignated by the facility for outgoing mail. 

19 (H) ACCESS TO DETENTION FACILITIES.— 

20 Detention facilities shall afford access as fol21 lows: 

22 (i) Subject to reasonable conditions to 

23 protect the security of the facility, deten24 tion facilities shall afford access to private 

25 attorneys, other legal representatives and 


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1 legal personnel such as paralegals and 

2 Board of Immigration Appeals accredited 

3 representatives; government attorneys; 

4 judges and courts; embassies and con5 sulates; the president and vice president of 

6 the United States, members of Congress 

7 and their staff; officers and other per8 sonnel of the Department of Justice; offi9 cers and other personnel of the Depart10 ment of Homeland Security; officers and 

11 other personnel of the U.S. Public Health 

12 Service; administrators of grievance sys13 tems; State and local officials, representa14 tives of the news media, and representa15 tives of nongovernmental organizations, 

16 community service organizations, and 

17 intergovernmental organizations. 

18 (ii) Independent observers, including 

19 nongovernmental organizations, shall be 

20 permitted to conduct site visits, meet pri21 vately with detainees, test telephones and 

22 pro bono calling platforms, and take other 

23 reasonable steps to monitor compliance 

24 with regulations regarding conditions of 

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1 tions shall not be prohibited from issuing 

2 public reports on the findings of moni3 toring visits. 

4 (iii) Detention facilities shall accom5 modate requests for facility tours within a 

6 reasonable time not to exceed 1 week. 

7 (iv) Access of media representatives to 

8 detention facilities and individual detainees 

9 may be restricted only to the extent nec10 essary to preserve the privacy of detainees, 

11 the security and good order of the facility, 

12 the safety of the interviewer, national secu13 rity, or any other obligation imposed by 

14 law or court order. Such access may not be 

15 restricted based on the content of the 

16 media representative’s reporting, and retal17 iation against detainees and members of 

18 the media based on the content of their 

19 speech shall be prohibited. 

20 (v) Detention facilities may not retali21 ate in any way, including denial or limita22 tion of access to detention facilities, 

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1 tention facility’s compliance with regula2 tions relating to conditions of detention. 

3 (I) TRANSLATION CAPABILITIES.—Deten4 tion facilities shall employ staff that, to the ex5 tent practicable, is qualified in the languages 

6 represented in the population of detainees at 

7 each such facility and shall provide alternative 

8 translation services where necessary. 

9 (J) RECREATIONAL PROGRAMS AND AC10 TIVITIES.—Detainees shall be afforded access of 

11 at least one hour per day to indoor and outdoor 

12 recreational programs and activities. 

13 (K) SAFE AND SANITARY LIVING ENVIRON14 MENT.—Detention facilities shall house no more 

15 individuals than permitted by the rated bed ca16 pacity for the facility, where the rated bed ca17 pacity is defined by the original design capacity, 

18 plus or minus capacity changes resulting from 

19 building additions, reductions, or revisions. 

20 Each detainee shall receive appropriate clothing 

21 and a bed and a mattress placed in an area 

22 specifically designated for residential use, rath23 er than an area re-tasked for residential use 

24 such as common dayrooms, recreation areas, or 

25 visitation rooms. Detention facilities shall be 


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1 maintained in a safe and sanitary condition, 

2 and adequate ventilation and reasonably com3 fortable indoor temperatures shall be main4 tained at all times. 

5 (L) LEGAL ORIENTATION TO ENSURE EF6 FECTIVE IMMIGRATION PROCEEDINGS.— 

7 (i) IN GENERAL.—The Attorney Gen8 eral, in consultation with the Secretary of 

9 Homeland Security, shall ensure that all 

10 detained aliens, including unaccompanied 

11 minors, in immigration proceedings receive 

12 legal orientation from an independent non13 governmental organization through a pro14 gram administered and implemented by 

15 the Executive Office for Immigration Re16 view of the Department of Justice. 

17 (ii) CONTENT OF PROGRAM.—The 

18 legal orientation program developed pursu19 ant to this subparagraph shall be based on 

20 the Legal Orientation Program carried out 

21 by the Executive Office for Immigration 

22 Review on the date of the enactment of 

23 this Act. Presentations for minors shall 

24 utilize a child-centered model. 


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1 (5) CLASSIFICATION.—The Secretary of Home2 land Security’s rules shall ensure that detainees with 

3 no history of a criminal conviction are separated by 

4 sight and sound from detainees and inmates with 

5 criminal convictions, pretrial inmates facing criminal 

6 prosecution, and those inmates exhibiting violent be7 havior while in detention. 

8 (6) VULNERABLE POPULATIONS.—The Sec9 retary of Homeland Security’s rules regarding condi10 tions of detention for vulnerable populations shall— 

11 (A) recognize the unique needs of asylum 

12 seekers, victims of torture and trafficking, fami13 lies with children, detainees who do not speak 

14 English, detainees with special religious, cul15 tural or spiritual considerations, and vulnerable 

16 populations listed in section 3(c); and 

17 (B) ensure that procedures and conditions 

18 of detention are appropriate for such vulnerable 

19 populations. 

20 (7) STAFFING.—For purposes of this subsection 

21 and protecting vulnerable populations, the Secretary 

22 of Homeland Security shall appoint at least three 

23 members to the Directorate of Policy at the GS–15 

24 level with substantial academic credentials and ex25 pertise in working directly with vulnerable popuVerDate Mar 15 2010 04:56 Feb 22, 2013 Jkt 029200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\H639.IH H639

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1 lations including children, families and victims of 

2 trafficking, trauma, and torture who shall be respon3 sible for setting, implementing, and overseeing policy 

4 and regulatory developments concerning vulnerable 

5 populations. 

6 SEC. 3. SECURE ALTERNATIVES TO DETENTION. 

7 (a) IN GENERAL.—Subject to the availability of ap8 propriations, the Secretary of Homeland Security shall 

9 fully implement and utilize secure alternatives to detention 

10 programs. 

11 (b) SECURE ALTERNATIVES TO DETENTION PRO12 GRAMS.— 

13 (1) NATURE OF THE PROGRAM.—For purposes 

14 of this section, the programs referred to in sub15 section (a) are programs under which eligible aliens 

16 are released under supervision, assistance and moni17 toring that ensure they appear at all immigration 

18 interviews, appointments, and hearings. The ele19 ments of the secure alternatives to detention pro20 grams are— 

21 (A) group presentations and individual 

22 screening; 

23 (B) provision of services to aliens released; 

24 and 


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1 (C) on-going assistance, supervision, and 

2 monitoring. 

3 (2) VOLUNTARY PARTICIPATION.—An alien’s 

4 participation in the program is voluntary and shall 

5 not confer any rights or benefits to the alien under 

6 the Immigration and Nationality Act (8 U.S.C. 1101 

7 et seq.). 

8 (3) PROGRAM DEVELOPMENT.—The program 

9 shall be developed in accordance with the following 

10 guidelines: 

11 (A) The Secretary of Homeland Security 

12 shall design the program in consultation with 

13 nongovernmental organizations and academic 

14 experts in both the immigration and the crimi15 nal justice fields. 

16 (B) All aliens in the custody of the Sec17 retary of Homeland Security deemed eligible for 

18 secure alternatives to detention programs shall 

19 be released in the least restrictive setting need20 ed to ensure appearance at all immigration 

21 interviews, appointments and hearings. The 

22 programs shall utilize a continuum of methods, 

23 including releasing the alien to an individual or 

24 organizational sponsor, a supervised group 


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1 home, or a supervised, non-penal community 

2 setting. 

3 (C) Nongovernmental organizations and 

4 State and local social service agencies that serve 

5 immigrants shall be contracted to conduct 

6 group and individual screening and provide 

7 services to program participants. 

8 (D) The Secretary of Homeland Security 

9 shall ensure that each alien participates in a 

10 legal presentation provided through the legal 

11 orientation presentation program administered 

12 by the Executive Office for Immigration Re13 view. 

14 (c) PROTECTION OF VULNERABLE POPULATIONS.— 

15 Within 72 hours of detaining an alien, the Secretary of 

16 Homeland Security shall screen the alien to determine if 

17 he or she falls into the following designated groups. Any 

18 alien described in the following designated groups who 

19 meets the criteria set forth under section 236(b) of the 

20 Immigration and Nationality Act, as amended by this Act, 

21 shall be released on parole, a reasonable bond, or the 

22 alien’s own recognizance subject to the requirements of 

23 such section 236(b): 

24 (1) Aliens who have serious medical or mental 

25 health needs or a disability. 


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1 (2) Pregnant or nursing women. 

2 (3) Aliens who are being detained with one or 

3 more of their children. 

4 (4) Aliens who provide financial, physical, and 

5 other direct support to their minor children, parents, 

6 or other dependents. 

7 (5) Aliens who are over the age of 65. 

8 (6) Children (as defined at section 101(c)(1) of 

9 the Immigration and Nationality Act (8 U.S.C. 

10 1101(c)(1))). 

11 (7) Victims of abuse, violence, crime or traf12 ficking. 

13 (8) Asylum seekers and torture survivors who 

14 have demonstrated a credible fear of persecution or 

15 a reasonable fear of torture. 

16 (9) Other groups designated in regulations or 

17 guidance promulgated after the date of the enact18 ment of this Act by the Secretary of Homeland Se19 curity. 

20 (10) Individuals who have a nonfrivolous claim 

21 to United States citizenship or aliens who are eligi22 ble for relief under a provision of the Immigration 

23 and Nationality Act. 

24 (d) OPTIONS REGARDING DETENTION DECISIONS

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1 TERNATIVES TO DETENTION.—Section 236 of the Immi2 gration and Nationality Act (8 U.S.C. 1226) is amend3 ed— 

4 (1) in subsection (a)— 

5 (A) in the matter preceding paragraph (1), 

6 by striking ‘‘(c)’’ and inserting ‘‘(d)’’; 

7 (B) in paragraph (2)— 

8 (i) in subparagraph (A), by striking 

9 ‘‘or’’ at the end; 

10 (ii) in subparagraph (B), by striking 

11 ‘‘but’’ at the end; and 

12 (iii) by inserting after subparagraph 

13 (B) the following: 

14 ‘‘(C) the alien’s own recognizance; and’’; 

15 (C) by redesignating paragraph (3) as 

16 paragraph (4); and 

17 (D) by inserting after paragraph (2) the 

18 following: 

19 ‘‘(3) may enroll the alien in a secure alter20 natives to detention program; but’’; 

21 (2) by redesignating subsections (b), (c), (d), 

22 and (e) as subsections (e), (f), (g), and (h) respec23 tively; 

24 (3) by inserting after subsection (a) the fol25 lowing: 


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1 ‘‘(b) CUSTODY DECISIONS FOR VULNERABLE POPU2 LATIONS.— 

3 ‘‘(1) IN GENERAL.—Not later than 72 hours 

4 after an alien’s detention unless the 72-hour require5 ment is waived in writing by the alien, an alien who 

6 is a member of a vulnerable population (as defined 

7 by subsection (c)) shall be released from the Sec8 retary of Homeland Security’s custody and shall not 

9 be subject to electronic monitoring unless the Sec10 retary of Homeland Security demonstrates that the 

11 alien— 

12 ‘‘(A) is subject to mandatory detention 

13 under section 235(b)(1)(B)(iii)(IV), 236(c) or 

14 236A; or 

15 ‘‘(B) poses a flight risk or a risk to others 

16 or national security. 

17 ‘‘(2) RELEASE.—An alien shall be released 

18 under this subsection— 

19 ‘‘(A) on the alien’s own recognizance; 

20 ‘‘(B) by posting a reasonable bond under 

21 subsection (a); or 

22 ‘‘(C) on parole in accordance with section 

23 212(d)(5)(A). 

24 ‘‘(c) PARTICIPATION IN ALTERNATIVES TO DETEN25 TION.—An alien who is denied release on recognizance, paVerDate Mar 15 2010 04:56 Feb 22, 2013 Jkt 029200 PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 E:\BILLS\H639.IH H639

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1 role, or bond, or is unable to pay the bond shall be selected 

2 for participation in a secure alternatives to detention pro3 gram unless the Secretary of Homeland Security dem4 onstrates by substantial evidence that the alien— 

5 ‘‘(1) is subject to mandatory detention under 

6 section 235(b)(1)(B)(iii)(IV) or 236A; or 

7 ‘‘(2) is a flight risk or the alien’s participation 

8 in the program would create a risk to others or na9 tional security. 

10 ‘‘(d) DECISIONS UNDER THIS SECTION.—In the case 

11 of a decision under subsection (a), (b), or (c), the following 

12 shall apply: 

13 ‘‘(1) The decision shall be made in writing and 

14 shall be served upon the individual in the language 

15 spoken by the alien. A decision to continue detention 

16 without bond or parole shall specify in writing the 

17 reasons for that decision. 

18 ‘‘(2) The decision shall be served upon the alien 

19 within 72 hours of the individual’s detention or, in 

20 the case of an individual subject to section 235, 238, 

21 or 241(a)(5) within 72 hours of a positive credible 

22 or reasonable fear determination. 

23 ‘‘(3) An alien subject to this section, including 

24 all aliens who are entitled to a removal hearing 

25 under section 240, may at any time after being 


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1 served with the Secretary of Homeland Security’s 

2 decision under subsections (a), (b), or (c) request a 

3 redetermination of that decision by an immigration 

4 judge. 

5 ‘‘(4) All custody decisions by the Secretary of 

6 Homeland Security shall be subject to redetermina7 tion by an immigration judge. Nothing in this sub8 section shall be construed to prevent an individual 

9 from requesting a bond redetermination. 

10 ‘‘(5) The Attorney General or an immigration 

11 judge, at any time, may redetermine an alien’s clas12 sification under subsection (c), the bond of someone 

13 released, or the custody status of someone placed in 

14 an alternatives to detention program. Nothing in 

15 this subsection would preclude a person from being 

16 released on bond after initially participating in an 

17 alternatives to detention program.’’; and 

18 (4) in subsection (f), as redesignated, in para19 graph (2), by inserting ‘‘or for humanitarian rea20 sons,’’ after ‘‘such an investigation,’’. 

21 (e) ELIGIBILITY AND OPERATIONS.—Nothing in this 

22 section shall be construed to modify the care and custody 

23 of unaccompanied alien children (as defined in section 

24 462(g)(2) of the Homeland Security Act (6 U.S.C. 

25 279(g)(2))) who shall be considered to be in the care and 


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1 exclusive legal and physical custody of the Secretary of 

2 Health and Human Services. Such children shall be sub3 ject to removal proceedings under section 240 of the Im4 migration and Nationality Act (8 U.S.C. 1229a), with the 

5 exception of children from contiguous countries eligible for 

6 administrative voluntary departure, and shall not be per7 mitted to participate in the program. 

8 (f) LESS RESTRICTIVE CUSTODIAL DETENTION.—If 

9 an alien is determined not to meet the requirements for 

10 release on recognizance, bond or parole, or subsequently 

11 does not meet the requirements for secure alternatives to 

12 detention programs, the alien shall be considered for 

13 placement in less restrictive forms of custody: 

14 (1) Less restrictive forms of custodial detention 

15 include electronic monitoring such as the use of 

16 ankle bracelets that monitor an individual’s move17 ment and the use of similar electronic devices. 

18 (2) An individualized determination shall be 

19 made in each alien’s case about the use of electronic 

20 monitoring. 

21 (3) Aliens who would otherwise be subject to 

22 detention including under section 236 of such Act (8 

23 U.S.C. 1226) may be placed in electronic monitoring 

24 or other less restrictive forms of custody. 


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1 (4) Subject to the availability of appropriations, 

2 facilities shall be developed and used that offer the 

3 least restrictive secure setting for aliens in custody. 

4 SEC. 4. PROGRAM OVERSIGHT AND REVIEW. 

5 (a) RELATIONSHIPS OF APPLICATION TO CERTAIN

6 ORDERS.—An alien who is present in the United States 

7 and has been ordered excluded, deported, removed, or or8 dered to depart voluntarily from the United States under 

9 any provision of the Immigration and Nationality Act— 

10 (1) notwithstanding such order, may be selected 

11 for a secure alternatives to detention program; and 

12 (2) shall not be required to file a separate mo13 tion to reopen, reconsider, or vacate the exclusion, 

14 deportation, removal, or voluntary departure order. 

15 (b) IMPLEMENTING REGULATIONS.—Not later than 

16 180 days after the date of the enactment of this Act, the 

17 Secretary of Homeland Security shall promulgate regula18 tions to implement the secure alternatives to detention 

19 programs. 

20 (c) REPORTING REQUIREMENTS.—Not later than 

21 365 days after the date of the enactment of this Act and 

22 annually thereafter, the Secretary of Homeland Security 

23 shall submit to the Committee on Homeland Security of 

24 the House of Representatives, the Committee on the Judi25 ciary of the House of Representatives, the Committee on 


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1 Homeland Security and Governmental Affairs of the Sen2 ate, and the Committee on the Judiciary of the Senate 

3 a report that details all policies, regulations, and actions 

4 taken to comply with the provisions in this Act and the 

5 amendments made by this Act, including efforts to in6 crease the use of the secure alternatives to detention pro7 grams, and a description of efforts taken to ensure that 

8 all aliens in expedited removal proceedings are residing 

9 under conditions that are safe, secure, and healthy. 

10 (d) AUTHORIZATION OF APPROPRIATIONS.—There 

11 are authorized to be appropriated to the Secretary of 

12 Homeland Security such sums as may be necessary to 

13 carry out this Act and the amendments made by this Act. 

14 Amounts appropriated pursuant to this subsection shall 

15 remain available until expended. 

Æ 


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