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[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3114 Introduced in Senate (IS)]

110th CONGRESS
  2d Session
                                S. 3114

  To provide safeguards against faulty asylum procedures, to improve 
     conditions of detention for detainees, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             June 11, 2008

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 Judiciary

_______________________________________________________________________

                                 A BILL

 
  To provide safeguards against faulty asylum procedures, to improve 
     conditions of detention for detainees, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Secure and Safe Detention and Asylum 
Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Asylum seeker.--The term ``asylum seeker'' means an 
        applicant for asylum under section 208 of the Immigration and 
        Nationality Act (8 U.S.C. 1158) or for withholding of removal 
        under section 241(b)(3) of such Act (8 U.S.C. 1231(b)(3)) or an 
        alien who indicates an intention to apply for relief under 
        either such section and does not include a person with respect 
        to whom a final adjudication denying an application made under 
        either such section has been entered.
            (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 (8 
        U.S.C. 1225(b)(1)(B)(v)).
            (3) Department.--The term ``Department'' means the 
        Department of Homeland Security.
            (4) Detainee.--The term ``detainee'' means an alien in the 
        Department's custody held in a detention facility.
            (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.
            (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.
            (7) Secretary.--The term ``Secretary'' means the Secretary 
        of Homeland Security.
            (8) Standard.--The term ``standard'' means any policy, 
        procedure, or other requirement.
            (9) Vulnerable populations.--The term ``vulnerable 
        populations'' means classes of aliens subject to the 
        Immigration and Nationality Act (8 U.S.C. 1101 et seq.) who 
        have special needs requiring special consideration and 
        treatment by virtue of their vulnerable characteristics, 
        including experiences of, or risk of, abuse, mistreatment, or 
        other serious harms threatening their health or safety. 
        Vulnerable populations include the following:
                    (A) Asylum seekers.
                    (B) Refugees admitted under section 207 of the 
                Immigration and Nationality Act (8 U.S.C. 1157) and 
                individuals seeking such admission.
                    (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 (Public Law 104-
                208; 110 Stat. 3009-612)) or section 241(b)(3) of the 
                Immigration and Nationality Act (8 U.S.C. 1231(b)(3)).
                    (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.
                    (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 Public Law 106-386; 114 
                Stat. 1464), including applicants for nonimmigrant 
                status under subparagraph (T) or (U) of section 
                101(a)(15) of the Immigration and Nationality Act (8 
                U.S.C. 1101(a)(15)).
                    (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 Public Law 106-386; 114 Stat. 
                1491).
                    (G) Unaccompanied alien children (as defined in 
                462(g) of the Homeland Security Act of 2002 (6 U.S.C. 
                279(g)).

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 (8 U.S.C. 1225(b)).
    (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 (8 U.S.C. 1225(b)(1)(A)) shall be accompanied by a 
recording of the interview which served as the basis for that sworn 
statement.
    (c) Recordings.--
            (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.
            (2) Format.--The recording shall be made in video, audio, 
        or other equally reliable format.
    (d) Exemption Authority.--
            (1) Subsections (b) and (c) shall not apply to interviews 
        that occur at facilities exempted by the Secretary pursuant to 
        this subsection.
            (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.
            (3) The Secretary or the Secretary's designee shall report 
        annually to Congress on the facilities that have been exempted 
        pursuant to this subsection.
            (4) The exercise of the exemption authority granted by this 
        subsection shall not give rise to a private cause of action.
    (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.
    (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.

SEC. 4. PROCEDURES GOVERNING DETENTION DECISIONS.

    Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) 
is amended--
            (1) in subsection (a)--
                    (A) in the matter preceding paragraph (1)--
                            (i) in the first sentence by striking 
                        ``Attorney General'' and inserting ``Secretary 
                        of Homeland Security'';
                            (ii) by striking ``(c)'' and inserting 
                        ``(d)''; and
                            (iii) in the second sentence by striking 
                        ``Attorney General'' and inserting 
                        ``Secretary'';
                    (B) in paragraph (2)--
                            (i) in subparagraph (A)--
                                    (I) by striking ``Attorney 
                                General'' and inserting ``Secretary''; 
                                and
                                    (II) by striking ``or'' at the end;
                            (ii) in subparagraph (B), by striking 
                        ``but'' at the end; and
                            (iii) by inserting after subparagraph (B) 
                        the following:
                    ``(C) the alien's own recognizance; or
                    ``(D) a secure alternatives program as provided for 
                in this section; but'';
            (2) by redesignating subsections (b), (c), (d), and (e) as 
        subsections (d), (e), (f), and (h), respectively;
            (3) by inserting after subsection (a) the following new 
        subsections:
    ``(b) Custody Decisions.--
            ``(1) In general.--In the case of a decision under 
        subsection (a) or (d), the following shall apply:
                    ``(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.
                    ``(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.
            ``(2) Criteria to be considered.--The criteria to be 
        considered by the Secretary and the Attorney General in making 
        a custody decision shall include--
                    ``(A) whether the alien poses a risk to public 
                safety or national security;
                    ``(B) whether the alien is likely to appear for 
                immigration proceedings; and
                    ``(C) any other relevant factors.
            ``(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.
    ``(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.'';
            (4) in subsection (d), as redesignated--
                    (A) by striking ``Attorney General'' and inserting 
                ``Secretary''; and
                    (B) by striking ``or parole'' and inserting ``, 
                parole, or decision to release;'';
            (5) in subsection (e), as redesignated--
                    (A) by striking ``Attorney General'' and inserting 
                ``Secretary'' each place it appears; and
                    (B) in paragraph (2), by inserting ``or for 
                humanitarian reasons,'' after ``such an 
                investigation,'';
            (6) in subsection (f), as redesignated--
                    (A) in the matter preceding paragraph (1), by 
                striking ``Attorney General'' and inserting 
                ``Secretary'';
                    (B) in paragraph (1), in subparagraphs (A) and (B), 
                by striking ``Service'' and inserting ``Department of 
                Homeland Security''; and
                    (C) in paragraph (3), by striking ``Service'' and 
                inserting ``Secretary of Homeland Security'';
            (7) by inserting after subsection (f), as redesignated, the 
        following new subsection:
    ``(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.''; and
            (8) in subsection (h), as redesignated--
                    (A) by striking ``Attorney General's'' and 
                inserting ``Secretary of Homeland Security's''; and
                    (B) by striking ``Attorney General'' and inserting 
                ``Secretary''.

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.
    (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.
    (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.

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.
    (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:
            (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.
            (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.
            (3) Investigation of grievances.--Procedures for the prompt 
        and effective investigation of grievances raised by detainees.
            (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.
            (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.
            (6) Procedures governing transfers of detainees.--
        Procedures governing the transfer of a detainee that take into 
        account--
                    (A) the detainee's access to legal representatives; 
                and
                    (B) the proximity of the facility to the venue of 
                the asylum or removal proceeding.
            (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.
            (8) Recreational programs and activities.--Daily access to 
        indoor and outdoor recreational programs and activities.
    (c) Quality of Medical Care.--
            (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.
            (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).
            (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.
    (d) Special Standards for Noncriminal Detainees.--The Secretary 
shall promulgate new standards, or modifications to existing standards, 
that--
            (1) recognize the distinctions between persons with 
        criminal convictions or a history of violent behavior and all 
        other detainees; and
            (2) ensure that procedures and conditions of detention are 
        appropriate for a noncriminal, nonviolent population.
    (e) Special Standards for Vulnerable Populations.--The Secretary 
shall promulgate new standards, or modifications to existing standards, 
that--
            (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; and
            (2) ensure that procedures and conditions of detention are 
        appropriate for the populations listed in this subsection.
    (f) Training of Personnel.--
            (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--
                    (A) asylum seekers;
                    (B) victims of torture or other trauma; and
                    (C) other vulnerable populations.
            (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.

SEC. 7. OFFICE OF DETENTION OVERSIGHT.

    (a) Establishment of the Office.--
            (1) In general.--There is established within the Department 
        an Office of Detention Oversight (in this section referred to 
        as the ``Office'').
            (2) Head of the office.--The head of the Office shall be an 
        Administrator who shall be appointed by, and shall report to, 
        the Secretary.
            (3) Schedule.--The Office shall be established and the 
        Administrator of the Office appointed not later than 180 days 
        after the date of the enactment of this Act.
    (b) Responsibilities of the Office.--
            (1) Inspections of detention centers.--The Administrator of 
        the Office shall--
                    (A) undertake frequent and unannounced inspections 
                of all detention facilities;
                    (B) develop a procedure for any detainee or the 
                detainee's representative to file a written complaint 
                directly with the Office; and
                    (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.
            (2) Investigations.--The Administrator of the Office 
        shall--
                    (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;
                    (B) report to the Secretary and the Assistant 
                Secretary of Homeland Security for U.S. Immigration and 
                Customs Enforcement the results of all investigations; 
                and
                    (C) refer matters, where appropriate, for further 
                action to--
                            (i) the Department of Justice;
                            (ii) the Office of the Inspector General of 
                        the Department;
                            (iii) the Office of Civil Rights and Civil 
                        Liberties of the Department; or
                            (iv) any other relevant office or agency.
            (3) Report to congress.--
                    (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.
                    (B) Contents of report.--Each report required by 
                subparagraph (A) shall include--
                            (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; and
                            (ii) information regarding whether such 
                        actions were successful and resulted in 
                        compliance with detention standards.
            (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.
    (c) Cooperation With Other Offices and Agencies.--Whenever 
appropriate, the Administrator of the Office shall cooperate and 
coordinate its activities with--
            (1) the Office of the Inspector General of the Department;
            (2) the Office of Civil Rights and Civil Liberties of the 
        Department;
            (3) the Privacy Officer of the Department;
            (4) the Civil Rights Division of the Department of Justice; 
        or
            (5) any other relevant office or agency.
    (d) Deaths of Detainees.--The Secretary shall ensure that--
            (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--
                    (A) the Office of Detention Oversight, if the death 
                occurred in a detention facility;
                    (B) the Office of the Inspector General of the 
                Department;
                    (C) the legal representative of the deceased alien, 
                if the Department is on notice that a representative 
                has been retained on the alien's behalf;
                    (D) the immediate family of the deceased alien, if 
                the Department has contact information for an immediate 
                family member; and
                    (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;
            (2) a thorough investigation is conducted into each death 
        by--
                    (A) the Office of Detention Oversight;
                    (B) the Office of the Inspector General of the 
                Department; or
                    (C) another appropriate office with investigative 
                authority in the Department or other Federal agency; 
                and
            (3) a report describing the results of the investigation 
        into each death is provided to--
                    (A) the Secretary;
                    (B) the Committee on the Judiciary and Committee on 
                Homeland Security and Governmental Affairs of the 
                Senate; and
                    (C) the Committee on the Judiciary and the 
                Committee on Homeland Security of the House of 
                Representatives.

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.
    (b) Program Requirements.--
            (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.
            (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.
            (3) Aliens eligible for secure alternatives program.--
                    (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.
                    (B) Design of programs.--Secure alternatives 
                programs shall be designed to ensure sufficient 
                supervision of the population described in subparagraph 
                (A).
            (4) Contracts.--The Secretary shall enter into contracts 
        with qualified nongovernmental entities to implement the secure 
        alternatives program.
            (5) Other considerations.--In designing such program, the 
        Secretary shall--
                    (A) consult with relevant experts; and
                    (B) consider programs that have proven successful 
                in the past, including the Appearance Assistance 
                Program developed by the Vera Institute and the 
                Intensive Supervision Appearance Program.

SEC. 9. LESS RESTRICTIVE DETENTION FACILITIES.

    (a) Construction.--The Secretary shall facilitate the construction 
or use of secure but less restrictive detention facilities.
    (b) Criteria.--In developing detention facilities pursuant to this 
section, the Secretary shall--
            (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;
            (2) to the extent practicable, construct or use detention 
        facilities where--
                    (A) movement within and between indoor and outdoor 
                areas of the facility is subject to minimal 
                restrictions;
                    (B) detainees have ready access to social, 
                psychological, and medical services;
                    (C) detainees with special needs, including those 
                who have experienced trauma or torture, have ready 
                access to services and treatment addressing their 
                needs;
                    (D) detainees have ready access to programs and 
                recreation;
                    (E) detainees are permitted contact visits with 
                legal representatives and family members; and
                    (F) special facilities are provided to families 
                with children.
    (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--
            (1) procedures and conditions of detention are appropriate 
        for families with minor children; and
            (2) living and sleeping quarters for children under 14 
        years of age are not physically separated from at least 1 of 
        the child's parents.
    (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--
            (1) an asylum seeker;
            (2) part of a family with minor children;
            (3) a member of a vulnerable population; or
            (4) a nonviolent, noncriminal detainee.
    (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.

SEC. 10. AUTHORIZATION OF APPROPRIATIONS; EFFECTIVE DATE.

    (a) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as are necessary to carry out this Act.
    (b) Effective Date.--This Act and the amendments made by this Act 
shall take effect on the date that is 180 days after the date of the 
enactment of this Act.
                                 <all>
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