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Immigration Oversight and Fairness Act

03/03/09

Rep. Roybal-Allard’s Immigration Oversight and Fairness Act (H.R. XX)

Section by Section Summary by the

American Immigration Lawyers Association and Lutheran Immigration and Refugee Service

Although federal immigration authorities adopted generalized detention standards in 2000 and

recently issued performance-based detention standards, the immigration detention standards

have not been consistently implemented and they are not legally enforceable. As a result,

conditions of confinement for immigration detainees vary drastically across detention facilities

and have drawn harsh criticism by immigration advocates and human rights organizations. This

bill would ensure that the Department of Homeland Security’s own detention standards for the

treatment of immigrant detainees are followed by: (a) imposing certain critical standards by

statute and (b) requiring rulemaking that would improve the standards. The bill also creates and

expands alternatives to detention programs and enhances release and parole options for

vulnerable populations such as pregnant women and children. In addition, the bill includes

provisions to ensure that Unaccompanied Alien Children (UAC) are treated fairly and humanely

while in the custody of the Department of Homeland Security (DHS) and that they are

transferred safely and in a timely manner to the Office of Refugee Resettlement (ORR).

The bill includes the following provisions:

Section 1. Short Title.

Section 2. Enhanced Protections for Vulnerable Unaccompanied Alien Children and

Female Detainees.

This section outlines steps DHS must undertake to ensure that Unaccompanied Alien Children

(UAC) are treated fairly and humanely while in the custody of DHS and that they are transferred

safely and in a timely manner to the Office of Refugee Resettlement (ORR). The section also

requires DHS to establish policies governing age determinations of children, safe repatriation to

home countries, and protections for those at risk if returned.

(a) Mandatory Training: DHS, in consultation with ORR and independent experts, shall provide

training of all personnel who come into contact with UACs on relevant laws, policy, and

procedures pertaining to this vulnerable population.

(b) Care and Transportation: DHS shall transfer all UACs in immigration court proceedings to

the care and legal and physical custody of ORR within 24 hours of apprehension, except in

narrowly defined exceptional circumstances beyond DHS’s or ORR’s control such as a natural

disaster or comparable emergency.

qualified staff, including CBP agents charged primarily with safe and humane transportation of

UACs to ORR custody. DHS must provide independent licensed social workers to ensure the

proper care of children while in DHS custody, including provision of emergency medical care;

mental health care in case of trauma and access to psychosocial health services; a bed and

sufficient bed linens; adequate nutrition; a safe and sanitary living environment; educational

materials; and access to at least three hours per day of indoor and outdoor recreational programs

and activities.

(d) Notification: To facilitate safe transfers of children to ORR custody, this section requires

DHS to notify ORR immediately upon DHS taking custody of a UAC.

(e) Notice of Rights and Access to Counsel: DHS must ensure all UACs in its custody are

provided with both a video and written and oral orientation of their basic rights, including the

rights to relief from removal, their right to confer with counsel and family, and the availability of

complaint mechanisms for them to report abuse or misconduct. The DHS Secretary shall ensure

that the video orientation and written notice of rights is available in English and in the five most

common native languages spoken by the unaccompanied children held in custody at that location

during the preceding fiscal year, and that the oral notice of rights is available in English and in

the most common native language spoken by the unaccompanied children held in custody at that

location during the preceding fiscal year.

(f) Confidentiality: The Secretary of HHS shall maintain the privacy and confidentiality of all

information gathered in the course of providing care, custody, placement and follow-up services

to unaccompanied alien children, consistent with the best interest of an unaccompanied alien

child, by not disclosing such information to other government agencies or nonparental third

parties. HHS may share information when authorized to do so by the child and when consistent

with the child’s best interest. HHS may provide information to a duly recognized law

enforcement entity, if such disclosure would prevent imminent and serious harm to another

individual. All disclosures shall be duly recorded in writing and placed in the child’s files.

(g) Other Policies and Procedures: This section requires DHS to develop policies and procedures

1) to improve the age-determination process for children; 2) to ensure children are repatriated

safely to their home countries through programs developed in consultation with the Department

of State and ORR; 3) to utilize all legal authorities to defer removal for children at clear risk of

life-threatening harm if returned and 4) to ensure that unaccompanied alien children are

physically separated from any adult who is not an immediate family member and are separated

by sight and sound from immigration detainees and inmates with criminal convictions, pretrial

inmates facing criminal prosecution, children who have been adjudicated delinquents or

convicted of adult offenses and/or are pending delinquency or criminal proceedings, and those

inmates exhibiting violent behavior while in detention as is consistent with the Juvenile Justice

and Delinquency Prevention Act.

Section 3. Detention Conditions.

This section would ensure that the Department of Homeland Security’s own detention standards

for the treatment of immigrant detainees are followed by: (a) imposing certain critical standards

by statute and then (b) requiring rulemaking that would improve the standards. The rulemaking

would be based on the report of a detention advisory committee composed of government and

non-governmental experts.

(a) DETENTION REQUIREMENTS:

All detention facilities shall fully comply with the following minimum requirements:

(1) ACCESS TO TELEPHONES:

• Detention facilities shall provide reasonable and equitable access to working telephones

during detention facility working hours and on an emergency basis and the ability to contact

free of charge, legal representatives, foreign consulates, the immigration courts, the Board of

Immigration Appeals, the Federal courts, and all others who are contacted for the purpose of

obtaining legal representation.

• Detention facilities shall provide detainees with copies of rules governing phones access in

appropriate languages and oral interpretation or written translation assistance so that

detainees may read any relevant materials related to telephone access.

• Detention facilities shall ensure that telephone rates are reasonable and equitable and shall

not significantly impair the detainees’ access to telephones.

• Detention facilities shall make a reasonable number of working phones available to detainees

and, at a minimum, one phone per each 25 users.

• Detention facilities shall place no restriction on number or frequency of calls to legal

counsel.

• Detention facilities shall ensure detainee’s telephone calls to a court, legal representative or

consular official shall not be monitored or recorded without a court order and without prior

notification to the detainee.

• Detention facilities shall take and deliver telephone messages to detainees no less than twice

a day, and permit detainees to return calls confidentially within 8 hours of receipt of a

message left by legal counsel or a consular official.

(2) QUALITY OF MEDICAL CARE:

• Detention facilities shall provide a continuum of high-quality medical care, including care for

medical needs that existed prior to detention. Such medical care shall address all detainee

health needs and shall include chronic care, dental care, eye care, mental health care,

individual and group counseling, medical dietary needs, and other medically necessary

specialized care.

• All detention facilities shall maintain current health care accreditations by the National

Commission on Correctional Health Care and the Joint Commission on the Accreditation of

Health Care Organizations. Detention facilities must be accredited within a specified

timeframe or DHS shall cease use of the facility.

• All detention facilities shall have a designed on-site health authority to treat detainees and

clinical decisions shall be made solely by a licensed health care provider.

• Each detainee shall receive a comprehensive medical and mental health intake screening by a

qualified health care professional upon arrival and each detainee shall receive a

comprehensive medical and mental health examination by a health care professional not later

than 14 days after arrival.

• Any decision to deny requested medical care or treatment recommended by any outside

physician or specialist shall be made within 72 hours or earlier if medically necessary and

shall be accompanied by a written explanation of the reasons for the denial. DHS shallcommunicate in writing to the detainee

and DHS Secretary any denial of requested treatment.

Detainees shall be afforded an opportunity to appeal any decisions denying a request for

medical treatment. Such an appeal or request for reconsideration shall be resolved in writing

within 7 days or earlier if medically necessary by an appeals board that shall be composed of

independent health care professionals in the fields relevant to the request for medical or

mental health care. The written decision shall be conveyed to the on-site medical provider

and the immigration detainee within 24 hours of a decision by the appeals board.

• Except in emergency situations where informed consent cannot be obtained, medical care

shall only be provided with the informed consent of the detainee.

• Involuntary psychotropic medication may only be used in certain emergency situations, and

must be disclosed to the detainee’s counsel. If a detainee is not represented by counsel, the

administration of any psychotropic drug to the detainee shall be disclosed to the Immigration

Court prior to any hearing in which the detainee will appear subject to confidentiality

provisions. Any detainee who receives medication must be afforded a hearing before

receiving medication again.

• Drugs shall not be administered to detainees without informed consent for the purpose of

sedation or controlling the detainee’s behavior during transport or removal or for

punishment.

• Detention facilities shall maintain complete, confidential medical records for every detainee

which shall be made available within 72 hours to any detention facility where the individual

is transferred. Medical records shall be made available within 72 hours to the detainee or his

or her representative. All records shall be treated confidentially as required by HIPPA.

• The DHS Secretary must report information on any in-custody detainee deaths to Congress

semi-annually, and to the DHS Inspector General within 48 hours of any in-custody death.

The report shall include basic information regarding the detainee; the date and location of the

death; a brief description of the circumstances surrounding the death; the status and results of

any investigation that has been conducted; the locations where the detainee had been held;

and the medical records of the deceased.

• All detainee transfers shall take into consideration detainee health during transfer and ensure

continuity of care without interruption including the provision of prescription medicines

during and after transfer.

(3) SEXUAL ABUSE REGULATIONS CONCERNING CARE AND CUSTODY OF DETAINEES:

• Detention facilities shall take all necessary measures to prevent sexual abuse of detainees

including sexual assaults and shall observe the minimum standards under the Prison Rape

Elimination Act.

• Where sexual abuse occurs, detention facilities shall ensure that prompt and appropriate

medical intervention is taken to minimize the medical and psychological trauma; a medical

history is taken and a physical examination is conducted to determine the extent of injury and

whether a transfer to a medical facility is required; prophylactic treatment, emergency

contraception and follow-up for STDs is provided; the case is evaluated by a qualified mental

health professional; victims are separated from their abusers and considered for parole or an

alternatives to detention program; and any and all medical records are treated as confidential

• A detention facility shall not subject any person to punishment or retaliation for reporting

incidences of sexual abuse.

• The facility shall conduct a thorough and timely investigation of all cases of alleged sexual

abuse, and provide the DHS Secretary with a report of the circumstances and response of the

facility. The report shall include a determination of whether the sexual abuse occurred; an

analysis of the relevant facts and whether the abuse indicates a policy failure, lack of training

or other factors; a description of the actions that the facility will take to prevent the

occurrence of similar incidents; and a plan for monitoring implementation.

(4) TRANSFER:

• The DHS Secretary shall adopt procedures governing transfer of detainees giving primary

consideration to the detainee’s access to legal representation; ability to prepare a legal

defense in immigration proceedings; legal venue of proceedings; and the impact on the

detainee’s health and medical fitness. The procedures shall give secondary consideration to

the detainee’s residence and the location of family members.

• Unless exigent circumstances dictate an immediate transfer is required, the DHS Secretary

shall provide not less than 72 hours notice to any detainee prior to transferring the detainee to

another detention facility. Detainees shall be afforded at least one toll-free call following any

transfer. Within 24 hours after the detainee’s arrival at the new facility, the DHS Secretary

shall notify the detainee’s legal representative or if unrepresented, an adult family member or

other person designated by the detainee, of the transfer and the detainee’s new location. If

removal proceedings are pending, the DHS Secretary shall also promptly notify the relevant

court of the transfer and the detainee’s new address and DHS shall not transfer any detainee

who has already requested, and is awaiting, a bond hearing.

• If the Secretary determines that a transfer is necessary due to a highly unusual emergency,

the Secretary shall ensure that the detainee’s legal rights are not prejudiced and the existing

attorney-client relationship is not impaired, including evaluating the location of the detention

facility based on it proximity to the detainee’s counsel or non-governmental or pro bono

organizations providing free or low cost immigration legal services.

• Detainees shall be afforded at least one toll-free call following any transfer. Within 24 hours

after the detainee’s arrival at the new facility, DHS shall notify the detainee’s legal

representative of the transfer and the detainee’s new location. DHS shall notify the courts as

appropriate regarding the transfer.

(5) NOTICE:

• The DHS Secretary must file and serve a Notice to Appear on the detainee and with the

Immigration Court within 48 hours of detaining an alien and provide a custody determination

hearing within 72 hours. The requirements of the provision may be tolled for no more than

30 days upon a written request from an alien who demonstrates eligibility for immigration

relief. DHS shall document when the notice to appear is served on the detainee and submit to

Congress a report regarding compliance with the requirement.

(b) REGULATIONS CONCERNING CARE AND CUSTODY OF DETAINEES

(1) RULE MAKING/DETENTION

• The DHS Secretary shall promulgate new rules or modify existing rules based on the report

of a detention advisory committee to ensure detainees are treated humanely and held in the

least restrictive setting necessary for their safety and to ensure compliance with the general

minimum requirements set forth in this bill including the standards regarding classification of

detainees and the special standards regarding the treatment of vulnerable populations. The

rules must be promulgated within 1 year of receiving the report from the Detention Advisory

Committee or within 1 year after the report is due, whichever date is earlier.

(2) DETENTION ADVISORY COMMITTEE

• The DHS Secretary shall convene and receive a report from a detention advisory committee

composed of an equal number of government and agency officials and independent experts

from nongovernmental and intergovernmental organizations with expertise in working on

behalf of detainees and vulnerable populations. The committee shall include representatives

from the American Bar Association and UNHCR. The committee shall review and revise all

the guidelines found in the DHS Detention Operations Manual based on identifiable

deficiencies and best practices that treat detainees both safely and humanely. The committee

shall submit a report to the Secretary within 12 months after the date of enactment of this Act

which may be extended for 6 months for good cause.

(3) TRAINING: The DHS Secretary shall develop and implement a implement a training protocol

for all personnel in all facilities in which noncitizens are detained. The training protocol shall

include periodic updates to initial comprehensive training. The agency shall monitor the

implementation of the protocol annually and shall ensure that all personnel who are required to

be trained under the protocol have received the necessary training. The protocol shall include-(i)

an overview of immigration detention and the characteristics of the noncitizen detainee

population; (ii) an overview of the detention standards; (iii) specific guidance on each of the

detention standards; (iv) a description of the agency’s quality assurance procedures.

(4) GENERAL MINIMUM REQUIREMENTS: The Secretary’s rules shall ensure that the following

minimum requirements are met:

• Fair and Humane Treatment: Detainees shall not be subjected to cruel, degrading or

inhumane treatment.

• Use of Force and Restraints: Detainees shall not be subjected to shackling, handcuffing,

solitary confinement, Tasers, electric shields, restraint chairs, or strip searches unless and to

the extent that such techniques are necessary to ensure the security of detainees, staff or the

public and where no less coercive and degrading measures are available.

• Investigation of Grievances: Detainees have the right to prompt, effective, transparent and

impartial grievance procedures. Such procedures shall include review of grievances by DHS

officials who do not work at the same facility. An otherwise valid grievance shall not be

denied for non-compliance with procedural requirements due to ignorance, fear, excusable

neglect or other reasonable cause. Detainees shall be given the opportunity to complain to

ICE directly and confidentially. Detainees shall not be subject to retaliation for making use

of the grievance procedures. Detention facilities shall orally and in writing inform detainees

about the grievance procedure and provide translation and interpretation assistance.

Detention centers shall make an annual report to the DHS Secretary regarding the grievances.

All grievances shall be investigated.

• Location of Facilities: Whenever practical, detention centers are be located within 50 miles

of a city where there is a demonstrated capacity to provide competent legal representation by

non-profit organizations or pro bono organizations. Sets a compliance goal of 2012.

• Access to Legal Materials: Detainees shall have access to an on-site law library including upto-

date copies of legal materials. The law library shall include equipment for legal research

including computers, printers, typewriters and copiers. Information regarding use of the

library shall be provided to detainees at the time of admission. DHS shall provide assistance

to detainees who are not literate in English. Library services shall be provided free of charge.

• Legal Visits: Legal visits shall not be restricted absent narrowly defined exceptional

circumstances, including a natural disaster or comparable emergency beyond the control of

the DHS. Detainees are entitled to private meetings with their current or prospective legal

representatives. Interpreters shall be permitted to accompany legal representatives during

visits. Legal visits may be conducted during the work day including a minimum of 8 hours

per day on regular business days and 4 hours per day on weekends and holidays. Detention

facilities shall maintain a procedure allowing legal representatives to call ahead to determine

if a detainee is held by the facility. Messengers shall be permitted to deliver documents to

and from the facility. Detainees shall post the most current list of pro bono legal

organizations and their contact information. Detention facilities may not retaliate in any way

for complaints made by legal representatives regarding conditions of detention.

• Special correspondence: Special correspondence shall not be read by detention facility staff

nor opened outside the presence of the detainee. Special correspondence includes written

communications to private attorneys; officers of the court; consular officials; members of

Congress; DOJ, DHS or public health personnel; the media; nongovernmental organizations

(NGOs); intergovernmental organizations; and others. Special correspondence shall be

promptly delivered and posted.

• Access to Detention Facilities: Detention facilities shall afford reasonable access to NGOs;

community service organizations; consular officials; DOJ, DHS or public health personnel;

members of Congress and their staff, intergovernmental organizations; the media, and others

subject to reasonable conditions to protect the security of the facility. Independent observers,

including nongovernmental organizations shall be permitted to conduct site visits, meet

privately with detainees, test telephones and pro bono calling platforms, and take other

reasonable steps to monitor compliance with regulations regarding conditions of detention.

Such observers and organizations shall not be prohibited from issuing public reports on the

findings of monitoring visits. Detention facilities shall accommodate requests for facility

tours within a reasonable time not to exceed one week. Access by media representatives may

only be restricted to preserve the privacy of detainees, the security and good order of the

facility, safety of the interviewer, national security or other obligation imposed by law or

court order. Access may not be restricted based on the media representative’s reporting.

Retaliation for content of speech is prohibited. Detention facilities may not retaliate against

any visitor for complaints or statements regarding the conditions of detention.

• Translation Capabilities: Detention facilities shall employ staff that is qualified in the

languages represented in the detainee population and shall provide alternative translation

services where necessary.

• Recreational Programs and Activities: Detainees must be afforded daily access to

recreational programs and activities.

• Safe and Sanitary Living Environment: Detention facilities may house no more individuals

than is permitted by the rated bed capacity for the facility. Detainees must receive

appropriate clothing and bedding.

• Legal Orientation to Ensure Effective Legal Proceedings: All alien detainees shall receive

the legal orientation program including, for unaccompanied alien children, a child-centered

model from an independent non-governmental organization as implemented by the Executive

Office for Immigration Review in order to both maximize the efficiency and effectiveness of

immigration proceedings and to reduce detention costs.

(5) Classification: DHS shall ensure that detainees with no history of criminal conviction are

separated by sight and sound from detainees with criminal convictions, pretrial inmates facing

criminal prosecution, and those inmates exhibiting violent behavior in detention.

(6) Vulnerable Populations: DHS’s rules regarding conditions of detention for vulnerable

populations shall 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 needs; and other vulnerable populations listed in this bill. DHS shall ensure that

procedures and conditions of detention are appropriate for vulnerable populations.

(7) Staffing: The DHS Secretary shall appoint at least three individuals to the Director of Policy

with expertise in working with vulnerable populations who shall be responsible for setting,

implementing and overseeing policy and regulatory development concerning vulnerable

populations.

Section 4. Secure Alternatives to Detention.

This section requires DHS to implement a secure alternatives to detention program that releases

eligible alien detainees into programs of supervision and monitoring and ensures their

appearance at immigration court hearings. The program requires DHS to release vulnerable

aliens on recognizance, parole or bond, and alternatively in secure alternatives to detention

programs. This section also requires DHS to implement less restrictive custodial detention, such

as ankle bracelets, for those not found eligible for release in the above categories. Finally, DHS

is required to develop facilities that offer the least restrictive setting for aliens in detention.

(a) In General: DHS shall implement secure alternative to detention programs.

(b) Secure Alternatives to Detention Programs:

Secure alternatives to detention are programs under which aliens are released under supervision,

assistance and monitoring to ensure they appear at all immigration proceedings. The programs

will be designed in consultation with a broad array of experts and will employ a continuum of

levels of supervision. Non-governmental organizations and state and local social service

agencies will provide group and individual screenings and services to participants. All

participation by aliens will be voluntary. All participants in these programs will participate in a

legal orientation program administrated by the Executive Office for Immigration Review.

Within 72 hours, DHS must screen each detainee to determine if the individual belongs to a

vulnerable population group. Any individual described as a vulnerable population who meets the

criteria set forth under section 236(b) shall be released on parole, a reasonable bond, or the

alien’s own recognizance.

Vulnerable populations include individuals who: have serious medical or mental health needs;

are pregnant or nursing; are detained with their children; are under 18 or over 65 years of age;

are the victims of abuse or human trafficking; individuals who have demonstrated a credible fear

of persecution or a reasonable fear of torture; torture survivors; individuals who have nonfrivolous

claims to U.S. citizenship; and individuals who are eligible for relief under the

Immigration and Nationality Act.

(d) Options Regarding Detention Decisions for Vulnerable Populations:

INA Section 236 is amended by inserting a new paragraph providing that DHS may enroll aliens

in secure alternatives to detention programs. This section creates a new paragraph within INA

Section 236 regarding custody decisions for vulnerable populations. Not later than 72 hours after

an individual is detained under this section, if the individual is a member of a vulnerable

population, the individual shall be released from DHS custody and shall not be subject to

electronic monitoring unless the Department demonstrates that the individual is subject to

mandatory detention; poses a flight risk, or the individual is a risk to others or a risk to the

national security of the U.S. An individual shall be released under this section on the individual’s

own recognizance, by posting a minimum bond, or on parole in accordance with INA

212(d)(5)(A).

Participation in Alternatives to Detention. An alien who is denied release on recognizance,

parole or bond or is unable to pay the bond shall be selected for participation in a secure

alternatives to detention program unless DHS demonstrates by substantial evidence that the alien

is subject to mandatory detention or the alien is a flight risk or the alien’s participation in the

program would create a risk to others or national security. In the case of a decision under this

section, the decision shall be made in writing and shall be served upon the individual in the

language spoken by the individual. A decision to continue detention without bond or parole shall

specify in writing the reasons for that decision. The decision shall be served upon the alien

within 72 hours after the commencement of the alien’s detention or not later than 72 hours after a

positive credible fear or reasonable fear of torture determination.

Any alien detained under this section may request a redetermination of the decision by an

immigration judge. All custody decisions by the Secretary shall be subject to redetermination by

an immigration judge. Nothing in the section shall be construed to prevent an individual from

requesting a bond redetermination. The Attorney General or an immigration judge may at any

time redetermine an alien’s classification, the bond of someone released or the custody status of

someone placed in an alternatives to detention program.

(e) Eligibility and Operations: Nothing in this section shall be construed to modify the care and

custody of unaccompanied alien children who shall be considered to be in the care and custody

of the Department of Health and Human Services.

(f) Less Restrictive Custodial Detention: Aliens who are determined not to meet the requirements

for release on recognizance, parole, or bond, and subsequently do not meet the requirements for

secure alternatives to detention shall be considered for placement in less restrictive forms of

custodial detention, which consist of ankle bracelets, electronic monitoring and similar devices.

Any use of electronic monitoring for an alien shall be made on an individual basis. Aliens

subject to mandatory detention pursuant to INA §236 may be placed in less restrictive custodial

detention. DHS shall develop facilities that offer the least restrictive custodial setting for aliens

in detention.

Section 5. Program Oversight and Review

(a) Relationships of Application to Certain Orders: Aliens present in the United States who have

been ordered excluded, removed, deported or ordered to depart voluntarily may nonetheless be

selected for secure alternatives to detention and shall not be required to file a separate motion to

reopen, reconsider, or vacate such orders.

(b) Implementing Regulations: Requires DHS to issue regulations within 6 months of

enactment.

annually thereafter to the House Committees on Homeland Security and on the Judiciary and the

Senate Committees on Homeland Security and Governmental Affairs and on the Judiciary. The

reports shall detail all policies, regulations, and actions DHS has taken to comply with this Act,

specifically efforts to increase use of secure alternatives to detention and to improve conditions

of detention.

(d) Authorization of Appropriation: This section authorizes appropriations to DHS to implement

this Act.

AILA InfoNet Doc. No. 09022767. (Posted 02/27/09

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