Text: S.1594 — 111th Congress (2009-2010)All Information (Except Text)

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Introduced in Senate (08/06/2009)


111th CONGRESS
1st Session
S. 1594


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

August 6, 2009

Mr. Lieberman (for himself, Mr. Kennedy, and Mr. Akaka) 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)).

(H) Families with children.

(I) Detainees with serious medical or mental health needs.

SEC. 3. Procedures for ensuring accuracy and verifiability of sworn statements taken pursuant to expedited removal authority.

(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) Recording of interviews.—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 inserting “or the Secretary” after “Attorney General”;

(B) in paragraph (2)—

(i) in subparagraph (A)—

(I) by inserting “or the Secretary” after “Attorney General”; 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 48 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 48 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 Attorney General and the Secretary 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 humanitarian reasons that may warrant the alien's release.

“(3) CUSTODY REDETERMINATION.—An alien subject to this section may at any time after being served with the Secretary’s decision under subsection (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. The Secretary shall advise the alien at the time the alien is served with the Secretary's decision under subsection (a) or (d) of the opportunity for requesting a redetermination under this paragraph.

“(c) Exception for mandatory custody and mandatory detention.—Subsections (b)(2) and (b)(3) shall not apply to any alien who is subject to mandatory detention under sections 235(b)(1)(B)(iii)(IV) or 241(a)(2) or to mandatory custody under sections 236(e) or 236A.”;

(4) in subsection (d), as redesignated—

(A) by striking “Attorney General at any time may” and inserting “Secretary may at any time, based on changed circumstances,”; and

(B) by striking “or parole” and inserting “, parole, or decision to release an alien;”;

(5) in subsection (e), as redesignated—

(A) in paragraph (1), by striking “Attorney General” and inserting “Secretary”; and

(B) by amending paragraph (2) to read as follows:

“(2) RELEASE.—

“(A) IN GENERAL.—The Secretary may release an alien described in paragraph (1) only if—

“(i) the alien satisfies the Secretary that the alien will not pose a danger to the safety of persons or property and is likely to appear for any scheduled proceeding; and

“(ii)(I) the Secretary decides pursuant to section 3521 of title 18, United States Code, that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation; or

“(II) the Secretary decides that the release is necessary for humanitarian reasons.

“(B) PROCEDURE.—A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.”;

(6) in subsection (f), as redesignated—

(A) in paragraph (1)—

(i) in the matter preceding subparagraph (A), by striking “Attorney General” and inserting “Secretary”; and

(ii) in subparagraphs (A) and (B), by striking “Service” and inserting “Department of Homeland Security”; and

(B) 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.—

“(1) IN GENERAL.—If an immigration judge’s custody decision has been stayed by the action of an officer or employee of the Department of Homeland Security pending an appeal of that decision, 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.

“(2) EFFECT OF CONTINUING STAY.—If the Board of Immigration Appeals enters an order continuing the stay described in paragraph (1), the Board of Immigration Appeals shall adjudicate the bond appeal not later than 90 days after the date the custody decision was first stayed, and the stay shall expire if the Board has not acted before the expiration of the 90 days.”; 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 the Legal Orientation Program administered and implemented by the Executive Office for Immigration Review of the Department of Justice.

(b) 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 all detention facilities comply with the following minimum requirements:

(1) FAIR AND HUMANE TREATMENT.—Detainees shall not be subject to degrading or inhumane treatment, such as physical abuse, sexual abuse or harassment, or arbitrary punishment.

(2) LIMITATIONS ON SOLITARY CONFINEMENT.—Detainees shall not be subject to solitary confinement, shackling, or strip searches, except to the extent that such techniques are necessary to ensure the security of other detainees, staff, or the public and only if less coercive measures will not ensure the security of other detainees, staff, and the public. Decisions to place detainees in solitary confinement shall be reviewed regularly.

(3) INVESTIGATION OF GRIEVANCES.—Detainees shall have the right to prompt, effective, and impartial investigations of grievances.

(4) ACCESS TO TELEPHONES.—Detainees shall have sufficient access to telephones, and the ability to contact, free of charge, legal representatives, foreign consulates, the immigration courts, the Board of Immigration Appeals, and the Federal courts through confidential toll-free numbers.

(5) LOCATION OF FACILITIES.—Detention facilities shall be located, 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 shall 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) INTERPRETATION AND TRANSLATION CAPABILITIES.—Detention facilities shall employ staff that, to the extent practicable, are qualified in the languages represented in the population of detainees at a detention facility, and alternative interpreter and translation services shall be provided when necessary.

(8) RECREATIONAL PROGRAMS AND ACTIVITIES.—Detainees shall be afforded daily access to indoor and outdoor recreational programs and activities.

(9) NONCRIMINAL DETAINEES.—Procedures and conditions of detention shall be appropriate for detainees with no criminal convictions or history of violent behavior, and those detainees shall not be detained with persons who have been convicted of felonies or criminal offenses involving violence or persons with a history of violent behavior.

(10) VULNERABLE POPULATIONS.—Procedures and conditions of detention shall accommodate the unique needs of asylum seekers, victims of torture and trafficking, families with children, detainees who do not speak English, detainees with special religious, cultural, or spiritual considerations, and other vulnerable populations.

(b) Rulemaking.—

(1) IN GENERAL.—The Secretary shall prescribe regulations, using the procedures for negotiated rulemakings under subchapter III of chapter 5 of title 5, United States Code, to establish standards to ensure detainees are treated humanely and to ensure compliance with the minimum requirements set forth in subsection (a).

(2) REPRESENTATION ON NEGOTIATED RULEMAKING COMMITTEE.—Any negotiated rulemaking committee established by the Secretary pursuant to paragraph (1) shall include representatives and experts from—

(A) relevant agencies of the Department;

(B) the Office of Refugee Resettlement at the Department of Health and Human Services;

(C) representatives of State and local governments that have entered into intergovernmental service agreements with the Department to detain aliens;

(D) the United States Commission on International Religious Freedom;

(E) nongovernmental organizations with expertise working on behalf of aliens in detention facilities, including organizations that emphasize protections for vulnerable populations;

(F) nongovernmental organizations with expertise advocating for asylum seekers;

(G) organizations that represent employees who work at detention facilities;

(H) accrediting bodies for medical care in settings comparable to detention facilities, such as the National Commission on Correctional Health Care, or other experts in the field of providing quality medical care in such settings; and

(I) other interested parties.

(3) TIME REQUIREMENT.—The procedures for the negotiated rulemaking referred to in paragraph (1) shall be conducted in a timely manner to ensure that—

(A) any recommendations with respect to proposed regulations are provided to the Secretary not later than 6 months after the date of enactment of this Act; and

(B) a final rule is promulgated not later than 1 year after the date of enactment of this Act.

(c) Enforcing regulations and standards.—

(1) IN GENERAL.—The Secretary shall ensure that all detention facilities comply with the requirements and regulations promulgated pursuant to this Act, and any other applicable requirements.

(2) CONTRACTS FOR ADMINISTRATION OF FACILITIES.—The Secretary shall ensure that any contract that the Department enters into for the administration of a detention facility includes provisions that—

(A) require the contractor to comply with the requirements and regulations promulgated pursuant to this Act, and any other applicable requirements; and

(B) permit the Secretary to impose fines or penalties for noncompliance with those requirements and regulations.

(3) INTERGOVERNMENTAL SERVICE AGREEMENT FACILITIES.—The Secretary shall ensure that any intergovernmental service agreement that the Department enters into with a State or local government to detain an alien includes provisions that—

(A) require the State or local government to comply with the requirements and regulations promulgated pursuant to this Act, and any other applicable requirements; and

(B) permit the Secretary to impose fines or penalties for noncompliance with those requirements or regulations.

(4) BUREAU OF PRISONS FACILITIES.—The Attorney General, in coordination with the Secretary, shall ensure that aliens that are detained pursuant to an agreement between the Department and the Department of Justice in facilities operated by the Bureau of Prisons pending proceedings or awaiting deportation under provisions of the Immigration and Nationality Act, are detained in compliance with the requirements of, and regulations promulgated pursuant to, this Act, and any other applicable requirements.

(d) Quality of medical care.—

(1) IN GENERAL.—The Secretary shall ensure that prompt and adequate emergency, primary, specialty, and hospital medical care is provided at no cost to detainees, including dental care, eye care, mental health care, individual and group counseling, and services with respect to medical dietary needs.

(2) PROCEDURES.—The Secretary shall ensure that procedures for providing medical care to detainees include comprehensive intake screening, effective continuity of care, prompt responses to requests for medical care or treatment, and accurate and timely distribution of prescribed medication.

(3) MEDICAL FACILITIES.—The Secretary shall ensure that medical facilities in all detention facilities maintain current accreditation by the National Commission on Correctional Health Care.

(4) MEDICAL RECORDS.—The Secretary shall ensure that complete medical records are maintained for every detainee and that the records are made available upon request to the detainee, the detainee's legal representative, or other authorized individuals.

(e) 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 asylum seekers, victims of torture or other trauma, and 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 regarding a detention facility’s noncompliance with detention standards and any applicable laws.

(2) INVESTIGATIONS.—The Administrator of the Office shall—

(A) initiate investigations, as appropriate, into allegations of systemic problems at detention facilities, incidents that constitute violations of detention standards or applicable laws, 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 on a timely basis 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;

(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;

(F) the Committee on the Judiciary and the Committee on Homeland Security and Governmental Affairs of the Senate; and

(G) the Committee on the Judiciary and the Committee on Homeland Security of the House of Representatives;

(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 the 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.

(2) UTILIZATION OF ALTERNATIVES.—The secure alternatives program shall utilize a continuum of alternatives based on the alien’s need for supervision, which may include placement of the alien with an individual or organizational sponsor, or in a supervised group home.

(3) ELEMENTS OF PROGRAM.—The elements of a secure alternatives program shall include—

(A) individualized case management by an assigned case supervisor; and

(B) referral to community-based providers of legal and social services.

(4) RESTRICTIVE ELECTRONIC MONITORING.—Restrictive electronic monitoring devices, such as ankle bracelets, may be used only when there is a demonstrated need for such enhanced monitoring, and any decision to require such a device shall be reviewed periodically.

(5) 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, as amended by section 4, or who are released pursuant to section 236(e)(2) of such Act, as so amended, 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).

(6) CONTRACTS.—The Secretary shall enter into contracts with qualified nongovernmental entities to implement the secure alternatives program.

(7) 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 implementing the requirements of paragraph (1), the Secretary shall—

(1) consider the design, operation, and conditions of existing secure but less restrictive detention facilities;

(2) 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 are not placed in handcuffs, shackles, or solitary confinement within the facility;

(E) facility staff are specially trained to address the needs of vulnerable populations;

(F) detainees have ready access to programs and recreation, including a full range of varied daily activities and classes; and

(G) detainees are permitted contact visits with legal representatives and family members.

(c) Placement in less restrictive facilities.—In deciding whether to place a detainee in a secure but less restrictive detention facility, the Secretary shall consider whether the detainee is—

(1) a member of a vulnerable population; or

(2) a nonviolent, noncriminal detainee.

(d) Facilities for families with children.—The following requirements shall apply with respect to families with children:

(1) Families with minor children shall not be held in detention facilities except when justified by exceptional circumstances, when required by law, or when necessary to expedite prompt removal pursuant to section 235(b)(1)(B)(iii).

(2) In cases where release or a secure alternatives program is not an option, the Secretary shall ensure that—

(A) special detention facilities are designed to house parents with their minor children, taking into account the particular needs and vulnerabilities of minor children;

(B) procedures and conditions of detention are appropriate for families with minor children;

(C) entities with demonstrated experience and expertise in child welfare participate in the management of facilities housing families with their minor children; and

(D) individualized reviews of each family’s well being and the need for continued detention are conducted monthly.

(e) Discretionary waiver authority for families with children.—Section 235(b)(1)(B)(iii) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(B)(iii)) is amended—

(1) in subclause (IV), by striking “Any alien” and inserting “Except as provided in subclause (V), any alien”; and

(2) by adding at the end the following:

“(V) DISCRETIONARY WAIVER AUTHORITY FOR FAMILIES WITH CHILDREN.—The Secretary of Homeland Security may decide for humanitarian reasons not to detain families with minor children who are otherwise subject to mandatory detention under subclause (IV).”.

(f) Regulations.—The Secretary shall prescribe such regulations as are necessary to implement this section.

SEC. 10. Study on the effect of expedited removal provisions, practices, and procedures on asylum claims.

(a) Study.—

(1) IN GENERAL.—The United States Commission on International Religious Freedom (in this section referred to as the “Commission”) is authorized to conduct a study to determine whether immigration officers described in paragraph (2) are engaging in conduct described in paragraph (3).

(2) IMMIGRATION OFFICERS DESCRIBED.—An immigration officer described in this paragraph is an immigration officer performing duties under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b)) with respect to aliens who are apprehended after entering the United States and who may be eligible to apply for asylum under such section or section 208 of such Act (8 U.S.C. 1158).

(3) CONDUCT DESCRIBED.—Conduct described in this paragraph is the following:

(A) Improperly encouraging an alien referred to in paragraph (2) to withdraw or retract claims for asylum.

(B) Incorrectly failing to refer such an alien for an interview by an asylum officer for a determination of whether the alien has a credible fear of persecution (within the meaning of section 235(b)(1)(B)(v) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(B)(v))).

(C) Incorrectly removing such an alien to a country where the alien may be persecuted.

(D) Detaining such an alien improperly or in inappropriate conditions.

(b) Report.—Not later than 24 months after the date on which the Commission initiates the study conducted under subsection (a), the Commission shall submit a report containing the results of the study to—

(1) the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, and the Committee on Foreign Relations of the Senate; and

(2) the Committee on Homeland Security, the Committee on the Judiciary, and the Committee on Foreign Affairs of the House of Representatives.

(c) Staff.—

(1) FROM OTHER AGENCIES.—At the request of the Commission, the Secretary, the Attorney General, and the Comptroller General of the United States shall authorize staff designated by the Commission who are recognized for their expertise and knowledge of refugee and asylum issues to assist the Commission in conducting the study under subsection (a).

(2) HIRING OF STAFF.—The Commission may hire additional staff and consultants to conduct the study under subsection (a).

(3) ACCESS TO PROCEEDINGS.—

(A) IN GENERAL.—Except as provided in subparagraph (B), the Secretary and the Attorney General shall permit staff designated under paragraph (1) or hired under paragraph (2) to have unrestricted access to all stages of all proceedings conducted under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b)).

(B) EXCEPTIONS.—The Secretary and the Attorney General shall not permit unrestricted access pursuant to subparagraph (A) in any case in which—

(i) an alien that is subject to a proceeding conducted under section 235(b) of the Immigration and Nationality Act objects to such access; or

(ii) the Secretary or Attorney General determines that the security of a particular proceeding would be threatened by such access.

SEC. 11. 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.—Except as specifically provided in sections 6 and 7, 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.