Sec. 3. Secure alternatives to detention
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Subject to the availability of appropriations, the Secretary of Homeland Security shall fully implement and utilize secure alternatives to detention programs. For purposes of this section, the programs referred to in subsection
(a)are programs under which eligible aliens are released under supervision, assistance and monitoring that ensure they appear at all immigration interviews, appointments, and hearings. The elements of the secure alternatives to detention programs are— group presentations and individual screening; provision of services to aliens released; and on-going assistance, supervision, and monitoring. An alien’s participation in the program is voluntary and shall not confer any rights or benefits to the alien under the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. ). The program shall be developed in accordance with the following guidelines: The Secretary of Homeland Security shall design the program in consultation with nongovernmental organizations and academic experts in both the immigration and the criminal justice fields. All aliens in the custody of the Secretary of Homeland Security deemed eligible for secure alternatives to detention programs shall be released in the least restrictive setting needed to ensure appearance at all immigration interviews, appointments and hearings. The programs shall utilize a continuum of methods, including releasing the alien to an individual or organizational sponsor, a supervised group home, or a supervised, non-penal community setting. Nongovernmental organizations and State and local social service agencies that serve immigrants shall be contracted to conduct group and individual screening and provide services to program participants. The Secretary of Homeland Security shall ensure that each alien participates in a legal presentation provided through the legal orientation presentation program administered by the Executive Office for Immigration Review. Within 72 hours of detaining an alien, the Secretary of Homeland Security shall screen the alien to determine if he or she falls into the following designated groups. Any alien described in the following designated groups who meets the criteria set forth under section 236(b) of the Immigration and Nationality Act, as amended by this Act, shall be released on parole, a reasonable bond, or the alien’s own recognizance subject to the requirements of such section 236(b): Aliens who have serious medical or mental health needs or a disability. Pregnant or nursing women. Aliens who are being detained with one or more of their children. Aliens who provide financial, physical, and other direct support to their minor children, parents, or other dependents. Aliens who are over the age of 65. Children (as defined at section 101(c)(1) of the Immigration and Nationality Act (8 U.S.C. 1101(c)(1))). Victims of abuse, violence, crime or trafficking. Asylum seekers and torture survivors who have demonstrated a credible fear of persecution or a reasonable fear of torture. Other groups designated in regulations or guidance promulgated after the date of the enactment of this Act by the Secretary of Homeland Security. Individuals who have a nonfrivolous claim to United States citizenship or aliens who are eligible for relief under a provision of the Immigration and Nationality Act. Section 236 of the Immigration and Nationality Act ( 8 U.S.C. 1226 ) is amended— in subsection (a)— in the matter preceding paragraph (1), by striking
(c)and inserting
(d); in paragraph (2)— in subparagraph (A), by striking or at the end; in subparagraph (B), by striking but at the end; and by inserting after subparagraph
(B)the following: the alien’s own recognizance; and ; by redesignating paragraph
(3)as paragraph (4); and by inserting after paragraph
(2)the following: may enroll the alien in a secure alternatives to detention program; but ; by redesignating subsections (b), (c), (d), and
(e)as subsections (e), (f), (g), and
(h)respectively; by inserting after subsection
(a)the following: Not later than 72 hours after an alien's detention unless the 72-hour requirement is waived in writing by the alien, an alien who is a member of a vulnerable population (as defined by subsection (c)) shall be released from the Secretary of Homeland Security's custody and shall not be subject to electronic monitoring unless the Secretary of Homeland Security demonstrates that the alien— is subject to mandatory detention under section 235(b)(1)(B)(iii)(IV), 236(c) or 236A; or poses a flight risk or a risk to others or national security. An alien shall be released under this subsection— on the alien’s own recognizance; by posting a reasonable bond under subsection (a); or on parole in accordance with section 212(d)(5)(A). 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 the Secretary of Homeland Security demonstrates by substantial evidence that the alien— is subject to mandatory detention under section 235(b)(1)(B)(iii)(IV) or 236A; or 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 subsection (a), (b), or (c), the following shall apply: The decision shall be made in writing and shall be served upon the individual in the language spoken by the alien. 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 of the individual’s detention or, in the case of an individual subject to section 235, 238, or 241(a)(5) within 72 hours of a positive credible or reasonable fear determination. An alien subject to this section, including all aliens who are entitled to a removal hearing under section 240, may at any time after being served with the Secretary of Homeland Security’s decision under subsections (a), (b), or
(c)request a redetermination of that decision by an immigration judge. All custody decisions by the Secretary of Homeland Security shall be subject to redetermination by an immigration judge. Nothing in this subsection shall be construed to prevent an individual from requesting a bond redetermination. The Attorney General or an immigration judge, at any time, may redetermine an alien’s classification under subsection (c), the bond of someone released, or the custody status of someone placed in an alternatives to detention program. Nothing in this subsection would preclude a person from being released on bond after initially participating in an alternatives to detention program. ; and in subsection (f), as redesignated, in paragraph (2), by inserting or for humanitarian reasons, after such an investigation, . Nothing in this section shall be construed to modify the care and custody of unaccompanied alien children (as defined in section 462(g)(2) of the Homeland Security Act (6 U.S.C. 279(g)(2))) who shall be considered to be in the care and exclusive legal and physical custody of the Secretary of Health and Human Services. Such children shall be subject to removal proceedings under section 240 of the Immigration and Nationality Act ( 8 U.S.C. 1229a ), with the exception of children from contiguous countries eligible for administrative voluntary departure, and shall not be permitted to participate in the program. If an alien is determined not to meet the requirements for release on recognizance, bond or parole, or subsequently does not meet the requirements for secure alternatives to detention programs, the alien shall be considered for placement in less restrictive forms of custody: Less restrictive forms of custodial detention include electronic monitoring such as the use of ankle bracelets that monitor an individual’s movement and the use of similar electronic devices. An individualized determination shall be made in each alien’s case about the use of electronic monitoring. Aliens who would otherwise be subject to detention including under section 236 of such Act (8 U.S.C. 1226) may be placed in electronic monitoring or other less restrictive forms of custody. Subject to the availability of appropriations, facilities shall be developed and used that offer the least restrictive secure setting for aliens in custody.
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