Sec. 7. Procedures for detaining aliens
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Section 236 of the Immigration and Nationality Act ( 8 U.S.C. 1226 ) is amended— by amending subsection
(a)to read as follows: On a warrant issued by an immigration judge, or pursuant to section 287(a)(2), the Secretary of Homeland Security may arrest an alien, and in accordance with this section, detain the alien or release the alien on bond, subject to conditions, or recognizance, pending a decision on whether the alien is to be removed from the United States. ; by striking subsections (b), (c), (d), and (e); by adding at the end the following: In the case that an immigration judge makes a determination to release an alien on bond under this section, the immigration judge shall consider, for purposes of setting the amount of the bond, the alien’s financial position and ability to pay the bond without imposing financial hardship on the alien, and set bond at no amount greater than necessary to ensure the alien’s appearance for removal proceedings. Not later than 48 hours after taking an alien into custody under the authority provided by this section or section 235 of this Act, or those subject to a reinstated order of removal pursuant to section 241(a)(5) who have been found to have a credible or reasonable fear of return, the Secretary of Homeland Security shall make an initial custody determination with regard to that alien, and provide that determination in writing to the alien. If the Secretary determines that the release of an alien will not reasonably ensure the appearance of the alien as required or will endanger the safety of any other person or the community, the custody determination under this paragraph will impose the least restrictive conditions, as described in paragraph (4). If an alien seeks to challenge the initial custody determination under paragraph (1), the alien shall be provided with the opportunity for a hearing before an immigration judge to determine whether the alien should be detained, which hearing shall occur not later than 72 hours after the initial custody determination. In a hearing under this subsection, there shall be a presumption that the alien should be released. The Secretary of Homeland Security shall have the duty of rebutting this presumption, which may only be shown based on clear and convincing evidence, including credible and individualized information, that the use of alternatives to detention will not reasonably ensure the appearance of the alien at removal proceedings, or that the alien is a threat to another person or the community. The fact that an alien has a criminal charge pending against the alien may not be the sole factor to justify the continued detention of the alien. If an immigration judge determines pursuant to a hearing under this section that the release of an alien will not reasonably ensure the appearance of the alien as required or will endanger the safety of any other person or the community, the immigration judge shall order the least restrictive conditions, or combination of conditions, that the judge determines will reasonably ensure the appearance of the alien as required and the safety of any other person and the community, which may include release on recognizance, secured or unsecured release on bond, or participation in a program described in subsection (f). Any conditions assigned to an alien pursuant to this paragraph shall be reviewed by the immigration judge on a monthly basis. In the case that the alien who is the subject of a custody determination under this subsection is a vulnerable person or a primary caregiver, the alien may not be detained unless the Secretary of Homeland Security demonstrates, in addition to the requirements under paragraph (3), that it is unreasonable or not practicable to place the individual in a community-based supervision program. In this subsection: The term material witness means an individual who presents a declaration to an attorney investigating, prosecuting, or defending the workplace claim or from the presiding officer overseeing the workplace claim attesting that, to the best of the declarant’s knowledge and belief, reasonable cause exists to believe that the testimony of the individual will be relevant to the outcome of the workplace claim. The term primary caregiver means a person who is established to be a caregiver, parent, or close relative caring for or traveling with a child. The term vulnerable person means an individual who— is under 21 years of age or over 60 years of age; is pregnant; identifies as lesbian, gay, bisexual, transgender, or intersex; is a victim or witness of a crime; has filed a nonfrivolous civil rights claim in Federal or State court; has filed, or is a material witness to, a bonafide workplace claim; has a serious mental or physical illness or disability; has been determined by an asylum officer in an interview conducted under section 235(b)(1)(B) to have a credible fear of persecution or torture; has limited English language proficiency and is not provided access to appropriate and meaningful language services in a timely fashion; or has been determined by an immigration judge or the Secretary of Homeland Security to be experiencing severe trauma or to be a survivor of torture or gender-based violence, based on information obtained during intake, from the alien’s attorney or legal service provider, or through credible self-reporting. The term workplace claim means any written or oral claim, charge, complaint, or grievance filed with, communicated to, or submitted to the employer, a Federal, State, or local agency or court, or an employee representative related to the violation of applicable Federal, State, and local labor laws, including laws concerning wages and hours, labor relations, family and medical leave, occupational health and safety, civil rights, or nondiscrimination. An alien who is detained under this section shall be provided with a de novo custody determination hearing under this subsection every 60 days, as well as upon showing of a change in circumstances or good cause for such a hearing. In the case of an alien with respect to whom an immigration judge has entered an order providing for relief from removal, including an order granting asylum, or providing for withholding, deferral, or cancellation of removal, which order is pending appeal, the Secretary of Homeland Security shall immediately release the alien upon entry of the order, and may impose only reasonable conditions on the alien’s release from custody. Notwithstanding any other provision of this Act, the Secretary of Homeland Security is prohibited from detaining anyone under the age of 18 in a facility operated or contracted by U.S. Immigration and Customs Enforcement. The Secretary of Homeland Security shall establish programs that provide alternatives to detaining aliens, which shall offer a continuum of supervision mechanisms and options, including community-based supervision programs and community support. The Secretary may contract with nongovernmental community-based organizations to provide programs, which may include case management services, appearance assistance services, and screenings of aliens who have been detained. In determining whether to order an alien to participate in a program under this subsection, the Secretary, or the immigration judge, as appropriate shall make an individualized determination to determine the appropriate level of supervision for the alien. Participation in a program under this subsection may not be ordered for an alien for whom it is determined that release on reasonable bond or recognizance will reasonably ensure the appearance of the alien as required and the safety of any other person and the community. In a case in which an alien is required to wear an ankle monitor or other homing device as an alternative to detention, the alien may not be charged any fee associated with such monitor or device that exceeds the cost of maintaining and operating such monitor or device. ; and by striking Attorney General each place such term appears and inserting Secretary of Homeland Security . Section 287(a)(2) of the Immigration and Nationality Act ( 8 U.S.C. 1357(a)(2) ) is amended by striking but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States and inserting but the alien arrested shall be provided with a hearing before an immigration judge not later than 48 hours after being taken into custody to determine whether there is probable cause to believe that the alien does not have the right to enter or remain in the United States, which burden to establish probable cause shall be on the Secretary of Homeland Security . The Immigration and Nationality Act ( 8 U.S.C. 1101 et seq.) is amended— in section 235(b)— in paragraph (1)(B)— in clause (ii), by striking detained and inserting referred ; and in clause (iii), by striking subclause (IV); and in paragraph (2)(A), by striking detained and inserting referred ; by striking section 236A; in section 238(a)(2), by striking pursuant to section 236(c), ; and in section 506(a)(2)— by amending the heading to read as follows: ; and Release hearing for aliens detained in subparagraph (A)— in the matter preceding clause (i), by striking lawfully admitted for permanent residence ; by striking clause (i); and by redesignating clauses
(ii)and
(iii)as clauses
(i)and (ii), respectively. Section 241(c)(3)(A)(ii) of the Immigration and Nationality Act ( 8 U.S.C. 1231(c)(3)(A)(ii) ) is amended— in subclause (I), by striking the comma at the end and inserting ; or ; in subclause (II), by striking , or and inserting a period; and by striking subclause (III). Section 241(a) of the Immigration and Nationality Act ( 8 U.S.C. 1231(a) ) is amended— in paragraph (1), by striking 90 days each place it appears and inserting 60 days ; by amending paragraph
(2)to read as follows: Not later than 72 hours after the entry of a final administrative order of removal, the alien ordered removed shall be provided with a custody redetermination hearing before an immigration judge. For purposes of the hearing under subparagraph (A), the alien shall be detained during the removal period unless the alien can show by clear and convincing evidence that the alien’s removal is not reasonably foreseeable or that the alien does not pose a risk to the safety of any individual or to the community. ; in paragraph (3)— in the heading, by striking and inserting 90-day ; and 60-day in the matter preceding subparagraph (A), by striking the alien, pending removal, shall be subject to supervision under and inserting the following: except as provided in paragraph (6), any alien who has been detained during the removal period shall be released from custody, pending removal, subject to individualized supervision requirements in accordance with ; by amending paragraph
(6)to read as follows: The Secretary of Homeland Security may request a subsequent redetermination hearing before an immigration judge seeking continued detention for an alien ordered to be detained pursuant to paragraph
(2)who has not been removed within the removal period. An alien may only be detained after the removal period upon a showing by the Secretary of Homeland Security that— the alien’s removal is reasonably foreseeable; or the alien poses a risk to the safety of an individual or the community, which may only be established based on credible and individualized information and may not be established based only the fact that the alien has been charged with or is suspected of a crime. An alien may not be detained pursuant to an order under this paragraph for longer than a 60-day period. The Secretary of Homeland Security may seek subsequent redetermination hearings under this paragraph in order to continue detaining an alien beyond each such 60-day period. ; and by striking paragraph (7). The Immigration and Nationality Act ( 8 U.S.C. 1101 et seq.) is amended— in section 238 ( 8 U.S.C. 1228 )— in subsection (a)(1), in the first sentence— by striking section 241(a)(2)(A)(iii) and inserting section 237(a)(2)(A)(iii) ; by striking section 241(a)(2)(A)(ii) and inserting section 237(a)(2)(A)(ii) ; and by striking section 241(a)(2)(A)(i) and inserting 237(a)(2)(A)(i) ; and in the second subsection (c)— in paragraph (2)(B), by striking section 241(a)(2)(A) and inserting section 237(a)(2)(A) ; and in paragraph (4), by striking section 241(a) and inserting section 237(a) ; in section 276(b)(4) ( 8 U.S.C. 1326(b)(4) ), by striking section 241(a)(4)(B) and inserting section 237(a)(4)(B) ; and in section 501(1) ( 8 U.S.C. 1531(1) ), by striking section 241(a)(4)(B) and inserting section 237(a)(4)(B) .
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Sec. 7
Procedures for detaining aliens
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