Sec. 102. Procedures for detaining aliens
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Section 236 of the Immigration and Nationality Act ( 8 U.S.C. 1226 ) is amended— by striking subsections
(a)through
(c)and inserting the following: 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, may, pending a decision on whether the alien is to be removed from the United States— detain the alien; or release the alien— on bond; subject to conditions; or on the alien’s own recognizance. This section shall not apply to an unaccompanied alien child (as defined in section 462(g)(2) of the Homeland Security Act of 2002 ( 6 U.S.C. 279(g)(2) )). Such an alien shall be transferred to the custody of the Secretary of Health and Human Services pursuant to section 235(b)(3) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ( 8 U.S.C. 1232(b)(3) ). Not later than 48 hours after taking an alien into custody, 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 without conditions of an alien will not reasonably assure 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, except that an immigration judge may grant a reasonable continuance upon the alien’s request for additional time to prepare for the hearing. In a hearing under this subsection, there shall be a rebuttable presumption that the alien should be released. The Government shall have the duty of rebutting this presumption by clear and convincing evidence based on credible and individualized information that establishes that the use of alternatives to detention will not reasonably assure 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 prior conviction or 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 without conditions of an alien will not reasonably assure 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 assure the appearance of the alien as required and the safety of any other person and the community, which may include secured or unsecured release on bond, or participation in a program described in subsection (i). 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 an immigration judge makes a determination to release an alien on bond under subsection (a)(1)(B)(i), the immigration judge shall consider, for purposes of setting the amount of the bond, the alien’s financial resources and ability to pay the bond without imposing financial hardship on the alien. In a case in which an 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 Government shows, 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 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 victim or witness of a crime; has filed a nonfrivolous civil rights claim in Federal or State court; 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 a reasonable fear of persecution under section 208.31 or 241.8(e) of title 8, Code of Federal Regulations (as in effect on the date of the enactment of the New Way Forward Act); 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. 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 a de novo custody determination hearing. ; and by striking subsection
(e)and inserting the following: In the case of an alien with respect to whom an immigration judge has entered an order terminating removal proceedings or 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. 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 assure the appearance of the alien as required and the safety of any other person and the community. . Section 287(a) of the Immigration and Nationality Act ( 8 U.S.C. 1357(a) ) is amended by striking the matter preceding paragraph
(3)and inserting the following: Any officer or employee of the Department of Homeland Security authorized under regulations prescribed by the Secretary of Homeland Security shall have power without warrant— to interrogate any alien or person believed to be an alien as to the person’s right to be or to remain in the United States, provided that such interrogation is not based on the person’s race, ethnicity, national origin, religion, sexual orientation, color, spoken language, or English language proficiency; and to arrest any alien who in the officer or employee’s presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if— the officer or employee has probable cause to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest; the officer or employee has reason to believe that the person would knowingly and willfully fail to appear in immigration court in response to a properly served notice to appear; and not later than 48 hours after being taken into custody, the arrested alien is provided with a hearing before an immigration judge to determine whether there is probable cause as required by this section, including probable cause to believe that the person would have knowingly and willfully failed to appear as required under subparagraph (B), which burden to establish probable cause shall be on the Government. . The Immigration and Nationality Act ( 8 U.S.C. 1101 et seq.) is amended— in section 235(b)(1)(B)(ii)— by striking shall and inserting may ; and by inserting before the period at the end the following: pursuant to the custody review procedures set forth in section 236 ; by striking section 235(b)(1)(B)(iii)(IV); in section 235(b)(2)(A)— by striking shall and inserting may ; and by inserting before the period at the end the following: pursuant to the custody review procedures set forth in section 236 ; by striking section 236A; in section 238(a)(2), by striking pursuant to section 236(c) ; and in section 506(a)(2)— by striking the paragraph heading and inserting the following: ; 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(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 striking paragraph
(2)and inserting the following: 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 a preponderance of the evidence, that the alien’s removal is not reasonably foreseeable and that the alien does not pose a risk to the safety of any individual or to the community. ; in paragraph (3)— in the paragraph 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 (7), 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 striking paragraph (6); and by striking paragraph
(7)and inserting the following: The Government 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 Government that— the alien’s removal is reasonably foreseeable; and 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 that establishes objective risk factors, and may not be established based only on 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 Government may seek subsequent redetermination hearings under this paragraph in order to continue detaining an alien beyond each such 60-day period. .
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Sec. 102
Procedures for detaining aliens
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