Sec. 234.
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Not later than 180 days after the date of enactment of this section, U.S. Immigration and Customs Enforcement shall develop a risk classification instrument for individuals subject to section 236(c) of the Immigration and Nationality Act ( 8 U.S.C. 1226(c) ), following the procedures outlined in this section, that includes an individualized evidence-based recommendation as to the least restrictive condition, or combination of conditions, reasonably necessary to mitigate subsection (b)(1). The instrument described in subsection
(a)shall, at a minimum— consider whether the individual is a flight risk, a danger to public safety, or a national security threat; properly considers mitigating factors for any identified risks under subsection (b)(1), such as, whether the individual resides in the United States, has immigration status, has a pending application for relief in immigration court, is employed, has minor children, has strong community ties, family support, identifies as a member of a special population, including persons who identify as transgender, has a disability or chronic illness, or is a survivor of torture or trafficking; and be developed in consultation with the Officer for Civil Rights and Civil Liberties and the Immigration Detention Ombudsman. Prior to the full implementation of the instrument described in subsections
(a)and (b), the instrument shall undergo an Independent Verification and Validation to ensure that the instrument produces an individualized determination grounded in evidence-based decision-making, except that, as a part of the Independent Verification and Validation process, the agency may use the instrument to determine the validity of the instrument. The Validation process shall also ensure that appropriate training, as described in subsection (d), is developed for full implementation. Not later than 60 days after the instrument is developed as described in subsections
(a)through (c), the Director shall— develop procedures for, and ensure execution of, training for all employees on such instrument, including comprehensive training to fully execute instrument overrides; consider whether decision-makers require an understanding of the concepts of predictive validity in detention decision-making, comparative use of risk assessment instruments in the criminal justice system, evidence-based decision-making, risk management, trauma-informed care, including the psychological consequences of detention, implicit bias, and recidivism in the civil context principles; in order to fully and accurately execute the instrument; ensure that such training is required for all such employees responsible for making detention decisions prior to their use; and identify and ensure annual training at the Director’s discretion. The Director shall provide the Committee the results of such training, including copies of training materials, within 30 days of developing such training. Following approval, review, and appropriate training described in subsections
(a)through (d), U.S. Immigration and Customs Enforcement shall use the instrument to make individualized evidence-based decisions as to the least restrictive condition or combination of conditions, reasonably necessary to mitigate subsection (b)(1), and shall follow the instrument’s recommendation, except in the case of subsection (g), notwithstanding section 236(c) of the Immigration and Nationality Act ( 8 U.S.C. 1226(c) ). The instrument may be used at any time, including upon intake, but not later than 21 days after such individual is taken into detention. In cases where continued detention is recommended by the instrument, a detention review shall occur not less than 60 days from the time of initial determination, or earlier in cases of changed circumstances. In cases where an individual employee overrides the recommendation of such instrument resulting in continued detention, such override shall be reviewed by a supervisor not less than 10 days after such override occurs. Determinations based on the results of the instrument described in subsections
(a)and (f), at a minimum, shall be thoroughly documented in the agency’s system of record, including any such instrument override decisions which result in continued detention, which shall also meet the procedures described in subsection (h). The Director shall ensure that— the only available instrument overrides are derived from the verification and validation process described in subsection (c); overrides that result in continued detention are reviewed as described in subsection (f)(3); overrides that result in continued detention are not used regularly and occur in unusual circumstances; override rates that result in continued detention are documented and reviewed, at a minimum, in the following manner— by Supervisors, Field Office Directors, or their successors, for any decision-maker who exceed overrides in 5 percent of their total instrument cases; and for any field office whose overrides exceed 5 percent of their total instrument cases per field office, the Director reviews the results of such field office, not less than every 90 days; any decision-maker or field office whose total override rate exceeds 10 percent of total instrument cases, undergoes additional training; and the Committee receives override rates, disaggregated by field office, within 180 days of full implementation of the instrument and annually thereafter. The Director shall ensure that all forms currently in use by the agency, are updated to reflect the instrument described in subsection (a), including the Notice of Detention Determination and all such administrative appeal options. Until such time as the instrument has undergone the procedures outlined in subsections
(a)through (c), the agency shall utilize the following procedures: Not later than 30 days after the date of enactment of this section, the Secretary of Homeland Security shall approve a segmented risk classification assessment process, developed by U.S. Immigration and Customs Enforcement that includes a determination as to whether a detained individual is a flight risk, a public safety threat, or a national security threat; and Following approval of the assessment process in subsection (a), U.S. Immigration and Customs Enforcement shall conduct a risk classification for each detained individual held in detention for at least 14 days, to be completed within 21 days of such individual being taken into detention, and make an individualized, documented detention determination that shall include the option to release such individual from detention, notwithstanding section 236(c) of the Immigration and Nationality Act ( 8 U.S.C. 1226(c) ). The instrument shall be reviewed not less than biannually by the Director, in consultation with the Officer for Civil Rights and Civil Liberties and the Immigration Detention Ombudsman, to ensure instrument recommendations and procedures are followed, training is sufficient, and the use and implementation of the instrument is aligned with best practices and evidence-based decision-making. The results of such review shall be provided to the Committee within 60 days and shall identify any needs the agency may have in carrying out the terms of this section. Nothing in this section shall be construed to— grant to any person any substantive due process right; interfere with any settlement agreement; interfere with any Federal habeas right; require a bond if the instrument recommends release from detention; and impact any detention process or decision other than for those persons subject to section 236(c) of the Immigration and Nationality Act ( 8 U.S.C. 1226(c) ). For the purposes of this section: The term risk classification instrument , or instrument , means an independently verified and validated tool that includes an individualized recommendation as to the appropriate level of custody, which is actuarial in nature and grounded in evidence-based decision-making. The term detention shall mean the physical detention or physical custody of such individual by U.S. Immigration and Customs Enforcement, and is distinguished from the legal custody or level of custody of such individual. The term Director shall mean the Director of U.S. Immigration and Customs Enforcement. The term agency shall mean U.S. Immigration and Customs Enforcement. The term Committee means the Committees on Appropriations of the Senate and the House of Representatives. The term changed circumstances shall mean evidence, facts, or information that are substantial in nature and that were unknown or unanticipated when the prior decision was made, which may be raised by either the person in detention or the decision-maker, including, but not limited to, a determination that a person was not initially subject to section 236(c) of the Immigration and Nationality Act ( 8 U.S.C. 1226(c) ), evidentiary support for mitigating factors, health-related, medical, or family emergencies, or other humanitarian concerns, or a change in criminal charging documents. The term Independent Verification and Validation shall mean a verification and validation performed by an organization that is technically, managerially, and financially independent of U.S. Immigration and Customs Enforcement, which shall involve a comprehensive review, analysis, and testing performed by an objective third party to confirm that the requirements are correctly defined, and to confirm that the system correctly implements the required functionality and security requirements. The term level of custody , or custody , shall mean a significant restraint on liberty not shared by the public generally, including conditions and restrictions that significantly restrain an individual’s liberty, which may include home confinement, alternatives to detention, but does not exclusively mean physical custody or physical detention. The term instrument override means the ability of a decision-maker to change the risk level, outcome, or recommendation provided by the instrument.
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