Sec. 1403. Presumption of liberty for asylum seekers
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/bill/117/s/5353/is/section-1403·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
With respect to an alien who has expressed fear of returning to his or her home country or an intent to apply for asylum in the United States, the Secretary shall make an initial written custody determination with respect to the alien and provide the determination to the alien not later than 48 hours after, as applicable— the Secretary takes the alien into custody; or in the case of an alien already in the custody of the Secretary, the alien expresses such fear or intent. A custody determination under this paragraph shall impose the least restrictive conditions 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.
This paragraph shall not apply to unaccompanied alien children (as defined in section 462(g) of the Homeland Security Act of 2002 ( 6 U.S.C. 279g )). In a hearing under this subsection, there shall be a presumption that the alien should be released. The Secretary may rebut the presumption of release based on clear and convincing evidence, including credible and individualized information, that— the use of alternatives to detention, including release on recognizance or on a reasonable bond, will not reasonably ensure the appearance of the alien at removal proceedings; or the alien is a threat to another person or the community.
A pending criminal charge against an alien may not be the sole factor to justify the continued detention of the alien. The inability of an alien to reasonably provide government-issued evidence of identity, including the inability of the alien to contact the government of the country of nationality of the alien so as not to alert such government of the whereabouts of the alien, may not be the sole factor to justify the continued detention of the alien. A lack of pre-existing community ties in the United States shall not preclude the release of an alien.
If the Secretary or 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 Secretary or the immigration judge shall order the least restrictive conditions or combination of conditions that the Secretary or judge determines will reasonably ensure the appearance of the alien 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 (d).
Any condition assigned to an alien under paragraph
(1)shall be reviewed by an immigration judge on a monthly basis. In the case that the alien who is the subject of a custody determination under this section is a vulnerable person or a primary caregiver, the alien may not be detained unless the Secretary demonstrates, in addition to the requirements under subsection (a)(2), 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) of the Immigration and Nationality Act ( 8 U.S.C. 1225(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. The Secretary 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 shall contract with nongovernmental community-based organizations to provide services for programs under paragraph (1), including case management services, appearance assistance services, and screenings of detained aliens. In determining whether to order an alien to participate in a program under this subsection, the Secretary or an immigration judge, as applicable, shall make an individualized determination with respect to 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 will not pose a threat to any other person or the community. In the case of an alien who seeks to challenge the initial custody determination under subsection (a)(1), not later than 72 hours after the initial custody determination, the alien shall be provided with the opportunity for a hearing before an immigration judge to determine whether the alien should be detained. An alien who is detained under this section shall be provided with a de novo custody determination hearing under this subsection— every 60 days; and on a showing of— changed circumstances; or good cause for such a hearing.
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- 6 USC 279g
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