Sec. 3. Solitary confinement reforms

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A detained noncitizen may not be placed in solitary confinement within a U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection facility unless such confinement— is necessary to address immediate circumstances that pose a substantial and immediate threat; is limited to the briefest term and the least restrictive conditions practicable, including— not more than 8 hours immediately following an incident precipitating placement in solitary confinement; not more than 8 hours during any 24-hour period; and not more than 16 hours during any 7-day period; and complies with the provisions of this section.

A detained noncitizen may not be placed in longer-term separation within a U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection facility unless such separation— is limited to the briefest term and the least restrictive conditions practicable, including not fewer than 10 hours of out-of-cell time every day; is consistent with the rationale for placement and with the progress achieved by the detained noncitizen; allows a detained noncitizen to have meaningful access to counsel and to participate in meaningful out-of-cell group programming opportunities in a classroom or equivalent setting, out-of-cell group recreation, and privileges that are similar to those available in the general population; allows the detained noncitizen to have as much meaningful interaction with others, such as other detained noncitizens, counsel, visitors, clergy, or licensed mental health professionals, as people in the general population; is for the purposes of longer-term separation as detailed in the provisions of this section; is determined to be necessary following the consideration of all alternatives by facility personnel, including release; and complies with the provisions under this section.

The Secretary— shall limit longer-term separation in U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection facilities— to situations in which such separation is necessary to control a substantial and immediate threat that cannot be addressed through alternative housing; and to a duration of not more than 7 consecutive days, and not more than 7 days in a 14-day period, unless the detained noncitizen— is a protection case and requests to remain in longer-term separation pursuant to paragraph (4)(B)(i); is provided with additional out-of-cell time, socialization, and programming opportunities; and is provided with not fewer than 10 hours of out-of-cell time each day; and may not permit the use of solitary confinement or longer-term separation as a form of discipline.

The Secretary— shall establish policies to ensure that a noncitizen who is a protection case— upon the request of such noncitizen, is released with a care plan; or if release is not practicable, is transferred to the least restrictive safer alternative available, such as— an alternative to detention; an alternative general population unit in the same U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection facility; or an alternative U.S. Immigration and Customs Enforcement or U.S.

Customs and Border Protection facility; and may not place a detained noncitizen who is a protection case in solitary confinement or longer-term separation due to the status of the noncitizen as a protection case unless— the noncitizen requests to be placed in solitary confinement or longer-term separation, in which case— at the request of such noncitizen, the noncitizen shall be released with a care plan; or if release is not practicable, the noncitizen is transferred to the least restrictive safer alternative available, such as— an alternative to detention; an alternative general population unit in the same U.S.

Immigration and Customs Enforcement or U.S. Customs and Border Protection facility; or an alternative U.S. Immigration and Customs Enforcement or U.S. Border Protection facility; such confinement is limited to— not more than 8 hours of solitary confinement and not more than 5 days of longer-term separation; and time to prepare the noncitizen for transfer to a safer alternative, such as any of the alternatives described in items

(aa)through

(cc)of clause (i)(II); and the noncitizen has been verbally informed of any available alternatives; and not later than 90 days after the date of the enactment of this Act, shall— initiate a plan to ensure that each U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection facility includes alternative general population units in accordance with subparagraphs (A)(ii)(II) and (B)(i)(II)(bb); and submit a report on the implementation of such plan to— the Committee on Homeland Security and Governmental Affairs of the Senate ; the Committee on the Judiciary of the Senate ; the Committee on Homeland Security of the House of Representatives ; and the Committee on the Judiciary of the House of Representatives . A U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection facility may not place a detained noncitizen in solitary confinement if— except as provided in subparagraph (B), the detained noncitizen— is younger than 25 years of age; has a serious mental illness or an intellectual disability; has a physical disability that a licensed medical professional determines is likely to be exacerbated by placement in solitary confinement or that solitary confinement is clinically contraindicated; is pregnant or is in the first 8 weeks of the postpartum recovery period after giving birth; or has been determined by a licensed medical processional to be likely to be significantly adversely affected by placement in solitary confinement; the detained noncitizen is lesbian, gay, bisexual, transgender, intersex, or gender nonconforming (as such terms are defined in section 115.5 of title 28, Code of Federal Regulations, or in any successor regulation), if such placement is based (in whole or in part) on such identification or status; the detained noncitizen is HIV positive, if the placement is based (in whole or in part) on such HIV positive status; the placement is based (in whole or in part) on the detained noncitizen’s race, religion, or nationality; or if the noncitizen is not a protection case, the placement is based (in whole or in part) on— the detained noncitizen’s report of an incident of abuse or misconduct; the detained noncitizen’s decision to engage in a hunger strike; or any other form of retaliation against the detained noncitizen. The limitation on solitary confinement described in subparagraph (A)(i) shall not apply if— such confinement is a temporary response to the behavior of the detained noncitizen, which poses a substantial and immediate threat; all other options to de-escalate the situation have been exhausted, including less restrictive techniques such as— penalizing the detained noncitizen through loss of privileges; speaking with the detained noncitizen in an attempt to de-escalate the situation; and providing an appropriate level of care through a licensed mental health professional; such confinement is limited to— 3 hours after the detained noncitizen is placed in solitary confinement, if the noncitizen poses a substantial and immediate threat to others; or 30 minutes after the detained noncitizen is placed in solitary confinement, if the noncitizen poses a substantial and immediate threat only to the noncitizen’s self; and if, after the applicable maximum period of confinement under subclause

(I)or

(II)of clause

(iii)has expired, the detained noncitizen continues to pose a substantial and immediate threat described in the applicable subclause— the detained noncitizen is transferred to the least restrictive safer alternative available pursuant to paragraph (4)(B)(i)(II); or if a qualified mental health professional believes the level of crisis service needed is not currently available, a staff member of the facility initiates a referral to a location that can meet the needs of the detained noncitizen. Noncitizens placed in solitary confinement and longer-term separation shall be— offered meaningful access to counsel to the same extent that detained noncitizens in the general population are offered access to counsel; and notified in writing of their right to access to counsel before being placed in solitary confinement or longer-term separation. The Secretary shall ensure that each noncitizen placed in longer-term separation— not later than 4 hours after the beginning of such placement, has access to written and verbal notice, in a language the noncitizen understands, that thoroughly details the basis for placement in longer-term separation, including— thorough documentation explaining why such confinement is permissible and necessary; and if an exception under paragraph (3)(A)(ii), (4)(B), or (5)(B) is used to justify placement in longer-term separation, thorough documentation explaining why such an exception applies; has access to a timely, thorough, and continuous review process that— occurs not fewer than 2 days after being placed in longer-term separation, and thereafter not less frequently than weekly, unless more frequent reviews are otherwise required under this section; includes private, face-to-face interviews with a multidisciplinary staff committee; and examines whether— placement in solitary confinement was and remains necessary; the conditions of confinement comply with the requirements under this section; and any exception under paragraph (3)(A)(ii), (4)(B), or (5)(B) used to justify placement in longer-term separation was and remains warranted; has access to a process to appeal the initial placement or continued placement of the detained noncitizen in longer-term separation; receives prompt and timely written notice of the appeal procedures; and receives copies of all documents, files, and records relating to the detained noncitizen’s placement in longer-term separation, unless such documents contain contraband, classified information, or sensitive security-related information. Not later than 6 hours after a detained noncitizen is placed in longer-term separation in a U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection facility, the noncitizen shall receive a comprehensive, face-to-face mental health evaluation by a licensed mental health professional in a confidential setting. A detained noncitizen diagnosed with a serious mental illness after an evaluation described in paragraph (1)— may not be placed in solitary confinement; and shall receive an appropriate level of care to address the detained noncitizen’s mental health needs. After each 7-day period during which a detained noncitizen is held in continuous placement in longer-term separation— a licensed mental health professional shall conduct a comprehensive, face-to-face, out-of-cell mental health evaluation of the noncitizen in a confidential setting; and the Secretary shall adjust the placement of the noncitizen in accordance with this subsection. All employees of a U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection facility and any contracted personnel working at such facility who interact with noncitizens on a regular basis shall be required to complete training in— recognizing the symptoms of mental illness; the potential risks and side effects of psychiatric medications; the consequences of untreated mental illness; the long- and short-term psychological effects of solitary confinement; the harms faced by vulnerable populations in solitary confinement; the benefits of release from detention for vulnerable populations; de-escalation and communication techniques for safely managing individuals with mental illness; and de-escalation and communication techniques for diverting detained noncitizens from situations that may lead to the noncitizen being placed in solitary confinement or longer-term separation. An employee of a U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection facility shall immediately notify a member of such facility’s medical or mental health staff if such employee— observes a detained noncitizen with signs of mental illness, unless such employee has knowledge that the noncitizen’s signs of mental illness have previously been reported; or observes a detained noncitizen with signs of a mental health crisis; Not later than 90 days after the date of the enactment of this Act, all employees of U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection who regularly interact with detained noncitizens, supervise detention facility personnel, or review solitary confinement or longer-term separation placements shall complete supplemental training in the policies governing the use of solitary confinement and longer-term separation required by this Act. Each U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection facility shall submit a daily report to the Director of U.S. Immigration and Customs Enforcement, the Commissioner of U.S. Customs and Border Protection, and the Office of the Principal Legal Advisor of the Department of Homeland Security that identifies, with respect to the applicable day— any detained noncitizens who were placed in solitary confinement or longer-term separation, including— the rationale behind each such placement; whether any exception listed in subsection

(a)was used to justify placement in solitary confinement or increased restrictive conditions in solitary confinement was applied; and any steps that were taken by facility personnel to seek alternatives to placing each individual noncitizen in solitary confinement or longer-term separation; the continued detention of any noncitizens in longer-term separation, including— the number of days such noncitizens have been detained in longer-term separation; and an explanation of the application of any exception listed in subsection

(a)that was used to justify an adjustment to the noncitizen’s time or conditions in longer-term separation; and the release of any detained noncitizens from solitary confinement or longer-term separation. The Secretary, without revealing personally identifiable information, shall publish online weekly updates regarding— the number of unique noncitizens placed or remaining in solitary confinement or longer-term separation at each U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection facility, disaggregated by race, age, gender identity, documented mental health status, documented disability, pregnancy or postpartum status, identification as lesbian, gay, bisexual, transgender, intersex, or gender nonconforming, length of time in solitary confinement, type of housing unit, and length of time in such housing unit; and any instances in which facility staff have placed a detained noncitizen— in solitary confinement for more than 8 hours; or in longer-term separation for more than 7 days. The Director of the appropriate Enforcement and Removal Operations field office within U.S. Immigration and Custom Enforcement and the Director of the appropriate field office within U.S. Customs and Border Protection shall— on a weekly basis— review the daily reports from each U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection facility under the Director's jurisdiction; and certify, as appropriate, that each such facility is in compliance with this Act; report any instances in which a U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection facility failed to comply, or is suspected of failing to comply, with this Act to the Office of Immigration Detention Ombudsman; and direct any U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection facility that failed to comply, or is suspected of failing to comply, with this Act to immediately address any such failures to comply, including by immediately removing a detained noncitizen from solitary confinement or longer-term separation if the noncitizen’s placement or continued detention in solitary confinement or longer term separation was not in compliance with this Act. The Office of Immigration Detention Oversight shall— promptly review any reports received pursuant to subparagraph (A)(ii); submit monthly reports to the Director of U.S. Immigration and Customs Enforcement and the Commissioner of U.S. Customs and Border Protection that identify areas of concern regarding particular cases or facilities that warrant further examination; and publish such monthly reports on a publicly accessible website.