Sec. 9. Procedures for detaining aliens

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Section 236 of the Immigration and Nationality Act ( 8 U.S.C. 1226 ) is amended 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. This section shall not apply to unaccompanied alien children (as defined in section 462(g)(2) of the Homeland Security Act of 2002 ( 6 U.S.C. 279(g)(2) )).

Any unaccompanied alien child in the custody of the Secretary of Homeland Security 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) ). An immigration judge who releases an alien on bond under this section 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 an amount no greater than necessary to ensure the alien’s appearance for removal proceedings.

The Secretary of Homeland Security may not continue to detain an alien solely based on the alien's inability to pay bond. Not later than 48 hours after taking an alien into custody pursuant to this section or section 235, or with respect to an alien subject to a reinstated order of removal pursuant to section 241(a)(5) who has 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 the alien, and provide such determination in writing to the alien.

With respect to a custody determination under subparagraph (A), 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 individual or the community, the Secretary shall impose the least restrictive conditions, as described in paragraph (4). An alien who seeks to challenge the initial custody determination under paragraph

(1)shall be provided with the opportunity for a hearing before an immigration judge not later than 72 hours after the initial custody determination to determine whether the alien should be detained. On request by an alien, or the legal counsel of an alien, an immigration judge may grant a reasonable continuance of a hearing under subparagraph

(A)to provide the alien or such legal counsel additional time to prepare for the hearing. In a hearing under this subsection, there shall be a presumption that the alien should be released. The Secretary of Homeland Security has the duty of rebutting this presumption, which may only be established 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 the alien is a threat to any other individual or the community. The Attorney General— shall consider the totality of each case; and may not rely on an alien's criminal conviction, arrest, pending criminal charge, or combination thereof as 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 individual 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). Not less frequently than monthly, the immigration judge shall review any condition assigned to an alien pursuant to subparagraph (A). An immigration judge may modify or rescind conditions of supervision imposed on an alien by the Secretary of Homeland Security. In the case of an alien subject to a custody determination under this subsection who is a vulnerable person or a primary caregiver, the alien may not be detained unless the Secretary of Homeland Security demonstrates, in addition to meeting the requirements under paragraph (3), that it is unreasonable or not practicable to place the alien in a community-based supervision program. In this paragraph: The term material witness means an individual who presents a declaration to an attorney investigating, prosecuting, or defending a workplace claim or from the presiding officer overseeing a 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 an individual 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 younger than 21 years of age or older than 60 years of age; is pregnant; identifies as lesbian, gay, bisexual, transgender, queer, or intersex; is a victim or witness of a crime; has filed a nonfrivolous civil rights claim in a 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 in accordance with 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 by the Secretary of Homeland Security to have experienced or 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, or 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 detained pursuant to this section shall be provided with a de novo custody determination hearing under this subsection— not later than 30 days after the date of the enactment of the Dignity for Detained Immigrants Act ; every 60 days; and upon showing of a change in circumstances or good cause for such a hearing. The Secretary of Homeland Security— shall immediately release an alien with respect to whom an immigration judge has entered an order providing relief from removal (including an order granting asylum or withholding, deferral, or cancellation of removal) or an order terminating removal proceedings, which order is pending appeal, 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 may not detain in a facility operated or contracted by U.S. Immigration and Customs Enforcement any individual who is younger than 18 years of age. The Secretary of Homeland Security shall establish, outside of the purview of U.S. Immigration and Customs Enforcement, a community-based case management program that— provides alternatives to detaining aliens; offers a continuum of community-based support options and services, including— case management; and access to— social services; medical and mental health services; housing; transportation; and legal services; and provides services in the appropriate language. The program under paragraph

(1)may not include, as an alternative to detention, the provision of ankle monitors or other forms of electronic surveillance. Not later than 180 days after the date of the enactment of the Dignity for Detained Immigrants Act , the Secretary of Homeland Security shall conduct a study to examine best practices of government-funded case management and related services, including exploring the feasibility of the Department of Homeland Security funding case management services. The Secretary of Homeland Security may enter into 1 or more contracts to operate the case management program established pursuant to paragraph (1). In entering into a contract under subparagraph (A), the Secretary shall give priority to direct contracts with qualified nongovernmental, community-based organizations that have experience providing services to immigrant, refugee, and asylum-seeking populations. In determining whether to order an alien to participate in a case management program under this subsection, the Secretary of Homeland Security or the immigration judge, as appropriate, shall make an individualized determination to determine the appropriate level of supervision for the alien. Participation in a case management 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. An alien who is required to participate in a specific alternatives to detention program or service may not be charged a fee for such participation. Not later than 180 days after the date of the enactment of the Dignity for Detained Immigrants Act , the Secretary shall conduct a review of— best practices in federally funded case management programs; and the feasibility of transferring alternatives to detention case management programs out of the purview of the Department of Homeland Security. . Section 287(a) of the Immigration and Nationality Act ( 8 U.S.C. 1357(a) ) is amended by striking the subsection designation and all that follows through the end of paragraph

(2)and inserting the following: Any officer or employee of the Department of Homeland Security who is 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 presence or view of the officer or employee, is entering or attempting to enter the United States in violation of any law or regulation made pursuant to 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 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 the arrest of the alien; the officer or employee has reason to believe the alien 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 alien is provided with a hearing before an immigration judge to determine whether there was probable cause for such arrest, including probable cause to believe the alien would have knowingly and willfully failed to appear as required under subparagraph

(B)if the alien had not been arrested, which burden to establish probable cause shall be on the Department of Homeland Security; . The Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. ) is amended— in section 235(b) ( 8 U.S.C. 1225(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 ( 8 U.S.C. 1226a ); in section 238(a)(2) ( 8 U.S.C. 1228(a)(2) ), by striking pursuant to section 236(c), ; and in section 506(a)(2) ( 8 U.S.C. 1536(a)(2) )— by amending the paragraph heading to read as follows: ; and Release hearing for aliens detained in subparagraph (A)— by amending the subparagraph heading to read as follows: ; In general 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. The table of contents of the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. ) is amended by striking the item relating to section 236A. 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 such phrase 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 required under subparagraph (A), the alien shall be detained during the removal period unless the alien demonstrates by the preponderance of the evidence that— the alien’s removal is not reasonably foreseeable; or the alien does not pose a risk to the safety of any individual or 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 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 was not removed during 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 solely 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 60 days. 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), by amending paragraph

(1)to read as follows: The Attorney General shall provide for the availability of special removal proceedings at certain Federal, State, and local correctional facilities for aliens convicted of any criminal offense described in subparagraphs (A)(iii), (B), (C), or (D), of section 237(a)(2), or any offense described in section 237(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise described in section 237(a)(2)(A)(i). Such proceedings shall be conducted in conformity with section 240 (except as otherwise provided under this section), and in a manner which eliminates the need for additional detention at any processing center of the Department of Homeland Security and in a manner that ensures expeditious removal following the end of the alien's incarceration for the underlying sentence. Nothing in this section may be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person. ; by redesignating the second subsection

(c)as subsection (d); and in subsection (d), as redesignated— 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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