H.R. 6397 — Dignity for Detained Immigrants Act

This section defines key terms used in the Act, including "(1) appropriate committees of Congress" as the Senate Committee on the Judiciary, Senate Committee on Homeland Security and Governmental Affairs, House Committee on the Judiciary, and House Committee on Homeland Security; "(2) Department" as the Department of Homeland Security; and "(3) Secretary" as the Secretary of Homeland Security.

This section directs the Secretary of Homeland Security, by regulation and not later than one year after enactment, to establish detention standards for each facility at which aliens in the Department's custody are detained. The standards must provide, at a minimum, the protections described in the American Bar Association’s Civil Immigration Detention Standards (adopted in August 2012 and modified in August 2014). The Secretary must review and update the standards biennially, as appropriate.

This section establishes oversight requirements for facilities detaining aliens in the custody of the Department (likely DHS). Specifically, it directs the Inspector General to conduct unannounced, in-person inspections of each such facility at least annually to verify compliance with standards under section 4 (presumably health, safety, and due process standards); requires the Inspector General to report results to the Secretary within 60 days and publicly post the report on the Department's website; and mandates enforcement for noncompliance threatening detainee health, safety, or rights—(1) for a first violation in any two-year period, a fine of at least 10% of the contract value (for non-Department-owned facilities), a warning with 60-day remediation and certification (for Department-owned facilities), and a follow-up inspection within 180 days; and (2) for two or more violations in any two-year period, detainee transfer within 30 days (non-owned) or 60 days (owned), contract termination (non-owned), funding prohibition (non-owned), and facility suspension until Inspector General certification and public disclosure of remediation (owned). This section further requires the Secretary to notify congressional committees within 24 hours of any detainee death (defined broadly to include any death under Department supervision, regardless of location or preexisting conditions); conduct an investigation with root cause analysis (by qualified personnel, including medical professionals, per Joint Commission Sentinel Event Policy) within 30 days; publicly post a full report within 60 days; and have the Inspector General review the report within 90 days. Finally, this section requires the Secretary to submit an annual report to congressional committees detailing prior-year inspection findings, including each noncompliant facility and remedial actions taken or planned.

This section establishes a private right of action in the appropriate U.S. district court for an individual detained in a facility required to comply with standards under section 4 who is injured by a violation of those standards. The court may order injunctive relief and compensatory damages and may award reasonable attorney fees and costs to the prevailing party.

This section requires the Secretary of Homeland Security to notify the appropriate congressional committees and publicly post on the department's website, at least 180 days before initiating or contracting for construction or expansion of alien detention facilities, details including location, size, capacity, timeline, cost, and intended population by gender and age. It prohibits the Secretary from entering or extending contracts with public or private for-profit entities for (1) secure detention facilities or (2) nonresidential alternatives-to-detention programs or facilities and requires termination of existing contracts within three years of enactment, after which secure facilities must be owned and operated by the department and alternatives programs or facilities by the department or a nonprofit organization; it further requires a public implementation plan and timeline within 60 days of enactment. This section requires all alien detention facilities to include an indoor, climate-controlled visitor waiting and security screening area.

This section requires the Secretary to establish rules ensuring that any alien detained by the Department who is required to appear in federal or state court (including family court) for another matter is transported to the proceeding by a Department officer or employee.

This section revises INA section 236 (8 U.S.C. 1226) governing the arrest, detention, and release of aliens pending a removal decision by (1) requiring warrants issued by an immigration judge (or pursuant to INA §287(a)(2)) for arrests; (2) exempting unaccompanied alien children (as defined in 6 U.S.C. 279(g)(2)) from these procedures and requiring their transfer to HHS custody pursuant to 8 U.S.C. 1232(b)(3); (3) directing immigration judges, when setting bond, to consider the alien's financial ability to pay without hardship and to set amounts no greater than necessary to ensure appearance, with DHS prohibited from detaining aliens solely due to inability to pay; and (4) establishing custody determination procedures that require DHS to provide an initial written determination within 48 hours of custody, afford a hearing before an immigration judge within 72 hours to challenge it (with continuances available for counsel preparation), apply a presumption of release that DHS must rebut by clear and convincing evidence (without relying solely on criminal history), order the least restrictive conditions of release if detention is warranted (i.e., recognizance, bond, or an alternatives-to-detention program), provide for monthly reviews of conditions, and authorize judges to modify DHS-imposed conditions. This section further provides that vulnerable persons or primary caregivers may not be detained absent a DHS showing (in addition to the release presumption) that community-based supervision is unreasonable or impracticable. (Thus, these changes limit prolonged detention, prioritize release or supervision over custody, and reinforce the existing transfer of unaccompanied alien children—who are in federal custody due to immigration status—from DHS to the Office of Refugee Resettlement for care and placement.)

This section prohibits placing an individual in the custody of the Department in solitary confinement, defined as confinement to the individual's cell, alone or with a cellmate, pursuant to disciplinary, administrative, or classification action (excluding confinement during designated sleeping time).

This section requires the Secretary of Homeland Security to ensure that all facilities detaining aliens—whether owned by the Department or not—provide access to the Legal Orientation Program (LOP, or any successor program) operated by a nonprofit nongovernmental organization with demonstrated immigration law expertise. The section further requires the Secretary to ensure that each detained alien receives such a legal orientation, which may be provided in a group setting, as soon as practicable after entering the facility but no later than after the initial hearing before an immigration judge. (As background, the LOP informs detained noncitizens of their rights, immigration court procedures, and available legal resources.)

This section requires the Secretary of Homeland Security to permit an alien with counsel under section 292 of the Immigration and Nationality Act (8 U.S.C. 1362)—which provides the privilege of representation by counsel (at no expense to the government) in removal proceedings before an immigration judge or on appeal to the Attorney General—to access such counsel in a private, confidential setting, including through in-person, telephonic, or televideo meetings.

This section requires the Secretary of Homeland Security to permit covered persons—Members of Congress and their designated employees—to enter, for oversight purposes, any facility operated by or for the Department used to detain or house aliens, without temporary modifications that alter observations compared to normal conditions. Members of Congress require no prior notice of entry, while employees generally must provide at least 24 hours' notice unless accompanying a Member.