July 30, 2009

Senators Menendez, Gillibrand Unveil Detention Reform Legislation

Menendez-Gillibrand bills require immigration authorities to follow appropriate due process when detaining individuals and to treat detainees humanely

Washington, DC - In light of the alarmingly high number of cases in which U.S. citizens, immigrants and other vulnerable individuals are mistakenly and unlawfully detained by the U.S. Immigration and Customs Enforcement and in which detainees are exposed to inhumane conditions, U.S. Senators Menendez (D-NJ), and Kirsten Gillibrand (D-NY) today unveiled a package of legislation to reform our country's detention system.  This legislation comes in the wake of the issue of a report by the Cardozo School of Law which found a pattern of ICE agents deliberately breaking their way into private homes in direct violation of the Fourth Amendment of the Constitution and a significantly higher disproportion of Latino residents are arrested without an articulated reason.

The two-bill proposal include: the Protect Citizens from Unlawful Detention Act , which would establish minimum standards of procedure and treatment for U.S. citizens, lawful permanent residents and immigrants who are impacted by immigration enforcement and detention operations. It also includes the Strong STANDARDS Act, which sets minimum detention standards and requires the Secretary of Homeland Security to ensure that laws concerning the treatment of detainees are properly enforced. The Protect Citizens from Unlawful Detention is also co-sponsored by Senator Edward M. Kennedy (D-MA).

"No American citizen ever deserves to be thrown into detention and have their freedom taken away for no reason, but this sort of thing is happening far too often," said Senator Menendez. "People who were born right here in the United States of America have been taken into custody without knowing why, and in some cases, kicked out of the land they call home to countries completely foreign to them. At the same time, people who are thrown into detention are being refused basic medical treatment for conditions that can become deadly. These are fellow human beings who haven't committed any sort of violent crime, yet they are being treated as subhuman, even in the United States of America. Let's make it clear - a detention should never amount to a death sentence. These legislative initiatives will help reinforce what our great country has always stood for: liberty, the rule of law and basic human rights."

"All New Yorkers deserve the protections that our rule of law provides," Senator Gillibrand said. "This legislation will correct the injustices in our system, making sure that U.S. citizens and legal residents are not wrongfully detained and protecting those fleeing torture.  As I travel across New York, I have met families that have experienced horrible injustices and farmers that see their communities under threat.  This bill begins to address these systemic challenges, providing access to counsel, the right to proper Miranda warnings, and appropriate protections for pregnant women, nursing mothers, and New Yorkers with serious health conditions. "

Among others, American Civil Liberties Union, American Immigration Lawyers Association, Amnesty International, Asian American Justice Center, the Episcopal Church, Lutheran Immigration and Refugee Service, Human Rights First, Human Rights Watch, National Council of La Raza, National Immigration Forum, Rights Working Group and the Women's Refugee Commission have endorsed these pieces of legislation.

Bill summaries

Protect Citizens and Residents from Unlawful Detention Act
Senators Menendez (D-NJ) and Gillibrand (D-NY)

Inadequate due process protections in our current law and a failure by the federal government to guarantee protections have led to a crisis where U.S. citizens and other vulnerable individuals who should not be in ICE custody have been mistakenly detained. Mistaken identities, bureaucratic mix-ups, and discriminatory attitudes have contributed to unconstitutional actions against US citizens, lawful permanent residents, and others with legal immigration status. US citizens should not be mistakenly or unlawfully detained, deported, or mistreated by government agents and no one should be subject to government actions that overstep basic constitutional rights.

This bill would establish minimum standards of treatment for U.S. citizens, lawful permanent residents and immigrants who are impacted by immigration enforcement operations.

Protections Against Unlawful Detention of United States Citizens: The proposal would ensure detainees are advised of basic legal rights and legal resources including the availability of free legal services from non-profit service providers and the right to access counsel at no cost to the government. The Department of Homeland Security would be required to provide a notice of charges and other information about the enforcement action upon detaining an individual. The bill requires appropriate access to telephones to call counsel. It restricts the transfer of detainees to facilities far away from the point of arrest if the transfer would impact the attorney-client relationship, among other provisions. Department officials would be trained regarding due process protections available under current law.

Basic Protections for Vulnerable Populations: The bill would establish procedures for U.S. citizens and vulnerable populations encountered during immigration enforcement actions to be considered for release.  An initial decision on whether to detain an individual would be made by DHS within 72 hours of the noncitizen's detention and an Immigration Judge could review the detention. In deciding whether to detain the individual, DHS and the Immigration Judge would consider whether the person poses a flight risk or risk to public safety or national security; and whether he/she is likely to appear for immigration proceedings.

Government Accountability: The bill would require reporting on current enforcement practices and the harmful impact on U.S. citizens, lawful permanent residents and immigrant communities.  The bill also creates an ICE Ombudsman to investigate complaints, assist constituents in resolving complaints and recommend personnel actions to DHS.

Strong Safe Treatment, Avoiding Needless Deaths, and Abuse Reduction in the Detention System (STANDARDS) Act
Senator Robert Menendez and Senator Kirsten Gillibrand

The bill provides minimum requirements that the Secretary of Homeland Security must meet to ensure that all persons detained are treated humanely and the security of the facility is guaranteed. The Department of Homeland Security has performance-based detention standards that require DHS officers to meet requirements for humane treatment however the detention standards have not been consistently enforced. Over 80 detainees have died in custody in recent years and myriad reports by government agencies and non-governmental organizations have found widespread abuse within detention facilities. This bill codifies the most critically important detention standards and requires the Secretary of Homeland Security to ensure that laws relating to the treatment of immigration detainees are enforced. The bill includes the following minimum requirements:

  • Given that detainees are not permitted to access outside medical care, the bill would ensure detainees receive adequate medical and mental health, and dental care, including comprehensive intake screenings
  • Provides an administrative process for handling appeals of denials of medical treatment
  • Restricts transfers of detainees to another facility if such transfer would impair an attorney-client relationship, prejudice the detainee's legal case, or negatively impact the detainee's health
  • Ensure detainees have adequate access to telephones
  • Prevent physical and sexual abuse of detainees
  • Limit the use of solitary confinement and strip searches to situations where it is necessary for security and eliminates the use of these techniques on children
  • Require detention facilities to be acquired in locations where free or low-cost legal representation is available
  • Provide adequate translation services to ensure the safety and security of the facility
  • Provide detainees with access legal information, including an on-site law library
  • Allow legal, family and religious visitors in detention facilities
  • Ensure detainees get an hour of recreation per day
  • Require that all personnel in detention facilities and short-term detention facilities receive comprehensive training
  • Ensure the safe transport and deportation of each individual detained
  • Require that detainees in short term facilities receive water, food, toiletries, access to bathrooms, and ensures protections for children in short-term detention
  • Require that detention facilities accommodate the unique needs of vulnerable populations and children.

To ensure these provisions are enforced, the bill requires the promulgation of regulations that would ensure compliance with above requirements; creates a Detention Commission comprised of government officials and independent experts responsible for investigations of detention facilities and reporting to Congress; and requires immediate reporting of the death of any individual in DHS custody or en route to or from DHS custody.