FIRST Act

II 116TH CONGRESS 2D SESSION S. 3645 To require the release of most aliens detained by U.S. Immigration and Customs Enforcement during a national emergency related to a commu- nicable disease. IN THE SENATE OF THE UNITED STATES MAY 7, 2020 Mr. BOOKER (for himself, Ms. WARREN, Ms. HARRIS, Mr. SANDERS, Mrs. GILLIBRAND, Ms. HIRONO, and Mr. MARKEY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To require the release of most aliens detained by U.S. Immi- gration and Customs Enforcement during a national emergency related to a communicable disease. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLES. 3 This Act may be cited as the ‘‘Federal Immigrant Re- 4 lease for Safety and security Together Act’’ or the 5 ‘‘FIRST Act’’. 6 SEC. 2. DEFINITIONS. 7 In this Act: 8 VerDate Sep 11 2014 22:38 May 09, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3645.IS S3645 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3645 IS (1) COVERED HEALTH CONDITION.—The term 1 ‘‘covered health condition’’, with respect to an indi- 2 vidual, means the individual— 3 (A) is pregnant; 4 (B) has chronic lung disease or asthma; 5 (C) has congestive heart failure, coronary 6 artery disease, or hypertension; 7 (D) has diabetes; 8 (E) has epilepsy; 9 (F) has a neurological condition that weak- 10 ens the ability to cough; 11 (G) has human immunodeficiency virus 12 (HIV); 13 (H) has chronic liver or kidney disease (in- 14 cluding hepatitis and dialysis patients); 15 (I) has blood disorders (including sickle 16 cell anemia); 17 (J) has inherited metabolic disorders; 18 (K) had a stroke; 19 (L) has a developmental delay; 20 (M) has cancer or has had cancer during 21 the last 12 months; 22 (N) has a weakened immune system; or 23 (O) has any other condition identified by 24 the Centers for Disease Control and Prevention 25 VerDate Sep 11 2014 22:38 May 09, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3645.IS S3645 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3645 IS to increase the risk of serious illness from a 1 communicable disease. 2 (2) COVERED INDIVIDUAL.—The term ‘‘covered 3 individual’’ means an individual who— 4 (A) is 50 years of age or older; 5 (B) is 21 years of age or younger; or 6 (C) has a covered health condition. 7 (3) ENFORCEMENT ACTION.—The term ‘‘en- 8 forcement action’’ means an apprehension or arrest 9 for the purpose of immigration enforcement. 10 (4) NATIONAL EMERGENCY RELATED TO A 11 COMMUNICABLE DISEASE.—The term ‘‘national 12 emergency related to a communicable disease’’ 13 means— 14 (A) an emergency involving Federal pri- 15 mary responsibility determined to exist by the 16 President under section 501(b) of the Robert T. 17 Stafford Disaster Relief and Emergency Assist- 18 ance Act (42 U.S.C. 5191(b)) with respect to a 19 communicable disease; or 20 (B) a national emergency declared by the 21 President under the National Emergency Act 22 (50 U.S.C. 1610 et seq.) with respect to a com- 23 municable disease. 24 VerDate Sep 11 2014 22:38 May 09, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3645.IS S3645 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3645 IS (5) SENSITIVE LOCATION.—The term ‘‘sensitive 1 location’’ means all physical space located within 2 1,000 feet of— 3 (A) a medical treatment or health care fa- 4 cility, including a hospital, an office of a health 5 care practitioner, an accredited health clinic, an 6 alcohol or drug treatment center, an emergent 7 or urgent care facility, and a community health 8 center; 9 (B) a location at which emergency service 10 providers distribute food or provide shelter; 11 (C) an organization that provides— 12 (i) disaster or emergency social serv- 13 ices and assistance; 14 (ii) services for individuals experi- 15 encing homelessness, including food banks 16 and shelters; or 17 (iii) assistance for children, pregnant 18 women, victims of crime or abuse, or indi- 19 viduals with significant mental or physical 20 disabilities; 21 (D) a public assistance office, including 22 any Federal, State, or municipal location at 23 which individuals may apply for or receive un- 24 VerDate Sep 11 2014 22:38 May 09, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3645.IS S3645 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3645 IS employment compensation or report violations 1 of labor and employment laws; 2 (E) a Federal, State, or local courthouse, 3 including the office of the legal counsel or rep- 4 resentative of an individual; 5 (F) a domestic violence shelter, rape crisis 6 center, supervised visitation center, family jus- 7 tice center, or victim services provider; 8 (G) an office of the Social Security Admin- 9 istration; 10 (H) a childcare facility or a school, includ- 11 ing a preschool, primary school, secondary 12 school, post-secondary school up to and includ- 13 ing a college or university, and any other insti- 14 tution of learning such as a vocational or trade 15 school; 16 (I) a church, synagogue, mosque or any 17 other institution of worship, such as a building 18 rented for the purpose of a religious service; 19 (J) the site of a funeral, wedding, or any 20 other public religious ceremony; 21 (K) in the case of a jurisdiction in which 22 a shelter-in-place order is in effect during a 23 coronavirus public health emergency, any busi- 24 ness location considered to provide an essential 25 VerDate Sep 11 2014 22:38 May 09, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3645.IS S3645 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3645 IS service, such as a pharmacy or a grocery store; 1 and 2 (L) any other location specified by the Sec- 3 retary of Homeland Security. 4 SEC. 3. RELEASE OF CERTAIN COVERED INDIVIDUALS. 5 (a) RELEASE.—During the period beginning on the 6 date on which a national emergency related to a commu- 7 nicable disease is declared, the Secretary of Homeland Se- 8 curity shall release from detention all covered individuals 9 who are in the custody of U.S. Immigration and Customs 10 Enforcement without requiring any covered individual to 11 post a bond. 12 (b) EXCEPTION.—In carrying out subsection (a), the 13 Secretary— 14 (1) may not release any individual determined, 15 by clear and convincing evidence, to be likely to pose 16 a specific and substantial risk of causing bodily in- 17 jury or using violent force against the person of an- 18 other; 19 (2) shall place, in the A-file of each individual 20 described in paragraph (1), documentation of the de- 21 termination described in such paragraph, including 22 the evidence used to make such determination; 23 (3) not later than 180 days after the date on 24 which the national emergency relating to a commu- 25 VerDate Sep 11 2014 22:38 May 09, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3645.IS S3645 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3645 IS nicable disease expires, shall submit a report to Con- 1 gress that documents— 2 (A) the demographic data (including coun- 3 try of origin, race, gender, age, the status and 4 basis of removal proceedings, and criminal his- 5 tory) of the individuals denied release pursuant 6 to paragraph (1); and 7 (B) the justification for such denials; and 8 (4) may not use the results of any determina- 9 tion under paragraph (1) as evidence in any under- 10 lying immigration proceeding. 11 (c) NOTICE.—The Secretary shall provide notice to 12 nonprofit organizations providing services to immigrants 13 in the communities surrounding a detention facility if 14 more than 25 individuals are released from such facility 15 in a 24-hour period. 16 SEC. 4. REVIEW OF IMMIGRATION FILES. 17 (a) MANDATORY REVIEW.— 18 (1) IN GENERAL.—Notwithstanding any other 19 provision of law that mandates detention, the Sec- 20 retary of Homeland Security shall determine wheth- 21 er each individual in detention who is not a covered 22 individual will remain in detention for the duration 23 of a national emergency. 24 VerDate Sep 11 2014 22:38 May 09, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3645.IS S3645 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3645 IS (2) PROCESS.—Not later than 7 days after the 1 declaration of a national emergency related to a 2 communicable disease, the Secretary shall establish 3 a process for reviewing the immigration files of all 4 individuals in detention who are not covered individ- 5 uals, and apply a presumption that aliens should be 6 released based upon the need to significantly reduce 7 the detention population due to the risk of spread of 8 a communicable disease in congregate setting. 9 (b) EXCEPTIONS.— 10 (1) IN GENERAL.—In carrying out subsection 11 (a), the Secretary— 12 (A) may only rebut the presumption of re- 13 lease based on a credible and individualized de- 14 termination by clear and convincing evidence 15 that— 16 (i) the use of alternatives to detention, 17 including release on recognizance or parole, 18 will not reasonably ensure the appearance 19 of the individual at removal proceedings; or 20 (ii) the individual is likely to pose a 21 specific and substantial risk of causing 22 bodily injury or using violent force against 23 the person of another; 24 VerDate Sep 11 2014 22:38 May 09, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3645.IS S3645 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 3645 IS (B) may not release an individual with a 1 final order of removal entered against him or 2 her, after all appeals have been exhausted if the 3 removal of such alien is reasonably foreseeable; 4 and 5 (C) may not use the results of any deter- 6 mination under this section as evidence in any 7 underlying immigration proceeding. 8 (2) PENDING CRIMINAL CHARGE OR PAST CON- 9 VICTIONS.—For purposes of paragraph (1)(A), the 10 Secretary may not justify the continued detention of 11 an individual solely based on the fact that the indi- 12 vidual— 13 (A) has a criminal charge pending against 14 him or her; or 15 (B) was convicted of a crime more than 5 16 years previously. 17 (3) REASONABLY FORESEEABLE DEFINED.— 18 (A) IN GENERAL.—For purposes of para- 19 graph (1)(C), the removal of an alien is reason- 20 ably foreseeable if the Government— 21 (i) has already obtained travel docu- 22 ments for the alien; or 23 (ii) can demonstrate, by clear and 24 convincing evidence, that such travel docu- 25 VerDate Sep 11 2014 22:38 May 09, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3645.IS S3645 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 3645 IS ments will likely be obtained within 10 1 days. 2 (B) EXCEPTION.—For purposes of para- 3 graph (1)(C), the removal of an alien is not rea- 4 sonably foreseeable if such removal is not likely 5 during the period of the national emergency re- 6 lated to a communicable disease due to— 7 (i) the unavailability of transportation 8 options to the country of removal; or 9 (ii) the refusal of the country of re- 10 moval to accept the repatriation of the 11 alien during such period. 12 (c) REPORT.—Not later than 180 days after the expi- 13 ration of the national emergency related to a commu- 14 nicable disease, the Secretary of Homeland Security shall 15 submit a report to Congress that documents— 16 (1) the demographic data (including country of 17 origin, race, gender, age, the status and basis of re- 18 moval proceedings, and criminal history) of the indi- 19 viduals denied release pursuant to subsection (a); 20 and 21 (2) the justification for such denials. 22 SEC. 5. LIMITATION ON INTERIOR ENFORCEMENT. 23 (a) IN GENERAL.—Except as provided in subsection 24 (c), beginning on the date on which a national emergency 25 VerDate Sep 11 2014 22:38 May 09, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3645.IS S3645 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 3645 IS related to a communicable disease is declared and ending 1 on the date that such national emergency expires, U.S. 2 Immigration and Customs Enforcement shall take meas- 3 ures to prevent the spread of the communicable viral dis- 4 ease by suspending— 5 (1) the requirement that individuals under su- 6 pervision or enrolled in Enforcement and Removal 7 Operations’ Intensive Supervision Appearance Pro- 8 gram report in-person; 9 (2) enforcement in sensitive locations without a 10 valid judicial warrant; and 11 (3) enforcement actions. 12 (b) SUSPENSION OF COLLATERAL ARRESTS.—Except 13 as provided in subsection (c), if an individual, who is only 14 in violation of civil immigration law, is encountered by 15 U.S. Immigration and Customs Enforcement, the indi- 16 vidual may be issued charging documents, but may not 17 be taken into custody or placed in detention. 18 (c) EXCEPTION.—The suspensions under subsections 19 (a)(1), (a)(3), and (b) shall not apply to individuals who 20 are determined, by clear and convincing evidence, to be 21 likely to pose a specific and substantial risk of causing 22 bodily injury or using violent force against another person. 23 VerDate Sep 11 2014 22:38 May 09, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3645.IS S3645 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 3645 IS SEC. 6. ACCESS TO TELEPHONIC AND VIDEO COMMUNICA- 1 TION AND HYGIENE PRODUCTS. 2 During the period beginning on the date on which 3 a national emergency related to a communicable disease 4 is declared and ending on the date that is 60 days after 5 the expiration of such national emergency, the Secretary 6 shall ensure that— 7 (1) all persons in the custody of U.S. Immigra- 8 tion and Customs Enforcement— 9 (A) have access to telephonic or video com- 10 munication at no cost to the detained indi- 11 vidual; 12 (B) have access to free, unmonitored phone 13 calls, at any time, to contact attorneys or legal 14 service providers in a sufficiently private space 15 to protect confidentiality; 16 (C) are permitted to receive legal cor- 17 respondence by fax or email rather than postal 18 mail; and 19 (D) are provided sufficient soap, hand san- 20 itizer, and other hygiene products; and 21 (2) nonprofit organizations providing legal ori- 22 entation programming or know-your-rights program- 23 ming to immigrants are permitted broad and flexible 24 access— 25 VerDate Sep 11 2014 22:38 May 09, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3645.IS S3645 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 3645 IS (A) to provide group presentations by 1 video-conference; and 2 (B) to schedule and receive free calls or 3 televideo conferences from individuals in cus- 4 tody for individual orientations. 5 SEC. 7. EXPIRATION OF NATIONAL [Text truncated for display. Full text available on Congress.gov.]