OPEN Act

This Act may be cited as the “Oversight, Protection, and Enforcement Notification Act” and “OPEN Act”.

In this section:

(1) Chokehold or carotid hold.— The term chokehold or carotid hold means the application of any pressure to the throat or windpipe, the use of maneuvers that restrict blood or oxygen flow to the brain, or carotid artery restraints that prevent or hinder breathing or reduce intake of air of an individual.

(2) Conduct exceeding authorized authority.— The term conduct exceeding authorized authority means any action taken without legal authorization, outside the scope of assigned duties, or in violation of Federal law, regulation, or Department of Homeland Security policy, including—

(A) conducting a stop, search, entry, arrest, or detention without legal authority, a valid warrant, or required supervisory approval;

(B) misrepresenting identity, authority, or purpose to gain compliance or entry;

(C) conducting enforcement activity outside an assigned geographic area, mission scope, or operational plan;

(D) using unapproved tactics, equipment, or vehicles, including failure to comply with identification or uniform requirements;

(E) acting in violation of constitutional protections, civil rights laws, or court orders; and

(F) any action involving sexual violence.

(3) Excessive force.— The term excessive force means the use of physical force or weapons beyond what is objectively reasonable and necessary, including—

(A) discharging or brandishing a firearm at any individual or vehicle;

(B) using a chemical agent, a conducted energy device, a baton, or an impact weapon;

(C) any action involving a physical takedown, a chokehold, or the placement of an individual on the ground;

(D) using restraints or force resulting in bodily injury, hospitalization, or death; and

(E) using deadly force to incapacitate a subject.

(4) Member of congress.— The term Member of Congress includes any Senator, Representative, Delegate, or Resident Commissioner of the United States Congress.

(a) Access to immigration detention facilities.—

(1) In general.— The Secretary of Homeland Security shall ensure that all Members of Congress are given unrestricted access, without advance notice, to all immigration detention facilities used or operated by the Department of Homeland Security, including facilities operated by U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection, regional processing centers, field offices, State-run facilities, and privately operated or contracted facilities, regardless of the source of funding for such facilities.

(2) Scope of access.— Access to immigration detention facilities required under paragraph (1) shall include—

(A) access to all of the areas in such facilities;

(B) the ability to speak privately with detained individuals and facility personnel on the same day as the visit and without prior authorization;

(C) the ability to observe conditions of confinement and compliance with applicable Federal law, regulations, and standards; and

(D) the ability of a Member of Congress, a State or local elected official, or a representative of a local health and safety agency to be accompanied by congressional staff and, at the discretion of the Member, official, or representative, subject matter experts, including medical professionals, legal experts, interpreters, and other individuals who such Member, official, or representative considers necessary to assist in evaluating facility conditions and compliance with applicable laws and standards.

(3) Access for legal counsel, faith leaders, and family members.— The Secretary of Homeland Security shall ensure that detained individuals have timely and reasonable access to legal counsel, faith leaders, and family members, including the ability to communicate privately and in person whenever practicable, subject only to narrowly tailored limitations that are necessary to protect the safety and security of the facility in which such individuals are detained.

(4) Prohibition on delay or denial.—

(A) In general.— The operator of an immigration detention facility may not delay, condition, restrict, or deny access to such facility to a Member of Congress on the basis of staffing limitations, operational considerations, contractual arrangements, or facility designation.

(B) Notice.— Not later than 72 hours after discovering that a Member of Congress' access to an immigration detention facility was delayed or denied for any reason, the Director of U.S. Immigration and Customs Enforcement or the Commissioner of U.S. Customs and Border Protection shall submit a detailed report identifying the reasons for such delay and denial and describing the steps that will be taken to prevent future delays or denials to—

(i) the Committee on Appropriations of the Senate;

(ii) the Committee on Homeland Security and Governmental Affairs of the Senate;

(iii) the Committee on the Judiciary of the Senate;

(iv) the Committee on Appropriations of the House of Representatives;

(v) the Committee on Homeland Security of the House of Representatives;

(vi) the Committee on the Judiciary of the House of Representatives; and

(vii) the Office of Inspector General of the Department of Homeland Security.

(5) Consequences for repeated noncompliance.—

(A) In general.— If access to an immigration detention facility is delayed or denied to 2 or more Members of Congress in violation of this subsection during any fiscal year, the Secretary of Homeland Security shall ensure that any officer, employee, or contractor of the Department of Homeland Security who knowingly delays, restricts, or denies access to such a facility in violation of this subsection is subject to appropriate administrative or contractual disciplinary action.

(B) Notification.— The Secretary shall notify the committees listed in paragraph (4)(B) not later than 48 hours after determining a violation described in subparagraph (A) has occurred.

(6) Rule of construction.— Nothing in this subsection may be construed to limit the authority of Congress to impose additional requirements or restrictions through appropriations Acts or other legislation.

(b) Public reporting requirements.— The Secretary of Homeland Security shall track and publicly report, on an aggregated basis without including personally identifiable information of those involved, all allegations and incidents in which immigration enforcement officers or agents, during an immigration enforcement operation or while an individual is detained by the Department of Homeland Security—

(1) used excessive force to carry out their objective;

(2) engaged in conduct exceeding authorized authority;

(3) detained a United States citizen;

(4) mistakenly detained or arrested an individual who should not have been detained or arrested;

(5) perpetrated sexual assault, abuse, or harassment; or

(6) engaged in other misconduct.

(c) Detention accountability and grievance procedures.—

(1) Grievance process.— The Secretary of Homeland Security shall ensure that each immigration detention facility used or operated by the Department of Homeland Security or its contractors maintains a confidential and accessible grievance process through which detained individuals may report grievances regarding—

(A) the use of excessive force;

(B) violations of Federal law, detention standards, or Department policy;

(C) threats, intimidation, retaliation, or abuse by facility personnel; or

(D) sexual assault, abuse, or harassment.

(2) Accessibility requirements.— The grievance process required under paragraph (1) shall—

(A) be available in all languages commonly spoken by detained individuals;

(B) permit grievances to be filed orally or in writing;

(C) allow detained individuals to submit grievances without interference or retaliation; and

(D) provide timely review and resolution of such grievances.

(3) Accountability for excessive force or misconduct.— If an investigation conducted by the Department of Homeland Security, the Office of Inspector General of the Department, the Office of Professional Responsibility of the Department, U.S. Immigration and Customs Enforcement, a local field office, or any other authorized investigative entity determines that an officer, employee, or contractor used excessive force against a detained individual, the head of the agency with jurisdiction over the facility shall ensure that such individual—

(A) is immediately removed from duties involving the supervision, custody, or transport of detained individuals at the facility at which the incident occurred; and

(B) is not permitted to return to perform such duties.

(4) Sexual abuse and assault prevention and intervention program.— Not less frequently than annually, the Secretary of Homeland Security shall publish facility-specific information for each immigration detention facility regarding each facility's compliance with U.S. Immigration and Customs Enforcement's Sexual Abuse and Assault Prevention and Intervention Program, including—

(A) the number of allegations of sexual abuse or harassment reported at such facility;

(B) the status and outcome of investigations into such allegations;

(C) whether the facility was found compliant with applicable standards under the Sexual Abuse and Assault Prevention and Intervention Program; and

(D) any corrective actions required and the status of such actions.

(a) Use of force.— In carrying out immigration enforcement operations, immigration enforcement officers and agents may not use excessive force.

(b) Detainee rights.— The Secretary of Homeland Security shall ensure, after an immigration enforcement officer or agent detains any individual—

(1) a member of such individual's immediate family, as determined by the detained individual, is notified of such detention by the Department of Homeland Security not later than 5 hours after the commencement of such detention;

(2) such individual is guaranteed access to at least 1 phone call within 5 hours after the commencement of the detention;

(3) such individual is guaranteed reasonable access to legal counsel and a faith leader not later than 12 hours after the commencement of the detention and periodically thereafter, either in person or through telephonic communication; and

(4) such individual is guaranteed reasonable accommodations to facilitate the signing of any necessary legal documentation.

(c) Medical and mental health services.— The Secretary of Homeland Security shall ensure that—

(1) after an immigration enforcement officer or agent detains any individual, such individual is provided timely medical and mental health services, including access to emergency care and chronic condition management, in accordance with the standards established under the National Detention Standards and the Performance-Based National Detention Standards;

(2) any individual in detention with care provided by the Department of Veterans Affairs should have access to health care services provided by the Department of Veterans Affairs;

(3) if an individual described in paragraph (1) is transferred to a hospital or emergency room—

(A) the individual's legal counsel or designated representative is immediately notified; and

(B) family members or a designated emergency contact are notified of the location of such hospital or emergency room as soon as practicable; and

(4) procedures are implemented to allow family members or legal representatives of such individuals to drop off valid prescription medications and necessary medical devices for use in detention facilities, including CPAP machines, mobility aids, and glucose monitors, for the individual’s use after such items are cleared through standard security and medical review.

(d) Transportation and transfers.—

(1) Notice of transfer.— Not later than 24 hours after any detained individual is transferred to another detention facility, the head of the facility housing the individual shall notify the individual’s legal counsel, designated representative, and next of kin, as applicable, of—

(A) the specific name and address of the facility to which the individual has been transferred; and

(B) the direct contact information for such facility, including a primary phone number and a point of contact for inquiries from the family and legal representative of such individual.

(2) Justification for transfer.—

(A) In general.— Before any transfer described in paragraph (1), the Director of the facility or the field office shall provide a written justification to the detained individual and such individual's legal counsel detailing the specific administrative or safety reason for such transfer, such as medical necessity, facility capacity, or specialized housing requirements.

(B) Medical transfer summaries.— The Director of the facility from which a detained individual is being transferred shall provide a medical transfer summary with respect to such individual to the receiving facility.

(C) Observations.— Officers involved in the transfer of detained individuals between detention facilities shall share with the receiving facility any observations suggesting the detained individual—

(i) has engaged in self-injurious behavior; or

(ii) has expressed a desire to harm himself or herself during such transfer.

(D) Specialty care.— A detained individual in need of specialty care may not be transferred to a detention facility that lacks the resources to provide such care unless such resources may be easily procured from a nearby hospital, clinic, or doctors' office.

(3) Bed availability and facility standards.— A transfer described in paragraph (1) may not occur unless the Director of both the originating and receiving detention facilities attest that—

(A) a dedicated bed and appropriate housing space are available at the destination facility to which the individual is being transferred; and

(B) such destination facility meets all applicable Federal detention standards, including having the medical and mental health resources to maintain the individual's continuity of care.

(4) Additional detention standards.— All transfers of detained individuals shall comply with all applicable standards established by the Secretary of Transportation, including—

(A) minimum protections during transport, including—

(i) the use of seatbelts or secure seating for all individuals during vehicle movement;

(ii) prohibition on transport in overcrowded conditions or standing-room configurations;

(iii) access to adequate ventilation, temperature control, food, drinking water, and necessary medications; and

(iv) for individuals who are restrained or shackled—

(I) the application or adjustment of such restraints shall allow the individual the physical range of motion necessary to safely drink water and consume food without assistance; or

(II) if the security level of the restraint prevents the individual from self-feeding or self-drinking, the provision of direct, safe assistance to ensure the individual is able to eat and drink fully and comfortably;

(B) regular bathroom breaks, including—

(i) access to restroom facilities not less frequently than once every 2 hours during transport;

(ii) reasonable accommodations for children, elderly individuals, pregnant women, and individuals with medical conditions; and

(iii) mandatory reasonable accommodations for individuals with physical, sensory, intellectual, or mental health disabilities, including the provision of vehicles and communication assistance in full compliance with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.); and

(C) safety protocols, including—

(i) medical screening before transport to identify health risks, disabilities, or special needs;

(ii) continuous monitoring of individuals during transport by trained personnel;

(iii) prohibiting the use of restraint methods that impede breathing, circulation, or safe seating during transport;

(iv) maintaining written transport logs documenting the duration, conditions, stops, and personnel involved;

(v) operating audio or video recording equipment, where available, for the duration of transport; and

(vi) protecting mobility and medical devices by ensuring such items are transported with the individual and are not separated or damaged during the transfer process.

(5) Documentation and reporting.— Not later than 24 hours after each incident involving a violation by a transporting officer or agent of any standard described in paragraph (4), such incident shall be—

(A) documented by the supervisor of such officer or agent, which documentation shall include—

(i) the nature of the violation;

(ii) the duration of the transport during which such violation occurred;

(iii) the individuals affected by such violation;

(iv) any corrective actions taken to prevent future violations; and

(v) any disciplinary or remedial measures imposed on the violator; and

(B) reported to—

(i) the Office for Civil Rights and Civil Liberties of the Department of Homeland Security;

(ii) the Office of Inspector General of the Department of Homeland Security; and

(iii) the appropriate congressional committees.

(e) Office for Civil Rights and Civil Liberties.— The Secretary of Homeland Security shall—

(1) reconstitute the Office for Civil Rights and Civil Liberties of the Department of Homeland Security; and

(2) ensure such Office has an independent reporting structure, including direct reporting authority to the Secretary of Homeland Security, for purposes of investigating, reviewing, and reporting on civil rights and civil liberties violations related to immigration enforcement or detention.

(a) In general.— U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection may not acquire and repurpose any warehouse, State-run facility, or correctional facility as a detention center for individuals who are awaiting removal proceedings or are in Federal custody absent full compliance with the requirements set forth in subsection (b).

(b) Requirements for conversion of existing facilities.—

(1) Compliance and financial accountability.—

(A) In general.— The new immigrant detention center shall be operated in full compliance with all applicable Federal detention and safety standards.

(B) Contractual penalties.— The Secretary of Homeland Security shall ensure all contracts for the operation of immigration detention centers include enforceable financial clawbacks and liquidated damages provisions to be triggered by a persistent or systemic failure to adhere to all applicable Federal detention and safety standards.

(2) Guaranteed access.— All individuals housed at any immigration detention center shall be guaranteed regular access to legal counsel, faith leaders, and family members, either in person or through telephonic communication, in accordance with paragraphs (2) and (3) of section 3(a).

(3) Independent inspections and timeline.—

(A) In general.— Each immigration detention center shall be subject to a rigorous inspection schedule.

(B) Pre-operational audit.— An independent inspection of each new immigration detention facility shall be completed and published not later than 30 days before any contract is executed for the operation of such facility.

(C) Recurring access.— State Attorneys General, the Office for Civil Rights and Civil Liberties of the Department of Homeland Security, and a court-appointed independent monitor shall have unrestricted, unannounced access to each immigration detention facility at any time.

(D) Reporting.— Not later than 14 days after conducting an inspection of an immigration detention facility, the Secretary of Homeland Security shall submit a report containing the results of such inspection to—

(i) the appropriate congressional committees; and

(ii) the Governor of the State in which such facility is located.

(4) Commencement of operations.— A new immigration detention center may not commence operations without full transparency and oversight in accordance with this subsection.

(5) Notice; briefings.— The Secretary of Homeland Security shall provide advance written notice and ongoing coordination to the Governor, State attorney general, and appropriate local government officials in the jurisdiction in which any new immigration detention center is located, including—

(A) notice of the intent to establish, expand, or materially modify operations at the facility; and

(B) regular briefings regarding population levels, medical capacity, emergency protocols, and public safety impacts.

(6) Intergovernmental consultation.—

(A) In general.— The Secretary of Homeland Security shall establish procedures for consulting with appropriate State and local government officials regarding any new immigration detention center’s impact on local infrastructure.

(B) Certification requirement.— The Secretary shall certify that each new immigration detention center adheres to all applicable State health and safety standards unless such standards directly conflict with the execution of Federal immigration law.

(c) Rule of construction.— Nothing in this section may be construed to waive the supremacy of Federal law.

(a) Judicial warrants.— Notwithstanding any other provision of law, including the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) and any regulation or policy issued by the Department of Homeland Security, an officer or agent of U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection may not arrest or detain an individual without a judicially enforceable warrant issued by a magistrate judge or a judge appointed under article III of the Constitution of the United States who has been duly confirmed by the Senate.

(b) Administrative warrants.—

(1) In general.— Except as provided in paragraph (2), an administrative warrant, including a warrant of arrest or removal issued by an officer or employee of the Department of Homeland Security, may not—

(A) authorize entry into a private residence or dwelling; or

(B) be used to justify forced entry, coercive entry, or entry without consent.

(2) Exceptions.— The restrictions set forth in paragraph (1) shall not apply with respect to an individual who is determined to be a flight risk or a danger to the public.

(c) Remedies for violations.— If an immigration enforcement action is conducted in violation of this section—

(1) any information obtained as a result of such action shall be prohibited from being entered into the record or received into evidence in a removal proceeding for purposes of establishing alienage or chargeability; and

(2) the noncitizen who is the subject of such removal proceedings may file a motion to enforce the prohibition described in paragraph (1), including through a motion to terminate such proceedings.