CBP Detention Standards — H.R.3239

CBP Detention Standards — HR 3239, Humanitarian Standards for Individuals in Customs and Border Protection Custody Act 

The bill establishes standards of care for migrants taken into custody by Customs and Border Protection (CBP). It requires that they promptly be given a health screening by a licensed medical professional; that they be detained in an appropriate non-crowded male, female or age-appropriate child facility; and that while in detention they have access to adequate water and clean sanitary facilities and be able to shower daily. Democrats say conditions at CBP facilities have been shown to be unsafe and unsanitary, and therefore legislation is needed to ensure conditions improve. Republicans say the overcrowding and adverse conditions occurred because the system was overwhelmed, and that Congress could best help by enacting legislation to reduce such migration. The measure is expected to be considered under a closed rule that prohibits amendments.

BACKGROUND: The Judiciary Committee reported the bill by a 18-13 vote (no written report was available as of press time). The Homeland Security Committee did not act on the measure.

    Dramatic increases in migrants from Central America seeking asylum in the United States this year overwhelmed the U.S. border enforcement system. In particular, families and unaccompanied children from El Salvador, Guatemala and Honduras (the so-called Northern Triangle) who are fleeing poverty and violence swamped the ability of U.S. border control agencies to process and house them.

    Border officials earlier this year said the system was at a "breaking point," creating a humanitarian crisis along the southern border with overcrowding at Customs and Border Protection (CBP) facilities, CBP sometimes dropping migrants off in local communities with the expectation the community would provide services the government was unable to, and thousands of unaccompanied children being held by the Health and Human Services (HHS) Department in temporary, unlicensed "influx facilities."

    During the height of the crisis many of the facilities where migrants were being housed were severely overcrowded. In early June a group of lawyers visiting the border patrol station in Clint, Texas, reported unsafe and unsanitary conditions with dozens of children under the age of 12 being held there and children not receiving proper medical care — including infants who had been separated from their mothers who were being cared for by other children.

    Also in June the Homeland Security Department's inspector general visited Border Patrol facilities near the Rio Grande, and in a report released this month warned of "dangerous overcrowding" at those facilities and said the prolonged detention of migrants without proper food, hygiene or laundry facilities required "immediate attention and action."

Congressional Action / Current Situation

    In response to the crises and a request by the Trump administration for more resources, Congress in late June passed legislation (PL 116-26) that provided $4.5 billion in emergency supplemental FY 2019 appropriations to addresses the humanitarian crisis at the southern border — including $2.9 billion for the Health and Human Services (HHS) Department to continue providing shelter and care for unaccompanied children who cross the border.

    However, many liberal House Democrats were angry they had to accept the Senate-passed bill, which they said lacked stricter requirements regarding the quality of housing and care of migrants, in particular migrant children. Liberals have continued to highlight the poor treatment of migrants, and House Democratic leaders vowed to pass separate legislation to address what they say are abuses by federal agencies.

    Since Congress provided the emergency funding the situation has generally improved, partly because of the resources provided and partly because the number of migrants entering the United States has declined due to seasonal conditions (fewer want to cross the desert in the summer) and because Mexican authorities at the behest of the Trump administration are preventing many migrants from reaching the U.S. border.

    Yet there are still many detention facilities that are overcrowded with poor conditions.

    Vice President Mike Pence in mid-July visited two detention facilities on the Texas border, including one, the McAllen Border Patrol station, where hundreds of men were seen crowded in sweltering cages without cots. Many told reporters traveling with the vice president that they had been held there for over 40 days, were hungry and hadn't been able to brush their teeth or have access to deodorant. Some had not showered for 10 or 20 days.

Member Concerns

    Supporters of the bill, primarily Democrats, say conditions at CBP facilities have been shown to be unsafe and unsanitary, and are not reflective of how we should treat refuges entering the United States who are seeking a better life. They say CBP has failed to provide basic health and sanitary conditions at it facilities, therefore legislation is needed to ensure a basic level of care is provided to our fellow human beings. They also argue that giving the inspector general unfettered and unannounced access to CBP detention facilities will provide an incentive for the agency to treat detainees well, and will best help Congress and the public understand what is happening at those facilities.

    Opponents of the bill, primarily Republicans, say the federal government has been doing all it can to take care of the unprecedented influx of migrants, particularly families, who have been entering the United States illegally, and that the overcrowding and adverse conditions occurred simply because the system was overwhelmed. Instead of hamstringing CBP, they say Congress should work to help stem the flow of immigrants by changing U.S. asylum laws that encourage migrants to enter the U.S. in the first place. They agree that CBP should treat all detainees with respect, but say the bill is too prescriptive with a one-size-fits-all approach, and that it would be completely unworkable.

SUMMARY: This bill establishes standards of care for migrants taken into custody by Customs and Border Protection (CBP). It requires that they promptly be given a health screening by a licensed medical professional; that they be detained in an appropriate non-crowded male, female or age-appropriate child facility; and that while in detention they have access to adequate water and clean sanitary facilities and be able to shower daily.

    It requires that the Homeland Security inspector general be able to visit any CBP detention or other facility without prior notice.

Detention Standards

    The bill establishes standards for the detention of migrants taken into custody, requiring that detention facilities be well lit, properly ventilated and kept at a comfortable temperature (specifically defined as between 68 and 74 degrees). CBP could not exceed the maximum occupancy level for a facility, as determined by the local building or fire code, and CBP officials must follow medical standards for the isolation and prevention of communicable diseases.

    It requires that men and women be detained separately, with children to be detained with his or her adult relative or legal guardian — unless an alterative arrangement is needed due to a safety or security concerns. In such cases, the children could not be detained with other adults.

    For children arriving without an adult relative or legal guardian, they must be detained in an age-appropriate facility for children and may not be detained with adults.

    Those with temporary or permanent disabilities must be held in a manner that provides for his or her safety, comfort and security, and CBP must ensure the physical and mental safety of individuals who identify as lesbian, gay, bisexual, transgender and intersex.

    Detainees must also have access to the outdoors for at least one hour per day, and have the ability to practice their religion.

Water & Other Requirements

    All detainees must have access to at least one gallon of drinking water per day and age-appropriate fluids as needed. They must also be able to access a "private, safe, clean, and reliable" toilet with proper waste disposal and hand washing station — with at least one toilet for every 12 males and one for every 8 females.

    Detainees must also have access to clean diaper changing facilities, be able to bathe daily, and access age appropriate products to maintain basic personal hygiene — including soap, toothbrush, toothpaste, adult diapers and feminine hygiene products. They also must receive temperature appropriate clothing and bedding.

    Detainees must have access to three meals a day, including at least 2,000 calories per day for those 12 or older and age appropriate meals for children based on their age.

    All facilities must display a "detainee bill of rights" which lists all rights afforded to detainees under the bill.

Health Screenings

    The bill requires U.S. Customs and Border Protection to develop health care guidelines and protocols for health screening and appropriate medical care for individuals in CBP custody. In developing the standards, CBP must work with the Health and Human Services (HHS) Department, HHS's Health Resources and Services Administration, and non-governmental experts in health care delivery and humanitarian crises.

    Detainees must have access to interpreters, chaperones for all children, and all care must be documented in accordance with commonly accepted medical records standards.

    All locations that house detainees after being taken into custody must include a private, comfortable space to perform health screenings or assessments, appropriate medical equipment and facilities, basic over-the-counter medications, and appropriate transportation to medical facilities in case of a medical emergency (or an on-call service with the ability to respond within 30 minutes). At least one licensed medical professional must be on-site at these facilities.

Initial Screening

    Under the measure, all individuals in CBP custody must receive an initial in-person screening by a licensed medical professional. The screening must assess and identify any illness, condition, or age-appropriate mental or physical symptoms that may have resulted from distressing or traumatic experiences, and must identify acute conditions and high-risk vulnerabilities. CBP must ensure that appropriate health care is provided to individuals as needed.

    While conducting the initial screening, the medical professional must include an interview with standardized medical intake questions, screening of vital signs, screening for blood glucose or suspected diabetes, weight, a physical examination, and a risk assessment and care monitoring plan. The screening must take place "as soon as practicable" but not more than 12 hours from being taken into custody (6 hours for self-identified individuals with a medical condition requiring prompt attention).

    The medical professional must review any prescription that was in the detainee's possession when he or she entered CBP custody, and determine if the medication may be kept by the detainee. A detainee may not be denied the use of "necessary and appropriate" medication during his or detention. Detainees also would not be required to disclose their medical history or status.

Further Medical Care

    If during the initial screening a medical professional determines that a detainee's vital signs are significantly outside normal ranges according to National Emergency Education Standards, or if the individual is identified as high risk or in need of medical intervention, he or she must be provided with a medical consultation with a licensed emergency care professional "as expeditiously as possible." These individuals must be reevaluated within 24 hours.

    All detainees who have experienced physical or sexual violence, or who have experienced trauma or toxic stress, must be provided "basic, humane, and supportive" psychological assistance.

    If a detainee is taken to a medical facility or emergency department, when discharged the CBP must ensure that responsibility of care of that detainee is also transferred to a licensed CBP health care provider. The CBP health care provider must review the detainee's diagnosis, treatment and discharge care instructions to provide necessary follow-up care.

Other Provisions

    The bill requires CBP to ensure that all personnel assigned to short-term facilities are professionally trained, including with regard to humanitarian response protocols, indicators of physical and mental abuse, and indicators of child sexual exploitation and effective responses to missing migrant children. They must also be trained in procedures to report incidents of sexual abuse and exploitation directly to the National Center for Missing and Exploited Children. All CBP facilities must have video monitoring equipment, and all recordings must be preserved for 90 days.

    It requires the department's inspector general to conduct unannounced inspections of CBP ports of entry facilities, border patrol stations and detention facilities, and report to Congress on the results of its inspection — paying particular attention to the degree of the agency's compliance with the bill, remedial actions taken by CBP, and the health needs of detainees.

    Finally, it requires the Government Accountability Office to report to Congress on the act's implementation, including management and oversight of CBP ports of entry, border patrol station stations and other detention facilities. The report must include the extent to which CBP personnel make abusive, derisive, profane or harassing statement or gestures, or engage in conduct (including on social media) showing hatred or invidious prejudice to or about one person or group based on race, color, religion, national origin, sex, sexual orientation, age or disability.