S 3594 ISCommentsClose CommentsPermalink

To protect United States citizens from unlawful arrest and detention.CommentsClose CommentsPermalink

September 25 (legislative day, September 17), 2008CommentsClose CommentsPermalink

Mr. MENENDEZ (for himself and Mr. KENNEDY) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

To protect United States citizens from unlawful arrest and detention.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Protect Citizens and Residents from Unlawful Raids and Detention Act’.CommentsClose CommentsPermalink

SEC. 2. FINDINGS.

Congress finds the following:CommentsClose CommentsPermalink





(1) Since 2006, the Department of Homeland Security and partnering law enforcement agents have amplified enforcement actions at the workplace, on the street, and inside the homes of individuals.CommentsClose CommentsPermalink





(2) A large majority of the children affected by such enforcement actions are United States citizens and the youngest and most vulnerable in our society, including infants, toddlers, and preschoolers.CommentsClose CommentsPermalink





(3) In the workplace, thousands of hardworking lawful permanent residents, United States citizens, and immigrants have been questioned, handcuffed, and detained without adequate protections to safeguard their constitutional rights.CommentsClose CommentsPermalink





(4) In several recent immigration raids and immigration enforcement activities, officials at United States Immigration and Customs Enforcement have unlawfully detained United States citizens and lawful permanent residents.CommentsClose CommentsPermalink





(5) Mistaken identities, bureaucratic mix-ups, and discriminatory attitudes further contribute to improper immigration actions taken against United States citizens, lawful permanent residents, and other persons with legal immigration status.CommentsClose CommentsPermalink





(6) The United States should not be a place where citizens and lawful permanent residents are unlawfully detained or mistreated by government agents.CommentsClose CommentsPermalink





(7) No person in America should be subject to government actions that overstep basic protections or constitutional rights.CommentsClose CommentsPermalink

SEC. 3. DEFINITIONS.

In this Act:CommentsClose CommentsPermalink





(1) DETENTION- The term ‘detention’, in the context of an immigration-related enforcement activity, means government custody or any significant deprivation of an individual’s freedom of action by government agents.CommentsClose CommentsPermalink





(2) DETENTION FACILITY- The term ‘detention facility’ means any Federal, State, or local government facility, or facility which provides services under government contract that is used to hold immigration detainees for more than 72 hours.CommentsClose CommentsPermalink





(3) IMMIGRATION-RELATED ENFORCEMENT ACTIVITY- The term ‘immigration-related enforcement activity’ means any government action in which--CommentsClose CommentsPermalink





(A) an individual suspected of an immigration violation is detained for such violation; orCommentsClose CommentsPermalink





(B) an individual who has been detained on criminal charges is questioned about possible immigration violations.CommentsClose CommentsPermalink





(4) VULNERABLE POPULATIONS- The term ‘vulnerable populations’ means classes of aliens or other individuals who have special needs requiring special treatment and consideration because of past abuse, harm, or other physical or mental characteristics that place the individual at special risk of harm.CommentsClose CommentsPermalink

SEC. 4. PROTECTIONS AGAINST UNLAWFUL DETENTIONS OF UNITED STATES CITIZENS AND LAWFUL PERMANENT RESIDENTS.

(a) Notifications-CommentsClose CommentsPermalink





(1) IN GENERAL- An officer of United States Immigration and Customs Enforcement or other government law enforcement officer may not question an individual who has been detained on the basis of a suspected immigration violation or has been detained during an immigration-related enforcement activity, unless the officer has advised the individual, in the language spoken by the individual--CommentsClose CommentsPermalink





(A) of the right to be represented at no expense to the Federal Government;CommentsClose CommentsPermalink





(B) that he or she may choose to remain silent; andCommentsClose CommentsPermalink





(C) that any statement may be used against him or her in a subsequent proceeding.CommentsClose CommentsPermalink





(2) EFFECT OF VIOLATION- Any statement obtained by the government from an individual in violation of the requirements set forth in subparagraphs (A) through (C) of paragraph (1) shall not be admissible in the Federal Government’s case-in-chief in any removal proceeding against the individual.CommentsClose CommentsPermalink





(b) Access to Counsel-CommentsClose CommentsPermalink





(1) IN GENERAL- An individual who is detained during an immigration-related enforcement activity may be represented by legal counsel at any time at no expense to the Federal Government.CommentsClose CommentsPermalink





(2) LIST OF FREE LEGAL SERVICES- The examining officer shall--CommentsClose CommentsPermalink





(A) at the time of detention of an individual for an immigration-related violation, provide the individual with a list of available free or low-cost legal services provided by organizations and attorneys that are located in the district where the arrest is taking place; andCommentsClose CommentsPermalink





(B) certify on the notice to appear issued to such individual that such a list was provided to the individual.CommentsClose CommentsPermalink





(3) AMENDMENT- Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended--CommentsClose CommentsPermalink





(A) by redesignating subsection (e) as subsection (h);CommentsClose CommentsPermalink





(B) by redesignating subsections (b), (c), and (d) as subsections (c), (d), and (e), respectively; andCommentsClose CommentsPermalink





(C) by inserting before subsection (h), as redesignated, the following:CommentsClose CommentsPermalink





‘(g) Right to Access Counsel- An individual who has been detained under this section may be represented, at no expense to the Federal Government, by counsel of the individual’s choosing while being subject to any immigration-related enforcement activity, including--CommentsClose CommentsPermalink





‘(1) interviews;CommentsClose CommentsPermalink





‘(2) processing appointments;CommentsClose CommentsPermalink





‘(3) hearings; andCommentsClose CommentsPermalink





‘(4) any procedure which may result in a conclusion that the individual will be detained or removed from the United States.’.CommentsClose CommentsPermalink





(c) Notice-CommentsClose CommentsPermalink





(1) AMENDMENT- Section 236 of the Immigration and Nationality Act, as amended by subsection (b)(3), is further amended by inserting before subsection (g) the following:CommentsClose CommentsPermalink





‘(f) Notice and Charges-CommentsClose CommentsPermalink





‘(1) NOTICE- The Secretary of Homeland Security shall, for each individual detained under this section--CommentsClose CommentsPermalink





‘(A) file a notice to appear or other relevant charging document with the closest immigration court to where the individual was apprehended; andCommentsClose CommentsPermalink





‘(B) serve such notice on the individual not later than 48 hours after the commencement of the individual’s detention.CommentsClose CommentsPermalink





‘(2) CUSTODY DETERMINATION- Any individual who is detained under this section for more than 48 hours shall be brought before an immigration judge for a custody determination not later than 72 hours after the commencement of such detention unless the individual waives such right in accordance with paragraph (3).CommentsClose CommentsPermalink





‘(3) WAIVER- The requirements under this subsection may be waived for 7 days if the individual--CommentsClose CommentsPermalink





‘(A) enters into a written agreement with the Department of Homeland Security to waive such requirement; andCommentsClose CommentsPermalink





‘(B) is eligible for immigration benefits or demonstrates eligibility for a defense against removal.’.CommentsClose CommentsPermalink





(2) APPLICABILITY OF OTHER LAW- Nothing in 236(f) of the Immigration and Nationality Act, as added by paragraph (1), may be construed to repeal section 236A of such Act (8 U.S.C. 1226a).CommentsClose CommentsPermalink





(d) Issuance of Detainers-CommentsClose CommentsPermalink





(1) LIMITATION- An official of the Department of Homeland Security may not issue a detainer unless the official--CommentsClose CommentsPermalink





(A) has confirmed that the individual who is the subject of such detainer is not a United States citizen; andCommentsClose CommentsPermalink





(B) notes the information collected regarding the individual’s alienage on the detainer.CommentsClose CommentsPermalink





(2) RULEMAKING- The Secretary of Homeland Security shall issue regulations requiring officials of the Department of Homeland Security to confirm an individual’s alienage before issuing a detainer by confirming the name, date of birth, fingerprints, or other identifying information of the individual.CommentsClose CommentsPermalink





(e) Access to Telephones- Not later than 6 hours after the commencement of a detention of an individual during an immigration-related enforcement activity, an official of the Department of Homeland Security shall provide such individual with free access to a telephone to make a telephone call.CommentsClose CommentsPermalink





(f) Protection of Community Institutions-CommentsClose CommentsPermalink





(1) IN GENERAL- The Secretary of Homeland Security shall issue regulations requiring officials of the Department of Homeland Security to--CommentsClose CommentsPermalink





(A) avoid the apprehension of persons on the premises or in the immediate vicinity of day care centers, schools, legal service providers, courts, funeral homes, cemeteries, colleges, victim services agencies, social service agencies, hospitals, health care clinics, and places of worship; andCommentsClose CommentsPermalink





(B) tightly control investigative operations at the places described in subparagraph (A).CommentsClose CommentsPermalink





(2) NOTICE TO APPEAR- The Secretary of Homeland Security shall amend the Notice to Appear form to include a statement that no immigration enforcement activity was undertaken in any of the community institutions described in paragraph (1)(A).CommentsClose CommentsPermalink





(g) Transfer of Detainees-CommentsClose CommentsPermalink





(1) PROCEDURES- In adopting procedures governing the transfer of individuals detained under section 236 of the Immigration and Nationality Act (8 U.S.C. 1226), the Secretary of Homeland Security shall promulgate regulations requiring officials of the Department of Homeland Security to give substantial weight to--CommentsClose CommentsPermalink





(A) the detainee’s access to legal representation;CommentsClose CommentsPermalink





(B) the detainee’s residence prior to apprehension;CommentsClose CommentsPermalink





(C) the location of family members;CommentsClose CommentsPermalink





(D) the stage of any legal proceeding involving the detainee;CommentsClose CommentsPermalink





(E) the proximity of the transferee facility to the venue of such proceeding;CommentsClose CommentsPermalink





(F) the detainee’s health and medical fitness; andCommentsClose CommentsPermalink





(G) whether the detainee has a pending application with United States Citizenship and Immigration Services or the Executive Office for Immigration Review or has appeared for a merits calendar hearing.CommentsClose CommentsPermalink





(2) NOTICE- Unless exigent circumstances dictate an immediate transfer, the Secretary of Homeland Security--CommentsClose CommentsPermalink





(A) shall provide not less than 72 hours notice to any detainee before transferring the detainee to another detention facility; andCommentsClose CommentsPermalink





(B) shall not transfer any detainee who has already requested, and is awaiting, a bond hearing.CommentsClose CommentsPermalink





(3) OTHER REQUIREMENTS-CommentsClose CommentsPermalink





(A) IN GENERAL- Except as provided under paragraph (B), the Secretary may not transfer a detainee who has an existing attorney-client relationship to another facility if such transfer would--CommentsClose CommentsPermalink





(i) impair the existing attorney-client relationship; orCommentsClose CommentsPermalink





(ii) prejudice the rights of the detainee in any legal proceeding.CommentsClose CommentsPermalink





(B) EXCEPTION- The Secretary may transfer a detainee who has an existing attorney-client relationship to an alternate detention facility if such transfer is necessitated by a highly unusual emergency, such as a natural disaster or comparable emergency.CommentsClose CommentsPermalink





(C) PROTECTING DETAINEES LEGAL RIGHTS- If the Secretary determines that a transfer is necessary due to a highly unusual emergency, the Secretary shall ensure that the detainee’s legal rights are not prejudiced and the existing attorney client relationship is not impaired, including evaluating the location of the detention facility based on it proximity to the detainee’s counsel or organizations providing free immigration legal services.CommentsClose CommentsPermalink





(D) RECORD- In cases in which a detainee is transferred, the Secretary shall make a record of the reasons and circumstances necessitating such transfer.CommentsClose CommentsPermalink





(h) Training- The Secretary of Homeland Security shall provide all officers of the Department and State and local officers involved in immigration enforcement activities with guidelines and periodic training regarding immigration law, due process protections, and humanitarian guidelines under current law, including--CommentsClose CommentsPermalink





(1) the right to access immigration legal counsel; andCommentsClose CommentsPermalink





(2) the appropriate treatment of vulnerable populations during immigration-related enforcement activities.CommentsClose CommentsPermalink

SEC. 5. SAFEGUARDS DURING ENFORCEMENT OPERATIONS.

In any immigration-related enforcement activity that is expected to target more than 50 individuals, the Secretary of Homeland Security shall--CommentsClose CommentsPermalink





(1) screen each individual detained in an immigration-related enforcement activity to determine if such individual is a United States citizen, a lawful permanent resident of the United States, or an alien lawfully present in the United States;CommentsClose CommentsPermalink





(2) if an individual claims to be a United States citizen, a lawful permanent resident of the United States, or an alien lawfully present in the United States, ensure that the officer of the Department of Homeland Security investigates the individual’s claims and considers the individual for release under section 7(a);CommentsClose CommentsPermalink





(3) notify State and local child welfare authorities of such immigration-related enforcement activity not later than 24 hours before the commencement of such activity;CommentsClose CommentsPermalink





(4) provide social workers or case managers employed or contracted by a State or local social service agency with confidential access to individuals detained by the Department--CommentsClose CommentsPermalink





(A) to screen and interview such individuals for humanitarian concerns; andCommentsClose CommentsPermalink





(B) to offer psychosocial and mental health services to children and family members of such individuals;CommentsClose CommentsPermalink





(5) permit State and local social service providers to determine whether nongovernmental organizations may participate in screening individuals detained by the Department for humanitarian purposes;CommentsClose CommentsPermalink





(6) ensure that qualified medical personnel--CommentsClose CommentsPermalink





(A) conduct medical screenings of the individuals subject to the immigration-related enforcement activity; andCommentsClose CommentsPermalink





(B) identify and report any medical or other issues that might necessitate humanitarian release or emergency assistance;CommentsClose CommentsPermalink





(7) before transferring any individual detained by the Department outside the district in which the arrest took place, determine, based on all information available to the Department and the recommendations made by State and local social service agencies--CommentsClose CommentsPermalink





(A) if the individual is described in section 7(a); andCommentsClose CommentsPermalink





(B) if the individual should be released;CommentsClose CommentsPermalink





(8) provide and advertise a toll-free number through which family members of the target population of the immigration-related enforcement activity may obtain information about their detained family members, in English and the majority language of such detainees;CommentsClose CommentsPermalink





(9) determine whether an individual subject to detention--CommentsClose CommentsPermalink





(A) is a primary caretaker of a child in the United States; andCommentsClose CommentsPermalink





(B) should be released under the provisions set forth in section 236(b) of the Immigration and Nationality Act, as added by section 7(b);CommentsClose CommentsPermalink





(10) ensure that agents of the Department do not--CommentsClose CommentsPermalink





(A) interrogate individuals in the immediate presence of children; orCommentsClose CommentsPermalink





(B) interrogate, arrest, or detain any child without the presence or consent of a parent, legal guardian, or legal counsel;CommentsClose CommentsPermalink





(11) ensure that not fewer than one independent certified interpreter who is fluent in Spanish or any language other than English spoken by more than 5 percent of the target population of the operation for in-person translation is available for every 5 individuals targeted by an immigration-related law enforcement activity;CommentsClose CommentsPermalink





(12) permit local nonprofit legal service providers, organizations, and attorneys to offer free legal services to individuals subject to an immigration-related enforcement activity at the time of the arrest or detention of such individual; andCommentsClose CommentsPermalink





(13) provide a legal orientation presentation for any individual detained through an immigration-related enforcement activity through the Legal Orientation Program administered by the Executive Office for Immigration Review.CommentsClose CommentsPermalink

SEC. 6. CONDUCT IN ENFORCEMENT ACTIONS.

Section 274A(e) of the Immigration and Nationality Act (8 U.S.C. 1324a(e)) is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(10) CONDUCT IN ENFORCEMENT ACTIONS-CommentsClose CommentsPermalink





‘(A) COORDINATION WITH THE DEPARTMENT OF LABOR OR OTHER RELEVANT AGENCIES IN AN ENFORCEMENT ACTION- During an enforcement action undertaken by the Department of Homeland Security in which the Department receives information of a pending labor dispute or information in retaliation against employees for exercising their employment rights, the Secretary shall ensure that--CommentsClose CommentsPermalink





‘(i) any aliens who are arrested or detained, and are necessary for the prosecution of any labor or employment law violations, are not removed from the United States until the appropriate law enforcement agency that has jurisdiction over such violations has been given an opportunity to interview such aliens; andCommentsClose CommentsPermalink





‘(ii) no aliens entitled to a stay of removal under this section are removed.CommentsClose CommentsPermalink





‘(B) INTERVIEWS- Any arrangements for aliens to be held or interviewed shall be made in consultation with the relevant labor and employment law enforcement agencies.CommentsClose CommentsPermalink





‘(C) STAY OF REMOVAL-CommentsClose CommentsPermalink





‘(i) IN GENERAL- An alien against whom removal proceedings have been initiated pursuant to chapter 4 of title II, and who has filed a workplace claim or is a material witness in any pending or anticipated proceeding involving a workplace claim, shall be entitled to a stay of removal and an employment authorized endorsement unless the Department establishes, by a preponderance of the evidence in proceedings before the immigration judge presiding over that alien’s removal hearing, that--CommentsClose CommentsPermalink





‘(I) the Department initiated the alien’s removal proceeding for wholly independent reasons and not in any respect based on, or as a result of, any information provided to or obtained by the Department from the alien’s employer, from any outside source, including any anonymous source, or as a result of the filing or prosecution of the workplace claim; andCommentsClose CommentsPermalink





‘(II) the workplace claim was filed in a bad faith with the intent to delay or avoid the alien’s removal.CommentsClose CommentsPermalink





‘(ii) DURATION- Any stay of removal or work authorization issued pursuant to subsection (i) shall remain valid and in effect during the pendency of the proceedings concerning the workplace claim described in clause (i). The Secretary of Homeland Security shall extend such relief for a period of not longer than 3 additional years upon determining that--CommentsClose CommentsPermalink





‘(I) such relief would enable the alien asserting the workplace claim to be made whole;CommentsClose CommentsPermalink





‘(II) the deterrent goals of any statute underlying the workplace claim would thereby be served; orCommentsClose CommentsPermalink





‘(III) such extension would otherwise further the interests of justice.CommentsClose CommentsPermalink





‘(iii) DEFINITIONS- In this section--CommentsClose CommentsPermalink





‘(I) the term ‘material witness’ means an individual who presents a declaration from an attorney prosecuting or defending the workplace claim, or from the presiding officer overseeing the workplace claim, attesting that, to the best of the declarant’s knowledge and belief, reasonable cause exists to believe that the testimony of the individual will be crucial to the outcome of the workplace claim; andCommentsClose CommentsPermalink





‘(II) the term ‘workplace claim’ includes any claim, charge, complaint, or grievance filed with, or submitted to, the employer, a Federal or State agency or court, or an arbitrator, to challenge an employer’s alleged civil or criminal violation of any legal or administrative rule or requirement affecting the terms or conditions of its workers’ employment, the treatment of workers, or the hiring or firing of its workers.’.CommentsClose CommentsPermalink

SEC. 7. BASIC PROTECTIONS FOR VULNERABLE POPULATIONS.

(a) Protection of Vulnerable Populations-CommentsClose CommentsPermalink





(1) IN GENERAL- Not later than 72 hours after the commencement of an immigration-related enforcement activity, the Department of Homeland Security shall screen each detainee to determine if they belong to any of the groups listed in paragraph (2).CommentsClose CommentsPermalink





(2) VULNERABLE POPULATION GROUPS- An individual is eligible for release under paragraph (3) if the individual belongs to any of the following groups:CommentsClose CommentsPermalink





(A) Individuals who have serious medical or mental health needs or a disability.CommentsClose CommentsPermalink





(B) Pregnant or nursing women.CommentsClose CommentsPermalink





(C) Individuals who are being detained with 1 or more of their children, and their detained children.CommentsClose CommentsPermalink





(D) Individuals who provide financial, physical, and other direct support to their minor children, parents, or other dependents.CommentsClose CommentsPermalink





(E) Individuals who are over 65 years of age.CommentsClose CommentsPermalink





(F) Children under 18 years of age.CommentsClose CommentsPermalink





(G) Victims of abuse, violence, crime, or human trafficking.CommentsClose CommentsPermalink





(H) Individuals who have been referred for a credible fear interview, a reasonable fear interview, or an asylum hearing.CommentsClose CommentsPermalink





(I) Individuals who have applied or intend to apply for asylum, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York December 10, 1984.CommentsClose CommentsPermalink





(J) Any other group designated in regulations or guidance promulgated by the Secretary of Homeland Security.CommentsClose CommentsPermalink





(K) Individuals who have a non-frivolous claim to United States citizenship.CommentsClose CommentsPermalink





(L) Individuals who are eligible for relief under any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).CommentsClose CommentsPermalink





(3) ELIGIBILITY FOR RELEASE- An individual shall be released on parole or a reasonable bond, subject to the requirements under section 236(b) of the Immigration and Nationality Act, as amended by subsection (b), if the individual--CommentsClose CommentsPermalink





(A) belongs to a group described in paragraph (2); andCommentsClose CommentsPermalink





(B) meets the criteria set forth under such section 236(b).CommentsClose CommentsPermalink





(b) Options Regarding Detention Decisions for Vulnerable Populations- Section 236 of the Immigration and Nationality Act, as amended by this Act, is further amended--CommentsClose CommentsPermalink





(1) in subsection (a)--CommentsClose CommentsPermalink





(A) in the matter preceding paragraph (1) by striking ‘(c)’ and inserting ‘(d)’; andCommentsClose CommentsPermalink





(B) in paragraph (2)--CommentsClose CommentsPermalink





(i) in subparagraph (A), by striking ‘or’ at the end;CommentsClose CommentsPermalink





(ii) in subparagraph (B), by striking ‘but’ and inserting ‘or’; andCommentsClose CommentsPermalink





(iii) by inserting after subparagraph (B) the following:CommentsClose CommentsPermalink





‘(C) the individual’s own recognizance; and’;CommentsClose CommentsPermalink





(2) by inserting after subsection (a) the following:CommentsClose CommentsPermalink





‘(b) Custody Decisions for Vulnerable Populations-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Not later than 72 hours after an individual is detained under this section, the individual shall be released from the custody of the Department of Homeland Security and shall not be subject to electronic monitoring if the Department demonstrates that the individual--CommentsClose CommentsPermalink





‘(A) is not subject to mandatory detention under section 235(b)(1)(B)(iii)(IV), 236(c), or 236A;CommentsClose CommentsPermalink





‘(B) does not pose a flight risk, a risk to others, or a risk to the national security of the United States; andCommentsClose CommentsPermalink





‘(C) is a member of a vulnerable population (as defined in section 7(a)(2) of the Protect Citizens and Residents from Unlawful Raids and Detention Act.CommentsClose CommentsPermalink





‘(2) RELEASE- An individual shall be released under this subsection--CommentsClose CommentsPermalink





‘(A) on the individual’s own recognizance;CommentsClose CommentsPermalink





‘(B) by posting a minimum bond under subsection (a)(2)(a); orCommentsClose CommentsPermalink





‘(C) on parole in accordance with section 212(d)(5)(A).CommentsClose CommentsPermalink





‘(3) DECISION TO REMOVE OR RELEASE AN ALIEN-CommentsClose CommentsPermalink





‘(A) IN GENERAL- Any decision under paragraph (1)--CommentsClose CommentsPermalink





‘(i) shall be made in writing;CommentsClose CommentsPermalink





‘(ii) if the decision is made to continue detention without bond or parole, shall specify the reasons for such decision; andCommentsClose CommentsPermalink





‘(iii) shall be served upon the individual in the language spoken by the individual--CommentsClose CommentsPermalink





‘(I) not later than 72 hours after the commencement of the alien’s detention; orCommentsClose CommentsPermalink





‘(II) in the case of an alien subject to section 235 or 241(a)(5) who must establish a credible fear of persecution or torture in order to proceed to immigration court, not later than 72 hours after a positive credible fear of persecution or reasonable fear of persecution or torture determination.CommentsClose CommentsPermalink





‘(B) REDETERMINATION-CommentsClose CommentsPermalink





‘(i) IN GENERAL- Any alien detained under this section, including any alien eligible for a removal hearing under section 240, may, at any time after being served with the Secretary’s decision under subparagraph (A), request a redetermination of that decision by an immigration judge.CommentsClose CommentsPermalink





‘(ii) OTHER DECISIONS- All custody decisions by the Secretary shall be subject to redetermination by an immigration judge.CommentsClose CommentsPermalink





‘(iii) SAVINGS PROVISION- Nothing in this subparagraph may be construed to prevent an individual from requesting a bond redetermination.’; andCommentsClose CommentsPermalink





(3) in subsection (d)(2), as redesignated in paragraph (2), by inserting ‘or for humanitarian reasons,’ after ‘such an investigation,’.CommentsClose CommentsPermalink

SEC. 8. DETENTION SAFEGUARDS FOR CITIZENS, NATIONALS, RESIDENTS AND IMMIGRANTS.

(a) Alternative Custody Programs-CommentsClose CommentsPermalink





(1) IN GENERAL- The Secretary of Homeland Security shall ensure that United States citizens, lawful permanent residents, and other individuals are not unlawfully detained by establishing secure alternative custody programs, which--CommentsClose CommentsPermalink





(A) shall use a continuum of methods to ensure individuals attend all immigration court proceedings; andCommentsClose CommentsPermalink





(B) may be used for individuals who would otherwise be subject to detention under section 236 of the Immigration and Nationality Act (8 U.S.C. 1226).CommentsClose CommentsPermalink





(2) CONSIDERATION- If an individual belongs to one of the vulnerable population groups described in section 7(a)(2), but does not meet the requirements for parole, release, or bond under section 236(a) of the Immigration and Nationality Act, the Secretary shall consider the individual for placement in a secure alternative custody program.CommentsClose CommentsPermalink





(3) INDIVIDUALIZED DETERMINATION- The Secretary shall determine, on an individual basis, whether an individual described in paragraph (2) should be subject to less restrictive forms of custodial detention, including electronic monitoring by ankle bracelets and similar devices.CommentsClose CommentsPermalink





(4) ALTERNATIVE TO DETENTION PROGRAMS-CommentsClose CommentsPermalink





(A) CONTRACTING- The Secretary shall contract with nongovernmental organizations to create alternative to detention programs, which shall--CommentsClose CommentsPermalink





(i) conduct screening of detainees;CommentsClose CommentsPermalink





(ii) provide noncustodial appearance assistance services; orCommentsClose CommentsPermalink





(iii) operate group homes or other community-based alternatives to detention programs.CommentsClose CommentsPermalink





(B) LEGAL ORIENTATION- The Attorney General shall contract with nongovernmental organizations to conduct legal orientation services.CommentsClose CommentsPermalink





(b) Detention Advisory Committee-CommentsClose CommentsPermalink





(1) ESTABLISHMENT- To ensure that all individuals being detained by the Department of Homeland Security are treated humanely, the Secretary of Homeland Security shall establish a detention advisory committee, which shall review and revise the guidelines in the Detention Operations Manual used by United States Immigration and Customs Enforcement based on--CommentsClose CommentsPermalink





(A) identifiable deficiencies in the Detention Operations Manual; andCommentsClose CommentsPermalink





(B) practices that treat individuals safely and humanely.CommentsClose CommentsPermalink





(2) COMPOSITION- The detention advisory committee shall be comprised of experts from the United States Government and an equal number of independent experts from nongovernmental organizations and intergovernmental organizations with expertise in working on behalf of detainees, immigrants, and vulnerable populations.CommentsClose CommentsPermalink





(3) REPORT- Not later than 1 year after the date of the enactment of this Act, the detention advisory committee shall submit a report to the Secretary that describes the results of the review and revisions carried out pursuant to paragraph (1).CommentsClose CommentsPermalink





(c) Rulemaking- Not later than the earlier of 1 year after the Secretary of Homeland Security receives the report under subsection (b)(2) or 1 year after such report is due, the Secretary shall promulgate regulations governing the humane treatment of individuals in the custody of the Department of Homeland Security based on the information contained in such report.CommentsClose CommentsPermalink

SEC. 9. REPORT ON PROTECTIONS FOR UNITED STATES CITIZENS, NATIONALS, AND LAWFUL PERMANENT RESIDENTS FROM UNLAWFUL DETENTION.

(a) Requirement for Reports- Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Secretary of Homeland Security shall submit a report to Congress that describes the impact of worksite operations and fugitive operations on United States citizens, lawful permanent residents, and individuals otherwise lawfully present in the United States.CommentsClose CommentsPermalink





(b) Content- The report submitted under subsection (a) shall include an assessment of--CommentsClose CommentsPermalink





(1) the number of individuals detained during worksite or nonworksite operations who are children, United States citizens, or adult lawful permanent residents;CommentsClose CommentsPermalink





(2) immigration-related arrests at homes, schools, places of worship, medical care facilities, victim services agencies, social services agencies, and community centers;CommentsClose CommentsPermalink





(3) arrests, detentions, and removals of sole caregivers, primary breadwinners, pregnant and nursing mothers, and other vulnerable groups during an immigration-related enforcement activity;CommentsClose CommentsPermalink





(4) transfers of immigrants during the course of a raid or immigration enforcement activity, including--CommentsClose CommentsPermalink





(A) whether the immigrants had access to legal counsel before being transferred; andCommentsClose CommentsPermalink





(B) whether the immigrant received notice of an impending transfer;CommentsClose CommentsPermalink





(5)(A) United States Immigration and Customs Enforcement (ICE) protocol for humanitarian screening during a worksite enforcement action;CommentsClose CommentsPermalink





(B) the compliance with such protocol; andCommentsClose CommentsPermalink





(C) the nature of any related protocol in smaller worksite or nonworksite actions;CommentsClose CommentsPermalink





(6) collateral arrests under the National Fugitive Operations Program and worksite enforcement initiatives;CommentsClose CommentsPermalink





(7) whether individuals detained in an immigration-related enforcement activity are notified about their right to counsel;CommentsClose CommentsPermalink





(8) whether ICE uses excessive force in executing warrants, arrests, detentions, or other immigration enforcement activities;CommentsClose CommentsPermalink





(9) whether ICE enters private homes or residences without a search warrant or consent;CommentsClose CommentsPermalink





(10) whether ICE displays and uses weapons during immigration enforcement activities or interrogations;CommentsClose CommentsPermalink





(11) the extent to which ICE cooperates and coordinates with State and local law enforcement during immigration enforcement activities;CommentsClose CommentsPermalink





(12) whether ICE agents identify themselves when entering a location for enforcement purposes;CommentsClose CommentsPermalink





(13) the conditions under which individuals are confined;CommentsClose CommentsPermalink





(14) whether confined individuals are provided access to a telephone;CommentsClose CommentsPermalink





(15) whether confined individuals are notified of their rights in a language they can understand;CommentsClose CommentsPermalink





(16) whether individuals detained during a raid or immigration enforcement activity are forced or coerced to sign any documents or waive any rights without consulting with an attorney;CommentsClose CommentsPermalink





(17) the methodology of the Department of Homeland Security for notifying agents about humanitarian standards regarding enforcement actions and holding them accountable when such standards are violated;CommentsClose CommentsPermalink





(18) an analysis of how much each raid of more than 50 people costs per individual detained;CommentsClose CommentsPermalink





(19) the number of ICE agents disciplined for violations in detention proceedings; andCommentsClose CommentsPermalink





(20) recommendations for improving worksite operations and fugitive operations.CommentsClose CommentsPermalink





(c) Authorization of Appropriations- There is authorized to be appropriated such sums as may be necessary to carry out this section.CommentsClose CommentsPermalink

SEC. 10. IMMIGRATION AND CUSTOMS ENFORCEMENT OMBUDSMAN.

(a) Establishment- Subtitle D of title III of the Homeland Security Act of 2002 (6 U.S.C. 251 et seq.) is amended by adding at the end the following:CommentsClose CommentsPermalink

‘SEC. 447. IMMIGRATION AND CUSTOMS ENFORCEMENT OMBUDSMAN.

‘(a) In General- Within the Department, there shall be a position of Immigration and Customs Enforcement Ombudsman (in this section referred to as the ‘Ombudsman’). The Ombudsman shall report directly to the Assistant Secretary for Immigration and Customs Enforcement (referred to in this section as the ‘Assistant Secretary’) and shall have a background in immigration law.CommentsClose CommentsPermalink





‘(b) Functions- It shall be the function of the Ombudsman--CommentsClose CommentsPermalink





‘(1) to undertake regular and unannounced inspections of detention facilities to determine the facilities’ compliance with relevant policies, procedures, standards, laws, and regulations;CommentsClose CommentsPermalink





‘(2) to report all findings of a detention facility’s compliance or noncompliance to the Secretary and the Assistant Secretary;CommentsClose CommentsPermalink





‘(3) to develop procedures for detainees or their representatives to submit confidential written complaints directly to the Ombudsman;CommentsClose CommentsPermalink





‘(4) to investigate and resolve all complaints, including confidential and anonymous complaints, related to decisions, recommendations, acts, or omissions made by the Assistant Secretary or the Commissioner of United States Customs and Border Protection in the course of custody and detention operations;CommentsClose CommentsPermalink





‘(5) to initiate investigations into allegations of systemic problems at detention facilities;CommentsClose CommentsPermalink





‘(6) to conduct any review or audit relating to detention, as directed by the Secretary or Assistant Secretary;CommentsClose CommentsPermalink





‘(7) to refer matters where appropriate to the Office of Inspector General of the Department of Justice, the Office of Civil Rights and Civil Liberties of the Department, or any other relevant office or agency;CommentsClose CommentsPermalink





‘(8) to propose changes in the policies or practices of United States Immigration and Customs Enforcement to improve the treatment of United States citizens and residents, immigrants, detainees, and others encountered during immigration-related enforcement operations;CommentsClose CommentsPermalink





‘(9) to establish a public advisory group consisting of nongovernmental organization representatives, and Federal, State, and local government officials with expertise in detention and vulnerable populations to provide the Ombudsman with private sector input on--CommentsClose CommentsPermalink





‘(A) the priorities of the Ombudsman; andCommentsClose CommentsPermalink





‘(B) current practices of United States Immigration and Customs Enforcement; andCommentsClose CommentsPermalink





‘(10) to recommend personnel action based on any finding of noncompliance to be considered by the Assistant Secretary.CommentsClose CommentsPermalink





‘(c) Annual Report-CommentsClose CommentsPermalink





‘(1) OBJECTIVES- Not later than June 30 of each calendar year, the Ombudsman shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the objectives of the Office of the Ombudsman for the fiscal year beginning in such calendar year.CommentsClose CommentsPermalink





‘(2) CONTENTS- Each report submitted under paragraph (1) shall include--CommentsClose CommentsPermalink





‘(A) full and substantive analysis of the objectives of the Office;CommentsClose CommentsPermalink





‘(B) statistical information regarding such objectives;CommentsClose CommentsPermalink





‘(C) a description of each detention facility found to be in noncompliance with the Department’s detention standards or other applicable regulations;CommentsClose CommentsPermalink





‘(D) a description of the actions taken by the Department to remedy any findings of noncompliance or other identified problems;CommentsClose CommentsPermalink





‘(E) information regarding whether the actions referred to in subparagraph (D) were successful and resulted in compliance with detention standards;CommentsClose CommentsPermalink





‘(F) a summary of the most pervasive and serious problems encountered by individuals affected by the Department’s enforcement operations, including a description of the nature of such problems; andCommentsClose CommentsPermalink





‘(G) such other information as the Ombudsman may consider advisable.’.CommentsClose CommentsPermalink





(b) Clerical Amendment- The table of contents in section 1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by inserting after the item relating to section 446 the following:CommentsClose CommentsPermalink





‘Sec. 447. Immigration and Customs Enforcement Ombudsman.’.CommentsClose CommentsPermalink

SEC. 11. RULEMAKING.

Not later than 1 year after the date of the enactment of this Act, the Secretary of Homeland Security shall promulgate regulations to implement this Act and the amendments made by this Act.CommentsClose CommentsPermalink