II 111th CONGRESS 1st Session S. 1549 IN THE SENATE OF THE UNITED STATES July 30, 2009 Mr. Menendez (for himself, Mr. Kennedy, and Mrs. Gillibrand) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To protect United States citizens and residents from unlawful arrest and detention.

1.

Short title

This Act may be cited as the Protect Citizens and Residents from Unlawful Detention Act.

2.

Findings

Congress finds the following: (1)Officials at United States Immigration and Customs Enforcement have mistakenly detained and deported United States citizens and lawful permanent residents. (2)Mistaken identities, bureaucratic mix-ups, and discriminatory attitudes further contribute to unconstitutional actions against United States citizens, lawful permanent residents, and other persons lawfully present in the United States. (3)The United States should not be a country in which United States citizens and lawful permanent residents are mistakenly or unlawfully detained, deported, or mistreated by government agents. (4)No person in the United States should be subject to government actions that deny basic protections or constitutional rights.

3.

Definitions

In this Act: (1)

Detainee

The term detainee means an individual detained during an immigration-related enforcement activity. (2)

Detention

The term detention, in the context of an immigration-related enforcement activity, means government custody or any other deprivation of the freedom of movement of an individual by government agents. (3)

Detention facility

The term detention facility means any Federal, State, or local government facility, or any facility providing services under government contract, which is used to hold immigration detainees for more than 72 hours. (4)

Immigration-related enforcement activity

The term immigration-related enforcement activity means any action by a government agent in which— (A)an individual suspected of an immigration violation is detained for such violation; or (B)an individual who has been detained by government agents is questioned about a possible immigration violation. (5)

Secretary

The term Secretary means the Secretary of Homeland Security. (6)

Secure alternatives program

The term secure alternatives program means any custodial or noncustodial program under which an individual is screened and provided with appearance assistance services or placed in supervision programs, as needed, to ensure that the individual appears at all immigration interviews, appointments, and removal or deportation hearings.

4.

Protections against unlawful detentions of United States citizens

(a)

Notifications

(1)

In general

Prior to questioning an individual who has been detained on the basis of a suspected immigration violation or has been detained during an immigration-related enforcement activity, a Department of Homeland Security or other officer must first advise the detainee, in the language spoken by the detainee that— (A)the detainee has the right to be represented by counsel at no expense to the Federal Government; (B)the detainee may remain silent; and (C)any statement made by the detainee may be used against the detainee in a subsequent removal or criminal proceeding. (2)

Effect of violation

Any evidence obtained by an officer from a detainee in violation of paragraph (1) may not be— (A)admissible in a removal proceeding against the detainee; or (B)used to confirm that the detainee is a noncitizen for purposes of issuing an immigration detainer. (b)

Access to counsel

(1)

In general

An individual who is subject to or detained during an immigration-related enforcement activity may be represented by legal counsel at any time. (2)

List of free legal services

The examining officer shall, in the language spoken by the individual being detained— (A)provide the individual, at the time of detention of an individual for an immigration-related violation, with a list of available free or low-cost legal services provided by organizations and attorneys that are located in the region in which the arrest occurred; and (B)certify on the Notice to Appear issued to such individual that such a list was provided to the individual. (3)

Amendment

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended— (A)by redesignating subsection (e) as subsection (l); (B)by redesignating subsections (b), (c), (d), and (e) as subsections (f), (g), and (h), and (i) respectively; and (C)by inserting before subsection (l), as redesignated, the following: (k)

Right of access to counsel

An individual may be represented by counsel of the individual’s choosing while being subject to any immigration-related enforcement activity, including— (1)interviews; (2)processing appointments; (3)booking or intake questions; (4)hearings; and (5)any procedure that may result in a conclusion that the detainee will be detained or removed from the United States. . (c)

Notice

(1)

Amendment

Section 236 of such Act, as amended by subsection (b)(3), if further amended by inserting before subsection (k), the following: (j)

Notice and charges

(1)

In general

Not later than 48 hours after the commencement of a detention of an individual under this section, the Secretary of Homeland Security shall— (A)file a Notice to Appear or other relevant charging document with the immigration court closest to the location at which the individual was apprehended; and (B)serve such notice or charging document on the individual. (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 the right in accordance with paragraph (3). (3)

Waiver

The requirements of this subsection may be waived for not more than 7 days if the detainee— (A)enters into a written agreement with the Department of Homeland Security to waive such requirements; and (B)is prima facie eligible for immigration benefits or demonstrates prima facie eligibility for a defense against removal. . (2)

Applicability of other law

Nothing in section 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). (d)

Issuance of detainers

(1)

Limitation

An official of the Department of Homeland Security may not issue a detainer in any context unless the official attests under oath that— (A)the official has confirmed through lawfully obtained evidence that the individual who is the subject of the detainer is not a United States citizen; and (B)the information obtained regarding the alienage of such individual on the detainer is correct. (2)

Notice

An official of the Department of Homeland Security shall serve each detainer issued on the individual who is the subject of the detainer. (3)

Rulemaking

(A)

Alienage

The Secretary shall issue regulations that require officials of the Department of Homeland Security to confirm, before issuing a detainer, the alienage of the individual to be made subject to such detainer. (B)

Confirmation of alienage

The regulation required under subparagraph (A) shall require officials of the Department of Homeland Security to confirm the alienage of an individual through lawfully obtained information, including— (i)the name of the individual; (ii)the date of birth of the individual; or (iii)the fingerprints of the individual. (e)

Access to telephones

(1)

In general

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 the individual with access to a telephone to make free telephone calls to— (A)the consulate of the individual; (B)designated free legal-service providers or legal representatives who are providing free representation for the individual; (C)an office of the United States Immigration and Customs Enforcement; (D)an immigration court or the Board of Immigration Appeals; (E)the Office of the Inspector General of the Department of Homeland Security; (F)the Office for Civil Rights and Civil Liberties of the Department of Homeland Security; and (G)any Federal or State court in which the detainee is or may become involved in a legal proceeding. (2)

Confidential telephone calls

(A)

Free confidential telephone calls

A detainee shall be permitted to make confidential telephone calls at no charge to the detainee if the detainee is— (i)subject to expedited removal; or (ii)experiencing a personal or family emergency, including the need to arrange care for dependents. (B)

Additional confidential telephone calls

A detainee shall be permitted to make additional confidential telephone calls at no cost to the Federal Government. (f)

Protection of community-Based organizations, faith-Based organizations and other institutions

(1)

In general

The Secretary shall issue regulations requiring officials of the Department of Homeland Security to— (A)prohibit the apprehension of persons on the premises or in the immediate vicinity of— (i)a childcare provider; (ii)a school; (iii)a legal-service provider; (iv)a Federal court or State court proceeding; (v)an administrative proceeding; (vi)a funeral home; (vii)a cemetery; (viii)a college, university, or community college; (ix)a victim services agency; (x)a social service agency; (xi)a hospital or emergency care center; (xii)a health care clinic; and (xiii)a place of worship; and (B)tightly control investigative operations at the locations described in subparagraph (A). (2)

Notice to appear

The Secretary shall amend the Notice to Appear form to include a statement that no immigration enforcement activity was undertaken in any of the locations described in paragraph (1)(A). (g)

Transfer of detainees

(1)

Procedures

In adopting procedures relating to the transfer of individuals detained under section 236 of the Immigration and Nationality Act (8 U.S.C. 1226), the Secretary shall promulgate regulations requiring officials of the Department of Homeland Security to give substantial weight to— (A)the access of the detainee to legal representation; (B)the residence of the detainee prior to apprehension; (C)the location of family members of the detainee; (D)the stage of any legal proceeding involving the detainee, including Federal, State, or administrative proceedings; (E)the proximity of the transferee facility to the venue of any legal proceeding described in subparagraph (D); (F)the health and medical fitness of the detainee; and (G)whether the detainee has a pending application for relief with United States Citizenship and Immigration Services or the Executive Office for Immigration Review. (2)

Notice

Unless exigent circumstances dictate an immediate transfer, the Secretary— (A)shall provide at least 72-hour notice to the detainee in the language spoken by the detainee and to the representative of record before transferring a detainee to another detention facility; and (B)may not transfer the detainee until the detainee has received any custody hearing for which the detainee is eligible. (3)

Additional requirements

(A)

In general

Absent exigent circumstances, such as a natural disaster or comparable emergency, the Secretary may not transfer a detainee who has an existing attorney-client relationship to another facility if the transfer of the detainee would— (i)impair the existing attorney-client relationship; (ii)prejudice the rights of the detainee in any legal proceeding; or (iii)affect the ability of the detainee to present evidence or witnesses. (B)

Legal rights of detainees

In any custody, bond, or removal decision involving a detainee detained under section 236 of the Immigration and Nationality Act (8 U.S.C. 1226)— (i)legal precedent in the location of apprehension shall control any custody, bond, or removal decision; and (ii)in cases of ambiguity, an immigration judge shall use the rule of lenity in choosing from among the laws of the relevant circuits. (C)

Record

If a detainee is transferred, the Secretary shall prepare a record of— (i)the reasons necessitating the transfer; and (ii)actions taken to ameliorate any adverse effect on the legal rights of the detainee. (D)

Investigation

If a detainee makes an allegation of retaliation, such allegation shall be investigated by an independent entity. (h)

Training

The Secretary, in consultation with the Civil Rights and Civil Liberties Officer, shall provide all officers of the Department of Homeland Security, other Federal agencies, and all State and local officers involved in immigration-enforcement activities with periodic training regarding— (1)immigration law; (2)civil rights law; (3)medical and mental health needs and treatment; (4)due process protections; and (5)humanitarian guidelines under current law, including— (A)the right of access to immigration legal counsel; and (B)the appropriate treatment of vulnerable populations during immigration-related enforcement activities.

5.

Basic protections for vulnerable populations

(a)

Vulnerable populations

(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 whether the detainee is a member of a vulnerable population. (2)

Vulnerable populations

A member of a vulnerable population includes any of the following: (A)Individuals with a nonfrivolous claim to United States citizenship. (B)Individuals who have a disability or have been determined by a medically trained professional to have medical or mental health needs. (C)Pregnant or nursing women. (D)Individuals who are detained with 1 or more of their children, and their detained children. (E)Individuals who provide financial, physical, and other direct support to their minor children, parents, or other dependents. (F)Individuals who are at least 65 years of age. (G)Children (as defined in section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1))). (H)Victims of abuse, violence, crime, or human trafficking. (I)Individuals who have been referred for a credible fear interview, a reasonable fear interview, or an asylum hearing. (J)Stateless individuals. (K)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, and entered into force June 26, 1987. (L)Individuals who make a prima facie case for eligibility for relief under any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), including returning lawful permanent residents. (M)Any group designated by the Secretary as a vulnerable population. (b)

Options regarding detention decisions for vulnerable populations

Section 236 of the Immigration and Nationality Act, as amended by this Act, is further amended— (1)in subsection (a)— (A)in the matter preceding paragraph (1), by striking (c) and inserting (g); and (B)in paragraph (2)— (i)in subparagraph (A), by striking or at the end; (ii)in subparagraph (B), by striking but and inserting or; and (iii)by adding at the end the following: (C)the individual’s own recognizance; ; (C)by redesignating paragraph (3) as paragraph (4); and (D)by inserting after paragraph (2) the following: (3)may enroll the alien in a secure alternatives program; but ; and (2)by inserting after subsection (a) the following: (b)

Detention decisions

(1)

Criteria to be considered

If an alien is not subject to mandatory detention under subsection (g) or section 236A, the criteria that the Secretary or the Attorney General shall use to demonstrate that detention of the alien is necessary are the following: (A)Whether the alien poses a risk to public safety, including a risk to national security. (B)Whether— (i)the alien poses a risk of flight; and (ii)there are no conditions of release that will reasonably ensure that the alien will appear for immigration proceedings, including bond or other conditions of release that reduce the risk of flight. (2)

Exception for mandatory detainees

The requirements described in paragraph (1) shall not apply if the Secretary of Homeland Security demonstrates by substantial evidence that the alien is subject to detention under subsection (g). (c)

Custody decisions for vulnerable populations

(1)

In general

Not later than 72 hours after an individual is detained under this section (unless the 72-hour requirement is waived in writing by the individual), an individual who is a member of a vulnerable population (as defined by section 5(a)(3) of the Protect Citizens and Residents from Unlawful Detention Act) shall be released from the custody of the Department of Homeland Security and shall not be subject to electronic monitoring unless the Department demonstrates by a preponderance of the evidence that the individual— (A)is subject to mandatory custody or mandatory detention under subsection (g) or section 236A; (B)poses a risk to the national security of the United States; or (C)is a flight risk and the risk cannot be mitigated through supervision in a non-custodial secure alternatives program. (2)

Release

An individual shall be released from custody under this subsection— (A)on the individual’s own recognizance; (B)by posting a minimum bond under subsection (a)(2)(a); or (C)on parole in accordance with section 212(d)(5)(A). (d)

Decisions To detain aliens

(1)

In general

All detention decisions under this section shall— (A)be made in writing by an official of the Department of Homeland Security; (B)specify the reasons for the decision, if the decision is made to continue the detention without bond or parole; and (C)be served upon the detainee, in the language spoken by the alien, not later than 72 hours after— (i)the commencement of the detention; or (ii)a positive determination of credible fear of persecution or reasonable fear of persecution or torture, if the detainee is subject to section 235 or 241(a)(5). (2)

Redetermination

(A)

Request

Any alien detained by the Department of Homeland Security, at any time after being served with the decision described in paragraph (1)(A), may request a redetermination of such decision by an immigration judge. (B)

Other decisions

All custody decisions by the Secretary of Homeland Security shall be subject to redetermination by an immigration judge. (C)

Savings provision

Nothing in this paragraph may be construed to prevent a detainee from requesting a bond redetermination. (e)

Secure alternatives programs

(1)

In general

The Secretary of Homeland Security shall establish secure alternatives programs to ensure public safety and appearances at immigration proceedings. (2)

Contract authority

The Secretary shall contract with nongovernmental organizations to conduct screening of detainees, provide appearance assistance services, and operate community-based supervision programs. (3)

Individualized determinations

When deciding whether to use secure alternatives, the Secretary shall make an individualized determination and review each case on a monthly basis. (4)

Custody

If an individual is not eligible for release from custody, the Secretary shall consider the alien for placement in secure alternatives that maintain custody over the alien, including the use of electronic ankle devices. The Secretary may use secure alternatives programs to maintain custody over any alien detained under this Act except for aliens detained under section 236A. .

6.

Reports on protections from unlawful detention

(a)

Report requirement

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

Content

The report submitted under subsection (a) shall include an assessment of— (1)the number of individuals detained during worksite or nonworksite operations who are children, United States citizens, or adult lawful permanent residents; (2)immigration-related arrests at homes, schools, places of worship, medical care facilities, victim services agencies, social services agencies, and community centers; (3)arrests, detentions, and removals of individuals who are— (A)sole caregivers; (B)primary earners of income in a family; (C)pregnant or nursing mothers; or (D)members of other vulnerable groups subject to immigration-related enforcement activity; (4)transfers of immigrants during the course of a raid or immigration-enforcement activity, including— (A)whether the immigrants had access to legal counsel before being transferred; and (B)whether the immigrants received notice of an impending transfer; (5)(A)United States Immigration and Customs Enforcement protocol for humanitarian screening during a worksite enforcement action; (B)the compliance with such protocol; and (C)the nature of any related protocol in smaller worksite or nonworksite actions; (6)collateral arrests under the National Fugitive Operations Program and worksite enforcement initiatives; (7)whether individuals detained in an immigration-related enforcement activity are notified of their right to counsel; (8)whether United States Immigration and Customs Enforcement agents— (A)use excessive force in executing warrants, arrests, detentions, or other immigration-enforcement activities; (B)enter private homes or residences without a search warrant or consent; or (C)display and use weapons during immigration-enforcement activities or interrogations; (9)the extent to which United States Immigration and Customs Enforcement cooperates and coordinates with State and local law enforcement during immigration enforcement activities; (10)whether United States Immigration and Customs Enforcement agents identify themselves when entering a location for enforcement purposes; (11)the conditions under which individuals are confined; (12)whether detainees are provided access to a telephone; (13)whether detainees are notified of their rights in a language they can understand; (14)whether individuals detained during a raid or an immigration enforcement activity are forced or coerced to sign any documents or waive any rights without consulting with an attorney; (15)the procedures used by the Department of Homeland Security— (A)to notify agents about humanitarian standards regarding enforcement actions; and (B)hold agents accountable when they violate such standards; (16)the per detainee cost of each raid involving more than 50 detainees; (17)the number of United States Immigration and Customs Enforcement agents disciplined for violations in detention proceedings; and (18)recommendations for improving worksite operations and fugitive operations. (c)

Authorization of appropriations

There is authorized to be appropriated such sums as may be necessary to carry out this section.

7.

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:

447.

Immigration and customs enforcement ombudsman

(a)

In general

There established in the Department of Homeland Security a position of Immigration and Customs Enforcement Ombudsman (referred to in this section as the Ombudsman). (b)

Requirements

The Ombudsman shall— (1)report directly to the Assistant Secretary for Immigration and Customs Enforcement (referred to in this section as the Assistant Secretary); and (2)have a background in immigration law. (c)

Functions

The Ombudsman shall— (1)undertake regular and unannounced inspections of detention facilities and local offices of United States Immigration and Customs Enforcement to determine whether the facilities and offices comply with relevant policies, procedures, standards, laws, and regulations; (2)report all findings of compliance or noncompliance of the facilities and local offices described in paragraph (1) to the Secretary and the Assistant Secretary; (3)develop procedures for detainees or their representatives to submit confidential written complaints directly to the Ombudsman; (4)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; (5)initiate investigations into allegations of systemic problems at detention facilities; (6)conduct any review or audit relating to detention, as directed by the Secretary or Assistant Secretary; (7)refer matters, as 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; (8)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 subject to immigration-related enforcement operations; (9)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 input on— (A)the priorities of the Ombudsman; and (B)current practices of United States Immigration and Customs Enforcement; and (10)recommend to the Assistant Secretary personnel action based on any finding of noncompliance. (d)

Annual report

(1)

Objectives

Not later than June 30 of each year, the Ombudsman shall prepare and 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 next fiscal year. (2)

Contents

Each report submitted under paragraph (1) shall include— (A)full and substantive analysis of the objectives of the Office of the Ombudsman; (B)statistical information regarding such objectives; (C)a description of each detention facility found to be in noncompliance with the detention standards of the Department of Homeland Security or other applicable regulations; (D)a description of the actions taken by the Department of Homeland Security to remedy any findings of noncompliance or other identified problems; (E)information regarding whether the actions described in subparagraph (D) resulted in compliance with detention standards; (F)a summary of the most pervasive and serious problems encountered by individuals subject to the enforcement operations of the Department of Homeland Security, including a description of the nature of such problems; and (G)such other information as the Ombudsman may consider advisable.

. (b)

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: Sec. 447. Immigration and Customs Enforcement Ombudsman. .

8.

Rulemaking

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