[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 748 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  1st Session
                                 S. 748

     To protect United States citizens and residents from unlawful 
       profiling, arrest, and detention, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 28, 2017

Mr. Menendez (for himself, Mr. Booker, Mrs. Gillibrand, Ms. Harris, and 
  Mr. Wyden) 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 
       profiling, arrest, and detention, and for other purposes.

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

SECTION 1. SHORT TITLES; TABLE OF CONTENTS.

    (a) Short Titles.--This Act may be cited as the ``Protecting the 
Rights of Families and Immigrants Who Legally Entered From Detention 
Act'' or the ``PROFILED Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short titles; table of contents.
Sec. 2. Findings.
Sec. 3. Definitions.
                TITLE I--PROHIBITION OF RACIAL PROFILING

Sec. 101. Prohibition.
Sec. 102. Enforcement.
Sec. 103. Policies to eliminate racial profiling.
Sec. 104. Attorney General to issue regulations.
Sec. 105. Publication of data.
Sec. 106. Limitations on publication of data.
        TITLE II--PROTECTION FROM UNLAWFUL ARREST AND DETENTION

Sec. 201. Protections against unlawful detentions of citizens of the 
                            United States.
Sec. 202. Protections for primary caregivers with children.
Sec. 203. Basic protections for vulnerable populations.
Sec. 204. Reports on protections from unlawful detention.
Sec. 205. Immigration and Customs Enforcement Ombudsman.
Sec. 206. Rulemaking.
Sec. 207. Rescission.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Officials at U.S. 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.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Department.--The term ``Department'' means the 
        Department of Homeland Security.
            (2) Detained.--The term ``detained'', with respect to an 
        individual, means an individual who is in government custody or 
        subject any other deprivation of the freedom of movement by 
        government agents.
            (3) Detainee.--The term ``detainee'' means an individual 
        detained during an immigration-related enforcement activity.
            (4) 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.
            (5) Governmental body.--The term ``governmental body'' 
        means any department, agency, special purpose district, or 
        other instrumentality of Federal, State, local, or Indian 
        tribal government.
            (6) Hit rate.--The term ``hit rate'' means the percentage 
        of stops and searches in which a law enforcement officer finds 
        drugs, a gun, or something else that leads to an arrest. The 
        hit rate is calculated by dividing the total number of searches 
        by the number of searches that yield contraband. The hit rate 
        is complementary to the rate of false stops.
            (7) 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.
            (8) Law enforcement agency.--The term ``law enforcement 
        agency'' means any Federal, State, local, or Indian tribal 
        public agency engaged in the prevention, detection, or 
        investigation of violations of criminal, immigration, or 
        customs laws.
            (9) Law enforcement agent.--The term ``law enforcement 
        agent'' means any Federal, State, local, or Indian tribal 
        official responsible for enforcing criminal, immigration, or 
        customs laws, including police officers and other agents of a 
        law enforcement agency.
            (10) Racial profiling.--The term ``racial profiling'' means 
        the practice of a law enforcement agent or agency relying, to 
        any degree, on actual or perceived race, ethnicity, national 
        origin, religion, gender, gender identity, or sexual 
        orientation in selecting which individual to subject to routine 
        or spontaneous investigatory activities or in deciding upon the 
        scope and substance of law enforcement activity following the 
        initial investigatory procedure, except when there is 
        trustworthy information, relevant to the locality and 
        timeframe, that links a person with a particular characteristic 
        described in this paragraph to an identified criminal incident 
        or scheme.
            (11) Routine or spontaneous investigatory activities.--The 
        term ``routine or spontaneous investigatory activities'' means 
        the following activities by a law enforcement agent:
                    (A) Interviews.
                    (B) Traffic stops.
                    (C) Pedestrian stops.
                    (D) Frisks and other types of body searches.
                    (E) Consensual or nonconsensual searches of the 
                persons, property, or possessions (including vehicles) 
                of individuals using any form of public or private 
                transportation, including motorists and pedestrians.
                    (F) Data collection and analysis, assessments, and 
                predicated investigations.
                    (G) Inspections and interviews of entrants into the 
                United States that are more extensive than those 
                customarily carried out.
                    (H) Immigration-related workplace investigations.
                    (I) Such other types of law enforcement encounters 
                compiled for or by the Federal Bureau of Investigation 
                or the Department of Justice Bureau of Justice 
                Statistics.
            (12) Secretary.--The term ``Secretary'' means the Secretary 
        of Homeland Security.
            (13) State.--The term ``State'' means each of the 50 
        States, the District of Columbia, the Commonwealth of Puerto 
        Rico, and any other territory or possession of the United 
        States.
            (14) Vulnerable population.--The term ``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 one or more 
                of their 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.
                    (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) Individuals who self-identify as lesbian, gay, 
                bisexual, transgender, or queer (LGBTQ).
                    (N) Any group designated by the Secretary as a 
                vulnerable population.

                TITLE I--PROHIBITION OF RACIAL PROFILING

SEC. 101. PROHIBITION.

    No law enforcement agent or law enforcement agency shall engage in 
racial profiling.

SEC. 102. ENFORCEMENT.

    (a) Remedy.--The United States, or an individual injured by racial 
profiling, may enforce this part in a civil action for declaratory or 
injunctive relief, filed either in a State court of general 
jurisdiction or in a district court of the United States.
    (b) Parties.--In any action brought under this part, relief may be 
obtained against--
            (1) any governmental body that employed any law enforcement 
        agent who engaged in racial profiling;
            (2) any agent of a governmental body who engaged in racial 
        profiling; and
            (3) any person with supervisory authority over an agent 
        described in paragraph (2).
    (c) Nature of Proof.--Proof that the routine or spontaneous 
investigatory activities of law enforcement agents in a jurisdiction 
have had a disparate impact on individuals with a particular 
characteristic described in section 3(11) shall constitute prima facie 
evidence of a violation of this part.
    (d) Attorney's Fees.--In any action or proceeding to enforce this 
part against any governmental body, the court may allow a prevailing 
plaintiff, other than the United States, reasonable attorney's fees as 
part of the costs, and may include expert fees as part of the 
attorney's fees.

SEC. 103. POLICIES TO ELIMINATE RACIAL PROFILING.

    (a) In General.--Federal, State, local, and Indian tribal law 
enforcement agencies shall--
            (1) maintain adequate policies and procedures designed to 
        eliminate racial profiling; and
            (2) cease practices in effect on the date before the date 
        of enactment of this Act that allow racial profiling.
    (b) Policies.--The policies and procedures described in subsection 
(a)(1) shall include--
            (1) a prohibition on racial profiling;
            (2) training on racial profiling issues as part of law 
        enforcement training;
            (3) the collection of data in accordance with the 
        regulations issued by the Attorney General under section 104;
            (4) procedures for receiving, investigating, and responding 
        meaningfully to complaints alleging racial profiling by law 
        enforcement agents; and
            (5) any other policies and procedures the Attorney General 
        determines to be necessary to eliminate racial profiling by law 
        enforcement agencies.

SEC. 104. ATTORNEY GENERAL TO ISSUE REGULATIONS.

    (a) Regulations.--Not later than 6 months after the date of 
enactment of this Act, the Attorney General, in consultation with 
stakeholders, including Federal, State, and local law enforcement 
agencies and community, professional, research, and civil rights 
organizations, shall issue regulations for the collection and 
compilation of data under section 103.
    (b) Requirements.--The regulations issued under subsection (a) 
shall--
            (1) provide for the collection of data on all routine or 
        spontaneous investigatory activities;
            (2) provide that the data collected shall--
                    (A) be collected by race, ethnicity, national 
                origin, gender, and religion, as perceived by the law 
                enforcement officer;
                    (B) include the date, time, and location of such 
                investigatory activities;
                    (C) include detail sufficient to permit an analysis 
                of whether a law enforcement agency is engaging in 
                racial profiling; and
                    (D) not include personally identifiable 
                information;
            (3) provide that a standardized form shall be made 
        available to law enforcement agencies for the submission of 
        collected data to the Department of Justice;
            (4) provide that law enforcement agencies shall compile 
        data on the standardized form made available under paragraph 
        (3), and submit the form to the Civil Rights Division and the 
        Department of Justice Bureau of Justice Statistics;
            (5) provide that law enforcement agencies shall maintain 
        all data collected under this subtitle for not less than 4 
        years;
            (6) include guidelines for setting comparative benchmarks, 
        consistent with best practices, against which collected data 
        shall be measured;
            (7) provide that the Department of Justice Bureau of 
        Justice Statistics shall--
                    (A) analyze the data for any statistically 
                significant disparities, including--
                            (i) disparities in the percentage of 
                        drivers or pedestrians stopped relative to the 
                        proportion of the population passing through 
                        the neighborhood;
                            (ii) disparities in the hit rate; and
                            (iii) disparities in the frequency of 
                        searches performed on racial or ethnic minority 
                        drivers and the frequency of searches performed 
                        on non-minority drivers; and
                    (B) not later than 3 years after the date of 
                enactment of this Act, and annually thereafter--
                            (i) prepare a report regarding the findings 
                        of the analysis conducted under subparagraph 
                        (A);
                            (ii) provide such report to Congress; and
                            (iii) make such report available to the 
                        public, including on a website of the 
                        Department of Justice; and
            (8) protect the privacy of individuals whose data is 
        collected by--
                    (A) limiting the use of the data collected under 
                this subtitle to the purposes set forth in this 
                subtitle;
                    (B) except as otherwise provided in this subtitle, 
                limiting access to the data collected under this 
                subtitle to those Federal, State, local, or tribal 
                employees or agents who require such access in order to 
                fulfill the purposes for the data set forth in this 
                subtitle;
                    (C) requiring contractors or other non-governmental 
                agents who are permitted access to the data collected 
                under this subtitle to sign use agreements 
                incorporating the use and disclosure restrictions set 
                forth in subparagraph (A); and
                    (D) requiring the maintenance of adequate security 
                measures to prevent unauthorized access to the data 
                collected under this subtitle.

SEC. 105. PUBLICATION OF DATA.

    The Department of Justice Bureau of Justice Statistics shall 
provide to Congress and make available to the public, together with 
each annual report described in section 104(b)(7)(B), the data 
collected pursuant to this subtitle, excluding any personally 
identifiable information described in section 106.

SEC. 106. LIMITATIONS ON PUBLICATION OF DATA.

    The name or identifying information of a law enforcement officer, 
complainant, or any other individual involved in any activity for which 
data is collected and compiled under this subtitle shall not be--
            (1) released to the public;
            (2) disclosed to any person, except for--
                    (A) such disclosures as are necessary to comply 
                with this subtitle;
                    (B) disclosures of information regarding a 
                particular person to that person; or
                    (C) disclosures pursuant to litigation; or
            (3) subject to disclosure under section 552 of title 5, 
        United States Code (commonly known as the ``Freedom of 
        Information Act''), except for disclosures of information 
        regarding a particular person to that person.

        TITLE II--PROTECTION FROM UNLAWFUL ARREST AND DETENTION

SEC. 201. PROTECTIONS AGAINST UNLAWFUL DETENTIONS OF CITIZENS OF THE 
              UNITED STATES.

    (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, any law enforcement agent shall first advise the 
        individual, in the language requested by the individual that--
                    (A) the individual has the right to be represented 
                by counsel at no expense to the Federal Government;
                    (B) the individual may remain silent; and
                    (C) any statement made by the individual may be 
                used against the detainee in a subsequent removal or 
                criminal proceeding.
            (2) Effect of violation.--Any evidence obtained by a law 
        enforcement agent from an individual in violation of paragraph 
        (1) may not be--
                    (A) admissible in a removal proceeding against the 
                individual; or
                    (B) used to confirm that the individual is not a 
                citizen of the United States.
    (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 requested by the individual being 
        detained--
                    (A) provide such individual, at the time of 
                detention of such 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 detention 
                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 
                (k);
                    (B) by redesignating subsections (b), (c), and (d) 
                as subsections (f), (g), and (h), respectively; and
                    (C) by inserting before subsection (k), as so 
                redesignated, the following:
    ``(j) 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), is further amended by inserting before 
        subsection (j), the following:
    ``(i) 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 subsection (i) 
        of section 236 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) 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 or a law enforcement agency shall provide the 
        individual with access to a telephone to make telephone calls 
        at no charge to the detainee 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 U.S. Immigration and Customs 
                Enforcement;
                    (D) an immigration court or the Board of 
                Immigration Appeals;
                    (E) the Office of the Inspector General of the 
                Department;
                    (F) the Office for Civil Rights and Civil Liberties 
                of the Department; 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) In general.--A detainee shall be permitted to 
                make confidential telephone calls at no charge to the 
                detainee if the detainee--
                            (i) is subject to expedited removal;
                            (ii) has dependents; or
                            (iii) is experiencing a personal or family 
                        emergency.
                    (B) Additional confidential telephone calls.--A 
                detainee shall be permitted to make additional 
                confidential telephone calls at no cost to the Federal 
                Government.
    (e) Protection of Community-Based Organizations, Faith-Based 
Organizations and Other Institutions.--
            (1) In general.--The Secretary shall issue regulations 
        requiring officials of the Department or law enforcement 
        agencies--
                    (A) to prohibit the apprehension of an individual 
                as part of an immigration-related enforcement activity 
                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) to tightly control investigative operations at 
                the locations described in subparagraph (A).
            (2) Exception.--
                    (A) In general.--Notwithstanding paragraph (1), an 
                immigration-related enforcement activity may be carried 
                out in a location described under paragraph (1)(A) if 
                the Secretary determines that exigent circumstances 
                exist and approves such activity.
                    (B) Exigent circumstances defined.--In this 
                paragraph, the term ``exigent circumstances'' means, 
                with respect to an immigration-related enforcement 
                activity, that such activity--
                            (i) involves a national security or 
                        terrorism matter;
                            (ii) involves an imminent risk of death, 
                        violence, or physical harm to any person or 
                        property;
                            (iii) involves the immediate arrest or 
                        pursuit of a dangerous felon, terrorist 
                        suspect, or any other individual that present 
                        an imminent danger to public safety; or
                            (iv) involves an imminent risk of 
                        destruction of evidence material to an ongoing 
                        criminal case.
            (3) Notice to appear.--The Secretary shall amend the Notice 
        to Appear form to include a statement that no immigration-
        related enforcement activity was undertaken in any of the 
        locations described under paragraph (1)(A) unless such activity 
        was approved under paragraph (2).
    (f) 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 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 U.S. Citizenship and Immigration 
                Services or the Executive Office for Immigration 
                Review.
            (2) Notice.--Unless emergency circumstances, such as a 
        natural disaster or comparable exigency, dictate an immediate 
        transfer, the Secretary--
                    (A) shall provide at least 72-hour notice to the 
                detainee in the language requested by the detainee and 
                to the representative of record before transferring a 
                detainee to another 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 emergency circumstances, 
                such as a natural disaster or comparable exigency, the 
                Secretary or law enforcement agent 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 or law enforcement agent 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.
    (g) Training.--
            (1) In general.--The Secretary, in consultation with the 
        Civil Rights and Civil Liberties Officer, shall provide all 
        officers of the Department, other Federal agencies, and all 
        State and local officers involved in immigration-related 
        enforcement activities with periodic training regarding--
                    (A) immigration law;
                    (B) civil rights law;
                    (C) medical and mental health needs and treatment;
                    (D) due process protections;
                    (E) humanitarian guidelines under current law, 
                including--
                            (i) the right of access to immigration 
                        legal counsel; and
                            (ii) the appropriate treatment of 
                        vulnerable populations during immigration-
                        related enforcement activities; and
                    (F) racial profiling and implicit bias.
            (2) Implicit bias defined.--In this subsection, the term 
        ``implicit bias'' means--
                    (A) bias in judgment or behavior that results from 
                subtle cognitive processes, including implicit 
                attitudes and implicit stereotypes, that often operate 
                at a level below conscious awareness and without 
                intentional control; and
                    (B) implicit attitudes and stereotypes that result 
                in beliefs or simple associations that a person makes 
                between an object and its evaluation that are 
                automatically activated by the mere presence (actual or 
                symbolic) of the attitude object.

SEC. 202. PROTECTIONS FOR PRIMARY CAREGIVERS WITH CHILDREN.

    (a) Apprehension Procedures.--In any immigration-related 
enforcement activity, the Secretary and any entity cooperating with the 
Secretary on such activity shall--
            (1) as soon as possible after an individual is subject to 
        detention in an immigration-related enforcement activity, but 
        generally not later than 2 hours after the commencement of such 
        detention, determine whether the individual is a parent or 
        primary caregiver of a child in the United States and, if the 
        individual is a parent or primary caregiver, provide the 
        individual with--
                    (A) the opportunity to make a minimum of 2 
                telephone calls to arrange for the care of such child 
                in the individual's absence; and
                    (B) contact information for--
                            (i) child welfare agencies and family 
                        courts in the jurisdiction in which the child 
                        is located; and
                            (ii) consulates, attorneys, and legal 
                        service providers capable of providing free 
                        legal advice or representation regarding child 
                        welfare, child custody determinations, and 
                        immigration matters;
            (2) notify the child welfare agency with jurisdiction over 
        the child if the child's parent or primary caregiver is unable 
        to make care arrangements for the child or if the child is in 
        imminent risk of serious harm;
            (3) ensure that personnel of the Department and cooperating 
        entities do not, absent medical necessity or extraordinary 
        circumstances, compel or request children to interpret or 
        translate for interviews of their parents or of other 
        individuals who are encountered as part of an immigration 
        enforcement action; and
            (4) ensure that any parent or primary caregiver of a child 
        in the United States--
                    (A) absent medical necessity or extraordinary 
                circumstances, is not transferred from his or her area 
                of apprehension until the individual--
                            (i) has made arrangements for the care of 
                        such child; or
                            (ii) if such arrangements are unavailable 
                        or the individual is unable to make such 
                        arrangements, is informed of the care 
                        arrangements made for the child and of a means 
                        to maintain communication with the child;
                    (B) absent medical necessity or extraordinary 
                circumstances, and to the extent practicable, is placed 
                in a detention facility either--
                            (i) proximate to the location of 
                        apprehension; or
                            (ii) proximate to the individual's habitual 
                        place of residence; and
                    (C) receives due consideration of the best 
                interests of such child in any decision or action 
                relating to his or her detention, release, or transfer 
                between detention facilities.
    (b) Requests to Local and State Entities.--If the Secretary 
requests a State or local entity to hold in custody an individual who 
the Department has reason to believe is removable pending transfer of 
that individual to the custody of the Secretary or to a detention 
facility, the Secretary shall also request that the State or local 
entity provide the individual the protections specified in paragraphs 
(1) and (2) of subsection (a), if that individual is found to be the 
parent or primary caregiver of a child in the United States.
    (c) Access to Children, State and Local Courts, Child Welfare 
Agencies, and Consular Officials.--At all detention facilities, the 
Secretary shall--
            (1) prominently post in a manner accessible to detainees 
        and visitors and include in detainee handbooks information on 
        the protections of this title as well as information on 
        potential eligibility for parole or release;
            (2) absent extraordinary circumstances, ensure that 
        individuals who are detained by the Department and are parents 
        of children in the United States are--
                    (A) permitted regular phone calls and contact 
                visits with their children;
                    (B) provided with contact information for child 
                welfare agencies and family courts in the relevant 
                jurisdictions;
                    (C) able to participate fully, and to the extent 
                possible in-person, in all family court proceedings and 
                any other proceedings that may impact their right to 
                custody of their children;
                    (D) granted free and confidential telephone calls 
                to relevant child welfare agencies and family courts as 
                often as is necessary to ensure that the best interest 
                of their children, including a preference for family 
                unity whenever appropriate, can be considered in child 
                welfare agency or family court proceedings;
                    (E) able to fully comply with all family court or 
                child welfare agency orders impacting custody of their 
                children;
                    (F) provided access to United States passport 
                applications or other relevant travel document 
                applications for the purpose of obtaining travel 
                documents for their children;
                    (G) afforded timely access to a notary public for 
                the purpose of applying for a passport for their 
                children or executing guardianship or other agreements 
                to ensure the safety of their children; and
                    (H) granted adequate time before removal to obtain 
                passports, apostilled birth certificates, travel 
                documents, and other necessary records on behalf of 
                their children if such children will accompany them on 
                their return to their country of origin or join them in 
                their country of origin; and
            (3) if doing so would not impact public safety or national 
        security, facilitate the ability of a detained individual who 
        is a parent or primary caregiver to share information regarding 
        travel arrangements with their consulate, children, child 
        welfare agencies, or other caregivers in advance of the 
        detained individual's departure from the United States.

SEC. 203. BASIC PROTECTIONS FOR VULNERABLE POPULATIONS.

    (a) Vulnerable Populations.--Not later than 72 hours after the 
commencement of an immigration-related enforcement activity, the 
Department shall screen each detainee to determine whether the detainee 
is a member of a vulnerable population.
    (b) Options Regarding Detention Decisions for Vulnerable 
Populations.--Section 236 of the Immigration and Nationality Act (8 
U.S.C. 1226), 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 an 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 in section 3 of the Protecting the Rights of Families 
        and Immigrants Who Legally Entered From 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 or placement in an 
                alternative 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) 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.
            ``(5) Secure alternatives program defined.--In this 
        section, 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.''.

SEC. 204. 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 
submit to Congress a report that describes the impact of worksite and 
fugitive operations on citizens of the United States, lawful permanent 
residents, and individuals otherwise lawfully present in the United 
States.
    (b) Content.--Each 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 enforcement activity 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;
                    (B) whether the immigrants received notice of an 
                impending transfer; and
                    (C) whether the immigrants, if primary or sole 
                caregivers, were given an opportunity to make care 
                arrangements for their children;
            (5)(A) U.S. 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 U.S. Immigration and Customs Enforcement agents 
        or any law enforcement agents--
                    (A) use excessive force in executing warrants, 
                arrests, detentions, or other immigration-related 
                enforcement activities;
                    (B) enter private homes or residences without a 
                search warrant or consent;
                    (C) use ruses to conceal their identity during 
                enforcement activities; or
                    (D) display and use weapons during immigration-
                related enforcement activity or interrogations;
            (9) the extent to which U.S. Immigration and Customs 
        Enforcement cooperates and coordinates with State and local law 
        enforcement during immigration-related enforcement activity;
            (10) whether U.S. Immigration and Customs Enforcement 
        agents or other law enforcement agents identify themselves when 
        entering a location for enforcement purposes;
            (11) the conditions under which individuals are confined 
        and whether detainees are provided access to a telephone;
            (12) the number of children left behind when a parent or 
        parents are detained;
            (13) whether detainees are notified of their rights in a 
        language they can understand;
            (14) whether individuals detained during an immigration-
        related 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 or law 
        enforcement agency--
                    (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 U.S. 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.

SEC. 205. IMMIGRATION AND CUSTOMS ENFORCEMENT OMBUDSMAN.

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

``SEC. 447. IMMIGRATION AND CUSTOMS ENFORCEMENT OMBUDSMAN.

    ``(a) In General.--There established in the Department 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 Director for U.S. Immigration 
        and Customs Enforcement (referred to in this section as the 
        `Director'); 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 U.S. 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 Director;
            ``(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 Director or the 
        Commissioner of U.S. 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 Director;
            ``(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 U.S. 
        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 U.S. Immigration and 
                Customs Enforcement; and
            ``(10) recommend to the Director personnel action based on 
        any finding of noncompliance.
    ``(d) Annual Report.--
            ``(1) Objectives.--Not later than June 30 of each year, the 
        Ombudsman shall submit to the Committee on the Judiciary of the 
        Senate and the Committee on the Judiciary of the House of 
        Representatives a report 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 or other applicable 
                regulations;
                    ``(D) a description of the actions taken by the 
                Department 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, including a 
                description of the nature of such problems; and
                    ``(G) such other information as the Ombudsman may 
                consider advisable.
            ``(3) Definitions.--In this section:
                    ``(A) Detainee.--The term `detainee' has the 
                meaning given that term in section 2 of the Protecting 
                the Rights of Families and Immigrants Who Legally 
                Entered From Detention Act.
                    ``(B) 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 detainees 
                for more than 72 hours.''.
    (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.''.

SEC. 206. 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.

SEC. 207. RESCISSION.

    The provisions of Executive Order 13768 of January 25, 2017 (82 
Fed. Reg. 8799), titled ``Enhancing Public Safety in the Interior of 
the United States'' and of Executive Order 13767 of January 25, 2017 
(82 Fed. Reg. 8793), titled ``Border Security and Immigration 
Enforcement Improvements'' are rescinded and shall not have any legal 
effect.
                                 <all>