II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLES; TABLE OF CONTENTS. 

4 (a) SHORT TITLES.—This Act may be cited as the 

5 ‘‘Protecting the Rights of Families and Immigrants Who 

6 Legally Entered From Detention Act’’ or the 

7 ‘‘PROFILED Act’’. 

8 (b) TABLE OF CONTENTS.—The table of contents for 

9 this Act is as follows: 


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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. 

1 SEC. 2. FINDINGS. 

2 Congress finds the following: 

3 (1) Officials at U.S. Immigration and Customs 

4 Enforcement have mistakenly detained and deported 

5 United States citizens and lawful permanent resi6 dents. 

7 (2) Mistaken identities, bureaucratic mix-ups, 

8 and discriminatory attitudes further contribute to 

9 unconstitutional actions against United States citi10 zens, lawful permanent residents, and other persons 

11 lawfully present in the United States. 

12 (3) The United States should not be a country 

13 in which United States citizens and lawful permaVerDate Sep 11 2014 01:14 Mar 30, 2017 Jkt 069200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S748.IS S748

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1 nent residents are mistakenly or unlawfully detained, 

2 deported, or mistreated by government agents. 

3 (4) No person in the United States should be 

4 subject to government actions that deny basic pro5 tections or constitutional rights. 

6 SEC. 3. DEFINITIONS. 

7 In this Act: 

8 (1) DEPARTMENT.—The term ‘‘Department’’ 

9 means the Department of Homeland Security. 

10 (2) DETAINED.—The term ‘‘detained’’, with re11 spect to an individual, means an individual who is in 

12 government custody or subject any other deprivation 

13 of the freedom of movement by government agents. 

14 (3) DETAINEE.—The term ‘‘detainee’’ means 

15 an individual detained during an immigration-related 

16 enforcement activity. 

17 (4) DETENTION.—The term ‘‘detention’’, in the 

18 context of an immigration-related enforcement activ19 ity, means government custody or any other depriva20 tion of the freedom of movement of an individual by 

21 government agents. 

22 (5) GOVERNMENTAL BODY.—The term ‘‘govern23 mental body’’ means any department, agency, special 

24 purpose district, or other instrumentality of Federal, 

25 State, local, or Indian tribal government. 


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1 (6) HIT RATE.—The term ‘‘hit rate’’ means the 

2 percentage of stops and searches in which a law en3 forcement officer finds drugs, a gun, or something 

4 else that leads to an arrest. The hit rate is cal5 culated by dividing the total number of searches by 

6 the number of searches that yield contraband. The 

7 hit rate is complementary to the rate of false stops. 

8 (7) IMMIGRATION-RELATED ENFORCEMENT AC9 TIVITY.—The term ‘‘immigration-related enforce10 ment activity’’ means any action by a government 

11 agent in which— 

12 (A) an individual suspected of an immigra13 tion violation is detained for such violation; or 

14 (B) an individual who has been detained 

15 by government agents is questioned about a 

16 possible immigration violation. 

17 (8) LAW ENFORCEMENT AGENCY.—The term 

18 ‘‘law enforcement agency’’ means any Federal, 

19 State, local, or Indian tribal public agency engaged 

20 in the prevention, detection, or investigation of viola21 tions of criminal, immigration, or customs laws. 

22 (9) LAW ENFORCEMENT AGENT.—The term 

23 ‘‘law enforcement agent’’ means any Federal, State, 

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1 ing police officers and other agents of a law enforce2 ment agency. 

3 (10) RACIAL PROFILING.—The term ‘‘racial 

4 profiling’’ means the practice of a law enforcement 

5 agent or agency relying, to any degree, on actual or 

6 perceived race, ethnicity, national origin, religion, 

7 gender, gender identity, or sexual orientation in se8 lecting which individual to subject to routine or 

9 spontaneous investigatory activities or in deciding 

10 upon the scope and substance of law enforcement ac11 tivity following the initial investigatory procedure, 

12 except when there is trustworthy information, rel13 evant to the locality and timeframe, that links a per14 son with a particular characteristic described in this 

15 paragraph to an identified criminal incident or 

16 scheme. 

17 (11) ROUTINE OR SPONTANEOUS INVESTIGA18 TORY ACTIVITIES.—The term ‘‘routine or sponta19 neous investigatory activities’’ means the following 

20 activities by a law enforcement agent: 

21 (A) Interviews. 

22 (B) Traffic stops. 

23 (C) Pedestrian stops. 

24 (D) Frisks and other types of body 

25 searches. 


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1 (E) Consensual or nonconsensual searches 

2 of the persons, property, or possessions (includ3 ing vehicles) of individuals using any form of 

4 public or private transportation, including mo5 torists and pedestrians. 

6 (F) Data collection and analysis, assess7 ments, and predicated investigations. 

8 (G) Inspections and interviews of entrants 

9 into the United States that are more extensive 

10 than those customarily carried out. 

11 (H) Immigration-related workplace inves12 tigations. 

13 (I) Such other types of law enforcement 

14 encounters compiled for or by the Federal Bu15 reau of Investigation or the Department of Jus16 tice Bureau of Justice Statistics. 

17 (12) SECRETARY.—The term ‘‘Secretary’’ 

18 means the Secretary of Homeland Security. 

19 (13) STATE.—The term ‘‘State’’ means each of 

20 the 50 States, the District of Columbia, the Com21 monwealth of Puerto Rico, and any other territory 

22 or possession of the United States. 

23 (14) VULNERABLE POPULATION.—The term 

24 ‘‘vulnerable population’’ includes any of the fol25 lowing: 


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1 (A) Individuals with a nonfrivolous claim 

2 to United States citizenship. 

3 (B) Individuals who have a disability or 

4 have been determined by a medically trained 

5 professional to have medical or mental health 

6 needs. 

7 (C) Pregnant or nursing women. 

8 (D) Individuals who are detained with one 

9 or more of their children. 

10 (E) Individuals who provide financial, 

11 physical, and other direct support to their 

12 minor children, parents, or other dependents. 

13 (F) Individuals who are at least 65 years 

14 of age. 

15 (G) Children (as defined in section 

16 101(b)(1) of the Immigration and Nationality 

17 Act (8 U.S.C. 1101(b)(1))). 

18 (H) Victims of abuse, violence, crime, or 

19 human trafficking. 

20 (I) Individuals who have been referred for 

21 a credible fear interview, a reasonable fear 

22 interview, or an asylum hearing. 

23 (J) Stateless individuals. 

24 (K) Individuals who have applied or intend 

25 to apply for asylum, withholding of removal, or 


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1 protection under the Convention Against Tor2 ture and Other Cruel, Inhuman or Degrading 

3 Treatment or Punishment, done at New York, 

4 December 10, 1984. 

5 (L) Individuals who make a prima facie 

6 case for eligibility for relief under any provision 

7 of the Immigration and Nationality Act (8 

8 U.S.C. 1101 et seq.), including returning lawful 

9 permanent residents. 

10 (M) Individuals who self-identify as les11 bian, gay, bisexual, transgender, or queer 

12 (LGBTQ). 

13 (N) Any group designated by the Secretary 

14 as a vulnerable population. 

15 TITLE I—PROHIBITION OF 

16 RACIAL PROFILING 

17 SEC. 101. PROHIBITION. 

18 No law enforcement agent or law enforcement agency 

19 shall engage in racial profiling. 

20 SEC. 102. ENFORCEMENT. 

21 (a) REMEDY.—The United States, or an individual 

22 injured by racial profiling, may enforce this part in a civil 

23 action for declaratory or injunctive relief, filed either in 

24 a State court of general jurisdiction or in a district court 

25 of the United States. 


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1 (b) PARTIES.—In any action brought under this part, 

2 relief may be obtained against— 

3 (1) any governmental body that employed any 

4 law enforcement agent who engaged in racial 

5 profiling; 

6 (2) any agent of a governmental body who en7 gaged in racial profiling; and 

8 (3) any person with supervisory authority over 

9 an agent described in paragraph (2). 

10 (c) NATURE OF PROOF.—Proof that the routine or 

11 spontaneous investigatory activities of law enforcement 

12 agents in a jurisdiction have had a disparate impact on 

13 individuals with a particular characteristic described in 

14 section 3(11) shall constitute prima facie evidence of a vio15 lation of this part. 

16 (d) ATTORNEY’S FEES.—In any action or proceeding 

17 to enforce this part against any governmental body, the 

18 court may allow a prevailing plaintiff, other than the 

19 United States, reasonable attorney’s fees as part of the 

20 costs, and may include expert fees as part of the attorney’s 

21 fees. 

22 SEC. 103. POLICIES TO ELIMINATE RACIAL PROFILING. 

23 (a) IN GENERAL.—Federal, State, local, and Indian 

24 tribal law enforcement agencies shall— 


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1 (1) maintain adequate policies and procedures 

2 designed to eliminate racial profiling; and 

3 (2) cease practices in effect on the date before 

4 the date of enactment of this Act that allow racial 

5 profiling. 

6 (b) POLICIES.—The policies and procedures de7 scribed in subsection (a)(1) shall include— 

8 (1) a prohibition on racial profiling; 

9 (2) training on racial profiling issues as part of 

10 law enforcement training; 

11 (3) the collection of data in accordance with the 

12 regulations issued by the Attorney General under 

13 section 104; 

14 (4) procedures for receiving, investigating, and 

15 responding meaningfully to complaints alleging ra16 cial profiling by law enforcement agents; and 

17 (5) any other policies and procedures the Attor18 ney General determines to be necessary to eliminate 

19 racial profiling by law enforcement agencies. 

20 SEC. 104. ATTORNEY GENERAL TO ISSUE REGULATIONS. 

21 (a) REGULATIONS.—Not later than 6 months after 

22 the date of enactment of this Act, the Attorney General, 

23 in consultation with stakeholders, including Federal, 

24 State, and local law enforcement agencies and community, 

25 professional, research, and civil rights organizations, shall 


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1 issue regulations for the collection and compilation of data 

2 under section 103. 

3 (b) REQUIREMENTS.—The regulations issued under 

4 subsection (a) shall— 

5 (1) provide for the collection of data on all rou6 tine or spontaneous investigatory activities; 

7 (2) provide that the data collected shall— 

8 (A) be collected by race, ethnicity, national 

9 origin, gender, and religion, as perceived by the 

10 law enforcement officer; 

11 (B) include the date, time, and location of 

12 such investigatory activities; 

13 (C) include detail sufficient to permit an 

14 analysis of whether a law enforcement agency is 

15 engaging in racial profiling; and 

16 (D) not include personally identifiable in17 formation; 

18 (3) provide that a standardized form shall be 

19 made available to law enforcement agencies for the 

20 submission of collected data to the Department of 

21 Justice; 

22 (4) provide that law enforcement agencies shall 

23 compile data on the standardized form made avail24 able under paragraph (3), and submit the form to 


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1 the Civil Rights Division and the Department of 

2 Justice Bureau of Justice Statistics; 

3 (5) provide that law enforcement agencies shall 

4 maintain all data collected under this subtitle for not 

5 less than 4 years; 

6 (6) include guidelines for setting comparative 

7 benchmarks, consistent with best practices, against 

8 which collected data shall be measured; 

9 (7) provide that the Department of Justice Bu10 reau of Justice Statistics shall— 

11 (A) analyze the data for any statistically 

12 significant disparities, including— 

13 (i) disparities in the percentage of 

14 drivers or pedestrians stopped relative to 

15 the proportion of the population passing 

16 through the neighborhood; 

17 (ii) disparities in the hit rate; and 

18 (iii) disparities in the frequency of 

19 searches performed on racial or ethnic mi20 nority drivers and the frequency of 

21 searches performed on non-minority driv22 ers; and 

23 (B) not later than 3 years after the date 

24 of enactment of this Act, and annually there25 after— 


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1 (i) prepare a report regarding the 

2 findings of the analysis conducted under 

3 subparagraph (A); 

4 (ii) provide such report to Congress; 

5 and 

6 (iii) make such report available to the 

7 public, including on a website of the De8 partment of Justice; and 

9 (8) protect the privacy of individuals whose 

10 data is collected by— 

11 (A) limiting the use of the data collected 

12 under this subtitle to the purposes set forth in 

13 this subtitle; 

14 (B) except as otherwise provided in this 

15 subtitle, limiting access to the data collected 

16 under this subtitle to those Federal, State, 

17 local, or tribal employees or agents who require 

18 such access in order to fulfill the purposes for 

19 the data set forth in this subtitle; 

20 (C) requiring contractors or other non-gov21 ernmental agents who are permitted access to 

22 the data collected under this subtitle to sign use 

23 agreements incorporating the use and disclosure 

24 restrictions set forth in subparagraph (A); and 


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1 (D) requiring the maintenance of adequate 

2 security measures to prevent unauthorized ac3 cess to the data collected under this subtitle. 

4 SEC. 105. PUBLICATION OF DATA. 

5 The Department of Justice Bureau of Justice Statis6 tics shall provide to Congress and make available to the 

7 public, together with each annual report described in sec8 tion 104(b)(7)(B), the data collected pursuant to this sub9 title, excluding any personally identifiable information de10 scribed in section 106. 

11 SEC. 106. LIMITATIONS ON PUBLICATION OF DATA. 

12 The name or identifying information of a law enforce13 ment officer, complainant, or any other individual involved 

14 in any activity for which data is collected and compiled 

15 under this subtitle shall not be— 

16 (1) released to the public; 

17 (2) disclosed to any person, except for— 

18 (A) such disclosures as are necessary to 

19 comply with this subtitle; 

20 (B) disclosures of information regarding a 

21 particular person to that person; or 

22 (C) disclosures pursuant to litigation; or 

23 (3) subject to disclosure under section 552 of 

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1 sures of information regarding a particular person to 

2 that person. 

3 TITLE II—PROTECTION FROM 

4 UNLAWFUL ARREST AND DE5 TENTION 

6 SEC. 201. PROTECTIONS AGAINST UNLAWFUL DETENTIONS 

7 OF CITIZENS OF THE UNITED STATES. 

8 (a) NOTIFICATIONS.— 

9 (1) IN GENERAL.—Prior to questioning an indi10 vidual who has been detained on the basis of a sus11 pected immigration violation or has been detained 

12 during an immigration-related enforcement activity, 

13 any law enforcement agent shall first advise the in14 dividual, in the language requested by the individual 

15 that— 

16 (A) the individual has the right to be rep17 resented by counsel at no expense to the Fed18 eral Government; 

19 (B) the individual may remain silent; and 

20 (C) any statement made by the individual 

21 may be used against the detainee in a subse22 quent removal or criminal proceeding. 

23 (2) EFFECT OF VIOLATION.—Any evidence ob24 tained by a law enforcement agent from an indi25 vidual in violation of paragraph (1) may not be— 


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1 (A) admissible in a removal proceeding 

2 against the individual; or 

3 (B) used to confirm that the individual is 

4 not a citizen of the United States. 

5 (b) ACCESS TO COUNSEL.— 

6 (1) IN GENERAL.—An individual who is subject 

7 to, or detained during, an immigration-related en8 forcement activity may be represented by legal coun9 sel at any time. 

10 (2) LIST OF FREE LEGAL SERVICES.—The ex11 amining officer shall, in the language requested by 

12 the individual being detained— 

13 (A) provide such individual, at the time of 

14 detention of such individual for an immigration15 related violation, with a list of available free or 

16 low-cost legal services provided by organizations 

17 and attorneys that are located in the region in 

18 which the detention occurred; and 

19 (B) certify on the Notice to Appear issued 

20 to such individual that such a list was provided 

21 to the individual. 

22 (3) AMENDMENT.—Section 236 of the Immi23 gration and Nationality Act (8 U.S.C. 1226) is 

24 amended— 


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1 (A) by redesignating subsection (e) as sub2 section (k); 

3 (B) by redesignating subsections (b), (c), 

4 and (d) as subsections (f), (g), and (h), respec5 tively; and 

6 (C) by inserting before subsection (k), as 

7 so redesignated, the following: 

8 ‘‘(j) RIGHT OF ACCESS TO COUNSEL.—An individual 

9 may be represented by counsel of the individual’s choosing 

10 while being subject to any immigration-related enforce11 ment activity, including— 

12 ‘‘(1) interviews; 

13 ‘‘(2) processing appointments; 

14 ‘‘(3) booking or intake questions; 

15 ‘‘(4) hearings; and 

16 ‘‘(5) any procedure that may result in a conclu17 sion that the detainee will be detained or removed 

18 from the United States.’’. 

19 (c) NOTICE.— 

20 (1) AMENDMENT.—Section 236 of such Act, as 

21 amended by subsection (b)(3), is further amended by 

22 inserting before subsection (j), the following: 

23 ‘‘(i) NOTICE AND CHARGES.— 

24 ‘‘(1) IN GENERAL.—Not later than 48 hours 

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1 vidual under this section, the Secretary of Homeland 

2 Security shall— 

3 ‘‘(A) file a Notice to Appear or other rel4 evant charging document with the immigration 

5 court closest to the location at which the indi6 vidual was apprehended; and 

7 ‘‘(B) serve such notice or charging docu8 ment on the individual. 

9 ‘‘(2) CUSTODY DETERMINATION.—Any indi10 vidual who is detained under this section for more 

11 than 48 hours shall be brought before an immigra12 tion judge for a custody determination not later than 

13 72 hours after the commencement of such detention 

14 unless the individual waives the right in accordance 

15 with paragraph (3). 

16 ‘‘(3) WAIVER.—The requirements of this sub17 section may be waived for not more than 7 days if 

18 the detainee— 

19 ‘‘(A) enters into a written agreement with 

20 the Department of Homeland Security to waive 

21 such requirements; and 

22 ‘‘(B) is prima facie eligible for immigration 

23 benefits or demonstrates prima facie eligibility 

24 for a defense against removal.’’. 


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1 (2) APPLICABILITY OF OTHER LAW.—Nothing 

2 in subsection (i) of section 236 of the Immigration 

3 and Nationality Act, as added by paragraph (1), 

4 may be construed to repeal section 236A of such Act 

5 (8 U.S.C. 1226a). 

6 (d) ACCESS TO TELEPHONES.— 

7 (1) IN GENERAL.—Not later than 6 hours after 

8 the commencement of a detention of an individual 

9 during an immigration-related enforcement activity, 

10 an official of the Department or a law enforcement 

11 agency shall provide the individual with access to a 

12 telephone to make telephone calls at no charge to 

13 the detainee to— 

14 (A) the consulate of the individual; 

15 (B) designated free legal-service providers 

16 or legal representatives who are providing free 

17 representation for the individual; 

18 (C) an office of the U.S. Immigration and 

19 Customs Enforcement; 

20 (D) an immigration court or the Board of 

21 Immigration Appeals; 

22 (E) the Office of the Inspector General of 

23 the Department; 

24 (F) the Office for Civil Rights and Civil 

25 Liberties of the Department; and 


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1 (G) any Federal or State court in which 

2 the detainee is or may become involved in a 

3 legal proceeding. 

4 (2) CONFIDENTIAL TELEPHONE CALLS.— 

5 (A) IN GENERAL.—A detainee shall be per6 mitted to make confidential telephone calls at 

7 no charge to the detainee if the detainee— 

8 (i) is subject to expedited removal; 

9 (ii) has dependents; or 

10 (iii) is experiencing a personal or fam11 ily emergency. 

12 (B) ADDITIONAL CONFIDENTIAL TELE13 PHONE CALLS.—A detainee shall be permitted 

14 to make additional confidential telephone calls 

15 at no cost to the Federal Government. 

16 (e) PROTECTION OF COMMUNITY-BASED ORGANIZA17 TIONS, FAITH-BASED ORGANIZATIONS AND OTHER INSTI18 TUTIONS.— 

19 (1) IN GENERAL.—The Secretary shall issue 

20 regulations requiring officials of the Department or 

21 law enforcement agencies— 

22 (A) to prohibit the apprehension of an in23 dividual as part of an immigration-related en24 forcement activity on the premises or in the im25 mediate vicinity of— 


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1 (i) a childcare provider; 

2 (ii) a school; 

3 (iii) a legal-service provider; 

4 (iv) a Federal court or State court 

5 proceeding; 

6 (v) an administrative proceeding; 

7 (vi) a funeral home; 

8 (vii) a cemetery; 

9 (viii) a college, university, or commu10 nity college; 

11 (ix) a victim services agency; 

12 (x) a social service agency; 

13 (xi) a hospital or emergency care cen14 ter; 

15 (xii) a health care clinic; and 

16 (xiii) a place of worship; and 

17 (B) to tightly control investigative oper18 ations at the locations described in subpara19 graph (A). 

20 (2) EXCEPTION.— 

21 (A) IN GENERAL.—Notwithstanding para22 graph (1), an immigration-related enforcement 

23 activity may be carried out in a location de24 scribed under paragraph (1)(A) if the Secretary 


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1 determines that exigent circumstances exist and 

2 approves such activity. 

3 (B) EXIGENT CIRCUMSTANCES DE4 FINED.—In this paragraph, the term ‘‘exigent 

5 circumstances’’ means, with respect to an immi6 gration-related enforcement activity, that such 

7 activity— 

8 (i) involves a national security or ter9 rorism matter; 

10 (ii) involves an imminent risk of 

11 death, violence, or physical harm to any 

12 person or property; 

13 (iii) involves the immediate arrest or 

14 pursuit of a dangerous felon, terrorist sus15 pect, or any other individual that present 

16 an imminent danger to public safety; or 

17 (iv) involves an imminent risk of de18 struction of evidence material to an ongo19 ing criminal case. 

20 (3) NOTICE TO APPEAR.—The Secretary shall 

21 amend the Notice to Appear form to include a state22 ment that no immigration-related enforcement activ23 ity was undertaken in any of the locations described 

24 under paragraph (1)(A) unless such activity was ap25 proved under paragraph (2). 


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1 (f) TRANSFER OF DETAINEES.— 

2 (1) PROCEDURES.—In adopting procedures re3 lating to the transfer of individuals detained under 

4 section 236 of the Immigration and Nationality Act 

5 (8 U.S.C. 1226), the Secretary shall promulgate reg6 ulations requiring officials of the Department to give 

7 substantial weight to— 

8 (A) the access of the detainee to legal rep9 resentation; 

10 (B) the residence of the detainee prior to 

11 apprehension; 

12 (C) the location of family members of the 

13 detainee; 

14 (D) the stage of any legal proceeding in15 volving the detainee, including Federal, State, 

16 or administrative proceedings; 

17 (E) the proximity of the transferee facility 

18 to the venue of any legal proceeding described 

19 in subparagraph (D); 

20 (F) the health and medical fitness of the 

21 detainee; and 

22 (G) whether the detainee has a pending 

23 application for relief with U.S. Citizenship and 

24 Immigration Services or the Executive Office 

25 for Immigration Review. 


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1 (2) NOTICE.—Unless emergency circumstances, 

2 such as a natural disaster or comparable exigency, 

3 dictate an immediate transfer, the Secretary— 

4 (A) shall provide at least 72-hour notice to 

5 the detainee in the language requested by the 

6 detainee and to the representative of record be7 fore transferring a detainee to another facility; 

8 and 

9 (B) may not transfer the detainee until the 

10 detainee has received any custody hearing for 

11 which the detainee is eligible. 

12 (3) ADDITIONAL REQUIREMENTS.— 

13 (A) IN GENERAL.—Absent emergency cir14 cumstances, such as a natural disaster or com15 parable exigency, the Secretary or law enforce16 ment agent may not transfer a detainee who 

17 has an existing attorney-client relationship to 

18 another facility if the transfer of the detainee 

19 would— 

20 (i) impair the existing attorney-client 

21 relationship; 

22 (ii) prejudice the rights of the de23 tainee in any legal proceeding; or 

24 (iii) affect the ability of the detainee 

25 to present evidence or witnesses. 


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1 (B) LEGAL RIGHTS OF DETAINEES.—In 

2 any custody, bond, or removal decision involving 

3 a detainee detained under section 236 of the 

4 Immigration and Nationality Act (8 U.S.C. 

5 1226)— 

6 (i) legal precedent in the location of 

7 apprehension shall control any custody, 

8 bond, or removal decision; and 

9 (ii) in cases of ambiguity, an immigra10 tion judge shall use the rule of lenity in 

11 choosing from among the laws of the rel12 evant circuits. 

13 (C) RECORD.—If a detainee is transferred, 

14 the Secretary or law enforcement agent shall 

15 prepare a record of— 

16 (i) the reasons necessitating the trans17 fer; and 

18 (ii) actions taken to ameliorate any 

19 adverse effect on the legal rights of the de20 tainee. 

21 (D) INVESTIGATION.—If a detainee makes 

22 an allegation of retaliation, such allegation shall 

23 be investigated by an independent entity. 

24 (g) TRAINING.— 


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1 (1) IN GENERAL.—The Secretary, in consulta2 tion with the Civil Rights and Civil Liberties Officer, 

3 shall provide all officers of the Department, other 

4 Federal agencies, and all State and local officers in5 volved in immigration-related enforcement activities 

6 with periodic training regarding— 

7 (A) immigration law; 

8 (B) civil rights law; 

9 (C) medical and mental health needs and 

10 treatment; 

11 (D) due process protections; 

12 (E) humanitarian guidelines under current 

13 law, including— 

14 (i) the right of access to immigration 

15 legal counsel; and 

16 (ii) the appropriate treatment of vul17 nerable populations during immigration-re18 lated enforcement activities; and 

19 (F) racial profiling and implicit bias. 

20 (2) IMPLICIT BIAS DEFINED.—In this sub21 section, the term ‘‘implicit bias’’ means— 

22 (A) bias in judgment or behavior that re23 sults from subtle cognitive processes, including 

24 implicit attitudes and implicit stereotypes, that 


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1 often operate at a level below conscious aware2 ness and without intentional control; and 

3 (B) implicit attitudes and stereotypes that 

4 result in beliefs or simple associations that a 

5 person makes between an object and its evalua6 tion that are automatically activated by the 

7 mere presence (actual or symbolic) of the atti8 tude object. 

9 SEC. 202. PROTECTIONS FOR PRIMARY CAREGIVERS WITH 

10 CHILDREN. 

11 (a) APPREHENSION PROCEDURES.—In any immigra12 tion-related enforcement activity, the Secretary and any 

13 entity cooperating with the Secretary on such activity 

14 shall— 

15 (1) as soon as possible after an individual is 

16 subject to detention in an immigration-related en17 forcement activity, but generally not later than 2 

18 hours after the commencement of such detention, 

19 determine whether the individual is a parent or pri20 mary caregiver of a child in the United States and, 

21 if the individual is a parent or primary caregiver, 

22 provide the individual with— 

23 (A) the opportunity to make a minimum of 

24 2 telephone calls to arrange for the care of such 

25 child in the individual’s absence; and 


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1 (B) contact information for— 

2 (i) child welfare agencies and family 

3 courts in the jurisdiction in which the child 

4 is located; and 

5 (ii) consulates, attorneys, and legal 

6 service providers capable of providing free 

7 legal advice or representation regarding 

8 child welfare, child custody determinations, 

9 and immigration matters; 

10 (2) notify the child welfare agency with jurisdic11 tion over the child if the child’s parent or primary 

12 caregiver is unable to make care arrangements for 

13 the child or if the child is in imminent risk of seri14 ous harm; 

15 (3) ensure that personnel of the Department 

16 and cooperating entities do not, absent medical ne17 cessity or extraordinary circumstances, compel or re18 quest children to interpret or translate for interviews 

19 of their parents or of other individuals who are en20 countered as part of an immigration enforcement ac21 tion; and 

22 (4) ensure that any parent or primary caregiver 

23 of a child in the United States— 

24 (A) absent medical necessity or extraor25 dinary circumstances, is not transferred from 


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1 his or her area of apprehension until the indi2 vidual— 

3 (i) has made arrangements for the 

4 care of such child; or 

5 (ii) if such arrangements are unavail6 able or the individual is unable to make 

7 such arrangements, is informed of the care 

8 arrangements made for the child and of a 

9 means to maintain communication with the 

10 child; 

11 (B) absent medical necessity or extraor12 dinary circumstances, and to the extent prac13 ticable, is placed in a detention facility either— 

14 (i) proximate to the location of appre15 hension; or 

16 (ii) proximate to the individual’s ha17 bitual place of residence; and 

18 (C) receives due consideration of the best 

19 interests of such child in any decision or action 

20 relating to his or her detention, release, or 

21 transfer between detention facilities. 

22 (b) REQUESTS TO LOCAL AND STATE ENTITIES.— 

23 If the Secretary requests a State or local entity to hold 

24 in custody an individual who the Department has reason 

25 to believe is removable pending transfer of that individual 


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1 to the custody of the Secretary or to a detention facility, 

2 the Secretary shall also request that the State or local en3 tity provide the individual the protections specified in 

4 paragraphs (1) and (2) of subsection (a), if that individual 

5 is found to be the parent or primary caregiver of a child 

6 in the United States. 

7 (c) ACCESS TO CHILDREN, STATE AND LOCAL

8 COURTS, CHILD WELFARE AGENCIES, AND CONSULAR

9 OFFICIALS.—At all detention facilities, the Secretary 

10 shall— 

11 (1) prominently post in a manner accessible to 

12 detainees and visitors and include in detainee hand13 books information on the protections of this title as 

14 well as information on potential eligibility for parole 

15 or release; 

16 (2) absent extraordinary circumstances, ensure 

17 that individuals who are detained by the Department 

18 and are parents of children in the United States 

19 are— 

20 (A) permitted regular phone calls and con21 tact visits with their children; 

22 (B) provided with contact information for 

23 child welfare agencies and family courts in the 

24 relevant jurisdictions; 


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1 (C) able to participate fully, and to the ex2 tent possible in-person, in all family court pro3 ceedings and any other proceedings that may 

4 impact their right to custody of their children; 

5 (D) granted free and confidential telephone 

6 calls to relevant child welfare agencies and fam7 ily courts as often as is necessary to ensure 

8 that the best interest of their children, includ9 ing a preference for family unity whenever ap10 propriate, can be considered in child welfare 

11 agency or family court proceedings; 

12 (E) able to fully comply with all family 

13 court or child welfare agency orders impacting 

14 custody of their children; 

15 (F) provided access to United States pass16 port applications or other relevant travel docu17 ment applications for the purpose of obtaining 

18 travel documents for their children; 

19 (G) afforded timely access to a notary pub20 lic for the purpose of applying for a passport 

21 for their children or executing guardianship or 

22 other agreements to ensure the safety of their 

23 children; and 

24 (H) granted adequate time before removal 

25 to obtain passports, apostilled birth certificates, 


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1 travel documents, and other necessary records 

2 on behalf of their children if such children will 

3 accompany them on their return to their coun4 try of origin or join them in their country of or5 igin; and 

6 (3) if doing so would not impact public safety 

7 or national security, facilitate the ability of a de8 tained individual who is a parent or primary care9 giver to share information regarding travel arrange10 ments with their consulate, children, child welfare 

11 agencies, or other caregivers in advance of the de12 tained individual’s departure from the United 

13 States. 

14 SEC. 203. BASIC PROTECTIONS FOR VULNERABLE POPU15 LATIONS. 

16 (a) VULNERABLE POPULATIONS.—Not later than 72 

17 hours after the commencement of an immigration-related 

18 enforcement activity, the Department shall screen each de19 tainee to determine whether the detainee is a member of 

20 a vulnerable population. 

21 (b) OPTIONS REGARDING DETENTION DECISIONS

22 FOR VULNERABLE POPULATIONS.—Section 236 of the 

23 Immigration and Nationality Act (8 U.S.C. 1226), as 

24 amended by this Act, is further amended— 

25 (1) in subsection (a)— 


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1 (A) in the matter preceding paragraph (1), 

2 by striking ‘‘(c)’’ and inserting ‘‘(g)’’; and 

3 (B) in paragraph (2)— 

4 (i) in subparagraph (A), by striking 

5 ‘‘or’’ at the end; 

6 (ii) in subparagraph (B), by striking 

7 ‘‘but’’ and inserting ‘‘or’’; and 

8 (iii) by adding at the end the fol9 lowing: 

10 ‘‘(C) the individual’s own recognizance;’’; 

11 (C) by redesignating paragraph (3) as 

12 paragraph (4); and 

13 (D) by inserting after paragraph (2) the 

14 following: 

15 ‘‘(3) may enroll the alien in an alternatives pro16 gram; but’’; and 

17 (2) by inserting after subsection (a) the fol18 lowing: 

19 ‘‘(b) DETENTION DECISIONS.— 

20 ‘‘(1) CRITERIA TO BE CONSIDERED.—If an 

21 alien is not subject to mandatory detention under 

22 subsection (g) or section 236A, the criteria that the 

23 Secretary or the Attorney General shall use to dem24 onstrate that detention of the alien is necessary are 

25 the following: 


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1 ‘‘(A) Whether the alien poses a risk to 

2 public safety, including a risk to national secu3 rity. 

4 ‘‘(B) Whether— 

5 ‘‘(i) the alien poses a risk of flight; 

6 and 

7 ‘‘(ii) there are no conditions of release 

8 that will reasonably ensure that the alien 

9 will appear for immigration proceedings, 

10 including bond or other conditions of re11 lease that reduce the risk of flight. 

12 ‘‘(2) EXCEPTION FOR MANDATORY DETAIN13 EES.—The requirements described in paragraph (1) 

14 shall not apply if the Secretary of Homeland Secu15 rity demonstrates by substantial evidence that the 

16 alien is subject to detention under subsection (g). 

17 ‘‘(c) CUSTODY DECISIONS FOR VULNERABLE POPU18 LATIONS.— 

19 ‘‘(1) IN GENERAL.—Not later than 72 hours 

20 after an individual is detained under this section 

21 (unless the 72-hour requirement is waived in writing 

22 by the individual), an individual who is a member of 

23 a vulnerable population (as defined in section 3 of 

24 the Protecting the Rights of Families and Immi25 grants Who Legally Entered From Detention Act) 


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1 shall be released from the custody of the Depart2 ment of Homeland Security and shall not be subject 

3 to electronic monitoring unless the Department dem4 onstrates by a preponderance of the evidence that 

5 the individual— 

6 ‘‘(A) is subject to mandatory custody or 

7 mandatory detention under subsection (g) or 

8 section 236A; 

9 ‘‘(B) poses a risk to the national security 

10 of the United States; or 

11 ‘‘(C) is a flight risk and the risk cannot be 

12 mitigated through supervision or placement in 

13 an alternative program. 

14 ‘‘(2) RELEASE.—An individual shall be released 

15 from custody under this subsection— 

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

17 ‘‘(B) by posting a minimum bond under 

18 subsection (a)(2)(a); or 

19 ‘‘(C) on parole in accordance with section 

20 212(d)(5)(A). 

21 ‘‘(d) DECISIONS TO DETAIN ALIENS.— 

22 ‘‘(1) IN GENERAL.—All detention decisions 

23 under this section shall— 

24 ‘‘(A) be made in writing by an official of 

25 the Department of Homeland Security; 


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1 ‘‘(B) specify the reasons for the decision, if 

2 the decision is made to continue the detention 

3 without bond or parole; and 

4 ‘‘(C) be served upon the detainee, in the 

5 language spoken by the alien, not later than 72 

6 hours after— 

7 ‘‘(i) the commencement of the deten8 tion; or 

9 ‘‘(ii) a positive determination of cred10 ible fear of persecution or reasonable fear 

11 of persecution or torture, if the detainee is 

12 subject to section 235 or 241(a)(5). 

13 ‘‘(2) REDETERMINATION.— 

14 ‘‘(A) REQUEST.—Any alien detained by 

15 the Department of Homeland Security, at any 

16 time after being served with the decision de17 scribed in paragraph (1)(A), may request a re18 determination of such decision by an immigra19 tion judge. 

20 ‘‘(B) OTHER DECISIONS.—All custody de21 cisions by the Secretary of Homeland Security 

22 shall be subject to redetermination by an immi23 gration judge. 

24 ‘‘(C) SAVINGS PROVISION.—Nothing in 

25 this paragraph may be construed to prevent a 


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1 detainee from requesting a bond redetermina2 tion. 

3 ‘‘(e) ALTERNATIVES PROGRAMS.— 

4 ‘‘(1) IN GENERAL.—The Secretary of Homeland 

5 Security shall establish secure alternatives programs 

6 to ensure public safety and appearances at immigra7 tion proceedings. 

8 ‘‘(2) CONTRACT AUTHORITY.—The Secretary 

9 shall contract with nongovernmental organizations to 

10 conduct screening of detainees, provide appearance 

11 assistance services, and operate community-based 

12 supervision programs. 

13 ‘‘(3) INDIVIDUALIZED DETERMINATIONS.— 

14 When deciding whether to use secure alternatives, 

15 the Secretary shall make an individualized deter16 mination and review each case on a monthly basis. 

17 ‘‘(4) CUSTODY.—If an individual is not eligible 

18 for release from custody, the Secretary shall con19 sider the alien for placement in secure alternatives 

20 that maintain custody over the alien, including the 

21 use of electronic ankle devices. The Secretary may 

22 use secure alternatives programs to maintain cus23 tody over any alien detained under this Act except 

24 for aliens detained under section 236A. 


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1 ‘‘(5) SECURE ALTERNATIVES PROGRAM DE2 FINED.—In this section, the term ‘secure alter3 natives program’ means any custodial or noncusto4 dial program under which an individual is screened 

5 and provided with appearance assistance services or 

6 placed in supervision programs, as needed, to ensure 

7 that the individual appears at all immigration inter8 views, appointments, and removal or deportation 

9 hearings.’’. 

10 SEC. 204. REPORTS ON PROTECTIONS FROM UNLAWFUL 

11 DETENTION. 

12 (a) REPORT REQUIREMENT.—Not later than 1 year 

13 after the date of the enactment of this Act, and annually 

14 thereafter, the Secretary shall submit to Congress a report 

15 that describes the impact of worksite and fugitive oper16 ations on citizens of the United States, lawful permanent 

17 residents, and individuals otherwise lawfully present in the 

18 United States. 

19 (b) CONTENT.—Each report submitted under sub20 section (a) shall include an assessment of— 

21 (1) the number of individuals detained during 

22 worksite or nonworksite operations who are children, 

23 United States citizens, or adult lawful permanent 

24 residents; 


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1 (2) immigration-related enforcement activity at 

2 homes, schools, places of worship, medical care fa3 cilities, victim services agencies, social services agen4 cies, and community centers; 

5 (3) arrests, detentions, and removals of individ6 uals who are— 

7 (A) sole caregivers; 

8 (B) primary earners of income in a family; 

9 (C) pregnant or nursing mothers; or 

10 (D) members of other vulnerable groups 

11 subject to immigration-related enforcement ac12 tivity; 

13 (4) transfers of immigrants during the course 

14 of a raid or immigration-enforcement activity, in15 cluding— 

16 (A) whether the immigrants had access to 

17 legal counsel before being transferred; 

18 (B) whether the immigrants received notice 

19 of an impending transfer; and 

20 (C) whether the immigrants, if primary or 

21 sole caregivers, were given an opportunity to 

22 make care arrangements for their children; 

23 (5)(A) U.S. Immigration and Customs Enforce24 ment protocol for humanitarian screening during a 

25 worksite enforcement action; 


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1 (B) the compliance with such protocol; and 

2 (C) the nature of any related protocol in small3 er worksite or nonworksite actions; 

4 (6) collateral arrests under the National Fugi5 tive Operations Program and worksite enforcement 

6 initiatives; 

7 (7) whether individuals detained in an immigra8 tion-related enforcement activity are notified of their 

9 right to counsel; 

10 (8) whether U.S. Immigration and Customs 

11 Enforcement agents or any law enforcement 

12 agents— 

13 (A) use excessive force in executing war14 rants, arrests, detentions, or other immigration15 related enforcement activities; 

16 (B) enter private homes or residences with17 out a search warrant or consent; 

18 (C) use ruses to conceal their identity dur19 ing enforcement activities; or 

20 (D) display and use weapons during immi21 gration-related enforcement activity or interro22 gations; 

23 (9) the extent to which U.S. Immigration and 

24 Customs Enforcement cooperates and coordinates 


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1 with State and local law enforcement during immi2 gration-related enforcement activity; 

3 (10) whether U.S. Immigration and Customs 

4 Enforcement agents or other law enforcement agents 

5 identify themselves when entering a location for en6 forcement purposes; 

7 (11) the conditions under which individuals are 

8 confined and whether detainees are provided access 

9 to a telephone; 

10 (12) the number of children left behind when a 

11 parent or parents are detained; 

12 (13) whether detainees are notified of their 

13 rights in a language they can understand; 

14 (14) whether individuals detained during an im15 migration-related enforcement activity are forced or 

16 coerced to sign any documents or waive any rights 

17 without consulting with an attorney; 

18 (15) the procedures used by the Department or 

19 law enforcement agency— 

20 (A) to notify agents about humanitarian 

21 standards regarding enforcement actions; and 

22 (B) hold agents accountable when they vio23 late such standards; 

24 (16) the per detainee cost of each raid involving 

25 more than 50 detainees; 


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1 (17) the number of U.S. Immigration and Cus2 toms Enforcement agents disciplined for violations 

3 in detention proceedings; and 

4 (18) recommendations for improving worksite 

5 operations and fugitive operations. 

6 (c) AUTHORIZATION OF APPROPRIATIONS.—There is 

7 authorized to be appropriated such sums as may be nec8 essary to carry out this section. 

9 SEC. 205. IMMIGRATION AND CUSTOMS ENFORCEMENT OM10 BUDSMAN. 

11 (a) ESTABLISHMENT.—Subtitle D of title IV of the 

12 Homeland Security Act of 2002 (6 U.S.C. 251 et seq.) 

13 is amended by adding at the end the following: 

14 ‘‘SEC. 447. IMMIGRATION AND CUSTOMS ENFORCEMENT 

15 OMBUDSMAN. 

16 ‘‘(a) IN GENERAL.—There established in the Depart17 ment a position of Immigration and Customs Enforcement 

18 Ombudsman (referred to in this section as the ‘Ombuds19 man’). 

20 ‘‘(b) REQUIREMENTS.—The Ombudsman shall— 

21 ‘‘(1) report directly to the Director for U.S. Im22 migration and Customs Enforcement (referred to in 

23 this section as the ‘Director’); and 

24 ‘‘(2) have a background in immigration law. 

25 ‘‘(c) FUNCTIONS.—The Ombudsman shall— 


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1 ‘‘(1) undertake regular and unannounced in2 spections of detention facilities and local offices of 

3 U.S. Immigration and Customs Enforcement to de4 termine whether the facilities and offices comply 

5 with relevant policies, procedures, standards, laws, 

6 and regulations; 

7 ‘‘(2) report all findings of compliance or non8 compliance of the facilities and local offices de9 scribed in paragraph (1) to the Secretary and the 

10 Director; 

11 ‘‘(3) develop procedures for detainees or their 

12 representatives to submit confidential written com13 plaints directly to the Ombudsman; 

14 ‘‘(4) investigate and resolve all complaints, in15 cluding confidential and anonymous complaints, re16 lated to decisions, recommendations, acts, or omis17 sions made by the Director or the Commissioner of 

18 U.S. Customs and Border Protection in the course 

19 of custody and detention operations; 

20 ‘‘(5) initiate investigations into allegations of 

21 systemic problems at detention facilities; 

22 ‘‘(6) conduct any review or audit relating to de23 tention, as directed by the Secretary or Director; 

24 ‘‘(7) refer matters, as appropriate, to the Office 

25 of Inspector General of the Department of Justice, 


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1 the Office of Civil Rights and Civil Liberties of the 

2 Department, or any other relevant office or agency; 

3 ‘‘(8) propose changes in the policies or practices 

4 of U.S. Immigration and Customs Enforcement to 

5 improve the treatment of United States citizens and 

6 residents, immigrants, detainees, and others subject 

7 to immigration-related enforcement operations; 

8 ‘‘(9) establish a public advisory group con9 sisting of nongovernmental organization representa10 tives and Federal, State, and local government offi11 cials with expertise in detention and vulnerable pop12 ulations to provide the Ombudsman with input on— 

13 ‘‘(A) the priorities of the Ombudsman; and 

14 ‘‘(B) current practices of U.S. Immigration 

15 and Customs Enforcement; and 

16 ‘‘(10) recommend to the Director personnel ac17 tion based on any finding of noncompliance. 

18 ‘‘(d) ANNUAL REPORT.— 

19 ‘‘(1) OBJECTIVES.—Not later than June 30 of 

20 each year, the Ombudsman shall submit to the Com21 mittee on the Judiciary of the Senate and the Com22 mittee on the Judiciary of the House of Representa23 tives a report on the objectives of the Office of the 

24 Ombudsman for the next fiscal year. 


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1 ‘‘(2) CONTENTS.—Each report submitted under 

2 paragraph (1) shall include— 

3 ‘‘(A) full and substantive analysis of the 

4 objectives of the Office of the Ombudsman; 

5 ‘‘(B) statistical information regarding such 

6 objectives; 

7 ‘‘(C) a description of each detention facil8 ity found to be in noncompliance with the de9 tention standards of the Department or other 

10 applicable regulations; 

11 ‘‘(D) a description of the actions taken by 

12 the Department to remedy any findings of non13 compliance or other identified problems; 

14 ‘‘(E) information regarding whether the 

15 actions described in subparagraph (D) resulted 

16 in compliance with detention standards; 

17 ‘‘(F) a summary of the most pervasive and 

18 serious problems encountered by individuals 

19 subject to the enforcement operations of the 

20 Department, including a description of the na21 ture of such problems; and 

22 ‘‘(G) such other information as the Om23 budsman may consider advisable. 

24 ‘‘(3) DEFINITIONS.—In this section: 


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1 ‘‘(A) DETAINEE.—The term ‘detainee’ has 

2 the meaning given that term in section 2 of the 

3 Protecting the Rights of Families and Immi4 grants Who Legally Entered From Detention 

5 Act. 

6 ‘‘(B) DETENTION FACILITY.—The term 

7 ‘detention facility’ means any Federal, State, or 

8 local government facility, or any facility pro9 viding services under government contract, 

10 which is used to hold detainees for more than 

11 72 hours.’’. 

12 (b) AMENDMENT.—The table of contents in section 

13 1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101 

14 et seq.) is amended by inserting after the item relating 

15 to section 446 the following: 

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

16 SEC. 206. RULEMAKING. 

17 Not later than 1 year after the date of the enactment 

18 of this Act, the Secretary shall promulgate regulations to 

19 implement this Act and the amendments made by this Act. 

20 SEC. 207. RESCISSION. 

21 The provisions of Executive Order 13768 of January 

22 25, 2017 (82 Fed. Reg. 8799), titled ‘‘Enhancing Public 

23 Safety in the Interior of the United States’’ and of Execu24 tive Order 13767 of January 25, 2017 (82 Fed. Reg. 

25 8793), titled ‘‘Border Security and Immigration EnforceVerDate Sep 11 2014 01:14 Mar 30, 2017 Jkt 069200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\S748.IS S748

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1 ment Improvements’’ are rescinded and shall not have any 

2 legal effect. 

Æ 


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