II 

111TH CONGRESS 

1ST SESSION S. 1549 

To protect United States citizens and residents from unlawful arrest and 

detention. 

IN THE SENATE OF THE UNITED STATES 

JULY 30, 2009 

Mr. MENENDEZ (for himself, Mr. KENNEDY, and Mrs. GILLIBRAND) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

A BILL 

To protect United States citizens and residents from 

unlawful arrest and detention. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Protect Citizens and 

5 Residents from Unlawful Detention Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) Officials at United States Immigration and 

9 Customs Enforcement have mistakenly detained and 


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1 deported United States citizens and lawful perma2 nent residents. 

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

4 and discriminatory attitudes further contribute to 

5 unconstitutional actions against United States citi6 zens, lawful permanent residents, and other persons 

7 lawfully present in the United States. 

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

9 in which United States citizens and lawful perma10 nent residents are mistakenly or unlawfully detained, 

11 deported, or mistreated by government agents. 

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

13 subject to government actions that deny basic pro14 tections or constitutional rights. 

15 SEC. 3. DEFINITIONS. 

16 In this Act: 

17 (1) DETAINEE.—The term ‘‘detainee’’ means 

18 an individual detained during an immigration-related 

19 enforcement activity. 

20 (2) DETENTION.—The term ‘‘detention’’, in the 

21 context of an immigration-related enforcement activ22 ity, means government custody or any other depriva23 tion of the freedom of movement of an individual by 

24 government agents. 


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1 (3) DETENTION FACILITY.—The term ‘‘deten2 tion facility’’ means any Federal, State, or local gov3 ernment facility, or any facility providing services 

4 under government contract, which is used to hold 

5 immigration detainees for more than 72 hours. 

6 (4) IMMIGRATION-RELATED ENFORCEMENT AC7 TIVITY.—The term ‘‘immigration-related enforce8 ment activity’’ means any action by a government 

9 agent in which— 

10 (A) an individual suspected of an immigra11 tion violation is detained for such violation; or 

12 (B) an individual who has been detained 

13 by government agents is questioned about a 

14 possible immigration violation. 

15 (5) SECRETARY.—The term ‘‘Secretary’’ means 

16 the Secretary of Homeland Security. 

17 (6) SECURE ALTERNATIVES PROGRAM.—The 

18 term ‘‘secure alternatives program’’ means any cus19 todial or noncustodial program under which an indi20 vidual is screened and provided with appearance as21 sistance services or placed in supervision programs, 

22 as needed, to ensure that the individual appears at 

23 all immigration interviews, appointments, and re24 moval or deportation hearings. 


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1 SEC. 4. PROTECTIONS AGAINST UNLAWFUL DETENTIONS 

2 OF UNITED STATES CITIZENS. 

3 (a) NOTIFICATIONS.— 

4 (1) IN GENERAL.—Prior to questioning an indi5 vidual who has been detained on the basis of a sus6 pected immigration violation or has been detained 

7 during an immigration-related enforcement activity, 

8 a Department of Homeland Security or other officer 

9 must first advise the detainee, in the language spo10 ken by the detainee that— 

11 (A) the detainee has the right to be rep12 resented by counsel at no expense to the Fed13 eral Government; 

14 (B) the detainee may remain silent; and 

15 (C) any statement made by the detainee 

16 may be used against the detainee in a subse17 quent removal or criminal proceeding. 

18 (2) EFFECT OF VIOLATION.—Any evidence ob19 tained by an officer from a detainee in violation of 

20 paragraph (1) may not be— 

21 (A) admissible in a removal proceeding 

22 against the detainee; or 

23 (B) used to confirm that the detainee is a 

24 noncitizen for purposes of issuing an immigra25 tion detainer. 

26 (b) ACCESS TO COUNSEL.— 


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

2 to or detained during an immigration-related en3 forcement activity may be represented by legal coun4 sel at any time. 

5 (2) LIST OF FREE LEGAL SERVICES.—The ex6 amining officer shall, in the language spoken by the 

7 individual being detained— 

8 (A) provide the individual, at the time of 

9 detention of an individual for an immigration10 related violation, with a list of available free or 

11 low-cost legal services provided by organizations 

12 and attorneys that are located in the region in 

13 which the arrest occurred; and 

14 (B) certify on the Notice to Appear issued 

15 to such individual that such a list was provided 

16 to the individual. 

17 (3) AMENDMENT.—Section 236 of the Immi18 gration and Nationality Act (8 U.S.C. 1226) is 

19 amended— 

20 (A) by redesignating subsection (e) as sub21 section (l); 

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

23 (d), and (e) as subsections (f), (g), and (h), and 

24 (i) respectively; and 


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1 (C) by inserting before subsection (l), as 

2 redesignated, the following: 

3 ‘‘(k) RIGHT OF ACCESS TO COUNSEL.—An individual 

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

5 while being subject to any immigration-related enforce6 ment activity, including— 

7 ‘‘(1) interviews; 

8 ‘‘(2) processing appointments; 

9 ‘‘(3) booking or intake questions; 

10 ‘‘(4) hearings; and 

11 ‘‘(5) any procedure that may result in a conclu12 sion that the detainee will be detained or removed 

13 from the United States.’’. 

14 (c) NOTICE.— 

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

16 amended by subsection (b)(3), if further amended by 

17 inserting before subsection (k), the following: 

18 ‘‘(j) NOTICE AND CHARGES.— 

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

20 after the commencement of a detention of an indi21 vidual under this section, the Secretary of Homeland 

22 Security shall— 

23 ‘‘(A) file a Notice to Appear or other rel24 evant charging document with the immigration 


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1 court closest to the location at which the indi2 vidual was apprehended; and 

3 ‘‘(B) serve such notice or charging docu4 ment on the individual. 

5 ‘‘(2) CUSTODY DETERMINATION.—Any indi6 vidual who is detained under this section for more 

7 than 48 hours shall be brought before an immigra8 tion judge for a custody determination not later than 

9 72 hours after the commencement of such detention 

10 unless the individual waives the right in accordance 

11 with paragraph (3). 

12 ‘‘(3) WAIVER.—The requirements of this sub13 section may be waived for not more than 7 days if 

14 the detainee— 

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

16 the Department of Homeland Security to waive 

17 such requirements; and 

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

19 benefits or demonstrates prima facie eligibility 

20 for a defense against removal.’’. 

21 (2) APPLICABILITY OF OTHER LAW.—Nothing 

22 in section 236(f) of the Immigration and Nationality 

23 Act, as added by paragraph (1), may be construed 

24 to repeal section 236A of such Act (8 U.S.C. 

25 1226a). 


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1 (d) ISSUANCE OF DETAINERS.— 

2 (1) LIMITATION.—An official of the Depart3 ment of Homeland Security may not issue a detainer 

4 in any context unless the official attests under oath 

5 that— 

6 (A) the official has confirmed through law7 fully obtained evidence that the individual who 

8 is the subject of the detainer is not a United 

9 States citizen; and 

10 (B) the information obtained regarding the 

11 alienage of such individual on the detainer is 

12 correct. 

13 (2) NOTICE.—An official of the Department of 

14 Homeland Security shall serve each detainer issued 

15 on the individual who is the subject of the detainer. 

16 (3) RULEMAKING.— 

17 (A) ALIENAGE.—The Secretary shall issue 

18 regulations that require officials of the Depart19 ment of Homeland Security to confirm, before 

20 issuing a detainer, the alienage of the individual 

21 to be made subject to such detainer. 

22 (B) CONFIRMATION OF ALIENAGE.—The 

23 regulation required under subparagraph (A) 

24 shall require officials of the Department of 

25 Homeland Security to confirm the alienage of 


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1 an individual through lawfully obtained infor2 mation, including— 

3 (i) the name of the individual; 

4 (ii) the date of birth of the individual; 

5 or 

6 (iii) the fingerprints of the individual. 

7 (e) ACCESS TO TELEPHONES.— 

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

9 the commencement of a detention of an individual 

10 during an immigration-related enforcement activity, 

11 an official of the Department of Homeland Security 

12 shall provide the individual with access to a tele13 phone to make free telephone calls 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 United States Immi19 gration and 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 of Homeland Security; 


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1 (F) the Office for Civil Rights and Civil 

2 Liberties of the Department of Homeland Secu3 rity; and 

4 (G) any Federal or State court in which 

5 the detainee is or may become involved in a 

6 legal proceeding. 

7 (2) CONFIDENTIAL TELEPHONE CALLS.— 

8 (A) FREE CONFIDENTIAL TELEPHONE

9 CALLS.—A detainee shall be permitted to make 

10 confidential telephone calls at no charge to the 

11 detainee if the detainee is— 

12 (i) subject to expedited removal; or 

13 (ii) experiencing a personal or family 

14 emergency, including the need to arrange 

15 care for dependents. 

16 (B) ADDITIONAL CONFIDENTIAL TELE17 PHONE CALLS.—A detainee shall be permitted 

18 to make additional confidential telephone calls 

19 at no cost to the Federal Government. 

20 (f) PROTECTION OF COMMUNITY-BASED ORGANIZA21 TIONS, FAITH-BASED ORGANIZATIONS AND OTHER INSTI22 TUTIONS.— 

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

24 regulations requiring officials of the Department of 

25 Homeland Security to— 


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1 (A) prohibit the apprehension of persons 

2 on the premises or in the immediate vicinity 

3 of— 

4 (i) a childcare provider; 

5 (ii) a school; 

6 (iii) a legal-service provider; 

7 (iv) a Federal court or State court 

8 proceeding; 

9 (v) an administrative proceeding; 

10 (vi) a funeral home; 

11 (vii) a cemetery; 

12 (viii) a college, university, or commu13 nity college; 

14 (ix) a victim services agency; 

15 (x) a social service agency; 

16 (xi) a hospital or emergency care cen17 ter; 

18 (xii) a health care clinic; and 

19 (xiii) a place of worship; and 

20 (B) tightly control investigative operations 

21 at the locations described in subparagraph (A). 

22 (2) NOTICE TO APPEAR.—The Secretary shall 

23 amend the Notice to Appear form to include a state24 ment that no immigration enforcement activity was 


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1 undertaken in any of the locations described in para2 graph (1)(A). 

3 (g) TRANSFER OF DETAINEES.— 

4 (1) PROCEDURES.—In adopting procedures re5 lating to the transfer of individuals detained under 

6 section 236 of the Immigration and Nationality Act 

7 (8 U.S.C. 1226), the Secretary shall promulgate reg8 ulations requiring officials of the Department of 

9 Homeland Security to give substantial weight to— 

10 (A) the access of the detainee to legal rep11 resentation; 

12 (B) the residence of the detainee prior to 

13 apprehension; 

14 (C) the location of family members of the 

15 detainee; 

16 (D) the stage of any legal proceeding in17 volving the detainee, including Federal, State, 

18 or administrative proceedings; 

19 (E) the proximity of the transferee facility 

20 to the venue of any legal proceeding described 

21 in subparagraph (D); 

22 (F) the health and medical fitness of the 

23 detainee; and 

24 (G) whether the detainee has a pending 

25 application for relief with United States CitiVerDate Nov 24 2008 07:04 Aug 04, 2009 Jkt 079200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1549.IS S1549

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1 zenship and Immigration Services or the Execu2 tive Office for Immigration Review. 

3 (2) NOTICE.—Unless exigent circumstances dic4 tate an immediate transfer, the Secretary— 

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

6 the detainee in the language spoken by the de7 tainee and to the representative of record before 

8 transferring a detainee to another detention fa9 cility; and 

10 (B) may not transfer the detainee until the 

11 detainee has received any custody hearing for 

12 which the detainee is eligible. 

13 (3) ADDITIONAL REQUIREMENTS.— 

14 (A) IN GENERAL.—Absent exigent cir15 cumstances, such as a natural disaster or com16 parable emergency, the Secretary may not 

17 transfer a detainee who has an existing attor18 ney-client relationship to another facility if the 

19 transfer of the detainee 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 shall prepare a record of— 

15 (i) the reasons necessitating the trans16 fer; and 

17 (ii) actions taken to ameliorate any 

18 adverse effect on the legal rights of the de19 tainee. 

20 (D) INVESTIGATION.—If a detainee makes 

21 an allegation of retaliation, such allegation shall 

22 be investigated by an independent entity. 

23 (h) TRAINING.—The Secretary, in consultation with 

24 the Civil Rights and Civil Liberties Officer, shall provide 

25 all officers of the Department of Homeland Security, other 


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1 Federal agencies, and all State and local officers involved 

2 in immigration-enforcement activities with periodic train3 ing regarding— 

4 (1) immigration law; 

5 (2) civil rights law; 

6 (3) medical and mental health needs and treat7 ment; 

8 (4) due process protections; and 

9 (5) humanitarian guidelines under current law, 

10 including— 

11 (A) the right of access to immigration legal 

12 counsel; and 

13 (B) the appropriate treatment of vulner14 able populations during immigration-related en15 forcement activities. 

16 SEC. 5. BASIC PROTECTIONS FOR VULNERABLE POPU17 LATIONS. 

18 (a) VULNERABLE POPULATIONS.— 

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

20 after the commencement of an immigration-related 

21 enforcement activity, the Department of Homeland 

22 Security shall screen each detainee to determine 

23 whether the detainee is a member of a vulnerable 

24 population. 


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1 (2) VULNERABLE POPULATIONS.—A member of 

2 a vulnerable population includes any of the fol3 lowing: 

4 (A) Individuals with a nonfrivolous claim 

5 to United States citizenship. 

6 (B) Individuals who have a disability or 

7 have been determined by a medically trained 

8 professional to have medical or mental health 

9 needs. 

10 (C) Pregnant or nursing women. 

11 (D) Individuals who are detained with 1 or 

12 more of their children, and their detained chil13 dren. 

14 (E) Individuals who provide financial, 

15 physical, and other direct support to their 

16 minor children, parents, or other dependents. 

17 (F) Individuals who are at least 65 years 

18 of age. 

19 (G) Children (as defined in section 

20 101(b)(1) of the Immigration and Nationality 

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

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

23 human trafficking. 


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1 (I) Individuals who have been referred for 

2 a credible fear interview, a reasonable fear 

3 interview, or an asylum hearing. 

4 (J) Stateless individuals. 

5 (K) Individuals who have applied or intend 

6 to apply for asylum, withholding of removal, or 

7 protection under the Convention Against Tor8 ture and Other Cruel, Inhuman or Degrading 

9 Treatment or Punishment, done at New York, 

10 December 10, 1984, and entered into force 

11 June 26, 1987. 

12 (L) Individuals who make a prima facie 

13 case for eligibility for relief under any provision 

14 of the Immigration and Nationality Act (8 

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

16 permanent residents. 

17 (M) Any group designated by the Sec18 retary as a vulnerable population. 

19 (b) OPTIONS REGARDING DETENTION DECISIONS

20 FOR VULNERABLE POPULATIONS.—Section 236 of the 

21 Immigration and Nationality Act, as amended by this Act, 

22 is further amended— 

23 (1) in subsection (a)— 

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

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


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1 (B) in paragraph (2)— 

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

3 ‘‘or’’ at the end; 

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

5 ‘‘but’’ and inserting ‘‘or’’; and 

6 (iii) by adding at the end the fol7 lowing: 

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

9 (C) by redesignating paragraph (3) as 

10 paragraph (4); and 

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

12 following: 

13 ‘‘(3) may enroll the alien in a secure alter14 natives program; but’’; and 

15 (2) by inserting after subsection (a) the fol16 lowing: 

17 ‘‘(b) DETENTION DECISIONS.— 

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

19 alien is not subject to mandatory detention under 

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

21 Secretary or the Attorney General shall use to dem22 onstrate that detention of the alien is necessary are 

23 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 by section 

24 5(a)(3) of the Protect Citizens and Residents from 

25 Unlawful Detention Act) shall be released from the 


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1 custody of the Department of Homeland Security 

2 and shall not be subject to electronic monitoring un3 less the Department demonstrates by a preponder4 ance of the evidence that the individual— 

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

6 mandatory detention under subsection (g) or 

7 section 236A; 

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

9 of the United States; or 

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

11 mitigated through supervision in a non-custo12 dial secure alternatives program. 

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

14 from custody under this subsection— 

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

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

17 subsection (a)(2)(a); or 

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

19 212(d)(5)(A). 

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

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

22 under this section shall— 

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

24 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) SECURE 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 SEC. 6. REPORTS ON PROTECTIONS FROM UNLAWFUL DE2 TENTION. 

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

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

5 thereafter, the Secretary shall prepare and submit a report 

6 to Congress that describes the impact of worksite and fu7 gitive operations on United States citizens, lawful perma8 nent residents, and individuals otherwise lawfully present 

9 in the United States. 

10 (b) CONTENT.—The report submitted under sub11 section (a) shall include an assessment of— 

12 (1) the number of individuals detained during 

13 worksite or nonworksite operations who are children, 

14 United States citizens, or adult lawful permanent 

15 residents; 

16 (2) immigration-related arrests at homes, 

17 schools, places of worship, medical care facilities, 

18 victim services agencies, social services agencies, and 

19 community centers; 

20 (3) arrests, detentions, and removals of individ21 uals who are— 

22 (A) sole caregivers; 

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

24 (C) pregnant or nursing mothers; or 


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1 (D) members of other vulnerable groups 

2 subject to immigration-related enforcement ac3 tivity; 

4 (4) transfers of immigrants during the course 

5 of a raid or immigration-enforcement activity, in6 cluding— 

7 (A) whether the immigrants had access to 

8 legal counsel before being transferred; and 

9 (B) whether the immigrants received notice 

10 of an impending transfer; 

11 (5)(A) United States Immigration and Customs 

12 Enforcement protocol for humanitarian screening 

13 during a worksite enforcement action; 

14 (B) the compliance with such protocol; and 

15 (C) the nature of any related protocol in small16 er worksite or nonworksite actions; 

17 (6) collateral arrests under the National Fugi18 tive Operations Program and worksite enforcement 

19 initiatives; 

20 (7) whether individuals detained in an immigra21 tion-related enforcement activity are notified of their 

22 right to counsel; 

23 (8) whether United States Immigration and 

24 Customs Enforcement agents— 


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1 (A) use excessive force in executing war2 rants, arrests, detentions, or other immigration3 enforcement activities; 

4 (B) enter private homes or residences with5 out a search warrant or consent; or 

6 (C) display and use weapons during immi7 gration-enforcement activities or interrogations; 

8 (9) the extent to which United States Immigra9 tion and Customs Enforcement cooperates and co10 ordinates with State and local law enforcement dur11 ing immigration enforcement activities; 

12 (10) whether United States Immigration and 

13 Customs Enforcement agents identify themselves 

14 when entering a location for enforcement purposes; 

15 (11) the conditions under which individuals are 

16 confined; 

17 (12) whether detainees are provided access to a 

18 telephone; 

19 (13) whether detainees are notified of their 

20 rights in a language they can understand; 

21 (14) whether individuals detained during a raid 

22 or an immigration enforcement activity are forced or 

23 coerced to sign any documents or waive any rights 

24 without consulting with an attorney; 


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1 (15) the procedures used by the Department of 

2 Homeland Security— 

3 (A) to notify agents about humanitarian 

4 standards regarding enforcement actions; and 

5 (B) hold agents accountable when they vio6 late such standards; 

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

8 more than 50 detainees; 

9 (17) the number of United States Immigration 

10 and Customs Enforcement agents disciplined for vio11 lations in detention proceedings; and 

12 (18) recommendations for improving worksite 

13 operations and fugitive operations. 

14 (c) AUTHORIZATION OF APPROPRIATIONS.—There is 

15 authorized to be appropriated such sums as may be nec16 essary to carry out this section. 

17 SEC. 7. IMMIGRATION AND CUSTOMS ENFORCEMENT OM18 BUDSMAN. 

19 (a) ESTABLISHMENT.—Subtitle D of title III of the 

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

21 is amended by adding at the end the following: 

22 ‘‘SEC. 447. IMMIGRATION AND CUSTOMS ENFORCEMENT 

23 OMBUDSMAN. 

24 ‘‘(a) IN GENERAL.—There established in the Depart25 ment of Homeland Security a position of Immigration and 


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1 Customs Enforcement Ombudsman (referred to in this 

2 section as the ‘Ombudsman’). 

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

4 ‘‘(1) report directly to the Assistant Secretary 

5 for Immigration and Customs Enforcement (referred 

6 to in this section as the ‘Assistant Secretary’); and 

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

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

9 ‘‘(1) undertake regular and unannounced in10 spections of detention facilities and local offices of 

11 United States Immigration and Customs Enforce12 ment to determine whether the facilities and offices 

13 comply with relevant policies, procedures, standards, 

14 laws, and regulations; 

15 ‘‘(2) report all findings of compliance or non16 compliance of the facilities and local offices de17 scribed in paragraph (1) to the Secretary and the 

18 Assistant Secretary; 

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

20 representatives to submit confidential written com21 plaints directly to the Ombudsman; 

22 ‘‘(4) investigate and resolve all complaints, in23 cluding confidential and anonymous complaints, re24 lated to decisions, recommendations, acts, or omis25 sions made by the Assistant Secretary or the ComVerDate Nov 24 2008 07:04 Aug 04, 2009 Jkt 079200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\S1549.IS S1549

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1 missioner of United States Customs and Border 

2 Protection in the course of custody and detention 

3 operations; 

4 ‘‘(5) initiate investigations into allegations of 

5 systemic problems at detention facilities; 

6 ‘‘(6) conduct any review or audit relating to de7 tention, as directed by the Secretary or Assistant 

8 Secretary; 

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

10 of Inspector General of the Department of Justice, 

11 the Office of Civil Rights and Civil Liberties of the 

12 Department, or any other relevant office or agency; 

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

14 of United States Immigration and Customs Enforce15 ment to improve the treatment of United States citi16 zens and residents, immigrants, detainees, and oth17 ers subject to immigration-related enforcement oper18 ations; 

19 ‘‘(9) establish a public advisory group con20 sisting of nongovernmental organization representa21 tives and Federal, State, and local government offi22 cials with expertise in detention and vulnerable pop23 ulations to provide the Ombudsman with input on— 

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


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1 ‘‘(B) current practices of United States 

2 Immigration and Customs Enforcement; and 

3 ‘‘(10) recommend to the Assistant Secretary 

4 personnel action based on any finding of noncompli5 ance. 

6 ‘‘(d) ANNUAL REPORT.— 

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

8 each year, the Ombudsman shall prepare and submit 

9 a report to the Committee on the Judiciary of the 

10 Senate and the Committee on the Judiciary of the 

11 House of Representatives on the objectives of the 

12 Office of the Ombudsman for the next fiscal year. 

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

14 paragraph (1) shall include— 

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

16 objectives of the Office of the Ombudsman; 

17 ‘‘(B) statistical information regarding such 

18 objectives; 

19 ‘‘(C) a description of each detention facil20 ity found to be in noncompliance with the de21 tention standards of the Department of Home22 land Security or other applicable regulations; 

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

24 the Department of Homeland Security to remVerDate Nov 24 2008 07:04 Aug 04, 2009 Jkt 079200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\S1549.IS S1549

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1 edy any findings of noncompliance or other 

2 identified problems; 

3 ‘‘(E) information regarding whether the 

4 actions described in subparagraph (D) resulted 

5 in compliance with detention standards; 

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

7 serious problems encountered by individuals 

8 subject to the enforcement operations of the 

9 Department of Homeland Security, including a 

10 description of the nature of such problems; and 

11 ‘‘(G) such other information as the Om12 budsman may consider advisable.’’. 

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

14 1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101 

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

16 to section 446 the following: 

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

17 SEC. 8. RULEMAKING. 

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

19 of this Act, the Secretary shall promulgate regulations to 

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

Æ 


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