II 

110TH CONGRESS 

2D SESSION S. 3594 

To protect United States citizens from unlawful arrest and detention. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 25 (legislative day, SEPTEMBER 17), 2008 

Mr. MENENDEZ (for himself and Mr. KENNEDY) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

A BILL 

To protect United States citizens 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 Raids and Detention Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) Since 2006, the Department of Homeland 

9 Security and partnering law enforcement agents 

10 have amplified enforcement actions at the workplace, 

11 on the street, and inside the homes of individuals. 


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1 (2) A large majority of the children affected by 

2 such enforcement actions are United States citizens 

3 and the youngest and most vulnerable in our society, 

4 including infants, toddlers, and preschoolers. 

5 (3) In the workplace, thousands of hardworking 

6 lawful permanent residents, United States citizens, 

7 and immigrants have been questioned, handcuffed, 

8 and detained without adequate protections to safe9 guard their constitutional rights. 

10 (4) In several recent immigration raids and im11 migration enforcement activities, officials at United 

12 States Immigration and Customs Enforcement have 

13 unlawfully detained United States citizens and law14 ful permanent residents. 

15 (5) Mistaken identities, bureaucratic mix-ups, 

16 and discriminatory attitudes further contribute to 

17 improper immigration actions taken against United 

18 States citizens, lawful permanent residents, and 

19 other persons with legal immigration status. 

20 (6) The United States should not be a place 

21 where citizens and lawful permanent residents are 

22 unlawfully detained or mistreated by government 

23 agents. 


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1 (7) No person in America should be subject to 

2 government actions that overstep basic protections 

3 or constitutional rights. 

4 SEC. 3. DEFINITIONS. 

5 In this Act: 

6 (1) DETENTION.—The term ‘‘detention’’, in the 

7 context of an immigration-related enforcement activ8 ity, means government custody or any significant 

9 deprivation of an individual’s freedom of action by 

10 government agents. 

11 (2) DETENTION FACILITY.—The term ‘‘deten12 tion facility’’ means any Federal, State, or local gov13 ernment facility, or facility which provides services 

14 under government contract that is used to hold im15 migration detainees for more than 72 hours. 

16 (3) IMMIGRATION-RELATED ENFORCEMENT AC17 TIVITY.—The term ‘‘immigration-related enforce18 ment activity’’ means any government action in 

19 which— 

20 (A) an individual suspected of an immigra21 tion violation is detained for such violation; or 

22 (B) an individual who has been detained 

23 on criminal charges is questioned about possible 

24 immigration violations. 


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1 (4) VULNERABLE POPULATIONS.—The term 

2 ‘‘vulnerable populations’’ means classes of aliens or 

3 other individuals who have special needs requiring 

4 special treatment and consideration because of past 

5 abuse, harm, or other physical or mental character6 istics that place the individual at special risk of 

7 harm. 

8 SEC. 4. PROTECTIONS AGAINST UNLAWFUL DETENTIONS 

9 OF UNITED STATES CITIZENS AND LAWFUL 

10 PERMANENT RESIDENTS. 

11 (a) NOTIFICATIONS.— 

12 (1) IN GENERAL.—An officer of United States 

13 Immigration and Customs Enforcement or other 

14 government law enforcement officer may not ques15 tion an individual who has been detained on the 

16 basis of a suspected immigration violation or has 

17 been detained during an immigration-related en18 forcement activity, unless the officer has advised the 

19 individual, in the language spoken by the indi20 vidual— 

21 (A) of the right to be represented at no ex22 pense to the Federal Government; 

23 (B) that he or she may choose to remain 

24 silent; and 


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1 (C) that any statement may be used 

2 against him or her in a subsequent proceeding. 

3 (2) EFFECT OF VIOLATION.—Any statement ob4 tained by the government from an individual in vio5 lation of the requirements set forth in subpara6 graphs (A) through (C) of paragraph (1) shall not 

7 be admissible in the Federal Government’s case-in8 chief in any removal proceeding against the indi9 vidual. 

10 (b) ACCESS TO COUNSEL.— 

11 (1) IN GENERAL.—An individual who is de12 tained during an immigration-related enforcement 

13 activity may be represented by legal counsel at any 

14 time at no expense to the Federal Government. 

15 (2) LIST OF FREE LEGAL SERVICES.—The ex16 amining officer shall— 

17 (A) at the time of detention of an indi18 vidual for an immigration-related violation, pro19 vide the individual with a list of available free 

20 or low-cost legal services provided by organiza21 tions and attorneys that are located in the dis22 trict where the arrest is taking place; and 

23 (B) certify on the notice to appear issued 

24 to such individual that such a list was provided 

25 to the individual. 


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1 (3) AMENDMENT.—Section 236 of the Immi2 gration and Nationality Act (8 U.S.C. 1226) is 

3 amended— 

4 (A) by redesignating subsection (e) as sub5 section (h); 

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

7 and (d) as subsections (c), (d), and (e), respec8 tively; and 

9 (C) by inserting before subsection (h), as 

10 redesignated, the following: 

11 ‘‘(g) RIGHT TO ACCESS COUNSEL.—An individual 

12 who has been detained under this section may be rep13 resented, at no expense to the Federal Government, by 

14 counsel of the individual’s choosing while being subject to 

15 any immigration-related enforcement activity, including— 

16 ‘‘(1) interviews; 

17 ‘‘(2) processing appointments; 

18 ‘‘(3) hearings; and 

19 ‘‘(4) any procedure which may result in a con20 clusion that the individual will be detained or re21 moved from the United States.’’. 

22 (c) NOTICE.— 

23 (1) AMENDMENT.—Section 236 of the Immi24 gration and Nationality Act, as amended by subVerDate Aug 31 2005 00:21 Sep 30, 2008 Jkt 069200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3594.IS S3594

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1 section (b)(3), is further amended by inserting be2 fore subsection (g) the following: 

3 ‘‘(f) NOTICE AND CHARGES.— 

4 ‘‘(1) NOTICE.—The Secretary of Homeland Se5 curity shall, for each individual detained under this 

6 section— 

7 ‘‘(A) file a notice to appear or other rel8 evant charging document with the closest immi9 gration court to where the individual was appre10 hended; and 

11 ‘‘(B) serve such notice on the individual 

12 not later than 48 hours after the commence13 ment of the individual’s detention. 

14 ‘‘(2) CUSTODY DETERMINATION.—Any indi15 vidual who is detained under this section for more 

16 than 48 hours shall be brought before an immigra17 tion judge for a custody determination not later than 

18 72 hours after the commencement of such detention 

19 unless the individual waives such right in accordance 

20 with paragraph (3). 

21 ‘‘(3) WAIVER.—The requirements under this 

22 subsection may be waived for 7 days if the indi23 vidual— 


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

2 the Department of Homeland Security to waive 

3 such requirement; and 

4 ‘‘(B) is eligible for immigration benefits or 

5 demonstrates eligibility for a defense against re6 moval.’’. 

7 (2) APPLICABILITY OF OTHER LAW.—Nothing 

8 in 236(f) of the Immigration and Nationality Act, as 

9 added by paragraph (1), may be construed to repeal 

10 section 236A of such Act (8 U.S.C. 1226a). 

11 (d) ISSUANCE OF DETAINERS.— 

12 (1) LIMITATION.—An official of the Depart13 ment of Homeland Security may not issue a detainer 

14 unless the official— 

15 (A) has confirmed that the individual who 

16 is the subject of such detainer is not a United 

17 States citizen; and 

18 (B) notes the information collected regard19 ing the individual’s alienage on the detainer. 

20 (2) RULEMAKING.—The Secretary of Homeland 

21 Security shall issue regulations requiring officials of 

22 the Department of Homeland Security to confirm an 

23 individual’s alienage before issuing a detainer by 

24 confirming the name, date of birth, fingerprints, or 

25 other identifying information of the individual. 


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1 (e) ACCESS TO TELEPHONES.—Not later than 6 

2 hours after the commencement of a detention of an indi3 vidual during an immigration-related enforcement activity, 

4 an official of the Department of Homeland Security shall 

5 provide such individual with free access to a telephone to 

6 make a telephone call. 

7 (f) PROTECTION OF COMMUNITY INSTITUTIONS.— 

8 (1) IN GENERAL.—The Secretary of Homeland 

9 Security shall issue regulations requiring officials of 

10 the Department of Homeland Security to— 

11 (A) avoid the apprehension of persons on 

12 the premises or in the immediate vicinity of day 

13 care centers, schools, legal service providers, 

14 courts, funeral homes, cemeteries, colleges, vic15 tim services agencies, social service agencies, 

16 hospitals, health care clinics, and places of wor17 ship; and 

18 (B) tightly control investigative operations 

19 at the places described in subparagraph (A). 

20 (2) NOTICE TO APPEAR.—The Secretary of 

21 Homeland Security shall amend the Notice to Ap22 pear form to include a statement that no immigra23 tion enforcement activity was undertaken in any of 

24 the community institutions described in paragraph 

25 (1)(A). 


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1 (g) TRANSFER OF DETAINEES.— 

2 (1) PROCEDURES.—In adopting procedures gov3 erning the transfer of individuals detained under 

4 section 236 of the Immigration and Nationality Act 

5 (8 U.S.C. 1226), the Secretary of Homeland Secu6 rity shall promulgate regulations requiring officials 

7 of the Department of Homeland Security to give 

8 substantial weight to— 

9 (A) the detainee’s access to legal represen10 tation; 

11 (B) the detainee’s residence prior to appre12 hension; 

13 (C) the location of family members; 

14 (D) the stage of any legal proceeding in15 volving the detainee; 

16 (E) the proximity of the transferee facility 

17 to the venue of such proceeding; 

18 (F) the detainee’s health and medical fit19 ness; and 

20 (G) whether the detainee has a pending 

21 application with United States Citizenship and 

22 Immigration Services or the Executive Office 

23 for Immigration Review or has appeared for a 

24 merits calendar hearing. 


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1 (2) NOTICE.—Unless exigent circumstances dic2 tate an immediate transfer, the Secretary of Home3 land Security— 

4 (A) shall provide not less than 72 hours 

5 notice to any detainee before transferring the 

6 detainee to another detention facility; and 

7 (B) shall not transfer any detainee who 

8 has already requested, and is awaiting, a bond 

9 hearing. 

10 (3) OTHER REQUIREMENTS.— 

11 (A) IN GENERAL.—Except as provided 

12 under paragraph (B), the Secretary may not 

13 transfer a detainee who has an existing attor14 ney-client relationship to another facility if such 

15 transfer would— 

16 (i) impair the existing attorney-client 

17 relationship; or 

18 (ii) prejudice the rights of the de19 tainee in any legal proceeding. 

20 (B) EXCEPTION.—The Secretary may 

21 transfer a detainee who has an existing attor22 ney-client relationship to an alternate detention 

23 facility if such transfer is necessitated by a 

24 highly unusual emergency, such as a natural 

25 disaster or comparable emergency. 


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1 (C) PROTECTING DETAINEES LEGAL

2 RIGHTS.—If the Secretary determines that a 

3 transfer is necessary due to a highly unusual 

4 emergency, the Secretary shall ensure that the 

5 detainee’s legal rights are not prejudiced and 

6 the existing attorney client relationship is not 

7 impaired, including evaluating the location of 

8 the detention facility based on it proximity to 

9 the detainee’s counsel or organizations pro10 viding free immigration legal services. 

11 (D) RECORD.—In cases in which a de12 tainee is transferred, the Secretary shall make 

13 a record of the reasons and circumstances ne14 cessitating such transfer. 

15 (h) TRAINING.—The Secretary of Homeland Security 

16 shall provide all officers of the Department and State and 

17 local officers involved in immigration enforcement activi18 ties with guidelines and periodic training regarding immi19 gration law, due process protections, and humanitarian 

20 guidelines under current law, including— 

21 (1) the right to access immigration legal coun22 sel; and 

23 (2) the appropriate treatment of vulnerable 

24 populations during immigration-related enforcement 

25 activities. 


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1 SEC. 5. SAFEGUARDS DURING ENFORCEMENT OPER2 ATIONS. 

3 In any immigration-related enforcement activity that 

4 is expected to target more than 50 individuals, the Sec5 retary of Homeland Security shall— 

6 (1) screen each individual detained in an immi7 gration-related enforcement activity to determine if 

8 such individual is a United States citizen, a lawful 

9 permanent resident of the United States, or an alien 

10 lawfully present in the United States; 

11 (2) if an individual claims to be a United States 

12 citizen, a lawful permanent resident of the United 

13 States, or an alien lawfully present in the United 

14 States, ensure that the officer of the Department of 

15 Homeland Security investigates the individual’s 

16 claims and considers the individual for release under 

17 section 7(a); 

18 (3) notify State and local child welfare authori19 ties of such immigration-related enforcement activity 

20 not later than 24 hours before the commencement of 

21 such activity; 

22 (4) provide social workers or case managers em23 ployed or contracted by a State or local social service 

24 agency with confidential access to individuals de25 tained by the Department— 


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1 (A) to screen and interview such individ2 uals for humanitarian concerns; and 

3 (B) to offer psychosocial and mental health 

4 services to children and family members of such 

5 individuals; 

6 (5) permit State and local social service pro7 viders to determine whether nongovernmental orga8 nizations may participate in screening individuals 

9 detained by the Department for humanitarian pur10 poses; 

11 (6) ensure that qualified medical personnel— 

12 (A) conduct medical screenings of the indi13 viduals subject to the immigration-related en14 forcement activity; and 

15 (B) identify and report any medical or 

16 other issues that might necessitate humani17 tarian release or emergency assistance; 

18 (7) before transferring any individual detained 

19 by the Department outside the district in which the 

20 arrest took place, determine, based on all informa21 tion available to the Department and the rec22 ommendations made by State and local social service 

23 agencies— 

24 (A) if the individual is described in section 

25 7(a); and 


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1 (B) if the individual should be released; 

2 (8) provide and advertise a toll-free number 

3 through which family members of the target popu4 lation of the immigration-related enforcement activ5 ity may obtain information about their detained 

6 family members, in English and the majority lan7 guage of such detainees; 

8 (9) determine whether an individual subject to 

9 detention— 

10 (A) is a primary caretaker of a child in the 

11 United States; and 

12 (B) should be released under the provisions 

13 set forth in section 236(b) of the Immigration 

14 and Nationality Act, as added by section 7(b); 

15 (10) ensure that agents of the Department do 

16 not— 

17 (A) interrogate individuals in the imme18 diate presence of children; or 

19 (B) interrogate, arrest, or detain any child 

20 without the presence or consent of a parent, 

21 legal guardian, or legal counsel; 

22 (11) ensure that not fewer than one inde23 pendent certified interpreter who is fluent in Span24 ish or any language other than English spoken by 

25 more than 5 percent of the target population of the 


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1 operation for in-person translation is available for 

2 every 5 individuals targeted by an immigration-re3 lated law enforcement activity; 

4 (12) permit local nonprofit legal service pro5 viders, organizations, and attorneys to offer free 

6 legal services to individuals subject to an immigra7 tion-related enforcement activity at the time of the 

8 arrest or detention of such individual; and 

9 (13) provide a legal orientation presentation for 

10 any individual detained through an immigration-re11 lated enforcement activity through the Legal Ori12 entation Program administered by the Executive Of13 fice for Immigration Review. 

14 SEC. 6. CONDUCT IN ENFORCEMENT ACTIONS. 

15 Section 274A(e) of the Immigration and Nationality 

16 Act (8 U.S.C. 1324a(e)) is amended by adding at the end 

17 the following: 

18 ‘‘(10) CONDUCT IN ENFORCEMENT ACTIONS.— 

19 ‘‘(A) COORDINATION WITH THE DEPART20 MENT OF LABOR OR OTHER RELEVANT AGEN21 CIES IN AN ENFORCEMENT ACTION.—During an 

22 enforcement action undertaken by the Depart23 ment of Homeland Security in which the De24 partment receives information of a pending 

25 labor dispute or information in retaliation 


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1 against employees for exercising their employ2 ment rights, the Secretary shall ensure that— 

3 ‘‘(i) any aliens who are arrested or de4 tained, and are necessary for the prosecu5 tion of any labor or employment law viola6 tions, are not removed from the United 

7 States until the appropriate law enforce8 ment agency that has jurisdiction over 

9 such violations has been given an oppor10 tunity to interview such aliens; and 

11 ‘‘(ii) no aliens entitled to a stay of re12 moval under this section are removed. 

13 ‘‘(B) INTERVIEWS.—Any arrangements for 

14 aliens to be held or interviewed shall be made 

15 in consultation with the relevant labor and em16 ployment law enforcement agencies. 

17 ‘‘(C) STAY OF REMOVAL.— 

18 ‘‘(i) IN GENERAL.—An alien against 

19 whom removal proceedings have been initi20 ated pursuant to chapter 4 of title II, and 

21 who has filed a workplace claim or is a ma22 terial witness in any pending or anticipated 

23 proceeding involving a workplace claim, 

24 shall be entitled to a stay of removal and 

25 an employment authorized endorsement 


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1 unless the Department establishes, by a 

2 preponderance of the evidence in pro3 ceedings before the immigration judge pre4 siding over that alien’s removal hearing, 

5 that— 

6 ‘‘(I) the Department initiated the 

7 alien’s removal proceeding for wholly 

8 independent reasons and not in any 

9 respect based on, or as a result of, 

10 any information provided to or ob11 tained by the Department from the 

12 alien’s employer, from any outside 

13 source, including any anonymous 

14 source, or as a result of the filing or 

15 prosecution of the workplace claim; 

16 and 

17 ‘‘(II) the workplace claim was 

18 filed in a bad faith with the intent to 

19 delay or avoid the alien’s removal. 

20 ‘‘(ii) DURATION.—Any stay of re21 moval or work authorization issued pursu22 ant to subsection (i) shall remain valid and 

23 in effect during the pendency of the pro24 ceedings concerning the workplace claim 

25 described in clause (i). The Secretary of 


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1 Homeland Security shall extend such relief 

2 for a period of not longer than 3 additional 

3 years upon determining that— 

4 ‘‘(I) such relief would enable the 

5 alien asserting the workplace claim to 

6 be made whole; 

7 ‘‘(II) the deterrent goals of any 

8 statute underlying the workplace 

9 claim would thereby be served; or 

10 ‘‘(III) such extension would oth11 erwise further the interests of justice. 

12 ‘‘(iii) DEFINITIONS.—In this sec13 tion— 

14 ‘‘(I) the term ‘material witness’ 

15 means an individual who presents a 

16 declaration from an attorney pros17 ecuting or defending the workplace 

18 claim, or from the presiding officer 

19 overseeing the workplace claim, attest20 ing that, to the best of the declarant’s 

21 knowledge and belief, reasonable 

22 cause exists to believe that the testi23 mony of the individual will be crucial 

24 to the outcome of the workplace claim; 

25 and 


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1 ‘‘(II) the term ‘workplace claim’ 

2 includes any claim, charge, complaint, 

3 or grievance filed with, or submitted 

4 to, the employer, a Federal or State 

5 agency or court, or an arbitrator, to 

6 challenge an employer’s alleged civil 

7 or criminal violation of any legal or 

8 administrative rule or requirement af9 fecting the terms or conditions of its 

10 workers’ employment, the treatment 

11 of workers, or the hiring or firing of 

12 its workers.’’. 

13 SEC. 7. BASIC PROTECTIONS FOR VULNERABLE POPU14 LATIONS. 

15 (a) PROTECTION OF VULNERABLE POPULATIONS.— 

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

17 after the commencement of an immigration-related 

18 enforcement activity, the Department of Homeland 

19 Security shall screen each detainee to determine if 

20 they belong to any of the groups listed in paragraph 

21 (2). 

22 (2) VULNERABLE POPULATION GROUPS.—An 

23 individual is eligible for release under paragraph (3) 

24 if the individual belongs to any of the following 

25 groups: 


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1 (A) Individuals who have serious medical 

2 or mental health needs or a disability. 

3 (B) Pregnant or nursing women. 

4 (C) Individuals who are being detained 

5 with 1 or more of their children, and their de6 tained children. 

7 (D) Individuals who provide financial, 

8 physical, and other direct support to their 

9 minor children, parents, or other dependents. 

10 (E) Individuals who are over 65 years of 

11 age. 

12 (F) Children under 18 years of age. 

13 (G) Victims of abuse, violence, crime, or 

14 human trafficking. 

15 (H) Individuals who have been referred for 

16 a credible fear interview, a reasonable fear 

17 interview, or an asylum hearing. 

18 (I) Individuals who have applied or intend 

19 to apply for asylum, withholding of removal, or 

20 protection under the Convention Against Tor21 ture and Other Cruel, Inhuman or Degrading 

22 Treatment or Punishment, done at New York 

23 December 10, 1984. 


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1 (J) Any other group designated in regula2 tions or guidance promulgated by the Secretary 

3 of Homeland Security. 

4 (K) Individuals who have a non-frivolous 

5 claim to United States citizenship. 

6 (L) Individuals who are eligible for relief 

7 under any provision of the Immigration and 

8 Nationality Act (8 U.S.C. 1101 et seq.). 

9 (3) ELIGIBILITY FOR RELEASE.—An individual 

10 shall be released on parole or a reasonable bond, 

11 subject to the requirements under section 236(b) of 

12 the Immigration and Nationality Act, as amended by 

13 subsection (b), if the individual— 

14 (A) belongs to a group described in para15 graph (2); and 

16 (B) meets the criteria set forth under such 

17 section 236(b). 

18 (b) OPTIONS REGARDING DETENTION DECISIONS

19 FOR VULNERABLE POPULATIONS.—Section 236 of the 

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

21 is further amended— 

22 (1) in subsection (a)— 

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

24 by striking ‘‘(c)’’ and inserting ‘‘(d)’’; and 

25 (B) in paragraph (2)— 


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

2 ‘‘or’’ at the end; 

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

4 ‘‘but’’ and inserting ‘‘or’’; and 

5 (iii) by inserting after subparagraph 

6 (B) the following: 

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

8 and’’; 

9 (2) by inserting after subsection (a) the fol10 lowing: 

11 ‘‘(b) CUSTODY DECISIONS FOR VULNERABLE POPU12 LATIONS.— 

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

14 after an individual is detained under this section, the 

15 individual shall be released from the custody of the 

16 Department of Homeland Security and shall not be 

17 subject to electronic monitoring if the Department 

18 demonstrates that the individual— 

19 ‘‘(A) is not subject to mandatory detention 

20 under section 235(b)(1)(B)(iii)(IV), 236(c), or 

21 236A; 

22 ‘‘(B) does not pose a flight risk, a risk to 

23 others, or a risk to the national security of the 

24 United States; and 


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1 ‘‘(C) is a member of a vulnerable popu2 lation (as defined in section 7(a)(2) of the Pro3 tect Citizens and Residents from Unlawful 

4 Raids and Detention Act. 

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

6 under this subsection— 

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

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

9 subsection (a)(2)(a); or 

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

11 212(d)(5)(A). 

12 ‘‘(3) DECISION TO REMOVE OR RELEASE AN

13 ALIEN.— 

14 ‘‘(A) IN GENERAL.—Any decision under 

15 paragraph (1)— 

16 ‘‘(i) shall be made in writing; 

17 ‘‘(ii) if the decision is made to con18 tinue detention without bond or parole, 

19 shall specify the reasons for such decision; 

20 and 

21 ‘‘(iii) shall be served upon the indi22 vidual in the language spoken by the indi23 vidual— 


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1 ‘‘(I) not later than 72 hours after 

2 the commencement of the alien’s de3 tention; or 

4 ‘‘(II) in the case of an alien sub5 ject to section 235 or 241(a)(5) who 

6 must establish a credible fear of per7 secution or torture in order to proceed 

8 to immigration court, not later than 

9 72 hours after a positive credible fear 

10 of persecution or reasonable fear of 

11 persecution or torture determination. 

12 ‘‘(B) REDETERMINATION.— 

13 ‘‘(i) IN GENERAL.—Any alien detained 

14 under this section, including any alien eli15 gible for a removal hearing under section 

16 240, may, at any time after being served 

17 with the Secretary’s decision under sub18 paragraph (A), request a redetermination 

19 of that decision by an immigration judge. 

20 ‘‘(ii) OTHER DECISIONS.—All custody 

21 decisions by the Secretary shall be subject 

22 to redetermination by an immigration 

23 judge. 

24 ‘‘(iii) SAVINGS PROVISION.—Nothing 

25 in this subparagraph may be construed to 


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1 prevent an individual from requesting a 

2 bond redetermination.’’; and 

3 (3) in subsection (d)(2), as redesignated in 

4 paragraph (2), by inserting ‘‘or for humanitarian 

5 reasons,’’ after ‘‘such an investigation,’’. 

6 SEC. 8. DETENTION SAFEGUARDS FOR CITIZENS, NATION7 ALS, RESIDENTS AND IMMIGRANTS. 

8 (a) ALTERNATIVE CUSTODY PROGRAMS.— 

9 (1) IN GENERAL.—The Secretary of Homeland 

10 Security shall ensure that United States citizens, 

11 lawful permanent residents, and other individuals 

12 are not unlawfully detained by establishing secure 

13 alternative custody programs, which— 

14 (A) shall use a continuum of methods to 

15 ensure individuals attend all immigration court 

16 proceedings; and 

17 (B) may be used for individuals who would 

18 otherwise be subject to detention under section 

19 236 of the Immigration and Nationality Act (8 

20 U.S.C. 1226). 

21 (2) CONSIDERATION.—If an individual belongs 

22 to one of the vulnerable population groups described 

23 in section 7(a)(2), but does not meet the require24 ments for parole, release, or bond under section 

25 236(a) of the Immigration and Nationality Act, the 


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1 Secretary shall consider the individual for placement 

2 in a secure alternative custody program. 

3 (3) INDIVIDUALIZED DETERMINATION.—The 

4 Secretary shall determine, on an individual basis, 

5 whether an individual described in paragraph (2) 

6 should be subject to less restrictive forms of custo7 dial detention, including electronic monitoring by 

8 ankle bracelets and similar devices. 

9 (4) ALTERNATIVE TO DETENTION PROGRAMS.— 

10 (A) CONTRACTING.—The Secretary shall 

11 contract with nongovernmental organizations to 

12 create alternative to detention programs, which 

13 shall— 

14 (i) conduct screening of detainees; 

15 (ii) provide noncustodial appearance 

16 assistance services; or 

17 (iii) operate group homes or other 

18 community-based alternatives to detention 

19 programs. 

20 (B) LEGAL ORIENTATION.—The Attorney 

21 General shall contract with nongovernmental 

22 organizations to conduct legal orientation serv23 ices. 

24 (b) DETENTION ADVISORY COMMITTEE.— 


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1 (1) ESTABLISHMENT.—To ensure that all indi2 viduals being detained by the Department of Home3 land Security are treated humanely, the Secretary of 

4 Homeland Security shall establish a detention advi5 sory committee, which shall review and revise the 

6 guidelines in the Detention Operations Manual used 

7 by United States Immigration and Customs En8 forcement based on— 

9 (A) identifiable deficiencies in the Deten10 tion Operations Manual; and 

11 (B) practices that treat individuals safely 

12 and humanely. 

13 (2) COMPOSITION.—The detention advisory 

14 committee shall be comprised of experts from the 

15 United States Government and an equal number of 

16 independent experts from nongovernmental organiza17 tions and intergovernmental organizations with ex18 pertise in working on behalf of detainees, immi19 grants, and vulnerable populations. 

20 (3) REPORT.—Not later than 1 year after the 

21 date of the enactment of this Act, the detention ad22 visory committee shall submit a report to the Sec23 retary that describes the results of the review and 

24 revisions carried out pursuant to paragraph (1). 


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1 (c) RULEMAKING.—Not later than the earlier of 1 

2 year after the Secretary of Homeland Security receives the 

3 report under subsection (b)(2) or 1 year after such report 

4 is due, the Secretary shall promulgate regulations gov5 erning the humane treatment of individuals in the custody 

6 of the Department of Homeland Security based on the in7 formation contained in such report. 

8 SEC. 9. REPORT ON PROTECTIONS FOR UNITED STATES 

9 CITIZENS, NATIONALS, AND LAWFUL PERMA10 NENT RESIDENTS FROM UNLAWFUL DETEN11 TION. 

12 (a) REQUIREMENT FOR REPORTS.—Not later than 1 

13 year after the date of the enactment of this Act, and annu14 ally thereafter, the Secretary of Homeland Security shall 

15 submit a report to Congress that describes the impact of 

16 worksite operations and fugitive operations on United 

17 States citizens, lawful permanent residents, and individ18 uals otherwise lawfully present in the United States. 

19 (b) CONTENT.—The 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 arrests at homes, 

2 schools, places of worship, medical care facilities, 

3 victim services agencies, social services agencies, and 

4 community centers; 

5 (3) arrests, detentions, and removals of sole 

6 caregivers, primary breadwinners, pregnant and 

7 nursing mothers, and other vulnerable groups during 

8 an immigration-related enforcement activity; 

9 (4) transfers of immigrants during the course 

10 of a raid or immigration enforcement activity, in11 cluding— 

12 (A) whether the immigrants had access to 

13 legal counsel before being transferred; and 

14 (B) whether the immigrant received notice 

15 of an impending transfer; 

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

17 Enforcement (ICE) protocol for humanitarian 

18 screening during a worksite enforcement action; 

19 (B) the compliance with such protocol; and 

20 (C) the nature of any related protocol in small21 er worksite or nonworksite actions; 

22 (6) collateral arrests under the National Fugi23 tive Operations Program and worksite enforcement 

24 initiatives; 


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1 (7) whether individuals detained in an immigra2 tion-related enforcement activity are notified about 

3 their right to counsel; 

4 (8) whether ICE uses excessive force in exe5 cuting warrants, arrests, detentions, or other immi6 gration enforcement activities; 

7 (9) whether ICE enters private homes or resi8 dences without a search warrant or consent; 

9 (10) whether ICE displays and uses weapons 

10 during immigration enforcement activities or interro11 gations; 

12 (11) the extent to which ICE cooperates and 

13 coordinates with State and local law enforcement 

14 during immigration enforcement activities; 

15 (12) whether ICE agents identify themselves 

16 when entering a location for enforcement purposes; 

17 (13) the conditions under which individuals are 

18 confined; 

19 (14) whether confined individuals are provided 

20 access to a telephone; 

21 (15) whether confined individuals are notified of 

22 their rights in a language they can understand; 

23 (16) whether individuals detained during a raid 

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1 erced to sign any documents or waive any rights 

2 without consulting with an attorney; 

3 (17) the methodology of the Department of 

4 Homeland Security for notifying agents about hu5 manitarian standards regarding enforcement actions 

6 and holding them accountable when such standards 

7 are violated; 

8 (18) an analysis of how much each raid of more 

9 than 50 people costs per individual detained; 

10 (19) the number of ICE agents disciplined for 

11 violations in detention proceedings; and 

12 (20) 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. 10. 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.—Within the Department, there 

25 shall be a position of Immigration and Customs EnforceVerDate Aug 31 2005 00:21 Sep 30, 2008 Jkt 069200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S3594.IS S3594

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1 ment Ombudsman (in this section referred to as the ‘Om2 budsman’). The Ombudsman shall report directly to the 

3 Assistant Secretary for Immigration and Customs En4 forcement (referred to in this section as the ‘Assistant 

5 Secretary’) and shall have a background in immigration 

6 law. 

7 ‘‘(b) FUNCTIONS.—It shall be the function of the 

8 Ombudsman— 

9 ‘‘(1) to undertake regular and unannounced in10 spections of detention facilities to determine the fa11 cilities’ compliance with relevant policies, procedures, 

12 standards, laws, and regulations; 

13 ‘‘(2) to report all findings of a detention facili14 ty’s compliance or noncompliance to the Secretary 

15 and the Assistant Secretary; 

16 ‘‘(3) to develop procedures for detainees or 

17 their representatives to submit confidential written 

18 complaints directly to the Ombudsman; 

19 ‘‘(4) to investigate and resolve all complaints, 

20 including confidential and anonymous complaints, 

21 related to decisions, recommendations, acts, or omis22 sions made by the Assistant Secretary or the Com23 missioner of United States Customs and Border 

24 Protection in the course of custody and detention 

25 operations; 


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1 ‘‘(5) to initiate investigations into allegations of 

2 systemic problems at detention facilities; 

3 ‘‘(6) to conduct any review or audit relating to 

4 detention, as directed by the Secretary or Assistant 

5 Secretary; 

6 ‘‘(7) to refer matters where appropriate to the 

7 Office of Inspector General of the Department of 

8 Justice, the Office of Civil Rights and Civil Liberties 

9 of the Department, or any other relevant office or 

10 agency; 

11 ‘‘(8) to propose changes in the policies or prac12 tices of United States Immigration and Customs 

13 Enforcement to improve the treatment of United 

14 States citizens and residents, immigrants, detainees, 

15 and others encountered during immigration-related 

16 enforcement operations; 

17 ‘‘(9) to establish a public advisory group con18 sisting of nongovernmental organization representa19 tives, and Federal, State, and local government offi20 cials with expertise in detention and vulnerable pop21 ulations to provide the Ombudsman with private sec22 tor input on— 

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

24 ‘‘(B) current practices of United States 

25 Immigration and Customs Enforcement; and 


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1 ‘‘(10) to recommend personnel action based on 

2 any finding of noncompliance to be considered by 

3 the Assistant Secretary. 

4 ‘‘(c) ANNUAL REPORT.— 

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

6 each calendar year, the Ombudsman shall submit a 

7 report to the Committee on the Judiciary of the 

8 Senate and the Committee on the Judiciary of the 

9 House of Representatives on the objectives of the 

10 Office of the Ombudsman for the fiscal year begin11 ning in such calendar year. 

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

13 paragraph (1) shall include— 

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

15 objectives of the Office; 

16 ‘‘(B) statistical information regarding such 

17 objectives; 

18 ‘‘(C) a description of each detention facil19 ity found to be in noncompliance with the De20 partment’s detention standards or other appli21 cable regulations; 

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

23 the Department to remedy any findings of non24 compliance or other identified problems; 


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1 ‘‘(E) information regarding whether the 

2 actions referred to in subparagraph (D) were 

3 successful and resulted in compliance with de4 tention standards; 

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

6 serious problems encountered by individuals af7 fected by the Department’s enforcement oper8 ations, including a description of the nature of 

9 such problems; and 

10 ‘‘(G) such other information as the Om11 budsman may consider advisable.’’. 

12 (b) CLERICAL AMENDMENT.—The table of contents 

13 in section 1(b) of the Homeland Security Act of 2002 (6 

14 U.S.C. 101 et seq.) is amended by inserting after the item 

15 relating to section 446 the following: 

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

16 SEC. 11. RULEMAKING. 

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

18 of this Act, the Secretary of Homeland Security shall pro19 mulgate regulations to implement this Act and the amend20 ments made by this Act. 

Æ 


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