148 
(A) admissible in a removal proceeding 
against the detainee; or 
(B) used to confirm that the detainee is a 
noncitizen for purposes of issuing an immigra-
tion detainer. 
(b) LEGAL ORIENTATION PROGRAM.— 
(1) IN
GENERAL.—The Attorney General, in 
consultation with the Secretary, shall ensure that all 
detained aliens who are in, or may be subject to, de-
tention by the Department of Homeland Security, 
Immigration and Customs Enforcement, and who 
are, or may be, in EOIR Immigration Court pro-
ceedings pursuant to sections 235, 238, 240, and 
241 of the Immigration and Nationality Act receive 
legal orientation through a program administered 
and implemented by the Executive Office of Immi-
gration Review of the Department of Justice. 
(2) CONTENT
OF
THE
PROGRAM.—The legal 
orientation program developed pursuant to this sec-
tion shall be based on the Legal Orientation Pro-
gram carried out by the Executive Office for Immi-
gration Review on the date of the enactment of this 
Act. 
(3) AUTHORIZATION
OF
APPROPRIATIONS.— 
There are authorized to be appropriated such sums 
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149 
as may be necessary to carry out such legal orienta-
tion program. 
(c) ACCESS TO COUNSEL.— 
(1) IN GENERAL.—An individual who is subject 
to or detained during an immigration-related en-
forcement activity may be represented by legal coun-
sel at any time. 
(2) LIST OF FREE LEGAL SERVICES.—The ex-
amining officer shall, in the language spoken by the 
individual being detained— 
(A) provide the individual, prior to trans-
ferring the individual from the point of appre-
hension to the detention facility for an immi-
gration-related violation with a list of available 
free or low-cost legal services provided by orga-
nizations and attorneys that are located in the 
region in which the arrest occurred; and 
(B) certify on the Notice to Appear issued 
to such individual that such a list was provided 
to the individual. 
(3) AMENDMENT.—Section 236 of the Immi-
gration and Nationality Act (8 U.S.C. 1226) is 
amended— 
(A) by redesignating subsection (e) as sub-
section (l); 
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150 
(B) by redesignating subsections (b), (c), 
(d), and (e) as subsections (f), (g), and (h), and 
(i) respectively; and 
(C) by inserting before subsection (l), as 
redesignated, the following: 
‘‘(k) RIGHT OF ACCESS TO COUNSEL.—An individual 
may be represented by counsel of the individual’s choosing 
while being subject to any immigration-related enforce-
ment activity, including— 
‘‘(1) interviews; 
‘‘(2) processing appointments; 
‘‘(3) booking or intake questions; 
‘‘(4) hearings; and 
‘‘(5) any procedure that may result in a conclu-
sion that the detainee will be detained or removed 
from the United States.’’. 
(d) REPRESENTATION OF DISABLED ALIENS; AC-
CESS TO COUNSEL.—The Attorney General shall ensure 
that any alien with a legal, mental or physical disability 
that prevents him from meaningfully representing himself 
in proceedings shall have counsel, including counsel ap-
pointed by the Attorney General at the expense of the Gov-
ernment. 
(e) NOTICE.— 
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151 
(1) AMENDMENT.—Section 236 of such Act, as 
amended by subsection (b)(3), is further amended by 
inserting before subsection (k), the following: 
‘‘(j) NOTICE AND CHARGES.— 
‘‘(1) IN GENERAL.—Not later than 48 hours 
after the commencement of a detention of an indi-
vidual under this section, the Secretary of Homeland 
Security shall— 
‘‘(A) file a Notice to Appear or other rel-
evant charging document with the immigration 
court closest to the location at which the indi-
vidual was apprehended; and 
‘‘(B) serve such notice or charging docu-
ment on the individual. 
‘‘(2) CUSTODY
DETERMINATION.—Any indi-
vidual who is detained under this section for more 
than 48 hours shall be brought before an immigra-
tion judge for a custody determination not later than 
72 hours after the commencement of such detention 
unless the individual waives the right in accordance 
with paragraph (3). 
‘‘(3) WAIVER.—The requirements of this sub-
section may be waived for not more than 7 days if 
the detainee— 
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152 
‘‘(A) enters into a written agreement with 
the Department of Homeland Security to waive 
such requirements; and 
‘‘(B) is prima facie eligible for immigration 
benefits or demonstrates prima facie eligibility 
for a defense against removal.’’. 
(2) APPLICABILITY OF OTHER LAW.—Nothing 
in section 236(f) of the Immigration and Nationality 
Act, as added by paragraph (1), may be construed 
to repeal section 236A of such Act (8 U.S.C. 
1226a). 
(f) ISSUANCE OF DETAINERS.— 
(1) IN GENERAL.—Section 287(d) is amended 
by adding at the end the following: ‘‘The alien and 
his or her attorney in the criminal proceeding shall 
be provided with a written notice of the detainer in-
dicating the intention of the Secretary to assume 
custody of the alien upon completion of the pending 
criminal proceedings. The written notice shall in-
clude information about the specific basis for issuing 
the detainer and instructions about how individuals 
can challenge a detainer lodged in error. Where the 
State or Federal criminal court has granted pre-trial 
release, and the alien has complied with conditions 
of such release, DHS shall not take custody of the 
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153 
alien until resolution of the pending criminal 
charges. The existence of a detainer shall not be 
used as a basis for denying pre-trial release. This 
section is the sole authority for issuance of immigra-
tion detainers.’’. 
(2) RULEMAKING.—The Secretary shall issue 
regulations that require officials of the Department 
of Homeland Security to confirm, before issuing a 
detainer, the alienage of the individual to be made 
subject to such detainer. The regulations shall re-
quire officials of the Department of Homeland Secu-
rity to confirm— 
(A) the alienage of an individual through 
lawfully obtained information, including the 
name of the individual; the date of birth of the 
individual; or the fingerprints of the individual; 
and 
(B) whether the individual is removable 
from the United States. 
(3) DATA
COLLECTION.—The Secretary of 
Homeland Security shall collect data regarding de-
tainers issued under section 287(d) of the Immigra-
tion and Nationality Act (8 U.S.C. 1357(d)) includ-
ing— 
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154 
(A) the criminal charge for which the indi-
vidual was arrested and/or convicted; 
(B) the date the detainer was issued; 
(C) the basis for issuance of the detainer; 
(D) the date(s) the detainer was lifted; 
(E) the date(s) of release of the individual 
ordered by a State or Federal criminal court or 
other government entity; 
(F) the date that DHS took custody of the 
individual; 
(G) the race and ethnicity and country of 
origin of the individual against whom the de-
tainer was issued; 
(H) the disposition of criminal case; 
(I) the ultimate disposition of immigration 
case or whether individual was discovered to be 
a United States citizen; 
(J) the grounds of removal if applicable 
and any charges brought by the Secretary; and 
(K) the number of individuals removed 
after the Secretary took custody while any 
criminal matter was still pending. 
(4) REPORT ON DETAINERS.—On a yearly basis 
beginning one year after the date of the enactment 
of this Act, the Secretary of Homeland Security 
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155 
shall report the results of the Secretary’s data collec-
tion to the Department of Homeland Security In-
spector General, the Department of Justice Civil 
Rights Division, Congress, and the Department of 
Homeland Security Office of Civil Rights and Civil 
Liberties for purposes of ascertaining the extent to 
which detainers are erroneously lodged against indi-
viduals who are United States citizens or not deport-
able, how often individuals remain in detention un-
lawfully past the expiration of the detainer, whether 
detainers are lodged disproportionately against cer-
tain ethnicities, whether the lodging of detainers re-
sults in longer incarceration times, and whether de-
tainers are lodged for an investigatory purpose to in-
vestigate criminal activity instead of placing individ-
uals in removal proceedings. 
(5) AUTHORIZATION
OF
APPROPRIATIONS.— 
There are authorized to be appropriated such sums 
as may be necessary to carry out this section for 
each of fiscal years 2014 through 2018 to carry out 
this section. 
SEC. 160. BASIC PROTECTIONS FOR VULNERABLE POPU-
LATIONS. 
(a) VULNERABLE POPULATIONS.— 
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156 
(1) IN
GENERAL.—Not later than 48 hours 
after the commencement of an immigration-related 
enforcement activity, the Department of Homeland 
Security shall screen each detainee to determine 
whether the detainee is a member of a vulnerable 
population. 
(2) VULNERABLE POPULATIONS.—A member of 
a vulnerable population includes any of the fol-
lowing: 
(A) Individuals with a nonfrivolous claim 
to United States citizenship. 
(B) Individuals who have a disability or 
have been determined by a medically trained 
professional to have medical or mental health 
needs. 
(C) Pregnant or nursing women. 
(D) Individuals who are detained with 1 or 
more of their children, and their detained chil-
dren. 
(E) Individuals who provide financial, 
physical, and other direct support to their 
minor children, parents, or other dependents. 
(F) Individuals who are at least 65 years 
of age. 
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157 
(G) Children (as defined in section 
101(b)(1) of the Immigration and Nationality 
Act (8 U.S.C. 1101(b)(1))). 
(H) Victims of abuse, violence, crime, or 
human trafficking. 
(I) Individuals who have been referred for 
a credible fear interview, a reasonable fear 
interview, or an asylum hearing. 
(J) Stateless individuals. 
(K) Individuals who have applied or intend 
to apply for asylum, withholding of removal, or 
protection under the Convention Against Tor-
ture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment, done at New York, 
December 10, 1984, and entered into force 
June 26, 1987. 
(L) Individuals who make a prima facie 
case for eligibility for relief under any provision 
of the Immigration and Nationality Act (8 
U.S.C. 1101 et seq.), including returning lawful 
permanent residents. 
(M) Any group designated by the Sec-
retary as a vulnerable population. 
(b) OPTIONS REGARDING DETENTION DECISIONS 
FOR VULNERABLE POPULATIONS.—Section 236 of the 
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158 
Immigration and Nationality Act, as amended by this Act, 
is further amended— 
(1) in subsection (a)— 
(A) in the matter preceding paragraph (1), 
by striking ‘‘(c)’’ and inserting ‘‘(g)’’; 
(B) in paragraph (2)— 
(i) in subparagraph (A), by striking 
‘‘or’’ at the end; 
(ii) in subparagraph (B), by striking 
‘‘but’’ and inserting ‘‘or’’; and 
(iii) by adding at the end the fol-
lowing: 
‘‘(C) the individual’s own recognizance;’’; 
(C) by redesignating paragraph (3) as 
paragraph (4); and 
(D) by inserting after paragraph (2) the 
following: 
‘‘(3) may enroll the alien in a secure alter-
natives program; but’’; and 
(2) by inserting after subsection (a) the fol-
lowing: 
‘‘(b) DETENTION DECISION STANDARDS.— 
‘‘(1) CRITERIA
TO
BE
CONSIDERED.—If an 
alien is not subject to mandatory detention under 
subsection (g) or section 236A, the criteria that the 
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159 
Secretary or the Attorney General shall use to dem-
onstrate that detention of the alien is necessary are 
the following: 
‘‘(A) Whether the alien poses a risk to 
public safety, including a risk to national secu-
rity. 
‘‘(B) Whether— 
‘‘(i) the alien poses a risk of flight; 
and 
‘‘(ii) there are no conditions of release 
that will reasonably ensure that the alien 
will appear for immigration proceedings, 
including bond or other conditions of re-
lease that reduce the risk of flight. 
‘‘(2) EXCEPTION
FOR
MANDATORY
DETAIN-
EES.—The requirements described in paragraph (1) 
shall not apply if the Secretary of Homeland Secu-
rity demonstrates by substantial evidence that the 
alien is subject to detention under subsection (g). 
‘‘(c) CUSTODY DECISIONS FOR VULNERABLE POPU-
LATIONS.— 
‘‘(1) IN GENERAL.—Not later than 72 hours 
after an individual is detained under this section 
(unless the 72-hour requirement is waived in writing 
by the individual), an individual who is a member of 
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160 
a vulnerable population (as defined by section 
5(a)(3) of the Protect Citizens and Residents from 
Unlawful Detention Act) shall be released from the 
custody of the Department of Homeland Security 
and shall not be subject to electronic monitoring un-
less the Department demonstrates by a preponder-
ance of the evidence that the individual— 
‘‘(A) is subject to mandatory custody or 
mandatory detention under subsection (g) or 
section 236A; 
‘‘(B) poses a risk to the national security 
of the United States; or 
‘‘(C) is a flight risk and the risk cannot be 
mitigated through supervision in a non-custo-
dial secure alternatives program. 
‘‘(2) RELEASE.—An individual shall be released 
from custody under this subsection— 
‘‘(A) on the individual’s own recognizance; 
‘‘(B) by posting a minimum bond under 
subsection (a)(2)(a); or 
‘‘(C) on parole in accordance with section 
212(d)(5)(A). 
‘‘(d) DECISIONS TO DETAIN ALIENS.— 
‘‘(1) IN
GENERAL.—All detention decisions 
under this section shall— 
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161 
‘‘(A) be made in writing by an official of 
the Department of Homeland Security; 
‘‘(B) specify the reasons for the decision, if 
the decision is made to continue the detention 
without bond or parole; and 
‘‘(C) be served upon the detainee, in the 
language spoken by the alien, not later than 72 
hours after— 
‘‘(i) the commencement of the deten-
tion; or 
‘‘(ii) a positive determination of cred-
ible fear of persecution or reasonable fear 
of persecution or torture, if the detainee is 
subject to section 235 or 241(a)(5). 
‘‘(2) REDETERMINATION.— 
‘‘(A) REQUEST.—Any alien detained by 
the Department of Homeland Security, at any 
time after being served with the decision de-
scribed in paragraph (1)(A), may request a re-
determination of such decision by an immigra-
tion judge. 
‘‘(B) OTHER DECISIONS.—All custody de-
cisions by the Secretary of Homeland Security 
shall be subject to redetermination by an immi-
gration judge. 
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162 
‘‘(C) SAVINGS
PROVISION.—Nothing in 
this paragraph may be construed to prevent a 
detainee from requesting a bond redetermina-
tion. 
‘‘(e) SECURE ALTERNATIVES PROGRAMS.— 
‘‘(1) IN GENERAL.—The Secretary of Homeland 
Security shall establish secure alternatives programs 
to ensure public safety and appearances at immigra-
tion proceedings. 
‘‘(2) CONTRACT
AUTHORITY.—The Secretary 
shall contract with nongovernmental organizations to 
conduct screening of detainees, provide appearance 
assistance services, and operate community-based 
supervision programs. 
‘‘(3) 
INDIVIDUALIZED
DETERMINATIONS.— 
When deciding whether to use secure alternatives, 
the Secretary shall make an individualized deter-
mination and review each case on a monthly basis. 
‘‘(4) CUSTODY.—If an individual is not eligible 
for release from custody, the Secretary shall con-
sider the alien for placement in secure alternatives 
that maintain custody over the alien, including the 
use of electronic ankle devices. The Secretary may 
use secure alternatives programs to maintain cus-
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163 
tody over any alien detained under this Act except 
for aliens detained under section 236A.’’. 
SEC. 161. REPORT ON PROTECTIONS FOR VULNERABLE 
POPULATIONS IMPACTED BY IMMIGRATION 
ENFORCEMENT ACTIVITIES. 
(a) REQUIREMENT FOR REPORTS.—Not later than 1 
year after the date of the enactment of this Act, and annu-
ally thereafter, the Secretary of Homeland Security shall 
submit a report to Congress that describes the impact of 
immigration-related enforcement activities and fugitive op-
erations on United States citizens, lawful permanent resi-
dents, individuals otherwise lawfully present in the United 
States, and, where possible, undocumented aliens present 
in the United States. 
(b) CONTENT.—The report submitted under sub-
section (a) shall include an assessment of— 
(1) the number of individuals apprehended dur-
ing immigration-related enforcement activities who 
are children, United States citizens, lawful perma-
nent residents, lawfully present non-citizens; 
(2) 
immigration-related 
apprehensions 
at 
homes, schools, school bus stops, day care centers, 
colleges, places of worship, hospitals, health care 
clinics, funeral homes, cemeteries, victim services 
agencies, social services agencies, head start centers, 
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164 
recreation centers, legal service providers, courts and 
community centers; 
(3) apprehensions, detentions, and removals of 
sole caregivers, primary breadwinners, pregnant and 
nursing mothers, and other vulnerable populations 
during an immigration-related enforcement activity; 
(4) the extent to which the Department of 
Homeland Security cooperates and coordinates with 
State and local law enforcement during immigration- 
related enforcement activities; 
(5) the number of immigration-related enforce-
ment apprehensions resulting from cooperation with 
State and local law enforcement; 
(6) whether apprehended individuals are pro-
vided access to a telephone; 
(7) how quickly apprehended individuals are 
provided access to a telephone; 
(8) the manner through which family members 
of the target population of the immigration-related 
enforcement activity are notified of their family 
member’s detention; 
(9) the number of parents, guardians, or care-
givers of children removed from the United States; 
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167 
(22) secure alternatives programs, including the 
types of programs used, number of individuals 
placed in theses programs, reasons for not placing 
immigrants that qualify as a member of a vulnerable 
population as defined in section 160(a) in these pro-
grams, percentage of cases in which adjustment of 
immigration status is granted, percentage of cases in 
which removal is undertaken, and frequency of ab-
sconding; and 
(23) the number of individuals apprehended 
after officials were notified by a health or mental 
health professional. 
SEC. 162. FAMILY DETENTION AND UNITY PROTECTIONS. 
(a) DEFINITION OF FAMILIES WITH CHILDREN.—- 
Family with Children is defined as any parent or legal 
guardian who is apprehended with one or more of their 
children. 
(b) PLACEMENT IN REMOVAL PROCEEDINGS.—Any 
family with children sought to be removed by the Depart-
ment of Homeland Security shall be placed in removal pro-
ceedings under section 240 of the Immigration and Na-
tionality Act (8 U.S.C. 1229a). 
(c) CUSTODY OF FAMILIES WITH CHILDREN.—The 
following requirements shall apply with respect to families 
with children: 
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168 
(1) Families with children shall not be sepa-
rated or taken into custody except when justified by 
exceptional circumstances, or when required by law. 
(2) In exceptional circumstances where release 
or a secure alternatives program is not an option, 
the Secretary shall ensure that— 
(A) special non-penal, residential, home- 
like facilities that enable families to live as a 
family unit are designed to house families with 
children, taking into account the particular 
needs and vulnerabilities of the children; 
(B) procedures and conditions of custody 
are appropriate for families with children; 
(C) entities with demonstrated experience 
and expertise in child welfare shall staff and be 
responsible for the management of facilities 
housing families with children; 
(D) no restrictions on freedom of move-
ment; visitations; telephone, internet, library, 
and law library access; possession of personal 
property, including personal clothing; age ap-
propriate education; or religious practice shall 
apply other than to prevent flight and ensure 
the safety of residents; 
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169 
(E) individualized reviews by an immigra-
tion judge of each family’s well being, custody 
status and the need for continued detention are 
conducted every 30 days for any family held in 
such a facility for more than three weeks, and 
all families shall be notified in writing of the 
decision and of the individualized reasons for 
the decision; and 
(F) parents retain fundamental parental 
rights and responsibilities, including the dis-
cipline of children, in keeping with applicable 
State laws. 
(d) DISCRETIONARY WAIVER AUTHORITY FOR FAMI-
LIES WITH CHILDREN.—Section 235(b)(1)(B)(iii) of the 
Immigration 
and 
Nationality 
Act 
(8 
U.S.C. 
1225(b)(1)(B)(iii)) is amended— 
(1) in subclause (IV), by striking ‘‘Any alien’’ 
and inserting ‘‘Except as provided in subclause (V), 
any alien’’; and 
(2) by adding at the end the following: 
‘‘(V) 
DISCRETIONARY
WAIVER 
AUTHORITY
FOR
FAMILIES
WITH 
CHILDREN.—The Secretary of Home-
land Security may decide for humani-
tarian reasons or significant public 
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170 
benefit not to detain families with 
children who are otherwise subject to 
mandatory detention under subclause 
(IV).’’. 
SEC. 163. APPREHENSION PROCEDURES FOR FAMILIES 
AND PARENTS. 
The Department of Homeland Security and entities 
under agreement with the Department of Homeland Secu-
rity shall— 
(1) offer confidential psychosocial and mental 
health services to children and family members of 
such individuals at the time of the apprehension; 
(2) provide, and advertise in the mainstream 
and foreign language media, as well as make avail-
able to the public via the website of the Department 
of Homeland Security, a toll-free number through 
which family members of persons apprehended as a 
result of an immigration enforcement-related activity 
may report information relevant to the release of an 
apprehended family member as a member of a vul-
nerable population, which will be conveyed to the ap-
propriate Department of Homeland Security official 
and applicable SSA, and through which State child 
welfare service providers, family members, and legal 
counsel representing those who are apprehended may 
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171 
obtain information about the apprehended family 
members, including their location, in English and 
the majority language of those who are apprehended; 
(3) if there is reason to believe that an indi-
vidual who is apprehended is a parent, legal guard-
ian, or primary caregiver relative of a dependent 
child in the United States, provide this parent, legal 
guardian, or primary caregiver relative with— 
(A) confidential and toll-free telephone 
calls to arrange for care of dependent children 
within 2 hours of screening; 
(B) information regarding and contact in-
formation for legal service providers, organiza-
tions, and attorneys that can offer free legal ad-
vice regarding child welfare and custody deter-
minations; and 
(C) information regarding and contact in-
formation for multiple State and local child wel-
fare providers; 
(4) ensure that personnel of the Department of 
Homeland Security and of entities operating under 
agreement with the Department do not— 
(A) interrogate or screen individuals in the 
immediate presence of children; 
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249 
vided through the System during such 
year are incorrect. 
‘‘(II) RATES OF INCORRECT TEN-
TATIVE
NONCONFIRMATION
NO-
TICES.— 
‘‘(aa) That, during a year, 
not more than 1 percent of na-
tive-born United States citizens 
whose identity and work eligi-
bility are submitted to the system 
is the subject of a tentative non-
confirmation. 
‘‘(bb) That, during a year, 
not more than 3 percent of for-
eign-born, work authorized indi-
viduals whose identity and work 
eligibility are submitted to the 
System are the subject of a ten-
tative nonconfirmation. 
‘‘(iii) 
CONTAINMENT
OF
ERROR 
RATES.—That, during a year, the rate of 
incorrect final and incorrect tentative non-
confirmations shall not have increased by 
more than 3 percent over the previous 
year. 
VerDate Mar 15 2010 
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