I 114th CONGRESS 1st Session H. R. 3576 IN THE HOUSE OF REPRESENTATIVES September 18, 2015 Mr. O’Rourke (for himself and Mr. Pearce ) introduced the following bill; which was referred to the Committee on Homeland Security , and in addition to the Committees on the Judiciary and Ways and Means , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To increase transparency, accountability, and community engagement within U.S. Customs and Border Protection, provide independent oversight of border security activities, improve training for U.S. Customs and Border Protection agents and officers, and for other purposes.

1. Short title This Act may be cited as the Border Enforcement Accountability, Oversight, and Community Engagement Act of 2015 . 2. Stakeholder and community engagement (a) Department of Homeland Security Border Oversight Commission (1) Establishment There is established an independent commission, which shall be known as the Department of Homeland Security Border Oversight Commission (in this Act referred to as the Commission ). (2) Organization (A) Leadership The Commission shall be led by a Chair and Vice Chair. (B) Subcommittees (i) In general The Chair shall establish within the Commission two subcommittees that will be comprised of representatives from each State on the northern border and each State on the southern border. (ii) Northern border subcommittee The northern border subcommittee shall consist of ten members from the northern border region, including at least one uniformed, non-supervisory agent or officer of U.S. Customs and Border Protection, in accordance with subparagraph (C). (iii) Southern border subcommittee The southern border subcommittee shall consist of ten members from the southern border region, including at least one uniformed, non-supervisory agent or officer of U.S. Customs and Border Protection, in accordance with subparagraph (C). (iv) Election Members of the northern and southern border subcommittees shall elect the Chair and Vice Chair of the Commission from among its members. The Chair and Vice Chair may not be from the same subcommittee. (C) Appointment process Members of the Commission shall be appointed as follows: (i) The President shall appoint four representatives from the northern border region and four representatives from the southern border region. (ii) The House Speaker shall appoint three representatives from the northern border region and three representatives from the southern border region. (iii) The Senate Majority Leader shall appoint three representatives from the northern border region and three representatives from the southern border region. (D) Appointment deadline Members of the Commission shall be appointed not later than 180 days after the date of the enactment of this Act. (E) Terms of office The Chair and Vice Chair of the Commission shall serve for terms of four years. Members of the northern border and southern border subcommittees shall serve for terms of four years. (3) Qualifications Membership on the Commission and its subcommittees shall to the greatest extent possible reside within 100 miles of the northern or southern border and shall include security experts, training experts, civil rights and civil liberties experts, representatives of faith based organizations, officials from local law enforcement on the northern and southern borders, officials from local government on the northern and southern borders, and business and civic organizations along the northern and southern borders. (4) Meetings (A) Commission The Commission shall meet at least semiannually, and may convene additional meetings as necessary. (B) Subcommittees The northern border and southern border subcommittees shall meet at least quarterly, and may convene additional meetings as necessary. (5) Duties The Commission, and the northern border and southern border subcommittees, shall— (A) develop recommendations for improvements regarding border enforcement policies, strategies, and programs that take into consideration their impact on border communities; (B) evaluate policies, strategies, and programs of Federal agencies operating along the northern and southern borders to— (i) protect— (I) due process; (II) the civil and human rights of border residents and visitors; and (III) private property rights of land owners; (ii) reduce the number of migrant deaths; and (iii) improve the safety of agents and officers of U.S. Customs and Border Protection; (C) develop recommendations for improvements regarding the safety of agents and officers of U.S. Customs and Border Protection when such agents and officers are in the field; and (D) evaluate training, including establishing training courses related to management and leadership skills for supervisors in each Border Patrol sector and at each port of entry on the northern and southern borders, the extent to which supervisory and management personnel practices at U.S. Customs and Border Protection encourage and facilitate workforce development for agents and officers, promote agent and officer field safety, and post-FLETC training and continuing education of border enforcement personnel in accordance with section 4. (6) Additional responsibilities (A) In general In carrying out the duties specified in paragraph (5), the Commission shall take into consideration any recommendations and evaluations agreed upon by the northern border and southern border subcommittees. (B) Subcommittee reports The northern border and southern border subcommittees shall annually submit to the Chair and Vice Chair of the Commission a publically available report containing the recommendations and evaluations of the subcommittees pursuant to paragraph (5). (7) Prohibition on compensation Members of the Commission and the northern border and southern border subcommittees may not receive pay, allowances, or benefits from the Government by reason of their service on the Commission or the subcommittees. (b) Powers of the Commission (1) In general (A) Hearings and evidence The Commission or, on the authority of the Commission, any subcommittee or member thereof, may, for the purpose of carrying out this Act— (i) hold such hearings, and sit and act at such times and places, take such testimony, receive such evidence, and administer such oaths, and (ii) subject to subparagraph (B), require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents, as the Commission or such designated subcommittee or designated member determines necessary to carry out its duties under subsection (a)(5). (B) Subpoenas (i) Issuance A subpoena may be issued under this subsection only by— (I) the Chair and Vice Chair of the Commission; or (II) a recorded vote of two-thirds of the members of the northern border or southern border subcommittees, as the case may be. (ii) Service Subpoenas issued under this subsection may be served by— (I) any person designated by the Chair or the Vice Chair of the Commission; or (II) any member of the Commission designated by a majority of the Commission. (iii) Enforcement (I) In general In the case of contumacy or failure to obey a subpoena issued under this subsection, the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found, or where the subpoena is returnable, may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as contempt of that court. (II) Additional measures In the case of any failure of an individual to comply with any subpoena issued under this section, the Commission, may, by a majority vote, certify a statement of fact constituting such failure to the appropriate United States attorney. (iv) Limitation A subpoena may be issued only if the Commission certifies to the Secretary of Homeland Security that such issuance is necessary to carry out its duties under subsection (a)(5), and that all reasonable efforts will be taken to limit the disclosure of personally identifiable information to the greatest extent possible. (c) Savings provision Nothing in this Act may be construed as affecting in any manner the investigative and disciplinary procedures of U.S. Customs and Border Protection or the Department of Homeland Security with respect to agents and officers of U.S. Customs and Border Protection. (d) Reports (1) Annual reports The Commission shall annually submit to the Secretary of Homeland Security a publically available report containing information on the activities, findings, and recommendations of the Commission, including the northern border and southern border subcommittees, for the preceding year. (2) Congressional notification The Secretary of Homeland Security shall brief the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate on each report required under paragraph (1). 3. Establishment of the Office of the Ombudsman for Border and Immigration Related Concerns (a) In general Section 452 of the Homeland Security Act of 2002 ( 6 U.S.C. 272 ) is amended to read as follows: 452. Ombudsman for Border and Immigration Related Concerns (a) In general There shall be within the Department an Ombudsman for Border and Immigration Related Concerns (in this section referred to as the Ombudsman ). The individual appointed as Ombudsman shall have a background in immigration or civil liberties law or law enforcement. The Ombudsman shall report directly to the Secretary. (b) Organizational independence The Secretary shall take appropriate action to ensure the independence of the Ombudsman’s office from other officers or employees of the Department engaged in border security or immigration activities. (c) Staffing The Secretary shall take appropriate action to ensure that the Ombudsman’s office is sufficiently staffed and resourced to carry out its duties effectively and efficiently. (d) Functions The functions of the Ombudsman shall be as follows: (1) To establish an independent, neutral, and appropriately confidential process to receive, investigate, resolve, and provide redress, including immigration relief, monetary damages, or any other action determined appropriate, for complaints, grievances, or requests for assistance from individuals, associations, and employers regarding the border security and immigration activities of the Department. (2) To conduct inspections of the facilities, including contract facilities, of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services. (3) To assist individuals and families who have been victims of crimes committed by aliens or of violence near the United States border, and individuals and families impacted by situations in which the Department has exercised force. (4) To identify areas in which individuals, associations, and employers have identified concerns with respect to interacting with U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, or U.S. Citizenship and Immigration Services. (5) To propose changes in the administrative practices of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services to mitigate problems identified under this section. (6) To review, examine, and make recommendations regarding the border security and immigration and enforcement activities of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services. (7) To establish a uniform and standardized complaint process regarding complaints against all U.S. Customs and Border Protection officers, Border Patrol agents, and CBP Agricultural Specialists for violations of standards of professional conduct. Such complaint process shall have the following components: (A) Require that all complaints receive an independent review and investigation completed not later than one year from the date of receipt of each such complaint. (B) Require that complainants receive written confirmation of receipt of their complaints not later than 90 days from the date of receipt of each such complaint, and a written summary regarding the outcome of such complaints not later than one year after such date of receipt, including findings of fact, recommended action, and available redress. (C) Feature a centralized multilingual online complaint form that includes street address, toll-free telephone number, and electronic mailbox address to permit an individual to file an immigration or border-related complaint and submit supporting evidence through the portal of choice of any such individual. Information relating to such form shall be visible at ports of entry and at Border Patrol interior checkpoints. (D) Include procedures for referring complaints to the Office for Civil Rights and Civil Liberties, Office of the Inspector General, or other appropriate agency of the Department of Homeland Security. (E) Establish a publicly accessible national, standardized database capable of tracking and analyzing complaints and their resolution. (F) Provide publicly accessible records, with copies of complaints, and their resolutions permanently preserved and available for inspection, while maintaining the confidentiality of complainants’ identities. (8) To establish an online detainee locator system for individuals held in U.S. Customs and Border Protection custody. (e) Complainants The following shall apply to all complainants: (1) Any interested party, including a legal representative, may file a complaint through the complaint procedure pursuant to subsection (d)(7). (2) Complainants and other individuals identified in a complaint shall be protected from retaliatory action by law enforcement or by any officer of the United States based on the content of such complaint, and no information contained in a complaint that is germane to such complaint may be used as evidence in any removal or criminal proceedings against the complainant or any individual identified in such complaint. (3) Neither the filing of a complaint nor the contents of a complaint shall in any way confer immunity or otherwise impact any removal or criminal proceedings against a complainant or an individual identified in such complaint. (4) No personally identifiable information related to an individual involved in a complaint which would result in identification of such individual may be published. (5) Complainants shall receive full assistance from the Department in filing complaints, including language assistance, accommodations for disabilities, and accurate and complete responses to their questions. (f) Other responsibilities In addition to the functions specified in subsection (d), the Ombudsman shall— (1) monitor the coverage and geographic allocation of local offices of the Ombudsman, including appointing local ombudsmen for border and immigration related concerns; (2) evaluate and take personnel actions (including dismissal) with respect to any employee of the Ombudsman; (3) recommend disciplinary action, including contract termination, suspension, and debarment, or termination, suspension, and sanctions, to the appropriate departmental entity regarding any contractor proven to have violated departmental policies or procedures while executing any border security or immigration activity; (4) make available a paper-based complaint form that includes the same information as the online-based complaint form and that is available upon request at all ports of entry along the northern and southern borders and at Border Patrol stations in each Border Patrol sector; (5) refer to the Inspector General of the Department any complaints of the violation of departmental policies or procedures by any Department employee relating to border security or immigration activity; (6) provide a complainant with a summary of the outcome of any action taken in response to a complaint, grievance, or request for assistance from such complainant, including any findings of fact, recommended action, and available redress; and (7) be subject to subparagraph (B) of section 7114(a)(2) of title 5, United States Code, with respect to all Ombudsman investigations and interviews. (g) Request for investigations The Ombudsman is authorized to request the Inspector General of the Department to conduct inspections, investigations, and audits related to subsections (d), (e), and (f). (h) Coordination with Department components (1) In general The Director of U.S. Citizenship and Immigration Services, the Assistant Secretary of U.S. Immigration and Customs Enforcement, and the Commissioner of U.S. Customs and Border Protection shall each establish procedures to provide formal responses to recommendations submitted to such officials by the Ombudsman within 60 days of receiving such recommendations. (2) Access to information The Secretary shall establish procedures to provide the Ombudsman access to all departmental records necessary to execute the responsibilities of the Ombudsman under subsection (d) or (f) not later than 60 days after a request from the Ombudsman for such information. (3) Joint Intake Center consolidation The Secretary shall establish procedures to consolidate all border and immigration related complaints submitted to the Joint Intake Center of the Department to the Ombudsman. Such procedures shall include the following: (A) Authorization for the Ombudsman to refer cases to the Inspector General or the Office of Internal Affairs of the Department or affiliated agency for investigation and remediation of specific cases. (B) Authorization for the Ombudsman to refer cases to U.S. Customs and Border Protection or U.S. Immigration and Customs Enforcement, as the case may be, for investigation and remediation by chain of command within each respective agency. (i) Public outreach The Secretary shall— (1) take all appropriate action to advise the public regarding the existence, duties, responsibilities, and grievance processes of the Ombudsman’s office; and (2) shall promulgate regulations to ensure— (A) the public’s ability to file grievances with the Ombudsman’s office electronically; and (B) that absent written permission of all affected parties, all documents submitted to the Ombudsman’s office are used solely by the Ombudsman’s office to advance the purposes described in this section. (j) Annual reporting Not later than June 30 of each year beginning in the year after the date of the enactment of this subsection, the Ombudsman shall submit to the appropriate congressional committees a report that includes the following: (1) The number and type of complaints received in each Border Patrol sector, the demographics of complainants, the results of investigations, including violations of standards and any disciplinary actions taken, and an identification of any complaint patterns that could be prevented or reduced by policy training or practice changes. (2) An inventory of complaints referred to in paragraph (1) for which action has been taken and the time between receipt and resolution of each such complaint. (3) An inventory of complaints referred to in paragraph (1) for which action has not been taken after one year, the period during which each complaint has been open, and the reason for failure to resolve each such complaint. (4) Recommendations the Ombudsman has made to improve the services and responsiveness of U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection, and any responses received from each such component or the Department regarding such recommendations. (5) Information relating to consolidation of complaints submitted to the Joint Intake Center of the Department, in accordance with paragraph (3) of subsection (h). (6) Other information as the Ombudsman determines advisable. (k) Establishment of Border Communities Liaison Office (1) In general The Ombudsman, in conjunction with the Office for Civil Rights and Civil Liberties of the Department, shall establish a Border Community Liaison Office (in this subsection referred to as the Liaison Office ) in each Border Patrol sector on the northern and southern borders. (2) Purposes Each Liaison Office under this subsection shall— (A) foster cooperation between the Border Patrol, the Office of Field Operations of the Department, and border communities; (B) consult with border communities on the development of policies, directives, and programs of the Border Patrol and the Office of Field Operations; and (C) receive feedback from border communities on the performance of the Border Patrol and the Office of Field Operations. (3) Membership Each Liaison Office shall be comprised of representation from the community and U.S. Customs and Border Protection, including at least the following: (A) One member of the community in which each Border Patrol sector is located who has expertise in migration, local public safety, civil and human rights, the local community, or community relations. (B) One non-uniformed Border Patrol agent with significant experience working for the Border Patrol. (C) One non-uniformed U.S. Customs and Border Protection officer with significant experience working for U.S. Customs and Border Protection. (l) Report on the impact of border enforcement technologies and operations on border communities Not later than 180 days after the date of the enactment of this section, the Secretary shall submit to the appropriate congressional committees a report that assesses current efforts and technologies used at United States borders, and the impact on border communities of such efforts and technologies on civil rights, private property rights, privacy rights, and civil liberties. (m) GAO report on the extent of CBP activities, operations, and claimed authority Not later than one year after the date of the enactment of this section, the Comptroller General of the United States shall submit to the appropriate congressional committees a report that assesses the following issues: (1) How far into the United States interior the current activities, operations (including checkpoints), and claimed authority of U.S. Customs and Border Protection extend. (2) The extent to which the area of activities, operations, and claimed authority referred to in paragraph (1) is necessary. (3) The effectiveness of U.S. Customs and Border Protection’s interior enforcement and its impact on civil, constitutional, and private property rights. . (b) Clerical amendment The table of contents of the Homeland Security Act of 2002 is amended by amending the item relating to section 452 to read as follows: Sec. 452. Ombudsman for Border and Immigration Related Concerns. . 4. Training and continuing education (a) Mandatory Training and Continuing Education To Promote CBP Agent and Officer Safety and Professionalism The Secretary of Homeland Security shall ensure that every agent and officer of U.S. Customs and Border Protection receives a minimum of 19 weeks of training that are directly related to the mission of the Border Patrol and the Office of Field Operations of the Department of Homeland Security before the initial assignment of such agents and officers, and eight hours of continuing education annually thereafter. (b) FLETC The Secretary of Homeland Security, acting through the Commissioner of U.S. Customs and Border Protection, shall work in consultation with the Director of the Federal Law Enforcement Training Centers to establish guidelines and curriculum for the training of agents and officers of U.S. Customs and Border Protection under subsection (a). (c) Continuing education The Secretary of Homeland Security shall annually require all agents and officers of U.S. Customs and Border Protection who are required to undergo training under subsection (a) to participate in continuing education to maintain and update understanding of Federal legal rulings, court decisions, and Department of Homeland Security policies, procedures, and guidelines related to relevant subject matters. (d) Report Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report identifying the guidelines and curriculum established pursuant to subsection (a). (e) Assessment Not later than six years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report that assesses the training and education, including continuing education, required under this section. 5. Management of ports of entry (a) In general Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report that contains an assessment of the current standards and guidelines for managing ports of entry under the control of the Department of Homeland Security. Such assessment shall include information relating to the following: (1) Staffing levels and the need for additional staffing. (2) Rules governing the actions of Office of Field Operations agents. (3) Average delays for transit through air, land, and sea ports of entry. (4) An assessment of existing efforts and technologies used for border security, and the effect of the use of such efforts and technologies on facilitating trade at ports of entry and their impact on civil rights, private property rights, privacy rights, and civil liberties. (5) The economic impact of the policies and practices of CBP Agricultural Specialists and Office of Field Operations work. (6) Physical infrastructure and technological needs at ports of entry. (b) Updates Based upon the information and assessment contained in the report required under subsection (a), the Secretary of Homeland Security shall establish updated guidelines and standards for managing ports of entry under the control of the Department of Homeland Security to address any identified needs or shortcomings at such ports of entry, including, if applicable, the following: (1) Increasing levels of staffing of CBP Agricultural Specialists at ports of entry at which delays hinder or negatively impact the local or national economies. (2) Increasing the use of or updating technology at ports of entry at which there are average delays of over two hours based on U.S. Customs and Border Protection data collected during the previous fiscal year. (3) Publishing rules on the handling of documents at ports of entry. (4) Establishing standards of conduct and demeanor when interacting with vulnerable populations, such as children and victims of human trafficking, and individuals with border crossing cards. (5) Establishing training courses relating to management and leadership skills for supervisors and managers at ports of entry. 6. Reporting requirements (a) CBP report on migrant deaths Not later than 180 days after the date of the enactment of this Act, the Commissioner of U.S. Customs and Border Protection shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report relating to deaths occurring along the United States-Mexico border, including information on the following: (1) The number of documented migrant deaths. (2) A geographical breakdown of where such migrant deaths occur. (3) To the extent possible, the cause of death for each migrant. (4) The extent to which border technology, physical barriers, and enforcement programs have contributed to such migrant deaths. (5) A detailed description of U.S. Customs and Border Protection programs or plans to reduce the number of migrant deaths along the border, including an assessment on the effectiveness of water supply sites and rescue beacons. (b) GAO report on migrant deaths Not later than 90 days after the submission of the report required under subsection (a), the Comptroller General of the United States shall review such report to determine the following: (1) The validity of U.S. Customs and Border Protection’s statistical analysis of migrant deaths. (2) The extent to which U.S. Customs and Border Protection has adopted simple and low-cost measures, such as water supply sites and rescue beacons, to reduce the frequency of migrant deaths. (3) The extent to which U.S. Customs and Border Protection measures the effectiveness of its programs to address the frequency of migrant deaths. (4) The extent of data and information sharing and cooperation between U.S. Customs and Border Protection, local and State law enforcement, foreign diplomatic and consular posts, and nongovernmental organizations to accurately identify deceased individuals and notify family members and compare information to missing persons registries. (c) GAO report on use of force (1) In general Not later than one year after the date of the enactment of this Act, the Comptroller General of the United States shall examine the extent to which U.S. Customs and Border Protection has clarified use of force policies, including the following (and any recommendations related to the following): (A) The extent to which U.S. Customs and Border Protection has implemented new training tactics to improve use of force policies, including how the use of force policy conforms to Department of Homeland Security and Federal law enforcement best practices. (B) The extent to which U.S. Customs and Border Protection has identified additional or alternative weapons and equipment, including protective gear and body-worn cameras, to improve agents’ and officers’ abilities to lawfully and properly engage and interact with individuals. (C) Efforts to review and enhance current training and tactics related to use of force, and to implement reforms to ensure agents and officers are better equipped to assess and respond to threats. (D) The extent to which U.S. Customs and Border Protection has established a stakeholder engagement framework to better inform and enhance U.S. Customs and Border Protection’s use of force training. (E) The extent to which U.S. Customs and Border Protection has established metrics to track the effectiveness of use of force training and to ensure the reporting of all uses of force for review to determine whether the force used was justified and whether it could have been avoided through different tactics or training, better supervision, different tools, adherence to policy, or changes in policy. (F) How U.S. Customs and Border Protection could implement best law enforcement practices to improve policies for transparent communication with family members of individuals injured or killed by U.S. Customs and Border Protection agents’ and officers’ uses of force, including updates on any pending investigations, and policies for timely notification of such injuries and deaths following such uses of force to the Commissioner of U.S. Customs and Border Protection, the Joint Intake Center of the Department of Homeland Security, the Office of Inspector General of the Department, the Office for Civil Rights and Civil Liberties of the Department, and the Office of Public Affairs of the Department, Congress, and the applicable consulates, if appropriate. (G) How recommendations and requests made by agents and officers of U.S. Customs and Border Protection have been received, reviewed, and if possible implemented into U.S. Customs and Border Protection and Department of Homeland Security use of force policies and best practices. (H) The extent to which U.S. Customs and Border Protection electronically tracks personal searches and seizures of personal items at the border, and an assessment of how such information is used to inform U.S. Customs and Border Protection policies and procedures. (2) Implementation of GAO findings The Secretary of Homeland Security shall direct the Commissioner of U.S. Customs and Border Protection to implement any recommendations contained in the report required under paragraph (1). If the Secretary does not so implement such recommendations, the Secretary shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a written notification explaining why such recommendations are not being so implemented.