II 116th CONGRESS 1st Session S. 2691 IN THE SENATE OF THE UNITED STATES October 24, 2019 Mr. Udall (for himself, Ms. Harris , Mr. Wyden , Mr. Blumenthal , Mr. Heinrich , Mr. Merkley , Mr. Booker , and Ms. Warren ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To establish the position of Ombudsman for Border and Immigration Enforcement Related Concerns in the Department of Homeland Security.

1. Establishment of the Office of the Ombudsman for Border and Immigration Enforcement Related Concerns (a) In general Title VII of the Homeland Security Act of 2002 ( 6 U.S.C. 341 et seq.) is amended by adding at the end the following: 711. Ombudsman for Border and Immigration Enforcement Related Concerns (a) In general There is established within the Department the position of Ombudsman for Border and Immigration Enforcement Related Concerns (referred to in this section as the Ombudsman ), who shall— (1) be independent of Department agencies and officers (except for the Secretary); (2) report directly to the Secretary; and (3) have a background in immigration law, civil rights, and law enforcement. (b) Functions It shall be the function of the Ombudsman— (1) in coordination with the Inspector General of the Department, to establish an independent, neutral, accessible, confidential, and standardized process— (A) to assist individuals, including aliens (as defined in section 101 of the Immigration and Nationality Act ( 8 U.S.C. 1101 )) in resolving complaints with respect to U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, a subcontractor, or a cooperating entity; and (B) that includes a publicly accessible website through which a complainant can check on the status of such a complaint; (2) to identify and thereafter review, examine, and make recommendations to the Secretary to address chronic issues identified by the Ombudsman in carrying out the function described in paragraph (1); (3) to establish a Border Oversight Panel in accordance with subsection (f); and (4) to review compliance with policies and standards of the Department for the care for custody of aliens by U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection, including any violations of applicable policy or standards of care involving force-feeding. (c) Confidentiality (1) In general The existence of a complaint, including the identity of any Department employee implicated in a complaint, shall be kept confidential by the Ombudsman. In the absence of the written consent of an individual who submits a complaint, the Ombudsman shall keep confidential the identity of and any identifying information relating to such individual. (2) FOIA disclosures The confidentiality requirement under paragraph (1) may not be considered as a factor in determining whether information under this subsection may be disclosed under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act ). (d) Annual reporting Not later than June 30 of the first calendar year beginning after the date of the enactment of this section, and annually thereafter, the Ombudsman shall submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate , the Committee on the Judiciary of the Senate , the Committee on Homeland Security of the House of Representatives , and the Committee on the Judiciary of the House of Representatives that includes, for the previous calendar year— (1) the number and types of complaints received under this section and, for each complaint— (A) the component or subcomponent, subcontractor, or cooperating entity identified; (B) the demographics of the complainant; and (C) a description of the resolution of the complaint or the status of the resolution process; (2) any complaint pattern that could be prevented or reduced by policy training or practice changes; (3) a description of any pattern of violations of any applicable policy or standards; (4) a description of each complaint received under this section with respect to which U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, a subcontractor, or a cooperating entity, as applicable, has taken action to resolve, and the time between receipt and resolution of each such complaint; (5) a description of complaints received under this section for which action has not been taken during the 1-year period beginning on the date on which the complaint was received, and the period during which each complaint has remained open; (6) recommendations the Ombudsman has made under subsection (b)(2); and (7) other information, as the Ombudsman determines appropriate. (e) Appointment of Border Communities Liaison (1) In general The Ombudsman, in conjunction with the Office for Civil Rights and Civil Liberties of the Department, shall appoint a Border Community Liaison (referred to in this subsection as a Liaison ) in each U.S. Border Patrol sector on the northern and southern borders of the United States. Each Liaison shall report directly to the Ombudsman. (2) Purposes Each Liaison shall— (A) foster cooperation between U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and border communities; (B) consult with border communities on the development of policies, directives, and programs of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement; (C) receive feedback from border communities on the performance of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement; and (D) submit an annual report to the Ombudsman that details the findings of the Liaison, feedback received from border communities, and recommendations to increase cooperation between U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and border communities. (f) Border Oversight Panel (1) Establishment The Ombudsman shall establish a Border Oversight Panel (referred to in this subsection as the Panel ). (2) Composition (A) In general The Panel shall be composed of 30 members selected by the Ombudsman. (B) Chairperson The Ombudsman shall serve as the chair of the Panel. (C) Expertise Members of the Panel shall have expertise in immigration, local crime indices, civil and human rights, community relations, cross-border trade and commerce, quality of life indicators, or other experience the Ombudsman determines is appropriate, and shall include individuals who reside in or near border counties. (3) Duties The Panel shall evaluate and make recommendations regarding the border enforcement policies, strategies, and programs of the Department operating along the northern and southern borders of the United States— (A) to take into consideration the impact of such policies, strategies, and programs on border communities, including protecting due process, civil and human rights of border residents and visitors, and private property rights of land owners; (B) to uphold domestic and international legal obligations; (C) to reduce the number of migrant deaths; and (D) to improve the safety of agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement. (g) Staffing The Secretary shall take appropriate action to ensure that the Ombudsman’s office has sufficient staff and resources to effectively and efficiently carry out its duties under this section. (h) Training (1) In general The Ombudsman shall conduct an annual evaluation of all training given to agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement. (2) Contents Each evaluation under paragraph (1) shall include whether the training referred to in such paragraph adequately addresses— (A) best practices in community policing, cultural awareness, and carrying out enforcement actions near sensitive locations, such as places of worship or religious ceremony, school or education-related places or events, courthouses or other civic buildings providing services accessible to the public, hospitals, medical treatment or health care facilities, public demonstrations, and attorney’s offices (including a public defender or legal aid offices); (B) policies for operating in locations where there are limitations on cooperation by local law enforcement; (C) interaction with vulnerable populations, including instruction on screening, identifying, and responding to vulnerable populations, such as children, victims of human trafficking, and the acutely ill; (D) standards of professional and ethical conduct, including— (i) lawful use of force, de-escalation tactics, and alternatives to the use of force; (ii) complying with chain of command and lawful orders; (iii) conduct and ethical behavior toward the public in a civil and professional manner; (iv) civil rights and legal protections for nationals of the United States and aliens; (v) non-biased questioning; (vi) sensitivity towards lesbian, gay, bisexual, transgender, and queer individuals; (vii) permissible and impermissible social media activity; and (viii) sexual and other harassment and assault, including an assessment of whether adequate policies exist to resolve complaints; (E) protecting the civil, constitutional, human, and privacy rights of individuals, with special emphasis on the scope of enforcement authority, including chain of evidence practices and document seizure, and use of force policies available to agents and officers; (F) maintaining and updated understanding of Federal legal rulings, court decisions, and Department policies and procedures; and (G) the scope of agents’ and officers’ authority to conduct immigration enforcement activities, including interviews, interrogations, stops, searches, arrests, and detentions, in addition to identifying and detecting fraudulent documents. (3) Recommendations Not later than 90 days after conducting each evaluation under paragraph (1), the Ombudsman shall develop, and submit to the Secretary, recommendations regarding any additional training needed by agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement. (4) Feedback Not later than 180 days after receiving a recommendation from the Ombudsman, the Secretary shall provide— (A) a public, written response to the recommendation; and (B) (i) if the Secretary concurs with the recommendation, an action plan to implement the recommendation; or (ii) if the Secretary rejects the recommendation, a justification for such rejection. (i) Electronic tracking (1) In general The Ombudsman, in coordination with the Commissioner of U.S. Customs and Border Protection, the Director of U.S. Immigration and Customs Enforcement, and the Office of Refugee Resettlement of the Department of Health and Human Services, shall develop recommendations for the establishment of an electronic tracking number system on a single interface, which shall be used to track the location of a child who has been separated from a parent, legal guardian, or other relative of such child, and which shall be accessible to agents and officers of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and the Office of Refugee Resettlement. (2) Tracking number The recommendations developed under this subsection shall consider how a tracking number can be assigned to a child who has been separated from a parent, legal guardian, or other relative of such child that— (A) is transferable; (B) may be shared easily on the electronic tracking system described in this subsection by agents and officers of— (i) U.S. Customs and Border Protection; (ii) U.S. Immigration and Customs Enforcement; and (iii) the Office of Refugee Resettlement of the Department of Health and Human Services; and (C) is interoperable with the electronic location records of a parent, legal guardian, or other relative of such child. (j) Body-Worn cameras (1) Requirement Not later than 120 days after the date of the enactment of this section, the Ombudsman, in coordination with the Commissioner of U.S. Customs and Border Protection, the Director of U.S. Immigration and Customs Enforcement, and labor organizations representing agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, shall submit a plan to the Committee on Homeland Security and Governmental Affairs of the Senate , the Committee on the Judiciary of the Senate , the Committee on Homeland Security of the House of Representatives , and the Committee on the Judiciary of the House of Representatives for requiring, not later than 1 year after such date of enactment, the use of body-worn cameras by U.S. Border Patrol agents and U.S. Immigration and Customs Enforcement officers whenever such agents and officers are engaged in border security or immigration enforcement activities. (2) Elements The plan required under paragraph (1) shall include— (A) benchmarks for implementation of the use of body-worn cameras within U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement; (B) policies, procedures, and training modules for the use of body-worn cameras by agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, including training modules relating to the appropriate use of such cameras and adverse action for non-compliance; and (C) mechanisms to ensure compliance with body-worn camera policies and procedures. (3) Considerations The plan required under paragraph (1) shall be informed by— (A) existing State and local policies requiring the use of body-worn cameras; and (B) principles regarding body-worn cameras published by major civil and human rights organizations. . (b) Clerical amendment The table of contents in section 1(b) of the Homeland Security Act of 2002 ( Public Law 107–296 ) is amended by inserting after the item relating to section 710 the following: Sec. 711. Ombudsman for Border and Immigration Enforcement Related Concerns. .