Homeland Security Improvement Act

IIB 116TH CONGRESS 1ST SESSION H. R. 2203 IN THE SENATE OF THE UNITED STATES SEPTEMBER 26, 2019 Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs AN ACT To increase transparency, accountability, and community en- gagement within the Department of Homeland Security, provide independent oversight of border security activi- ties, improve training for agents and officers of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, and for other purposes. VerDate Sep 11 2014 00:45 Sep 27, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H2203.RFS H2203 pamtmann on DSKBC07HB2PROD with BILLS 2 HR 2203 RFS Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. ESTABLISHMENT OF THE OFFICE OF THE OM- 3 BUDSMAN FOR BORDER AND IMMIGRATION 4 ENFORCEMENT RELATED CONCERNS. 5 (a) IN GENERAL.—Title VII of the Homeland Secu- 6 rity Act of 2002 (6 U.S.C. 341 et seq.) is amended by 7 adding at the end the following new section: 8 ‘‘SEC. 711. OMBUDSMAN FOR BORDER AND IMMIGRATION 9 ENFORCEMENT RELATED CONCERNS. 10 ‘‘(a) IN GENERAL.—Within the Department there 11 shall be a position of Ombudsman for Border and Immi- 12 gration Enforcement Related Concerns (in this section re- 13 ferred to as the ‘Ombudsman’), who shall— 14 ‘‘(1) be independent of Department agencies 15 and officers; 16 ‘‘(2) report directly to the Secretary; and 17 ‘‘(3) have a background in immigration law, 18 civil rights, and law enforcement. 19 ‘‘(b) FUNCTIONS.—It shall be the function of the 20 Ombudsman to— 21 ‘‘(1) in coordination with the Inspector General 22 of the Department, establish an independent, neu- 23 tral, accessible, confidential, and standardized proc- 24 ess to assist individuals (including aliens (as such 25 VerDate Sep 11 2014 00:45 Sep 27, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2203.RFS H2203 pamtmann on DSKBC07HB2PROD with BILLS 3 HR 2203 RFS term is defined in section 101 of the Immigration 1 and Nationality Act (8 U.S.C. 1101)) in resolving 2 complaints with respect to U.S. Customs and Border 3 Protection, U.S. Immigration and Customs Enforce- 4 ment, a subcontractor, or a cooperating entity, 5 which process shall include a publicly accessible 6 website through which a complainant can check on 7 the status of such a complaint; 8 ‘‘(2) identify and thereafter review, examine, 9 and make recommendations to the Secretary to ad- 10 dress chronic issues identified by the Ombudsman in 11 carrying out the function described in paragraph 12 (1); 13 ‘‘(3) establish a Border Oversight Panel in ac- 14 cordance with subsection (f); and 15 ‘‘(4) review compliance with departmental poli- 16 cies and standards of care for custody of aliens by 17 U.S. Immigration and Customs Enforcement and 18 U.S. Customs and Border Protection, including any 19 violations of applicable policy or standards of care 20 involving force-feeding. 21 ‘‘(c) CONFIDENTIALITY.—The existence of a com- 22 plaint, including the identity of any Department employee 23 implicated in a complaint, shall be kept confidential by the 24 Ombudsman and, in the absence of the written consent 25 VerDate Sep 11 2014 00:45 Sep 27, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2203.RFS H2203 pamtmann on DSKBC07HB2PROD with BILLS 4 HR 2203 RFS of an individual who submits a complaint, the Ombudsman 1 shall keep confidential the identity of and any identifying 2 information relating to such individual. Such confiden- 3 tiality requirement may not be considered as a factor of 4 whether or not information under this subsection may be 5 disclosed under section 552 of title 5, United Stated Code 6 (commonly referred to as the Freedom of Information 7 Act). 8 ‘‘(d) ANNUAL REPORTING.—Not later than June 30 9 of each year beginning in the year after the date of the 10 enactment of this section, the Ombudsman shall submit 11 to the Committee on Homeland Security and the Com- 12 mittee on the Judiciary of the House of Representatives 13 and the Committee on Homeland Security and Govern- 14 mental Affairs and the Committee on the Judiciary of the 15 Senate a report that includes, for the previous year, the 16 following: 17 ‘‘(1) The number and types of complaints re- 18 ceived under this section and for each complaint— 19 ‘‘(A) the component or subcomponent, sub- 20 contractor, or cooperating entity identified; 21 ‘‘(B) the demographics of the complainant; 22 and 23 VerDate Sep 11 2014 00:45 Sep 27, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2203.RFS H2203 pamtmann on DSKBC07HB2PROD with BILLS 5 HR 2203 RFS ‘‘(C) a description of the resolution of the 1 complaint or the status of the resolution proc- 2 ess. 3 ‘‘(2) Any complaint pattern that could be pre- 4 vented or reduced by policy training or practice 5 changes. 6 ‘‘(3) A description of any pattern of violations 7 of any applicable policy or standards. 8 ‘‘(4) A description of each complaint received 9 under this section with respect to which U.S. Cus- 10 toms and Border Protection, U.S. Immigration and 11 Customs Enforcement, a subcontractor, or a cooper- 12 ating entity, as applicable, has taken action to re- 13 solve, and the time between receipt and resolution of 14 each such complaint. 15 ‘‘(5) A description of complaints received under 16 this section for which action has not been taken 17 after one year, and the period during which each 18 complaint has been open. 19 ‘‘(6) Recommendations the Ombudsman has 20 made under subsection (b)(2). 21 ‘‘(7) Other information, as determined appro- 22 priate by the Ombudsman. 23 ‘‘(e) APPOINTMENT OF BORDER COMMUNITIES LIAI- 24 SON.— 25 VerDate Sep 11 2014 00:45 Sep 27, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2203.RFS H2203 pamtmann on DSKBC07HB2PROD with BILLS 6 HR 2203 RFS ‘‘(1) IN GENERAL.—The Ombudsman, in con- 1 junction with the Office for Civil Rights and Civil 2 Liberties of the Department, shall appoint a Border 3 Community Liaison (in this subsection referred to as 4 the ‘Liaison’) in each U.S. Border Patrol sector on 5 the northern and southern borders. Each Liaison 6 shall report to the Ombudsman. 7 ‘‘(2) PURPOSES.—Each Liaison appointed 8 under this subsection shall— 9 ‘‘(A) foster cooperation between U.S. Cus- 10 toms and Border Protection, U.S. Immigration 11 and Customs Enforcement, and border commu- 12 nities; 13 ‘‘(B) consult with border communities on 14 the development of policies, directives, and pro- 15 grams of U.S. Customs and Border Protection 16 and U.S. Immigration and Customs Enforce- 17 ment; 18 ‘‘(C) receive feedback from border commu- 19 nities on the performance of U.S. Customs and 20 Border Protection and U.S. Immigration and 21 Customs Enforcement; and 22 ‘‘(D) submit to the Ombudsman an annual 23 report detailing their findings, feedback re- 24 ceived from border communities, and rec- 25 VerDate Sep 11 2014 00:45 Sep 27, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2203.RFS H2203 pamtmann on DSKBC07HB2PROD with BILLS 7 HR 2203 RFS ommendations to increase cooperation between 1 U.S. Customs and Border Protection, U.S. Im- 2 migration and Customs Enforcement, and bor- 3 der communities. 4 ‘‘(f) BORDER OVERSIGHT PANEL.— 5 ‘‘(1) ESTABLISHMENT.—The Ombudsman shall 6 establish a Border Oversight Panel (in this sub- 7 section referred to as the ‘Panel’). 8 ‘‘(2) COMPOSITION.— 9 ‘‘(A) IN GENERAL.—The Panel shall be 10 composed of 30 members selected by the Om- 11 budsman. 12 ‘‘(B) CHAIRPERSON.—The Ombudsman 13 shall be the chair of the Panel. 14 ‘‘(C) EXPERTISE.—Members of the Panel 15 shall have expertise in immigration, local crime 16 indices, civil and human rights, community re- 17 lations, cross-border trade and commerce, qual- 18 ity of life indicators, or other experience the 19 Ombudsman determines is appropriate, and 20 shall include individuals who reside in or near 21 border counties. 22 ‘‘(3) DUTIES.—The Panel shall evaluate and 23 make recommendations regarding the border en- 24 forcement policies, strategies, and programs of the 25 VerDate Sep 11 2014 00:45 Sep 27, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2203.RFS H2203 pamtmann on DSKBC07HB2PROD with BILLS 8 HR 2203 RFS Department operating along the northern and south- 1 ern borders of the United States to— 2 ‘‘(A) take into consideration the impact of 3 such policies, strategies, and programs on bor- 4 der communities, including protecting due proc- 5 ess, civil and human rights of border residents 6 and visitors, and private property rights of land 7 owners; 8 ‘‘(B) uphold domestic and international 9 legal obligations; 10 ‘‘(C) reduce the number of migrant deaths; 11 and 12 ‘‘(D) improve the safety of agents and offi- 13 cers of U.S. Customs and Border Protection 14 and U.S. Immigration and Customs Enforce- 15 ment. 16 ‘‘(g) STAFFING.—The Secretary shall take appro- 17 priate action to ensure the Ombudsman’s office is suffi- 18 ciently staffed and resourced to carry out its duties effec- 19 tively and efficiently. 20 ‘‘(h) TRAINING.— 21 ‘‘(1) IN GENERAL.—The Ombudsman shall con- 22 duct a yearly evaluation of all training given to 23 agents and officers of U.S. Customs and Border 24 VerDate Sep 11 2014 00:45 Sep 27, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2203.RFS H2203 pamtmann on DSKBC07HB2PROD with BILLS 9 HR 2203 RFS Protection and U.S. Immigration and Customs En- 1 forcement. 2 ‘‘(2) CONTENTS.—Each evaluation under para- 3 graph (1) shall include whether the training referred 4 to in such paragraph adequately addresses the fol- 5 lowing: 6 ‘‘(A) Best practices in community policing, 7 cultural awareness, and carrying out enforce- 8 ment actions near sensitive locations, such as 9 places of worship or religious ceremony, school 10 or education-related places or events, court- 11 houses or other civic buildings providing serv- 12 ices accessible to the public, hospitals, medical 13 treatment or health care facilities, public dem- 14 onstrations, and attorney’s offices (including a 15 public defender or legal aid offices). 16 ‘‘(B) Policies for operating in locations 17 where there are limitations on cooperation by 18 local law enforcement. 19 ‘‘(C) Interaction with vulnerable popu- 20 lations, including instruction on screening, iden- 21 tifying, and responding to vulnerable popu- 22 lations, such as children, victims of human traf- 23 ficking, and the acutely ill. 24 VerDate Sep 11 2014 00:45 Sep 27, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2203.RFS H2203 pamtmann on DSKBC07HB2PROD with BILLS 10 HR 2203 RFS ‘‘(D) Standards of professional and ethical 1 conduct, including the following: 2 ‘‘(i) Lawful use of force, de-escalation 3 tactics, and alternatives to the use of force. 4 ‘‘(ii) Complying with chain of com- 5 mand and lawful orders. 6 ‘‘(iii) Conduct and ethical behavior to- 7 ward the public in a civil and professional 8 manner. 9 ‘‘(iv) Civil rights and legal protections 10 for nationals of the United States and 11 aliens. 12 ‘‘(v) Non-biased questioning. 13 ‘‘(vi) Sensitivity towards lesbian, gay, 14 bisexual, transgender, and queer individ- 15 uals. 16 ‘‘(vii) Permissible and impermissible 17 social media activity. 18 ‘‘(viii) Sexual and other harassment 19 and assault, including an assessment of 20 whether adequate policies exist to resolve 21 complaints. 22 ‘‘(E) Protecting the civil, constitutional, 23 human, and privacy rights of individuals, with 24 special emphasis on the scope of enforcement 25 VerDate Sep 11 2014 00:45 Sep 27, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2203.RFS H2203 pamtmann on DSKBC07HB2PROD with BILLS 11 HR 2203 RFS authority, including chain of evidence practices 1 and document seizure, and use of force policies 2 available to agents and officers. 3 ‘‘(F) Maintaining and updated under- 4 standing of Federal legal rulings, court deci- 5 sions, and Department policies and procedures. 6 ‘‘(G) The scope of agents’ and officers’ au- 7 thority to conduct immigration enforcement ac- 8 tivities, including interviews, interrogations, 9 stops, searches, arrests, and detentions, in addi- 10 tion to identifying and detecting fraudulent doc- 11 uments. 12 ‘‘(3) RECOMMENDATIONS.—Not later than 90 13 days after conducting each evaluation under para- 14 graph (1), the Ombudsman shall develop, and sub- 15 mit to the Secretary, recommendations regarding 16 any additional training. 17 ‘‘(4) FEEDBACK.—Not later than 180 days 18 after receiving recommendations transmitted by the 19 Ombudsman, the Secretary shall respond publicly 20 and in writing with feedback on each of the rec- 21 ommendations, an action plan to implement any of 22 such recommendations with which the Secretary con- 23 curs, and a justification for why any of such rec- 24 ommendations have been rejected. 25 VerDate Sep 11 2014 00:45 Sep 27, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2203.RFS H2203 pamtmann on DSKBC07HB2PROD with BILLS 12 HR 2203 RFS ‘‘(i) ELECTRONIC TRACKING.— 1 ‘‘(1) IN GENERAL.—The Ombudsman, in co- 2 ordination with the Commissioner of U.S. Customs 3 and Border Protection, the Director of U.S. Immi- 4 gration and Customs Enforcement, and the Office of 5 Refugee Resettlement of the Department of Health 6 and Human Services, shall develop recommendations 7 for the establishment of an electronic tracking num- 8 ber system on a single interface, which shall be used 9 to track the location of a child who has been sepa- 10 rated from a parent, legal guardian, or other relative 11 of such child, and which shall be accessible to agents 12 and officers of U.S. Customs and Border Protection, 13 U.S. Immigration and Customs Enforcement, and 14 the Office of Refugee Resettlement. 15 ‘‘(2) TRACKING NUMBER.—The recommenda- 16 tions developed under this subsection shall consider 17 how a tracking number can be assigned to a child 18 who has been separated from a parent, legal guard- 19 ian, or other relative of such child that— 20 ‘‘(A) is transferrable; 21 ‘‘(B) may be shared easily on the elec- 22 tronic tracking system described in this sub- 23 section by agents and officers of— 24 VerDate Sep 11 2014 00:45 Sep 27, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H2203.RFS H2203 pamtmann on DSKBC07HB2PROD with BILLS 13 HR 2203 RFS ‘‘(i) U.S. Customs and Border Protec- 1 tion; 2 ‘‘(ii) U.S. Immigration and Customs 3 Enforcement; and 4 ‘‘(iii) the Office of Refugee Resettle- 5 ment of the Department of Health and 6 Human Services; and 7 ‘‘(C) is interoperable with the electronic lo- 8 cation records of a pare [Text truncated for display. Full text available on Congress.gov.]