II 116TH CONGRESS 1ST SESSION S. 2691 To establish the position of Ombudsman for Border and Immigration Enforcement Related Concerns in the Department of Homeland Security. 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 De- partment of Homeland Security. 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: 8 VerDate Sep 11 2014 03:51 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2691.IS S2691 kjohnson on DSK79L0C42 with BILLS 2 •S 2691 IS ‘‘SEC. 711. OMBUDSMAN FOR BORDER AND IMMIGRATION 1 ENFORCEMENT RELATED CONCERNS. 2 ‘‘(a) IN GENERAL.—There is established within the 3 Department the position of Ombudsman for Border and 4 Immigration Enforcement Related Concerns (referred to 5 in this section as the ‘Ombudsman’), who shall— 6 ‘‘(1) be independent of Department agencies 7 and officers (except for the Secretary); 8 ‘‘(2) report directly to the Secretary; and 9 ‘‘(3) have a background in immigration law, 10 civil rights, and law enforcement. 11 ‘‘(b) FUNCTIONS.—It shall be the function of the 12 Ombudsman— 13 ‘‘(1) in coordination with the Inspector General 14 of the Department, to establish an independent, neu- 15 tral, accessible, confidential, and standardized proc- 16 ess— 17 ‘‘(A) to assist individuals, including aliens 18 (as defined in section 101 of the Immigration 19 and Nationality Act (8 U.S.C. 1101)) in resolv- 20 ing complaints with respect to U.S. Customs 21 and Border Protection, U.S. Immigration and 22 Customs Enforcement, a subcontractor, or a co- 23 operating entity; and 24 VerDate Sep 11 2014 03:51 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2691.IS S2691 kjohnson on DSK79L0C42 with BILLS 3 •S 2691 IS ‘‘(B) that includes a publicly accessible 1 website through which a complainant can check 2 on the status of such a complaint; 3 ‘‘(2) to identify and thereafter review, examine, 4 and make recommendations to the Secretary to ad- 5 dress chronic issues identified by the Ombudsman in 6 carrying out the function described in paragraph 7 (1); 8 ‘‘(3) to establish a Border Oversight Panel in 9 accordance with subsection (f); and 10 ‘‘(4) to review compliance with policies and 11 standards of the Department for the care for cus- 12 tody of aliens by U.S. Immigration and Customs 13 Enforcement and U.S. Customs and Border Protec- 14 tion, including any violations of applicable policy or 15 standards of care involving force-feeding. 16 ‘‘(c) CONFIDENTIALITY.— 17 ‘‘(1) IN GENERAL.—The existence of a com- 18 plaint, including the identity of any Department em- 19 ployee implicated in a complaint, shall be kept con- 20 fidential by the Ombudsman. In the absence of the 21 written consent of an individual who submits a com- 22 plaint, the Ombudsman shall keep confidential the 23 identity of and any identifying information relating 24 to such individual. 25 VerDate Sep 11 2014 03:51 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2691.IS S2691 kjohnson on DSK79L0C42 with BILLS 4 •S 2691 IS ‘‘(2) FOIA DISCLOSURES.—The confidentiality 1 requirement under paragraph (1) may not be consid- 2 ered as a factor in determining whether information 3 under this subsection may be disclosed under section 4 552 of title 5, United States Code (commonly re- 5 ferred to as the ‘Freedom of Information Act’). 6 ‘‘(d) ANNUAL REPORTING.—Not later than June 30 7 of the first calendar year beginning after the date of the 8 enactment of this section, and annually thereafter, the 9 Ombudsman shall submit a report to the Committee on 10 Homeland Security and Governmental Affairs of the Sen- 11 ate, the Committee on the Judiciary of the Senate, the 12 Committee on Homeland Security of the House of Rep- 13 resentatives, and the Committee on the Judiciary of the 14 House of Representatives that includes, for the previous 15 calendar year— 16 ‘‘(1) the number and types of complaints re- 17 ceived under this section and, for each complaint— 18 ‘‘(A) the component or subcomponent, sub- 19 contractor, or cooperating entity identified; 20 ‘‘(B) the demographics of the complainant; 21 and 22 ‘‘(C) a description of the resolution of the 23 complaint or the status of the resolution proc- 24 ess; 25 VerDate Sep 11 2014 03:51 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2691.IS S2691 kjohnson on DSK79L0C42 with BILLS 5 •S 2691 IS ‘‘(2) any complaint pattern that could be pre- 1 vented or reduced by policy training or practice 2 changes; 3 ‘‘(3) a description of any pattern of violations 4 of any applicable policy or standards; 5 ‘‘(4) a description of each complaint received 6 under this section with respect to which U.S. Cus- 7 toms and Border Protection, U.S. Immigration and 8 Customs Enforcement, a subcontractor, or a cooper- 9 ating entity, as applicable, has taken action to re- 10 solve, and the time between receipt and resolution of 11 each such complaint; 12 ‘‘(5) a description of complaints received under 13 this section for which action has not been taken dur- 14 ing the 1-year period beginning on the date on which 15 the complaint was received, and the period during 16 which each complaint has remained open; 17 ‘‘(6) recommendations the Ombudsman has 18 made under subsection (b)(2); and 19 ‘‘(7) other information, as the Ombudsman de- 20 termines appropriate. 21 ‘‘(e) APPOINTMENT OF BORDER COMMUNITIES LIAI- 22 SON.— 23 ‘‘(1) IN GENERAL.—The Ombudsman, in con- 24 junction with the Office for Civil Rights and Civil 25 VerDate Sep 11 2014 03:51 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2691.IS S2691 kjohnson on DSK79L0C42 with BILLS 6 •S 2691 IS Liberties of the Department, shall appoint a Border 1 Community Liaison (referred to in this subsection as 2 a ‘Liaison’) in each U.S. Border Patrol sector on the 3 northern and southern borders of the United States. 4 Each Liaison shall report directly to the Ombuds- 5 man. 6 ‘‘(2) PURPOSES.—Each Liaison shall— 7 ‘‘(A) foster cooperation between U.S. Cus- 8 toms and Border Protection, U.S. Immigration 9 and Customs Enforcement, and border commu- 10 nities; 11 ‘‘(B) consult with border communities on 12 the development of policies, directives, and pro- 13 grams of U.S. Customs and Border Protection 14 and U.S. Immigration and Customs Enforce- 15 ment; 16 ‘‘(C) receive feedback from border commu- 17 nities on the performance of U.S. Customs and 18 Border Protection and U.S. Immigration and 19 Customs Enforcement; and 20 ‘‘(D) submit an annual report to the Om- 21 budsman that details the findings of the Liai- 22 son, feedback received from border commu- 23 nities, and recommendations to increase co- 24 operation between U.S. Customs and Border 25 VerDate Sep 11 2014 03:51 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2691.IS S2691 kjohnson on DSK79L0C42 with BILLS 7 •S 2691 IS Protection, U.S. Immigration and Customs En- 1 forcement, and border communities. 2 ‘‘(f) BORDER OVERSIGHT PANEL.— 3 ‘‘(1) ESTABLISHMENT.—The Ombudsman shall 4 establish a Border Oversight Panel (referred to in 5 this subsection as the ‘Panel’). 6 ‘‘(2) COMPOSITION.— 7 ‘‘(A) IN GENERAL.—The Panel shall be 8 composed of 30 members selected by the Om- 9 budsman. 10 ‘‘(B) CHAIRPERSON.—The Ombudsman 11 shall serve as the chair of the Panel. 12 ‘‘(C) EXPERTISE.—Members of the Panel 13 shall have expertise in immigration, local crime 14 indices, civil and human rights, community re- 15 lations, cross-border trade and commerce, qual- 16 ity of life indicators, or other experience the 17 Ombudsman determines is appropriate, and 18 shall include individuals who reside in or near 19 border counties. 20 ‘‘(3) DUTIES.—The Panel shall evaluate and 21 make recommendations regarding the border en- 22 forcement policies, strategies, and programs of the 23 Department operating along the northern and south- 24 ern borders of the United States— 25 VerDate Sep 11 2014 03:51 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2691.IS S2691 kjohnson on DSK79L0C42 with BILLS 8 •S 2691 IS ‘‘(A) to take into consideration the impact 1 of such policies, strategies, and programs on 2 border communities, including protecting due 3 process, civil and human rights of border resi- 4 dents and visitors, and private property rights 5 of land owners; 6 ‘‘(B) to uphold domestic and international 7 legal obligations; 8 ‘‘(C) to reduce the number of migrant 9 deaths; and 10 ‘‘(D) to improve the safety of agents and 11 officers of U.S. Customs and Border Protection 12 and U.S. Immigration and Customs Enforce- 13 ment. 14 ‘‘(g) STAFFING.—The Secretary shall take appro- 15 priate action to ensure that the Ombudsman’s office has 16 sufficient staff and resources to effectively and efficiently 17 carry out its duties under this section. 18 ‘‘(h) TRAINING.— 19 ‘‘(1) IN GENERAL.—The Ombudsman shall con- 20 duct an annual evaluation of all training given to 21 agents and officers of U.S. Customs and Border 22 Protection and U.S. Immigration and Customs En- 23 forcement. 24 VerDate Sep 11 2014 03:51 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2691.IS S2691 kjohnson on DSK79L0C42 with BILLS 9 •S 2691 IS ‘‘(2) CONTENTS.—Each evaluation under para- 1 graph (1) shall include whether the training referred 2 to in such paragraph adequately addresses— 3 ‘‘(A) best practices in community policing, 4 cultural awareness, and carrying out enforce- 5 ment actions near sensitive locations, such as 6 places of worship or religious ceremony, school 7 or education-related places or events, court- 8 houses or other civic buildings providing serv- 9 ices accessible to the public, hospitals, medical 10 treatment or health care facilities, public dem- 11 onstrations, and attorney’s offices (including a 12 public defender or legal aid offices); 13 ‘‘(B) policies for operating in locations 14 where there are limitations on cooperation by 15 local law enforcement; 16 ‘‘(C) interaction with vulnerable popu- 17 lations, including instruction on screening, iden- 18 tifying, and responding to vulnerable popu- 19 lations, such as children, victims of human traf- 20 ficking, and the acutely ill; 21 ‘‘(D) standards of professional and ethical 22 conduct, including— 23 ‘‘(i) lawful use of force, de-escalation 24 tactics, and alternatives to the use of force; 25 VerDate Sep 11 2014 03:51 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2691.IS S2691 kjohnson on DSK79L0C42 with BILLS 10 •S 2691 IS ‘‘(ii) complying with chain of com- 1 mand and lawful orders; 2 ‘‘(iii) conduct and ethical behavior to- 3 ward the public in a civil and professional 4 manner; 5 ‘‘(iv) civil rights and legal protections 6 for nationals of the United States and 7 aliens; 8 ‘‘(v) non-biased questioning; 9 ‘‘(vi) sensitivity towards lesbian, gay, 10 bisexual, transgender, and queer individ- 11 uals; 12 ‘‘(vii) permissible and impermissible 13 social media activity; and 14 ‘‘(viii) sexual and other harassment 15 and assault, including an assessment of 16 whether adequate policies exist to resolve 17 complaints; 18 ‘‘(E) protecting the civil, constitutional, 19 human, and privacy rights of individuals, with 20 special emphasis on the scope of enforcement 21 authority, including chain of evidence practices 22 and document seizure, and use of force policies 23 available to agents and officers; 24 VerDate Sep 11 2014 03:51 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2691.IS S2691 kjohnson on DSK79L0C42 with BILLS 11 •S 2691 IS ‘‘(F) maintaining and updated under- 1 standing of Federal legal rulings, court deci- 2 sions, and Department policies and procedures; 3 and 4 ‘‘(G) the scope of agents’ and officers’ au- 5 thority to conduct immigration enforcement ac- 6 tivities, including interviews, interrogations, 7 stops, searches, arrests, and detentions, in addi- 8 tion to identifying and detecting fraudulent doc- 9 uments. 10 ‘‘(3) RECOMMENDATIONS.—Not later than 90 11 days after conducting each evaluation under para- 12 graph (1), the Ombudsman shall develop, and sub- 13 mit to the Secretary, recommendations regarding 14 any additional training needed by agents and offi- 15 cers of U.S. Customs and Border Protection and 16 U.S. Immigration and Customs Enforcement. 17 ‘‘(4) FEEDBACK.—Not later than 180 days 18 after receiving a recommendation from the Ombuds- 19 man, the Secretary shall provide— 20 ‘‘(A) a public, written response to the rec- 21 ommendation; and 22 ‘‘(B)(i) if the Secretary concurs with the 23 recommendation, an action plan to implement 24 the recommendation; or 25 VerDate Sep 11 2014 03:51 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2691.IS S2691 kjohnson on DSK79L0C42 with BILLS 12 •S 2691 IS ‘‘(ii) if the Secretary rejects the rec- 1 ommendation, a justification for such rejection. 2 ‘‘(i) ELECTRONIC TRACKING.— 3 ‘‘(1) IN GENERAL.—The Ombudsman, in co- 4 ordination with the Commissioner of U.S. Customs 5 and Border Protection, the Director of U.S. Immi- 6 gration and Customs Enforcement, and the Office of 7 Refugee Resettlement of the Department of Health 8 and Human Services, shall develop recommendations 9 for the establishment of an electronic tracking num- 10 ber system on a single interface, which shall be used 11 to track the location of a child who has been sepa- 12 rated from a parent, legal guardian, or other relative 13 of such child, and which shall be accessible to agents 14 and officers of U.S. Customs and Border Protection, 15 U.S. Immigration and Customs Enforcement, and 16 the Office of Refugee Resettlement. 17 ‘‘(2) TRACKING NUMBER.—The recommenda- 18 tions developed under this subsection shall consider 19 how a tracking number can be assigned to a child 20 who has been separated from a parent, legal guard- 21 ian, or other relative of such child that— 22 ‘‘(A) is transferable; 23 VerDate Sep 11 2014 03:51 Oct 26, 2019 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2691.IS S2691 kjohnson on DSK79L0C42 [Text truncated for display. Full text available on Congress.gov.]