Sec. 159. Protections against unlawful detentions of United States citizens
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/bill/113/hr/3163/ih/section-159A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Prior to questioning an individual who has been detained on the basis of a suspected immigration violation or has been detained during an immigration-related enforcement activity, a Department of Homeland Security or other officer must first advise the detainee, in the language spoken by the detainee that— the detainee has the right to be represented by counsel at no expense to the Federal Government; the detainee may remain silent; and any statement made by the detainee may be used against the detainee in a subsequent removal or criminal proceeding. Any evidence obtained by an officer from a detainee in violation of paragraph
(1)may not be— admissible in a removal proceeding against the detainee; or used to confirm that the detainee is a noncitizen for purposes of issuing an immigration detainer. The Attorney General, in consultation with the Secretary, shall ensure that all detained aliens who are in, or may be subject to, detention by the Department of Homeland Security, Immigration and Customs Enforcement, and who are, or may be, in EOIR Immigration Court proceedings 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 Immigration Review of the Department of Justice. The legal orientation program developed pursuant to this section shall be based on the Legal Orientation Program carried out by the Executive Office for Immigration Review on the date of the enactment of this Act. There are authorized to be appropriated such sums as may be necessary to carry out such legal orientation program. An individual who is subject to or detained during an immigration-related enforcement activity may be represented by legal counsel at any time. The examining officer shall, in the language spoken by the individual being detained— provide the individual, prior to transferring the individual from the point of apprehension to the detention facility for an immigration-related violation with a list of available free or low-cost legal services provided by organizations and attorneys that are located in the region in which the arrest occurred; and certify on the Notice to Appear issued to such individual that such a list was provided to the individual. Section 236 of the Immigration and Nationality Act ( 8 U.S.C. 1226 ) is amended— by redesignating subsection
(e)as subsection (l); by redesignating subsections (b), (c), (d), and
(e)as subsections (f), (g), and (h), and
(i)respectively; and by inserting before subsection (l), as redesignated, the following: An individual may be represented by counsel of the individual’s choosing while being subject to any immigration-related enforcement activity, including— interviews; processing appointments; booking or intake questions; hearings; and any procedure that may result in a conclusion that the detainee will be detained or removed from the United States. . 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 appointed by the Attorney General at the expense of the Government. Section 236 of such Act, as amended by subsection (b)(3), is further amended by inserting before subsection (k), the following: Not later than 48 hours after the commencement of a detention of an individual under this section, the Secretary of Homeland Security shall— file a Notice to Appear or other relevant charging document with the immigration court closest to the location at which the individual was apprehended; and serve such notice or charging document on the individual. Any individual who is detained under this section for more than 48 hours shall be brought before an immigration 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). The requirements of this subsection may be waived for not more than 7 days if the detainee— enters into a written agreement with the Department of Homeland Security to waive such requirements; and is prima facie eligible for immigration benefits or demonstrates prima facie eligibility for a defense against removal. . 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 ). 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 indicating the intention of the Secretary to assume custody of the alien upon completion of the pending criminal proceedings. The written notice shall include 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 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 immigration detainers. . 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 require officials of the Department of Homeland Security to confirm— 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 whether the individual is removable from the United States. The Secretary of Homeland Security shall collect data regarding detainers issued under section 287(d) of the Immigration and Nationality Act ( 8 U.S.C. 1357(d) ) including— the criminal charge for which the individual was arrested and/or convicted; the date the detainer was issued; the basis for issuance of the detainer; the date(s) the detainer was lifted; the date(s) of release of the individual ordered by a State or Federal criminal court or other government entity; the date that DHS took custody of the individual; the race and ethnicity and country of origin of the individual against whom the detainer was issued; the disposition of criminal case; the ultimate disposition of immigration case or whether individual was discovered to be a United States citizen; the grounds of removal if applicable and any charges brought by the Secretary; and the number of individuals removed after the Secretary took custody while any criminal matter was still pending. On a yearly basis beginning one year after the date of the enactment of this Act, the Secretary of Homeland Security shall report the results of the Secretary’s data collection to the Department of Homeland Security Inspector 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 individuals who are United States citizens or not deportable, how often individuals remain in detention unlawfully past the expiration of the detainer, whether detainers are lodged disproportionately against certain ethnicities, whether the lodging of detainers results in longer incarceration times, and whether detainers are lodged for an investigatory purpose to investigate criminal activity instead of placing individuals in removal proceedings. 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.
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Sec. 159
Protections against unlawful detentions of United States citizens
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