Sec. 201. Protections against unlawful detentions of citizens of the United States
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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, any law enforcement agent shall first advise the individual, in the language requested by the individual that— the individual has the right to be represented by counsel at no expense to the Federal Government; the individual may remain silent; and any statement made by the individual may be used against the detainee in a subsequent removal or criminal proceeding. Any evidence obtained by a law enforcement agent from an individual in violation of paragraph
(1)may not be— admissible in a removal proceeding against the individual; or used to confirm that the individual is not a citizen of the United States. 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 requested by the individual being detained— provide such individual, at the time of detention of such individual 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 detention 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 (k); by redesignating subsections (b), (c), and
(d)as subsections (f), (g), and (h), respectively; and by inserting before subsection (k), as so 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. . Section 236 of such Act, as amended by subsection (b)(3), is further amended by inserting before subsection (j), 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 subsection
(i)of section 236 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 ). Not later than 6 hours after the commencement of a detention of an individual during an immigration-related enforcement activity, an official of the Department or a law enforcement agency shall provide the individual with access to a telephone to make telephone calls at no charge to the detainee to— the consulate of the individual; designated free legal-service providers or legal representatives who are providing free representation for the individual; an office of the U.S. Immigration and Customs Enforcement; an immigration court or the Board of Immigration Appeals; the Office of the Inspector General of the Department; the Office for Civil Rights and Civil Liberties of the Department; and any Federal or State court in which the detainee is or may become involved in a legal proceeding. A detainee shall be permitted to make confidential telephone calls at no charge to the detainee if the detainee— is subject to expedited removal; has dependents; or is experiencing a personal or family emergency. A detainee shall be permitted to make additional confidential telephone calls at no cost to the Federal Government. The Secretary shall issue regulations requiring officials of the Department or law enforcement agencies— to prohibit the apprehension of an individual as part of an immigration-related enforcement activity on the premises or in the immediate vicinity of— a childcare provider; a school; a legal-service provider; a Federal court or State court proceeding; an administrative proceeding; a funeral home; a cemetery; a college, university, or community college; a victim services agency; a social service agency; a hospital or emergency care center; a health care clinic; and a place of worship; and to tightly control investigative operations at the locations described in subparagraph (A). Notwithstanding paragraph (1), an immigration-related enforcement activity may be carried out in a location described under paragraph (1)(A) if the Secretary determines that exigent circumstances exist and approves such activity. In this paragraph, the term exigent circumstances means, with respect to an immigration-related enforcement activity, that such activity— involves a national security or terrorism matter; involves an imminent risk of death, violence, or physical harm to any person or property; involves the immediate arrest or pursuit of a dangerous felon, terrorist suspect, or any other individual that present an imminent danger to public safety; or involves an imminent risk of destruction of evidence material to an ongoing criminal case. The Secretary shall amend the Notice to Appear form to include a statement that no immigration-related enforcement activity was undertaken in any of the locations described under paragraph (1)(A) unless such activity was approved under paragraph (2). In adopting procedures relating to the transfer of individuals detained under section 236 of the Immigration and Nationality Act ( 8 U.S.C. 1226 ), the Secretary shall promulgate regulations requiring officials of the Department to give substantial weight to— the access of the detainee to legal representation; the residence of the detainee prior to apprehension; the location of family members of the detainee; the stage of any legal proceeding involving the detainee, including Federal, State, or administrative proceedings; the proximity of the transferee facility to the venue of any legal proceeding described in subparagraph (D); the health and medical fitness of the detainee; and whether the detainee has a pending application for relief with U.S. Citizenship and Immigration Services or the Executive Office for Immigration Review. Unless emergency circumstances, such as a natural disaster or comparable exigency, dictate an immediate transfer, the Secretary— shall provide at least 72-hour notice to the detainee in the language requested by the detainee and to the representative of record before transferring a detainee to another facility; and may not transfer the detainee until the detainee has received any custody hearing for which the detainee is eligible. Absent emergency circumstances, such as a natural disaster or comparable exigency, the Secretary or law enforcement agent may not transfer a detainee who has an existing attorney-client relationship to another facility if the transfer of the detainee would— impair the existing attorney-client relationship; prejudice the rights of the detainee in any legal proceeding; or affect the ability of the detainee to present evidence or witnesses. In any custody, bond, or removal decision involving a detainee detained under section 236 of the Immigration and Nationality Act ( 8 U.S.C. 1226 )— legal precedent in the location of apprehension shall control any custody, bond, or removal decision; and in cases of ambiguity, an immigration judge shall use the rule of lenity in choosing from among the laws of the relevant circuits. If a detainee is transferred, the Secretary or law enforcement agent shall prepare a record of— the reasons necessitating the transfer; and actions taken to ameliorate any adverse effect on the legal rights of the detainee. If a detainee makes an allegation of retaliation, such allegation shall be investigated by an independent entity. The Secretary, in consultation with the Civil Rights and Civil Liberties Officer, shall provide all officers of the Department, other Federal agencies, and all State and local officers involved in immigration-related enforcement activities with periodic training regarding— immigration law; civil rights law; medical and mental health needs and treatment; due process protections; humanitarian guidelines under current law, including— the right of access to immigration legal counsel; and the appropriate treatment of vulnerable populations during immigration-related enforcement activities; and racial profiling and implicit bias. In this subsection, the term implicit bias means— bias in judgment or behavior that results from subtle cognitive processes, including implicit attitudes and implicit stereotypes, that often operate at a level below conscious awareness and without intentional control; and implicit attitudes and stereotypes that result in beliefs or simple associations that a person makes between an object and its evaluation that are automatically activated by the mere presence (actual or symbolic) of the attitude object.
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Sec. 201
Protections against unlawful detentions of citizens of the United States
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