[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1129 Engrossed in Senate (ES)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
108th CONGRESS
  2d Session
                                S. 1129

_______________________________________________________________________

                                 AN ACT


 
To provide for the protection of unaccompanied alien children, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Unaccompanied 
Alien Child Protection Act of 2004''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
     TITLE I--CUSTODY, RELEASE, FAMILY REUNIFICATION, AND DETENTION

Sec. 101. Procedures when encountering unaccompanied alien children.
Sec. 102. Family reunification for unaccompanied alien children with 
                            relatives in the United States.
Sec. 103. Appropriate conditions for detention of unaccompanied alien 
                            children.
Sec. 104. Repatriated unaccompanied alien children.
Sec. 105. Establishing the age of an unaccompanied alien child.
Sec. 106. Effective date.
TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO GUARDIANS AD LITEM 
                              AND COUNSEL

Sec. 201. Guardians ad litem.
Sec. 202. Counsel.
Sec. 203. Effective date; applicability.
  TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN 
                                CHILDREN

Sec. 301. Special immigrant juvenile visa.
Sec. 302. Training for officials and certain private parties who come 
                            into contact with unaccompanied alien 
                            children.
Sec. 303. Report.
Sec. 304. Effective date.
             TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS

Sec. 401. Guidelines for children's asylum claims.
Sec. 402. Unaccompanied refugee children.
Sec. 403. Exceptions for unaccompanied alien children in asylum and 
                            refugee-like circumstances.
                TITLE V--AUTHORIZATION OF APPROPRIATIONS

Sec. 501. Authorization of appropriations.
       TITLE VI--AMENDMENTS TO THE HOMELAND SECURITY ACT OF 2002

Sec. 601. Additional responsibilities and powers of the Office of 
                            Refugee Resettlement with respect to 
                            unaccompanied alien children.
Sec. 602. Technical corrections.
Sec. 603. Effective date.

SEC. 2. DEFINITIONS.

    (a) In General.--In this Act:
            (1) Competent.--The term ``competent'', in reference to 
        counsel, means an attorney who complies with the duties set 
        forth in this Act and--
                    (A) is a member in good standing of the bar of the 
                highest court of any State, possession, territory, 
                Commonwealth, or the District of Columbia;
                    (B) is not under any order of any court suspending, 
                enjoining, restraining, disbarring, or otherwise 
                restricting the attorney in the practice of law; and
                    (C) is properly qualified to handle matters 
                involving unaccompanied immigrant children or is 
                working under the auspices of a qualified nonprofit 
                organization that is experienced in handling such 
                matters.
            (2) Director.--The term ``Director'' means the Director of 
        the Office.
            (3) Directorate.--The term ``Directorate'' means the 
        Directorate of Border and Transportation Security established 
        by section 401 of the Homeland Security Act of 2002 (6 U.S.C. 
        201).
            (4) Office.--The term ``Office'' means the Office of 
        Refugee Resettlement as established by section 411 of the 
        Immigration and Nationality Act (8 U.S.C. 1521).
            (5) Secretary.--The term ``Secretary'' means the Secretary 
        of Homeland Security.
            (6) Unaccompanied alien child.--The term ``unaccompanied 
        alien child'' has the same meaning as is given the term in 
        section 462(g)(2) of the Homeland Security Act of 2002 (6 
        U.S.C. 279(g)(2)).
            (7) Voluntary agency.--The term ``voluntary agency'' means 
        a private, nonprofit voluntary agency with expertise in meeting 
        the cultural, developmental, or psychological needs of 
        unaccompanied alien children, as certified by the Director of 
        the Office of Refugee Resettlement.
    (b) Amendments to the Immigration and Nationality Act.--Section 
101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is 
amended by adding at the end the following:
    ``(51) The term `unaccompanied alien child' means a child who--
            ``(A) has no lawful immigration status in the United 
        States;
            ``(B) has not attained the age of 18; and
            ``(C) with respect to whom--
                    ``(i) there is no parent or legal guardian in the 
                United States; or
                    ``(ii) no parent or legal guardian in the United 
                States is able to provide care and physical custody.
    ``(52) The term `unaccompanied refugee children' means persons 
described in paragraph (42) who--
            ``(A) have not attained the age of 18; and
            ``(B) with respect to whom there are no parents or legal 
        guardians available to provide care and physical custody.''.
    (c) Rule of Construction.--A department or agency of a State, or an 
individual or entity appointed by a State court or juvenile court 
located in the United States, acting in loco parentis, shall not be 
considered a legal guardian for purposes of section 462 of the Homeland 
Security Act of 2002 (6 U.S.C. 279) or this Act.

     TITLE I--CUSTODY, RELEASE, FAMILY REUNIFICATION, AND DETENTION

SEC. 101. PROCEDURES WHEN ENCOUNTERING UNACCOMPANIED ALIEN CHILDREN.

    (a) Unaccompanied Children Found Along the United States Border or 
at United States Ports of Entry.--
            (1) In general.--Subject to paragraph (2), if an 
        immigration officer finds an unaccompanied alien child who is 
        described in paragraph (2) at a land border or port of entry of 
        the United States and determines that such child is 
        inadmissible under the Immigration and Nationality Act (8 
        U.S.C. 1101 et seq.), the officer shall--
                    (A) permit such child to withdraw the child's 
                application for admission pursuant to section 235(a)(4) 
                of the Immigration and Nationality Act (8 U.S.C. 
                1225(a)(4)); and
                    (B) return such child to the child's country of 
                nationality or country of last habitual residence.
            (2) Special rule for contiguous countries.--
                    (A) In general.--Any child who is a national or 
                habitual resident of a country that is contiguous with 
                the United States and that has an agreement in writing 
                with the United States providing for the safe return 
                and orderly repatriation of unaccompanied alien 
                children who are nationals or habitual residents of 
                such country shall be treated in accordance with 
                paragraph (1), if a determination is made on a case-by-
                case basis that--
                            (i) such child is a national or habitual 
                        resident of a country described in subparagraph 
                        (A);
                            (ii) such child does not have a fear of 
                        returning to the child's country of nationality 
                        or country of last habitual residence owing to 
                        a fear of persecution;
                            (iii) the return of such child to the 
                        child's country of nationality or country of 
                        last habitual residence would not endanger the 
                        life or safety of such child; and
                            (iv) the child is able to make an 
                        independent decision to withdraw the child's 
                        application for admission due to age or other 
                        lack of capacity.
                    (B) Right of consultation.--Any child described in 
                subparagraph (A) shall have the right to consult with a 
                consular officer from the child's country of 
                nationality or country of last habitual residence prior 
                to repatriation, as well as consult with the Office, 
                telephonically, and such child shall be informed of 
                that right in the child's native language.
            (3) Rule for apprehensions at the border.--The custody of 
        unaccompanied alien children not described in paragraph (2) who 
        are apprehended at the border of the United States or at a 
        United States port of entry shall be treated in accordance with 
        the provisions of subsection (b).
    (b) Care and Custody of Unaccompanied Alien Children Found in the 
Interior of the United States.--
            (1) Establishment of jurisdiction.--
                    (A) In general.--Except as otherwise provided under 
                subparagraphs (B) and (C) and subsection (a), the care 
                and custody of all unaccompanied alien children, 
                including responsibility for their detention, where 
                appropriate, shall be under the jurisdiction of the 
                Office.
                    (B) Exception for children who have committed 
                crimes.--Notwithstanding subparagraph (A), the 
                Directorate shall retain or assume the custody and care 
                of any unaccompanied alien child who--
                            (i) has been charged with any felony, 
                        excluding offenses proscribed by the 
                        Immigration and Nationality Act (8 U.S.C. 1101 
                        et seq.), while such charges are pending; or
                            (ii) has been convicted of any such felony.
                    (C) Exception for children who threaten national 
                security.--Notwithstanding subparagraph (A), the 
                Directorate shall retain or assume the custody and care 
                of an unaccompanied alien child if the Secretary has 
                substantial evidence, based on an individualized 
                determination, that such child could personally 
                endanger the national security of the United States.
                    (D) Trafficking victims.--For purposes of section 
                462 of the Homeland Security Act of 2002 (6 U.S.C. 279) 
                and this Act, an unaccompanied alien child who is 
                eligible for services authorized under the Victims of 
                Trafficking and Violence Protection Act of 2000 (Public 
                Law 106-386), shall be considered to be in the custody 
                of the Office.
            (2) Notification.--
                    (A) In general.--The Secretary shall promptly 
                notify the Office upon--
                            (i) the apprehension of an unaccompanied 
                        alien child;
                            (ii) the discovery that an alien in the 
                        custody of the Directorate is an unaccompanied 
                        alien child;
                            (iii) any claim by an alien in the custody 
                        of the Directorate that such alien is under the 
                        age of 18; or
                            (iv) any suspicion that an alien in the 
                        custody of the Directorate who has claimed to 
                        be over the age of 18 is actually under the age 
                        of 18.
                    (B) Special rule.--In the case of an alien 
                described in clause (iii) or (iv) of subparagraph (A), 
                the Director shall make an age determination in 
                accordance with section 105 and take whatever other 
                steps are necessary to determine whether or not such 
                alien is eligible for treatment under section 462 of 
                the Homeland Security Act of 2002 (6 U.S.C. 279) or 
                this Act.
            (3) Transfer of unaccompanied alien children.--
                    (A) Transfer to the office.--The care and custody 
                of an unaccompanied alien child shall be transferred to 
                the Office--
                            (i) in the case of a child not described in 
                        subparagraph (B) or (C) of paragraph (1), not 
                        later than 72 hours after a determination is 
                        made that such child is an unaccompanied alien 
                        child;
                            (ii) in the case of a child whose custody 
                        and care has been retained or assumed by the 
                        Directorate pursuant to subparagraph (B) or (C) 
                        of paragraph (1), immediately following a 
                        determination that the child no longer meets 
                        the description set forth in such 
                        subparagraphs; or
                            (iii) in the case of a child who was 
                        previously released to an individual or entity 
                        described in section 102(a)(1), upon a 
                        determination by the Director that such 
                        individual or entity is no longer able to care 
                        for the child.
                    (B) Transfer to the directorate.--Upon determining 
                that a child in the custody of the Office is described 
                in subparagraph (B) or (C) of paragraph (1), the 
                Director shall transfer the care and custody of such 
                child to the Directorate.
                    (C) Promptness of transfer.--In the event of a need 
                to transfer a child under this paragraph, the sending 
                office shall make prompt arrangements to transfer such 
                child and the receiving office shall make prompt 
                arrangements to receive such child.
    (c) Age Determinations.--In any case in which the age of an alien 
is in question and the resolution of questions about the age of such 
alien would affect the alien's eligibility for treatment under section 
462 of the Homeland Security Act of 2002 (6 U.S.C. 279) or this Act, a 
determination of whether or not such alien meets such age requirements 
shall be made by the Director in accordance with section 105.

SEC. 102. FAMILY REUNIFICATION FOR UNACCOMPANIED ALIEN CHILDREN WITH 
              RELATIVES IN THE UNITED STATES.

    (a) Placement Authority.--
            (1) Order of preference.--Subject to the discretion of the 
        Director under section 462(b)(2) of the Homeland Security Act 
        of 2002 (6 U.S.C. 279(b)(2)) and under paragraph (4) of this 
        subsection and section 103(a)(2) of this Act, an unaccompanied 
        alien child in the custody of the Office shall be promptly 
        placed with 1 of the following individuals or entities in the 
        following order of preference:
                    (A) A parent who seeks to establish custody, as 
                described in paragraph (3)(A).
                    (B) A legal guardian who seeks to establish 
                custody, as described in paragraph (3)(A).
                    (C) An adult relative.
                    (D) An individual or entity designated by the 
                parent or legal guardian that is capable and willing to 
                care for the well-being of the child.
                    (E) A State-licensed juvenile shelter, group home, 
                or foster care program willing to accept physical 
                custody of the child.
                    (F) A qualified adult or entity seeking custody of 
                the child when it appears that there is no other likely 
                alternative to long-term detention and family 
                reunification does not appear to be a reasonable 
                alternative. For purposes of this subparagraph, the 
                Office shall decide who is a qualified adult or entity 
                and promulgate regulations in accordance with such 
                decision.
            (2) Suitability assessment.--Notwithstanding paragraph (1), 
        no unaccompanied alien child shall be placed with a person or 
        entity unless a valid suitability assessment conducted by an 
        agency of the State of the child's proposed residence, by an 
        agency authorized by that State to conduct such an assessment, 
        or by an appropriate voluntary agency contracted with the 
        Office to conduct such assessments has found that the person or 
        entity is capable of providing for the child's physical and 
        mental well-being.
            (3) Right of parent or legal guardian to custody of 
        unaccompanied alien child.--
                    (A) Placement with parent or legal guardian.--If an 
                unaccompanied alien child is placed with any person or 
                entity other than a parent or legal guardian, but 
                subsequent to that placement a parent or legal guardian 
                seeks to establish custody, the Director shall assess 
                the suitability of placing the child with the parent or 
                legal guardian and shall make a written determination 
                on the child's placement within 30 days.
                    (B) Rule of construction.--Nothing in this Act 
                shall be construed to--
                            (i) supersede obligations under any treaty 
                        or other international agreement to which the 
                        United States is a party, including The Hague 
                        Convention on the Civil Aspects of 
                        International Child Abduction, the Vienna 
                        Declaration and Program of Action, and the 
                        Declaration of the Rights of the Child; or
                            (ii) limit any right or remedy under such 
                        international agreement.
            (4) Protection from smugglers and traffickers.--
                    (A) Policies and programs.--
                            (i) In general.--The Director shall 
                        establish policies and programs to ensure that 
                        unaccompanied alien children are protected from 
                        smugglers, traffickers, or other persons 
                        seeking to victimize or otherwise engage such 
                        children in criminal, harmful, or exploitative 
                        activity.
                            (ii) Witness protection programs 
                        included.--The programs established pursuant to 
                        clause (i) may include witness protection 
                        programs.
                    (B) Criminal investigations and prosecutions.--Any 
                officer or employee of the Office or the Department of 
                Homeland Security, and any grantee or contractor of the 
                Office, who suspects any individual of being involved 
                in any activity described in subparagraph (A) shall 
                report such individual to Federal or State prosecutors 
                for criminal investigation and prosecution.
                    (C) Disciplinary action.--Any officer or employee 
                of the Office or the Department of Homeland Security, 
                and any grantee or contractor of the Office, who 
                suspects an attorney of being involved in any activity 
                described in subparagraph (A) shall report the 
                individual to the State bar association of which the 
                attorney is a member, or to other appropriate 
                disciplinary authorities, for appropriate disciplinary 
                action that may include private or public admonition or 
                censure, suspension, or disbarment of the attorney from 
                the practice of law.
            (5) Grants and contracts.--Subject to the availability of 
        appropriations, the Director may make grants to, and enter into 
        contracts with, voluntary agencies to carry out section 462 of 
        the Homeland Security Act of 2002 (6 U.S.C. 279) or to carry 
        out this section.
            (6) Reimbursement of state expenses.--Subject to the 
        availability of appropriations, the Director may reimburse 
        States for any expenses they incur in providing assistance to 
        unaccompanied alien children who are served pursuant to section 
        462 of the Homeland Security Act of 2002 (6 U.S.C. 279) or this 
        Act.
    (b) Confidentiality.--All information obtained by the Office 
relating to the immigration status of a person described in 
subparagraphs (A), (B), and (C) of subsection (a)(1) shall remain 
confidential and may be used only for the purposes of determining such 
person's qualifications under subsection (a)(1).
    (c) Required Disclosure.--The Secretary of Health and Human 
Services or the Secretary of Homeland Security shall provide the 
information furnished under this section, and any other information 
derived from such furnished information, to--
            (1) a duly recognized law enforcement entity in connection 
        with an investigation or prosecution of an offense described in 
        paragraph (2) or (3) of section 212(a) of the Immigration and 
        Nationality Act (8 U.S.C. 1182(a)), when such information is 
        requested in writing by such entity; or
            (2) an official coroner for purposes of affirmatively 
        identifying a deceased individual (whether or not such 
        individual is deceased as a result of a crime).
    (d) Penalty.--Whoever knowingly uses, publishes, or permits 
information to be examined in violation of this section shall be fined 
not more than $10,000.

SEC. 103. APPROPRIATE CONDITIONS FOR DETENTION OF UNACCOMPANIED ALIEN 
              CHILDREN.

    (a) Standards for Placement.--
            (1) Prohibition of detention in certain facilities.--Except 
        as provided in paragraph (2), an unaccompanied alien child 
        shall not be placed in an adult detention facility or a 
        facility housing delinquent children.
            (2) Detention in appropriate facilities.--An unaccompanied 
        alien child who has exhibited a violent or criminal behavior 
        that endangers others may be detained in conditions appropriate 
        to the behavior in a facility appropriate for delinquent 
        children.
            (3) State licensure.--In the case of a placement of a child 
        with an entity described in section 102(a)(1)(E), the entity 
        must be licensed by an appropriate State agency to provide 
        residential, group, child welfare, or foster care services for 
        dependent children.
            (4) Conditions of detention.--
                    (A) In general.--The Director and the Secretary of 
                Homeland Security shall promulgate regulations 
                incorporating standards for conditions of detention in 
                such placements that provide for--
                            (i) educational services appropriate to the 
                        child;
                            (ii) medical care;
                            (iii) mental health care, including 
                        treatment of trauma, physical and sexual 
                        violence, or abuse;
                            (iv) access to telephones;
                            (v) access to legal services;
                            (vi) access to interpreters;
                            (vii) supervision by professionals trained 
                        in the care of children, taking into account 
                        the special cultural, linguistic, and 
                        experiential needs of children in immigration 
                        proceedings;
                            (viii) recreational programs and 
                        activities;
                            (ix) spiritual and religious needs; and
                            (x) dietary needs.
                    (B) Notification of children.--Regulations 
                promulgated in accordance with subparagraph (A) shall 
                provide that all children are notified orally and in 
                writing of such standards in the child's native 
                language.
    (b) Prohibition of Certain Practices.--The Director and the 
Secretary shall develop procedures prohibiting the unreasonable use 
of--
            (1) shackling, handcuffing, or other restraints on 
        children;
            (2) solitary confinement; or
            (3) pat or strip searches.
    (c) Rule of Construction.--Nothing in this section shall be 
construed to supersede procedures favoring release of children to 
appropriate adults or entities or placement in the least secure setting 
possible, as defined in the Stipulated Settlement Agreement under 
Flores v. Reno.

SEC. 104. REPATRIATED UNACCOMPANIED ALIEN CHILDREN.

    (a) Country Conditions.--
            (1) Sense of congress.--It is the sense of Congress that, 
        to the extent consistent with the treaties and other 
        international agreements to which the United States is a party, 
        and to the extent practicable, the United States Government 
        should undertake efforts to ensure that it does not repatriate 
        children in its custody into settings that would threaten the 
        life and safety of such children.
            (2) Assessment of conditions.--
                    (A) In general.--The Secretary of State shall 
                include each year in the State Department Country 
                Report on Human Rights, an assessment of the degree to 
                which each country protects children from smugglers and 
                traffickers.
                    (B) Factors for assessment.--The Directorate shall 
                consult the State Department Country Report on Human 
                Rights and the Victims of Trafficking and Violence 
                Protection Act of 2000: Trafficking in Persons Report 
                in assessing whether to repatriate an unaccompanied 
                alien child to a particular country.
    (b) Report on Repatriation of Unaccompanied Alien Children.--
            (1) In general.--Not later than 18 months after the date of 
        enactment of this Act, and annually thereafter, the Secretary 
        of Homeland Security shall submit a report to the Committees on 
        the Judiciary of the House of Representatives and the Senate on 
        efforts to repatriate unaccompanied alien children.
            (2) Contents.--The report submitted under paragraph (1) 
        shall include, at a minimum, the following information:
                    (A) The number of unaccompanied alien children 
                ordered removed and the number of such children 
                actually removed from the United States.
                    (B) A description of the type of immigration relief 
                sought and denied to such children.
                    (C) A statement of the nationalities, ages, and 
                gender of such children.
                    (D) A description of the procedures used to effect 
                the removal of such children from the United States.
                    (E) A description of steps taken to ensure that 
                such children were safely and humanely repatriated to 
                their country of origin.
                    (F) Any information gathered in assessments of 
                country and local conditions pursuant to subsection 
                (a)(2).

SEC. 105. ESTABLISHING THE AGE OF AN UNACCOMPANIED ALIEN CHILD.

    (a) In General.--The Director shall develop procedures to make a 
prompt determination of the age of an alien in the custody of the 
Department of Homeland Security or the Office, when the age of the 
alien is at issue. Such procedures shall permit the presentation of 
multiple forms of evidence, including testimony of the child, to 
determine the age of the unaccompanied alien for purposes of placement, 
custody, parole, and detention. Such procedures shall allow the appeal 
of a determination to an immigration judge. The Secretary of Homeland 
Security shall permit the Office to have reasonable access to aliens in 
the custody of the Secretary so as to ensure a prompt determination of 
the age of such alien.
    (b) Prohibition on Sole Means of Determining Age.--Neither 
radiographs nor the attestation of an alien shall be used as the sole 
means of determining age for the purposes of determining an alien's 
eligibility for treatment under section 462 of the Homeland Security 
Act of 2002 (6 U.S.C. 279) or this Act.
    (c) Rule of Construction.--Nothing in this section shall be 
construed to place the burden of proof in determining the age of an 
alien on the government.

SEC. 106. EFFECTIVE DATE.

    This title shall take effect 90 days after the date of enactment of 
this Act.

TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO GUARDIANS AD LITEM 
                              AND COUNSEL

SEC. 201. GUARDIANS AD LITEM.

    (a) Establishment of Guardian Ad Litem Program.--
            (1) Appointment.--The Director may, in the Director's 
        discretion, appoint a guardian ad litem who meets the 
        qualifications described in paragraph (2) for an unaccompanied 
        alien child. The Director is encouraged, wherever practicable, 
        to contract with a voluntary agency for the selection of an 
        individual to be appointed as a guardian ad litem under this 
        paragraph.
            (2) Qualifications of guardian ad litem.--
                    (A) In general.--No person shall serve as a 
                guardian ad litem unless such person--
                            (i) is a child welfare professional or 
                        other individual who has received training in 
                        child welfare matters; and
                            (ii) possesses special training on the 
                        nature of problems encountered by unaccompanied 
                        alien children.
                    (B) Prohibition.--A guardian ad litem shall not be 
                an employee of the Directorate, the Office, or the 
                Executive Office for Immigration Review.
            (3) Duties.--The guardian ad litem shall--
                    (A) conduct interviews with the child in a manner 
                that is appropriate, taking into account the child's 
                age;
                    (B) investigate the facts and circumstances 
                relevant to such child's presence in the United States, 
                including facts and circumstances arising in the 
                country of the child's nationality or last habitual 
                residence and facts and circumstances arising 
                subsequent to the child's departure from such country;
                    (C) work with counsel to identify the child's 
                eligibility for relief from removal or voluntary 
                departure by sharing with counsel information collected 
                under subparagraph (B);
                    (D) develop recommendations on issues relative to 
                the child's custody, detention, release, and 
                repatriation;
                    (E) take reasonable steps to ensure that the best 
                interests of the child are promoted while the child 
                participates in, or is subject to, proceedings or 
                matters under the Immigration and Nationality Act (8 
                U.S.C. 1101 et seq.);
                    (F) take reasonable steps to ensure that the child 
                understands the nature of the legal proceedings or 
                matters and determinations made by the court, and 
                ensure that all information is conveyed in an age-
                appropriate manner; and
                    (G) report factual findings relating to--
                            (i) information gathered pursuant to 
                        subparagraph (B);
                            (ii) the care and placement of the child 
                        during the pendency of the proceedings or 
                        matters; and
                            (iii) any other information gathered 
                        pursuant to subparagraph (D).
            (4) Termination of appointment.--The guardian ad litem 
        shall carry out the duties described in paragraph (3) until--
                    (A) those duties are completed;
                    (B) the child departs the United States;
                    (C) the child is granted permanent resident status 
                in the United States;
                    (D) the child attains the age of 18; or
                    (E) the child is placed in the custody of a parent 
                or legal guardian;
        whichever occurs first.
            (5) Powers.--The guardian ad litem--
                    (A) shall have reasonable access to the child, 
                including access while such child is being held in 
                detention or in the care of a foster family;
                    (B) shall be permitted to review all records and 
                information relating to such proceedings that are not 
                deemed privileged or classified;
                    (C) may seek independent evaluations of the child;
                    (D) shall be notified in advance of all hearings or 
                interviews involving the child that are held in 
                connection with proceedings or matters under the 
                Immigration and Nationality Act (8 U.S.C. 1101 et 
                seq.), and shall be given a reasonable opportunity to 
                be present at such hearings or interviews;
                    (E) shall be permitted to consult with the child 
                during any hearing or interview involving such child; 
                and
                    (F) shall be provided at least 24 hours advance 
                notice of a transfer of that child to a different 
                placement, absent compelling and unusual circumstances 
                warranting the transfer of such child prior to 
                notification.
    (b) Training.--The Director shall provide professional training for 
all persons serving as guardians ad litem under this section in the--
            (1) circumstances and conditions that unaccompanied alien 
        children face; and
            (2) various immigration benefits for which such alien child 
        might be eligible.
    (c) Pilot Program.--
            (1) In general.--Not later than 180 days after the date of 
        enactment of this Act, the Director shall establish and begin 
        to carry out a pilot program to test the implementation of 
        subsection (a).
            (2) Purpose.--The purpose of the pilot program established 
        pursuant to paragraph (1) is to--
                    (A) study and assess the benefits of providing 
                guardians ad litem to assist unaccompanied alien 
                children involved in immigration proceedings or 
                matters;
                    (B) assess the most efficient and cost-effective 
                means of implementing the guardian ad litem provisions 
                in this section; and
                    (C) assess the feasibility of implementing such 
                provisions on a nationwide basis for all unaccompanied 
                alien children in the care of the Office.
            (3) Scope of program.--
                    (A) Selection of site.--The Director shall select 3 
                sites in which to operate the pilot program established 
                pursuant to paragraph (1).
                    (B) Number of children.--To the greatest extent 
                possible, each site selected under subparagraph (A) 
                should have at least 25 children held in immigration 
                custody at any given time.
            (4) Report to congress.--Not later than 1 year after the 
        date on which the first pilot program is established pursuant 
        to paragraph (1), the Director shall report to the Committees 
        on the Judiciary of the Senate and the House of Representatives 
        on subparagraphs (A) through (C) of paragraph (2).

SEC. 202. COUNSEL.

    (a) Access to Counsel.--
            (1) In general.--The Director shall ensure that all 
        unaccompanied alien children in the custody of the Office, or 
        in the custody of the Directorate, who are not described in 
        section 101(a)(2) shall have competent counsel to represent 
        them in immigration proceedings or matters.
            (2) Pro bono representation.--To the maximum extent 
        practicable, the Director shall utilize the services of 
        competent pro bono counsel who agree to provide representation 
        to such children without charge. To the maximum extent 
        practicable, the Director shall ensure that placements made 
        under subparagraphs (D), (E), and (F) of section 102(a)(1) are 
        in cities where there is a demonstrated capacity for competent 
        pro bono representation.
            (3) Development of necessary infrastructures and systems.--
        In ensuring that legal representation is provided to such 
        children, the Director shall develop the necessary mechanisms 
        to identify entities available to provide such legal assistance 
        and representation and to recruit such entities.
            (4) Contracting and grant making authority.--
                    (A) In general.--The Director shall enter into 
                contracts with or make grants to nonprofit agencies 
                with relevant expertise in the delivery of immigration-
                related legal services to children in order to carry 
                out the responsibilities of this Act, including but not 
                limited to such activities as providing legal 
                orientation, screening cases for referral, recruiting, 
                training, and overseeing pro bono attorneys. Nonprofit 
                agencies may enter into subcontracts with or make 
                grants to private voluntary agencies with relevant 
                expertise in the delivery of immigration-related legal 
                services to children in order to carry out this 
                subsection.
                    (B) Considerations regarding grants and 
                contracts.--In making grants and entering into 
                contracts with agencies in accordance with subparagraph 
                (A), the Director shall take into consideration whether 
                the agencies in question are capable of properly 
                administering the services covered by such grants or 
                contracts without an undue conflict of interest.
            (5) Model guidelines on legal representation of children.--
                    (A) Development of guidelines.--The Executive 
                Office for Immigration Review, in consultation with 
                voluntary agencies and national experts, shall develop 
                model guidelines for the legal representation of alien 
                children in immigration proceedings based on the 
                children's asylum guidelines, the American Bar 
                Association Model Rules of Professional Conduct, and 
                other relevant domestic or international sources.
                    (B) Purpose of guidelines.--The guidelines 
                developed in accordance with subparagraph (A) shall be 
                designed to help protect a child from any individual 
                suspected of involvement in any criminal, harmful, or 
                exploitative activity associated with the smuggling or 
                trafficking of children, while ensuring the fairness of 
                the removal proceeding in which the child is involved.
                    (C) Implementation.--The Executive Office for 
                Immigration Review shall adopt the guidelines developed 
                in accordance with subparagraph (A) and submit them for 
                adoption by national, State, and local bar 
                associations.
    (b) Duties.--Counsel shall--
            (1) represent the unaccompanied alien child in all 
        proceedings and matters relating to the immigration status of 
        the child or other actions involving the Directorate;
            (2) appear in person for all individual merits hearings 
        before the Executive Office for Immigration Review and 
        interviews involving the Directorate; and
            (3) owe the same duties of undivided loyalty, 
        confidentiality, and competent representation to the child as 
        is due an adult client.
    (c) Access to Child.--
            (1) In general.--Counsel shall have reasonable access to 
        the unaccompanied alien child, including access while the child 
        is being held in detention, in the care of a foster family, or 
        in any other setting that has been determined by the Office.
            (2) Restriction on transfers.--Absent compelling and 
        unusual circumstances, no child who is represented by counsel 
        shall be transferred from the child's placement to another 
        placement unless advance notice of at least 24 hours is made to 
        counsel of such transfer.
    (d) Notice to Counsel During Immigration Proceedings.--
            (1) In general.--Except when otherwise required in an 
        emergency situation involving the physical safety of the child, 
        counsel shall be given prompt and adequate notice of all 
        immigration matters affecting or involving an unaccompanied 
        alien child, including adjudications, proceedings, and 
        processing, before such actions are taken.
            (2) Opportunity to consult with counsel.--An unaccompanied 
        alien child in the custody of the Office may not give consent 
        to any immigration action, including consenting to voluntary 
        departure, unless first afforded an opportunity to consult with 
        counsel.
    (e) Access to Recommendations of Guardian Ad Litem.--Counsel shall 
be afforded an opportunity to review the recommendation by the guardian 
ad litem affecting or involving a client who is an unaccompanied alien 
child.

SEC. 203. EFFECTIVE DATE; APPLICABILITY.

    (a) Effective Date.--This title shall take effect 180 days after 
the date of enactment of this Act.
    (b) Applicability.--The provisions of this title shall apply to all 
unaccompanied alien children in Federal custody on, before, or after 
the effective date of this title.

  TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN 
                                CHILDREN

SEC. 301. SPECIAL IMMIGRANT JUVENILE VISA.

    (a) J Visa.--Section 101(a)(27)(J) of the Immigration and 
Nationality Act (8 U.S.C. 1101(a)(27)(J)) is amended to read as 
follows:
            ``(J) an immigrant who is 18 years of age and under on the 
        date of application who is present in the United States--
                    ``(i) who by a court order, which shall be binding 
                on the Secretary of Homeland Security for purposes of 
                adjudications under this subparagraph, was declared 
                dependent on a juvenile court located in the United 
                States or whom such a court has legally committed to, 
                or placed under the custody of, a department or agency 
                of a State, or an individual or entity appointed by a 
                State or juvenile court located in the United States, 
                due to abuse, neglect, or abandonment, or a similar 
                basis found under State law;
                    ``(ii) for whom it has been determined in 
                administrative or judicial proceedings that it would 
                not be in the alien's best interest to be returned to 
                the alien's or parent's previous country of nationality 
                or country of last habitual residence; and
                    ``(iii) with respect to a child in Federal custody, 
                for whom the Office of Refugee Resettlement of the 
                Department of Health and Human Services has certified 
                to the Director of the Bureau of Citizenship and 
                Immigration Services that the classification of an 
                alien as a special immigrant under this subparagraph 
                has not been made solely to provide an immigration 
                benefit to that alien;
        except that no natural parent or prior adoptive parent of any 
        alien provided special immigrant status under this subparagraph 
        shall thereafter, by virtue of such parentage, be accorded any 
        right, privilege, or status under this Act;''.
    (b) Adjustment of Status.--Section 245(h)(2)(A) of the Immigration 
and Nationality Act (8 U.S.C. 1255(h)(2)(A)) is amended to read as 
follows:
                    ``(A) paragraphs (4), (5)(A), (6)(A), and (7) of 
                section 212(a) shall not apply; and''.
    (c) Eligibility for Assistance.--A child who has been granted 
relief under section 101(a)(27)(J) of the Immigration and Nationality 
Act (8 U.S.C. 1101(a)(27)(J)), shall be eligible for all funds made 
available under section 412(d) of that Act (8 U.S.C. 1522(d)) until 
such time as the child attains the age designated in section 
412(d)(2)(B) of that Act (8 U.S.C. 1522(d)(2)(B)), or until the child 
is placed in a permanent adoptive home, whichever occurs first.
    (d) Transition Rule.--Notwithstanding any other provision of law, 
any child described in section 101(a)(27)(J) of the Immigration and 
Nationality Act (8 U.S.C. 1101(a)(27)(J)) who filed an application for 
a visa before the date of enactment of this Act and who was 19, 20, or 
21 years of age on the date such application was filed shall not be 
denied a visa after the date of enactment of this Act because of such 
alien's age.

SEC. 302. TRAINING FOR OFFICIALS AND CERTAIN PRIVATE PARTIES WHO COME 
              INTO CONTACT WITH UNACCOMPANIED ALIEN CHILDREN.

    (a) Training of State and Local Officials and Certain Private 
Parties.--The Secretary of Health and Human Services, acting jointly 
with the Secretary, shall provide appropriate training to be available 
to State and county officials, child welfare specialists, teachers, 
public counsel, and juvenile judges who come into contact with 
unaccompanied alien children. The training shall provide education on 
the processes pertaining to unaccompanied alien children with pending 
immigration status and on the forms of relief potentially available. 
The Director shall be responsible for establishing a core curriculum 
that can be incorporated into education, training, or orientation 
modules or formats that are currently used by these professionals.
    (b) Training of Directorate Personnel.--The Secretary, acting 
jointly with the Secretary of Health and Human Services, shall provide 
specialized training to all personnel of the Directorate who come into 
contact with unaccompanied alien children. In the case of Border Patrol 
agents and immigration inspectors, such training shall include specific 
training on identifying children at the United States borders or at 
United States ports of entry who have been victimized by smugglers or 
traffickers, and children for whom asylum or special immigrant relief 
may be appropriate, including children described in section 101(a)(2).

SEC. 303. REPORT.

    Not later than 1 year after the date of enactment of this Act and 
annually thereafter, the Secretary of Health and Human Services shall 
submit a report for the previous fiscal year to the Committees on the 
Judiciary of the House of Representatives and the Senate that 
contains--
            (1) data related to the implementation of section 462 of 
        the Homeland Security Act (6 U.S.C. 279);
            (2) data regarding the care and placement of children in 
        accordance with this Act;
            (3) data regarding the provision of guardian ad litem and 
        counsel services in accordance with this Act; and
            (4) any other information that the Director or the 
        Secretary of Health and Human Services determines to be 
        appropriate.

SEC. 304. EFFECTIVE DATE.

    The amendment made by section 301 shall apply to all aliens who 
were in the United States before, on, or after the date of enactment of 
this Act.

             TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS

SEC. 401. GUIDELINES FOR CHILDREN'S ASYLUM CLAIMS.

    (a) Sense of Congress.--Congress commends the Immigration and 
Naturalization Service for its issuance of its ``Guidelines for 
Children's Asylum Claims'', dated December 1998, and encourages and 
supports the implementation of such guidelines by the Immigration and 
Naturalization Service (and its successor entities) in an effort to 
facilitate the handling of children's asylum claims. Congress calls 
upon the Executive Office for Immigration Review of the Department of 
Justice to adopt the ``Guidelines for Children's Asylum Claims'' in its 
handling of children's asylum claims before immigration judges and the 
Board of Immigration Appeals.
    (b) Training.--The Secretary shall provide periodic comprehensive 
training under the ``Guidelines for Children's Asylum Claims'' to 
asylum officers, immigration judges, members of the Board of 
Immigration Appeals, and immigration officers who have contact with 
children in order to familiarize and sensitize such officers to the 
needs of children asylum seekers. Voluntary agencies shall be allowed 
to assist in such training.

SEC. 402. UNACCOMPANIED REFUGEE CHILDREN.

    (a) Identifying Unaccompanied Refugee Children.--Section 207(e) of 
the Immigration and Nationality Act (8 U.S.C. 1157(e)) is amended--
            (1) by redesignating paragraphs (3), (4), (5), (6), and (7) 
        as paragraphs (4), (5), (6), (7), and (8), respectively; and
            (2) by inserting after paragraph (2) the following:
            ``(3) An analysis of the worldwide situation faced by 
        unaccompanied refugee children, by region, which shall include 
        an assessment of--
                    ``(A) the number of unaccompanied refugee children, 
                by region;
                    ``(B) the capacity of the Department of State to 
                identify such refugees;
                    ``(C) the capacity of the international community 
                to care for and protect such refugees;
                    ``(D) the capacity of the voluntary agency 
                community to resettle such refugees in the United 
                States;
                    ``(E) the degree to which the United States plans 
                to resettle such refugees in the United States in the 
                coming fiscal year; and
                    ``(F) the fate that will befall such unaccompanied 
                refugee children for whom resettlement in the United 
                States is not possible.''.
    (b) Training on the Needs of Unaccompanied Refugee Children.--
Section 207(f)(2) of the Immigration and Nationality Act (8 U.S.C. 
1157(f)(2)) is amended by--
            (1) striking ``and'' after ``countries,''; and
            (2) inserting before the period at the end the following: 
        ``, and instruction on the needs of unaccompanied refugee 
        children''.

SEC. 403. EXCEPTIONS FOR UNACCOMPANIED ALIEN CHILDREN IN ASYLUM AND 
              REFUGEE-LIKE CIRCUMSTANCES.

    (a) Placement in Removal Proceedings.--Any unaccompanied alien 
child apprehended by the Directorate, except for an unaccompanied alien 
child subject to exceptions under paragraph (1)(A) or (2) of section 
(101)(a) of this Act, shall be placed in removal proceedings under 
section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a).
    (b) Exception From Time Limit for Filing Asylum Application.--
Section 208(a)(2) of the Immigration and Nationality Act (8 U.S.C. 
1158(a)(2)) is amended by adding at the end the following:
                    ``(E) Applicability.--Subparagraphs (A) and (B) 
                shall not apply to an unaccompanied alien child as 
                defined in section 101(a)(51).''.

                TITLE V--AUTHORIZATION OF APPROPRIATIONS

SEC. 501. AUTHORIZATION OF APPROPRIATIONS.

    (a) In General.--There are authorized to be appropriated to the 
Department of Homeland Security, the Department of Justice, and the 
Department of Health and Human Services, such sums as may be necessary 
to carry out--
            (1) section 462 of the Homeland Security Act of 2002 (6 
        U.S.C. 279); and
            (2) this Act.
    (b) Availability of Funds.--Amounts appropriated pursuant to 
subsection (a) are authorized to remain available until expended.

       TITLE VI--AMENDMENTS TO THE HOMELAND SECURITY ACT OF 2002

SEC. 601. ADDITIONAL RESPONSIBILITIES AND POWERS OF THE OFFICE OF 
              REFUGEE RESETTLEMENT WITH RESPECT TO UNACCOMPANIED ALIEN 
              CHILDREN.

    (a) Additional Responsibilities of the Director.--Section 462(b)(1) 
of the Homeland Security Act of 2002 (6 U.S.C. 279(b)(1)) is amended--
            (1) in subparagraph (K), by striking ``and'' at the end;
            (2) in subparagraph (L), by striking the period at the end 
        and inserting ``, including regular follow-up visits to such 
        facilities, placements, and other entities, to assess the 
        continued suitability of such placements; and''; and
            (3) by adding at the end the following:
            ``(M) ensuring minimum standards of care for all 
        unaccompanied alien children--
                    ``(i) for whom detention is necessary; and
                    ``(ii) who reside in settings that are alternative 
                to detention.''.
    (b) Additional Powers of the Director.--Section 462(b) of the 
Homeland Security Act of 2002 (6 U.S.C. 279(b)) is amended by adding at 
the end the following:
            ``(4) Powers.--In carrying out the duties under paragraph 
        (3), the Director shall have the power to--
                    ``(A) contract with service providers to perform 
                the services described in sections 102, 103, 201, and 
                202 of the Unaccompanied Alien Child Protection Act of 
                2004; and
                    ``(B) compel compliance with the terms and 
                conditions set forth in section 103 of the 
                Unaccompanied Alien Child Protection Act of 2004, 
                including the power to--
                            ``(i) declare providers to be in breach and 
                        seek damages for noncompliance;
                            ``(ii) terminate the contracts of providers 
                        that are not in compliance with such 
                        conditions; and
                            ``(iii) reassign any unaccompanied alien 
                        child to a similar facility that is in 
                        compliance with such section.''.

SEC. 602. TECHNICAL CORRECTIONS.

    Section 462(b) of the Homeland Security Act of 2002 (6 U.S.C. 
279(b)), as amended by section 601, is amended--
            (1) in paragraph (3), by striking ``paragraph (1)(G)'' and 
        inserting ``paragraph (1)''; and
            (2) by adding at the end the following:
            ``(5) Statutory construction.--Nothing in paragraph (2)(B) 
        may be construed to require that a bond be posted for 
        unaccompanied alien children who are released to a qualified 
        sponsor.''.

SEC. 603. EFFECTIVE DATE.

    The amendments made by this title shall take effect as if enacted 
as part of the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.).

            Passed the Senate October 11, 2004.

            Attest:

                                                             Secretary.
108th CONGRESS

  2d Session

                                S. 1129

_______________________________________________________________________

                                 AN ACT

To provide for the protection of unaccompanied alien children, and for 
                            other purposes.