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

                                                       Calendar No. 541
108th CONGRESS
  2d Session
                                S. 1129

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 22, 2003

    Mrs. Feinstein (for herself, Mr. Brownback, Mr. Voinovich, Ms. 
 Cantwell, Mr. DeWine, Mr. Lautenberg, Mr. Feingold, Mr. Kennedy, Ms. 
   Landrieu, Mr. Leahy, Mrs. Clinton, Mr. Specter, Mr. Edwards, Mr. 
Bingaman, Mr. Kerry, Mrs. Murray, Mr. Durbin, Ms. Collins, Mr. Johnson, 
  Mr. Kohl, Mr. Sarbanes, Mr. Schumer, Mr. Chafee, Ms. Mikulski, Mr. 
    Graham of Florida, Mr. Breaux, and Mr. Corzine) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

                              June 3, 2004

 Reported by Mr. Hatch, with an amendment in the nature of a substitute
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
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,

<DELETED>SECTION 1. SHORT TITLE; TABLE OF CONTENTS.</DELETED>

<DELETED>    (a) Short Title.--This Act may be cited as the 
``Unaccompanied Alien Child Protection Act of 2003''.</DELETED>
<DELETED>    (b) Table of Contents.--The table of contents for this Act 
is as follows:</DELETED>

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

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

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

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

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

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

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

<DELETED>SEC. 2. DEFINITIONS.</DELETED>

<DELETED>    (a) In General.--In this Act:</DELETED>
        <DELETED>    (1) Competent.--The term ``competent'', in 
        reference to counsel, means an attorney who complies with the 
        duties set forth in this Act and--</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (B) is not under any order of any court 
                suspending, enjoining, restraining, disbarring, or 
                otherwise restricting the attorney in the practice of 
                law; and</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (2) Director.--The term ``Director'' means the 
        Director of the Office.</DELETED>
        <DELETED>    (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).</DELETED>
        <DELETED>    (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).</DELETED>
        <DELETED>    (5) Secretary.--The term ``Secretary'' means the 
        Secretary of Homeland Security.</DELETED>
        <DELETED>    (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)).</DELETED>
        <DELETED>    (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.</DELETED>
<DELETED>    (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:</DELETED>
<DELETED>    ``(51) The term `unaccompanied alien child' means a child 
who--</DELETED>
        <DELETED>    ``(A) has no lawful immigration status in the 
        United States;</DELETED>
        <DELETED>    ``(B) has not attained the age of 18; 
        and</DELETED>
        <DELETED>    ``(C) with respect to whom--</DELETED>
                <DELETED>    ``(i) there is no parent or legal guardian 
                in the United States; or</DELETED>
                <DELETED>    ``(ii) no parent or legal guardian in the 
                United States is able to provide care and physical 
                custody.</DELETED>
<DELETED>    ``(52) The term `unaccompanied refugee children' means 
persons described in paragraph (42) who--</DELETED>
        <DELETED>    ``(A) have not attained the age of 18; 
        and</DELETED>
        <DELETED>    ``(B) with respect to whom there are no parents or 
        legal guardians available to provide care and physical 
        custody.''.</DELETED>

     <DELETED>TITLE I--CUSTODY, RELEASE, FAMILY REUNIFICATION, AND 
                          DETENTION</DELETED>

<DELETED>SEC. 101. PROCEDURES WHEN ENCOUNTERING UNACCOMPANIED ALIEN 
              CHILDREN.</DELETED>

<DELETED>    (a) Unaccompanied Children Found Along the United States 
Border or at United States Ports of Entry.--</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (B) return such child to the child's 
                country of nationality or country of last habitual 
                residence.</DELETED>
        <DELETED>    (2) Special rule for contiguous countries.--
        </DELETED>
                <DELETED>    (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), unless a determination 
                is made on a case-by-case basis that--</DELETED>
                        <DELETED>    (i) such child is a national or 
                        habitual resident of a country described in 
                        subparagraph (A);</DELETED>
                        <DELETED>    (ii) such child has a fear of 
                        returning to the child's country of nationality 
                        or country of last habitual residence owing to 
                        a fear of persecution;</DELETED>
                        <DELETED>    (iii) the return of such child to 
                        the child's country of nationality or country 
                        of last habitual residence would endanger the 
                        life or safety of such child; or</DELETED>
                        <DELETED>    (iv) the child cannot make an 
                        independent decision to withdraw the child's 
                        application for admission due to age or other 
                        lack of capacity.</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (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).</DELETED>
<DELETED>    (b) Care and Custody of Unaccompanied Alien Children Found 
in the Interior of the United States.--</DELETED>
        <DELETED>    (1) Establishment of jurisdiction.--</DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (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--</DELETED>
                        <DELETED>    (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</DELETED>
                        <DELETED>    (ii) has been convicted of any 
                        such felony.</DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (2) Notification.--</DELETED>
                <DELETED>    (A) In general.--The Secretary shall 
                promptly notify the Office upon--</DELETED>
                        <DELETED>    (i) the apprehension of an 
                        unaccompanied alien child;</DELETED>
                        <DELETED>    (ii) the discovery that an alien 
                        in the custody of the Directorate is an 
                        unaccompanied alien child;</DELETED>
                        <DELETED>    (iii) any claim by an alien in the 
                        custody of the Directorate that such alien is 
                        under the age of 18; or</DELETED>
                        <DELETED>    (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.</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (3) Transfer of unaccompanied alien children.--
        </DELETED>
                <DELETED>    (A) Transfer to the office.--The care and 
                custody of an unaccompanied alien child shall be 
                transferred to the Office--</DELETED>
                        <DELETED>    (i) in the case of a child not 
                        described in subparagraph (B) or (C) of 
                        paragraph (1), not later than 72 hours after 
                        the apprehension of such child; or</DELETED>
                        <DELETED>    (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.</DELETED>
                <DELETED>    (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 promptly make arrangements to 
                transfer the care and custody of such child to the 
                Directorate.</DELETED>
<DELETED>    (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 the age 
requirements for treatment under this Act shall be made by the Director 
in accordance with section 105.</DELETED>

<DELETED>SEC. 102. FAMILY REUNIFICATION FOR UNACCOMPANIED ALIEN 
              CHILDREN WITH RELATIVES IN THE UNITED STATES.</DELETED>

<DELETED>    (a) Placement Authority.--</DELETED>
        <DELETED>    (1) Order of preference.--Subject to the 
        discretion of the Director under paragraph (4) and section 
        103(a)(2), 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:</DELETED>
                <DELETED>    (A) A parent who seeks to establish 
                custody, as described in paragraph (3)(A).</DELETED>
                <DELETED>    (B) A legal guardian who seeks to 
                establish custody, as described in paragraph 
                (3)(A).</DELETED>
                <DELETED>    (C) An adult relative.</DELETED>
                <DELETED>    (D) An entity designated by the parent or 
                legal guardian that is capable and willing to care for 
                the well-being of the child.</DELETED>
                <DELETED>    (E) A State-licensed juvenile shelter, 
                group home, or foster care program willing to accept 
                physical custody of the child.</DELETED>
                <DELETED>    (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 
                qualification of the adult or entity shall be decided 
                by the Office.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (3) Right of parent or legal guardian to custody 
        of unaccompanied alien child.--</DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (B) Rule of construction.--Nothing in this 
                Act shall be construed to--</DELETED>
                        <DELETED>    (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</DELETED>
                        <DELETED>    (ii) limit any right or remedy 
                        under such international agreement.</DELETED>
        <DELETED>    (4) Protection from smugglers and traffickers.--
        </DELETED>
                <DELETED>    (A) Policies and programs.--</DELETED>
                        <DELETED>    (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.</DELETED>
                        <DELETED>    (ii) Witness protection programs 
                        included.--The programs established pursuant to 
                        clause (i) may include witness protection 
                        programs.</DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
<DELETED>    (b) Confidentiality.--All information obtained by the 
Office relating to the immigration status of a person described in 
subsection (a) shall remain confidential and may be used only for the 
purposes of determining such person's qualifications under subsection 
(a)(1).</DELETED>

<DELETED>SEC. 103. APPROPRIATE CONDITIONS FOR DETENTION OF 
              UNACCOMPANIED ALIEN CHILDREN.</DELETED>

<DELETED>    (a) Standards for Placement.--</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (4) Conditions of detention.--</DELETED>
                <DELETED>    (A) In general.--The Director shall 
                promulgate regulations incorporating standards for 
                conditions of detention in such placements that provide 
                for--</DELETED>
                        <DELETED>    (i) educational services 
                        appropriate to the child;</DELETED>
                        <DELETED>    (ii) medical care;</DELETED>
                        <DELETED>    (iii) mental health care, 
                        including treatment of trauma, physical and 
                        sexual violence, or abuse;</DELETED>
                        <DELETED>    (iv) access to 
                        telephones;</DELETED>
                        <DELETED>    (v) access to legal 
                        services;</DELETED>
                        <DELETED>    (vi) access to 
                        interpreters;</DELETED>
                        <DELETED>    (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;</DELETED>
                        <DELETED>    (viii) recreational programs and 
                        activities;</DELETED>
                        <DELETED>    (ix) spiritual and religious 
                        needs; and</DELETED>
                        <DELETED>    (x) dietary needs.</DELETED>
                <DELETED>    (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.</DELETED>
<DELETED>    (b) Prohibition of Certain Practices.--The Director and 
the Secretary shall develop procedures prohibiting the unreasonable use 
of--</DELETED>
        <DELETED>    (1) shackling, handcuffing, or other restraints on 
        children;</DELETED>
        <DELETED>    (2) solitary confinement; or</DELETED>
        <DELETED>    (3) pat or strip searches.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 104. REPATRIATED UNACCOMPANIED ALIEN CHILDREN.</DELETED>

<DELETED>    (a) Country Conditions.--</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (2) Assessment of conditions.--</DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (B) Factors for assessment.--The Office 
                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.</DELETED>
<DELETED>    (b) Report on Repatriation of Unaccompanied Alien 
Children.--</DELETED>
        <DELETED>    (1) In general.--Not later than 18 months after 
        the date of enactment of this Act, and annually thereafter, the 
        Director 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.</DELETED>
        <DELETED>    (2) Contents.--The report submitted under 
        paragraph (1) shall include, at a minimum, the following 
        information:</DELETED>
                <DELETED>    (A) The number of unaccompanied alien 
                children ordered removed and the number of such 
                children actually removed from the United 
                States.</DELETED>
                <DELETED>    (B) A description of the type of 
                immigration relief sought and denied to such 
                children.</DELETED>
                <DELETED>    (C) A statement of the nationalities, 
                ages, and gender of such children.</DELETED>
                <DELETED>    (D) A description of the procedures used 
                to effect the removal of such children from the United 
                States.</DELETED>
                <DELETED>    (E) A description of steps taken to ensure 
                that such children were safely and humanely repatriated 
                to their country of origin.</DELETED>
                <DELETED>    (F) Any information gathered in 
                assessments of country and local conditions pursuant to 
                subsection (a)(2).</DELETED>

<DELETED>SEC. 105. ESTABLISHING THE AGE OF AN UNACCOMPANIED ALIEN 
              CHILD.</DELETED>

<DELETED>    (a) In General.--The Director shall develop procedures to 
determine 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.</DELETED>
<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 106. EFFECTIVE DATE.</DELETED>

<DELETED>    This title shall take effect 90 days after the date of 
enactment of this Act.</DELETED>

<DELETED>TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO GUARDIANS 
                     AD LITEM AND COUNSEL</DELETED>

<DELETED>SEC. 201. GUARDIANS AD LITEM.</DELETED>

<DELETED>    (a) Establishment of Guardian Ad Litem Program.--
</DELETED>
        <DELETED>    (1) Appointment.--The Director may, in the 
        Director's discretion, appoint a guardian ad litem who meets 
        the qualifications described in paragraph (2) for such 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.</DELETED>
        <DELETED>    (2) Qualifications of guardian ad litem.--
        </DELETED>
                <DELETED>    (A) In general.--No person shall serve as 
                a guardian ad litem unless such person--</DELETED>
                        <DELETED>    (i) is a child welfare 
                        professional or other individual who has 
                        received training in child welfare matters; 
                        and</DELETED>
                        <DELETED>    (ii) possesses special training on 
                        the nature of problems encountered by 
                        unaccompanied alien children.</DELETED>
                <DELETED>    (B) Prohibition.--A guardian ad litem 
                shall not be an employee of the Directorate, the 
                Office, or the Executive Office for Immigration 
                Review.</DELETED>
        <DELETED>    (3) Duties.--The guardian ad litem shall--
        </DELETED>
                <DELETED>    (A) conduct interviews with the child in a 
                manner that is appropriate, taking into account the 
                child's age;</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (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);</DELETED>
                <DELETED>    (D) develop recommendations on issues 
                relative to the child's custody, detention, release, 
                and repatriation;</DELETED>
                <DELETED>    (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.);</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (G) report factual findings relating to--
                </DELETED>
                        <DELETED>    (i) information gathered pursuant 
                        to subparagraph (B);</DELETED>
                        <DELETED>    (ii) the care and placement of the 
                        child during the pendency of the proceedings or 
                        matters; and</DELETED>
                        <DELETED>    (iii) any other information 
                        gathered pursuant to subparagraph 
                        (D).</DELETED>
        <DELETED>    (4) Termination of appointment.--The guardian ad 
        litem shall carry out the duties described in paragraph (3) 
        until--</DELETED>
                <DELETED>    (A) those duties are completed;</DELETED>
                <DELETED>    (B) the child departs the United 
                States;</DELETED>
                <DELETED>    (C) the child is granted permanent 
                resident status in the United States;</DELETED>
                <DELETED>    (D) the child attains the age of 18; 
                or</DELETED>
                <DELETED>    (E) the child is placed in the custody of 
                a parent or legal guardian;</DELETED>
        <DELETED>whichever occurs first.</DELETED>
        <DELETED>    (5) Powers.--The guardian ad litem--</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (B) shall be permitted to review all 
                records and information relating to such proceedings 
                that are not deemed privileged or classified;</DELETED>
                <DELETED>    (C) may seek independent evaluations of 
                the child;</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (E) shall be permitted to consult with the 
                child during any hearing or interview involving such 
                child; and</DELETED>
                <DELETED>    (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.</DELETED>
<DELETED>    (b) Training.--The Director shall provide professional 
training for all persons serving as guardians ad litem under this 
section in the--</DELETED>
        <DELETED>    (1) circumstances and conditions that 
        unaccompanied alien children face; and</DELETED>
        <DELETED>    (2) various immigration benefits for which such 
        alien child might be eligible.</DELETED>
<DELETED>    (c) Pilot Program.--</DELETED>
        <DELETED>    (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).</DELETED>
        <DELETED>    (2) Purpose.--The purpose of the pilot program 
        established pursuant to paragraph (1) is to--</DELETED>
                <DELETED>    (A) study and assess the benefits of 
                providing guardians ad litem to assist unaccompanied 
                alien children involved in immigration proceedings or 
                matters;</DELETED>
                <DELETED>    (B) assess the most efficient and cost-
                effective means of implementing the guardian ad litem 
                provisions in this section; and</DELETED>
                <DELETED>    (C) assess the feasibility of implementing 
                such provisions on a nationwide basis for all 
                unaccompanied alien children in the care of the 
                Office.</DELETED>
        <DELETED>    (3) Scope of program.--</DELETED>
                <DELETED>    (A) Selection of site.--The Director shall 
                select 3 sites in which to operate the pilot program 
                established pursuant to paragraph (1).</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (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).</DELETED>

<DELETED>SEC. 202. COUNSEL.</DELETED>

<DELETED>    (a) Access to Counsel.--</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (3) Government-funded legal representation as a 
        last resort.--</DELETED>
                <DELETED>    (A) Appointment of competent counsel.--
                Notwithstanding section 292 of the Immigration and 
                Nationality Act (8 U.S.C. 1362) or any other provision 
                of law, if no competent counsel is available to 
                represent an unaccompanied alien child without charge, 
                the Director shall appoint competent counsel for such 
                child at the expense of the Government.</DELETED>
                <DELETED>    (B) Limitation on attorney fees.--Counsel 
                appointed under subparagraph (A) shall not be 
                compensated at a rate in excess of the rate provided 
                under section 3006A of title 18, United States 
                Code.</DELETED>
                <DELETED>    (C) Availability of funding.--In carrying 
                out this paragraph, the Director may make use of funds 
                derived from any source designated by the Secretary of 
                Health and Human Services from discretionary funds 
                available to the Department of Health and Human 
                Services.</DELETED>
                <DELETED>    (D) Assumption of the cost of government-
                paid counsel.--In the case of a child for whom counsel 
                is appointed under subparagraph (A) who is subsequently 
                placed in the physical custody of a parent or legal 
                guardian, such parent or legal guardian may elect to 
                retain the same counsel to continue representation of 
                the child, at no expense to the Government, beginning 
                on the date that the parent or legal guardian assumes 
                physical custody of the child.</DELETED>
        <DELETED>    (4) 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.</DELETED>
        <DELETED>    (5) Contracting and grant making authority.--
        </DELETED>
                <DELETED>    (A) In general.--Subject to the 
                availability of appropriations, the Director shall 
                enter into contracts with or make grants to national 
                nonprofit agencies with relevant expertise in the 
                delivery of immigration-related legal services to 
                children in order to carry out this subsection. 
                National 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.</DELETED>
                <DELETED>    (B) Ineligibility for grants and 
                contracts.--In making grants and entering into 
                contracts with agencies in accordance with subparagraph 
                (A), the Director shall ensure that no such agency 
                receiving funds under this subsection is a grantee or 
                contractee for more than 1 of the following 
                services:</DELETED>
                        <DELETED>    (i) Services provided under 
                        section 102.</DELETED>
                        <DELETED>    (ii) Services provided under 
                        section 201.</DELETED>
                        <DELETED>    (iii) Services provided under 
                        paragraph (2).</DELETED>
                        <DELETED>    (iv) Services provided under 
                        paragraph (3).</DELETED>
        <DELETED>    (6) Model guidelines on legal representation of 
        children.--</DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (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.</DELETED>
<DELETED>    (b) Duties.--Counsel shall--</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (2) appear in person for all individual merits 
        hearings before the Executive Office for Immigration Review and 
        interviews involving the Directorate; and</DELETED>
        <DELETED>    (3) owe the same duties of undivided loyalty, 
        confidentiality, and competent representation to the child as 
        is due an adult client.</DELETED>
<DELETED>    (c) Access to Child.--</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
<DELETED>    (d) Termination of Appointment.--Counsel appointed under 
subsection (a)(3) shall carry out the duties described in subsection 
(b) until--</DELETED>
        <DELETED>    (1) those duties are completed;</DELETED>
        <DELETED>    (2) the child departs the United States;</DELETED>
        <DELETED>    (3) the child is granted withholding of removal 
        under section 241(b)(3) of the Immigration and Nationality Act 
        (8 U.S.C. 1231(b)(3));</DELETED>
        <DELETED>    (4) the child is granted protection under the 
        Convention Against Torture;</DELETED>
        <DELETED>    (5) the child is granted asylum in the United 
        States under section 208 of the Immigration and Nationality Act 
        (8 U.S.C. 1158);</DELETED>
        <DELETED>    (6) the child is granted permanent resident status 
        in the United States; or</DELETED>
        <DELETED>    (7) the child attains 18 years of age;</DELETED>
        <DELETED>whichever occurs first.</DELETED>
<DELETED>    (e) Notice to Counsel During Immigration Proceedings.--
</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
<DELETED>    (f) 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.</DELETED>

<DELETED>SEC. 203. EFFECTIVE DATE; APPLICABILITY.</DELETED>

<DELETED>    (a) Effective Date.--This title shall take effect 180 days 
after the date of enactment of this Act.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF 
                        ALIEN CHILDREN</DELETED>

<DELETED>SEC. 301. SPECIAL IMMIGRANT JUVENILE VISA.</DELETED>

<DELETED>    (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:</DELETED>
        <DELETED>    ``(J) an immigrant under the age of 21 on the date 
        of application who is present in the United States--</DELETED>
                <DELETED>    ``(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;</DELETED>
                <DELETED>    ``(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</DELETED>
                <DELETED>    ``(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;</DELETED>
        <DELETED>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;''.</DELETED>
<DELETED>    (b) Adjustment of Status.--Section 245(h)(2) of the 
Immigration and Nationality Act (8 U.S.C. 1255(h)(2)) is amended--
</DELETED>
        <DELETED>    (1) by amending subparagraph (A) to read as 
        follows:</DELETED>
                <DELETED>    ``(A) paragraphs (1), (4), (5), (6), and 
                (7)(A) of section 212(a) shall not apply;'';</DELETED>
        <DELETED>    (2) in subparagraph (B), by striking the period 
        and inserting ``; and''; and</DELETED>
        <DELETED>    (3) by adding at the end the following:</DELETED>
                <DELETED>    ``(C) the Secretary of Homeland Security 
                may waive subparagraphs (A) and (B) of paragraph (2) of 
                section 212(a) in the case of an offense which arose as 
                a consequence of the child being 
                unaccompanied.''.</DELETED>
<DELETED>    (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)), as amended by subsection 
(a), 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.</DELETED>

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

<DELETED>    (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.</DELETED>
<DELETED>    (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).</DELETED>

<DELETED>SEC. 303. REPORT.</DELETED>

<DELETED>    Not later than January 31, 2004, 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--</DELETED>
        <DELETED>    (1) data related to the implementation of section 
        462 of the Homeland Security Act (6 U.S.C. 279);</DELETED>
        <DELETED>    (2) data regarding the care and placement of 
        children in accordance with this Act;</DELETED>
        <DELETED>    (3) data regarding the provision of guardian ad 
        litem and counsel services in accordance with this Act; 
        and</DELETED>
        <DELETED>    (4) any other information that the Director or the 
        Secretary of Health and Human Services determines to be 
        appropriate.</DELETED>

<DELETED>SEC. 304. EFFECTIVE DATE.</DELETED>

<DELETED>    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.</DELETED>

    <DELETED>TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS</DELETED>

<DELETED>SEC. 401. GUIDELINES FOR CHILDREN'S ASYLUM CLAIMS.</DELETED>

<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 402. UNACCOMPANIED REFUGEE CHILDREN.</DELETED>

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

<DELETED>SEC. 403. EXCEPTIONS FOR UNACCOMPANIED ALIEN CHILDREN IN 
              ASYLUM AND REFUGEE-LIKE CIRCUMSTANCES.</DELETED>

<DELETED>    (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).</DELETED>
<DELETED>    (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:</DELETED>
                <DELETED>    ``(E) Applicability.--Subparagraphs (A) 
                and (B) shall not apply to an unaccompanied child as 
                defined in section 101(a)(51).''.</DELETED>

      <DELETED>TITLE V--AUTHORIZATION OF APPROPRIATIONS</DELETED>

<DELETED>SEC. 501. AUTHORIZATION OF APPROPRIATIONS.</DELETED>

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

     <DELETED>TITLE VI--AMENDMENTS TO THE HOMELAND SECURITY ACT OF 
                             2002</DELETED>

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

<DELETED>    (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--</DELETED>
        <DELETED>    (1) in subparagraph (K), by striking ``and'' at 
        the end;</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (3) by adding at the end the following:</DELETED>
        <DELETED>    ``(M) ensuring minimum standards of care for all 
        unaccompanied alien children--</DELETED>
                <DELETED>    ``(i) for whom detention is necessary; 
                and</DELETED>
                <DELETED>    ``(ii) who reside in settings that are 
                alternative to detention.''.</DELETED>
<DELETED>    (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:</DELETED>
        <DELETED>    ``(4) Powers.--In carrying out the duties under 
        paragraph (3), the Director shall have the power to--</DELETED>
                <DELETED>    ``(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 2003; and</DELETED>
                <DELETED>    ``(B) compel compliance with the terms and 
                conditions set forth in section 103 of the 
                Unaccompanied Alien Child Protection Act of 2003, 
                including the power to--</DELETED>
                        <DELETED>    ``(i) declare providers to be in 
                        breach and seek damages for 
                        noncompliance;</DELETED>
                        <DELETED>    ``(ii) terminate the contracts of 
                        providers that are not in compliance with such 
                        conditions; and</DELETED>
                        <DELETED>    ``(iii) reassign any unaccompanied 
                        alien child to a similar facility that is in 
                        compliance with such section.''.</DELETED>
<DELETED>    (c) Clarification of Director's Authority To Hire 
Personnel.--Section 462(f)(3) of the Homeland Security Act of 2002 (6 
U.S.C. 279(f)(3)) is amended--</DELETED>
        <DELETED>    (1) by striking ``(3) Transfer and allocation of 
        appropriations and personnel.--The personnel'' and inserting 
        the following:</DELETED>
        <DELETED>    ``(3) Transfer and allocation of appropriations 
        and personnel.--</DELETED>
                <DELETED>    ``(A) In general.--Except as provided in 
                subparagraph (B), the personnel''; and</DELETED>
        <DELETED>    (2) by inserting at the end the 
        following:</DELETED>
                <DELETED>    ``(B) Exception.--The Director may hire 
                and fix the level of compensation of an adequate number 
                of personnel to carry out the duties of the Office. 
                Notwithstanding the provisions of subparagraph (A), the 
                Director may elect not to receive the transfer of any 
                personnel of the Department of Justice employed in 
                connection with the functions transferred by this 
                section or, at the Director's discretion, to assign 
                different duties to such personnel.''.</DELETED>

<DELETED>SEC. 602. TECHNICAL CORRECTIONS.</DELETED>

<DELETED>    Section 462(b) of the Homeland Security Act of 2002 (6 
U.S.C. 279(b)), as amended by section 601, is amended--</DELETED>
        <DELETED>    (1) in paragraph (3), by striking ``paragraph 
        (1)(G)'' and inserting ``paragraph (1)''; and</DELETED>
        <DELETED>    (2) by adding at the end the following:</DELETED>
        <DELETED>    ``(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.''.</DELETED>

<DELETED>SEC. 603. EFFECTIVE DATE.</DELETED>

<DELETED>    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.).</DELETED>

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 described 
                        in subparagraph (A) or (B) of section 
                        102(a)(1), upon a determination that such 
individual 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 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 Office 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 Director 
        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 such 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 under the age of 21 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) of the Immigration and 
Nationality Act (8 U.S.C. 1255(h)(2)) is amended--
            (1) by amending subparagraph (A) to read as follows:
                    ``(A) paragraphs (4), (5)(A), (6)(A), and (7) of 
                section 212(a) shall not apply;'';
            (2) in subparagraph (B), by striking the period and 
        inserting ``; and''; and
            (3) by adding at the end the following:
                    ``(C) the Secretary of Homeland Security may waive 
                section 212(a)(2)(D) in the case of an offense which 
                arose as a consequence of the child being 
                unaccompanied.''.
    (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)), as amended by subsection (a), 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.

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.).




                                                       Calendar No. 541

108th CONGRESS

  2d Session

                                S. 1129

_______________________________________________________________________

                                 A BILL

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

_______________________________________________________________________

                              June 3, 2004

        Reported with an amendment in the nature of a substitute