[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 119 Engrossed in Senate (ES)]


  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
109th CONGRESS
  1st Session
                                 S. 119

_______________________________________________________________________

                                 AN ACT


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

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Unaccompanied 
Alien Child Protection Act of 2005''.
    (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 CHILD ADVOCATES AND 
                                COUNSEL

Sec. 201. Child advocates.
Sec. 202. Counsel.
Sec. 203. Preservation of law enforcement authority.
Sec. 204. Effective date; applicability.
  TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN 
                                CHILDREN

Sec. 301. Special immigrant juvenile classification.
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, or a representative authorized to 
        represent unaccompanied alien children in immigration 
        proceedings or matters, who--
                    (A) complies with the duties set forth in this Act;
                    (B)(i) is properly qualified to handle matters 
                involving unaccompanied alien children; or
                    (ii) is working under the auspices of a qualified 
                nonprofit organization that is experienced in handling 
                such matters; and
                    (C) if an attorney--
                            (i) is a member in good standing of the bar 
                        of the highest court of any State, possession, 
                        territory, Commonwealth, or the District of 
                        Columbia; and
                            (ii) is not under any order of any court 
                        suspending, enjoining, restraining, disbarring, 
                        or otherwise restricting the attorney in the 
                        practice of law.
            (2) Department.--The term ``Department'' means the 
        Department of Homeland Security.
            (3) Director.--The term ``Director'' means the Director of 
        the Office.
            (4) Office.--The term ``Office'' means the Office of 
        Refugee Resettlement 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 meaning 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.
    (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 available 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 this 
                        subparagraph;
                            (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, and shall be 
                informed of that right in the child's native language--
                            (i) to consult with a consular officer from 
                        the child's country of nationality or country 
                        of last habitual residence prior to 
                        repatriation; and
                            (ii) to consult, telephonically, with the 
                        Office.
            (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 
        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 
                Department 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 
                Department 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 Department is an unaccompanied 
                        alien child;
                            (iii) any claim by an alien in the custody 
                        of the Department that such alien is under the 
                        age of 18; or
                            (iv) any suspicion that an alien in the 
                        custody of the Department 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 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 
                        Department pursuant to subparagraph (B) or (C) 
                        of paragraph (1), following a determination 
                        that the child no longer meets the description 
                        set forth in such subparagraphs; or
                            (iii) in the case of a child who was 
                        previously released to an individual or entity 
                        described in section 102(a)(1), upon a 
                        determination by the Director that such 
                        individual or entity is no longer able to care 
                        for the child.
                    (B) Transfer to the department.--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 Department.
                    (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 in accordance with section 105, unless otherwise 
specified in subsection (b)(2)(B).
    (d) Access to Alien.--The Secretary of Homeland Security shall 
permit the Office to have reasonable access to aliens in the custody of 
the Secretary to ensure a prompt determination of the age of such 
alien, if necessary under subsection (b)(2)(B).

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 paragraph (4), section 103(a)(2), and section 
        462(b)(2) of the Homeland Security Act of 2002 (6 U.S.C. 
        279(b)(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:
                    (A) A parent who seeks to establish custody, as 
                described in paragraph (3)(A).
                    (B) A legal guardian who seeks to establish 
                custody, as described in paragraph (3)(A).
                    (C) An adult relative.
                    (D) An individual or entity designated by the 
                parent or legal guardian that is capable and willing to 
                care for the well-being of the child.
                    (E) A State-licensed juvenile shelter, group home, 
                or foster care program willing to accept 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.--
                    (A) General requirements.--Notwithstanding 
                paragraph (1), and subject to the requirements of 
                subparagraph (B), no unaccompanied alien child shall be 
                placed with a person or entity described in any of 
                subparagraphs (A) through (F) of paragraph (1) unless 
                the Director certifies, in writing, that the proposed 
                custodian is capable of providing for the child's 
                physical and mental well-being, based on--
                            (i) with respect to an individual 
                        custodian--
                                    (I) verification of such 
                                individual's identity and employment;
                                    (II) a finding that such individual 
                                has not engaged in any activity that 
                                would indicate a potential risk to the 
                                child, including the activities 
                                described in paragraph (4)(A);
                                    (III) a finding that such 
                                individual has no open investigation by 
                                a state or local child protective 
                                services authority due to suspected 
                                child abuse or neglect;
                                    (IV) verification that such 
                                individual has a plan for the provision 
                                of care for the child; and
                                    (V) verification of familial 
                                relationship of such individual, if any 
                                relationship is claimed; and
                            (ii) verification of nature and extent of 
                        previous relationship;
                            (iii) with respect to a custodial entity, 
                        verification of such entity's appropriate 
                        licensure by the State, county, or other 
                        applicable unit of government; and
                            (iv) such other information as the Director 
                        determines appropriate.
                    (B) Home study.--
                            (i) In general.--A home study shall be 
                        conducted prior to release with respect to each 
                        proposed custodian described in any of 
                        subparagraphs (A) through (F) of paragraph (1) 
                        unless waived by the Director.
                            (ii) Special needs children.--In the case 
                        of a special needs child with a disability (as 
                        defined in section 3 of the Americans with 
                        Disabilities Act of 1990 (42 U.S.C. 12102(2)), 
                        a home study shall be conducted to determine if 
                        the child's needs can be properly met by the 
                        custodian.
                    (C) Contract authority.--The Director may, by grant 
                or contract, arrange for some or all of the activities 
                under this section to be carried out by--
                            (i) an agency of the State of the child's 
                        proposed residence;
                            (ii) an agency authorized by such State to 
                        conduct such activities; or
                            (iii) an appropriate voluntary or nonprofit 
                        agency.
                    (D) Database access.--In conducting suitability 
                assessments, the Director shall be given access to all 
                relevant information in the appropriate Federal, State, 
                and local law enforcement and immigration databases.
            (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, and 
                subsequent to that placement a parent or legal guardian 
                seeks to establish custody, the Director shall--
                            (i) assess the suitability of placing the 
                        child with the parent or legal guardian; and
                            (ii) 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.--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 involvement 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 involvement 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, which may include private or public admonition 
                or censure, suspension, or disbarment of the attorney 
                from the practice of law.
            (5) Grants and contracts.--The Director may award grants 
        to, and enter into contracts with, voluntary agencies to carry 
        out this section or section 462 of the Homeland Security Act of 
        2002 (6 U.S.C. 279).
            (6) Reimbursement of state expenses.--The Director may 
        reimburse States for any expenses they incur in providing 
        assistance to unaccompanied alien children who are served 
        pursuant to this Act or section 462 of the Homeland Security 
        Act of 2002 (6 U.S.C. 279).
    (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 such behavior in a facility appropriate for delinquent 
        children.
            (3) State licensure.--A child shall not be placed with an 
        entity described in section 102(a)(1)(E), unless the entity is 
        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 under subparagraph (A) shall provide that 
                all children are notified of such standards orally and 
                in writing 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 annual Country Reports on 
                Human Rights Practices published by the Department of 
                State shall contain an assessment of the degree to 
                which each country protects children from smugglers and 
                traffickers.
                    (B) Factors for assessment.--The Department shall 
                consult the Country Reports on Human Rights Practices 
                and the Trafficking in Persons Report in assessing 
                whether to repatriate an unaccompanied alien child to a 
                particular country.
    (b) Report on Repatriation of Unaccompanied Alien Children.--
            (1) In general.--Not later than 18 months after the date of 
        enactment of this Act, and annually thereafter, the Secretary 
        shall submit a report to the Committee on the Judiciary of the 
        Senate and the Committee on the Judiciary of the House of 
        Representatives on efforts to repatriate unaccompanied alien 
        children.
            (2) Contents.--The report submitted under paragraph (1) 
        shall include--
                    (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; and
                    (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) Procedures.--
            (1) In general.--The Director shall develop procedures, in 
        consultation with the Secretary, to make a prompt determination 
        of the age of an alien, to be used--
                    (A) by the Department, with respect to aliens in 
                the custody of the Department; and
                    (B) by the Office, with respect to aliens in the 
                custody of the Office.
            (2) Evidence.--The procedures developed under paragraph (1) 
        shall--
                    (A) permit the presentation of multiple forms of 
                evidence, including testimony of the alien, to 
                determine the age of the unaccompanied alien for 
                purposes of placement, custody, parole, and detention; 
                and
                    (B) allow the appeal of a determination to an 
                immigration judge.
    (b) Prohibition on Sole Means of Determining Age.--Radiographs or 
the attestation of an alien shall not be used as the sole means of 
determining age for the purposes of determining an alien's eligibility 
for treatment under this Act or section 462 of the Homeland Security 
Act of 2002 (6 U.S.C. 279).
    (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 on the date which is 90 days after the 
date of enactment of this Act.

TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO CHILD ADVOCATES AND 
                                COUNSEL

SEC. 201. CHILD ADVOCATES.

    (a) Establishment of Child Advocate Program.--
            (1) Appointment.--The Director may appoint a child 
        advocate, who meets the qualifications described in paragraph 
        (2), for an unaccompanied alien child. The Director is 
        encouraged, wherever practicable, to contract with a voluntary 
        agency for the selection of an individual to be appointed as a 
        child advocate under this paragraph.
            (2) Qualifications of child advocate.--
                    (A) In general.--No person shall serve as a child 
                advocate 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 child advocate shall not be an 
                employee of the Department, the Office, or the 
                Executive Office for Immigration Review.
            (3) Duties.--The child advocate 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 the child's presence in the United States, 
                including facts and circumstances--
                            (i) arising in the country of the child's 
                        nationality or last habitual residence; and
                            (ii) 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--
                            (i) 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.);
                            (ii) the child understands the nature of 
                        the legal proceedings or matters and 
                        determinations made by the court, and that all 
                        information is conveyed to the child in an age-
                        appropriate manner; and
                    (F) report factual findings relating to--
                            (i) information collected under 
                        subparagraph (B);
                            (ii) the care and placement of the child 
                        during the pendency of the proceedings or 
                        matters; and
                            (iii) any other information collected under 
                        subparagraph (D).
            (4) Termination of appointment.--The child advocate shall 
        carry out the duties described in paragraph (3) until the 
        earliest of the date on which--
                    (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.
            (5) Powers.--The child advocate--
                    (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 before such 
                notification.
    (b) Training.--
            (1) In general.--The Director shall provide professional 
        training for all persons serving as guardians ad litem under 
        this section.
            (2) Training topics.--The training provided under paragraph 
        (1) shall include training in--
                    (A) the circumstances and conditions that 
                unaccompanied alien children face; and
                    (B) 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 
        under 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 child advocate 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 
                under 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 site is established under 
        paragraph (1), the Director shall submit a report on the 
        achievement of the purposes described in paragraph (2) to the 
        Committee on the Judiciary of the Senate and the Committee on 
        the Judiciary of the House of Representatives.

SEC. 202. COUNSEL.

    (a) Access to Counsel.--
            (1) In general.--The Director should ensure, to the extent 
        practicable that all unaccompanied alien children in the 
        custody of the Office or the Department, who are not described 
        in section 101(a)(2), have competent counsel to represent them 
        in immigration proceedings or matters.
            (2) Pro bono representation.--To the maximum extent 
        practicable, the Director should--
                    (A) make every effort to utilize the services of 
                competent pro bono counsel who agree to provide 
                representation to such children without charge; and
                    (B) 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.--
        For purposes of this subsection, 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 award 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 
                providing legal orientation, screening cases for 
                referral, recruiting, training, and overseeing pro bono 
                attorneys.
                    (B) Subcontracting.--Nonprofit agencies may enter 
                into subcontracts with, or award 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.
                    (C) Considerations regarding grants and 
                contracts.--In awarding grants and entering into 
                contracts with agencies under this paragraph, the 
                Director shall take into consideration the capacity of 
                the agencies in question to properly administer 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. Such guidelines 
                shall be 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 under subparagraph (A) shall be designed to 
                help protect each 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 
                under subparagraph (A) and submit the guidelines for 
                adoption by national, State, and local bar 
                associations.
    (b) Duties.--Counsel under this section 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 Department;
            (2) appear in person for all individual merits hearings 
        before the Executive Office for Immigration Review and 
        interviews involving the Department; 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 Child Advocate.--Counsel shall be 
given an opportunity to review the recommendation by the child advocate 
affecting or involving a client who is an unaccompanied alien child.
    (f) Counsel for Unaccompanied Alien Children.--Nothing in this Act 
requires the United States to pay for counsel to any unaccompanied 
alien child.

SEC. 203. PRESERVATION OF LAW ENFORCEMENT AUTHORITY.

    (a) In General.--The child advocate or counsel appointed under this 
title shall not interfere with Federal investigators or prosecutors in 
a Federal criminal investigation or prosecution in which the child is a 
victim or witness.
    (b) Definition.--In subsection (a), the term ``interfere with'' 
shall include--
            (1) restricting access to a victim or witness;
            (2) encouraging noncooperation with Federal investigators 
        or prosecutors; and
            (3) being present during interviews of the child by Federal 
        investigators or prosecutors without the permission of the 
        investigators or prosecutors.

SEC. 204. 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 CLASSIFICATION.

    (a) J Classification.--Section 101(a)(27)(J) of the Immigration and 
Nationality Act (8 U.S.C. 1101(a)(27)(J)) is amended to read as 
follows:
            ``(J) an immigrant, who is 18 years of age or younger on 
        the date of application for the classification and who is 
        present in the United States--
                    ``(i) who by a court order supported by written 
                findings of fact, 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 has been 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, and who 
                has been deemed eligible by that court for long-term 
                foster care due to abuse, neglect, abandonment, or a 
                similar basis found under State law;
                    ``(ii) for whom it has been determined by written 
                findings of fact 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 U.S. Citizenship and Immigration 
                Services that the classification of an alien as a 
                special immigrant under this subparagraph has not been 
                made solely to provide an immigration benefit to that 
                alien,
        except that no natural parent or prior adoptive parent of any 
        alien provided special immigrant status under this subparagraph 
        shall thereafter, by virtue of such parentage, be accorded any 
        right, privilege, or status under this Act;''.
    (b) Adjustment of Status.--Section 245(h)(2)(A) of the Immigration 
and Nationality Act (8 U.S.C. 1255(h)(2)(A)) is amended to read as 
follows:
                    ``(A) paragraphs (4), (5)(A), (6)(A), (7)(A), 9(B), 
                and 9(C)(i)(I) of section 212(a) shall not apply; 
                and''.
    (c) Eligibility for Assistance.--A child who has been granted 
relief under section 101(a)(27)(J) of the Immigration and Nationality 
Act (8 U.S.C. 1101(a)(27)(J)), may be eligible for funds made available 
under section 412(d) of that Act (8 U.S.C. 1522(d)) until such time as 
the child attains the age designated in section 412(d)(2)(B) of that 
Act (8 U.S.C. 1522(d)(2)(B)), or until the child is placed in a 
permanent adoptive home, whichever occurs first.
    (d) Transition Rule.--Notwithstanding any other provision of law, 
any child described in section 101(a)(27)(J) of the Immigration and 
Nationality Act (8 U.S.C. 1101(a)(27)(J)) who filed an application for 
special immigrant juvenile classification before the date of enactment 
of this Act and who was 19, 20, or 21 years of age on the date such 
application was filed shall not be denied such classification after the 
date of enactment of this Act because of such alien's age.

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

    (a) Training of State and Local Officials and Certain Private 
Parties.--
            (1) In general.--The Secretary of Health and Human 
        Services, acting jointly with the Secretary, shall provide 
        appropriate training materials, and if requested, direct 
        training, to State and county officials, child welfare 
        specialists, teachers, public counsel, and juvenile judges who 
        come into contact with unaccompanied alien children.
            (2) Curriculum.--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.
            (3) Video conferencing.--If direct training is requested 
        under this subsection, such training may be conducted through 
        video conferencing.
    (b) Training of Department Personnel.--The Secretary, acting 
jointly with the Secretary of Health and Human Services, shall provide 
specialized training to all personnel of the Department who come into 
contact with unaccompanied alien children. Training for Border Patrol 
agents and immigration inspectors 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 Committee on the 
Judiciary of the Senate and the Committee on the Judiciary of the House 
of Representatives 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 child advocate and 
        counsel services under 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--
            (1) commends the former 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 
        Department in an effort to facilitate the handling of 
        children's affirmative asylum claims;
            (2) commends the Executive Office for Immigration Review of 
        the Department of Justice for its issuance of its ``Guidelines 
        for Immigration Court Cases Involving Unaccompanied Alien 
        Children'', dated September 2004, and encourages and supports 
        the continued implementation of such guidelines by the 
        Executive Office for Immigration Review in its handling of 
        children's asylum claims before immigration judges; and
            (3) understands that the guidelines described in paragraph 
        (2) do not specifically address the issue of asylum claims, but 
        go to the broader issue of unaccompanied alien children in 
        general.
    (b) Training.--
            (1) Immigration officers.--The Secretary shall provide 
        periodic comprehensive training under the ``Guidelines for 
        Children's Asylum Claims'' to asylum officers and immigration 
        officers who have contact with children in order to familiarize 
        and sensitize such officers to the needs of children asylum 
        seekers.
            (2) Immigration judges.--The Executive Office for 
        Immigration Review shall--
                    (A) provide periodic comprehensive training under 
                the ``Guidelines for Immigration Court Cases Involving 
                Unaccompanied Alien Children'' and the ``Guidelines for 
                Children's Asylum Claims'' to immigration judges and 
                members of the Board of Immigration Appeals; and
                    (B) redistribute to all Immigration Courts the 
                ``Guidelines for Children's Asylum Claims'' as part of 
                its training of immigration judges.
            (3) Use of voluntary agencies.--Voluntary agencies shall be 
        allowed to assist in the training described in this subsection.

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 Department, except for an unaccompanied alien 
child subject to exceptions under paragraph (1)(A) or (2) of section 
(101)(a), 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) the provisions of section 462 of the Homeland Security 
        Act of 2002 (6 U.S.C. 279); and
            (2) the provisions of this Act.
    (b) Availability of Funds.--Amounts appropriated pursuant to 
subsection (a) shall 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) Authority.--In carrying out the duties under 
        paragraph (3), the Director is authorized 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 
                2005; and
                    ``(B) compel compliance with the terms and 
                conditions set forth in section 103 of the 
                Unaccompanied Alien Child Protection Act of 2005, 
                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 included 
in the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.).

            Passed the Senate December 22 (legislative day, December 
      21), 2005.

            Attest:

                                                             Secretary.
109th CONGRESS

  1st Session

                                 S. 119

_______________________________________________________________________

                                 AN ACT

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