[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2468 Introduced in Senate (IS)]

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115th CONGRESS
  2d Session
                                S. 2468

     To provide access to counsel for unaccompanied alien children.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 28, 2018

  Ms. Hirono (for herself, Mr. Blumenthal, Mr. Booker, Mr. Coons, Ms. 
Cortez Masto, Mrs. Feinstein, Mrs. Gillibrand, Mr. Markey, Mr. Merkley, 
  Mr. Murphy, Mr. Wyden, Mr. Menendez, and Ms. Harris) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
     To provide access to counsel for unaccompanied alien children.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fair Day in Court for Kids Act of 
2018''.

SEC. 2. IMPROVING IMMIGRATION COURT EFFICIENCY AND REDUCING COSTS BY 
              INCREASING ACCESS TO LEGAL INFORMATION.

    (a) Appointment of Counsel in Removal Proceedings; Right To Review 
Certain Documents in Removal Proceedings.--Section 240(b) of the 
Immigration and Nationality Act (8 U.S.C. 1229a(b)) is amended--
            (1) in paragraph (4)--
                    (A) in subparagraph (A)--
                            (i) by striking ``, at no expense to the 
                        Government,''; and
                            (ii) by striking the comma at the end and 
                        inserting a semicolon;
                    (B) by redesignating subparagraphs (B) and (C) as 
                subparagraphs (D) and (E), respectively;
                    (C) by inserting after subparagraph (A) the 
                following:
                    ``(B) the Attorney General may appoint or provide 
                counsel, at Government expense, to aliens in 
                immigration proceedings;
                    ``(C) the alien, or the alien's counsel, not later 
                than 7 days after receiving a notice to appear under 
                section 239(a), shall receive a complete copy of the 
                alien's immigration file (commonly known as an `A-
                file') in the possession of the Department of Homeland 
                Security (other than documents protected from 
                disclosure under section 552(b) of title 5, United 
                States Code);''; and
                    (D) in subparagraph (D), as redesignated, by 
                striking ``, and'' and inserting ``; and''; and
            (2) by adding at the end the following:
            ``(8) Failure to provide alien required documents.--A 
        removal proceeding may not proceed until the alien, or the 
        alien's counsel, if the alien is represented--
                    ``(A) has received the documents required under 
                paragraph (4)(C); and
                    ``(B) has been provided at least 10 days to review 
                and assess such documents.''.
    (b) Clarification Regarding the Authority of the Attorney General 
To Appoint Counsel to Aliens in Immigration Proceedings.--
            (1) In general.--Section 292 of the Immigration and 
        Nationality Act (8 U.S.C. 1362) is amended to read as follows:

``SEC. 292. RIGHT TO COUNSEL.

    ``(a) In General.--Except as provided in subsections (b) and (c), 
in any removal proceeding and in any appeal proceeding before the 
Attorney General from any such removal proceeding, the subject of the 
proceeding shall have the privilege of being represented by such 
counsel as may be authorized to practice in such proceeding as he or 
she may choose. This subsection shall not apply to screening 
proceedings described in section 235(b)(1)(A).
    ``(b) Access to Counsel for Unaccompanied Alien Children.--
            ``(1) In general.--In any removal proceeding and in any 
        appeal proceeding before the Attorney General from any such 
        removal proceeding, an unaccompanied alien child (as defined in 
        section 462(g) of the Homeland Security Act on 2002 (6 U.S.C. 
        279(g))) shall be represented by Government-appointed counsel, 
        at Government expense.
            ``(2) Length of representation.--Once a child is designated 
        as an unaccompanied alien child under paragraph (1), the child 
        shall be represented by counsel at every stage of the 
        proceedings from the child's initial appearance through the 
        termination of immigration proceedings, and any ancillary 
        matters appropriate to such proceedings even if the child 
        attains 18 years of age or is reunified with a parent or legal 
        guardian while the proceedings are pending.
            ``(3) Notice.--Not later than 72 hours after an 
        unaccompanied alien child is taken into Federal custody, the 
        alien shall be notified that he or she will be provided with 
        legal counsel in accordance with this subsection.
            ``(4) Within detention facilities.--The Secretary of 
        Homeland Security shall ensure that unaccompanied alien 
        children have access to counsel inside all detention, holding, 
        and border facilities.
    ``(c) Pro Bono Representation.--
            ``(1) In general.--To the maximum extent practicable, the 
        Attorney General should make every effort to utilize the 
        services of competent counsel who agree to provide 
        representation to such children under subsection (b) without 
        charge.
            ``(2) Development of necessary infrastructures and 
        systems.--The Attorney General shall develop the necessary 
        mechanisms to identify counsel available to provide pro bono 
        legal assistance and representation to children under 
        subsection (b) and to recruit such counsel.
    ``(d) Contracts; Grants.--The Attorney General may enter into 
contracts with, or award grants to, nonprofit agencies with relevant 
expertise in the delivery of immigration-related legal services to 
children to carry out the responsibilities under this section, 
including providing legal orientation, screening cases for referral, 
recruiting, training, and overseeing pro bono attorneys. 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 section.
    ``(e) Model Guidelines on Legal Representation of Children.--
            ``(1) 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, 
        which 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.
            ``(2) Purpose of guidelines.--The guidelines developed 
        under paragraph (1) 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.
    ``(f) Duties of Counsel.--Counsel provided 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 of Homeland 
        Security;
            ``(2) appear in person for all individual merits hearings 
        before the Executive Office for Immigration Review and 
        interviews involving the Department of Homeland Security;
            ``(3) owe the same duties of undivided loyalty, 
        confidentiality, and competent representation to the child as 
        is due to an adult client; and
            ``(4) carry out other such duties as may be proscribed by 
        the Attorney General or the Executive Office for Immigration 
        Review.
    ``(g) Savings Provision.--Nothing in this section may be construed 
to supersede--
            ``(1) any duties, responsibilities, disciplinary, or 
        ethical responsibilities an attorney may have to his or her 
        client under State law;
            ``(2) the admission requirements under State law; or
            ``(3) any other State law pertaining to the admission to 
        the practice of law in a particular jurisdiction.''.
            (2) Rulemaking.--The Attorney General shall promulgate 
        regulations to implement section 292 of the Immigration and 
        Nationality Act, as added by paragraph (1), in accordance with 
        the requirements set forth in section 3006A of title 18, United 
        States Code.

SEC. 3. ACCESS BY COUNSEL AND LEGAL ORIENTATION AT DETENTION 
              FACILITIES.

    The Secretary of Homeland Security shall provide access to counsel 
for all aliens detained in a facility under the supervision of U.S. 
Immigration and Customs Enforcement, U.S. Customs and Border 
Protection, or the Department of Health and Human Services, or in any 
private facility that contracts with the Federal Government to house, 
detain, or hold aliens.

SEC. 4. REPORT ON ACCESS TO COUNSEL.

    (a) Report.--Not later than December 31 of each year, the Secretary 
of Homeland Security, in consultation with the Attorney General, shall 
prepare and submit a report to the Committee on the Judiciary of the 
Senate and the Committee on the Judiciary of the House of 
Representatives regarding the extent to which aliens described in 
section 292(b) of the Immigration and Nationality Act, as added by 
section 2(b), have been provided access to counsel.
    (b) Contents.--Each report submitted under paragraph (a) shall 
include, for the immediately preceding 1-year period--
            (1) the number and percentage of aliens described in 
        section 292(b) of the Immigration and Nationality Act, as added 
        by section 2(b), who were represented by counsel, including 
        information specifying--
                    (A) the stage of the legal process at which each 
                such alien was represented;
                    (B) whether the alien was in government custody; 
                and
                    (C) the nationality and ages of such aliens; and
            (2) the number and percentage of aliens who received legal 
        orientation presentations, including the nationality and ages 
        of such aliens.

SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

    (a) In General.--There is authorized to be appropriated to the 
Executive Office of Immigration Review of the Department of Justice 
such sums as may be necessary to carry out this Act.
    (b) Budgetary Effects.--The budgetary effects of this Act, for the 
purpose of complying with the Statutory Pay-As-You-Go-Act of 2010, 
shall be determined by reference to the latest statement titled 
``Budgetary Effects of PAYGO Legislation'' for this Act, submitted for 
printing in the Congressional Record by the Chairman of the Senate 
Budget Committee, provided that such statement has been submitted prior 
to the vote on passage.
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