[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3091 Introduced in Senate (IS)]

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115th CONGRESS
  2d Session
                                S. 3091

To limit the separation of families seeking asylum in the United States 
and expedite the asylum process for individuals arriving in the United 
                         States with children.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 19, 2018

Mr. Cruz (for himself, Mr. Barrasso, Mr. Blunt, Mr. Crapo, Mr. Daines, 
 Mrs. Ernst, Mr. Hatch, Mr. Hoeven, Mr. Inhofe, Mr. Risch, Mr. Rounds, 
 Mr. Roberts, Mr. Rubio, Mr. Sasse, Mr. Scott, Mr. Toomey, Mr. Young, 
Mr. Lee, and Mr. Wicker) introduced the following bill; which was read 
          twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To limit the separation of families seeking asylum in the United States 
and expedite the asylum process for individuals arriving in the United 
                         States with 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 ``Protect Kids and Parents Act''.

SEC. 2. ENSURING FAMILIES REMAIN TOGETHER.

    Notwithstanding any other provision of law, judicial determination, 
consent decree, or settlement agreement:
     (a) A child shall remain in the custody of and be detained in the 
same facility as the Asylum Applicant who is the child's parent or 
legal guardian during the pendency of the Asylum Applicant's asylum or 
withholding of removal proceedings.
    (b) If a child has multiple parents or legal guardians who are 
Asylum Applicants, that child shall remain in the custody of and be 
detained in the same facility as all of the child's parents and legal 
guardians during the pendency of the Asylum Applicants' asylum or 
withholding of removal proceedings; unless one of the child's parents 
or legal guardians is present in the United States and not in any form 
of detention, in which case the child shall be placed in the custody of 
that parent or legal guardian.

SEC. 3. FACILITIES FOR ASYLUM APPLICANTS WHO RETAIN CUSTODY OF A CHILD.

    (a) The designated agencies shall maintain facilities for the joint 
detention of Asylum Applicants who retain custody of a child and the 
child. These facilities shall only contain individuals who are under 
the age of 18 or are the parents or legal guardians of individuals 
under the age of 18.
    (b) Funding.--There are authorized to be appropriated for each of 
fiscal years 2019, 2020, and 2021 such sums as may be necessary to 
carry out this section.

SEC. 4. INCREASING THE NUMBER OF AUTHORIZED IMMIGRATION JUDGES.

    (a) Increase in Immigration Judges.--The Attorney General of the 
United States shall increase the total number of immigration judges to 
adjudicate pending cases and efficiently process future cases by 375 
judges.
    (b) Necessary Support Staff for Immigration Judges.--To address the 
shortage of support staff for immigration judges, the Attorney General 
shall ensure that each immigration judge has sufficient support staff, 
adequate technological and security resources, and appropriate 
courtroom facilities.
    (c) Increase in Board of Immigration Appeals Attorneys.--The 
Attorney General shall increase the number of Board of Immigration 
Appeals staff attorneys by sixty attorneys.
    (d) Necessary Support Staff for Board of Immigration Appeals.--To 
address the shortage of support staff for the Board of Immigration 
appeals, the Attorney General shall ensure that the Board of 
Immigration Appeals and its staff attorneys has sufficient support 
staff and adequate technological and security resources.
    (e) Prioritization of Asylum Applicants.--Any immigration judges, 
Board of Immigration Appeals staff attorneys, and support staff hired 
under the authority of this section shall prioritize asylum 
applications that are filed by Asylum Applicants.
    (f) Funding.--There are authorized to be appropriated for each of 
fiscal years 2019, 2020, and 2021 such sums as may be necessary to 
carry out this section.

SEC. 5. INCREASING THE NUMBER OF AVAILABLE DEPARTMENT OF HOMELAND 
              SECURITY EMPLOYEES.

    (a) Increase in Department of Homeland Security Personnel.--The 
Secretary of Homeland Security shall increase the total number of 
Department personnel that are responsible for processing asylum 
applications filed by Asylum Applicants by 200 individuals. Positions 
authorized before the date of the enactment of this Act and any 
existing officer vacancies within the Department of Homeland Security 
on such date of enactment shall not count towards the increase mandated 
by this paragraph.
    (b) Increase in Department of Homeland Security Personnel.--The 
Secretary is authorized to procure space, temporary facilities, and to 
hire the required administrative and legal support staff, on an 
expedited basis, to accommodate the additional positions authorized 
under this section.
    (c) Funding.--There are authorized to be appropriated for each of 
fiscal years 2019, 2020, and 2021 such sums as may be necessary to 
carry out this section.

SEC. 6. ESTABLISHING DEADLINES FOR PROCESSING OF ASYLUM APPLICANTS.

    Notwithstanding any other provision of law, judicial determination, 
consent decree, or settlement agreement:
     (a) In General.--
            (1) The Attorney General and Secretary of Homeland Security 
        shall establish within 60 days of the enactment of this Act 
        procedures for the expedited consideration of asylum 
        applications filed by Asylum Applicants, pursuant to the 
        guidelines set forth in this Act.
            (2) An asylum application filed by Asylum Applicants must 
        be governed by the expedited procedures set forth by this Act, 
        as opposed to existing asylum law, procedures, regulations, and 
        timelines. But unless modified by this Act or the procedures 
        set forth in, regulations promulgated pursuant to, and 
        timelines established by this Act, the standards, procedures, 
        and burdens of proof established by existing law and 
        regulations for asylum applications shall apply to an asylum 
        application filed by an Asylum Applicant.
            (3) Until the Attorney General and Secretary of Homeland 
        Security have established procedures for expedited 
        consideration of asylum applications under this section, any 
        asylum application filed by an Asylum Applicant shall be 
        reviewed under existing law, regulations, and procedures for 
        the evaluation of an asylum claim. Other sections of this Act, 
        including sections 2, 3, and 8, will nonetheless begin to apply 
        to Asylum Applicants upon enactment of this Act.
    (b) Asylum Interviews.--
            (1) Within 24 hours of an initial referral from immigration 
        officials of an asylum application by an Asylum Applicant, an 
        asylum officer shall conduct an asylum interview of the Asylum 
        Applicant.
            (2) The Attorney General shall provide information 
        concerning the asylum interview described in this section to 
        Asylum Applicants at least twelve hours prior to the asylum 
        interview. An Asylum Applicant may consult with a person or 
        persons of the Asylum Applicant's choosing prior to the 
        interview or any review thereof, according to regulations 
        prescribed by the Attorney General. Such consultation shall be 
        at no expense to the Government and shall not unreasonably 
        delay the process.
            (3) Within 24 hours of the start of an asylum interview, 
        the asylum officer must make a determination of whether the 
        Asylum Application has a credible fear of persecution.
            (4) If the officer determines that the Asylum Applicant has 
        a credible fear of persecution, the Asylum Applicant shall be 
        detained for further consideration of the application for 
        asylum and referred for an asylum determination consistent with 
        subsection (d).
            (5) If the officer determines that the Asylum Applicant 
        does not have a credible fear of persecution, the Asylum 
        Applicant has 24 hours to request review by an Immigration 
        Judge. If the Asylum Applicant does not request review of the 
        determination within that time period, a Final Order of Removal 
        shall be issued.
            (6) The asylum officer shall prepare a written record of a 
        determination that the Asylum Applicant does not have a 
        credible fear of persecution. Such record shall include a 
        summary of the material facts as stated by the Asylum 
        Applicant, such additional facts (if any) relied upon by the 
        officer, and the officer's analysis of why, in the light of 
        such facts, the Asylum Applicant has not established a credible 
        fear of persecution. A copy of the officer's interview notes 
        shall be attached to the written summary.
    (c) Appearance Before Immigration Judge.--
            (1) In the case of an Asylum Applicant referred to an 
        Immigration Judge following a determination of credible fear of 
        persecution by the asylum officer or an Asylum Applicant who 
        requests review by an Immigration Judge of a determination that 
        the Asylum Applicant does not have a credible fear of 
        persecution, the Attorney General shall present the Asylum 
        Applicant before an immigration judge for a hearing within 24 
        hours of the referral or request.
            (2) The Immigration Judge shall make a determination of 
        asylum or withholding of removal eligibility within 120 hours 
        of such a hearing.
            (3) If the Immigration Judge determines the Asylum 
        Applicant is eligible for asylum or withholding of removal, the 
        judge will order that asylum or withholding of removal be 
        granted.
            (4) If the Immigration Judge determines that the Asylum 
        Applicant is not eligible for asylum or withholding of removal, 
        the Asylum Applicant has 24 hours to request review by the 
        Board of Immigration Appeals. If the Asylum Applicant does not 
        request review of the determination within that time period, a 
        Final Order of Removal will be issued.
            (5) The Immigration Judge shall prepare a written record of 
        a determination that the Asylum Applicant is not eligible for 
        asylum or withholding of removal. Such record shall include a 
        summary of the material facts as stated by the Asylum 
        Applicant, such additional facts (if any) relied upon by the 
        Immigration Judge, and the Immigration Judge's analysis of why, 
        in the light of such facts, the Asylum Applicant has not 
        established eligibility for asylum or withholding of removal.
    (d) Review by Board of Immigration Appeals.--
            (1) In the case of an Asylum Applicant who requests review 
        by the Board of Immigration Appeals of a determination by an 
        Immigration Judge that he or she is not eligible for asylum or 
        withholding of removal, the Attorney General shall present the 
        request for review to the Board of Immigration Appeals within 
        24 hours of the request.
            (2) The Board of Immigration Appeals shall make a 
        determination of asylum or withholding of removal eligibility 
        within 24 hours of receiving the request.
            (3) If the Board of Immigration Appeals determines the 
        Asylum Applicant is eligible for asylum or withholding of 
        removal, the Board of Immigration Appeals will order that 
        asylum or withholding of removal be granted.
            (4) If the Board of Immigration Appeals determines that the 
        Asylum Applicant is not eligible for asylum or withholding of 
        removal, the Asylum Applicant has 24 hours to request review by 
        the Attorney General. If the Asylum Applicant does not request 
        review of the determination within that time period, a Final 
        Order of Removal will be issued.
    (e) Review by Attorney General.--
            (1) In the case of an Asylum Applicant who requests review 
        by the Attorney General of a determination by the Board of 
        Immigration Appeals that he or she is not eligible for asylum 
        or withholding of removal, the Attorney General shall make a 
        determination of asylum or withholding of removal eligibility 
        within 24 hours of receiving the request.
            (2) If the Attorney General determines the Asylum Applicant 
        is eligible for asylum or withholding of removal, the Attorney 
        General will order that asylum be granted.
            (3) If the Attorney General determines that the Asylum 
        Applicant is not eligible for asylum or withholding of removal, 
        a Final Order of Removal will be issued.
    (f) Issuance of Final Order of Removal.--Following a determination 
by the Attorney General that the Asylum Applicant is not eligible for 
asylum or withholding of removal, there shall be no additional review 
prior to the issuance of a Final Order of Removal.
    (g) Grant of Asylum.--If asylum or withholding of removal is 
granted to an Asylum Applicant pursuant to these expedited procedures, 
the grant will be conditional and the Asylum Applicant shall remain in 
detention until the identity of the applicant has been checked against 
all appropriate records or databases maintained by the Attorney General 
and by the Secretary of State, including the Automated Visa Lookout 
System, to determine any grounds on which the alien may be inadmissible 
to, excludable from, removable from, or deportable from the United 
States, or ineligible to apply for or be granted asylum or withholding 
of removal.
    (h) Extensions of Deadlines on Behalf of Designated Agencies.--A 
designated agency may seek an extension of any of the deadlines set 
forth in this subsection by applying for an extension with an 
Immigration Judge. The Immigration Judge must issue an order stating 
that the designated agency has established that good cause warrants the 
granting of an extension. An extension may be granted for up to thirty 
days. Only two extensions may be granted, in total, to a designated 
agency during the entirety of an Asylum Applicant's asylum application 
process. Any extensions of the deadlines shall not affect the detention 
of the Asylum Applicant.
    (i) Extensions of Deadlines on Behalf of Asylum Applicants.--An 
Asylum Applicant may seek an extension of any of the deadlines set 
forth in this subsection by applying for an extension with an 
Immigration Judge. The Immigration Judge must issue an order stating 
that the Asylum Applicant has established that good cause warrants the 
granting of an extension. An extension may be granted for up to thirty 
days. Only two extensions may be granted, in total, to an Asylum 
Applicant during the entirety of the Asylum Applicant's asylum 
application process. Any extensions of the deadlines shall not affect 
the detention of the Asylum Applicant.

SEC. 7. CONSEQUENCES OF DENIAL OF ASYLUM APPLICATION.

    Notwithstanding any other provision of law, judicial determination, 
consent decree, or settlement agreement:
     (a) Once a Final Order of Removal for an Asylum Applicant is 
issued, the designated agency shall remove from the United States 
within four days the Asylum Applicant and any child for whom the Asylum 
Applicant is the parent or legal guardian and has been detained with 
the Asylum Applicant.
            (1) Exception.--If the child has a parent or legal guardian 
        who will be remaining physically present in the United States 
        when the Asylum Applicant is removed, the child will remain in 
        or be placed in the custody of that parent or legal guardian.
    (b) An Asylum Applicant whose asylum application is denied pursuant 
to the process outlined in this Act shall not be prosecuted for illegal 
entry as a result of the entry into the United States that led to the 
filing of the asylum application adjudicated under the process outlined 
in this Act, but will instead be removed from the United States. An 
Asylum Applicant may be prosecuted for any other violation of the law 
if and once their asylum application has been denied. If the Asylum 
Applicant is prosecuted for an immigration crime that is not a crime of 
violence, the provisions of this Act that require that a child shall 
remain in the custody of and be detained in the same facility as the 
Asylum Applicant, and any other exceptions and requirements thereof set 
forth in this Act, shall continue to apply.
    (c) A denial of an asylum application pursuant to the process 
outlined in this Act shall not prejudice a subsequent asylum 
application by the same Asylum Applicant on the same grounds if it is 
later filed after the Asylum Applicant arrives at a legal port of entry 
and files an asylum application, unless it is determined that the 
Asylum Applicant engaged in fraud during his prior asylum application 
that was denied pursuant to the process outlined in this Act.

SEC. 8. EXCEPTIONS TO ENSURING FAMILIES REMAIN TOGETHER.

    (a) An agent or officer of a designated agency shall be permitted 
to remove a child from the custody of an Asylum Applicant that is the 
child's parent or legal guardian with that Asylum Applicant's consent. 
If a child has multiple parents or legal guardians in detention, all 
parents or legal guardians with custody of the child must consent to 
have the child removed from their custody before an agent or officer of 
a designated agency is permitted to remove the child; otherwise, the 
child will remain with the parent or legal guardian who does not wish 
for the child to be removed.
    (b) An agent or officer of a designated agency shall be permitted 
to remove a child from the custody of an Asylum Applicant without that 
Asylum Applicant's consent if the following has occurred:
            (1) A State court, authorized under State law, terminates 
        the rights of a parent or legal guardian, determines that it is 
        in the best interests of the child to be removed from his or 
        her parent or legal guardian, in accordance with the Adoption 
        and Safe Families Act of 1997 (Public Law 105-89), or makes any 
        similar determination that is legally authorized under State 
        law.
            (2) An official from the State or county child welfare 
        agency with expertise in child trauma and development makes a 
        best interests determination that it is in the best interests 
        of the child to be removed from his or her parent or legal 
        guardian because the child is in danger of abuse or neglect at 
        the hands of the parent or legal guardian, or is a danger to 
        herself or others.
            (3) The Chief Patrol Agent or the Area Port Director, or 
        their designees, authorizes separation upon the recommendation 
        by an agent or officer, based on a finding that--
                    (A) the child is a victim of trafficking or is at 
                significant risk of becoming a victim of trafficking;
                    (B) there is a strong likelihood that the adult is 
                not the parent or legal guardian of the child; or
                    (C) the child is in danger of abuse or neglect at 
                the hands of the parent or legal guardian, or is a 
                danger to themselves or others.
    (c) Documentation Required.--The Secretary shall ensure that a 
separation under subsection (a)(3) is documented in writing and 
includes, at a minimum, the reason for such separation, together with 
the stated evidence for such separation.

SEC. 9. RECOMMENDATIONS FOR SEPARATIONS BY AGENTS OR OFFICERS.

    (a) In General.--Not later than 180 days after the date of the 
enactment of this Act, the Secretary, in consultation with the 
Secretary of Health and Human Services, shall develop training and 
guidance, with an emphasis on the best interests of the child, 
childhood trauma, attachment, and child development, for use by the 
agents and officers, in order to standardize the implementation of 
section 8(b)(3).
    (b) Annual Review.--Not less frequently than annually, the 
Secretary of Health and Human Services shall review the guidance 
developed under subsection (a) and make recommendations to the 
Secretary to ensure such guidance is in accordance with current 
evidence and best practices in child welfare, child development, and 
childhood trauma.
    (c) Requirement.--The guidance under subsection (a) shall 
incorporate the presumptions described in section 10.
    (d) Additional Requirements.--
            (1) Evidence-based.--The guidance and training developed 
        under this section shall incorporate evidence-based practices.
            (2) Training required.--
                    (A) All agents and officers of designated agencies, 
                upon hire, and annually thereafter, shall complete 
                training on adherence to the guidance under this 
                section.
                    (B) All Chief Patrol Agents and Area Port 
                Directors, upon hire, and annually thereafter, shall 
                complete--
                            (i) training on adherence to the guidance 
                        under this section; and
                            (ii) 90 minutes of child welfare practice 
                        training that is evidence-based and trauma-
                        informed.

SEC. 10. PRESUMPTIONS.

    The presumptions described in this Act are the following:
            (1) Family unity.--There shall be a strong presumption in 
        favor of family unity.
            (2) Siblings.--To the maximum extent practicable, the 
        Secretary shall ensure that sibling groups remain intact.

SEC. 11. REQUIRED POLICY FOR LOCATING SEPARATED CHILDREN.

    (a) In General.--Not later than 180 days after the date of the 
enactment of this Act, the Secretary shall publish final public 
guidance that describes, with specificity, the manner in which an 
Asylum Applicant may locate a child they were the parent or legal 
guardian of that was separated from them prior to the enactment of this 
Act. In developing the public guidance, the Secretary shall consult 
with the Secretary of Health and Human Services.
    (b) Written Notification.--The Secretary shall provide each Asylum 
Applicant who was separated from a child they were the parent or legal 
guardian of with written notice of the public guidance to locate the 
separated child.
    (c) Language Access.--All guidance shall be available in English 
and Spanish, and at the request of the Asylum Applicant, in the 
language or manner that is understandable by the Asylum Applicant.

SEC. 12. ANNUAL REPORT ON FAMILY SEPARATION.

    Not later than 1 year after the date of the enactment of this Act, 
and annually thereafter, the Secretary shall submit a report to the 
committees of jurisdiction that describes each instance in which a 
child was separated from a parent or legal guardian and includes, for 
each such instance, the following:
            (1) The relationship of the adult and the child.
            (2) The age and gender of the adult and child.
            (3) The length of separation.
            (4) Whether the adult was charged with a crime, and if the 
        adult was charged with a crime, the type of crime.
            (5) Whether the adult made a claim for asylum, expressed a 
        fear to return, or applied for other immigration relief.
            (6) Whether the adult was prosecuted if charged with a 
        crime and the associated outcome of such charges.
            (7) The stated reason for, and evidence in support of, the 
        separation.
            (8) If the child was part of a sibling group at the time of 
        separation, whether the sibling group has had physical contact 
        and visitation.
            (9) Whether the child was rendered an unaccompanied alien 
        child.
            (10) Other information in the Secretary's discretion.

SEC. 13. CLARIFICATION OF PARENTAL RIGHTS.

    If a child is separated from a parent or legal guardian, and a 
State court has not made a determination that the parental rights have 
been terminated, there is a presumption that--
            (1) the parental rights remain intact; and
            (2) the separation does not constitute an affirmative 
        determination of abuse or neglect under Federal or State law.

SEC. 14. CLARIFICATION OF EXISTING LAW.

    (a) Nothing in this Act shall be interpreted to supersede or modify 
Federal child welfare law, where applicable, including the Adoption and 
Safe Families Act of 1997 (Public Law 105-89).
    (b) Nothing in this Act shall be interpreted to supersede or modify 
State child welfare laws where applicable.
    (c) Nothing in this Act shall be interpreted to grant any due 
process rights to any individual who entered this country illegally.
    (d) Nothing in this act shall alter how an unaccompanied alien 
under the age of eighteen is treated under existing law.

SEC. 15. GAO REPORT ON PROSECUTION OF ASYLUM SEEKERS.

    (a) Study.--The Comptroller General of the United States shall 
conduct a study of the prosecution of asylum seekers during the period 
beginning on January 1, 2008 and ending on December 31, 2018, 
including--
            (1) the total number of persons who claimed a fear of 
        persecution, received a favorable credible fear determination, 
        and were referred for prosecution;
            (2) an overview and analysis of the metrics used by the 
        Department of Homeland Security and the Department of Justice 
        to track the number of asylum seekers referred for prosecution;
            (3) the total number of asylum seekers referred for 
        prosecution, a breakdown and description of the criminal 
        charges filed against asylum seekers during such period, and a 
        breakdown and description of the convictions secured;
            (4) the total number of asylum seekers who were separated 
        from their children as a result of being referred for 
        prosecution;
            (5) a breakdown of the resources spent on prosecuting 
        asylum seekers during such period, as well as any diversion of 
        resources required to prosecute asylum seekers, and any costs 
        imposed on States and localities;
            (6) the total number of asylum seekers who were referred 
        for prosecution and also went through immigration proceedings; 
        and
            (7) the total number of asylum seekers referred for 
        prosecution who were deported before going through immigration 
        proceedings.
    (b) Report.--Not later than 1 year after the date of the enactment 
of this Act, the Comptroller General shall submit to Congress a report 
that describes the results of the study conducted pursuant to 
subsection (a).

SEC. 16. DEFINITIONS.

    In this Act:
            (1) Agent; officer.--The terms ``agent'' and ``officer'' 
        include contractors of the Federal Government.
            (2) Asylum applicant.--The term ``Asylum Applicant'' means 
        an alien who (a) has no permanent immigration status; (b) is 
        detained by the United States government at or near a port of 
        entry or within 100 miles of the border of the United States 
        while having custody of and being in the presence of a child 
        for whom the alien is a parent or legal guardian; and (c) 
        seeks, within 48 hours of detention, asylum pursuant to section 
        208 of the Immigration and Nationality Act, withholding of 
        removal pursuant to section 241(b)(3) of the Immigration and 
        Nationality Act, or withholding of removal pursuant to the 
        Convention Against Torture.
            (3) Asylum application.--The term ``asylum application'' 
        means an application for asylum pursuant to section 208 of the 
        Immigration and Nationality Act, an application for withholding 
        of removal under section 241(b)(3) of the Immigration and 
        Nationality Act, and/or an application for withholding of 
        removal pursuant to the Convention Against Torture.
            (4) Child.--The term ``child'' means an individual who--
                    (A) has not reached the age of 18;
                    (B) has no permanent immigration status; and
                    (C) was in the custody and presence of a parent or 
                legal guardian when the parent or legal guardian was 
                detained for illegally entering into the United States 
                at or near a port of entry or within 100 miles of the 
                border of the United States.
            (5) Committees of jurisdiction.--The term ``committees of 
        jurisdiction'' means--
                    (A) the Committee on the Judiciary and the 
                Committee on Health, Education, Labor, and Pensions of 
                the Senate; and
                    (B) the Committee on the Judiciary of the House of 
                Representatives.
            (6) Danger of abuse or neglect at the hands of the parent 
        or legal guardian.--The term ``danger of abuse or neglect at 
        the hands of the parent or legal guardian'' shall not mean 
        migrating to or crossing the United States border.
            (7) Designated agency.--The term ``designated agency'' 
        means--
                    (A) the Department of Homeland Security;
                    (B) the Department of Justice; and
                    (C) the Department of Health and Human Services.
            (8) Secretary.--Unless otherwise specified, the term 
        ``Secretary'' means the Secretary of Homeland Security.
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