[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3263 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  2d Session
                                S. 3263

   To limit the separation of families at or near ports of entry, to 
  provide access to counsel for unaccompanied alien children, and to 
         improve immigration detention, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 25, 2018

  Mr. Durbin introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To limit the separation of families at or near ports of entry, to 
  provide access to counsel for unaccompanied alien children, and to 
         improve immigration detention, 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.

    This Act may be cited as the ``Humane Treatment of Migrant Children 
Act''.

                   TITLE I--KEEPING FAMILIES TOGETHER

SEC. 101. DEFINITIONS.

    In this title:
            (1) Agent; officer.--The terms ``agent'' and ``officer'' 
        include contractors of the Federal Government.
            (2) Child.--The term ``child'' means an individual who--
                    (A) has not reached the age of 18; and
                    (B) has no permanent immigration status.
            (3) 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.
            (4) 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.
            (5) 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.
            (6) Finding.--The term ``finding'' means an individualized 
        written assessment or screening by the trained agent or officer 
        that includes a consultation with a child welfare specialist, 
        formalized as required under section 102(c) and consistent with 
        sections 103, 104, and 108.
            (7) Secretary.--Unless otherwise specified, the term 
        ``Secretary'' means the Secretary of Homeland Security.

SEC. 102. LIMITATION ON THE SEPARATION OF FAMILIES.

    (a) In General.--An agent or officer of a designated agency shall 
be prohibited from removing a child from his or her parent or legal 
guardian, at or near the port of entry or within 100 miles of the 
border of the United States, unless one of 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 in 
        their official and undelegated capacity, 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.
    (b) Prohibition on Separation.--An agency may not remove a child 
from a parent or legal guardian solely for the policy goal of deterring 
individuals from migrating to the United States or for the policy goal 
of promoting compliance with civil immigration laws.
    (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. 103. RECOMMENDATIONS FOR SEPARATION 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 102(a)(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 104.
    (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. 104. PRESUMPTIONS.

    The presumptions described in this section 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.
            (3) Detention.--In general, there is a presumption that 
        detention is not in the best interests of families and 
        children.

SEC. 105. REQUIRED POLICY FOR LOCATING SEPARATED CHILDREN.

    (a) In General.--Not later than 180 days after the after the date 
of the enactment of this Act, the Secretary shall publish final public 
guidance that describes, with specificity, the manner in which a parent 
or legal guardian may locate a child who was separated from the parent 
or legal guardian under section 102(a). In developing the public 
guidance, the Secretary shall consult with the Secretary of Health and 
Human Services, immigrant advocacy organizations, child welfare 
organizations, and State child welfare agencies.
    (b) Written Notification.--The Secretary shall provide each parent 
or legal guardian who was separated, with written notice of the public 
guidance to locate a separated child.
    (c) Language Access.--All guidance shall be available in English 
and Spanish, and at the request of the parent or legal guardian, in the 
language or manner that is understandable by the parent or legal 
guardian.

SEC. 106. REQUIRED INFORMATION FOR SEPARATED FAMILIES.

    Not less frequently than once every month, the Secretary shall 
provide the parent or legal guardian of a child who was separated, the 
following information, at a minimum:
            (1) A status report on the monthly activities of the child.
            (2) Information about the education and health of the 
        child, including any medical treatment provided to the child or 
        medical treatment recommended for the child.
            (3) Information about changes to the child's immigration 
        status.
            (4) Other information about the child, designed to promote 
        and maintain family reunification, as the Secretary determines 
        in his or her discretion.

SEC. 107. 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 to the committees 
of jurisdiction a report 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. 108. 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. 109. CLARIFICATION OF EXISTING LAW.

    (a) Federal Law.--Nothing in this title 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) State Law.--Nothing in this title shall be interpreted to 
supersede or modify State child welfare laws where applicable.

SEC. 110. 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).

                  TITLE II--FAIR DAY IN COURT FOR KIDS

SEC. 201. 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 determined 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, or 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. 202. 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. 203. 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 to the Committee on the Judiciary of the Senate and 
the Committee on the Judiciary of the House of Representatives a report 
regarding the extent to which aliens described in section 292(b) of the 
Immigration and Nationality Act, as added by section 201(b)(1), 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 201(b)(1), 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. 204. 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 title.
    (b) Budgetary Effects.--The budgetary effects of this title, 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 title, 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.

               TITLE III--IMPROVING IMMIGRATION DETENTION

SEC. 301. IMMIGRATION DETENTION PRIORITIES.

    (a) Prioritization.--The Director of U.S. Immigration and Customs 
Enforcement shall use the limited resources of U.S. Immigration and 
Customs Enforcement to detain aliens who pose a threat to national 
security or public safety.
    (b) Presumption.--Absent extraordinary circumstances, aliens shall 
not be detained if--
            (1) they are known to be suffering from serious physical or 
        mental illness;
            (2) they have a disability;
            (3) they are elderly, pregnant, or nursing;
            (4) they are minors;
            (5) they demonstrate that they are primary caretakers of a 
        minor or an infirm person; or
            (6) their detention is otherwise not in the public 
        interest.

SEC. 302. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT DETENTION FACILITY 
              STANDARDS.

    Beginning not later than 1 year after the date of the enactment of 
this Act, all U.S. Immigration and Customs Enforcement detention system 
facilities, including contract facilities and local and county jails 
operating under intergovernmental service agreements, shall meet the 
Performance-Based National Detention Standards developed by U.S. 
Immigration and Customs Enforcement in 2011, including the revisions 
issued in December 2016.

SEC. 303. INCREASED FUNDING FOR ALTERNATIVES TO DETENTION.

    (a) In General.--The Secretary of Homeland Security shall provide 
sufficient funding to the Alternatives to Detention Division to cover 
alternatives to detention program costs for all aliens awaiting 
immigration proceedings who are not subject to detention.
    (b) Contracts Authorized.--The Director of U.S. Immigration and 
Customs Enforcement shall contract with nonprofit service providers 
with the ability to provide the services required in operating an 
alternatives to detention program whenever feasible.
    (c) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this section.

SEC. 304. INCREASING THE NUMBER OF IMMIGRATION JUDGES AND STRENGTHENING 
              MERIT-BASED HIRING AND DUE PROCESS.

    (a) Immigration Judges.--The Attorney General shall increase the 
total number of immigration judges by 225, compared to the number of 
immigration judges authorized on the date of the enactment of this Act.
    (b) Support Staff; Other Resources.--The Attorney General shall 
ensure that the Executive Office for Immigration Review has sufficient 
support staff, adequate technological and security resources, and 
appropriate facilities to conduct the immigration proceedings required 
under Federal law.
    (c) Limitation.--Amounts appropriated for the Executive Office for 
Immigration Review or for any other Department of Justice agency or 
function may not be used to implement numeric judicial performance 
standards or other standards that could negatively impact the fair 
administration of justice by the immigration courts.
    (d) Qualification; Selection.--The Attorney General shall--
            (1) ensure that all newly hired immigration judges and 
        Board of Immigration Appeals members are highly qualified and 
        trained to conduct fair, impartial adjudications in accordance 
        with applicable due process requirements; and
            (2) in selecting immigration judges, may not give any 
        preference to candidates with prior government experience 
        compared to equivalent subject-matter expertise resulting from 
        nonprofit, private bar, or academic experience.
    (e) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this section.

SEC. 305. U.S. CITIZENSHIP AND IMMIGRATION SERVICES REFUGEE CORPS 
              OFFICERS.

    The Secretary of Homeland Security shall increase the total number 
of Department of Homeland Security personnel who are responsible for 
processing refugee applications by not fewer than the maximum number of 
such personnel reassigned to the Asylum Division during fiscal year 
2018.
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