[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3558 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  2d Session
                                S. 3558

To provide for enhanced protections for vulnerable alien children, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 5, 2018

Ms. Hirono (for herself, Ms. Cortez Masto, Ms. Harris, Mr. Merkley, Mr. 
 Blumenthal, Ms. Klobuchar, Mr. Booker, and Ms. Smith) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
To provide for enhanced protections for vulnerable 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.

    This Act may be cited as the ``Child Trafficking Victims Protection 
and Welfare Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Apprehended parent or legal guardian.--The term 
        ``apprehended parent or legal guardian'' means an individual 
        who is--
                    (A) the parent or legal guardian of a child; and
                    (B) apprehended by the Secretary or the personnel 
                of a cooperating entity.
            (2) Border.--The term ``border'' means an international 
        border of the United States.
            (3) Child.--The term ``child'' means an individual who--
                    (A) has not reached the age of 18 years; and
                    (B) has no permanent immigration status in the 
                United States.
            (4) Child welfare professional.--Except for purposes of 
        section 3(a), the term ``child welfare professional'' means an 
        individual who--
                    (A) is licensed in social work by the State welfare 
                agency, and, if applicable, county welfare agency, of 
                the State and county in which the port of entry or 
                Border Patrol station at which such individual is 
                available pursuant to section 3 is located;
                    (B) has direct experience working with children; 
                and
                    (C) is proficient in 1 or more of the most common 
                languages spoken by children apprehended at the 
                applicable port of entry or Border Patrol station.
            (5) Cooperating entity.--The term ``cooperating entity'' 
        means a State or local entity acting pursuant to an agreement 
        with the Secretary.
            (6) Department.--The term ``Department'' means the 
        Department of Homeland Security.
            (7) Expert in child development.--The term ``expert in 
        child development'' means an individual who has significant 
        education and expertise on infant, child, and adolescent 
        development, and on the effects of trauma on children.
            (8) Expert in child welfare.--The term ``expert in child 
        welfare'' means an individual who has--
                    (A) knowledge of Federal and State child welfare 
                laws and standards; and
                    (B) not less than 15 years of experience in the 
                field of child and adolescent development or child 
                welfare.
            (9) Expert in pediatric medicine.--The term ``expert in 
        pediatric medicine'' means--
                    (A) an individual qualified to practice pediatric 
                medicine in 1 or more States; or
                    (B) an individual with an advanced degree in 
                pediatric medicine on the faculty of an institution of 
                higher education in the United States.
            (10) Migration deterrence program.--The term ``migration 
        deterrence program'' means an action relating to the 
        repatriation or referral for prosecution of 1 or more 
        individuals apprehended by the Secretary or a cooperating 
        entity for a suspected or confirmed violation of the 
        Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
            (11) Secretary.--The term ``Secretary'' means the Secretary 
        of Homeland Security.
            (12) Unaccompanied alien child.--The term ``unaccompanied 
        alien child'' has the meaning given the term in section 462(g) 
        of the Homeland Security Act of 2002 (6 U.S.C. 279(g)).

SEC. 3. CHILD WELFARE AT THE BORDER.

    (a) Guidelines.--The Secretary, in consultation with the Secretary 
of Health and Human Services, experts in child development, experts in 
child welfare, experts in pediatric medicine, and the American Bar 
Association Center on Children and the Law, shall develop guidelines 
for the treatment of children in the custody of the Commissioner of 
U.S. Customs and Border Protection (CBP).
    (b) Mandatory Training.--The Secretary, in consultation with the 
Secretary of Health and Human Services, shall--
            (1) require all U.S. Customs and Border Protection 
        personnel, and cooperating entity personnel, who have contact 
        with a child at a port of entry or Border Patrol station to 
        undergo appropriate training, which shall include live 
        training, on the applicable legal authorities, policies, 
        practices, and procedures relating to children; and
            (2) require U.S. Customs and Border Protection personnel to 
        undertake periodic and continuing training on best practices 
        and changes in relevant legal authorities, policies, and 
        procedures applicable in connection with subsection (a) and 
        paragraph (1).
    (c) Qualified Resources.--
            (1) In general.--The Secretary shall provide resources and 
        staff who are adequately trained and qualified to address the 
        needs of children, including child welfare professionals, at 
        each port of entry and Border Patrol station, in accordance 
        with subsection (d).
            (2) Sufficient staffing.--The Secretary shall ensure that 
        sufficient qualified child welfare professionals are available 
        at each port of entry and Border Patrol station to accomplish 
        the duties described in this section without prolonging the 
        time children and apprehended parents and legal guardians 
        remain in the custody of the Commissioner of U.S. Customs and 
        Border Protection.
            (3) Child welfare expertise.--The Secretary, in 
        consultation with the Secretary of Health and Human Services, 
        shall hire, or seek to enter into contracts with, independent 
        child welfare professionals in order to do the following:
                    (A) To provide child welfare expertise on-site on a 
                full-time basis at any port of entry or Border Patrol 
                station that has had not fewer than 25 children in 
                custody--
                            (i) on any day during the preceding fiscal 
                        year; or
                            (ii) during the current fiscal year, based 
                        on a review of monthly statistical reports 
                        during the current fiscal year.
                    (B) To provide child welfare expertise by telephone 
                on an on-call basis to U.S. Customs and Border 
                Protection staff at any port of entry or Border Patrol 
                station that is not described in subparagraph (A).
                    (C) With respect to a port of entry or Border 
                Patrol station that is described in subparagraph (A) 
                but is without on-site expertise as required by such 
                subparagraph during a period of not more than 90 days 
                in which the Secretary, in consultation with the 
                Secretary of Health and Human Services, is in the 
                process of hiring or seeking to enter into a contract 
                with an onsite independent child welfare professional, 
                to provide child welfare expertise by telephone on an 
                on-call basis to U.S. Customs and Border Protection 
                staff.
    (d) Child Welfare Professionals.--
            (1) In general.--The Secretary, in consultation with the 
        Secretary of Health and Human Services, shall ensure that 1 or 
        more qualified child welfare professionals with expertise in 
        culturally competent, trauma-centered, and developmentally 
        appropriate interviewing skills is available at each port of 
        entry and Border Patrol station.
            (2) Interpreter required.--In a case in which a child 
        welfare professional at a port of entry or Border Patrol 
        station does not speak the language of a child in custody at 
        such port of entry or station, the Secretary shall provide an 
        interpreter.
            (3) Duties.--A child welfare professional described in 
        paragraph (1) shall--
                    (A) ensure that--
                            (i) any allegation of abuse or mistreatment 
                        of a child in the custody of U.S. Customs and 
                        Border Protection is referred to the 
                        appropriate Federal and State authorities; and
                            (ii) the Commissioner of U.S. Customs and 
                        Border Protection and the Director of the 
                        Office of Refugee Resettlement comply with 
                        applicable child abuse reporting laws, 
                        including by--
                                    (I) ensuring that children in such 
                                custody have access to applicable 
                                complaint mechanisms to report abuse or 
                                misconduct;
                                    (II) reporting any allegation of 
                                abuse or mistreatment to--
                                            (aa) the applicable Federal 
                                        and State authorities;
                                            (bb) the Office of 
                                        Inspector General of the 
                                        Department;
                                            (cc) the Office for Civil 
                                        Rights and Civil Liberties of 
                                        the Department;
                                            (dd) the Internal Affairs 
                                        Office of U.S. Customs and 
                                        Border Protection; and
                                            (ee) the Office of Refugee 
                                        Resettlement; and
                                    (III) providing notice to federally 
                                subcontracted legal service providers 
                                in the applicable geographical area 
                                with respect to any child in such 
                                custody who has made an allegation of 
                                abuse or mistreatment; and
                                    (IV) directing the legal service 
                                providers described in subclause (III) 
                                to relevant information relating to the 
                                availability of immigration and 
                                administrative relief for individuals 
                                with pending civil rights complaints;
                    (B) conduct screening of each child in such custody 
                in accordance with section 235(a)(4) of the William 
                Wilberforce Trafficking Victims Protection 
                Reauthorization Act of 2008 (8 U.S.C. 1232(a)(4));
                    (C) with respect to a child who may meet the 
                notification and transfer requirements under 
                subsections (a) and (b) of section 235 of the William 
                Wilberforce Trafficking Victims Protection 
                Reauthorization Act of 2008 (8 U.S.C. 1232), including 
                a child for whom a determination cannot be made, notify 
                the Secretary and the Director of the Office of Refugee 
                Resettlement of the presence of such child at the port 
                of entry or Border Patrol station;
                    (D) provide to the Director of U.S. Immigration and 
                Customs Enforcement a best interest placement 
                recommendation for each accompanied child and family 
                that--
                            (i) considers--
                                    (I) the best interests of the 
                                child; and
                                    (II) applicable law; and
                            (ii) favors a policy of release;
                    (E) interview any adult relative accompanying a 
                child, including any sibling, grandparent, aunt, uncle, 
                or cousin of the child;
                    (F) for each unaccompanied alien child in such 
                custody, provide to the Director of the Office of 
                Refugee Resettlement--
                            (i) an initial family relationship and 
                        trafficking assessment, which shall be 
                        conducted in accordance with the timeframe 
                        under subsections (a)(4) and (b)(3) of section 
                        235 of the William Wilberforce Trafficking 
                        Victims Protection Reauthorization Act of 2008 
                        (8 U.S.C. 1232); and
                            (ii) recommendations for the initial 
                        placement of the child;
                    (G) pursuant to procedures developed by the 
                Secretary, maintain the best interests of children in 
                any migration deterrence program for family units 
                carried out at a border, including by--
                            (i) inquiring whether a child is traveling 
                        with a parent, sibling, or legal guardian;
                            (ii) ascertaining whether the detention or 
                        removal from the United States of an 
                        apprehended parent or legal guardian of a child 
                        presents a humanitarian concern or a concern 
                        relating to the physical safety of the 
                        apprehended parent or legal guardian;
                            (iii) in the case of a family separation, 
                        ensuring that--
                                    (I) each member of the family is 
                                provided with a telephone number for 
                                each other member of the family;
                                    (II) the apprehended parent or 
                                legal guardian is afforded the 
                                opportunity to speak with the child of 
                                the apprehended parent or legal 
                                guardian not fewer than 3 times weekly, 
                                including not fewer than 1 video 
                                conference;
                                    (III) for each child of the 
                                apprehended parent or legal guardian, 
                                the apprehended parent or legal 
                                guardian--
                                            (aa) knows--

                                                    (AA) the location 
                                                of the child; and

                                                    (BB) the date and 
                                                location of each 
                                                scheduled immigration 
                                                court proceeding of the 
                                                child; and

                                            (bb) is provided with 
                                        updated information if the 
                                        location of the child or a 
                                        scheduled immigration court 
                                        proceeding of the child 
                                        changes; and
                                    (IV) the location and contact 
                                information for the apprehended parent 
                                or legal guardian is maintained on 
                                file;
                                    (V) before separation, each child 
                                is provided with an opportunity to say 
                                goodbye to the apprehended parent or 
                                legal guardian; and
                                    (VI) with respect to the health of 
                                the child, the apprehended parent or 
                                legal guardian--
                                            (aa) is able, before 
                                        separation, to communicate to 
                                        personnel of the Department the 
                                        medical history and any known 
                                        illness of the child; and
                                            (bb) is informed of any 
                                        medical treatment administered 
                                        to the child, including 
                                        psychotropic drugs, during the 
                                        period in which the child is in 
                                        the custody of the Director of 
                                        the Office of Refugee 
                                        Resettlement; and
                            (iv) ensuring that, with respect to a 
                        decision relating to the removal from the 
                        United States or referral for prosecution of an 
                        apprehended parent or legal guardian--
                                    (I) consideration is given to--
                                            (aa) the best interests of 
                                        the child of the apprehended 
                                        parent or legal guardian;
                                            (bb) family unity, to the 
                                        maximum extent possible; and
                                            (cc) any other public 
                                        interest factor, including a 
                                        humanitarian concern and a 
                                        concern relating to the 
                                        physical safety of the 
                                        apprehended parent or legal 
                                        guardian; and
                                    (II) the apprehended parent or 
                                legal guardian and the child have 
                                access to legal counsel; and
                    (H) coordinate with the Consulate of Mexico to 
                ensure the safe repatriation of any child who is a 
                citizen of Mexico.
            (4) Preservation of confidentiality.--Each child welfare 
        professional shall maintain the privacy and confidentiality of 
        all information gathered in the course of providing care, 
        custody, placement, and follow-up services to a child pursuant 
        to this subsection, consistent with the best interest of the 
        child, by not disclosing such information to other Federal 
        agencies or nonparental third parties unless such disclosure--
                    (A) is in the best interest of the child;
                    (B) is in writing;
                    (C) includes an explanation of the justification 
                for the disclosure;
                    (D) is included in the file of the child; and
                    (E) is either--
                            (i) authorized by the child or an approved 
                        sponsor of the child, in accordance with 
                        section 235 of the William Wilberforce 
                        Trafficking Victims Protection Reauthorization 
                        Act of 2008 (8 U.S.C. 1232) and the Health 
                        Insurance Portability and Accountability Act 
                        (Public Law 104-191; 110 Stat. 1936); or
                            (ii) provided to a duly recognized law 
                        enforcement entity to prevent imminent and 
                        serious harm to another individual.
    (e) Prohibition on Separation.--The Secretary may not remove a 
child from a parent or legal guardian solely for a purpose as follows:
            (1) The purpose of furthering the policy objective of 
        deterring individuals from migrating to the United States.
            (2) The purpose of furthering the policy objective of 
        promoting compliance with the immigration laws.
    (f) Family Unit Tracking Number.--
            (1) In general.--The Secretary shall assign a family unit 
        tracking number to each member of an apprehended family unit, 
        including--
                    (A) an apprehended spouse;
                    (B) an apprehended parent or legal guardian;
                    (C) a child of an apprehended parent or legal 
                guardian; and
                    (D) a sibling group.
            (2) Requirements.--The Secretary shall ensure that a family 
        unit tracking number--
                    (A) is transferrable;
                    (B) may be shared easily among the data systems 
                of--
                            (i) U.S. Customs and Border Protection;
                            (ii) U.S. Immigration and Customs 
                        Enforcement; and
                            (iii) the Office of Refugee Resettlement; 
                        and
                    (C) is included on the paperwork of each member of 
                an apprehended family unit and is not deleted or 
                altered.
    (g) Monitoring.--The Secretary shall--
            (1) allow humanitarian organizations and State and local 
        child welfare agencies in the jurisdiction in which an 
        apprehended child is located to conduct at least 1 monthly 
        unannounced, independent inspection of any Department facility 
        that houses 1 or more children; and
            (2) in consultation with 1 or more child welfare 
        professionals, for the purpose of human rights monitoring, 
        develop procedures to provide nongovernmental organizations 
        regular access to any facility in which 1 or more children is 
        housed.
    (h) Report.--
            (1) In general.--Not later than 18 months after the date of 
        enactment of this Act, and every fiscal quarter thereafter, the 
        Secretary shall submit to the Committee on the Judiciary, the 
        Committee on Homeland Security and Governmental Affairs, and 
        the Committee on Health, Education, Labor, and Pensions of the 
        Senate and the Committee on the Judiciary, the Committee on 
        Oversight and Government Reform, and the Committee on Education 
        and the Workforce of the House of Representatives a report 
        that, for the preceding fiscal quarter--
                    (A) describes the procedures used by child welfare 
                professionals under this section to screen 
                unaccompanied alien children and children accompanied 
                by a parent or legal guardian;
                    (B) assesses the effectiveness of such screenings;
                    (C) includes data on all children screened by child 
                welfare professionals under this section, including--
                            (i) the number and location of children in 
                        the physical custody of the Department;
                            (ii) the number of children transferred to 
                        the custody of the Secretary of Health and 
                        Human Services;
                            (iii) the number of children apprehended 
                        together with a parent or legal guardian;
                            (iv) the number of children separated from 
                        a parent or legal guardian by the Department 
                        and the reason for such separation; and
                            (v) the number of children removed from the 
                        United States and the countries of nationality 
                        of such children; and
                    (D) includes documentation of--
                            (i) compliance with the guidelines 
                        developed pursuant to this section;
                            (ii) instances of noncompliance with such 
                        guidelines; and
                            (iii) actions taken to correct 
                        noncompliance with such guidelines.
            (2) Limitation.--The data under paragraph (1)(C) shall not 
        include the personally identifiable information of any child.
    (i) Immediate Notification.--With respect to a child in the custody 
of the Secretary, to effectively and efficiently coordinate the 
transfer of the child to and placement of the child with the Director 
of the Office of Refugee Resettlement, the Secretary shall notify the 
Director of the Office of Refugee Resettlement as soon as practicable, 
but not later than 48 hours after the time at which the Secretary 
encounters the child.
    (j) Standards of Care for Short-Term Custody of Children.--
            (1) In general.--Not later than 180 days after the date of 
        enactment of this Act, the Secretary, in consultation with the 
        head of the Office for Civil Rights and Civil Liberties of the 
        Department, shall promulgate regulations establishing basic 
        standards of care for the short-term custody of children by the 
        Commissioner of U.S. Customs and Border Protection.
            (2) Requirements.--The regulations promulgated pursuant to 
        paragraph (1) shall ensure that all children in the custody of 
        the Commissioner of U.S. Customs and Border Protection, while 
        in such custody--
                    (A) receive emergency medical care, as necessary;
                    (B) receive emergency medical and mental health 
                care in compliance with section 8(c) of the Prison Rape 
                Elimination Act of 2003 (42 U.S.C. 15607(c)), as 
                necessary, including in any case in which a child is at 
                risk of harming himself or herself or others;
                    (C) are provided--
                            (i) continual access to potable water;
                            (ii) a climate-appropriate environment;
                            (iii) climate-appropriate clothing and 
                        shoes;
                            (iv) access to bathroom facilities and 
                        hygiene items, including soap, feminine hygiene 
                        products, toothpaste, toothbrushes and towels, 
                        and, in the case of any child in such custody 
                        for more than 24 hours, showers;
                            (v) a pillow;
                            (vi) linens;
                            (vii) sufficient blankets to rest at a 
                        comfortable temperature;
                            (viii) in the case of any child in such 
                        custody for more than 12 hours, access to a bed 
                        and adequate bedding; and
                            (ix) a location to sleep in which the 
                        lights are dimmed;
                    (D)(i) are offered food at the time at which the 
                Commissioner of U.S. Customs and Border Protection 
                obtains custody of the child; and
                    (ii) receive adequate nutrition, including not 
                fewer than 3 daily meals that include 1 or more fruits 
                or vegetables;
                    (E) have a safe and sanitary living environment;
                    (F) in the case of any child in such custody for 
                more than 24 hours, have access to daily recreational 
                programs and activities, including recreational time 
                outdoors;
                    (G) have regular access to legal services and 
                consular officials in person and telephonically; and
                    (H) are permitted to make supervised video 
                conference calls, if available, and telephone calls to 
                family members.
    (k) Ensuring Children Have Access to Legal Rights.--
            (1) In general.--The Secretary shall ensure that each 
        child, on apprehension, is provided--
                    (A) an interview and screening with a child welfare 
                professional as described in subsection (d); and
                    (B) a video orientation and oral and written 
                notice, in a language understood by the child, of the 
                rights of the child under the Immigration and 
                Nationality Act (8 U.S.C. 1101 et seq.), including--
                            (i) the right to relief from removal;
                            (ii) the right--
                                    (I) to confer with counsel under 
                                section 292 of such Act (8 U.S.C. 
                                1362); and
                                    (II) to have access to family or 
                                friends while in the temporary custody 
                                of the Department; and
                            (iii) the applicable complaint mechanism to 
                        report any abuse, mistreatment, or misconduct.
            (2) Languages.--The Secretary shall ensure that, at each 
        location at which 1 or more children are held in custody, the 
        video orientation described in paragraph (1)(B) is available in 
        English and the 5 most common native languages spoken by 
        children held in custody at that location during the preceding 
        fiscal year.
            (3) Access to legal counsel.--The Secretary shall ensure 
        that each apprehended parent or legal guardian and each child 
        is provided access to 1 or more nongovernmental organizations 
        that provide legal assistance.
    (l) Child Protection Policies.--With respect to children, the 
Secretary shall adopt fundamental child protection policies and 
procedures--
            (1) to make reliable age determinations, developed in 
        consultation with experts in the physiological, cognitive, and 
        emotional development of children and experts in pediatric 
        medicine, which shall exclude the use of fallible forensic 
        testing of the bones and teeth of children;
            (2) to use all legal authorities to defer the removal from 
        the United States of a child who faces a risk of life-
        threatening harm on return, including harm due to the mental 
        health or medical condition of the child; and
            (3) to ensure, in accordance with the Juvenile Justice and 
        Delinquency Prevention Act of 1974 (42 U.S.C. 5601 et seq.), 
        that a child in custody of the Secretary is separated 
        physically, and by sight and sound, from any--
                    (A) immigration detainee or inmate with criminal 
                convictions;
                    (B) pretrial inmate facing criminal prosecution; 
                and
                    (C) inmate exhibiting violent behavior.
    (m) Preservation of Records.--The Secretary shall preserve all 
records associated with children in the custody of the Commissioner of 
U.S. Customs and Border Protection, including records as follows:
            (1) Records containing information on the identity of any 
        child, and, if accompanied by any family member, on the 
        identity of such family member.
            (2) Records associated with reported incidents of abuse of 
        children while in custody.
    (n) Transfer of Funds.--
            (1) Authorization.--The Secretary, in accordance with a 
        written agreement between the Secretary and the Secretary of 
        Health and Human Services, to the extent and in such amounts as 
        are provided in advance in appropriations Acts, shall transfer 
        from amounts appropriated for U.S. Customs and Border 
        Protection to the Department of Health and Human Services such 
        amounts as may be necessary to carry out the duties described 
        in subsections (c) and (d)(3).
            (2) Report.--Not later than 15 days before the date of any 
        proposed transfer under paragraph (1), the Secretary of Health 
        and Human Services, in consultation with the Secretary, shall 
        submit to the Committee on Appropriations of the Senate and the 
        Committee on Appropriations of the House of Representatives a 
        detailed expenditure plan that describes the actions proposed 
        to be taken with the amounts transferred under such paragraph.

SEC. 4. SAVINGS PROVISIONS.

    (a) Federal Law.--Nothing in this Act may be construed to supersede 
or modify--
            (1) the William Wilberforce Trafficking Victims Protection 
        Act of 2008 (8 U.S.C. 1232 et seq.);
            (2) the Stipulated Settlement Agreement filed in the United 
        States District Court for the Central District of California on 
        January 17, 1997 (CV 85-4544-RJK) (commonly known as the 
        ``Flores Settlement Agreement'');
            (3) the Homeland Security Act of 2002 (6 U.S.C. 101 et 
        seq.); or
            (4) any applicable Federal child welfare law, including the 
        Adoption and Safe Families Act of 1997 (Public Law 105-89).
    (b) State Law.--Nothing in this Act may be construed to supersede 
or modify any applicable State child welfare law.
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