[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1733 Introduced in Senate (IS)]

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116th CONGRESS
  1st Session
                                S. 1733

    To limit the separation of children from their parents or legal 
guardians, to limit the detention of families and children, to provide 
 unaccompanied alien children with access to counsel, to increase the 
number of immigration judges and support staff, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 5, 2019

Mrs. Feinstein (for herself, Ms. Harris, Ms. Hirono, and Ms. Klobuchar) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To limit the separation of children from their parents or legal 
guardians, to limit the detention of families and children, to provide 
 unaccompanied alien children with access to counsel, to increase the 
number of immigration judges and support staff, 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 ``Protecting Families and Improving 
Immigration Procedures Act''.

SEC. 2. ENSURING THAT FAMILIES REMAIN TOGETHER.

    (a) Limitation on the Separation of Families.--
            (1) In general.--An agent or officer of a designated agency 
        shall not remove 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 1 of the following 
        situations has occurred:
                    (A) A State court, authorized under State law--
                            (i) terminates the rights of a parent or 
                        legal guardian;
                            (ii) 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
                            (iii) makes any similar determination that 
                        is legally authorized under State law.
                    (B) An official from the State or county child 
                welfare agency with expertise in child trauma and 
                development determines that it is in the best interests 
                of the child to be removed from his or her parent or 
                legal guardian because the child--
                            (i) is in danger of abuse or neglect at the 
                        hands of the parent or legal guardian; or
                            (ii) is a danger to himself or herself or 
                        to others.
                    (C) The Chief Patrol Agent or the Area Port 
                Director, in his or her official and undelegated 
                capacity, authorizes separation, upon the 
                recommendation by an agent or officer, based on a 
                finding that--
                            (i) the child is a victim of trafficking or 
                        is at significant risk of becoming a victim of 
                        trafficking;
                            (ii) there is a strong likelihood that the 
                        adult is not the parent or legal guardian of 
                        the child; or
                            (iii) the child is in danger of abuse or 
                        neglect at the hands of the parent or legal 
                        guardian, or is a danger to himself or herself 
                        or to others.
            (2) 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.
            (3) Documentation required.--The Secretary shall ensure 
        that a separation based upon a situation described in paragraph 
        (1)(C)--
                    (A) is documented in writing; and
                    (B) includes the reason for such separation and the 
                stated evidence for such separation.
    (b) Recommendations for Separation by Agents or Officers.--
            (1) 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 separations authorized under subsection (a)(1)(C).
            (2) Annual review.--Not less frequently than annually, the 
        Secretary of Health and Human Services shall--
                    (A) review the guidance developed under paragraph 
                (1); and
                    (B) make recommendations to the Secretary to ensure 
                that such guidance conforms to current evidence and 
                best practices in child welfare, child development, and 
                childhood trauma.
            (3) Requirement.--The guidance developed under paragraph 
        (1) shall incorporate the presumptions described in subsection 
        (c).
            (4) Additional requirements.--
                    (A) Evidence-based.--The guidance and training 
                developed under this subsection shall incorporate 
                evidence-based practices.
                    (B) Training required.--
                            (i) Initial training.--All agents and 
                        officers of designated agencies, upon hire, and 
                        annually thereafter, shall complete training on 
                        adherence to the guidance under this 
                        subsection.
                            (ii) Annual training.--All Chief Patrol 
                        Agents and Area Port Directors, upon hire, and 
                        annually thereafter, shall complete--
                                    (I) training on adherence to the 
                                guidance under this subsection; and
                                    (II) 90 minutes of child welfare 
                                practice training that is evidence-
                                based and trauma-informed.
    (c) Presumptions.--The presumptions described in this subsection 
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.--There is a presumption that detention is 
        not in the best interests of families and children.
    (d) Required Policy for Locating Separated Children.--
            (1) 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 
        subsection (a)(1). 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.
            (2) 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.
            (3) 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.
    (e) Required Information for Separated Families.--Not less 
frequently than monthly, the Secretary shall provide the parent or 
legal guardian of a child who was separated--
            (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; and
            (4) other information about the child, designed to promote 
        and maintain family reunification, as the Secretary determines 
        in his or her discretion.
    (f) 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--
            (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; and
            (10) other information in the Secretary's discretion.
    (g) 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.
    (h) Clarification of Existing Law.--
            (1) Federal law.--Nothing in this section may 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).
            (2) State law.--Nothing in this section may be interpreted 
        to supersede or modify State child welfare laws, as applicable.
    (i) GAO Report on Prosecution of Asylum Seekers.--
            (1) 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--
                    (A) the total number of persons who claimed a fear 
                of persecution, received a favorable credible fear 
                determination, and were referred for prosecution;
                    (B) 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;
                    (C) 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;
                    (D) the total number of asylum seekers who were 
                separated from their children as a result of being 
                referred for prosecution;
                    (E) 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;
                    (F) the total number of asylum seekers who were 
                referred for prosecution and also went through 
                immigration proceedings; and
                    (G) the total number of asylum seekers referred for 
                prosecution who were deported before going through 
                immigration proceedings.
            (2) Report.--Not later than 1 year after the date of the 
        enactment of this Act, the Comptroller General shall submit a 
        report to Congress that describes the results of the study 
        conducted under paragraph (1).

SEC. 3. FLORES SETTLEMENT AGREEMENT.

    (a) In General.--A family unit may be detained only in accordance 
with the holding made in Flores v. Sessions et al. (9th Cir. July 5, 
2017; C.D. CA; July 24, 2015) and the stipulated settlement agreement 
as 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'').
    (b) Rulemaking.--Any regulation proposed or promulgated to 
supersede the Flores settlement agreement is null and void.
    (c) Rule of Construction.--Nothing in this Act may be construed--
            (1) to affect the application of the Flores settlement 
        agreement to unaccompanied alien children; or
            (2) to abrogate the Flores settlement agreement.
    (d) Review of Detention Determinations.--The review of any 
determination by the Secretary to detain an individual or family unit 
under this section shall be in accordance with all other provisions of 
law, holdings (including any holding made in Flores v. Sessions et al. 
(9th Cir. July 5, 2017; C.D. CA. July 24, 2015)), consent decrees, and 
settlement agreements (including the Flores settlement agreement).

SEC. 4. ACCESS TO COUNSEL FOR UNACCOMPANIED ALIEN CHILDREN.

    (a) Appointment of Counsel.--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.
    (b) Length of Representation.--Once a child is designated as an 
unaccompanied alien child under subsection (a)--
            (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
            (2) any ancillary matters appropriate to such proceedings 
        even if the child reaches 18 years of age or is reunified with 
        a parent or legal guardian while the proceedings are pending.
    (c) Notice.--Not later than 72 hours after an unaccompanied alien 
child is taken into Federal custody, the child shall be notified that 
he or she will be provided with legal counsel in accordance with this 
section.
    (d) Within Detention Facilities.--The Secretary shall ensure that 
unaccompanied alien children have access to counsel inside all 
detention, holding, and border facilities.
    (e) 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 this section without 
        charge.
            (2) Development of necessary infrastructures and systems.--
        The Attorney General shall develop the necessary mechanisms--
                    (A) to identify counsel available to provide pro 
                bono legal assistance and representation to children 
                under this section; and
                    (B) to recruit such counsel.
    (f) Contracts; Grants.--
            (1) In general.--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.
            (2) Subcontracts.--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.
    (g) 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.
    (h) Duties of Counsel.--Counsel provided under this section shall--
            (1) represent the unaccompanied alien child in all 
        proceedings and matters relating to the immigration status of 
        the child or other actions involving the Department of Homeland 
        Security;
            (2) appear in person for all individual merits hearings 
        before the Executive Office for Immigration Review and 
        interviews involving the Department of Homeland Security;
            (3) owe the same duties of undivided loyalty, 
        confidentiality, and competent representation to the child as 
        is due to an adult client; and
            (4) carry out other such duties as may be proscribed by the 
        Attorney General or the Executive Office for Immigration 
        Review.

SEC. 5. INCREASES IN IMMIGRATION JUDGES AND SUPPORT STAFF.

    (a) Immigration Judges.--The Attorney General shall increase the 
total number of immigration judges to adjudicate pending cases and 
efficiently process future cases by not fewer than 75 judges during 
fiscal year 2019.
    (b) Support Staff.--The Attorney General shall--
            (1) increase the total number of judicial law clerks by 75 
        during fiscal year 2019; and
            (2) increase the total number of support staff for 
        immigration judges, including legal assistants and 
        interpreters, by 300 during fiscal year 2019.

SEC. 6. DOCKET MANAGEMENT FOR RESOURCE CONSERVATION.

    Notwithstanding any opposition from the Secretary, immigration 
judges may administratively close cases, and the Board of Immigration 
Appeals may remand cases for administrative closure, if an individual 
in removal proceedings--
            (1) appears to be prima facie eligible for a visa or other 
        immigration benefit; and
            (2) has a pending application for such benefit before U.S. 
        Citizenship and Immigration Services or another appropriate 
        agency.

SEC. 7. DEFINITIONS.

    In this Act:
            (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 attained 18 years of age; and
                    (B) has no permanent immigration status.
            (3) Committees of jurisdiction.--The term ``committees of 
        jurisdiction'' means--
                    (A) the Committee on the Judiciary of the Senate;
                    (B) the Committee on Health, Education, Labor, and 
                Pensions of the Senate; and
                    (C) 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 subsection (b)(3) and consistent 
        with subsections (c), (d), and (h).
            (7) Secretary.--The term ``Secretary'' means the Secretary 
        of Homeland Security.
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