[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 661 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
1st Session
S. 661
To provide for enhanced protections for vulnerable alien children, and
for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 5, 2019
Ms. Hirono (for herself, Ms. Cortez Masto, Ms. Harris, Mr. Blumenthal,
Mrs. Gillibrand, Ms. Klobuchar, Mr. Wyden, Ms. Smith, Mr. Booker, Mr.
Markey, Mr. Sanders, and Mr. Merkley) 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 of 2019''.
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.--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
available pursuant to section 3 is located;
(B) has direct experience working with children;
and
(C) is proficient in one or more of the most common
languages spoken by children apprehended at the
applicable port of entry or Border Patrol station.
(5) Commissioner.--The term ``Commissioner'' means the
Commissioner of U.S. Customs and Border Protection.
(6) Cooperating entity.--The term ``cooperating entity''
means a State or local entity acting pursuant to an agreement
with the Secretary.
(7) Department.--The term ``Department'' means the
Department of Homeland Security.
(8) 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.
(9) 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.
(10) Expert in pediatric medicine.--The term ``expert in
pediatric medicine'' means--
(A) an individual who is board-certified in
pediatric medicine in one 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.
(11) Migration deterrence program.--The term ``migration
deterrence program'' means an action relating to the
repatriation or referral for prosecution of one 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.).
(12) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
(13) 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.
(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--
(A) the applicable legal authorities, policies,
practices, and procedures relating to children; and
(B) child development, trauma, and the manner in
which trauma affects the health and behavior of
children; and
(2) require U.S. Customs and Border Protection personnel,
not less frequently than annually, to undertake continuing
training on--
(A) identifying and responding to common signs and
symptoms of medical distress in children;
(B) best practices with respect to the guidelines
developed under subsection (a); and
(C) changes in the legal authorities, policies, and
procedures described in paragraph (1)(A).
(c) Qualified Resources.--
(1) In general.--In accordance with subsection (d), the
Secretary shall provide resources and staff, including child
welfare professionals, who are adequately trained and qualified
to address the needs of children at each port of entry and
Border Patrol station.
(2) Sufficient staffing.--The Secretary shall ensure that
sufficient qualified child welfare professionals and qualified
experts in pediatric medicine 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.
(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, and on-site as necessary, 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 and Experts in Pediatric
Medicine.--
(1) In general.--The Secretary, in consultation with the
Secretary of Health and Human Services, shall ensure the
availability at each port of entry and Border Patrol station of
not fewer than--
(A) one qualified child welfare professional with
expertise in culturally competent, trauma-centered, and
developmentally appropriate interviewing skills; and
(B) one qualified expert in pediatric medicine.
(2) Medical assessments.--On obtaining custody of a child,
the Commissioner shall ensure that the child undergoes a
medical assessment carried out by, or in consultation with, the
expert in pediatric medicine at the applicable port of entry or
Border Patrol Station, in accordance with the guidelines
developed under subsection (a).
(3) Interpreter required.--In the case of a child welfare
professional or an expert in pediatric medicine at a port of
entry or Border Patrol station who does not speak the language
of a child in custody at such port of entry or station, the
Secretary shall provide an interpreter.
(4) Duties.--A child welfare professional described in
paragraph (1)(A) shall--
(A) ensure that--
(i) any allegation of abuse or mistreatment
of a child in the custody of the Commissioner
is referred to the appropriate Federal and
State authorities;
(ii) any investigation of an allegation
described in clause (i)--
(I) receives support from the child
welfare professional, who shall follow
up on the referral under that clause
and coordinate with the investigation
until the completion of the
investigation; and
(II) is conducted by a
multidisciplinary team that uses a
trauma-informed approach to
investigation, such as Children's
Advocacy Centers, to the maximum extent
practicable; and
(iii) the Commissioner 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;
(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 three 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;
(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.
(5) 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--
(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) each member of 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)(i) is included on the paperwork of each member
of an apprehended family unit; and
(ii) is not deleted or altered.
(g) Monitoring.--The Secretary shall--
(1) allow nongovernmental organizations and State and local
child welfare agencies in the jurisdiction in which an
apprehended child is located to conduct not less than one
monthly unannounced, independent inspection of any Department
facility that houses one or more children; and
(2) in consultation with one or more child welfare
professionals and 1 or more experts in pediatric medicine, for
the purpose of human rights monitoring, develop procedures to
provide nongovernmental organizations regular and full access
to any facility in which one or more children is housed.
(h) Report.--
(1) In general.--Not later than 18 months after the date of
the 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 Reform, and the Committee on Education and Labor
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
the 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.
(2) Requirements.--The regulations promulgated pursuant to
paragraph (1) shall ensure that all children in the custody of
the Commissioner, while in such custody--
(A) receive a health interview, a medical
assessment, and all necessary medical treatment,
including 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) diapers, diapering supplies, infant
formula, and infant feeding supplies, as
necessary;
(ix) in the case of any child in such
custody for more than 12 hours, access to a bed
and adequate bedding; and
(x) a location to sleep in which the lights
are dimmed;
(D)(i) are offered food at the time at which the
Commissioner obtains custody of the child; and
(ii) receive adequate nutrition, including not
fewer than three 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 one or more children are held in custody, the
video orientation described in paragraph (1)(B) is available in
English and the five 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 one 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 a criminal
conviction;
(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,
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)(4).
(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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