[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3108 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                S. 3108

 To provide counsel for unaccompanied children, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 28, 2021

 Ms. Hirono (for herself, Mr. Bennet, Mr. Blumenthal, Mr. Booker, Mr. 
 Coons, Ms. Cortez Masto, Mr. Durbin, Mrs. Feinstein, Mrs. Gillibrand, 
 Mr. Heinrich, Mr. Hickenlooper, Ms. Klobuchar, Mr. Leahy, Mr. Markey, 
   Mr. Menendez, Mr. Merkley, Mr. Murphy, Mr. Padilla, Mr. Reed, Ms. 
Rosen, Mr. Sanders, Mr. Schatz, Ms. Smith, Ms. Warren, Mr. Whitehouse, 
and Mr. Wyden) introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To provide counsel for unaccompanied 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 ``Fair Day in Court for Kids Act of 
2021''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Noncitizen.--The term ``noncitizen'' means an 
        individual who is not a citizen or national of the United 
        States.
            (2) Unaccompanied child.--The term ``unaccompanied child'' 
        has the meaning given the term ``unaccompanied alien child'' in 
        section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 
        279(g)).

SEC. 3. REFERENCES TO ALIENS.

    With respect to an individual who is not a citizen or national of 
the United States, any reference in this Act to a ``noncitizen'' shall 
be deemed to refer to an individual otherwise described as an ``alien'' 
in any Federal law, Federal regulation, or any written instrument 
issued by the executive branch of the Government.

SEC. 4. IMPROVING IMMIGRATION COURT EFFICIENCY AND REDUCING COSTS BY 
              INCREASING ACCESS TO LEGAL INFORMATION.

    (a) Definitions.--Section 101(a) of the Immigration and Nationality 
Act (8 U.S.C. 1101(a)) is amended by adding at the end the following:
    ``(53) The term `noncitizen' means an individual who is not a 
citizen or national of the United States.
    ``(54) The term `unaccompanied child' has the meaning given the 
term `unaccompanied alien child' in section 462(g) of the Homeland 
Security Act of 2002 (6 U.S.C. 279(g)).''.
    (b) 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), in the matter preceding subparagraph 
        (A), by striking ``under regulations of the Attorney General'' 
        and inserting ``under regulations of the Attorney General, or 
        in the case of an unaccompanied child, under regulations of the 
        Secretary of Health and Human Services''--
                    (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, or in the case of an 
                unaccompanied child, the Secretary of Health and Human 
                Services, may appoint or provide counsel, at Government 
                expense, to noncitizens in immigration proceedings;
                    ``(C) the noncitizen, or the noncitizen's counsel, 
                not later than 7 days after receiving a notice to 
                appear under section 239(a), shall receive a complete 
                copy of the noncitizen'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 noncitizen required documents.--A 
        removal proceeding may not proceed until the noncitizen, or the 
        noncitizen's counsel if the noncitizen 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, unless the noncitizen or the 
                noncitizen's counsel expressly waives such review 
                period.''.
    (c) Clarification Regarding the Authority of the Federal Government 
To Appoint Counsel to Noncitizens 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.--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 Children.--
            ``(1) In general.--In any removal proceeding and in any 
        appeal proceeding before the Attorney General from any such 
        removal proceeding, an unaccompanied child shall be represented 
        by counsel appointed or provided by the Secretary of Health and 
        Human Services, at Government expense, unless the child has 
        obtained at his or her own expense counsel authorized to 
        practice in such proceeding.
            ``(2) Timing.--The Secretary of Health and Human Services 
        shall appoint or provide counsel to an unaccompanied child 
        under paragraph (1)--
                    ``(A) as expeditiously as possible; and
                    ``(B) not later than the date on which the child is 
                first scheduled to appear before an immigration judge.
            ``(3) Length of representation.--An unaccompanied child 
        shall be represented by counsel under paragraph (1) at every 
        stage of the proceedings from the unaccompanied 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.
            ``(4) Continuity in representation.--If counsel retained by 
        an unaccompanied child at his or her own expense ceases 
        representing the child for any reason, the Secretary of Health 
        and Human Services shall ensure continued representation of the 
        child by appointing or providing new counsel as expeditiously 
        as possible.
            ``(5) Notice.--Not later than 72 hours after an 
        unaccompanied 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 subsection.
            ``(6) Within detention facilities.--The Secretary of 
        Homeland Security shall ensure that unaccompanied 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 
        Secretary of Health and Human Services shall make every effort 
        to use 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.--Through appropriate nonprofit organizations described 
        in subsection (d), the Secretary of Health and Human Services 
        shall ensure the availability of the necessary mechanisms to 
        identify, recruit, train, and oversee counsel available to 
        provide pro bono legal assistance and representation to 
        unaccompanied children under subsection (b).
    ``(d) Contracts; Grants.--
            ``(1) In general.--The Secretary of Health and Human 
        Services may enter into contracts with, or award grants to, 
        nonprofit organizations 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, identifying, 
        recruiting, training, and overseeing pro bono attorneys.
            ``(2) Subcontracts and subgrants permitted.--Nonprofit 
        organizations may enter into subcontracts with, or award grants 
        to, other nonprofit organizations 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 Director of the 
        Office of Refugee Resettlement, in consultation with the 
        Director of the Executive Office for Immigration Review and 
        nonprofit organizations with relevant expertise in providing 
        immigration-related legal services to children, shall develop 
        model guidelines for the legal representation of unaccompanied 
        children in immigration proceedings, which shall be based on--
                    ``(A) the 2018 report of the American Bar 
                Association entitled `Standards for the Custody, 
                Placement and Care; Legal Representation; and 
                Adjudication of Unaccompanied Alien Children in the 
                United States';
                    ``(B) the American Bar Association Model Rules of 
                Professional Conduct; and
                    ``(C) any other source the Director of the Office 
                of Refugee Resettlement considers appropriate.
            ``(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.--The duties of counsel appointed or 
provided under this section shall include--
            ``(1) representing the unaccompanied alien child 
        concerned--
                    ``(A) in all proceedings and matters relating to 
                the immigration status of the child and;
                    ``(B) with respect to any other action involving 
                the Department of Homeland Security;
            ``(2) appearing in person for each of the child's--
                    ``(A) individual merits hearings and master 
                calendar hearings before the Executive Office for 
                Immigration Review; and
                    ``(B) interviews involving the Department of 
                Homeland Security;
            ``(3) owing the same duties of undivided loyalty, 
        confidentiality, and competent representation to the child as 
        is due to an adult client;
            ``(4) advocating for the child's legal interests, as 
        directed by the child's express wishes;
            ``(5) in the case of a child who does not express the 
        objectives of representation, or is found incompetent, 
        referring the child for the appointment of an independent child 
        advocate, as described in section 235(c)(6) of the William 
        Wilberforce Trafficking Victims Protection Reauthorization Act 
        of 2008 (8 U.S.C. 1232(c)(6)); and
            ``(6) carrying out other such duties as may be prescribed 
        by the Secretary of Health and Human Services or the Director 
        of the Executive Office for Immigration Review.
    ``(g) Savings Provision.--Nothing in this section may be construed 
to supersede--
            ``(1) any duties, responsibilities, 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 Secretary of Health and Human Services 
        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. 5. ACCESS BY COUNSEL TO DEPARTMENT OF HOMELAND SECURITY 
              FACILITIES.

    The Secretary of Homeland Security shall provide access to counsel 
for all noncitizens detained in--
            (1) a facility under the supervision of U.S. Immigration 
        and Customs Enforcement or U.S. Customs and Border Protection; 
        or
            (2) a private facility that contracts with the Department 
        of Homeland Security to house, detain, or hold noncitizens.

SEC. 6. REPORT ON ACCESS TO COUNSEL.

    (a) Report.--Not later than December 31 of each year, the Secretary 
of Health and Human Services, in consultation with the Attorney 
General, shall prepare and submit a report to the Committee on the 
Judiciary of the Senate and the Committee on the Judiciary of the House 
of Representatives regarding the extent to which the Secretary has 
provided counsel for unaccompanied children as described in subsection 
(b) of section 292 of the Immigration and Nationality Act, as amended 
by section 4(c).
    (b) Contents.--Each report submitted under paragraph (a) shall 
include, for the immediately preceding 1-year period--
            (1) the number and percentage of unaccompanied children 
        described in subsection (b) of section 292 of the Immigration 
        and Nationality Act, as amended by section 4(c), who were 
        represented by counsel, including information specifying--
                    (A) the stage of the legal process at which 
                representation of each such child commenced;
                    (B) whether each such child was in government 
                custody on the date on which such representation 
                commenced; and
                    (C) the nationality and ages of such children;
            (2) the number and percentage of children who received Know 
        Your Rights presentations, including the nationality and ages 
        of such children; and
            (3) a description of the mechanisms used under subsection 
        (b) of section 292 of the Immigration and Nationality Act, as 
        added by section 4(c), for identifying, recruiting, and 
        training pro bono counsel to represent unaccompanied children.

SEC. 7. MOTIONS TO REOPEN.

    Section 240(c)(7)(C) of the Immigration and Nationality Act (8 
U.S.C. 1229a(c)(7)(C)) is amended by adding at the end the following:
                            ``(v) Special rule for unaccompanied 
                        children entitled to appointment of counsel.--
                        If the Secretary of Health and Human Services 
                        fails to appoint or provide counsel for an 
                        unaccompanied child under section 292(b)--
                                    ``(I) the limitations under this 
                                paragraph with respect to the filing of 
                                a motion to repopen by such child shall 
                                not apply; and
                                    ``(II) the filing of such a motion 
                                shall stay the removal of the child.''.

SEC. 8. AUTHORIZATION OF APPROPRIATIONS.

    (a) In General.--There is authorized to be appropriated to the 
Office of Refugee Resettlement such sums as may be necessary to carry 
out this Act.
    (b) Budgetary Effects.--The budgetary effects of this Act, 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 Act, 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.
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