[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3178 Introduced in Senate (IS)]

<DOC>






118th CONGRESS
  1st Session
                                S. 3178

   To establish the Children's Court to improve the adjudication of 
       immigration cases involving unaccompanied alien children.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            November 1, 2023

  Mr. Bennet (for himself and Ms. Murkowski) introduced the following 
    bill; which was read twice and referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
   To establish the Children's Court to improve the adjudication of 
       immigration cases involving unaccompanied alien children.

    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 ``Immigration Court Efficiency and 
Children's Court Act of 2023''.

SEC. 2. ESTABLISHMENT AND STRUCTURE OF THE CHILDREN'S COURT.

    (a) Establishment of the Children's Court.--Chapter 4 of title II 
of the Immigration and Nationality Act (8 U.S.C. 1221 et seq.) is 
amended by inserting after section 240C (8 U.S.C. 1230) the following:

``SEC. 240D. CHILDREN'S COURT.

    ``(a) Definitions.--In this section:
            ``(1) Children's court.--The term `Children's Court' means 
        all of the specialized children's dockets described in this 
        section.
            ``(2) Director.--The term `Director' means the Director of 
        the Executive Office for Immigration Review.
            ``(3) Docket.--The term `docket' means a grouping of 
        removal proceedings that are held during a dedicated time on a 
        court's calendar and adjudicated separately from other 
        immigration cases.
    ``(b) Establishment.--The Attorney General shall establish and 
maintain, within the Executive Office for Immigration Review, 
specialized children's dockets for the adjudication of removal 
proceedings for any individual who--
            ``(1) was younger than 18 years of age on the date on which 
        such proceedings were initiated; and
            ``(2)(A) was previously determined by the Department of 
        Homeland Security or the Department of Health and Human 
        Services to be an unaccompanied alien child (as defined in 
        section 462(g)(2) of the Homeland Security Act of 2002 (6 
        U.S.C. 279(g)(2))); or
            ``(B) is the principal respondent in a proceeding if such 
        individual was referred to the children's docket by an 
        immigration judge, unless such child requests to remain on the 
        court's general docket.
            ``(c) Judges.--
                    ``(1) Geographic areas.--The Director shall divide 
                all of the immigration courts into geographical areas 
                with not more than 5 immigration courts in each such 
                area.
                    ``(2) Designations.--The Director, in consultation 
                with the Chief Immigration Judge, shall designate--
                            ``(A) an immigration judge to serve as 
                        Chief Children's Judge for the Children's 
                        Court; and
                            ``(B) 1 immigration judge in each 
                        geographical area referred to in to paragraph 
                        (1) to serve as the Assistant Chief Children's 
                        Judge for such area.
                    ``(3) Qualifications.--The Attorney General shall 
                establish, by regulation, qualifications for Children's 
                Court judges that ensure, among any other requirements, 
                that the Chief Children's Judge, each Assistant Chief 
                Children's Judge, and each immigration judge assigned 
                to the Children's Court--
                            ``(A) has substantial experience working 
                        with children in judicial or other settings;
                            ``(B) possess and have demonstrated a 
                        commitment to ensuring the fair administration 
                        of justice through child-appropriate court 
                        procedures; and
                            ``(C) apply for appointment to the 
                        Children's Court.
                    ``(4) Duties.--
                            ``(A) Chief children's judge.--The Chief 
                        Children's Judge shall--
                                    ``(i) establish operating policies 
                                and procedures for carrying out 
                                adjudications in the Children's Court 
                                in a manner that advances due process 
                                and fairness; and
                                    ``(ii) oversee the implementation 
                                of such policies and procedures.
                            ``(B) Assistant chief children's judges.--
                        In addition to his or her duties as an 
                        immigration judge, each Assistant Chief 
                        Children's Judge shall--
                                    ``(i) promote fair and just 
                                processes for carrying out 
                                adjudications in the specialized 
                                children's dockets in the immigration 
                                courts in his or her assigned 
                                geographical area; and
                                    ``(ii) ensure that all of the 
                                immigration judges assigned to a 
                                specialized children's docket in the 
                                immigration courts in such area 
                                complete the training described in 
                                paragraph (5).
                    ``(5) Training.--
                            ``(A) In general.--Immigration judges 
                        assigned to the Children's Court shall 
                        complete--
                                    ``(i) initial training upon 
                                assignment; and
                                    ``(ii) annual supplementary 
                                training.
                            ``(B) Topics.--Training required under this 
                        paragraph shall encompass the following topics:
                                    ``(i) Children's claims for 
                                immigration relief.
                                    ``(ii) Appropriate use of docket 
                                management tools to facilitate 
                                children's pursuit of relief through an 
                                application or petition to U.S. 
                                Citizenship and Immigration Services.
                                    ``(iii) Child-sensitive questioning 
                                techniques.
                                    ``(iv) Developmental- and trauma-
                                informed practice that accounts for 
                                children's developmental stage, trauma 
                                history, and other factors impacting a 
                                child's capacity when determining 
                                appropriate courtroom procedures, 
                                evaluating credibility, and considering 
                                testimony and other evidence adduced by 
                                a child, among other actions.
                                    ``(v) Methods for explaining the 
                                purpose and nature of court proceedings 
                                and procedures to children, including 
                                developmentally appropriate 
                                communication.
                                    ``(vi) The concept of the best 
                                interests of the child.
                                    ``(vii) Human trafficking of 
                                children.
                            ``(C) Legal representation.--Training 
                        required under this paragraph shall include 
                        instruction from governmental and 
                        nongovernmental experts in the legal 
                        representation of unaccompanied children, child 
                        development, child welfare, and child 
                        psychology. Assistant Chief Children's Judges 
                        shall consult with such experts to design 
                        training plans.
                    ``(6) Performance metrics.--The Executive Office 
                for Immigration Review may not implement minimal 
                numeric case load or case completion requirements, 
                judicial performance standards, or other standards for 
                immigration judges assigned to the Children's Court 
                that could negatively impact the fair administration of 
                justice or promotion of the best interests of the child 
                by the Children's Court.
                    ``(7) Assignment of other cases.--Immigration 
                judges assigned to the Children's Court may also be 
                assigned cases that are not on a specialized children's 
                docket if the total caseload of such judges does not 
                exceed 75 percent of the average caseload of 
                immigration judges who are not assigned to the 
                Children's Court.
    ``(d) Procedural Protections.--Proceedings in the Children's Court 
shall utilize child-appropriate procedures that allow for maximum 
participation of child respondents and promote due process, including--
            ``(1) continuances that are sufficient for a child to 
        obtain counsel;
            ``(2) conferring among the parties to the maximum extent 
        practicable to narrow the legal issues in advance of an 
        adjudication on the merits;
            ``(3) a rebuttable presumption in favor of granting a 
        child's request to dismiss or administratively close 
        proceedings when an application for relief is pending before or 
        approved by U.S. Citizenship and Immigration Services;
            ``(4) explanations of court proceedings and advisals by 
        immigration judges regarding legal rights and responsibilities 
        that accommodate a child's developmental level and capacity;
            ``(5) appropriate accommodations, including breaks during 
        oral testimony by a child;
            ``(6) language screening protocols to ensure that 
        interpretation is provided in the child's preferred language; 
        and
            ``(7) the use of virtual hearings only--
                    ``(A) at the request of the child or the child's 
                counsel; or
                    ``(B) if the immigration judge determines that 
                virtual hearings would be in the child's legal 
                interests.
    ``(e) Best Interests of the Child.--
            ``(1) In general.--The best interests of the child may be 
        considered in adjudicating motions, forms of relief, or any 
        other judicial decision requiring a discretionary analysis.
            ``(2) Considerations.--A best interests of the child 
        determination shall be made by a child advocate or other entity 
        or professional with comparable expertise in such 
        determinations, after taking into account--
                    ``(A) the safety and well-being of the child;
                    ``(B) the expressed interests of the child, taking 
                into account the child's age and stage of development;
                    ``(C) the physical and mental health of the child;
                    ``(D) the right of the child to family integrity, 
                liberty, and development; and
                    ``(E) the identity of the child, including 
                religious, ethnic, linguistic, gender, sexual 
                orientation, and cultural identity.
            ``(3) Appointment of independent child advocates.--
        Immigration judges assigned to the Children's Court, on their 
        own initiative or at the request of a child's counsel in an 
        immigration proceeding, shall consider the referral of a child 
        for appointment of an independent child advocate in accordance 
        with section 235(c)(6).
    ``(f) Legal Assistance for Unaccompanied Children.--Each Assistant 
Chief Children's Judge shall--
            ``(1) coordinate with qualified local providers of legal 
        services for children in the geographic area for purposes of 
        maximizing providers' capacity to provide legal assistance;
            ``(2) on each day when any unrepresented child is on the 
        Children's Court docket, make sufficient appropriate space 
        available in the court building to afford such child the 
        opportunity to meet confidentially with qualified providers of 
        legal services at no cost to the child; and
            ``(3) coordinate with the Secretary of Health and Human 
        Services for purposes of ensuring access to legal information 
        and representation for unaccompanied children to the greatest 
        extent practicable, in accordance with section 235(c)(5).
    ``(g) Establishment of Department of Homeland Security Children's 
Cohort.--
            ``(1) In general.--There is established, within the Office 
        of the Principal Legal Advisor, a Children's Cohort to 
        represent U.S. Immigration and Customs Enforcement in the 
        Children's Court.
            ``(2) Training.--Attorneys assigned to the Children's 
        Cohort shall receive, from governmental and nongovernmental 
        experts in child development, child psychology, and children's 
        immigration law, initial training upon appointment and annual 
        supplementary training regarding--
                    ``(A) unaccompanied children's claims for 
                immigration relief;
                    ``(B) child-sensitive questioning techniques; and
                    ``(C) trauma-informed interviewing and adjudication 
                methods.
            ``(3) Performance metrics.--Attorneys assigned to the 
        Children's Cohort may not be subjected to performance standards 
        or agency strategic measures that are based on case outcomes or 
        other standards that could negatively impact the fair 
        administration of justice.
            ``(4) Prosecutorial discretion.--Attorneys assigned to the 
        Children's Cohort, consistent with their existing authority to 
        exercise prosecutorial discretion, may seek resolution of cases 
        in a manner that promotes the fair administration of justice, 
        including by--
                    ``(A) moving to dismiss or administratively close 
                removal proceedings when an application for relief is 
                pending before or approved by U.S. Citizenship and 
                Immigration Services;
                    ``(B) agreeing to join motions for dismissal, 
                administrative closure, or continuances;
                    ``(C) stipulating to facts or conclusions of law;
                    ``(D) joining motions to grant relief; and
                    ``(E) not pursuing appeals.
            ``(5) Right to review certain documents.--Not later than 7 
        days after providing a notice to appear to an unaccompanied 
        child or to such child's legal counsel pursuant to section 
        239(a), the Director of U.S. Immigration and Customs 
        Enforcement shall provide to such child or such legal counsel, 
        as appropriate, a complete copy of the child'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).''.
    (b) Rulemaking.--The Attorney General shall promulgate regulations 
to implement the amendment made by subsection (a).
    (c) Clerical Amendment.--The table of contents of the Immigration 
and Nationality Act (8 U.S.C. 1101 note) is amended by inserting after 
the item relating to section 240C the following:

``Sec. 240D. Children's Court.''.

SEC. 3. PROHIBITION ON INFORMATION SHARING.

    (a) Child in Custody and Prospective Sponsors.--The Director of the 
Office of Refugee Resettlement may not provide any information about an 
unaccompanied alien child in the custody of the Secretary of Health and 
Human Services, or prospective sponsors, to the Attorney General or the 
Secretary of Homeland Security without the consent of--
            (1) such child or the child's prospective sponsor, as 
        applicable; and
            (2) the legal counsel of such child or sponsor, 
        respectively.
    (b) Immigration Enforcement.--
            (1) In general.--No information about an unaccompanied 
        alien child may be shared between the Office of Refugee 
        Resettlement and the Department of Homeland Security for 
        purposes of immigration enforcement.
            (2) Explanation for prospective sponsors.--The Director of 
        the Office of Refugee Resettlement shall ensure that 
        communications by the Office of Refugee Resettlement with 
        sponsors and prospective sponsors, including the family 
        reunification application packet, include an explanation that 
        information about a child, sponsor, or prospective sponsor 
        provided to the Office of Refugee Resettlement may only be 
        shared with the Department of Homeland Security if such child 
        and such child's sponsor or prospective sponsor have provided 
        informed consent.
    (c) Relief From Removal.--No information about an unaccompanied 
alien child may be shared between the Office of Refugee Resettlement 
and the Department of Homeland Security or the Department of Justice 
for purposes of relief from removal.
    (d) Exceptions.--
            (1) In general.--The Secretary of Health and Human Services 
        may provide for the disclosure of information about an 
        unaccompanied alien child in the same manner and circumstances 
        as census information may be disclosed by the Secretary of 
        Commerce under section 8 of title 13, United States Code.
            (2) National security purposes.--The Secretary of Health 
        and Human Services may provide for the disclosure of 
        information about an unaccompanied alien child to national 
        security officials to be used solely for a national security 
        purpose in a manner that protects the confidentiality of such 
        information.
            (3) Law enforcement purposes.--The Secretary of Health and 
        Human Services may provide for the disclosure of information 
        about an unaccompanied alien child to law enforcement officials 
        to be used solely for a legitimate law enforcement purpose in a 
        manner that protects the confidentiality of such information.
            (4) Eligibility for benefits.--The Secretary of Health and 
        Human Services may disclose information about an unaccompanied 
        alien child to Federal, State, and local public and private 
        agencies providing benefits, to be used solely in making 
        determinations of eligibility for benefits pursuant to section 
        431 of the Personal Responsibility and Work Opportunity 
        Reconciliation Act of 1996 (8 U.S.C. 1641).
            (5) Adjudication of applications for relief.--
                    (A) In general.--Government entities adjudicating 
                applications for relief under the immigration laws and 
                government personnel carrying duties required under 
                section 101(i)(1) of the Immigration and Nationality 
                Act (8 U.S.C. 1101(i)(1)) may, with the prior written 
                consent of the noncitizen involved, communicate with 
                nonprofit, nongovernmental victims' service providers 
                for the sole purpose of assisting victims in obtaining 
                victim services from programs with expertise in working 
                with immigrant victims. Agencies receiving referrals 
                under this subparagraph are bound by the restrictions 
                under this section.
                    (B) Rule of construction.--Nothing in this 
                paragraph may be construed as affecting the ability of 
                an applicant to designate a safe organization through 
                which governmental agencies may communicate with the 
                applicant.
    (e) Rule of Construction.--Subsections (a), (b), and (c) shall not 
be construed as preventing--
            (1) disclosure of information in connection with judicial 
        review of a determination in a manner that protects the 
        confidentiality of such information; or
            (2) the Secretary of Health and Human Services from 
        disclosing to the chair and ranking member of the Committee on 
        the Judiciary of the Senate or to the chair and ranking member 
        of the Committee on the Judiciary of the House of 
        Representatives, for the exercise of congressional oversight 
        authority, information on closed cases described in this 
        section in a manner that--
                    (A) protects the confidentiality of such 
                information; and
                    (B) omits personally identifying information 
                (including locational information about individuals).

SEC. 4. REPORTING AND EVALUATION.

    (a) Defined Term.--In this section, the term ``appropriate 
congressional committees'' means--
            (1) the Committee on the Judiciary of the Senate;
            (2) the Committee on Appropriations of the Senate;
            (3) the Committee on the Judiciary of the House of 
        Representatives; and
            (4) the Committee on Appropriations of the House of 
        Representatives.
    (b) Annual Reports.--Not later than 1 year after the date of the 
enactment of this Act, and annually thereafter, the Attorney General 
shall submit to the appropriate congressional committees and publish on 
a publicly accessible website a report describing--
            (1) the level of compliance of each relevant immigration 
        court with the requirements described in section 240D of the 
        Immigration and Nationality Act, as added by section 2(a);
            (2) corrective actions the Attorney General is taking or 
        plans to take to ensure that any relevant immigration court 
        that is not in compliance with the requirements referred to in 
        paragraph (1) expeditiously achieves such compliance;
            (3) training that has been provided to judges assigned to 
        the Children's Court (as defined in such section 240D);
            (4) the number of unaccompanied alien children's cases 
        pending before the Children's Court;
            (5) the number of unaccompanied alien children's cases 
        receiving final decisions in the Children's Court during the 
        reporting period, disaggregated by--
                    (A) decision type, including orders of removal, 
                grants of relief, dismissals, and terminations; and
                    (B) whether the children were represented by an 
                attorney at the time they received the final decisions;
            (6) unaccompanied alien children's appearance rates at 
        hearings before the Children's Court, disaggregated by whether 
        the children were represented by an attorney at the time of 
        such hearings; and
            (7) any immigration court resources conserved by the 
        establishment and administration of specialized children's 
        dockets.
    (c) Biennial Evaluations.--Not later than 2 years after the date of 
the enactment of this Act, and biennially thereafter, the Comptroller 
General of the United States shall submit to the appropriate 
congressional committees and publish on a public website a report 
evaluating--
            (1) the Attorney General's compliance with the requirements 
        described in section 240D of the Immigration and Nationality 
        Act, as added by section 2(a) across the Children's Court as a 
        whole and disaggregated by relevant immigration courts; and
            (2) the effectiveness of the Children's Court in--
                    (A) upholding fairness and due process in 
                unaccompanied alien children's proceedings; and
                    (B) limiting adjudication redundancy between the 
                Executive Office for Immigration Review and U.S. 
                Citizenship and Immigration Services.

SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

    There is authorized to be appropriated to the Department of 
Justice, the Department of Homeland Security, and the Department of 
Health and Human Services such sums as may be necessary to carry out 
this Act and the amendment made by this Act.
                                 <all>