[Congressional Record Volume 149, Number 77 (Thursday, May 22, 2003)]
[Senate]
[Pages S7018-S7027]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Brownback, Mr. Voinovich, Ms. 
        Cantwell, Mr. DeWine, Mr. Lautenberg, Mr. Feingold, and Mr. 
        Kennedy):
  S. 1129. A bill to provide for the protection of unaccompanied alien 
children, and for other purposes; to the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, I rise to introduce the 
``Unaccompanied Alien Child Protection Act of 2003,'' bipartisan 
legislation to reform the way the Federal Government treats 
unaccompanied alien children who are in Federal immigration custody. I 
am pleased to be joined by my colleagues, Senators Brownback, 
Voinovich, Kennedy, Cantwell, DeWine, Feingold, and Lautenberg in 
introducing this important measure.
  Approximately 5,000 foreign-born children under the age of 18 enter 
the United States each year unaccompanied by parents or other legal 
guardians. These children are among the most vulnerable of the 
immigrant population.
  Many have often entered the country under traumatic circumstances. 
They are young and alone, subject to abuse and exploitation. They are 
often unable to articulate their fears, their views, or testify to 
their needs as accurately as adults can.
  Despite these facts, U.S. Immigration laws and policies have been 
developed and implemented without regard for their effect on children, 
particularly on unaccompanied alien children.
  Under current immigration law, these children are forced to struggle 
through a system designed primarily for adults, even though they lack 
the capacity to understand nuances legal principles and procedures. 
Children who may very well be eligible for relief are often vulnerable 
to being deported back to the very life-threatening situations from 
which they fled--before they are even able to make their cases before 
the Department of Homeland Security or an immigration judge.
  Prior to March 1, 2003, the Immigration Naturalization Service, INS, 
had responsibility for the care, custody, and treatment of 
unaccompanied alien children. Too often, the INS, fell short in 
fulfilling the protection side of these responsibilities.
  The legislation that I am introducing today builds on Section 462 of 
Public Law 107-296, the ``Homeland Security Act of 2002'', which 
provided for the transfer of responsibility for the care

[[Page S7020]]

and placement of unaccompanied alien children from the now-abolished 
INS to the Office of Refugee Resettlement, ORR, within the Department 
of Health and Human Services. This provision was based on S. 121, 
comprehensive legislation relating to unaccompanied alien children that 
I introduced at the beginning of the 107th Congress.
  With the enactment of the Homeland Security Act, we set into motion 
the centralization of responsibility for the care and custody of 
unaccompanied alien children in the Office of Refugee Resettlement. The 
first phase of this transfer of responsibility occurred on March 1, 
2003. Once the transition is completed, we have finally resolved the 
conflict of interest inherent in the former system.
  I am pleased that the provision transferring responsibility for the 
care and custody of unaccompanied alien children was contained in the 
Homeland Security Act. Its inclusion in the new law was an important 
first step in reforming the way unaccompanied alien children are 
treated. It was a key provision for two reasons: First, it will help 
ensure that the Secretary of Homeland Security is not burdened with 
policy issues unrelated to the threat of terrorism. The new Department 
has a huge and important mission and its attention should be focused on 
that mission. Second, it recognizes that the Federal Government has a 
special responsibility to protect these children who are in federal 
custody. The INS did not always live up that responsibility.
  But, the transfer of authority to the ORR--by itself--is not enough 
to ensure that these children are properly treated. Congress now has a 
responsibilty to go beyond the simple transfer and set the priorities 
for ORR and its new jurisdiction over unaccompanied foreign-born 
minors.
  A number of other important reforms that were contained in last 
year's S. 121 were left out of the Homeland Security Act. Enactment of 
these reforms will be crucial if we truly are to reform the manner in 
which these children are treated. As I mentioned, the Unaccompanied 
Alien Child Protection Act of 2003 builds on the Homeland Security Act 
in two ways: First, it would make a number of technical and conforming 
changes in law to bring about the smooth transfer of the INS's 
unaccompanied alien child-related functions to ORR. Second, it would 
make a number of more substantive reforms in law with respect the 
respect to the treatment of these children--reforms that are designed 
to ensure that such children are treated with fairness and compassion.
  Other provisions include those that would keep children who are 
criminals or who pose a threat to national security under the custody 
of the Department of Homeland Security rather than transfer 
responsibility of them to the ORR.

  I first became involved in this issue when I heard about a young 15-
year old Chinese girl who stood before a U.S. immigration court facing 
deportation proceedings. She had found her way to the United States as 
a stowaway in a container ship captured off of Guam, hoping to escape 
the repression she had experienced in her home country.
  She had been placed on a boat bound for the United States by her very 
own parents, fleeing China's rigid family planning laws, Under these 
laws, she was denied citizenship, education, and medical care. She came 
to this country alone and desperate.
  And what did our immigration authorities do when they found her? The 
INS detained her in a juvenile jail in Portland, OR, for 8 months 
before her asylum hearing, and 4 months after she was granted asylum.
  At her asylum hearing, the young girl stood before a judge, 
unrepresented by counsel, confused, and unable to understand the 
proceedings against her. She could not wipe away the tears from her 
face because her hands were chained to her waist. According to a lawyer 
who later came to represent her, ``her only crime was that her parents 
had put her on a boat so she could get a better life over here.''
  While the young girl eventually received asylum in our country, she 
unnecessarily faced an ordeal no child should bear under our 
immigration system. This young Chinese girl represents only one of 
5,000 foreign-born children who, without parents or legal guardians to 
protect them, are discovered in the United States each year in need of 
protection. This, is unacceptable treatment. We have a responsibility 
to do better than this.
  Central throughout the Unaccompanied Alien Child Protection Act of 
2003 are two concepts: 1. The United States Government has a 
fundamental responsibility to protect unaccompanied children in its 
custody; and 2. in all proceedings and actions, the government should 
have as a high priority protecting the interests of these children, 
most of whom are unable to understand the nature of the proceedings in 
which they are involved.
  This bill would ensure that children who are apprehended by 
immigration authorities are treated humanely and appropriately 
by: ensuring that eligible unaccompanied alien children are promptly 
placed in the custody of Office of Refugee Resettlement after they are 
encountered by immigration officials; ensuring that the children have 
counsel to represent them in immigration proceedings and matters; 
authorizing the Director of ORR to provide guardians ad litem for the 
children to look after their interests; establishing clear guidelines 
and uniformity for detention alternatives such as shelter care, foster 
care, and other child custody arrangements; establishing minimum 
standards for detention and alternative settings that take into account 
the special needs of children; improving such children's access to 
existing options for permanent protection when U.S. immigration and 
child welfare authorities believe such protection is warranted; setting 
forth procedures that immigration officers should follow when 
apprehending unaccompanied alien children at the United states border 
or at United States ports of entry; establishing procedures to ensure 
that the true age of an alien who claims to be under the age of 18 is 
determined; ensuring that the Department of Homeland Security, rather 
than the Office of Refugee Resettlement, maintain custody over children 
who are either criminals or threats to national security; and 
establishing procedures to ensure that certain unaccompanied alien 
children from Mexico or Canada, encountered along the United States 
border, are returned to their homes, subject to formal agreements 
between the United States and those countries providing for their safe 
return without undue delay.

  Without enactment of my legislation, none of these important 
parameters would be placed on the Office of Refugee Resettlement or the 
Department of Homeland Security.
  This bill also includes provisions that provide for the safety of the 
significant number of unaccompanied alien children who are victims of 
smuggling or trafficking rings. For example, 2 years ago, Phanupong 
Khaisri, a 2-year old Thai child, was brought to the United States by 
two individuals falsely claiming to be his parents, but who were 
actually part of a major alien trafficking ring.
  The INS was prepared to deport the child back to Thailand. It was not 
until Members of Congress and the local Thai community had intervened, 
however, that the INS decided to allow the child to remain in the 
United States until the agency could provide proper medical attention 
and determine what course of action would be in his best interest.
  The Unaccompanied Alien Child Protection Act aims to prevent 
situations like this from recurring. Moreover, the legislation would 
ensure that children are released into safe and humane environments 
while awaiting a determination of their status when that is 
appropriate, and it would ensure that the children are protected from 
smugglers, traffickers, or others who might exploit them.
  Further, it would require the ORR to take steps to ensure that 
unaccompanied alien children are protected from smugglers or others who 
may wish to do them harm, and authorizes reimbursement for State and 
local expenses associated with caring for unaccompanied alien children.
  Children, even more than adults, have incredible difficulty 
understanding the complexities of the immigration system without the 
assistance of counsel. Despite this reality, most children in 
immigration custody are overlooked and unrepresented. Without legal 
representation, children are at risk of being returned to their home

[[Page S7021]]

countries where they may face further human rights abuses.
  The Unaccompanied Alien Child Protection Act of 20032 would require 
that all unaccompanied alien children in Federal custody by reason of 
their immigration status have counsel to represent them in any 
immigration proceedings involving them. It would vest in the Director 
of ORR responsibility for ensuring that the children have counsel, and 
it would provide the Director power to establish an infrastructure for 
developing a system to recruit and support pro bono counsel who can 
represent these children without cost to them or to the government.
  It provides, as a last resort, that counsel could be provided for the 
children at government expense, capping the fees that such counsel 
could charge in the event that the government pays for such counsel.
  This bill would authorize, but not mandate, the Director of ORR to 
put into place a system of guardians ad litem who would help the court 
in determining the best interests of children in U.S. custody.
  The vast majority of unaccompanied alien children have been forced to 
maneuver the immigration system without any representation or without 
any assistance. This is unacceptable. It results in many children 
participating in a system without any understanding of the process they 
are undergoing or the ramifications of their situation.

  Under this section, the guardian ad litem would not be working ``for 
the child.'' Nor would he or she be working for the Department of 
Homeland Security. Instead, he or she would be an impartial observer 
reporting to the court and to the Office of Refugee Resettlement on 
what he or she thinks is in the best interest of the child.
  The guardians ad litem system could be modeled after any of a number 
of systems already existing in juvenile courts throughout the American 
juvenile justice system. This system is not a novel legal concept, but 
one that is trusted and already in place in every state in proceedings 
involving juveniles.
  Imagine the fear of a foreign-born child, in the United States alone 
without a parent or guardian. Imagine that child being thrust into a 
system she did not understand, given no legal aid, placed in jail that 
housed juveniles with serious criminal convictions. Mr. President, I 
find it hard to believe that our country would have allowed innocent 
children to be treated in such a manner.
  That is why my colleagues and I are introducing this legislation 
today. The Unaccompanied Alien Child Protection Act of 2003 will help 
our country fulfill the special obligation to these children.
  I am proud to have the support of the United States Conference of 
Catholic Bishops, the Women's Commission on Refugee Women and Children, 
the Lutheran Immigration and Refugee Service, the American Bar 
Association, the United National High Commissioner for Refugees, and 
many other organizations with whom I have worked closely to develop 
this legislation.
  I urge my colleagues to join me by cosponsoring this important 
measure and ensuring that these reforms are finally enacted.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1129

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the 
     ``Unaccompanied Alien Child Protection Act of 2003''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.

     TITLE I--CUSTODY, RELEASE, FAMILY REUNIFICATION, AND DETENTION

Sec. 101. Procedures when encountering unaccompanied alien children.
Sec. 102. Family reunification for unaccompanied alien children with 
              relatives in the United States.
Sec. 103. Appropriate conditions for detention of unaccompanied alien 
              children.
Sec. 104. Repatriated unaccompanied alien children.
Sec. 105. Establishing the age of an unaccompanied alien child.
Sec. 106. Effective date.

TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO GUARDIANS AD LITEM 
                              AND COUNSEL

Sec. 201. Guardians ad litem.
Sec. 202. Counsel.
Sec. 203. Effective date; applicability.

  TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN 
                                CHILDREN

Sec. 301. Special immigrant juvenile visa.
Sec. 302. Training for officials and certain private parties who come 
              into contact with unaccompanied alien children.
Sec. 303. Report.
Sec. 304. Effective date.

             TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS

Sec. 401. Guidelines for children's asylum claims.
Sec. 402. Unaccompanied refugee children.
Sec. 403. Exceptions for unaccompanied alien children in asylum and 
              refugee-like circumstances.

                TITLE V--AUTHORIZATION OF APPROPRIATIONS

Sec. 501. Authorization of appropriations.

       TITLE VI--AMENDMENTS TO THE HOMELAND SECURITY ACT OF 2002

Sec. 601. Additional responsibilities and powers of the Office of 
              Refugee Resettlement with respect to unaccompanied alien 
              children.
Sec. 602. Technical corrections.
Sec. 603. Effective date.

     SEC. 2. DEFINITIONS.

       (a) In General.--In this Act:
       (1) Competent.--The term ``competent'', in reference to 
     counsel, means an attorney who complies with the duties set 
     forth in this Act and--
       (A) is a member in good standing of the bar of the highest 
     court of any State, possession, territory, Commonwealth, or 
     the District of Columbia;
       (B) is not under any order of any court suspending, 
     enjoining, restraining, disbarring, or otherwise restricting 
     the attorney in the practice of law; and
       (C) is properly qualified to handle matters involving 
     unaccompanied immigrant children or is working under the 
     auspices of a qualified nonprofit organization that is 
     experienced in handling such matters.
       (2) Director.--The term ``Director'' means the Director of 
     the Office.
       (3) Directorate.--The term ``Directorate'' means the 
     Directorate of Border and Transportation Security established 
     by section 401 of the Homeland Security Act of 2002 (6 U.S.C. 
     201).
       (4) Office.--The term ``Office'' means the Office of 
     Refugee Resettlement as established by section 411 of the 
     Immigration and Nationality Act (8 U.S.C. 1521).
       (5) Secretary.--The term ``Secretary'' means the Secretary 
     of Homeland Security.
       (6) Unaccompanied alien child.--The term ``unaccompanied 
     alien child'' has the same meaning as is given the term in 
     section 462(g)(2) of the Homeland Security Act of 2002 (6 
     U.S.C. 279(g)(2)).
       (7) Voluntary agency.--The term ``voluntary agency'' means 
     a private, nonprofit voluntary agency with expertise in 
     meeting the cultural, developmental, or psychological needs 
     of unaccompanied alien children, as certified by the Director 
     of the Office of Refugee Resettlement.
       (b) Amendments to the Immigration and Nationality Act.--
     Section 101(a) of the Immigration and Nationality Act (8 
     U.S.C. 1101(a)) is amended by adding at the end the 
     following:
       ``(51) The term `unaccompanied alien child' means a child 
     who--
       ``(A) has no lawful immigration status in the United 
     States;
       ``(B) has not attained the age of 18; and
       ``(C) with respect to whom--
       ``(i) there is no parent or legal guardian in the United 
     States; or
       ``(ii) no parent or legal guardian in the United States is 
     able to provide care and physical custody.
       ``(52) The term `unaccompanied refugee children' means 
     persons described in paragraph (42) who--
       ``(A) have not attained the age of 18; and
       ``(B) with respect to whom there are no parents or legal 
     guardians available to provide care and physical custody.''.

     TITLE I--CUSTODY, RELEASE, FAMILY REUNIFICATION, AND DETENTION

     SEC. 101. PROCEDURES WHEN ENCOUNTERING UNACCOMPANIED ALIEN 
                   CHILDREN.

       (a) Unaccompanied Children Found Along the United States 
     Border or at United States Ports of Entry.--
       (1) In general.--Subject to paragraph (2), if an 
     immigration officer finds an unaccompanied alien child who is 
     described in paragraph (2) at a land border or port of entry 
     of the United States and determines that such child is 
     inadmissible under the Immigration and Nationality Act (8 
     U.S.C. 1101 et seq.), the officer shall--
       (A) permit such child to withdraw the child's application 
     for admission pursuant to section 235(a)(4) of the 
     Immigration and Nationality Act (8 U.S.C. 1225(a)(4)); and
       (B) return such child to the child's country of nationality 
     or country of last habitual residence.
       (2) Special rule for contiguous countries.--
       (A) In general.--Any child who is a national or habitual 
     resident of a country that

[[Page S7022]]

     is contiguous with the United States and that has an 
     agreement in writing with the United States providing for the 
     safe return and orderly repatriation of unaccompanied alien 
     children who are nationals or habitual residents of such 
     country shall be treated in accordance with paragraph (1), 
     unless a determination is made on a case-by-case basis that--
       (i) such child is a national or habitual resident of a 
     country described in subparagraph (A);
       (ii) such child has a fear of returning to the child's 
     country of nationality or country of last habitual residence 
     owing to a fear of persecution;
       (iii) the return of such child to the child's country of 
     nationality or country of last habitual residence would 
     endanger the life or safety of such child; or
       (iv) the child cannot make an independent decision to 
     withdraw the child's application for admission due to age or 
     other lack of capacity.
       (B) Right of consultation.--Any child described in 
     subparagraph (A) shall have the right to consult with a 
     consular officer from the child's country of nationality or 
     country of last habitual residence prior to repatriation, as 
     well as consult with the Office, telephonically, and such 
     child shall be informed of that right in the child's native 
     language.
       (3) Rule for apprehensions at the border.--The custody of 
     unaccompanied alien children not described in paragraph (2) 
     who are apprehended at the border of the United States or at 
     a United States port of entry shall be treated in accordance 
     with the provisions of subsection (b).
       (b) Care and Custody of Unaccompanied Alien Children Found 
     in the Interior of the United States.--
       (1) Establishment of jurisdiction.--
       (A) In general.--Except as otherwise provided under 
     subparagraphs (B) and (C) and subsection (a), the care and 
     custody of all unaccompanied alien children, including 
     responsibility for their detention, where appropriate, shall 
     be under the jurisdiction of the Office.
       (B) Exception for children who have committed crimes.--
     Notwithstanding subparagraph (A), the Directorate shall 
     retain or assume the custody and care of any unaccompanied 
     alien child who--
       (i) has been charged with any felony, excluding offenses 
     proscribed by the Immigration and Nationality Act (8 U.S.C. 
     1101 et seq.), while such charges are pending; or
       (ii) has been convicted of any such felony.
       (C) Exception for children who threaten national 
     security.--Notwithstanding subparagraph (A), the Directorate 
     shall retain or assume the custody and care of an 
     unaccompanied alien child if the Secretary has substantial 
     evidence, based on an individualized determination, that such 
     child could personally endanger the national security of the 
     United States.
       (D) Trafficking victims.--For purposes of section 462 of 
     the Homeland Security Act of 2002 (6 U.S.C. 279) and this 
     Act, an unaccompanied alien child who is eligible for 
     services authorized under the Victims of Trafficking and 
     Violence Protection Act of 2000 (Public Law 106-386), shall 
     be considered to be in the custody of the Office.
       (2) Notification.--
       (A) In general.--The Secretary shall promptly notify the 
     Office upon--
       (i) the apprehension of an unaccompanied alien child;
       (ii) the discovery that an alien in the custody of the 
     Directorate is an unaccompanied alien child;
       (iii) any claim by an alien in the custody of the 
     Directorate that such alien is under the age of 18; or
       (iv) any suspicion that an alien in the custody of the 
     Directorate who has claimed to be over the age of 18 is 
     actually under the age of 18.
       (B) Special rule.--In the case of an alien described in 
     clause (iii) or (iv) of subparagraph (A), the Director shall 
     make an age determination in accordance with section 105 and 
     take whatever other steps are necessary to determine whether 
     or not such alien is eligible for treatment under section 462 
     of the Homeland Security Act of 2002 (6 U.S.C. 279) or this 
     Act.
       (3) Transfer of unaccompanied alien children.--
       (A) Transfer to the office.--The care and custody of an 
     unaccompanied alien child shall be transferred to the 
     Office--
       (i) in the case of a child not described in subparagraph 
     (B) or (C) of paragraph (1), not later than 72 hours after 
     the apprehension of such child; or
       (ii) in the case of a child whose custody and care has been 
     retained or assumed by the Directorate pursuant to 
     subparagraph (B) or (C) of paragraph (1), immediately 
     following a determination that the child no longer meets the 
     description set forth in such subparagraphs.
       (B) Transfer to the directorate.--Upon determining that a 
     child in the custody of the Office is described in 
     subparagraph (B) or (C) of paragraph (1), the Director shall 
     promptly make arrangements to transfer the care and custody 
     of such child to the Directorate.
       (c) Age Determinations.--In any case in which the age of an 
     alien is in question and the resolution of questions about 
     the age of such alien would affect the alien's eligibility 
     for treatment under section 462 of the Homeland Security Act 
     of 2002 (6 U.S.C. 279) or this Act, a determination of 
     whether or not such alien meets the age requirements for 
     treatment under this Act shall be made by the Director in 
     accordance with section 105.

     SEC. 102. FAMILY REUNIFICATION FOR UNACCOMPANIED ALIEN 
                   CHILDREN WITH RELATIVES IN THE UNITED STATES.

       (a) Placement Authority.--
       (1) Order of preference.--Subject to the discretion of the 
     Director under paragraph (4) and section 103(a)(2), an 
     unaccompanied alien child in the custody of the Office shall 
     be promptly placed with 1 of the following individuals or 
     entities in the following order of preference:
       (A) A parent who seeks to establish custody, as described 
     in paragraph (3)(A).
       (B) A legal guardian who seeks to establish custody, as 
     described in paragraph (3)(A).
       (C) An adult relative.
       (D) An entity designated by the parent or legal guardian 
     that is capable and willing to care for the well-being of the 
     child.
       (E) A State-licensed juvenile shelter, group home, or 
     foster care program willing to accept physical custody of the 
     child.
       (F) A qualified adult or entity seeking custody of the 
     child when it appears that there is no other likely 
     alternative to long-term detention and family reunification 
     does not appear to be a reasonable alternative. For purposes 
     of this subparagraph, the qualification of the adult or 
     entity shall be decided by the Office.
       (2) Suitability assessment.--Notwithstanding paragraph (1), 
     no unaccompanied alien child shall be placed with a person or 
     entity unless a valid suitability assessment conducted by an 
     agency of the State of the child's proposed residence, by an 
     agency authorized by that State to conduct such an 
     assessment, or by an appropriate voluntary agency contracted 
     with the Office to conduct such assessments has found that 
     the person or entity is capable of providing for the child's 
     physical and mental well-being.
       (3) Right of parent or legal guardian to custody of 
     unaccompanied alien child.--
       (A) Placement with parent or legal guardian.--If an 
     unaccompanied alien child is placed with any person or entity 
     other than a parent or legal guardian, but subsequent to that 
     placement a parent or legal guardian seeks to establish 
     custody, the Director shall assess the suitability of placing 
     the child with the parent or legal guardian and shall make a 
     written determination on the child's placement within 30 
     days.
       (B) Rule of construction.--Nothing in this Act shall be 
     construed to--
       (i) supersede obligations under any treaty or other 
     international agreement to which the United States is a 
     party, including The Hague Convention on the Civil Aspects of 
     International Child Abduction, the Vienna Declaration and 
     Program of Action, and the Declaration of the Rights of the 
     Child; or
       (ii) limit any right or remedy under such international 
     agreement.
       (4) Protection from smugglers and traffickers.--
       (A) Policies and programs.--
       (i) In general.--The Director shall establish policies and 
     programs to ensure that unaccompanied alien children are 
     protected from smugglers, traffickers, or other persons 
     seeking to victimize or otherwise engage such children in 
     criminal, harmful, or exploitative activity.
       (ii) Witness protection programs included.--The programs 
     established pursuant to clause (i) may include witness 
     protection programs.
       (B) Criminal investigations and prosecutions.--Any officer 
     or employee of the Office or the Department of Homeland 
     Security, and any grantee or contractor of the Office, who 
     suspects any individual of being involved in any activity 
     described in subparagraph (A) shall report such individual to 
     Federal or State prosecutors for criminal investigation and 
     prosecution.
       (C) Disciplinary action.--Any officer or employee of the 
     Office or the Department of Homeland Security, and any 
     grantee or contractor of the Office, who suspects an attorney 
     of being involved in any activity described in subparagraph 
     (A) shall report the individual to the State bar association 
     of which the attorney is a member, or to other appropriate 
     disciplinary authorities, for appropriate disciplinary action 
     that may include private or public admonition or censure, 
     suspension, or disbarment of the attorney from the practice 
     of law.
       (5) Grants and contracts.--Subject to the availability of 
     appropriations, the Director may make grants to, and enter 
     into contracts with, voluntary agencies to carry out section 
     462 of the Homeland Security Act of 2002 (6 U.S.C. 279) or to 
     carry out this section.
       (6) Reimbursement of state expenses.--Subject to the 
     availability of appropriations, the Director may reimburse 
     States for any expenses they incur in providing assistance to 
     unaccompanied alien children who are served pursuant to 
     section 462 of the Homeland Security Act of 2002 (6 U.S.C. 
     279) or this Act.
       (b) Confidentiality.--All information obtained by the 
     Office relating to the immigration status of a person 
     described in subsection (a) shall remain confidential and may 
     be used only for the purposes of determining such person's 
     qualifications under subsection (a)(1).

     SEC. 103. APPROPRIATE CONDITIONS FOR DETENTION OF 
                   UNACCOMPANIED ALIEN CHILDREN.

       (a) Standards for Placement.--

[[Page S7023]]

       (1) Prohibition of detention in certain facilities.--Except 
     as provided in paragraph (2), an unaccompanied alien child 
     shall not be placed in an adult detention facility or a 
     facility housing delinquent children.
       (2) Detention in appropriate facilities.--An unaccompanied 
     alien child who has exhibited a violent or criminal behavior 
     that endangers others may be detained in conditions 
     appropriate to the behavior in a facility appropriate for 
     delinquent children.
       (3) State licensure.--In the case of a placement of a child 
     with an entity described in section 102(a)(1)(E), the entity 
     must be licensed by an appropriate State agency to provide 
     residential, group, child welfare, or foster care services 
     for dependent children.
       (4) Conditions of detention.--
       (A) In general.--The Director shall promulgate regulations 
     incorporating standards for conditions of detention in such 
     placements that provide for--
       (i) educational services appropriate to the child;
       (ii) medical care;
       (iii) mental health care, including treatment of trauma, 
     physical and sexual violence, or abuse;
       (iv) access to telephones;
       (v) access to legal services;
       (vi) access to interpreters;
       (vii) supervision by professionals trained in the care of 
     children, taking into account the special cultural, 
     linguistic, and experiential needs of children in immigration 
     proceedings;
       (viii) recreational programs and activities;
       (ix) spiritual and religious needs; and
       (x) dietary needs.
       (B) Notification of children.--Regulations promulgated in 
     accordance with subparagraph (A) shall provide that all 
     children are notified orally and in writing of such standards 
     in the child's native language.
       (b) Prohibition of Certain Practices.--The Director and the 
     Secretary shall develop procedures prohibiting the 
     unreasonable use of--
       (1) shackling, handcuffing, or other restraints on 
     children;
       (2) solitary confinement; or
       (3) pat or strip searches.
       (c) Rule of Construction.--Nothing in this section shall be 
     construed to supersede procedures favoring release of 
     children to appropriate adults or entities or placement in 
     the least secure setting possible, as defined in the 
     Stipulated Settlement Agreement under Flores v. Reno.

     SEC. 104. REPATRIATED UNACCOMPANIED ALIEN CHILDREN.

       (a) Country Conditions.--
       (1) Sense of congress.--It is the sense of Congress that, 
     to the extent consistent with the treaties and other 
     international agreements to which the United States is a 
     party, and to the extent practicable, the United States 
     Government should undertake efforts to ensure that it does 
     not repatriate children in its custody into settings that 
     would threaten the life and safety of such children.
       (2) Assessment of conditions.--
       (A) In general.--The Secretary of State shall include each 
     year in the State Department Country Report on Human Rights, 
     an assessment of the degree to which each country protects 
     children from smugglers and traffickers.
       (B) Factors for assessment.--The Office shall consult the 
     State Department Country Report on Human Rights and the 
     Victims of Trafficking and Violence Protection Act of 2000: 
     Trafficking in Persons Report in assessing whether to 
     repatriate an unaccompanied alien child to a particular 
     country.
       (b) Report on Repatriation of Unaccompanied Alien 
     Children.--
       (1) In general.--Not later than 18 months after the date of 
     enactment of this Act, and annually thereafter, the Director 
     shall submit a report to the Committees on the Judiciary of 
     the House of Representatives and the Senate on efforts to 
     repatriate unaccompanied alien children.
       (2) Contents.--The report submitted under paragraph (1) 
     shall include, at a minimum, the following information:
       (A) The number of unaccompanied alien children ordered 
     removed and the number of such children actually removed from 
     the United States.
       (B) A description of the type of immigration relief sought 
     and denied to such children.
       (C) A statement of the nationalities, ages, and gender of 
     such children.
       (D) A description of the procedures used to effect the 
     removal of such children from the United States.
       (E) A description of steps taken to ensure that such 
     children were safely and humanely repatriated to their 
     country of origin.
       (F) Any information gathered in assessments of country and 
     local conditions pursuant to subsection (a)(2).

     SEC. 105. ESTABLISHING THE AGE OF AN UNACCOMPANIED ALIEN 
                   CHILD.

       (a) In General.--The Director shall develop procedures to 
     determine the age of an alien in the custody of the 
     Department of Homeland Security or the Office, when the age 
     of the alien is at issue. Such procedures shall permit the 
     presentation of multiple forms of evidence, including 
     testimony of the child, to determine the age of the 
     unaccompanied alien for purposes of placement, custody, 
     parole, and detention. Such procedures shall allow the appeal 
     of a determination to an immigration judge.
       (b) Prohibition on Sole Means of Determining Age.--Neither 
     radiographs nor the attestation of an alien shall be used as 
     the sole means of determining age for the purposes of 
     determining an alien's eligibility for treatment under 
     section 462 of the Homeland Security Act of 2002 (6 U.S.C. 
     279) or this Act.
       (c) Rule of Construction.--Nothing in this section shall be 
     construed to place the burden of proof in determining the age 
     of an alien on the government.

     SEC. 106. EFFECTIVE DATE.

       This title shall take effect 90 days after the date of 
     enactment of this Act.

TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO GUARDIANS AD LITEM 
                              AND COUNSEL

     SEC. 201. GUARDIANS AD LITEM.

       (a) Establishment of Guardian Ad Litem Program.--
       (1) Appointment.--The Director may, in the Director's 
     discretion, appoint a guardian ad litem who meets the 
     qualifications described in paragraph (2) for such child. The 
     Director is encouraged, wherever practicable, to contract 
     with a voluntary agency for the selection of an individual to 
     be appointed as a guardian ad litem under this paragraph.
       (2) Qualifications of guardian ad litem.--
       (A) In general.--No person shall serve as a guardian ad 
     litem unless such person--
       (i) is a child welfare professional or other individual who 
     has received training in child welfare matters; and
       (ii) possesses special training on the nature of problems 
     encountered by unaccompanied alien children.
       (B) Prohibition.--A guardian ad litem shall not be an 
     employee of the Directorate, the Office, or the Executive 
     Office for Immigration Review.
       (3) Duties.--The guardian ad litem shall--
       (A) conduct interviews with the child in a manner that is 
     appropriate, taking into account the child's age;
       (B) investigate the facts and circumstances relevant to 
     such child's presence in the United States, including facts 
     and circumstances arising in the country of the child's 
     nationality or last habitual residence and facts and 
     circumstances arising subsequent to the child's departure 
     from such country;
       (C) work with counsel to identify the child's eligibility 
     for relief from removal or voluntary departure by sharing 
     with counsel information collected under subparagraph (B);
       (D) develop recommendations on issues relative to the 
     child's custody, detention, release, and repatriation;
       (E) take reasonable steps to ensure that the best interests 
     of the child are promoted while the child participates in, or 
     is subject to, proceedings or matters under the Immigration 
     and Nationality Act (8 U.S.C. 1101 et seq.);
       (F) take reasonable steps to ensure that the child 
     understands the nature of the legal proceedings or matters 
     and determinations made by the court, and ensure that all 
     information is conveyed in an age-appropriate manner; and
       (G) report factual findings relating to--
       (i) information gathered pursuant to subparagraph (B);
       (ii) the care and placement of the child during the 
     pendency of the proceedings or matters; and
       (iii) any other information gathered pursuant to 
     subparagraph (D).
       (4) Termination of appointment.--The guardian ad litem 
     shall carry out the duties described in paragraph (3) until--
       (A) those duties are completed;
       (B) the child departs the United States;
       (C) the child is granted permanent resident status in the 
     United States;
       (D) the child attains the age of 18; or
       (E) the child is placed in the custody of a parent or legal 
     guardian;
     whichever occurs first.
       (5) Powers.--The guardian ad litem--
       (A) shall have reasonable access to the child, including 
     access while such child is being held in detention or in the 
     care of a foster family;
       (B) shall be permitted to review all records and 
     information relating to such proceedings that are not deemed 
     privileged or classified;
       (C) may seek independent evaluations of the child;
       (D) shall be notified in advance of all hearings or 
     interviews involving the child that are held in connection 
     with proceedings or matters under the Immigration and 
     Nationality Act (8 U.S.C. 1101 et seq.), and shall be given a 
     reasonable opportunity to be present at such hearings or 
     interviews;
       (E) shall be permitted to consult with the child during any 
     hearing or interview involving such child; and
       (F) shall be provided at least 24 hours advance notice of a 
     transfer of that child to a different placement, absent 
     compelling and unusual circumstances warranting the transfer 
     of such child prior to notification.
       (b) Training.--The Director shall provide professional 
     training for all persons serving as guardians ad litem under 
     this section in the--
       (1) circumstances and conditions that unaccompanied alien 
     children face; and
       (2) various immigration benefits for which such alien child 
     might be eligible.
       (c) Pilot Program.--
       (1) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Director shall establish and begin 
     to carry

[[Page S7024]]

     out a pilot program to test the implementation of subsection 
     (a).
       (2) Purpose.--The purpose of the pilot program established 
     pursuant to paragraph (1) is to--
       (A) study and assess the benefits of providing guardians ad 
     litem to assist unaccompanied alien children involved in 
     immigration proceedings or matters;
       (B) assess the most efficient and cost-effective means of 
     implementing the guardian ad litem provisions in this 
     section; and
       (C) assess the feasibility of implementing such provisions 
     on a nationwide basis for all unaccompanied alien children in 
     the care of the Office.
       (3) Scope of program.--
       (A) Selection of site.--The Director shall select 3 sites 
     in which to operate the pilot program established pursuant to 
     paragraph (1).
       (B) Number of children.--To the greatest extent possible, 
     each site selected under subparagraph (A) should have at 
     least 25 children held in immigration custody at any given 
     time.
       (4) Report to congress.--Not later than 1 year after the 
     date on which the first pilot program is established pursuant 
     to paragraph (1), the Director shall report to the Committees 
     on the Judiciary of the Senate and the House of 
     Representatives on subparagraphs (A) through (C) of paragraph 
     (2).

     SEC. 202. COUNSEL.

       (a) Access to Counsel.--
       (1) In general.--The Director shall ensure that all 
     unaccompanied alien children in the custody of the Office, or 
     in the custody of the Directorate, who are not described in 
     section 101(a)(2) shall have competent counsel to represent 
     them in immigration proceedings or matters.
       (2) Pro bono representation.--To the maximum extent 
     practicable, the Director shall utilize the services of 
     competent pro bono counsel who agree to provide 
     representation to such children without charge.
       (3) Government-funded legal representation as a last 
     resort.--
       (A) Appointment of competent counsel.--Notwithstanding 
     section 292 of the Immigration and Nationality Act (8 U.S.C. 
     1362) or any other provision of law, if no competent counsel 
     is available to represent an unaccompanied alien child 
     without charge, the Director shall appoint competent counsel 
     for such child at the expense of the Government.
       (B) Limitation on attorney fees.--Counsel appointed under 
     subparagraph (A) shall not be compensated at a rate in excess 
     of the rate provided under section 3006A of title 18, United 
     States Code.
       (C) Availability of funding.--In carrying out this 
     paragraph, the Director may make use of funds derived from 
     any source designated by the Secretary of Health and Human 
     Services from discretionary funds available to the Department 
     of Health and Human Services.
       (D) Assumption of the cost of government-paid counsel.--In 
     the case of a child for whom counsel is appointed under 
     subparagraph (A) who is subsequently placed in the physical 
     custody of a parent or legal guardian, such parent or legal 
     guardian may elect to retain the same counsel to continue 
     representation of the child, at no expense to the Government, 
     beginning on the date that the parent or legal guardian 
     assumes physical custody of the child.
       (4) Development of necessary infrastructures and systems.--
     In ensuring that legal representation is provided to such 
     children, the Director shall develop the necessary mechanisms 
     to identify entities available to provide such legal 
     assistance and representation and to recruit such entities.
       (5) Contracting and grant making authority.--
       (A) In general.--Subject to the availability of 
     appropriations, the Director shall enter into contracts with 
     or make grants to national nonprofit agencies with relevant 
     expertise in the delivery of immigration-related legal 
     services to children in order to carry out this subsection. 
     National nonprofit agencies may enter into subcontracts with 
     or make grants to private voluntary agencies with relevant 
     expertise in the delivery of immigration-related legal 
     services to children in order to carry out this subsection.
       (B) Ineligibility for grants and contracts.--In making 
     grants and entering into contracts with agencies in 
     accordance with subparagraph (A), the Director shall ensure 
     that no such agency receiving funds under this subsection is 
     a grantee or contractee for more than 1 of the following 
     services:
       (i) Services provided under section 102.
       (ii) Services provided under section 201.
       (iii) Services provided under paragraph (2).
       (iv) Services provided under paragraph (3).
       (6) Model guidelines on legal representation of children.--
       (A) 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 based on the children's asylum guidelines, the 
     American Bar Association Model Rules of Professional Conduct, 
     and other relevant domestic or international sources.
       (B) Purpose of guidelines.--The guidelines developed in 
     accordance with subparagraph (A) shall be designed to help 
     protect a 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.
       (C) Implementation.--The Executive Office for Immigration 
     Review shall adopt the guidelines developed in accordance 
     with subparagraph (A) and submit them for adoption by 
     national, State, and local bar associations.
       (b) Duties.--Counsel 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 Directorate;
       (2) appear in person for all individual merits hearings 
     before the Executive Office for Immigration Review and 
     interviews involving the Directorate; and
       (3) owe the same duties of undivided loyalty, 
     confidentiality, and competent representation to the child as 
     is due an adult client.
       (c) Access to Child.--
       (1) In general.--Counsel shall have reasonable access to 
     the unaccompanied alien child, including access while the 
     child is being held in detention, in the care of a foster 
     family, or in any other setting that has been determined by 
     the Office.
       (2) Restriction on transfers.--Absent compelling and 
     unusual circumstances, no child who is represented by counsel 
     shall be transferred from the child's placement to another 
     placement unless advance notice of at least 24 hours is made 
     to counsel of such transfer.
       (d) Termination of Appointment.--Counsel appointed under 
     subsection (a)(3) shall carry out the duties described in 
     subsection (b) until--
       (1) those duties are completed;
       (2) the child departs the United States;
       (3) the child is granted withholding of removal under 
     section 241(b)(3) of the Immigration and Nationality Act (8 
     U.S.C. 1231(b)(3));
       (4) the child is granted protection under the Convention 
     Against Torture;
       (5) the child is granted asylum in the United States under 
     section 208 of the Immigration and Nationality Act (8 U.S.C. 
     1158);
       (6) the child is granted permanent resident status in the 
     United States; or
       (7) the child attains 18 years of age;
     whichever occurs first.
       (e) Notice to Counsel During Immigration Proceedings.--
       (1) In general.--Except when otherwise required in an 
     emergency situation involving the physical safety of the 
     child, counsel shall be given prompt and adequate notice of 
     all immigration matters affecting or involving an 
     unaccompanied alien child, including adjudications, 
     proceedings, and processing, before such actions are taken.
       (2) Opportunity to consult with counsel.--An unaccompanied 
     alien child in the custody of the Office may not give consent 
     to any immigration action, including consenting to voluntary 
     departure, unless first afforded an opportunity to consult 
     with counsel.
       (f) Access to Recommendations of Guardian Ad Litem.--
     Counsel shall be afforded an opportunity to review the 
     recommendation by the guardian ad litem affecting or 
     involving a client who is an unaccompanied alien child.

     SEC. 203. EFFECTIVE DATE; APPLICABILITY.

       (a) Effective Date.--This title shall take effect 180 days 
     after the date of enactment of this Act.
       (b) Applicability.--The provisions of this title shall 
     apply to all unaccompanied alien children in Federal custody 
     on, before, or after the effective date of this title.

  TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN 
                                CHILDREN

     SEC. 301. SPECIAL IMMIGRANT JUVENILE VISA.

       (a) J Visa.--Section 101(a)(27)(J) of the Immigration and 
     Nationality Act (8 U.S.C. 1101(a)(27)(J)) is amended to read 
     as follows:
       ``(J) an immigrant under the age of 21 on the date of 
     application who is present in the United States--
       ``(i) who by a court order, which shall be binding on the 
     Secretary of Homeland Security for purposes of adjudications 
     under this subparagraph, was declared dependent on a juvenile 
     court located in the United States or whom such a court has 
     legally committed to, or placed under the custody of, a 
     department or agency of a State, or an individual or entity 
     appointed by a State or juvenile court located in the United 
     States, due to abuse, neglect, or abandonment, or a similar 
     basis found under State law;
       ``(ii) for whom it has been determined in administrative or 
     judicial proceedings that it would not be in the alien's best 
     interest to be returned to the alien's or parent's previous 
     country of nationality or country of last habitual residence; 
     and
       ``(iii) with respect to a child in Federal custody, for 
     whom the Office of Refugee Resettlement of the Department of 
     Health and Human Services has certified to the Director of 
     the Bureau of Citizenship and Immigration Services that the 
     classification of an alien as a special immigrant under this 
     subparagraph has not been made solely to provide an 
     immigration benefit to that alien;

     except that no natural parent or prior adoptive parent of any 
     alien provided special immigrant status under this 
     subparagraph shall thereafter, by virtue of such parentage, 
     be accorded any right, privilege, or status under this 
     Act;''.
       (b) Adjustment of Status.--Section 245(h)(2) of the 
     Immigration and Nationality Act (8 U.S.C. 1255(h)(2)) is 
     amended--
       (1) by amending subparagraph (A) to read as follows:

[[Page S7025]]

       ``(A) paragraphs (1), (4), (5), (6), and (7)(A) of section 
     212(a) shall not apply;'';
       (2) in subparagraph (B), by striking the period and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(C) the Secretary of Homeland Security may waive 
     subparagraphs (A) and (B) of paragraph (2) of section 212(a) 
     in the case of an offense which arose as a consequence of the 
     child being unaccompanied.''.
       (c) Eligibility for Assistance.--A child who has been 
     granted relief under section 101(a)(27)(J) of the Immigration 
     and Nationality Act (8 U.S.C. 1101(a)(27)(J)), as amended by 
     subsection (a), shall be eligible for all funds made 
     available under section 412(d) of that Act (8 U.S.C. 1522(d)) 
     until such time as the child attains the age designated in 
     section 412(d)(2)(B) of that Act (8 U.S.C. 1522(d)(2)(B)), or 
     until the child is placed in a permanent adoptive home, 
     whichever occurs first.

     SEC. 302. TRAINING FOR OFFICIALS AND CERTAIN PRIVATE PARTIES 
                   WHO COME INTO CONTACT WITH UNACCOMPANIED ALIEN 
                   CHILDREN.

       (a) Training of State and Local Officials and Certain 
     Private Parties.--The Secretary of Health and Human Services, 
     acting jointly with the Secretary, shall provide appropriate 
     training to be available to State and county officials, child 
     welfare specialists, teachers, public counsel, and juvenile 
     judges who come into contact with unaccompanied alien 
     children. The training shall provide education on the 
     processes pertaining to unaccompanied alien children with 
     pending immigration status and on the forms of relief 
     potentially available. The Director shall be responsible for 
     establishing a core curriculum that can be incorporated into 
     education, training, or orientation modules or formats that 
     are currently used by these professionals.
       (b) Training of Directorate Personnel.--The Secretary, 
     acting jointly with the Secretary of Health and Human 
     Services, shall provide specialized training to all personnel 
     of the Directorate who come into contact with unaccompanied 
     alien children. In the case of Border Patrol agents and 
     immigration inspectors, such training shall include specific 
     training on identifying children at the United States borders 
     or at United States ports of entry who have been victimized 
     by smugglers or traffickers, and children for whom asylum or 
     special immigrant relief may be appropriate, including 
     children described in section 101(a)(2).

     SEC. 303. REPORT.

       Not later than January 31, 2004, and annually thereafter, 
     the Secretary of Health and Human Services shall submit a 
     report for the previous fiscal year to the Committees on the 
     Judiciary of the House of Representatives and the Senate that 
     contains--
       (1) data related to the implementation of section 462 of 
     the Homeland Security Act (6 U.S.C. 279);
       (2) data regarding the care and placement of children in 
     accordance with this Act;
       (3) data regarding the provision of guardian ad litem and 
     counsel services in accordance with this Act; and
       (4) any other information that the Director or the 
     Secretary of Health and Human Services determines to be 
     appropriate.

     SEC. 304. EFFECTIVE DATE.

       The amendment made by section 301 shall apply to all aliens 
     who were in the United States before, on, or after the date 
     of enactment of this Act.

             TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS

     SEC. 401. GUIDELINES FOR CHILDREN'S ASYLUM CLAIMS.

       (a) Sense of Congress.--Congress commends the Immigration 
     and Naturalization Service for its issuance of its 
     ``Guidelines for Children's Asylum Claims'', dated December 
     1998, and encourages and supports the implementation of such 
     guidelines by the Immigration and Naturalization Service (and 
     its successor entities) in an effort to facilitate the 
     handling of children's asylum claims. Congress calls upon the 
     Executive Office for Immigration Review of the Department of 
     Justice to adopt the ``Guidelines for Children's Asylum 
     Claims'' in its handling of children's asylum claims before 
     immigration judges and the Board of Immigration Appeals.
       (b) Training.--The Secretary shall provide periodic 
     comprehensive training under the ``Guidelines for Children's 
     Asylum Claims'' to asylum officers, immigration judges, 
     members of the Board of Immigration Appeals, and immigration 
     officers who have contact with children in order to 
     familiarize and sensitize such officers to the needs of 
     children asylum seekers. Voluntary agencies shall be allowed 
     to assist in such training.

     SEC. 402. UNACCOMPANIED REFUGEE CHILDREN.

       (a) Identifying Unaccompanied Refugee Children.--Section 
     207(e) of the Immigration and Nationality Act (8 U.S.C. 
     1157(e)) is amended--
       (1) by redesignating paragraphs (3), (4), (5), (6), and (7) 
     as paragraphs (4), (5), (6), (7), and (8), respectively; and
       (2) by inserting after paragraph (2) the following:
       ``(3) An analysis of the worldwide situation faced by 
     unaccompanied refugee children, by region, which shall 
     include an assessment of--
       ``(A) the number of unaccompanied refugee children, by 
     region;
       ``(B) the capacity of the Department of State to identify 
     such refugees;
       ``(C) the capacity of the international community to care 
     for and protect such refugees;
       ``(D) the capacity of the voluntary agency community to 
     resettle such refugees in the United States;
       ``(E) the degree to which the United States plans to 
     resettle such refugees in the United States in the coming 
     fiscal year; and
       ``(F) the fate that will befall such unaccompanied refugee 
     children for whom resettlement in the United States is not 
     possible.''.
       (b) Training on the Needs of Unaccompanied Refugee 
     Children.--Section 207(f)(2) of the Immigration and 
     Nationality Act (8 U.S.C. 1157(f)(2)) is amended by--
       (1) striking ``and'' after ``countries,''; and
       (2) inserting before the period at the end the following: 
     ``, and instruction on the needs of unaccompanied refugee 
     children''.

     SEC. 403. EXCEPTIONS FOR UNACCOMPANIED ALIEN CHILDREN IN 
                   ASYLUM AND REFUGEE-LIKE CIRCUMSTANCES.

       (a) Placement in Removal Proceedings.--Any unaccompanied 
     alien child apprehended by the Directorate, except for an 
     unaccompanied alien child subject to exceptions under 
     paragraph (1)(A) or (2) of section (101)(a) of this Act, 
     shall be placed in removal proceedings under section 240 of 
     the Immigration and Nationality Act (8 U.S.C. 1229a).
       (b) Exception from Time Limit for Filing Asylum 
     Application.--Section 208(a)(2) of the Immigration and 
     Nationality Act (8 U.S.C. 1158(a)(2)) is amended by adding at 
     the end the following:
       ``(E) Applicability.--Subparagraphs (A) and (B) shall not 
     apply to an unaccompanied child as defined in section 
     101(a)(51).''.

                TITLE V--AUTHORIZATION OF APPROPRIATIONS

     SEC. 501. AUTHORIZATION OF APPROPRIATIONS.

       (a) In General.--There are authorized to be appropriated 
     such sums as may be necessary to carry out--
       (1) section 462 of the Homeland Security Act of 2002 (6 
     U.S.C. 279); and
       (2) this Act.
       (b) Availability of Funds.--Amounts appropriated pursuant 
     to subsection (a) are authorized to remain available until 
     expended.

       TITLE VI--AMENDMENTS TO THE HOMELAND SECURITY ACT OF 2002

     SEC. 601. ADDITIONAL RESPONSIBILITIES AND POWERS OF THE 
                   OFFICE OF REFUGEE RESETTLEMENT WITH RESPECT TO 
                   UNACCOMPANIED ALIEN CHILDREN.

       (a) Additional Responsibilities of the Director.--Section 
     462(b)(1) of the Homeland Security Act of 2002 (6 U.S.C. 
     279(b)(1)) is amended--
       (1) in subparagraph (K), by striking ``and'' at the end;
       (2) in subparagraph (L), by striking the period at the end 
     and inserting ``, including regular follow-up visits to such 
     facilities, placements, and other entities, to assess the 
     continued suitability of such placements; and''; and
       (3) by adding at the end the following:
       ``(M) ensuring minimum standards of care for all 
     unaccompanied alien children--
       ``(i) for whom detention is necessary; and
       ``(ii) who reside in settings that are alternative to 
     detention.''.
       (b) Additional Powers of the Director.--Section 462(b) of 
     the Homeland Security Act of 2002 (6 U.S.C. 279(b)) is 
     amended by adding at the end the following:
       ``(4) Powers.--In carrying out the duties under paragraph 
     (3), the Director shall have the power to--
       ``(A) contract with service providers to perform the 
     services described in sections 102, 103, 201, and 202 of the 
     Unaccompanied Alien Child Protection Act of 2003; and
       ``(B) compel compliance with the terms and conditions set 
     forth in section 103 of the Unaccompanied Alien Child 
     Protection Act of 2003, including the power to--
       ``(i) declare providers to be in breach and seek damages 
     for noncompliance;
       ``(ii) terminate the contracts of providers that are not in 
     compliance with such conditions; and
       ``(iii) reassign any unaccompanied alien child to a similar 
     facility that is in compliance with such section.''.
       (c) Clarification of Director's Authority To Hire 
     Personnel.--Section 462(f)(3) of the Homeland Security Act of 
     2002 (6 U.S.C. 279(f)(3)) is amended--
       (1) by striking ``(3) Transfer and allocation of 
     appropriations and personnel.--The personnel'' and inserting 
     the following:
       ``(3) Transfer and allocation of appropriations and 
     personnel.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     the personnel''; and
       (2) by inserting at the end the following:
       ``(B) Exception.--The Director may hire and fix the level 
     of compensation of an adequate number of personnel to carry 
     out the duties of the Office. Notwithstanding the provisions 
     of subparagraph (A), the Director may elect not to receive 
     the transfer of any personnel of the Department of Justice 
     employed in connection with the functions transferred by this 
     section or, at the Director's discretion, to assign different 
     duties to such personnel.''.

     SEC. 602. TECHNICAL CORRECTIONS.

       Section 462(b) of the Homeland Security Act of 2002 (6 
     U.S.C. 279(b)), as amended by section 601, is amended--
       (1) in paragraph (3), by striking ``paragraph (1)(G)'' and 
     inserting ``paragraph (1)''; and
       (2) by adding at the end the following:
       ``(5) Statutory construction.--Nothing in paragraph (2)(B) 
     may be construed to require that a bond be posted for 
     unaccompanied

[[Page S7026]]

     alien children who are released to a qualified sponsor.''.

     SEC. 603. EFFECTIVE DATE.

       The amendments made by this title shall take effect as if 
     enacted as part of the Homeland Security Act of 2002 (6 
     U.S.C. 101 et seq.).

  Mr. BROWNBACK. Mr. President, I am honored to join my distinguished 
colleagues, Senators Feinstein and Voinovich, to introduce this 
important piece of legislation that will address an area of our 
immigration law that is sorely neglected--unaccompanied alien children. 
Currently, these children face a legal loophole that can leave them in 
a confusing maze of technicalities, none of which actually help the 
child or the nation. This bill will fix that problem through several 
very straightforward remedies.
  Last year, through the Homeland Security Act, the responsibility for 
the care and custody of unaccompanied alien children was transferred 
from the now-defunct Immigration and Naturalization Service to the 
Department of Health and Human Services's Office of Refugee 
Resettlement. This was an important step in the right direction, but it 
did not accomplish everything we had hoped to do last year. That is why 
I am pleased to join my colleagues in taking one more crack at 
providing safeguards for these vulnerable children.
  These safeguards are simple, but to the point. This legislation will 
ensure that the transfer of responsibilities mandated last year 
actually occurs in an orderly manner. It will remind Federal 
authorities to keep in mind the special needs and circumstances of 
unaccompanied children. It will ensure that these children have access 
to competent counsel and guardians ad litem when appropriate. Minimum 
standards for the care and custody of these unaccompanied alien 
children will be established, and the procedures for access to 
permanent protection for abused, abandoned or neglected children will 
be reformed. Finally, the legislation will require an annual report to 
Congress to ensure these provisions are being carried out faithfully.
  But that is all simply the legalese surrounding this issue. What's 
truly important are the children. That's the whole point of this 
legislation, and why I--and all of my colleagues who are cosponsors--
got involved and are committed to seeing this legislation pass. It is 
the children who suffer, through no fault of their own, if they're run 
through the legal system in the United States without any accounting 
for their unique situation as children.
  Last year, the Senate Judiciary Committee held a hearing on this 
topic, inviting Senator Feinstein to speak--her testimony and the 
testimony of the children who came, moved me to cosponsor the bill that 
very day. I still remember the story the Senator told of a young girl 
from China, standing before a judge, unable to speak the language, her 
arms shackled to her sides, crying. That sort of situation is shameful.
  Or how about the case of Edwin Munoz, a Honduran youth who testified 
last year during this hearing? His story was simple but appalling: 
abandoned by his parents at age 7, he was left in the care of a cousin, 
who beat him mercilessly. At 13, he finally escaped, and hitchhiked 
alone to the United States. I can only imagine how frightening that 
experience was--but unfortunately it was only the start: once he 
arrived in the U.S., he was thrown into a San Diego juvenile facility 
filled with violent offenders. Without a lawyer or court-appointed 
guardian for weeks, this became a nightmare of taunts from the other 
inmates and being shackled each time he had to appear in court.
  These are children--not common criminals--and they should not be 
treated as such. They should be treated as children.
  The main purpose of our legislation is to ensure just that--that 
children who come to the United States are still treated as children. 
That does not mean that they will escape a proper and appropriate 
accounting and ruling on whether they may stay or not--it simply means 
that their age and circumstances will be considered at all times.
  I therefore urge my colleagues to support this critically important 
legislation. We are still the Nation described upon the Statue of 
Liberty--let's ensure our legal system remembers this point as well.
                                  ____

  Mr. KENNEDY. Mr. President, it is a privilege to join Senator 
Feinstein in the introduction of the Unaccompanied Alien Child 
Protection Act, and I commend her long-standing commitment to this 
issue.
  In recent years, increasing numbers of foreign-born children have 
come to the United States, unaccompanied by their parents or their 
guardians. Last year, more than 5,000 arrived, and the numbers have 
continued to rise this year. Some are fleeing from armed conflict or 
other dangerous conditions in their home countries. Others are fleeing 
from human rights abuses, including forced recruitment as soldiers, 
slavery, child labor, prostitution, or forced marriage. Still others 
escape to the United States because they have been abused or abandoned 
by their parents or care givers. Additional numbers are brought to the 
United States by a family friend or relative, by paid smugglers, or by 
traffickers involved in organized crime.
  Regardless of how they arrive, these children often enter our country 
after traumatic experiences, speaking little to no English, and unaware 
of their rights under U.S. law. They may well be good candidates for 
asylum, but they have no way to apply for it, and they are left to 
represent themselves in an immigration court against experienced trial 
lawyers for INS.
  Their plight is exacerbated by the fact that when they arrive, they 
are frequently detained. Many of them languish for long periods in 
shelters designed for short-term use, without access to translators, 
telephones, or medical care and other vital services. But these are the 
``fortunate'' ones, compared to many others detained, with dangerous 
criminals, put in handcuffs, shackles, strip-searched, and required to 
wear prison uniforms.
  Shamefully, this is happening every day in the United States of 
America. It's no wonder other countries criticize us for hypocrisy on 
human rights.
  Last year, in the Homeland Security Act, we took the important first 
step of transferring responsibility for the care and custody of these 
children to the Office of Refugee Resettlement in the Department of 
Health and Human Services. This office has decades of experience 
working with foreign-born children and can easily include the care of 
these unaccompanied children in its existing functions.
  That Act, however, left out critical safeguards for these children. 
The legislation we are introducing corrects these omissions. It 
addresses many of the problems facing unaccompanied children and will 
help bring our treatment of them in line with international standards.
  Essential to these efforts is providing an appointed counsel and a 
special guardian to assist them. Statistics demonstrate that 
applications for asylum are four times more likely to be granted when 
represented by counsel. Yet, less than half of the children in INS 
custody are represented by an attorney.
  Children are given appointed counsel in important non-immigration 
cases, and they should be afforded the same right in immigration cases. 
In addition, a special guardian can be indispensable in identifying the 
needs of a child when language and cultural barriers prevent an 
attorney from communicating effectively with the child.
  Our bill will require that these vulnerable children receive the 
representation they need to see that their rights are protected, and 
the care they deserve to see their needs are properly considered as 
they go through complicated immigration proceedings.
  The vast majority of these children are not criminals, and they 
should not be treated as criminals. We must prevent the use of 
detention in these cases. Children who are not a danger to others or a 
flight risk should be released to their families or appropriate care-
givers. Our bill requires the release of children whenever possible, 
and supports the expanded use of shelters and foster care for children 
who do not have such care givers. Other needed protections in the bill 
will establish standards for detention, better training for immigration 
personnel on these issues, and more effective opportunities for 
permanent protection.
  We look forward to working with our colleagues to enact these long 
overdue

[[Page S7027]]

safeguards. It is time to end the gross abuses in our current 
immigration system and to ensure that the best interests of these 
children are fully protected and respected.
                                 ______