[Congressional Record Volume 164, Number 125 (Wednesday, July 25, 2018)]
[Senate]
[Pages S5363-S5366]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN:
  S. 3263. A bill to limit the separation of families at or near ports 
of entry, to provide access to counsel for unaccompanied alien 
children, and to improve immigration detention, and for other purposes; 
to the Committee on the Judiciary.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the text of 
the joint resolution be printed in the Record.
  There being no objection, the text of the joint resolution was 
ordered to be printed in the Record, as follows:

                                S. 3263

       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 ``Humane Treatment of Migrant 
     Children Act''.

[[Page S5364]]

  


                   TITLE I--KEEPING FAMILIES TOGETHER

     SEC. 101. DEFINITIONS.

       In this title:
       (1) Agent; officer.--The terms ``agent'' and ``officer'' 
     include contractors of the Federal Government.
       (2) Child.--The term ``child'' means an individual who--
       (A) has not reached the age of 18; and
       (B) has no permanent immigration status.
       (3) Committees of jurisdiction.--The term ``committees of 
     jurisdiction'' means--
       (A) the Committee on the Judiciary and the Committee on 
     Health, Education, Labor, and Pensions of the Senate; and
       (B) the Committee on the Judiciary of the House of 
     Representatives.
       (4) Danger of abuse or neglect at the hands of the parent 
     or legal guardian.--The term ``danger of abuse or neglect at 
     the hands of the parent or legal guardian'' shall not mean 
     migrating to or crossing the United States border.
       (5) Designated agency.--The term ``designated agency'' 
     means--
       (A) the Department of Homeland Security;
       (B) the Department of Justice; and
       (C) the Department of Health and Human Services.
       (6) Finding.--The term ``finding'' means an individualized 
     written assessment or screening by the trained agent or 
     officer that includes a consultation with a child welfare 
     specialist, formalized as required under section 102(c) and 
     consistent with sections 103, 104, and 108.
       (7) Secretary.--Unless otherwise specified, the term 
     ``Secretary'' means the Secretary of Homeland Security.

     SEC. 102. LIMITATION ON THE SEPARATION OF FAMILIES.

       (a) In General.--An agent or officer of a designated agency 
     shall be prohibited from removing a child from his or her 
     parent or legal guardian, at or near the port of entry or 
     within 100 miles of the border of the United States, unless 
     one of the following has occurred:
       (1) A State court, authorized under State law, terminates 
     the rights of a parent or legal guardian, determines that it 
     is in the best interests of the child to be removed from his 
     or her parent or legal guardian, in accordance with the 
     Adoption and Safe Families Act of 1997 (Public Law 105-89), 
     or makes any similar determination that is legally authorized 
     under State law.
       (2) An official from the State or county child welfare 
     agency with expertise in child trauma and development makes a 
     best interests determination that it is in the best interests 
     of the child to be removed from his or her parent or legal 
     guardian because the child is in danger of abuse or neglect 
     at the hands of the parent or legal guardian, or is a danger 
     to herself or others.
       (3) The Chief Patrol Agent or the Area Port Director in 
     their official and undelegated capacity, authorizes 
     separation upon the recommendation by an agent or officer, 
     based on a finding that--
       (A) the child is a victim of trafficking or is at 
     significant risk of becoming a victim of trafficking;
       (B) there is a strong likelihood that the adult is not the 
     parent or legal guardian of the child; or
       (C) the child is in danger of abuse or neglect at the hands 
     of the parent or legal guardian, or is a danger to themselves 
     or others.
       (b) Prohibition on Separation.--An agency may not remove a 
     child from a parent or legal guardian solely for the policy 
     goal of deterring individuals from migrating to the United 
     States or for the policy goal of promoting compliance with 
     civil immigration laws.
       (c) Documentation Required.--The Secretary shall ensure 
     that a separation under subsection (a)(3) is documented in 
     writing and includes, at a minimum, the reason for such 
     separation, together with the stated evidence for such 
     separation.

     SEC. 103. RECOMMENDATIONS FOR SEPARATION BY AGENTS OR 
                   OFFICERS.

       (a) In General.--Not later than 180 days after the date of 
     the enactment of this Act, the Secretary, in consultation 
     with the Secretary of Health and Human Services, shall 
     develop training and guidance, with an emphasis on the best 
     interests of the child, childhood trauma, attachment, and 
     child development, for use by the agents and officers, in 
     order to standardize the implementation of section 102(a)(3).
       (b) Annual Review.--Not less frequently than annually, the 
     Secretary of Health and Human Services shall review the 
     guidance developed under subsection (a) and make 
     recommendations to the Secretary to ensure such guidance is 
     in accordance with current evidence and best practices in 
     child welfare, child development, and childhood trauma.
       (c) Requirement.--The guidance under subsection (a) shall 
     incorporate the presumptions described in section 104.
       (d) Additional Requirements.--
       (1) Evidence-based.--The guidance and training developed 
     under this section shall incorporate evidence-based 
     practices.
       (2) Training required.--
       (A) All agents and officers of designated agencies, upon 
     hire, and annually thereafter, shall complete training on 
     adherence to the guidance under this section.
       (B) All Chief Patrol Agents and Area Port Directors, upon 
     hire, and annually thereafter, shall complete--
       (i) training on adherence to the guidance under this 
     section; and
       (ii) 90 minutes of child welfare practice training that is 
     evidence-based and trauma-informed.

     SEC. 104. PRESUMPTIONS.

       The presumptions described in this section are the 
     following:
       (1) Family unity.--There shall be a strong presumption in 
     favor of family unity.
       (2) Siblings.--To the maximum extent practicable, the 
     Secretary shall ensure that sibling groups remain intact.
       (3) Detention.--In general, there is a presumption that 
     detention is not in the best interests of families and 
     children.

     SEC. 105. REQUIRED POLICY FOR LOCATING SEPARATED CHILDREN.

       (a) In General.--Not later than 180 days after the after 
     the date of the enactment of this Act, the Secretary shall 
     publish final public guidance that describes, with 
     specificity, the manner in which a parent or legal guardian 
     may locate a child who was separated from the parent or legal 
     guardian under section 102(a). In developing the public 
     guidance, the Secretary shall consult with the Secretary of 
     Health and Human Services, immigrant advocacy organizations, 
     child welfare organizations, and State child welfare 
     agencies.
       (b) Written Notification.--The Secretary shall provide each 
     parent or legal guardian who was separated, with written 
     notice of the public guidance to locate a separated child.
       (c) Language Access.--All guidance shall be available in 
     English and Spanish, and at the request of the parent or 
     legal guardian, in the language or manner that is 
     understandable by the parent or legal guardian.

     SEC. 106. REQUIRED INFORMATION FOR SEPARATED FAMILIES.

       Not less frequently than once every month, the Secretary 
     shall provide the parent or legal guardian of a child who was 
     separated, the following information, at a minimum:
       (1) A status report on the monthly activities of the child.
       (2) Information about the education and health of the 
     child, including any medical treatment provided to the child 
     or medical treatment recommended for the child.
       (3) Information about changes to the child's immigration 
     status.
       (4) Other information about the child, designed to promote 
     and maintain family reunification, as the Secretary 
     determines in his or her discretion.

     SEC. 107. ANNUAL REPORT ON FAMILY SEPARATION.

       Not later than 1 year after the date of the enactment of 
     this Act, and annually thereafter, the Secretary shall submit 
     to the committees of jurisdiction a report that describes 
     each instance in which a child was separated from a parent or 
     legal guardian and includes, for each such instance, the 
     following:
       (1) The relationship of the adult and the child.
       (2) The age and gender of the adult and child.
       (3) The length of separation.
       (4) Whether the adult was charged with a crime, and if the 
     adult was charged with a crime, the type of crime.
       (5) Whether the adult made a claim for asylum, expressed a 
     fear to return, or applied for other immigration relief.
       (6) Whether the adult was prosecuted if charged with a 
     crime and the associated outcome of such charges.
       (7) The stated reason for, and evidence in support of, the 
     separation.
       (8) If the child was part of a sibling group at the time of 
     separation, whether the sibling group has had physical 
     contact and visitation.
       (9) Whether the child was rendered an unaccompanied alien 
     child.
       (10) Other information in the Secretary's discretion.

     SEC. 108. CLARIFICATION OF PARENTAL RIGHTS.

       If a child is separated from a parent or legal guardian, 
     and a State court has not made a determination that the 
     parental rights have been terminated, there is a presumption 
     that--
       (1) the parental rights remain intact; and
       (2) the separation does not constitute an affirmative 
     determination of abuse or neglect under Federal or State law.

     SEC. 109. CLARIFICATION OF EXISTING LAW.

       (a) Federal Law.--Nothing in this title shall be 
     interpreted to supersede or modify Federal child welfare law, 
     where applicable, including the Adoption and Safe Families 
     Act of 1997 (Public Law 105-89).
       (b) State Law.--Nothing in this title shall be interpreted 
     to supersede or modify State child welfare laws where 
     applicable.

     SEC. 110. GAO REPORT ON PROSECUTION OF ASYLUM SEEKERS.

       (a) Study.--The Comptroller General of the United States 
     shall conduct a study of the prosecution of asylum seekers 
     during the period beginning on January 1, 2008 and ending on 
     December 31, 2018, including--
       (1) the total number of persons who claimed a fear of 
     persecution, received a favorable credible fear 
     determination, and were referred for prosecution;
       (2) an overview and analysis of the metrics used by the 
     Department of Homeland Security and the Department of Justice 
     to track the number of asylum seekers referred for 
     prosecution;
       (3) the total number of asylum seekers referred for 
     prosecution, a breakdown and description of the criminal 
     charges filed against asylum seekers during such period, and 
     a breakdown and description of the convictions secured;

[[Page S5365]]

       (4) the total number of asylum seekers who were separated 
     from their children as a result of being referred for 
     prosecution;
       (5) a breakdown of the resources spent on prosecuting 
     asylum seekers during such period, as well as any diversion 
     of resources required to prosecute asylum seekers, and any 
     costs imposed on States and localities;
       (6) the total number of asylum seekers who were referred 
     for prosecution and also went through immigration 
     proceedings; and
       (7) the total number of asylum seekers referred for 
     prosecution who were deported before going through 
     immigration proceedings.
       (b) Report.--Not later than 1 year after the date of the 
     enactment of this Act, the Comptroller General shall submit 
     to Congress a report that describes the results of the study 
     conducted pursuant to subsection (a).

                  TITLE II--FAIR DAY IN COURT FOR KIDS

     SEC. 201. IMPROVING IMMIGRATION COURT EFFICIENCY AND REDUCING 
                   COSTS BY INCREASING ACCESS TO LEGAL 
                   INFORMATION.

       (a) Appointment of Counsel in Removal Proceedings; Right to 
     Review Certain Documents in Removal Proceedings.--Section 
     240(b) of the Immigration and Nationality Act (8 U.S.C. 
     1229a(b)) is amended--
       (1) in paragraph (4)--
       (A) in subparagraph (A)--
       (i) by striking ``, at no expense to the Government,''; and
       (ii) by striking the comma at the end and inserting a 
     semicolon;
       (B) by redesignating subparagraphs (B) and (C) as 
     subparagraphs (D) and (E), respectively;
       (C) by inserting after subparagraph (A) the following:
       ``(B) the Attorney General may appoint or provide counsel, 
     at Government expense, to aliens in immigration proceedings;
       ``(C) the alien, or the alien's counsel, not later than 7 
     days after receiving a notice to appear under section 239(a), 
     shall receive a complete copy of the alien's immigration file 
     (commonly known as an `A-file') in the possession of the 
     Department of Homeland Security (other than documents 
     protected from disclosure under section 552(b) of title 5, 
     United States Code);''; and
       (D) in subparagraph (D), as redesignated, by striking ``, 
     and'' and inserting ``; and''; and
       (2) by adding at the end the following:
       ``(8) Failure to provide alien required documents.--A 
     removal proceeding may not proceed until the alien, or the 
     alien's counsel, if the alien is represented--
       ``(A) has received the documents required under paragraph 
     (4)(C); and
       ``(B) has been provided at least 10 days to review and 
     assess such documents.''.
       (b) Clarification Regarding the Authority of the Attorney 
     General to Appoint Counsel to Aliens in Immigration 
     Proceedings.--
       (1) In general.--Section 292 of the Immigration and 
     Nationality Act (8 U.S.C. 1362) is amended to read as 
     follows:

     ``SEC. 292. RIGHT TO COUNSEL.

       ``(a) In General.--Except as provided in subsections (b) 
     and (c), in any removal proceeding and in any appeal 
     proceeding before the Attorney General from any such removal 
     proceeding, the subject of the proceeding shall have the 
     privilege of being represented by such counsel as may be 
     authorized to practice in such proceeding as he or she may 
     choose. This subsection shall not apply to screening 
     proceedings described in section 235(b)(1)(A).
       ``(b) Access to Counsel for Unaccompanied Alien Children.--
       ``(1) In general.--In any removal proceeding and in any 
     appeal proceeding before the Attorney General from any such 
     removal proceeding, an unaccompanied alien child (as defined 
     in section 462(g) of the Homeland Security Act on 2002 (6 
     U.S.C. 279(g))) shall be represented by Government-appointed 
     counsel, at Government expense.
       ``(2) Length of representation.--Once a child is designated 
     as an unaccompanied alien child under paragraph (1), the 
     child shall be represented by counsel at every stage of the 
     proceedings from the child's initial appearance through the 
     termination of immigration proceedings, and any ancillary 
     matters appropriate to such proceedings even if the child 
     attains 18 years of age or is reunified with a parent or 
     legal guardian while the proceedings are pending.
       ``(3) Notice.--Not later than 72 hours after an 
     unaccompanied alien child is taken into Federal custody, the 
     alien shall be notified that he or she will be provided with 
     legal counsel in accordance with this subsection.
       ``(4) Within detention facilities.--The Secretary of 
     Homeland Security shall ensure that unaccompanied alien 
     children have access to counsel inside all detention, 
     holding, and border facilities.
       ``(c) Pro Bono Representation.--
       ``(1) In general.--To the maximum extent practicable, the 
     Attorney General should make every effort to utilize the 
     services of competent counsel who agree to provide 
     representation to such children under subsection (b) without 
     charge.
       ``(2) Development of necessary infrastructures and 
     systems.--The Attorney General shall develop the necessary 
     mechanisms to identify counsel available to provide pro bono 
     legal assistance and representation to children under 
     subsection (b) and to recruit such counsel.
       ``(d) Contracts; Grants.--The Attorney General may enter 
     into contracts with, or award grants to, nonprofit agencies 
     with relevant expertise in the delivery of immigration-
     related legal services to children to carry out the 
     responsibilities under this section, including providing 
     legal orientation, screening cases for referral, recruiting, 
     training, and overseeing pro bono attorneys. Nonprofit 
     agencies may enter into subcontracts with, or award grants 
     to, private voluntary agencies with relevant expertise in the 
     delivery of immigration related legal services to children in 
     order to carry out this section.
       ``(e) Model Guidelines on Legal Representation of 
     Children.--
       ``(1) Development of guidelines.--The Executive Office for 
     Immigration Review, in consultation with voluntary agencies 
     and national experts, shall develop model guidelines for the 
     legal representation of alien children in immigration 
     proceedings, which shall be based on the children's asylum 
     guidelines, the American Bar Association Model Rules of 
     Professional Conduct, and other relevant domestic or 
     international sources.
       ``(2) Purpose of guidelines.--The guidelines developed 
     under paragraph (1) shall be designed to help protect each 
     child from any individual suspected of involvement in any 
     criminal, harmful, or exploitative activity associated with 
     the smuggling or trafficking of children, while ensuring the 
     fairness of the removal proceeding in which the child is 
     involved.
       ``(f) Duties of Counsel.--Counsel provided under this 
     section shall--
       ``(1) represent the unaccompanied alien child in all 
     proceedings and matters relating to the immigration status of 
     the child or other actions involving the Department of 
     Homeland Security;
       ``(2) appear in person for all individual merits hearings 
     before the Executive Office for Immigration Review and 
     interviews involving the Department of Homeland Security;
       ``(3) owe the same duties of undivided loyalty, 
     confidentiality, and competent representation to the child as 
     is due to an adult client; and
       ``(4) carry out other such duties, as determined by the 
     Attorney General or the Executive Office for Immigration 
     Review.
       ``(g) Savings Provision.--Nothing in this section may be 
     construed to supersede--
       ``(1) any duties, responsibilities, or disciplinary or 
     ethical responsibilities an attorney may have to his or her 
     client under State law;
       ``(2) the admission requirements under State law; or
       ``(3) any other State law pertaining to the admission to 
     the practice of law in a particular jurisdiction.''.
       (2) Rulemaking.--The Attorney General shall promulgate 
     regulations to implement section 292 of the Immigration and 
     Nationality Act, as added by paragraph (1), in accordance 
     with the requirements set forth in section 3006A of title 18, 
     United States Code.

     SEC. 202. ACCESS BY COUNSEL AND LEGAL ORIENTATION AT 
                   DETENTION FACILITIES.

       The Secretary of Homeland Security shall provide access to 
     counsel for all aliens detained in a facility under the 
     supervision of U.S. Immigration and Customs Enforcement, U.S. 
     Customs and Border Protection, or the Department of Health 
     and Human Services, or in any private facility that contracts 
     with the Federal Government to house, detain, or hold aliens.

     SEC. 203. REPORT ON ACCESS TO COUNSEL.

       (a) Report.--Not later than December 31 of each year, the 
     Secretary of Homeland Security, in consultation with the 
     Attorney General, shall prepare and submit to the Committee 
     on the Judiciary of the Senate and the Committee on the 
     Judiciary of the House of Representatives a report regarding 
     the extent to which aliens described in section 292(b) of the 
     Immigration and Nationality Act, as added by section 
     201(b)(1), have been provided access to counsel.
       (b) Contents.--Each report submitted under paragraph (a) 
     shall include, for the immediately preceding 1-year period--
       (1) the number and percentage of aliens described in 
     section 292(b) of the Immigration and Nationality Act, as 
     added by section 201(b)(1), who were represented by counsel, 
     including information specifying--
       (A) the stage of the legal process at which each such alien 
     was represented;
       (B) whether the alien was in government custody; and
       (C) the nationality and ages of such aliens; and
       (2) the number and percentage of aliens who received legal 
     orientation presentations, including the nationality and ages 
     of such aliens.

     SEC. 204. AUTHORIZATION OF APPROPRIATIONS.

       (a) In General.--There is authorized to be appropriated to 
     the Executive Office of Immigration Review of the Department 
     of Justice such sums as may be necessary to carry out this 
     title.
       (b) Budgetary Effects.--The budgetary effects of this 
     title, for the purpose of complying with the Statutory Pay-
     As-You-Go-Act of 2010, shall be determined by reference to 
     the latest statement titled ``Budgetary Effects of PAYGO 
     Legislation'' for this title, submitted for printing in the 
     Congressional Record by the Chairman of the Senate Budget 
     Committee, provided that such statement has been submitted 
     prior to the vote on passage.

[[Page S5366]]

  


               TITLE III--IMPROVING IMMIGRATION DETENTION

     SEC. 301. IMMIGRATION DETENTION PRIORITIES.

       (a) Prioritization.--The Director of U.S. Immigration and 
     Customs Enforcement shall use the limited resources of U.S. 
     Immigration and Customs Enforcement to detain aliens who pose 
     a threat to national security or public safety.
       (b) Presumption.--Absent extraordinary circumstances, 
     aliens shall not be detained if--
       (1) they are known to be suffering from serious physical or 
     mental illness;
       (2) they have a disability;
       (3) they are elderly, pregnant, or nursing;
       (4) they are minors;
       (5) they demonstrate that they are primary caretakers of a 
     minor or an infirm person; or
       (6) their detention is otherwise not in the public 
     interest.

     SEC. 302. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT DETENTION 
                   FACILITY STANDARDS.

       Beginning not later than 1 year after the date of the 
     enactment of this Act, all U.S. Immigration and Customs 
     Enforcement detention system facilities, including contract 
     facilities and local and county jails operating under 
     intergovernmental service agreements, shall meet the 
     Performance-Based National Detention Standards developed by 
     U.S. Immigration and Customs Enforcement in 2011, including 
     the revisions issued in December 2016.

     SEC. 303. INCREASED FUNDING FOR ALTERNATIVES TO DETENTION.

       (a) In General.--The Secretary of Homeland Security shall 
     provide sufficient funding to the Alternatives to Detention 
     Division to cover alternatives to detention program costs for 
     all aliens awaiting immigration proceedings who are not 
     subject to detention.
       (b) Contracts Authorized.--The Director of U.S. Immigration 
     and Customs Enforcement shall contract with nonprofit service 
     providers with the ability to provide the services required 
     in operating an alternatives to detention program whenever 
     feasible.
       (c) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as may be necessary to carry out 
     this section.

     SEC. 304. INCREASING THE NUMBER OF IMMIGRATION JUDGES AND 
                   STRENGTHENING MERIT-BASED HIRING AND DUE 
                   PROCESS.

       (a) Immigration Judges.--The Attorney General shall 
     increase the total number of immigration judges by 225, 
     compared to the number of immigration judges authorized on 
     the date of the enactment of this Act.
       (b) Support Staff; Other Resources.--The Attorney General 
     shall ensure that the Executive Office for Immigration Review 
     has sufficient support staff, adequate technological and 
     security resources, and appropriate facilities to conduct the 
     immigration proceedings required under Federal law.
       (c) Limitation.--Amounts appropriated for the Executive 
     Office for Immigration Review or for any other Department of 
     Justice agency or function may not be used to implement 
     numeric judicial performance standards or other standards 
     that could negatively impact the fair administration of 
     justice by the immigration courts.
       (d) Qualification; Selection.--The Attorney General shall--
       (1) ensure that all newly hired immigration judges and 
     Board of Immigration Appeals members are highly qualified and 
     trained to conduct fair, impartial adjudications in 
     accordance with applicable due process requirements; and
       (2) in selecting immigration judges, may not give any 
     preference to candidates with prior government experience 
     compared to equivalent subject-matter expertise resulting 
     from nonprofit, private bar, or academic experience.
       (e) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as may be necessary to carry out 
     this section.

     SEC. 305. U.S. CITIZENSHIP AND IMMIGRATION SERVICES REFUGEE 
                   CORPS OFFICERS.

       The Secretary of Homeland Security shall increase the total 
     number of Department of Homeland Security personnel who are 
     responsible for processing refugee applications by not fewer 
     than the maximum number of such personnel reassigned to the 
     Asylum Division during fiscal year 2018.
                                 ______