[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.
______