[Congressional Record Volume 165, Number 94 (Wednesday, June 5, 2019)]
[Senate]
[Pages S3256-S3258]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Ms. Harris, Ms. Hirono, and Ms. 
        Klobuchar):
  S. 1733. A bill to limit the separation of children from their 
parents or legal guardians, to limit the detention of families and 
children, to provide unaccompanied alien children with access to 
counsel, to increase the number of immigration judges and support 
staff, and for other purposes; to the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, I rise today to introduce legislation 
that will address one of the most pressing immigration problems facing 
our nation.
  For the past decade, thousands of families have fled violence and 
poverty to seek asylum in the United States. These families include 
vulnerable children who must be kept safe once they arrive in the 
United States. However, since the beginning of the Trump 
Administration, several new policies have been implemented.
  Most disconcerting is the Trump policy to separate young children, 
even babies, from their mothers and fathers. Dozens of these children 
spent days and weeks in cages with nothing but thin mats and aluminum 
blankets.
  We have also learned that the Trump Administration then deported many 
of these parents, leaving the children to be orphaned in this country. 
In fact, hundreds of children who were separated under this policy have 
now been apart from their parents for many months, without any 
immediate prospects for reunification. These children continue to 
experience extreme stress that leaves them vulnerable to serious, 
lifelong mental and physical health problems.
  Even when families are reunified after months apart, some children no 
longer recognize the mothers and fathers. This is unconscionable. Today 
I am introducing the Protecting Immigrant Families and Improving 
Immigration Procedures Act, a bill that will not only end the practice 
of separating families at the border, but also put in place other 
safeguards to protect these at-risk groups.
  The first component of the bill I am introducing today is the full 
text of the Keep Families Together Act, a bill I introduced earlier 
this year to halt the separation of families and which currently has 
more than 40 cosponsors. The President claimed to end his policy of 
separation in June 2018. However, we have since learned that the 
practice of separating families continues today.
  In fact, the Inspector General for Health and Human Services found 
that thousands more children were separated than the administration 
initially revealed in June. Parents who try to protect their children 
from violence and poverty abroad should not be punished by having those 
children ripped from their arms. Children should not be subjected to 
severe trauma in the interest of deterring migration.
  Instead, families should be kept together and given an opportunity to 
present their cases for asylum as has been done for the past seven 
decades.
  The second part of the bill I'm introducing today ensures that 
families with children are not forced into prolonged, indefinite family 
detention in order to remain together. Child welfare experts, including 
the American Academy of Pediatrics and the United Nations, have found 
that detention of this sort has tremendous negative effects on 
children's health and welfare. This bill guarantees that the Trump 
Administration cannot reverse the crucial protections that are 
currently in place under the Flores settlement agreement.
  The third piece of this bill would help address the backlog in our 
immigration courts while protecting the basic rights of children. This 
part of the bill contains provisions to provide adequate resources to 
our immigration court system. By adding additional judges and staff, 
courts will be able to reduce the crushing backlog of over a million 
pending deportation cases.
  The fourth component of this legislation is Senator Hirono's bill, 
the Fair Day in Court for Kids Act, that provides counsel for 
unaccompanied children. This is meant to ensure that these children 
receive a meaningful opportunity to present their cases in immigration 
court. This is important because young children, including toddlers, 
have been forced to represent themselves in immigration court in recent 
years. It is simply impossible for children to understand their legal 
immigration status or rights, let alone explain it to a judge.
  This bill protects the most vulnerable children in by providing 
counsel when there is no parent or legal guardian available. The final 
part of the bill will ensure that immigration judges can manage their 
caseloads and prioritize the cases as needed. Currently, individuals in 
deportation proceedings who have been victims of human trafficking or 
have assisted with criminal prosecutions are often eligible for visas 
that would protect them from deportation. This bill would allow 
immigration judges to close these deportation cases quickly to protect 
these vulnerable individuals and conserve scarce courtroom time. This 
will be a crucial step in clearing the backlog of pending immigration 
cases.
  By taking these steps, we will help put our immigration system on a 
pathway to respect the basic rights of children, particularly those who 
are fleeing violence and poverty abroad. These children are some of the 
most vulnerable people in the world, and it is absolutely essential 
that our legal system should treat them with fairness and respect.
  These are goals that should be appealing to Democrats and Republicans 
alike. I hope my colleagues will join me in passing the Protecting 
Immigrant Families and Improving Immigration Procedures Act.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the text 
of the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1733

       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 ``Protecting Families and 
     Improving Immigration Procedures Act''.

     SEC. 2. ENSURING THAT FAMILIES REMAIN TOGETHER.

       (a) Limitation on the Separation of Families.--
       (1) In general.--An agent or officer of a designated agency 
     shall not remove 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 1 of the following 
     situations has occurred:
       (A) A State court, authorized under State law--
       (i) terminates the rights of a parent or legal guardian;
       (ii) 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
       (iii) makes any similar determination that is legally 
     authorized under State law.
       (B) An official from the State or county child welfare 
     agency with expertise in child trauma and development 
     determines that it is in the best interests of the child to 
     be removed from his or her parent or legal guardian because 
     the child--
       (i) is in danger of abuse or neglect at the hands of the 
     parent or legal guardian; or
       (ii) is a danger to himself or herself or to others.
       (C) The Chief Patrol Agent or the Area Port Director, in 
     his or her official and undelegated capacity, authorizes 
     separation, upon the recommendation by an agent or officer, 
     based on a finding that--
       (i) the child is a victim of trafficking or is at 
     significant risk of becoming a victim of trafficking;
       (ii) there is a strong likelihood that the adult is not the 
     parent or legal guardian of the child; or
       (iii) the child is in danger of abuse or neglect at the 
     hands of the parent or legal guardian, or is a danger to 
     himself or herself or to others.
       (2) 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.
       (3) Documentation required.--The Secretary shall ensure 
     that a separation based upon a situation described in 
     paragraph (1)(C)--
       (A) is documented in writing; and
       (B) includes the reason for such separation and the stated 
     evidence for such separation.
       (b) Recommendations for Separation by Agents or Officers.--
       (1) In general.--Not later than 180 days after the date of 
     the enactment of this Act,

[[Page S3257]]

     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 separations 
     authorized under subsection (a)(1)(C).
       (2) Annual review.--Not less frequently than annually, the 
     Secretary of Health and Human Services shall--
       (A) review the guidance developed under paragraph (1); and
       (B) make recommendations to the Secretary to ensure that 
     such guidance conforms to current evidence and best practices 
     in child welfare, child development, and childhood trauma.
       (3) Requirement.--The guidance developed under paragraph 
     (1) shall incorporate the presumptions described in 
     subsection (c).
       (4) Additional requirements.--
       (A) Evidence-based.--The guidance and training developed 
     under this subsection shall incorporate evidence-based 
     practices.
       (B) Training required.--
       (i) Initial training.--All agents and officers of 
     designated agencies, upon hire, and annually thereafter, 
     shall complete training on adherence to the guidance under 
     this subsection.
       (ii) Annual training.--All Chief Patrol Agents and Area 
     Port Directors, upon hire, and annually thereafter, shall 
     complete--

       (I) training on adherence to the guidance under this 
     subsection; and
       (II) 90 minutes of child welfare practice training that is 
     evidence-based and trauma-informed.

       (c) Presumptions.--The presumptions described in this 
     subsection 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.--There is a presumption that detention is 
     not in the best interests of families and children.
       (d) Required Policy for Locating Separated Children.--
       (1) 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 subsection (a)(1). 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.
       (2) 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.
       (3) 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.
       (e) Required Information for Separated Families.--Not less 
     frequently than monthly, the Secretary shall provide the 
     parent or legal guardian of a child who was separated--
       (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; and
       (4) other information about the child, designed to promote 
     and maintain family reunification, as the Secretary 
     determines in his or her discretion.
       (f) 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 a report to 
     the committees of jurisdiction that describes each instance 
     in which a child was separated from a parent or legal 
     guardian and includes, for each such instance--
       (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; and
       (10) other information in the Secretary's discretion.
       (g) 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.
       (h) Clarification of Existing Law.--
       (1) Federal law.--Nothing in this section may 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).
       (2) State law.--Nothing in this section may be interpreted 
     to supersede or modify State child welfare laws, as 
     applicable.
       (i) GAO Report on Prosecution of Asylum Seekers.--
       (1) 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--
       (A) the total number of persons who claimed a fear of 
     persecution, received a favorable credible fear 
     determination, and were referred for prosecution;
       (B) 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;
       (C) 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;
       (D) the total number of asylum seekers who were separated 
     from their children as a result of being referred for 
     prosecution;
       (E) 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;
       (F) the total number of asylum seekers who were referred 
     for prosecution and also went through immigration 
     proceedings; and
       (G) the total number of asylum seekers referred for 
     prosecution who were deported before going through 
     immigration proceedings.
       (2) Report.--Not later than 1 year after the date of the 
     enactment of this Act, the Comptroller General shall submit a 
     report to Congress that describes the results of the study 
     conducted under paragraph (1).

     SEC. 3. FLORES SETTLEMENT AGREEMENT.

       (a) In General.--A family unit may be detained only in 
     accordance with the holding made in Flores v. Sessions et al. 
     (9th Cir. July 5, 2017; C.D. CA; July 24, 2015)) and the 
     stipulated settlement agreement as filed in the United States 
     District Court for the Central District of California on 
     January 17, 1997 (CV 85 4544 RJK) (commonly known as the 
     ``Flores settlement agreement'').
       (b) Rulemaking.--Any regulation proposed or promulgated to 
     supersede the Flores settlement agreement is null and void.
       (c) Rule of Construction.--Nothing in this Act may be 
     construed--
       (1) to affect the application of the Flores settlement 
     agreement to unaccompanied alien children; or
       (2) to abrogate the Flores settlement agreement.
       (d) Review of Detention Determinations.--The review of any 
     determination by the Secretary to detain an individual or 
     family unit under this section shall be in accordance with 
     all other provisions of law, holdings (including any holding 
     made in Flores v. Sessions et al. (9th Cir. July 5, 2017; 
     C.D. CA. July 24, 2015)), consent decrees, and settlement 
     agreements (including the Flores settlement agreement).

     SEC. 4. ACCESS TO COUNSEL FOR UNACCOMPANIED ALIEN CHILDREN.

       (a) Appointment of Counsel.--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.
       (b) Length of Representation.--Once a child is designated 
     as an unaccompanied alien child under subsection (a)--
       (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
       (2) any ancillary matters appropriate to such proceedings 
     even if the child reaches 18 years of age or is reunified 
     with a parent or legal guardian while the proceedings are 
     pending.
       (c) Notice.--Not later than 72 hours after an unaccompanied 
     alien child is taken into Federal custody, the child shall be 
     notified that he or she will be provided with legal counsel 
     in accordance with this section.
       (d) Within Detention Facilities.--The Secretary shall 
     ensure that unaccompanied alien children have access to 
     counsel inside all detention, holding, and border facilities.
       (e) 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 this section without 
     charge.
       (2) Development of necessary infrastructures and systems.--
     The Attorney General shall develop the necessary mechanisms--
       (A) to identify counsel available to provide pro bono legal 
     assistance and representation to children under this section; 
     and
       (B) to recruit such counsel.
       (f) Contracts; Grants.--
       (1) In general.--The Attorney General may enter into 
     contracts with, or award

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     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.
       (2) Subcontracts.--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.
       (g) 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.
       (h) 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 may be proscribed by the 
     Attorney General or the Executive Office for Immigration 
     Review.

     SEC. 5. INCREASES IN IMMIGRATION JUDGES AND SUPPORT STAFF.

       (a) Immigration Judges.--The Attorney General shall 
     increase the total number of immigration judges to adjudicate 
     pending cases and efficiently process future cases by not 
     fewer than 75 judges during fiscal year 2019.
       (b) Support Staff.--The Attorney General shall--
       (1) increase the total number of judicial law clerks by 75 
     during fiscal year 2019; and
       (2) increase the total number of support staff for 
     immigration judges, including legal assistants and 
     interpreters, by 300 during fiscal year 2019.

     SEC. 6. DOCKET MANAGEMENT FOR RESOURCE CONSERVATION.

       Notwithstanding any opposition from the Secretary, 
     immigration judges may administratively close cases, and the 
     Board of Immigration Appeals may remand cases for 
     administrative closure, if an individual in removal 
     proceedings--
       (1) appears to be prima facie eligible for a visa or other 
     immigration benefit; and
       (2) has a pending application for such benefit before U.S. 
     Citizenship and Immigration Services or another appropriate 
     agency.

     SEC. 7. DEFINITIONS.

       In this Act:
       (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 attained 18 years of age; and
       (B) has no permanent immigration status.
       (3) Committees of jurisdiction.--The term ``committees of 
     jurisdiction'' means--
       (A) the Committee on the Judiciary of the Senate;
       (B) the Committee on Health, Education, Labor, and Pensions 
     of the Senate;
       (C) 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 subsection (b)(3) 
     and consistent with subsections (c), (d), and (h).
       (7) Secretary.--The term ``Secretary'' means the Secretary 
     of Homeland Security.
                                 ______