[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1238 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 1238
To establish the Office of the Ombudsperson for Immigrant Children in
Government Custody, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 23, 2021
Ms. Jayapal introduced the following bill; which was referred to the
Committee on the Judiciary, and in addition to the Committee on
Homeland Security, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To establish the Office of the Ombudsperson for Immigrant Children in
Government Custody, and for other purposes.
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 ``Protection of Kids in Immigrant
Detention Act'' or ``PROKID Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Committee.--The term ``Committee'' means the expert
advisory committee established under section 5(a).
(2) Director.--The term ``Director'' means the Director of
the Office of Refugee Resettlement.
(3) Facility.--The term ``facility''--
(A) means a location at which 1 or more immigrant
children are detained by the Government or held in
Government custody; and
(B) includes--
(i) an Office of Refugee Resettlement
facility; and
(ii) a Department of Homeland Security
facility, including--
(I) a U.S. Customs and Border
Protection temporary holding facility
and transportation contractor;
(II) a U.S. Immigration and Customs
Enforcement family detention facility;
(III) a U.S. Immigration and
Customs Enforcement juvenile facility;
(IV) a location operated by a
private entity, including a hotel room;
and
(V) any other location at which the
Department of Homeland Security detains
or holds in custody an immigrant child.
(4) Flores settlement agreement.--The term ``Flores
settlement agreement'' means the stipulated settlement
agreement filed in the United States District Court for the
Central District of California on January 17, 1997 (CV 85-4544-
RJK).
(5) Immigrant child.--The term ``immigrant child'' means an
alien (as defined in section 101(a) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)) under the age of 18 years.
(6) In-network facility.--The term ``in-network facility''
means a facility operated by an Office of Refugee Resettlement
grantee, subgrantee, contractor, or subcontractor.
(7) Office of refugee resettlement facility.--The term
``Office of Refugee Resettlement facility''--
(A) means--
(i) a shelter;
(ii) staff secure, secure care, or
transitional foster care housing; or
(iii) any other location operated by the
Office of Refugee Resettlement to hold
immigrant children; and
(B) includes an in-network facility and an out-of-
network facility.
(8) Ombudsperson.--The term ``Ombudsperson'' means the
ombudsperson appointed under section 3(c).
(9) Out-of-network facility.--The term ``out-of-network
facility'' means a facility at which an immigrant child is
placed as a result of an Office of Refugee Resettlement
determination that there is no care provider available among
in-network facilities to provide specialized services required
by the immigrant child, such as medical or mental health
support.
(10) Unobstructed access.--The term ``unobstructed access''
means--
(A) with respect to a facility, the ability to
enter the facility, including unannounced, to tour and
physically visit all areas of the facility; and
(B) with respect to information, the ability to
obtain requested information in a timely manner and
with the full cooperation of the Director or the
Secretary of Homeland Security, as applicable.
(11) Working group.--The term ``Working Group'' means the
interagency working group established under section 6(b).
SEC. 3. OFFICE OF THE OMBUDSPERSON FOR IMMIGRANT CHILDREN IN GOVERNMENT
CUSTODY.
(a) Establishment.--There is established, within the Department of
Health and Human Services, an Office of the Ombudsperson for Immigrant
Children in Government Custody (referred to in this section as the
``Office of the Ombudsperson'')--
(1) to endorse and support the principle that family
separation and detention are generally not in a child's best
interest; and
(2) in cases in which detention or Government custody is
required--
(A) to ensure that immigrant children are only
detained or held in Government custody in the least
restrictive setting;
(B) to advocate for the quick, safe, and efficient
release of immigrant children from detention or
Government custody whenever possible; and
(C) in any case in which an immigrant child is held
in Department of Homeland Security custody together
with his or her family unit, to advocate for the
release of the child and concurrent release of the
parent or legal guardian of the child.
(b) Independence.--The Office of the Ombudsperson shall be an
impartial, confidential resource fully independent of--
(1) the Office of Refugee Resettlement of the Department of
Health and Human Services; and
(2) the Department of Homeland Security.
(c) Ombudsperson.--
(1) In general.--The Office of the Ombudsperson shall be
headed by an Ombudsperson, who shall be appointed by, and
report directly to, the Secretary of Health and Human Services.
(2) Qualifications.--The individual appointed as
Ombudsperson shall have demonstrated experience in--
(A) immigration law; and
(B) child advocacy or child welfare.
(3) Duties and authorities.--
(A) Monitoring.--The Ombudsperson shall monitor
facilities for compliance with applicable law and
standards, including--
(i) the Flores settlement agreement;
(ii) section 235 of the William Wilberforce
Trafficking Victims Protection Reauthorization
Act of 2008 (8 U.S.C. 1232);
(iii) the applicable provisions of the
Prison Rape Elimination Act of 2003 (34 U.S.C.
30301 et seq.);
(iv) the standards of U.S. Customs and
Border Protection entitled ``National Standards
on Transport, Escort, Detention, and Search''
issued in October 2015; and
(v) internal Office of Refugee Resettlement
policy guidance, including the guidance
entitled ``ORR Policy Guide: Children Entering
the United States Unaccompanied'' issued on
January 30, 2015.
(B) Investigations.--
(i) In general.--The Ombudsperson shall
investigate--
(I) claims of abuse, neglect, or
mistreatment of immigrant children, by
the Government or any other entity,
while in Government custody; and
(II) complaints against foster care
providers, including foster care
providers under State oversight.
(ii) Reporting of state licensing
violations.--If in the course of an
investigation under clause (i)(II) the
Ombudsperson discovers a State licensing
violation, the Ombudsperson shall report the
violation to the child welfare licensing agency
of the applicable State.
(C) Oversight of office of refugee resettlement.--
(i) In general.--The Ombudsperson shall
provide oversight of the Director by reviewing
placement decisions, including sponsor denials,
that are contested by an immigrant child or the
attorney, child advocate, parent, or
prospective sponsor of the immigrant child.
(ii) Expedited review of contested
placement decisions.--
(I) In general.--Not later than 15
days after the date on which review of
a placement decision described in
clause (i) is requested, the
Ombudsperson shall complete the review.
(II) Recommendation to director.--
If, in carrying out such a review, the
Ombudsperson determines that such
placement decision was erroneous, the
Ombudsperson shall--
(aa) submit to the Director
a recommendation for further
action; and
(bb) make a copy of the
recommendation available to--
(AA) the immigrant
child; and
(BB) if applicable,
the immigrant child's
attorney and child
advocate.
(III) Written statement.--
(aa) In general.--In any
case in which the Director
declines to follow a
recommendation under subclause
(II), not later than 15 days
after the date on which the
Director receives the
recommendation, the Director
shall issue a written response,
including a detailed
justification.
(bb) Nondelegation.--The
Director may not delegate the
requirement to issue a written
statement under this subclause.
(iii) Civil action not precluded.--Review
by the Ombudsperson under this subparagraph
shall not preclude an immigrant child, or the
attorney, child advocate, parent, or
prospective sponsor of the immigrant child,
from simultaneously commencing a civil action
in any appropriate district court of the United
States.
(D) Stakeholder meetings.--Not less frequently than
quarterly, the Ombudsperson shall invite community
stakeholders, Flores settlement agreement class
counsel, and the Flores settlement agreement court-
appointed monitor to participate in a meeting--
(i) to ensure that the Ombudsperson is
aware of stakeholder concerns and priorities;
and
(ii) to provide feedback on stakeholder
requests.
(E) Regional offices.--The Ombudsperson shall
establish regional offices of the Office of the
Ombudsperson--
(i) to ensure the inclusion of pertinent
local and regional issues, trends, and
challenges for consideration by the
Ombudsperson;
(ii) to strengthen State oversight;
(iii) to coordinate with State licensing
entities; and
(iv) to identify and address differences
among State child protection laws.
(F) Individual case assistance.--
(i) In general.--The Ombudsperson may offer
individual case assistance to an immigrant
child who is in Government custody if the case
of the immigrant child is long-pending or
otherwise requires expedited processing or
elevated attention, as determined by the
Ombudsperson.
(ii) Communication.--To ensure a complete
understanding of the status of a case described
in clause (i), the Ombudsperson may communicate
with the potential sponsor, family members,
child advocate, legal counsel, Office of
Refugee Resettlement case manager and Federal
field specialist, the General Dynamics
Information Technology case coordinator, and
any other relevant individual charged with case
management of the immigrant child concerned.
(G) Subpoena authority.--
(i) In general.--Subject to the approval of
the Secretary of Health and Human Services, the
Ombudsperson may--
(I) issue a subpoena to require the
production of all information, reports,
and other documentary evidence
necessary to carry out the duties of
the Ombudsperson; and
(II) invoke the aid of any
appropriate court of the United States.
(ii) Timeline for production of
information.--To prevent undue delay of the
placement of an immigrant child, requirements
set forth in a subpoena under clause (i)(I)
shall be satisfactorily fulfilled not later
than 7 days after the date on which the
Ombudsperson issues the subpoena.
(H) Reporting mechanisms.--
(i) In general.--The Ombudsperson shall
establish and maintain--
(I) a toll-free telephone number to
receive complaints and reports of
matters for investigation; and
(II) an email address to receive
complaints, such reports, and requests
for review of placement decisions.
(ii) Availability.--The Ombudsperson shall
ensure that--
(I) such telephone number is made
available, and a telephone is
accessible, to each immigrant child in
a facility; and
(II) such email address is made
available to sponsors, Flores
settlement agreement class counsel, and
legal services providers and child
advocates who serve such immigrant
children.
(I) Report to congress.--
(i) In general.--Not later than September
30 each year, the Ombudsperson shall submit to
Congress a report on the accomplishments and
challenges of the Office of the Ombudsperson
during the fiscal year ending on that date.
(ii) Elements.--Each report required by
clause (i) shall include, for the applicable
fiscal year, the following:
(I) A summary of the status of
immigrant children in Government
custody that highlights broader trends
and recommendations for future action.
(II) Statistical information on
immigrant children in Government
custody, together with an analysis of
such information.
(III) A summary of complaints
received and proposed resolutions.
(IV) A detailed description of any
investigation into a claim of abuse,
neglect, or mistreatment of an
immigrant child in Government custody,
including a summary of the results of
any such investigation.
(V) A description of the objectives
of the Office of the Ombudsperson for
the next fiscal year.
(J) Additional duties.--The Ombudsperson shall--
(i) conduct a review of data collection, as
described in section 4(a);
(ii) establish the Committee, as described
in section 5; and
(iii) enter into a memorandum of
understanding, as described in section 6(a).
(d) Access to Facilities.--The Secretary of Health and Human
Services and the Secretary of Homeland Security shall ensure--
(1) unobstructed access by the Ombudsperson to any
facility; and
(2) the ability of the Ombudsperson--
(A) to monitor any facility; and
(B) to meet confidentially with--
(i) staff of any facility;
(ii) employees and contractors of the
Office of Refugee Resettlement and the
Department of Homeland Security; and
(iii) any immigrant child in Government
custody, after notification of the immigrant
child's counsel, as applicable.
(e) Access to Information.--The Secretary of Health and Human
Services shall ensure unobstructed access by the Ombudsperson to--
(1) the case files, records, reports, audits, documents,
papers, recommendations, or any other pertinent information
relating to the care and custody of an immigrant child; and
(2) the written policies and procedures of all Office of
Refugee Resettlement facilities.
SEC. 4. DATA COLLECTION.
(a) Independent Review by Ombudsperson.--
(1) In general.--The Ombudsperson shall regularly review
data collected by the Secretary of Health and Human Services
and the Secretary of Homeland Security relating to immigrant
children in facilities.
(2) Collaboration required.--The Secretary of Health and
Human Services and the Secretary of Homeland Security shall
provide the Ombudsperson unobstructed access to--
(A) real-time custody and detention data for each
immigrant child detained by the Government or held in
Government custody, including--
(i) the location and level of placement;
(ii) biographical information, including
full name, date of birth, country of
citizenship, and alien number;
(iii) all locations at which the immigrant
child has been detained or held in custody;
(iv) the dates and times the immigrant
child is booked in and booked out of any
facility; and
(v) transfer and discharge information; and
(B) Department of Homeland Security and Department
of Health and Human Services data personnel for the
purpose of reviewing data collection and integrity
issues.
(b) Office of Refugee Resettlement Data Collection System.--
(1) In general.--To support the data collection and
monitoring duties of the Ombudsperson and to facilitate public
monitoring, the Director shall develop a data collection system
that collects and maintains the following information:
(A) The total number of immigrant children held in
custody by the Director, disaggregated by placement
level, specific Office of Refugee Resettlement
facility, and age.
(B) The average and median number of days immigrant
children remain in such custody, disaggregated by
placement level, specific Office of Refugee
Resettlement facility, and age.
(C) The average and median number of days immigrant
children stay in an Office of Refugee Resettlement
facility, disaggregated by placement level, specific
Office of Refugee Resettlement facility, and age.
(D) The number of immigrant children discharged to
sponsors, disaggregated by sponsor category, placement
level, specific Office of Refugee Resettlement
facility, and age.
(E) The sponsor categories of immigrant children
held at each Office of Refugee Resettlement facility,
disaggregated by placement level and age.
(F) The number and percentage of immigrant children
held in an Office of Refugee Resettlement facility with
more than 25 immigrant children, disaggregated by
placement level and age.
(G) The percentage of filled capacity across all
Office of Refugee Resettlement facilities.
(H) The total number of children held at out-of-
network facilities, disaggregated by placement level
and age.
(I) For each Office of Refugee Resettlement
facility--
(i) the percentage of filled capacity;
(ii) the maximum number of available beds;
(iii) the number and percentage of
immigrant children with disabilities,
disaggregated by placement level and age; and
(iv) the number and percentage of immigrant
children receiving mandatory home studies,
discretionary home studies, and post-release
services, disaggregated by placement level and
age.
(2) Publication.--Not later than the 15th of each month,
the Director shall make the data collected under paragraph (1)
for the preceding month available to the public on the internet
website of the Office of Refugee Resettlement.
(c) Prohibition on Certain Uses of Information.--Information
collected under this section may not be used for immigration
enforcement or law enforcement purposes.
SEC. 5. EXPERT ADVISORY COMMITTEE.
(a) Establishment.--Not later than 90 days after the date of the
enactment of this Act, the Ombudsperson shall establish an expert
advisory committee to assist the Ombudsperson in--
(1) identifying relevant trends relating to immigrant
children in Government custody;
(2) conducting fact-finding missions and investigations of
facilities; and
(3) ensuring Government and private contractor compliance
with applicable law and standards for facilities.
(b) Membership.--The members of the Committee shall--
(1) be appointed by the Ombudsperson;
(2) represent various geographical regions; and
(3) be comprised of subject matter experts, including--
(A) legal advocates or specialists in the fields of
child and family welfare, immigration, and human
rights;
(B) pediatricians or other appropriate pediatric
health care experts;
(C) child or adolescent psychiatrists or
psychologists;
(D) social workers;
(E) data analysis experts; and
(F) any other relevant subject matter expert.
(c) Meetings.--The Committee shall meet not less frequently than
quarterly.
(d) Duties.--The Committee shall regularly--
(1) review facility compliance with applicable law and
standards relating to Government detention and custody of
immigrant children, including the Flores settlement agreement
and section 235 of the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008 (8 U.S.C. 1232); and
(2) submit to the Ombudsperson recommendations for
improvement.
(e) Site Visits.--The Committee may designate 1 or more individuals
who shall have the authority--
(1) to carry out facility site visits; and
(2) interview immigrant children held in Government
custody, after notification of counsel, as applicable.
SEC. 6. COORDINATION WITH DEPARTMENT OF HOMELAND SECURITY.
(a) Memorandum of Understanding.--
(1) In general.--On the date of the enactment of this Act,
the Secretary of Homeland Security and the Ombudsperson shall
enter into a memorandum of understanding to coordinate
oversight between the Department of Homeland Security and the
Department of Health and Human Services.
(2) Elements.--The memorandum of understanding required by
paragraph (1) shall do the following:
(A) Require the Secretary of Homeland Security to
provide information to the Ombudsperson with respect to
each immigrant child detained by U.S. Customs and
Border Protection or U.S. Immigration and Customs
Enforcement, or who is otherwise in the custody of the
Secretary of Homeland Security, including--
(i) the location of the immigrant child;
(ii) biographical information, including
full name, date of birth, country of
citizenship, and alien number;
(iii) all locations at which the immigrant
child has been so detained or held in
Department of Homeland Security custody;
(iv) exact times at which the immigrant
child was booked in and booked out of such
custody;
(v) the date on which the immigrant child
is released from such custody or transferred to
the custody of the Secretary of Health and
Human Services;
(vi) in the case of an immigrant child who
remains in Department of Homeland Security
custody for more than 72 hours, the reason for
such continued custody; and
(vii) any other information the
Ombudsperson considers relevant to the
oversight and monitoring duties described in
section 3(c)(3).
(B) Establish the right of the Ombudsperson and the
Committee to monitor Department of Homeland Security
facilities for compliance with applicable standards of
custody.
(C) Provide the Ombudsperson and the Committee full
and unobstructed access to--
(i) Department of Homeland Security
facilities for regular site visits; and
(ii) the written policies and procedures of
Department of Homeland Security facilities.
(3) Limitation.--The memorandum of understanding may only
allow the Ombudsperson to share information with the Secretary
of Homeland Security on a case-by-case basis, and with the
informed consent of the immigrant child concerned, if the
Ombudsperson determines that such information sharing may
facilitate the release of the immigrant child from custody.
(4) Evaluation.--Not later than 2 years after the
Ombudsperson and the Secretary of Homeland Security enter into
the memorandum of understanding required by this subsection,
the Comptroller General of the United States shall evaluate the
coordination between the Ombudsperson and the Secretary to
determine whether such memorandum of understanding is
sufficient to ensure the oversight and monitoring required by
this Act.
(5) Recommendations.--If the Comptroller General makes a
determination under paragraph (4) that the memorandum of
understanding is insufficient, the Comptroller General shall
recommend actionable steps to be implemented--
(A) to improve coordination between the
Ombudsperson and the Secretary of Homeland Security;
and
(B) to ensure effectiveness of the mandate of the
Ombudsperson.
(b) Interagency Working Group.--
(1) Establishment.--There is established an interagency
working group to identify and discuss concerns relating to
immigrant children in facilities.
(2) Membership.--The Working Group shall be composed of
representatives of--
(A) the Department of Justice;
(B) the Department of Health and Human Services,
including the Director or a senior representative of
the Office of Refugee Resettlement;
(C) U.S. Customs and Border Protection;
(D) U.S. Immigration and Customs Enforcement;
(E) relevant oversight offices, including--
(i) the Immigration Detention Ombudsman of
the Department of Homeland Security; and
(ii) the Inspectors General of the
Department of Justice, the Department of Health
and Human Services, U.S. Customs and Border
Protection, and U.S. Immigration and Customs
Enforcement; and
(F) any other relevant Federal agency or office.
(3) Meetings.--The Working Group shall--
(A) hold meetings not less frequently than
quarterly;
(B) invite representatives of nongovernmental
organizations that provide services to immigrant
children to participate in such meetings as the
Ombudsperson considers appropriate; and
(C) provide to the Ombudsperson a summary of each
such meeting.
SEC. 7. RULE OF CONSTRUCTION.
Nothing in the Act shall be construed to preclude or limit Flores
settlement agreement class counsel from conducting independent
investigations or seeking enforcement actions relating to violations of
the Flores settlement agreement in any appropriate district court of
the United States.
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