[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 9304 Introduced in House (IH)]
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117th CONGRESS
2d Session
H. R. 9304
To amend the Immigration and Nationality Act to provide access to
counsel for children and other vulnerable populations, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 15, 2022
Mr. McEachin (for himself, Ms. Lofgren, Ms. Jackson Lee, Ms.
Schakowsky, Ms. Bonamici, Ms. Newman, Ms. Brownley, Mr. McGovern, and
Ms. Norton) introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to provide access to
counsel for children and other vulnerable populations, 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 ``Funding Attorneys for Indigent
Removal (FAIR) Proceedings Act''.
SEC. 2. IMPROVING IMMIGRATION COURT EFFICIENCY AND REDUCING COSTS BY
INCREASING ACCESS TO LEGAL INFORMATION.
(a) Appointment of Counsel in Certain Cases; 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 shall, at the beginning of the
proceedings or as expeditiously as possible,
automatically receive a complete copy of all relevant
documents in the possession of the Department of
Homeland Security, including all documents (other than
documents protected from disclosure by privilege,
including national security information referred to in
subparagraph (D), law enforcement sensitive
information, and information prohibited from disclosure
pursuant to any other provision of law) contained in
the file maintained by the Government that includes
information with respect to all transactions involving
the alien during the immigration process (commonly
referred to as an `A-file'), and all documents
pertaining to the alien that the Department of Homeland
Security has obtained or received from other government
agencies, unless the alien waives the right to receive
such documents by executing a knowing and voluntary
written waiver in a language that he or she understands
fluently;''; 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.--In the
absence of a waiver under paragraph (4)(C), a removal
proceeding may not proceed until the alien--
``(A) has received the documents as required under
such paragraph; and
``(B) has been provided meaningful time to review
and assess such documents.''.
(b) Clarification Regarding the Authority of the Attorney General
To Appoint Counsel to Aliens in Immigration Proceedings.--Section 292
of the Immigration and Nationality Act (8 U.S.C. 1362) is amended--
(1) by striking ``In any'' and inserting the following:
``(a) In General.--In any proceeding conducted under section 235,
236, 238, 240, 241, or any other section of this Act, including'';
(2) in subsection (a), as redesignated--
(A) by striking ``(at no expense to the
Government)''; and
(B) by striking ``he shall'' and inserting ``the
person shall''; and
(3) by adding at the end the following:
``(b) Access to Counsel.--The Attorney General may appoint or
provide counsel to aliens in any proceeding conducted under section
235, 236, 238, 240, or 241 or any other section of this Act. The
Secretary of Homeland Security shall ensure that aliens have access to
counsel inside all immigration detention and border facilities.''.
(c) Appointment of Counsel for Children and Vulnerable Aliens.--
(1) In general.--Section 292 of the Immigration and
Nationality Act (8 U.S.C. 1362), as amended by subsection (b),
is further amended by adding at the end the following:
``(c) Children and Vulnerable Aliens.--Notwithstanding subsection
(b), the Attorney General shall appoint or provide counsel, at the
expense of the Government if necessary, at the beginning of the
proceedings or as expeditiously as possible, to represent in such
proceedings any alien who has been determined by the Secretary of
Homeland Security or the Attorney General to be--
``(1) a child (as defined in section 101(b)(1) of this
Act);
``(2) a particularly vulnerable individual, such as--
``(A) a person with a disability; or
``(B) a victim of abuse, torture, or violence;
``(3) an individual whose income is at or below 200 percent
of the poverty line (as defined by the Office of Management and
Budget and revised annually in accordance with section 673(2)
of the Community Services Block Grant Act (42 U.S.C. 9902(2)))
applicable to a family of the size involved; or
``(4) an individual whose circumstances are such that the
appointment of counsel is necessary to help ensure fair
resolution and efficient adjudication of the proceedings.
``(d) Extension to Consolidated Cases.--If the Attorney General has
consolidated the case of any alien for whom counsel was appointed under
subsection (c) with that of any other alien, and that other alien does
not have counsel, then the counsel appointed under subsection (c) shall
be appointed to represent such other alien.
``(e) Authorization of Appropriations.--There is authorized to be
appropriated to the Executive Office of Immigration Review of the
Department of Justice, in addition to amounts available in the
Immigration Counsel Account under section 295, such sums as may be
necessary to carry out this section.''.
(2) Rulemaking.--The Attorney General shall promulgate
regulations to implement section 292(c) 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. 3. ACCESS BY COUNSEL AND LEGAL ORIENTATION AT DETENTION
FACILITIES.
(a) Access to Counsel.--The Secretary of Homeland Security shall
facilitate access to counsel for all aliens detained in facilities
under the supervision of U.S. Immigration and Customs Enforcement or of
U.S. Customs and Border Protection, including providing information to
aliens in detention about legal services programs at detention
facilities.
(b) Access to Legal Orientation Programs.--The Secretary of
Homeland Security, in consultation with the Attorney General, shall
establish procedures to ensure that legal orientation programs are
available for all detained aliens, including aliens held in U.S.
Customs and Border Protection facilities, to inform such aliens of the
basic procedures of immigration hearings, their rights relating to
those hearings under Federal immigration laws, information that may
deter such aliens from filing frivolous legal claims, and any other
information that the Attorney General considers appropriate, such as a
contact list of potential legal resources and providers. Access to
legal orientation programs shall not be limited by the alien's current
immigration status, prior immigration history, or potential for
immigration relief.
SEC. 4. 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 a report to the Committee on the Judiciary of the
Senate and the Committee on the Judiciary of the House of
Representatives regarding the extent to which aliens described in
section 292(c) of the Immigration and Nationality Act, as added by
section 2(c)(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
paragraphs (1), (2), (3), and (4), respectively, of section
292(c) of the Immigration and Nationality Act, as added by
section 2(c)(1), who were represented by counsel, including
information specifying--
(A) the stage of the legal process at which the
alien was represented; and
(B) whether the alien was in government custody;
and
(2) the number and percentage of aliens who received legal
orientation presentations.
SEC. 5. MOTIONS TO REOPEN.
Section 240(c)(7)(C) of the Immigration and Nationality Act (8
U.S.C. 1229a(c)(7)(C)) is amended by adding at the end the following:
``(v) Special rule for aliens entitled to
appointment of counsel.--If the Attorney
General fails to appoint counsel for an alien
in violation of section 292(c)--
``(I) no limitation under this
paragraph pertaining to the filing of
any motion under this paragraph by such
alien shall apply; and
``(II) the filing of such a motion
shall stay the removal of the alien.''.
SEC. 6. IMMIGRATION COUNSEL ACCOUNT.
(a) In General.--Chapter 9 of the Immigration and Nationality Act
is amended by adding at the end the following:
``SEC. 295. IMMIGRATION COUNSEL ACCOUNT.
``(a) In General.--There is established in the general fund of the
Treasury a separate account, which shall be known as the `Immigration
Counsel Account'. Amounts deposited into the Immigration Counsel
Account shall remain available until expended to provide access to
counsel when required or authorized under this Act and to facilitate
access to counsel under the Funding Attorneys for Indigent Removal
(FAIR) Proceedings Act.
``(b) Report.--At the end of each 2-year period, beginning with the
creation of Immigration Counsel Account, the Secretary of Homeland
Security, following a public rulemaking with opportunity for notice and
comment, shall submit a report to the Congress concerning the status of
the account, including any balances therein, and recommend any
adjustment in the amount of the funds required to be reserved under
section 286(m) for deposit into the account that may be required to
ensure that the amounts so reserved for the succeeding two years equal,
as closely as possible, the cost of providing access to counsel when
required or authorized under this Act and facilitating access counsel
under the Funding Attorneys for Indigent Removal (FAIR) Proceedings
Act.''.
(b) Deposits.--Section 286(m) of the Immigration and Nationality
Act (8 U.S.C. 1356(m)) is amended by adding at the end the following:
``Notwithstanding the first sentence of this subsection, beginning on
the date of the enactment of the Funding Attorneys for Indigent Removal
(FAIR) Proceedings Act, $10 from each fee for providing adjudication or
naturalization services as may be charged and collected in accordance
with this subsection shall be reserved and deposited as offsetting
receipts into the Immigration Counsel Account established under section
295.''.
(c) Table of Contents.--The table of contents for such Act is
amended by inserting after the item relating to section 294 the
following:
``Sec. 295. Immigration Counsel Account.''.
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