[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3178 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
S. 3178
To establish the Children's Court to improve the adjudication of
immigration cases involving unaccompanied alien children.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 1, 2023
Mr. Bennet (for himself and Ms. Murkowski) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To establish the Children's Court to improve the adjudication of
immigration cases involving unaccompanied alien children.
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 ``Immigration Court Efficiency and
Children's Court Act of 2023''.
SEC. 2. ESTABLISHMENT AND STRUCTURE OF THE CHILDREN'S COURT.
(a) Establishment of the Children's Court.--Chapter 4 of title II
of the Immigration and Nationality Act (8 U.S.C. 1221 et seq.) is
amended by inserting after section 240C (8 U.S.C. 1230) the following:
``SEC. 240D. CHILDREN'S COURT.
``(a) Definitions.--In this section:
``(1) Children's court.--The term `Children's Court' means
all of the specialized children's dockets described in this
section.
``(2) Director.--The term `Director' means the Director of
the Executive Office for Immigration Review.
``(3) Docket.--The term `docket' means a grouping of
removal proceedings that are held during a dedicated time on a
court's calendar and adjudicated separately from other
immigration cases.
``(b) Establishment.--The Attorney General shall establish and
maintain, within the Executive Office for Immigration Review,
specialized children's dockets for the adjudication of removal
proceedings for any individual who--
``(1) was younger than 18 years of age on the date on which
such proceedings were initiated; and
``(2)(A) was previously determined by the Department of
Homeland Security or the Department of Health and Human
Services to be an unaccompanied alien child (as defined in
section 462(g)(2) of the Homeland Security Act of 2002 (6
U.S.C. 279(g)(2))); or
``(B) is the principal respondent in a proceeding if such
individual was referred to the children's docket by an
immigration judge, unless such child requests to remain on the
court's general docket.
``(c) Judges.--
``(1) Geographic areas.--The Director shall divide
all of the immigration courts into geographical areas
with not more than 5 immigration courts in each such
area.
``(2) Designations.--The Director, in consultation
with the Chief Immigration Judge, shall designate--
``(A) an immigration judge to serve as
Chief Children's Judge for the Children's
Court; and
``(B) 1 immigration judge in each
geographical area referred to in to paragraph
(1) to serve as the Assistant Chief Children's
Judge for such area.
``(3) Qualifications.--The Attorney General shall
establish, by regulation, qualifications for Children's
Court judges that ensure, among any other requirements,
that the Chief Children's Judge, each Assistant Chief
Children's Judge, and each immigration judge assigned
to the Children's Court--
``(A) has substantial experience working
with children in judicial or other settings;
``(B) possess and have demonstrated a
commitment to ensuring the fair administration
of justice through child-appropriate court
procedures; and
``(C) apply for appointment to the
Children's Court.
``(4) Duties.--
``(A) Chief children's judge.--The Chief
Children's Judge shall--
``(i) establish operating policies
and procedures for carrying out
adjudications in the Children's Court
in a manner that advances due process
and fairness; and
``(ii) oversee the implementation
of such policies and procedures.
``(B) Assistant chief children's judges.--
In addition to his or her duties as an
immigration judge, each Assistant Chief
Children's Judge shall--
``(i) promote fair and just
processes for carrying out
adjudications in the specialized
children's dockets in the immigration
courts in his or her assigned
geographical area; and
``(ii) ensure that all of the
immigration judges assigned to a
specialized children's docket in the
immigration courts in such area
complete the training described in
paragraph (5).
``(5) Training.--
``(A) In general.--Immigration judges
assigned to the Children's Court shall
complete--
``(i) initial training upon
assignment; and
``(ii) annual supplementary
training.
``(B) Topics.--Training required under this
paragraph shall encompass the following topics:
``(i) Children's claims for
immigration relief.
``(ii) Appropriate use of docket
management tools to facilitate
children's pursuit of relief through an
application or petition to U.S.
Citizenship and Immigration Services.
``(iii) Child-sensitive questioning
techniques.
``(iv) Developmental- and trauma-
informed practice that accounts for
children's developmental stage, trauma
history, and other factors impacting a
child's capacity when determining
appropriate courtroom procedures,
evaluating credibility, and considering
testimony and other evidence adduced by
a child, among other actions.
``(v) Methods for explaining the
purpose and nature of court proceedings
and procedures to children, including
developmentally appropriate
communication.
``(vi) The concept of the best
interests of the child.
``(vii) Human trafficking of
children.
``(C) Legal representation.--Training
required under this paragraph shall include
instruction from governmental and
nongovernmental experts in the legal
representation of unaccompanied children, child
development, child welfare, and child
psychology. Assistant Chief Children's Judges
shall consult with such experts to design
training plans.
``(6) Performance metrics.--The Executive Office
for Immigration Review may not implement minimal
numeric case load or case completion requirements,
judicial performance standards, or other standards for
immigration judges assigned to the Children's Court
that could negatively impact the fair administration of
justice or promotion of the best interests of the child
by the Children's Court.
``(7) Assignment of other cases.--Immigration
judges assigned to the Children's Court may also be
assigned cases that are not on a specialized children's
docket if the total caseload of such judges does not
exceed 75 percent of the average caseload of
immigration judges who are not assigned to the
Children's Court.
``(d) Procedural Protections.--Proceedings in the Children's Court
shall utilize child-appropriate procedures that allow for maximum
participation of child respondents and promote due process, including--
``(1) continuances that are sufficient for a child to
obtain counsel;
``(2) conferring among the parties to the maximum extent
practicable to narrow the legal issues in advance of an
adjudication on the merits;
``(3) a rebuttable presumption in favor of granting a
child's request to dismiss or administratively close
proceedings when an application for relief is pending before or
approved by U.S. Citizenship and Immigration Services;
``(4) explanations of court proceedings and advisals by
immigration judges regarding legal rights and responsibilities
that accommodate a child's developmental level and capacity;
``(5) appropriate accommodations, including breaks during
oral testimony by a child;
``(6) language screening protocols to ensure that
interpretation is provided in the child's preferred language;
and
``(7) the use of virtual hearings only--
``(A) at the request of the child or the child's
counsel; or
``(B) if the immigration judge determines that
virtual hearings would be in the child's legal
interests.
``(e) Best Interests of the Child.--
``(1) In general.--The best interests of the child may be
considered in adjudicating motions, forms of relief, or any
other judicial decision requiring a discretionary analysis.
``(2) Considerations.--A best interests of the child
determination shall be made by a child advocate or other entity
or professional with comparable expertise in such
determinations, after taking into account--
``(A) the safety and well-being of the child;
``(B) the expressed interests of the child, taking
into account the child's age and stage of development;
``(C) the physical and mental health of the child;
``(D) the right of the child to family integrity,
liberty, and development; and
``(E) the identity of the child, including
religious, ethnic, linguistic, gender, sexual
orientation, and cultural identity.
``(3) Appointment of independent child advocates.--
Immigration judges assigned to the Children's Court, on their
own initiative or at the request of a child's counsel in an
immigration proceeding, shall consider the referral of a child
for appointment of an independent child advocate in accordance
with section 235(c)(6).
``(f) Legal Assistance for Unaccompanied Children.--Each Assistant
Chief Children's Judge shall--
``(1) coordinate with qualified local providers of legal
services for children in the geographic area for purposes of
maximizing providers' capacity to provide legal assistance;
``(2) on each day when any unrepresented child is on the
Children's Court docket, make sufficient appropriate space
available in the court building to afford such child the
opportunity to meet confidentially with qualified providers of
legal services at no cost to the child; and
``(3) coordinate with the Secretary of Health and Human
Services for purposes of ensuring access to legal information
and representation for unaccompanied children to the greatest
extent practicable, in accordance with section 235(c)(5).
``(g) Establishment of Department of Homeland Security Children's
Cohort.--
``(1) In general.--There is established, within the Office
of the Principal Legal Advisor, a Children's Cohort to
represent U.S. Immigration and Customs Enforcement in the
Children's Court.
``(2) Training.--Attorneys assigned to the Children's
Cohort shall receive, from governmental and nongovernmental
experts in child development, child psychology, and children's
immigration law, initial training upon appointment and annual
supplementary training regarding--
``(A) unaccompanied children's claims for
immigration relief;
``(B) child-sensitive questioning techniques; and
``(C) trauma-informed interviewing and adjudication
methods.
``(3) Performance metrics.--Attorneys assigned to the
Children's Cohort may not be subjected to performance standards
or agency strategic measures that are based on case outcomes or
other standards that could negatively impact the fair
administration of justice.
``(4) Prosecutorial discretion.--Attorneys assigned to the
Children's Cohort, consistent with their existing authority to
exercise prosecutorial discretion, may seek resolution of cases
in a manner that promotes the fair administration of justice,
including by--
``(A) moving to dismiss or administratively close
removal proceedings when an application for relief is
pending before or approved by U.S. Citizenship and
Immigration Services;
``(B) agreeing to join motions for dismissal,
administrative closure, or continuances;
``(C) stipulating to facts or conclusions of law;
``(D) joining motions to grant relief; and
``(E) not pursuing appeals.
``(5) Right to review certain documents.--Not later than 7
days after providing a notice to appear to an unaccompanied
child or to such child's legal counsel pursuant to section
239(a), the Director of U.S. Immigration and Customs
Enforcement shall provide to such child or such legal counsel,
as appropriate, a complete copy of the child'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).''.
(b) Rulemaking.--The Attorney General shall promulgate regulations
to implement the amendment made by subsection (a).
(c) Clerical Amendment.--The table of contents of the Immigration
and Nationality Act (8 U.S.C. 1101 note) is amended by inserting after
the item relating to section 240C the following:
``Sec. 240D. Children's Court.''.
SEC. 3. PROHIBITION ON INFORMATION SHARING.
(a) Child in Custody and Prospective Sponsors.--The Director of the
Office of Refugee Resettlement may not provide any information about an
unaccompanied alien child in the custody of the Secretary of Health and
Human Services, or prospective sponsors, to the Attorney General or the
Secretary of Homeland Security without the consent of--
(1) such child or the child's prospective sponsor, as
applicable; and
(2) the legal counsel of such child or sponsor,
respectively.
(b) Immigration Enforcement.--
(1) In general.--No information about an unaccompanied
alien child may be shared between the Office of Refugee
Resettlement and the Department of Homeland Security for
purposes of immigration enforcement.
(2) Explanation for prospective sponsors.--The Director of
the Office of Refugee Resettlement shall ensure that
communications by the Office of Refugee Resettlement with
sponsors and prospective sponsors, including the family
reunification application packet, include an explanation that
information about a child, sponsor, or prospective sponsor
provided to the Office of Refugee Resettlement may only be
shared with the Department of Homeland Security if such child
and such child's sponsor or prospective sponsor have provided
informed consent.
(c) Relief From Removal.--No information about an unaccompanied
alien child may be shared between the Office of Refugee Resettlement
and the Department of Homeland Security or the Department of Justice
for purposes of relief from removal.
(d) Exceptions.--
(1) In general.--The Secretary of Health and Human Services
may provide for the disclosure of information about an
unaccompanied alien child in the same manner and circumstances
as census information may be disclosed by the Secretary of
Commerce under section 8 of title 13, United States Code.
(2) National security purposes.--The Secretary of Health
and Human Services may provide for the disclosure of
information about an unaccompanied alien child to national
security officials to be used solely for a national security
purpose in a manner that protects the confidentiality of such
information.
(3) Law enforcement purposes.--The Secretary of Health and
Human Services may provide for the disclosure of information
about an unaccompanied alien child to law enforcement officials
to be used solely for a legitimate law enforcement purpose in a
manner that protects the confidentiality of such information.
(4) Eligibility for benefits.--The Secretary of Health and
Human Services may disclose information about an unaccompanied
alien child to Federal, State, and local public and private
agencies providing benefits, to be used solely in making
determinations of eligibility for benefits pursuant to section
431 of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (8 U.S.C. 1641).
(5) Adjudication of applications for relief.--
(A) In general.--Government entities adjudicating
applications for relief under the immigration laws and
government personnel carrying duties required under
section 101(i)(1) of the Immigration and Nationality
Act (8 U.S.C. 1101(i)(1)) may, with the prior written
consent of the noncitizen involved, communicate with
nonprofit, nongovernmental victims' service providers
for the sole purpose of assisting victims in obtaining
victim services from programs with expertise in working
with immigrant victims. Agencies receiving referrals
under this subparagraph are bound by the restrictions
under this section.
(B) Rule of construction.--Nothing in this
paragraph may be construed as affecting the ability of
an applicant to designate a safe organization through
which governmental agencies may communicate with the
applicant.
(e) Rule of Construction.--Subsections (a), (b), and (c) shall not
be construed as preventing--
(1) disclosure of information in connection with judicial
review of a determination in a manner that protects the
confidentiality of such information; or
(2) the Secretary of Health and Human Services from
disclosing to the chair and ranking member of the Committee on
the Judiciary of the Senate or to the chair and ranking member
of the Committee on the Judiciary of the House of
Representatives, for the exercise of congressional oversight
authority, information on closed cases described in this
section in a manner that--
(A) protects the confidentiality of such
information; and
(B) omits personally identifying information
(including locational information about individuals).
SEC. 4. REPORTING AND EVALUATION.
(a) Defined Term.--In this section, the term ``appropriate
congressional committees'' means--
(1) the Committee on the Judiciary of the Senate;
(2) the Committee on Appropriations of the Senate;
(3) the Committee on the Judiciary of the House of
Representatives; and
(4) the Committee on Appropriations of the House of
Representatives.
(b) Annual Reports.--Not later than 1 year after the date of the
enactment of this Act, and annually thereafter, the Attorney General
shall submit to the appropriate congressional committees and publish on
a publicly accessible website a report describing--
(1) the level of compliance of each relevant immigration
court with the requirements described in section 240D of the
Immigration and Nationality Act, as added by section 2(a);
(2) corrective actions the Attorney General is taking or
plans to take to ensure that any relevant immigration court
that is not in compliance with the requirements referred to in
paragraph (1) expeditiously achieves such compliance;
(3) training that has been provided to judges assigned to
the Children's Court (as defined in such section 240D);
(4) the number of unaccompanied alien children's cases
pending before the Children's Court;
(5) the number of unaccompanied alien children's cases
receiving final decisions in the Children's Court during the
reporting period, disaggregated by--
(A) decision type, including orders of removal,
grants of relief, dismissals, and terminations; and
(B) whether the children were represented by an
attorney at the time they received the final decisions;
(6) unaccompanied alien children's appearance rates at
hearings before the Children's Court, disaggregated by whether
the children were represented by an attorney at the time of
such hearings; and
(7) any immigration court resources conserved by the
establishment and administration of specialized children's
dockets.
(c) Biennial Evaluations.--Not later than 2 years after the date of
the enactment of this Act, and biennially thereafter, the Comptroller
General of the United States shall submit to the appropriate
congressional committees and publish on a public website a report
evaluating--
(1) the Attorney General's compliance with the requirements
described in section 240D of the Immigration and Nationality
Act, as added by section 2(a) across the Children's Court as a
whole and disaggregated by relevant immigration courts; and
(2) the effectiveness of the Children's Court in--
(A) upholding fairness and due process in
unaccompanied alien children's proceedings; and
(B) limiting adjudication redundancy between the
Executive Office for Immigration Review and U.S.
Citizenship and Immigration Services.
SEC. 5. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to the Department of
Justice, the Department of Homeland Security, and the Department of
Health and Human Services such sums as may be necessary to carry out
this Act and the amendment made by this Act.
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