Text: S.3227 — 115th Congress (2017-2018)All Information (Except Text)

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Introduced in Senate (07/17/2018)


115th CONGRESS
2d Session
S. 3227


To reunite families separated at or near ports of entry.


IN THE SENATE OF THE UNITED STATES

July 17, 2018

Ms. Harris (for herself, Mr. Merkley, Ms. Cortez Masto, Ms. Warren, Mr. Blumenthal, Mr. Markey, Mr. Carper, Mr. Sanders, Mrs. Gillibrand, Mr. Kaine, Mr. Booker, Mr. Menendez, Mr. Wyden, and Ms. Duckworth) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


A BILL

To reunite families separated at or near ports of entry.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short titles.

This Act may be cited as the “Reunite Every Unaccompanied Newborn Infant, Toddler and other children Expeditiously Act” or the “REUNITE Act”.

SEC. 2. Definitions.

In this Act:

(1) AGENCIES.—The term “agencies” means the Department of Homeland Security and the Department of Health and Human Services.

(2) APPREHENDED PARENT OR LEGAL GUARDIAN.—The term “apprehended parent or legal guardian” means an alien who—

(A) is 18 years of age or older;

(B) is the parent or legal guardian of an alien child; and

(C) was apprehended by the Department of Homeland Security, the Department of Justice, or any other entity authorized to enforce section 275 of the Immigration and Nationality Act (8 U.S.C. 1325).

(3) BORDER.—The term “border” means an international border of the United States.

(4) CHILD.—The term “child” means an alien who—

(A) has not reached 18 years of age; and

(B) has no permanent immigration status in the United States.

(5) DHS.—The term “DHS” means the Department of Homeland Security.

(6) HHS.—The term “HHS” means the Department of Health and Human Services.

SEC. 3. Reunification of separated families.

(a) Rulemaking.—

(1) GUIDANCE.—Not later than 10 days after the date of the enactment of this Act, the Secretary of Homeland Security and the Secretary of Health and Human Services, after immediate consultation with humanitarian organizations, child welfare organizations, State child welfare agencies, and States contiguous with the border with Mexico, shall promulgate and publish guidance through a direct final rule that specifically describes the coordinated efforts that the agencies will undertake to aid an apprehended parent or legal guardian in locating and reuniting with any children separated from them at or near the port of entry, or within 100 miles of the border, pursuant to applicable law.

(2) DEVELOPMENT; SERVICES; PUBLICATION.—The guidance promulgated pursuant to paragraph (1)—

(A) shall be developed to protect the best interests of affected children;

(B) shall describe all pro bono or government-funded services, including immigration services, available for apprehended parents and legal guardians or affected children; and

(C) shall be made publicly available in writing and on the websites of the agencies.

(b) Coverage of joint guidance.—The guidance published pursuant to subsection (a) shall outline the agencies’ coordinated efforts, including efforts—

(1) to develop and conduct family tracing procedures, in cooperation with nongovernmental experts in child welfare best practices;

(2) to maintain a functional, accessible, frequent, and no cost means for apprehended parents and legal guardians to contact their children through a telephone hotline or visual conferencing—

(A) to obtain daily-updated information about the location of their children and all scheduled immigration proceedings for their children; and

(B) to set up opportunities to speak with their child not fewer than 3 times per week, including at least once by video;

(3) to facilitate substantial daily access of nongovernmental case workers, child advocates, and legal counsel to children separated from their parents and legal guardians to represent these children’s best interests in custody decisions and immigration proceedings;

(4) to provide for humanitarian organizations and State and local child welfare agencies in the jurisdictions in which the children are located to conduct unannounced, independent weekly inspections of all DHS and HHS facilities at which children who are separated from their apprehended parents or legal guardians are in custody;

(5) to coordinate with the Department of State and embassies and consulates of foreign governments to locate apprehended parents and legal guardians of children who have departed from the United States;

(6) to provide clear notice to apprehended parents and legal guardians of their legal rights, including—

(A) their parental and guardianship rights with respect to their children who have been designated as unaccompanied alien children; and

(B) their right to designate another parent, legal guardian, or other qualified adult custodian to sponsor and care for such children;

(7) to facilitate information sharing by parents and legal guardians about any arrangements to depart the United States with their consulate, their children, their children’s case worker, legal counsel, child advocate, and other adult custodians in advance of their departure;

(8) to provide parents and legal guardians with order of deportation or removal access to nongovernmental organizations providing assistance with locating and reunifying their children;

(9) to provide cost-free transportation of children separated from their parents or legal guardians to reunite with them or another parent, legal guardian, or other qualified adult custodian to which the children consent;

(10) to establish a recordkeeping system that will maintain information to aid the reunification of every child separated from an apprehended parent or legal guardian;

(11) to provide free telephone calls between apprehended parents and their children; and

(12) to otherwise assist with the reunification of separated families.

(c) Written notification.—Shortly after the guidance is published pursuant to subsection (a), the Secretary of Homeland Security, the Secretary of Health and Human Services, and the Attorney General shall provide each apprehended parent or legal guardian who has been separated from his or her children written notice, in English, Spanish, or another language understandable by the parent or legal guardian, upon request, of any guidance that may assist them in their efforts to locate and reunify with their children.

(d) Reunification required.—The agencies shall ensure immediate reunification of children that remain separated from their apprehended parent or guardian.

(e) Other requirements.—The agencies shall—

(1) issue a privacy impact assessment related to the use of DNA testing under the section; and

(2) establish a process for redressing violations of the requirements under this section.

(f) Exemptions.—The agencies may not reunite an apprehended parent or legal guardian with a separated child under this section if—

(1) the child has been determined to be a victim of trafficking, or is at significant risk of becoming a victim of trafficking, by that apprehended parent or guardian, as determined by a Chief Border Patrol Agent or Customs and Border Protection Area Port Director in their official and undelegated capacity;

(2) the child appears to be in danger of abuse or neglect at the hands of the apprehended parent or legal guardian;

(3) the child is a danger to himself, herself, or others, as determined by a State court or an official from a State or county child welfare agency in his or her official and undelegated capacity; or

(4) there is a strong likelihood that the adult is not the apprehended parent or legal guardian of the child.

SEC. 4. DNA testing.

(a) Use of other techniques.—Before utilizing DNA testing to determine family relationships, agencies shall use other techniques commonly utilized by United States courts for determining family relationships, including official documents, representations from a witness, parent, relative, or child, and observations of interactions between the adult and the child.

(b) DNA testing.—

(1) IN GENERAL.—DNA testing may not be required as a condition of reunification if alternative means of demonstrating a familial relationship have been established. If reasonable suspicions remain about a familial relationship after exhausting the techniques referred to in subsection (a), DNA testing may be used.

(2) PROTOCOLS.—The agencies shall develop protocols for establishing a familial relationship if an individual does not want to consent to DNA testing or may not have a biological relationship with a child.

(3) TYPE OF TEST.—Whenever DNA testing is used, the agencies shall use the least privacy-invasive type of DNA test available to confirm the claimed relationship and may not charge the child or apprehended parent or guardian for the costs of conducting such testing.

(4) CONSENT.—The agencies shall—

(A) obtain the consent of any individual older than 18 years of age before conducting a DNA test;

(B) make every effort to obtain the consent of a guardian before conducting a DNA test on anyone younger than 18 years of age; and

(C) destroy DNA samples as soon as possible and not later than 7 days after completing the required DNA matching tests to minimize any potential misuse of genetic information collected under this subsection.

(c) Protection of information.—

(1) IN GENERAL.—If DNA testing is used for the purposes of reunification, the agencies shall ensure the protection of privacy, genetic data, and personal information of children, parents, all individuals being tested, and their relatives.

(2) OTHER USES PROHIBITED.—Agencies and private entities may only access, use, or store any personal DNA information collected under this subsection for family reunification purposes and are prohibited from sharing any such data or samples with agencies other than those carrying out the reunification process. Information collected under this section may not be used by any agency or contractor for any other purpose, including criminal or immigration enforcement.

(d) DNA match.—

(1) REUNIFICATION.—As soon as a DNA match is identified, the agencies shall reunite family members as expeditiously as possible.

(2) NO MATCH; NO CONSENT.—A refusal to consent to a DNA test or the failure to identify a match between a child and an apprehended parent may not be used as a basis for concluding that there is no familial relationship between a such child and such parent if—

(A) the familial relationship is not biological; or

(B) the familial relationship may be established through alternative means.

SEC. 5. Enhanced protections for separate families.

(a) In general.—The Secretary of Homeland Security shall establish secure alternatives programs that incorporate case management services in each field office of the Department of Homeland Security to ensure appearances at immigration proceedings and public safety.

(b) Alternatives to detention.—

(1) CONTRACT AUTHORITY.—The Secretary of Homeland Security shall contract with nongovernmental, community-based organizations to conduct screening of detainees, provide appearance assistance services, and operate community-based supervision programs. Secure alternatives shall offer a continuum of supervision mechanisms and options, including community support, depending on an assessment of each individual’s circumstances. The Secretary may contract with nongovernmental organizations to implement secure alternatives that maintain custody over the alien.

(2) ELIGIBILITY DETERMINATION.—

(A) RELEASE.—The Secretary of Homeland Security shall release each apprehended parent or legal guardian on recognizance, parole, or bond, or permit such parent or legal guardian to participate in an alternative to detention program, such as the Family Case Management Program authorized under subsection (c), unless the Secretary demonstrates that such participation would create a substantial risk that the apprehended parent or legal guardian is likely to cause harm to himself, herself, or others.

(B) BURDEN OF PROOF.—In order to demonstrate that continued detention is necessary, the Secretary shall produce clear and convincing evidence of risk factors, including credible and individualized information.

(C) APPEAL.—Not later than 72 hours after the Secretary determines that an apprehended parent or legal guardian is ineligible for an alternative to detention program under this subsection, the parent or legal guardian shall be provided with an opportunity to appeal such determination in a hearing before an immigration judge.

(c) Restoration of the Family Case Management Program.—

(1) IN GENERAL.—Not later than 7 days after the after the date of the enactment of this Act, the Secretary of Homeland Security shall restore the U.S. Immigration and Customs Enforcement Family Case Management Program, which shall provide community supervision and community support services, including case management services, appearance services, and screening of aliens who have been detained be run through a contract with a not-for-profit entity.

(2) CONTRACT.—Any contract for programming or services described in paragraph (1) shall be awarded to a not-for-profit organization with demonstrated expertise in meeting the areas specified in paragraph (1).

(d) Unaccompanied alien child designation.—The Secretary of Homeland Security shall treat a child who has been separated from an apprehended parent or legal guardian and has been designated as unaccompanied alien child as an unaccompanied alien child for the duration of his or her immigration proceedings.

(e) Automatic stay of removal of parents and legal guardians during child’s immigration proceedings.—Until the earlier of the date on which the child’s immigration proceedings are concluded or the date on which the child reaches 18 years of age, the Secretary of Homeland Security may not remove an apprehended parent or legal guardian of such child from the United States unless the apprehended parent or legal guardian, after being afforded the opportunity for legal consultation, agrees to removal.

SEC. 6. Confidentiality.

(a) In general.—Except as provided in subsections (b) and (c), the Secretary of Homeland Security may not use information obtained or recorded pursuant to this Act to assist in immigration enforcement actions taken against any sponsor, potential sponsor, custodian, potential custodian, or household member of a child or apprehended parent or legal guardian.

(b) Exception.—Subsection (a) does not apply to the use of information described in that subsection about a particular sponsor, potential sponsor, custodian, potential custodian, or household member for purposes of a law enforcement investigation related to—

(1) forced labor or human trafficking under section 1589, 1590, or 1591 of title 18, United States Code; or

(2) child exploitation under section 2251, 2251A, 2252, or 2252A of title 18, United States Code.

SEC. 7. Establishment of Office for Locating and Reuniting Children with Parents.

(a) In general.—The Secretary of Homeland Security, the Attorney General, and the Secretary of Health and Human Services (referred to collectively in this section as the “Secretaries”) shall jointly establish an interagency office, which shall be known as the “Office for Locating and Reuniting Children with Parents” (referred to in this section as the “Office”) and shall be responsible for expediting and facilitating the reunification of alien children and parents separated after entering the United States.

(b) Duties.—The Office shall—

(1) expeditiously implement guidance designated for its jurisdiction under section 3;

(2) establish 24-hour priority data and information communication networks between HHS, DHS, and the Department of Justice; and

(3) identify and immediately inform Congress if the Office determines that insufficient appropriations, or any other statutory or regulatory condition hinders the safe and timely reunion of separated alien children with their parents, pursuant to rulemaking promulgated under section 3.

(c) Report.—The Office shall submit a weekly report to Congress that includes—

(1) the number and location of children in the physical custody of DHS or HHS who have been separated from an apprehend parent or legal guardian;

(2) the number of such children who have been physically reunified with their parent or legal guardian;

(3) the physical location of parents who have yet to be reunited with their children, including the parents who have been deported without their children;

(4) the number of such children who have not yet been physically reunited with their parent or legal guardian; and

(5) an outline of the progress made in implementing the guidance published pursuant to section 3(a).

SEC. 8. Savings provisions.

(a) Federal law.—Nothing in this Act may be construed to supersede or modify—

(1) the William Wilberforce Trafficking Victims Protection Act of 2008 (8 U.S.C. 1232 et seq.);

(2) 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) (commonly known as the “Flores Settlement Agreement”);

(3) the Homeland Security Act of 2002 (Public Law 107–296); or

(4) any applicable Federal child welfare law, including the Adoption and Safe Families Act of 1997 (Public Law 105–89).

(b) State law.—Nothing in this Act may be construed to supersede or modify any applicable State child welfare laws.

SEC. 9. Reallocation of Department of Homeland Security appropriations.

(a) In general.—Of the amount allocated to U.S. Immigration and Customs Enforcement for fiscal year 2018 for enforcement, detention, and removal operations, $50,000,000 shall be reallocated to carry out sections 3 and 5(a).

(b) Reunification.—Not less than $15,000,000 of the amount reallocated under subsection (a) shall be made available to carry out section 3.