Text: S.2113 — 116th Congress (2019-2020)All Information (Except Text)

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Introduced in Senate (07/15/2019)


116th CONGRESS
1st Session
S. 2113


To protect the health and safety of children in immigration detention, and for other purposes.


IN THE SENATE OF THE UNITED STATES

July 15, 2019

Mr. Merkley (for himself, Mr. Schumer, Mrs. Feinstein, Mr. Durbin, Mrs. Murray, Ms. Hirono, Mr. Coons, Ms. Klobuchar, Mr. Leahy, Ms. Cantwell, Mr. Reed, Mr. Bennet, Ms. Baldwin, Mr. Sanders, Mr. Van Hollen, Ms. Warren, Mr. Menendez, Mr. Cardin, Mr. Wyden, Mr. Schatz, Ms. Cortez Masto, Mr. Whitehouse, Ms. Rosen, Mr. Blumenthal, Mr. Markey, Mrs. Gillibrand, Mr. Warner, Mr. Kaine, Ms. Harris, Mr. Murphy, Ms. Duckworth, Ms. Hassan, Ms. Smith, Mrs. Shaheen, Mr. Booker, Mr. Casey, Mr. King, Ms. Stabenow, Mr. Brown, and Mr. Carper) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


A BILL

To protect the health and safety of children in immigration detention, 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; purpose.

(a) Short title.—This Act may be cited as the “Stop Cruelty to Migrant Children Act”.

(b) Purpose.—The purpose of this Act is to reaffirm that—

(1) the Federal Government is responsible for the health, safety, and well-being of children and families in the custody of the Federal Government;

(2) children and families should only be in the custody of the Federal Government for as little time as possible; and

(3) during any period in which children or families are in the custody of the Federal Government—

(A) they should be treated with dignity, respect, and care; and

(B) every effort should be made to minimize trauma, isolation, and conditions resembling prison.

SEC. 2. Definitions.

In this Act:

(1) ALIEN.—The term “alien” has the meaning given the term in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)).

(2) APPROPRIATE COMMITTEES OF CONGRESS.—The term “appropriate committees of Congress” means—

(A) the Committee on Appropriations, the Committee on Homeland Security and Governmental Affairs, the Committee on Health, Education, Labor, and Pensions, and the Committee on the Judiciary of the Senate; and

(B) the Committee on Appropriations, the Committee on Homeland Security, the Committee on Education and Labor, and the Committee on the Judiciary of the House of Representatives.

(3) CHILD.—The term “child” means an individual who—

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

(B) does not have permanent immigration status in the United States.

(4) DETAINED INDIVIDUAL.—The term “detained individual” means any individual, including an unaccompanied alien child, held in immigration detention under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(5) INFLUX.—The term “influx” means a period during which—

(A) not less than 95 percent of the available beds in permanent shelters for unaccompanied alien children are occupied; and

(B) the average length of care for unaccompanied alien children in custody of the Secretary of Health and Human Services exceeds 35 days.

(6) INFLUX CARE FACILITY.—The term “influx care facility” means an Office of Refugee Resettlement facility that is operated to provide temporary emergency shelter and services for unaccompanied alien children during an influx or emergency.

(7) OFFICE OF REFUGEE RESETTLEMENT FACILITY.—The term “Office of Refugee Resettlement facility” means any facility at which unaccompanied alien children are in the care and custody of the Secretary of Health and Human Services.

(8) STANDARD CARE FACILITY.—The term “standard care facility” means an Office of Refugee Resettlement facility—

(A) that provides residential care for unaccompanied alien children; and

(B) at which all programmatic components are administered onsite and in the least restrictive environment.

(9) UNACCOMPANIED ALIEN CHILD.—The term “unaccompanied alien child” has the meaning given the term in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)).

SEC. 3. Ensuring that families remain together.

(a) Limitation on the separation of families.—

(1) IN GENERAL.—An agent or officer of U.S. Customs and Border Protection shall not remove a child from his or her parent or legal guardian at or near a port of entry or within 100 miles of the border of the United States unless one of the following situations has occurred:

(A) A State court, authorized under State law—

(i) terminates the rights of the parent or legal guardian;

(ii) determines that it is in the best interests of the child to be removed from the 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 the parent or legal guardian because the child is—

(i) in danger of abuse or neglect at the hands of the parent or legal guardian; or

(ii) 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, on the recommendation by an agent or officer of U.S. Customs and Border Protection, 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.—A Federal agency may not remove a child from a parent or legal guardian solely for the policy goal of—

(A) deterring individuals from migrating to the United States; or

(B) promoting compliance with civil immigration law.

(3) DOCUMENTATION REQUIRED.—The Secretary shall ensure that a separation based on a situation described in paragraph (1)(C)—

(A) is documented in writing; and

(B) includes—

(i) the reason for such separation; and

(ii) 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, 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, on childhood trauma, attachment, and child development, for use by the agents and officers of U.S. Customs and Border Protection, so as 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 U.S. Customs and Border Protection, on hire, and annually thereafter, shall complete training on adherence to the guidance developed under this subsection.

(ii) ANNUAL TRAINING.—All Chief Patrol Agents and Area Port Directors, on hire, and annually thereafter, shall complete—

(I) training on adherence to the guidance developed 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 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).

(2) CONSULTATION.—In developing such 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.

(3) WRITTEN NOTIFICATION.—The Secretary shall provide each parent or legal guardian who was separated from a child under subsection (a)(1) with written notice of such public guidance.

(4) LANGUAGE ACCESS.—Such public guidance shall be—

(A) available in English and Spanish; and

(B) at the request of the parent or legal guardian, made available 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 immigration status of the child; and

(4) any 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 one 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—

(1) describes each instance in which a child was separated from a parent or legal guardian; and

(2) includes, for each such instance—

(A) the relationship of the adult and the child;

(B) the age and gender of the adult and child;

(C) the length of separation;

(D) whether the adult was charged with a crime, and if the adult was charged with a crime, the type of crime;

(E) whether the adult made a claim for asylum, expressed a fear to return, or applied for other immigration relief;

(F) whether the adult was prosecuted if charged with a crime and the associated outcome of such charges;

(G) the stated reason for, and evidence in support of, the separation;

(H) if the child was part of a sibling group at the time of separation, whether the sibling group has had physical contact and visitation;

(I) whether the child was rendered an unaccompanied alien child; and

(J) any other information, as determined by the Secretary.

(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, as 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 any State child welfare law.

(i) GAO report on prosecution of asylum seekers.—

(1) STUDY.—The Comptroller General of the United States shall conduct a study on the prosecution of asylum seekers during the ten-year period ending on the date of the enactment of this Act.

(2) ELEMENTS.—The study conducted under paragraph (1) shall include the following:

(A) The total number of persons who claimed 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 description of—

(i) the amounts spent on prosecuting asylum seekers during such period;

(ii) the diversion of resources required to prosecute asylum seekers; and

(iii) any costs imposed on States and localities.

(F) The total number of asylum seekers who—

(i) were referred for prosecution; and

(ii) were subject to immigration proceedings.

(G) The total number of asylum seekers referred for prosecution who were deported before going through immigration proceedings.

(3) REPORT.—Not later than one 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).

(j) Definitions.—In this section:

(1) AGENT; OFFICER.—The terms “agent” and “officer” include contractors of the Federal Government.

(2) COMMITTEES OF JURISDICTION.—The term “committees of jurisdiction” means—

(A) the Committee on the Judiciary and the Committee on Health, Education, Labor, and Pensions of the Senate; and

(B) the Committee on the Judiciary and the Committee on Education and Labor of the House of Representatives.

(3) 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.

(4) FINDING.—The term “finding” means an individualized written assessment or screening by the trained agent or officer that includes a consultation with, and concurrence from, a child welfare specialist, formalized as required under subsection (a)(3) and consistent with subsections (b), (c), and (g).

(5) SECRETARY.—The term “Secretary” means the Secretary of Homeland Security.

SEC. 4. Health and safety protections for detained children.

(a) Flores settlement agreement.—

(1) IN GENERAL.—A family unit may be detained only in accordance with the holding 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), including all subsequent court decisions and interpretations (referred to in this section as the “Flores settlement agreement”).

(2) RULEMAKING.—Any regulation proposed or promulgated to supersede the Flores settlement agreement shall have no force or effect.

(3) RULE OF CONSTRUCTION.—Nothing in this Act may be construed—

(A) to affect the application of the Flores settlement agreement to unaccompanied alien children; or

(B) to abrogate the Flores settlement agreement.

(4) REVIEW OF DETENTION DETERMINATIONS.—The review of any determination by the Secretary of Homeland Security to detain an individual or a family unit under this subsection 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).

(b) Prompt medical assessments for detained children.—

(1) BODY TEMPERATURE CHECK ON INTAKE.—With respect to a child in the custody of the Secretary of Homeland Security, not later than one hour after the time at which the initial intake of such child is completed, the Secretary of Homeland Security shall ensure that the child receives a body temperature check.

(2) MEDICAL EVALUATION BY MEDICAL PROFESSIONAL WITH PEDIATRIC TRAINING.—Not later than 48 hours after the time at which a child is taken into the custody of the Secretary of Homeland Security, the Secretary shall ensure that the child receives a medical evaluation by a medical professional with specialized pediatric training—

(A) to determine whether the child has any health or safety concerns; and

(B) that includes a measurement of all vital signs and a body temperature check.

(3) SPECIALIZED TRAINING FOR PUBLIC HEALTH SERVICE COMMISSIONED CORPS.—The Secretary of Homeland Security shall enter into a memorandum of understanding with the Public Health Service Commissioned Corps and the Secretary of Health and Human Services to provide specialized training relating to migration for the Public Health Service Commissioned Corps to support deployment at Office of Refugee Resettlement facilities and U.S. Customs and Border Protection facilities during any period in which high numbers of unaccompanied alien children and families arrive at the Southern border.

(c) Detention standards for U.S. Customs and Border Protection facilities.—With respect to any U.S. Customs and Border Protection facility, the Secretary of Homeland Security shall ensure that—

(1) the facility—

(A) complies with the standards of the U.S. Customs and Border Protection entitled “National Standards on Transport, Escort, Detention, and Search” issued in October 2015;

(B) remains at an appropriate temperature;

(C) is properly ventilated;

(D) has adequate supervision and other safeguards to protect detained children from other detained individuals; and

(E) has a child welfare specialist on staff, or has prompt access to a child welfare specialist, for purposes of making a finding under section 3(a)(1)(C);

(2) each detained individual is provided—

(A) not fewer than three healthy and nutritious meals daily, in accordance with the most recent dietary guidelines of the Department of Agriculture, that—

(i) in the case of an adult who is not pregnant or breastfeeding, provide a total of not fewer than 2,000 calories; or

(ii) in the case of a detained child or an individual who is pregnant or breastfeeding, meet, as applicable—

(I) the nutrition standards for the school lunch program authorized under the Richard B. Russell National School Lunch Act (42 U.S.C. 1751 et seq.) and the school breakfast program established by section 4 of the Child Nutrition Act of 1966 (42 U.S.C. 1773); or

(II) the nutrition standards established under the special supplemental nutrition program for women, infants, and children established by section 17 of the Child Nutrition Act of 1966 (42 U.S.C. 1786);

(B) not less than 1 gallon of clean drinking water daily, including age-appropriate liquids;

(C) regular access to hygiene products, including—

(i) soap;

(ii) a toothbrush and toothpaste;

(iii) not fewer than one full change of clothing;

(iv) a towel;

(v) toilet paper;

(vi) feminine hygiene products, as applicable;

(vii) prenatal vitamins, as applicable; and

(viii) diaper changing materials, as applicable, including—

(I) a clean diaper changing station;

(II) diapers in the appropriate size;

(III) diaper rash ointment;

(IV) baby wipes; and

(V) diaper disposal receptacles;

(D) regular access to showers, sinks, and toilets; and

(E) an opportunity to contact any family member with whom the detained individual was apprehended; and

(3) in the case of a detained individual the prescription medication of whom is confiscated on apprehension, not later than six hours after the time at which the detained individual arrives at a U.S. Customs and Border Protection facility, a medical professional, or in the case of a child, a medical professional with pediatric training reviews such confiscation and makes a determination whether the medication shall be—

(A) kept by the detained individual in his or her possession for regular use during detention;

(B) properly stored by U.S. Customs and Border Protection officials, with appropriate access for regular use by the detained individual during detention; or

(C) stored with the personal property of the detained individual.

(d) Detention standards for U.S. Immigration and Customs Enforcement.—The Secretary of Homeland Security shall ensure the full compliance of each U.S. Immigration and Customs Enforcement detention system facility, including each contract facility and each local or county jail operating under an intergovernmental service agreement, with, at a minimum, the standards of U.S. Immigration and Customs Enforcement entitled “Performance-Based National Detention Standards 2011”, as revised in December 2016.

(e) Care and custody standards for Office of Refugee Resettlement facilities.—

(1) NEW CONTRACTS.—On the maturation of any existing contract to house unaccompanied alien children, the Secretary of Health and Human Services may only offer to extend or enter into a new contract or cooperative agreement for the housing of unaccompanied alien children with one or more nonprofit entities that are—

(A) licensed by the applicable State; and

(B) in compliance with Exhibit 1 of the Flores settlement agreement, regardless of the status of the underlying Flores settlement agreement.

(2) PRIORITIZATION OF SMALL FACILITIES.—The Secretary of Health and Human Services shall prioritize the use of standard care facilities and influx care facilities that house not more than 100 unaccompanied alien children.

(3) LIMITATIONS ON USE OF INFLUX CARE FACILITIES.—

(A) LENGTH OF CARE EXCEEDING 35 DAYS.—

(i) IN GENERAL.—In the case of an influx, the Secretary of Health and Human Services may not house one or more unaccompanied alien children in an influx care facility for more than 30 days.

(ii) DAILY REPORTS.—

(I) IN GENERAL.—Not less frequently than daily during an influx in which one or more unaccompanied alien children are housed in an influx care facility, the Secretary of Health and Human Services shall submit to the appropriate committees of Congress a daily report on efforts to reduce the average length of care of unaccompanied alien children in the custody of the Secretary of Health and Human Services.

(II) MATTERS TO BE INCLUDED.—Each report under subclause (I) shall include the following:

(aa) A detailed description of any proposed—

(AA) policy with respect to the care of unaccompanied alien children; and

(BB) staffing increase at an influx care facility.

(bb) With respect to the influx, the mean and median number of days between—

(AA) the date on which a family reunification application is submitted for an unaccompanied alien child; and

(BB) the date on which the Secretary of Health and Human Services issues a decision on such application.

(cc) The total number of such applications granted.

(dd) The total number of such applications denied.

(ee) A description of any action considered but not taken with respect to the care and custody of unaccompanied alien children as a result of a conflict with Federal or State law.

(B) TRANSFER.—The Secretary of Health and Human Services may transfer an unaccompanied alien child from a State-licensed standard care facility to an influx care facility solely for the purpose of—

(i) family reunification; or

(ii) placement with a sponsor that shall occur not later than 14 days after the date on which the unaccompanied alien child is transferred.

SEC. 5. Release of families and unaccompanied alien children from detention.

(a) Staff-to-Child ratios for Office of Refugee Resettlement facilities.—

(1) IN GENERAL.—Not later than 90 days after the date of the enactment of this Act, the Secretary of Health and Human Services, in collaboration with the Comptroller General of the United States, shall develop standards for recommended staff-to-child ratios for Federal field specialists and third-party case review coordinators at Office of Refugee Resettlement facilities.

(2) INTERIM STANDARD.—Beginning on the date of the enactment of this Act and ending on the date on which the standards under paragraph (1) are implemented, the Secretary of Health and Human Services shall ensure that any standard care facility or influx care facility for unaccompanied alien children maintains a staff-to-child ratio of not fewer than—

(A) one Federal field specialist for every 50 unaccompanied alien children; and

(B) one third-party case review coordinator for every 50 unaccompanied alien children.

(3) CASE LOAD LIMITATION.—The Secretary of Health and Human Services shall establish a maximum case load for each case manager at an Office of Refugee Resettlement facility that is not greater than the lesser of—

(A) five new unaccompanied alien children cases and a total of not more than eight active cases each month; or

(B) the maximum number of children, as required under applicable State law.

(4) SUPPLEMENTAL FUNDS.—The Secretary of Health and Human Services shall authorize supplemental funds—

(A) to provide overtime compensation for case managers at Office of Refugee Resettlement facilities for extended work hours and work days during an influx; and

(B) to hire additional staff to carry out home study services relating to the placement of unaccompanied alien children with sponsors on release from custody.

(b) Rescission of information-Sharing agreement relating to sponsors of unaccompanied alien children.—The Secretary of Health and Human Services and the Secretary of Homeland Security shall rescind the memorandum of agreement entitled “Memorandum of Agreement Among the Office of Refugee Resettlement of the U.S. Department of Health and Human Services and U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection of the U.S. Department of Homeland Security Regarding Consultation and Information Sharing in Unaccompanied Alien Children Matters” dated April 13, 2018.

(c) Expansion of Family Case Management Program.—

(1) IN GENERAL.—The Secretary of Homeland Security shall provide to the alternatives to detention division of U.S. Immigration and Customs Enforcement, including the Family Case Management Program, sufficient funds to cover the costs of each individual who—

(A) has a pending immigration proceeding; and

(B) is not subject to detention under subsection (d).

(2) CONTRACTS AUTHORIZED.—The Director of U.S. Immigration and Customs Enforcement shall offer to enter into one or more contracts with one or more nonprofit service providers that, to the maximum extent practicable, have the capacity to provide evidence-based services required to operate an alternatives to detention program for the least restrictive setting.

(3) PRIORITIZATION.—The Secretary of Homeland Security shall ensure that any expenditure for the Family Case Management Program is prioritized over any other expenditure from the Alternatives to Detention account.

(4) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated such sums as may be necessary to carry out this subsection.

(d) Immigration detention priorities.—

(1) IN GENERAL.—The Director of U.S. Immigration and Customs Enforcement shall prioritize the limited resources of U.S. Immigration and Customs Enforcement to detain aliens who pose—

(A) a threat to national security or public safety; or

(B) a risk of flight that cannot be mitigated by an alternative to detention.

(2) PRESUMPTION.—Except in extraordinary circumstances, such as a circumstance in which an alien is known to be a member of a terrorist organization or a transnational criminal organization, an alien shall not be detained if—

(A) the alien—

(i) is known to suffer from a serious physical or mental illness;

(ii) has a disability;

(iii) is elderly;

(iv) is pregnant or breastfeeding;

(v) is under 18 years of age; or

(vi) demonstrates that the alien is the primary caregiver of—

(I) a person under 18 years of age; or

(II) an infirm person; or

(B) the detention of the alien is otherwise not in the public interest.

SEC. 6. Improvements to asylum procedure.

(a) Statement of policy on child asylum seekers.—It shall be the policy of the United States that no child may be delayed or prevented from crossing the Southern border at a port of entry for the purpose of applying for asylum or any other applicable legal immigration status.

(b) Nonadversarial asylum processing for children.—The Secretary of Homeland Security shall rescind the memorandum of the U.S. Citizenship and Immigration Services entitled “Updated Procedures for Asylum Applications Filed by Unaccompanied Alien Children”, issued May 31, 2019.

(c) Modification of term “asylum officer” To exclude officers of U.S. Customs and Border Protection.—Section 235(b)(1)(E) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(E)) is amended—

(1) in clause (i), by striking “, and” and inserting a semicolon;

(2) in clause (ii), by striking the period at the end and inserting “; and”; and

(3) by adding at the end the following:

“(iii) is employed by the Refugee, Asylum, and International Operations Directorate of the U.S. Citizenship and Immigration Services.”.

(d) Improving immigration court efficiency and reducing costs by increasing access to legal information.—

(1) APPOINTMENT OF COUNSEL IN REMOVAL PROCEEDINGS; 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—

(A) in paragraph (4)—

(i) 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;

(ii) by redesignating subparagraphs (B) and (C) as subparagraphs (D) and (E), respectively;

(iii) 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, or the alien's counsel, not later than 7 days after receiving a notice to appear under section 239(a), shall receive a complete copy of the alien'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);”; and

(iv) in subparagraph (D), as redesignated, by striking “this Act, and” and inserting “this Act; and”; and

(2) by adding at the end the following:

“(8) FAILURE TO PROVIDE ALIEN REQUIRED DOCUMENTS.—A removal proceeding may not proceed until the alien, or in the case of an alien who is represented by counsel, the alien's counsel—

“(A) has received the documents required under paragraph (4)(C); and

“(B) has been provided at least 10 days to review and assess such documents.”.

(e) Nonprofit respite centers.—Section 313 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11343) is amended—

(1) in subsection (a)—

(A) in paragraph (2), by striking “; and” and inserting a semicolon;

(B) in paragraph (3), by striking the period at the end and inserting “; and”; and

(C) by adding at the end the following:

“(4) to provide assistance to State and local governments and local nonprofit organizations that serve aliens (as defined in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a))) released from the custody of the Secretary of Homeland Security to address the needs of communities that experience the arrival of a high number of asylum seekers.”; and

(2) by adding at the end the following:

“(c) Authorization of appropriations.—There is authorized to be appropriated to the Director to award grants to the National Board to carry out subsection (a)(4) $100,000,000 for fiscal year 2019 and each fiscal year thereafter.”.

SEC. 7. Access by counsel at detention facilities.

(a) In general.—The Secretary of Homeland Security shall provide access to counsel for all aliens detained in a facility under the supervision of U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, or the Department of Health and Human Services, or in any private facility that contracts with the Federal Government to house, detain, or hold aliens.

(b) Authorization of appropriations for Legal Orientation Program.—There is authorized to be appropriated to carry out the Legal Orientation Program of the Executive Office for Immigration Review $55,000,000 for fiscal year 2019 and each fiscal year thereafter.

(c) Clarification regarding the authority of the Attorney General To appoint counsel to aliens in immigration proceedings.—

(1) IN GENERAL.—Section 292 of the Immigration and Nationality Act (8 U.S.C. 1362) is amended to read as follows:

“SEC. 292. Right to counsel.

“(a) In general.—Except as provided in subsections (b) and (c), in any removal proceeding and in any appeal proceeding before the Attorney General from any such removal proceeding, the subject of the proceeding shall have the privilege of being represented by such counsel as may be authorized to practice in such proceeding as he or she may choose. This subsection shall not apply to screening proceedings described in section 235(b)(1)(A).

“(b) Access to counsel for unaccompanied alien children.—

“(1) IN GENERAL.—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.

“(2) LENGTH OF REPRESENTATION.—Once a child is designated as an unaccompanied alien child under paragraph (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 any ancillary matters appropriate to such proceedings even if the child attains 18 years of age or is reunified with a parent or legal guardian while the proceedings are pending.

“(3) NOTICE.—Not later than 72 hours after an unaccompanied alien child is taken into Federal custody, the alien shall be notified that he or she will be provided with legal counsel in accordance with this subsection.

“(4) WITHIN DETENTION FACILITIES.—The Secretary of Homeland Security shall ensure that unaccompanied alien children have access to counsel inside all detention, holding, and border facilities.

“(c) Pro bono representation.—

“(1) IN GENERAL.—To the maximum extent practicable, the Attorney General shall make every effort to use the services of competent counsel who agree to provide representation to such children under subsection (b) without charge.

“(2) DEVELOPMENT OF NECESSARY INFRASTRUCTURES AND SYSTEMS.—The Attorney General shall develop the necessary mechanisms to identify counsel available to provide pro bono legal assistance and representation to children under subsection (b) and to recruit such counsel.

“(d) Contracts; grants.—The Attorney General may enter into contracts with, or award 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. 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.

“(e) 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.

“(f) 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.

“(g) Savings provision.—Nothing in this section may be construed to supersede—

“(1) any duties, responsibilities, disciplinary, or ethical responsibilities an attorney may have to his or her client under State law;

“(2) the admission requirements under State law; or

“(3) any other State law pertaining to the admission to the practice of law in a particular jurisdiction.”.

(2) RULEMAKING.—The Attorney General shall promulgate regulations to implement section 292 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. 8. Immigration court improvements.

(a) Hiring of immigration judges.—

(1) IN GENERAL.—During fiscal year 2019, 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.

(2) QUALIFICATIONS.—The Attorney General shall ensure that each immigration judge hired under this subsection is—

(A) highly qualified; and

(B) trained to conduct fair and impartial hearings in accordance with applicable due process requirements.

(3) NO PREFERENCE FOR CANDIDATES WITH PRIOR SERVICE IN THE FEDERAL GOVERNMENT.—In selecting immigration judges under this subsection, the Attorney General may not assign any preference to a candidate who has prior service in the Federal Government over a candidate who—

(A) has equivalent subject-matter expertise based on experience in a nonprofit, private practice, or academic setting; but

(B) does not have previous Federal service.

(b) Immigration court staff.—During fiscal year 2019, the Attorney General shall—

(1) increase the total number of judicial law clerks for the Executive Office for Immigration Review by 75; and

(2) increase the total number of support staff for immigration judges, including legal assistants and interpreters, by 300.

(c) Support staff; other resources.—The Attorney General shall ensure that the Executive Office for Immigration Review has sufficient support staff, adequate technological and security resources, and appropriate facilities to conduct the immigration proceedings required under Federal law.

(d) Limitation.—Amounts appropriated for the Executive Office for Immigration Review or for any other division, activity, or function of the Department of Justice may not be used to implement numeric judicial performance standards or other standards that could negatively impact the fair administration of justice by the immigration courts.

(e) Docket management for resource conservation.—Notwithstanding any opposition from the Secretary of Homeland Security or the Attorney General, 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 any other immigration benefit; and

(2) has a pending application for such benefit before U.S. Citizenship and Immigration Services or any other applicable Federal agency.

(f) Authorization of appropriations.—There are authorized to be appropriated such sums as may be necessary to carry out this section.

SEC. 9. Accountability and oversight.

(a) Weekly reports.—

(1) IN GENERAL.—Not less frequently than weekly, the Secretary of Homeland Security, in collaboration with the Secretary of Health and Human Services, shall submit to the appropriate committees of Congress a report that includes, for the preceding one-week period, the following:

(A) The total number of children in the custody of the Secretary of Homeland Security and the Secretary of Health and Human Services, disaggregated by—

(i) age;

(ii) the number of children in the custody of the Secretary of Homeland Security;

(iii) the number of children in the custody of the Secretary of Health and Human Services;

(iv) the location of the detention facilities in which such children are housed, including city and State; and

(v) average number of days in such custody.

(B) (i) The number of deaths of children in such custody, as applicable, including relevant details relating to the circumstances of each death.

(ii) The information described in clause (i) shall be submitted to Congress in a weekly report under this paragraph, as applicable, notwithstanding a requirement to report to Congress such information under any other law.

(C) The total number of such children that were separated from family members.

(D) (i) Subject to clause (ii), the total number of pregnant women in such custody, disaggregated by—

(I) the number of such women in the custody of the Secretary of Homeland Security;

(II) the number of such women in the custody of the Secretary of Health and Human Services; and

(III) the location of detention facilities in which such pregnant women are housed, including city and State.

(ii) Information described in clause (i) may not be submitted in a weekly report if such information renders a pregnant woman personally identifiable.

(E) The average number of days individuals subject to the migrant protection protocol issued on January 24, 2019, remain in Mexico for the resolution of United States immigration proceedings.

(2) MONTHLY PUBLICATION.—Not less frequently than monthly, the Secretary of Homeland Security shall publish on an internet website of the Department of Homeland Security that is available to the public a summary of the reports under paragraph (1) for the preceding one-month period.

(b) Mandatory access to detention facilities for Members of Congress.—

(1) IN GENERAL.—Subject to paragraph (3), the Secretary concerned shall allow a Member of Congress to tour any facility in which one or more detained individuals, including unaccompanied alien children, are housed at a time between 8:00 a.m. and 7:00 p.m. on a date requested by the Member of Congress if, not later than 24 hours before midnight on the date requested, the Secretary concerned receives written notice from the Member of Congress that includes—

(A) the name of the facility; and

(B) the date on which the Member of Congress intends to tour the facility.

(2) ACCOMPANYING MEMBERS OF THE PRESS.—

(A) IN GENERAL.—Subject to subparagraph (B), the Secretary concerned shall allow one or more members of the press to accompany a Member of Congress on a tour of a facility under this subsection.

(B) LIMITATIONS.—

(i) STILL OR VIDEO CAMERAS.—The Secretary concerned shall not be required to allow a member of the press to enter a facility under subparagraph (A) with a still or video camera.

(ii) PERSONALLY IDENTIFYING INFORMATION.—As a condition of entering a facility under subparagraph (A), a member of the press shall agree not to release any personally identifying information of a staff member of the facility or a child housed at the facility without the express authorization of such staff member or child.

(3) LIMITATION.—The Secretary concerned may limit a tour under paragraph (1) to—

(A) in the case of a facility that houses fewer than 50 unaccompanied alien children—

(i) not more than five Members of Congress; and

(ii) accompanying members of the press under paragraph (2); and

(B) in the case of a facility that houses not fewer than 50 detained individuals, including unaccompanied children—

(i) not more than ten Members of Congress; and

(ii) accompanying members of the press under paragraph (2).

(4) DEFINITION OF SECRETARY CONCERNED.—In this subsection, the term “Secretary concerned” means, as applicable—

(A) the Secretary of Homeland Security; or

(B) the Secretary of Health and Human Services.


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