IN THE SENATE OF THE UNITED STATES
February 28, 2018
Ms. Hirono (for herself, Mr. Blumenthal, Mr. Booker, Mr. Coons, Ms. Cortez Masto, Mrs. Feinstein, Mrs. Gillibrand, Mr. Markey, Mr. Merkley, Mr. Murphy, Mr. Wyden, Mr. Menendez, and Ms. Harris) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To provide access to counsel for unaccompanied alien children.
This Act may be cited as the
Fair Day in Court for Kids Act of 2018.
Improving immigration court efficiency and reducing costs by increasing access to legal information
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—
in paragraph (4)—
in subparagraph (A)—
, at no expense to the Government,; and
by striking the comma at the end and inserting a semicolon;
by redesignating subparagraphs (B) and (C) as subparagraphs (D) and (E), respectively;
by inserting after subparagraph (A) the following:
the Attorney General may appoint or provide counsel, at Government expense, to aliens in immigration proceedings;
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);
in subparagraph (D), as redesignated, by striking
, and and inserting
; and; and
by adding at the end the following:
Failure to provide alien required documents
A removal proceeding may not proceed until the alien, or the alien’s counsel, if the alien is represented—
has received the documents required under paragraph (4)(C); and
has been provided at least 10 days to review and assess such documents.
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 to read as follows:
Right to counsel
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).
Access to counsel for unaccompanied alien children
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.
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.
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.
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.
Pro bono representation
To the maximum extent practicable, the Attorney General should make every effort to utilize the services of competent counsel who agree to provide representation to such children under subsection (b) without charge.
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.
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.
Model guidelines on legal representation of children
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.
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.
Duties of counsel
Counsel provided under this section shall—
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;
appear in person for all individual merits hearings before the Executive Office for Immigration Review and interviews involving the Department of Homeland Security;
owe the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due to an adult client; and
carry out other such duties as may be proscribed by the Attorney General or the Executive Office for Immigration Review.
Nothing in this section may be construed to supersede—
any duties, responsibilities, disciplinary, or ethical responsibilities an attorney may have to his or her client under State law;
the admission requirements under State law; or
any other State law pertaining to the admission to the practice of law in a particular jurisdiction.
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.
Access by counsel and legal orientation at detention facilities
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.
Report on access to counsel
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(b) of the Immigration and Nationality Act, as added by section 2(b), have been provided access to counsel.
Each report submitted under paragraph (a) shall include, for the immediately preceding 1-year period—
the number and percentage of aliens described in section 292(b) of the Immigration and Nationality Act, as added by section 2(b), who were represented by counsel, including information specifying—
the stage of the legal process at which each such alien was represented;
whether the alien was in government custody; and
the nationality and ages of such aliens; and
the number and percentage of aliens who received legal orientation presentations, including the nationality and ages of such aliens.
Authorization of appropriations
There is authorized to be appropriated to the Executive Office of Immigration Review of the Department of Justice such sums as may be necessary to carry out this Act.
The budgetary effects of this Act, for the purpose of complying with the Statutory Pay-As-You-Go-Act of 2010, shall be determined by reference to the latest statement titled
Budgetary Effects of PAYGO Legislation for this Act, submitted for printing in the Congressional Record by the Chairman of the Senate Budget Committee, provided that such statement has been submitted prior to the vote on passage.