IN THE SENATE OF THE UNITED STATES
July 25, 2018
Mr. Durbin introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To limit the separation of families at or near ports of entry, to provide access to counsel for unaccompanied alien children, and to improve immigration detention, and for other purposes.
This Act may be cited as the
Humane Treatment of Migrant Children Act.
Keeping Families Together
In this title:
The terms agent and officer include contractors of the Federal Government.
The term child means an individual who—
has not reached the age of 18; and
has no permanent immigration status.
Committees of jurisdiction
The term committees of jurisdiction means—
the Committee on the Judiciary and the Committee on Health, Education, Labor, and Pensions of the Senate; and
the Committee on the Judiciary of the House of Representatives.
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.
The term designated agency means—
the Department of Homeland Security;
the Department of Justice; and
the Department of Health and Human Services.
The term finding means an individualized written assessment or screening by the trained agent or officer that includes a consultation with a child welfare specialist, formalized as required under section 102(c) and consistent with sections 103, 104, and 108.
Unless otherwise specified, the term Secretary means the Secretary of Homeland Security.
Limitation on the separation of families
An agent or officer of a designated agency shall be prohibited from removing a child from his or her parent or legal guardian, at or near the port of entry or within 100 miles of the border of the United States, unless one of the following has occurred:
A State court, authorized under State law, terminates the rights of a parent or legal guardian, determines that it is in the best interests of the child to be removed from his or her parent or legal guardian, in accordance with the Adoption and Safe Families Act of 1997 (Public Law 105–89), or makes any similar determination that is legally authorized under State law.
An official from the State or county child welfare agency with expertise in child trauma and development makes a best interests determination that it is in the best interests of the child to be removed from his or her parent or legal guardian because the child is in danger of abuse or neglect at the hands of the parent or legal guardian, or is a danger to herself or others.
The Chief Patrol Agent or the Area Port Director in their official and undelegated capacity, authorizes separation upon the recommendation by an agent or officer, based on a finding that—
the child is a victim of trafficking or is at significant risk of becoming a victim of trafficking;
there is a strong likelihood that the adult is not the parent or legal guardian of the child; or
the child is in danger of abuse or neglect at the hands of the parent or legal guardian, or is a danger to themselves or others.
Prohibition on separation
An agency may not remove a child from a parent or legal guardian solely for the policy goal of deterring individuals from migrating to the United States or for the policy goal of promoting compliance with civil immigration laws.
The Secretary shall ensure that a separation under subsection (a)(3) is documented in writing and includes, at a minimum, the reason for such separation, together with the stated evidence for such separation.
Recommendations for separation by agents or officers
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, childhood trauma, attachment, and child development, for use by the agents and officers, in order to standardize the implementation of section 102(a)(3).
Not less frequently than annually, the Secretary of Health and Human Services shall review the guidance developed under subsection (a) and make recommendations to the Secretary to ensure such guidance is in accordance with current evidence and best practices in child welfare, child development, and childhood trauma.
The guidance under subsection (a) shall incorporate the presumptions described in section 104.
The guidance and training developed under this section shall incorporate evidence-based practices.
All agents and officers of designated agencies, upon hire, and annually thereafter, shall complete training on adherence to the guidance under this section.
All Chief Patrol Agents and Area Port Directors, upon hire, and annually thereafter, shall complete—
training on adherence to the guidance under this section; and
90 minutes of child welfare practice training that is evidence-based and trauma-informed.
The presumptions described in this section are the following:
There shall be a strong presumption in favor of family unity.
To the maximum extent practicable, the Secretary shall ensure that sibling groups remain intact.
In general, there is a presumption that detention is not in the best interests of families and children.
Required policy for locating separated children
Not later than 180 days after the 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 section 102(a). In developing the 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.
The Secretary shall provide each parent or legal guardian who was separated, with written notice of the public guidance to locate a separated child.
All guidance shall be available in English and Spanish, and at the request of the parent or legal guardian, in the language or manner that is understandable by the parent or legal guardian.
Required information for separated families
Not less frequently than once every month, the Secretary shall provide the parent or legal guardian of a child who was separated, the following information, at a minimum:
A status report on the monthly activities of the child.
Information about the education and health of the child, including any medical treatment provided to the child or medical treatment recommended for the child.
Information about changes to the child’s immigration status.
Other information about the child, designed to promote and maintain family reunification, as the Secretary determines in his or her discretion.
Annual report on family separation
Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Secretary shall submit to the committees of jurisdiction a report that describes each instance in which a child was separated from a parent or legal guardian and includes, for each such instance, the following:
The relationship of the adult and the child.
The age and gender of the adult and child.
The length of separation.
Whether the adult was charged with a crime, and if the adult was charged with a crime, the type of crime.
Whether the adult made a claim for asylum, expressed a fear to return, or applied for other immigration relief.
Whether the adult was prosecuted if charged with a crime and the associated outcome of such charges.
The stated reason for, and evidence in support of, the separation.
If the child was part of a sibling group at the time of separation, whether the sibling group has had physical contact and visitation.
Whether the child was rendered an unaccompanied alien child.
Other information in the Secretary’s discretion.
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—
the parental rights remain intact; and
the separation does not constitute an affirmative determination of abuse or neglect under Federal or State law.
Clarification of existing law
Nothing in this title shall be interpreted to supersede or modify Federal child welfare law, where applicable, including the Adoption and Safe Families Act of 1997 (Public Law 105–89).
Nothing in this title shall be interpreted to supersede or modify State child welfare laws where applicable.
GAO report on prosecution of asylum seekers
The Comptroller General of the United States shall conduct a study of the prosecution of asylum seekers during the period beginning on January 1, 2008, and ending on December 31, 2018, including—
the total number of persons who claimed a fear of persecution, received a favorable credible fear determination, and were referred for prosecution;
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;
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;
the total number of asylum seekers who were separated from their children as a result of being referred for prosecution;
a breakdown of the resources spent on prosecuting asylum seekers during such period, as well as any diversion of resources required to prosecute asylum seekers, and any costs imposed on States and localities;
the total number of asylum seekers who were referred for prosecution and also went through immigration proceedings; and
the total number of asylum seekers referred for prosecution who were deported before going through immigration proceedings.
Not later than 1 year after the date of the enactment of this Act, the Comptroller General shall submit to Congress a report that describes the results of the study conducted pursuant to subsection (a).
Fair Day in Court For Kids
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 determined by the Attorney General or the Executive Office for Immigration Review.
Nothing in this section may be construed to supersede—
any duties, responsibilities, or 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 to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report regarding the extent to which aliens described in section 292(b) of the Immigration and Nationality Act, as added by section 201(b)(1), 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 201(b)(1), 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 title.
The budgetary effects of this title, 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 title, 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.
Improving Immigration Detention
Immigration detention priorities
The Director of U.S. Immigration and Customs Enforcement shall use the limited resources of U.S. Immigration and Customs Enforcement to detain aliens who pose a threat to national security or public safety.
Absent extraordinary circumstances, aliens shall not be detained if—
they are known to be suffering from serious physical or mental illness;
they have a disability;
they are elderly, pregnant, or nursing;
they are minors;
they demonstrate that they are primary caretakers of a minor or an infirm person; or
their detention is otherwise not in the public interest.
U.S. Immigration and Customs Enforcement detention facility standards
Beginning not later than 1 year after the date of the enactment of this Act, all U.S. Immigration and Customs Enforcement detention system facilities, including contract facilities and local and county jails operating under intergovernmental service agreements, shall meet the Performance-Based National Detention Standards developed by U.S. Immigration and Customs Enforcement in 2011, including the revisions issued in December 2016.
Increased funding for alternatives to detention
The Secretary of Homeland Security shall provide sufficient funding to the Alternatives to Detention Division to cover alternatives to detention program costs for all aliens awaiting immigration proceedings who are not subject to detention.
The Director of U.S. Immigration and Customs Enforcement shall contract with nonprofit service providers with the ability to provide the services required in operating an alternatives to detention program whenever feasible.
Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary to carry out this section.
Increasing the number of immigration judges and strengthening merit-based hiring and due process
The Attorney General shall increase the total number of immigration judges by 225, compared to the number of immigration judges authorized on the date of the enactment of this Act.
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.
Amounts appropriated for the Executive Office for Immigration Review or for any other Department of Justice agency or function 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.
The Attorney General shall—
ensure that all newly hired immigration judges and Board of Immigration Appeals members are highly qualified and trained to conduct fair, impartial adjudications in accordance with applicable due process requirements; and
in selecting immigration judges, may not give any preference to candidates with prior government experience compared to equivalent subject-matter expertise resulting from nonprofit, private bar, or academic experience.
Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary to carry out this section.
U.S. Citizenship and Immigration Services Refugee Corps officers
The Secretary of Homeland Security shall increase the total number of Department of Homeland Security personnel who are responsible for processing refugee applications by not fewer than the maximum number of such personnel reassigned to the Asylum Division during fiscal year 2018.