IN THE SENATE OF THE UNITED STATES
June 5, 2019
Mrs. Feinstein (for herself, Ms. Harris, Ms. Hirono, and Ms. Klobuchar) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To limit the separation of children from their parents or legal guardians, to limit the detention of families and children, to provide unaccompanied alien children with access to counsel, to increase the number of immigration judges and support staff, and for other purposes.
This Act may be cited as the
Protecting Families and Improving Immigration Procedures Act.
Ensuring that families remain together
Limitation on the separation of families
An agent or officer of a designated agency shall not remove 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 1 of the following situations 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 determines 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 himself or herself or to others.
The Chief Patrol Agent or the Area Port Director, in his or her 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 himself or herself or to 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 based upon a situation described in paragraph (1)(C)—
is documented in writing; and
includes the reason for such separation and 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 separations authorized under subsection (a)(1)(C).
Not less frequently than annually, the Secretary of Health and Human Services shall—
review the guidance developed under paragraph (1); and
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.
The guidance developed under paragraph (1) shall incorporate the presumptions described in subsection (c).
The guidance and training developed under this subsection 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 subsection.
All Chief Patrol Agents and Area Port Directors, upon hire, and annually thereafter, shall complete—
training on adherence to the guidance under this subsection; and
90 minutes of child welfare practice training that is evidence-based and trauma-informed.
The presumptions described in this subsection 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.
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 subsection (a)(1). 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 monthly, the Secretary shall provide the parent or legal guardian of a child who was separated—
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; and
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 a report to the committees of jurisdiction that describes each instance in which a child was separated from a parent or legal guardian and includes, for each such instance—
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; and
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 section may 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 section may be interpreted to supersede or modify State child welfare laws, as 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 a report to Congress that describes the results of the study conducted under paragraph (1).
Flores settlement agreement
A family unit may be detained only in accordance with the holding made 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) (commonly known as the
Flores settlement agreement).
Any regulation proposed or promulgated to supersede the Flores settlement agreement is null and void.
Rule of construction
Nothing in this Act may be construed—
to affect the application of the Flores settlement agreement to unaccompanied alien children; or
to abrogate the Flores settlement agreement.
Review of detention determinations
The review of any determination by the Secretary to detain an individual or family unit under this section 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).
Access to counsel for unaccompanied alien children
Appointment of counsel
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 subsection (a)—
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 reaches 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 child shall be notified that he or she will be provided with legal counsel in accordance with this section.
Within detention facilities
The Secretary 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 this section 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 this section; 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.
Increases in immigration judges and support staff
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 during fiscal year 2019.
The Attorney General shall—
increase the total number of judicial law clerks by 75 during fiscal year 2019; and
increase the total number of support staff for immigration judges, including legal assistants and interpreters, by 300 during fiscal year 2019.
Docket management for resource conservation
Notwithstanding any opposition from the Secretary, immigration judges may administratively close cases, and the Board of Immigration Appeals may remand cases for administrative closure, if an individual in removal proceedings—
appears to be prima facie eligible for a visa or other immigration benefit; and
has a pending application for such benefit before U.S. Citizenship and Immigration Services or another appropriate agency.
In this Act:
The terms agent and officer include contractors of the Federal Government.
The term child means an individual who—
has not attained 18 years of age; and
has no permanent immigration status.
Committees of jurisdiction
The term committees of jurisdiction means—
the Committee on the Judiciary of the Senate;
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 subsection (b)(3) and consistent with subsections (c), (d), and (h).
The term Secretary means the Secretary of Homeland Security.