IN THE SENATE OF THE UNITED STATES
March 5, 2019
Ms. Hirono (for herself, Ms. Cortez Masto, Ms. Harris, Mr. Blumenthal, Mrs. Gillibrand, Ms. Klobuchar, Mr. Wyden, Ms. Smith, Mr. Booker, Mr. Markey, Mr. Sanders, and Mr. Merkley) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To provide for enhanced protections for vulnerable alien children, and for other purposes.
This Act may be cited as the
Child Trafficking Victims Protection and Welfare Act of 2019.
In this Act:
Apprehended parent or legal guardian
The term apprehended parent or legal guardian means an individual who is—
the parent or legal guardian of a child; and
apprehended by the Secretary or the personnel of a cooperating entity.
The term border means an international border of the United States.
The term child means an individual who—
has not reached the age of 18 years; and
has no permanent immigration status in the United States.
Child welfare professional
The term child welfare professional means an individual who—
is licensed in social work by the State welfare agency, and, if applicable, county welfare agency, of the State and county in which the port of entry or Border Patrol station at which such individual available pursuant to section 3 is located;
has direct experience working with children; and
is proficient in one or more of the most common languages spoken by children apprehended at the applicable port of entry or Border Patrol station.
The term Commissioner means the Commissioner of U.S. Customs and Border Protection.
The term cooperating entity means a State or local entity acting pursuant to an agreement with the Secretary.
The term Department means the Department of Homeland Security.
Expert in child development
The term expert in child development means an individual who has significant education and expertise on infant, child, and adolescent development, and on the effects of trauma on children.
Expert in child welfare
The term expert in child welfare means an individual who has—
knowledge of Federal and State child welfare laws and standards; and
not less than 15 years of experience in the field of child and adolescent development or child welfare.
Expert in pediatric medicine
The term expert in pediatric medicine means—
an individual who is board-certified in pediatric medicine in one or more States; or
an individual with an advanced degree in pediatric medicine on the faculty of an institution of higher education in the United States.
Migration deterrence program
The term migration deterrence program means an action relating to the repatriation or referral for prosecution of one or more individuals apprehended by the Secretary or a cooperating entity for a suspected or confirmed violation of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
The term Secretary means the Secretary of Homeland Security.
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)).
Child welfare at the border
The Secretary, in consultation with the Secretary of Health and Human Services, experts in child development, experts in child welfare, experts in pediatric medicine, and the American Bar Association Center on Children and the Law, shall develop guidelines for the treatment of children in the custody of the Commissioner.
The Secretary, in consultation with the Secretary of Health and Human Services, shall—
require all U.S. Customs and Border Protection personnel, and cooperating entity personnel, who have contact with a child at a port of entry or Border Patrol station to undergo appropriate training, which shall include live training, on—
the applicable legal authorities, policies, practices, and procedures relating to children; and
child development, trauma, and the manner in which trauma affects the health and behavior of children; and
require U.S. Customs and Border Protection personnel, not less frequently than annually, to undertake continuing training on—
identifying and responding to common signs and symptoms of medical distress in children;
best practices with respect to the guidelines developed under subsection (a); and
changes in the legal authorities, policies, and procedures described in paragraph (1)(A).
In accordance with subsection (d), the Secretary shall provide resources and staff, including child welfare professionals, who are adequately trained and qualified to address the needs of children at each port of entry and Border Patrol station.
The Secretary shall ensure that sufficient qualified child welfare professionals and qualified experts in pediatric medicine are available at each port of entry and Border Patrol station to accomplish the duties described in this section without prolonging the time children and apprehended parents and legal guardians remain in the custody of the Commissioner.
Child welfare expertise
The Secretary, in consultation with the Secretary of Health and Human Services, shall hire, or seek to enter into contracts with, independent child welfare professionals in order to do the following:
To provide child welfare expertise on-site on a full-time basis at any port of entry or Border Patrol station that has had not fewer than 25 children in custody—
on any day during the preceding fiscal year; or
during the current fiscal year, based on a review of monthly statistical reports during the current fiscal year.
To provide child welfare expertise by telephone on an on-call basis, and on-site as necessary, to U.S. Customs and Border Protection staff at any port of entry or Border Patrol station that is not described in subparagraph (A).
With respect to a port of entry or Border Patrol station that is described in subparagraph (A) but is without on-site expertise as required by such subparagraph during a period of not more than 90 days in which the Secretary, in consultation with the Secretary of Health and Human Services, is in the process of hiring or seeking to enter into a contract with an onsite independent child welfare professional, to provide child welfare expertise by telephone on an on-call basis to U.S. Customs and Border Protection staff.
Child welfare professionals and experts in pediatric medicine
The Secretary, in consultation with the Secretary of Health and Human Services, shall ensure the availability at each port of entry and Border Patrol station of not fewer than—
one qualified child welfare professional with expertise in culturally competent, trauma-centered, and developmentally appropriate interviewing skills; and
one qualified expert in pediatric medicine.
On obtaining custody of a child, the Commissioner shall ensure that the child undergoes a medical assessment carried out by, or in consultation with, the expert in pediatric medicine at the applicable port of entry or Border Patrol Station, in accordance with the guidelines developed under subsection (a).
In the case of a child welfare professional or an expert in pediatric medicine at a port of entry or Border Patrol station who does not speak the language of a child in custody at such port of entry or station, the Secretary shall provide an interpreter.
A child welfare professional described in paragraph (1)(A) shall—
any allegation of abuse or mistreatment of a child in the custody of the Commissioner is referred to the appropriate Federal and State authorities;
any investigation of an allegation described in clause (i)—
receives support from the child welfare professional, who shall follow up on the referral under that clause and coordinate with the investigation until the completion of the investigation; and
is conducted by a multidisciplinary team that uses a trauma-informed approach to investigation, such as Children's Advocacy Centers, to the maximum extent practicable; and
the Commissioner and the Director of the Office of Refugee Resettlement comply with applicable child abuse reporting laws, including by—
ensuring that children in such custody have access to applicable complaint mechanisms to report abuse or misconduct;
reporting any allegation of abuse or mistreatment to—
the applicable Federal and State authorities;
the Office of Inspector General of the Department;
the Office for Civil Rights and Civil Liberties of the Department;
the Internal Affairs Office of U.S. Customs and Border Protection; and
the Office of Refugee Resettlement;
providing notice to federally subcontracted legal service providers in the applicable geographical area with respect to any child in such custody who has made an allegation of abuse or mistreatment; and
directing the legal service providers described in subclause (III) to relevant information relating to the availability of immigration and administrative relief for individuals with pending civil rights complaints;
conduct screening of each child in such custody in accordance with section 235(a)(4) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(a)(4));
with respect to a child who may meet the notification and transfer requirements under subsections (a) and (b) of section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232), including a child for whom a determination cannot be made, notify the Secretary and the Director of the Office of Refugee Resettlement of the presence of such child at the port of entry or Border Patrol station;
provide to the Director of U.S. Immigration and Customs Enforcement a best interest placement recommendation for each accompanied child and family that—
the best interests of the child; and
applicable law; and
favors a policy of release;
interview any adult relative accompanying a child, including any sibling, grandparent, aunt, uncle, or cousin of the child;
for each unaccompanied alien child in such custody, provide to the Director of the Office of Refugee Resettlement—
an initial family relationship and trafficking assessment, which shall be conducted in accordance with the timeframe under subsections (a)(4) and (b)(3) of section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232); and
recommendations for the initial placement of the child;
pursuant to procedures developed by the Secretary, maintain the best interests of children in any migration deterrence program for family units carried out at a border, including by—
inquiring whether a child is traveling with a parent, sibling, or legal guardian;
ascertaining whether the detention or removal from the United States of an apprehended parent or legal guardian of a child presents a humanitarian concern or a concern relating to the physical safety of the apprehended parent or legal guardian;
in the case of a family separation, ensuring that—
each member of the family is provided with a telephone number for each other member of the family;
the apprehended parent or legal guardian is afforded the opportunity to speak with the child of the apprehended parent or legal guardian not fewer than three times weekly, including not fewer than 1 video conference;
for each child of the apprehended parent or legal guardian, the apprehended parent or legal guardian—
the location of the child; and
the date and location of each scheduled immigration court proceeding of the child; and
is provided with updated information if the location of the child or a scheduled immigration court proceeding of the child changes;
the location and contact information for the apprehended parent or legal guardian is maintained on file;
before separation, each child is provided with an opportunity to say goodbye to the apprehended parent or legal guardian; and
with respect to the health of the child, the apprehended parent or legal guardian—
is able, before separation, to communicate to personnel of the Department the medical history and any known illness of the child; and
is informed of any medical treatment administered to the child, including psychotropic drugs, during the period in which the child is in the custody of the Director of the Office of Refugee Resettlement; and
ensuring that, with respect to a decision relating to the removal from the United States or referral for prosecution of an apprehended parent or legal guardian—
consideration is given to—
the best interests of the child of the apprehended parent or legal guardian;
family unity, to the maximum extent possible; and
any other public interest factor, including a humanitarian concern and a concern relating to the physical safety of the apprehended parent or legal guardian; and
the apprehended parent or legal guardian and the child have access to legal counsel; and
coordinate with the Consulate of Mexico to ensure the safe repatriation of any child who is a citizen of Mexico.
Preservation of confidentiality
Each child welfare professional shall maintain the privacy and confidentiality of all information gathered in the course of providing care, custody, placement, and follow-up services to a child pursuant to this subsection, consistent with the best interest of the child, by not disclosing such information to other Federal agencies or nonparental third parties unless such disclosure—
is in the best interest of the child;
is in writing;
includes an explanation of the justification for the disclosure;
is included in the file of the child; and
authorized by the child or an approved sponsor of the child, in accordance with section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) and the Health Insurance Portability and Accountability Act (Public Law 104–191; 110 Stat. 1936); or
provided to a duly recognized law enforcement entity to prevent imminent and serious harm to another individual.
Prohibition on separation
The Secretary may not remove a child from a parent or legal guardian solely for a purpose as follows:
The purpose of furthering the policy objective of deterring individuals from migrating to the United States.
The purpose of furthering the policy objective of promoting compliance with the immigration laws.
Family unit tracking number
The Secretary shall assign a family unit tracking number to each member of an apprehended family unit, including—
an apprehended spouse;
an apprehended parent or legal guardian;
a child of an apprehended parent or legal guardian; and
each member of a sibling group.
The Secretary shall ensure that a family unit tracking number—
may be shared easily among the data systems of—
U.S. Customs and Border Protection;
U.S. Immigration and Customs Enforcement; and
the Office of Refugee Resettlement; and
is included on the paperwork of each member of an apprehended family unit; and
is not deleted or altered.
The Secretary shall—
allow nongovernmental organizations and State and local child welfare agencies in the jurisdiction in which an apprehended child is located to conduct not less than one monthly unannounced, independent inspection of any Department facility that houses one or more children; and
in consultation with one or more child welfare professionals and 1 or more experts in pediatric medicine, for the purpose of human rights monitoring, develop procedures to provide nongovernmental organizations regular and full access to any facility in which one or more children is housed.
Not later than 18 months after the date of the enactment of this Act, and every fiscal quarter thereafter, the Secretary shall submit to the Committee on the Judiciary, the Committee on Homeland Security and Governmental Affairs, and the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on the Judiciary, the Committee on Oversight and Reform, and the Committee on Education and Labor of the House of Representatives a report that, for the preceding fiscal quarter—
describes the procedures used by child welfare professionals under this section to screen unaccompanied alien children and children accompanied by a parent or legal guardian;
assesses the effectiveness of such screenings;
includes data on all children screened by child welfare professionals under this section, including—
the number and location of children in the physical custody of the Department;
the number of children transferred to the custody of the Secretary of Health and Human Services;
the number of children apprehended together with a parent or legal guardian;
the number of children separated from a parent or legal guardian by the Department and the reason for such separation; and
the number of children removed from the United States and the countries of nationality of such children; and
includes documentation of—
compliance with the guidelines developed pursuant to this section;
instances of noncompliance with such guidelines; and
actions taken to correct noncompliance with such guidelines.
The data under paragraph (1)(C) shall not include the personally identifiable information of any child.
With respect to a child in the custody of the Secretary, to effectively and efficiently coordinate the transfer of the child to and placement of the child with the Director of the Office of Refugee Resettlement, the Secretary shall notify the Director of the Office of Refugee Resettlement as soon as practicable, but not later than 48 hours after the time at which the Secretary encounters the child.
Standards of care for short-Term custody of children
Not later than 180 days after the date of the enactment of this Act, the Secretary, in consultation with the head of the Office for Civil Rights and Civil Liberties of the Department, shall promulgate regulations establishing basic standards of care for the short-term custody of children by the Commissioner.
The regulations promulgated pursuant to paragraph (1) shall ensure that all children in the custody of the Commissioner, while in such custody—
receive a health interview, a medical assessment, and all necessary medical treatment, including emergency medical care, as necessary;
receive emergency medical and mental health care in compliance with section 8(c) of the Prison Rape Elimination Act of 2003 (42 U.S.C. 15607(c)), as necessary, including in any case in which a child is at risk of harming himself or herself or others;
continual access to potable water;
a climate-appropriate environment;
climate-appropriate clothing and shoes;
access to bathroom facilities and hygiene items, including soap, feminine hygiene products, toothpaste, toothbrushes and towels, and, in the case of any child in such custody for more than 24 hours, showers;
sufficient blankets to rest at a comfortable temperature;
diapers, diapering supplies, infant formula, and infant feeding supplies, as necessary;
in the case of any child in such custody for more than 12 hours, access to a bed and adequate bedding; and
a location to sleep in which the lights are dimmed;
are offered food at the time at which the Commissioner obtains custody of the child; and
receive adequate nutrition, including not fewer than three daily meals that include 1 or more fruits or vegetables;
have a safe and sanitary living environment;
in the case of any child in such custody for more than 24 hours, have access to daily recreational programs and activities, including recreational time outdoors;
have regular access to legal services and consular officials in person and telephonically; and
are permitted to make supervised video conference calls, if available, and telephone calls to family members.
Ensuring children have access to legal rights
The Secretary shall ensure that each child, on apprehension, is provided—
an interview and screening with a child welfare professional as described in subsection (d); and
a video orientation and oral and written notice, in a language understood by the child, of the rights of the child under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), including—
the right to relief from removal;
to confer with counsel under section 292 of such Act (8 U.S.C. 1362); and
to have access to family or friends while in the temporary custody of the Department; and
the applicable complaint mechanism to report any abuse, mistreatment, or misconduct.
The Secretary shall ensure that, at each location at which one or more children are held in custody, the video orientation described in paragraph (1)(B) is available in English and the five most common native languages spoken by children held in custody at that location during the preceding fiscal year.
Access to legal counsel
The Secretary shall ensure that each apprehended parent or legal guardian and each child is provided access to one or more nongovernmental organizations that provide legal assistance.
Child protection policies
With respect to children, the Secretary shall adopt fundamental child protection policies and procedures—
to make reliable age determinations, developed in consultation with experts in the physiological, cognitive, and emotional development of children and experts in pediatric medicine, which shall exclude the use of fallible forensic testing of the bones and teeth of children;
to use all legal authorities to defer the removal from the United States of a child who faces a risk of life-threatening harm on return, including harm due to the mental health or medical condition of the child; and
to ensure, in accordance with the Juvenile Justice and Delinquency Prevention Act of 1974 (42 U.S.C. 5601 et seq.), that a child in custody of the Secretary is separated physically, and by sight and sound, from any—
immigration detainee or inmate with a criminal conviction;
pretrial inmate facing criminal prosecution; and
inmate exhibiting violent behavior.
Preservation of records
The Secretary shall preserve all records associated with children in the custody of the Commissioner, including records as follows:
Records containing information on the identity of any child, and, if accompanied by any family member, on the identity of such family member.
Records associated with reported incidents of abuse of children while in custody.
Transfer of funds
The Secretary, in accordance with a written agreement between the Secretary and the Secretary of Health and Human Services, to the extent and in such amounts as are provided in advance in appropriations Acts, shall transfer from amounts appropriated for U.S. Customs and Border Protection to the Department of Health and Human Services such amounts as may be necessary to carry out the duties described in subsections (c) and (d)(4).
Not later than 15 days before the date of any proposed transfer under paragraph (1), the Secretary of Health and Human Services, in consultation with the Secretary, shall submit to the Committee on Appropriations of the Senate and the Committee on Appropriations of the House of Representatives a detailed expenditure plan that describes the actions proposed to be taken with the amounts transferred under such paragraph.
Nothing in this Act may be construed to supersede or modify—
the William Wilberforce Trafficking Victims Protection Act of 2008 (8 U.S.C. 1232 et seq.);
the Stipulated Settlement Agreement filed in the United States District Court for the Central District of California on January 17, 1997 (CV 85–4544–RJK) (commonly known as the
Flores Settlement Agreement);
the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.); or
any applicable Federal child welfare law, including the Adoption and Safe Families Act of 1997 (Public Law 105–89).
Nothing in this Act may be construed to supersede or modify any applicable State child welfare law.