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S. 901: FAIR Proceedings Act


The text of the bill below is as of Mar 23, 2021 (Introduced).


II

117th CONGRESS

1st Session

S. 901

IN THE SENATE OF THE UNITED STATES

March 23, 2021

(for herself, Mr. Markey, Mr. Blumenthal, Mr. Booker, Ms. Warren, Mr. Padilla, Mr. Kaine, Mr. Merkley, and Ms. Klobuchar) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To provide access to counsel for children and other vulnerable populations.

1.

Short titles

This Act may be cited as the Funding Attorneys for Indigent Removal Proceedings Act or the FAIR Proceedings Act.

2.

Improving immigration court efficiency and reducing costs by increasing access to legal information

(a)

Appointment of counsel in certain cases; 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—

(1)

in paragraph (4)—

(A)

in the matter preceding subparagraph (A), by inserting , or in the case of an unaccompanied alien child (as defined in section 462(g)(2) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)(2))), under regulations of the Secretary of Health and Human Services after Attorney General;

(B)

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;

(C)

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

(D)

by inserting after subparagraph (A) the following:

(B)

the Attorney General, or in the case of an unaccompanied alien child, the Secretary of Health and Human Services, may appoint or provide counsel, at Government expense, to the alien;

(C)

the alien, at the beginning of such proceedings or as expeditiously as possible, shall automatically receive a complete copy of all relevant documents in the possession of the Department of Homeland Security (unless the alien waives the right to receive such documents by executing a knowing and voluntary written waiver in a language that he or she understands fluently), including—

(i)

all documents (other than documents protected from disclosure by privilege and documents containing national security information referred to in subparagraph (D), law enforcement sensitive information, or information prohibited from disclosure pursuant to any other provision of law) contained in the file maintained by the Government that includes information with respect to all transactions involving the alien during the immigration process (commonly referred to as an A-file); and

(ii)

all documents pertaining to the alien that the Department of Homeland Security has obtained or received from other government agencies;

; and

(E)

in subparagraph (D), as redesignated, by striking , and and inserting ; and; and

(2)

by adding at the end the following:

(8)

Failure to provide alien required documents

In the absence of a waiver under paragraph (4)(C), a removal proceeding may not proceed until the alien—

(A)

has received the documents required under such paragraph; and

(B)

has been provided meaningful time to review and assess such documents.

.

(b)

Clarification regarding the authority of the Attorney General and the Secretary of Health and Human Services To appoint counsel to aliens in immigration proceedings

Section 292 of the Immigration and Nationality Act (8 U.S.C. 1362) is amended—

(1)

by striking In any and inserting the following:

(a)

In general

In any proceeding conducted under section 235, 236, 238, 240, or 241, or under any other section of this Act, including

;

(2)

in subsection (a), as redesignated—

(A)

by striking (at no expense to the Government); and

(B)

by striking he shall and inserting the person shall; and

(3)

by adding at the end the following:

(b)

Access to counsel

(1)

In general

The Attorney General may appoint or provide counsel to aliens in any proceeding conducted under section 235, 236, 238, 240, or 241, or under any other section of this Act.

(2)

Unaccompanied alien children

The Secretary of Health and Human Services may appoint or provide counsel to unaccompanied alien children (as defined in section 462(g)(2) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)(2))) in any applicable proceeding conducted pursuant to any section of this Act.

(3)

Immigration detention and border facilities

The Secretary of Homeland Security shall ensure that aliens have access to counsel inside all immigration detention and border facilities.

.

(c)

Appointment of counsel for children and vulnerable aliens

(1)

In general

Section 292 of the Immigration and Nationality Act, as amended by subsection (b), is further amended by adding at the end the following:

(c)

Unaccompanied alien children

Notwithstanding subsection (b), the Secretary of Health and Human Services shall appoint or provide counsel at Government expense, if necessary, at the beginning of immigration proceedings, or as expeditiously as possible, to represent in such proceedings unaccompanied alien children.

(d)

Other vulnerable aliens

Notwithstanding subsection (b), the Attorney General shall appoint or provide counsel at Government expense, if necessary, at the beginning of immigration proceedings or as expeditiously as possible, to represent in such proceedings any alien who has been determined by the Secretary of Homeland Security or the Attorney General to be—

(1)

a child who is not an unaccompanied alien child;

(2)

a person with a disability;

(3)

a victim of abuse, torture, or violence;

(4)

an individual whose income is at or below 200 percent of the poverty line (as defined by the Office of Management and Budget and revised annually in accordance with section 673(2) of the Community Services Block Grant Act (42 U.S.C. 9902(2))) applicable to a family of the size involved; or

(5)

an individual whose circumstances require the appointment of counsel to help ensure the fair resolution and efficient adjudication of the proceedings.

(e)

Extension to consolidated cases

If the Attorney General has consolidated the case of an alien for whom counsel was appointed under subsection (c) or (d) with the case of another alien who does not have counsel, the counsel appointed under subsection (c) or (d), as applicable, shall be appointed to represent such other alien.

(f)

Authorization of appropriations

There is authorized to be appropriated to the Office of Refugee Resettlement of the Department of Health and Human Services and to Executive Office for Immigration Review of the Department of Justice, such sums as may be necessary to carry out this section.

.

(2)

Rulemaking

(A)

Unaccompanied alien children

The Secretary of Health and Human Services shall promulgate regulations to implement section 292(c) 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.

(B)

Other vulnerable aliens

The Attorney General shall promulgate regulations to implement section 292(d) 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.

3.

Access by counsel and legal orientation at detention facilities

(a)

Access to counsel

The Secretary of Homeland Security shall facilitate access to counsel for all aliens detained in facilities under the supervision of U.S. Immigration and Customs Enforcement or of U.S. Customs and Border Protection, including providing information to such aliens regarding legal services programs at detention facilities.

(b)

Access to legal orientation programs

(1)

Procedures

The Secretary of Homeland Security, in consultation with the Attorney General, shall establish procedures—

(A)

to ensure that legal orientation programs are available for all detained aliens, including aliens held in U.S. Customs and Border Protection facilities; and

(B)

to inform such aliens of—

(i)

the basic procedures of immigration hearings;

(ii)

their rights relating to such hearings under Federal immigration laws;

(iii)

information that may deter such aliens from filing frivolous legal claims; and

(iv)

any other information that the Attorney General considers appropriate, such as a contact list of potential legal resources and providers.

(2)

Universal availability

Access to legal orientation programs under paragraph (1) may not be limited by the alien’s current immigration status, prior immigration history, or potential for immigration relief.

4.

Report on access to counsel

(a)

Report

Not later than December 31 of each year, the Secretary of Homeland Security, in consultation with the Attorney General and the Secretary of Health and Human Services, shall 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 subsections (c) and (d) of section 292 of the Immigration and Nationality Act, as added by section 2(c)(1), have been provided access to counsel.

(b)

Contents

Each report submitted pursuant to subsection (a) shall include, for the immediately preceding 1-year period—

(1)

the number and percentage of aliens described in section 292(c) of the Immigration and Nationality Act and in paragraphs (1), (2), (3), and (4), respectively, of section 292(d) of such Act who were represented by counsel, including information specifying—

(A)

the stage of the legal process at which the alien was represented; and

(B)

whether the alien was in government custody; and

(2)

the number and percentage of aliens who received legal orientation presentations.

5.

Motions to reopen

Section 240(c)(7)(C) of the Immigration and Nationality Act (8 U.S.C. 1229a(c)(7)(C)) is amended by adding at the end the following:

(v)

Special rule for aliens entitled to appointment of counsel

If the Secretary of Health and Human Services or the Attorney General fail to appoint counsel for an alien in accordance with subsection (c) or (d) of section 292, as applicable—

(I)

no limitation under this paragraph pertaining to the filing of any motion under this paragraph by such alien shall apply; and

(II)

the filing of such a motion shall stay the removal of the alien.

.