PROKID Act

I 117TH CONGRESS 1ST SESSION H. R. 1238 To establish the Office of the Ombudsperson for Immigrant Children in Government Custody, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 23, 2021 Ms. JAYAPAL introduced the following bill; which was referred to the Com- mittee on the Judiciary, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdic- tion of the committee concerned A BILL To establish the Office of the Ombudsperson for Immigrant Children in Government Custody, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Protection of Kids in 4 Immigrant Detention Act’’ or ‘‘PROKID Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 1238 IH (1) COMMITTEE.—The term ‘‘Committee’’ 1 means the expert advisory committee established 2 under section 5(a). 3 (2) DIRECTOR.—The term ‘‘Director’’ means 4 the Director of the Office of Refugee Resettlement. 5 (3) FACILITY.—The term ‘‘facility’’— 6 (A) means a location at which 1 or more 7 immigrant children are detained by the Govern- 8 ment or held in Government custody; and 9 (B) includes— 10 (i) an Office of Refugee Resettlement 11 facility; and 12 (ii) a Department of Homeland Secu- 13 rity facility, including— 14 (I) a U.S. Customs and Border 15 Protection temporary holding facility 16 and transportation contractor; 17 (II) a U.S. Immigration and Cus- 18 toms Enforcement family detention 19 facility; 20 (III) a U.S. Immigration and 21 Customs Enforcement juvenile facility; 22 (IV) a location operated by a pri- 23 vate entity, including a hotel room; 24 and 25 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 1238 IH (V) any other location at which 1 the Department of Homeland Security 2 detains or holds in custody an immi- 3 grant child. 4 (4) FLORES SETTLEMENT AGREEMENT.—The 5 term ‘‘Flores settlement agreement’’ means the stip- 6 ulated settlement agreement filed in the United 7 States District Court for the Central District of 8 California on January 17, 1997 (CV 85–4544– 9 RJK). 10 (5) IMMIGRANT CHILD.—The term ‘‘immigrant 11 child’’ means an alien (as defined in section 101(a) 12 of the Immigration and Nationality Act (8 U.S.C. 13 1101(a)) under the age of 18 years. 14 (6) IN-NETWORK FACILITY.—The term ‘‘in-net- 15 work facility’’ means a facility operated by an Office 16 of Refugee Resettlement grantee, subgrantee, con- 17 tractor, or subcontractor. 18 (7) OFFICE OF REFUGEE RESETTLEMENT FA- 19 CILITY.—The term ‘‘Office of Refugee Resettlement 20 facility’’— 21 (A) means— 22 (i) a shelter; 23 (ii) staff secure, secure care, or transi- 24 tional foster care housing; or 25 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 1238 IH (iii) any other location operated by 1 the Office of Refugee Resettlement to hold 2 immigrant children; and 3 (B) includes an in-network facility and an 4 out-of-network facility. 5 (8) OMBUDSPERSON.—The term 6 ‘‘Ombudsperson’’ means the ombudsperson ap- 7 pointed under section 3(c). 8 (9) OUT-OF-NETWORK FACILITY.—The term 9 ‘‘out-of-network facility’’ means a facility at which 10 an immigrant child is placed as a result of an Office 11 of Refugee Resettlement determination that there is 12 no care provider available among in-network facili- 13 ties to provide specialized services required by the 14 immigrant child, such as medical or mental health 15 support. 16 (10) UNOBSTRUCTED ACCESS.—The term ‘‘un- 17 obstructed access’’ means— 18 (A) with respect to a facility, the ability to 19 enter the facility, including unannounced, to 20 tour and physically visit all areas of the facility; 21 and 22 (B) with respect to information, the ability 23 to obtain requested information in a timely 24 manner and with the full cooperation of the Di- 25 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 1238 IH rector or the Secretary of Homeland Security, 1 as applicable. 2 (11) WORKING GROUP.—The term ‘‘Working 3 Group’’ means the interagency working group estab- 4 lished under section 6(b). 5 SEC. 3. OFFICE OF THE OMBUDSPERSON FOR IMMIGRANT 6 CHILDREN IN GOVERNMENT CUSTODY. 7 (a) ESTABLISHMENT.—There is established, within 8 the Department of Health and Human Services, an Office 9 of the Ombudsperson for Immigrant Children in Govern- 10 ment Custody (referred to in this section as the ‘‘Office 11 of the Ombudsperson’’)— 12 (1) to endorse and support the principle that 13 family separation and detention are generally not in 14 a child’s best interest; and 15 (2) in cases in which detention or Government 16 custody is required— 17 (A) to ensure that immigrant children are 18 only detained or held in Government custody in 19 the least restrictive setting; 20 (B) to advocate for the quick, safe, and ef- 21 ficient release of immigrant children from de- 22 tention or Government custody whenever pos- 23 sible; and 24 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 1238 IH (C) in any case in which an immigrant 1 child is held in Department of Homeland Secu- 2 rity custody together with his or her family 3 unit, to advocate for the release of the child and 4 concurrent release of the parent or legal guard- 5 ian of the child. 6 (b) INDEPENDENCE.—The Office of the 7 Ombudsperson shall be an impartial, confidential resource 8 fully independent of— 9 (1) the Office of Refugee Resettlement of the 10 Department of Health and Human Services; and 11 (2) the Department of Homeland Security. 12 (c) OMBUDSPERSON.— 13 (1) IN GENERAL.—The Office of the 14 Ombudsperson shall be headed by an 15 Ombudsperson, who shall be appointed by, and re- 16 port directly to, the Secretary of Health and Human 17 Services. 18 (2) QUALIFICATIONS.—The individual ap- 19 pointed as Ombudsperson shall have demonstrated 20 experience in— 21 (A) immigration law; and 22 (B) child advocacy or child welfare. 23 (3) DUTIES AND AUTHORITIES.— 24 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 1238 IH (A) MONITORING.—The Ombudsperson 1 shall monitor facilities for compliance with ap- 2 plicable law and standards, including— 3 (i) the Flores settlement agreement; 4 (ii) section 235 of the William Wilber- 5 force Trafficking Victims Protection Reau- 6 thorization Act of 2008 (8 U.S.C. 1232); 7 (iii) the applicable provisions of the 8 Prison Rape Elimination Act of 2003 (34 9 U.S.C. 30301 et seq.); 10 (iv) the standards of U.S. Customs 11 and Border Protection entitled ‘‘National 12 Standards on Transport, Escort, Deten- 13 tion, and Search’’ issued in October 2015; 14 and 15 (v) internal Office of Refugee Reset- 16 tlement policy guidance, including the 17 guidance entitled ‘‘ORR Policy Guide: 18 Children Entering the United States Unac- 19 companied’’ issued on January 30, 2015. 20 (B) INVESTIGATIONS.— 21 (i) IN GENERAL.—The Ombudsperson 22 shall investigate— 23 (I) claims of abuse, neglect, or 24 mistreatment of immigrant children, 25 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 1238 IH by the Government or any other enti- 1 ty, while in Government custody; and 2 (II) complaints against foster 3 care providers, including foster care 4 providers under State oversight. 5 (ii) REPORTING OF STATE LICENSING 6 VIOLATIONS.—If in the course of an inves- 7 tigation under clause (i)(II) the 8 Ombudsperson discovers a State licensing 9 violation, the Ombudsperson shall report 10 the violation to the child welfare licensing 11 agency of the applicable State. 12 (C) OVERSIGHT OF OFFICE OF REFUGEE 13 RESETTLEMENT.— 14 (i) IN GENERAL.—The Ombudsperson 15 shall provide oversight of the Director by 16 reviewing placement decisions, including 17 sponsor denials, that are contested by an 18 immigrant child or the attorney, child ad- 19 vocate, parent, or prospective sponsor of 20 the immigrant child. 21 (ii) EXPEDITED REVIEW OF CON- 22 TESTED PLACEMENT DECISIONS.— 23 (I) IN GENERAL.—Not later than 24 15 days after the date on which re- 25 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 1238 IH view of a placement decision described 1 in clause (i) is requested, the 2 Ombudsperson shall complete the re- 3 view. 4 (II) RECOMMENDATION TO DI- 5 RECTOR.—If, in carrying out such a 6 review, the Ombudsperson determines 7 that such placement decision was er- 8 roneous, the Ombudsperson shall— 9 (aa) submit to the Director 10 a recommendation for further ac- 11 tion; and 12 (bb) make a copy of the rec- 13 ommendation available to— 14 (AA) the immigrant 15 child; and 16 (BB) if applicable, the 17 immigrant child’s attorney 18 and child advocate. 19 (III) WRITTEN STATEMENT.— 20 (aa) IN GENERAL.—In any 21 case in which the Director de- 22 clines to follow a recommendation 23 under subclause (II), not later 24 than 15 days after the date on 25 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 1238 IH which the Director receives the 1 recommendation, the Director 2 shall issue a written response, in- 3 cluding a detailed justification. 4 (bb) NONDELEGATION.— 5 The Director may not delegate 6 the requirement to issue a writ- 7 ten statement under this sub- 8 clause. 9 (iii) CIVIL ACTION NOT PRE- 10 CLUDED.—Review by the Ombudsperson 11 under this subparagraph shall not preclude 12 an immigrant child, or the attorney, child 13 advocate, parent, or prospective sponsor of 14 the immigrant child, from simultaneously 15 commencing a civil action in any appro- 16 priate district court of the United States. 17 (D) STAKEHOLDER MEETINGS.—Not less 18 frequently than quarterly, the Ombudsperson 19 shall invite community stakeholders, Flores set- 20 tlement agreement class counsel, and the Flores 21 settlement agreement court-appointed monitor 22 to participate in a meeting— 23 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 1238 IH (i) to ensure that the Ombudsperson 1 is aware of stakeholder concerns and prior- 2 ities; and 3 (ii) to provide feedback on stakeholder 4 requests. 5 (E) REGIONAL OFFICES.—The 6 Ombudsperson shall establish regional offices of 7 the Office of the Ombudsperson— 8 (i) to ensure the inclusion of pertinent 9 local and regional issues, trends, and chal- 10 lenges for consideration by the 11 Ombudsperson; 12 (ii) to strengthen State oversight; 13 (iii) to coordinate with State licensing 14 entities; and 15 (iv) to identify and address differences 16 among State child protection laws. 17 (F) INDIVIDUAL CASE ASSISTANCE.— 18 (i) IN GENERAL.—The Ombudsperson 19 may offer individual case assistance to an 20 immigrant child who is in Government cus- 21 tody if the case of the immigrant child is 22 long-pending or otherwise requires expe- 23 dited processing or elevated attention, as 24 determined by the Ombudsperson. 25 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 1238 IH (ii) COMMUNICATION.—To ensure a 1 complete understanding of the status of a 2 case described in clause (i), the 3 Ombudsperson may communicate with the 4 potential sponsor, family members, child 5 advocate, legal counsel, Office of Refugee 6 Resettlement case manager and Federal 7 field specialist, the General Dynamics In- 8 formation Technology case coordinator, 9 and any other relevant individual charged 10 with case management of the immigrant 11 child concerned. 12 (G) SUBPOENA AUTHORITY.— 13 (i) IN GENERAL.—Subject to the ap- 14 proval of the Secretary of Health and 15 Human Services, the Ombudsperson 16 may— 17 (I) issue a subpoena to require 18 the production of all information, re- 19 ports, and other documentary evidence 20 necessary to carry out the duties of 21 the Ombudsperson; and 22 (II) invoke the aid of any appro- 23 priate court of the United States. 24 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 13 •HR 1238 IH (ii) TIMELINE FOR PRODUCTION OF 1 INFORMATION.—To prevent undue delay of 2 the placement of an immigrant child, re- 3 quirements set forth in a subpoena under 4 clause (i)(I) shall be satisfactorily fulfilled 5 not later than 7 days after the date on 6 which the Ombudsperson issues the sub- 7 poena. 8 (H) REPORTING MECHANISMS.— 9 (i) IN GENERAL.—The Ombudsperson 10 shall establish and maintain— 11 (I) a toll-free telephone number 12 to receive complaints and reports of 13 matters for investigation; and 14 (II) an email address to receive 15 complaints, such reports, and requests 16 for review of placement decisions. 17 (ii) AVAILABILITY.—The 18 Ombudsperson shall ensure that— 19 (I) such telephone number is 20 made available, and a telephone is ac- 21 cessible, to each immigrant child in a 22 facility; and 23 (II) such email address is made 24 available to sponsors, Flores settle- 25 VerDate Sep 11 2014 23:02 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H1238.IH H1238 kjohnson on DSK79L0C42PROD with BILLS 14 •HR 1238 IH ment agreement class counsel, and 1 legal services providers and child ad- 2 vocates who serve such immigrant 3 children. 4 (I) REPORT TO CONGRESS.— 5 (i) IN GENERAL.—Not later than Sep- 6 tember 30 each year, the Ombudsperson 7 shall submit to Congress a report on the 8 accomplishments and challenges of the Of- 9 fice of the Ombudsperson during the fiscal 10 year ending on that date. 11 (ii) ELEMENTS.—Each report re- 12 quired by clause (i) shall include, for [Text truncated for display. 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