II 117TH CONGRESS 1ST SESSION S. 901 To provide access to counsel for children and other vulnerable populations. IN THE SENATE OF THE UNITED STATES MARCH 23, 2021 Mrs. GILLIBRAND (for herself, Mr. MARKEY, Mr. BLUMENTHAL, Mr. BOOKER, Ms. WARREN, Mr. PADILLA, Mr. KAINE, Mr. MERKLEY, and Ms. KLO- BUCHAR) 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. 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 TITLES. 3 This Act may be cited as the ‘‘Funding Attorneys for 4 Indigent Removal Proceedings Act’’ or the ‘‘FAIR Pro- 5 ceedings Act’’. 6 VerDate Sep 11 2014 01:01 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S901.IS S901 kjohnson on DSK79L0C42PROD with BILLS 2 •S 901 IS SEC. 2. IMPROVING IMMIGRATION COURT EFFICIENCY AND 1 REDUCING COSTS BY INCREASING ACCESS 2 TO LEGAL INFORMATION. 3 (a) APPOINTMENT OF COUNSEL IN CERTAIN CASES; 4 RIGHT TO REVIEW CERTAIN DOCUMENTS IN REMOVAL 5 PROCEEDINGS.—Section 240(b) of the Immigration and 6 Nationality Act (8 U.S.C. 1229a(b)) is amended— 7 (1) in paragraph (4)— 8 (A) in the matter preceding subparagraph 9 (A), by inserting ‘‘, or in the case of an unac- 10 companied alien child (as defined in section 11 462(g)(2) of the Homeland Security Act of 12 2002 (6 U.S.C. 279(g)(2))), under regulations 13 of the Secretary of Health and Human Serv- 14 ices’’ after ‘‘Attorney General’’; 15 (B) in subparagraph (A)— 16 (i) by striking ‘‘, at no expense to the 17 Government,’’; and 18 (ii) by striking the comma at the end 19 and inserting a semicolon; 20 (C) by redesignating subparagraphs (B) 21 and (C) as subparagraphs (D) and (E), respec- 22 tively; 23 (D) by inserting after subparagraph (A) 24 the following: 25 VerDate Sep 11 2014 01:01 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S901.IS S901 kjohnson on DSK79L0C42PROD with BILLS 3 •S 901 IS ‘‘(B) the Attorney General, or in the case 1 of an unaccompanied alien child, the Secretary 2 of Health and Human Services, may appoint or 3 provide counsel, at Government expense, to the 4 alien; 5 ‘‘(C) the alien, at the beginning of such 6 proceedings or as expeditiously as possible, shall 7 automatically receive a complete copy of all rel- 8 evant documents in the possession of the De- 9 partment of Homeland Security (unless the 10 alien waives the right to receive such documents 11 by executing a knowing and voluntary written 12 waiver in a language that he or she under- 13 stands fluently), including— 14 ‘‘(i) all documents (other than docu- 15 ments protected from disclosure by privi- 16 lege and documents containing national se- 17 curity information referred to in subpara- 18 graph (D), law enforcement sensitive infor- 19 mation, or information prohibited from dis- 20 closure pursuant to any other provision of 21 law) contained in the file maintained by 22 the Government that includes information 23 with respect to all transactions involving 24 VerDate Sep 11 2014 01:01 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S901.IS S901 kjohnson on DSK79L0C42PROD with BILLS 4 •S 901 IS the alien during the immigration process 1 (commonly referred to as an ‘A-file’); and 2 ‘‘(ii) all documents pertaining to the 3 alien that the Department of Homeland 4 Security has obtained or received from 5 other government agencies;’’; and 6 (E) in subparagraph (D), as redesignated, 7 by striking ‘‘, and’’ and inserting ‘‘; and’’; and 8 (2) by adding at the end the following: 9 ‘‘(8) FAILURE TO PROVIDE ALIEN REQUIRED 10 DOCUMENTS.—In the absence of a waiver under 11 paragraph (4)(C), a removal proceeding may not 12 proceed until the alien— 13 ‘‘(A) has received the documents required 14 under such paragraph; and 15 ‘‘(B) has been provided meaningful time to 16 review and assess such documents.’’. 17 (b) CLARIFICATION REGARDING THE AUTHORITY OF 18 THE ATTORNEY GENERAL AND THE SECRETARY OF 19 HEALTH AND HUMAN SERVICES TO APPOINT COUNSEL 20 TO ALIENS IN IMMIGRATION PROCEEDINGS.—Section 292 21 of the Immigration and Nationality Act (8 U.S.C. 1362) 22 is amended— 23 (1) by striking ‘‘In any’’ and inserting the fol- 24 lowing: 25 VerDate Sep 11 2014 22:45 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S901.IS S901 kjohnson on DSK79L0C42PROD with BILLS 5 •S 901 IS ‘‘(a) IN GENERAL.—In any proceeding conducted 1 under section 235, 236, 238, 240, or 241, or under any 2 other section of this Act, including’’; 3 (2) in subsection (a), as redesignated— 4 (A) by striking ‘‘(at no expense to the Gov- 5 ernment)’’; and 6 (B) by striking ‘‘he shall’’ and inserting 7 ‘‘the person shall’’; and 8 (3) by adding at the end the following: 9 ‘‘(b) ACCESS TO COUNSEL.— 10 ‘‘(1) IN GENERAL.—The Attorney General may 11 appoint or provide counsel to aliens in any pro- 12 ceeding conducted under section 235, 236, 238, 240, 13 or 241, or under any other section of this Act. 14 ‘‘(2) UNACCOMPANIED ALIEN CHILDREN.—The 15 Secretary of Health and Human Services may ap- 16 point or provide counsel to unaccompanied alien chil- 17 dren (as defined in section 462(g)(2) of the Home- 18 land Security Act of 2002 (6 U.S.C. 279(g)(2))) in 19 any applicable proceeding conducted pursuant to any 20 section of this Act. 21 ‘‘(3) IMMIGRATION DETENTION AND BORDER 22 FACILITIES.—The Secretary of Homeland Security 23 shall ensure that aliens have access to counsel inside 24 all immigration detention and border facilities.’’. 25 VerDate Sep 11 2014 01:01 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S901.IS S901 kjohnson on DSK79L0C42PROD with BILLS 6 •S 901 IS (c) APPOINTMENT OF COUNSEL FOR CHILDREN AND 1 VULNERABLE ALIENS.— 2 (1) IN GENERAL.—Section 292 of the Immigra- 3 tion and Nationality Act, as amended by subsection 4 (b), is further amended by adding at the end the fol- 5 lowing: 6 ‘‘(c) UNACCOMPANIED ALIEN CHILDREN.—Notwith- 7 standing subsection (b), the Secretary of Health and 8 Human Services shall appoint or provide counsel at Gov- 9 ernment expense, if necessary, at the beginning of immi- 10 gration proceedings, or as expeditiously as possible, to rep- 11 resent in such proceedings unaccompanied alien children. 12 ‘‘(d) OTHER VULNERABLE ALIENS.—Notwith- 13 standing subsection (b), the Attorney General shall ap- 14 point or provide counsel at Government expense, if nec- 15 essary, at the beginning of immigration proceedings or as 16 expeditiously as possible, to represent in such proceedings 17 any alien who has been determined by the Secretary of 18 Homeland Security or the Attorney General to be— 19 ‘‘(1) a child who is not an unaccompanied alien 20 child; 21 ‘‘(2) a person with a disability; 22 ‘‘(3) a victim of abuse, torture, or violence; 23 ‘‘(4) an individual whose income is at or below 24 200 percent of the poverty line (as defined by the 25 VerDate Sep 11 2014 01:01 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S901.IS S901 kjohnson on DSK79L0C42PROD with BILLS 7 •S 901 IS Office of Management and Budget and revised an- 1 nually in accordance with section 673(2) of the 2 Community Services Block Grant Act (42 U.S.C. 3 9902(2))) applicable to a family of the size involved; 4 or 5 ‘‘(5) an individual whose circumstances require 6 the appointment of counsel to help ensure the fair 7 resolution and efficient adjudication of the pro- 8 ceedings. 9 ‘‘(e) EXTENSION TO CONSOLIDATED CASES.—If the 10 Attorney General has consolidated the case of an alien for 11 whom counsel was appointed under subsection (c) or (d) 12 with the case of another alien who does not have counsel, 13 the counsel appointed under subsection (c) or (d), as appli- 14 cable, shall be appointed to represent such other alien. 15 ‘‘(f) AUTHORIZATION OF APPROPRIATIONS.—There 16 is authorized to be appropriated to the Office of Refugee 17 Resettlement of the Department of Health and Human 18 Services and to Executive Office for Immigration Review 19 of the Department of Justice, such sums as may be nec- 20 essary to carry out this section.’’. 21 (2) RULEMAKING.— 22 (A) UNACCOMPANIED ALIEN CHILDREN.— 23 The Secretary of Health and Human Services 24 shall promulgate regulations to implement sec- 25 VerDate Sep 11 2014 01:01 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S901.IS S901 kjohnson on DSK79L0C42PROD with BILLS 8 •S 901 IS tion 292(c) of the Immigration and Nationality 1 Act, as added by paragraph (1), in accordance 2 with the requirements set forth in section 3 3006A of title 18, United States Code. 4 (B) OTHER VULNERABLE ALIENS.—The 5 Attorney General shall promulgate regulations 6 to implement section 292(d) of the Immigration 7 and Nationality Act, as added by paragraph 8 (1), in accordance with the requirements set 9 forth in section 3006A of title 18, United 10 States Code. 11 SEC. 3. ACCESS BY COUNSEL AND LEGAL ORIENTATION AT 12 DETENTION FACILITIES. 13 (a) ACCESS TO COUNSEL.—The Secretary of Home- 14 land Security shall facilitate access to counsel for all aliens 15 detained in facilities under the supervision of U.S. Immi- 16 gration and Customs Enforcement or of U.S. Customs and 17 Border Protection, including providing information to 18 such aliens regarding legal services programs at detention 19 facilities. 20 (b) ACCESS TO LEGAL ORIENTATION PROGRAMS.— 21 (1) PROCEDURES.—The Secretary of Homeland 22 Security, in consultation with the Attorney General, 23 shall establish procedures— 24 VerDate Sep 11 2014 01:01 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S901.IS S901 kjohnson on DSK79L0C42PROD with BILLS 9 •S 901 IS (A) to ensure that legal orientation pro- 1 grams are available for all detained aliens, in- 2 cluding aliens held in U.S. Customs and Border 3 Protection facilities; and 4 (B) to inform such aliens of— 5 (i) the basic procedures of immigra- 6 tion hearings; 7 (ii) their rights relating to such hear- 8 ings under Federal immigration laws; 9 (iii) information that may deter such 10 aliens from filing frivolous legal claims; 11 and 12 (iv) any other information that the 13 Attorney General considers appropriate, 14 such as a contact list of potential legal re- 15 sources and providers. 16 (2) UNIVERSAL AVAILABILITY.—Access to legal 17 orientation programs under paragraph (1) may not 18 be limited by the alien’s current immigration status, 19 prior immigration history, or potential for immigra- 20 tion relief. 21 SEC. 4. REPORT ON ACCESS TO COUNSEL. 22 (a) REPORT.—Not later than December 31 of each 23 year, the Secretary of Homeland Security, in consultation 24 with the Attorney General and the Secretary of Health 25 VerDate Sep 11 2014 01:01 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S901.IS S901 kjohnson on DSK79L0C42PROD with BILLS 10 •S 901 IS and Human Services, shall submit a report to the Com- 1 mittee on the Judiciary of the Senate and the Committee 2 on the Judiciary of the House of Representatives regard- 3 ing the extent to which aliens described in subsections (c) 4 and (d) of section 292 of the Immigration and Nationality 5 Act, as added by section 2(c)(1), have been provided ac- 6 cess to counsel. 7 (b) CONTENTS.—Each report submitted pursuant to 8 subsection (a) shall include, for the immediately preceding 9 1-year period— 10 (1) the number and percentage of aliens de- 11 scribed in section 292(c) of the Immigration and 12 Nationality Act and in paragraphs (1), (2), (3), and 13 (4), respectively, of section 292(d) of such Act who 14 were represented by counsel, including information 15 specifying— 16 (A) the stage of the legal process at which 17 the alien was represented; and 18 (B) whether the alien was in government 19 custody; and 20 (2) the number and percentage of aliens who 21 received legal orientation presentations. 22 VerDate Sep 11 2014 01:01 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S901.IS S901 kjohnson on DSK79L0C42PROD with BILLS 11 •S 901 IS SEC. 5. MOTIONS TO REOPEN. 1 Section 240(c)(7)(C) of the Immigration and Nation- 2 ality Act (8 U.S.C. 1229a(c)(7)(C)) is amended by adding 3 at the end the following: 4 ‘‘(v) SPECIAL RULE FOR ALIENS EN- 5 TITLED TO APPOINTMENT OF COUNSEL.— 6 If the Secretary of Health and Human 7 Services or the Attorney General fail to ap- 8 point counsel for an alien in accordance 9 with subsection (c) or (d) of section 292, 10 as applicable— 11 ‘‘(I) no limitation under this 12 paragraph pertaining to the filing of 13 any motion under this paragraph by 14 such alien shall apply; and 15 ‘‘(II) the filing of such a motion 16 shall stay the removal of the alien.’’. 17 Æ VerDate Sep 11 2014 01:01 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S901.IS S901 kjohnson on DSK79L0C42PROD with BILLS