Keep Families Together Act

II 116TH CONGRESS 1ST SESSION S. 292 To limit the separation of families at or near ports of entry. IN THE SENATE OF THE UNITED STATES JANUARY 31, 2019 Mrs. FEINSTEIN (for herself, Mr. LEAHY, Mrs. MURRAY, Mr. WYDEN, Ms. HARRIS, Ms. ROSEN, Mrs. SHAHEEN, Mr. KING, Mr. CARPER, Ms. DUCKWORTH, Mr. SANDERS, Mr. BENNET, Mr. COONS, Mr. BLUMENTHAL, Ms. KLOBUCHAR, Mr. REED, Mr. KAINE, Ms. HASSAN, Mr. MARKEY, Mr. MURPHY, Mr. MENENDEZ, Ms. CORTEZ MASTO, Mr. HEINRICH, Mr. UDALL, Mr. CARDIN, Mr. BOOKER, Mr. WHITEHOUSE, Mr. MERKLEY, Mr. VAN HOLLEN, Mr. CASEY, Ms. HIRONO, Mrs. GILLI- BRAND, Ms. CANTWELL, Ms. WARREN, Ms. STABENOW, Ms. BALDWIN, Mr. BROWN, Ms. SMITH, Mr. WARNER, Mr. PETERS, Mr. JONES, and Mr. SCHATZ) introduced the following bill; which was read twice and re- ferred to the Committee on the Judiciary A BILL To limit the separation of families at or near ports of entry. 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 ‘‘Keep Families To- 4 gether Act’’. 5 VerDate Sep 11 2014 00:02 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 292 IS SEC. 2. LIMITATION ON THE SEPARATION OF FAMILIES. 1 (a) IN GENERAL.—An agent or officer of a des- 2 ignated agency shall be prohibited from removing a child 3 from his or her parent or legal guardian, at or near the 4 port of entry or within 100 miles of the border of the 5 United States, unless one of the following has occurred: 6 (1) A State court, authorized under State law, 7 terminates the rights of a parent or legal guardian, 8 determines that it is in the best interests of the child 9 to be removed from his or her parent or legal guard- 10 ian, in accordance with the Adoption and Safe Fam- 11 ilies Act of 1997 (Public Law 105–89), or makes 12 any similar determination that is legally authorized 13 under State law. 14 (2) An official from the State or county child 15 welfare agency with expertise in child trauma and 16 development makes a best interests determination 17 that it is in the best interests of the child to be re- 18 moved from his or her parent or legal guardian be- 19 cause the child is in danger of abuse or neglect at 20 the hands of the parent or legal guardian, or is a 21 danger to herself or others. 22 (3) The Chief Patrol Agent or the Area Port 23 Director in their official and undelegated capacity, 24 authorizes separation upon the recommendation by 25 an agent or officer, based on a finding that— 26 VerDate Sep 11 2014 00:02 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 292 IS (A) the child is a victim of trafficking or 1 is at significant risk of becoming a victim of 2 trafficking; 3 (B) there is a strong likelihood that the 4 adult is not the parent or legal guardian of the 5 child; or 6 (C) the child is in danger of abuse or ne- 7 glect at the hands of the parent or legal guard- 8 ian, or is a danger to themselves or others. 9 (b) PROHIBITION ON SEPARATION.—An agency may 10 not remove a child from a parent or legal guardian solely 11 for the policy goal of deterring individuals from migrating 12 to the United States or for the policy goal of promoting 13 compliance with civil immigration laws. 14 (c) DOCUMENTATION REQUIRED.—The Secretary 15 shall ensure that a separation under subsection (a)(3) is 16 documented in writing and includes, at a minimum, the 17 reason for such separation, together with the stated evi- 18 dence for such separation. 19 SEC. 3. RECOMMENDATIONS FOR SEPARATION BY AGENTS 20 OR OFFICERS. 21 (a) IN GENERAL.—Not later than 180 days after the 22 date of the enactment of this Act, the Secretary, in con- 23 sultation with the Secretary of Health and Human Serv- 24 ices, shall develop training and guidance, with an empha- 25 VerDate Sep 11 2014 00:02 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 292 IS sis on the best interests of the child, childhood trauma, 1 attachment, and child development, for use by the agents 2 and officers, in order to standardize the implementation 3 of section 2(a)(3). 4 (b) ANNUAL REVIEW.—Not less frequently than an- 5 nually, the Secretary of Health and Human Services shall 6 review the guidance developed under subsection (a) and 7 make recommendations to the Secretary to ensure such 8 guidance is in accordance with current evidence and best 9 practices in child welfare, child development, and child- 10 hood trauma. 11 (c) REQUIREMENT.—The guidance under subsection 12 (a) shall incorporate the presumptions described in section 13 4. 14 (d) ADDITIONAL REQUIREMENTS.— 15 (1) EVIDENCE-BASED.—The guidance and 16 training developed under this section shall incor- 17 porate evidence-based practices. 18 (2) TRAINING REQUIRED.— 19 (A) AGENTS AND OFFICERS.—All agents 20 and officers of designated agencies, upon hire, 21 and annually thereafter, shall complete training 22 on adherence to the guidance under this sec- 23 tion. 24 VerDate Sep 11 2014 00:02 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 292 IS (B) MANAGEMENT.—All Chief Patrol 1 Agents and Area Port Directors, upon hire, and 2 annually thereafter, shall complete— 3 (i) training on adherence to the guid- 4 ance under this section; and 5 (ii) 90 minutes of child welfare prac- 6 tice training that is evidence-based and 7 trauma-informed. 8 SEC. 4. PRESUMPTIONS. 9 The presumptions described in this section are the 10 following: 11 (1) There shall be a strong presumption in 12 favor of family unity. 13 (2) To the maximum extent practicable, the 14 Secretary shall ensure that sibling groups remain in- 15 tact. 16 (3) There is a presumption that detention is 17 not in the best interests of families and children. 18 SEC. 5. REQUIRED POLICY FOR LOCATING SEPARATED 19 CHILDREN. 20 (a) IN GENERAL.—Not later than 180 days after the 21 after the date of the enactment of this Act, the Secretary 22 shall publish final public guidance that describes, with 23 specificity, the manner in which a parent or legal guardian 24 may locate a child who was separated from the parent or 25 VerDate Sep 11 2014 00:02 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 292 IS legal guardian under section 2(a). In developing the public 1 guidance, the Secretary shall consult with the Secretary 2 of Health and Human Services, immigrant advocacy orga- 3 nizations, child welfare organizations, and State child wel- 4 fare agencies. 5 (b) WRITTEN NOTIFICATION.—The Secretary shall 6 provide each parent or legal guardian who was separated, 7 with written notice of the public guidance to locate a sepa- 8 rated child. 9 (c) LANGUAGE ACCESS.—All guidance shall be avail- 10 able in English and Spanish, and at the request of the 11 parent or legal guardian, in the language or manner that 12 is understandable by the parent or legal guardian. 13 SEC. 6. REQUIRED INFORMATION FOR SEPARATED FAMI- 14 LIES. 15 Not less frequently than monthly, the Secretary shall 16 provide the parent or legal guardian of a child who was 17 separated with— 18 (1) a status report on the monthly activities of 19 the child; 20 (2) information about the education and health 21 of the child, including any medical treatment pro- 22 vided to the child or medical treatment recommend- 23 ed for the child; 24 VerDate Sep 11 2014 00:02 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 292 IS (3) information about changes to the child’s im- 1 migration status; and 2 (4) other information about the child, designed 3 to promote and maintain family reunification, as the 4 Secretary determines in his or her discretion. 5 SEC. 7. ANNUAL REPORT ON FAMILY SEPARATION. 6 Not later than 1 year after the date of the enactment 7 of this Act, and annually thereafter, the Secretary shall 8 submit a report to the committees of jurisdiction that de- 9 scribes each instance in which a child was separated from 10 a parent or legal guardian and includes, for each such in- 11 stance— 12 (1) the relationship of the adult and the child; 13 (2) the age and gender of the adult and child; 14 (3) the length of separation; 15 (4) whether the adult was charged with a crime, 16 and if the adult was charged with a crime, the type 17 of crime; 18 (5) whether the adult made a claim for asylum, 19 expressed a fear to return, or applied for other im- 20 migration relief; 21 (6) whether the adult was prosecuted if charged 22 with a crime and the associated outcome of such 23 charges; 24 VerDate Sep 11 2014 00:02 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 292 IS (7) the stated reason for, and evidence in sup- 1 port of, the separation; 2 (8) if the child was part of a sibling group at 3 the time of separation, whether the sibling group has 4 had physical contact and visitation; 5 (9) whether the child was rendered an unac- 6 companied alien child; and 7 (10) other information in the Secretary’s discre- 8 tion. 9 SEC. 8. CLARIFICATION OF PARENTAL RIGHTS. 10 If a child is separated from a parent or legal guard- 11 ian, and a State court has not made a determination that 12 the parental rights have been terminated, there is a pre- 13 sumption that— 14 (1) the parental rights remain intact; and 15 (2) the separation does not constitute an af- 16 firmative determination of abuse or neglect under 17 Federal or State law. 18 SEC. 9. CLARIFICATION OF EXISTING LAW. 19 (a) FEDERAL LAW.—Nothing in this Act shall be in- 20 terpreted to supersede or modify Federal child welfare law, 21 where applicable, including the Adoption and Safe Fami- 22 lies Act of 1997 (Public Law 105–89). 23 VerDate Sep 11 2014 00:02 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 292 IS (b) STATE LAW.—Nothing in this Act shall be inter- 1 preted to supersede or modify State child welfare laws 2 where applicable. 3 SEC. 10. GAO REPORT ON PROSECUTION OF ASYLUM SEEK- 4 ERS. 5 (a) STUDY.—The Comptroller General of the United 6 States shall conduct a study of the prosecution of asylum 7 seekers during the period beginning on January 1, 2008 8 and ending on December 31, 2018, including— 9 (1) the total number of persons who claimed a 10 fear of persecution, received a favorable credible fear 11 determination, and were referred for prosecution; 12 (2) an overview and analysis of the metrics 13 used by the Department of Homeland Security and 14 the Department of Justice to track the number of 15 asylum seekers referred for prosecution; 16 (3) the total number of asylum seekers referred 17 for prosecution, a breakdown and description of the 18 criminal charges filed against asylum seekers during 19 such period, and a breakdown and description of the 20 convictions secured; 21 (4) the total number of asylum seekers who 22 were separated from their children as a result of 23 being referred for prosecution; 24 VerDate Sep 11 2014 00:02 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 292 IS (5) a breakdown of the resources spent on pros- 1 ecuting asylum seekers during such period, as well 2 as any diversion of resources required to prosecute 3 asylum seekers, and any costs imposed on States 4 and localities; 5 (6) the total number of asylum seekers who 6 were referred for prosecution and also went through 7 immigration proceedings; and 8 (7) the total number of asylum seekers referred 9 for prosecution who were deported before going 10 through immigration proceedings. 11 (b) REPORT.—Not later than 1 year after the date 12 of the enactment of this Act, the Comptroller General shall 13 submit a report to Congress that describes the results of 14 the study conducted pursuant to subsection (a). 15 SEC. 11. DEFINITIONS. 16 In this Act: 17 (1) AGENT; OFFICER.—The terms ‘‘agent’’ and 18 ‘‘officer’’ include contractors of the Federal Govern- 19 ment. 20 (2) CHILD.—The term ‘‘child’’ means an indi- 21 vidual who— 22 (A) has not reached 18 years of age; and 23 (B) has no permanent immigration status. 24 VerDate Sep 11 2014 00:02 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 292 IS (3) COMMITTEES OF JURISDICTION.—The term 1 ‘‘committees of jurisdiction’’ means— 2 (A) the Committee on the Judiciary of the 3 Senate; and 4 (B) the Committee on Health, Education, 5 Labor, and Pensions of the Senate. 6 (4) DANGER OF ABUSE OR NEGLECT AT THE 7 HANDS OF THE PARENT OR LEGAL GUARDIAN.—The 8 term ‘‘danger of abuse or neglect at the hands of the 9 parent or legal guardian’’ does not mean migrating 10 to or crossing the United States border. 11 (5) DESIGNATED AGENCY.—The term ‘‘des- 12 ignated agency’’ means— 13 (A) the Department of Homeland Security; 14 (B) the Department of Justice; and 15 (C) the Department of Health and Human 16 Services. 17 (6) FINDING.—The term ‘‘finding’’ means an 18 individualized written assessment or screening by the 19 trained agent or officer that includes a consultation 20 with a child welfare specialist, formalized as required 21 under section 2(c) and consistent with sections 3, 4, 22 and 8. 23 VerDate Sep 11 2014 00:02 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 292 IS (7) SECRETARY.—Unless otherwise specified, 1 the term ‘‘Secretary’’ means the Secretary of Home- 2 land Security. 3 Æ VerDate Sep 11 2014 00:02 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6301 E:\BILLS\S292.IS S292 pamtmann on DSKBFK8HB2PROD with BILLS