Fair Day in Court for Kids Act of 2019

II 116TH CONGRESS 1ST SESSION S. 662 To provide access to counsel for unaccompanied alien children. IN THE SENATE OF THE UNITED STATES MARCH 5, 2019 Ms. HIRONO (for herself, Mrs. FEINSTEIN, Mr. LEAHY, Ms. HARRIS, Mr. UDALL, Mr. DURBIN, Mr. MENENDEZ, Mr. MARKEY, Mr. MERKLEY, Mr. COONS, Ms. CORTEZ MASTO, Mr. WYDEN, Ms. WARREN, Mr. MURPHY, Mr. BLUMENTHAL, Mrs. GILLIBRAND, Ms. KLOBUCHAR, Ms. SMITH, Mr. SCHATZ, Mr. BOOKER, and Mr. SANDERS) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To provide access to counsel for unaccompanied alien children. 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 ‘‘Fair Day in Court 4 for Kids Act of 2019’’. 5 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S662.IS S662 kjohnson on DSK79L0C42 with BILLS 2 •S 662 IS SEC. 2. IMPROVING IMMIGRATION COURT EFFICIENCY AND 1 REDUCING COSTS BY INCREASING ACCESS 2 TO LEGAL INFORMATION. 3 (a) APPOINTMENT OF COUNSEL IN REMOVAL PRO- 4 CEEDINGS; RIGHT TO REVIEW CERTAIN DOCUMENTS IN 5 REMOVAL PROCEEDINGS.—Section 240(b) of the Immi- 6 gration and Nationality Act (8 U.S.C. 1229a(b)) is 7 amended— 8 (1) in paragraph (4)— 9 (A) in subparagraph (A)— 10 (i) by striking ‘‘, at no expense to the 11 Government,’’; and 12 (ii) by striking the comma at the end 13 and inserting a semicolon; 14 (B) by redesignating subparagraphs (B) 15 and (C) as subparagraphs (D) and (E), respec- 16 tively; 17 (C) by inserting after subparagraph (A) 18 the following: 19 ‘‘(B) the Attorney General may appoint or 20 provide counsel, at Government expense, to 21 aliens in immigration proceedings; 22 ‘‘(C) the alien, or the alien’s counsel, not 23 later than 7 days after receiving a notice to ap- 24 pear under section 239(a), shall receive a com- 25 plete copy of the alien’s immigration file (com- 26 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S662.IS S662 kjohnson on DSK79L0C42 with BILLS 3 •S 662 IS monly known as an ‘A-file’) in the possession of 1 the Department of Homeland Security (other 2 than documents protected from disclosure under 3 section 552(b) of title 5, United States Code);’’; 4 and 5 (D) in subparagraph (D), as redesignated, 6 by striking ‘‘, and’’ and inserting ‘‘; and’’; and 7 (2) by adding at the end the following: 8 ‘‘(8) FAILURE TO PROVIDE ALIEN REQUIRED 9 DOCUMENTS.—A removal proceeding may not pro- 10 ceed until the alien, or the alien’s counsel if the alien 11 is represented— 12 ‘‘(A) has received the documents required 13 under paragraph (4)(C); and 14 ‘‘(B) has been provided at least 10 days to 15 review and assess such documents.’’. 16 (b) CLARIFICATION REGARDING THE AUTHORITY OF 17 THE ATTORNEY GENERAL TO APPOINT COUNSEL TO 18 ALIENS IN IMMIGRATION PROCEEDINGS.— 19 (1) IN GENERAL.—Section 292 of the Immigra- 20 tion and Nationality Act (8 U.S.C. 1362) is amend- 21 ed to read as follows: 22 ‘‘SEC. 292. RIGHT TO COUNSEL. 23 ‘‘(a) IN GENERAL.—Except as provided in sub- 24 sections (b) and (c), in any removal proceeding and in any 25 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S662.IS S662 kjohnson on DSK79L0C42 with BILLS 4 •S 662 IS appeal proceeding before the Attorney General from any 1 such removal proceeding, the subject of the proceeding 2 shall have the privilege of being represented by such coun- 3 sel as may be authorized to practice in such proceeding 4 as he or she may choose. This subsection shall not apply 5 to screening proceedings described in section 6 235(b)(1)(A). 7 ‘‘(b) ACCESS TO COUNSEL FOR UNACCOMPANIED 8 ALIEN CHILDREN.— 9 ‘‘(1) IN GENERAL.—In any removal proceeding 10 and in any appeal proceeding before the Attorney 11 General from any such removal proceeding, an unac- 12 companied alien child (as defined in section 462(g) 13 of the Homeland Security Act on 2002 (6 U.S.C. 14 279(g))) shall be represented by Government-ap- 15 pointed counsel, at Government expense. 16 ‘‘(2) LENGTH OF REPRESENTATION.—Once a 17 child is designated as an unaccompanied alien child 18 under paragraph (1), the child shall be represented 19 by counsel at every stage of the proceedings from 20 the child’s initial appearance through the termi- 21 nation of immigration proceedings, and any ancillary 22 matters appropriate to such proceedings even if the 23 child attains 18 years of age or is reunified with a 24 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S662.IS S662 kjohnson on DSK79L0C42 with BILLS 5 •S 662 IS parent or legal guardian while the proceedings are 1 pending. 2 ‘‘(3) NOTICE.—Not later than 72 hours after 3 an unaccompanied alien child is taken into Federal 4 custody, the alien shall be notified that he or she will 5 be provided with legal counsel in accordance with 6 this subsection. 7 ‘‘(4) WITHIN DETENTION FACILITIES.—The 8 Secretary of Homeland Security shall ensure that 9 unaccompanied alien children have access to counsel 10 inside all detention, holding, and border facilities. 11 ‘‘(c) PRO BONO REPRESENTATION.— 12 ‘‘(1) IN GENERAL.—To the maximum extent 13 practicable, the Attorney General shall make every 14 effort to utilize the services of competent counsel 15 who agree to provide representation to such children 16 under subsection (b) without charge. 17 ‘‘(2) DEVELOPMENT OF NECESSARY INFRA- 18 STRUCTURES AND SYSTEMS.—The Attorney General 19 shall develop the necessary mechanisms to identify 20 counsel available to provide pro bono legal assistance 21 and representation to children under subsection (b) 22 and to recruit such counsel. 23 ‘‘(d) CONTRACTS; GRANTS.—The Attorney General 24 may enter into contracts with, or award grants to, non- 25 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S662.IS S662 kjohnson on DSK79L0C42 with BILLS 6 •S 662 IS profit agencies with relevant expertise in the delivery of 1 immigration-related legal services to children to carry out 2 the responsibilities under this section, including providing 3 legal orientation, screening cases for referral, recruiting, 4 training, and overseeing pro bono attorneys. Nonprofit 5 agencies may enter into subcontracts with, or award 6 grants to, private voluntary agencies with relevant exper- 7 tise in the delivery of immigration-related legal services 8 to children in order to carry out this section. 9 ‘‘(e) MODEL GUIDELINES ON LEGAL REPRESENTA- 10 TION OF CHILDREN.— 11 ‘‘(1) DEVELOPMENT OF GUIDELINES.—The Ex- 12 ecutive Office for Immigration Review, in consulta- 13 tion with voluntary agencies and national experts, 14 shall develop model guidelines for the legal represen- 15 tation of alien children in immigration proceedings, 16 which shall be based on the children’s asylum guide- 17 lines, the American Bar Association Model Rules of 18 Professional Conduct, and other relevant domestic or 19 international sources. 20 ‘‘(2) PURPOSE OF GUIDELINES.—The guide- 21 lines developed under paragraph (1) shall be de- 22 signed to help protect each child from any individual 23 suspected of involvement in any criminal, harmful, 24 or exploitative activity associated with the smuggling 25 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S662.IS S662 kjohnson on DSK79L0C42 with BILLS 7 •S 662 IS or trafficking of children, while ensuring the fairness 1 of the removal proceeding in which the child is in- 2 volved. 3 ‘‘(f) DUTIES OF COUNSEL.—Counsel provided under 4 this section shall— 5 ‘‘(1) represent the unaccompanied alien child in 6 all proceedings and matters relating to the immigra- 7 tion status of the child or other actions involving the 8 Department of Homeland Security; 9 ‘‘(2) appear in person for all individual merits 10 hearings before the Executive Office for Immigration 11 Review and interviews involving the Department of 12 Homeland Security; 13 ‘‘(3) owe the same duties of undivided loyalty, 14 confidentiality, and competent representation to the 15 child as is due to an adult client; and 16 ‘‘(4) carry out other such duties as may be pro- 17 scribed by the Attorney General or the Executive Of- 18 fice for Immigration Review. 19 ‘‘(g) SAVINGS PROVISION.—Nothing in this section 20 may be construed to supersede— 21 ‘‘(1) any duties, responsibilities, disciplinary, or 22 ethical responsibilities an attorney may have to his 23 or her client under State law; 24 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S662.IS S662 kjohnson on DSK79L0C42 with BILLS 8 •S 662 IS ‘‘(2) the admission requirements under State 1 law; or 2 ‘‘(3) any other State law pertaining to the ad- 3 mission to the practice of law in a particular juris- 4 diction.’’. 5 (2) RULEMAKING.—The Attorney General shall 6 promulgate regulations to implement section 292 of 7 the Immigration and Nationality Act, as added by 8 paragraph (1), in accordance with the requirements 9 set forth in section 3006A of title 18, United States 10 Code. 11 SEC. 3. ACCESS BY COUNSEL AT DETENTION FACILITIES. 12 The Secretary of Homeland Security shall provide ac- 13 cess to counsel for all aliens detained in a facility under 14 the supervision of U.S. Immigration and Customs En- 15 forcement, U.S. Customs and Border Protection, or the 16 Department of Health and Human Services, or in any pri- 17 vate facility that contracts with the Federal Government 18 to house, detain, or hold aliens. 19 SEC. 4. REPORT ON ACCESS TO COUNSEL. 20 (a) REPORT.—Not later than December 31 of each 21 year, the Secretary of Homeland Security, in consultation 22 with the Attorney General, shall prepare and submit a re- 23 port to the Committee on the Judiciary of the Senate and 24 the Committee on the Judiciary of the House of Rep- 25 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S662.IS S662 kjohnson on DSK79L0C42 with BILLS 9 •S 662 IS resentatives regarding the extent to which aliens described 1 in section 292(b) of the Immigration and Nationality Act, 2 as added by section 2(b), have been provided access to 3 counsel. 4 (b) CONTENTS.—Each report submitted under para- 5 graph (a) shall include, for the immediately preceding 1- 6 year period— 7 (1) the number and percentage of aliens de- 8 scribed in section 292(b) of the Immigration and 9 Nationality Act, as added by section 2(b), who were 10 represented by counsel, including information speci- 11 fying— 12 (A) the stage of the legal process at which 13 each such alien was represented; 14 (B) whether the alien was in government 15 custody; and 16 (C) the nationality and ages of such aliens; 17 and 18 (2) the number and percentage of aliens who 19 received legal orientation presentations, including 20 the nationality and ages of such aliens. 21 SEC. 5. AUTHORIZATION OF APPROPRIATIONS. 22 (a) IN GENERAL.—There is authorized to be appro- 23 priated to the Executive Office for Immigration Review 24 VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S662.IS S662 kjohnson on DSK79L0C42 with BILLS 10 •S 662 IS of the Department of Justice such sums as may be nec- 1 essary to carry out this Act. 2 (b) BUDGETARY EFFECTS.—The budgetary effects of 3 this Act, for the purpose of complying with the Statutory 4 Pay-As-You-Go-Act of 2010, shall be determined by ref- 5 erence to the latest statement titled ‘‘Budgetary Effects 6 of PAYGO Legislation’’ for this Act, submitted for print- 7 ing in the Congressional Record by the Chairman of the 8 Senate Budget Committee, provided that such statement 9 has been submitted prior to the vote on passage. 10 Æ VerDate Sep 11 2014 04:20 Mar 14, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S662.IS S662 kjohnson on DSK79L0C42 with BILLS