II 116TH CONGRESS 1ST SESSION S. 1733 To limit the separation of children from their parents or legal guardians, to limit the detention of families and children, to provide unaccompanied alien children with access to counsel, to increase the number of immigra- tion judges and support staff, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 5, 2019 Mrs. FEINSTEIN (for herself, Ms. HARRIS, Ms. HIRONO, and Ms. KLO- BUCHAR) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To limit the separation of children from their parents or legal guardians, to limit the detention of families and children, to provide unaccompanied alien children with access to counsel, to increase the number of immigration judges and support staff, 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 ‘‘Protecting Families 4 and Improving Immigration Procedures Act’’. 5 VerDate Sep 11 2014 22:01 Jun 10, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1733.IS S1733 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1733 IS SEC. 2. ENSURING THAT FAMILIES REMAIN TOGETHER. 1 (a) LIMITATION ON THE SEPARATION OF FAMI- 2 LIES.— 3 (1) IN GENERAL.—An agent or officer of a des- 4 ignated agency shall not remove a child from his or 5 her parent or legal guardian at or near the port of 6 entry or within 100 miles of the border of the 7 United States unless 1 of the following situations 8 has occurred: 9 (A) A State court, authorized under State 10 law— 11 (i) terminates the rights of a parent 12 or legal guardian; 13 (ii) determines that it is in the best 14 interests of the child to be removed from 15 his or her parent or legal guardian, in ac- 16 cordance with the Adoption and Safe Fam- 17 ilies Act of 1997 (Public Law 105–89); or 18 (iii) makes any similar determination 19 that is legally authorized under State law. 20 (B) An official from the State or county 21 child welfare agency with expertise in child 22 trauma and development determines that it is 23 in the best interests of the child to be removed 24 from his or her parent or legal guardian be- 25 cause the child— 26 VerDate Sep 11 2014 22:01 Jun 10, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1733.IS S1733 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1733 IS (i) is in danger of abuse or neglect at 1 the hands of the parent or legal guardian; 2 or 3 (ii) is a danger to himself or herself or 4 to others. 5 (C) The Chief Patrol Agent or the Area 6 Port Director, in his or her official and 7 undelegated capacity, authorizes separation, 8 upon the recommendation by an agent or offi- 9 cer, based on a finding that— 10 (i) the child is a victim of trafficking 11 or is at significant risk of becoming a vic- 12 tim of trafficking; 13 (ii) there is a strong likelihood that 14 the adult is not the parent or legal guard- 15 ian of the child; or 16 (iii) the child is in danger of abuse or 17 neglect at the hands of the parent or legal 18 guardian, or is a danger to himself or her- 19 self or to others. 20 (2) PROHIBITION ON SEPARATION.—An agency 21 may not remove a child from a parent or legal 22 guardian solely for the policy goal of deterring indi- 23 viduals from migrating to the United States or for 24 VerDate Sep 11 2014 22:01 Jun 10, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1733.IS S1733 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1733 IS the policy goal of promoting compliance with civil 1 immigration laws. 2 (3) DOCUMENTATION REQUIRED.—The Sec- 3 retary shall ensure that a separation based upon a 4 situation described in paragraph (1)(C)— 5 (A) is documented in writing; and 6 (B) includes the reason for such separation 7 and the stated evidence for such separation. 8 (b) RECOMMENDATIONS FOR SEPARATION BY 9 AGENTS OR OFFICERS.— 10 (1) IN GENERAL.—Not later than 180 days 11 after the date of the enactment of this Act, the Sec- 12 retary, in consultation with the Secretary of Health 13 and Human Services, shall develop training and 14 guidance, with an emphasis on the best interests of 15 the child, childhood trauma, attachment, and child 16 development, for use by the agents and officers, in 17 order to standardize separations authorized under 18 subsection (a)(1)(C). 19 (2) ANNUAL REVIEW.—Not less frequently than 20 annually, the Secretary of Health and Human Serv- 21 ices shall— 22 (A) review the guidance developed under 23 paragraph (1); and 24 VerDate Sep 11 2014 22:01 Jun 10, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1733.IS S1733 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1733 IS (B) make recommendations to the Sec- 1 retary to ensure that such guidance conforms to 2 current evidence and best practices in child wel- 3 fare, child development, and childhood trauma. 4 (3) REQUIREMENT.—The guidance developed 5 under paragraph (1) shall incorporate the presump- 6 tions described in subsection (c). 7 (4) ADDITIONAL REQUIREMENTS.— 8 (A) EVIDENCE-BASED.—The guidance and 9 training developed under this subsection shall 10 incorporate evidence-based practices. 11 (B) TRAINING REQUIRED.— 12 (i) INITIAL TRAINING.—All agents 13 and officers of designated agencies, upon 14 hire, and annually thereafter, shall com- 15 plete training on adherence to the guidance 16 under this subsection. 17 (ii) ANNUAL TRAINING.—All Chief 18 Patrol Agents and Area Port Directors, 19 upon hire, and annually thereafter, shall 20 complete— 21 (I) training on adherence to the 22 guidance under this subsection; and 23 VerDate Sep 11 2014 22:01 Jun 10, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1733.IS S1733 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1733 IS (II) 90 minutes of child welfare 1 practice training that is evidence- 2 based and trauma-informed. 3 (c) PRESUMPTIONS.—The presumptions described in 4 this subsection are the following: 5 (1) FAMILY UNITY.—There shall be a strong 6 presumption in favor of family unity. 7 (2) SIBLINGS.—To the maximum extent prac- 8 ticable, the Secretary shall ensure that sibling 9 groups remain intact. 10 (3) DETENTION.—There is a presumption that 11 detention is not in the best interests of families and 12 children. 13 (d) REQUIRED POLICY FOR LOCATING SEPARATED 14 CHILDREN.— 15 (1) IN GENERAL.—Not later than 180 days 16 after the after the date of the enactment of this Act, 17 the Secretary shall publish final public guidance that 18 describes, with specificity, the manner in which a 19 parent or legal guardian may locate a child who was 20 separated from the parent or legal guardian under 21 subsection (a)(1). In developing the public guidance, 22 the Secretary shall consult with the Secretary of 23 Health and Human Services, immigrant advocacy 24 VerDate Sep 11 2014 22:01 Jun 10, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1733.IS S1733 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1733 IS organizations, child welfare organizations, and State 1 child welfare agencies. 2 (2) WRITTEN NOTIFICATION.—The Secretary 3 shall provide each parent or legal guardian who was 4 separated, with written notice of the public guidance 5 to locate a separated child. 6 (3) LANGUAGE ACCESS.—All guidance shall be 7 available in English and Spanish, and at the request 8 of the parent or legal guardian, in the language or 9 manner that is understandable by the parent or legal 10 guardian. 11 (e) REQUIRED INFORMATION FOR SEPARATED FAMI- 12 LIES.—Not less frequently than monthly, the Secretary 13 shall provide the parent or legal guardian of a child who 14 was separated— 15 (1) a status report on the monthly activities of 16 the child; 17 (2) information about the education and health 18 of the child, including any medical treatment pro- 19 vided to the child or medical treatment rec- 20 ommended for the child; 21 (3) information about changes to the child’s im- 22 migration status; and 23 VerDate Sep 11 2014 22:01 Jun 10, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1733.IS S1733 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1733 IS (4) other information about the child, designed 1 to promote and maintain family reunification, as the 2 Secretary determines in his or her discretion. 3 (f) ANNUAL REPORT ON FAMILY SEPARATION.—Not 4 later than 1 year after the date of the enactment of this 5 Act, and annually thereafter, the Secretary shall submit 6 a report to the committees of jurisdiction that describes 7 each instance in which a child was separated from a par- 8 ent or legal guardian and includes, for each such in- 9 stance— 10 (1) the relationship of the adult and the child; 11 (2) the age and gender of the adult and child; 12 (3) the length of separation; 13 (4) whether the adult was charged with a crime, 14 and if the adult was charged with a crime, the type 15 of crime; 16 (5) whether the adult made a claim for asylum, 17 expressed a fear to return, or applied for other im- 18 migration relief; 19 (6) whether the adult was prosecuted if charged 20 with a crime and the associated outcome of such 21 charges; 22 (7) the stated reason for, and evidence in sup- 23 port of, the separation; 24 VerDate Sep 11 2014 22:01 Jun 10, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1733.IS S1733 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1733 IS (8) if the child was part of a sibling group at 1 the time of separation, whether the sibling group has 2 had physical contact and visitation; 3 (9) whether the child was rendered an unac- 4 companied alien child; and 5 (10) other information in the Secretary’s discre- 6 tion. 7 (g) CLARIFICATION OF PARENTAL RIGHTS.—If a 8 child is separated from a parent or legal guardian, and 9 a State court has not made a determination that the pa- 10 rental rights have been terminated, there is a presumption 11 that— 12 (1) the parental rights remain intact; and 13 (2) the separation does not constitute an af- 14 firmative determination of abuse or neglect under 15 Federal or State law. 16 (h) CLARIFICATION OF EXISTING LAW.— 17 (1) FEDERAL LAW.—Nothing in this section 18 may be interpreted to supersede or modify Federal 19 child welfare law, where applicable, including the 20 Adoption and Safe Families Act of 1997 (Public 21 Law 105–89). 22 (2) STATE LAW.—Nothing in this section may 23 be interpreted to supersede or modify State child 24 welfare laws, as applicable. 25 VerDate Sep 11 2014 22:01 Jun 10, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1733.IS S1733 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1733 IS (i) GAO REPORT ON PROSECUTION OF ASYLUM 1 SEEKERS.— 2 (1) STUDY.—The Comptroller General of the 3 United States shall conduct a study of the prosecu- 4 tion of asylum seekers during the period beginning 5 on January 1, 2008 and ending on December 31, 6 2018, including— 7 (A) the total number of persons who 8 claimed a fear of persecution, received a favor- 9 able credible fear determination, and were re- 10 ferred for prosecution; 11 (B) an overview and analysis of the 12 metrics used by the Department of Homeland 13 Security and the Department of Justice to 14 track the number of asylum seekers referred for 15 prosecution; 16 (C) the total number of asylum seekers re- 17 ferred for prosecution, a breakdown and de- 18 scription of the criminal charges filed against 19 asylum seekers during such period, and a 20 breakdown and description of the convictions 21 secured; 22 (D) the total number of asylum seekers 23 who were separated from their children as a re- 24 sult of being referred for prosecution; 25 VerDate Sep 11 2014 22:01 Jun 10, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1733.IS S1733 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1733 IS (E) a breakdown of the resources spent on 1 prosecuting asylum seekers during such period, 2 as well as any diversion of resources required to 3 prosecute asylum seekers, and any costs im- 4 posed on States and localities; 5 (F) the total number of asylum seekers 6 who were referred for prosecution and also went 7 through immigration proceedings; and 8 (G) the total number of asylum seekers re- 9 ferred for prosecution who were deported before 10 going through immigration proceedings. 11 (2) REPORT.—Not later than 1 year after the 12 date of the enactment of this Act, the Comptroller 13 General shall submit a report to Congress that de- 14 scribes the results of the study conducted under 15 paragraph (1). 16 SEC. 3. FLORES SETTLEMENT AGREEMENT. 17 (a) IN GENERAL.—A family unit may be detained 18 only in accordance with the holding made in Flores v. Ses- 19 sions et al. (9th Cir. July 5, 2017; C.D. CA; July 24, 20 2015) and the stipulated settlement agreement as filed in 21 the United States District Court for the Central District 22 of California on January 17, 1997 (CV 85 4544 RJK) 23 (commonly known as the ‘‘Flores settlement agreement’’). 24 VerDate Sep 11 2014 22:01 Jun 10, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1733.IS S1733 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 1733 IS (b) RULEMAKING.—Any regulation proposed or pro- 1 mulgated to supersede the Flores settlement agreement is 2 null and void. 3 (c) RULE OF CONSTRUCTION.—Nothing in this Act 4 may be construed— 5 (1) to affect the application of the Flores settle- 6 ment agreement to unaccompanied alien children; or 7 (2) to abrogate the Flores settlement agree- 8 ment. 9 (d) REVIEW OF DETENTION DETERMINATIONS.— 10 The review of any determination by the Secretary to de- 11 tain an individual or family unit under this section shall 12 be in accordance with all other provisions of law, holdings 13 (including any holding made in Flores v. Sessions et al. 14 (9th Cir. July 5, 2017; C.D. CA. July 24, 2015)), consent 15 decrees, and settlement agreements (including the Flores 16 settlement agreement). 17 SEC. 4. ACCESS TO COUNSEL FOR UNACCOMPANIED ALIEN 18 CHILDREN. 19 (a) APPOINTMENT OF COUNSEL.—In any removal 20 proceeding and in any appeal proceeding before the Attor- 21 ney General from any such removal proceeding, an unac- 22 companied alien child (as defined in section 462(g) of the 23 Homeland Security Act on 2002 (6 U.S.C. 279(g))) shall 24 VerDate Sep 11 2014 22:01 Jun 10, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1733.IS S1733 pamtmann on DSKBFK8HB2PROD with BILLS 13 •S 1733 IS be represented by Government-appointed counsel, at Gov- 1 ernment expense. 2 (b) LENGTH OF REPRESENTATION.—Once a child is 3 designated as an unaccompanied alien child under sub- 4 section (a)— 5 (1) the child shall be re [Text truncated for display. Full text available on Congress.gov.]