FAIR Proceedings Act

II 116TH CONGRESS 1ST SESSION S. 2389 To provide access to counsel for children and other vulnerable populations. IN THE SENATE OF THE UNITED STATES JULY 31, 2019 Mr. SCHUMER (for Mrs. GILLIBRAND (for herself, Mr. BLUMENTHAL, and Mr. BOOKER)) introduced the following bill; which was read twice and re- ferred 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 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2389.IS S2389 kjohnson on DSK79L0C42 with BILLS 2 •S 2389 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 subparagraph (A)— 9 (i) by striking ‘‘, at no expense to the 10 Government,’’; and 11 (ii) by striking the comma at the end 12 and inserting a semicolon; 13 (B) by redesignating subparagraphs (B) 14 and (C) as subparagraphs (D) and (E), respec- 15 tively; 16 (C) by inserting after subparagraph (A) 17 the following: 18 ‘‘(B) the Attorney General may appoint or 19 provide counsel, at Government expense, to the 20 alien; 21 ‘‘(C) the alien, at the beginning of such 22 proceedings or as expeditiously as possible, shall 23 automatically receive a complete copy of all rel- 24 evant documents in the possession of the De- 25 partment of Homeland Security (unless the 26 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2389.IS S2389 kjohnson on DSK79L0C42 with BILLS 3 •S 2389 IS alien waives the right to receive such documents 1 by executing a knowing and voluntary written 2 waiver in a language that he or she under- 3 stands fluently), including— 4 ‘‘(i) all documents (other than docu- 5 ments protected from disclosure by privi- 6 lege and documents containing national se- 7 curity information referred to in subpara- 8 graph (D), law enforcement sensitive infor- 9 mation, or information prohibited from dis- 10 closure pursuant to any other provision of 11 law) contained in the file maintained by 12 the Government that includes information 13 with respect to all transactions involving 14 the alien during the immigration process 15 (commonly referred to as an ‘A-file’); and 16 ‘‘(ii) all documents pertaining to the 17 alien that the Department of Homeland 18 Security has obtained or received from 19 other government agencies;’’; and 20 (D) in subparagraph (D), as redesignated, 21 by striking ‘‘, and’’ and inserting ‘‘; and’’; and 22 (2) by adding at the end the following: 23 ‘‘(8) FAILURE TO PROVIDE ALIEN REQUIRED 24 DOCUMENTS.—In the absence of a waiver under 25 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2389.IS S2389 kjohnson on DSK79L0C42 with BILLS 4 •S 2389 IS paragraph (4)(C), a removal proceeding may not 1 proceed until the alien— 2 ‘‘(A) has received the documents required 3 under such paragraph; and 4 ‘‘(B) has been provided meaningful time to 5 review and assess such documents.’’. 6 (b) CLARIFICATION REGARDING THE AUTHORITY OF 7 THE ATTORNEY GENERAL TO APPOINT COUNSEL TO 8 ALIENS IN IMMIGRATION PROCEEDINGS.—Section 292 of 9 the Immigration and Nationality Act (8 U.S.C. 1362) is 10 amended— 11 (1) by striking ‘‘In any’’ and inserting the fol- 12 lowing: 13 ‘‘(a) IN GENERAL.—In any proceeding conducted 14 under section 235, 236, 238, 240, or 241, or under any 15 other section of this Act, including’’; 16 (2) in subsection (a), as redesignated— 17 (A) by striking ‘‘(at no expense to the Gov- 18 ernment)’’; and 19 (B) by striking ‘‘he shall’’ and inserting 20 ‘‘the person shall’’; and 21 (3) by adding at the end the following: 22 ‘‘(b) ACCESS TO COUNSEL.—The Attorney General 23 may appoint or provide counsel to aliens in any proceeding 24 conducted under section 235, 236, 238, 240, or 241, or 25 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2389.IS S2389 kjohnson on DSK79L0C42 with BILLS 5 •S 2389 IS under any other section of this Act. The Secretary of 1 Homeland Security shall ensure that aliens have access 2 to counsel inside all immigration detention and border fa- 3 cilities.’’. 4 (c) APPOINTMENT OF COUNSEL FOR CHILDREN AND 5 VULNERABLE ALIENS.— 6 (1) IN GENERAL.—Section 292 of the Immigra- 7 tion and Nationality Act, as amended by subsection 8 (b), is further amended by adding at the end the fol- 9 lowing: 10 ‘‘(c) CHILDREN AND VULNERABLE ALIENS.—Not- 11 withstanding subsection (b), the Attorney General shall 12 appoint or provide counsel, at the expense of the Govern- 13 ment, if necessary, at the beginning of immigration pro- 14 ceedings, or as expeditiously as possible, to represent in 15 such proceedings any alien who has been determined by 16 the Secretary of Homeland Security or the Attorney Gen- 17 eral to be— 18 ‘‘(1) a child; 19 ‘‘(2) a person with a disability; 20 ‘‘(3) a victim of abuse, torture, or violence; 21 ‘‘(4) an individual whose income is at or below 22 200 percent of the poverty line (as defined by the 23 Office of Management and Budget and revised an- 24 nually in accordance with section 673(2) of the 25 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2389.IS S2389 kjohnson on DSK79L0C42 with BILLS 6 •S 2389 IS Community Services Block Grant Act (42 U.S.C. 1 9902(2))) applicable to a family of the size involved; 2 or 3 ‘‘(5) an individual whose circumstances require 4 the appointment of counsel to help ensure the fair 5 resolution and efficient adjudication of the pro- 6 ceedings. 7 ‘‘(d) EXTENSION TO CONSOLIDATED CASES.—If the 8 Attorney General has consolidated the case of an alien for 9 whom counsel was appointed under subsection (c) with the 10 case of another alien who does not have counsel, the coun- 11 sel appointed under subsection (c) shall be appointed to 12 represent such other alien. 13 ‘‘(e) AUTHORIZATION OF APPROPRIATIONS.—In ad- 14 dition to amounts available in the Immigration Counsel 15 Account under section 295, there is authorized to be ap- 16 propriated to the Executive Office of Immigration Review 17 of the Department of Justice, such sums as may be nec- 18 essary to carry out this section.’’. 19 (2) RULEMAKING.—The Attorney General shall 20 promulgate regulations to implement section 292(c) 21 of the Immigration and Nationality Act, as added by 22 paragraph (1), in accordance with the requirements 23 set forth in section 3006A of title 18, United States 24 Code. 25 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2389.IS S2389 kjohnson on DSK79L0C42 with BILLS 7 •S 2389 IS SEC. 3. ACCESS BY COUNSEL AND LEGAL ORIENTATION AT 1 DETENTION FACILITIES. 2 (a) ACCESS TO COUNSEL.—The Secretary of Home- 3 land Security shall facilitate access to counsel for all aliens 4 detained in facilities under the supervision of U.S. Immi- 5 gration and Customs Enforcement or of U.S. Customs and 6 Border Protection, including providing information to 7 such aliens regarding legal services programs at detention 8 facilities. 9 (b) ACCESS TO LEGAL ORIENTATION PROGRAMS.— 10 (1) PROCEDURES.—The Secretary of Homeland 11 Security, in consultation with the Attorney General, 12 shall establish procedures— 13 (A) to ensure that legal orientation pro- 14 grams are available for all detained aliens, in- 15 cluding aliens held in U.S. Customs and Border 16 Protection facilities; and 17 (B) to inform such aliens of— 18 (i) the basic procedures of immigra- 19 tion hearings; 20 (ii) their rights relating to such hear- 21 ings under Federal immigration laws; 22 (iii) information that may deter such 23 aliens from filing frivolous legal claims; 24 and 25 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2389.IS S2389 kjohnson on DSK79L0C42 with BILLS 8 •S 2389 IS (iv) any other information that the 1 Attorney General considers appropriate, 2 such as a contact list of potential legal re- 3 sources and providers. 4 (2) UNIVERSAL AVAILABILITY.—Access to legal 5 orientation programs under paragraph (1) may not 6 be limited by the alien’s current immigration status, 7 prior immigration history, or potential for immigra- 8 tion relief. 9 SEC. 4. REPORT ON ACCESS TO COUNSEL. 10 (a) REPORT.—Not later than December 31 of each 11 year, the Secretary of Homeland Security, in consultation 12 with the Attorney General, shall submit a report to the 13 Committee on the Judiciary of the Senate and the Com- 14 mittee on the Judiciary of the House of Representatives 15 regarding the extent to which aliens described in section 16 292(c) of the Immigration and Nationality Act, as added 17 by section 2(c)(1), have been provided access to counsel. 18 (b) CONTENTS.—Each report submitted under sub- 19 section (a) shall include, for the immediately preceding 1- 20 year period— 21 (1) the number and percentage of aliens de- 22 scribed in paragraphs (1), (2), (3), and (4), respec- 23 tively, of section 292(c) of the Immigration and Na- 24 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2389.IS S2389 kjohnson on DSK79L0C42 with BILLS 9 •S 2389 IS tionality Act who were represented by counsel, in- 1 cluding information specifying— 2 (A) the stage of the legal process at which 3 the alien was represented; and 4 (B) whether the alien was in government 5 custody; and 6 (2) the number and percentage of aliens who 7 received legal orientation presentations. 8 SEC. 5. MOTIONS TO REOPEN. 9 Section 240(c)(7)(C) of the Immigration and Nation- 10 ality Act (8 U.S.C. 1229a(c)(7)(C)) is amended by adding 11 at the end the following: 12 ‘‘(v) SPECIAL RULE FOR ALIENS EN- 13 TITLED TO APPOINTMENT OF COUNSEL.— 14 If the Attorney General fails to appoint 15 counsel for an alien in violation of section 16 292(c)— 17 ‘‘(I) no limitation under this 18 paragraph pertaining to the filing of 19 any motion under this paragraph by 20 such alien shall apply; and 21 ‘‘(II) the filing of such a motion 22 shall stay the removal of the alien.’’. 23 Æ VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S2389.IS S2389 kjohnson on DSK79L0C42 with BILLS