Funding Attorneys for Indigent Removal (FAIR) Proceedings Act

I 116TH CONGRESS 1ST SESSION H. R. 4155 To provide access to counsel for children and other vulnerable populations. IN THE HOUSE OF REPRESENTATIVES AUGUST 2, 2019 Mr. MCEACHIN (for himself, Ms. LOFGREN, Mr. NADLER, Ms. SCHAKOWSKY, Mr. PALLONE, Mr. ESPAILLAT, Ms. BONAMICI, Mr. MCGOVERN, Ms. DEAN, Mr. RASKIN, Mrs. WATSON COLEMAN, Mr. CARSON of Indiana, Ms. ESHOO, Mr. SUOZZI, Mr. VELA, Mr. SOTO, Ms. PRESSLEY, Ms. BASS, Mr. CORREA, Ms. JUDY CHU of California, Ms. NORTON, Ms. TLAIB, Ms. BROWNLEY of California, Mr. HASTINGS, Mrs. NAPOLITANO, Ms. GARCIA of Texas, Ms. JAYAPAL, Ms. MENG, Ms. ROYBAL-ALLARD, Mr. CUMMINGS, and Ms. WASSERMAN SCHULTZ) introduced the following bill; which was 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 TITLE. 3 This Act may be cited as the ‘‘Funding Attorneys for 4 Indigent Removal (FAIR) Proceedings Act’’. 5 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H4155.IH H4155 kjohnson on DSK79L0C42 with BILLS 2 •HR 4155 IH 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 20 aliens in immigration proceedings; 21 ‘‘(C) the alien shall, at the beginning of 22 the proceedings or as expeditiously as possible, 23 automatically receive a complete copy of all rel- 24 evant documents in the possession of the De- 25 partment of Homeland Security, including all 26 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4155.IH H4155 kjohnson on DSK79L0C42 with BILLS 3 •HR 4155 IH documents (other than documents protected 1 from disclosure by privilege, including national 2 security information referred to in subpara- 3 graph (D), law enforcement sensitive informa- 4 tion, and information prohibited from disclosure 5 pursuant to any other provision of law) con- 6 tained in the file maintained by the Government 7 that includes information with respect to all 8 transactions involving the alien during the im- 9 migration process (commonly referred to as an 10 ‘A-file’), and all documents pertaining to the 11 alien that the Department of Homeland Secu- 12 rity has obtained or received from other govern- 13 ment agencies, unless the alien waives the right 14 to receive such documents by executing a know- 15 ing and voluntary written waiver in a language 16 that he or she understands fluently;’’; and 17 (D) in subparagraph (D), as redesignated, 18 by striking ‘‘, and’’ and inserting ‘‘; and’’; and 19 (2) by adding at the end the following: 20 ‘‘(8) FAILURE TO PROVIDE ALIEN REQUIRED 21 DOCUMENTS.—In the absence of a waiver under 22 paragraph (4)(C), a removal proceeding may not 23 proceed until the alien— 24 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4155.IH H4155 kjohnson on DSK79L0C42 with BILLS 4 •HR 4155 IH ‘‘(A) has received the documents as re- 1 quired under such paragraph; and 2 ‘‘(B) has been provided meaningful time to 3 review and assess such documents.’’. 4 (b) CLARIFICATION REGARDING THE AUTHORITY OF 5 THE ATTORNEY GENERAL TO APPOINT COUNSEL TO 6 ALIENS IN IMMIGRATION PROCEEDINGS.—Section 292 of 7 the Immigration and Nationality Act (8 U.S.C. 1362) is 8 amended— 9 (1) by striking ‘‘In any’’ and inserting the fol- 10 lowing: 11 ‘‘(a) IN GENERAL.—In any proceeding conducted 12 under section 235, 236, 238, 240, 241, or any other sec- 13 tion of this Act, including’’; 14 (2) in subsection (a), as redesignated— 15 (A) by striking ‘‘(at no expense to the Gov- 16 ernment)’’; and 17 (B) by striking ‘‘he shall’’ and inserting 18 ‘‘the person shall’’; and 19 (3) by adding at the end the following: 20 ‘‘(b) ACCESS TO COUNSEL.—The Attorney General 21 may appoint or provide counsel to aliens in any proceeding 22 conducted under section 235, 236, 238, 240, or 241 or 23 any other section of this Act. The Secretary of Homeland 24 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4155.IH H4155 kjohnson on DSK79L0C42 with BILLS 5 •HR 4155 IH Security shall ensure that aliens have access to counsel 1 inside all immigration detention and border facilities.’’. 2 (c) APPOINTMENT OF COUNSEL FOR CHILDREN AND 3 VULNERABLE ALIENS.— 4 (1) IN GENERAL.—Section 292 of the Immigra- 5 tion and Nationality Act (8 U.S.C. 1362), as amend- 6 ed by subsection (b), is further amended by adding 7 at the end the following: 8 ‘‘(c) CHILDREN AND VULNERABLE ALIENS.—Not- 9 withstanding subsection (b), the Attorney General shall 10 appoint or provide counsel, at the expense of the Govern- 11 ment if necessary, at the beginning of the proceedings or 12 as expeditiously as possible, to represent in such pro- 13 ceedings any alien who has been determined by the Sec- 14 retary of Homeland Security or the Attorney General to 15 be— 16 ‘‘(1) a child (as defined in section 101(b)(1) of 17 this Act); 18 ‘‘(2) a particularly vulnerable individual, such 19 as— 20 ‘‘(A) a person with a disability; or 21 ‘‘(B) a victim of abuse, torture, or violence; 22 ‘‘(3) an individual whose income is at or below 23 200 percent of the poverty line (as defined by the 24 Office of Management and Budget and revised an- 25 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4155.IH H4155 kjohnson on DSK79L0C42 with BILLS 6 •HR 4155 IH nually in accordance with section 673(2) of the 1 Community Services Block Grant Act (42 U.S.C. 2 9902(2))) applicable to a family of the size involved; 3 or 4 ‘‘(4) an individual whose circumstances are 5 such that the appointment of counsel is necessary to 6 help ensure fair resolution and efficient adjudication 7 of the proceedings. 8 ‘‘(d) EXTENSION TO CONSOLIDATED CASES.—If the 9 Attorney General has consolidated the case of any alien 10 for whom counsel was appointed under subsection (c) with 11 that of any other alien, and that other alien does not have 12 counsel, then the counsel appointed under subsection (c) 13 shall be appointed to represent such other alien. 14 ‘‘(e) AUTHORIZATION OF APPROPRIATIONS.—There 15 is authorized to be appropriated to the Executive Office 16 of Immigration Review of the Department of Justice, in 17 addition to amounts available in the Immigration Counsel 18 Account under section 295, such sums as may be nec- 19 essary to carry out this section.’’. 20 (2) RULEMAKING.—The Attorney General shall 21 promulgate regulations to implement section 292(c) 22 of the Immigration and Nationality Act, as added by 23 paragraph (1), in accordance with the requirements 24 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4155.IH H4155 kjohnson on DSK79L0C42 with BILLS 7 •HR 4155 IH set forth in section 3006A of title 18, United States 1 Code. 2 SEC. 3. ACCESS BY COUNSEL AND LEGAL ORIENTATION AT 3 DETENTION FACILITIES. 4 (a) ACCESS TO COUNSEL.—The Secretary of Home- 5 land Security shall facilitate access to counsel for all aliens 6 detained in facilities under the supervision of U.S. Immi- 7 gration and Customs Enforcement or of U.S. Customs and 8 Border Protection, including providing information to 9 aliens in detention about legal services programs at deten- 10 tion facilities. 11 (b) ACCESS TO LEGAL ORIENTATION PROGRAMS.— 12 The Secretary of Homeland Security, in consultation with 13 the Attorney General, shall establish procedures to ensure 14 that legal orientation programs are available for all de- 15 tained aliens, including aliens held in U.S. Customs and 16 Border Protection facilities, to inform such aliens of the 17 basic procedures of immigration hearings, their rights re- 18 lating to those hearings under Federal immigration laws, 19 information that may deter such aliens from filing frivo- 20 lous legal claims, and any other information that the At- 21 torney General considers appropriate, such as a contact 22 list of potential legal resources and providers. Access to 23 legal orientation programs shall not be limited by the 24 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4155.IH H4155 kjohnson on DSK79L0C42 with BILLS 8 •HR 4155 IH alien’s current immigration status, prior immigration his- 1 tory, or potential for immigration relief. 2 SEC. 4. REPORT ON ACCESS TO COUNSEL. 3 (a) REPORT.—Not later than December 31 of each 4 year, the Secretary of Homeland Security, in consultation 5 with the Attorney General, shall prepare and submit a re- 6 port to the Committee on the Judiciary of the Senate and 7 the Committee on the Judiciary of the House of Rep- 8 resentatives regarding the extent to which aliens described 9 in section 292(c) of the Immigration and Nationality Act, 10 as added by section 2(c)(1), have been provided access to 11 counsel. 12 (b) CONTENTS.—Each report submitted under para- 13 graph (a) shall include, for the immediately preceding 1- 14 year period— 15 (1) the number and percentage of aliens de- 16 scribed in paragraphs (1), (2), (3), and (4), respec- 17 tively, of section 292(c) of the Immigration and Na- 18 tionality Act, as added by section 2(c)(1), who were 19 represented by counsel, including information speci- 20 fying— 21 (A) the stage of the legal process at which 22 the alien was represented; and 23 (B) whether the alien was in government 24 custody; and 25 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4155.IH H4155 kjohnson on DSK79L0C42 with BILLS 9 •HR 4155 IH (2) the number and percentage of aliens who 1 received legal orientation presentations. 2 SEC. 5. MOTIONS TO REOPEN. 3 Section 240(c)(7)(C) of the Immigration and Nation- 4 ality Act (8 U.S.C. 1229a(c)(7)(C)) is amended by adding 5 at the end the following: 6 ‘‘(v) SPECIAL RULE FOR ALIENS EN- 7 TITLED TO APPOINTMENT OF COUNSEL.— 8 If the Attorney General fails to appoint 9 counsel for an alien in violation of section 10 292(c)— 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 SEC. 6. SUPPLEMENTARY SURCHARGE. 18 (a) IN GENERAL.—Chapter 9 of the Immigration and 19 Nationality Act is amended by adding at the end the fol- 20 lowing: 21 ‘‘SEC. 295. SUPPLEMENTARY SURCHARGE. 22 ‘‘(a) IN GENERAL.—There is established in the gen- 23 eral fund of the Treasury a separate account which shall 24 be known as the ‘Immigration Counsel Account’. Notwith- 25 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H4155.IH H4155 kjohnson on DSK79L0C42 with BILLS 10 •HR 4155 IH standing any other section of this title, there shall be de- 1 posited as offsetting receipts into the Immigration Counsel 2 Account all fees collected under subsection (c) of this sec- 3 tion, to remain available until expended for purposes of 4 providing access to counsel when required or authorized 5 under this Act and facilitating access to counsel under the 6 Funding Attorneys for Indigent Removal (FAIR) Pro- 7 ceedings Act. 8 ‘‘(b) REPORT.—At the end of each 2-year period, be- 9 ginning with the creation of this account, the Secretary 10 of Homeland Security, following a public rulemaking with 11 opportunity for notice and comment, shall submit a report 12 to the Congress concerning the status of the account, in- 13 cluding any balances therein, and recommend any adjust- 14 ment in the prescribed fee that may be required to ensure 15 that the receipts collected from the fee charged for the 16 succeeding two years equal, as closely as possible, the cost 17 of providing access to counsel when required or authorized 18 under this Act and facilitating access counsel under the 19 Funding Attorneys for Indigent Removal (FAIR) Pro- 20 ceedings Act. 21 ‘‘(c) RECEIPTS.—In any case in which a fee is 22 charged pursuant to this Act or any of the other immigra- 23 tion laws, an additional surcharge of $10 shall also be im- 24 posed and collected.’’. 25 VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H4155.IH H4155 kjohnson on DSK79L0C42 with BILLS 11 •HR 4155 IH (b) TABLE OF CONTENTS.—The table of contents for 1 such Act is amended by inserting after the item relating 2 to section 294 the following: 3 ‘‘Sec. 295. Supplementary surcharge.’’. Æ VerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\H4155.IH H4155 kjohnson on DSK79L0C42 with BILLS