Protect Asylum Seekers Act

I 116TH CONGRESS 2D SESSION H. R. 9040 To protect aliens seeking asylum in the United States, and for other purposes. IN THE HOUSE OF REPRESENTATIVES DECEMBER 21, 2020 Mr. AMASH introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Homeland Secu- rity, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To protect aliens seeking asylum in the United States, 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 ‘‘Protect Asylum Seek- 4 ers Act’’. 5 SEC. 2. LIMITATION ON PROSECUTION OF ASYLUM SEEK- 6 ERS. 7 Section 275 of the Immigration and Nationality Act 8 (8 U.S.C. 1325) is amended— 9 VerDate Sep 11 2014 19:05 Jan 18, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H9040.IH H9040 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 9040 IH (1) in subsection (a), by striking ‘‘Any alien’’ 1 and inserting ‘‘Except as provided in subsection (e), 2 any alien’’; 3 (2) in subsection (b), by striking ‘‘Any alien’’ 4 and inserting ‘‘Except as provided in subsection (e), 5 any alien’’; and 6 (3) by adding at the end the following: 7 ‘‘(e)(1) Subsections (a)(1) and (b) shall not apply in 8 the case of an alien who presents himself to an immigra- 9 tion officer or an asylum officer without unnecessary delay 10 after entering the United States, and indicates an inten- 11 tion to apply for asylum under section 208 or a fear of 12 persecution (as defined in section 235(b)(1)(B)(v)). 13 ‘‘(2) The exception under this subsection applies re- 14 gardless of whether the alien is found to have a credible 15 fear of persecution, or is granted asylum, except in the 16 case that an asylum officer determines that the alien’s 17 claim for asylum or fear of persecution was fraudulent. 18 In the case that an asylum officer determines that a claim 19 for asylum is fraudulent under this paragraph, the officer 20 shall document such determination, and the reason for 21 such determination, in writing. 22 ‘‘(3) A claim for asylum or a fear of persecution may 23 not be determined to be fraudulent under paragraph (2) 24 on the basis that— 25 VerDate Sep 11 2014 19:05 Jan 18, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H9040.IH H9040 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 9040 IH ‘‘(A) the alien entered or attempted to enter the 1 United States at any time or place other than as 2 designated by immigration officers; 3 ‘‘(B) the alien’s claim is based on fearing gang 4 violence or domestic violence; or 5 ‘‘(C) the alien entered or attempted to enter the 6 United States with the alien’s child who had not at- 7 tained the age of 18.’’. 8 SEC. 3. TRANSFER OF ASYLUM SEEKERS TO ASYLUM 9 INTERVIEW LOCATIONS. 10 An alien who presents himself to an immigration offi- 11 cer or an asylum officer as described in section 275(e)(1) 12 of the Immigration and Nationality Act shall be trans- 13 ferred to a port of entry or place designated for asylum 14 interviews under section 235(b)(1)(B)(i) of that Act to un- 15 dergo an interview by an asylum officer under such section 16 235, unless the alien presents himself at such a location. 17 SEC. 4. LIMITATION ON THE SEPARATION OF FAMILIES. 18 (a) IN GENERAL.—An agent or officer of a des- 19 ignated agency may not remove a child from his or her 20 parent or legal guardian if the parent or legal guardian 21 has not been referred for prosecution, unless one of the 22 following has occurred: 23 (1) A State court, authorized under State law, 24 terminates the rights of a parent or legal guardian, 25 VerDate Sep 11 2014 19:05 Jan 18, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H9040.IH H9040 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 9040 IH determines that it is in the best interests of the child 1 to be removed from his or her parent or legal guard- 2 ian, in accordance with the Adoption and Safe Fam- 3 ilies Act of 1997 (Public Law 105–89), or makes 4 any similar determination that is legally authorized 5 under State law. 6 (2) An official from the State or county child 7 welfare agency with expertise in child trauma and 8 development makes a determination that it is in the 9 best interests of the child to be removed from his or 10 her parent or legal guardian because the child is in 11 danger of abuse or neglect at the hands of the par- 12 ent or legal guardian, or is a danger to himself or 13 others. 14 (3) The Chief Patrol Agent or the Area Port 15 Director, in their official and undelegated capacity, 16 authorizes separation upon the recommendation by 17 an agent or officer of a designated agency, based on 18 a finding that— 19 (A) the child is a victim of trafficking or 20 is at significant risk of becoming a victim of 21 trafficking; 22 (B) there is a strong likelihood that the 23 adult is not the parent or legal guardian of the 24 child; or 25 VerDate Sep 11 2014 19:05 Jan 18, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H9040.IH H9040 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 9040 IH (C) the child is in danger of abuse or ne- 1 glect at the hands of the parent or legal guard- 2 ian, or is a danger to himself or others. 3 (b) PROHIBITION ON SEPARATION.—A designated 4 agency may not remove a child from a parent or legal 5 guardian solely for the policy goal of deterring individuals 6 from migrating to the United States or for the policy goal 7 of promoting compliance with civil immigration laws. 8 (c) DOCUMENTATION REQUIRED.—The Secretary 9 shall ensure that a separation under subsection (a)(3) is 10 documented in writing and includes, at a minimum, the 11 reason for such separation, together with the stated evi- 12 dence for such separation. 13 SEC. 5. RECOMMENDATIONS FOR SEPARATION BY AGENTS 14 OR OFFICERS. 15 (a) IN GENERAL.—Not later than 180 days after the 16 date of the enactment of this Act, the Secretary, in con- 17 sultation with the Secretary of Health and Human Serv- 18 ices, shall develop training and guidance, with an empha- 19 sis on the best interests of the child, childhood trauma, 20 attachment, and child development, for use by agents and 21 officers of designated agencies, in order to standardize the 22 implementation of section 4(a)(3). 23 (b) ANNUAL REVIEW.—Not less frequently than an- 24 nually, the Secretary of Health and Human Services shall 25 VerDate Sep 11 2014 19:05 Jan 18, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H9040.IH H9040 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 9040 IH review the guidance developed under subsection (a) and 1 make recommendations to the Secretary to ensure such 2 guidance is in accordance with current evidence and best 3 practices in child welfare, child development, and child- 4 hood trauma. 5 (c) REQUIREMENT.—The guidance under subsection 6 (a) shall incorporate the presumptions described in sub- 7 section (e). 8 (d) ADDITIONAL REQUIREMENTS.— 9 (1) EVIDENCE-BASED.—The guidance and 10 training developed under this section shall incor- 11 porate evidence-based practices. 12 (2) TRAINING REQUIRED.— 13 (A) All agents and officers of designated 14 agencies, upon hire, and annually thereafter, 15 shall complete training on adherence to the 16 guidance under this section. 17 (B) All Chief Patrol Agents and Area Port 18 Directors, upon hire, and annually thereafter, 19 shall complete— 20 (i) training on adherence to the guid- 21 ance under this section; and 22 (ii) 90 minutes of child welfare prac- 23 tice training that is evidence-based and 24 trauma-informed. 25 VerDate Sep 11 2014 19:05 Jan 18, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H9040.IH H9040 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 9040 IH (e) PRESUMPTIONS.—The presumptions described in 1 this subsection are the following: 2 (1) FAMILY UNITY.—There shall be a strong 3 presumption in favor of family unity. 4 (2) SIBLINGS.—To the maximum extent prac- 5 ticable, the Secretary shall ensure that sibling 6 groups remain intact. 7 (3) DETENTION.—In general, there is a pre- 8 sumption that detention is not in the best interests 9 of families and children. 10 SEC. 6. REQUIRED POLICY FOR LOCATING SEPARATED 11 CHILDREN. 12 (a) IN GENERAL.—Not later than 180 days after the 13 date of the enactment of this Act, the Secretary shall pub- 14 lish final public guidance that describes, with specificity, 15 the manner in which a parent or legal guardian may locate 16 a child who was separated from the parent or legal guard- 17 ian under section 3(a). In developing the public guidance, 18 the Secretary shall consult with the Secretary of Health 19 and Human Services, immigrant advocacy organizations, 20 child welfare organizations, and State child welfare agen- 21 cies. 22 (b) WRITTEN NOTIFICATION.—The Secretary shall 23 provide each parent or legal guardian of a child who was 24 VerDate Sep 11 2014 19:05 Jan 18, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H9040.IH H9040 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 9040 IH separated from the child with written notice of the public 1 guidance to locate the child. 2 (c) LANGUAGE ACCESS.—All guidance shall be avail- 3 able in English and Spanish, and at the request of the 4 parent or legal guardian, in the language or manner that 5 is understandable by the parent or legal guardian. 6 SEC. 7. REQUIRED INFORMATION FOR SEPARATED FAMI- 7 LIES. 8 Not less frequently than once every month, the Sec- 9 retary shall provide the parent or legal guardian of a child 10 who was separated from the child the following informa- 11 tion, at a minimum: 12 (1) A status report on the monthly activities of 13 the child. 14 (2) Information about the education and health 15 of the child, including any medical treatment pro- 16 vided to the child or medical treatment rec- 17 ommended for the child. 18 (3) Information about changes to the child’s 19 immigration status. 20 (4) Other information about the child, designed 21 to promote and maintain family reunification, as the 22 Secretary determines in his or her discretion. 23 VerDate Sep 11 2014 19:05 Jan 18, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H9040.IH H9040 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 9040 IH SEC. 8. ANNUAL REPORT ON FAMILY SEPARATION. 1 Not later than 1 year after the date of the enactment 2 of this Act, and annually thereafter, the Secretary shall 3 submit a report to the committees of jurisdiction that de- 4 scribes each instance in which a child was separated from 5 a parent or legal guardian and includes, for each such in- 6 stance, the following: 7 (1) The relationship of the adult and the child. 8 (2) The age and gender of the adult and child. 9 (3) The length of separation. 10 (4) Whether the adult was charged with a 11 crime, and if the adult was charged with a crime, 12 the type of crime. 13 (5) Whether the adult made a claim for asylum, 14 expressed a fear to return, or applied for other im- 15 migration relief. 16 (6) Whether the adult was prosecuted if 17 charged with a crime and the associated outcome of 18 such charges. 19 (7) The stated reason for, and evidence in sup- 20 port of, the separation. 21 (8) If the child was part of a sibling group at 22 the time of separation, whether the sibling group has 23 had physical contact and visitation. 24 (9) Whether the child was rendered an unac- 25 companied alien child. 26 VerDate Sep 11 2014 19:05 Jan 18, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H9040.IH H9040 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 9040 IH (10) Other information in the Secretary’s dis- 1 cretion. 2 The Secretary shall ensure that any information collected, 3 published, or otherwise made available under this section 4 does not reveal personally identifiable information. 5 SEC. 9. CLARIFICATION OF PARENTAL RIGHTS. 6 If a child is separated from a parent or legal guard- 7 ian, and a State court has not made a determination that 8 the parental rights have been terminated, there is a pre- 9 sumption that— 10 (1) the parental rights remain intact; and 11 (2) the separation does not constitute an af- 12 firmative determination of abuse or neglect under 13 Federal or State law. 14 SEC. 10. CLARIFICATION OF EXISTING LAW. 15 (a) FEDERAL LAW.—Nothing in this Act shall be in- 16 terpreted to supersede or modify Federal child welfare law, 17 where applicable, including the Adoption and Safe Fami- 18 lies Act of 1997 (Public Law 105–89). 19 (b) STATE LAW.—Nothing in this Act shall be inter- 20 preted to supersede or modify State child welfare laws 21 where applicable. 22 VerDate Sep 11 2014 19:05 Jan 18, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H9040.IH H9040 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 9040 IH SEC. 11. GAO REPORT ON PROSECUTION OF ASYLUM SEEK- 1 ERS. 2 (a) STUDY.—The Comptroller General of the United 3 States shall conduct a study of the prosecution of asylum 4 seekers during the period beginning on January 1, 2008, 5 and ending on December 31, 2020, including— 6 (1) the total number of persons who claimed a 7 fear of persecution, received a favorable credible fear 8 determination, and were referred for prosecution; 9 (2) an overview and analysis of the metrics 10 used by the Department of Homeland Security and 11 the Department of Justice to track the number of 12 asylum seekers referred for prosecution; 13 (3) the total number of asylum seekers referred 14 for prosecution, a breakdown and description of the 15 criminal charges filed against asylum seekers during 16 such period, and a breakdown and description of the 17 convictions secured; 18 (4) the total number of asylum seekers who 19 were separated from their children as a result of 20 being referred for prosecution; 21 (5) a breakdown of the resources spent on pros- 22 ecuting asylum seekers during such period, as well 23 as any diversion of resources required to prosecute 24 asylum seekers, and any costs imposed on States 25 and localities; 26 VerDate Sep 11 2014 19:05 Jan 18, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H9040.IH H9040 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 9040 IH (6) the total number of asylum seekers who 1 were referred for prosecution and also went through 2 immigration proceedings; and 3 (7) the total number of asylum seekers referred 4 for prosecution who were deported before going 5 through immigration proceedings. 6 (b) REPORT.—Not later than 1 year after the date 7 of the enactment of this Act, the Comptroller General shall 8 submit to [Text truncated for display. 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