[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2468 Introduced in Senate (IS)]
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115th CONGRESS
2d Session
S. 2468
To provide access to counsel for unaccompanied alien children.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 28, 2018
Ms. Hirono (for herself, Mr. Blumenthal, Mr. Booker, Mr. Coons, Ms.
Cortez Masto, Mrs. Feinstein, Mrs. Gillibrand, Mr. Markey, Mr. Merkley,
Mr. Murphy, Mr. Wyden, Mr. Menendez, and Ms. Harris) 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 Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fair Day in Court for Kids Act of
2018''.
SEC. 2. IMPROVING IMMIGRATION COURT EFFICIENCY AND REDUCING COSTS BY
INCREASING ACCESS TO LEGAL INFORMATION.
(a) Appointment of Counsel in Removal Proceedings; Right To Review
Certain Documents in Removal Proceedings.--Section 240(b) of the
Immigration and Nationality Act (8 U.S.C. 1229a(b)) is amended--
(1) in paragraph (4)--
(A) in subparagraph (A)--
(i) by striking ``, at no expense to the
Government,''; and
(ii) by striking the comma at the end and
inserting a semicolon;
(B) by redesignating subparagraphs (B) and (C) as
subparagraphs (D) and (E), respectively;
(C) by inserting after subparagraph (A) the
following:
``(B) the Attorney General may appoint or provide
counsel, at Government expense, to aliens in
immigration proceedings;
``(C) the alien, or the alien's counsel, not later
than 7 days after receiving a notice to appear under
section 239(a), shall receive a complete copy of the
alien's immigration file (commonly known as an `A-
file') in the possession of the Department of Homeland
Security (other than documents protected from
disclosure under section 552(b) of title 5, United
States Code);''; and
(D) in subparagraph (D), as redesignated, by
striking ``, and'' and inserting ``; and''; and
(2) by adding at the end the following:
``(8) Failure to provide alien required documents.--A
removal proceeding may not proceed until the alien, or the
alien's counsel, if the alien is represented--
``(A) has received the documents required under
paragraph (4)(C); and
``(B) has been provided at least 10 days to review
and assess such documents.''.
(b) Clarification Regarding the Authority of the Attorney General
To Appoint Counsel to Aliens in Immigration Proceedings.--
(1) In general.--Section 292 of the Immigration and
Nationality Act (8 U.S.C. 1362) is amended to read as follows:
``SEC. 292. RIGHT TO COUNSEL.
``(a) In General.--Except as provided in subsections (b) and (c),
in any removal proceeding and in any appeal proceeding before the
Attorney General from any such removal proceeding, the subject of the
proceeding shall have the privilege of being represented by such
counsel as may be authorized to practice in such proceeding as he or
she may choose. This subsection shall not apply to screening
proceedings described in section 235(b)(1)(A).
``(b) Access to Counsel for Unaccompanied Alien Children.--
``(1) In general.--In any removal proceeding and in any
appeal proceeding before the Attorney General from any such
removal proceeding, an unaccompanied alien child (as defined in
section 462(g) of the Homeland Security Act on 2002 (6 U.S.C.
279(g))) shall be represented by Government-appointed counsel,
at Government expense.
``(2) Length of representation.--Once a child is designated
as an unaccompanied alien child under paragraph (1), the child
shall be represented by counsel at every stage of the
proceedings from the child's initial appearance through the
termination of immigration proceedings, and any ancillary
matters appropriate to such proceedings even if the child
attains 18 years of age or is reunified with a parent or legal
guardian while the proceedings are pending.
``(3) Notice.--Not later than 72 hours after an
unaccompanied alien child is taken into Federal custody, the
alien shall be notified that he or she will be provided with
legal counsel in accordance with this subsection.
``(4) Within detention facilities.--The Secretary of
Homeland Security shall ensure that unaccompanied alien
children have access to counsel inside all detention, holding,
and border facilities.
``(c) Pro Bono Representation.--
``(1) In general.--To the maximum extent practicable, the
Attorney General should make every effort to utilize the
services of competent counsel who agree to provide
representation to such children under subsection (b) without
charge.
``(2) Development of necessary infrastructures and
systems.--The Attorney General shall develop the necessary
mechanisms to identify counsel available to provide pro bono
legal assistance and representation to children under
subsection (b) and to recruit such counsel.
``(d) Contracts; Grants.--The Attorney General may enter into
contracts with, or award grants to, nonprofit agencies with relevant
expertise in the delivery of immigration-related legal services to
children to carry out the responsibilities under this section,
including providing legal orientation, screening cases for referral,
recruiting, training, and overseeing pro bono attorneys. Nonprofit
agencies may enter into subcontracts with, or award grants to, private
voluntary agencies with relevant expertise in the delivery of
immigration related legal services to children in order to carry out
this section.
``(e) Model Guidelines on Legal Representation of Children.--
``(1) Development of guidelines.--The Executive Office for
Immigration Review, in consultation with voluntary agencies and
national experts, shall develop model guidelines for the legal
representation of alien children in immigration proceedings,
which shall be based on the children's asylum guidelines, the
American Bar Association Model Rules of Professional Conduct,
and other relevant domestic or international sources.
``(2) Purpose of guidelines.--The guidelines developed
under paragraph (1) shall be designed to help protect each
child from any individual suspected of involvement in any
criminal, harmful, or exploitative activity associated with the
smuggling or trafficking of children, while ensuring the
fairness of the removal proceeding in which the child is
involved.
``(f) Duties of Counsel.--Counsel provided under this section
shall--
``(1) represent the unaccompanied alien child in all
proceedings and matters relating to the immigration status of
the child or other actions involving the Department of Homeland
Security;
``(2) appear in person for all individual merits hearings
before the Executive Office for Immigration Review and
interviews involving the Department of Homeland Security;
``(3) owe the same duties of undivided loyalty,
confidentiality, and competent representation to the child as
is due to an adult client; and
``(4) carry out other such duties as may be proscribed by
the Attorney General or the Executive Office for Immigration
Review.
``(g) Savings Provision.--Nothing in this section may be construed
to supersede--
``(1) any duties, responsibilities, disciplinary, or
ethical responsibilities an attorney may have to his or her
client under State law;
``(2) the admission requirements under State law; or
``(3) any other State law pertaining to the admission to
the practice of law in a particular jurisdiction.''.
(2) Rulemaking.--The Attorney General shall promulgate
regulations to implement section 292 of the Immigration and
Nationality Act, as added by paragraph (1), in accordance with
the requirements set forth in section 3006A of title 18, United
States Code.
SEC. 3. ACCESS BY COUNSEL AND LEGAL ORIENTATION AT DETENTION
FACILITIES.
The Secretary of Homeland Security shall provide access to counsel
for all aliens detained in a facility under the supervision of U.S.
Immigration and Customs Enforcement, U.S. Customs and Border
Protection, or the Department of Health and Human Services, or in any
private facility that contracts with the Federal Government to house,
detain, or hold aliens.
SEC. 4. REPORT ON ACCESS TO COUNSEL.
(a) Report.--Not later than December 31 of each year, the Secretary
of Homeland Security, in consultation with the Attorney General, shall
prepare and submit a report to the Committee on the Judiciary of the
Senate and the Committee on the Judiciary of the House of
Representatives regarding the extent to which aliens described in
section 292(b) of the Immigration and Nationality Act, as added by
section 2(b), have been provided access to counsel.
(b) Contents.--Each report submitted under paragraph (a) shall
include, for the immediately preceding 1-year period--
(1) the number and percentage of aliens described in
section 292(b) of the Immigration and Nationality Act, as added
by section 2(b), who were represented by counsel, including
information specifying--
(A) the stage of the legal process at which each
such alien was represented;
(B) whether the alien was in government custody;
and
(C) the nationality and ages of such aliens; and
(2) the number and percentage of aliens who received legal
orientation presentations, including the nationality and ages
of such aliens.
SEC. 5. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There is authorized to be appropriated to the
Executive Office of Immigration Review of the Department of Justice
such sums as may be necessary to carry out this Act.
(b) Budgetary Effects.--The budgetary effects of this Act, for the
purpose of complying with the Statutory Pay-As-You-Go-Act of 2010,
shall be determined by reference to the latest statement titled
``Budgetary Effects of PAYGO Legislation'' for this Act, submitted for
printing in the Congressional Record by the Chairman of the Senate
Budget Committee, provided that such statement has been submitted prior
to the vote on passage.
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