[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1129 Referred in House (RFH)]
2d Session
S. 1129
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 16, 2004
Referred to the Committee on the Judiciary
_______________________________________________________________________
AN ACT
To provide for the protection of unaccompanied alien children, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Unaccompanied
Alien Child Protection Act of 2004''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--CUSTODY, RELEASE, FAMILY REUNIFICATION, AND DETENTION
Sec. 101. Procedures when encountering unaccompanied alien children.
Sec. 102. Family reunification for unaccompanied alien children with
relatives in the United States.
Sec. 103. Appropriate conditions for detention of unaccompanied alien
children.
Sec. 104. Repatriated unaccompanied alien children.
Sec. 105. Establishing the age of an unaccompanied alien child.
Sec. 106. Effective date.
TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO GUARDIANS AD LITEM
AND COUNSEL
Sec. 201. Guardians ad litem.
Sec. 202. Counsel.
Sec. 203. Effective date; applicability.
TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN
CHILDREN
Sec. 301. Special immigrant juvenile visa.
Sec. 302. Training for officials and certain private parties who come
into contact with unaccompanied alien
children.
Sec. 303. Report.
Sec. 304. Effective date.
TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS
Sec. 401. Guidelines for children's asylum claims.
Sec. 402. Unaccompanied refugee children.
Sec. 403. Exceptions for unaccompanied alien children in asylum and
refugee-like circumstances.
TITLE V--AUTHORIZATION OF APPROPRIATIONS
Sec. 501. Authorization of appropriations.
TITLE VI--AMENDMENTS TO THE HOMELAND SECURITY ACT OF 2002
Sec. 601. Additional responsibilities and powers of the Office of
Refugee Resettlement with respect to
unaccompanied alien children.
Sec. 602. Technical corrections.
Sec. 603. Effective date.
SEC. 2. DEFINITIONS.
(a) In General.--In this Act:
(1) Competent.--The term ``competent'', in reference to
counsel, means an attorney who complies with the duties set
forth in this Act and--
(A) is a member in good standing of the bar of the
highest court of any State, possession, territory,
Commonwealth, or the District of Columbia;
(B) is not under any order of any court suspending,
enjoining, restraining, disbarring, or otherwise
restricting the attorney in the practice of law; and
(C) is properly qualified to handle matters
involving unaccompanied immigrant children or is
working under the auspices of a qualified nonprofit
organization that is experienced in handling such
matters.
(2) Director.--The term ``Director'' means the Director of
the Office.
(3) Directorate.--The term ``Directorate'' means the
Directorate of Border and Transportation Security established
by section 401 of the Homeland Security Act of 2002 (6 U.S.C.
201).
(4) Office.--The term ``Office'' means the Office of
Refugee Resettlement as established by section 411 of the
Immigration and Nationality Act (8 U.S.C. 1521).
(5) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
(6) Unaccompanied alien child.--The term ``unaccompanied
alien child'' has the same meaning as is given the term in
section 462(g)(2) of the Homeland Security Act of 2002 (6
U.S.C. 279(g)(2)).
(7) Voluntary agency.--The term ``voluntary agency'' means
a private, nonprofit voluntary agency with expertise in meeting
the cultural, developmental, or psychological needs of
unaccompanied alien children, as certified by the Director of
the Office of Refugee Resettlement.
(b) Amendments to the Immigration and Nationality Act.--Section
101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is
amended by adding at the end the following:
``(51) The term `unaccompanied alien child' means a child who--
``(A) has no lawful immigration status in the United
States;
``(B) has not attained the age of 18; and
``(C) with respect to whom--
``(i) there is no parent or legal guardian in the
United States; or
``(ii) no parent or legal guardian in the United
States is able to provide care and physical custody.
``(52) The term `unaccompanied refugee children' means persons
described in paragraph (42) who--
``(A) have not attained the age of 18; and
``(B) with respect to whom there are no parents or legal
guardians available to provide care and physical custody.''.
(c) Rule of Construction.--A department or agency of a State, or an
individual or entity appointed by a State court or juvenile court
located in the United States, acting in loco parentis, shall not be
considered a legal guardian for purposes of section 462 of the Homeland
Security Act of 2002 (6 U.S.C. 279) or this Act.
TITLE I--CUSTODY, RELEASE, FAMILY REUNIFICATION, AND DETENTION
SEC. 101. PROCEDURES WHEN ENCOUNTERING UNACCOMPANIED ALIEN CHILDREN.
(a) Unaccompanied Children Found Along the United States Border or
at United States Ports of Entry.--
(1) In general.--Subject to paragraph (2), if an
immigration officer finds an unaccompanied alien child who is
described in paragraph (2) at a land border or port of entry of
the United States and determines that such child is
inadmissible under the Immigration and Nationality Act (8
U.S.C. 1101 et seq.), the officer shall--
(A) permit such child to withdraw the child's
application for admission pursuant to section 235(a)(4)
of the Immigration and Nationality Act (8 U.S.C.
1225(a)(4)); and
(B) return such child to the child's country of
nationality or country of last habitual residence.
(2) Special rule for contiguous countries.--
(A) In general.--Any child who is a national or
habitual resident of a country that is contiguous with
the United States and that has an agreement in writing
with the United States providing for the safe return
and orderly repatriation of unaccompanied alien
children who are nationals or habitual residents of
such country shall be treated in accordance with
paragraph (1), if a determination is made on a case-by-
case basis that--
(i) such child is a national or habitual
resident of a country described in subparagraph
(A);
(ii) such child does not have a fear of
returning to the child's country of nationality
or country of last habitual residence owing to
a fear of persecution;
(iii) the return of such child to the
child's country of nationality or country of
last habitual residence would not endanger the
life or safety of such child; and
(iv) the child is able to make an
independent decision to withdraw the child's
application for admission due to age or other
lack of capacity.
(B) Right of consultation.--Any child described in
subparagraph (A) shall have the right to consult with a
consular officer from the child's country of
nationality or country of last habitual residence prior
to repatriation, as well as consult with the Office,
telephonically, and such child shall be informed of
that right in the child's native language.
(3) Rule for apprehensions at the border.--The custody of
unaccompanied alien children not described in paragraph (2) who
are apprehended at the border of the United States or at a
United States port of entry shall be treated in accordance with
the provisions of subsection (b).
(b) Care and Custody of Unaccompanied Alien Children Found in the
Interior of the United States.--
(1) Establishment of jurisdiction.--
(A) In general.--Except as otherwise provided under
subparagraphs (B) and (C) and subsection (a), the care
and custody of all unaccompanied alien children,
including responsibility for their detention, where
appropriate, shall be under the jurisdiction of the
Office.
(B) Exception for children who have committed
crimes.--Notwithstanding subparagraph (A), the
Directorate shall retain or assume the custody and care
of any unaccompanied alien child who--
(i) has been charged with any felony,
excluding offenses proscribed by the
Immigration and Nationality Act (8 U.S.C. 1101
et seq.), while such charges are pending; or
(ii) has been convicted of any such felony.
(C) Exception for children who threaten national
security.--Notwithstanding subparagraph (A), the
Directorate shall retain or assume the custody and care
of an unaccompanied alien child if the Secretary has
substantial evidence, based on an individualized
determination, that such child could personally
endanger the national security of the United States.
(D) Trafficking victims.--For purposes of section
462 of the Homeland Security Act of 2002 (6 U.S.C. 279)
and this Act, an unaccompanied alien child who is
eligible for services authorized under the Victims of
Trafficking and Violence Protection Act of 2000 (Public
Law 106-386), shall be considered to be in the custody
of the Office.
(2) Notification.--
(A) In general.--The Secretary shall promptly
notify the Office upon--
(i) the apprehension of an unaccompanied
alien child;
(ii) the discovery that an alien in the
custody of the Directorate is an unaccompanied
alien child;
(iii) any claim by an alien in the custody
of the Directorate that such alien is under the
age of 18; or
(iv) any suspicion that an alien in the
custody of the Directorate who has claimed to
be over the age of 18 is actually under the age
of 18.
(B) Special rule.--In the case of an alien
described in clause (iii) or (iv) of subparagraph (A),
the Director shall make an age determination in
accordance with section 105 and take whatever other
steps are necessary to determine whether or not such
alien is eligible for treatment under section 462 of
the Homeland Security Act of 2002 (6 U.S.C. 279) or
this Act.
(3) Transfer of unaccompanied alien children.--
(A) Transfer to the office.--The care and custody
of an unaccompanied alien child shall be transferred to
the Office--
(i) in the case of a child not described in
subparagraph (B) or (C) of paragraph (1), not
later than 72 hours after a determination is
made that such child is an unaccompanied alien
child;
(ii) in the case of a child whose custody
and care has been retained or assumed by the
Directorate pursuant to subparagraph (B) or (C)
of paragraph (1), immediately following a
determination that the child no longer meets
the description set forth in such
subparagraphs; or
(iii) in the case of a child who was
previously released to an individual or entity
described in section 102(a)(1), upon a
determination by the Director that such
individual or entity is no longer able to care
for the child.
(B) Transfer to the directorate.--Upon determining
that a child in the custody of the Office is described
in subparagraph (B) or (C) of paragraph (1), the
Director shall transfer the care and custody of such
child to the Directorate.
(C) Promptness of transfer.--In the event of a need
to transfer a child under this paragraph, the sending
office shall make prompt arrangements to transfer such
child and the receiving office shall make prompt
arrangements to receive such child.
(c) Age Determinations.--In any case in which the age of an alien
is in question and the resolution of questions about the age of such
alien would affect the alien's eligibility for treatment under section
462 of the Homeland Security Act of 2002 (6 U.S.C. 279) or this Act, a
determination of whether or not such alien meets such age requirements
shall be made by the Director in accordance with section 105.
SEC. 102. FAMILY REUNIFICATION FOR UNACCOMPANIED ALIEN CHILDREN WITH
RELATIVES IN THE UNITED STATES.
(a) Placement Authority.--
(1) Order of preference.--Subject to the discretion of the
Director under section 462(b)(2) of the Homeland Security Act
of 2002 (6 U.S.C. 279(b)(2)) and under paragraph (4) of this
subsection and section 103(a)(2) of this Act, an unaccompanied
alien child in the custody of the Office shall be promptly
placed with 1 of the following individuals or entities in the
following order of preference:
(A) A parent who seeks to establish custody, as
described in paragraph (3)(A).
(B) A legal guardian who seeks to establish
custody, as described in paragraph (3)(A).
(C) An adult relative.
(D) An individual or entity designated by the
parent or legal guardian that is capable and willing to
care for the well-being of the child.
(E) A State-licensed juvenile shelter, group home,
or foster care program willing to accept physical
custody of the child.
(F) A qualified adult or entity seeking custody of
the child when it appears that there is no other likely
alternative to long-term detention and family
reunification does not appear to be a reasonable
alternative. For purposes of this subparagraph, the
Office shall decide who is a qualified adult or entity
and promulgate regulations in accordance with such
decision.
(2) Suitability assessment.--Notwithstanding paragraph (1),
no unaccompanied alien child shall be placed with a person or
entity unless a valid suitability assessment conducted by an
agency of the State of the child's proposed residence, by an
agency authorized by that State to conduct such an assessment,
or by an appropriate voluntary agency contracted with the
Office to conduct such assessments has found that the person or
entity is capable of providing for the child's physical and
mental well-being.
(3) Right of parent or legal guardian to custody of
unaccompanied alien child.--
(A) Placement with parent or legal guardian.--If an
unaccompanied alien child is placed with any person or
entity other than a parent or legal guardian, but
subsequent to that placement a parent or legal guardian
seeks to establish custody, the Director shall assess
the suitability of placing the child with the parent or
legal guardian and shall make a written determination
on the child's placement within 30 days.
(B) Rule of construction.--Nothing in this Act
shall be construed to--
(i) supersede obligations under any treaty
or other international agreement to which the
United States is a party, including The Hague
Convention on the Civil Aspects of
International Child Abduction, the Vienna
Declaration and Program of Action, and the
Declaration of the Rights of the Child; or
(ii) limit any right or remedy under such
international agreement.
(4) Protection from smugglers and traffickers.--
(A) Policies and programs.--
(i) In general.--The Director shall
establish policies and programs to ensure that
unaccompanied alien children are protected from
smugglers, traffickers, or other persons
seeking to victimize or otherwise engage such
children in criminal, harmful, or exploitative
activity.
(ii) Witness protection programs
included.--The programs established pursuant to
clause (i) may include witness protection
programs.
(B) Criminal investigations and prosecutions.--Any
officer or employee of the Office or the Department of
Homeland Security, and any grantee or contractor of the
Office, who suspects any individual of being involved
in any activity described in subparagraph (A) shall
report such individual to Federal or State prosecutors
for criminal investigation and prosecution.
(C) Disciplinary action.--Any officer or employee
of the Office or the Department of Homeland Security,
and any grantee or contractor of the Office, who
suspects an attorney of being involved in any activity
described in subparagraph (A) shall report the
individual to the State bar association of which the
attorney is a member, or to other appropriate
disciplinary authorities, for appropriate disciplinary
action that may include private or public admonition or
censure, suspension, or disbarment of the attorney from
the practice of law.
(5) Grants and contracts.--Subject to the availability of
appropriations, the Director may make grants to, and enter into
contracts with, voluntary agencies to carry out section 462 of
the Homeland Security Act of 2002 (6 U.S.C. 279) or to carry
out this section.
(6) Reimbursement of state expenses.--Subject to the
availability of appropriations, the Director may reimburse
States for any expenses they incur in providing assistance to
unaccompanied alien children who are served pursuant to section
462 of the Homeland Security Act of 2002 (6 U.S.C. 279) or this
Act.
(b) Confidentiality.--All information obtained by the Office
relating to the immigration status of a person described in
subparagraphs (A), (B), and (C) of subsection (a)(1) shall remain
confidential and may be used only for the purposes of determining such
person's qualifications under subsection (a)(1).
(c) Required Disclosure.--The Secretary of Health and Human
Services or the Secretary of Homeland Security shall provide the
information furnished under this section, and any other information
derived from such furnished information, to--
(1) a duly recognized law enforcement entity in connection
with an investigation or prosecution of an offense described in
paragraph (2) or (3) of section 212(a) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)), when such information is
requested in writing by such entity; or
(2) an official coroner for purposes of affirmatively
identifying a deceased individual (whether or not such
individual is deceased as a result of a crime).
(d) Penalty.--Whoever knowingly uses, publishes, or permits
information to be examined in violation of this section shall be fined
not more than $10,000.
SEC. 103. APPROPRIATE CONDITIONS FOR DETENTION OF UNACCOMPANIED ALIEN
CHILDREN.
(a) Standards for Placement.--
(1) Prohibition of detention in certain facilities.--Except
as provided in paragraph (2), an unaccompanied alien child
shall not be placed in an adult detention facility or a
facility housing delinquent children.
(2) Detention in appropriate facilities.--An unaccompanied
alien child who has exhibited a violent or criminal behavior
that endangers others may be detained in conditions appropriate
to the behavior in a facility appropriate for delinquent
children.
(3) State licensure.--In the case of a placement of a child
with an entity described in section 102(a)(1)(E), the entity
must be licensed by an appropriate State agency to provide
residential, group, child welfare, or foster care services for
dependent children.
(4) Conditions of detention.--
(A) In general.--The Director and the Secretary of
Homeland Security shall promulgate regulations
incorporating standards for conditions of detention in
such placements that provide for--
(i) educational services appropriate to the
child;
(ii) medical care;
(iii) mental health care, including
treatment of trauma, physical and sexual
violence, or abuse;
(iv) access to telephones;
(v) access to legal services;
(vi) access to interpreters;
(vii) supervision by professionals trained
in the care of children, taking into account
the special cultural, linguistic, and
experiential needs of children in immigration
proceedings;
(viii) recreational programs and
activities;
(ix) spiritual and religious needs; and
(x) dietary needs.
(B) Notification of children.--Regulations
promulgated in accordance with subparagraph (A) shall
provide that all children are notified orally and in
writing of such standards in the child's native
language.
(b) Prohibition of Certain Practices.--The Director and the
Secretary shall develop procedures prohibiting the unreasonable use
of--
(1) shackling, handcuffing, or other restraints on
children;
(2) solitary confinement; or
(3) pat or strip searches.
(c) Rule of Construction.--Nothing in this section shall be
construed to supersede procedures favoring release of children to
appropriate adults or entities or placement in the least secure setting
possible, as defined in the Stipulated Settlement Agreement under
Flores v. Reno.
SEC. 104. REPATRIATED UNACCOMPANIED ALIEN CHILDREN.
(a) Country Conditions.--
(1) Sense of congress.--It is the sense of Congress that,
to the extent consistent with the treaties and other
international agreements to which the United States is a party,
and to the extent practicable, the United States Government
should undertake efforts to ensure that it does not repatriate
children in its custody into settings that would threaten the
life and safety of such children.
(2) Assessment of conditions.--
(A) In general.--The Secretary of State shall
include each year in the State Department Country
Report on Human Rights, an assessment of the degree to
which each country protects children from smugglers and
traffickers.
(B) Factors for assessment.--The Directorate shall
consult the State Department Country Report on Human
Rights and the Victims of Trafficking and Violence
Protection Act of 2000: Trafficking in Persons Report
in assessing whether to repatriate an unaccompanied
alien child to a particular country.
(b) Report on Repatriation of Unaccompanied Alien Children.--
(1) In general.--Not later than 18 months after the date of
enactment of this Act, and annually thereafter, the Secretary
of Homeland Security shall submit a report to the Committees on
the Judiciary of the House of Representatives and the Senate on
efforts to repatriate unaccompanied alien children.
(2) Contents.--The report submitted under paragraph (1)
shall include, at a minimum, the following information:
(A) The number of unaccompanied alien children
ordered removed and the number of such children
actually removed from the United States.
(B) A description of the type of immigration relief
sought and denied to such children.
(C) A statement of the nationalities, ages, and
gender of such children.
(D) A description of the procedures used to effect
the removal of such children from the United States.
(E) A description of steps taken to ensure that
such children were safely and humanely repatriated to
their country of origin.
(F) Any information gathered in assessments of
country and local conditions pursuant to subsection
(a)(2).
SEC. 105. ESTABLISHING THE AGE OF AN UNACCOMPANIED ALIEN CHILD.
(a) In General.--The Director shall develop procedures to make a
prompt determination of the age of an alien in the custody of the
Department of Homeland Security or the Office, when the age of the
alien is at issue. Such procedures shall permit the presentation of
multiple forms of evidence, including testimony of the child, to
determine the age of the unaccompanied alien for purposes of placement,
custody, parole, and detention. Such procedures shall allow the appeal
of a determination to an immigration judge. The Secretary of Homeland
Security shall permit the Office to have reasonable access to aliens in
the custody of the Secretary so as to ensure a prompt determination of
the age of such alien.
(b) Prohibition on Sole Means of Determining Age.--Neither
radiographs nor the attestation of an alien shall be used as the sole
means of determining age for the purposes of determining an alien's
eligibility for treatment under section 462 of the Homeland Security
Act of 2002 (6 U.S.C. 279) or this Act.
(c) Rule of Construction.--Nothing in this section shall be
construed to place the burden of proof in determining the age of an
alien on the government.
SEC. 106. EFFECTIVE DATE.
This title shall take effect 90 days after the date of enactment of
this Act.
TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO GUARDIANS AD LITEM
AND COUNSEL
SEC. 201. GUARDIANS AD LITEM.
(a) Establishment of Guardian Ad Litem Program.--
(1) Appointment.--The Director may, in the Director's
discretion, appoint a guardian ad litem who meets the
qualifications described in paragraph (2) for an unaccompanied
alien child. The Director is encouraged, wherever practicable,
to contract with a voluntary agency for the selection of an
individual to be appointed as a guardian ad litem under this
paragraph.
(2) Qualifications of guardian ad litem.--
(A) In general.--No person shall serve as a
guardian ad litem unless such person--
(i) is a child welfare professional or
other individual who has received training in
child welfare matters; and
(ii) possesses special training on the
nature of problems encountered by unaccompanied
alien children.
(B) Prohibition.--A guardian ad litem shall not be
an employee of the Directorate, the Office, or the
Executive Office for Immigration Review.
(3) Duties.--The guardian ad litem shall--
(A) conduct interviews with the child in a manner
that is appropriate, taking into account the child's
age;
(B) investigate the facts and circumstances
relevant to such child's presence in the United States,
including facts and circumstances arising in the
country of the child's nationality or last habitual
residence and facts and circumstances arising
subsequent to the child's departure from such country;
(C) work with counsel to identify the child's
eligibility for relief from removal or voluntary
departure by sharing with counsel information collected
under subparagraph (B);
(D) develop recommendations on issues relative to
the child's custody, detention, release, and
repatriation;
(E) take reasonable steps to ensure that the best
interests of the child are promoted while the child
participates in, or is subject to, proceedings or
matters under the Immigration and Nationality Act (8
U.S.C. 1101 et seq.);
(F) take reasonable steps to ensure that the child
understands the nature of the legal proceedings or
matters and determinations made by the court, and
ensure that all information is conveyed in an age-
appropriate manner; and
(G) report factual findings relating to--
(i) information gathered pursuant to
subparagraph (B);
(ii) the care and placement of the child
during the pendency of the proceedings or
matters; and
(iii) any other information gathered
pursuant to subparagraph (D).
(4) Termination of appointment.--The guardian ad litem
shall carry out the duties described in paragraph (3) until--
(A) those duties are completed;
(B) the child departs the United States;
(C) the child is granted permanent resident status
in the United States;
(D) the child attains the age of 18; or
(E) the child is placed in the custody of a parent
or legal guardian;
whichever occurs first.
(5) Powers.--The guardian ad litem--
(A) shall have reasonable access to the child,
including access while such child is being held in
detention or in the care of a foster family;
(B) shall be permitted to review all records and
information relating to such proceedings that are not
deemed privileged or classified;
(C) may seek independent evaluations of the child;
(D) shall be notified in advance of all hearings or
interviews involving the child that are held in
connection with proceedings or matters under the
Immigration and Nationality Act (8 U.S.C. 1101 et
seq.), and shall be given a reasonable opportunity to
be present at such hearings or interviews;
(E) shall be permitted to consult with the child
during any hearing or interview involving such child;
and
(F) shall be provided at least 24 hours advance
notice of a transfer of that child to a different
placement, absent compelling and unusual circumstances
warranting the transfer of such child prior to
notification.
(b) Training.--The Director shall provide professional training for
all persons serving as guardians ad litem under this section in the--
(1) circumstances and conditions that unaccompanied alien
children face; and
(2) various immigration benefits for which such alien child
might be eligible.
(c) Pilot Program.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Director shall establish and begin
to carry out a pilot program to test the implementation of
subsection (a).
(2) Purpose.--The purpose of the pilot program established
pursuant to paragraph (1) is to--
(A) study and assess the benefits of providing
guardians ad litem to assist unaccompanied alien
children involved in immigration proceedings or
matters;
(B) assess the most efficient and cost-effective
means of implementing the guardian ad litem provisions
in this section; and
(C) assess the feasibility of implementing such
provisions on a nationwide basis for all unaccompanied
alien children in the care of the Office.
(3) Scope of program.--
(A) Selection of site.--The Director shall select 3
sites in which to operate the pilot program established
pursuant to paragraph (1).
(B) Number of children.--To the greatest extent
possible, each site selected under subparagraph (A)
should have at least 25 children held in immigration
custody at any given time.
(4) Report to congress.--Not later than 1 year after the
date on which the first pilot program is established pursuant
to paragraph (1), the Director shall report to the Committees
on the Judiciary of the Senate and the House of Representatives
on subparagraphs (A) through (C) of paragraph (2).
SEC. 202. COUNSEL.
(a) Access to Counsel.--
(1) In general.--The Director shall ensure that all
unaccompanied alien children in the custody of the Office, or
in the custody of the Directorate, who are not described in
section 101(a)(2) shall have competent counsel to represent
them in immigration proceedings or matters.
(2) Pro bono representation.--To the maximum extent
practicable, the Director shall utilize the services of
competent pro bono counsel who agree to provide representation
to such children without charge. To the maximum extent
practicable, the Director shall ensure that placements made
under subparagraphs (D), (E), and (F) of section 102(a)(1) are
in cities where there is a demonstrated capacity for competent
pro bono representation.
(3) Development of necessary infrastructures and systems.--
In ensuring that legal representation is provided to such
children, the Director shall develop the necessary mechanisms
to identify entities available to provide such legal assistance
and representation and to recruit such entities.
(4) Contracting and grant making authority.--
(A) In general.--The Director shall enter into
contracts with or make grants to nonprofit agencies
with relevant expertise in the delivery of immigration-
related legal services to children in order to carry
out the responsibilities of this Act, including but not
limited to such activities as providing legal
orientation, screening cases for referral, recruiting,
training, and overseeing pro bono attorneys. Nonprofit
agencies may enter into subcontracts with or make
grants to private voluntary agencies with relevant
expertise in the delivery of immigration-related legal
services to children in order to carry out this
subsection.
(B) Considerations regarding grants and
contracts.--In making grants and entering into
contracts with agencies in accordance with subparagraph
(A), the Director shall take into consideration whether
the agencies in question are capable of properly
administering the services covered by such grants or
contracts without an undue conflict of interest.
(5) Model guidelines on legal representation of children.--
(A) 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 based on the
children's asylum guidelines, the American Bar
Association Model Rules of Professional Conduct, and
other relevant domestic or international sources.
(B) Purpose of guidelines.--The guidelines
developed in accordance with subparagraph (A) shall be
designed to help protect a 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.
(C) Implementation.--The Executive Office for
Immigration Review shall adopt the guidelines developed
in accordance with subparagraph (A) and submit them for
adoption by national, State, and local bar
associations.
(b) Duties.--Counsel 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 Directorate;
(2) appear in person for all individual merits hearings
before the Executive Office for Immigration Review and
interviews involving the Directorate; and
(3) owe the same duties of undivided loyalty,
confidentiality, and competent representation to the child as
is due an adult client.
(c) Access to Child.--
(1) In general.--Counsel shall have reasonable access to
the unaccompanied alien child, including access while the child
is being held in detention, in the care of a foster family, or
in any other setting that has been determined by the Office.
(2) Restriction on transfers.--Absent compelling and
unusual circumstances, no child who is represented by counsel
shall be transferred from the child's placement to another
placement unless advance notice of at least 24 hours is made to
counsel of such transfer.
(d) Notice to Counsel During Immigration Proceedings.--
(1) In general.--Except when otherwise required in an
emergency situation involving the physical safety of the child,
counsel shall be given prompt and adequate notice of all
immigration matters affecting or involving an unaccompanied
alien child, including adjudications, proceedings, and
processing, before such actions are taken.
(2) Opportunity to consult with counsel.--An unaccompanied
alien child in the custody of the Office may not give consent
to any immigration action, including consenting to voluntary
departure, unless first afforded an opportunity to consult with
counsel.
(e) Access to Recommendations of Guardian Ad Litem.--Counsel shall
be afforded an opportunity to review the recommendation by the guardian
ad litem affecting or involving a client who is an unaccompanied alien
child.
SEC. 203. EFFECTIVE DATE; APPLICABILITY.
(a) Effective Date.--This title shall take effect 180 days after
the date of enactment of this Act.
(b) Applicability.--The provisions of this title shall apply to all
unaccompanied alien children in Federal custody on, before, or after
the effective date of this title.
TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN
CHILDREN
SEC. 301. SPECIAL IMMIGRANT JUVENILE VISA.
(a) J Visa.--Section 101(a)(27)(J) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(27)(J)) is amended to read as
follows:
``(J) an immigrant who is 18 years of age and under on the
date of application who is present in the United States--
``(i) who by a court order, which shall be binding
on the Secretary of Homeland Security for purposes of
adjudications under this subparagraph, was declared
dependent on a juvenile court located in the United
States or whom such a court has legally committed to,
or placed under the custody of, a department or agency
of a State, or an individual or entity appointed by a
State or juvenile court located in the United States,
due to abuse, neglect, or abandonment, or a similar
basis found under State law;
``(ii) for whom it has been determined in
administrative or judicial proceedings that it would
not be in the alien's best interest to be returned to
the alien's or parent's previous country of nationality
or country of last habitual residence; and
``(iii) with respect to a child in Federal custody,
for whom the Office of Refugee Resettlement of the
Department of Health and Human Services has certified
to the Director of the Bureau of Citizenship and
Immigration Services that the classification of an
alien as a special immigrant under this subparagraph
has not been made solely to provide an immigration
benefit to that alien;
except that no natural parent or prior adoptive parent of any
alien provided special immigrant status under this subparagraph
shall thereafter, by virtue of such parentage, be accorded any
right, privilege, or status under this Act;''.
(b) Adjustment of Status.--Section 245(h)(2)(A) of the Immigration
and Nationality Act (8 U.S.C. 1255(h)(2)(A)) is amended to read as
follows:
``(A) paragraphs (4), (5)(A), (6)(A), and (7) of
section 212(a) shall not apply; and''.
(c) Eligibility for Assistance.--A child who has been granted
relief under section 101(a)(27)(J) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(27)(J)), shall be eligible for all funds made
available under section 412(d) of that Act (8 U.S.C. 1522(d)) until
such time as the child attains the age designated in section
412(d)(2)(B) of that Act (8 U.S.C. 1522(d)(2)(B)), or until the child
is placed in a permanent adoptive home, whichever occurs first.
(d) Transition Rule.--Notwithstanding any other provision of law,
any child described in section 101(a)(27)(J) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(27)(J)) who filed an application for
a visa before the date of enactment of this Act and who was 19, 20, or
21 years of age on the date such application was filed shall not be
denied a visa after the date of enactment of this Act because of such
alien's age.
SEC. 302. TRAINING FOR OFFICIALS AND CERTAIN PRIVATE PARTIES WHO COME
INTO CONTACT WITH UNACCOMPANIED ALIEN CHILDREN.
(a) Training of State and Local Officials and Certain Private
Parties.--The Secretary of Health and Human Services, acting jointly
with the Secretary, shall provide appropriate training to be available
to State and county officials, child welfare specialists, teachers,
public counsel, and juvenile judges who come into contact with
unaccompanied alien children. The training shall provide education on
the processes pertaining to unaccompanied alien children with pending
immigration status and on the forms of relief potentially available.
The Director shall be responsible for establishing a core curriculum
that can be incorporated into education, training, or orientation
modules or formats that are currently used by these professionals.
(b) Training of Directorate Personnel.--The Secretary, acting
jointly with the Secretary of Health and Human Services, shall provide
specialized training to all personnel of the Directorate who come into
contact with unaccompanied alien children. In the case of Border Patrol
agents and immigration inspectors, such training shall include specific
training on identifying children at the United States borders or at
United States ports of entry who have been victimized by smugglers or
traffickers, and children for whom asylum or special immigrant relief
may be appropriate, including children described in section 101(a)(2).
SEC. 303. REPORT.
Not later than 1 year after the date of enactment of this Act and
annually thereafter, the Secretary of Health and Human Services shall
submit a report for the previous fiscal year to the Committees on the
Judiciary of the House of Representatives and the Senate that
contains--
(1) data related to the implementation of section 462 of
the Homeland Security Act (6 U.S.C. 279);
(2) data regarding the care and placement of children in
accordance with this Act;
(3) data regarding the provision of guardian ad litem and
counsel services in accordance with this Act; and
(4) any other information that the Director or the
Secretary of Health and Human Services determines to be
appropriate.
SEC. 304. EFFECTIVE DATE.
The amendment made by section 301 shall apply to all aliens who
were in the United States before, on, or after the date of enactment of
this Act.
TITLE IV--CHILDREN REFUGEE AND ASYLUM SEEKERS
SEC. 401. GUIDELINES FOR CHILDREN'S ASYLUM CLAIMS.
(a) Sense of Congress.--Congress commends the Immigration and
Naturalization Service for its issuance of its ``Guidelines for
Children's Asylum Claims'', dated December 1998, and encourages and
supports the implementation of such guidelines by the Immigration and
Naturalization Service (and its successor entities) in an effort to
facilitate the handling of children's asylum claims. Congress calls
upon the Executive Office for Immigration Review of the Department of
Justice to adopt the ``Guidelines for Children's Asylum Claims'' in its
handling of children's asylum claims before immigration judges and the
Board of Immigration Appeals.
(b) Training.--The Secretary shall provide periodic comprehensive
training under the ``Guidelines for Children's Asylum Claims'' to
asylum officers, immigration judges, members of the Board of
Immigration Appeals, and immigration officers who have contact with
children in order to familiarize and sensitize such officers to the
needs of children asylum seekers. Voluntary agencies shall be allowed
to assist in such training.
SEC. 402. UNACCOMPANIED REFUGEE CHILDREN.
(a) Identifying Unaccompanied Refugee Children.--Section 207(e) of
the Immigration and Nationality Act (8 U.S.C. 1157(e)) is amended--
(1) by redesignating paragraphs (3), (4), (5), (6), and (7)
as paragraphs (4), (5), (6), (7), and (8), respectively; and
(2) by inserting after paragraph (2) the following:
``(3) An analysis of the worldwide situation faced by
unaccompanied refugee children, by region, which shall include
an assessment of--
``(A) the number of unaccompanied refugee children,
by region;
``(B) the capacity of the Department of State to
identify such refugees;
``(C) the capacity of the international community
to care for and protect such refugees;
``(D) the capacity of the voluntary agency
community to resettle such refugees in the United
States;
``(E) the degree to which the United States plans
to resettle such refugees in the United States in the
coming fiscal year; and
``(F) the fate that will befall such unaccompanied
refugee children for whom resettlement in the United
States is not possible.''.
(b) Training on the Needs of Unaccompanied Refugee Children.--
Section 207(f)(2) of the Immigration and Nationality Act (8 U.S.C.
1157(f)(2)) is amended by--
(1) striking ``and'' after ``countries,''; and
(2) inserting before the period at the end the following:
``, and instruction on the needs of unaccompanied refugee
children''.
SEC. 403. EXCEPTIONS FOR UNACCOMPANIED ALIEN CHILDREN IN ASYLUM AND
REFUGEE-LIKE CIRCUMSTANCES.
(a) Placement in Removal Proceedings.--Any unaccompanied alien
child apprehended by the Directorate, except for an unaccompanied alien
child subject to exceptions under paragraph (1)(A) or (2) of section
(101)(a) of this Act, shall be placed in removal proceedings under
section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a).
(b) Exception From Time Limit for Filing Asylum Application.--
Section 208(a)(2) of the Immigration and Nationality Act (8 U.S.C.
1158(a)(2)) is amended by adding at the end the following:
``(E) Applicability.--Subparagraphs (A) and (B)
shall not apply to an unaccompanied alien child as
defined in section 101(a)(51).''.
TITLE V--AUTHORIZATION OF APPROPRIATIONS
SEC. 501. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated to the
Department of Homeland Security, the Department of Justice, and the
Department of Health and Human Services, such sums as may be necessary
to carry out--
(1) section 462 of the Homeland Security Act of 2002 (6
U.S.C. 279); and
(2) this Act.
(b) Availability of Funds.--Amounts appropriated pursuant to
subsection (a) are authorized to remain available until expended.
TITLE VI--AMENDMENTS TO THE HOMELAND SECURITY ACT OF 2002
SEC. 601. ADDITIONAL RESPONSIBILITIES AND POWERS OF THE OFFICE OF
REFUGEE RESETTLEMENT WITH RESPECT TO UNACCOMPANIED ALIEN
CHILDREN.
(a) Additional Responsibilities of the Director.--Section 462(b)(1)
of the Homeland Security Act of 2002 (6 U.S.C. 279(b)(1)) is amended--
(1) in subparagraph (K), by striking ``and'' at the end;
(2) in subparagraph (L), by striking the period at the end
and inserting ``, including regular follow-up visits to such
facilities, placements, and other entities, to assess the
continued suitability of such placements; and''; and
(3) by adding at the end the following:
``(M) ensuring minimum standards of care for all
unaccompanied alien children--
``(i) for whom detention is necessary; and
``(ii) who reside in settings that are alternative
to detention.''.
(b) Additional Powers of the Director.--Section 462(b) of the
Homeland Security Act of 2002 (6 U.S.C. 279(b)) is amended by adding at
the end the following:
``(4) Powers.--In carrying out the duties under paragraph
(3), the Director shall have the power to--
``(A) contract with service providers to perform
the services described in sections 102, 103, 201, and
202 of the Unaccompanied Alien Child Protection Act of
2004; and
``(B) compel compliance with the terms and
conditions set forth in section 103 of the
Unaccompanied Alien Child Protection Act of 2004,
including the power to--
``(i) declare providers to be in breach and
seek damages for noncompliance;
``(ii) terminate the contracts of providers
that are not in compliance with such
conditions; and
``(iii) reassign any unaccompanied alien
child to a similar facility that is in
compliance with such section.''.
SEC. 602. TECHNICAL CORRECTIONS.
Section 462(b) of the Homeland Security Act of 2002 (6 U.S.C.
279(b)), as amended by section 601, is amended--
(1) in paragraph (3), by striking ``paragraph (1)(G)'' and
inserting ``paragraph (1)''; and
(2) by adding at the end the following:
``(5) Statutory construction.--Nothing in paragraph (2)(B)
may be construed to require that a bond be posted for
unaccompanied alien children who are released to a qualified
sponsor.''.
SEC. 603. EFFECTIVE DATE.
The amendments made by this title shall take effect as if enacted
as part of the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.).
Passed the Senate October 11, 2004.
Attest:
EMILY J. REYNOLDS,
Secretary.