I
109th CONGRESS
1st Session
H. R. 1172
IN THE HOUSE OF REPRESENTATIVES
March 8, 2005
Ms. Zoe Lofgren of California (for herself, Mr. Cannon, Mr. Berman, Mr. Smith of New Jersey, Mr. Conyers, and Ms. Hart) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To provide for the protection of unaccompanied alien children, and for other purposes.
Short title; table of contents
Short title
This Act may be cited as the Unaccompanied Alien Child Protection Act of 2005
.
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
Definitions
In general
In this Act:
Competent
The term competent, in reference to counsel, means an attorney who—
complies with the duties set forth in this Act;
is a member in good standing of the bar of the highest court of any State, possession, territory, Commonwealth, or the District of Columbia;
is not under any order of any court suspending, enjoining, restraining, disbarring, or otherwise restricting the attorney in the practice of law; and
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.
Director
The term Director means the Director of the Office.
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).
Office
The term Office means the Office of Refugee Resettlement established by section 411 of the Immigration and Nationality Act (8 U.S.C. 1521).
Secretary
The term Secretary means the Secretary of Homeland Security.
Unaccompanied alien child
The term unaccompanied alien child has the meaning given the term in section 462(g)(2) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)(2)).
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.
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:
The term unaccompanied alien child means a child who—
has no lawful immigration status in the United States;
has not attained the age of 18; and
with respect to whom—
there is no parent or legal guardian in the United States; or
no parent or legal guardian in the United States is able to provide care and physical custody.
The term unaccompanied refugee children means persons described in paragraph (42) who—
have not attained the age of 18; and
with respect to whom there are no parents or legal guardians available to provide care and physical custody.
.
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.
Custody, release, family reunification, and detention
Procedures when encountering unaccompanied alien children
Unaccompanied children found along the United States border or at United States ports of entry
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—
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
return such child to the child’s country of nationality or country of last habitual residence.
Special rule for contiguous countries
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—
such child is a national or habitual resident of a country described in this subparagraph;
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;
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
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.
Right of consultation
Any child described in subparagraph (A) shall have the right, and shall be informed of that right in the child’s native language—
to consult with a consular officer from the child’s country of nationality or country of last habitual residence prior to repatriation; and
to consult, telephonically, with the Office.
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 subsection (b).
Care and custody of unaccompanied alien children found in the interior of the United States
Establishment of jurisdiction
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.
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—
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
has been convicted of any such felony.
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.
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.
Notification
In general
The Secretary shall promptly notify the Office upon—
the apprehension of an unaccompanied alien child;
the discovery that an alien in the custody of the Directorate is an unaccompanied alien child;
any claim by an alien in the custody of the Directorate that such alien is under the age of 18; or
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.
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 such alien is eligible for treatment under section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279) or this Act.
Transfer of unaccompanied alien children
Transfer to the office
The care and custody of an unaccompanied alien child shall be transferred to the Office—
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;
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
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.
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.
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.
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.
Family reunification for unaccompanied alien children with relatives in the United States
Placement authority
Order of preference
Subject to the discretion of the Director under paragraph (4), section 103(a)(2), and section 462(b)(2) of the Homeland Security Act of 2002 (6 U.S.C. 279(b)(2)), 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 parent who seeks to establish custody, as described in paragraph (3)(A).
A legal guardian who seeks to establish custody, as described in paragraph (3)(A).
An adult relative.
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.
A State-licensed juvenile shelter, group home, or foster care program willing to accept physical custody of the child.
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.
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.
Right of parent or legal guardian to custody of unaccompanied alien child
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, and 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
make a written determination on the child’s placement within 30 days.
Rule of construction
Nothing in this Act shall be construed to—
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
limit any right or remedy under such international agreement.
Protection from smugglers and traffickers
Policies and programs
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.
Witness protection programs included
Programs established pursuant to clause (i) may include witness protection programs.
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 involvement in any activity described in subparagraph (A) shall report such individual to Federal or State prosecutors for criminal investigation and prosecution.
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 involvement 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, which may include private or public admonition or censure, suspension, or disbarment of the attorney from the practice of law.
Grants and contracts
The Director may award grants to, and enter into contracts with, voluntary agencies to carry out this section or section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279).
Reimbursement of state expenses
The Director may reimburse States for any expenses they incur in providing assistance to unaccompanied alien children who are served pursuant to this Act or section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279).
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).
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—
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
an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).
Penalty
Whoever knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $10,000.
Appropriate conditions for detention of unaccompanied alien children
Standards for placement
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.
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 such behavior in a facility appropriate for delinquent children.
State licensure
A child shall not be placed with an entity described in section 102(a)(1)(E), unless the entity is licensed by an appropriate State agency to provide residential, group, child welfare, or foster care services for dependent children.
Conditions of detention
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—
educational services appropriate to the child;
medical care;
mental health care, including treatment of trauma, physical and sexual violence, or abuse;
access to telephones;
access to legal services;
access to interpreters;
supervision by professionals trained in the care of children, taking into account the special cultural, linguistic, and experiential needs of children in immigration proceedings;
recreational programs and activities;
spiritual and religious needs; and
dietary needs.
Notification of children
Regulations promulgated under subparagraph (A) shall provide that all children are notified of such standards orally and in writing in the child’s native language.
Prohibition of certain practices
The Director and the Secretary shall develop procedures prohibiting the unreasonable use of—
shackling, handcuffing, or other restraints on children;
solitary confinement; or
pat or strip searches.
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.
Repatriated unaccompanied alien children
Country conditions
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.
Assessment of conditions
In general
The annual Country Reports on Human Rights Practices published by the Department of State shall contain an assessment of the degree to which each country protects children from smugglers and traffickers.
Factors for assessment
The Directorate shall consult the Country Reports on Human Rights Practices and the Trafficking in Persons Report in assessing whether to repatriate an unaccompanied alien child to a particular country.
Report on repatriation of unaccompanied alien children
In general
Not later than 18 months after the date of enactment of this Act, and annually thereafter, the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on efforts to repatriate unaccompanied alien children.
Contents
The report submitted under paragraph (1) shall include—
the number of unaccompanied alien children ordered removed and the number of such children actually removed from the United States;
a description of the type of immigration relief sought and denied to such children;
a statement of the nationalities, ages, and gender of such children;
a description of the procedures used to effect the removal of such children from the United States;
a description of steps taken to ensure that such children were safely and humanely repatriated to their country of origin; and
any information gathered in assessments of country and local conditions pursuant to subsection (a)(2).
Establishing the age of an unaccompanied alien child
Procedures
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.
Evidence
The procedures developed under paragraph (1) 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; and
allow the appeal of a determination to an immigration judge.
Access to alien
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.
Prohibition on sole means of determining age
Radiographs or the attestation of an alien shall not be used as the sole means of determining age for the purposes of determining an alien’s eligibility for treatment under this Act or section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279).
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.
Effective date
This title shall take effect on the date which is 90 days after the date of enactment of this Act.
Access by unaccompanied alien children to guardians ad litem and counsel
Guardians ad litem
Establishment of guardian ad litem program
Appointment
The Director may 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.
Qualifications of guardian ad litem
In general
No person shall serve as a guardian ad litem unless such person—
is a child welfare professional or other individual who has received training in child welfare matters; and
possesses special training on the nature of problems encountered by unaccompanied alien children.
Prohibition
A guardian ad litem shall not be an employee of the Directorate, the Office, or the Executive Office for Immigration Review.
Duties
The guardian ad litem shall—
conduct interviews with the child in a manner that is appropriate, taking into account the child’s age;
investigate the facts and circumstances relevant to the 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
arising subsequent to the child’s departure from such country;
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);
develop recommendations on issues relative to the child’s custody, detention, release, and repatriation;
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.);
the child understands the nature of the legal proceedings or matters and determinations made by the court, and that all information is conveyed to the child in an age-appropriate manner; and
report factual findings relating to—
information collected under subparagraph (B);
the care and placement of the child during the pendency of the proceedings or matters; and
any other information collected under subparagraph (D).
Termination of appointment
The guardian ad litem shall carry out the duties described in paragraph (3) until the earliest of the date on which—
those duties are completed;
the child departs the United States;
the child is granted permanent resident status in the United States;
the child attains the age of 18; or
the child is placed in the custody of a parent or legal guardian.
Powers
The guardian ad litem—
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;
shall be permitted to review all records and information relating to such proceedings that are not deemed privileged or classified;
may seek independent evaluations of the child;
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;
shall be permitted to consult with the child during any hearing or interview involving such child; and
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 before such notification.
Training
In general
The Director shall provide professional training for all persons serving as guardians ad litem under this section.
Training topics
The training provided under paragraph (1) shall include training in—
the circumstances and conditions that unaccompanied alien children face; and
various immigration benefits for which such alien child might be eligible.
Pilot program
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).
Purpose
The purpose of the pilot program established under paragraph (1) is to—
study and assess the benefits of providing guardians ad litem to assist unaccompanied alien children involved in immigration proceedings or matters;
assess the most efficient and cost-effective means of implementing the guardian ad litem provisions in this section; and
assess the feasibility of implementing such provisions on a nationwide basis for all unaccompanied alien children in the care of the Office.
Scope of program
Selection of site
The Director shall select 3 sites in which to operate the pilot program established under paragraph (1).
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.
Report to congress
Not later than 1 year after the date on which the first pilot program site is established under paragraph (1), the Director shall submit a report on the achievement of the purposes described in paragraph (2) to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives.
Counsel
Access to counsel
In general
The Director should ensure that all unaccompanied alien children in the custody of the Office or the Directorate, who are not described in section 101(a)(2), have competent counsel to represent them in immigration proceedings or matters.
Pro bono representation
To the maximum extent practicable, the Director should—
make every effort to utilize the services of competent pro bono counsel who agree to provide representation to such children without charge; and
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.
Development of necessary infrastructures and systems
In ensuring that legal representation is provided to unaccompanied alien children, the Director shall develop the necessary mechanisms to identify entities available to provide such legal assistance and representation and to recruit such entities.
Contracting and grant making authority
In general
The Director shall enter into contracts with, or award 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 providing legal orientation, screening cases for referral, recruiting, training, and overseeing pro bono attorneys.
Subcontracting
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 subsection.
Considerations regarding grants and contracts
In awarding grants and entering into contracts with agencies under this paragraph, the Director shall take into consideration the capacity of the agencies in question to properly administer the services covered by such grants or contracts without an undue conflict of interest.
Model guidelines on legal representation of children
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. Such guidelines 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.
Purpose of guidelines
The guidelines developed under subparagraph (A) 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.
Implementation
The Executive Office for Immigration Review shall adopt the guidelines developed under subparagraph (A) and submit the guidelines for adoption by national, State, and local bar associations.
Duties
Counsel shall—
represent the unaccompanied alien child in all proceedings and matters relating to the immigration status of the child or other actions involving the Directorate;
appear in person for all individual merits hearings before the Executive Office for Immigration Review and interviews involving the Directorate; and
owe the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due an adult client.
Access to child
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.
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.
Notice to counsel during immigration proceedings
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.
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.
Access to recommendations of guardian ad litem
Counsel shall be given an opportunity to review the recommendation by the guardian ad litem affecting or involving a client who is an unaccompanied alien child.
Effective date; applicability
Effective date
This title shall take effect 180 days after the date of enactment of this Act.
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.
Strengthening policies for permanent protection of alien children
Special immigrant juvenile visa
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:
an immigrant, who is 18 years of age or younger on the date of application and who is present in the United States—
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, abandonment, or a similar basis found under State law;
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
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,
.
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:
paragraphs (4), (5)(A), (6)(A), and (7) of section 212(a) shall not apply; and
.
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.
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.
Training for officials and certain private parties who come into contact with unaccompanied alien children
Training of state and local officials and certain private parties
In general
The Secretary of Health and Human Services, acting jointly with the Secretary, shall provide appropriate training to State and county officials, child welfare specialists, teachers, public counsel, and juvenile judges who come into contact with unaccompanied alien children.
Curriculum
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.
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. Training for Border Patrol agents and immigration inspectors 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).
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 Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that contains—
data related to the implementation of section 462 of the Homeland Security Act (6 U.S.C. 279);
data regarding the care and placement of children in accordance with this Act;
data regarding the provision of guardian ad litem and counsel services under this Act; and
any other information that the Director or the Secretary of Health and Human Services determines to be appropriate.
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.
Children refugee and asylum seekers
Guidelines for Children’s Asylum Claims
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.
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.
Unaccompanied refugee children
Identifying unaccompanied refugee children
Section 207(e) of the Immigration and Nationality Act (8 U.S.C. 1157(e)) is amended—
by redesignating paragraphs (3), (4), (5), (6), and (7) as paragraphs (4), (5), (6), (7), and (8), respectively; and
by inserting after paragraph (2) the following:
An analysis of the worldwide situation faced by unaccompanied refugee children, by region, which shall include an assessment of—
the number of unaccompanied refugee children, by region;
the capacity of the Department of State to identify such refugees;
the capacity of the international community to care for and protect such refugees;
the capacity of the voluntary agency community to resettle such refugees in the United States;
the degree to which the United States plans to resettle such refugees in the United States in the coming fiscal year; and
the fate that will befall such unaccompanied refugee children for whom resettlement in the United States is not possible.
.
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—
striking and
after countries,
; and
inserting before the period at the end the following: , and instruction on the needs of unaccompanied refugee children
.
Exceptions for unaccompanied alien children in asylum and refugee-like circumstances
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), shall be placed in removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a).
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:
Applicability
Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child as defined in section 101(a)(51).
.
Authorization of appropriations
Authorization of appropriations
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—
the provisions of section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279); and
the provisions of this Act.
Availability of funds
Amounts appropriated pursuant to subsection (a) shall remain available until expended.
Amendments to the Homeland Security Act of 2002
Additional responsibilities and powers of the Office of Refugee Resettlement with respect to unaccompanied alien children
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—
in subparagraph (K), by striking and
at the end;
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
by adding at the end the following:
ensuring minimum standards of care for all unaccompanied alien children—
for whom detention is necessary; and
who reside in settings that are alternative to detention.
.
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:
Authority
In carrying out the duties under paragraph (3), the Director is authorized to—
contract with service providers to perform the services described in sections 102, 103, 201, and 202 of the Unaccompanied Alien Child Protection Act of 2005; and
compel compliance with the terms and conditions set forth in section 103 of the Unaccompanied Alien Child Protection Act of 2005, including the power to—
declare providers to be in breach and seek damages for noncompliance;
terminate the contracts of providers that are not in compliance with such conditions; and
reassign any unaccompanied alien child to a similar facility that is in compliance with such section.
.
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—
in paragraph (3), by striking paragraph (1)(G)
and inserting paragraph (1)
; and
by adding at the end the following:
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.
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Effective date
The amendments made by this title shall take effect as if included in the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.).