[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 119 Engrossed in Senate (ES)]
109th CONGRESS
1st Session
S. 119
_______________________________________________________________________
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 2005''.
(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 CHILD ADVOCATES AND
COUNSEL
Sec. 201. Child advocates.
Sec. 202. Counsel.
Sec. 203. Preservation of law enforcement authority.
Sec. 204. Effective date; applicability.
TITLE III--STRENGTHENING POLICIES FOR PERMANENT PROTECTION OF ALIEN
CHILDREN
Sec. 301. Special immigrant juvenile classification.
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, or a representative authorized to
represent unaccompanied alien children in immigration
proceedings or matters, who--
(A) complies with the duties set forth in this Act;
(B)(i) is properly qualified to handle matters
involving unaccompanied alien children; or
(ii) is working under the auspices of a qualified
nonprofit organization that is experienced in handling
such matters; and
(C) if an attorney--
(i) is a member in good standing of the bar
of the highest court of any State, possession,
territory, Commonwealth, or the District of
Columbia; and
(ii) is not under any order of any court
suspending, enjoining, restraining, disbarring,
or otherwise restricting the attorney in the
practice of law.
(2) Department.--The term ``Department'' means the
Department of Homeland Security.
(3) Director.--The term ``Director'' means the Director of
the Office.
(4) 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).
(5) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
(6) 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)).
(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.
(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 available 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 this
subparagraph;
(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, and shall be
informed of that right in the child's native language--
(i) to consult with a consular officer from
the child's country of nationality or country
of last habitual residence prior to
repatriation; and
(ii) to consult, telephonically, with the
Office.
(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
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
Department 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
Department 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 Department is an unaccompanied
alien child;
(iii) any claim by an alien in the custody
of the Department that such alien is under the
age of 18; or
(iv) any suspicion that an alien in the
custody of the Department 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 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
Department pursuant to subparagraph (B) or (C)
of paragraph (1), 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 department.--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 Department.
(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 in accordance with section 105, unless otherwise
specified in subsection (b)(2)(B).
(d) Access to Alien.--The Secretary of Homeland Security shall
permit the Office to have reasonable access to aliens in the custody of
the Secretary to ensure a prompt determination of the age of such
alien, if necessary under subsection (b)(2)(B).
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 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) 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 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.--
(A) General requirements.--Notwithstanding
paragraph (1), and subject to the requirements of
subparagraph (B), no unaccompanied alien child shall be
placed with a person or entity described in any of
subparagraphs (A) through (F) of paragraph (1) unless
the Director certifies, in writing, that the proposed
custodian is capable of providing for the child's
physical and mental well-being, based on--
(i) with respect to an individual
custodian--
(I) verification of such
individual's identity and employment;
(II) a finding that such individual
has not engaged in any activity that
would indicate a potential risk to the
child, including the activities
described in paragraph (4)(A);
(III) a finding that such
individual has no open investigation by
a state or local child protective
services authority due to suspected
child abuse or neglect;
(IV) verification that such
individual has a plan for the provision
of care for the child; and
(V) verification of familial
relationship of such individual, if any
relationship is claimed; and
(ii) verification of nature and extent of
previous relationship;
(iii) with respect to a custodial entity,
verification of such entity's appropriate
licensure by the State, county, or other
applicable unit of government; and
(iv) such other information as the Director
determines appropriate.
(B) Home study.--
(i) In general.--A home study shall be
conducted prior to release with respect to each
proposed custodian described in any of
subparagraphs (A) through (F) of paragraph (1)
unless waived by the Director.
(ii) Special needs children.--In the case
of a special needs child with a disability (as
defined in section 3 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12102(2)),
a home study shall be conducted to determine if
the child's needs can be properly met by the
custodian.
(C) Contract authority.--The Director may, by grant
or contract, arrange for some or all of the activities
under this section to be carried out by--
(i) an agency of the State of the child's
proposed residence;
(ii) an agency authorized by such State to
conduct such activities; or
(iii) an appropriate voluntary or nonprofit
agency.
(D) Database access.--In conducting suitability
assessments, the Director shall be given access to all
relevant information in the appropriate Federal, State,
and local law enforcement and immigration databases.
(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, and
subsequent to that placement a parent or legal guardian
seeks to establish custody, the Director shall--
(i) assess the suitability of placing the
child with the parent or legal guardian; and
(ii) 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.--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 involvement 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 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.
(5) 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).
(6) 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).
(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 such behavior in a facility appropriate for delinquent
children.
(3) 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.
(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 under subparagraph (A) shall provide that
all children are notified of such standards orally and
in writing 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 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.
(B) Factors for assessment.--The Department 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.
(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
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.
(2) Contents.--The report submitted under paragraph (1)
shall include--
(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; and
(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) Procedures.--
(1) In general.--The Director shall develop procedures, in
consultation with the Secretary, to make a prompt determination
of the age of an alien, to be used--
(A) by the Department, with respect to aliens in
the custody of the Department; and
(B) by the Office, with respect to aliens in the
custody of the Office.
(2) Evidence.--The procedures developed under paragraph (1)
shall--
(A) permit the presentation of multiple forms of
evidence, including testimony of the alien, to
determine the age of the unaccompanied alien for
purposes of placement, custody, parole, and detention;
and
(B) allow the appeal of a determination to an
immigration judge.
(b) 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).
(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 on the date which is 90 days after the
date of enactment of this Act.
TITLE II--ACCESS BY UNACCOMPANIED ALIEN CHILDREN TO CHILD ADVOCATES AND
COUNSEL
SEC. 201. CHILD ADVOCATES.
(a) Establishment of Child Advocate Program.--
(1) Appointment.--The Director may appoint a child
advocate, 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
child advocate under this paragraph.
(2) Qualifications of child advocate.--
(A) In general.--No person shall serve as a child
advocate 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 child advocate shall not be an
employee of the Department, the Office, or the
Executive Office for Immigration Review.
(3) Duties.--The child advocate 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 the child's presence in the United States,
including facts and circumstances--
(i) arising in the country of the child's
nationality or last habitual residence; and
(ii) 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--
(i) 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.);
(ii) 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
(F) report factual findings relating to--
(i) information collected under
subparagraph (B);
(ii) the care and placement of the child
during the pendency of the proceedings or
matters; and
(iii) any other information collected under
subparagraph (D).
(4) Termination of appointment.--The child advocate shall
carry out the duties described in paragraph (3) until the
earliest of the date on which--
(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.
(5) Powers.--The child advocate--
(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 before such
notification.
(b) Training.--
(1) In general.--The Director shall provide professional
training for all persons serving as guardians ad litem under
this section.
(2) Training topics.--The training provided under paragraph
(1) shall include training in--
(A) the circumstances and conditions that
unaccompanied alien children face; and
(B) 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
under 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 child advocate 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
under 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 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.
SEC. 202. COUNSEL.
(a) Access to Counsel.--
(1) In general.--The Director should ensure, to the extent
practicable that all unaccompanied alien children in the
custody of the Office or the Department, who are not described
in section 101(a)(2), have competent counsel to represent them
in immigration proceedings or matters.
(2) Pro bono representation.--To the maximum extent
practicable, the Director should--
(A) make every effort to utilize the services of
competent pro bono counsel who agree to provide
representation to such children without charge; and
(B) 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.--
For purposes of this subsection, 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 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.
(B) 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.
(C) 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.
(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. 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.
(B) 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.
(C) 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.
(b) Duties.--Counsel 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;
(2) appear in person for all individual merits hearings
before the Executive Office for Immigration Review and
interviews involving the Department; 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 Child Advocate.--Counsel shall be
given an opportunity to review the recommendation by the child advocate
affecting or involving a client who is an unaccompanied alien child.
(f) Counsel for Unaccompanied Alien Children.--Nothing in this Act
requires the United States to pay for counsel to any unaccompanied
alien child.
SEC. 203. PRESERVATION OF LAW ENFORCEMENT AUTHORITY.
(a) In General.--The child advocate or counsel appointed under this
title shall not interfere with Federal investigators or prosecutors in
a Federal criminal investigation or prosecution in which the child is a
victim or witness.
(b) Definition.--In subsection (a), the term ``interfere with''
shall include--
(1) restricting access to a victim or witness;
(2) encouraging noncooperation with Federal investigators
or prosecutors; and
(3) being present during interviews of the child by Federal
investigators or prosecutors without the permission of the
investigators or prosecutors.
SEC. 204. 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 CLASSIFICATION.
(a) J Classification.--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 or younger on
the date of application for the classification and who is
present in the United States--
``(i) who by a court order supported by written
findings of fact, 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 has been 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, and who
has been deemed eligible by that court for long-term
foster care due to abuse, neglect, abandonment, or a
similar basis found under State law;
``(ii) for whom it has been determined by written
findings of fact 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 U.S. 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), (7)(A), 9(B),
and 9(C)(i)(I) 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)), may be eligible for 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
special immigrant juvenile classification 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 such classification 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.--
(1) In general.--The Secretary of Health and Human
Services, acting jointly with the Secretary, shall provide
appropriate training materials, and if requested, direct
training, to State and county officials, child welfare
specialists, teachers, public counsel, and juvenile judges who
come into contact with unaccompanied alien children.
(2) 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.
(3) Video conferencing.--If direct training is requested
under this subsection, such training may be conducted through
video conferencing.
(b) Training of Department Personnel.--The Secretary, acting
jointly with the Secretary of Health and Human Services, shall provide
specialized training to all personnel of the Department 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).
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 Committee on the
Judiciary of the Senate and the Committee on the Judiciary of the House
of Representatives 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 child advocate and
counsel services under 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--
(1) commends the former 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
Department in an effort to facilitate the handling of
children's affirmative asylum claims;
(2) commends the Executive Office for Immigration Review of
the Department of Justice for its issuance of its ``Guidelines
for Immigration Court Cases Involving Unaccompanied Alien
Children'', dated September 2004, and encourages and supports
the continued implementation of such guidelines by the
Executive Office for Immigration Review in its handling of
children's asylum claims before immigration judges; and
(3) understands that the guidelines described in paragraph
(2) do not specifically address the issue of asylum claims, but
go to the broader issue of unaccompanied alien children in
general.
(b) Training.--
(1) Immigration officers.--The Secretary shall provide
periodic comprehensive training under the ``Guidelines for
Children's Asylum Claims'' to asylum officers and immigration
officers who have contact with children in order to familiarize
and sensitize such officers to the needs of children asylum
seekers.
(2) Immigration judges.--The Executive Office for
Immigration Review shall--
(A) provide periodic comprehensive training under
the ``Guidelines for Immigration Court Cases Involving
Unaccompanied Alien Children'' and the ``Guidelines for
Children's Asylum Claims'' to immigration judges and
members of the Board of Immigration Appeals; and
(B) redistribute to all Immigration Courts the
``Guidelines for Children's Asylum Claims'' as part of
its training of immigration judges.
(3) Use of voluntary agencies.--Voluntary agencies shall be
allowed to assist in the training described in this subsection.
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 Department, 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).
(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) the provisions of section 462 of the Homeland Security
Act of 2002 (6 U.S.C. 279); and
(2) the provisions of this Act.
(b) Availability of Funds.--Amounts appropriated pursuant to
subsection (a) shall 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) Authority.--In carrying out the duties under
paragraph (3), the Director is authorized 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
2005; and
``(B) 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--
``(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 included
in the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.).
Passed the Senate December 22 (legislative day, December
21), 2005.
Attest:
Secretary.
109th CONGRESS
1st Session
S. 119
_______________________________________________________________________
AN ACT
To provide for the protection of unaccompanied alien children, and for
other purposes.