I
117th CONGRESS
2d Session
H. R. 9304
IN THE HOUSE OF REPRESENTATIVES
November 15, 2022
Mr. McEachin (for himself, Ms. Lofgren, Ms. Jackson Lee, Ms. Schakowsky, Ms. Bonamici, Ms. Newman, Ms. Brownley, Mr. McGovern, and Ms. Norton) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To amend the Immigration and Nationality Act to provide access to counsel for children and other vulnerable populations, and for other purposes.
Short title
This Act may be cited as the Funding Attorneys for Indigent Removal (FAIR) Proceedings Act
.
Improving immigration court efficiency and reducing costs by increasing access to legal information
Appointment of counsel in certain cases; right To review certain documents in removal proceedings
Section 240(b) of the Immigration and Nationality Act (8 U.S.C. 1229a(b)) is amended—
in paragraph (4)—
in subparagraph (A)—
by striking , at no expense to the Government,
; and
by striking the comma at the end and inserting a semicolon;
by redesignating subparagraphs (B) and (C) as subparagraphs (D) and (E), respectively;
by inserting after subparagraph (A) the following:
the Attorney General may appoint or provide counsel, at Government expense, to aliens in immigration proceedings;
the alien shall, at the beginning of the proceedings or as expeditiously as possible, automatically receive a complete copy of all relevant documents in the possession of the Department of Homeland Security, including all documents (other than documents protected from disclosure by privilege, including national security information referred to in subparagraph (D), law enforcement sensitive information, and information prohibited from disclosure pursuant to any other provision of law) contained in the file maintained by the Government that includes information with respect to all transactions involving the alien during the immigration process (commonly referred to as an A-file
), and all documents pertaining to the alien that the Department of Homeland Security has obtained or received from other government agencies, unless the alien waives the right to receive such documents by executing a knowing and voluntary written waiver in a language that he or she understands fluently;
; and
in subparagraph (D), as redesignated, by striking , and
and inserting ; and
; and
by adding at the end the following:
Failure to provide alien required documents
In the absence of a waiver under paragraph (4)(C), a removal proceeding may not proceed until the alien—
has received the documents as required under such paragraph; and
has been provided meaningful time to review and assess such documents.
.
Clarification regarding the authority of the Attorney General To appoint counsel to aliens in immigration proceedings
Section 292 of the Immigration and Nationality Act (8 U.S.C. 1362) is amended—
by striking In any
and inserting the following:
In general
In any proceeding conducted under section 235, 236, 238, 240, 241, or any other section of this Act, including
;
in subsection (a), as redesignated—
by striking (at no expense to the Government)
; and
by striking he shall
and inserting the person shall
; and
by adding at the end the following:
Access to counsel
The Attorney General may appoint or provide counsel to aliens in any proceeding conducted under section 235, 236, 238, 240, or 241 or any other section of this Act. The Secretary of Homeland Security shall ensure that aliens have access to counsel inside all immigration detention and border facilities.
.
Appointment of counsel for children and vulnerable aliens
In general
Section 292 of the Immigration and Nationality Act (8 U.S.C. 1362), as amended by subsection (b), is further amended by adding at the end the following:
Children and vulnerable aliens
Notwithstanding subsection (b), the Attorney General shall appoint or provide counsel, at the expense of the Government if necessary, at the beginning of the proceedings or as expeditiously as possible, to represent in such proceedings any alien who has been determined by the Secretary of Homeland Security or the Attorney General to be—
a child (as defined in section 101(b)(1) of this Act);
a particularly vulnerable individual, such as—
a person with a disability; or
a victim of abuse, torture, or violence;
an individual whose income is at or below 200 percent of the poverty line (as defined by the Office of Management and Budget and revised annually in accordance with section 673(2) of the Community Services Block Grant Act (42 U.S.C. 9902(2))) applicable to a family of the size involved; or
an individual whose circumstances are such that the appointment of counsel is necessary to help ensure fair resolution and efficient adjudication of the proceedings.
Extension to consolidated cases
If the Attorney General has consolidated the case of any alien for whom counsel was appointed under subsection (c) with that of any other alien, and that other alien does not have counsel, then the counsel appointed under subsection (c) shall be appointed to represent such other alien.
Authorization of appropriations
There is authorized to be appropriated to the Executive Office of Immigration Review of the Department of Justice, in addition to amounts available in the Immigration Counsel Account under section 295, such sums as may be necessary to carry out this section.
.
Rulemaking
The Attorney General shall promulgate regulations to implement section 292(c) of the Immigration and Nationality Act, as added by paragraph (1), in accordance with the requirements set forth in section 3006A of title 18, United States Code.
Access by counsel and legal orientation at detention facilities
Access to counsel
The Secretary of Homeland Security shall facilitate access to counsel for all aliens detained in facilities under the supervision of U.S. Immigration and Customs Enforcement or of U.S. Customs and Border Protection, including providing information to aliens in detention about legal services programs at detention facilities.
Access to legal orientation programs
The Secretary of Homeland Security, in consultation with the Attorney General, shall establish procedures to ensure that legal orientation programs are available for all detained aliens, including aliens held in U.S. Customs and Border Protection facilities, to inform such aliens of the basic procedures of immigration hearings, their rights relating to those hearings under Federal immigration laws, information that may deter such aliens from filing frivolous legal claims, and any other information that the Attorney General considers appropriate, such as a contact list of potential legal resources and providers. Access to legal orientation programs shall not be limited by the alien’s current immigration status, prior immigration history, or potential for immigration relief.
Report on access to counsel
Report
Not later than December 31 of each year, the Secretary of Homeland Security, in consultation with the Attorney General, shall prepare and submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives regarding the extent to which aliens described in section 292(c) of the Immigration and Nationality Act, as added by section 2(c)(1), have been provided access to counsel.
Contents
Each report submitted under paragraph (a) shall include, for the immediately preceding 1-year period—
the number and percentage of aliens described in paragraphs (1), (2), (3), and (4), respectively, of section 292(c) of the Immigration and Nationality Act, as added by section 2(c)(1), who were represented by counsel, including information specifying—
the stage of the legal process at which the alien was represented; and
whether the alien was in government custody; and
the number and percentage of aliens who received legal orientation presentations.
Motions to reopen
Section 240(c)(7)(C) of the Immigration and Nationality Act (8 U.S.C. 1229a(c)(7)(C)) is amended by adding at the end the following:
Special rule for aliens entitled to appointment of counsel
If the Attorney General fails to appoint counsel for an alien in violation of section 292(c)—
no limitation under this paragraph pertaining to the filing of any motion under this paragraph by such alien shall apply; and
the filing of such a motion shall stay the removal of the alien.
.
Immigration Counsel Account
In general
Chapter 9 of the Immigration and Nationality Act is amended by adding at the end the following:
Immigration Counsel Account
In general
There is established in the general fund of the Treasury a separate account, which shall be known as the Immigration Counsel Account
. Amounts deposited into the Immigration Counsel Account shall remain available until expended to provide access to counsel when required or authorized under this Act and to facilitate access to counsel under the Funding Attorneys for Indigent Removal (FAIR) Proceedings Act.
Report
At the end of each 2-year period, beginning with the creation of Immigration Counsel Account, the Secretary of Homeland Security, following a public rulemaking with opportunity for notice and comment, shall submit a report to the Congress concerning the status of the account, including any balances therein, and recommend any adjustment in the amount of the funds required to be reserved under section 286(m) for deposit into the account that may be required to ensure that the amounts so reserved for the succeeding two years equal, as closely as possible, the cost of providing access to counsel when required or authorized under this Act and facilitating access counsel under the Funding Attorneys for Indigent Removal (FAIR) Proceedings Act.
.
Deposits
Section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)) is amended by adding at the end the following:
Notwithstanding the first sentence of this subsection, beginning on the date of the enactment of the Funding Attorneys for Indigent Removal (FAIR) Proceedings Act, $10 from each fee for providing adjudication or naturalization services as may be charged and collected in accordance with this subsection shall be reserved and deposited as offsetting receipts into the Immigration Counsel Account established under section 295.
.
Table of contents
The table of contents for such Act is amended by inserting after the item relating to section 294 the following:
Sec. 295. Immigration Counsel Account.
.