I

106TH CONGRESS

2D SESSION H. R. 5061

To provide for the appointment of a guardian ad litem to protect the interests

under Federal immigration law of certain alien minor children present

in the United States without a parent or other legal guardian.

IN THE HOUSE OF REPRESENTATIVES

JULY 27, 2000

Mr. MCCOLLUM (for himself, Mr. DIAZ-BALART, Ms. ROS-LEHTINEN, Mr.

FOLEY, Mr. SHADEGG, and Mr. SMITH of New Jersey) introduced the

following bill; which was referred to the Committee on the Judiciary

A BILL

To provide for the appointment of a guardian ad litem to

protect the interests under Federal immigration law of

certain alien minor children present in the United States

without a parent or other legal guardian.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. APPOINTMENT OF GUARDIAN AD LITEM FOR

4 CERTAIN ALIEN CHILDREN.

5 Section 235(a) of the Immigration and Nationality

6 Act (8 U.S.C. 1225(a)) is amended by adding at the end

7 the following:

8 ‘‘(6) APPOINTMENT OF GUARDIAN AD LITEM.—
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1 ‘‘(A) IN GENERAL.—

2 ‘‘(i) DEADLINE FOR APPOINTMENT.—

3 Subject to subparagraph (F), the Attorney

4 General shall appoint for an alien a guard5 ian ad litem described in subparagraph (E)

6 not later than 30 days after the date on

7 which all of the conditions described in

8 subparagraph (D) are fulfilled with respect

9 to the alien.

10 ‘‘(ii) TERMINATION OF APPOINT11 MENT.—The guardian ad litem shall carry

12 out the duties described in subparagraph

13 (B) until—

14 ‘‘(I) the alien departs from the

15 United States;

16 ‘‘(II) a final administrative order

17 with respect to an asylum claim is

18 made; or

19 ‘‘(III) the alien attains 18 years

20 of age;

21 whichever occurs first.

22 ‘‘(iii) NOTICE.—The Attorney General

23 shall serve notice of all matters affecting

24 any duty described in subparagraph (B) on

25 the guardian.
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1 ‘‘(B) DUTIES.—The guardian ad litem—

2 ‘‘(i) in connection with an actual or

3 potential application for asylum by the

4 alien—

5 ‘‘(I) shall conduct an interview of

6 the alien in a manner that is appro7 priate, taking into account the alien’s

8 age;

9 ‘‘(II) shall otherwise investigate

10 the facts and circumstances relevant

11 to such an application, including facts

12 and circumstances arising in the

13 country of the alien’s nationality or

14 last habitual residence and facts and

15 circumstances arising subsequent to

16 the alien’s departure from such coun17 try; and

18 ‘‘(III) not later than 30 days

19 after the appointment of the guard20 ian, shall provide to all parties in any

21 immigration proceeding involving the

22 alien a report containing the results of

23 this investigation, a statement of the

24 wishes of the alien, and the guardian’s

25 recommendations, and shall provide
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1 subsequent similar reports as nec2 essary;

3 ‘‘(ii) shall advise the alien on whether

4 the alien should voluntarily depart from

5 the United States under paragraph (4) or

6 section 240B;

7 ‘‘(iii) otherwise shall ensure that the

8 covered alien’s best interests are promoted

9 while the alien participates in, or is subject

10 to, proceedings under this section, asylum

11 proceedings, or removal proceedings under

12 any provision of this title; and

13 ‘‘(iv) shall ensure that the alien un14 derstands such determinations and pro15 ceedings.

16 ‘‘(C) POWERS.—

17 ‘‘(i) AUTHORITIES.—The guardian ad

18 litem—

19 ‘‘(I) may be present at all hear20 ings involving the alien that are held

21 in connection with proceedings under

22 this section, asylum proceedings, or

23 removal proceedings under any provi24 sion of this title;
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1 ‘‘(II) may review all records and

2 information related to such pro3 ceedings; and

4 ‘‘(III) may seek independent

5 evaluations of the alien.

6 ‘‘(ii) LIMITATION.—The guardian ad

7 litem shall not have authority under this

8 paragraph to file a petition under this Act

9 on behalf of the alien in contravention of

10 the wishes of any parent of the alien.

11 ‘‘(D) MINORS DESCRIBED.—With respect

12 to an alien, the conditions described in this sub13 paragraph are the following:

14 ‘‘(i) The alien is under 18 years of

15 age.

16 ‘‘(ii) The alien is deemed to be an ap17 plicant for admission under paragraph (1)

18 or is a stowaway described in paragraph

19 (2).

20 ‘‘(iii) The alien is not lawfully in the

21 physical custody of a natural or adoptive

22 parent, a stepparent, or any other person

23 legally authorized to stand in loco parentis.

24 ‘‘(iv) If the alien is a citizen or na25 tional of a foreign state that is not des-
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1 ignated as a state sponsor of terrorism

2 under section 6(j) of the Export Adminis3 tration Act of 1979 (50 U.S.C. App.

4 2405(j)) or section 620A of the Foreign

5 Assistance Act of 1961 (22 U.S.C. 2371),

6 the alien indicates an intention to apply for

7 asylum or a fear of persecution, or the At8 torney General determines that there is a

9 significant possibility that the alien could

10 establish eligibility for asylum.

11 ‘‘(E) GUARDIAN DESCRIBED.—A guardian

12 ad litem described in this subparagraph is an

13 individual who—

14 ‘‘(i) is a child welfare professional or

15 other individual who has received training

16 in child welfare matters;

17 ‘‘(ii) is recognized by the Attorney

18 General as being qualified to serve as a

19 guardian ad litem; and

20 ‘‘(iii) is not an officer or employee of

21 the Service, is not acting as the alien’s im22 migration attorney, is not a relative of the

23 alien, and is not a person with a conflict

24 of interest.
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1 ‘‘(F) STAY OF PROCEEDINGS PENDING AP2 POINTMENT.—Upon determining that the ap3 pointment of a guardian ad litem is required

4 under this section, the Attorney General, until

5 such appointment has taken effect—

6 ‘‘(i) shall stay all proceedings under

7 this Act or any other Federal immigration

8 law; and

9 ‘‘(ii) may not take any action to in10 duce or facilitate the alien’s voluntary de11 parture.

12 ‘‘(G) DEFERENCE TO DECISIONS AND REC13 OMMENDATIONS OF GUARDIAN.—Pursuant to

14 regulations promulgated by the Attorney Gen15 eral under this paragraph, the decisions and

16 recommendations made, and the actions taken,

17 by a guardian ad litem appointed under this

18 paragraph shall be treated the same as the de19 cisions, recommendations, and actions of a

20 guardian ad litem appointed for a minor child

21 in a child welfare proceeding under State law.

22 ‘‘(H) SUBJECT TO INTERNATIONAL AGREE23 MENTS.—Nothing in this paragraph shall be

24 construed to supersede any requirement under
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1 any international agreement or treaty to which

2 the United States is a party.’’.

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