109TH CONGRESS

1ST SESSION S. 119

AN ACT

To provide for the protection of unaccompanied alien

children, and for other purposes.

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Unaccompanied Alien Child Protection Act of 2005’’.
 †

2

S 119 ES

1 (b) TABLE OF CONTENTS.—The table of contents for

2 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 refugeelike 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.

3 SEC. 2. DEFINITIONS.

4 (a) IN GENERAL.—In this Act:
†

3

S 119 ES

1 (1) COMPETENT.—The term ‘‘competent’’, in

2 reference to counsel, means an attorney, or a rep3 resentative authorized to represent unaccompanied

4 alien children in immigration proceedings or mat5 ters, who—

6 (A) complies with the duties set forth in

7 this Act;

8 (B)(i) is properly qualified to handle mat9 ters involving unaccompanied alien children; or

10 (ii) is working under the auspices of a

11 qualified nonprofit organization that is experi12 enced in handling such matters; and

13 (C) if an attorney—

14 (i) is a member in good standing of

15 the bar of the highest court of any State,

16 possession, territory, Commonwealth, or

17 the District of Columbia; and

18 (ii) is not under any order of any

19 court suspending, enjoining, restraining,

20 disbarring, or otherwise restricting the at21 torney in the practice of law.

22 (2) DEPARTMENT.—The term ‘‘Department’’

23 means the Department of Homeland Security.

24 (3) DIRECTOR.—The term ‘‘Director’’ means

25 the Director of the Office.
†

4

S 119 ES

1 (4) OFFICE.—The term ‘‘Office’’ means the Of2 fice of Refugee Resettlement established by section

3 411 of the Immigration and Nationality Act (8

4 U.S.C. 1521).

5 (5) SECRETARY.—The term ‘‘Secretary’’ means

6 the Secretary of Homeland Security.

7 (6) UNACCOMPANIED ALIEN CHILD.—The term

8 ‘‘unaccompanied alien child’’ has the meaning given

9 the term in section 462(g)(2) of the Homeland Secu10 rity Act of 2002 (6 U.S.C. 279(g)(2)).

11 (7) VOLUNTARY AGENCY.—The term ‘‘vol12 untary agency’’ means a private, nonprofit voluntary

13 agency with expertise in meeting the cultural, devel14 opmental, or psychological needs of unaccompanied

15 alien children, as certified by the Director.

16 (b) AMENDMENTS TO THE IMMIGRATION AND NA17 TIONALITY ACT.—Section 101(a) of the Immigration and

18 Nationality Act (8 U.S.C. 1101(a)) is amended by adding

19 at the end the following:

20 ‘‘(51) The term ‘unaccompanied alien child’ means

21 a child who—

22 ‘‘(A) has no lawful immigration status in the

23 United States;

24 ‘‘(B) has not attained the age of 18; and

25 ‘‘(C) with respect to whom—
†

5

S 119 ES

1 ‘‘(i) there is no parent or legal guardian in

2 the United States; or

3 ‘‘(ii) no parent or legal guardian in the

4 United States is available to provide care and

5 physical custody.

6 ‘‘(52) The term ‘unaccompanied refugee children’

7 means persons described in paragraph (42) who—

8 ‘‘(A) have not attained the age of 18; and

9 ‘‘(B) with respect to whom there are no parents

10 or legal guardians available to provide care and

11 physical custody.’’.

12 (c) RULE OF CONSTRUCTION.—A department or

13 agency of a State, or an individual or entity appointed by

14 a State court or juvenile court located in the United

15 States, acting in loco parentis, shall not be considered a

16 legal guardian for purposes of section 462 of the Home17 land Security Act of 2002 (6 U.S.C. 279) or this Act.

18 TITLE I—CUSTODY, RELEASE,

19 FAMILY REUNIFICATION, AND

20 DETENTION

21 SEC. 101. PROCEDURES WHEN ENCOUNTERING UNACCOM22 PANIED ALIEN CHILDREN.

23 (a) UNACCOMPANIED CHILDREN FOUND ALONG THE

24 UNITED STATES BORDER OR AT UNITED STATES PORTS

25 OF ENTRY.—
†

6

S 119 ES

1 (1) IN GENERAL.—Subject to paragraph (2), if

2 an immigration officer finds an unaccompanied alien

3 child who is described in paragraph (2) at a land

4 border or port of entry of the United States and de5 termines that such child is inadmissible under the

6 Immigration and Nationality Act (8 U.S.C. 1101 et

7 seq.), the officer shall—

8 (A) permit such child to withdraw the

9 child’s application for admission pursuant to

10 section 235(a)(4) of the Immigration and Na11 tionality Act (8 U.S.C. 1225(a)(4)); and

12 (B) return such child to the child’s country

13 of nationality or country of last habitual resi14 dence.

15 (2) SPECIAL RULE FOR CONTIGUOUS COUN16 TRIES.—

17 (A) IN GENERAL.—Any child who is a na18 tional or habitual resident of a country that is

19 contiguous with the United States and that has

20 an agreement in writing with the United States

21 providing for the safe return and orderly repa22 triation of unaccompanied alien children who

23 are nationals or habitual residents of such

24 country shall be treated in accordance with
†

7

S 119 ES

1 paragraph (1), if a determination is made on a

2 case-by-case basis that—

3 (i) such child is a national or habitual

4 resident of a country described in this sub5 paragraph;

6 (ii) such child does not have a fear of

7 returning to the child’s country of nation8 ality or country of last habitual residence

9 owing to a fear of persecution;

10 (iii) the return of such child to the

11 child’s country of nationality or country of

12 last habitual residence would not endanger

13 the life or safety of such child; and

14 (iv) the child is able to make an inde15 pendent decision to withdraw the child’s

16 application for admission due to age or

17 other lack of capacity.

18 (B) RIGHT OF CONSULTATION.—Any child

19 described in subparagraph (A) shall have the

20 right, and shall be informed of that right in the

21 child’s native language—

22 (i) to consult with a consular officer

23 from the child’s country of nationality or

24 country of last habitual residence prior to

25 repatriation; and
†

8

S 119 ES

1 (ii) to consult, telephonically, with the

2 Office.

3 (3) RULE FOR APPREHENSIONS AT THE BOR4 DER.—The custody of unaccompanied alien children

5 not described in paragraph (2) who are apprehended

6 at the border of the United States or at a United

7 States port of entry shall be treated in accordance

8 with subsection (b).

9 (b) CARE AND CUSTODY OF UNACCOMPANIED ALIEN

10 CHILDREN FOUND IN THE INTERIOR OF THE UNITED

11 STATES.—

12 (1) ESTABLISHMENT OF JURISDICTION.—

13 (A) IN GENERAL.—Except as otherwise

14 provided under subparagraphs (B) and (C) and

15 subsection (a), the care and custody of all unac16 companied alien children, including responsi17 bility for their detention, where appropriate,

18 shall be under the jurisdiction of the Office.

19 (B) EXCEPTION FOR CHILDREN WHO HAVE

20 COMMITTED CRIMES.—Notwithstanding sub21 paragraph (A), the Department shall retain or

22 assume the custody and care of any unaccom23 panied alien child who—

24 (i) has been charged with any felony,

25 excluding offenses proscribed by the Immi-
†

9

S 119 ES

1 gration and Nationality Act (8 U.S.C.

2 1101 et seq.), while such charges are pend3 ing; or

4 (ii) has been convicted of any such fel5 ony.

6 (C) EXCEPTION FOR CHILDREN WHO

7 THREATEN NATIONAL SECURITY.—Notwith8 standing subparagraph (A), the Department

9 shall retain or assume the custody and care of

10 an unaccompanied alien child if the Secretary

11 has substantial evidence, based on an individ12 ualized determination, that such child could

13 personally endanger the national security of the

14 United States.

15 (D) TRAFFICKING VICTIMS.—For purposes

16 of section 462 of the Homeland Security Act of

17 2002 (6 U.S.C. 279) and this Act, an unaccom18 panied alien child who is eligible for services au19 thorized under the Victims of Trafficking and

20 Violence Protection Act of 2000 (Public Law

21 106–386), shall be considered to be in the cus22 tody of the Office.

23 (2) NOTIFICATION.—

24 (A) IN GENERAL.—The Secretary shall

25 promptly notify the Office upon—
†

10

S 119 ES

1 (i) the apprehension of an unaccom2 panied alien child;

3 (ii) the discovery that an alien in the

4 custody of the Department is an unaccom5 panied alien child;

6 (iii) any claim by an alien in the cus7 tody of the Department that such alien is

8 under the age of 18; or

9 (iv) any suspicion that an alien in the

10 custody of the Department who has

11 claimed to be over the age of 18 is actually

12 under the age of 18.

13 (B) SPECIAL RULE.—In the case of an

14 alien described in clause (iii) or (iv) of subpara15 graph (A), the Director shall make an age de16 termination in accordance with section 105 and

17 take whatever other steps are necessary to de18 termine whether such alien is eligible for treat19 ment under section 462 of the Homeland Secu20 rity Act of 2002 (6 U.S.C. 279) or this Act.

21 (3) TRANSFER OF UNACCOMPANIED ALIEN

22 CHILDREN.—

23 (A) TRANSFER TO THE OFFICE.—The care

24 and custody of an unaccompanied alien child

25 shall be transferred to the Office—
†

11

S 119 ES

1 (i) in the case of a child not described

2 in subparagraph (B) or (C) of paragraph

3 (1), not later than 72 hours after a deter4 mination is made that such child is an un5 accompanied alien child;

6 (ii) in the case of a child whose cus7 tody and care has been retained or as8 sumed by the Department pursuant to sub9 paragraph (B) or (C) of paragraph (1),

10 following a determination that the child no

11 longer meets the description set forth in

12 such subparagraphs; or

13 (iii) in the case of a child who was

14 previously released to an individual or enti15 ty described in section 102(a)(1), upon a

16 determination by the Director that such in17 dividual or entity is no longer able to care

18 for the child.

19 (B) TRANSFER TO THE DEPARTMENT.—

20 Upon determining that a child in the custody of

21 the Office is described in subparagraph (B) or

22 (C) of paragraph (1), the Director shall trans23 fer the care and custody of such child to the

24 Department.
†

12

S 119 ES

1 (C) PROMPTNESS OF TRANSFER.—In the

2 event of a need to transfer a child under this

3 paragraph, the sending office shall make

4 prompt arrangements to transfer such child and

5 the receiving office shall make prompt arrange6 ments to receive such child.

7 (c) AGE DETERMINATIONS.—In any case in which

8 the age of an alien is in question and the resolution of

9 questions about the age of such alien would affect the

10 alien’s eligibility for treatment under section 462 of the

11 Homeland Security Act of 2002 (6 U.S.C. 279) or this

12 Act, a determination of whether or not such alien meets

13 such age requirements shall be made in accordance with

14 section 105, unless otherwise specified in subsection

15 (b)(2)(B).

16 (d) ACCESS TO ALIEN.—The Secretary of Homeland

17 Security shall permit the Office to have reasonable access

18 to aliens in the custody of the Secretary to ensure a

19 prompt determination of the age of such alien, if necessary

20 under subsection (b)(2)(B).

21 SEC. 102. FAMILY REUNIFICATION FOR UNACCOMPANIED

22 ALIEN CHILDREN WITH RELATIVES IN THE

23 UNITED STATES.

24 (a) PLACEMENT AUTHORITY.—
†

13

S 119 ES

1 (1) ORDER OF PREFERENCE.—Subject to the

2 discretion of the Director under paragraph (4), sec3 tion 103(a)(2), and section 462(b)(2) of the Home4 land Security Act of 2002 (6 U.S.C. 279(b)(2)), an

5 unaccompanied alien child in the custody of the Of6 fice shall be promptly placed with 1 of the following

7 individuals or entities in the following order of pref8 erence:

9 (A) A parent who seeks to establish cus10 tody, as described in paragraph (3)(A).

11 (B) A legal guardian who seeks to estab12 lish custody, as described in paragraph (3)(A).

13 (C) An adult relative.

14 (D) An individual or entity designated by

15 the parent or legal guardian that is capable and

16 willing to care for the well-being of the child.

17 (E) A State-licensed juvenile shelter, group

18 home, or foster care program willing to accept

19 custody of the child.

20 (F) A qualified adult or entity seeking cus21 tody of the child when it appears that there is

22 no other likely alternative to long-term deten23 tion and family reunification does not appear to

24 be a reasonable alternative. For purposes of

25 this subparagraph, the Office shall decide who
†

14

S 119 ES

1 is a qualified adult or entity and promulgate

2 regulations in accordance with such decision.

3 (2) SUITABILITY ASSESSMENT.—

4 (A) GENERAL REQUIREMENTS.—Notwith5 standing paragraph (1), and subject to the re6 quirements of subparagraph (B), no unaccom7 panied alien child shall be placed with a person

8 or entity described in any of subparagraphs (A)

9 through (F) of paragraph (1) unless the Direc10 tor certifies, in writing, that the proposed cus11 todian is capable of providing for the child’s

12 physical and mental well-being, based on—

13 (i) with respect to an individual

14 custodian—

15 (I) verification of such individ16 ual’s identity and employment;

17 (II) a finding that such indi18 vidual has not engaged in any activity

19 that would indicate a potential risk to

20 the child, including the activities de21 scribed in paragraph (4)(A);

22 (III) a finding that such indi23 vidual has no open investigation by a

24 state or local child protective services
†

15

S 119 ES

1 authority due to suspected child abuse

2 or neglect;

3 (IV) verification that such indi4 vidual has a plan for the provision of

5 care for the child; and

6 (V) verification of familial rela7 tionship of such individual, if any re8 lationship is claimed; and

9 (ii) verification of nature and extent

10 of previous relationship;

11 (iii) with respect to a custodial entity,

12 verification of such entity’s appropriate li13 censure by the State, county, or other ap14 plicable unit of government; and

15 (iv) such other information as the Di16 rector determines appropriate.

17 (B) HOME STUDY.—

18 (i) IN GENERAL.—A home study shall

19 be conducted prior to release with respect

20 to each proposed custodian described in

21 any of subparagraphs (A) through (F) of

22 paragraph (1) unless waived by the Direc23 tor.

24 (ii) SPECIAL NEEDS CHILDREN.—In

25 the case of a special needs child with a dis-
†

16

S 119 ES

1 ability (as defined in section 3 of the

2 Americans with Disabilities Act of 1990

3 (42 U.S.C. 12102(2)), a home study shall

4 be conducted to determine if the child’s

5 needs can be properly met by the custo6 dian.

7 (C) CONTRACT AUTHORITY.—The Director

8 may, by grant or contract, arrange for some or

9 all of the activities under this section to be car10 ried out by—

11 (i) an agency of the State of the

12 child’s proposed residence;

13 (ii) an agency authorized by such

14 State to conduct such activities; or

15 (iii) an appropriate voluntary or non16 profit agency.

17 (D) DATABASE ACCESS.—In conducting

18 suitability assessments, the Director shall be

19 given access to all relevant information in the

20 appropriate Federal, State, and local law en21 forcement and immigration databases.

22 (3) RIGHT OF PARENT OR LEGAL GUARDIAN TO

23 CUSTODY OF UNACCOMPANIED ALIEN CHILD.—

24 (A) PLACEMENT WITH PARENT OR LEGAL

25 GUARDIAN.—If an unaccompanied alien child is
†

17

S 119 ES

1 placed with any person or entity other than a

2 parent or legal guardian, and subsequent to

3 that placement a parent or legal guardian seeks

4 to establish custody, the Director shall—

5 (i) assess the suitability of placing the

6 child with the parent or legal guardian;

7 and

8 (ii) make a written determination on

9 the child’s placement within 30 days.

10 (B) RULE OF CONSTRUCTION.—Nothing in

11 this Act shall be construed to—

12 (i) supersede obligations under any

13 treaty or other international agreement to

14 which the United States is a party, includ15 ing The Hague Convention on the Civil As16 pects of International Child Abduction, the

17 Vienna Declaration and Program of Ac18 tion, and the Declaration of the Rights of

19 the Child; or

20 (ii) limit any right or remedy under

21 such international agreement.

22 (4) PROTECTION FROM SMUGGLERS AND TRAF23 FICKERS.—

24 (A) POLICIES AND PROGRAMS.—
†

18

S 119 ES

1 (i) IN GENERAL.—The Director shall

2 establish policies and programs to ensure

3 that unaccompanied alien children are pro4 tected from smugglers, traffickers, or other

5 persons seeking to victimize or otherwise

6 engage such children in criminal, harmful,

7 or exploitative activity.

8 (ii) WITNESS PROTECTION PROGRAMS

9 INCLUDED.—Programs established pursu10 ant to clause (i) may include witness pro11 tection programs.

12 (B) CRIMINAL INVESTIGATIONS AND PROS13 ECUTIONS.—Any officer or employee of the Of14 fice or the Department of Homeland Security,

15 and any grantee or contractor of the Office,

16 who suspects any individual of involvement in

17 any activity described in subparagraph (A) shall

18 report such individual to Federal or State pros19 ecutors for criminal investigation and prosecu20 tion.

21 (C) DISCIPLINARY ACTION.—Any officer or

22 employee of the Office or the Department of

23 Homeland Security, and any grantee or con24 tractor of the Office, who suspects an attorney

25 of involvement in any activity described in sub-
†

19

S 119 ES

1 paragraph (A) shall report the individual to the

2 State bar association of which the attorney is a

3 member, or to other appropriate disciplinary

4 authorities, for appropriate disciplinary action,

5 which may include private or public admonition

6 or censure, suspension, or disbarment of the at7 torney from the practice of law.

8 (5) GRANTS AND CONTRACTS.—The Director

9 may award grants to, and enter into contracts with,

10 voluntary agencies to carry out this section or sec11 tion 462 of the Homeland Security Act of 2002 (6

12 U.S.C. 279).

13 (6) REIMBURSEMENT OF STATE EXPENSES.—

14 The Director may reimburse States for any expenses

15 they incur in providing assistance to unaccompanied

16 alien children who are served pursuant to this Act

17 or section 462 of the Homeland Security Act of

18 2002 (6 U.S.C. 279).

19 (b) CONFIDENTIALITY.—All information obtained by

20 the Office relating to the immigration status of a person

21 described in subparagraphs (A), (B), and (C) of sub22 section (a)(1) shall remain confidential and may be used

23 only for the purposes of determining such person’s quali24 fications under subsection (a)(1).
†

20

S 119 ES

1 (c) REQUIRED DISCLOSURE.—The Secretary of

2 Health and Human Services or the Secretary of Homeland

3 Security shall provide the information furnished under

4 this section, and any other information derived from such

5 furnished information, to—

6 (1) a duly recognized law enforcement entity in

7 connection with an investigation or prosecution of an

8 offense described in paragraph (2) or (3) of section

9 212(a) of the Immigration and Nationality Act (8

10 U.S.C. 1182(a)), when such information is requested

11 in writing by such entity; or

12 (2) an official coroner for purposes of affirma13 tively identifying a deceased individual (whether or

14 not such individual is deceased as a result of a

15 crime).

16 (d) PENALTY.—Whoever knowingly uses, publishes,

17 or permits information to be examined in violation of this

18 section shall be fined not more than $10,000.

19 SEC. 103. APPROPRIATE CONDITIONS FOR DETENTION OF

20 UNACCOMPANIED ALIEN CHILDREN.

21 (a) STANDARDS FOR PLACEMENT.—

22 (1) PROHIBITION OF DETENTION IN CERTAIN

23 FACILITIES.—Except as provided in paragraph (2),

24 an unaccompanied alien child shall not be placed in
†

21

S 119 ES

1 an adult detention facility or a facility housing delin2 quent children.

3 (2) DETENTION IN APPROPRIATE FACILITIES.—

4 An unaccompanied alien child who has exhibited a

5 violent or criminal behavior that endangers others

6 may be detained in conditions appropriate to such

7 behavior in a facility appropriate for delinquent chil8 dren.

9 (3) STATE LICENSURE.—A child shall not be

10 placed with an entity described in section

11 102(a)(1)(E), unless the entity is licensed by an ap12 propriate State agency to provide residential, group,

13 child welfare, or foster care services for dependent

14 children.

15 (4) CONDITIONS OF DETENTION.—

16 (A) IN GENERAL.—The Director and the

17 Secretary of Homeland Security shall promul18 gate regulations incorporating standards for

19 conditions of detention in such placements that

20 provide for—

21 (i) educational services appropriate to

22 the child;

23 (ii) medical care;
†

22

S 119 ES

1 (iii) mental health care, including

2 treatment of trauma, physical and sexual

3 violence, or abuse;

4 (iv) access to telephones;

5 (v) access to legal services;

6 (vi) access to interpreters;

7 (vii) supervision by professionals

8 trained in the care of children, taking into

9 account the special cultural, linguistic, and

10 experiential needs of children in immigra11 tion proceedings;

12 (viii) recreational programs and activi13 ties;

14 (ix) spiritual and religious needs; and

15 (x) dietary needs.

16 (B) NOTIFICATION OF CHILDREN.—Regu17 lations promulgated under subparagraph (A)

18 shall provide that all children are notified of

19 such standards orally and in writing in the

20 child’s native language.

21 (b) PROHIBITION OF CERTAIN PRACTICES.—The Di22 rector and the Secretary shall develop procedures prohib23 iting the unreasonable use of—

24 (1) shackling, handcuffing, or other restraints

25 on children;
†

23

S 119 ES

1 (2) solitary confinement; or

2 (3) pat or strip searches.

3 (c) RULE OF CONSTRUCTION.—Nothing in this sec4 tion shall be construed to supersede procedures favoring

5 release of children to appropriate adults or entities or

6 placement in the least secure setting possible, as defined

7 in the Stipulated Settlement Agreement under Flores v.

8 Reno.

9 SEC. 104. REPATRIATED UNACCOMPANIED ALIEN CHIL10 DREN.

11 (a) COUNTRY CONDITIONS.—

12 (1) SENSE OF CONGRESS.—It is the sense of

13 Congress that, to the extent consistent with the trea14 ties and other international agreements to which the

15 United States is a party, and to the extent prac16 ticable, the United States Government should under17 take efforts to ensure that it does not repatriate

18 children in its custody into settings that would

19 threaten the life and safety of such children.

20 (2) ASSESSMENT OF CONDITIONS.—

21 (A) IN GENERAL.—The annual Country

22 Reports on Human Rights Practices published

23 by the Department of State shall contain an as24 sessment of the degree to which each country
†

24

S 119 ES

1 protects children from smugglers and traf2 fickers.

3 (B) FACTORS FOR ASSESSMENT.—The De4 partment shall consult the Country Reports on

5 Human Rights Practices and the Trafficking in

6 Persons Report in assessing whether to repa7 triate an unaccompanied alien child to a par8 ticular country.

9 (b) REPORT ON REPATRIATION OF UNACCOMPANIED

10 ALIEN CHILDREN.—

11 (1) IN GENERAL.—Not later than 18 months

12 after the date of enactment of this Act, and annually

13 thereafter, the Secretary shall submit a report to the

14 Committee on the Judiciary of the Senate and the

15 Committee on the Judiciary of the House of Rep16 resentatives on efforts to repatriate unaccompanied

17 alien children.

18 (2) CONTENTS.—The report submitted under

19 paragraph (1) shall include—

20 (A) the number of unaccompanied alien

21 children ordered removed and the number of

22 such children actually removed from the United

23 States;

24 (B) a description of the type of immigra25 tion relief sought and denied to such children;
†

25

S 119 ES

1 (C) a statement of the nationalities, ages,

2 and gender of such children;

3 (D) a description of the procedures used to

4 effect the removal of such children from the

5 United States;

6 (E) a description of steps taken to ensure

7 that such children were safely and humanely re8 patriated to their country of origin; and

9 (F) any information gathered in assess10 ments of country and local conditions pursuant

11 to subsection (a)(2).

12 SEC. 105. ESTABLISHING THE AGE OF AN UNACCOMPANIED

13 ALIEN CHILD.

14 (a) PROCEDURES.—

15 (1) IN GENERAL.—The Director shall develop

16 procedures, in consultation with the Secretary, to

17 make a prompt determination of the age of an alien,

18 to be used—

19 (A) by the Department, with respect to

20 aliens in the custody of the Department; and

21 (B) by the Office, with respect to aliens in

22 the custody of the Office.

23 (2) EVIDENCE.—The procedures developed

24 under paragraph (1) shall—
†

26

S 119 ES

1 (A) permit the presentation of multiple

2 forms of evidence, including testimony of the

3 alien, to determine the age of the unaccom4 panied alien for purposes of placement, custody,

5 parole, and detention; and

6 (B) allow the appeal of a determination to

7 an immigration judge.

8 (b) PROHIBITION ON SOLE MEANS OF DETERMINING

9 AGE.—Radiographs or the attestation of an alien shall not

10 be used as the sole means of determining age for the pur11 poses of determining an alien’s eligibility for treatment

12 under this Act or section 462 of the Homeland Security

13 Act of 2002 (6 U.S.C. 279).

14 (c) RULE OF CONSTRUCTION.—Nothing in this sec15 tion shall be construed to place the burden of proof in

16 determining the age of an alien on the Government.

17 SEC. 106. EFFECTIVE DATE.

18 This title shall take effect on the date which is 90

19 days after the date of enactment of this Act.
†

27

S 119 ES

1 TITLE II—ACCESS BY UNACCOM2 PANIED ALIEN CHILDREN TO

3 CHILD ADVOCATES AND

4 COUNSEL

5 SEC. 201. CHILD ADVOCATES.

6 (a) ESTABLISHMENT OF CHILD ADVOCATE PRO7 GRAM.—

8 (1) APPOINTMENT.—The Director may appoint

9 a child advocate, who meets the qualifications de10 scribed in paragraph (2), for an unaccompanied

11 alien child. The Director is encouraged, wherever

12 practicable, to contract with a voluntary agency for

13 the selection of an individual to be appointed as a

14 child advocate under this paragraph.

15 (2) QUALIFICATIONS OF CHILD ADVOCATE.—

16 (A) IN GENERAL.—No person shall serve

17 as a child advocate unless such person—

18 (i) is a child welfare professional or

19 other individual who has received training

20 in child welfare matters; and

21 (ii) possesses special training on the

22 nature of problems encountered by unac23 companied alien children.

24 (B) PROHIBITION.—A child advocate shall

25 not be an employee of the Department, the Of-
†

28

S 119 ES

1 fice, or the Executive Office for Immigration

2 Review.

3 (3) DUTIES.—The child advocate shall—

4 (A) conduct interviews with the child in a

5 manner that is appropriate, taking into account

6 the child’s age;

7 (B) investigate the facts and circumstances

8 relevant to the child’s presence in the United

9 States, including facts and circumstances—

10 (i) arising in the country of the child’s

11 nationality or last habitual residence; and

12 (ii) arising subsequent to the child’s

13 departure from such country;

14 (C) work with counsel to identify the

15 child’s eligibility for relief from removal or vol16 untary departure by sharing with counsel infor17 mation collected under subparagraph (B);

18 (D) develop recommendations on issues

19 relative to the child’s custody, detention, re20 lease, and repatriation;

21 (E) take reasonable steps to ensure that—

22 (i) the best interests of the child are

23 promoted while the child participates in, or

24 is subject to, proceedings or matters under
†

29

S 119 ES

1 the Immigration and Nationality Act (8

2 U.S.C. 1101 et seq.);

3 (ii) the child understands the nature

4 of the legal proceedings or matters and de5 terminations made by the court, and that

6 all information is conveyed to the child in

7 an age-appropriate manner; and

8 (F) report factual findings relating to—

9 (i) information collected under sub10 paragraph (B);

11 (ii) the care and placement of the

12 child during the pendency of the pro13 ceedings or matters; and

14 (iii) any other information collected

15 under subparagraph (D).

16 (4) TERMINATION OF APPOINTMENT.—The

17 child advocate shall carry out the duties described in

18 paragraph (3) until the earliest of the date on

19 which—

20 (A) those duties are completed;

21 (B) the child departs the United States;

22 (C) the child is granted permanent resi23 dent status in the United States;

24 (D) the child attains the age of 18; or
†

30

S 119 ES

1 (E) the child is placed in the custody of a

2 parent or legal guardian.

3 (5) POWERS.—The child advocate—

4 (A) shall have reasonable access to the

5 child, including access while such child is being

6 held in detention or in the care of a foster fam7 ily;

8 (B) shall be permitted to review all records

9 and information relating to such proceedings

10 that are not deemed privileged or classified;

11 (C) may seek independent evaluations of

12 the child;

13 (D) shall be notified in advance of all hear14 ings or interviews involving the child that are

15 held in connection with proceedings or matters

16 under the Immigration and Nationality Act (8

17 U.S.C. 1101 et seq.), and shall be given a rea18 sonable opportunity to be present at such hear19 ings or interviews;

20 (E) shall be permitted to consult with the

21 child during any hearing or interview involving

22 such child; and

23 (F) shall be provided at least 24 hours ad24 vance notice of a transfer of that child to a dif25 ferent placement, absent compelling and un-
†

31

S 119 ES

1 usual circumstances warranting the transfer of

2 such child before such notification.

3 (b) TRAINING.—

4 (1) IN GENERAL.—The Director shall provide

5 professional training for all persons serving as

6 guardians ad litem under this section.

7 (2) TRAINING TOPICS.—The training provided

8 under paragraph (1) shall include training in—

9 (A) the circumstances and conditions that

10 unaccompanied alien children face; and

11 (B) various immigration benefits for which

12 such alien child might be eligible.

13 (c) PILOT PROGRAM.—

14 (1) IN GENERAL.—Not later than 180 days

15 after the date of enactment of this Act, the Director

16 shall establish and begin to carry out a pilot pro17 gram to test the implementation of subsection (a).

18 (2) PURPOSE.—The purpose of the pilot pro19 gram established under paragraph (1) is to—

20 (A) study and assess the benefits of pro21 viding guardians ad litem to assist unaccom22 panied alien children involved in immigration

23 proceedings or matters;
†

32

S 119 ES

1 (B) assess the most efficient and cost-ef2 fective means of implementing the child advo3 cate provisions in this section; and

4 (C) assess the feasibility of implementing

5 such provisions on a nationwide basis for all un6 accompanied alien children in the care of the

7 Office.

8 (3) SCOPE OF PROGRAM.—

9 (A) SELECTION OF SITE.—The Director

10 shall select 3 sites in which to operate the pilot

11 program established under paragraph (1).

12 (B) NUMBER OF CHILDREN.—To the

13 greatest extent possible, each site selected

14 under subparagraph (A) should have at least 25

15 children held in immigration custody at any

16 given time.

17 (4) REPORT TO CONGRESS.—Not later than 1

18 year after the date on which the first pilot program

19 site is established under paragraph (1), the Director

20 shall submit a report on the achievement of the pur21 poses described in paragraph (2) to the Committee

22 on the Judiciary of the Senate and the Committee

23 on the Judiciary of the House of Representatives.

24 SEC. 202. COUNSEL.

25 (a) ACCESS TO COUNSEL.—
†

33

S 119 ES

1 (1) IN GENERAL.—The Director should ensure,

2 to the extent practicable that all unaccompanied

3 alien children in the custody of the Office or the De4 partment, who are not described in section

5 101(a)(2), have competent counsel to represent them

6 in immigration proceedings or matters.

7 (2) PRO BONO REPRESENTATION.—To the max8 imum extent practicable, the Director should—

9 (A) make every effort to utilize the services

10 of competent pro bono counsel who agree to

11 provide representation to such children without

12 charge; and

13 (B) ensure that placements made under

14 subparagraphs (D), (E), and (F) of section

15 102(a)(1) are in cities where there is a dem16 onstrated capacity for competent pro bono rep17 resentation.

18 (3) DEVELOPMENT OF NECESSARY INFRA19 STRUCTURES AND SYSTEMS.—For purposes of this

20 subsection, the Director shall develop the necessary

21 mechanisms to identify entities available to provide

22 such legal assistance and representation and to re23 cruit such entities.

24 (4) CONTRACTING AND GRANT MAKING AU25 THORITY.—
†

34

S 119 ES

1 (A) IN GENERAL.—The Director shall

2 enter into contracts with, or award grants to,

3 nonprofit agencies with relevant expertise in the

4 delivery of immigration-related legal services to

5 children in order to carry out the responsibil6 ities of this Act, including providing legal ori7 entation, screening cases for referral, recruiting,

8 training, and overseeing pro bono attorneys.

9 (B) SUBCONTRACTING.—Nonprofit agen10 cies may enter into subcontracts with, or award

11 grants to, private voluntary agencies with rel12 evant expertise in the delivery of immigration13 related legal services to children in order to

14 carry out this subsection.

15 (C) CONSIDERATIONS REGARDING GRANTS

16 AND CONTRACTS.—In awarding grants and en17 tering into contracts with agencies under this

18 paragraph, the Director shall take into consid19 eration the capacity of the agencies in question

20 to properly administer the services covered by

21 such grants or contracts without an undue con22 flict of interest.

23 (5) MODEL GUIDELINES ON LEGAL REPRESEN24 TATION OF CHILDREN.—
†

35

S 119 ES

1 (A) DEVELOPMENT OF GUIDELINES.—The

2 Executive Office for Immigration Review, in

3 consultation with voluntary agencies and na4 tional experts, shall develop model guidelines

5 for the legal representation of alien children in

6 immigration proceedings. Such guidelines shall

7 be based on the children’s asylum guidelines,

8 the American Bar Association Model Rules of

9 Professional Conduct, and other relevant do10 mestic or international sources.

11 (B) PURPOSE OF GUIDELINES.—The

12 guidelines developed under subparagraph (A)

13 shall be designed to help protect each child

14 from any individual suspected of involvement in

15 any criminal, harmful, or exploitative activity

16 associated with the smuggling or trafficking of

17 children, while ensuring the fairness of the re18 moval proceeding in which the child is involved.

19 (C) IMPLEMENTATION.—The Executive

20 Office for Immigration Review shall adopt the

21 guidelines developed under subparagraph (A)

22 and submit the guidelines for adoption by na23 tional, State, and local bar associations.

24 (b) DUTIES.—Counsel under this section shall—
†

36

S 119 ES

1 (1) represent the unaccompanied alien child in

2 all proceedings and matters relating to the immigra3 tion status of the child or other actions involving the

4 Department;

5 (2) appear in person for all individual merits

6 hearings before the Executive Office for Immigration

7 Review and interviews involving the Department;

8 and

9 (3) owe the same duties of undivided loyalty,

10 confidentiality, and competent representation to the

11 child as is due an adult client.

12 (c) ACCESS TO CHILD.—

13 (1) IN GENERAL.—Counsel shall have reason14 able access to the unaccompanied alien child, includ15 ing access while the child is being held in detention,

16 in the care of a foster family, or in any other setting

17 that has been determined by the Office.

18 (2) RESTRICTION ON TRANSFERS.—Absent

19 compelling and unusual circumstances, no child who

20 is represented by counsel shall be transferred from

21 the child’s placement to another placement unless

22 advance notice of at least 24 hours is made to coun23 sel of such transfer.

24 (d) NOTICE TO COUNSEL DURING IMMIGRATION

25 PROCEEDINGS.—
†

37

S 119 ES

1 (1) IN GENERAL.—Except when otherwise re2 quired in an emergency situation involving the phys3 ical safety of the child, counsel shall be given prompt

4 and adequate notice of all immigration matters af5 fecting or involving an unaccompanied alien child,

6 including adjudications, proceedings, and processing,

7 before such actions are taken.

8 (2) OPPORTUNITY TO CONSULT WITH COUN9 SEL.—An unaccompanied alien child in the custody

10 of the Office may not give consent to any immigra11 tion action, including consenting to voluntary depar12 ture, unless first afforded an opportunity to consult

13 with counsel.

14 (e) ACCESS TO RECOMMENDATIONS OF CHILD ADVO15 CATE.—Counsel shall be given an opportunity to review

16 the recommendation by the child advocate affecting or in17 volving a client who is an unaccompanied alien child.

18 (f) COUNSEL FOR UNACCOMPANIED ALIEN CHIL19 DREN.—Nothing in this Act requires the United States

20 to pay for counsel to any unaccompanied alien child.

21 SEC. 203. PRESERVATION OF LAW ENFORCEMENT AUTHOR22 ITY.

23 (a) IN GENERAL.—The child advocate or counsel ap24 pointed under this title shall not interfere with Federal

25 investigators or prosecutors in a Federal criminal inves-
†

38

S 119 ES

1 tigation or prosecution in which the child is a victim or

2 witness.

3 (b) DEFINITION.—In subsection (a), the term ‘‘inter4 fere with’’ shall include—

5 (1) restricting access to a victim or witness;

6 (2) encouraging noncooperation with Federal

7 investigators or prosecutors; and

8 (3) being present during interviews of the child

9 by Federal investigators or prosecutors without the

10 permission of the investigators or prosecutors.

11 SEC. 204. EFFECTIVE DATE; APPLICABILITY.

12 (a) EFFECTIVE DATE.—This title shall take effect

13 180 days after the date of enactment of this Act.

14 (b) APPLICABILITY.—The provisions of this title shall

15 apply to all unaccompanied alien children in Federal cus16 tody on, before, or after the effective date of this title.

17 TITLE III—STRENGTHENING

18 POLICIES FOR PERMANENT

19 PROTECTION OF ALIEN CHIL20 DREN

21 SEC. 301. SPECIAL IMMIGRANT JUVENILE CLASSIFICATION.

22 (a) J CLASSIFICATION.—Section 101(a)(27)(J) of

23 the Immigration and Nationality Act (8 U.S.C.

24 1101(a)(27)(J)) is amended to read as follows:
†

39

S 119 ES

1 ‘‘(J) an immigrant, who is 18 years of age or

2 younger on the date of application for the classifica3 tion and who is present in the United States—

4 ‘‘(i) who by a court order supported by

5 written findings of fact, which shall be binding

6 on the Secretary of Homeland Security for pur7 poses of adjudications under this subparagraph,

8 was declared dependent on a juvenile court lo9 cated in the United States or has been legally

10 committed to, or placed under the custody of,

11 a department or agency of a State, or an indi12 vidual or entity appointed by a State or juvenile

13 court located in the United States, and who has

14 been deemed eligible by that court for long-term

15 foster care due to abuse, neglect, abandonment,

16 or a similar basis found under State law;

17 ‘‘(ii) for whom it has been determined by

18 written findings of fact in administrative or ju19 dicial proceedings that it would not be in the

20 alien’s best interest to be returned to the alien’s

21 or parent’s previous country of nationality or

22 country of last habitual residence; and

23 ‘‘(iii) with respect to a child in Federal

24 custody, for whom the Office of Refugee Reset25 tlement of the Department of Health and
†

40

S 119 ES

1 Human Services has certified to the Director of

2 U.S. Citizenship and Immigration Services that

3 the classification of an alien as a special immi4 grant under this subparagraph has not been

5 made solely to provide an immigration benefit

6 to that alien,

7 except that no natural parent or prior adoptive par8 ent of any alien provided special immigrant status

9 under this subparagraph shall thereafter, by virtue

10 of such parentage, be accorded any right, privilege,

11 or status under this Act;’’.

12 (b) ADJUSTMENT OF STATUS.—Section 245(h)(2)(A)

13 of the Immigration and Nationality Act (8 U.S.C.

14 1255(h)(2)(A)) is amended to read as follows:

15 ‘‘(A) paragraphs (4), (5)(A), (6)(A),

16 (7)(A), 9(B), and 9(C)(i)(I) of section 212(a)

17 shall not apply; and’’.

18 (c) ELIGIBILITY FOR ASSISTANCE.—A child who has

19 been granted relief under section 101(a)(27)(J) of the Im20 migration and Nationality Act (8 U.S.C. 1101(a)(27)(J)),

21 may be eligible for funds made available under section

22 412(d) of that Act (8 U.S.C. 1522(d)) until such time as

23 the child attains the age designated in section

24 412(d)(2)(B) of that Act (8 U.S.C. 1522(d)(2)(B)), or
†

41

S 119 ES

1 until the child is placed in a permanent adoptive home,

2 whichever occurs first.

3 (d) TRANSITION RULE.—Notwithstanding any other

4 provision of law, any child described in section

5 101(a)(27)(J) of the Immigration and Nationality Act (8

6 U.S.C. 1101(a)(27)(J)) who filed an application for spe7 cial immigrant juvenile classification before the date of en8 actment of this Act and who was 19, 20, or 21 years of

9 age on the date such application was filed shall not be

10 denied such classification after the date of enactment of

11 this Act because of such alien’s age.

12 SEC. 302. TRAINING FOR OFFICIALS AND CERTAIN PRIVATE

13 PARTIES WHO COME INTO CONTACT WITH

14 UNACCOMPANIED ALIEN CHILDREN.

15 (a) TRAINING OF STATE AND LOCAL OFFICIALS AND

16 CERTAIN PRIVATE PARTIES.—

17 (1) IN GENERAL.—The Secretary of Health and

18 Human Services, acting jointly with the Secretary,

19 shall provide appropriate training materials, and if

20 requested, direct training, to State and county offi21 cials, child welfare specialists, teachers, public coun22 sel, and juvenile judges who come into contact with

23 unaccompanied alien children.

24 (2) CURRICULUM.—The training shall provide

25 education on the processes pertaining to unaccom-
†

42

S 119 ES

1 panied alien children with pending immigration sta2 tus and on the forms of relief potentially available.

3 The Director shall be responsible for establishing a

4 core curriculum that can be incorporated into edu5 cation, training, or orientation modules or formats

6 that are currently used by these professionals.

7 (3) VIDEO CONFERENCING.—If direct training

8 is requested under this subsection, such training

9 may be conducted through video conferencing.

10 (b) TRAINING OF DEPARTMENT PERSONNEL.—The

11 Secretary, acting jointly with the Secretary of Health and

12 Human Services, shall provide specialized training to all

13 personnel of the Department who come into contact with

14 unaccompanied alien children. Training for Border Patrol

15 agents and immigration inspectors shall include specific

16 training on identifying children at the United States bor17 ders or at United States ports of entry who have been

18 victimized by smugglers or traffickers, and children for

19 whom asylum or special immigrant relief may be appro20 priate, including children described in section 101(a)(2).

21 SEC. 303. REPORT.

22 Not later than 1 year after the date of enactment

23 of this Act, and annually thereafter, the Secretary of

24 Health and Human Services shall submit a report for the

25 previous fiscal year to the Committee on the Judiciary of
†

43

S 119 ES

1 the Senate and the Committee on the Judiciary of the

2 House of Representatives that contains—

3 (1) data related to the implementation of sec4 tion 462 of the Homeland Security Act (6 U.S.C.

5 279);

6 (2) data regarding the care and placement of

7 children in accordance with this Act;

8 (3) data regarding the provision of child advo9 cate and counsel services under this Act; and

10 (4) any other information that the Director or

11 the Secretary of Health and Human Services deter12 mines to be appropriate.

13 SEC. 304. EFFECTIVE DATE.

14 The amendment made by section 301 shall apply to

15 all aliens who were in the United States before, on, or

16 after the date of enactment of this Act.

17 TITLE IV—CHILDREN REFUGEE

18 AND ASYLUM SEEKERS

19 SEC. 401. GUIDELINES FOR CHILDREN’S ASYLUM CLAIMS.

20 (a) SENSE OF CONGRESS.—Congress—

21 (1) commends the former Immigration and

22 Naturalization Service for its issuance of its ‘‘Guide23 lines for Children’s Asylum Claims’’, dated Decem24 ber 1998, and encourages and supports the imple25 mentation of such guidelines by the Department in
†

44

S 119 ES

1 an effort to facilitate the handling of children’s af2 firmative asylum claims;

3 (2) commends the Executive Office for Immi4 gration Review of the Department of Justice for its

5 issuance of its ‘‘Guidelines for Immigration Court

6 Cases Involving Unaccompanied Alien Children’’,

7 dated September 2004, and encourages and supports

8 the continued implementation of such guidelines by

9 the Executive Office for Immigration Review in its

10 handling of children’s asylum claims before immigra11 tion judges; and

12 (3) understands that the guidelines described in

13 paragraph (2) do not specifically address the issue

14 of asylum claims, but go to the broader issue of un15 accompanied alien children in general.

16 (b) TRAINING.—

17 (1) IMMIGRATION OFFICERS.—The Secretary

18 shall provide periodic comprehensive training under

19 the ‘‘Guidelines for Children’s Asylum Claims’’ to

20 asylum officers and immigration officers who have

21 contact with children in order to familiarize and sen22 sitize such officers to the needs of children asylum

23 seekers.

24 (2) IMMIGRATION JUDGES.—The Executive Of25 fice for Immigration Review shall—
†

45

S 119 ES

1 (A) provide periodic comprehensive train2 ing under the ‘‘Guidelines for Immigration

3 Court Cases Involving Unaccompanied Alien

4 Children’’ and the ‘‘Guidelines for Children’s

5 Asylum Claims’’ to immigration judges and

6 members of the Board of Immigration Appeals;

7 and

8 (B) redistribute to all Immigration Courts

9 the ‘‘Guidelines for Children’s Asylum Claims’’

10 as part of its training of immigration judges.

11 (3) USE OF VOLUNTARY AGENCIES.—Voluntary

12 agencies shall be allowed to assist in the training de13 scribed in this subsection.

14 SEC. 402. UNACCOMPANIED REFUGEE CHILDREN.

15 (a) IDENTIFYING UNACCOMPANIED REFUGEE CHIL16 DREN.—Section 207(e) of the Immigration and Nation17 ality Act (8 U.S.C. 1157(e)) is amended—

18 (1) by redesignating paragraphs (3), (4), (5),

19 (6), and (7) as paragraphs (4), (5), (6), (7), and

20 (8), respectively; and

21 (2) by inserting after paragraph (2) the fol22 lowing:

23 ‘‘(3) An analysis of the worldwide situation

24 faced by unaccompanied refugee children, by region,

25 which shall include an assessment of—
†

46

S 119 ES

1 ‘‘(A) the number of unaccompanied refugee

2 children, by region;

3 ‘‘(B) the capacity of the Department of

4 State to identify such refugees;

5 ‘‘(C) the capacity of the international com6 munity to care for and protect such refugees;

7 ‘‘(D) the capacity of the voluntary agency

8 community to resettle such refugees in the

9 United States;

10 ‘‘(E) the degree to which the United States

11 plans to resettle such refugees in the United

12 States in the coming fiscal year; and

13 ‘‘(F) the fate that will befall such unac14 companied refugee children for whom resettle15 ment in the United States is not possible.’’.

16 (b) TRAINING ON THE NEEDS OF UNACCOMPANIED

17 REFUGEE CHILDREN.—Section 207(f)(2) of the Immigra18 tion and Nationality Act (8 U.S.C. 1157(f)(2)) is amended

19 by—

20 (1) striking ‘‘and’’ after ‘‘countries,’’; and

21 (2) inserting before the period at the end the

22 following: ‘‘, and instruction on the needs of unac23 companied refugee children’’.
†

47

S 119 ES

1 SEC. 403. EXCEPTIONS FOR UNACCOMPANIED ALIEN CHIL2 DREN IN ASYLUM AND REFUGEE-LIKE CIR3 CUMSTANCES.

4 (a) PLACEMENT IN REMOVAL PROCEEDINGS.—Any

5 unaccompanied alien child apprehended by the Depart6 ment, except for an unaccompanied alien child subject to

7 exceptions under paragraph (1)(A) or (2) of section

8 (101)(a), shall be placed in removal proceedings under sec9 tion 240 of the Immigration and Nationality Act (8 U.S.C.

10 1229a).

11 (b) EXCEPTION FROM TIME LIMIT FOR FILING ASY12 LUM APPLICATION.—Section 208(a)(2) of the Immigra13 tion and Nationality Act (8 U.S.C. 1158(a)(2)) is amend14 ed by adding at the end the following:

15 ‘‘(E) APPLICABILITY.—Subparagraphs (A)

16 and (B) shall not apply to an unaccompanied

17 alien child as defined in section 101(a)(51).’’.

18 TITLE V—AUTHORIZATION OF

19 APPROPRIATIONS

20 SEC. 501. AUTHORIZATION OF APPROPRIATIONS.

21 (a) IN GENERAL.—There are authorized to be appro22 priated to the Department of Homeland Security, the De23 partment of Justice, and the Department of Health and

24 Human Services, such sums as may be necessary to carry

25 out—
†

48

S 119 ES

1 (1) the provisions of section 462 of the Home2 land Security Act of 2002 (6 U.S.C. 279); and

3 (2) the provisions of this Act.

4 (b) AVAILABILITY OF FUNDS.—Amounts appro5 priated pursuant to subsection (a) shall remain available

6 until expended.

7 TITLE VI—AMENDMENTS TO THE

8 HOMELAND SECURITY ACT

9 OF 2002

10 SEC. 601. ADDITIONAL RESPONSIBILITIES AND POWERS OF

11 THE OFFICE OF REFUGEE RESETTLEMENT

12 WITH RESPECT TO UNACCOMPANIED ALIEN

13 CHILDREN.

14 (a) ADDITIONAL RESPONSIBILITIES OF THE DIREC15 TOR.—Section 462(b)(1) of the Homeland Security Act of

16 2002 (6 U.S.C. 279(b)(1)) is amended—

17 (1) in subparagraph (K), by striking ‘‘and’’ at

18 the end;

19 (2) in subparagraph (L), by striking the period

20 at the end and inserting ‘‘, including regular follow21 up visits to such facilities, placements, and other en22 tities, to assess the continued suitability of such

23 placements; and’’; and

24 (3) by adding at the end the following:
†

49

S 119 ES

1 ‘‘(M) ensuring minimum standards of care

2 for all unaccompanied alien children—

3 ‘‘(i) for whom detention is necessary;

4 and

5 ‘‘(ii) who reside in settings that are

6 alternative to detention.’’.

7 (b) ADDITIONAL POWERS OF THE DIRECTOR.—Sec8 tion 462(b) of the Homeland Security Act of 2002 (6

9 U.S.C. 279(b)) is amended by adding at the end the fol10 lowing:

11 ‘‘(4) AUTHORITY.—In carrying out the duties

12 under paragraph (3), the Director is authorized to—

13 ‘‘(A) contract with service providers to per14 form the services described in sections 102,

15 103, 201, and 202 of the Unaccompanied Alien

16 Child Protection Act of 2005; and

17 ‘‘(B) compel compliance with the terms

18 and conditions set forth in section 103 of the

19 Unaccompanied Alien Child Protection Act of

20 2005, including the power to—

21 ‘‘(i) declare providers to be in breach

22 and seek damages for noncompliance;

23 ‘‘(ii) terminate the contracts of pro24 viders that are not in compliance with such

25 conditions; and
†

50

S 119 ES

1 ‘‘(iii) reassign any unaccompanied

2 alien child to a similar facility that is in

3 compliance with such section.’’.

4 SEC. 602. TECHNICAL CORRECTIONS.

5 Section 462(b) of the Homeland Security Act of 2002

6 (6 U.S.C. 279(b)), as amended by section 601, is

7 amended—

8 (1) in paragraph (3), by striking ‘‘paragraph

9 (1)(G)’’ and inserting ‘‘paragraph (1)’’; and

10 (2) by adding at the end the following:

11 ‘‘(5) STATUTORY CONSTRUCTION.—Nothing in

12 paragraph (2)(B) may be construed to require that

13 a bond be posted for unaccompanied alien children

14 who are released to a qualified sponsor.’’.

15 SEC. 603. EFFECTIVE DATE.

16 The amendments made by this title shall take effect

17 as if included in the Homeland Security Act of 2002 (6

18 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.