II 

118TH CONGRESS 

1ST SESSION S. 3065 

To provide counsel for unaccompanied children, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 17, 2023 

Ms. HIRONO (for herself, Mr. BLUMENTHAL, Mr. BOOKER, Mr. BROWN, Ms. 

BUTLER, Mr. CARDIN, Mr. COONS, Ms. CORTEZ MASTO, Ms. 

DUCKWORTH, Mr. DURBIN, Mr. FETTERMAN, Mrs. GILLIBRAND, Mr. 

HICKENLOOPER, Ms. KLOBUCHAR, Mr. LUJA ́N, Mr. MARKEY, Mr. 

MENENDEZ, Mr. MERKLEY, Mr. MURPHY, Mr. OSSOFF, Mr. PADILLA, 

Mr. SANDERS, Mr. SCHATZ, Ms. SMITH, Ms. WARREN, Mr. WHITEHOUSE, and Mr. WYDEN) introduced the following bill; which was read 

twice and referred to the Committee on the Judiciary 

A BILL 

To provide counsel for unaccompanied 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. 

4 This Act may be cited as the ‘‘Fair Day in Court 

5 for Kids Act of 2023’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


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1 (1) NONCITIZEN.—The term ‘‘noncitizen’’ 

2 means an individual who is not a citizen or national 

3 of the United States. 

4 (2) UNACCOMPANIED CHILD.—The term ‘‘unac5 companied child’’ has the meaning given the term 

6 ‘‘unaccompanied alien child’’ in section 462(g) of the 

7 Homeland Security Act of 2002 (6 U.S.C. 279(g)). 

8 SEC. 3. REFERENCES TO ALIENS. 

9 With respect to an individual who is not a citizen or 

10 national of the United States, any reference in this Act 

11 to a ‘‘noncitizen’’ shall be deemed to refer to an individual 

12 otherwise described as an ‘‘alien’’ in any Federal law, Fed13 eral regulation, or any written instrument issued by the 

14 executive branch of the Government. 

15 SEC. 4. IMPROVING IMMIGRATION COURT EFFICIENCY AND 

16 REDUCING COSTS BY INCREASING ACCESS 

17 TO LEGAL INFORMATION. 

18 (a) DEFINITIONS.—Section 101(a) of the Immigra19 tion and Nationality Act (8 U.S.C. 1101(a)) is amended 

20 by adding at the end the following: 

21 ‘‘(53) The term ‘noncitizen’ means an individual who 

22 is not a citizen or national of the United States. 

23 ‘‘(54) The term ‘unaccompanied child’ has the mean24 ing given the term ‘unaccompanied alien child’ in section 


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1 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 

2 279(g)).’’. 

3 (b) APPOINTMENT OF COUNSEL IN REMOVAL PRO4 CEEDINGS; RIGHT TO REVIEW CERTAIN DOCUMENTS IN

5 REMOVAL PROCEEDINGS.—Section 240(b) of the Immi6 gration and Nationality Act (8 U.S.C. 1229a(b)) is 

7 amended— 

8 (1) in paragraph (4), in the matter preceding 

9 subparagraph (A), by striking ‘‘under regulations of 

10 the Attorney General’’ and inserting ‘‘under regula11 tions of the Attorney General, or in the case of an 

12 unaccompanied child, under regulations of the Sec13 retary of Health and Human Services’’— 

14 (A) in subparagraph (A)— 

15 (i) by striking ‘‘, at no expense to the 

16 Government,’’; and 

17 (ii) by striking the comma at the end 

18 and inserting a semicolon; 

19 (B) by redesignating subparagraphs (B) 

20 and (C) as subparagraphs (D) and (E), respec21 tively; 

22 (C) by inserting after subparagraph (A) 

23 the following: 

24 ‘‘(B) the Attorney General, or in the case 

25 of an unaccompanied child, the Secretary of 


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1 Health and Human Services, may appoint or 

2 provide counsel, at Government expense, to 

3 noncitizens in immigration proceedings; 

4 ‘‘(C) the noncitizen, or the noncitizen’s 

5 counsel, not later than 7 days after receiving a 

6 notice to appear under section 239(a), shall re7 ceive a complete copy of the noncitizen’s immi8 gration file (commonly known as an ‘A-file’) in 

9 the possession of the Department of Homeland 

10 Security (other than documents protected from 

11 disclosure under section 552(b) of title 5, 

12 United States Code);’’; and 

13 (D) in subparagraph (D), as redesignated, 

14 by striking ‘‘, and’’ and inserting ‘‘; and’’; and 

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

16 ‘‘(8) FAILURE TO PROVIDE NONCITIZEN RE17 QUIRED DOCUMENTS.—A removal proceeding may 

18 not proceed until the noncitizen, or the noncitizen’s 

19 counsel if the noncitizen is represented— 

20 ‘‘(A) has received the documents required 

21 under paragraph (4)(C); and 

22 ‘‘(B) has been provided at least 10 days to 

23 review and assess such documents, unless the 

24 noncitizen or the noncitizen’s counsel expressly 

25 waives such review period.’’. 


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1 (c) CLARIFICATION REGARDING THE AUTHORITY OF

2 THE FEDERAL GOVERNMENT TO APPOINT COUNSEL TO

3 NONCITIZENS IN IMMIGRATION PROCEEDINGS.— 

4 (1) IN GENERAL.—Section 292 of the Immigra5 tion and Nationality Act (8 U.S.C. 1362) is amend6 ed to read as follows: 

7 ‘‘SEC. 292. RIGHT TO COUNSEL. 

8 ‘‘(a) IN GENERAL.—In any removal proceeding be9 fore the Attorney General, an appeal from such a removal 

10 proceeding, and any related matter before the Department 

11 of Homeland Security or a State court, an unaccompanied 

12 child shall have the privilege of being represented by such 

13 counsel as may be authorized to practice in such pro14 ceeding or matter as he or she may choose. This sub15 section shall not apply to screening proceedings described 

16 in section 235(b)(1)(A). 

17 ‘‘(b) ACCESS TO COUNSEL FOR UNACCOMPANIED

18 CHILDREN.— 

19 ‘‘(1) IN GENERAL.—In any removal proceeding 

20 before the Attorney General, an appeal from such a 

21 removal proceeding, and any related matter before 

22 the Department of Homeland Security or a State 

23 court, an unaccompanied child shall be represented 

24 by counsel appointed or provided by the Secretary of 

25 Health and Human Services, at Government exVerDate Sep 11 2014 21:35 Oct 19, 2023 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3065.IS S3065

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1 pense, unless the child has obtained at his or her 

2 own expense counsel authorized to practice in such 

3 proceeding or matter. 

4 ‘‘(2) TIMING.—The Secretary of Health and 

5 Human Services shall appoint or provide counsel to 

6 an unaccompanied child under paragraph (1) as ex7 peditiously as possible after the earlier of— 

8 ‘‘(A) the date on which a Notice to Appear 

9 for removal proceedings is issued to the unac10 companied child, regardless of whether the No11 tice to Appear has been filed with an immigra12 tion court; or 

13 ‘‘(B) the date on which the unaccompanied 

14 child is placed in the custody of the Secretary 

15 of Health and Human Services. 

16 ‘‘(3) LENGTH OF REPRESENTATION.—An unac17 companied child shall be represented by counsel 

18 under paragraph (1) at every stage of the pro19 ceedings, beginning with the unaccompanied child’s 

20 initial appearance before an official with adjudica21 tory authority in removal proceedings or in related 

22 matters before the Department of Homeland Secu23 rity or a State court, through the termination of im24 migration proceedings and resolution of any related 

25 matter before the Department of Homeland Security 


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1 or a State court, even if the child attains 18 years 

2 of age or is reunified with a parent or legal guardian 

3 while the proceedings are pending. 

4 ‘‘(4) CONTINUITY IN REPRESENTATION.—If 

5 counsel retained by an unaccompanied child at his or 

6 her own expense ceases representing the child for 

7 any reason, the Secretary of Health and Human 

8 Services shall ensure continued representation of the 

9 child by appointing or providing new counsel as ex10 peditiously as possible. 

11 ‘‘(5) NOTICE.—Not later than 72 hours after 

12 an unaccompanied child is taken into Federal cus13 tody, the child shall be notified that he or she will 

14 be provided with legal counsel in accordance with 

15 this subsection. 

16 ‘‘(6) WITHIN DETENTION FACILITIES.—The 

17 Secretary of Homeland Security shall ensure that 

18 unaccompanied children have access to counsel in19 side all detention, holding, and border facilities. 

20 ‘‘(c) PRO BONO REPRESENTATION.— 

21 ‘‘(1) IN GENERAL.—To the maximum extent 

22 practicable, the Secretary of Health and Human 

23 Services shall make every effort to use the services 

24 of competent counsel who agree to provide represenVerDate Sep 11 2014 21:35 Oct 19, 2023 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3065.IS S3065

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1 tation to such children under subsection (b) without 

2 charge to the child. 

3 ‘‘(2) DEVELOPMENT OF NECESSARY INFRA4 STRUCTURES AND SYSTEMS.—The Secretary of 

5 Health and Human Services shall establish the nec6 essary infrastructure and systems for the appro7 priate identification, recruitment, training, and over8 sight of counsel available to provide assistance and 

9 representation to unaccompanied children under sub10 section (b) without charge to the child. 

11 ‘‘(d) MODEL GUIDELINES ON LEGAL REPRESENTA12 TION OF CHILDREN.— 

13 ‘‘(1) DEVELOPMENT OF GUIDELINES.—The Di14 rector of the Office of Refugee Resettlement, in con15 sultation with the Director of the Executive Office 

16 for Immigration Review, the Secretary of Homeland 

17 Security, and nongovernmental stakeholders with 

18 relevant expertise in providing immigration-related 

19 legal services to children, shall develop model guide20 lines for the legal representation of unaccompanied 

21 children in immigration proceedings, which shall be 

22 based on— 

23 ‘‘(A) the 2018 report of the American Bar 

24 Association entitled ‘Standards for the Custody, 

25 Placement and Care; Legal Representation; and 


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1 Adjudication of Unaccompanied Alien Children 

2 in the United States’; 

3 ‘‘(B) the American Bar Association Model 

4 Rules of Professional Conduct; and 

5 ‘‘(C) any other source the Director of the 

6 Office of Refugee Resettlement considers appro7 priate. 

8 ‘‘(2) PURPOSE OF GUIDELINES.—The guide9 lines developed under paragraph (1) shall be de10 signed to help protect each child from any individual 

11 suspected of involvement in any criminal, harmful, 

12 or exploitative activity associated with the smuggling 

13 or trafficking of children, while ensuring the fairness 

14 of the immigration proceeding in which the child is 

15 involved. 

16 ‘‘(e) DUTIES OF COUNSEL.—The duties of counsel 

17 appointed or provided under this section shall include— 

18 ‘‘(1) representing the unaccompanied alien child 

19 concerned— 

20 ‘‘(A) in all proceedings and matters relat21 ing to the immigration status of the child and; 

22 ‘‘(B) with respect to any other action in23 volving the Department of Homeland Security; 

24 ‘‘(2) appearing in person for each of the 

25 child’s— 


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1 ‘‘(A) individual merits hearings and master 

2 calendar hearings before the Executive Office 

3 for Immigration Review; and 

4 ‘‘(B) interviews involving the Department 

5 of Homeland Security; 

6 ‘‘(3) owing the same duties of undivided loyalty, 

7 confidentiality, and competent representation to the 

8 child as is due to an adult client; 

9 ‘‘(4) advocating for the child’s legal interests, 

10 as directed by the child’s express wishes; 

11 ‘‘(5) in the case of a child who does not express 

12 the objectives of representation, or is found incom13 petent, referring the child for the appointment of an 

14 independent child advocate, as described in section 

15 235(c)(6) of the William Wilberforce Trafficking 

16 Victims Protection Reauthorization Act of 2008 (8 

17 U.S.C. 1232(c)(6)); and 

18 ‘‘(6) carrying out other such duties as may be 

19 prescribed by the Secretary of Health and Human 

20 Services or the Director of the Executive Office for 

21 Immigration Review. 

22 ‘‘(f) SAVINGS PROVISION.—Nothing in this section 

23 may be construed to supersede— 


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1 ‘‘(1) any duties, responsibilities, disciplinary, or 

2 ethical responsibilities an attorney may have to his 

3 or her client under State law; 

4 ‘‘(2) the admission requirements under State 

5 law; or 

6 ‘‘(3) any other State law pertaining to the ad7 mission to the practice of law in a particular juris8 diction.’’. 

9 (2) RULEMAKING.—The Secretary of Health 

10 and Human Services shall promulgate regulations to 

11 implement section 292 of the Immigration and Na12 tionality Act, as added by paragraph (1), in accord13 ance with the requirements set forth in section 

14 3006A of title 18, United States Code. 

15 SEC. 5. ACCESS BY COUNSEL TO DEPARTMENT OF HOME16 LAND SECURITY FACILITIES. 

17 The Secretary of Homeland Security shall provide ac18 cess to counsel for all noncitizens detained in— 

19 (1) a facility under the supervision of U.S. Im20 migration and Customs Enforcement or U.S. Cus21 toms and Border Protection; or 

22 (2) a private facility that contracts with the De23 partment of Homeland Security to house, detain, or 

24 hold noncitizens. 


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1 SEC. 6. REPORT ON ACCESS TO COUNSEL. 

2 (a) REPORT.—Not later than December 31 of each 

3 year, the Secretary of Health and Human Services, in con4 sultation with the Attorney General, shall prepare and 

5 submit a report to the Committee on the Judiciary of the 

6 Senate and the Committee on the Judiciary of the House 

7 of Representatives regarding the extent to which the Sec8 retary has provided counsel for unaccompanied children 

9 as described in subsection (b) of section 292 of the Immi10 gration and Nationality Act, as amended by section 4(c). 

11 (b) CONTENTS.—Each report submitted under para12 graph (a) shall include, for the immediately preceding 1- 

13 year period— 

14 (1) the number and percentage of unaccom15 panied children described in subsection (b) of section 

16 292 of the Immigration and Nationality Act, as 

17 amended by section 4(c), who were represented by 

18 counsel, including information specifying— 

19 (A) the stage of the legal process at which 

20 representation of each such child commenced; 

21 (B) whether each such child was in govern22 ment custody on the date on which such rep23 resentation commenced; and 

24 (C) the nationality and ages of such chil25 dren; 


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1 (2) the number and percentage of children who 

2 received Know Your Rights presentations or legal 

3 screenings, including the nationality and ages of 

4 such children; and 

5 (3) a description of the mechanisms used under 

6 subsection (b) of section 292 of the Immigration and 

7 Nationality Act, as added by section 4(c), for identi8 fying, recruiting, and training pro bono counsel to 

9 represent unaccompanied children. 

10 SEC. 7. MOTIONS TO REOPEN. 

11 Section 240(c)(7)(C) of the Immigration and Nation12 ality Act (8 U.S.C. 1229a(c)(7)(C)) is amended by adding 

13 at the end the following: 

14 ‘‘(v) SPECIAL RULE FOR UNACCOM15 PANIED CHILDREN ENTITLED TO APPOINT16 MENT OF COUNSEL.—If the Secretary of 

17 Health and Human Services fails to ap18 point or provide counsel for an unaccom19 panied child under section 292(b)— 

20 ‘‘(I) the limitations under this 

21 paragraph with respect to the filing of 

22 a motion to reopen by such child shall 

23 not apply; and 

24 ‘‘(II) the filing of such a motion 

25 shall stay the removal of the child.’’. 


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1 SEC. 8. AUTHORIZATION OF APPROPRIATIONS. 

2 (a) IN GENERAL.—There is authorized to be appro3 priated to the Office of Refugee Resettlement such sums 

4 as may be necessary to carry out this Act. 

5 (b) BUDGETARY EFFECTS.—The budgetary effects of 

6 this Act, for the purpose of complying with the Statutory 

7 Pay-As-You-Go Act of 2010, shall be determined by ref8 erence to the latest statement titled ‘‘Budgetary Effects 

9 of PAYGO Legislation’’ for this Act, submitted for print10 ing in the Congressional Record by the Chairman of the 

11 Senate Budget Committee, provided that such statement 

12 has been submitted prior to the vote on passage. 

Æ 


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