II 

115TH CONGRESS 

2D SESSION S. 2468 

To provide access to counsel for unaccompanied alien children. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 28, 2018 

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

CORTEZ MASTO, Mrs. FEINSTEIN, Mrs. GILLIBRAND, Mr. MARKEY, Mr. 

MERKLEY, Mr. MURPHY, Mr. WYDEN, Mr. MENENDEZ, and Ms. HARRIS) 

introduced the following bill; which was read twice and referred to the 

Committee on the Judiciary 

A BILL 

To provide access to counsel for unaccompanied alien 

children. 

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 2018’’. 


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•S 2468 IS

1 SEC. 2. IMPROVING IMMIGRATION COURT EFFICIENCY AND 

2 REDUCING COSTS BY INCREASING ACCESS 

3 TO LEGAL INFORMATION. 

4 (a) APPOINTMENT OF COUNSEL IN REMOVAL PRO5 CEEDINGS; RIGHT TO REVIEW CERTAIN DOCUMENTS IN

6 REMOVAL PROCEEDINGS.—Section 240(b) of the Immi7 gration and Nationality Act (8 U.S.C. 1229a(b)) is 

8 amended— 

9 (1) in paragraph (4)— 

10 (A) in subparagraph (A)— 

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

12 Government,’’; and 

13 (ii) by striking the comma at the end 

14 and inserting a semicolon; 

15 (B) by redesignating subparagraphs (B) 

16 and (C) as subparagraphs (D) and (E), respec17 tively; 

18 (C) by inserting after subparagraph (A) 

19 the following: 

20 ‘‘(B) the Attorney General may appoint or 

21 provide counsel, at Government expense, to 

22 aliens in immigration proceedings; 

23 ‘‘(C) the alien, or the alien’s counsel, not 

24 later than 7 days after receiving a notice to ap25 pear under section 239(a), shall receive a com26 plete copy of the alien’s immigration file (comVerDate Sep 11 2014 02:03 Mar 06, 2018 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468

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1 monly known as an ‘A-file’) in the possession of 

2 the Department of Homeland Security (other 

3 than documents protected from disclosure under 

4 section 552(b) of title 5, United States Code);’’; 

5 and 

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

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

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

9 ‘‘(8) FAILURE TO PROVIDE ALIEN REQUIRED

10 DOCUMENTS.—A removal proceeding may not pro11 ceed until the alien, or the alien’s counsel, if the 

12 alien is represented— 

13 ‘‘(A) has received the documents required 

14 under paragraph (4)(C); and 

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

16 review and assess such documents.’’. 

17 (b) CLARIFICATION REGARDING THE AUTHORITY OF

18 THE ATTORNEY GENERAL TO APPOINT COUNSEL TO

19 ALIENS IN IMMIGRATION PROCEEDINGS.— 

20 (1) IN GENERAL.—Section 292 of the Immigra21 tion and Nationality Act (8 U.S.C. 1362) is amend22 ed to read as follows: 

23 ‘‘SEC. 292. RIGHT TO COUNSEL. 

24 ‘‘(a) IN GENERAL.—Except as provided in sub25 sections (b) and (c), in any removal proceeding and in any 


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1 appeal proceeding before the Attorney General from any 

2 such removal proceeding, the subject of the proceeding 

3 shall have the privilege of being represented by such coun4 sel as may be authorized to practice in such proceeding 

5 as he or she may choose. This subsection shall not apply 

6 to screening proceedings described in section 

7 235(b)(1)(A). 

8 ‘‘(b) ACCESS TO COUNSEL FOR UNACCOMPANIED

9 ALIEN CHILDREN.— 

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

11 and in any appeal proceeding before the Attorney 

12 General from any such removal proceeding, an unac13 companied alien child (as defined in section 462(g) 

14 of the Homeland Security Act on 2002 (6 U.S.C. 

15 279(g))) shall be represented by Government-ap16 pointed counsel, at Government expense. 

17 ‘‘(2) LENGTH OF REPRESENTATION.—Once a 

18 child is designated as an unaccompanied alien child 

19 under paragraph (1), the child shall be represented 

20 by counsel at every stage of the proceedings from 

21 the child’s initial appearance through the termi22 nation of immigration proceedings, and any ancillary 

23 matters appropriate to such proceedings even if the 

24 child attains 18 years of age or is reunified with a 


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1 parent or legal guardian while the proceedings are 

2 pending. 

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

4 an unaccompanied alien child is taken into Federal 

5 custody, the alien shall be notified that he or she will 

6 be provided with legal counsel in accordance with 

7 this subsection. 

8 ‘‘(4) WITHIN DETENTION FACILITIES.—The 

9 Secretary of Homeland Security shall ensure that 

10 unaccompanied alien children have access to counsel 

11 inside all detention, holding, and border facilities. 

12 ‘‘(c) PRO BONO REPRESENTATION.— 

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

14 practicable, the Attorney General should make every 

15 effort to utilize the services of competent counsel 

16 who agree to provide representation to such children 

17 under subsection (b) without charge. 

18 ‘‘(2) DEVELOPMENT OF NECESSARY INFRA19 STRUCTURES AND SYSTEMS.—The Attorney General 

20 shall develop the necessary mechanisms to identify 

21 counsel available to provide pro bono legal assistance 

22 and representation to children under subsection (b) 

23 and to recruit such counsel. 

24 ‘‘(d) CONTRACTS; GRANTS.—The Attorney General 

25 may enter into contracts with, or award grants to, nonVerDate Sep 11 2014 02:03 Mar 06, 2018 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468

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1 profit agencies with relevant expertise in the delivery of 

2 immigration-related legal services to children to carry out 

3 the responsibilities under this section, including providing 

4 legal orientation, screening cases for referral, recruiting, 

5 training, and overseeing pro bono attorneys. Nonprofit 

6 agencies may enter into subcontracts with, or award 

7 grants to, private voluntary agencies with relevant exper8 tise in the delivery of immigration related legal services 

9 to children in order to carry out this section. 

10 ‘‘(e) MODEL GUIDELINES ON LEGAL REPRESENTA11 TION OF CHILDREN.— 

12 ‘‘(1) DEVELOPMENT OF GUIDELINES.—The Ex13 ecutive Office for Immigration Review, in consulta14 tion with voluntary agencies and national experts, 

15 shall develop model guidelines for the legal represen16 tation of alien children in immigration proceedings, 

17 which shall be based on the children’s asylum guide18 lines, the American Bar Association Model Rules of 

19 Professional Conduct, and other relevant domestic or 

20 international sources. 

21 ‘‘(2) PURPOSE OF GUIDELINES.—The guide22 lines developed under paragraph (1) shall be de23 signed to help protect each child from any individual 

24 suspected of involvement in any criminal, harmful, 

25 or exploitative activity associated with the smuggling 


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1 or trafficking of children, while ensuring the fairness 

2 of the removal proceeding in which the child is in3 volved. 

4 ‘‘(f) DUTIES OF COUNSEL.—Counsel provided under 

5 this section shall— 

6 ‘‘(1) represent the unaccompanied alien child in 

7 all proceedings and matters relating to the immigra8 tion status of the child or other actions involving the 

9 Department of Homeland Security; 

10 ‘‘(2) appear in person for all individual merits 

11 hearings before the Executive Office for Immigration 

12 Review and interviews involving the Department of 

13 Homeland Security; 

14 ‘‘(3) owe the same duties of undivided loyalty, 

15 confidentiality, and competent representation to the 

16 child as is due to an adult client; and 

17 ‘‘(4) carry out other such duties as may be pro18 scribed by the Attorney General or the Executive Of19 fice for Immigration Review. 

20 ‘‘(g) SAVINGS PROVISION.—Nothing in this section 

21 may be construed to supersede— 

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

23 ethical responsibilities an attorney may have to his 

24 or her client under State law; 


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1 ‘‘(2) the admission requirements under State 

2 law; or 

3 ‘‘(3) any other State law pertaining to the ad4 mission to the practice of law in a particular juris5 diction.’’. 

6 (2) RULEMAKING.—The Attorney General shall 

7 promulgate regulations to implement section 292 of 

8 the Immigration and Nationality Act, as added by 

9 paragraph (1), in accordance with the requirements 

10 set forth in section 3006A of title 18, United States 

11 Code. 

12 SEC. 3. ACCESS BY COUNSEL AND LEGAL ORIENTATION AT 

13 DETENTION FACILITIES. 

14 The Secretary of Homeland Security shall provide ac15 cess to counsel for all aliens detained in a facility under 

16 the supervision of U.S. Immigration and Customs En17 forcement, U.S. Customs and Border Protection, or the 

18 Department of Health and Human Services, or in any pri19 vate facility that contracts with the Federal Government 

20 to house, detain, or hold aliens. 

21 SEC. 4. REPORT ON ACCESS TO COUNSEL. 

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

23 year, the Secretary of Homeland Security, in consultation 

24 with the Attorney General, shall prepare and submit a re25 port to the Committee on the Judiciary of the Senate and 


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1 the Committee on the Judiciary of the House of Rep2 resentatives regarding the extent to which aliens described 

3 in section 292(b) of the Immigration and Nationality Act, 

4 as added by section 2(b), have been provided access to 

5 counsel. 

6 (b) CONTENTS.—Each report submitted under para7 graph (a) shall include, for the immediately preceding 1- 

8 year period— 

9 (1) the number and percentage of aliens de10 scribed in section 292(b) of the Immigration and 

11 Nationality Act, as added by section 2(b), who were 

12 represented by counsel, including information speci13 fying— 

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

15 each such alien was represented; 

16 (B) whether the alien was in government 

17 custody; and 

18 (C) the nationality and ages of such aliens; 

19 and 

20 (2) the number and percentage of aliens who 

21 received legal orientation presentations, including 

22 the nationality and ages of such aliens. 

23 SEC. 5. AUTHORIZATION OF APPROPRIATIONS. 

24 (a) IN GENERAL.—There is authorized to be appro25 priated to the Executive Office of Immigration Review of 


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1 the Department of Justice such sums as may be necessary 

2 to carry out this Act. 

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

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

5 Pay-As-You-Go-Act of 2010, shall be determined by ref6 erence to the latest statement titled ‘‘Budgetary Effects 

7 of PAYGO Legislation’’ for this Act, submitted for print8 ing in the Congressional Record by the Chairman of the 

9 Senate Budget Committee, provided that such statement 

10 has been submitted prior to the vote on passage. 

Æ 


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