II 

117TH CONGRESS 

1ST SESSION S. 3108 

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

IN THE SENATE OF THE UNITED STATES 

OCTOBER 28, 2021 

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

COONS, Ms. CORTEZ MASTO, Mr. DURBIN, Mrs. FEINSTEIN, Mrs. GILLIBRAND, Mr. HEINRICH, Mr. HICKENLOOPER, Ms. KLOBUCHAR, Mr. 

LEAHY, Mr. MARKEY, Mr. MENENDEZ, Mr. MERKLEY, Mr. MURPHY, Mr. 

PADILLA, Mr. REED, Ms. ROSEN, 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 2021’’. 

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 and 

9 in any appeal proceeding before the Attorney General from 

10 any such removal proceeding, the subject of the proceeding 

11 shall have the privilege of being represented by such coun12 sel as may be authorized to practice in such proceeding 

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

14 to screening proceedings described in section 

15 235(b)(1)(A). 

16 ‘‘(b) ACCESS TO COUNSEL FOR UNACCOMPANIED

17 CHILDREN.— 

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

19 and in any appeal proceeding before the Attorney 

20 General from any such removal proceeding, an unac21 companied child shall be represented by counsel ap22 pointed or provided by the Secretary of Health and 

23 Human Services, at Government expense, unless the 

24 child has obtained at his or her own expense counsel 

25 authorized to practice in such proceeding. 


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

2 Human Services shall appoint or provide counsel to 

3 an unaccompanied child under paragraph (1)— 

4 ‘‘(A) as expeditiously as possible; and 

5 ‘‘(B) not later than the date on which the 

6 child is first scheduled to appear before an im7 migration judge. 

8 ‘‘(3) LENGTH OF REPRESENTATION.—An unac9 companied child shall be represented by counsel 

10 under paragraph (1) at every stage of the pro11 ceedings from the unaccompanied child’s initial ap12 pearance through the termination of immigration 

13 proceedings, and any ancillary matters appropriate 

14 to such proceedings even if the child attains 18 

15 years of age or is reunified with a parent or legal 

16 guardian while the proceedings are pending. 

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

18 counsel retained by an unaccompanied child at his or 

19 her own expense ceases representing the child for 

20 any reason, the Secretary of Health and Human 

21 Services shall ensure continued representation of the 

22 child by appointing or providing new counsel as ex23 peditiously as possible. 

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

25 an unaccompanied child is taken into Federal cusVerDate Sep 11 2014 21:48 Nov 01, 2021 Jkt 029200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3108.IS S3108

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1 tody, the child shall be notified that he or she will 

2 be provided with legal counsel in accordance with 

3 this subsection. 

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

5 Secretary of Homeland Security shall ensure that 

6 unaccompanied children have access to counsel in7 side all detention, holding, and border facilities. 

8 ‘‘(c) PRO BONO REPRESENTATION.— 

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

10 practicable, the Secretary of Health and Human 

11 Services shall make every effort to use the services 

12 of competent counsel who agree to provide represen13 tation to such children under subsection (b) without 

14 charge. 

15 ‘‘(2) DEVELOPMENT OF NECESSARY INFRA16 STRUCTURES AND SYSTEMS.—Through appropriate 

17 nonprofit organizations described in subsection (d), 

18 the Secretary of Health and Human Services shall 

19 ensure the availability of the necessary mechanisms 

20 to identify, recruit, train, and oversee counsel avail21 able to provide pro bono legal assistance and rep22 resentation to unaccompanied children under sub23 section (b). 

24 ‘‘(d) CONTRACTS; GRANTS.— 


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1 ‘‘(1) IN GENERAL.—The Secretary of Health 

2 and Human Services may enter into contracts with, 

3 or award grants to, nonprofit organizations with rel4 evant expertise in the delivery of immigration-related 

5 legal services to children to carry out the responsibil6 ities under this section, including providing legal ori7 entation, screening cases for referral, identifying, re8 cruiting, training, and overseeing pro bono attor9 neys. 

10 ‘‘(2) SUBCONTRACTS AND SUBGRANTS PER11 MITTED.—Nonprofit organizations may enter into 

12 subcontracts with, or award grants to, other non13 profit organizations with relevant expertise in the 

14 delivery of immigration-related legal services to chil15 dren in order to carry out this section. 

16 ‘‘(e) MODEL GUIDELINES ON LEGAL REPRESENTA17 TION OF CHILDREN.— 

18 ‘‘(1) DEVELOPMENT OF GUIDELINES.—The Di19 rector of the Office of Refugee Resettlement, in con20 sultation with the Director of the Executive Office 

21 for Immigration Review and nonprofit organizations 

22 with relevant expertise in providing immigration-re23 lated legal services to children, shall develop model 

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1 panied children in immigration proceedings, which 

2 shall be based on— 

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

4 Association entitled ‘Standards for the Custody, 

5 Placement and Care; Legal Representation; and 

6 Adjudication of Unaccompanied Alien Children 

7 in the United States’; 

8 ‘‘(B) the American Bar Association Model 

9 Rules of Professional Conduct; and 

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

11 Office of Refugee Resettlement considers appro12 priate. 

13 ‘‘(2) PURPOSE OF GUIDELINES.—The guide14 lines developed under paragraph (1) shall be de15 signed to help protect each child from any individual 

16 suspected of involvement in any criminal, harmful, 

17 or exploitative activity associated with the smuggling 

18 or trafficking of children, while ensuring the fairness 

19 of the removal proceeding in which the child is in20 volved. 

21 ‘‘(f) DUTIES OF COUNSEL.—The duties of counsel 

22 appointed or provided under this section shall include— 

23 ‘‘(1) representing the unaccompanied alien child 

24 concerned— 


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1 ‘‘(A) in all proceedings and matters relat2 ing to the immigration status of the child and; 

3 ‘‘(B) with respect to any other action in4 volving the Department of Homeland Security; 

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

6 child’s— 

7 ‘‘(A) individual merits hearings and master 

8 calendar hearings before the Executive Office 

9 for Immigration Review; and 

10 ‘‘(B) interviews involving the Department 

11 of Homeland Security; 

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

13 confidentiality, and competent representation to the 

14 child as is due to an adult client; 

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

16 as directed by the child’s express wishes; 

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

18 the objectives of representation, or is found incom19 petent, referring the child for the appointment of an 

20 independent child advocate, as described in section 

21 235(c)(6) of the William Wilberforce Trafficking 

22 Victims Protection Reauthorization Act of 2008 (8 

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

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

25 prescribed by the Secretary of Health and Human 


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1 Services or the Director of the Executive Office for 

2 Immigration Review. 

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

4 may be construed to supersede— 

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

6 ethical responsibilities an attorney may have to his 

7 or her client under State law; 

8 ‘‘(2) the admission requirements under State 

9 law; or 

10 ‘‘(3) any other State law pertaining to the ad11 mission to the practice of law in a particular juris12 diction.’’. 

13 (2) RULEMAKING.—The Secretary of Health 

14 and Human Services shall promulgate regulations to 

15 implement section 292 of the Immigration and Na16 tionality Act, as added by paragraph (1), in accord17 ance with the requirements set forth in section 

18 3006A of title 18, United States Code. 

19 SEC. 5. ACCESS BY COUNSEL TO DEPARTMENT OF HOME20 LAND SECURITY FACILITIES. 

21 The Secretary of Homeland Security shall provide ac22 cess to counsel for all noncitizens detained in— 

23 (1) a facility under the supervision of U.S. Im24 migration and Customs Enforcement or U.S. Cus25 toms and Border Protection; or 


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1 (2) a private facility that contracts with the De2 partment of Homeland Security to house, detain, or 

3 hold noncitizens. 

4 SEC. 6. REPORT ON ACCESS TO COUNSEL. 

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

6 year, the Secretary of Health and Human Services, in con7 sultation with the Attorney General, shall prepare and 

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

9 Senate and the Committee on the Judiciary of the House 

10 of Representatives regarding the extent to which the Sec11 retary has provided counsel for unaccompanied children 

12 as described in subsection (b) of section 292 of the Immi13 gration and Nationality Act, as amended by section 4(c). 

14 (b) CONTENTS.—Each report submitted under para15 graph (a) shall include, for the immediately preceding 1- 

16 year period— 

17 (1) the number and percentage of unaccom18 panied children described in subsection (b) of section 

19 292 of the Immigration and Nationality Act, as 

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

21 counsel, including information specifying— 

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

23 representation of each such child commenced; 


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1 (B) whether each such child was in govern2 ment custody on the date on which such rep3 resentation commenced; and 

4 (C) the nationality and ages of such chil5 dren; 

6 (2) the number and percentage of children who 

7 received Know Your Rights presentations, including 

8 the nationality and ages of such children; and 

9 (3) a description of the mechanisms used under 

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

11 Nationality Act, as added by section 4(c), for identi12 fying, recruiting, and training pro bono counsel to 

13 represent unaccompanied children. 

14 SEC. 7. MOTIONS TO REOPEN. 

15 Section 240(c)(7)(C) of the Immigration and Nation16 ality Act (8 U.S.C. 1229a(c)(7)(C)) is amended by adding 

17 at the end the following: 

18 ‘‘(v) SPECIAL RULE FOR UNACCOM19 PANIED CHILDREN ENTITLED TO APPOINT20 MENT OF COUNSEL.—If the Secretary of 

21 Health and Human Services fails to ap22 point or provide counsel for an unaccom23 panied child under section 292(b)— 

24 ‘‘(I) the limitations under this 

25 paragraph with respect to the filing of 


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1 a motion to repopen by such child 

2 shall not apply; and 

3 ‘‘(II) the filing of such a motion 

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

5 SEC. 8. AUTHORIZATION OF APPROPRIATIONS. 

6 (a) IN GENERAL.—There is authorized to be appro7 priated to the Office of Refugee Resettlement such sums 

8 as may be necessary to carry out this Act. 

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

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

11 Pay-As-You-Go Act of 2010, shall be determined by ref12 erence to the latest statement titled ‘‘Budgetary Effects 

13 of PAYGO Legislation’’ for this Act, submitted for print14 ing in the Congressional Record by the Chairman of the 

15 Senate Budget Committee, provided that such statement 

16 has been submitted prior to the vote on passage. 

Æ 


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