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[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 9040 Introduced in House (IH)]

<DOC>

116th CONGRESS
  2d Session
                                H. R. 9040

 To protect aliens seeking asylum in the United States, and for other 
                               purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                           December 21, 2020

  Mr. Amash introduced the following bill; which was referred to the 
    Committee on the Judiciary, and in addition to the Committee on 
 Homeland Security, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL

 
 To protect aliens seeking asylum in the United States, and for other 
                               purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Protect Asylum Seekers Act''.

SEC. 2. LIMITATION ON PROSECUTION OF ASYLUM SEEKERS.

    Section 275 of the Immigration and Nationality Act (8 U.S.C. 1325) 
is amended--
            (1) in subsection (a), by striking ``Any alien'' and 
        inserting ``Except as provided in subsection (e), any alien'';
            (2) in subsection (b), by striking ``Any alien'' and 
        inserting ``Except as provided in subsection (e), any alien''; 
        and
            (3) by adding at the end the following:
    ``(e)(1) Subsections (a)(1) and (b) shall not apply in the case of 
an alien who presents himself to an immigration officer or an asylum 
officer without unnecessary delay after entering the United States, and 
indicates an intention to apply for asylum under section 208 or a fear 
of persecution (as defined in section 235(b)(1)(B)(v)).
    ``(2) The exception under this subsection applies regardless of 
whether the alien is found to have a credible fear of persecution, or 
is granted asylum, except in the case that an asylum officer determines 
that the alien's claim for asylum or fear of persecution was 
fraudulent. In the case that an asylum officer determines that a claim 
for asylum is fraudulent under this paragraph, the officer shall 
document such determination, and the reason for such determination, in 
writing.
    ``(3) A claim for asylum or a fear of persecution may not be 
determined to be fraudulent under paragraph (2) on the basis that--
            ``(A) the alien entered or attempted to enter the United 
        States at any time or place other than as designated by 
        immigration officers;
            ``(B) the alien's claim is based on fearing gang violence 
        or domestic violence; or
            ``(C) the alien entered or attempted to enter the United 
        States with the alien's child who had not attained the age of 
        18.''.

SEC. 3. TRANSFER OF ASYLUM SEEKERS TO ASYLUM INTERVIEW LOCATIONS.

    An alien who presents himself to an immigration officer or an 
asylum officer as described in section 275(e)(1) of the Immigration and 
Nationality Act shall be transferred to a port of entry or place 
designated for asylum interviews under section 235(b)(1)(B)(i) of that 
Act to undergo an interview by an asylum officer under such section 
235, unless the alien presents himself at such a location.

SEC. 4. LIMITATION ON THE SEPARATION OF FAMILIES.

    (a) In General.--An agent or officer of a designated agency may not 
remove a child from his or her parent or legal guardian if the parent 
or legal guardian has not been referred for prosecution, unless one of 
the following has occurred:
            (1) A State court, authorized under State law, terminates 
        the rights of a parent or legal guardian, determines that it is 
        in the best interests of the child to be removed from his or 
        her parent or legal guardian, in accordance with the Adoption 
        and Safe Families Act of 1997 (Public Law 105-89), or makes any 
        similar determination that is legally authorized under State 
        law.
            (2) An official from the State or county child welfare 
        agency with expertise in child trauma and development makes a 
        determination that it is in the best interests of the child to 
        be removed from his or her parent or legal guardian because the 
        child is in danger of abuse or neglect at the hands of the 
        parent or legal guardian, or is a danger to himself or others.
            (3) The Chief Patrol Agent or the Area Port Director, in 
        their official and undelegated capacity, authorizes separation 
        upon the recommendation by an agent or officer of a designated 
        agency, based on a finding that--
                    (A) the child is a victim of trafficking or is at 
                significant risk of becoming a victim of trafficking;
                    (B) there is a strong likelihood that the adult is 
                not the parent or legal guardian of the child; or
                    (C) the child is in danger of abuse or neglect at 
                the hands of the parent or legal guardian, or is a 
                danger to himself or others.
    (b) Prohibition on Separation.--A designated agency may not remove 
a child from a parent or legal guardian solely for the policy goal of 
deterring individuals from migrating to the United States or for the 
policy goal of promoting compliance with civil immigration laws.
    (c) Documentation Required.--The Secretary shall ensure that a 
separation under subsection (a)(3) is documented in writing and 
includes, at a minimum, the reason for such separation, together with 
the stated evidence for such separation.

SEC. 5. RECOMMENDATIONS FOR SEPARATION BY AGENTS OR OFFICERS.

    (a) In General.--Not later than 180 days after the date of the 
enactment of this Act, the Secretary, in consultation with the 
Secretary of Health and Human Services, shall develop training and 
guidance, with an emphasis on the best interests of the child, 
childhood trauma, attachment, and child development, for use by agents 
and officers of designated agencies, in order to standardize the 
implementation of section 4(a)(3).
    (b) Annual Review.--Not less frequently than annually, the 
Secretary of Health and Human Services shall review the guidance 
developed under subsection (a) and make recommendations to the 
Secretary to ensure such guidance is in accordance with current 
evidence and best practices in child welfare, child development, and 
childhood trauma.
    (c) Requirement.--The guidance under subsection (a) shall 
incorporate the presumptions described in subsection (e).
    (d) Additional Requirements.--
            (1) Evidence-based.--The guidance and training developed 
        under this section shall incorporate evidence-based practices.
            (2) Training required.--
                    (A) All agents and officers of designated agencies, 
                upon hire, and annually thereafter, shall complete 
                training on adherence to the guidance under this 
                section.
                    (B) All Chief Patrol Agents and Area Port 
                Directors, upon hire, and annually thereafter, shall 
                complete--
                            (i) training on adherence to the guidance 
                        under this section; and
                            (ii) 90 minutes of child welfare practice 
                        training that is evidence-based and trauma-
                        informed.
    (e) Presumptions.--The presumptions described in this subsection 
are the following:
            (1) Family unity.--There shall be a strong presumption in 
        favor of family unity.
            (2) Siblings.--To the maximum extent practicable, the 
        Secretary shall ensure that sibling groups remain intact.
            (3) Detention.--In general, there is a presumption that 
        detention is not in the best interests of families and 
        children.

SEC. 6. REQUIRED POLICY FOR LOCATING SEPARATED CHILDREN.

    (a) In General.--Not later than 180 days after the date of the 
enactment of this Act, the Secretary shall publish final public 
guidance that describes, with specificity, the manner in which a parent 
or legal guardian may locate a child who was separated from the parent 
or legal guardian under section 3(a). In developing the public 
guidance, the Secretary shall consult with the Secretary of Health and 
Human Services, immigrant advocacy organizations, child welfare 
organizations, and State child welfare agencies.
    (b) Written Notification.--The Secretary shall provide each parent 
or legal guardian of a child who was separated from the child with 
written notice of the public guidance to locate the child.
    (c) Language Access.--All guidance shall be available in English 
and Spanish, and at the request of the parent or legal guardian, in the 
language or manner that is understandable by the parent or legal 
guardian.

SEC. 7. REQUIRED INFORMATION FOR SEPARATED FAMILIES.

    Not less frequently than once every month, the Secretary shall 
provide the parent or legal guardian of a child who was separated from 
the child the following information, at a minimum:
            (1) A status report on the monthly activities of the child.
            (2) Information about the education and health of the 
        child, including any medical treatment provided to the child or 
        medical treatment recommended for the child.
            (3) Information about changes to the child's immigration 
        status.
            (4) Other information about the child, designed to promote 
        and maintain family reunification, as the Secretary determines 
        in his or her discretion.

SEC. 8. ANNUAL REPORT ON FAMILY SEPARATION.

    Not later than 1 year after the date of the enactment of this Act, 
and annually thereafter, the Secretary shall submit a report to the 
committees of jurisdiction that describes each instance in which a 
child was separated from a parent or legal guardian and includes, for 
each such instance, the following:
            (1) The relationship of the adult and the child.
            (2) The age and gender of the adult and child.
            (3) The length of separation.
            (4) Whether the adult was charged with a crime, and if the 
        adult was charged with a crime, the type of crime.
            (5) Whether the adult made a claim for asylum, expressed a 
        fear to return, or applied for other immigration relief.
            (6) Whether the adult was prosecuted if charged with a 
        crime and the associated outcome of such charges.
            (7) The stated reason for, and evidence in support of, the 
        separation.
            (8) If the child was part of a sibling group at the time of 
        separation, whether the sibling group has had physical contact 
        and visitation.
            (9) Whether the child was rendered an unaccompanied alien 
        child.
            (10) Other information in the Secretary's discretion.
The Secretary shall ensure that any information collected, published, 
or otherwise made available under this section does not reveal 
personally identifiable information.

SEC. 9. CLARIFICATION OF PARENTAL RIGHTS.

    If a child is separated from a parent or legal guardian, and a 
State court has not made a determination that the parental rights have 
been terminated, there is a presumption that--
            (1) the parental rights remain intact; and
            (2) the separation does not constitute an affirmative 
        determination of abuse or neglect under Federal or State law.

SEC. 10. CLARIFICATION OF EXISTING LAW.

    (a) Federal Law.--Nothing in this Act shall be interpreted to 
supersede or modify Federal child welfare law, where applicable, 
including the Adoption and Safe Families Act of 1997 (Public Law 105-
89).
    (b) State Law.--Nothing in this Act shall be interpreted to 
supersede or modify State child welfare laws where applicable.

SEC. 11. GAO REPORT ON PROSECUTION OF ASYLUM SEEKERS.

    (a) Study.--The Comptroller General of the United States shall 
conduct a study of the prosecution of asylum seekers during the period 
beginning on January 1, 2008, and ending on December 31, 2020, 
including--
            (1) the total number of persons who claimed a fear of 
        persecution, received a favorable credible fear determination, 
        and were referred for prosecution;
            (2) an overview and analysis of the metrics used by the 
        Department of Homeland Security and the Department of Justice 
        to track the number of asylum seekers referred for prosecution;
            (3) the total number of asylum seekers referred for 
        prosecution, a breakdown and description of the criminal 
        charges filed against asylum seekers during such period, and a 
        breakdown and description of the convictions secured;
            (4) the total number of asylum seekers who were separated 
        from their children as a result of being referred for 
        prosecution;
            (5) a breakdown of the resources spent on prosecuting 
        asylum seekers during such period, as well as any diversion of 
        resources required to prosecute asylum seekers, and any costs 
        imposed on States and localities;
            (6) the total number of asylum seekers who were referred 
        for prosecution and also went through immigration proceedings; 
        and
            (7) the total number of asylum seekers referred for 
        prosecution who were deported before going through immigration 
        proceedings.
    (b) Report.--Not later than 1 year after the date of the enactment 
of this Act, the Comptroller General shall submit to Congress a report 
that describes the results of the study conducted pursuant to 
subsection (a). Such report shall not reveal personally identifiable 
information.

SEC. 12. DEFINITIONS.

    In this Act:
            (1) Agent; officer.--The terms ``agent'' and ``officer'' 
        include contractors of the Federal Government.
            (2) Child.--The term ``child'' means an individual who--
                    (A) has not reached the age of 18; and
                    (B) has no permanent immigration status.
            (3) Committees of jurisdiction.--The term ``committees of 
        jurisdiction'' means--
                    (A) the Committee on the Judiciary, the Committee 
                on Health, Education, Labor, and Pensions, and the 
                Committee on Homeland Security and Governmental Affairs 
                of the Senate; and
                    (B) the Committee on the Judiciary, the Committee 
                on Energy and Commerce, and the Committee on Oversight 
                and Reform of the House of Representatives.
            (4) Danger of abuse or neglect at the hands of the parent 
        or legal guardian.--The term ``danger of abuse or neglect at 
        the hands of the parent or legal guardian'' does not include 
        migrating to or crossing the United States border.
            (5) Designated agency.--The term ``designated agency'' 
        means--
                    (A) the Department of Homeland Security;
                    (B) the Department of Justice; and
                    (C) the Department of Health and Human Services.
            (6) Finding.--The term ``finding'' means an individualized 
        written assessment or screening by the trained agent or officer 
        that includes a consultation with a child welfare specialist, 
        formalized as required under section 4(c) and consistent with 
        sections 5 and 9.
            (7) Secretary.--Unless otherwise specified, the term 
        ``Secretary'' means the Secretary of Homeland Security.
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