I 

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. 

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 ‘‘Protect Asylum Seek5 ers Act’’. 

6 SEC. 2. LIMITATION ON PROSECUTION OF ASYLUM SEEK7 ERS. 

8 Section 275 of the Immigration and Nationality Act 

9 (8 U.S.C. 1325) is amended— 


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1 (1) in subsection (a), by striking ‘‘Any alien’’ 

2 and inserting ‘‘Except as provided in subsection (e), 

3 any alien’’; 

4 (2) in subsection (b), by striking ‘‘Any alien’’ 

5 and inserting ‘‘Except as provided in subsection (e), 

6 any alien’’; and 

7 (3) by adding at the end the following: 

8 ‘‘(e)(1) Subsections (a)(1) and (b) shall not apply in 

9 the case of an alien who presents himself to an immigra10 tion officer or an asylum officer without unnecessary delay 

11 after entering the United States, and indicates an inten12 tion to apply for asylum under section 208 or a fear of 

13 persecution (as defined in section 235(b)(1)(B)(v)). 

14 ‘‘(2) The exception under this subsection applies re15 gardless of whether the alien is found to have a credible 

16 fear of persecution, or is granted asylum, except in the 

17 case that an asylum officer determines that the alien’s 

18 claim for asylum or fear of persecution was fraudulent. 

19 In the case that an asylum officer determines that a claim 

20 for asylum is fraudulent under this paragraph, the officer 

21 shall document such determination, and the reason for 

22 such determination, in writing. 

23 ‘‘(3) A claim for asylum or a fear of persecution may 

24 not be determined to be fraudulent under paragraph (2) 

25 on the basis that— 


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1 ‘‘(A) the alien entered or attempted to enter the 

2 United States at any time or place other than as 

3 designated by immigration officers; 

4 ‘‘(B) the alien’s claim is based on fearing gang 

5 violence or domestic violence; or 

6 ‘‘(C) the alien entered or attempted to enter the 

7 United States with the alien’s child who had not at8 tained the age of 18.’’. 

9 SEC. 3. TRANSFER OF ASYLUM SEEKERS TO ASYLUM 

10 INTERVIEW LOCATIONS. 

11 An alien who presents himself to an immigration offi12 cer or an asylum officer as described in section 275(e)(1) 

13 of the Immigration and Nationality Act shall be trans14 ferred to a port of entry or place designated for asylum 

15 interviews under section 235(b)(1)(B)(i) of that Act to un16 dergo an interview by an asylum officer under such section 

17 235, unless the alien presents himself at such a location. 

18 SEC. 4. LIMITATION ON THE SEPARATION OF FAMILIES. 

19 (a) IN GENERAL.—An agent or officer of a des20 ignated agency may not remove a child from his or her 

21 parent or legal guardian if the parent or legal guardian 

22 has not been referred for prosecution, unless one of the 

23 following has occurred: 

24 (1) A State court, authorized under State law, 

25 terminates the rights of a parent or legal guardian, 


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1 determines that it is in the best interests of the child 

2 to be removed from his or her parent or legal guard3 ian, in accordance with the Adoption and Safe Fam4 ilies Act of 1997 (Public Law 105–89), or makes 

5 any similar determination that is legally authorized 

6 under State law. 

7 (2) An official from the State or county child 

8 welfare agency with expertise in child trauma and 

9 development makes a determination that it is in the 

10 best interests of the child to be removed from his or 

11 her parent or legal guardian because the child is in 

12 danger of abuse or neglect at the hands of the par13 ent or legal guardian, or is a danger to himself or 

14 others. 

15 (3) The Chief Patrol Agent or the Area Port 

16 Director, in their official and undelegated capacity, 

17 authorizes separation upon the recommendation by 

18 an agent or officer of a designated agency, based on 

19 a finding that— 

20 (A) the child is a victim of trafficking or 

21 is at significant risk of becoming a victim of 

22 trafficking; 

23 (B) there is a strong likelihood that the 

24 adult is not the parent or legal guardian of the 

25 child; or 


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1 (C) the child is in danger of abuse or ne2 glect at the hands of the parent or legal guard3 ian, or is a danger to himself or others. 

4 (b) PROHIBITION ON SEPARATION.—A designated 

5 agency may not remove a child from a parent or legal 

6 guardian solely for the policy goal of deterring individuals 

7 from migrating to the United States or for the policy goal 

8 of promoting compliance with civil immigration laws. 

9 (c) DOCUMENTATION REQUIRED.—The Secretary 

10 shall ensure that a separation under subsection (a)(3) is 

11 documented in writing and includes, at a minimum, the 

12 reason for such separation, together with the stated evi13 dence for such separation. 

14 SEC. 5. RECOMMENDATIONS FOR SEPARATION BY AGENTS 

15 OR OFFICERS. 

16 (a) IN GENERAL.—Not later than 180 days after the 

17 date of the enactment of this Act, the Secretary, in con18 sultation with the Secretary of Health and Human Serv19 ices, shall develop training and guidance, with an empha20 sis on the best interests of the child, childhood trauma, 

21 attachment, and child development, for use by agents and 

22 officers of designated agencies, in order to standardize the 

23 implementation of section 4(a)(3). 

24 (b) ANNUAL REVIEW.—Not less frequently than an25 nually, the Secretary of Health and Human Services shall 


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1 review the guidance developed under subsection (a) and 

2 make recommendations to the Secretary to ensure such 

3 guidance is in accordance with current evidence and best 

4 practices in child welfare, child development, and child5 hood trauma. 

6 (c) REQUIREMENT.—The guidance under subsection 

7 (a) shall incorporate the presumptions described in sub8 section (e). 

9 (d) ADDITIONAL REQUIREMENTS.— 

10 (1) EVIDENCE-BASED.—The guidance and 

11 training developed under this section shall incor12 porate evidence-based practices. 

13 (2) TRAINING REQUIRED.— 

14 (A) All agents and officers of designated 

15 agencies, upon hire, and annually thereafter, 

16 shall complete training on adherence to the 

17 guidance under this section. 

18 (B) All Chief Patrol Agents and Area Port 

19 Directors, upon hire, and annually thereafter, 

20 shall complete— 

21 (i) training on adherence to the guid22 ance under this section; and 

23 (ii) 90 minutes of child welfare prac24 tice training that is evidence-based and 

25 trauma-informed. 


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1 (e) PRESUMPTIONS.—The presumptions described in 

2 this subsection are the following: 

3 (1) FAMILY UNITY.—There shall be a strong 

4 presumption in favor of family unity. 

5 (2) SIBLINGS.—To the maximum extent prac6 ticable, the Secretary shall ensure that sibling 

7 groups remain intact. 

8 (3) DETENTION.—In general, there is a pre9 sumption that detention is not in the best interests 

10 of families and children. 

11 SEC. 6. REQUIRED POLICY FOR LOCATING SEPARATED 

12 CHILDREN. 

13 (a) IN GENERAL.—Not later than 180 days after the 

14 date of the enactment of this Act, the Secretary shall pub15 lish final public guidance that describes, with specificity, 

16 the manner in which a parent or legal guardian may locate 

17 a child who was separated from the parent or legal guard18 ian under section 3(a). In developing the public guidance, 

19 the Secretary shall consult with the Secretary of Health 

20 and Human Services, immigrant advocacy organizations, 

21 child welfare organizations, and State child welfare agen22 cies. 

23 (b) WRITTEN NOTIFICATION.—The Secretary shall 

24 provide each parent or legal guardian of a child who was 


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1 separated from the child with written notice of the public 

2 guidance to locate the child. 

3 (c) LANGUAGE ACCESS.—All guidance shall be avail4 able in English and Spanish, and at the request of the 

5 parent or legal guardian, in the language or manner that 

6 is understandable by the parent or legal guardian. 

7 SEC. 7. REQUIRED INFORMATION FOR SEPARATED FAMI8 LIES. 

9 Not less frequently than once every month, the Sec10 retary shall provide the parent or legal guardian of a child 

11 who was separated from the child the following informa12 tion, at a minimum: 

13 (1) A status report on the monthly activities of 

14 the child. 

15 (2) Information about the education and health 

16 of the child, including any medical treatment pro17 vided to the child or medical treatment rec18 ommended for the child. 

19 (3) Information about changes to the child’s 

20 immigration status. 

21 (4) Other information about the child, designed 

22 to promote and maintain family reunification, as the 

23 Secretary determines in his or her discretion. 


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1 SEC. 8. ANNUAL REPORT ON FAMILY SEPARATION. 

2 Not later than 1 year after the date of the enactment 

3 of this Act, and annually thereafter, the Secretary shall 

4 submit a report to the committees of jurisdiction that de5 scribes each instance in which a child was separated from 

6 a parent or legal guardian and includes, for each such in7 stance, the following: 

8 (1) The relationship of the adult and the child. 

9 (2) The age and gender of the adult and child. 

10 (3) The length of separation. 

11 (4) Whether the adult was charged with a 

12 crime, and if the adult was charged with a crime, 

13 the type of crime. 

14 (5) Whether the adult made a claim for asylum, 

15 expressed a fear to return, or applied for other im16 migration relief. 

17 (6) Whether the adult was prosecuted if 

18 charged with a crime and the associated outcome of 

19 such charges. 

20 (7) The stated reason for, and evidence in sup21 port of, the separation. 

22 (8) If the child was part of a sibling group at 

23 the time of separation, whether the sibling group has 

24 had physical contact and visitation. 

25 (9) Whether the child was rendered an unac26 companied alien child. 


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1 (10) Other information in the Secretary’s dis2 cretion. 

3 The Secretary shall ensure that any information collected, 

4 published, or otherwise made available under this section 

5 does not reveal personally identifiable information. 

6 SEC. 9. CLARIFICATION OF PARENTAL RIGHTS. 

7 If a child is separated from a parent or legal guard8 ian, and a State court has not made a determination that 

9 the parental rights have been terminated, there is a pre10 sumption that— 

11 (1) the parental rights remain intact; and 

12 (2) the separation does not constitute an af13 firmative determination of abuse or neglect under 

14 Federal or State law. 

15 SEC. 10. CLARIFICATION OF EXISTING LAW. 

16 (a) FEDERAL LAW.—Nothing in this Act shall be in17 terpreted to supersede or modify Federal child welfare law, 

18 where applicable, including the Adoption and Safe Fami19 lies Act of 1997 (Public Law 105–89). 

20 (b) STATE LAW.—Nothing in this Act shall be inter21 preted to supersede or modify State child welfare laws 

22 where applicable. 


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1 SEC. 11. GAO REPORT ON PROSECUTION OF ASYLUM SEEK2 ERS. 

3 (a) STUDY.—The Comptroller General of the United 

4 States shall conduct a study of the prosecution of asylum 

5 seekers during the period beginning on January 1, 2008, 

6 and ending on December 31, 2020, including— 

7 (1) the total number of persons who claimed a 

8 fear of persecution, received a favorable credible fear 

9 determination, and were referred for prosecution; 

10 (2) an overview and analysis of the metrics 

11 used by the Department of Homeland Security and 

12 the Department of Justice to track the number of 

13 asylum seekers referred for prosecution; 

14 (3) the total number of asylum seekers referred 

15 for prosecution, a breakdown and description of the 

16 criminal charges filed against asylum seekers during 

17 such period, and a breakdown and description of the 

18 convictions secured; 

19 (4) the total number of asylum seekers who 

20 were separated from their children as a result of 

21 being referred for prosecution; 

22 (5) a breakdown of the resources spent on pros23 ecuting asylum seekers during such period, as well 

24 as any diversion of resources required to prosecute 

25 asylum seekers, and any costs imposed on States 

26 and localities; 


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1 (6) the total number of asylum seekers who 

2 were referred for prosecution and also went through 

3 immigration proceedings; and 

4 (7) the total number of asylum seekers referred 

5 for prosecution who were deported before going 

6 through immigration proceedings. 

7 (b) REPORT.—Not later than 1 year after the date 

8 of the enactment of this Act, the Comptroller General shall 

9 submit to Congress a report that describes the results of 

10 the study conducted pursuant to subsection (a). Such re11 port shall not reveal personally identifiable information. 

12 SEC. 12. DEFINITIONS. 

13 In this Act: 

14 (1) AGENT; OFFICER.—The terms ‘‘agent’’ and 

15 ‘‘officer’’ include contractors of the Federal Govern16 ment. 

17 (2) CHILD.—The term ‘‘child’’ means an indi18 vidual who— 

19 (A) has not reached the age of 18; and 

20 (B) has no permanent immigration status. 

21 (3) COMMITTEES OF JURISDICTION.—The term 

22 ‘‘committees of jurisdiction’’ means— 

23 (A) the Committee on the Judiciary, the 

24 Committee on Health, Education, Labor, and 

25 Pensions, and the Committee on Homeland SeVerDate Sep 11 2014 19:05 Jan 18, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H9040.IH H9040

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1 curity and Governmental Affairs of the Senate; 

2 and 

3 (B) the Committee on the Judiciary, the 

4 Committee on Energy and Commerce, and the 

5 Committee on Oversight and Reform of the 

6 House of Representatives. 

7 (4) DANGER OF ABUSE OR NEGLECT AT THE

8 HANDS OF THE PARENT OR LEGAL GUARDIAN.—The 

9 term ‘‘danger of abuse or neglect at the hands of the 

10 parent or legal guardian’’ does not include migrating 

11 to or crossing the United States border. 

12 (5) DESIGNATED AGENCY.—The term ‘‘des13 ignated agency’’ means— 

14 (A) the Department of Homeland Security; 

15 (B) the Department of Justice; and 

16 (C) the Department of Health and Human 

17 Services. 

18 (6) FINDING.—The term ‘‘finding’’ means an 

19 individualized written assessment or screening by the 

20 trained agent or officer that includes a consultation 

21 with a child welfare specialist, formalized as required 

22 under section 4(c) and consistent with sections 5 

23 and 9. 


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1 (7) SECRETARY.—Unless otherwise specified, 

2 the term ‘‘Secretary’’ means the Secretary of Home3 land Security. 

Æ 


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