II 

117TH CONGRESS 

1ST SESSION S. 901 

To provide access to counsel for children and other vulnerable populations. 

IN THE SENATE OF THE UNITED STATES 

MARCH 23, 2021 

Mrs. GILLIBRAND (for herself, Mr. MARKEY, Mr. BLUMENTHAL, Mr. BOOKER, 

Ms. WARREN, Mr. PADILLA, Mr. KAINE, Mr. MERKLEY, and Ms. KLOBUCHAR) introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To provide access to counsel for children and other 

vulnerable populations. 

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 TITLES. 

4 This Act may be cited as the ‘‘Funding Attorneys for 

5 Indigent Removal Proceedings Act’’ or the ‘‘FAIR Pro6 ceedings Act’’. 


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1 SEC. 2. IMPROVING IMMIGRATION COURT EFFICIENCY AND 

2 REDUCING COSTS BY INCREASING ACCESS 

3 TO LEGAL INFORMATION. 

4 (a) APPOINTMENT OF COUNSEL IN CERTAIN CASES; 

5 RIGHT TO REVIEW CERTAIN DOCUMENTS IN REMOVAL

6 PROCEEDINGS.—Section 240(b) of the Immigration and 

7 Nationality Act (8 U.S.C. 1229a(b)) is amended— 

8 (1) in paragraph (4)— 

9 (A) in the matter preceding subparagraph 

10 (A), by inserting ‘‘, or in the case of an unac11 companied alien child (as defined in section 

12 462(g)(2) of the Homeland Security Act of 

13 2002 (6 U.S.C. 279(g)(2))), under regulations 

14 of the Secretary of Health and Human Serv15 ices’’ after ‘‘Attorney General’’; 

16 (B) in subparagraph (A)— 

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

18 Government,’’; and 

19 (ii) by striking the comma at the end 

20 and inserting a semicolon; 

21 (C) by redesignating subparagraphs (B) 

22 and (C) as subparagraphs (D) and (E), respec23 tively; 

24 (D) by inserting after subparagraph (A) 

25 the following: 


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

2 of an unaccompanied alien child, the Secretary 

3 of Health and Human Services, may appoint or 

4 provide counsel, at Government expense, to the 

5 alien; 

6 ‘‘(C) the alien, at the beginning of such 

7 proceedings or as expeditiously as possible, shall 

8 automatically receive a complete copy of all rel9 evant documents in the possession of the De10 partment of Homeland Security (unless the 

11 alien waives the right to receive such documents 

12 by executing a knowing and voluntary written 

13 waiver in a language that he or she under14 stands fluently), including— 

15 ‘‘(i) all documents (other than docu16 ments protected from disclosure by privi17 lege and documents containing national se18 curity information referred to in subpara19 graph (D), law enforcement sensitive infor20 mation, or information prohibited from dis21 closure pursuant to any other provision of 

22 law) contained in the file maintained by 

23 the Government that includes information 

24 with respect to all transactions involving 


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1 the alien during the immigration process 

2 (commonly referred to as an ‘A-file’); and 

3 ‘‘(ii) all documents pertaining to the 

4 alien that the Department of Homeland 

5 Security has obtained or received from 

6 other government agencies;’’; and 

7 (E) in subparagraph (D), as redesignated, 

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

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

10 ‘‘(8) FAILURE TO PROVIDE ALIEN REQUIRED

11 DOCUMENTS.—In the absence of a waiver under 

12 paragraph (4)(C), a removal proceeding may not 

13 proceed until the alien— 

14 ‘‘(A) has received the documents required 

15 under such paragraph; and 

16 ‘‘(B) has been provided meaningful time to 

17 review and assess such documents.’’. 

18 (b) CLARIFICATION REGARDING THE AUTHORITY OF

19 THE ATTORNEY GENERAL AND THE SECRETARY OF

20 HEALTH AND HUMAN SERVICES TO APPOINT COUNSEL

21 TO ALIENS IN IMMIGRATION PROCEEDINGS.—Section 292 

22 of the Immigration and Nationality Act (8 U.S.C. 1362) 

23 is amended— 

24 (1) by striking ‘‘In any’’ and inserting the fol25 lowing: 


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1 ‘‘(a) IN GENERAL.—In any proceeding conducted 

2 under section 235, 236, 238, 240, or 241, or under any 

3 other section of this Act, including’’; 

4 (2) in subsection (a), as redesignated— 

5 (A) by striking ‘‘(at no expense to the Gov6 ernment)’’; and 

7 (B) by striking ‘‘he shall’’ and inserting 

8 ‘‘the person shall’’; and 

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

10 ‘‘(b) ACCESS TO COUNSEL.— 

11 ‘‘(1) IN GENERAL.—The Attorney General may 

12 appoint or provide counsel to aliens in any pro13 ceeding conducted under section 235, 236, 238, 240, 

14 or 241, or under any other section of this Act. 

15 ‘‘(2) UNACCOMPANIED ALIEN CHILDREN.—The 

16 Secretary of Health and Human Services may ap17 point or provide counsel to unaccompanied alien chil18 dren (as defined in section 462(g)(2) of the Home19 land Security Act of 2002 (6 U.S.C. 279(g)(2))) in 

20 any applicable proceeding conducted pursuant to any 

21 section of this Act. 

22 ‘‘(3) IMMIGRATION DETENTION AND BORDER

23 FACILITIES.—The Secretary of Homeland Security 

24 shall ensure that aliens have access to counsel inside 

25 all immigration detention and border facilities.’’. 


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1 (c) APPOINTMENT OF COUNSEL FOR CHILDREN AND

2 VULNERABLE ALIENS.— 

3 (1) IN GENERAL.—Section 292 of the Immigra4 tion and Nationality Act, as amended by subsection 

5 (b), is further amended by adding at the end the fol6 lowing: 

7 ‘‘(c) UNACCOMPANIED ALIEN CHILDREN.—Notwith8 standing subsection (b), the Secretary of Health and 

9 Human Services shall appoint or provide counsel at Gov10 ernment expense, if necessary, at the beginning of immi11 gration proceedings, or as expeditiously as possible, to rep12 resent in such proceedings unaccompanied alien children. 

13 ‘‘(d) OTHER VULNERABLE ALIENS.—Notwith14 standing subsection (b), the Attorney General shall ap15 point or provide counsel at Government expense, if nec16 essary, at the beginning of immigration proceedings or as 

17 expeditiously as possible, to represent in such proceedings 

18 any alien who has been determined by the Secretary of 

19 Homeland Security or the Attorney General to be— 

20 ‘‘(1) a child who is not an unaccompanied alien 

21 child; 

22 ‘‘(2) a person with a disability; 

23 ‘‘(3) a victim of abuse, torture, or violence; 

24 ‘‘(4) an individual whose income is at or below 

25 200 percent of the poverty line (as defined by the 


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1 Office of Management and Budget and revised an2 nually in accordance with section 673(2) of the 

3 Community Services Block Grant Act (42 U.S.C. 

4 9902(2))) applicable to a family of the size involved; 

5 or 

6 ‘‘(5) an individual whose circumstances require 

7 the appointment of counsel to help ensure the fair 

8 resolution and efficient adjudication of the pro9 ceedings. 

10 ‘‘(e) EXTENSION TO CONSOLIDATED CASES.—If the 

11 Attorney General has consolidated the case of an alien for 

12 whom counsel was appointed under subsection (c) or (d) 

13 with the case of another alien who does not have counsel, 

14 the counsel appointed under subsection (c) or (d), as appli15 cable, shall be appointed to represent such other alien. 

16 ‘‘(f) AUTHORIZATION OF APPROPRIATIONS.—There 

17 is authorized to be appropriated to the Office of Refugee 

18 Resettlement of the Department of Health and Human 

19 Services and to Executive Office for Immigration Review 

20 of the Department of Justice, such sums as may be nec21 essary to carry out this section.’’. 

22 (2) RULEMAKING.— 

23 (A) UNACCOMPANIED ALIEN CHILDREN.— 

24 The Secretary of Health and Human Services 

25 shall promulgate regulations to implement secVerDate Sep 11 2014 01:01 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S901.IS S901

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1 tion 292(c) of the Immigration and Nationality 

2 Act, as added by paragraph (1), in accordance 

3 with the requirements set forth in section 

4 3006A of title 18, United States Code. 

5 (B) OTHER VULNERABLE ALIENS.—The 

6 Attorney General shall promulgate regulations 

7 to implement section 292(d) of the Immigration 

8 and Nationality Act, as added by paragraph 

9 (1), in accordance with the requirements set 

10 forth in section 3006A of title 18, United 

11 States Code. 

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

13 DETENTION FACILITIES. 

14 (a) ACCESS TO COUNSEL.—The Secretary of Home15 land Security shall facilitate access to counsel for all aliens 

16 detained in facilities under the supervision of U.S. Immi17 gration and Customs Enforcement or of U.S. Customs and 

18 Border Protection, including providing information to 

19 such aliens regarding legal services programs at detention 

20 facilities. 

21 (b) ACCESS TO LEGAL ORIENTATION PROGRAMS.— 

22 (1) PROCEDURES.—The Secretary of Homeland 

23 Security, in consultation with the Attorney General, 

24 shall establish procedures— 


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1 (A) to ensure that legal orientation pro2 grams are available for all detained aliens, in3 cluding aliens held in U.S. Customs and Border 

4 Protection facilities; and 

5 (B) to inform such aliens of— 

6 (i) the basic procedures of immigra7 tion hearings; 

8 (ii) their rights relating to such hear9 ings under Federal immigration laws; 

10 (iii) information that may deter such 

11 aliens from filing frivolous legal claims; 

12 and 

13 (iv) any other information that the 

14 Attorney General considers appropriate, 

15 such as a contact list of potential legal re16 sources and providers. 

17 (2) UNIVERSAL AVAILABILITY.—Access to legal 

18 orientation programs under paragraph (1) may not 

19 be limited by the alien’s current immigration status, 

20 prior immigration history, or potential for immigra21 tion relief. 

22 SEC. 4. REPORT ON ACCESS TO COUNSEL. 

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

24 year, the Secretary of Homeland Security, in consultation 

25 with the Attorney General and the Secretary of Health 


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1 and Human Services, shall submit a report to the Com2 mittee on the Judiciary of the Senate and the Committee 

3 on the Judiciary of the House of Representatives regard4 ing the extent to which aliens described in subsections (c) 

5 and (d) of section 292 of the Immigration and Nationality 

6 Act, as added by section 2(c)(1), have been provided ac7 cess to counsel. 

8 (b) CONTENTS.—Each report submitted pursuant to 

9 subsection (a) shall include, for the immediately preceding 

10 1-year period— 

11 (1) the number and percentage of aliens de12 scribed in section 292(c) of the Immigration and 

13 Nationality Act and in paragraphs (1), (2), (3), and 

14 (4), respectively, of section 292(d) of such Act who 

15 were represented by counsel, including information 

16 specifying— 

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

18 the alien was represented; and 

19 (B) whether the alien was in government 

20 custody; and 

21 (2) the number and percentage of aliens who 

22 received legal orientation presentations. 


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1 SEC. 5. MOTIONS TO REOPEN. 

2 Section 240(c)(7)(C) of the Immigration and Nation3 ality Act (8 U.S.C. 1229a(c)(7)(C)) is amended by adding 

4 at the end the following: 

5 ‘‘(v) SPECIAL RULE FOR ALIENS EN6 TITLED TO APPOINTMENT OF COUNSEL.— 

7 If the Secretary of Health and Human 

8 Services or the Attorney General fail to ap9 point counsel for an alien in accordance 

10 with subsection (c) or (d) of section 292, 

11 as applicable— 

12 ‘‘(I) no limitation under this 

13 paragraph pertaining to the filing of 

14 any motion under this paragraph by 

15 such alien shall apply; and 

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

17 shall stay the removal of the alien.’’. 

Æ 


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