II 

116TH CONGRESS 

1ST SESSION S. 1733 

To limit the separation of children from their parents or legal guardians, 

to limit the detention of families and children, to provide unaccompanied 

alien children with access to counsel, to increase the number of immigration judges and support staff, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 5, 2019 

Mrs. FEINSTEIN (for herself, Ms. HARRIS, Ms. HIRONO, and Ms. KLOBUCHAR) introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To limit the separation of children from their parents or 

legal guardians, to limit the detention of families and 

children, to provide unaccompanied alien children with 

access to counsel, to increase the number of immigration 

judges and support staff, 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 ‘‘Protecting Families 

5 and Improving Immigration Procedures Act’’. 


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1 SEC. 2. ENSURING THAT FAMILIES REMAIN TOGETHER. 

2 (a) LIMITATION ON THE SEPARATION OF FAMI3 LIES.— 

4 (1) IN GENERAL.—An agent or officer of a des5 ignated agency shall not remove a child from his or 

6 her parent or legal guardian at or near the port of 

7 entry or within 100 miles of the border of the 

8 United States unless 1 of the following situations 

9 has occurred: 

10 (A) A State court, authorized under State 

11 law— 

12 (i) terminates the rights of a parent 

13 or legal guardian; 

14 (ii) determines that it is in the best 

15 interests of the child to be removed from 

16 his or her parent or legal guardian, in ac17 cordance with the Adoption and Safe Fam18 ilies Act of 1997 (Public Law 105–89); or 

19 (iii) makes any similar determination 

20 that is legally authorized under State law. 

21 (B) An official from the State or county 

22 child welfare agency with expertise in child 

23 trauma and development determines that it is 

24 in the best interests of the child to be removed 

25 from his or her parent or legal guardian be26 cause the child— 


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1 (i) is in danger of abuse or neglect at 

2 the hands of the parent or legal guardian; 

3 or 

4 (ii) is a danger to himself or herself or 

5 to others. 

6 (C) The Chief Patrol Agent or the Area 

7 Port Director, in his or her official and 

8 undelegated capacity, authorizes separation, 

9 upon the recommendation by an agent or offi10 cer, based on a finding that— 

11 (i) the child is a victim of trafficking 

12 or is at significant risk of becoming a vic13 tim of trafficking; 

14 (ii) there is a strong likelihood that 

15 the adult is not the parent or legal guard16 ian of the child; or 

17 (iii) the child is in danger of abuse or 

18 neglect at the hands of the parent or legal 

19 guardian, or is a danger to himself or her20 self or to others. 

21 (2) PROHIBITION ON SEPARATION.—An agency 

22 may not remove a child from a parent or legal 

23 guardian solely for the policy goal of deterring indi24 viduals from migrating to the United States or for 


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1 the policy goal of promoting compliance with civil 

2 immigration laws. 

3 (3) DOCUMENTATION REQUIRED.—The Sec4 retary shall ensure that a separation based upon a 

5 situation described in paragraph (1)(C)— 

6 (A) is documented in writing; and 

7 (B) includes the reason for such separation 

8 and the stated evidence for such separation. 

9 (b) RECOMMENDATIONS FOR SEPARATION BY

10 AGENTS OR OFFICERS.— 

11 (1) IN GENERAL.—Not later than 180 days 

12 after the date of the enactment of this Act, the Sec13 retary, in consultation with the Secretary of Health 

14 and Human Services, shall develop training and 

15 guidance, with an emphasis on the best interests of 

16 the child, childhood trauma, attachment, and child 

17 development, for use by the agents and officers, in 

18 order to standardize separations authorized under 

19 subsection (a)(1)(C). 

20 (2) ANNUAL REVIEW.—Not less frequently than 

21 annually, the Secretary of Health and Human Serv22 ices shall— 

23 (A) review the guidance developed under 

24 paragraph (1); and 


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1 (B) make recommendations to the Sec2 retary to ensure that such guidance conforms to 

3 current evidence and best practices in child wel4 fare, child development, and childhood trauma. 

5 (3) REQUIREMENT.—The guidance developed 

6 under paragraph (1) shall incorporate the presump7 tions described in subsection (c). 

8 (4) ADDITIONAL REQUIREMENTS.— 

9 (A) EVIDENCE-BASED.—The guidance and 

10 training developed under this subsection shall 

11 incorporate evidence-based practices. 

12 (B) TRAINING REQUIRED.— 

13 (i) INITIAL TRAINING.—All agents 

14 and officers of designated agencies, upon 

15 hire, and annually thereafter, shall com16 plete training on adherence to the guidance 

17 under this subsection. 

18 (ii) ANNUAL TRAINING.—All Chief 

19 Patrol Agents and Area Port Directors, 

20 upon hire, and annually thereafter, shall 

21 complete— 

22 (I) training on adherence to the 

23 guidance under this subsection; and 


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1 (II) 90 minutes of child welfare 

2 practice training that is evidence3 based and trauma-informed. 

4 (c) PRESUMPTIONS.—The presumptions described in 

5 this subsection are the following: 

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

7 presumption in favor of family unity. 

8 (2) SIBLINGS.—To the maximum extent prac9 ticable, the Secretary shall ensure that sibling 

10 groups remain intact. 

11 (3) DETENTION.—There is a presumption that 

12 detention is not in the best interests of families and 

13 children. 

14 (d) REQUIRED POLICY FOR LOCATING SEPARATED

15 CHILDREN.— 

16 (1) IN GENERAL.—Not later than 180 days 

17 after the after the date of the enactment of this Act, 

18 the Secretary shall publish final public guidance that 

19 describes, with specificity, the manner in which a 

20 parent or legal guardian may locate a child who was 

21 separated from the parent or legal guardian under 

22 subsection (a)(1). In developing the public guidance, 

23 the Secretary shall consult with the Secretary of 

24 Health and Human Services, immigrant advocacy 


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1 organizations, child welfare organizations, and State 

2 child welfare agencies. 

3 (2) WRITTEN NOTIFICATION.—The Secretary 

4 shall provide each parent or legal guardian who was 

5 separated, with written notice of the public guidance 

6 to locate a separated child. 

7 (3) LANGUAGE ACCESS.—All guidance shall be 

8 available in English and Spanish, and at the request 

9 of the parent or legal guardian, in the language or 

10 manner that is understandable by the parent or legal 

11 guardian. 

12 (e) REQUIRED INFORMATION FOR SEPARATED FAMI13 LIES.—Not less frequently than monthly, the Secretary 

14 shall provide the parent or legal guardian of a child who 

15 was separated— 

16 (1) a status report on the monthly activities of 

17 the child; 

18 (2) information about the education and health 

19 of the child, including any medical treatment pro20 vided to the child or medical treatment rec21 ommended for the child; 

22 (3) information about changes to the child’s im23 migration status; and 


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1 (4) other information about the child, designed 

2 to promote and maintain family reunification, as the 

3 Secretary determines in his or her discretion. 

4 (f) ANNUAL REPORT ON FAMILY SEPARATION.—Not 

5 later than 1 year after the date of the enactment of this 

6 Act, and annually thereafter, the Secretary shall submit 

7 a report to the committees of jurisdiction that describes 

8 each instance in which a child was separated from a par9 ent or legal guardian and includes, for each such in10 stance— 

11 (1) the relationship of the adult and the child; 

12 (2) the age and gender of the adult and child; 

13 (3) the length of separation; 

14 (4) whether the adult was charged with a crime, 

15 and if the adult was charged with a crime, the type 

16 of crime; 

17 (5) whether the adult made a claim for asylum, 

18 expressed a fear to return, or applied for other im19 migration relief; 

20 (6) whether the adult was prosecuted if charged 

21 with a crime and the associated outcome of such 

22 charges; 

23 (7) the stated reason for, and evidence in sup24 port of, the separation; 


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1 (8) if the child was part of a sibling group at 

2 the time of separation, whether the sibling group has 

3 had physical contact and visitation; 

4 (9) whether the child was rendered an unac5 companied alien child; and 

6 (10) other information in the Secretary’s discre7 tion. 

8 (g) CLARIFICATION OF PARENTAL RIGHTS.—If a 

9 child is separated from a parent or legal guardian, and 

10 a State court has not made a determination that the pa11 rental rights have been terminated, there is a presumption 

12 that— 

13 (1) the parental rights remain intact; and 

14 (2) the separation does not constitute an af15 firmative determination of abuse or neglect under 

16 Federal or State law. 

17 (h) CLARIFICATION OF EXISTING LAW.— 

18 (1) FEDERAL LAW.—Nothing in this section 

19 may be interpreted to supersede or modify Federal 

20 child welfare law, where applicable, including the 

21 Adoption and Safe Families Act of 1997 (Public 

22 Law 105–89). 

23 (2) STATE LAW.—Nothing in this section may 

24 be interpreted to supersede or modify State child 

25 welfare laws, as applicable. 


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1 (i) GAO REPORT ON PROSECUTION OF ASYLUM

2 SEEKERS.— 

3 (1) STUDY.—The Comptroller General of the 

4 United States shall conduct a study of the prosecu5 tion of asylum seekers during the period beginning 

6 on January 1, 2008 and ending on December 31, 

7 2018, including— 

8 (A) the total number of persons who 

9 claimed a fear of persecution, received a favor10 able credible fear determination, and were re11 ferred for prosecution; 

12 (B) an overview and analysis of the 

13 metrics used by the Department of Homeland 

14 Security and the Department of Justice to 

15 track the number of asylum seekers referred for 

16 prosecution; 

17 (C) the total number of asylum seekers re18 ferred for prosecution, a breakdown and de19 scription of the criminal charges filed against 

20 asylum seekers during such period, and a 

21 breakdown and description of the convictions 

22 secured; 

23 (D) the total number of asylum seekers 

24 who were separated from their children as a re25 sult of being referred for prosecution; 


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1 (E) a breakdown of the resources spent on 

2 prosecuting asylum seekers during such period, 

3 as well as any diversion of resources required to 

4 prosecute asylum seekers, and any costs im5 posed on States and localities; 

6 (F) the total number of asylum seekers 

7 who were referred for prosecution and also went 

8 through immigration proceedings; and 

9 (G) the total number of asylum seekers re10 ferred for prosecution who were deported before 

11 going through immigration proceedings. 

12 (2) REPORT.—Not later than 1 year after the 

13 date of the enactment of this Act, the Comptroller 

14 General shall submit a report to Congress that de15 scribes the results of the study conducted under 

16 paragraph (1). 

17 SEC. 3. FLORES SETTLEMENT AGREEMENT. 

18 (a) IN GENERAL.—A family unit may be detained 

19 only in accordance with the holding made in Flores v. Ses20 sions et al. (9th Cir. July 5, 2017; C.D. CA; July 24, 

21 2015) and the stipulated settlement agreement as filed in 

22 the United States District Court for the Central District 

23 of California on January 17, 1997 (CV 85 4544 RJK) 

24 (commonly known as the ‘‘Flores settlement agreement’’). 


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1 (b) RULEMAKING.—Any regulation proposed or pro2 mulgated to supersede the Flores settlement agreement is 

3 null and void. 

4 (c) RULE OF CONSTRUCTION.—Nothing in this Act 

5 may be construed— 

6 (1) to affect the application of the Flores settle7 ment agreement to unaccompanied alien children; or 

8 (2) to abrogate the Flores settlement agree9 ment. 

10 (d) REVIEW OF DETENTION DETERMINATIONS.— 

11 The review of any determination by the Secretary to de12 tain an individual or family unit under this section shall 

13 be in accordance with all other provisions of law, holdings 

14 (including any holding made in Flores v. Sessions et al. 

15 (9th Cir. July 5, 2017; C.D. CA. July 24, 2015)), consent 

16 decrees, and settlement agreements (including the Flores 

17 settlement agreement). 

18 SEC. 4. ACCESS TO COUNSEL FOR UNACCOMPANIED ALIEN 

19 CHILDREN. 

20 (a) APPOINTMENT OF COUNSEL.—In any removal 

21 proceeding and in any appeal proceeding before the Attor22 ney General from any such removal proceeding, an unac23 companied alien child (as defined in section 462(g) of the 

24 Homeland Security Act on 2002 (6 U.S.C. 279(g))) shall 


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1 be represented by Government-appointed counsel, at Gov2 ernment expense. 

3 (b) LENGTH OF REPRESENTATION.—Once a child is 

4 designated as an unaccompanied alien child under sub5 section (a)— 

6 (1) the child shall be represented by counsel at 

7 every stage of the proceedings from the child’s initial 

8 appearance through the termination of immigration 

9 proceedings; and 

10 (2) any ancillary matters appropriate to such 

11 proceedings even if the child reaches 18 years of age 

12 or is reunified with a parent or legal guardian while 

13 the proceedings are pending. 

14 (c) NOTICE.—Not later than 72 hours after an unac15 companied alien child is taken into Federal custody, the 

16 child shall be notified that he or she will be provided with 

17 legal counsel in accordance with this section. 

18 (d) WITHIN DETENTION FACILITIES.—The Sec19 retary shall ensure that unaccompanied alien children 

20 have access to counsel inside all detention, holding, and 

21 border facilities. 

22 (e) PRO BONO REPRESENTATION.— 

23 (1) IN GENERAL.—To the maximum extent 

24 practicable, the Attorney General should make every 

25 effort to utilize the services of competent counsel 


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1 who agree to provide representation to such children 

2 under this section without charge. 

3 (2) DEVELOPMENT OF NECESSARY INFRA4 STRUCTURES AND SYSTEMS.—The Attorney General 

5 shall develop the necessary mechanisms— 

6 (A) to identify counsel available to provide 

7 pro bono legal assistance and representation to 

8 children under this section; and 

9 (B) to recruit such counsel. 

10 (f) CONTRACTS; GRANTS.— 

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

12 enter into contracts with, or award grants to, non13 profit agencies with relevant expertise in the delivery 

14 of immigration-related legal services to children to 

15 carry out the responsibilities under this section, in16 cluding providing legal orientation, screening cases 

17 for referral, recruiting, training, and overseeing pro 

18 bono attorneys. 

19 (2) SUBCONTRACTS.—Nonprofit agencies may 

20 enter into subcontracts with, or award grants to, 

21 private voluntary agencies with relevant expertise in 

22 the delivery of immigration related legal services to 

23 children in order to carry out this section. 

24 (g) MODEL GUIDELINES ON LEGAL REPRESENTA25 TION OF CHILDREN.— 


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1 (1) DEVELOPMENT OF GUIDELINES.—The Ex2 ecutive Office for Immigration Review, in consulta3 tion with voluntary agencies and national experts, 

4 shall develop model guidelines for the legal represen5 tation of alien children in immigration proceedings, 

6 which shall be based on the children’s asylum guide7 lines, the American Bar Association Model Rules of 

8 Professional Conduct, and other relevant domestic or 

9 international sources. 

10 (2) PURPOSE OF GUIDELINES.—The guidelines 

11 developed under paragraph (1) shall be designed to 

12 help protect each child from any individual suspected 

13 of involvement in any criminal, harmful, or exploita14 tive activity associated with the smuggling or traf15 ficking of children, while ensuring the fairness of the 

16 removal proceeding in which the child is involved. 

17 (h) DUTIES OF COUNSEL.—Counsel provided under 

18 this section shall— 

19 (1) represent the unaccompanied alien child in 

20 all proceedings and matters relating to the immigra21 tion status of the child or other actions involving the 

22 Department of Homeland Security; 

23 (2) appear in person for all individual merits 

24 hearings before the Executive Office for Immigration 


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1 Review and interviews involving the Department of 

2 Homeland Security; 

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

4 confidentiality, and competent representation to the 

5 child as is due to an adult client; and 

6 (4) carry out other such duties as may be pro7 scribed by the Attorney General or the Executive Of8 fice for Immigration Review. 

9 SEC. 5. INCREASES IN IMMIGRATION JUDGES AND SUP10 PORT STAFF. 

11 (a) IMMIGRATION JUDGES.—The Attorney General 

12 shall increase the total number of immigration judges to 

13 adjudicate pending cases and efficiently process future 

14 cases by not fewer than 75 judges during fiscal year 2019. 

15 (b) SUPPORT STAFF.—The Attorney General shall— 

16 (1) increase the total number of judicial law 

17 clerks by 75 during fiscal year 2019; and 

18 (2) increase the total number of support staff 

19 for immigration judges, including legal assistants 

20 and interpreters, by 300 during fiscal year 2019. 

21 SEC. 6. DOCKET MANAGEMENT FOR RESOURCE CONSERVA22 TION. 

23 Notwithstanding any opposition from the Secretary, 

24 immigration judges may administratively close cases, and 

25 the Board of Immigration Appeals may remand cases for 


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1 administrative closure, if an individual in removal pro2 ceedings— 

3 (1) appears to be prima facie eligible for a visa 

4 or other immigration benefit; and 

5 (2) has a pending application for such benefit 

6 before U.S. Citizenship and Immigration Services or 

7 another appropriate agency. 

8 SEC. 7. DEFINITIONS. 

9 In this Act: 

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

11 ‘‘officer’’ include contractors of the Federal Govern12 ment. 

13 (2) CHILD.—The term ‘‘child’’ means an indi14 vidual who— 

15 (A) has not attained 18 years of age; and 

16 (B) has no permanent immigration status. 

17 (3) COMMITTEES OF JURISDICTION.—The term 

18 ‘‘committees of jurisdiction’’ means— 

19 (A) the Committee on the Judiciary of the 

20 Senate; 

21 (B) the Committee on Health, Education, 

22 Labor, and Pensions of the Senate; and 

23 (C) the Committee on the Judiciary of the 

24 House of Representatives. 


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1 (4) DANGER OF ABUSE OR NEGLECT AT THE

2 HANDS OF THE PARENT OR LEGAL GUARDIAN.—The 

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

4 parent or legal guardian’’ shall not mean migrating 

5 to or crossing the United States border. 

6 (5) DESIGNATED AGENCY.—The term ‘‘des7 ignated agency’’ means— 

8 (A) the Department of Homeland Security; 

9 (B) the Department of Justice; and 

10 (C) the Department of Health and Human 

11 Services. 

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

13 individualized written assessment or screening by the 

14 trained agent or officer that includes a consultation 

15 with a child welfare specialist, formalized as required 

16 under subsection (b)(3) and consistent with sub17 sections (c), (d), and (h). 

18 (7) SECRETARY.—The term ‘‘Secretary’’ means 

19 the Secretary of Homeland Security. 

Æ 


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