II 

116TH CONGRESS 

1ST SESSION S. 2389 

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

IN THE SENATE OF THE UNITED STATES 

JULY 31, 2019 

Mr. SCHUMER (for Mrs. GILLIBRAND (for herself, Mr. BLUMENTHAL, and Mr. 

BOOKER)) 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 subparagraph (A)— 

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

11 Government,’’; and 

12 (ii) by striking the comma at the end 

13 and inserting a semicolon; 

14 (B) by redesignating subparagraphs (B) 

15 and (C) as subparagraphs (D) and (E), respec16 tively; 

17 (C) by inserting after subparagraph (A) 

18 the following: 

19 ‘‘(B) the Attorney General may appoint or 

20 provide counsel, at Government expense, to the 

21 alien; 

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

23 proceedings or as expeditiously as possible, shall 

24 automatically receive a complete copy of all rel25 evant documents in the possession of the De26 partment of Homeland Security (unless the 


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1 alien waives the right to receive such documents 

2 by executing a knowing and voluntary written 

3 waiver in a language that he or she under4 stands fluently), including— 

5 ‘‘(i) all documents (other than docu6 ments protected from disclosure by privi7 lege and documents containing national se8 curity information referred to in subpara9 graph (D), law enforcement sensitive infor10 mation, or information prohibited from dis11 closure pursuant to any other provision of 

12 law) contained in the file maintained by 

13 the Government that includes information 

14 with respect to all transactions involving 

15 the alien during the immigration process 

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

17 ‘‘(ii) all documents pertaining to the 

18 alien that the Department of Homeland 

19 Security has obtained or received from 

20 other government agencies;’’; and 

21 (D) in subparagraph (D), as redesignated, 

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

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

24 ‘‘(8) FAILURE TO PROVIDE ALIEN REQUIRED

25 DOCUMENTS.—In the absence of a waiver under 


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

2 proceed until the alien— 

3 ‘‘(A) has received the documents required 

4 under such paragraph; and 

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

6 review and assess such documents.’’. 

7 (b) CLARIFICATION REGARDING THE AUTHORITY OF

8 THE ATTORNEY GENERAL TO APPOINT COUNSEL TO

9 ALIENS IN IMMIGRATION PROCEEDINGS.—Section 292 of 

10 the Immigration and Nationality Act (8 U.S.C. 1362) is 

11 amended— 

12 (1) by striking ‘‘In any’’ and inserting the fol13 lowing: 

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

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

16 other section of this Act, including’’; 

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

18 (A) by striking ‘‘(at no expense to the Gov19 ernment)’’; and 

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

21 ‘‘the person shall’’; and 

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

23 ‘‘(b) ACCESS TO COUNSEL.—The Attorney General 

24 may appoint or provide counsel to aliens in any proceeding 

25 conducted under section 235, 236, 238, 240, or 241, or 


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1 under any other section of this Act. The Secretary of 

2 Homeland Security shall ensure that aliens have access 

3 to counsel inside all immigration detention and border fa4 cilities.’’. 

5 (c) APPOINTMENT OF COUNSEL FOR CHILDREN AND

6 VULNERABLE ALIENS.— 

7 (1) IN GENERAL.—Section 292 of the Immigra8 tion and Nationality Act, as amended by subsection 

9 (b), is further amended by adding at the end the fol10 lowing: 

11 ‘‘(c) CHILDREN AND VULNERABLE ALIENS.—Not12 withstanding subsection (b), the Attorney General shall 

13 appoint or provide counsel, at the expense of the Govern14 ment, if necessary, at the beginning of immigration pro15 ceedings, or as expeditiously as possible, to represent in 

16 such proceedings any alien who has been determined by 

17 the Secretary of Homeland Security or the Attorney Gen18 eral to be— 

19 ‘‘(1) a child; 

20 ‘‘(2) a person with a disability; 

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

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

23 200 percent of the poverty line (as defined by the 

24 Office of Management and Budget and revised an25 nually in accordance with section 673(2) of the 


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

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

3 or 

4 ‘‘(5) an individual whose circumstances require 

5 the appointment of counsel to help ensure the fair 

6 resolution and efficient adjudication of the pro7 ceedings. 

8 ‘‘(d) EXTENSION TO CONSOLIDATED CASES.—If the 

9 Attorney General has consolidated the case of an alien for 

10 whom counsel was appointed under subsection (c) with the 

11 case of another alien who does not have counsel, the coun12 sel appointed under subsection (c) shall be appointed to 

13 represent such other alien. 

14 ‘‘(e) AUTHORIZATION OF APPROPRIATIONS.—In ad15 dition to amounts available in the Immigration Counsel 

16 Account under section 295, there is authorized to be ap17 propriated to the Executive Office of Immigration Review 

18 of the Department of Justice, such sums as may be nec19 essary to carry out this section.’’. 

20 (2) RULEMAKING.—The Attorney General shall 

21 promulgate regulations to implement section 292(c) 

22 of the Immigration and Nationality Act, as added by 

23 paragraph (1), in accordance with the requirements 

24 set forth in section 3006A of title 18, United States 

25 Code. 


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

2 DETENTION FACILITIES. 

3 (a) ACCESS TO COUNSEL.—The Secretary of Home4 land Security shall facilitate access to counsel for all aliens 

5 detained in facilities under the supervision of U.S. Immi6 gration and Customs Enforcement or of U.S. Customs and 

7 Border Protection, including providing information to 

8 such aliens regarding legal services programs at detention 

9 facilities. 

10 (b) ACCESS TO LEGAL ORIENTATION PROGRAMS.— 

11 (1) PROCEDURES.—The Secretary of Homeland 

12 Security, in consultation with the Attorney General, 

13 shall establish procedures— 

14 (A) to ensure that legal orientation pro15 grams are available for all detained aliens, in16 cluding aliens held in U.S. Customs and Border 

17 Protection facilities; and 

18 (B) to inform such aliens of— 

19 (i) the basic procedures of immigra20 tion hearings; 

21 (ii) their rights relating to such hear22 ings under Federal immigration laws; 

23 (iii) information that may deter such 

24 aliens from filing frivolous legal claims; 

25 and 


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1 (iv) any other information that the 

2 Attorney General considers appropriate, 

3 such as a contact list of potential legal re4 sources and providers. 

5 (2) UNIVERSAL AVAILABILITY.—Access to legal 

6 orientation programs under paragraph (1) may not 

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

8 prior immigration history, or potential for immigra9 tion relief. 

10 SEC. 4. REPORT ON ACCESS TO COUNSEL. 

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

12 year, the Secretary of Homeland Security, in consultation 

13 with the Attorney General, shall submit a report to the 

14 Committee on the Judiciary of the Senate and the Com15 mittee on the Judiciary of the House of Representatives 

16 regarding the extent to which aliens described in section 

17 292(c) of the Immigration and Nationality Act, as added 

18 by section 2(c)(1), have been provided access to counsel. 

19 (b) CONTENTS.—Each report submitted under sub20 section (a) shall include, for the immediately preceding 1- 

21 year period— 

22 (1) the number and percentage of aliens de23 scribed in paragraphs (1), (2), (3), and (4), respec24 tively, of section 292(c) of the Immigration and NaVerDate Sep 11 2014 23:36 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2389.IS S2389

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1 tionality Act who were represented by counsel, in2 cluding information specifying— 

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

4 the alien was represented; and 

5 (B) whether the alien was in government 

6 custody; and 

7 (2) the number and percentage of aliens who 

8 received legal orientation presentations. 

9 SEC. 5. MOTIONS TO REOPEN. 

10 Section 240(c)(7)(C) of the Immigration and Nation11 ality Act (8 U.S.C. 1229a(c)(7)(C)) is amended by adding 

12 at the end the following: 

13 ‘‘(v) SPECIAL RULE FOR ALIENS EN14 TITLED TO APPOINTMENT OF COUNSEL.— 

15 If the Attorney General fails to appoint 

16 counsel for an alien in violation of section 

17 292(c)— 

18 ‘‘(I) no limitation under this 

19 paragraph pertaining to the filing of 

20 any motion under this paragraph by 

21 such alien shall apply; and 

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

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

Æ 


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