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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 382 Introduced in Senate (IS)]

<DOC>

117th CONGRESS
  1st Session
                                 S. 382

 To establish the Office of the Ombudsperson for Immigrant Children in 
              Government Custody, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                           February 23, 2021

  Mrs. Gillibrand (for herself, Ms. Cortez Masto, Mr. Blumenthal, Ms. 
 Warren, Ms. Rosen, and Mr. Van Hollen) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
 To establish the Office of the Ombudsperson for Immigrant Children in 
              Government Custody, 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 ``Protection of Kids in Immigrant 
Detention Act'' or ``PROKID Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Committee.--The term ``Committee'' means the expert 
        advisory committee established under section 5(a).
            (2) Director.--The term ``Director'' means the Director of 
        the Office of Refugee Resettlement.
            (3) Facility.--The term ``facility''--
                    (A) means a location at which 1 or more immigrant 
                children are detained by the Government or held in 
                Government custody; and
                    (B) includes--
                            (i) an Office of Refugee Resettlement 
                        facility; and
                            (ii) a Department of Homeland Security 
                        facility, including--
                                    (I) a U.S. Customs and Border 
                                Protection temporary holding facility 
                                and transportation contractor;
                                    (II) a U.S. Immigration and Customs 
                                Enforcement family detention facility;
                                    (III) a U.S. Immigration and 
                                Customs Enforcement juvenile facility;
                                    (IV) a location operated by a 
                                private entity, including a hotel room; 
                                and
                                    (V) any other location at which the 
                                Department of Homeland Security detains 
                                or holds in custody an immigrant child.
            (4) Flores settlement agreement.--The term ``Flores 
        settlement agreement'' means the stipulated settlement 
        agreement filed in the United States District Court for the 
        Central District of California on January 17, 1997 (CV 85-4544-
        RJK).
            (5) Immigrant child.--The term ``immigrant child'' means an 
        alien (as defined in section 101(a) of the Immigration and 
        Nationality Act (8 U.S.C. 1101(a)) under the age of 18 years.
            (6) In-network facility.--The term ``in-network facility'' 
        means a facility operated by an Office of Refugee Resettlement 
        grantee, subgrantee, contractor, or subcontractor.
            (7) Office of refugee resettlement facility.--The term 
        ``Office of Refugee Resettlement facility''--
                    (A) means--
                            (i) a shelter;
                            (ii) staff secure, secure care, or 
                        transitional foster care housing; or
                            (iii) any other location operated by the 
                        Office of Refugee Resettlement to hold 
                        immigrant children; and
                    (B) includes an in-network facility and an out-of-
                network facility.
            (8) Ombudsperson.--The term ``Ombudsperson'' means the 
        ombudsperson appointed under section 3(c).
            (9) Out-of-network facility.--The term ``out-of-network 
        facility'' means a facility at which an immigrant child is 
        placed as a result of an Office of Refugee Resettlement 
        determination that there is no care provider available among 
        in-network facilities to provide specialized services required 
        by the immigrant child, such as medical or mental health 
        support.
            (10) Unobstructed access.--The term ``unobstructed access'' 
        means--
                    (A) with respect to a facility, the ability to 
                enter the facility, including unannounced, to tour and 
                physically visit all areas of the facility; and
                    (B) with respect to information, the ability to 
                obtain requested information in a timely manner and 
                with the full cooperation of the Director or the 
                Secretary of Homeland Security, as applicable.
            (11) Working group.--The term ``Working Group'' means the 
        interagency working group established under section 6(b).

SEC. 3. OFFICE OF THE OMBUDSPERSON FOR IMMIGRANT CHILDREN IN GOVERNMENT 
              CUSTODY.

    (a) Establishment.--There is established, within the Department of 
Health and Human Services, an Office of the Ombudsperson for Immigrant 
Children in Government Custody (referred to in this section as the 
``Office of the Ombudsperson'')--
            (1) to endorse and support the principle that family 
        separation and detention are generally not in a child's best 
        interest; and
            (2) in cases in which detention or Government custody is 
        required--
                    (A) to ensure that immigrant children are only 
                detained or held in Government custody in the least 
                restrictive setting;
                    (B) to advocate for the quick, safe, and efficient 
                release of immigrant children from detention or 
                Government custody whenever possible; and
                    (C) in any case in which an immigrant child is held 
                in Department of Homeland Security custody together 
                with his or her family unit, to advocate for the 
                release of the child and concurrent release of the 
                parent or legal guardian of the child.
    (b) Independence.--The Office of the Ombudsperson shall be an 
impartial, confidential resource fully independent of--
            (1) the Office of Refugee Resettlement of the Department of 
        Health and Human Services; and
            (2) the Department of Homeland Security.
    (c) Ombudsperson.--
            (1) In general.--The Office of the Ombudsperson shall be 
        headed by an Ombudsperson, who shall be appointed by, and 
        report directly to, the Secretary of Health and Human Services.
            (2) Qualifications.--The individual appointed as 
        Ombudsperson shall have demonstrated experience in--
                    (A) immigration law; and
                    (B) child advocacy or child welfare.
            (3) Duties and authorities.--
                    (A) Monitoring.--The Ombudsperson shall monitor 
                facilities for compliance with applicable law and 
                standards, including--
                            (i) the Flores settlement agreement;
                            (ii) section 235 of the William Wilberforce 
                        Trafficking Victims Protection Reauthorization 
                        Act of 2008 (8 U.S.C. 1232);
                            (iii) the applicable provisions of the 
                        Prison Rape Elimination Act of 2003 (34 U.S.C. 
                        30301 et seq.);
                            (iv) the standards of U.S. Customs and 
                        Border Protection entitled ``National Standards 
                        on Transport, Escort, Detention, and Search'' 
                        issued in October 2015; and
                            (v) internal Office of Refugee Resettlement 
                        policy guidance, including the guidance 
                        entitled ``ORR Policy Guide: Children Entering 
                        the United States Unaccompanied'' issued on 
                        January 30, 2015.
                    (B) Investigations.--
                            (i) In general.--The Ombudsperson shall 
                        investigate--
                                    (I) claims of abuse, neglect, or 
                                mistreatment of immigrant children, by 
                                the Government or any other entity, 
                                while in Government custody; and
                                    (II) complaints against foster care 
                                providers, including foster care 
                                providers under State oversight.
                            (ii) Reporting of state licensing 
                        violations.--If in the course of an 
                        investigation under clause (i)(II) the 
                        Ombudsperson discovers a State licensing 
                        violation, the Ombudsperson shall report the 
                        violation to the child welfare licensing agency 
                        of the applicable State.
                    (C) Oversight of office of refugee resettlement.--
                            (i) In general.--The Ombudsperson shall 
                        provide oversight of the Director by reviewing 
                        placement decisions, including sponsor denials, 
                        that are contested by an immigrant child or the 
                        attorney, child advocate, parent, or 
                        prospective sponsor of the immigrant child.
                            (ii) Expedited review of contested 
                        placement decisions.--
                                    (I) In general.--Not later than 15 
                                days after the date on which review of 
                                a placement decision described in 
                                clause (i) is requested, the 
                                Ombudsperson shall complete the review.
                                    (II) Recommendation to director.--
                                If, in carrying out such a review, the 
                                Ombudsperson determines that such 
                                placement decision was erroneous, the 
                                Ombudsperson shall--
                                            (aa) submit to the Director 
                                        a recommendation for further 
                                        action; and
                                            (bb) make a copy of the 
                                        recommendation available to--

                                                    (AA) the immigrant 
                                                child; and

                                                    (BB) if applicable, 
                                                the immigrant child's 
                                                attorney and child 
                                                advocate.

                                    (III) Written statement.--
                                            (aa) In general.--In any 
                                        case in which the Director 
                                        declines to follow a 
                                        recommendation under subclause 
                                        (II), not later than 15 days 
                                        after the date on which the 
                                        Director receives the 
                                        recommendation, the Director 
                                        shall issue a written response, 
                                        including a detailed 
                                        justification.
                                            (bb) Nondelegation.--The 
                                        Director may not delegate the 
                                        requirement to issue a written 
                                        statement under this subclause.
                            (iii) Civil action not precluded.--Review 
                        by the Ombudsperson under this subparagraph 
                        shall not preclude an immigrant child, or the 
                        attorney, child advocate, parent, or 
                        prospective sponsor of the immigrant child, 
                        from simultaneously commencing a civil action 
                        in any appropriate district court of the United 
                        States.
                    (D) Stakeholder meetings.--Not less frequently than 
                quarterly, the Ombudsperson shall invite community 
                stakeholders, Flores settlement agreement class 
                counsel, and the Flores settlement agreement court-
                appointed monitor to participate in a meeting--
                            (i) to ensure that the Ombudsperson is 
                        aware of stakeholder concerns and priorities; 
                        and
                            (ii) to provide feedback on stakeholder 
                        requests.
                    (E) Regional offices.--The Ombudsperson shall 
                establish regional offices of the Office of the 
                Ombudsperson--
                            (i) to ensure the inclusion of pertinent 
                        local and regional issues, trends, and 
                        challenges for consideration by the 
                        Ombudsperson;
                            (ii) to strengthen State oversight;
                            (iii) to coordinate with State licensing 
                        entities; and
                            (iv) to identify and address differences 
                        among State child protection laws.
                    (F) Individual case assistance.--
                            (i) In general.--The Ombudsperson may offer 
                        individual case assistance to an immigrant 
                        child who is in Government custody if the case 
                        of the immigrant child is long-pending or 
                        otherwise requires expedited processing or 
                        elevated attention, as determined by the 
                        Ombudsperson.
                            (ii) Communication.--To ensure a complete 
                        understanding of the status of a case described 
                        in clause (i), the Ombudsperson may communicate 
                        with the potential sponsor, family members, 
                        child advocate, legal counsel, Office of 
                        Refugee Resettlement case manager and Federal 
                        field specialist, the General Dynamics 
                        Information Technology case coordinator, and 
                        any other relevant individual charged with case 
                        management of the immigrant child concerned.
                    (G) Subpoena authority.--
                            (i) In general.--Subject to the approval of 
                        the Secretary of Health and Human Services, the 
                        Ombudsperson may--
                                    (I) issue a subpoena to require the 
                                production of all information, reports, 
                                and other documentary evidence 
                                necessary to carry out the duties of 
                                the Ombudsperson; and
                                    (II) invoke the aid of any 
                                appropriate court of the United States.
                            (ii) Timeline for production of 
                        information.--To prevent undue delay of the 
                        placement of an immigrant child, requirements 
                        set forth in a subpoena under clause (i)(I) 
                        shall be satisfactorily fulfilled not later 
                        than 7 days after the date on which the 
                        Ombudsperson issues the subpoena.
                    (H) Reporting mechanisms.--
                            (i) In general.--The Ombudsperson shall 
                        establish and maintain--
                                    (I) a toll-free telephone number to 
                                receive complaints and reports of 
                                matters for investigation; and
                                    (II) an email address to receive 
                                complaints, such reports, and requests 
                                for review of placement decisions.
                            (ii) Availability.--The Ombudsperson shall 
                        ensure that--
                                    (I) such telephone number is made 
                                available, and a telephone is 
                                accessible, to each immigrant child in 
                                a facility; and
                                    (II) such email address is made 
                                available to sponsors, Flores 
                                settlement agreement class counsel, and 
                                legal services providers and child 
                                advocates who serve such immigrant 
                                children.
                    (I) Report to congress.--
                            (i) In general.--Not later than September 
                        30 each year, the Ombudsperson shall submit to 
                        Congress a report on the accomplishments and 
                        challenges of the Office of the Ombudsperson 
                        during the fiscal year ending on that date.
                            (ii) Elements.--Each report required by 
                        clause (i) shall include, for the applicable 
                        fiscal year, the following:
                                    (I) A summary of the status of 
                                immigrant children in Government 
                                custody that highlights broader trends 
                                and recommendations for future action.
                                    (II) Statistical information on 
                                immigrant children in Government 
                                custody, together with an analysis of 
                                such information.
                                    (III) A summary of complaints 
                                received and proposed resolutions.
                                    (IV) A detailed description of any 
                                investigation into a claim of abuse, 
                                neglect, or mistreatment of an 
                                immigrant child in Government custody, 
                                including a summary of the results of 
                                any such investigation.
                                    (V) A description of the objectives 
                                of the Office of the Ombudsperson for 
                                the next fiscal year.
                    (J) Additional duties.--The Ombudsperson shall--
                            (i) conduct a review of data collection, as 
                        described in section 4(a);
                            (ii) establish the Committee, as described 
                        in section 5; and
                            (iii) enter into a memorandum of 
                        understanding, as described in section 6(a).
    (d) Access to Facilities.--The Secretary of Health and Human 
Services and the Secretary of Homeland Security shall ensure--
            (1) unobstructed access by the Ombudsperson to any 
        facility; and
            (2) the ability of the Ombudsperson--
                    (A) to monitor any facility; and
                    (B) to meet confidentially with--
                            (i) staff of any facility;
                            (ii) employees and contractors of the 
                        Office of Refugee Resettlement and the 
                        Department of Homeland Security; and
                            (iii) any immigrant child in Government 
                        custody, after notification of the immigrant 
                        child's counsel, as applicable.
    (e) Access to Information.--The Secretary of Health and Human 
Services shall ensure unobstructed access by the Ombudsperson to--
            (1) the case files, records, reports, audits, documents, 
        papers, recommendations, or any other pertinent information 
        relating to the care and custody of an immigrant child; and
            (2) the written policies and procedures of all Office of 
        Refugee Resettlement facilities.

SEC. 4. DATA COLLECTION.

    (a) Independent Review by Ombudsperson.--
            (1) In general.--The Ombudsperson shall regularly review 
        data collected by the Secretary of Health and Human Services 
        and the Secretary of Homeland Security relating to immigrant 
        children in facilities.
            (2) Collaboration required.--The Secretary of Health and 
        Human Services and the Secretary of Homeland Security shall 
        provide the Ombudsperson unobstructed access to--
                    (A) real-time custody and detention data for each 
                immigrant child detained by the Government or held in 
                Government custody, including--
                            (i) the location and level of placement;
                            (ii) biographical information, including 
                        full name, date of birth, country of 
                        citizenship, and alien number;
                            (iii) all locations at which the immigrant 
                        child has been detained or held in custody;
                            (iv) the dates and times the immigrant 
                        child is booked in and booked out of any 
                        facility; and
                            (v) transfer and discharge information; and
                    (B) Department of Homeland Security and Department 
                of Health and Human Services data personnel for the 
                purpose of reviewing data collection and integrity 
                issues.
    (b) Office of Refugee Resettlement Data Collection System.--
            (1) In general.--To support the data collection and 
        monitoring duties of the Ombudsperson and to facilitate public 
        monitoring, the Director shall develop a data collection system 
        that collects and maintains the following information:
                    (A) The total number of immigrant children held in 
                custody by the Director, disaggregated by placement 
                level, specific Office of Refugee Resettlement 
                facility, and age.
                    (B) The average and median number of days immigrant 
                children remain in such custody, disaggregated by 
                placement level, specific Office of Refugee 
                Resettlement facility, and age.
                    (C) The average and median number of days immigrant 
                children stay in an Office of Refugee Resettlement 
                facility, disaggregated by placement level, specific 
                Office of Refugee Resettlement facility, and age.
                    (D) The number of immigrant children discharged to 
                sponsors, disaggregated by sponsor category, placement 
                level, specific Office of Refugee Resettlement 
                facility, and age.
                    (E) The sponsor categories of immigrant children 
                held at each Office of Refugee Resettlement facility, 
                disaggregated by placement level and age.
                    (F) The number and percentage of immigrant children 
                held in an Office of Refugee Resettlement facility with 
                more than 25 immigrant children, disaggregated by 
                placement level and age.
                    (G) The percentage of filled capacity across all 
                Office of Refugee Resettlement facilities.
                    (H) The total number of children held at out-of-
                network facilities, disaggregated by placement level 
                and age.
                    (I) For each Office of Refugee Resettlement 
                facility--
                            (i) the percentage of filled capacity;
                            (ii) the maximum number of available beds;
                            (iii) the number and percentage of 
                        immigrant children with disabilities, 
                        disaggregated by placement level and age; and
                            (iv) the number and percentage of immigrant 
                        children receiving mandatory home studies, 
                        discretionary home studies, and post-release 
                        services, disaggregated by placement level and 
                        age.
            (2) Publication.--Not later than the 15th of each month, 
        the Director shall make the data collected under paragraph (1) 
        for the preceding month available to the public on the internet 
        website of the Office of Refugee Resettlement.
    (c) Prohibition on Certain Uses of Information.--Information 
collected under this section may not be used for immigration 
enforcement or law enforcement purposes.

SEC. 5. EXPERT ADVISORY COMMITTEE.

    (a) Establishment.--Not later than 90 days after the date of the 
enactment of this Act, the Ombudsperson shall establish an expert 
advisory committee to assist the Ombudsperson in--
            (1) identifying relevant trends relating to immigrant 
        children in Government custody;
            (2) conducting fact-finding missions and investigations of 
        facilities; and
            (3) ensuring Government and private contractor compliance 
        with applicable law and standards for facilities.
    (b) Membership.--The members of the Committee shall--
            (1) be appointed by the Ombudsperson;
            (2) represent various geographical regions; and
            (3) be comprised of subject matter experts, including--
                    (A) legal advocates or specialists in the fields of 
                child and family welfare, immigration, and human 
                rights;
                    (B) pediatricians or other appropriate pediatric 
                health care experts;
                    (C) child or adolescent psychiatrists or 
                psychologists;
                    (D) social workers;
                    (E) data analysis experts; and
                    (F) any other relevant subject matter expert.
    (c) Meetings.--The Committee shall meet not less frequently than 
quarterly.
    (d) Duties.--The Committee shall regularly--
            (1) review facility compliance with applicable law and 
        standards relating to Government detention and custody of 
        immigrant children, including the Flores settlement agreement 
        and section 235 of the William Wilberforce Trafficking Victims 
        Protection Reauthorization Act of 2008 (8 U.S.C. 1232); and
            (2) submit to the Ombudsperson recommendations for 
        improvement.
    (e) Site Visits.--The Committee may designate 1 or more individuals 
who shall have the authority--
            (1) to carry out facility site visits; and
            (2) interview immigrant children held in Government 
        custody, after notification of counsel, as applicable.

SEC. 6. COORDINATION WITH DEPARTMENT OF HOMELAND SECURITY.

    (a) Memorandum of Understanding.--
            (1) In general.--On the date of the enactment of this Act, 
        the Secretary of Homeland Security and the Ombudsperson shall 
        enter into a memorandum of understanding to coordinate 
        oversight between the Department of Homeland Security and the 
        Department of Health and Human Services.
            (2) Elements.--The memorandum of understanding required by 
        paragraph (1) shall do the following:
                    (A) Require the Secretary of Homeland Security to 
                provide information to the Ombudsperson with respect to 
                each immigrant child detained by U.S. Customs and 
                Border Protection or U.S. Immigration and Customs 
                Enforcement, or who is otherwise in the custody of the 
                Secretary of Homeland Security, including--
                            (i) the location of the immigrant child;
                            (ii) biographical information, including 
                        full name, date of birth, country of 
                        citizenship, and alien number;
                            (iii) all locations at which the immigrant 
                        child has been so detained or held in 
                        Department of Homeland Security custody;
                            (iv) exact times at which the immigrant 
                        child was booked in and booked out of such 
                        custody;
                            (v) the date on which the immigrant child 
                        is released from such custody or transferred to 
                        the custody of the Secretary of Health and 
                        Human Services;
                            (vi) in the case of an immigrant child who 
                        remains in Department of Homeland Security 
                        custody for more than 72 hours, the reason for 
                        such continued custody; and
                            (vii) any other information the 
                        Ombudsperson considers relevant to the 
                        oversight and monitoring duties described in 
                        section 3(c)(3).
                    (B) Establish the right of the Ombudsperson and the 
                Committee to monitor Department of Homeland Security 
                facilities for compliance with applicable standards of 
                custody.
                    (C) Provide the Ombudsperson and the Committee full 
                and unobstructed access to--
                            (i) Department of Homeland Security 
                        facilities for regular site visits; and
                            (ii) the written policies and procedures of 
                        Department of Homeland Security facilities.
            (3) Limitation.--The memorandum of understanding may only 
        allow the Ombudsperson to share information with the Secretary 
        of Homeland Security on a case-by-case basis, and with the 
        informed consent of the immigrant child concerned, if the 
        Ombudsperson determines that such information sharing may 
        facilitate the release of the immigrant child from custody.
            (4) Evaluation.--Not later than 2 years after the 
        Ombudsperson and the Secretary of Homeland Security enter into 
        the memorandum of understanding required by this subsection, 
        the Comptroller General of the United States shall evaluate the 
        coordination between the Ombudsperson and the Secretary to 
        determine whether such memorandum of understanding is 
        sufficient to ensure the oversight and monitoring required by 
        this Act.
            (5) Recommendations.--If the Comptroller General makes a 
        determination under paragraph (4) that the memorandum of 
        understanding is insufficient, the Comptroller General shall 
        recommend actionable steps to be implemented--
                    (A) to improve coordination between the 
                Ombudsperson and the Secretary of Homeland Security; 
                and
                    (B) to ensure effectiveness of the mandate of the 
                Ombudsperson.
    (b) Interagency Working Group.--
            (1) Establishment.--There is established an interagency 
        working group to identify and discuss concerns relating to 
        immigrant children in facilities.
            (2) Membership.--The Working Group shall be composed of 
        representatives of--
                    (A) the Department of Justice;
                    (B) the Department of Health and Human Services, 
                including the Director or a senior representative of 
                the Office of Refugee Resettlement;
                    (C) U.S. Customs and Border Protection;
                    (D) U.S. Immigration and Customs Enforcement;
                    (E) relevant oversight offices, including--
                            (i) the Immigration Detention Ombudsman of 
                        the Department of Homeland Security; and
                            (ii) the Inspectors General of the 
                        Department of Justice, the Department of Health 
                        and Human Services, U.S. Customs and Border 
                        Protection, and U.S. Immigration and Customs 
                        Enforcement; and
                    (F) any other relevant Federal agency or office.
            (3) Meetings.--The Working Group shall--
                    (A) hold meetings not less frequently than 
                quarterly;
                    (B) invite representatives of nongovernmental 
                organizations that provide services to immigrant 
                children to participate in such meetings as the 
                Ombudsperson considers appropriate; and
                    (C) provide to the Ombudsperson a summary of each 
                such meeting.

SEC. 7. RULE OF CONSTRUCTION.

    Nothing in the Act shall be construed to preclude or limit Flores 
settlement agreement class counsel from conducting independent 
investigations or seeking enforcement actions relating to violations of 
the Flores settlement agreement in any appropriate district court of 
the United States.
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