FAIR Proceedings Act
Bill: S.901 | Sponsor: Sen. Gillibrand, Kirsten E. (D-NY)
Policy area: Immigration

Summary:
Funding Attorneys for Indigent Removal Proceedings Act or the FAIR Proceedings Act
This bill expands access to counsel for aliens in immigration proceedings and provides for protections related to such proceedings.
An alien shall have the privilege of being represented by counsel in any immigration proceeding, whereas currently this privilege is statutorily provided for only in removal proceedings.
Similarly, the Department of Justice (DOJ) may provide counsel at government expense to aliens in any immigration proceeding, whereas currently DOJ is statutorily authorized to provide counsel to aliens only in removal proceedings and at no expense to the government.
Under this bill, DOJ shall provide counsel to children and vulnerable individuals in such proceedings, at government expense if necessary. If DOJ fails to do so, certain limits on filing a motion to reopen removal proceedings (such as the time limit for filing) shall not apply, and the alien's removal shall be stayed upon the motion's filing.
The Department of Homeland Security (DHS) shall provide each alien, generally at the beginning of proceedings, a complete copy of the alien's case file in DHS possession, unless the alien waives this right in writing. Failure to provide such documents shall delay the alien's removal proceeding.
DHS shall facilitate for all detained aliens access to counsel and programs that inform such aliens of their immigration-related rights and obligations.

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

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLES.

    This Act may be cited as the ``Funding Attorneys for Indigent 
Removal Proceedings Act'' or the ``FAIR Proceedings Act''.

SEC. 2. IMPROVING IMMIGRATION COURT EFFICIENCY AND REDUCING COSTS BY 
              INCREASING ACCESS TO LEGAL INFORMATION.

    (a) Appointment of Counsel in Certain Cases; Right To Review 
Certain Documents in Removal Proceedings.--Section 240(b) of the 
Immigration and Nationality Act (8 U.S.C. 1229a(b)) is amended--
            (1) in paragraph (4)--
                    (A) in the matter preceding subparagraph (A), by 
                inserting ``, or in the case of an unaccompanied alien 
                child (as defined in section 462(g)(2) of the Homeland 
                Security Act of 2002 (6 U.S.C. 279(g)(2))), under 
                regulations of the Secretary of Health and Human 
                Services'' after ``Attorney General'';
                    (B) in subparagraph (A)--
                            (i) by striking ``, at no expense to the 
                        Government,''; and
                            (ii) by striking the comma at the end and 
                        inserting a semicolon;
                    (C) by redesignating subparagraphs (B) and (C) as 
                subparagraphs (D) and (E), respectively;
                    (D) by inserting after subparagraph (A) the 
                following:
                    ``(B) the Attorney General, or in the case of an 
                unaccompanied alien child, the Secretary of Health and 
                Human Services, may appoint or provide counsel, at 
                Government expense, to the alien;
                    ``(C) the alien, at the beginning of such 
                proceedings or as expeditiously as possible, shall 
                automatically receive a complete copy of all relevant 
                documents in the possession of the Department of 
                Homeland Security (unless the alien waives the right to 
                receive such documents by executing a knowing and 
                voluntary written waiver in a language that he or she 
                understands fluently), including--
                            ``(i) all documents (other than documents 
                        protected from disclosure by privilege and 
                        documents containing national security 
                        information referred to in subparagraph (D), 
                        law enforcement sensitive information, or 
                        information prohibited from disclosure pursuant 
                        to any other provision of law) contained in the 
                        file maintained by the Government that includes 
                        information with respect to all transactions 
                        involving the alien during the immigration 
                        process (commonly referred to as an `A-file'); 
                        and
                            ``(ii) all documents pertaining to the 
                        alien that the Department of Homeland Security 
                        has obtained or received from other government 
                        agencies;''; and
                    (E) in subparagraph (D), as redesignated, by 
                striking ``, and'' and inserting ``; and''; and
            (2) by adding at the end the following:
            ``(8) Failure to provide alien required documents.--In the 
        absence of a waiver under paragraph (4)(C), a removal 
        proceeding may not proceed until the alien--
                    ``(A) has received the documents required under 
                such paragraph; and
                    ``(B) has been provided meaningful time to review 
                and assess such documents.''.
    (b) Clarification Regarding the Authority of the Attorney General 
and the Secretary of Health and Human Services To Appoint Counsel to 
Aliens in Immigration Proceedings.--Section 292 of the Immigration and 
Nationality Act (8 U.S.C. 1362) is amended--
            (1) by striking ``In any'' and inserting the following:
    ``(a) In General.--In any proceeding conducted under section 235, 
236, 238, 240, or 241, or under any other section of this Act, 
including'';
            (2) in subsection (a), as redesignated--
                    (A) by striking ``(at no expense to the 
                Government)''; and
                    (B) by striking ``he shall'' and inserting ``the 
                person shall''; and
            (3) by adding at the end the following:
    ``(b) Access to Counsel.--
            ``(1) In general.--The Attorney General may appoint or 
        provide counsel to aliens in any proceeding conducted under 
        section 235, 236, 238, 240, or 241, or under any other section 
        of this Act.
            ``(2) Unaccompanied alien children.--The Secretary of 
        Health and Human Services may appoint or provide counsel to 
        unaccompanied alien children (as defined in section 462(g)(2) 
        of the Homeland Security Act of 2002 (6 U.S.C. 279(g)(2))) in 
        any applicable proceeding conducted pursuant to any section of 
        this Act.
            ``(3) Immigration detention and border facilities.--The 
        Secretary of Homeland Security shall ensure that aliens have 
        access to counsel inside all immigration detention and border 
        facilities.''.
    (c) Appointment of Counsel for Children and Vulnerable Aliens.--
            (1) In general.--Section 292 of the Immigration and 
        Nationality Act, as amended by subsection (b), is further 
        amended by adding at the end the following:
    ``(c) Unaccompanied Alien Children.--Notwithstanding subsection 
(b), the Secretary of Health and Human Services shall appoint or 
provide counsel at Government expense, if necessary, at the beginning 
of immigration proceedings, or as expeditiously as possible, to 
represent in such proceedings unaccompanied alien children.
    ``(d) Other Vulnerable Aliens.--Notwithstanding subsection (b), the 
Attorney General shall appoint or provide counsel at Government 
expense, if necessary, at the beginning of immigration proceedings or 
as expeditiously as possible, to represent in such proceedings any 
alien who has been determined by the Secretary of Homeland Security or 
the Attorney General to be--
            ``(1) a child who is not an unaccompanied alien child;
            ``(2) a person with a disability;
            ``(3) a victim of abuse, torture, or violence;
            ``(4) an individual whose income is at or below 200 percent 
        of the poverty line (as defined by the Office of Management and 
        Budget and revised annually in accordance with section 673(2) 
        of the Community Services Block Grant Act (42 U.S.C. 9902(2))) 
        applicable to a family of the size involved; or
            ``(5) an individual whose circumstances require the 
        appointment of counsel to help ensure the fair resolution and 
        efficient adjudication of the proceedings.
    ``(e) Extension to Consolidated Cases.--If the Attorney General has 
consolidated the case of an alien for whom counsel was appointed under 
subsection (c) or (d) with the case of another alien who does not have 
counsel, the counsel appointed under subsection (c) or (d), as 
applicable, shall be appointed to represent such other alien.
    ``(f) Authorization of Appropriations.--There is authorized to be 
appropriated to the Office of Refugee Resettlement of the Department of 
Health and Human Services and to Executive Office for Immigration 
Review of the Department of Justice, such sums as may be necessary to 
carry out this section.''.
            (2) Rulemaking.--
                    (A) Unaccompanied alien children.--The Secretary of 
                Health and Human Services shall promulgate regulations 
                to implement section 292(c) of the Immigration and 
                Nationality Act, as added by paragraph (1), in 
                accordance with the requirements set forth in section 
                3006A of title 18, United States Code.
                    (B) Other vulnerable aliens.--The Attorney General 
                shall promulgate regulations to implement section 
                292(d) of the Immigration and Nationality Act, as added 
                by paragraph (1), in accordance with the requirements 
                set forth in section 3006A of title 18, United States 
                Code.

SEC. 3. ACCESS BY COUNSEL AND LEGAL ORIENTATION AT DETENTION 
              FACILITIES.

    (a) Access to Counsel.--The Secretary of Homeland Security shall 
facilitate access to counsel for all aliens detained in facilities 
under the supervision of U.S. Immigration and Customs Enforcement or of 
U.S. Customs and Border Protection, including providing information to 
such aliens regarding legal services programs at detention facilities.
    (b) Access to Legal Orientation Programs.--
            (1) Procedures.--The Secretary of Homeland Security, in 
        consultation with the Attorney General, shall establish 
        procedures--
                    (A) to ensure that legal orientation programs are 
                available for all detained aliens, including aliens 
                held in U.S. Customs and Border Protection facilities; 
                and
                    (B) to inform such aliens of--
                            (i) the basic procedures of immigration 
                        hearings;
                            (ii) their rights relating to such hearings 
                        under Federal immigration laws;
                            (iii) information that may deter such 
                        aliens from filing frivolous legal claims; and
                            (iv) any other information that the 
                        Attorney General considers appropriate, such as 
                        a contact list of potential legal resources and 
                        providers.
            (2) Universal availability.--Access to legal orientation 
        programs under paragraph (1) may not be limited by the alien's 
        current immigration status, prior immigration history, or 
        potential for immigration relief.

SEC. 4. REPORT ON ACCESS TO COUNSEL.

    (a) Report.--Not later than December 31 of each year, the Secretary 
of Homeland Security, in consultation with the Attorney General and the 
Secretary of Health and Human Services, shall submit a report to the 
Committee on the Judiciary of the Senate and the Committee on the 
Judiciary of the House of Representatives regarding the extent to which 
aliens described in subsections (c) and (d) of section 292 of the 
Immigration and Nationality Act, as added by section 2(c)(1), have been 
provided access to counsel.
    (b) Contents.--Each report submitted pursuant to subsection (a) 
shall include, for the immediately preceding 1-year period--
            (1) the number and percentage of aliens described in 
        section 292(c) of the Immigration and Nationality Act and in 
        paragraphs (1), (2), (3), and (4), respectively, of section 
        292(d) of such Act who were represented by counsel, including 
        information specifying--
                    (A) the stage of the legal process at which the 
                alien was represented; and
                    (B) whether the alien was in government custody; 
                and
            (2) the number and percentage of aliens who received legal 
        orientation presentations.

SEC. 5. MOTIONS TO REOPEN.

    Section 240(c)(7)(C) of the Immigration and Nationality Act (8 
U.S.C. 1229a(c)(7)(C)) is amended by adding at the end the following:
                            ``(v) Special rule for aliens entitled to 
                        appointment of counsel.--If the Secretary of 
                        Health and Human Services or the Attorney 
                        General fail to appoint counsel for an alien in 
                        accordance with subsection (c) or (d) of 
                        section 292, as applicable--
                                    ``(I) no limitation under this 
                                paragraph pertaining to the filing of 
                                any motion under this paragraph by such 
                                alien shall apply; and
                                    ``(II) the filing of such a motion 
                                shall stay the removal of the alien.''.
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