Funding Attorneys for Indigent Removal (FAIR) Proceedings Act
Bill: H.R.9304 | Sponsor: Rep. McEachin, A. Donald (D-VA)
Policy area: Immigration

Summary:
Funding Attorneys for Indigent Removal (FAIR) Proceedings Act
This bill expands access to counsel for non-U.S. nationals (aliens under federal law) in immigration proceedings and provides protections related to such proceedings.
Such an individual 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 individuals in any immigration proceeding, whereas currently DOJ is statutorily authorized to provide counsel only for 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 individual's removal shall be stayed upon the motion's filing.
The bill establishes the Immigration Counsel Account to be used to provide counsel under this bill. A portion of certain immigration fees shall be deposited into the account.
The Department of Homeland Security (DHS) shall provide each individual, generally at the beginning of proceedings, a complete copy of the individual's case file in DHS possession, unless the individual waives this right in writing. Failure to provide such documents shall delay the individual's removal proceeding.
DHS shall facilitate for all detained individuals access to counsel and programs that inform such individuals of their immigration-related rights and obligations.

To amend the Immigration and Nationality Act to provide access to 
 counsel for children and other vulnerable populations, 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 ``Funding Attorneys for Indigent 
Removal (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 subparagraph (A)--
                            (i) by striking ``, at no expense to the 
                        Government,''; and
                            (ii) by striking the comma at the end and 
                        inserting a semicolon;
                    (B) by redesignating subparagraphs (B) and (C) as 
                subparagraphs (D) and (E), respectively;
                    (C) by inserting after subparagraph (A) the 
                following:
                    ``(B) the Attorney General may appoint or provide 
                counsel, at Government expense, to aliens in 
                immigration proceedings;
                    ``(C) the alien shall, at the beginning of the 
                proceedings or as expeditiously as possible, 
                automatically receive a complete copy of all relevant 
                documents in the possession of the Department of 
                Homeland Security, including all documents (other than 
                documents protected from disclosure by privilege, 
                including national security information referred to in 
                subparagraph (D), law enforcement sensitive 
                information, and 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 all documents 
                pertaining to the alien that the Department of Homeland 
                Security has obtained or received from other government 
                agencies, 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;''; and
                    (D) 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 as 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 
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, 241, or 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.--The Attorney General may appoint or 
provide counsel to aliens in any proceeding conducted under section 
235, 236, 238, 240, or 241 or any other section of this Act. 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 (8 U.S.C. 1362), as amended by subsection (b), 
        is further amended by adding at the end the following:
    ``(c) Children and Vulnerable Aliens.--Notwithstanding subsection 
(b), the Attorney General shall appoint or provide counsel, at the 
expense of the Government if necessary, at the beginning of the 
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 (as defined in section 101(b)(1) of this 
        Act);
            ``(2) a particularly vulnerable individual, such as--
                    ``(A) a person with a disability; or
                    ``(B) a victim of abuse, torture, or violence;
            ``(3) 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
            ``(4) an individual whose circumstances are such that the 
        appointment of counsel is necessary to help ensure fair 
        resolution and efficient adjudication of the proceedings.
    ``(d) Extension to Consolidated Cases.--If the Attorney General has 
consolidated the case of any alien for whom counsel was appointed under 
subsection (c) with that of any other alien, and that other alien does 
not have counsel, then the counsel appointed under subsection (c) shall 
be appointed to represent such other alien.
    ``(e) Authorization of Appropriations.--There is authorized to be 
appropriated to the Executive Office of Immigration Review of the 
Department of Justice, in addition to amounts available in the 
Immigration Counsel Account under section 295, such sums as may be 
necessary to carry out this section.''.
            (2) Rulemaking.--The Attorney General 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.

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 
aliens in detention about legal services programs at detention 
facilities.
    (b) Access to Legal Orientation Programs.--The Secretary of 
Homeland Security, in consultation with the Attorney General, shall 
establish procedures to ensure that legal orientation programs are 
available for all detained aliens, including aliens held in U.S. 
Customs and Border Protection facilities, to inform such aliens of the 
basic procedures of immigration hearings, their rights relating to 
those hearings under Federal immigration laws, information that may 
deter such aliens from filing frivolous legal claims, and any other 
information that the Attorney General considers appropriate, such as a 
contact list of potential legal resources and providers. Access to 
legal orientation programs shall 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, shall 
prepare and 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 
section 292(c) of the Immigration and Nationality Act, as added by 
section 2(c)(1), have been provided access to counsel.
    (b) Contents.--Each report submitted under paragraph (a) shall 
include, for the immediately preceding 1-year period--
            (1) the number and percentage of aliens described in 
        paragraphs (1), (2), (3), and (4), respectively, of section 
        292(c) of the Immigration and Nationality Act, as added by 
        section 2(c)(1), 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 Attorney 
                        General fails to appoint counsel for an alien 
                        in violation of section 292(c)--
                                    ``(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.''.

SEC. 6. IMMIGRATION COUNSEL ACCOUNT.

    (a) In General.--Chapter 9 of the Immigration and Nationality Act 
is amended by adding at the end the following:

``SEC. 295. IMMIGRATION COUNSEL ACCOUNT.

    ``(a) In General.--There is established in the general fund of the 
Treasury a separate account, which shall be known as the `Immigration 
Counsel Account'. Amounts deposited into the Immigration Counsel 
Account shall remain available until expended to provide access to 
counsel when required or authorized under this Act and to facilitate 
access to counsel under the Funding Attorneys for Indigent Removal 
(FAIR) Proceedings Act.
    ``(b) Report.--At the end of each 2-year period, beginning with the 
creation of Immigration Counsel Account, the Secretary of Homeland 
Security, following a public rulemaking with opportunity for notice and 
comment, shall submit a report to the Congress concerning the status of 
the account, including any balances therein, and recommend any 
adjustment in the amount of the funds required to be reserved under 
section 286(m) for deposit into the account that may be required to 
ensure that the amounts so reserved for the succeeding two years equal, 
as closely as possible, the cost of providing access to counsel when 
required or authorized under this Act and facilitating access counsel 
under the Funding Attorneys for Indigent Removal (FAIR) Proceedings 
Act.''.
    (b) Deposits.--Section 286(m) of the Immigration and Nationality 
Act (8 U.S.C. 1356(m)) is amended by adding at the end the following:
``Notwithstanding the first sentence of this subsection, beginning on 
the date of the enactment of the Funding Attorneys for Indigent Removal 
(FAIR) Proceedings Act, $10 from each fee for providing adjudication or 
naturalization services as may be charged and collected in accordance 
with this subsection shall be reserved and deposited as offsetting 
receipts into the Immigration Counsel Account established under section 
295.''.
    (c) Table of Contents.--The table of contents for such Act is 
amended by inserting after the item relating to section 294 the 
following:

``Sec. 295. Immigration Counsel Account.''.
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