II 117th CONGRESS 1st Session S. 3108 IN THE SENATE OF THE UNITED STATES October 28, 2021 Ms. Hirono (for herself, Mr. Bennet , Mr. Blumenthal , Mr. Booker , Mr. Coons , Ms. Cortez Masto , Mr. Durbin , Mrs. Feinstein , Mrs. Gillibrand , Mr. Heinrich , Mr. Hickenlooper , Ms. Klobuchar , Mr. Leahy , Mr. Markey , Mr. Menendez , Mr. Merkley , Mr. Murphy , Mr. Padilla , Mr. Reed , Ms. Rosen , Mr. Sanders , Mr. Schatz , Ms. Smith , Ms. Warren , Mr. Whitehouse , and Mr. Wyden ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To provide counsel for unaccompanied children, and for other purposes.

1. Short title This Act may be cited as the Fair Day in Court for Kids Act of 2021 . 2. Definitions In this Act: (1) Noncitizen The term noncitizen means an individual who is not a citizen or national of the United States. (2) Unaccompanied child The term unaccompanied child has the meaning given the term unaccompanied alien child in section 462(g) of the Homeland Security Act of 2002 ( 6 U.S.C. 279(g) ). 3. References to aliens With respect to an individual who is not a citizen or national of the United States, any reference in this Act to a noncitizen shall be deemed to refer to an individual otherwise described as an alien in any Federal law, Federal regulation, or any written instrument issued by the executive branch of the Government. 4. Improving immigration court efficiency and reducing costs by increasing access to legal information (a) Definitions Section 101(a) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a) ) is amended by adding at the end the following: (53) The term noncitizen means an individual who is not a citizen or national of the United States. (54) The term unaccompanied child has the meaning given the term unaccompanied alien child in section 462(g) of the Homeland Security Act of 2002 ( 6 U.S.C. 279(g) ). . (b) Appointment of counsel in removal proceedings; 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), in the matter preceding subparagraph (A), by striking under regulations of the Attorney General and inserting under regulations of the Attorney General, or in the case of an unaccompanied child, under regulations of the Secretary of Health and Human Services — (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, or in the case of an unaccompanied child, the Secretary of Health and Human Services, may appoint or provide counsel, at Government expense, to noncitizens in immigration proceedings; (C) the noncitizen, or the noncitizen’s counsel, not later than 7 days after receiving a notice to appear under section 239(a), shall receive a complete copy of the noncitizen’s immigration file (commonly known as an A-file ) in the possession of the Department of Homeland Security (other than documents protected from disclosure under section 552(b) of title 5, United States Code); ; 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 noncitizen required documents A removal proceeding may not proceed until the noncitizen, or the noncitizen’s counsel if the noncitizen is represented— (A) has received the documents required under paragraph (4)(C); and (B) has been provided at least 10 days to review and assess such documents, unless the noncitizen or the noncitizen’s counsel expressly waives such review period. . (c) Clarification regarding the authority of the Federal Government To appoint counsel to noncitizens in immigration proceedings (1) In general Section 292 of the Immigration and Nationality Act ( 8 U.S.C. 1362 ) is amended to read as follows: 292. Right to counsel (a) In general In any removal proceeding and in any appeal proceeding before the Attorney General from any such removal proceeding, the subject of the proceeding shall have the privilege of being represented by such counsel as may be authorized to practice in such proceeding as he or she may choose. This subsection shall not apply to screening proceedings described in section 235(b)(1)(A). (b) Access to counsel for unaccompanied children (1) In general In any removal proceeding and in any appeal proceeding before the Attorney General from any such removal proceeding, an unaccompanied child shall be represented by counsel appointed or provided by the Secretary of Health and Human Services, at Government expense, unless the child has obtained at his or her own expense counsel authorized to practice in such proceeding. (2) Timing The Secretary of Health and Human Services shall appoint or provide counsel to an unaccompanied child under paragraph (1)— (A) as expeditiously as possible; and (B) not later than the date on which the child is first scheduled to appear before an immigration judge. (3) Length of representation An unaccompanied child shall be represented by counsel under paragraph (1) at every stage of the proceedings from the unaccompanied child’s initial appearance through the termination of immigration proceedings, and any ancillary matters appropriate to such proceedings even if the child attains 18 years of age or is reunified with a parent or legal guardian while the proceedings are pending. (4) Continuity in representation If counsel retained by an unaccompanied child at his or her own expense ceases representing the child for any reason, the Secretary of Health and Human Services shall ensure continued representation of the child by appointing or providing new counsel as expeditiously as possible. (5) Notice Not later than 72 hours after an unaccompanied child is taken into Federal custody, the child shall be notified that he or she will be provided with legal counsel in accordance with this subsection. (6) Within detention facilities The Secretary of Homeland Security shall ensure that unaccompanied children have access to counsel inside all detention, holding, and border facilities. (c) Pro bono representation (1) In general To the maximum extent practicable, the Secretary of Health and Human Services shall make every effort to use the services of competent counsel who agree to provide representation to such children under subsection (b) without charge. (2) Development of necessary infrastructures and systems Through appropriate nonprofit organizations described in subsection (d), the Secretary of Health and Human Services shall ensure the availability of the necessary mechanisms to identify, recruit, train, and oversee counsel available to provide pro bono legal assistance and representation to unaccompanied children under subsection (b). (d) Contracts; grants (1) In general The Secretary of Health and Human Services may enter into contracts with, or award grants to, nonprofit organizations with relevant expertise in the delivery of immigration-related legal services to children to carry out the responsibilities under this section, including providing legal orientation, screening cases for referral, identifying, recruiting, training, and overseeing pro bono attorneys. (2) Subcontracts and subgrants permitted Nonprofit organizations may enter into subcontracts with, or award grants to, other nonprofit organizations with relevant expertise in the delivery of immigration-related legal services to children in order to carry out this section. (e) Model guidelines on legal representation of children (1) Development of guidelines The Director of the Office of Refugee Resettlement, in consultation with the Director of the Executive Office for Immigration Review and nonprofit organizations with relevant expertise in providing immigration-related legal services to children, shall develop model guidelines for the legal representation of unaccompanied children in immigration proceedings, which shall be based on— (A) the 2018 report of the American Bar Association entitled Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States ; (B) the American Bar Association Model Rules of Professional Conduct; and (C) any other source the Director of the Office of Refugee Resettlement considers appropriate. (2) Purpose of guidelines The guidelines developed under paragraph (1) shall be designed to help protect each child from any individual suspected of involvement in any criminal, harmful, or exploitative activity associated with the smuggling or trafficking of children, while ensuring the fairness of the removal proceeding in which the child is involved. (f) Duties of counsel The duties of counsel appointed or provided under this section shall include— (1) representing the unaccompanied alien child concerned— (A) in all proceedings and matters relating to the immigration status of the child and; (B) with respect to any other action involving the Department of Homeland Security; (2) appearing in person for each of the child's— (A) individual merits hearings and master calendar hearings before the Executive Office for Immigration Review; and (B) interviews involving the Department of Homeland Security; (3) owing the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due to an adult client; (4) advocating for the child’s legal interests, as directed by the child’s express wishes; (5) in the case of a child who does not express the objectives of representation, or is found incompetent, referring the child for the appointment of an independent child advocate, as described in section 235(c)(6) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ( 8 U.S.C. 1232(c)(6) ); and (6) carrying out other such duties as may be prescribed by the Secretary of Health and Human Services or the Director of the Executive Office for Immigration Review. (g) Savings provision Nothing in this section may be construed to supersede— (1) any duties, responsibilities, disciplinary, or ethical responsibilities an attorney may have to his or her client under State law; (2) the admission requirements under State law; or (3) any other State law pertaining to the admission to the practice of law in a particular jurisdiction. . (2) Rulemaking The Secretary of Health and Human Services shall promulgate regulations to implement section 292 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. 5. Access by counsel to Department of Homeland Security facilities The Secretary of Homeland Security shall provide access to counsel for all noncitizens detained in— (1) a facility under the supervision of U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection; or (2) a private facility that contracts with the Department of Homeland Security to house, detain, or hold noncitizens. 6. Report on access to counsel (a) Report Not later than December 31 of each year, the Secretary of Health and Human Services, 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 the Secretary has provided counsel for unaccompanied children as described in subsection (b) of section 292 of the Immigration and Nationality Act, as amended by section 4(c). (b) Contents Each report submitted under paragraph (a) shall include, for the immediately preceding 1-year period— (1) the number and percentage of unaccompanied children described in subsection (b) of section 292 of the Immigration and Nationality Act, as amended by section 4(c), who were represented by counsel, including information specifying— (A) the stage of the legal process at which representation of each such child commenced; (B) whether each such child was in government custody on the date on which such representation commenced; and (C) the nationality and ages of such children; (2) the number and percentage of children who received Know Your Rights presentations, including the nationality and ages of such children; and (3) a description of the mechanisms used under subsection (b) of section 292 of the Immigration and Nationality Act, as added by section 4(c), for identifying, recruiting, and training pro bono counsel to represent unaccompanied children. 7. 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 unaccompanied children entitled to appointment of counsel If the Secretary of Health and Human Services fails to appoint or provide counsel for an unaccompanied child under section 292(b)— (I) the limitations under this paragraph with respect to the filing of a motion to repopen by such child shall not apply; and (II) the filing of such a motion shall stay the removal of the child. . 8. Authorization of appropriations (a) In general There is authorized to be appropriated to the Office of Refugee Resettlement such sums as may be necessary to carry out this Act. (b) Budgetary effects The budgetary effects of this Act, for the purpose of complying with the Statutory Pay-As-You-Go Act of 2010, shall be determined by reference to the latest statement titled Budgetary Effects of PAYGO Legislation for this Act, submitted for printing in the Congressional Record by the Chairman of the Senate Budget Committee, provided that such statement has been submitted prior to the vote on passage.