I 117th CONGRESS 2d Session H. R. 8638 IN THE HOUSE OF REPRESENTATIVES August 2, 2022 Mr. Cawthorn introduced the following bill; which was referred to the Committee on the Judiciary , and in addition to the Committee on Foreign Affairs , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend the Homeland Security Act of 2002 with respect to the definition of unaccompanied alien child, and for other purposes.

1. Short title This Act may be cited as the Overhaul Resettlement Reasonably Act of 2022 or the ORR Act of 2022 . 2. Apprehension and detention of certain aliens Section 236 of the Immigration and Nationality Act ( 8 U.S.C. 1266 ) is amended— (1) by striking Attorney General each place it appears and inserting Secretary of Homeland Security ; (2) by striking Attorney General’s each place it appears and inserting Secretary of Homeland Security’s ; (3) by striking the Service each place it appears and inserting the Department of Homeland Security ; (4) in subsection (a)— (A) by striking paragraph (2)(A) and inserting the following new subparagraph: (A) bond of at least $25,000 with security approved by, and containing conditions prescribed by, the Secretary of Homeland Security; or ; and (B) by striking paragraph (3) and inserting the following new paragraph: (3) shall not provide the alien with work authorization (including an employment authorized endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization. ; and (5) by striking subsection (c)(1)(C) and inserting the following new subparagraph: (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or . 3. Children’s affairs (a) Amendment Section 462(g)(2) of the Homeland Security Act of 2002 ( 6 U.S.C. 279(g)(2) ) is amended— (1) in subparagraph (B), by striking ; and and inserting a semicolon; (2) by redesignating subparagraph (C) as subparagraph (D); and (3) by inserting after subparagraph (B) the following new subparagraphs: (C) has been affirmatively certified by the Secretary of Homeland Security to have no affiliation to a transnational criminal organization or international gang; and (D) does not have a parent or legal guardian in the United States or such parent or legal guardian is in the United States but is unable to demonstrate fitness to provide care and physical custody to the child. . (b) Effective date The amendments made by this Act shall take effect on the date that is 120 days after the date of the enactment of this Act. (c) Audit of individual receiving certain services (1) In general Not later than 120 days after the date of the enactment of this Act, the Attorney General shall conduct an audit on aliens receiving services from the Office of Refugee Resettlement to ensure they have no affiliation with a transnational criminal organization and that each unaccompanied alien child receiving services from the Office of Refugee Resettlement is under the age of 18 years old. (2) Result If an unaccompanied alien child is found to have an affiliation with a transnational criminal organization pursuant to an audit conducted under paragraph (1), such unaccompanied alien child shall be placed in removal proceedings under section 240 of the Immigration and Nationality Act ( 8 U.S.C. 1229a ). 4. Mandatory detention of suspected terrorists and members of other criminal organizations (a) Amendment Section 236A of the Immigration and Nationality Act ( 8 U.S.C. 1226A ) is amended— (1) by striking the header and inserting Mandatory detention of suspected terrorists and members of criminal organizations; habeas corpus; judicial review ; (2) by striking Attorney General each place it appears and inserting Secretary of Homeland Security ; (3) in subsection (a)— (A) by striking the header and inserting Detention of terrorist aliens and members of other criminal organizations ; (B) by striking paragraph (2) and inserting the following new paragraph: (2) Release Except as provided in paragraphs (5) and (6), the Secretary of Homeland Security shall maintain custody of such an alien until the alien is removed from the United States. Except as provided in paragraph (6), such custody shall be maintained irrespective of any relief from removal for which the alien may be eligible, or any relief from removal granted the alien, until the Secretary of Homeland Security determines that the alien is no longer an alien who may be certified under paragraph (3). ; (C) by striking paragraph (5) and inserting the following new paragraph: (5) Commencement of proceedings The Secretary of Homeland Security shall place an alien detained under paragraph (1) in removal proceedings, or shall charge the alien with a criminal offense, not later than 30 days after the commencement of such detention. If the requirement of the preceding sentence is not satisfied, the Secretary of Homeland Security shall release the alien. ; and (D) by striking paragraph (6) and inserting the following new paragraph: (6) Limitation on indefinite detention An alien detained solely under paragraph (1) who has not been removed under section 1231(a)(1)(A) of this title, and whose removal is unlikely in the reasonably foreseeable future for reasons other than the alien’s home country’s refusal to issue appropriate travel documents for the alien or otherwise accept return of the alien, may be detained for additional periods of up to two years. ; and (4) in subsection (b)(2)(A)— (A) in clause (ii), by striking the semicolon and inserting ; or ; (B) in clause (iii), by striking ; or and inserting a period; and (C) by striking clause (iv). 5. Enhancing efforts to combat the trafficking of children (a) Amendment Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ( 8 U.S.C. 1232 ) is amended— (1) in subsection (a)— (A) by striking paragraph (1) and inserting the following new paragraph: (1) Policies and procedures In order to enhance the efforts of the United States to prevent trafficking in persons, the Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, and the Secretary of Health and Human Services, shall develop policies and procedures to ensure that unaccompanied alien children in the United States are safely repatriated to their respective countries of nationality or of last habitual residence. ; (B) in paragraph (2)— (i) by striking the header and inserting Rules for return of an unaccompanied alien child to their country of nationality or last habitual residence ; (ii) by striking subparagraph (A) and inserting the following new subparagraph: (A) Determinations Any unaccompanied alien child who is a national or habitual resident of a country shall be treated in accordance with subparagraph (B), if the Secretary of Homeland Security determines, on a case-by-case basis, that— (i) such unaccompanied alien child meets the definition of unaccompanied alien child in section 462(g) of the Homeland Security Act of 2002 ( 6 U.S.C. 279(g) ); (ii) such unaccompanied alien child has not been a victim of a severe form of trafficking in persons, and there is no credible evidence that such unaccompanied alien child is at risk of being trafficked upon return to the child’s country of nationality or of last habitual residence; (iii) such unaccompanied alien child does not have an evidence-based credible or reasonable fear of returning to the child’s country of nationality or of last habitual residence owing to a credible fear of persecution; and (iv) the unaccompanied alien child is able to make an independent decision to withdraw his or her application for admission to the United States. ; (iii) by striking clauses (i) and (ii) of subparagraph (B) and inserting the following new clauses: (i) permit such unaccompanied alien child to withdraw their application for admission pursuant to section 235(a)(4) of the Immigration and Nationality Act ( 8 U.S.C. 1225(a)(4) ); and (ii) return such unaccompanied alien child to his or her country of nationality or country of last habitual residence. ; and (iv) by striking subparagraph (C) and inserting the following new subparagraph: (C) Unaccompanied alien children return agreements with other countries The Secretary of Homeland Security shall negotiate agreements between the United States and other countries with respect to the repatriation of unaccompanied alien children. Such agreements shall be designed to protect unaccompanied alien children from severe forms of trafficking in persons, and shall, at a minimum, provide that— (i) no unaccompanied alien child shall be returned to his or her country of nationality or of last habitual residence unless returned to appropriate employees or officials, including child welfare officials where available, of the accepting country’s government; (ii) no unaccompanied alien child shall be returned to his or her country of nationality or of last habitual residence outside of reasonable business hours; and (iii) border personnel of the countries that are parties to such agreements are trained in the terms of such agreements. ; (C) by striking paragraph (4) and inserting the following new paragraph: (4) Screening (A) In general Not later than 96 hours after the Secretary of Homeland Security determines the age of an apprehended alien who is believed to be described in paragraph (2)(A), but in any event prior to returning such alien to the alien’s country of nationality or of last habitual residence, the alien shall be screened to determine whether the alien meets the criteria listed in paragraph (2)(A). If the alien does not meet such criteria, or if no determination can be made within 96 hours of the Department of Homeland Security’s determination of the age of the apprehended alien, the alien shall immediately be transferred to the Secretary of Health and Human Services and treated in accordance with subsection (b). (B) No preclusion of earlier transfer Nothing in paragraph (A) shall prevent the earlier transfer of an apprehended alien from the Secretary of Homeland Security to the Secretary of Health and Human Services, provided the Secretary of Homeland Security has, based on documentary or forensic information, both determined that the apprehended alien is in fact an unaccompanied alien child as such term is defined in section 462(g) of the Homeland Security Act of 2002 ( 6 U.S.C. 279(g) ), and has certified to the Department of Health and Human Services to that effect. (C) Determination of adult status (i) In general If the Secretary of Homeland Security determines that an apprehended alien who previously self-identified or was identified as a child is determined, based on biographic, biometric, or forensic information, to be an adult, the apprehended alien shall not be transferred to the Secretary of Health and Human Services, and shall remain in the custody of the Department of Homeland Security. (ii) Redetermination Following a determination pursuant to clause (i), if the Secretary of Homeland Security receives an evidence-based credible finding that an alien determined to be a child pursuant to clause (i) has obtained the age of 18 years old, the Secretary shall conduct an additional biometric assessment to determine the age of such alien. If the alien is determined to be an adult, they shall be transferred to the custody of the Department of Homeland Security. ; and (D) by striking paragraph (5) and inserting the following new paragraph: (5) Ensuring the safe repatriation of unaccompanied alien children (A) Repatriation program To protect children from trafficking and exploitation, the Secretary of Homeland Security shall finalize a program not later 60 days after the enactment of the Overhaul Resettlement Reasonably Act of 2022 , in consultation with the Secretary of Health and Human Services and the Secretary of State, to develop and implement best practices to ensure the rapid, safe, and sustainable repatriation of unaccompanied alien children to their respective country of nationality or of last habitual residence, including placement with their respective families, legal guardians, or other sponsoring agencies. (B) Assessment of country conditions To assess the fitness of a country for the purpose of receiving unaccompanied alien children from the United States, the Secretary of Homeland Security shall consider the following factors in the following order of priority: (i) The existence or absence of diplomatic relations between the United States and that country. (ii) The amount of Federal funding the United States provides to that country. (iii) The degree to which that country cooperates with the United States and other countries in bilateral or multilateral national security or law enforcement efforts. (iv) The annual gross domestic product of that country and its global rank by annual gross domestic product. (v) Any materials produced by the United States Government that supply information about the degree of human smuggling and trafficking that occurs in that country. (vi) Any other information that may assist the Secretary of Homeland Security in efforts to repatriate unaccompanied alien children to that country. (C) Report on repatriation of unaccompanied alien children Not later than January 1 of each year, the Secretary of Homeland Security and the Secretary of Health and Human Services, in consultation with the Secretary of State, shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on efforts to improve repatriation programs for unaccompanied alien children, and shall include— (i) the number of unaccompanied alien children ordered removed and the number of such children actually removed from the United States; (ii) a statement of the nationalities, ages, and genders of such children; (iii) a description of the policies and procedures used to effect the removal of such children from the United States and the steps taken to ensure that such children were safely and humanely repatriated to their country of nationality or of last habitual residence, including a description of the repatriation program used pursuant to subparagraph (A); (iv) a description of the type of immigration relief sought and denied to such children; (v) any information gathered in assessments of country and local conditions pursuant to paragraph (2); (vi) the number of aliens who self-identify or are identified as unaccompanied alien children but are ultimately determined to be adults by the Department of Homeland Security; and (vii) statistical information and other data on unaccompanied alien children as provided for in section 462 of the Homeland Security Act of 2002 ( 6 U.S.C. 279 ). (D) Placement in removal proceedings Any unaccompanied alien child sought to be removed by the Department of Homeland Security, except for an unaccompanied alien child subject to exceptions under subsection (a)(2), shall be— (i) placed in removal proceedings under section 240 of the Immigration and Nationality Act ( 8 U.S.C. 1229a ); (ii) eligible for relief under section 240B of such Act ( 8 U.S.C. 1229c ) at no cost to the child; and (iii) provided access to counsel in accordance with subsection (c)(5). ; (2) by striking subsection (b)(4) and inserting the following paragraphs: (4) Alien age determinations (A) In general The Secretary of Homeland Security, in consultation with the Secretary of Health and Human Services and other appropriate Federal agencies, shall develop procedures and provide resources that facilitate the prompt determination of the age of an alien in the custody of the head of each Federal agency. (B) Presumption of adulthood Any procedures developed by the Secretary of Homeland Security in accordance with paragraph (A) shall permit a presumption by all Federal agencies that an alien is an adult until such time as either a biographic, biometric, or forensic determination can reasonably determine that an alien is a child. (C) Biometric and forensic tools authorized The Department of Homeland Security is authorized to use all available biometric and forensic tools as part of the procedures to be developed by the Secretary of Homeland Security in accordance with paragraph (A). (5) Mandatory Department of Justice referral and response In the event an alien who initially self-identifies or is identified as a child is subsequently determined, based on biographic, biometric, or forensic information, to be an adult, the Secretary of Homeland Security shall within 10 business days of determination of the alien’s age, send a formal referral for criminal investigation of the alien to the Attorney General in order to determine if the alien violated any provision of title 18, United States Code, or any Federal regulation, and the Attorney General shall, within 10 business days of the receipt of that referral, provide formal written notification to the Secretary of Homeland Security as to whether the Attorney General intends to take any further investigative or prosecutorial action, as well as the basis for the Attorney General’s decision. (6) Notification For the purposes of the Secretary of Homeland Security making an age determination and certification on the age of an alien in accordance with subsection (b)(4), each head of each Federal department or agency shall notify the Secretary of Homeland Security within 48 hours upon— (A) the apprehension or discovery of an unaccompanied alien child; or (B) any claim or suspicion that an alien in the custody of such department or agency is under 18 years of age. (7) Transfer of unaccompanied alien child Except in the case of an exceptional circumstance, a Federal department or agency that has in custody an unaccompanied alien child shall transfer custody of such child to the Secretary of Homeland Security not later than 96 hours after determining that such child is an unaccompanied alien child, so that the Department of Homeland Security can make an age determination and certification of the age of the alien in accordance with subsection (a)(4). ; (3) in subsection (c)— (A) by striking paragraph (1) and inserting the following paragraph: (1) Policies and programs The Secretary of Health and Human Services and the Secretary of Homeland Security, in consultation with the Attorney General and Secretary of State, shall establish policies and programs to ensure that unaccompanied alien children in the United States are protected from traffickers and other persons seeking to victimize, profit from, or otherwise engage such children in criminal, harmful, or exploitative activity, including policies and programs reflecting best practices in witness security programs. ; (B) by striking paragraphs (2) and (3) and inserting the following new paragraphs: (2) Safe and secure placements (A) Minors in Department of Health and Human Services custody (i) In general Subject to section 462(b)(2) of the Homeland Security Act o 20092 ( 6 U.S.C. 279(b)(2) ), an unaccompanied alien child who is placed in the custody of the Secretary of Health and Human Services subsequent to the Secretary of Homeland Security’s age determination and certification efforts required by paragraph (4) of subsection (b) of this section shall be promptly placed in the setting that is deemed to be in the best interest of both the child and the general public as assessed by the Secretary of Health and Human Services. (ii) Criteria for placement In making such placement, the Secretary of Health and Human Services shall consider age, actual or possible gang or criminal organization affiliation or membership, danger to self, danger to the community, and risk of flight. (iii) Period placement review The placement of a child in a secure facility shall be reviewed, at a minimum, once every six months, in accordance with procedures prescribed by the Secretary of Health and Human Services, to determine if such placement remains in the interest of national security or public safety. (B) Transfer of aliens from Department of Health and Human Services to Department of Homeland Security (i) In general Not later than six months prior to an unaccompanied alien child’s determined age of 18, the Secretary of Health and Human Services shall transfer such alien to the Department of Homeland Security for placement in removal proceedings. (ii) Exception for sponsor placement consideration In a situation where an unaccompanied alien child is actively being considered for placement with a sponsor six months prior to the alien child’s determined eighteenth birthday, the alien child may remain in the Department of Health and Human Services’ custody up until his or her eighteenth birthday during such sponsor placement consideration, but shall be immediately transferred to the Department of Homeland Security’s custody upon the denial of a sponsor’s application or the alien child’s eighteenth birthday, whichever comes first. (3) Safety and suitability assessments (A) In general Subject to the requirements of subparagraph (B), an unaccompanied alien child may not be placed with an individual or organizational sponsor unless the Secretary of Health and Human Services makes a formal determination that the proposed sponsor is capable of providing for the child’s physical and mental well-being. (B) Criteria for evaluation of potential individual sponsor The formal determination required under subparagraph (A) for a potential individual sponsor shall, at a minimum, be based on an evaluation of the following criteria: (i) The immigration status of both the potential individual sponsor and any other individual in the potential individual sponsor’s household or residence. (ii) The submission of biographic or biometric information, including fingerprints, DNA, or legal documentation demonstrating a familial relationship, both for the purposes of determining the potential individual sponsor’s identity and ensuring a familial relationship in the case that a familial relationship is asserted. (iii) A background and fitness check on the potential individual sponsor that uses Department of Homeland Security, Department of Justice, Department of the Treasury, and other Federal databases, including any database containing criminal records. (iv) Proof of the potential individual sponsor’s ability to work, current employment or existing income, property, assets, and debts in order to ensure appropriate financial resources for care of the unaccompanied alien child. (v) Proof of potential individual sponsor’s health insurance in order to ensure appropriate medical care of the unaccompanied alien child. (vi) Any past or present medical, including psychiatric, condition of the potential individual sponsor or other individual in the potential individual sponsor’s household or residence that could pose a health or safety risk for the unaccompanied alien child. (vii) Any other information deemed appropriate by the Secretary of Health and Human Services for the purposes of making a formal determination of fitness of a potential sponsor. (C) Criteria for evaluation of potential organizational sponsors The formal determination required under paragraph (A) for potential organizational sponsors shall be, at a minimum, based on an evaluation of the following criteria: (i) Appropriate licensing and other proof of fitness to care for an unaccompanied alien child. (ii) Proof that all of the organization’s employees are authorized to work in the United States. (iii) Any other information deemed appropriate by the Secretary of Health and Human Services for the purposes of making a formal determination of fitness of a potential organizational sponsor. (D) Unaccompanied alien child placement audits (i) In general The Secretary of Homeland Security and the Secretary of Health and Human Services shall conduct both pre-placement audits and post-placement audits of the residences and facilities of individual and organizational sponsors to ensure initial and continuous suitability of sponsors, locations of the residences and facilities, and other conditions for alien child placement. (ii) Joint agency responsibility Not later than 60 days after the date of the enactment of Overhaul Resettlement Reasonably Act of 2022 , the Secretary of Homeland Security, in consultation with the Secretary of Health and Human Services shall develop and implement a joint plan of action ensuring suitability of placement of unaccompanied alien children in accordance with clause (i). The Secretary of Homeland Security shall be responsible for inspecting residence and facility inspections and any law enforcement investigations as a result of such inspection. (iii) Placement restrictions The Secretary of Health and Human Services shall not place any unaccompanied alien child with any individual or organizational sponsor until such time as the Secretary of Homeland Security has conducted a pre-placement audit and provided written notice of fitness of such sponsor based on that pre-placement audit to the Secretary of Health and Human Services. (iv) Randomized post-placement audits Subsequent to a placement of an unaccompanied alien child with an individual or organizational sponsor by the Secretary of Health and Human Services, the Secretary of Homeland Security shall conduct random post-placement audits of such sponsor, without providing advance notice of the audit to the sponsor. (v) Placement revocations If, upon a post-placement audit of an unaccompanied alien child’s individual or organizational sponsor in accordance with clause (iv), the Secretary of Homeland Security determines that such sponsor is no longer suitable for that unaccompanied alien child, the Secretary of Homeland Security shall remove the unaccompanied alien child from the sponsor’s possession, return the unaccompanied alien child to the Secretary of Health and Human Services, and, within 5 business days, provide written notice to the Secretary of Health and Human Services about the conditions and circumstances justifying the removal of the unaccompanied alien child from the sponsor’s possession. (vi) Mandatory Department of Justice referral and response In the event of any removal of an unaccompanied alien child from the possession of any individual or organizational sponsor in accordance with clause (v), the Secretary of Homeland Security shall, within 10 business days of returning the unaccompanied alien child to the Secretary of Health and Human Services, send a formal referral for criminal investigation of the sponsor to the Attorney General if the Secretary of Homeland Security’s basis for removing the unaccompanied alien child from the sponsor’s possession was any form of criminal conduct prohibited by title 18, United States Code, or any Federal regulation, and the Attorney General shall, within 10 business days of the receipt of that referral, provide formal written notification to the Secretary of Homeland Security and the Secretary of Health and Human Services as to whether the Attorney General intends to take any further investigative or prosecutorial action, as well as the basis for the Attorney General’s decision. (vii) Mandatory removal of an alien deemed to be unlawfully present In the event of any removal of an unaccompanied alien child from the possession of any individual or organizational sponsor in accordance with clause (v), the Secretary of Homeland Security shall immediately detain and initiate removal proceedings against an alien deemed to be unlawfully present encountered in the course of that post-placement audit. (viii) Mandatory bar of problematic sponsors In the event of a removal of an unaccompanied alien child from the possession of any individual or organizational sponsor and receipt of written notification from the Secretary of Homeland Security about the conditions and circumstances justifying the removal of the unaccompanied alien child from the sponsor’s possession in accordance with clause (v), the Secretary of Health and Human Services shall remove that sponsor from eligibility to serve as a sponsor for any future unaccompanied alien children. (ix) Limits on regulatory implementation The Secretary of Homeland Security and the Secretary of Health and Human Services may, through regulation, improve or expand the scope or processes for auditing potential and actual placement of an unaccompanied alien child, but shall not limit or waive any requirements established in this subparagraph. ; (4) by striking paragraph (6)(E) and inserting the following new subparagraph: (E) Assessment of child advocate program (i) In general Not later than March 30 of each year, the Comptroller General of the United States shall provide an annual update regarding the effectiveness of, and any recommendations for improving, the Child Advocate Program operated by the Secretary of Health and Human Services. (ii) Matters to be studied In the annual updates required under clause (i), the Comptroller General shall— (I) analyze the effectiveness of existing child advocate programs in improving outcomes for unaccompanied alien children; (II) evaluate the implementation of child advocate programs in new sites pursuant to subparagraph (B); (III) evaluate the extent to which unaccompanied alien children are receiving child advocate services and assess the possible budgetary implications of increased participation in the program; (IV) evaluate the barriers to improving outcomes for unaccompanied alien children; (V) evaluate and identify the international and domestic individuals and organizations that are responsible for the smuggling or trafficking of unaccompanied alien children; and (VI) make recommendations on statutory, regulatory, and internal agency guidance changes to improve the Child Advocate Program in relation to the matters analyzed under subclauses (I) through (V). (iii) GAO report Not later than March 30 of each year, the Comptroller General of the United States shall submit the results of the study required under this subparagraph to— (I) the Committee on the Judiciary of the Senate and House of Representatives; (II) the Committee on Homeland Security and Government Affairs of the Senate; (III) the Committee on Health, Education, Labor, and Pensions of the Senate; (IV) the Committee on Homeland Security of the House of Representatives; and (V) the Committee on Education and Labor of the House of Representatives. (iv) Authorization of appropriations There is authorized to be appropriated $3,000,000 for each of the fiscal years to be supplied to to be supplied . ; and (5) by striking subsection (e) and inserting the following new subsection: (e) Training The Secretary of State, the Secretary of Homeland Security, the Secretary of Health and Human Services, and the Attorney General shall provide specialized training to all Federal personnel, and upon request, State and local personnel, who have substantive contact with unaccompanied alien children. Such personnel shall be trained to work with unaccompanied alien children, including identifying children who are victims of severe forms of trafficking in persons, and children for whom asylum or special immigrant relief may be appropriate, including children described in subsection (a)(2). .