II 118th CONGRESS 1st Session S. 3178 IN THE SENATE OF THE UNITED STATES November 1, 2023 Mr. Bennet (for himself and Ms. Murkowski ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To establish the Children's Court to improve the adjudication of immigration cases involving unaccompanied alien children.

1. Short title This Act may be cited as the Immigration Court Efficiency and Children's Court Act of 2023 . 2. Establishment and structure of the Children’s Court (a) Establishment of the Children’s Court Chapter 4 of title II of the Immigration and Nationality Act ( 8 U.S.C. 1221 et seq. ) is amended by inserting after section 240C ( 8 U.S.C. 1230 ) the following: 240D. Children’s Court (a) Definitions In this section: (1) Children's court The term Children's Court means all of the specialized children's dockets described in this section. (2) Director The term Director means the Director of the Executive Office for Immigration Review. (3) Docket The term docket means a grouping of removal proceedings that are held during a dedicated time on a court’s calendar and adjudicated separately from other immigration cases. (b) Establishment The Attorney General shall establish and maintain, within the Executive Office for Immigration Review, specialized children’s dockets for the adjudication of removal proceedings for any individual who— (1) was younger than 18 years of age on the date on which such proceedings were initiated; and (2) (A) was previously determined by the Department of Homeland Security or the Department of Health and Human Services to be 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) )); or (B) is the principal respondent in a proceeding if such individual was referred to the children's docket by an immigration judge, unless such child requests to remain on the court's general docket. (c) Judges (1) Geographic areas The Director shall divide all of the immigration courts into geographical areas with not more than 5 immigration courts in each such area. (2) Designations The Director, in consultation with the Chief Immigration Judge, shall designate— (A) an immigration judge to serve as Chief Children’s Judge for the Children's Court; and (B) 1 immigration judge in each geographical area referred to in to paragraph (1) to serve as the Assistant Chief Children’s Judge for such area. (3) Qualifications The Attorney General shall establish, by regulation, qualifications for Children’s Court judges that ensure, among any other requirements, that the Chief Children’s Judge, each Assistant Chief Children’s Judge, and each immigration judge assigned to the Children’s Court— (A) has substantial experience working with children in judicial or other settings; (B) possess and have demonstrated a commitment to ensuring the fair administration of justice through child-appropriate court procedures; and (C) apply for appointment to the Children’s Court. (4) Duties (A) Chief children's judge The Chief Children’s Judge shall— (i) establish operating policies and procedures for carrying out adjudications in the Children's Court in a manner that advances due process and fairness; and (ii) oversee the implementation of such policies and procedures. (B) Assistant chief children's judges In addition to his or her duties as an immigration judge, each Assistant Chief Children’s Judge shall— (i) promote fair and just processes for carrying out adjudications in the specialized children's dockets in the immigration courts in his or her assigned geographical area; and (ii) ensure that all of the immigration judges assigned to a specialized children's docket in the immigration courts in such area complete the training described in paragraph (5). (5) Training (A) In general Immigration judges assigned to the Children’s Court shall complete— (i) initial training upon assignment; and (ii) annual supplementary training. (B) Topics Training required under this paragraph shall encompass the following topics: (i) Children’s claims for immigration relief. (ii) Appropriate use of docket management tools to facilitate children’s pursuit of relief through an application or petition to U.S. Citizenship and Immigration Services. (iii) Child-sensitive questioning techniques. (iv) Developmental- and trauma-informed practice that accounts for children’s developmental stage, trauma history, and other factors impacting a child’s capacity when determining appropriate courtroom procedures, evaluating credibility, and considering testimony and other evidence adduced by a child, among other actions. (v) Methods for explaining the purpose and nature of court proceedings and procedures to children, including developmentally appropriate communication. (vi) The concept of the best interests of the child. (vii) Human trafficking of children. (C) Legal representation Training required under this paragraph shall include instruction from governmental and nongovernmental experts in the legal representation of unaccompanied children, child development, child welfare, and child psychology. Assistant Chief Children’s Judges shall consult with such experts to design training plans. (6) Performance metrics The Executive Office for Immigration Review may not implement minimal numeric case load or case completion requirements, judicial performance standards, or other standards for immigration judges assigned to the Children’s Court that could negatively impact the fair administration of justice or promotion of the best interests of the child by the Children’s Court. (7) Assignment of other cases Immigration judges assigned to the Children’s Court may also be assigned cases that are not on a specialized children's docket if the total caseload of such judges does not exceed 75 percent of the average caseload of immigration judges who are not assigned to the Children’s Court. (d) Procedural protections Proceedings in the Children’s Court shall utilize child-appropriate procedures that allow for maximum participation of child respondents and promote due process, including— (1) continuances that are sufficient for a child to obtain counsel; (2) conferring among the parties to the maximum extent practicable to narrow the legal issues in advance of an adjudication on the merits; (3) a rebuttable presumption in favor of granting a child’s request to dismiss or administratively close proceedings when an application for relief is pending before or approved by U.S. Citizenship and Immigration Services; (4) explanations of court proceedings and advisals by immigration judges regarding legal rights and responsibilities that accommodate a child’s developmental level and capacity; (5) appropriate accommodations, including breaks during oral testimony by a child; (6) language screening protocols to ensure that interpretation is provided in the child’s preferred language; and (7) the use of virtual hearings only— (A) at the request of the child or the child's counsel; or (B) if the immigration judge determines that virtual hearings would be in the child’s legal interests. (e) Best interests of the child (1) In general The best interests of the child may be considered in adjudicating motions, forms of relief, or any other judicial decision requiring a discretionary analysis. (2) Considerations A best interests of the child determination shall be made by a child advocate or other entity or professional with comparable expertise in such determinations, after taking into account— (A) the safety and well-being of the child; (B) the expressed interests of the child, taking into account the child’s age and stage of development; (C) the physical and mental health of the child; (D) the right of the child to family integrity, liberty, and development; and (E) the identity of the child, including religious, ethnic, linguistic, gender, sexual orientation, and cultural identity. (3) Appointment of independent child advocates Immigration judges assigned to the Children's Court, on their own initiative or at the request of a child's counsel in an immigration proceeding, shall consider the referral of a child for appointment of an independent child advocate in accordance with section 235(c)(6). (f) Legal assistance for unaccompanied children Each Assistant Chief Children’s Judge shall— (1) coordinate with qualified local providers of legal services for children in the geographic area for purposes of maximizing providers’ capacity to provide legal assistance; (2) on each day when any unrepresented child is on the Children’s Court docket, make sufficient appropriate space available in the court building to afford such child the opportunity to meet confidentially with qualified providers of legal services at no cost to the child; and (3) coordinate with the Secretary of Health and Human Services for purposes of ensuring access to legal information and representation for unaccompanied children to the greatest extent practicable, in accordance with section 235(c)(5). (g) Establishment of Department of Homeland Security Children’s Cohort (1) In general There is established, within the Office of the Principal Legal Advisor, a Children’s Cohort to represent U.S. Immigration and Customs Enforcement in the Children’s Court. (2) Training Attorneys assigned to the Children’s Cohort shall receive, from governmental and nongovernmental experts in child development, child psychology, and children’s immigration law, initial training upon appointment and annual supplementary training regarding— (A) unaccompanied children’s claims for immigration relief; (B) child-sensitive questioning techniques; and (C) trauma-informed interviewing and adjudication methods. (3) Performance metrics Attorneys assigned to the Children’s Cohort may not be subjected to performance standards or agency strategic measures that are based on case outcomes or other standards that could negatively impact the fair administration of justice. (4) Prosecutorial discretion Attorneys assigned to the Children’s Cohort, consistent with their existing authority to exercise prosecutorial discretion, may seek resolution of cases in a manner that promotes the fair administration of justice, including by— (A) moving to dismiss or administratively close removal proceedings when an application for relief is pending before or approved by U.S. Citizenship and Immigration Services; (B) agreeing to join motions for dismissal, administrative closure, or continuances; (C) stipulating to facts or conclusions of law; (D) joining motions to grant relief; and (E) not pursuing appeals. (5) Right to review certain documents Not later than 7 days after providing a notice to appear to an unaccompanied child or to such child's legal counsel pursuant to section 239(a), the Director of U.S. Immigration and Customs Enforcement shall provide to such child or such legal counsel, as appropriate, a complete copy of the child’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). . (b) Rulemaking The Attorney General shall promulgate regulations to implement the amendment made by subsection (a). (c) Clerical amendment The table of contents of the Immigration and Nationality Act ( 8 U.S.C. 1101 note) is amended by inserting after the item relating to section 240C the following: Sec. 240D. Children’s Court. . 3. Prohibition on information sharing (a) Child in custody and prospective sponsors The Director of the Office of Refugee Resettlement may not provide any information about an unaccompanied alien child in the custody of the Secretary of Health and Human Services, or prospective sponsors, to the Attorney General or the Secretary of Homeland Security without the consent of— (1) such child or the child's prospective sponsor, as applicable; and (2) the legal counsel of such child or sponsor, respectively. (b) Immigration enforcement (1) In general No information about an unaccompanied alien child may be shared between the Office of Refugee Resettlement and the Department of Homeland Security for purposes of immigration enforcement. (2) Explanation for prospective sponsors The Director of the Office of Refugee Resettlement shall ensure that communications by the Office of Refugee Resettlement with sponsors and prospective sponsors, including the family reunification application packet, include an explanation that information about a child, sponsor, or prospective sponsor provided to the Office of Refugee Resettlement may only be shared with the Department of Homeland Security if such child and such child's sponsor or prospective sponsor have provided informed consent. (c) Relief from removal No information about an unaccompanied alien child may be shared between the Office of Refugee Resettlement and the Department of Homeland Security or the Department of Justice for purposes of relief from removal. (d) Exceptions (1) In general The Secretary of Health and Human Services may provide for the disclosure of information about an unaccompanied alien child in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under section 8 of title 13, United States Code. (2) National security purposes The Secretary of Health and Human Services may provide for the disclosure of information about an unaccompanied alien child to national security officials to be used solely for a national security purpose in a manner that protects the confidentiality of such information. (3) Law enforcement purposes The Secretary of Health and Human Services may provide for the disclosure of information about an unaccompanied alien child to law enforcement officials to be used solely for a legitimate law enforcement purpose in a manner that protects the confidentiality of such information. (4) Eligibility for benefits The Secretary of Health and Human Services may disclose information about an unaccompanied alien child to Federal, State, and local public and private agencies providing benefits, to be used solely in making determinations of eligibility for benefits pursuant to section 431 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ( 8 U.S.C. 1641 ). (5) Adjudication of applications for relief (A) In general Government entities adjudicating applications for relief under the immigration laws and government personnel carrying duties required under section 101(i)(1) of the Immigration and Nationality Act ( 8 U.S.C. 1101(i)(1) ) may, with the prior written consent of the noncitizen involved, communicate with nonprofit, nongovernmental victims’ service providers for the sole purpose of assisting victims in obtaining victim services from programs with expertise in working with immigrant victims. Agencies receiving referrals under this subparagraph are bound by the restrictions under this section. (B) Rule of construction Nothing in this paragraph may be construed as affecting the ability of an applicant to designate a safe organization through which governmental agencies may communicate with the applicant. (e) Rule of construction Subsections (a), (b), and (c) shall not be construed as preventing— (1) disclosure of information in connection with judicial review of a determination in a manner that protects the confidentiality of such information; or (2) the Secretary of Health and Human Services from disclosing to the chair and ranking member of the Committee on the Judiciary of the Senate or to the chair and ranking member of the Committee on the Judiciary of the House of Representatives , for the exercise of congressional oversight authority, information on closed cases described in this section in a manner that— (A) protects the confidentiality of such information; and (B) omits personally identifying information (including locational information about individuals). 4. Reporting and evaluation (a) Defined term In this section, the term appropriate congressional committees means— (1) the Committee on the Judiciary of the Senate ; (2) the Committee on Appropriations of the Senate ; (3) the Committee on the Judiciary of the House of Representatives ; and (4) the Committee on Appropriations of the House of Representatives . (b) Annual reports Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Attorney General shall submit to the appropriate congressional committees and publish on a publicly accessible website a report describing— (1) the level of compliance of each relevant immigration court with the requirements described in section 240D of the Immigration and Nationality Act, as added by section 2(a); (2) corrective actions the Attorney General is taking or plans to take to ensure that any relevant immigration court that is not in compliance with the requirements referred to in paragraph (1) expeditiously achieves such compliance; (3) training that has been provided to judges assigned to the Children’s Court (as defined in such section 240D); (4) the number of unaccompanied alien children’s cases pending before the Children’s Court; (5) the number of unaccompanied alien children’s cases receiving final decisions in the Children’s Court during the reporting period, disaggregated by— (A) decision type, including orders of removal, grants of relief, dismissals, and terminations; and (B) whether the children were represented by an attorney at the time they received the final decisions; (6) unaccompanied alien children’s appearance rates at hearings before the Children’s Court, disaggregated by whether the children were represented by an attorney at the time of such hearings; and (7) any immigration court resources conserved by the establishment and administration of specialized children’s dockets. (c) Biennial evaluations Not later than 2 years after the date of the enactment of this Act, and biennially thereafter, the Comptroller General of the United States shall submit to the appropriate congressional committees and publish on a public website a report evaluating— (1) the Attorney General’s compliance with the requirements described in section 240D of the Immigration and Nationality Act, as added by section 2(a) across the Children’s Court as a whole and disaggregated by relevant immigration courts; and (2) the effectiveness of the Children’s Court in— (A) upholding fairness and due process in unaccompanied alien children’s proceedings; and (B) limiting adjudication redundancy between the Executive Office for Immigration Review and U.S. Citizenship and Immigration Services. 5. Authorization of appropriations There is authorized to be appropriated to the Department of Justice, the Department of Homeland Security, and the Department of Health and Human Services such sums as may be necessary to carry out this Act and the amendment made by this Act.