II 118th CONGRESS 1st Session S. 3323 IN THE SENATE OF THE UNITED STATES November 15, 2023 Mrs. Gillibrand (for herself, Mr. Merkley , Ms. Warren , Mr. Blumenthal , Ms. Cortez Masto , Mr. Durbin , and Mr. Booker ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To establish the Office of the Ombudsperson for Immigrant Children in Immigration Custody, and for other purposes.

1. Short title This Act may be cited as the Protection of Kids in Immigrant Detention Act or the PROKID Act . 2. Definitions In this Act: (1) Committee The term Committee means the expert advisory committee established under section 5(a). (2) Director The term Director means the Director of the Office of Refugee Resettlement. (3) Facility The term facility — (A) means a location at which 1 or more immigrant children are detained by the Government or held in immigration custody; and (B) includes— (i) an Office of Refugee Resettlement facility; and (ii) a Department of Homeland Security facility, including— (I) a U.S. Customs and Border Protection temporary holding facility and transportation contractor; (II) a U.S. Immigration and Customs Enforcement family detention facility; (III) a U.S. Immigration and Customs Enforcement juvenile facility; (IV) a location operated by a private entity, including a hotel room; and (V) any other location at which the Department of Homeland Security or the Department of Health and Human Services detains or holds in custody an immigrant child. (4) Immigration custody The term immigration custody means the physical custody of the Secretary of Health and Human Services or the Secretary of Homeland Security (or the head of any successor agency of the Department of Health and Human Services or the Department of Homeland Security). (5) Influx facility The term influx facility means any facility established to provide temporary emergency shelter and services for unaccompanied immigrant children during an influx or emergency. (6) Flores settlement agreement The term Flores settlement agreement means the stipulated settlement agreement filed in the United States District Court for the Central District of California on January 17, 1997 (CV 85–4544–RJK). (7) Immigrant child The term immigrant child means an alien (as defined in section 101(a) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a) )) under the age of 18 years. (8) In-network facility The term in-network facility means a facility operated by an Office of Refugee Resettlement grantee, subgrantee, contractor, or subcontractor. (9) Office of refugee resettlement facility The term Office of Refugee Resettlement facility — (A) means— (i) a shelter operated by an Office of Refugee Resettlement grantee, subgrantee, contractor, or subcontractor to hold immigrant children; (ii) staff secure, secure care, or transitional foster care housing or long term foster care so operated; or (iii) any other location operated by the Office of Refugee Resettlement to hold immigrant children; and (B) includes an in-network facility and an out-of-network facility. (10) Office of the Ombudsperson The term Office of the Ombudsperson means the Office of the Ombudsperson for Immigrant Children in Government Custody established by section 3(a). (11) Ombudsperson The term Ombudsperson means the ombudsperson appointed under section 3(c). (12) Out-of-network facility The term out-of-network facility means a facility at which an immigrant child is placed as a result of an Office of Refugee Resettlement determination that there is no care provider available among in-network facilities to provide specialized services required by the immigrant child, such as medical or mental health support. (13) Unobstructed access The term unobstructed access means— (A) with respect to a facility, the ability to enter the facility, including unannounced, to tour and physically visit all areas of the facility; and (B) with respect to information, the ability to obtain requested information in a timely manner with the full cooperation of the Director, the Secretary of Homeland Security, or the Secretary of Health and Human Services, as applicable. (14) Working group The term Working Group means the interagency working group established under section 6(b). 3. Office of the Ombudsperson for Immigrant children in Immigration Custody (a) Establishment There is established, within the Department of Health and Human Services, an Office of the Ombudsperson for Immigrant Children in Immigration Custody— (1) to endorse and support the principle that family separation and detention are generally not in a child’s best interest; and (2) in cases in which detention or immigration custody is required— (A) to ensure that immigrant children are only detained or held in immigration custody in the least restrictive setting; (B) to advocate for the quick, safe, and efficient release of immigrant children from detention or immigration custody whenever possible; and (C) in any case in which an immigrant child is held in Department of Homeland Security custody together with his or her family unit, to advocate for the release of the child and concurrent release of the parent or legal guardian of the child not later than 72 hours after the time at which such child and parent or legal guardian were apprehended. (b) Independence The Office of the Ombudsperson shall be an impartial, confidential resource fully independent of— (1) the Office of Refugee Resettlement of the Department of Health and Human Services; and (2) the Department of Homeland Security. (c) Ombudsperson (1) In general The Office of the Ombudsperson shall be headed by an Ombudsperson, who shall be appointed by, and report directly to, the Secretary of Health and Human Services. (2) Qualifications The individual appointed as Ombudsperson shall have demonstrated experience in— (A) immigration law; and (B) child advocacy or child welfare. (3) Duties and authorities (A) Monitoring (i) In general The Ombudsperson shall monitor, including by making frequent site visits, for compliance with all applicable Federal and State laws, regulations, and standards relating to immigrant children in immigration custody. (ii) Inclusions The laws, regulations, and standards referred to in clause (i) include— (I) the Flores settlement agreement; (II) section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ( 8 U.S.C. 1232 ); (III) the applicable provisions of the Prison Rape Elimination Act of 2003 ( 34 U.S.C. 30301 et seq. ); (IV) the standards of U.S. Customs and Border Protection entitled National Standards on Transport, Escort, Detention, and Search issued in October 2015; and (V) internal Office of Refugee Resettlement policy guidance, including the guidance entitled ORR Policy Guide: Children Entering the United States Unaccompanied issued on January 30, 2015. (iii) Onsite visits for influx facilities and unlicensed facilities (I) In general Not less frequently than monthly during the period in which an influx facility or an unlicensed facility is in operation, the Ombudsperson shall conduct a comprehensive onsite visit at such facility to monitor for compliance with applicable Federal and State law (including regulations), including— (aa) the Flores settlement agreement; and (bb) section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ( 8 U.S.C. 1232 ). (II) Certain unlicensed facilities The onsite visits required by subclause (I) shall include visits to any unlicensed facility. (B) Investigations (i) In general The Ombudsperson shall investigate issues including— (I) claims or reports of abuse, neglect, or mistreatment of immigrant children, by the Government or any other entity, while in immigration custody; (II) complaints against foster care providers, including foster care providers under State oversight; (III) a lack of timely, confidential access to professionals such as legal counsel, legal services providers, child advocates, and medical professionals; and (IV) complaints with respect to— (aa) the conditions of custody or length of time in custody in any facility; and (bb) sexual abuse or sexual harassment, including potential violations of part 411 of title 45, Code of Federal Regulations (relating to standards to prevent, detect, and respond to sexual abuse and sexual harassment involving unaccompanied children). (ii) State licensing violations If in the course of an investigation under clause (i) the Ombudsperson discovers a State licensing violation, the Ombudsperson shall report the violation to the child welfare licensing agency of the applicable State. (iii) Violations in unlicensed facilities (I) In general The Ombudsperson shall investigate any potential violation of law, regulation, or standard in an influx facility or unlicensed facility, including any such facility the license of which has been revoked by a State. (II) Report If in the course of an investigation under subclause (I), the Ombudsperson determines that a violation of law, regulation, or standard has occurred, not later than 30 days after making such determination, the Ombudsperson shall report the violation the Secretary of Health and Human Services for further action. (C) Placement review panels (i) In general The Ombudsperson shall provide oversight of placement review panels (or successor review bodies or processes), convened by the Office of Refugee Resettlement. (ii) Cooperation of Director The Director may— (I) not later than 5 days before a placement review panel (or successor review body or process), is convened by the Office of Refugee Resettlement, provide the Ombudsperson with notice of the convening, including the location of the immigrant child concerned; (II) allow the Ombudsperson to attend the convening of such a panel (or successor review body or process), if the immigrant child concerned or the legal counsel or child advocate of such child requests the presence of the Ombudsperson; and (III) notify the Ombudsperson of the decision of each such panel (or successor review body or process). (iii) Civil action not precluded Any review conducted by the Ombudsperson under this subparagraph of a decision by a placement review panel or equivalent review body shall not preclude an immigrant child, or the legal counsel, child advocate, parent, or prospective sponsor of the immigrant child, from commencing a civil action in any appropriate district court of the United States. (D) Stakeholder meetings Not less frequently than quarterly, the Ombudsperson shall invite community stakeholders, Flores settlement agreement class counsel, and the Flores settlement agreement court-appointed monitor to participate in a meeting— (i) to ensure that the Ombudsperson is aware of stakeholder concerns and priorities; and (ii) to provide feedback on stakeholder requests. (E) Regional offices The Ombudsperson shall establish regional offices of the Office of the Ombudsperson— (i) to ensure the inclusion of pertinent local and regional issues, trends, and challenges for consideration by the Ombudsperson; (ii) to strengthen State oversight; (iii) to coordinate with State licensing entities; and (iv) to identify and address differences among State child protection laws. (F) Individual case assistance (i) In general With respect to an immigration child in immigration custody, after consultation with the child's attorney or legal service provider contracted to provide legal services, the Ombudsperson may offer individual case assistance to the child if the case of the immigrant child is long-pending or otherwise requires expedited processing or elevated attention, as determined by the Ombudsperson. (ii) Communication (I) In general To ensure a complete understanding of the status of a case described in clause (i), the Ombudsperson may communicate with— (aa) the immigrant child concerned; (bb) the family members and potential sponsor of such child; and (cc) the child advocate, legal counsel, Office of Refugee Resettlement case manager and Federal field specialist, the General Dynamics Information Technology case coordinator, and any other relevant individual charged with case management of such child. (II) Notification In any communication with an individual described in items (aa) through (cc), the Ombudsperson shall— (aa) inform such individual that the individual may refuse to continue communication with the Ombudsperson; and (bb) disclose the purpose of the communication and the scope of the role of the Ombudsperson. (G) Subpoena authority (i) In general Subject to the approval of the Secretary of Health and Human Services, the Ombudsperson may— (I) issue a subpoena to require the production of all information, reports, and other documentary evidence necessary to carry out the duties of the Ombudsperson; and (II) invoke the aid of any appropriate court of the United States. (ii) Timeline for production of information To prevent undue delay of the placement of an immigrant child, requirements set forth in a subpoena under clause (i)(I) shall be satisfactorily fulfilled not later than 7 days after the date on which the Ombudsperson issues the subpoena. (H) Reporting mechanisms (i) In general The Ombudsperson shall establish and maintain— (I) a toll-free telephone number to receive complaints and reports of matters for investigation; and (II) an email address to receive complaints, such reports, and requests for review of placement decisions. (ii) Availability The Ombudsperson shall ensure that— (I) such telephone number is made available, and a telephone is accessible, to each immigrant child in a facility; and (II) such email address is made available to sponsors, Flores settlement agreement class counsel, and legal services providers and child advocates who serve such immigrant children. (I) Report to Congress (i) In general Not later than September 30 each year, the Ombudsperson shall submit to Congress a report on the accomplishments and challenges of the Office of the Ombudsperson during the fiscal year ending on that date. (ii) Elements Each report required by clause (i) shall include the following: (I) For the preceding fiscal year— (aa) a description of the accomplishments and challenges relating to implementation and compliance with this Act; and (bb) a summary of— (AA) each site visit conducted; (BB) any interview with an immigrant child or facility staff; (CC) facility audits and corrective actions taken or recommended; (DD) appeals made to the Ombudsperson; and (EE) any other information the Ombudsperson considers relevant. (II) A summary of complaints made and investigations carried out during the preceding fiscal year, including— (aa) the number of complaints and number and nature of other contacts; (bb) the number of complaints made, including the type and source; (cc) the number of investigations carried out; (dd) the trends and issues that arose in the course of investigating complaints; and (ee) the number of pending complaints. (III) A detailed analysis of the data collected under section 4. (IV) Recommendations— (aa) for improving implementation and compliance with this Act; and (bb) as to whether the Director should renew or cancel contracts with particular Office of Refugee Resettlement grantees. (V) A description of the priorities for the subsequent fiscal year. (J) Recommendations to Office of Refugee Resettlement (i) In general Not less frequently than every 180 days, the Ombudsperson shall make written recommendations to the Director with respect to the proposed and established policies and procedures of the Office of Refugee Resettlement relating to the protection of unaccompanied immigration children in the care of the Office of Refugee Resettlement. (ii) Response Not later than 90 days after the date on which the Director receives recommendations under clause (i), the Director shall respond to the Ombudsperson in writing. (iii) Role of Secretary of Health and Human Services In the case of a recommendation under clause (i) that is not addressed and resolved by the Director, the Ombudsperson may elevate the recommendation to the Secretary of Health and Human Services for resolution. (K) Additional duties The Ombudsperson shall— (i) conduct a review of data collection, as described in section 4(a); (ii) establish the Committee, as described in section 5; and (iii) enter into a memorandum of understanding, as described in section 6(a). (d) Access to facilities The Secretary of Health and Human Services and the Secretary of Homeland Security shall ensure— (1) unobstructed access by the Ombudsperson to any facility; and (2) the ability of the Ombudsperson— (A) to monitor any facility; and (B) to meet confidentially with— (i) staff of any facility; (ii) employees and contractors of the Office of Refugee Resettlement and the Department of Homeland Security; and (iii) any immigrant child in immigration custody, after notification of the immigrant child’s counsel, as applicable. (e) Access to information The Secretary of Health and Human Services shall ensure unobstructed and timely access by the Ombudsperson to— (1) the case files, records, reports, audits, documents, papers, recommendations, or any other pertinent information relating to the care and custody of an immigrant child; and (2) the written policies and procedures of all Office of Refugee Resettlement facilities. 4. Data collection (a) Independent review by ombudsperson (1) In general The Ombudsperson shall regularly review data collected by the Secretary of Health and Human Services and the Secretary of Homeland Security relating to immigrant children in facilities. (2) Collaboration required The Secretary of Health and Human Services and the Secretary of Homeland Security shall provide the Ombudsperson unobstructed access to— (A) real-time custody and detention data for each immigrant child detained by the Government or held in immigration custody, including— (i) the location and level of placement; (ii) biographical information, including full name, date of birth, country of citizenship, race, and alien number; (iii) all locations at which the immigrant child has been detained or held in custody; (iv) the dates and times the immigrant child is booked in and booked out of any facility; and (v) transfer and discharge information; and (B) Department of Homeland Security and Department of Health and Human Services data personnel for the purpose of reviewing data collection and integrity issues. (b) Office of Refugee Resettlement data collection system (1) In general To support the data collection and monitoring duties of the Ombudsperson and to facilitate public monitoring, the Director shall develop a data collection system that collects and maintains the following information: (A) The total number of immigrant children held in custody by the Director, disaggregated by placement level, specific Office of Refugee Resettlement facility, country of citizenship, race, and age. (B) The average and median number of days immigrant children remain in such custody, disaggregated by placement level, specific Office of Refugee Resettlement facility, and age. (C) For all immigrant children in the custody of the Secretary of Health and Human Services, the median time-to-release, disaggregated by— (i) children released to parents or legal guardians; (ii) children released to other sponsors; (iii) children who have home studies mandated by section 235 of the Trafficking Victims Protection Reauthorization Act of 2008 ( 8 U.S.C. 1232 ); (iv) children granted home studies through the discretion of the Director; and (v) all other children. (D) The average and median number of days immigrant children stay in an Office of Refugee Resettlement facility, disaggregated by placement level, specific Office of Refugee Resettlement facility, and age. (E) The number of immigrant children discharged to sponsors, disaggregated by sponsor category, placement level, specific Office of Refugee Resettlement facility, and age. (F) The sponsor category and age of each immigrant child held at each Office of Refugee Resettlement facility. (G) The average and median number of days immigrant children stay in an Office of Refugee Resettlement facility, disaggregated by sponsor category. (H) The number and percentage of immigrant children held in an Office of Refugee Resettlement facility with more than 25 immigrant children, disaggregated by placement level and age. (I) The percentage of filled capacity across all Office of Refugee Resettlement facilities, disaggregated by placement level. (J) The total number of children held at out-of-network facilities, disaggregated by placement level and age. (K) For each Office of Refugee Resettlement facility— (i) the percentage of filled capacity; (ii) the maximum number of available beds; (iii) the number and percentage of immigrant children with special needs or disabilities (as defined in section 3 of the Americans with Disabilities Act of 1990 ( 42 U.S.C. 12102 )), disaggregated by placement level and age; and (iv) the number and percentage of immigrant children receiving mandatory home studies, discretionary home studies, and tier 1, tier 2, and tier 3 post-release services, disaggregated by placement level and age. (2) Publication Not later than the 15th of each month, the Director shall make the data collected under paragraph (1) for the preceding month available to the public on the internet website of the Office of Refugee Resettlement. (c) Prohibition on certain uses of data (1) In general The data collected under this section may not be used for immigration enforcement or law enforcement purposes, and the Office of the Ombudsperson may not— (A) use or disclose such data for any purpose other than carrying out the duties of the Office of the Ombudsperson; (B) publish or share individually identifiable information; (C) transmit individually identifiable information, including to a local, State, or Federal law enforcement agency, for any purpose other than carrying out the duties of the Office of the Ombudsperson; or (D) allow any individual, other than an officer or employee of the Office of the Ombudsperson who is subject to this subsection, to access or examine such individually identifiable information. (d) Privacy protections Any data collected, stored, received, or published under this Act shall be— (1) collected, stored, received, or published in a manner that protects the privacy of individuals whose information is included in such data; (2) de-identified or anonymized in a manner that protects the identity of all individuals whose information is included in such data; and (3) limited in use for the purpose of carrying out the duties of the Office of the Ombudsperson and be protected from all other internal use by any entity that collects, stores, or receives the data, and from any other inappropriate uses. 5. Expert advisory committee (a) Establishment Not later than 90 days after the date of the enactment of this Act, the Ombudsperson shall establish an expert advisory committee to assist the Ombudsperson in— (1) identifying relevant trends relating to immigrant children in immigration custody; (2) conducting fact-finding missions and investigations of facilities; and (3) ensuring Government and private contractor compliance with applicable law and standards for facilities. (b) Membership The members of the Committee shall— (1) be appointed by the Ombudsperson; (2) represent various geographical regions; and (3) be comprised of subject matter experts, including— (A) legal advocates or specialists in the fields of child and family welfare, immigration, and human rights; (B) pediatricians or other appropriate pediatric health care experts; (C) child or adolescent psychiatrists or psychologists; (D) social workers; (E) data analysis experts; and (F) any other relevant subject matter expert. (c) Meetings The Committee shall meet not less frequently than quarterly. (d) Duties The Committee shall regularly— (1) review facility compliance with applicable law and standards relating to Government detention and custody of immigrant children, including the Flores settlement agreement and section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ( 8 U.S.C. 1232 ); and (2) submit to the Ombudsperson recommendations for improvement. (e) Onsite monitoring visits (1) In general Not less frequently than monthly, 1 or more individuals designated by the Committee shall conduct a comprehensive onsite monitoring visit of each facility for the purpose of interviewing immigrant children held in immigration custody, after notification of counsel, as applicable. (2) Elements Each onsite monitoring visit conducted under paragraph (1) shall include— (A) an evaluation of the compliance of the facility with— (i) all applicable laws and standards; and (ii) the facility standards under the Prison Rape Elimination Act of 2003 ( 34 U.S.C. 30301 et seq. ); (B) an assessment of the delivery of, and immigrant children’s access to, health care and mental health care services; (C) an assessment of immigrant children’s access to counsel and legal services; and (D) private, confidential interviews with immigrant children housed in the facility. 6. Coordination with department of homeland security (a) Memorandum of understanding (1) In general On the date of the enactment of this Act, the Secretary of Homeland Security and the Ombudsperson shall enter into a memorandum of understanding to coordinate oversight between the Department of Homeland Security and the Department of Health and Human Services. (2) Elements The memorandum of understanding required by paragraph (1) shall do the following: (A) Require the Secretary of Homeland Security to provide information, on a real-time basis, to the Ombudsperson with respect to each immigrant child detained by U.S. Customs and Border Protection or U.S. Immigration and Customs Enforcement, or who is otherwise in the custody of the Secretary of Homeland Security, including— (i) the location of the immigrant child; (ii) biographical information, including full name, date of birth, country of citizenship, race, and alien number; (iii) all locations at which the immigrant child has been so detained or held in Department of Homeland Security custody; (iv) exact times at which the immigrant child was booked in and booked out of such custody; (v) the date on which the immigrant child is released from such custody or transferred to the custody of the Secretary of Health and Human Services; (vi) in the case of an immigrant child who remains in Department of Homeland Security custody for more than 72 hours, the reason for such continued custody; and (vii) any other information the Ombudsperson considers relevant to the oversight and monitoring duties described in section 3(c)(3). (B) Establish the right of the Ombudsperson and the Committee to monitor Department of Homeland Security facilities for compliance with applicable standards of custody. (C) Provide the Ombudsperson and the Committee full and unobstructed access to— (i) Department of Homeland Security facilities for regular site visits; and (ii) the written policies and procedures of Department of Homeland Security facilities. (3) Limitation The memorandum of understanding may only allow the Ombudsperson to share information with the Secretary of Homeland Security on a case-by-case basis, and with the informed consent of the immigrant child concerned, if the Ombudsperson determines that such information sharing may facilitate the release of the immigrant child from custody. (4) Evaluation Not later than 2 years after the Ombudsperson and the Secretary of Homeland Security enter into the memorandum of understanding required by this subsection, the Comptroller General of the United States shall evaluate the coordination between the Ombudsperson and the Secretary to determine whether such memorandum of understanding is sufficient to ensure the oversight and monitoring required by this Act. (5) Recommendations If the Comptroller General makes a determination under paragraph (4) that the memorandum of understanding is insufficient, the Comptroller General shall recommend actionable steps to be implemented— (A) to improve coordination between the Ombudsperson and the Secretary of Homeland Security; and (B) to ensure effectiveness of the mandate of the Ombudsperson. (b) Interagency working group (1) Establishment There is established an interagency working group to identify and discuss concerns relating to immigrant children in facilities. (2) Membership The Working Group shall be composed of representatives of— (A) the Department of Justice; (B) the Department of Health and Human Services, including the Director or a senior representative of the Office of Refugee Resettlement; (C) U.S. Customs and Border Protection; (D) U.S. Immigration and Customs Enforcement; (E) relevant oversight offices, including— (i) the Immigration Detention Ombudsman of the Department of Homeland Security; and (ii) the Inspectors General of the Department of Justice, the Department of Health and Human Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement; and (F) any other relevant Federal agency or office. (3) Meetings The Working Group shall— (A) hold meetings not less frequently than quarterly; (B) invite representatives of nongovernmental organizations that provide services to immigrant children to participate in such meetings as the Ombudsperson considers appropriate; and (C) provide to the Ombudsperson a summary of each such meeting. 7. Rule of construction Nothing in the Act shall be construed to preclude or limit Flores settlement agreement class counsel from conducting independent investigations or seeking enforcement actions relating to violations of the Flores settlement agreement in any appropriate district court of the United States.