Protect Kids and Parents Act
This bill requires that a child of alien parents or legal guardians who are asylum applicants must be detained in the same facility. A "child" is defined as an individual who has not reached the age of 18, has no permanent immigration status, and was in the custody and presence of a parent or legal guardian when the parent or legal guardian was detained for illegally entering the United States.
The bill also:
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6195 Introduced in House (IH)]
<DOC>
115th CONGRESS
2d Session
H. R. 6195
To limit the separation of families seeking asylum in the United States
and expedite the asylum process for individuals arriving in the United
States with children.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 22, 2018
Mr. Brat introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To limit the separation of families seeking asylum in the United States
and expedite the asylum process for individuals arriving in the United
States with children.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protect Kids and Parents Act''.
SEC. 2. ENSURING FAMILIES REMAIN TOGETHER.
Notwithstanding any other provision of law, judicial determination,
consent decree, or settlement agreement:
(a) A child shall remain in the custody of and be detained in the
same facility as the Asylum Applicant who is the child's parent or
legal guardian during the pendency of the Asylum Applicant's asylum or
withholding of removal proceedings.
(b) If a child has multiple parents or legal guardians who are
Asylum Applicants, that child shall remain in the custody of and be
detained in the same facility as all of the child's parents and legal
guardians during the pendency of the Asylum Applicants' asylum or
withholding of removal proceedings; unless one of the child's parents
or legal guardians is present in the United States and not in any form
of detention, in which case the child shall be placed in the custody of
that parent or legal guardian.
SEC. 3. FACILITIES FOR ASYLUM APPLICANTS WHO RETAIN CUSTODY OF A CHILD.
(a) The designated agencies shall maintain facilities for the joint
detention of Asylum Applicants who retain custody of a child and the
child. These facilities shall only contain individuals who are under
the age of 18 or are the parents or legal guardians of individuals
under the age of 18.
(b) Funding.--There are authorized to be appropriated for each of
fiscal years 2019, 2020, and 2021 such sums as may be necessary to
carry out this section.
SEC. 4. INCREASING THE NUMBER OF AUTHORIZED IMMIGRATION JUDGES.
(a) Increase in Immigration Judges.--The Attorney General of the
United States shall increase the total number of Immigration Judges to
adjudicate pending cases and efficiently process future cases by 375
judges.
(b) Necessary Support Staff for Immigration Judges.--To address the
shortage of support staff for Immigration Judges, the Attorney General
shall ensure that each Immigration Judge has sufficient support staff,
adequate technological and security resources, and appropriate
courtroom facilities.
(c) Increase in Board of Immigration Appeals Attorneys.--The
Attorney General shall increase the number of Board of Immigration
Appeals staff attorneys by sixty attorneys.
(d) Necessary Support Staff for Board of Immigration Appeals.--To
address the shortage of support staff for the Board of Immigration
appeals, the Attorney General shall ensure that the Board of
Immigration Appeals and its staff attorneys has sufficient support
staff and adequate technological and security resources.
(e) Prioritization of Asylum Applicants.--Any Immigration Judges,
Board of Immigration Appeals staff attorneys, and support staff hired
under the authority of this section shall prioritize asylum
applications that are filed by Asylum Applicants.
(f) Funding.--There are authorized to be appropriated for each of
fiscal years 2019, 2020, and 2021 such sums as may be necessary to
carry out this section.
SEC. 5. INCREASING THE NUMBER OF AVAILABLE DEPARTMENT OF HOMELAND
SECURITY EMPLOYEES.
(a) Increase in Department of Homeland Security Personnel.--The
Secretary of Homeland Security shall increase the total number of
Department personnel that are responsible for processing asylum
applications filed by Asylum Applicants by 200 individuals. Positions
authorized before the date of the enactment of this Act and any
existing officer vacancies within the Department of Homeland Security
on such date of enactment shall not count towards the increase mandated
by this paragraph.
(b) Increase in Department of Homeland Security Personnel.--The
Secretary is authorized to procure space, temporary facilities, and to
hire the required administrative and legal support staff, on an
expedited basis, to accommodate the additional positions authorized
under this section.
(c) Funding.--There are authorized to be appropriated for each of
fiscal years 2019, 2020, and 2021 such sums as may be necessary to
carry out this section.
SEC. 6. ESTABLISHING DEADLINES FOR PROCESSING OF ASYLUM APPLICANTS.
Notwithstanding any other provision of law, judicial determination,
consent decree, or settlement agreement:
(a) In General.--
(1) The Attorney General and Secretary of Homeland Security
shall establish within 60 days of the enactment of this Act
procedures for the expedited consideration of asylum
applications filed by Asylum Applicants, pursuant to the
guidelines set forth in this Act.
(2) An asylum application filed by Asylum Applicants must
be governed by the expedited procedures set forth by this Act,
as opposed to existing asylum law, procedures, regulations, and
timelines. But unless modified by this Act or the procedures
set forth in, regulations promulgated pursuant to, and
timelines established by this Act, the standards, procedures,
and burdens of proof established by existing law and
regulations for asylum applications shall apply to an asylum
application filed by an Asylum Applicant.
(3) Until the Attorney General and Secretary of Homeland
Security have established procedures for expedited
consideration of asylum applications under this section, any
asylum application filed by an Asylum Applicant shall be
reviewed under existing law, regulations, and procedures for
the evaluation of an asylum claim. Other sections of this Act,
including sections 2, 3, and 8, will nonetheless begin to apply
to Asylum Applicants upon enactment of this Act.
(b) Asylum Interviews.--
(1) Within 24 hours of an initial referral from immigration
officials of an asylum application by an Asylum Applicant, an
asylum officer shall conduct an asylum interview of the Asylum
Applicant.
(2) The Attorney General shall provide information
concerning the asylum interview described in this section to
Asylum Applicants at least twelve hours prior to the asylum
interview. An Asylum Applicant may consult with a person or
persons of the Asylum Applicant's choosing prior to the
interview or any review thereof, according to regulations
prescribed by the Attorney General. Such consultation shall be
at no expense to the Government and shall not unreasonably
delay the process.
(3) Within 24 hours of the start of an asylum interview,
the asylum officer must make a determination of whether the
Asylum Application has a credible fear of persecution.
(4) If the officer determines that the Asylum Applicant has
a credible fear of persecution, the Asylum Applicant shall be
detained for further consideration of the application for
asylum and referred for an asylum determination consistent with
subsection (d).
(5) If the officer determines that the Asylum Applicant
does not have a credible fear of persecution, the Asylum
Applicant has 24 hours to request review by an Immigration
Judge. If the Asylum Applicant does not request review of the
determination within that time period, a Final Order of Removal
shall be issued.
(i) The asylum officer shall prepare a
written record of a determination that the
Asylum Applicant does not have a credible fear
of persecution. Such record shall include a
summary of the material facts as stated by the
Asylum Applicant, such additional facts (if
any) relied upon by the officer, and the
officer's analysis of why, in the light of such
facts, the Asylum Applicant has not established
a credible fear of persecution. A copy of the
officer's interview notes shall be attached to
the written summary.
(c) Appearance Before Immigration Judge.--
(1) In the case of an Asylum Applicant referred to an
Immigration Judge following a determination of credible fear of
persecution by the asylum officer or an Asylum Applicant who
requests review by an Immigration Judge of a determination that
the Asylum Applicant does not have a credible fear of
persecution, the Attorney General shall present the Asylum
Applicant before an Immigration Judge for a hearing within 24
hours of the referral or request.
(2) The Immigration Judge shall make a determination of
asylum or withholding of removal eligibility within 120 hours
of such a hearing.
(3) If the Immigration Judge determines the Asylum
Applicant is eligible for asylum or withholding of removal, the
judge will order that asylum or withholding of removal be
granted.
(4) If the Immigration Judge determines that the Asylum
Applicant is not eligible for asylum or withholding of removal,
the Asylum Applicant has 24 hours to request review by the
Board of Immigration Appeals. If the Asylum Applicant does not
request review of the determination within that time period, a
Final Order of Removal will be issued.
(i) The Immigration Judge shall prepare a
written record of a determination that the
Asylum Applicant is not eligible for asylum or
withholding of removal. Such record shall
include a summary of the material facts as
stated by the Asylum Applicant, such additional
facts (if any) relied upon by the Immigration
Judge, and the Immigration Judge's analysis of
why, in the light of such facts, the Asylum
Applicant has not established eligibility for
asylum or withholding of removal.
(d) Review by Board of Immigration Appeals.--
(1) In the case of an Asylum Applicant who requests review
by the Board of Immigration Appeals of a determination by an
Immigration Judge that he or she is not eligible for asylum or
withholding of removal, the Attorney General shall present the
request for review to the Board of Immigration Appeals within
24 hours of the request.
(2) The Board of Immigration Appeals shall make a
determination of asylum or withholding of removal eligibility
within 24 hours of receiving the request.
(3) If the Board of Immigration Appeals determines the
Asylum Applicant is eligible for asylum or withholding of
removal, the Board of Immigration Appeals will order that
asylum or withholding of removal be granted.
(4) If the Board of Immigration Appeals determines that the
Asylum Applicant is not eligible for asylum or withholding of
removal, the Asylum Applicant has 24 hours to request review by
the Attorney General. If the Asylum Applicant does not request
review of the determination within that time period, a Final
Order of Removal will be issued.
(e) Review by Attorney General.--
(1) In the case of an Asylum Applicant who requests review
by the Attorney General of a determination by the Board of
Immigration Appeals that he or she is not eligible for asylum
or withholding of removal, the Attorney General shall make a
determination of asylum or withholding of removal eligibility
within 24 hours of receiving the request.
(2) If the Attorney General determines the Asylum Applicant
is eligible for asylum or withholding of removal, the Attorney
General will order that asylum be granted.
(3) If the Attorney General determines that the Asylum
Applicant is not eligible for asylum or withholding of removal,
a Final Order of Removal will be issued.
(f) Issuance of Final Order of Removal.--Following a determination
by the Attorney General that the Asylum Applicant is not eligible for
asylum or withholding of removal, there shall be no additional review
prior to the issuance of a Final Order of Removal.
(g) Grant of Asylum.--If asylum or withholding of removal is
granted to an Asylum Applicant pursuant to these expedited procedures,
the grant will be conditional and the Asylum Applicant shall remain in
detention until the identity of the applicant has been checked against
all appropriate records or databases maintained by the Attorney General
and by the Secretary of State, including the Automated Visa Lookout
System, to determine any grounds on which the alien may be inadmissible
to, excludable from, removable from, or deportable from the United
States, or ineligible to apply for or be granted asylum or withholding
of removal.
(h) Extensions of Deadlines on Behalf of Designated Agencies.--A
designated agency may seek an extension of any of the deadlines set
forth in this subsection by applying for an extension with an
Immigration Judge. The Immigration Judge must issue an order stating
that the designated agency has established that good cause warrants the
granting of an extension. An extension may be granted for up to thirty
days. Only two extensions may be granted, in total, to a designated
agency during the entirety of an Asylum Applicant's asylum application
process. Any extensions of the deadlines shall not affect the detention
of the Asylum Applicant.
(i) Extensions of Deadlines on Behalf of Asylum Applicants.--An
Asylum Applicant may seek an extension of any of the deadlines set
forth in this subsection by applying for an extension with an
Immigration Judge. The Immigration Judge must issue an order stating
that the Asylum Applicant has established that good cause warrants the
granting of an extension. An extension may be granted for up to thirty
days. Only two extensions may be granted, in total, to an Asylum
Applicant during the entirety of the Asylum Applicant's asylum
application process. Any extensions of the deadlines shall not affect
the detention of the Asylum Applicant.
SEC. 7. CONSEQUENCES OF DENIAL OF ASYLUM APPLICATION.
Notwithstanding any other provision of law, judicial determination,
consent decree, or settlement agreement:
(a) Once a Final Order of Removal for an Asylum Applicant is
issued, the designated agency shall remove from the United States
within four days the Asylum Applicant and any child for whom the Asylum
Applicant is the parent or legal guardian and has been detained with
the Asylum Applicant.
(1) Exception.--If the child has a parent or legal guardian
who will be remaining physically present in the United States
when the Asylum Applicant is removed, the child will remain in
or be placed in the custody of that parent or legal guardian.
(b) An Asylum Applicant whose asylum application is denied pursuant
to the process outlined in this Act shall not be prosecuted for illegal
entry as a result of the entry into the United States that led to the
filing of the asylum application adjudicated under the process outlined
in this Act, but will instead be removed from the United States. An
Asylum Applicant may be prosecuted for any other violation of the law
if and once their asylum application has been denied. If the Asylum
Applicant is prosecuted for an immigration crime that is not a crime of
violence, the provisions of this Act that require that a child shall
remain in the custody of and be detained in the same facility as the
Asylum Applicant, and any other exceptions and requirements thereof set
forth in this Act, shall continue to apply.
(c) A denial of an asylum application pursuant to the process
outlined in this Act shall not prejudice a subsequent asylum
application by the same Asylum Applicant on the same grounds if it is
later filed after the Asylum Applicant arrives at a legal port of entry
and files an asylum application, unless it is determined that the
Asylum Applicant engaged in fraud during his prior asylum application
that was denied pursuant to the process outlined in this Act.
SEC. 8. EXCEPTIONS TO ENSURING FAMILIES REMAIN TOGETHER.
(a) An agent or officer of a designated agency shall be permitted
to remove a child from the custody of an Asylum Applicant that is the
child's parent or legal guardian with that Asylum Applicant's consent.
If a child has multiple parents or legal guardians in detention, all
parents or legal guardians with custody of the child must consent to
have the child removed from their custody before an agent or officer of
a designated agency is permitted to remove the child; otherwise, the
child will remain with the parent or legal guardian who does not wish
for the child to be removed.
(b) An agent or officer of a designated agency shall be permitted
to remove a child from the custody of an Asylum Applicant without that
Asylum Applicant's consent if the following has occurred:
(1) A State court, authorized under State law, terminates
the rights of a parent or legal guardian, determines that it is
in the best interests of the child to be removed from his or
her parent or legal guardian, in accordance with the Adoption
and Safe Families Act of 1997 (Public Law 105-89), or makes any
similar determination that is legally authorized under State
law.
(2) An official from the State or county child welfare
agency with expertise in child trauma and development makes a
best interests determination that it is in the best interests
of the child to be removed from his or her parent or legal
guardian because the child is in danger of abuse or neglect at
the hands of the parent or legal guardian, or is a danger to
herself or others.
(3) The Chief Patrol Agent or the Area Port Director, or
their designees, authorizes separation upon the recommendation
by an agent or officer, based on a finding that--
(A) the child is a victim of trafficking or is at
significant risk of becoming a victim of trafficking;
(B) there is a strong likelihood that the adult is
not the parent or legal guardian of the child; or
(C) the child is in danger of abuse or neglect at
the hands of the parent or legal guardian, or is a
danger to themselves or others.
(c) Documentation Required.--The Secretary shall ensure that a
separation under subsection (a)(3) is documented in writing and
includes, at a minimum, the reason for such separation, together with
the stated evidence for such separation.
SEC. 9. RECOMMENDATIONS FOR SEPARATIONS BY AGENTS OR OFFICERS.
(a) In General.--Not later than 180 days after the date of the
enactment of this Act, the Secretary, in consultation with the
Secretary of Health and Human Services, shall develop training and
guidance, with an emphasis on the best interests of the child,
childhood trauma, attachment, and child development, for use by the
agents and officers, in order to standardize the implementation of
section 8(b)(3).
(b) Annual Review.--Not less frequently than annually, the
Secretary of Health and Human Services shall review the guidance
developed under subsection (a) and make recommendations to the
Secretary to ensure such guidance is in accordance with current
evidence and best practices in child welfare, child development, and
childhood trauma.
(c) Requirement.--The guidance under subsection (a) shall
incorporate the presumptions described in section 10.
(d) Additional Requirements.--
(1) Evidence-based.--The guidance and training developed
under this section shall incorporate evidence-based practices.
(2) Training required.--
(A) All agents and officers of designated agencies,
upon hire, and annually thereafter, shall complete
training on adherence to the guidance under this
section.
(B) All Chief Patrol Agents and Area Port
Directors, upon hire, and annually thereafter, shall
complete--
(i) training on adherence to the guidance
under this section; and
(ii) 90 minutes of child welfare practice
training that is evidence-based and trauma-
informed.
SEC. 10. PRESUMPTIONS.
The presumptions described in this Act are the following:
(1) Family unity.--There shall be a strong presumption in
favor of family unity.
(2) Siblings.--To the maximum extent practicable, the
Secretary shall ensure that sibling groups remain intact.
SEC. 11. REQUIRED POLICY FOR LOCATING SEPARATED CHILDREN.
(a) In General.--Not later than 180 days after the date of the
enactment of this Act, the Secretary shall publish final public
guidance that describes, with specificity, the manner in which an
Asylum Applicant may locate a child they were the parent or legal
guardian of that was separated from them prior to the enactment of this
Act. In developing the public guidance, the Secretary shall consult
with the Secretary of Health and Human Services.
(b) Written Notification.--The Secretary shall provide each Asylum
Applicant who was separated from a child they were the parent or legal
guardian of with written notice of the public guidance to locate the
separated child.
(c) Language Access.--All guidance shall be available in English
and Spanish, and at the request of the Asylum Applicant, in the
language or manner that is understandable by the Asylum Applicant.
SEC. 12. ANNUAL REPORT ON FAMILY SEPARATION.
Not later than 1 year after the date of the enactment of this Act,
and annually thereafter, the Secretary shall submit a report to the
committees of jurisdiction that describes each instance in which a
child was separated from a parent or legal guardian and includes, for
each such instance, the following:
(1) The relationship of the adult and the child.
(2) The age and gender of the adult and child.
(3) The length of separation.
(4) Whether the adult was charged with a crime, and if the
adult was charged with a crime, the type of crime.
(5) Whether the adult made a claim for asylum, expressed a
fear to return, or applied for other immigration relief.
(6) Whether the adult was prosecuted if charged with a
crime and the associated outcome of such charges.
(7) The stated reason for, and evidence in support of, the
separation.
(8) If the child was part of a sibling group at the time of
separation, whether the sibling group has had physical contact
and visitation.
(9) Whether the child was rendered an unaccompanied alien
child.
(10) Other information in the Secretary's discretion.
SEC. 13. CLARIFICATION OF PARENTAL RIGHTS.
If a child is separated from a parent or legal guardian, and a
State court has not made a determination that the parental rights have
been terminated, there is a presumption that--
(1) the parental rights remain intact; and
(2) the separation does not constitute an affirmative
determination of abuse or neglect under Federal or State law.
SEC. 14. CLARIFICATION OF EXISTING LAW.
(a) Nothing in this Act shall be interpreted to supersede or modify
Federal child welfare law, where applicable, including the Adoption and
Safe Families Act of 1997 (Public Law 105-89).
(b) Nothing in this Act shall be interpreted to supersede or modify
State child welfare laws where applicable.
(c) Nothing in this Act shall be interpreted to grant any due
process rights to any individual who entered this country illegally.
(d) Nothing in this Act shall alter how an unaccompanied alien
under the age of eighteen is treated under existing law.
SEC. 15. GAO REPORT ON PROSECUTION OF ASYLUM SEEKERS.
(a) Study.--The Comptroller General of the United States shall
conduct a study of the prosecution of asylum seekers during the period
beginning on January 1, 2008, and ending on December 31, 2018,
including--
(1) the total number of persons who claimed a fear of
persecution, received a favorable credible fear determination,
and were referred for prosecution;
(2) an overview and analysis of the metrics used by the
Department of Homeland Security and the Department of Justice
to track the number of asylum seekers referred for prosecution;
(3) the total number of asylum seekers referred for
prosecution, a breakdown and description of the criminal
charges filed against asylum seekers during such period, and a
breakdown and description of the convictions secured;
(4) the total number of asylum seekers who were separated
from their children as a result of being referred for
prosecution;
(5) a breakdown of the resources spent on prosecuting
asylum seekers during such period, as well as any diversion of
resources required to prosecute asylum seekers, and any costs
imposed on States and localities;
(6) the total number of asylum seekers who were referred
for prosecution and also went through immigration proceedings;
and
(7) the total number of asylum seekers referred for
prosecution who were deported before going through immigration
proceedings.
(b) Report.--Not later than 1 year after the date of the enactment
of this Act, the Comptroller General shall submit to Congress a report
that describes the results of the study conducted pursuant to
subsection (a).
SEC. 16. DEFINITIONS.
In this Act:
(1) Agent; officer.--The terms ``agent'' and ``officer''
include contractors of the Federal Government.
(2) Asylum applicant.--The term ``Asylum Applicant'' means
an alien who--
(A) has no permanent immigration status;
(B) is detained by the United States Government at
or near a port of entry or within 100 miles of the
border of the United States while having custody of and
being in the presence of a child for whom the alien is
a parent or legal guardian; and
(C) seeks, within 48 hours of detention, asylum
pursuant to section 208 of the Immigration and
Nationality Act, withholding of removal pursuant to
section 241(b)(3) of the Immigration and Nationality
Act, or withholding of removal pursuant to the
Convention Against Torture.
(3) Asylum application.--The term ``asylum application''
means an application for asylum pursuant to section 208 of the
Immigration and Nationality Act, an application for withholding
of removal under section 241(b)(3) of the Immigration and
Nationality Act, and/or an application for withholding of
removal pursuant to the Convention Against Torture.
(4) Child.--The term ``child'' means an individual who--
(A) has not reached the age of 18;
(B) has no permanent immigration status; and
(C) was in the custody and presence of a parent or
legal guardian when the parent or legal guardian was
detained for illegally entering into the United States
at or near a port of entry or within 100 miles of the
border of the United States.
(5) Committees of jurisdiction.--The term ``committees of
jurisdiction'' means--
(A) the Committee on the Judiciary and the
Committee on Health, Education, Labor, and Pensions of
the Senate; and
(B) the Committee on the Judiciary of the House of
Representatives.
(6) Danger of abuse or neglect at the hands of the parent
or legal guardian.--The term ``danger of abuse or neglect at
the hands of the parent or legal guardian'' shall not mean
migrating to or crossing the United States border.
(7) Designated agency.--The term ``designated agency''
means--
(A) the Department of Homeland Security;
(B) the Department of Justice; and
(C) the Department of Health and Human Services.
(8) Secretary.--Unless otherwise specified, the term
``Secretary'' means the Secretary of Homeland Security.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
Referred to the Subcommittee on Immigration and Border Security.
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