[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4393 Introduced in Senate (IS)]

<DOC>






118th CONGRESS
  2d Session
                                S. 4393

  To provide protections for children in immigration custody, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 22, 2024

 Mr. Merkley (for himself, Mr. Durbin, Mrs. Gillibrand, Mr. Wyden, Ms. 
Warren, Mr. Schatz, Mr. Markey, Ms. Klobuchar, Mr. Sanders, Ms. Hirono, 
and Ms. Duckworth) introduced the following bill; which was read twice 
             and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To provide protections for children in immigration custody, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Children's Safe 
Welcome Act of 2024''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
  TITLE I--PROCEDURES AND TEMPORARY PLACEMENTS FOLLOWING APPREHENSION

Sec. 101. Prohibition on family separation.
Sec. 102. Protections for noncitizen children.
Sec. 103. Nonadversarial asylum processing for noncitizen children.
Sec. 104. Standards for U.S. Customs and Border Protection detention of 
                            noncitizen children.
Sec. 105. Standards for U.S. Customs and Border Protection facilities 
                            housing noncitizen children.
Sec. 106. Modification of term ``asylum officer'' to exclude officers 
                            of U.S. Customs and Border Protection.
TITLE II--STANDARDS FOR DEPARTMENT OF HEALTH AND HUMAN SERVICES CUSTODY 
                  OF UNACCOMPANIED NONCITIZEN CHILDREN

  Subtitle A--Standards for Foster Care Homes and Childcare Facilities

Sec. 201. Operation of foster care homes and childcare facilities.
Sec. 202. Notice of rights.
Sec. 203. Staffing and training.
       Subtitle B--Services for Unaccompanied Noncitizen Children

Sec. 211. Required services.
Sec. 212. Evaluation for disability.
Sec. 213. Education.
Sec. 214. Recreation.
                   Subtitle C--Placement of Children

Sec. 221. Phasing out large congregate care facilities.
Sec. 222. Least restrictive setting.
Sec. 223. Foster family care.
Sec. 224. Additional requirements relating to children with 
                            disabilities and children with mental 
                            health needs.
Sec. 225. Minimizing transfers.
Sec. 226. Restrictive placements.
Sec. 227. Judicial review of placement.
  Subtitle D--Family Reunification and Standards Relating to Sponsors

Sec. 231. Family reunification efforts by Office of Refugee 
                            Resettlement.
Sec. 232. Standards relating to sponsors.
Sec. 233. Special considerations relating to release of children with 
                            disabilities.
                          Subtitle E--Release

Sec. 241. Procedures for release.
Sec. 242. Post-release services.
Sec. 243. Individuals attaining 18 years of age.
Sec. 244. Custody review by Ombudsperson.
                  TITLE III--EMERGENCIES AND INFLUXES

Sec. 301. Sense of Congress.
Sec. 302. Definitions.
Sec. 303. Placement.
Sec. 304. Planning for emergencies and influxes.
Sec. 305. Influx facility standards and staffing.
Sec. 306. Monitoring and oversight.
  TITLE IV--LEGAL REPRESENTATION FOR UNACCOMPANIED NONCITIZEN CHILDREN

Sec. 401. Legal orientation presentations and legal screenings.
Sec. 402. Legal representation.
TITLE V--APPOINTMENT OF CHILD ADVOCATES AND IMPROVEMENTS TO IMMIGRATION 
                                 COURTS

Sec. 501. Appointment of child advocates.
Sec. 502. Immigration court improvements.
            TITLE VI--OVERSIGHT, MONITORING, AND ENFORCEMENT

Sec. 601. Office of the Ombudsperson for Unaccompanied Noncitizen 
                            Children in Immigration Custody.
Sec. 602. Data collection and reporting.
Sec. 603. Enforcement.
Sec. 604. Protection from retaliation.
Sec. 605. Mandatory access to detention facilities for Members of 
                            Congress.
                      TITLE VII--NONDISCRIMINATION

Sec. 701. Fair and equal treatment.
Sec. 702. Responsibilities of care providers.
          TITLE VIII--INFORMATION SHARING AND DATA PROTECTION

Sec. 801. Separation of records.
Sec. 802. Prohibition on use for denial of relief or in removal 
                            proceedings.
Sec. 803. Disclosure.
Sec. 804. Prohibition on information sharing.
Sec. 805. Counseling records.
Sec. 806. Data protection for sponsors.
                   TITLE IX--MISCELLANEOUS PROVISION

Sec. 901. Rule of construction.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Best interests of the child.--With respect to an 
        accompanied noncitizen child or unaccompanied noncitizen child, 
        the term ``best interests of the child'' means a consideration, 
        informed to the extent practicable by the child and the parents 
        or guardian and extended family of the child, that takes 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--
                            (i) family integrity;
                            (ii) liberty; and
                            (iii) development; and
                    (E) the identity of the child, including religious, 
                ethnic, linguistic, gender, sexual orientation, and 
                cultural identity.
            (2) Childcare facility.--The term ``childcare facility'' 
        means a facility operated by the Department of Health and Human 
        Services, or a contractor or grantee of the Department of 
        Health and Human Services, that--
                    (A) is a State-licensed program; and
                    (B) provides residential care for unaccompanied 
                noncitizen children.
            (3) Director.--The term ``Director'' means the Director of 
        the Office of Refugee Resettlement.
            (4) Flores settlement agreement.--The term ``Flores 
        settlement agreement'' means the stipulated settlement 
        agreement in Reno v. Flores, as filed in the United States 
        District Court for the Central District of California on 
        January 17, 1997 (CV-85-4544-RJK), including all subsequent 
        court decisions, orders, agreements, and stipulations.
            (5) 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).
            (6) Influx.--The term ``influx'' means a period--
                    (A) beginning on the date on which, for not less 
                than 7 consecutive days, the net available bed capacity 
                of State-licensed programs that is occupied or held for 
                placement by unaccompanied noncitizen children is 85 
                percent or more; and
                    (B) ending on the date on which, for not less than 
                7 consecutive days, such bed capacity occupied or held 
                for placement by unaccompanied noncitizen children is 
                less than 85 percent.
            (7) Influx facility.--The term ``influx facility'' means 
        any facility established to provide temporary emergency shelter 
        and services for unaccompanied noncitizen children during an 
        influx or emergency.
            (8) Noncitizen.--The term ``noncitizen'' means an 
        individual who is not a citizen or national of the United 
        States.
            (9) Noncitizen child.--The term ``noncitizen child'' means 
        a noncitizen under the age of 18 years.
            (10) Nonparent family member.--With respect to an 
        unaccompanied noncitizen child apprehended with a nonparent 
        family member, the term ``nonparent family member'' means an 
        individual who is--
                    (A) 18 years of age or older; and
                    (B) a relative of such child, including a 
                grandparent, aunt, uncle, first cousin, sibling, and 
                fictive kin.
            (11) Ombudsperson.--The term ``Ombudsperson'' means the 
        Ombudsperson of the Office of the Ombudsperson for 
        Unaccompanied Noncitizen Children established under section 
        601.
            (12) Out-of-network facility.--The term ``out-of-network 
        facility'' means any public or private facility, including a 
        mental health facility, or any other location that--
                    (A) is used to provide residential care for 
                unaccompanied noncitizen children; and
                    (B) is not an Office of Refugee Resettlement 
                facility.
            (13) Prospective sponsor.--The term ``prospective sponsor'' 
        means an individual or entity who applies for custody of an 
        unaccompanied noncitizen child.
            (14) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.
            (15) Secure facility.--The term ``secure facility'' means 
        any public or private facility that is opened by a program, 
        agency, or organization that is licensed by an appropriate 
        State agency to provide residential care for children who have 
        been adjudicated delinquent.
            (16) Special needs noncitizen child.--The term ``special 
        needs noncitizen child''--
                    (A)(i) means a noncitizen under the age of 18 
                years, the mental or physical condition of whom 
                requires special services or medical equipment and 
                special treatment by the staff of a childcare facility; 
                and
                    (ii) includes such an individual who--
                            (I) has special needs due to drug or 
                        alcohol abuse, serious emotional disturbance, 
                        mental illness, developmental or cognitive 
                        delay, or a physical condition or chronic 
                        illness that requires special services or 
                        treatment;
                            (II) is an individual with a disability (as 
                        defined in section 3 of the Americans with 
                        Disabilities Act of 1990 (42 U.S.C. 12102)); or
                            (III) requires special services or 
                        treatment as a result of neglect or abuse; and
                    (B) in the case of a child who is 12 years of age 
                or older, means such a child who consents to such 
                designation, services, and treatment.
            (17) Sponsor.--The term ``sponsor'' means an individual or 
        entity who has been approved by the Director to assume care of 
        an unaccompanied noncitizen child on release from the custody 
        of the Secretary.
            (18) Staff-secure facility.--The term ``staff-secure 
        facility''--
                    (A) means any public or private facility that is 
                licensed by an appropriate State agency to provide 
                residential care for children who have been determined 
                to require close or intensive care in accordance with 
                section 226(c)(3); and
                    (B) does not include a facility that provides 
                residential care to children who have been adjudicated 
                delinquent.
            (19) State-licensed program.--The term ``State-licensed 
        program'' means any public or private program, agency, or 
        organization licensed by an appropriate State agency to provide 
        residential, group, or foster care services for unaccompanied 
        noncitizen children (including a program operating group homes, 
        foster homes, or facilities for special needs noncitizen 
        children) that complies with applicable--
                    (A) State child welfare laws, regulations, and 
                policies;
                    (B) State and local building, fire, health, and 
                safety laws and regulations;
                    (C) Federal, State, and local human rights and 
                privacy laws, as applicable; and
                    (D) State staffing and training requirements.
            (20) Tender age minor.--The term ``tender age minor'' means 
        an individual who is 12 years of age or younger or has the 
        developmental age of such an individual.
            (21) Unaccompanied noncitizen child.--The term 
        ``unaccompanied noncitizen child'' has the meaning given the 
        term ``unaccompanied alien child'' in section 462(g) of the 
        Homeland Security Act of 2002 (6 U.S.C. 279(g)).

  TITLE I--PROCEDURES AND TEMPORARY PLACEMENTS FOLLOWING APPREHENSION

SEC. 101. PROHIBITION ON FAMILY SEPARATION.

    (a) In General.--A noncitizen child shall remain physically 
together with their parent, legal guardian, or nonparent family member 
at all times while in the custody of the Secretary of Homeland Security 
or the Secretary of Health and Human Services, unless--
            (1) the noncitizen child requests privacy temporarily;
            (2) during the screening process, a determination is made 
        based on clear and convincing evidence that the parent or legal 
        guardian of the noncitizen child, or the nonparent family 
        member of the child who has been determined by a child welfare 
        expert to be suitable to provide care and physical custody of 
        the child in the United States, presents an imminent threat to 
        United States national security or is inadmissible under 
        subparagraphs (C)(i), (E), (G), or (I) of section 212(a)(2) of 
        the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)); or
            (3) the child welfare expert documents, based on clear and 
        convincing evidence, that the continued care of the noncitizen 
        child by the parent, legal guardian, or nonparent family member 
        is likely to result in serious emotional or physical damage to 
        the child.
    (b) Role of DHS.--An employee or contractor of the Department of 
Homeland Security may not play any role in the documentation or 
determination described in subsection (a).
    (c) Termination of Separation.--In the case of a separation under 
paragraph (2) or (3) of subsection (a), as soon as practicable after 
the potential damage to the child is sufficiently mitigated or 
remedied--
            (1) in the case of a child in the custody of the Secretary 
        of Health and Human Services, the Secretary of Health and Human 
        Services shall reunify the child with the individual from whom 
        they were separated; and
            (2) in the case of a child in the custody of the Secretary 
        of Homeland Security, the Secretary of Homeland Security shall 
        release the individual in accordance with subsection (a)(5) of 
        section 235 of the William Wilberforce Trafficking Victims 
        Protection Reauthorization Act of 2008 (8 U.S.C. 1232), as 
        amended by section 102.
    (d) Challenge to Separation.--In the case of a separation under 
paragraph (2) or (3) of subsection (a), the Secretary of Homeland 
Security shall--
            (1) notify the parents, legal guardians, and children 
        concerned of their--
                    (A) right to challenge such separation under titles 
                VI and VII; and
                    (B) private right of action to seek review before a 
                district court of the United States; and
            (2) provide a copy of any determination, evidence, arrest 
        warrants, or other documentation supporting such separation to 
        such individuals and their attorneys.
    (e) Treatment of Unaccompanied Children Traveling With Certain 
Caregivers.--Unaccompanied children traveling with a nonparent family 
member shall be treated by the Secretary of Health and Human Services 
in accordance with paragraph (3)(C) of section 235(b) of the William 
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 
(8 U.S.C. 1232(b)), as amended by section 102.
    (f) Staffing.--
            (1) Child welfare experts.--The Secretary of Health and 
        Human Services shall hire child welfare experts to carry out 
        the screening process described in subsection (a).
            (2) Qualifications.--Each child welfare expert hired under 
        this subsection shall--
                    (A) be professionally trained and licensed in 
                social work;
                    (B) have direct experience providing trauma-
                informed care to children who have experienced trauma; 
                and
                    (C) be proficient in Spanish or 1 of the top 5 most 
                common languages spoken by noncitizen children in the 
                past 5 years.

SEC. 102. PROTECTIONS FOR NONCITIZEN CHILDREN.

    Section 235 of the William Wilberforce Trafficking Victims 
Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is amended--
            (1) by striking ``unaccompanied alien child'' each place it 
        appears and inserting ``unaccompanied noncitizen child'';
            (2) by striking ``unaccompanied alien child's'' each place 
        it appears and inserting ``unaccompanied noncitizen child's'';
            (3) by striking ``unaccompanied alien children'' each place 
        it appears and inserting ``unaccompanied noncitizen children'';
            (4) by striking ``unaccompanied alien children's'' each 
        place it appears and inserting ``unaccompanied noncitizen 
        children's'';
            (5) in subsection (a)--
                    (A) by striking paragraphs (2) and (4);
                    (B) by redesignating paragraphs (3) and (5) as 
                paragraphs (2) and (3), respectively;
                    (C) in paragraph (2), as redesignated, in the 
                paragraph heading, by striking ``other'' and inserting 
                ``unaccompanied noncitizen'';
                    (D) in paragraph (3), as redesignated--
                            (i) in subparagraph (C), in the 
                        subparagraph heading, by striking 
                        ``unaccompanied alien children'' and inserting 
                        ``unaccompanied noncitizen children''; and
                            (ii) in subparagraph (D), in the matter 
                        preceding clause (i), by striking ``, except 
                        for an unaccompanied alien child from a 
                        contiguous country subject to exceptions under 
                        subsection (a)(2),''; and
                    (E) by inserting after paragraph (3), as 
                redesignated, the following:
            ``(4) Child caregiver professionals at the border.--