[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.--