[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 1297 Introduced in Senate (IS)]
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119th CONGRESS
1st Session
S. 1297
To provide counsel for unaccompanied children, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 3, 2025
Ms. Hirono (for herself, Mr. Bennet, Mr. Blumenthal, Mr. Booker, Mr.
Coons, Ms. Cortez Masto, Ms. Duckworth, Mr. Durbin, Mr. Fetterman, Mr.
Heinrich, Mr. Hickenlooper, Mr. Kim, Ms. Klobuchar, Mr. Markey, Mr.
Merkley, Mr. Murphy, Mr. Ossoff, Mr. Padilla, Mr. Sanders, Mr. Schatz,
Mr. Schiff, Ms. Smith, Mr. Van Hollen, Ms. Warren, Mr. Welch, Mr.
Whitehouse, and Mr. Wyden) introduced the following bill; which was
read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide counsel for unaccompanied children, 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.
This Act may be cited as the ``Fair Day in Court for Kids Act of
2025''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Noncitizen.--The term ``noncitizen'' means an
individual who is not a citizen or national of the United
States.
(2) Unaccompanied child.--The term ``unaccompanied 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)).
SEC. 3. REFERENCES TO ALIENS.
With respect to an individual who is not a citizen or national of
the United States, any reference in this Act to a ``noncitizen'' shall
be deemed to refer to an individual otherwise described as an ``alien''
in any Federal law, Federal regulation, or any written instrument
issued by the executive branch of the Government.
SEC. 4. IMPROVING IMMIGRATION COURT EFFICIENCY AND REDUCING COSTS BY
INCREASING ACCESS TO LEGAL INFORMATION.
(a) Definitions.--Section 101(a) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)) is amended by adding at the end the following:
``(53) The term `noncitizen' means an individual who is not a
citizen or national of the United States.
``(54) The term `unaccompanied 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)).''.
(b) Appointment of Counsel in Removal Proceedings; Right To Review
Certain Documents in Removal Proceedings.--Section 240(b) of the
Immigration and Nationality Act (8 U.S.C. 1229a(b)) is amended--
(1) in paragraph (4)--
(A) in the matter preceding subparagraph (A), by
striking ``under regulations of the Attorney General''
and inserting ``under regulations of the Attorney
General, or in the case of an unaccompanied child,
under regulations of the Secretary of Health and Human
Services'';
(B) in subparagraph (A)--
(i) by striking ``, at no expense to the
Government,''; and
(ii) by striking the comma at the end and
inserting a semicolon;
(C) by redesignating subparagraphs (B) and (C) as
subparagraphs (D) and (E), respectively;
(D) by inserting after subparagraph (A) the
following:
``(B) the Attorney General, or in the case of an
unaccompanied child, the Secretary of Health and Human
Services, may appoint or provide counsel, at Government
expense, to noncitizens in immigration proceedings;
``(C) the noncitizen, or the noncitizen's counsel,
not later than 7 days after receiving a notice to
appear under section 239(a), shall receive a complete
copy of the noncitizen's immigration file (commonly
known as an `A-file') in the possession of the
Department of Homeland Security (other than documents
protected from disclosure under section 552(b) of title
5, United States Code);''; and
(E) in subparagraph (D), as redesignated, by
striking ``, and'' and inserting ``; and''; and
(2) by adding at the end the following:
``(8) Failure to provide noncitizen required documents.--A
removal proceeding may not proceed until the noncitizen, or the
noncitizen's counsel if the noncitizen is represented--
``(A) has received the documents required under
paragraph (4)(C); and
``(B) has been provided at least 10 days to review
and assess such documents, unless the noncitizen or the
noncitizen's counsel expressly waives such review
period.''.
(c) Clarification Regarding the Authority of the Federal Government
To Appoint Counsel to Noncitizens in Immigration Proceedings.--
(1) In general.--Section 292 of the Immigration and
Nationality Act (8 U.S.C. 1362) is amended to read as follows:
``SEC. 292. RIGHT TO COUNSEL.
``(a) In General.--In any removal proceeding before the Attorney
General, an appeal from such a removal proceeding, and any related
matter before the Department of Homeland Security or a State court, an
unaccompanied child shall have the privilege of being represented by
such counsel as may be authorized to practice in such proceeding or
matter as he or she may choose. This subsection shall not apply to
screening proceedings described in section 235(b)(1)(A).
``(b) Access to Counsel for Unaccompanied Children.--
``(1) In general.--In any removal proceeding before the
Attorney General, an appeal from such a removal proceeding, and
any related matter before the Department of Homeland Security
or a State court, an unaccompanied child shall be represented
by counsel appointed or provided by the Secretary of Health and
Human Services, at Government expense, unless the child has
obtained at his or her own expense counsel authorized to
practice in such proceeding or matter.
``(2) Timing.--The Secretary of Health and Human Services
shall appoint or provide counsel to an unaccompanied child
under paragraph (1) as expeditiously as possible after the
earlier of--
``(A) the date on which a Notice to Appear for
removal proceedings is issued to the unaccompanied
child, regardless of whether the Notice to Appear has
been filed with an immigration court; or
``(B) the date on which the unaccompanied child is
placed in the custody of the Secretary of Health and
Human Services.
``(3) Length of representation.--An unaccompanied child
shall be represented by counsel under paragraph (1) at every
stage of the proceedings, beginning with the unaccompanied
child's initial appearance before an official with adjudicatory
authority in removal proceedings or in related matters before
the Department of Homeland Security or a State court, through
the termination of immigration proceedings and resolution of
any related matter before the Department of Homeland Security
or a State court, even if the child attains 18 years of age or
is reunified with a parent or legal guardian while the
proceedings are pending.
``(4) Continuity in representation.--If counsel retained by
an unaccompanied child at his or her own expense ceases
representing the child for any reason, the Secretary of Health
and Human Services shall ensure continued representation of the
child by appointing or providing new counsel as expeditiously
as possible.
``(5) Notice.--Not later than 72 hours after an
unaccompanied child is taken into Federal custody, the child
shall be notified that he or she will be provided with legal
counsel in accordance with this subsection.
``(6) Within detention facilities.--The Secretary of
Homeland Security shall ensure that unaccompanied children have
access to counsel inside all detention, holding, and border
facilities.
``(c) Pro Bono Representation.--
``(1) In general.--To the maximum extent practicable, the
Secretary of Health and Human Services shall make every effort
to use the services of competent counsel who agree to provide
representation to such children under subsection (b) without
charge to the child.
``(2) Development of necessary infrastructures and
systems.--The Secretary of Health and Human Services shall
establish the necessary infrastructure and systems for the
appropriate identification, recruitment, training, and
oversight of counsel available to provide assistance and
representation to unaccompanied children under subsection (b)
without charge to the child.
``(d) Model Guidelines on Legal Representation of Children.--
``(1) Development of guidelines.--The Director of the
Office of Refugee Resettlement, in consultation with the
Director of the Executive Office for Immigration Review, the
Secretary of Homeland Security, and nongovernmental
stakeholders with relevant expertise in providing immigration-
related legal services to children, shall develop model
guidelines for the legal representation of unaccompanied
children in immigration proceedings, which shall be based on--
``(A) the 2018 report of the American Bar
Association entitled `Standards for the Custody,
Placement and Care; Legal Representation; and
Adjudication of Unaccompanied Alien Children in the
United States';
``(B) the American Bar Association Model Rules of
Professional Conduct; and
``(C) any other source the Director of the Office
of Refugee Resettlement considers appropriate.
``(2) Purpose of guidelines.--The guidelines developed
under paragraph (1) shall be designed to help protect each
child from any individual suspected of involvement in any
criminal, harmful, or exploitative activity associated with the
smuggling or trafficking of children, while ensuring the
fairness of the immigration proceeding in which the child is
involved.
``(e) Duties of Counsel.--The duties of counsel appointed or
provided under this section shall include--
``(1) representing the unaccompanied alien child
concerned--
``(A) in all proceedings and matters relating to
the immigration status of the child; and
``(B) with respect to any other action involving
the Department of Homeland Security;
``(2) appearing in person for each of the child's--
``(A) individual merits hearings and master
calendar hearings before the Executive Office for
Immigration Review; and
``(B) interviews involving the Department of
Homeland Security;
``(3) owing the same duties of undivided loyalty,
confidentiality, and competent representation to the child as
is due to an adult client;
``(4) advocating for the child's legal interests, as
directed by the child's express wishes;
``(5) in the case of a child who does not express the
objectives of representation, or is found incompetent,
referring the child for the appointment of an independent child
advocate, as described in section 235(c)(6) of the William
Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008 (8 U.S.C. 1232(c)(6)); and
``(6) carrying out other such duties as may be prescribed
by the Secretary of Health and Human Services or the Director
of the Executive Office for Immigration Review.
``(f) Savings Provision.--Nothing in this section may be construed
to supersede--
``(1) any duties, responsibilities, disciplinary, or
ethical responsibilities an attorney may have to his or her
client under State law;
``(2) the admission requirements under State law; or
``(3) any other State law pertaining to the admission to
the practice of law in a particular jurisdiction.''.
(2) Rulemaking.--The Secretary of Health and Human Services
shall promulgate regulations to implement section 292 of the
Immigration and Nationality Act, as added by paragraph (1), in
accordance with the requirements set forth in section 3006A of
title 18, United States Code.
SEC. 5. ACCESS BY COUNSEL TO DEPARTMENT OF HOMELAND SECURITY
FACILITIES.
The Secretary of Homeland Security shall provide access to counsel
for all noncitizens detained in--
(1) a facility under the supervision of U.S. Immigration
and Customs Enforcement or U.S. Customs and Border Protection;
or
(2) a private facility that contracts with the Department
of Homeland Security to house, detain, or hold noncitizens.
SEC. 6. REPORT ON ACCESS TO COUNSEL.
(a) Report.--Not later than December 31 of each year, the Secretary
of Health and Human Services, in consultation with the Attorney
General, shall prepare and submit a report to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary of the House
of Representatives regarding the extent to which the Secretary has
provided counsel for unaccompanied children as described in subsection
(b) of section 292 of the Immigration and Nationality Act, as amended
by section 4(c).
(b) Contents.--Each report submitted under paragraph (a) shall
include, for the immediately preceding 1-year period--
(1) the number and percentage of unaccompanied children
described in subsection (b) of section 292 of the Immigration
and Nationality Act, as amended by section 4(c), who were
represented by counsel, including information specifying--
(A) the stage of the legal process at which
representation of each such child commenced;
(B) whether each such child was in government
custody on the date on which such representation
commenced; and
(C) the nationality and ages of such children;
(2) the number and percentage of children who received Know
Your Rights presentations or legal screenings, including the
nationality and ages of such children; and
(3) a description of the mechanisms used under subsection
(b) of section 292 of the Immigration and Nationality Act, as
added by section 4(c), for identifying, recruiting, and
training pro bono counsel to represent unaccompanied children.
SEC. 7. MOTIONS TO REOPEN.
Section 240(c)(7)(C) of the Immigration and Nationality Act (8
U.S.C. 1229a(c)(7)(C)) is amended by adding at the end the following:
``(v) Special rule for unaccompanied
children entitled to appointment of counsel.--
If the Secretary of Health and Human Services
fails to appoint or provide counsel for an
unaccompanied child under section 292(b)--
``(I) the limitations under this
paragraph with respect to the filing of
a motion to reopen by such child shall
not apply; and
``(II) the filing of such a motion
shall stay the removal of the child.''.
SEC. 8. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There is authorized to be appropriated to the
Office of Refugee Resettlement such sums as may be necessary to carry
out this Act.
(b) Budgetary Effects.--The budgetary effects of this Act, for the
purpose of complying with the Statutory Pay-As-You-Go Act of 2010,
shall be determined by reference to the latest statement titled
``Budgetary Effects of PAYGO Legislation'' for this Act, submitted for
printing in the Congressional Record by the Chairman of the Senate
Budget Committee, provided that such statement has been submitted prior
to the vote on passage.
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