1. Short title
This Act may be cited as the “Protect Asylum Seekers Act”.
Protect Asylum Seekers Act
A BILL
To protect aliens seeking asylum in the United States, and for other purposes.
2. Limitation on prosecution of asylum seekers
Section 275 of the Immigration and Nationality Act (8 U.S.C. 1325) is amended—
in subsection (a), by striking “Any alien” and inserting “Except as provided in subsection (e), any alien”;
in subsection (b), by striking “Any alien” and inserting “Except as provided in subsection (e), any alien”; and
by adding at the end the following:
“(e)
“(1) Subsections (a)(1) and (b) shall not apply in the case of an alien who presents himself to an immigration officer or an asylum officer without unnecessary delay after entering the United States, and indicates an intention to apply for asylum under section 208 or a fear of persecution (as defined in section 235(b)(1)(B)(v)).
“(2) The exception under this subsection applies regardless of whether the alien is found to have a credible fear of persecution, or is granted asylum, except in the case that an asylum officer determines that the alien’s claim for asylum or fear of persecution was fraudulent. In the case that an asylum officer determines that a claim for asylum is fraudulent under this paragraph, the officer shall document such determination, and the reason for such determination, in writing.
“(3) A claim for asylum or a fear of persecution may not be determined to be fraudulent under paragraph (2) on the basis that—
“(A) the alien entered or attempted to enter the United States at any time or place other than as designated by immigration officers;
“(B) the alien’s claim is based on fearing gang violence or domestic violence; or
“(C) the alien entered or attempted to enter the United States with the alien’s child who had not attained the age of 18.”
3. Transfer of asylum seekers to asylum interview locations
An alien who presents himself to an immigration officer or an asylum officer as described in section 275(e)(1) of the Immigration and Nationality Act shall be transferred to a port of entry or place designated for asylum interviews under section 235(b)(1)(B)(i) of that Act to undergo an interview by an asylum officer under such section 235, unless the alien presents himself at such a location.
4. Limitation on the separation of families
In general— An agent or officer of a designated agency may not remove a child from his or her parent or legal guardian if the parent or legal guardian has not been referred for prosecution, unless one of the following has occurred:
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.
An official from the State or county child welfare agency with expertise in child trauma and development makes a 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 himself or others.
The Chief Patrol Agent or the Area Port Director, in their official and undelegated capacity, authorizes separation upon the recommendation by an agent or officer of a designated agency, based on a finding that—
the child is a victim of trafficking or is at significant risk of becoming a victim of trafficking;
there is a strong likelihood that the adult is not the parent or legal guardian of the child; or
the child is in danger of abuse or neglect at the hands of the parent or legal guardian, or is a danger to himself or others.
Prohibition on separation— A designated agency may not remove a child from a parent or legal guardian solely for the policy goal of deterring individuals from migrating to the United States or for the policy goal of promoting compliance with civil immigration laws.
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.
5. Recommendations for separation by agents or officers
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 agents and officers of designated agencies, in order to standardize the implementation of section 4(a)(3).
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.
Requirement— The guidance under subsection (a) shall incorporate the presumptions described in subsection (e).
Additional requirements—
Evidence-based— The guidance and training developed under this section shall incorporate evidence-based practices.
Training required—
All agents and officers of designated agencies, upon hire, and annually thereafter, shall complete training on adherence to the guidance under this section.
All Chief Patrol Agents and Area Port Directors, upon hire, and annually thereafter, shall complete—
training on adherence to the guidance under this section; and
90 minutes of child welfare practice training that is evidence-based and trauma-informed.
Presumptions— The presumptions described in this subsection are the following:
Family unity— There shall be a strong presumption in favor of family unity.
Siblings— To the maximum extent practicable, the Secretary shall ensure that sibling groups remain intact.
Detention— In general, there is a presumption that detention is not in the best interests of families and children.
6. Required policy for locating separated children
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 a parent or legal guardian may locate a child who was separated from the parent or legal guardian under section 3(a). In developing the public guidance, the Secretary shall consult with the Secretary of Health and Human Services, immigrant advocacy organizations, child welfare organizations, and State child welfare agencies.
Written notification— The Secretary shall provide each parent or legal guardian of a child who was separated from the child with written notice of the public guidance to locate the child.
Language access— All guidance shall be available in English and Spanish, and at the request of the parent or legal guardian, in the language or manner that is understandable by the parent or legal guardian.
7. Required information for separated families
Not less frequently than once every month, the Secretary shall provide the parent or legal guardian of a child who was separated from the child the following information, at a minimum:
A status report on the monthly activities of the child.
Information about the education and health of the child, including any medical treatment provided to the child or medical treatment recommended for the child.
Information about changes to the child’s immigration status.
Other information about the child, designed to promote and maintain family reunification, as the Secretary determines in his or her discretion.
8. 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:
The relationship of the adult and the child.
The age and gender of the adult and child.
The length of separation.
Whether the adult was charged with a crime, and if the adult was charged with a crime, the type of crime.
Whether the adult made a claim for asylum, expressed a fear to return, or applied for other immigration relief.
Whether the adult was prosecuted if charged with a crime and the associated outcome of such charges.
The stated reason for, and evidence in support of, the separation.
If the child was part of a sibling group at the time of separation, whether the sibling group has had physical contact and visitation.
Whether the child was rendered an unaccompanied alien child.
Other information in the Secretary’s discretion.
9. 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—
the parental rights remain intact; and
the separation does not constitute an affirmative determination of abuse or neglect under Federal or State law.
10. Clarification of existing law
Federal law— 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).
State law— Nothing in this Act shall be interpreted to supersede or modify State child welfare laws where applicable.
11. GAO report on prosecution of asylum seekers
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, 2020, including—
the total number of persons who claimed a fear of persecution, received a favorable credible fear determination, and were referred for prosecution;
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;
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;
the total number of asylum seekers who were separated from their children as a result of being referred for prosecution;
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;
the total number of asylum seekers who were referred for prosecution and also went through immigration proceedings; and
the total number of asylum seekers referred for prosecution who were deported before going through immigration proceedings.
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). Such report shall not reveal personally identifiable information.
12. Definitions
In this Act:
Agent; officer— The terms agent and officer include contractors of the Federal Government.
Child— The term child means an individual who—
has not reached the age of 18; and
has no permanent immigration status.
Committees of jurisdiction— The term committees of jurisdiction means—
the Committee on the Judiciary, the Committee on Health, Education, Labor, and Pensions, and the Committee on Homeland Security and Governmental Affairs of the Senate; and
the Committee on the Judiciary, the Committee on Energy and Commerce, and the Committee on Oversight and Reform of the House of Representatives.
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 does not include migrating to or crossing the United States border.
Designated agency— The term designated agency means—
the Department of Homeland Security;
the Department of Justice; and
the Department of Health and Human Services.
Finding— The term finding means an individualized written assessment or screening by the trained agent or officer that includes a consultation with a child welfare specialist, formalized as required under section 4(c) and consistent with sections 5 and 9.
Secretary— Unless otherwise specified, the term Secretary means the Secretary of Homeland Security.