Sec. 3. Ensuring that families remain together

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An agent or officer of U.S. Customs and Border Protection shall not remove a child from his or her parent or legal guardian at or near a port of entry or within 100 miles of the border of the United States unless one of the following situations has occurred: A State court, authorized under State law— terminates the rights of the parent or legal guardian; determines that it is in the best interests of the child to be removed from the 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 determines that it is in the best interests of the child to be removed from the parent or legal guardian because the child is— in danger of abuse or neglect at the hands of the parent or legal guardian; or a danger to himself or herself or to others. The Chief Patrol Agent or the Area Port Director, in his or her official and undelegated capacity, authorizes separation, on the recommendation by an agent or officer of U.S.

Customs and Border Protection, 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 herself or to others. A Federal 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 promoting compliance with civil immigration law.

The Secretary shall ensure that a separation based on a situation described in paragraph (1)(C)— is documented in writing; and includes— the reason for such separation; and the stated evidence for such separation. 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, on childhood trauma, attachment, and child development, for use by the agents and officers of U.S.

Customs and Border Protection, so as to standardize separations authorized under subsection (a)(1)(C). Not less frequently than annually, the Secretary of Health and Human Services shall— review the guidance developed under paragraph (1); and make recommendations to the Secretary to ensure that such guidance conforms to current evidence and best practices in child welfare, child development, and childhood trauma. The guidance developed under paragraph

(1)shall incorporate the presumptions described in subsection (c). The guidance and training developed under this subsection shall incorporate evidence-based practices. All agents and officers of U.S. Customs and Border Protection, on hire, and annually thereafter, shall complete training on adherence to the guidance developed under this subsection. All Chief Patrol Agents and Area Port Directors, on hire, and annually thereafter, shall complete— training on adherence to the guidance developed under this subsection; and 90 minutes of child welfare practice training that is evidence-based and trauma-informed. The presumptions described in this subsection are the following: There shall be a strong presumption in favor of family unity. To the maximum extent practicable, the Secretary shall ensure that sibling groups remain intact. There is a presumption that detention is not in the best interests of families and children. 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 subsection (a)(1). In developing such 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. The Secretary shall provide each parent or legal guardian who was separated from a child under subsection (a)(1) with written notice of such public guidance. Such public guidance shall be— available in English and Spanish; and at the request of the parent or legal guardian, made available in the language or manner that is understandable by the parent or legal guardian. Not less frequently than monthly, the Secretary shall provide the parent or legal guardian of a child who was separated— 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 immigration status of the child; and any other information about the child, designed to promote and maintain family reunification, as the Secretary determines in his or her discretion. Not later than one 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 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; and any other information, as determined by the Secretary. 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. Nothing in this section may be interpreted to supersede or modify Federal child welfare law, as applicable, including the Adoption and Safe Families Act of 1997 ( Public Law 105–89 ). Nothing in this section may be interpreted to supersede or modify any State child welfare law. The Comptroller General of the United States shall conduct a study on the prosecution of asylum seekers during the ten-year period ending on the date of the enactment of this Act. The study conducted under paragraph

(1)shall include the following: The total number of persons who claimed 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 description of— the amounts spent on prosecuting asylum seekers during such period; the 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 were subject to immigration proceedings. The total number of asylum seekers referred for prosecution who were deported before going through immigration proceedings. Not later than one year after the date of the enactment of this Act, the Comptroller General shall submit a report to Congress that describes the results of the study conducted under paragraph (1). In this section: The terms agent and officer include contractors of the Federal Government. The term committees of jurisdiction means— the Committee on the Judiciary and the Committee on Health, Education, Labor, and Pensions of the Senate ; and the Committee on the Judiciary and the Committee on Education and Labor of the House of Representatives. 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. The term finding means an individualized written assessment or screening by the trained agent or officer that includes a consultation with, and concurrence from, a child welfare specialist, formalized as required under subsection (a)(3) and consistent with subsections (b), (c), and (g). The term Secretary means the Secretary of Homeland Security.

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Pub. L. 105-89

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Sec. 3

Ensuring that families remain together

Pub. L.Pub. L. 105-89

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