H.R. 4371 — Kayla Hamilton Act

This section requires the Director of the Office of Refugee Resettlement to make placement determinations for unaccompanied alien children in federal custody under subsection (b)(1)(C) in accordance with section 235(c)(2) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(c)(2)). (As background, that provision requires such placements in the least restrictive setting appropriate to each child's age and special needs; prioritizes placement with family sponsors, in shelter care, or family foster homes; and considers risks to community safety and child protection.)

This section revises safe and secure placement requirements under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 for unaccompanied alien children (UACs) in HHS custody. (As background, this provision governs post-transfer care of UACs—minors under age 18 arriving without lawful parents or guardians—prioritizing their protection from trafficking, exploitation, and flight during immigration proceedings.) The revision to subsection (c)(2) requires HHS, prior to any placement, to (1) consult with DHS and the Attorney General on court appearance, protection from victimization, and risk assessments (flight risk; danger to self, others, or community; U.S. or foreign criminal history); and (2) for UACs age 12 or older, obtain foreign arrest/charge/conviction records via consulate and screen for gang-related tattoos or markings. It further (1) mandates placement in the least restrictive, best-interest setting but prohibits release on own recognizance; (2) requires secure facilities during immigration proceedings (and removal, if ordered) for UACs age 12 or older deemed a flight risk or danger—including those with gang markings, serious criminal convictions (as defined in INA §101(h)), aggravated felonies (as defined in INA §101(a)(43)), or gang-related arrests/charges/proceedings/convictions; and (3) bars placement with non-U.S. citizens or lawful permanent residents, or any individual (or household member) convicted of specified crimes (e.g., sex offenses, trafficking, child abuse, murder, child pornography offenses under 18 U.S.C. 2252, aggravated felonies, felonies, or crimes punishable by over one year imprisonment, plus any others designated by the Attorney General). The section also amends subsection (c)(3)(A) to make new subparagraph (D) applicable alongside existing subparagraph (B). (Thus, these changes restrict sponsor eligibility and prioritize secure detention for higher-risk UACs to mitigate trafficking, gang involvement, and flight.)

This section establishes a severability clause for the Act, requiring invalid or unenforceable provisions to be construed for maximum lawful effect or, if utterly invalid, severed without affecting remaining provisions or their application to other persons or circumstances.

This section exempts the Secretary of Homeland Security, the Secretary of Health and Human Services, the Secretary of State, and the Attorney General from (1) complying with the Paperwork Reduction Act (chapter 35 of title 44, U.S. Code)—which governs federal information collections—if such compliance would impede immediate implementation of the Act; and (2) promulgating regulations under the Administrative Procedure Act (subchapter II of chapter 5, title 5, U.S. Code)—which generally requires notice-and-comment rulemaking—if such compliance would impede immediate implementation.

This section specifies that the Act and its amendments take effect on the date of enactment. The Act and amendments apply to release and custody determinations for unaccompanied alien children (as defined in section 642(g)(2) of the Homeland Security Act of 2002) that are pending or occur on or after the date of enactment, as well as all release redeterminations.