[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3522 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 3522

 To protect children affected by immigration enforcement actions, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 22, 2010

 Mr. Franken (for himself, Mr. Kohl, Mr. Menendez, Ms. Klobuchar, Mr. 
  Feingold, Mr. Durbin, and Mrs. Feinstein) introduced the following 
    bill; which was read twice and referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
 To protect children affected by immigration enforcement actions, 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 ``Humane Enforcement and Legal 
Protections for Separated Children Act'' or the ``HELP Separated 
Children Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Apprehension.--The term ``apprehension'' means the 
        detention, arrest, or custody by officials of the Department of 
        Homeland Security or cooperating entities.
            (2) Child.--The term ``child'' has the meaning given to the 
        term in section 101(b)(1) of the Immigration and Nationality 
        Act (8 U.S.C. 1101(b)(1)).
            (3) Child welfare agency.--The term ``child welfare 
        agency'' means the State or local agency responsible for child 
        welfare services under subtitles B and E of title IV of the 
        Social Security Act (42 U.S.C. 601 et seq.).
            (4) Cooperating entity.--The term ``cooperating entity'' 
        means a State or local entity acting under agreement with, or 
        at the request of, the Department of Homeland Security.
            (5) Detention facility.--The term ``detention facility'' 
        means a Federal, State, or local government facility, or a 
        privately owned and operated facility, that is used to hold 
        individuals suspected or found to be in violation of the 
        Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
            (6) Immigration enforcement action.--The term ``immigration 
        enforcement action'' means the apprehension of, detention of, 
        or request for or issuance of a detainer for, 1 or more 
        individuals for suspected or confirmed violations of the 
        Immigration and Nationality Act (8 U.S.C. 1101 et seq.) by the 
        Department of Homeland Security or cooperating entities.
            (7) Local education agency.--The term ``local education 
        agency'' has the meaning given to the term in section 9101 of 
        the Elementary and Secondary Education Act of 1965 (20 U.S.C. 
        7801).
            (8) NGO.--The term ``NGO'' means a nongovernmental 
        organization that provides social services or humanitarian 
        assistance to the immigrant community.

SEC. 3. APPREHENSION PROCEDURES FOR IMMIGRATION ENFORCEMENT-RELATED 
              ACTIVITIES.

    (a) Notification.--
            (1) Advance notification.--Subject to paragraph (2), when 
        conducting any immigration enforcement action, the Department 
        of Homeland Security and cooperating entities shall notify the 
        Governor of the State, the local child welfare agency, and 
        relevant State and local law enforcement before commencing the 
        action, or, if advance notification is not possible, 
        immediately after commencing such action, of--
                    (A) the approximate number of individuals to be 
                targeted in the immigration enforcement action; and
                    (B) the primary language or languages believed to 
                be spoken by individuals at the targeted site.
            (2) Hours of notification.--Whenever possible, advance 
        notification should occur during business hours and allow the 
        notified entities sufficient time to identify resources to 
        conduct the interviews described in subsection (b)(1).
            (3) Other notification.--When conducting any immigration 
        action, the Department of Homeland Security and cooperating 
        entities shall notify the relevant local education agency and 
        local NGOs of the information described in paragraph (1) 
        immediately after commencing the action.
    (b) Apprehension Procedures.--In any immigration enforcement 
action, the Department of Homeland Security and cooperating entities 
shall--
            (1) as soon as possible and not later than 6 hours after an 
        immigration enforcement action, provide licensed social workers 
        or case managers employed or contracted by the child welfare 
        agency or local NGOs with confidential access to screen and 
        interview individuals apprehended in such immigration 
        enforcement action to assist the Department of Homeland 
        Security or cooperating entity in determining if such 
        individuals are parents, legal guardians, or primary caregivers 
        of a child in the United States;
            (2) as soon as possible and not later than 8 hours after an 
        immigration enforcement action, provide any apprehended 
        individual believed to be a parent, legal guardian, or primary 
        caregiver of a child in the United States with--
                    (A) free, confidential telephone calls, including 
                calls to child welfare agencies, attorneys, and legal 
                services providers, to arrange for the care of children 
                or wards, unless the Department of Homeland Security 
                has reasonable grounds to believe that providing 
                confidential phone calls to the individual would 
                endanger public safety or national security; and
                    (B) contact information for--
                            (i) child welfare agencies in all 50 
                        States, the District of Columbia, all United 
                        States territories, counties, and local 
                        jurisdictions; and
                            (ii) attorneys and legal service providers 
                        capable of providing free legal advice or free 
                        legal representation regarding child welfare, 
                        child custody determinations, and immigration 
                        matters;
            (3) ensure that personnel of the Department of Homeland 
        Security and cooperating entities do not--
                    (A) interview individuals in the immediate presence 
                of children; or
                    (B) compel or request children to translate for 
                interviews of other individuals who are encountered as 
                part of an immigration enforcement action; and
            (4) ensure that any parent, legal guardian, or primary 
        caregiver of a child in the United States--
                    (A) receives due consideration of the best 
                interests of his or her children or wards in any 
                decision or action relating to his or her detention, 
                release, or transfer between detention facilities; and
                    (B) is not transferred from his or her initial 
                detention facility or to the custody of the Department 
                of Homeland Security until the individual--
                            (i) has made arrangements for the care of 
                        his or her children or wards; or
                            (ii) if such arrangements are impossible, 
                        is informed of the care arrangements made for 
                        the children and of a means to maintain 
                        communication with the children.
    (c) Nondisclosure and Retention of Information About Apprehended 
Individuals and Their Children.--
            (1) In general.--Information collected by child welfare 
        agencies and NGOs in the course of the screenings and 
        interviews described in subsection (b)(1) about an individual 
        apprehended in an immigration enforcement action may not be 
        disclosed to Federal, State, or local government entities or to 
        any person, except pursuant to written authorization from the 
        individual or his or her legal counsel.
            (2) Child welfare agency or ngo recommendation.--
        Notwithstanding paragraph (1), a child welfare agency or NGO 
        may--
                    (A) submit a recommendation to the Department of 
                Homeland Security or cooperating entities regarding 
                whether an apprehended individual is a parent, legal 
                guardian, or primary caregiver who is eligible for the 
                protections provided under this Act; and
                    (B) disclose information that is necessary to 
                protect the safety of the child, to allow for the 
                application of subsection (b)(4)(A), or to prevent 
                reasonably certain death or substantial bodily harm.

SEC. 4. ACCESS TO CHILDREN, LOCAL AND STATE COURTS, CHILD WELFARE 
              AGENCIES, AND CONSULAR OFFICIALS.

    (a) In General.--The Secretary of Homeland Security shall ensure 
that all detention facilities operated by or under agreement with the 
Department of Homeland Security implement procedures to ensure that the 
best interest of the child, including the best outcome for the family 
of the child, can be considered in any decision and action relating to 
the custody of children whose parent, legal guardian, or primary 
caregiver is detained as the result of an immigration enforcement 
action.
    (b) Access to Children, State and Local Courts, Child Welfare 
Agencies, and Consular Officials.--At all detention facilities operated 
by, or under agreement with, the Department of Homeland Security, the 
Secretary of Homeland Security shall--
            (1) ensure that individuals who are detained by reason of 
        their immigration status may receive the screenings and 
        interviews described in section 3(b)(1) not later than 6 hours 
        after their arrival at the detention facility;
            (2) ensure that individuals who are detained by reason of 
        their immigration status and are believed to be parents, legal 
        guardians, or primary caregivers of children in the United 
        States are--
                    (A) permitted daily phone calls and regular contact 
                visits with their children or wards;
                    (B) able to participate fully, and to the extent 
                possible in-person, in all family court proceedings and 
                any other proceeding impacting upon custody of their 
                children or wards;
                    (C) able to fully comply with all family court or 
                child welfare agency orders impacting upon custody of 
                their children or wards;
                    (D) provided with contact information for family 
                courts in all 50 States, the District of Columbia, all 
                United States territories, counties, and local 
                jurisdictions;
                    (E) granted free and confidential telephone calls 
                to child welfare agencies and family courts;
                    (F) granted free and confidential telephone calls 
                and confidential in-person visits with attorneys, legal 
                representatives, and consular officials;
                    (G) provided United States passport applications 
                for the purpose of obtaining travel documents for their 
                children or wards;
                    (H) granted adequate time before removal to obtain 
                passports and other necessary travel documents on 
                behalf of their children or wards if such children or 
                wards will accompany them on their return to their 
                country of origin or join them in their country of 
                origin; and
                    (I) provided with the access necessary to obtain 
                birth records or other documents required to obtain 
                passports for their children or wards; and
            (3) facilitate the ability of detained parents, legal 
        guardians, and primary caregivers to share information 
        regarding travel arrangements with their children or wards, 
        child welfare agencies, or other caregivers well in advance of 
        the detained individual's departure from the United States.

SEC. 5. MEMORANDA OF UNDERSTANDING.

    The Secretary of Homeland Security shall develop and implement 
memoranda of understanding or protocols with child welfare agencies and 
NGOs regarding the best ways to cooperate and facilitate ongoing 
communication between all relevant entities in cases involving a child 
whose parent, legal guardian, or primary caregiver has been apprehended 
or detained in an immigration enforcement action to protect the best 
interests of the child and the best outcome for the family of the 
child.

SEC. 6. MANDATORY TRAINING.

    The Secretary of Homeland Security, in consultation with the 
Secretary of Health and Human Services and independent child welfare 
experts, shall require and provide in-person training on the 
protections required under sections 3 and 4 to all personnel of the 
Department of Homeland Security and of States and local entities acting 
under agreement with the Department of Homeland Security who regularly 
come into contact with children or parents in the course of conducting 
immigration enforcement actions.

SEC. 7. RULEMAKING.

    Not later than 120 days after the date of the enactment of this 
Act, the Secretary of Homeland Security shall promulgate regulations to 
implement this Act.

SEC. 8. SEVERABILITY.

    If any provision of this Act or amendment made by this Act, or the 
application of a provision or amendment to any person or circumstance, 
is held to be unconstitutional, the remainder of this Act and 
amendments made by this Act, and the application of the provisions and 
amendment to any person or circumstance, shall not be affected by the 
holding.
                                 <all>