1.This Act may be cited as the
Humane Enforcement and Legal
Protections for Separated Children Act
or the
HELP Separated Children
Act
.
2.In this Act:
(1)The term apprehension means
the detention, arrest, or custody by officials of the Department of Homeland
Security or cooperating entities.
(2)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)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)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)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
actionThe 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)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)The term NGO means a
nongovernmental organization that provides social services or humanitarian
assistance to the immigrant community.
3.Apprehension procedures for immigration
enforcement-related activities
(a)
(1)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)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)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)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)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
recommendationNotwithstanding 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.
4.Access to children, local and State courts,
child welfare agencies, and consular officials
(a)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 officialsAt 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.
5.Memoranda of understandingThe 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.
6.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.
7.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.
8.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.