Short title

This Act may be cited as the

Humane Enforcement and Legal Protections for Separated Children Act

or the

HELP Separated Children Act

Definitions

For the purposes of this Act: (1)

Apprehension

The term apprehension, in the context of an immigration enforcement-related activity, means government detention, arrest, or custody, or any significant deprivation of an individual’s freedom of action by government officials or entities acting under agreement with the Department of Homeland Security for suspicion of violations under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.). (2)

Immigration enforcement-related activity

The term immigration enforcement-related activity means the questioning of, apprehension of, detention of, or request for or issuance of a detainer for one 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. (3)

SSA

The term SSA means the appropriate State or local social service agency, including nongovernmental organizations, child welfare agencies, child protective service agencies, school and head start administrators, legal service providers, and hospitals.

Apprehension procedures for immigration enforcement-related activities

(a)

In general

Any immigration enforcement-related activity engaged in by the Department of Homeland Security or by other entities under agreement with the Department of Homeland Security for alleged violations under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), which results in the apprehension of at least one alien shall be carried out in accordance with the procedures described in this section. (b)

Apprehension procedures

The Secretary of Homeland Security and entities under agreement with the Department of Homeland Security shall— (1)conduct an initial review of each individual apprehended in an immigration enforcement-related activity to ascertain whether such individual may be a United States citizen, a lawful permanent resident of the United States, or an alien lawfully present in the United States; (2)if an individual claims to be a United States citizen, a lawful permanent resident of the United States, or an alien lawfully present in the United States, ensure that personnel of the Department of Homeland Security investigate the individual’s claims and consider the individual for release under section 4(c); (3)notify SSAs of immigration enforcement-related activity not later than 24 hours before the commencement of such activity, specifically notifying the SSAs of— (A)the specific area of the State that will be affected; and (B)the languages that may be spoken by individuals at the targeted site; (4)if such immigration enforcement-related activities cannot be planned more than 24 hours in advance, notify SSAs in a timely fashion before the activity commences or, if advance notification is not possible, immediately following the commencement of such activity; (5)provide licensed social workers or case managers employed or contracted by the SSAs with ongoing confidential access to each individual apprehended by the Department of Homeland Security or any entity operating under agreement with the Department of Homeland Security within six hours of the individual’s apprehension— (A)to determine through screening and interviewing if such individual is a member of a vulnerable population as described in section 4(b) or for other humanitarian concerns; and (B)to offer confidential psychosocial and mental health services to children and family members of such individual at the time of apprehension; (6)notify local law enforcement of the specific area of the State that will be affected by such immigration enforcement-related activity not later than 24 hours before the commencement of such activity or, if such immigration enforcement-related activity cannot be planned more than 24 hours in advance, notify local law enforcement in a timely fashion before such activity commences, or if advance notification is not possible, immediately following the commencement of such activity; (7)coordinate with qualified medical personnel within six hours of the apprehension of an individual to— (A)conduct medical screenings of such individual; and (B)identify and report any medical or other issues that might necessitate release as a member of a vulnerable population; (8)require personnel of the Department of Homeland Security and any entity operating under agreement with the Department of Homeland Security to avoid the apprehension of persons on the premises or in the immediate vicinity of day care centers, head start centers, schools, school bus stops, recreation centers, legal service providers, courts, funeral homes, cemeteries, colleges, victim services agencies, social service agencies, hospitals, health care clinics, community centers, and places of worship; (9)before transferring any individual apprehended by the Department of Homeland Security or any entity operating under agreement with the Department of Homeland Security to a detention facility or outside the region where apprehension took place— (A)determine, based on all information available to the Department of Homeland Security, entities operating under agreement with the Department of Homeland Security, and the recommendations made by SSAs and medical personnel, whether such individual is a member of a vulnerable population as described in section 4(b) or should be released in accordance with section 4(c); and (B)ensure that such individual is not transferred from his or her initial detention facility or to the custody of the Secretary of Homeland Security until such individual— (i)has made arrangements for the care of the individual’s children or wards; or (ii)if such arrangements are impossible, is informed of the care arrangements made for such children and a means to maintain communication with such children; (10)provide and advertise in the mainstream and foreign language media and on the Web site of the Department of Homeland Security a toll-free number through which family members of individuals apprehended as a result of an immigration enforcement-related activity may report information relevant to the release of such individuals, including whether such individuals are members of a vulnerable population, which will be conveyed to the appropriate Department of Homeland Security official and applicable SSA, and through which State child welfare service providers, family members, and legal counsel representing individuals who are apprehended may obtain information about such individuals, including their location, in English and in the majority language of such individuals; (11)if there is reason to believe that an individual who is apprehended is a parent, legal guardian, or primary caregiver relative of a dependent child in the United States, provide such parent, legal guardian, or primary caregiver relative with— (A)confidential and toll-free telephone calls to arrange for care of dependent children within 2 hours of screening; (B)information, including contact details, for legal service providers that can offer free legal advice regarding child welfare and custody determinations; and (C)information, including contact information, on multiple State and local child welfare providers; (12)ensure that personnel of the Department of Homeland Security and of entities operating under agreement with the Department do not— (A)interrogate or screen individuals in the immediate presence of children; (B)interrogate, arrest, or detain any child apprehended with his or her parent or parents without the presence or consent of a parent, family member, legal guardian, or legal counsel; or (C)compel or request children to translate for other individuals who are encountered as part of an immigration enforcement-related activity; (13)provide all Department of Homeland Security personnel, personnel from entities under agreement with the Department of Homeland Security participating SSAs, and medical personnel with detailed instructions on what steps to take if they encounter individuals who are a member of a vulnerable population; (14)ensure that the best interests of children are considered in decisions and actions relating to the detention, transfer, or release of any individual apprehended by the Department of Homeland Security, and that there be a preference for family unity whenever appropriate; (15)ensure that not fewer than one independent certified interpreter who is fluent in Spanish or any language other than English spoken by more than 5 percent of the population targeted by an immigration enforcement-related activity is available for in-person translation for every 5 individuals targeted by an immigration enforcement-related activity, and that the Department of Homeland Security and entities operating under agreement with the Department of Homeland Security utilize appropriate translation services where interpreters cannot or have not been retained prior to commencement of an immigration enforcement-related activity; (16)permit nonprofit legal service providers to offer free legal services to individuals subject to an immigration enforcement-related activity at the time of the apprehension of such individuals; and (17)provide a legal orientation presentation for any individual apprehended through an immigration enforcement-related activity through the Legal Orientation Program administered by the Executive Office for Immigration Review. (c)

Nondisclosure and retention of information about apprehended individuals and their children

(1)

In general

Information collected by child welfare agencies and nongovernmental organizations in the course of the screenings and interviews described in subsection (b)(5) 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 nongovernmental organization recommendation

Notwithstanding paragraph (1), a child welfare agency or nongovernmental organization may— (A)submit a recommendation to the Secretary of the Department of Homeland Security or a cooperating entity regarding whether an apprehended individual is a parent, legal guardian, or primary caregiver relative 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 paragraphs (9)(B) and (14) of subsection (b), or to prevent reasonably certain death or substantial bodily harm.

Basic protections for vulnerable populations

(a)

In general

Not later than 48 hours after the commencement of an immigration enforcement-related activity, the Department of Homeland Security shall, based on all information available to the Department of Homeland Security, entities operating under agreement with the Department of Homeland Security, and the recommendations made by SSAs and medical personnel, determine if each individual apprehended through such activity belongs to any of the groups listed in subsection (b). Information regarding vulnerable groups and eligibility for potential release shall be posted prominently in detention facilities where detainees and visitors can access the information and shall be included in the detainee handbook. (b)

Vulnerable population groups

An individual is eligible for release under subsection (c), or a decision not to detain, if the individual belongs to any of the following groups: (1)Individuals who have serious medical or mental health needs or a disability. (2)Pregnant or nursing women. (3)Individuals who are apprehended with one or more of their children, and their children. (4)Sole custodial parents or sole legal guardians of children, or individuals who have family members who are ill or otherwise require the assistance of a caregiver. (5)Children (as defined by section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1))). (6)Individuals who are over 65 years of age. (7)Victims of abuse, violence, crime, or human trafficking. (8)Individuals who have been referred for a credible fear interview, a reasonable fear interview, or an asylum hearing. (9)Individuals who have applied or intend to apply for asylum, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on December 10, 1984. (10)Individuals who have a non-frivolous claim to United States citizenship, lawful permanent resident status, or lawful status in the United States. (11)Individuals who are eligible for relief under any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.). (12)Any other group designated in regulations or guidance promulgated by the Secretary of Homeland Security. (c)

Eligibility for release

(1)

In general

Not later than 72 hours after the apprehension of an individual described in subsection (b) by the Department of Homeland Security or any entities operating under agreement with the Department of Homeland Security, he or she shall be released on his or her own recognizance, parole, on a reasonable bond, or into a community-based non-custodial alternatives to detention program and shall not be subject to electronic monitoring, unless the Department demonstrates— (A)the alien is subject to mandatory detention under section 235(b)(1)(B)(iii)(IV), 236(c), or 236A of the Immigration and Nationality Act (8 U.S.C. 1225(1)(B)(iii)(IV), 1226(c), or 1226a); (B)the alien poses a danger to others or is a risk to national security; or (C)the alien is a flight risk and any risk of flight cannot be mitigated by supervision or bond. (2)

Alternatives to detention

If an alien is determined not to meet the requirements for release on recognizance, bond, or parole, or subsequently does not meet the requirements for non-custodial alternatives to detention programs, the alien may be considered for placement in alternatives to detention programs that maintain custody over the alien, including programs that use electronic ankle devices or heightened supervision and monitoring procedures. The Secretary of Homeland Security shall make an individualized determination in each alien’s case about the use of electronic monitoring and shall review such determination on a monthly basis. Aliens who would otherwise be subject to detention including under section 236(c) of the Immigration and Nationality Act (8 U.S.C. 1226(c)) may be placed in electronic monitoring or other secure custodial alternatives to detention that maintain custody over the alien. (3)

Written decision

Each decision made under this subsection shall specify in writing the reasons for such decision and be served upon the detained individual in his or her native language not later than 72 hours after the start of detention, or, in the case of an individual subject to section 235, 238, or 241(a)(5) of the Immigration and Nationality Act, not later than 72 hours after a positive credible or reasonable fear determination. Each decision made under this section is subject to redetermination at any time by an immigration judge.

Custody determination

(a)

Amendment

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended— (1)by redesignating subsection (e) as subsection (h); (2)by redesignating subsections (b), (c), and (d) as subsections (c), (d), and (e), respectively; and (3)by inserting before subsection (h), as redesignated, the following:

(g)

Right To access counsel

An individual who has been detained under this section may be represented, at no expense to the Federal Government, by counsel of the individual’s choosing while being subject to any immigration enforcement-related activity, including— (1)interviews; (2)processing appointments; (3)booking or intake questions; (4)hearings; and (5)any proceeding which may result in a conclusion that the individual will be detained or removed from the United States.

(b)

Notice

(1)

Amendment

Section 236 of the Immigration and Nationality Act, as amended by subsection (a), is further amended by inserting before subsection (g) the following:

(f)

Notice and charges

(1)

Notice

The Secretary of Homeland Security shall, for each individual detained under this section— (A)consider whether the individual warrants a favorable exercise of prosecutorial discretion; (B)file a notice to appear or other relevant charging document with the immigration court closest to the location where the apprehension of such individual occurred; and (C)serve such notice on such individual not later than 48 hours after the commencement of detention. (2)

Custody determination

Any individual who is detained under this section for more than 48 hours shall be brought before an immigration judge for a custody determination not later than 72 hours after the commencement of such detention unless the individual waives such right in accordance with paragraph (3). (3)

Waiver

The requirements under this subsection may be waived for 7 days if the individual— (A)enters into a written agreement with the Department of Homeland Security to waive such requirement; and (B)is eligible for immigration benefits or demonstrates eligibility for a defense against removal.

(2)

Applicability of other law

Nothing in 236(f) of the Immigration and Nationality Act, as added by paragraph (1), may be construed to repeal section 236A of such Act (8 U.S.C. 1226a).

Child welfare services for children separated from parents detained or removed from the United States for immigration violations

(a)

State plan requirements

Section 471(a) of the Social Security Act (42 U.S.C. 671(a)) is amended— (1)by striking and at the end of paragraph (32); (2)by striking the period at the end of paragraph (33) and inserting ; and; and (3)by adding at the end the following:

(34)provides that the State shall— (A)create and implement protocols to provide guidance on how all employees of State agencies providing services to children under the State plan should handle cases of separated children that take into account the best interest of the child, including a preference for family unity whenever appropriate; (B)develop and implement memoranda of understanding or protocols with Federal, State, and local government agencies to facilitate communication between such agencies and— (i)each separated child; (ii)a parent, guardian, or relative referred to in section 475(9)(B); (iii)family members of such child; (iv)family courts; (v)providers of services to such child under the State plan; (vi)providers of long-term care to such child; and (vii)legal representatives of such child or of such a parent, guardian, or relative; (C)develop and implement joint protocols and training with law enforcement agencies to minimize the trauma to a child, at the time of apprehension of a parent, legal guardian, or primary caretaker relative of such child, after which such child will become a separated child, including protocols and training for conducting such apprehensions in the presence of such child and ensuring appropriate and prompt care arrangements for such child after apprehension occurs; (D)ensure that the case manager for a separated child is capable of communicating in the native language of such child and of the family of such child, or an interpreter who is so capable is provided to communicate with such child and the family of such child at no cost to the child or the family of such child; (E)require that, in all decisions and actions relating to the care, custody, and placement of a separated child, the best interest of such child, including a preference for family unity, be considered, and ensure that such decisions are based on clearly articulated factors that do not include predictions or conclusions about immigration status or pending Federal immigration proceedings; (F)coordinate with the Department of Homeland Security to ensure that parents who wish for their child to accompany them to their country of origin are given adequate time to obtain a passport and visa, collect all relevant vital documents such as birth certificate, health, and educational records, and other information; (G)preserve, to the greatest extent possible, the privacy and confidentiality of all information gathered in the course of administering the care, custody, and placement of, and follow-up services provided to, a separated child, consistent with the best interest of such child, by not disclosing such information to other government agencies or persons (other than a parent, guardian, or relative or such child), except that the head of the State agency may disclose such information— (i)(I)when authorized to do so by the child (if the child has attained 18 years of age) if the disclosure is consistent with the best interest of the child; or (II)to a law enforcement agency if the disclosure would prevent imminent and serious harm to another individual; and (ii)if such information is shared, all disclosures shall be duly recorded in writing and placed in the file of the child; and (H)not less frequently than annually, compile, update, and publish a list of entities in the State who are qualified to provide guardian and legal representation services for a separated child in a language such child can read and understand.

(b)

Additional information To be included in case plan

Section 475(1) of such Act (42 U.S.C. 675(1)) is amended by adding at the end the following:

(H)In the case of a separated child with respect to whom the State plan requires the State to provide services pursuant to section 471(a)(34)— (i)the location of the parent, guardian, or relative referred to in paragraph (9)(B) of this subsection from whom the child has been separated; and (ii)a written record of each disclosure to a government agency or person (other than such a parent, guardian, or relative) of information gathered in the course of tracking the care, custody, and placement of, and follow-up services provided to, the child.

(c)

Separated child defined

Section 475 of such Act (42 U.S.C. 675) is amended by adding at the end the following:

(9)The term separated child means an individual who— (A)is a citizen or lawful permanent resident of, or an alien lawfully present in, the United States; (B)has a parent, legal guardian, or primary caregiver relative who has been detained by a Federal, State, or local law enforcement agency in the enforcement of an immigration law, or removed from the United States as a result of a violation of such a law; and (C)is in foster care under the responsibility of a State.

(d)

Effective date

The amendments made by this section shall take effect on the 1st day of the 1st calendar quarter that begins after the 1-year period that begins with the date of the enactment of this Act.

Report on protections for vulnerable populations impacted by immigration enforcement activities

(a)

Requirement for reports

Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Secretary of Homeland Security shall submit a report to Congress that describes the impact of immigration enforcement activities and fugitive operations on United States citizens, lawful permanent residents, individuals otherwise lawfully present in the United States, and, where possible, undocumented aliens present in the United States. (b)

Content

The report submitted under subsection (a) shall include an assessment of— (1)the number of individuals apprehended during immigration enforcement-related activities who are children, United States citizens, lawful permanent residents, or lawfully present non-citizens; (2)immigration enforcement-related activities at homes, schools, school bus stops, day care centers, colleges, places of worship, hospitals, health care clinics, funeral homes, cemeteries, victim services agencies, social services agencies, head start centers, recreation centers, legal service providers, courts, and community centers; (3)apprehensions, detentions, and removals of sole caregivers, primary breadwinners, pregnant and nursing mothers, and other vulnerable groups during an immigration enforcement-related activity; (4)the extent to which the Department of Homeland Security cooperates and coordinates with State and local law enforcement during immigration enforcement-related activities; (5)the number of immigration enforcement-related apprehensions resulting from cooperation with State and local law enforcement; (6)whether apprehended individuals are provided access to a telephone; (7)how quickly apprehended individuals are provided access to a telephone; (8)the manner through which family members of the target population of the immigration enforcement-related activity are notified of the detention of a family member; (9)the number of parents, legal guardians, or primary caregivers of children removed from the United States; (10)the number of parents, legal guardians, or primary caregivers of children removed from the United States whose children accompany or join; (11)the number of parents, legal guardians, or primary caregivers of children removed from the United States without their children; (12)the number of occasions on which both parents of a particular child are removed from the United States without such child; (13)the length of time that parents, legal guardians, or primary caregivers of children have been present in the United States prior to removal from the United Sates; (14)the number of United States citizen children that remain in the United States after the removal of a parent, guardian, or caregiver; (15)the number of apprehended individuals who are determined to be part of a vulnerable population released within the time limit specified under section 4(c); (16)the length of time between when an individual is determined to be part of a vulnerable population and when that individual is released under section 4(c); (17)the methodology of the Department of Homeland Security for notifying agents and entities under agreement with the Department of Homeland Security about standards regarding enforcement actions concerning vulnerable populations and holding such agents and entities accountable when such standards are violated; (18)the number of officials of the Department of Homeland Security disciplined for violations during apprehensions and in making detention decisions; (19)transfers of immigrants during the course of an immigration enforcement activity, including whether such immigrants— (A)had access to legal counsel before being transferred; (B)received notice of an impending transfer; and (C)were evaluated for vulnerability under section 3(b)(9) before being transferred; (20)apprehension procedures for immigration enforcement-related activities, and compliance with screening procedures for vulnerable populations; (21)recommendations for improving immigration enforcement-related activities and fugitive operations by reducing the negative impact on children and vulnerable populations; and (22)alternatives to detention programs, including the types of programs used, number of individuals placed in such programs, reasons for not placing immigrants that qualify as a member of a vulnerable population as defined in section 4(b) in such programs, percentage of cases in which adjustment of immigration status is granted, percentage of cases in which removal is undertaken, and frequency of absconding.

Vulnerable population and child welfare training for immigration enforcement officers

(a)

Mandatory training

(1)

In general

The Secretary of Homeland Security, in consultation with the Secretary of Health and Human Services and independent child welfare experts, shall mandate live specialized training in all legal authorities, policies, and procedures pertaining to the humanitarian and due process protections for these vulnerable populations for all Federal personnel, relevant personnel employed by States reimbursed for activities related to care and services for separated children, and State and local personnel and SSA personnel who come into contact with vulnerable populations as defined in section 3(b). (2)

Vulnerable populations

The personnel listed in paragraph (1) shall be trained to work with vulnerable populations, including identifying members of such populations for whom asylum or special juvenile immigrant relief may be appropriate. (3)

Best practices

Participants will be required to undertake periodic and continuing training on best practices and changes in the law, policies, and procedures for these vulnerable populations. (b)

Memoranda of understanding

The Secretary of Homeland Security shall require all law enforcement agencies under agreement with the Department of Homeland Security to establish Memoranda of Understanding with SSAs with respect to the availability of services, as well as the best ways to cooperate and facilitate ongoing communication as it pertains to the humanitarian and due process protections for vulnerable populations as defined in section 4(b).

Access for parents, legal guardians, and, primary caregiver relatives

(a)

In general

The Secretary of the Department of Homeland Security shall ensure that all detention facilities operated by or under agreement with the Department take steps to ensure that the best interest of the child, including a preference for family unity whenever appropriate, can be considered in decisions and actions relating to the custody of children whose parent, legal guardian, or primary caregiver relative is detained by reason of immigration status. (b)

Training

The Secretary of Homeland Security, in consultation with the Department of Health and Human Services, the Department of Justice, the Department of State, and independent family law experts, shall mandate live, specialized training of all personnel at detention facilities operated by the Department of Homeland Security or under agreement with the Department of Homeland Security in all legal authorities, policies, and procedures related to ensuring that parents, legal guardians, and primary caregiver relatives of children have regular, ongoing and in-person access to children, State family courts, consular officers, and staff of State social service agencies responsible for administering child welfare programs. Such personnel shall be required to undertake periodic and continuing training on best practices and changes in relevant law, policies, and procedures pertaining to the preservation of family unity. (c)

Access to children, local and state courts, child protective services, and consular officials

The Secretary of Homeland Security— (1)shall ensure that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age— (A)are granted free and confidential phone calls with their children on a daily basis; (B)are permitted regular contact visits with their children; (C)are 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; (D)are able to fully participate in and comply with all family court and child welfare agency orders impacting upon custody of their children; (E)have regular, on-site access to reunification programming including parenting classes; (F)are provided with contact information for child protective services entities and family courts in all fifty States, the District of Columbia, all United States territories, and are granted free, confidential, and unlimited telephone access to child protective services entities and family courts to report child abuse, abandonment, or neglect as often as is necessary to ensure that the best interests of the child, including a preference for family unity where appropriate, can be considered; (G)are granted regular, confidential and in-person access to consular officials; free, unlimited, confidential phone calls to consular officials; and access to United States passport applications for the purpose of obtaining travel documents for their children; and (H)who wish to take their children with them to their country of origin are granted adequate time prior to being removed to obtain a birth certificate and a passport and other relevant documents necessary for children to accompany them on their return to their country of origin or join them in their country of origin; and (2)shall facilitate the ability of detained parents, legal guardians, and primary caregiver relatives to reunify with their children under 18 years of age at the time of removal to their country of origin, including providing information about the travel arrangements of the detained parent, legal guardian, or primary caregiver relative to State social service agencies or other caregivers.

10.

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out this Act.

11.

Regulations

Not later than 6 months after the date of the enactment of this Act, the Secretary shall promulgate regulations to implement this Act, in accordance with the notice and comment requirements under subchapter II of chapter 5 of title 5, United States Code (commonly referred to as the Administrative Procedure Act).