[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1399 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1399

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 21, 2011

    Mr. Franken (for himself, Mr. Durbin, Mrs. Gillibrand, and Ms. 
  Klobuchar) 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 or 
        cooperating entities.
            (2) Child.--Except as otherwise specifically provided, 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 the 
        Secretary.
            (5) Department.--The term ``Department'' means the 
        Department of Homeland Security.
            (6) 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.).
            (7) 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 
        Secretary or a cooperating entity.
            (8) Local educational agency.--The term ``local educational 
        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).
            (9) NGO.--The term ``NGO'' means a nongovernmental 
        organization that provides social services or humanitarian 
        assistance to the immigrant community.
            (10) Secretary.--Except as otherwise specifically provided, 
        the term ``Secretary'' means the Secretary of the Department.

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 Secretary 
        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.--To the extent possible, the 
        advance notification required by paragraph (1) 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 Secretary and cooperating entities shall notify the 
        relevant local educational 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 Secretary 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 Secretary 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 Secretary 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 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 Secretary 
                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) 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 Secretary or a 
                cooperating entity 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 shall ensure that all detention 
facilities operated by or under agreement with the Department implement 
procedures to ensure that the best interest of the child, including a 
preference for family unity wherever appropriate, is 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, the Secretary shall--
            (1) prominently post in a manner accessible to detainees 
        and visitors and include in detainee handbooks information on 
        the protections of this Act as well as information on potential 
        eligibility for parole or release;
            (2) 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;
            (3) 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 as often as 
                is necessary to ensure that the best interest of the 
                child, including a preference for family unity whenever 
                appropriate, can be considered;
                    (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
            (4) 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 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, including a preference for family unity 
whenever appropriate.

SEC. 6. MANDATORY TRAINING.

    The Secretary, 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 and of States and local 
entities acting under agreement with the Department 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 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.

SEC. 9. REPORT ON PROTECTIONS FOR CHILDREN IMPACTED BY IMMIGRATION 
              ENFORCEMENT ACTIVITIES.

    (a) Requirement for Report.--Not later than 1 year after the date 
of the enactment of this Act, and annually thereafter, the Secretary 
shall submit to Congress a report that describes the impact of 
immigration enforcement activities on children, including children who 
are citizens of the United States.
    (b) Content.--The report submitted under subsection (a) shall 
include for the previous 1-year period an assessment of--
            (1) the number of individuals removed from the United 
        States who are the parent of a child who is a citizen of the 
        United States;
            (2) the number of occasions in which both parents or the 
        primary caretaker of such a child was removed from the United 
        States;
            (3) the number of children who are citizens of the United 
        States who leave the United States with parents who are 
        removed;
            (4) the number of such children who remained in the United 
        States after the removal of a parent;
            (5) the age of each such child at the time a parent is 
        removed; and
            (6) the number of instances in which such a child whose 
        parent is apprehended, detained, or removed is referred to the 
        local child welfare agency by officers or employees of the 
        Department.
                                 <all>