H. R. 9745 (Introduced-in-House)

To require certain protections for any dependent child whose parent is a detained alien, and for other purposes.

Ms. Jayapal (for herself, Ms. Barragán, Mr. Casar, Ms. Chu, Mr. Correa, Ms. Crockett, Mr. Davis of Illinois, Ms. Dexter, Mr. Frost, Mr. García of Illinois, Mr. Goldman of New York, Mr. Johnson of Georgia, Mr. Krishnamoorthi, Ms. Lee of Pennsylvania, Mr. Lieu, Mr. McGovern, Ms. Mejia, Ms. Omar, Mr. Pocan, Ms. Simon, Mr. Smith of Washington, Ms. Tlaib, Mr. Tonko, Ms. Velázquez, Ms. Wasserman Schultz, Mr. DeSaulnier, and Mr. Carson) introduced the following bill; which was referred to the Committee on the Judiciary

To require certain protections for any dependent child whose parent is a detained alien, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

(1) family units should be considered a “humanitarian or significant public benefit” as it relates to the authority of the Secretary of Homeland Security to grant parole under section 212(d)(5) of the Immigration and Nationality Act; and

(2) being an alien parent shall not be considered a negative factor when determining child custody.

(a) Parents.—Not later than 2 hours after taking an alien into custody under the immigration laws (as such term is defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)), and prior to transferring the alien to a detention facility, the Secretary of Homeland Security shall request information from the alien on whether the alien is a covered parent and document the response.

(b) Limitation on detention.—If the Secretary of Homeland Security determines that an alien who is in custody under the immigration laws is a covered parent, the Secretary shall release such alien unless an immigration judge determines that the Secretary has demonstrated, by clear and convincing evidence, that the alien poses an individualized risk to the safety of any other person or the community that cannot be mitigated through placement in a supervised release program.

(c) Safety risks.—In the case that a covered parent poses an individualized risk described in subsection (b), the Secretary of Homeland Security shall determine the least restrictive placement for the individual, including placement in a community-based supervision program under section 236(g) of the Immigration and Nationality Act.

(d) Requirement.—In the case that an alien is in custody under the immigration laws, the Secretary of Homeland Security shall inquire about the parental status, or a change in parental status, of such alien during any interaction relating to the determination of the alien’s immigration status and no less than once each month.

(a) Detained aliens.—Any covered parent in the custody of the Department of Homeland Security shall be allowed to—

(1) make telephone calls, without charge, to arrange for the care of each of their dependent children prior to any transfer, including in preparation for removal;

(3) make daily telephone and video calls to each of their dependent children, without charge.

(b) Limitation on transfers.—The Secretary of Homeland Security may not transfer a covered parent who is detained under the immigration laws to an area of responsibility of U.S. Immigration and Customs Enforcement that is a different area of responsibility than the area in which the covered parent was initially detained or the habitual place of residence of the child of such parent, except in exceptional circumstances or if legally required.

(a) In general.—The Secretary of Homeland Security shall ensure that any covered parent has the opportunity to—

(1) initiate or participate fully and, to the extent practicable, in person in—

(B) any other proceeding that may impact the right of the individual to take custody of their dependent child; and

(2) make confidential telephone calls, without charge, to any legal counsel, relevant child welfare agency or applicable contracted entity or provider, community and family members, or family court as often as necessary to ensure that the best interests of such dependent child, including a preference for family unity whenever appropriate, may be considered in a child welfare agency or family court proceeding;

(3) fully comply with each family court or child welfare agency order impacting the custody of such dependent child;

(4) submit United States passport applications or other relevant travel document applications for the purpose of obtaining travel documents for such dependent child;

(5) have timely and free access to a notary public for purposes of applying for a passport for such dependent child or executing guardianship or other agreements to ensure the safety of such dependent child;

(6) have adequate time and opportunity before removal to obtain passports, apostilled birth certificates, travel documents, medical records, educational records, and other necessary records on behalf of such dependent child if such child will accompany the individual to the country of removal or eventually join the individual in such country;

(7) have adequate time and access to any documents in the possession of the Secretary of Homeland Security that are necessary to make arrangements for the dependent child’s care, travel, or safety, including access to any identity document and passport of the covered parent;

(8) have adequate time and notice regarding their dependent child’s travel arrangements with respect to removal, including the time of travel, reporting location, manner of transportation, and who is facilitating such travel; and

(9) share information regarding such travel arrangements with his or her legal counsel, consulate, dependent child, child welfare agencies, or other caregivers before the alien departs the United States.

(b) Immigration court proceedings.—During a proceeding before an immigration court the immigration judge shall, as the judge determines necessary, appoint counsel to a covered parent, at the expense of the Government, during family integrity custody review proceedings.

If a dependent child is physically separated from a covered parent as a result of such parent’s detention under the immigration laws, and a State court has not made a determination that the parental rights of such parent have been terminated, there is a presumption that—

(2) such separation does not constitute an affirmative determination of abandonment, abuse, or neglect under Federal or State law.

(a) Request for removal with dependent child.—The Secretary of Homeland Security shall provide oral and written notice to each covered parent who is subject to a final order of removal, in each covered parent’s preferred language, that the alien may, in writing—

(1) request removal from the United States with, and to the same country as, their dependent children; and

(b) Rule of construction.—Nothing in this section may be construed to give effect to any request under this section made under duress or any other coercive condition.

(a) Establishment.—There is established within the headquarters of U.S. Immigration and Customs Enforcement an Office of Detained Parent Coordination, headed by the National Coordinator.

(b) Responsibilities.—The National Coordinator shall be responsible for the following:

(1) Serving as the primary point of contact and subject-matter expert for Enforcement and Removal Operations personnel of U.S. Immigration and Customs Enforcement regarding State child welfare or guardianship issues related to detained aliens.

(2) Conducting data collection and analysis, including evaluating, on an ongoing basis, information collected from a U.S. Immigration and Customs Enforcement records system.

(3) Assigning and maintaining field points of contact for matters pertaining to detained covered parents.

(4) Providing guidance to each field point of contact assigned under paragraph (3) on—

(A) participation in family court, child welfare, or guardianship proceedings for detained covered parents;

(B) communicate with family courts, child welfare personnel, and family members or friends to arrange guardianship or care, in accordance with sections 4 and 5;

(D) access necessary services to meet case plans, status and permanency goals in child welfare proceedings.

(6) Coordinating with relevant Enforcement and Removal Operations personnel, field office directors, State or local court or child welfare personnel, legal counsel representing covered parents, and consular officials to facilitate the timely response to any issue or complaint received by U.S. Immigration and Customs Enforcement regarding the parental or guardianship interests of a detained alien.

(7) Establishing and maintaining a national, publicly available designated mechanism through which family courts, child welfare agencies, legal counsel, and other stakeholders may provide the Secretary of Homeland Security with notice of family court proceedings, child welfare matters, case planning activities, or other proceedings affecting a covered parent's custodial rights or relationship with their dependent child, for the purpose of facilitating the parent's timely notice of and meaningful participation in such proceedings.

(8) Facilitating the removal of covered parents with each dependent child, as requested.

(10) Coordinating with Federal and State or local child welfare agencies, caretakers, foreign governments, or other appropriate stakeholders.

(11) Establishing travel procedures (that do not use contractors) for a dependent child to travel and be conveyed safely to the detention facility in which the covered parent is located for reunification and travel prior to removal.

(c) Training.—The Secretary of Homeland Security, in consultation with independent child welfare and family law experts, shall develop and provide training on the protections required under this Act to each employee of the Department of Homeland Security, including detention facility staff who interact with covered parents.

(d) Staff.—The Office of Detained Parent Coordination shall be staffed by not less than 8 full-time employees.

(e) Qualification of National Coordinator.—The National Coordinator shall have not less than 10 years of experience in child welfare, family court matters, or guardianship matters.

(f) Online detainee locator system.—The Secretary of Homeland Security shall ensure that the online detainee locator system maintained by the Department, or any successor system, is updated to include information on whether aliens were referred by State and local law enforcement agencies prior to transfer into the custody of U.S. Immigration and Customs Enforcement.

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended by adding at the end the following:

“(g) Community-Based case management program.—The Secretary of Homeland Security shall establish, outside of the purview of U.S. Immigration and Customs Enforcement, a community-based case management program that—

“(2) offers a continuum of community-based support options and services, including—

(a) In general.—On a quarterly basis, the Secretary of Homeland shall publish on the Department of Homeland Security website—

(B) transferred to the custody of the Department of Homeland Security from a State or local law enforcement agency;

(C) supported by the Secretary to make custody arrangements for each of their dependent children immediately after being taken into custody; and

(D) supported by the Director of U.S. Immigration and Customs Enforcement to make custody arrangements while in U.S. Immigration and Customs Enforcement custody;

(2) the number of such aliens in any ongoing proceeding, disaggregated by type of proceeding including family court, child welfare, or guardianship proceeding;

(3) the number of such aliens with respect to which U.S. Immigration and Customs Enforcement facilitated participation in such proceedings;

(4) the minimum, maximum, average, and median duration for which covered parents who are detained by U.S. Immigration and Customs Enforcement are in the custody;

(5) information on the placement of dependent children whose parent is a detained alien, including placement in foster care; and

(6) the number of dependent children removed with their parent, disaggregated by the citizenship status and age of such children.

(1) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, and every 180 days thereafter, the Secretary of Homeland Security shall submit a report that contains the information collected under subsection (a) for the preceding 180-day period to—

(A) the Committee on the Judiciary, Committee on Homeland Security and Governmental Affairs, and the Committee on Health, Education, Labor, and Pensions of the Senate; and

(B) the Committee on the Judiciary, Committee and Homeland Security, and the Committee on Education and Workforce of the House of Representatives.

(2) INITIAL REPORT.—The initial report submitted under paragraph (1) shall include a detailed summary of the efforts of the Secretary to carry out this Act, including a description of the manner in which the Secretary plans collect and store the data required to be included in each report.

(3) SUBSEQUENT REPORTS.—Each subsequent report submitted under paragraph (1) shall include, for the preceding 180-day period—

(A) the number employees of the Department, coordinating entities, and detention facilities provided annual training under section 8; and

(B) the number of new employees of the Department, coordinating entities, and detention facilities who have been provided an initial training under that section.

(1) the methods for collecting information are consistent from year to year so as to enable the tracking of trends across years; and

(a) In general.—Notwithstanding the immigration laws (as such term is defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)), in the case of a covered parent described in subsection (b), the Secretary of Homeland Security shall—

(1) if the parent desires reunification, facilitate the reunification in the United States of any dependent child with the parent in a community-based setting, at the expense of the Government, as expeditiously as possible, but not later than 2 months after the removal of the covered parent; and

(2) facilitate, at the expense of the Government, the ability of the parent to make necessary arrangements for their dependent child to remain in the United States, including participation in any family court or child welfare proceedings.

(b) Covered parent described.—A covered parent described in this subsection is a covered parent—

(2) with respect to whom the Secretary did not afford the protections required under this Act; and

(3) whose dependent child remained in the United States after the parent’s removal.

Nothing in this Act may be construed to impede, delay, or limit the obligations of the Secretary of Homeland Security, the Attorney General, or the Secretary of Health and Human Services under—

(1) section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232);

(3) the stipulated settlement agreement filed in the United States District Court for the Central District of California on January 17, 1997 (CV 85–10BUR26159 V3Y S.L.C.4544–RJK) (commonly known as the “Flores Settlement Agreement”).

(1) COVERED PARENT.—The term “covered parent” means an alien who is a parent of a dependent child, which child is physically present in the United States.

(2) DEPENDENT CHILD.—The term “dependent child” means an individual who—

(B) is incapable of self-support because of physical, medical, or mental disability.

(A) a biological or adoptive parent, or an adult otherwise recognized by the law of a foreign country as a parent, whose parental rights have not been relinquished or terminated under State law or the law of a foreign country;

(B) a legal guardian of a child under State law or the law of a foreign country; or