[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 4389 Introduced in Senate (IS)]
<DOC>
119th CONGRESS
2d Session
S. 4389
To protect children affected by immigration enforcement actions, and
for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 27, 2026
Ms. Smith (for herself, Ms. Baldwin, Mr. Bennet, Mr. Blumenthal, Ms.
Cortez Masto, Ms. Duckworth, Mrs. Gillibrand, Ms. Hirono, Mr. Kaine,
Mr. Kim, Ms. Klobuchar, Mr. Markey, Mrs. Murray, Ms. Rosen, Mr.
Sanders, Ms. Warren, Mr. Welch, and Mr. Van Hollen) 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 ``HELP Separated Children
Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Apprehension.--The term ``apprehension'' means the
detention or arrest by officials of the Department or
cooperating entities.
(2) Child.--The term ``child'' means an individual who is
younger than 18 years of age.
(3) Child welfare agency.--The term ``child welfare
agency'' means a 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 Federal, State or local entity acting under an
agreement with the Secretary relating to immigration detention
and apprehension.
(5) Department.--The term ``Department'' means the
Department of Homeland Security.
(6) Detention facility.--
(A) In general.--The term ``detention facility''
means a Federal, State, or local government facility,
or a privately owned and operated facility, that is
used, in whole or in part, to hold individuals under
the authority of the Director of U.S. Immigration and
Customs Enforcement, including facilities that hold
such individuals under a contract or agreement with the
Director.
(B) Inclusions.--The term ``detention facility''
includes--
(i) any short-term holding facility
operated by U.S. Immigration and Customs
Enforcement or U.S. Customs and Border
Protection that is used to hold individuals for
internal immigration enforcement purposes; and
(ii) any space where an individual or
family unit is held in custody by the
Department.
(7) Immigration enforcement action.--The term ``immigration
enforcement action'' means the apprehension of 1 or more
individuals who the Secretary has reason to believe are
removable under section 237 of the Immigration and Nationality
Act (8 U.S.C. 1227).
(8) Parent.--The term ``parent'' means--
(A) a biological or adoptive parent of a child, 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; and
(C) a kin caregiver who has historically cared for
a child when a parent is not present.
(9) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
SEC. 3. IDENTIFICATION OF PARENTS DETAINED DURING IMMIGRATION
ENFORCEMENT ACTIONS.
The Secretary and any cooperating entity shall--
(1) as soon as practicable but generally not later than 2
hours after an immigration enforcement action occurs, inquire
whether a detained or arrested individual is a parent of a
child in the United States, and document such information; and
(2) generally inquire about any changes to the parental
status of the individual while the individual is in the custody
of the Secretary or the cooperating entity--
(A) at every official interaction with personnel of
a detention facility; and
(B) not less than 10 days before the date on which
the individual is removed from the United States.
SEC. 4. APPREHENSION PROCEDURES FOR IMMIGRATION ENFORCEMENT ACTIONS.
(a) In General.--In any immigration enforcement action, the
Secretary and any cooperating entity shall--
(1) provide each apprehended individual who is a parent of
a child in the United States--
(A) the opportunity to make as many telephone calls
as necessary to arrange for the care of such child in
the absence of the individual; and
(B) with contact information, in the preferred
language of the individual, for--
(i) attorneys and legal service providers
capable of providing free legal advice or
representation regarding child welfare, child
custody determinations, and immigration
matters;
(ii) the consulate of the applicable
foreign country; and
(iii) child welfare agencies and family
courts in the jurisdiction in which any such
child is located;
(2) notify the child welfare agency with jurisdiction over
any such child only if--
(A) the apprehended parent wants the child to
remain in the United States and is unable to make care
arrangements for the child; or
(B) the Department has information specific to any
such child that the child is at imminent risk of
serious harm, and any such information shall be
documented and shared with the apprehended parent;
(3) except in a case of medical necessity or in
extraordinary circumstances, ensure that personnel of the
Department and the cooperating entity do not--
(A) in the presence of any child, make excessive
use of force, including drawing weapons and throwing
individuals to the ground, in the arrest or
apprehension of individuals;
(B) compel or request any child to interpret or
translate in the interview of a parent or of any other
individual encountered during the immigration
enforcement action; or
(C) engage in any deception of a child for purposes
of facilitating or initiating immigrant enforcement
against the child's parents, other family or household
members, or any other individual;
(4) in the case of an apprehended parent whose child is
present during the immigration enforcement action, except in
extraordinary circumstances, ensure that the parent is provided
an opportunity--
(A) to communicate with the child, including
through physical contact;
(B) to reassure the child; and
(C) to share information regarding care
arrangements for the child with any other individual
who is present or who may be reached by telephone while
the apprehended parent is detained; and
(5) ensure that any apprehended individual who is a parent
of a child in the United States--
(A) except in a case of medical necessity or in
extraordinary circumstances--
(i) is not transferred from the location at
which the individual is apprehended until the
individual--
(I) has made arrangements for the
care of such child; or
(II) if such arrangements are
unavailable or the individual is unable
to make such arrangements within 48
hours of the immigration enforcement
action--
(aa) is consulted and
allowed to participate in the
decisionmaking process to
arrange with the Department for
the care arrangements made for
the child; and
(bb) is provided with a
means to maintain communication
with the child; and
(ii) to the extent practicable, is placed
in a detention facility that will facilitate
opportunities for regular visitation with a
child during detention and is proximate to--
(I) the habitual place of residence
of the child; and
(II) the location of the
immigration enforcement action; and
(B) receives due consideration of the best
interests of the child in any decision or action
relating to the individual's detention, release, or
transfer between detention facilities.
(b) Requests to State and Local Entities.--If the Secretary makes a
request to a cooperating entity to hold in custody an individual who
the Secretary has reason to believe is removable under section 237 of
the Immigration and Nationality Act (8 U.S.C. 1227) pending transfer of
such individual to the custody of the Secretary or to a detention
facility, the Secretary shall ensure that the cooperating entity
provides the individual the protections described in paragraphs (1) and
(2) of subsection (a) if such individual is the parent of a child in
the United States.
(c) Protections Against Trafficking Preserved.--Nothing in this
section may be construed to impede, delay, or limit the obligations of
the Secretary, 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);
(2) section 462 of the Homeland Security Act of 2002 (6
U.S.C. 279); or
(3) the Stipulated Settlement Agreement filed in the United
States District Court for the Central District of California on
January 17, 1997 (CV 85-4544-RJK) (commonly known as the
``Flores Settlement Agreement'').
SEC. 5. ACCESS TO CHILDREN, STATE AND LOCAL COURTS, CHILD WELFARE
AGENCIES, AND CONSULAR OFFICIALS.
(a) In General.--At each detention facility, the Secretary shall--
(1) prominently post, in a manner accessible to detainees
and visitors, and include in detainee handbooks--
(A) information regarding the protections under
this Act; and
(B) information regarding potential eligibility for
parole or release;
(2) except in extraordinary circumstances, ensure that each
individual detained by the Department who is a parent of a
child in the United States--
(A) has the opportunity to make free, regular phone
and video calls and contact visits with such child,
ideally in a community or child-friendly setting;
(B) is provided with contact information for child
welfare agencies and family courts in the relevant
jurisdictions;
(C) has the opportunity to participate fully and,
to the extent practicable, in person--
(i) in all family court proceedings;
(ii) in any other proceeding that may
impact the right of the individual to custody
of such child; and
(iii) in case planning activities;
(D) has the opportunity to make free and
confidential telephone calls to legal counsel, relevant
child welfare agencies, and family courts as often as
necessary to ensure that the best interests of such
child, including a preference for family unity whenever
appropriate, may be considered in child welfare agency
or family court proceedings; and
(E) is provided--
(i) the opportunity to fully comply with
all family court or child welfare agency orders
impacting the custody of such child;
(ii) access to United States passport
applications or other relevant travel document
applications for the purpose of obtaining
travel documents for such child;
(iii) timely access to a notary public for
purposes of applying for a passport for such
child or executing guardianship or other
agreements to ensure the safety of such child;
and
(iv) 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 child if
such child will accompany the individual to the
country of origin of the individual or
eventually join the individual in such country;
and
(3) if doing so would not impact public safety or national
security, facilitate the ability of each detained parent to
share information regarding travel arrangements with his or her
counsel, consulate, children, child welfare agencies, or other
caregivers before the parent departs the United States.
(b) Designation of Points of Contact.--For each detention facility
and field office of U.S. Immigration and Customs Enforcement, the
Secretary shall designate a point of contact who shall be responsible
for ensuring that each detained parent of a child who is in the United
States is provided all opportunities necessary to comply with child
welfare case plans and participate in family court proceedings.
(c) Appointment of National Coordinator.--The Secretary shall
appoint a national coordinator who shall--
(1) serve as the primary point of contact and subject-
matter expert for all U.S. Immigration and Customs Enforcement
personnel regarding State child welfare and guardianship issues
for parents subject to immigration enforcement actions;
(2) conduct data collection and analysis with respect to
the parental status of individuals who are in the custody of
the Secretary;
(3) on an ongoing basis, share relevant information based
on such data with points of contact designated under subsection
(b);
(4) provide child welfare stakeholders and such points of
contact with guidance and training on--
(A) facilitating the ability of detained parents to
participate in family court proceedings relating to
their children;
(B) visitation protocols; and
(C) coordinating contact between parents and
counsel, consulates, child welfare personnel, family
members, and caregivers; and
(5) facilitate reunification with parents prior to removal
and after removal if requested by the parent, including by--
(A) establishing procedures;
(B) assisting with travel documents;
(C) coordinating with Federal, State, and local
child welfare agencies, caretakers, foreign
governments, and other appropriate stakeholders; and
(D) arranging travel.
SEC. 6. PROSECUTORIAL DISCRETION.
The Secretary shall prioritize the exercise of discretion in any
instance in which the parent of a child is subject to an immigration
enforcement action by considering the best interests of the child in
decisions, including--
(1) whether to prosecute the individual for 1 or more
immigration violations;
(2) whether to transfer the individual to another detention
facility that is farther away from the place of habitual
residence of the child;
(3) whether to release the individual so the individual may
continue to care for the child; and
(4) whether to consider alternatives to the detention or
release of the individual.
SEC. 7. FACILITATION OF RETURN TO THE UNITED STATES.
The Secretary may facilitate on a case-by-case basis reentry of a
parent to the United States who was previously removed through a grant
of parole if the individual is able to demonstrate--
(1) that the individual has a termination of parental
rights hearing or other family court hearing pending or ongoing
in the United States for the purposes of attending the hearing;
(2) that the child of the individual is experiencing a
humanitarian need, such as a medical emergency; or
(3) that the child of the individual is deceased for
purposes of attending the funeral of the child in the United
States.
SEC. 8. MANDATORY TRAINING.
(a) In General.--The Secretary, in consultation with the Secretary
of Health and Human Services and independent child welfare and family
law experts, shall develop and provide training on the protections
required under sections 4 and 5 (including on methods to minimize
trauma to children and to detect signs of abuse or neglect) to all
employees of the Department, cooperating entities, and detention
facilities who--
(1) hold positions related to parental interests;
(2) regularly engage in immigration enforcement actions,
including the detention of individuals; and
(3) in the course of such actions, come into contact with
parents of children who are in the United States.
(b) Provision of Training.--The training under subsection (a) shall
be provided--
(1) in the case of current employees of the Department,
cooperating entities, and detention facilities, not later than
180 days after the date of the enactment of this Act, and
annually thereafter; and
(2) in the case of any employee of the Department, a
cooperating entity, or a detention facility who is hired after
the date that is 180 days after the date of the enactment of
this Act, on the date on which the employee commences duty, and
annually thereafter.
SEC. 9. DATA COLLECTION.
(a) In General.--On the date that is 180 days after the date of the
enactment of this Act, and every 180 days thereafter, the Secretary, in
consultation and collaboration with the Secretary of Health and Human
Services, shall collect and maintain the following information:
(1) Of individuals in the custody of U.S. Immigration and
Customs Enforcement--
(A) the number and percentage who are parents of a
child who is in the United States; and
(B) the number and percentage who are parents of a
child involved in the child welfare system in the
United States.
(2) For the preceding 180-day period--
(A) the number of parents of a child in the United
States who have been apprehended by U.S. Immigration
and Customs Enforcement and released; and
(B) of the number of individuals released by U.S.
Immigration and Customs Enforcement during such period,
the percentage who are such parents.
(3) The number of individuals in the custody of U.S.
Immigration and Customs Enforcement who are parents of a child
involved in the child welfare system in the United States, and
the percentage of such individuals among all individuals
detained by U.S. Immigration and Customs Enforcement who are
parents.
(4) The number of individuals who are parents of a child
involved in the child welfare system in the United States who
have been released from the custody of U.S. Immigration and
Customs Enforcement, and the percentage of such individuals
among all individuals who are parents and have been released
from the custody of U.S. Immigration and Customs Enforcement.
(5) The number of parents subject to a final order of
removal who have elected to take their child with them to the
country of removal, and the percentage of such parents among
all parents with children who are subject to removal orders.
(6) The number of parents subject to a final order of
removal who have elected to leave their child in the United
States, and the percentage of such parents among all parents
with children who are subject to removal orders.
(7) The number of personnel who have received training on
the parental rights of individuals in the custody of U.S.
Immigration and Customs Enforcement, the titles of such
personnel, and the percentage of such personnel among all field
staff of U.S. Immigration and Customs Enforcement.
(8) The average number of visits a detained parent receives
from his or her child during a 180-day period.
(9) The average and median distance between a detention
facility housing detainee parents and the domicile of the
children of such parents.
(10) The number of transfers, if any, to different
detention facilities a parent experienced, including the
distance of the facility from the site of the enforcement
action.
(b) Report.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, and every 180 days thereafter, the
Secretary 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, the 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, the Committee
on 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 initial
efforts of the Secretary to fulfill the obligations under this
Act, including a description of the manner in which the
Secretary plans to establish or integrate data collection and
storage protocols related to this Act.
(3) Subsequent reports.--Each subsequent report submitted
under paragraph (1) shall include--
(A) the number of employees of the Department,
coordinating entities, and detention facilities
provided annual training under section 7; 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.
(c) Public Availability.--The Secretary shall make the report
required by subsection (b) available to the public on a website of the
Department.
(d) Methods.--In carrying out this section, the Secretary shall
ensure that--
(1) the methods for collecting information are consistent
from year to year so as to enable the tracking of trends across
years; and
(2) personally identifiable information is protected.
SEC. 10. RULEMAKING.
Not later than 180 days after the date of the enactment of this
Act, the Secretary shall promulgate regulations to implement this Act.
SEC. 11. SEVERABILITY.
If any provision of this Act, any amendment made by this Act, or
the application of any such provision or amendment to any person or
circumstance is held to be unconstitutional, the remaining provisions
of this Act, the remaining amendments made by this Act, and the
application of such provisions and amendments to any person or
circumstance shall not be affected by such holding.
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