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”.
Humane Enforcement and Legal Protections for Separated Children Act
A BILL
To protect children affected by immigration enforcement actions, and for other purposes.
Sec. 2 Definitions
In this Act:
Apprehension— The term apprehension means the detention or arrest by officials of the Department or cooperating entities.
Child— The term child means an individual who is younger than 18 years of age.
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.).
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.
Department— The term Department means the Department of Homeland Security.
Detention facility—
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.
Inclusions— The term detention facility includes—
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
any space where an individual or family unit is held in custody by the Department.
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).
Parent— The term parent means—
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;
a legal guardian of a child under State law or the law of a foreign country; and
a kin caregiver who has historically cared for a child when a parent is not present.
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—
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
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—
at every official interaction with personnel of a detention facility; and
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
In general— In any immigration enforcement action, the Secretary and any cooperating entity shall—
provide each apprehended individual who is a parent of a child in the United States—
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
with contact information, in the preferred language of the individual, for—
attorneys and legal service providers capable of providing free legal advice or representation regarding child welfare, child custody determinations, and immigration matters;
the consulate of the applicable foreign country; and
child welfare agencies and family courts in the jurisdiction in which any such child is located;
notify the child welfare agency with jurisdiction over any such child only if—
the apprehended parent wants the child to remain in the United States and is unable to make care arrangements for the child; or
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;
except in a case of medical necessity or in extraordinary circumstances, ensure that personnel of the Department and the cooperating entity do not—
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;
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
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;
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—
to communicate with the child, including through physical contact;
to reassure the child; and
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
ensure that any apprehended individual who is a parent of a child in the United States—
except in a case of medical necessity or in extraordinary circumstances—
is not transferred from the location at which the individual is apprehended until the individual—
has made arrangements for the care of such child; or
if such arrangements are unavailable or the individual is unable to make such arrangements within 48 hours of the immigration enforcement action—
is consulted and allowed to participate in the decisionmaking process to arrange with the Department for the care arrangements made for the child; and
is provided with a means to maintain communication with the child; and
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—
the habitual place of residence of the child; and
the location of the immigration enforcement action; and
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.
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.
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—
section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232);
section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279); or
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
In general— At each detention facility, the Secretary shall—
prominently post, in a manner accessible to detainees and visitors, and include in detainee handbooks—
information regarding the protections under this Act; and
information regarding potential eligibility for parole or release;
except in extraordinary circumstances, ensure that each individual detained by the Department who is a parent of a child in the United States—
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;
is provided with contact information for child welfare agencies and family courts in the relevant jurisdictions;
has the opportunity to participate fully and, to the extent practicable, in person—
in all family court proceedings;
in any other proceeding that may impact the right of the individual to custody of such child; and
in case planning activities;
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
is provided—
the opportunity to fully comply with all family court or child welfare agency orders impacting the custody of such child;
access to United States passport applications or other relevant travel document applications for the purpose of obtaining travel documents for such child;
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
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
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.
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.
Appointment of national coordinator— The Secretary shall appoint a national coordinator who shall—
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;
conduct data collection and analysis with respect to the parental status of individuals who are in the custody of the Secretary;
on an ongoing basis, share relevant information based on such data with points of contact designated under subsection (b);
provide child welfare stakeholders and such points of contact with guidance and training on—
facilitating the ability of detained parents to participate in family court proceedings relating to their children;
visitation protocols; and
coordinating contact between parents and counsel, consulates, child welfare personnel, family members, and caregivers; and
facilitate reunification with parents prior to removal and after removal if requested by the parent, including by—
establishing procedures;
assisting with travel documents;
coordinating with Federal, State, and local child welfare agencies, caretakers, foreign governments, and other appropriate stakeholders; and
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—
whether to prosecute the individual for 1 or more immigration violations;
whether to transfer the individual to another detention facility that is farther away from the place of habitual residence of the child;
whether to release the individual so the individual may continue to care for the child; and
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—
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;
that the child of the individual is experiencing a humanitarian need, such as a medical emergency; or
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
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—
hold positions related to parental interests;
regularly engage in immigration enforcement actions, including the detention of individuals; and
in the course of such actions, come into contact with parents of children who are in the United States.
Provision of training— The training under subsection (a) shall be provided—
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
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
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:
Of individuals in the custody of U.S. Immigration and Customs Enforcement—
the number and percentage who are parents of a child who is in the United States; and
the number and percentage who are parents of a child involved in the child welfare system in the United States.
For the preceding 180-day period—
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
of the number of individuals released by U.S. Immigration and Customs Enforcement during such period, the percentage who are such parents.
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.
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.
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.
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.
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.
The average number of visits a detained parent receives from his or her child during a 180-day period.
The average and median distance between a detention facility housing detainee parents and the domicile of the children of such parents.
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.
Report—
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—
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
the Committee on the Judiciary, the Committee on Homeland Security, and the Committee on Education and Workforce of the House of Representatives.
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.
Subsequent reports— Each subsequent report submitted under paragraph (1) shall include—
the number of employees of the Department, coordinating entities, and detention facilities provided annual training under section 7; and
the number of new employees of the Department, coordinating entities, and detention facilities who have been provided an initial training under that section.
Public availability— The Secretary shall make the report required by subsection (b) available to the public on a website of the Department.
Methods— In carrying out this section, the Secretary shall ensure that—
the methods for collecting information are consistent from year to year so as to enable the tracking of trends across years; and
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.