Text: H.R.3531 — 111th Congress (2009-2010)All Information (Except Text)

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Introduced in House (07/31/2009)


111th CONGRESS
1st Session
H. R. 3531


To provide protection for children affected by the immigration laws of the United States, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

July 31, 2009

Ms. Woolsey (for herself, Ms. Clarke, Ms. Kilpatrick of Michigan, Mr. Honda, Ms. Roybal-Allard, and Mr. Polis of Colorado) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To provide protection for children affected by the immigration laws of the United States, 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.

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 any government action or action carried out by an entity under agreement with the government in which—

(A) an individual suspected of an immigration violation is apprehended for such violation; or

(B) an individual who has been detained on criminal charges is questioned about possible immigration violations.

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

SEC. 3. 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 1 alien shall be carried out in accordance with the procedures described in this section.

(b) Apprehension procedures.—The Department 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 or personnel under agreement with the Department of Homeland Security investigates the individual’s claims and considers the individual for release under section 4(c);

(3) notify SSAs of such 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 anticipated 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 this 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 individuals 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 screen and interview such individuals to determine if he or she 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 individuals at the time of the 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 the activity commences, or if this is not possible, immediately following the commencement of such activity;

(7) coordinate with qualified medical personnel within six hours of the individual’s apprehension to—

(A) conduct medical screenings of the individuals subject to the immigration enforcement-related activity; and

(B) identify and report any medical or other issues that might necessitate release as a member of a vulnerable population or emergency assistance;

(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, and before transferring any individual apprehended by the Department of Homeland Security or any entity operating under agreement with the Department of Homeland Security outside the region in which the apprehension took place, 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—

(A) if the individual is a member of a vulnerable population as described in section 4(b); and

(B) if the individual should be released in accordance with section 4(c);

(10) provide, and advertise in the mainstream and foreign language media, as well as make available to the public via the website of the Department of Homeland Security, a toll-free number through which family members of persons apprehended as a result of an immigration enforcement-related activity may report information relevant to the release of an apprehended family member as a member 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 those who are apprehended may obtain information about the apprehended family members, including their location, in English and the majority language of those who are apprehended;

(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 this 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 regarding and contact information for legal service providers, organizations, and attorneys that can offer free legal advice regarding child welfare and custody determinations; and

(C) information regarding and contact information for 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 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 target population of the 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 activity;

(16) permit nonprofit legal service providers, organizations, and attorneys 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.

SEC. 4. 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 the activity belongs to any of the groups listed in subsection (b).

(b) Vulnerable population groups.—An individual is eligible for release under subsection (c) 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 1 or more of their children, and their children.

(4) Sole custodial parents, sole legal guardians, 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.

(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 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) 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), and 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) 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, such as through the use of electronic ankle devices or heightened supervision and monitoring procedures. The Secretary of the Department of Homeland Security shall make an individualized determination in each alien’s case about the use of electronic monitoring and shall review such decision on a monthly basis. Aliens who would otherwise be subject to detention including under INA section 236(c) may be placed in electronic monitoring or other secure custodial alternatives to detention that maintain custody over the alien.

(3) Decisions under this section shall specify in writing the reasons for the decision and be served upon the individual in their native language within 72 hours of the individual’s detention or, in the case of an individual subject to INA sections 235, 238, or 241(a)(5) within 72 hours of a positive credible or reasonable fear determination. Decisions under this section are subject to redetermination at any time by an Immigration Judge.

SEC. 5. 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) file a notice to appear or other relevant charging document with the closest immigration court to where the individual was apprehended; and

“(B) serve such notice on the individual not later than 48 hours after the commencement of the individual’s 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).

SEC. 6. 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 consideration of the best outcome for the family of the child;

“(B) develop and implement memoranda of understanding or protocols with the Department of Homeland Security, Federal, State, and local government agencies to facilitate communication between the agencies and such a child, a parent, guardian, or relative referred to in section 475(9)(B), family members of such a child, family courts, providers of services to such a child under the State plan, providers of long-term care to such a child, and legal representatives of such a 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, at the time of the apprehension of such a parent, guardian, or relative, to a child who will become a separated child as a result of the apprehension, including protocols and training for apprehension of such a parent, guardian, or relative in the presence of the child and how to best ensure appropriate and prompt care arrangements for the child;

“(D) ensure that the case manager for such a child is capable of communicating in the native language of the child and of the family of the child, or an interpreter who is so capable is provided to communicate with the child and the family of the child at no cost to the child or the family of the child;

“(E) require that, in all decisions and actions relating to the care, custody, and placement of such a child, the best interest of the child, including the best outcome for the family of the child, be considered, and ensure that the 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 of such a child who wish for the 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, such a child, consistent with the best interest of the child, by not disclosing such information to other government agencies or persons (other than such a parent, guardian, or relative), except that the head of the State agency (or the designee of the head) 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 such a child in a language the 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.

SEC. 7. 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, lawfully present non-citizens;

(2) immigration-related apprehensions 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 their family member’s detention;

(9) the number of parents, guardians, or caregivers of children removed from the United States;

(10) the number of parents, guardians, or caregivers of children removed from the United States whose children accompany or join them;

(11) the number of parents, guardians, or caregivers of children removed from the United States who are removed without their children;

(12) the number of occasions on which both parents of a particular children are removed from the United States without their children;

(13) the length of time the parents, guardians, or caregivers of children were present in the United States before their 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 individuals apprehended determined to be part of a vulnerable population released within specified time limit under section 4(c);

(16) the length of time between when an individual is determined to be part of a vulnerable population and 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 them 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—

(A) whether the immigrants had access to legal counsel before being transferred;

(B) whether the immigrant received notice of an impending transfer; and

(C) whether the immigrant was 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 theses programs, reasons for not placing immigrants that qualify as a member of a vulnerable population as defined in section 4(b) in these programs, percentage of cases in which adjustment of immigration status is granted, percentage of cases in which removal is undertaken, and frequency of absconding.

SEC. 8. 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 of all Federal personnel, relevant personnel employed by those States reimbursed for activities related to care and services for separated children, and State and local personnel and relevant SSAs, who come into contact with vulnerable populations as defined at section 3(b) in all relevant legal authorities, policies, and procedures pertaining to the humanitarian and due process protections for these vulnerable populations.

(2) VULNERABLE POPULATIONS.—Such personnel shall be trained to work with vulnerable populations, including identifying members of a vulnerable population, and identifying members of a vulnerable population 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 relevant to the humanitarian and due process protections for vulnerable populations as defined in section 4(b).

SEC. 9. 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 preserve family unity and ensure that the best outcome for families 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 the parent’s, legal guardian’s, or primary caregiver relative’s 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 relevant 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 shall be responsible for—

(1) ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age are granted free and confidential phone calls with their children on a daily basis;

(2) ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age are permitted regular contact visits with their children;

(3) ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age 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;

(4) ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age are able to fully participate in and comply with all family court orders impacting upon custody of their child;

(5) ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age have regular, on-site access to reunification programming including parenting classes;

(6) ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age 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;

(7) ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age 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;

(8) ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age who wish to take their children with them to their country of origin are granted adequate time prior to being removed to obtain a passport and other relevant travel documents necessary for children to accompany them on their return to their country of origin or join them in their country of origin; and

(9) facilitating detained parents’, legal guardians’, and primary caregiver relatives’ ability 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 detained parent, legal guardian, or primary caregiver relative’s travel arrangements to State social service agencies or other caregivers.

SEC. 10. Authorization of appropriations.

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

SEC. 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).