II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Humane Enforcement 

5 and Legal Protections for Separated Children Act’’ or the 

6 ‘‘HELP Separated Children Act’’. 

7 SEC. 2. DEFINITIONS. 

8 In this Act: 


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1 (1) APPREHENSION.—The term ‘‘apprehension’’ 

2 means the detention, arrest, or custody by officials 

3 of the Department or cooperating entities. 

4 (2) CHILD.—Except as otherwise specifically 

5 provided, the term ‘‘child’’ has the meaning given to 

6 the term in section 101(b)(1) of the Immigration 

7 and Nationality Act (8 U.S.C. 1101(b)(1)). 

8 (3) CHILD WELFARE AGENCY.—The term 

9 ‘‘child welfare agency’’ means the State or local 

10 agency responsible for child welfare services under 

11 subtitles B and E of title IV of the Social Security 

12 Act (42 U.S.C. 601 et seq.). 

13 (4) COOPERATING ENTITY.—The term ‘‘cooper14 ating entity’’ means a State or local entity acting 

15 under agreement with the Secretary. 

16 (5) DEPARTMENT.—The term ‘‘Department’’ 

17 means the Department of Homeland Security. 

18 (6) DETENTION FACILITY.—The term ‘‘deten19 tion facility’’ means a Federal, State, or local gov20 ernment facility, or a privately owned and operated 

21 facility, that is used to hold individuals suspected or 

22 found to be in violation of the Immigration and Na23 tionality Act (8 U.S.C. 1101 et seq.). 

24 (7) IMMIGRATION ENFORCEMENT ACTION.—The 

25 term ‘‘immigration enforcement action’’ means the 


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1 apprehension of, detention of, or request for or 

2 issuance of a detainer for, 1 or more individuals for 

3 suspected or confirmed violations of the Immigration 

4 and Nationality Act (8 U.S.C. 1101 et seq.) by the 

5 Secretary or a cooperating entity. 

6 (8) LOCAL EDUCATIONAL AGENCY.—The term 

7 ‘‘local educational agency’’ has the meaning given to 

8 the term in section 9101 of the Elementary and Sec9 ondary Education Act of 1965 (20 U.S.C. 7801). 

10 (9) NGO.—The term ‘‘NGO’’ means a non11 governmental organization that provides social serv12 ices or humanitarian assistance to the immigrant 

13 community. 

14 (10) SECRETARY.—Except as otherwise specifi15 cally provided, the term ‘‘Secretary’’ means the Sec16 retary of the Department. 

17 SEC. 3. APPREHENSION PROCEDURES FOR IMMIGRATION 

18 ENFORCEMENT-RELATED ACTIVITIES. 

19 (a) NOTIFICATION.— 

20 (1) ADVANCE NOTIFICATION.—Subject to para21 graph (2), when conducting any immigration en22 forcement action, the Secretary and cooperating en23 tities shall notify the Governor of the State, the local 

24 child welfare agency, and relevant State and local 

25 law enforcement before commencing the action, or, 


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1 if advance notification is not possible, immediately 

2 after commencing such action, of— 

3 (A) the approximate number of individuals 

4 to be targeted in the immigration enforcement 

5 action; and 

6 (B) the primary language or languages be7 lieved to be spoken by individuals at the tar8 geted site. 

9 (2) HOURS OF NOTIFICATION.—To the extent 

10 possible, the advance notification required by para11 graph (1) should occur during business hours and 

12 allow the notified entities sufficient time to identify 

13 resources to conduct the interviews described in sub14 section (b)(1). 

15 (3) OTHER NOTIFICATION.—When conducting 

16 any immigration action, the Secretary and cooper17 ating entities shall notify the relevant local edu18 cational agency and local NGOs of the information 

19 described in paragraph (1) immediately after com20 mencing the action. 

21 (b) APPREHENSION PROCEDURES.—In any immigra22 tion enforcement action, the Secretary and cooperating en23 tities shall— 

24 (1) as soon as possible and not later than 6 

25 hours after an immigration enforcement action, proVerDate Mar 15 2010 01:52 Jul 22, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1399.IS S1399

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1 vide licensed social workers or case managers em2 ployed or contracted by the child welfare agency or 

3 local NGOs with confidential access to screen and 

4 interview individuals apprehended in such immigra5 tion enforcement action to assist the Secretary or co6 operating entity in determining if such individuals 

7 are parents, legal guardians, or primary caregivers 

8 of a child in the United States; 

9 (2) as soon as possible and not later than 8 

10 hours after an immigration enforcement action, pro11 vide any apprehended individual believed to be a 

12 parent, legal guardian, or primary caregiver of a 

13 child in the United States with— 

14 (A) free, confidential telephone calls, in15 cluding calls to child welfare agencies, attor16 neys, and legal services providers, to arrange 

17 for the care of children or wards, unless the 

18 Secretary has reasonable grounds to believe 

19 that providing confidential phone calls to the in20 dividual would endanger public safety or na21 tional security; and 

22 (B) contact information for— 

23 (i) child welfare agencies in all 50 

24 States, the District of Columbia, all United 


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1 States territories, counties, and local juris2 dictions; and 

3 (ii) attorneys and legal service pro4 viders capable of providing free legal advice 

5 or free legal representation regarding child 

6 welfare, child custody determinations, and 

7 immigration matters; 

8 (3) ensure that personnel of the Department 

9 and cooperating entities do not— 

10 (A) interview individuals in the immediate 

11 presence of children; or 

12 (B) compel or request children to translate 

13 for interviews of other individuals who are en14 countered as part of an immigration enforce15 ment action; and 

16 (4) ensure that any parent, legal guardian, or 

17 primary caregiver of a child in the United States— 

18 (A) receives due consideration of the best 

19 interests of his or her children or wards in any 

20 decision or action relating to his or her deten21 tion, release, or transfer between detention fa22 cilities; and 

23 (B) is not transferred from his or her ini24 tial detention facility or to the custody of the 

25 Secretary until the individual— 


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1 (i) has made arrangements for the 

2 care of his or her children or wards; or 

3 (ii) if such arrangements are impos4 sible, is informed of the care arrangements 

5 made for the children and of a means to 

6 maintain communication with the children. 

7 (c) NONDISCLOSURE AND RETENTION OF INFORMA8 TION ABOUT APPREHENDED INDIVIDUALS AND THEIR

9 CHILDREN.— 

10 (1) IN GENERAL.—Information collected by 

11 child welfare agencies and NGOs in the course of 

12 the screenings and interviews described in subsection 

13 (b)(1) may not be disclosed to Federal, State, or 

14 local government entities or to any person, except 

15 pursuant to written authorization from the indi16 vidual or his or her legal counsel. 

17 (2) CHILD WELFARE AGENCY OR NGO REC18 OMMENDATION.—Notwithstanding paragraph (1), a 

19 child welfare agency or NGO may— 

20 (A) submit a recommendation to the Sec21 retary or a cooperating entity regarding wheth22 er an apprehended individual is a parent, legal 

23 guardian, or primary caregiver who is eligible 

24 for the protections provided under this Act; and 


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1 (B) disclose information that is necessary 

2 to protect the safety of the child, to allow for 

3 the application of subsection (b)(4)(A), or to 

4 prevent reasonably certain death or substantial 

5 bodily harm. 

6 SEC. 4. ACCESS TO CHILDREN, LOCAL AND STATE COURTS, 

7 CHILD WELFARE AGENCIES, AND CONSULAR 

8 OFFICIALS. 

9 (a) IN GENERAL.—The Secretary shall ensure that 

10 all detention facilities operated by or under agreement 

11 with the Department implement procedures to ensure that 

12 the best interest of the child, including a preference for 

13 family unity wherever appropriate, is considered in any de14 cision and action relating to the custody of children whose 

15 parent, legal guardian, or primary caregiver is detained 

16 as the result of an immigration enforcement action. 

17 (b) ACCESS TO CHILDREN, STATE AND LOCAL

18 COURTS, CHILD WELFARE AGENCIES, AND CONSULAR

19 OFFICIALS.—At all detention facilities operated by, or 

20 under agreement with, the Department, the Secretary 

21 shall— 

22 (1) prominently post in a manner accessible to 

23 detainees and visitors and include in detainee hand24 books information on the protections of this Act as 


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1 well as information on potential eligibility for parole 

2 or release; 

3 (2) ensure that individuals who are detained by 

4 reason of their immigration status may receive the 

5 screenings and interviews described in section 

6 3(b)(1) not later than 6 hours after their arrival at 

7 the detention facility; 

8 (3) ensure that individuals who are detained by 

9 reason of their immigration status and are believed 

10 to be parents, legal guardians, or primary caregivers 

11 of children in the United States are— 

12 (A) permitted daily phone calls and regular 

13 contact visits with their children or wards; 

14 (B) able to participate fully, and to the ex15 tent possible in-person, in all family court pro16 ceedings and any other proceeding impacting 

17 upon custody of their children or wards; 

18 (C) able to fully comply with all family 

19 court or child welfare agency orders impacting 

20 upon custody of their children or wards; 

21 (D) provided with contact information for 

22 family courts in all 50 States, the District of 

23 Columbia, all United States territories, coun24 ties, and local jurisdictions; 


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1 (E) granted free and confidential telephone 

2 calls to child welfare agencies and family courts 

3 as often as is necessary to ensure that the best 

4 interest of the child, including a preference for 

5 family unity whenever appropriate, can be con6 sidered; 

7 (F) granted free and confidential telephone 

8 calls and confidential in-person visits with at9 torneys, legal representatives, and consular offi10 cials; 

11 (G) provided United States passport appli12 cations for the purpose of obtaining travel docu13 ments for their children or wards; 

14 (H) granted adequate time before removal 

15 to obtain passports and other necessary travel 

16 documents on behalf of their children or wards 

17 if such children or wards will accompany them 

18 on their return to their country of origin or join 

19 them in their country of origin; and 

20 (I) provided with the access necessary to 

21 obtain birth records or other documents re22 quired to obtain passports for their children or 

23 wards; and 

24 (4) facilitate the ability of detained parents, 

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1 formation regarding travel arrangements with their 

2 children or wards, child welfare agencies, or other 

3 caregivers well in advance of the detained individ4 ual’s departure from the United States. 

5 SEC. 5. MEMORANDA OF UNDERSTANDING. 

6 The Secretary shall develop and implement memo7 randa of understanding or protocols with child welfare 

8 agencies and NGOs regarding the best ways to cooperate 

9 and facilitate ongoing communication between all relevant 

10 entities in cases involving a child whose parent, legal 

11 guardian, or primary caregiver has been apprehended or 

12 detained in an immigration enforcement action to protect 

13 the best interests of the child, including a preference for 

14 family unity whenever appropriate. 

15 SEC. 6. MANDATORY TRAINING. 

16 The Secretary, in consultation with the Secretary of 

17 Health and Human Services and independent child welfare 

18 experts, shall require and provide in-person training on 

19 the protections required under sections 3 and 4 to all per20 sonnel of the Department and of States and local entities 

21 acting under agreement with the Department who regu22 larly come into contact with children or parents in the 

23 course of conducting immigration enforcement actions. 


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1 SEC. 7. RULEMAKING. 

2 Not later than 120 days after the date of the enact3 ment of this Act, the Secretary shall promulgate regula4 tions to implement this Act. 

5 SEC. 8. SEVERABILITY. 

6 If any provision of this Act or amendment made by 

7 this Act, or the application of a provision or amendment 

8 to any person or circumstance, is held to be unconstitu9 tional, the remainder of this Act and amendments made 

10 by this Act, and the application of the provisions and 

11 amendment to any person or circumstance, shall not be 

12 affected by the holding. 

13 SEC. 9. REPORT ON PROTECTIONS FOR CHILDREN IM14 PACTED BY IMMIGRATION ENFORCEMENT 

15 ACTIVITIES. 

16 (a) REQUIREMENT FOR REPORT.—Not later than 1 

17 year after the date of the enactment of this Act, and annu18 ally thereafter, the Secretary shall submit to Congress a 

19 report that describes the impact of immigration enforce20 ment activities on children, including children who are citi21 zens of the United States. 

22 (b) CONTENT.—The report submitted under sub23 section (a) shall include for the previous 1-year period an 

24 assessment of— 


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1 (1) the number of individuals removed from the 

2 United States who are the parent of a child who is 

3 a citizen of the United States; 

4 (2) the number of occasions in which both par5 ents or the primary caretaker of such a child was re6 moved from the United States; 

7 (3) the number of children who are citizens of 

8 the United States who leave the United States with 

9 parents who are removed; 

10 (4) the number of such children who remained 

11 in the United States after the removal of a parent; 

12 (5) the age of each such child at the time a 

13 parent is removed; and 

14 (6) the number of instances in which such a 

15 child whose parent is apprehended, detained, or re16 moved is referred to the local child welfare agency 

17 by officers or employees of the Department. 

Æ 


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