S. 4389

[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 4389 Introduced in Senate (IS)]

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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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