HB5125eng 95TH GENERAL ASSEMBLY

HB5125 Engrossed LRB095 16510 DRJ 46069 b

AN ACT concerning children.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Immigrant Family Preservation Act.

Section 5. Purpose. The purpose of this Act is to protect the foreign national minors or minors holding dual nationality throughout the United States, in particular the State of Illinois. The General Assembly recognizes that foreign national minors and minors holding dual nationality are essential to the maintenance of the culture, traditions, and values of their country of nationality. Therefore, this Act provides a method of early identification of foreign national minors and minors holding dual nationality and their families in order to provide services that ensure all the protections afforded by the Vienna Convention and all other applicable treaties and laws.

The General Assembly recognizes that the governments of foreign countries have a duty to care for the interests of their citizens and nationals abroad, particularly those of minors, as expressed in Article 5, Secs. (a) and (h), of the Vienna Convention. The General Assembly also recognizes that it is imperative that foreign consulates be notified, without delay, of guardianship as expressed by the Vienna Convention, Article 37(b). The General Assembly further recognizes that governments of foreign countries have a right to information and access in all cases involving minors who are foreign national minors and minors holding dual nationality.

The further purpose of this Act is to ensure compliance with the Vienna Convention. The Vienna Convention provides for consular notification and access in cases in which foreign nationals are involved in legal proceedings. The Convention places a special responsibility on the receiving state's authorities, in this case, the Director of the Department, to treat cases of foreign national minors and minors holding dual nationality with particular care. The General Assembly recognizes that the notification of consular authorities is essential in these cases, not only because a legally binding treaty dictates it, but also because foreign consulates provide essential services that can mutually assist both the Department and the consulates, as well as the individuals personally affected.

Section 10. Definitions. In this Act:

"Agency" means the agency in a foreign country charged with ensuring the welfare of minors who are nationals of that country or who hold dual nationality in that country and the United States.

"Custodian" means the nonparental caretaker of a foreign national minor or minor holding dual nationality who has been entrusted by the parent of the minor with the day-to-day care of the minor.

"Department" means the Department of Children and Family Services.

"Foreign national minor" means an unmarried person who is under the age of eighteen years, was born in a country other than the United States, and has not acquired United States citizenship as the biological child of a United States citizen.

"Minor holding dual nationality" means an unmarried person who is under the age of eighteen years, bears United States citizenship, and is eligible for nationality in another country as the biological child of a parent who is national of that country.

"Vienna Convention" means the Vienna Convention on Consular Relations, 21 U.S.T. 77, T.I.A.S. No. 6820.

Section 15. Inquiry. The Department shall inquire, at the time a decision to take protective custody of a minor is made, whether the minor is a foreign national minor or minor holding dual nationality. The Department shall provide to any such minor, and any parent or custodian of such minor, information, in English and the minor's native language, explaining the protective custody process and the rights of the minor and his or her parents or custodian, including those rights afforded under the Vienna Convention, and the address and telephone number of the nearest consulate serving the minor. If the Department learns at a later time that the minor is a foreign national minor or minor holding dual nationality, then the information shall be forwarded to the appropriate parties as determined under this Act.

Section 20. Notification.

(a) The Department shall promulgate rules under which it would notify the appropriate consulate in writing in a timely manner after:

(1) the initial date the Department takes custody of a foreign national minor or a minor holding dual nationality or the date the Department learns that a minor in its custody is a foreign national minor or a minor holding dual nationality, whichever occurs first;

(2) the parent of a foreign national minor or a minor holding dual nationality has requested that the consulate be notified; or

(3) the Department determines that a noncustodial parent of a foreign national minor or a minor holding dual nationality in its custody resides in the country represented by the consulate.

(b) The Department shall provide the consulate with the name and date of birth of the foreign national minor or the minor holding dual nationality, the name of his or her parent or custodian, and the name and telephone number of the departmental caseworker directly responsible for the case.

(c) If the consulate needs additional specific information regarding the case of the foreign national minor or the minor holding dual nationality, the consulate may contact the Department's Division of Guardian and Advocacy or the Division's designee, and the Department may release any information not required to be kept confidential under federal or Illinois law.

Section 25. Confidentiality; further information.

(a) Disclosure of information under this Act is subject to the same requirements of confidentiality as the disclosure of information under the Juvenile Court Act of 1987 and the Abused and Neglected Child Reporting Act.

(b) In order to respond to a consulate's need for specific information regarding the cases of foreign national minors and minors holding dual nationality, the Department shall designate Department personnel who are responsible for responding to requests from foreign consulates for such information.

Section 30. Interview of minor by consular representative. Any foreign national minor or minor holding dual nationality in the custody of the Department may be interviewed by a representative of the consulate of the country of the child's nationality. In the case of a minor holding dual nationality, the Department's Guardianship Administrator or his or her designee must consent to the interview. In order to arrange for such an interview, the consulate shall contact the Department's Division of Guardian and Advocacy or the Division's designee.

Section 35. Special Immigrant Juvenile Status. In cases in which a foreign national minor has been placed as a ward of the State of Illinois and has become eligible for Special Immigrant Juvenile Status (SIJS) pursuant to 8 U.S.C. 101(a)(27)(J)(ii), the Department may seek the assistance of the consulate of the country of the child's nationality in obtaining the necessary documentation from that country for completion of the SIJS application.

Section 40. Proof of nationality. The Department's Division of Guardian and Advocacy may obtain a birth certificate from the appropriate country for a foreign national minor or a minor holding dual nationality in the custody of the Department. The Department may request the assistance of the consulate in obtaining the necessary documentation to complete the application for a birth certificate under this Section.

Section 45. DCFS assistance to foreign child welfare agencies.

(a) Upon notification to a consulate pursuant to Section 20 of this Act, the Department may request that the consulate obtain through the agency the appropriate home studies of potential families in such country who may be involved in the case and forward the information to the departmental caseworker directly responsible for the case.

(b) When a foreign national minor is placed in his or her country or a minor holding dual nationality is placed in the country other than the United States in which he or she holds nationality, the Department shall take all steps necessary to obtain the cooperation of the consulate and the agency to ensure the minor's welfare and provide whatever services are needed. The Department shall request copies of the monitoring reports prepared by the agency concerning the welfare of the minor and shall ensure that such information is delivered to the Department caseworker directly responsible for the case of the minor.

Section 50. Witnesses. The Department may request the cooperation of the appropriate consulate to locate individuals who reside in a foreign country and are required to appear in an Illinois court in connection with cases involving a foreign national minor or a minor holding dual nationality, in order to properly notify such individuals of court appearances.

Section 55. Ongoing communication. Department staff shall meet as needed with consular officers in order to discuss, clarify, and coordinate activities in areas of mutual interest and concern. The Department may participate with the consulates in joint prevention efforts regarding the protection and well-being of foreign national minors and minors holding dual nationality and their families. In addition, the Department's Division of Communications shall make every effort to exchange with the consulates ideas and concerns of a high profile nature that may result in media attention, in a timely manner. The consulates may contact the Department's Division of Guardian and Advocacy, Advocacy Office for Children and Families, or Office of Inspector General at any time, however, notwithstanding any other provision of this Act.

Section 60. Immunity. Except as otherwise expressly provided in this Act, nothing in this Act shall be construed as a waiver of immunities to which a consulate and its consular agents are entitled to under international law, the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1602 et seq., and international treaties in force between the United States and foreign countries. Except as otherwise expressly provided in this Act, this Act shall not imply or confer a submission by any foreign country or its consular agents to the jurisdiction of any United States or Illinois courts.

Section 65. No authority to make or promulgate rules. Notwithstanding any other rulemaking authority that may exist, neither the Governor nor any agency or agency head under the jurisdiction of the Governor has any authority to make or promulgate rules to implement or enforce the provisions of this Act. If, however, the Governor believes that rules are necessary to implement or enforce the provisions of this Act, the Governor may suggest rules to the General Assembly by filing them with the Clerk of the House and Secretary of the Senate and by requesting that the General Assembly authorize such rulemaking by law, enact those suggested rules into law, or take any other appropriate action in the General Assembly's discretion. Nothing contained in this Act shall be interpreted to grant rulemaking authority under any other Illinois statute where such authority is not otherwise explicitly given. For the purposes of this Act, "rules" is given the meaning contained in Section 1-70 of the Illinois Administrative Procedure Act, and "agency" and "agency head" are given the meanings contained in Sections 1-20 and 1-25 of the Illinois Administrative Procedure Act to the extent that such definitions apply to agencies or agency heads under the jurisdiction of the Governor.