Full Text of HB5125 95th General Assembly
HB5125ham001 95TH GENERAL ASSEMBLY
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International Trade & Commerce Committee
Filed: 3/12/2008
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LRB095 16510 DRJ 47947 a |
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| AMENDMENT TO HOUSE BILL 5125
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| AMENDMENT NO. ______. Amend House Bill 5125 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 1. Short title. This Act may be cited as the | 5 |
| Immigrant Family Preservation Act. | 6 |
| Section 5. Purpose. The purpose of this Act is to protect | 7 |
| the foreign national minors or minors holding dual nationality | 8 |
| throughout the United States, in particular the State of | 9 |
| Illinois. The General Assembly recognizes that foreign | 10 |
| national minors and minors holding dual nationality are | 11 |
| essential to the maintenance of the culture, traditions, and | 12 |
| values of their country of nationality. Therefore, this Act | 13 |
| provides a method of early identification of foreign national | 14 |
| minors and minors holding dual nationality and their families | 15 |
| in order to provide services that ensure all the protections | 16 |
| afforded by the Vienna Convention and all other applicable |
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| treaties and laws.
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| The General Assembly recognizes that the governments of | 3 |
| foreign countries have a duty to care for the interests of | 4 |
| their citizens and nationals abroad, particularly those of | 5 |
| minors, as expressed in Article 5, Secs. (a) and (h), of the | 6 |
| Vienna Convention. The General Assembly also recognizes that it | 7 |
| is imperative that foreign consulates be notified, without | 8 |
| delay, of guardianship as expressed by the Vienna Convention, | 9 |
| Article 37(b). The General Assembly further recognizes that | 10 |
| governments of foreign countries have a right to information | 11 |
| and access in all cases involving minors who are foreign | 12 |
| national minors and minors holding dual nationality.
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| The further purpose of this Act is to ensure compliance | 14 |
| with the Vienna Convention. The Vienna Convention provides for | 15 |
| consular notification and access in cases in which foreign | 16 |
| nationals are involved in legal proceedings. The Convention | 17 |
| places a special responsibility on the receiving state's | 18 |
| authorities, in this case, the Director of the Department, to | 19 |
| treat cases of foreign national minors and minors holding dual | 20 |
| nationality with particular care. The General Assembly | 21 |
| recognizes that the notification of consular authorities is | 22 |
| essential in these cases, not only because a legally binding | 23 |
| treaty dictates it, but also because foreign consulates provide | 24 |
| essential services that can mutually assist both the Department | 25 |
| and the consulates, as well as the individuals personally | 26 |
| affected.
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| Section 10. Definitions. In this Act: | 2 |
| "Agency" means the agency in a foreign country charged with | 3 |
| ensuring the welfare of minors who are nationals of that | 4 |
| country or who hold dual nationality in that country and the | 5 |
| United States.
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| "Custodian" means the nonparental caretaker of a foreign | 7 |
| national minor or minor holding dual nationality who has been | 8 |
| entrusted by the parent of the minor with the day-to-day care | 9 |
| of the minor.
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| "Department" means the Department of Children and Family | 11 |
| Services.
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| "Foreign national minor" means an unmarried person who is | 13 |
| under the age of eighteen years, was born in a country other | 14 |
| than the United States, and has not acquired United States | 15 |
| citizenship as the biological child of a United States citizen.
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| "Minor holding dual nationality" means an unmarried person | 17 |
| who is under the age of eighteen years, bears United States | 18 |
| citizenship, and is eligible for nationality in another country | 19 |
| as the biological child of a parent who is national of that | 20 |
| country.
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| "Vienna Convention" means the Vienna Convention on | 22 |
| Consular Relations, 21 U.S.T. 77, T.I.A.S. No. 6820. | 23 |
| Section 15. Inquiry. The Department shall inquire, at the | 24 |
| time a decision to take protective custody of a minor is made, |
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| whether the minor is a foreign national minor or minor holding | 2 |
| dual nationality. The Department shall provide to any such | 3 |
| minor, and any parent or custodian of such minor, information, | 4 |
| in English and the minor's native language, explaining the | 5 |
| protective custody process and the rights of the minor and his | 6 |
| or her parents or custodian, including those rights afforded | 7 |
| under the Vienna Convention, and the address and telephone | 8 |
| number of the nearest consulate serving the minor. If the | 9 |
| Department learns at a later time that the minor is a foreign | 10 |
| national minor or minor holding dual nationality, then the | 11 |
| information shall be forwarded to the appropriate parties as | 12 |
| determined under this Act. | 13 |
| Section 20. Notification. | 14 |
| (a) The Department shall promulgate rules under which it | 15 |
| would notify the appropriate consulate in writing in a timely | 16 |
| manner after:
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| (1) the initial date the Department takes custody of a | 18 |
| foreign national minor or a minor holding dual nationality | 19 |
| or the date the Department learns that a minor in its | 20 |
| custody is a foreign national minor or a minor holding dual | 21 |
| nationality, whichever occurs first; | 22 |
| (2) the parent of a foreign national minor or a minor | 23 |
| holding dual nationality has requested that the consulate | 24 |
| be notified; or
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| (3) the Department determines that a noncustodial |
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| parent of a foreign national minor or a minor holding dual | 2 |
| nationality in its custody resides in the country | 3 |
| represented by the consulate.
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| (b) The Department shall provide the consulate with the | 5 |
| name and date of birth of the foreign national minor or the | 6 |
| minor holding dual nationality, the name of his or her parent | 7 |
| or custodian, and the name and telephone number of the | 8 |
| departmental caseworker directly responsible for the case.
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| (c) If the consulate needs additional specific information | 10 |
| regarding the case of the foreign national minor or the minor | 11 |
| holding dual nationality, the consulate may contact the | 12 |
| Department's Division of Guardian and Advocacy or the | 13 |
| Division's designee, and the Department may release any | 14 |
| information not required to be kept confidential under federal | 15 |
| or Illinois law.
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| Section 25. Confidentiality; further information.
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| (a) Disclosure of information under this Act is subject to | 18 |
| the same requirements of confidentiality as the disclosure of | 19 |
| information under the Juvenile Court Act of 1987 and the Abused | 20 |
| and Neglected Child Reporting Act.
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| (b) In order to respond to a consulate's need for specific | 22 |
| information regarding the cases of foreign national minors and | 23 |
| minors holding dual nationality, the Department shall | 24 |
| designate Department personnel who are responsible for | 25 |
| responding to requests from foreign consulates for such |
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| information.
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| Section 30. Interview of minor by consular representative. | 3 |
| Any foreign national minor or minor holding dual nationality in | 4 |
| the custody of the Department may be interviewed by a | 5 |
| representative of the consulate of the country of the child's | 6 |
| nationality. In the case of a minor holding dual nationality, | 7 |
| the Department's Guardianship Administrator or his or her | 8 |
| designee must consent to the interview. In order to arrange for | 9 |
| such an interview, the consulate shall contact the Department's | 10 |
| Division of Guardian and Advocacy or the Division's designee. | 11 |
| Section 35. Special Immigrant Juvenile Status. In cases in | 12 |
| which a foreign national minor has been placed as a ward of the | 13 |
| State of Illinois and has become eligible for Special Immigrant | 14 |
| Juvenile Status (SIJS) pursuant to 8 U.S.C. 101(a)(27)(J)(ii), | 15 |
| the Department may seek the assistance of the consulate of the | 16 |
| country of the child's nationality in obtaining the necessary | 17 |
| documentation from that country for completion of the SIJS | 18 |
| application. | 19 |
| Section 40. Proof of nationality. The Department's | 20 |
| Division of Guardian and Advocacy may obtain a birth | 21 |
| certificate from the appropriate country for a foreign national | 22 |
| minor or a minor holding dual nationality in the custody of the | 23 |
| Department. The Department may request the assistance of the |
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| consulate in obtaining the necessary documentation to complete | 2 |
| the application for a birth certificate under this Section. | 3 |
| Section 45. DCFS assistance to foreign child welfare | 4 |
| agencies. | 5 |
| (a) Upon notification to a consulate pursuant to Section 20 | 6 |
| of this Act, the Department may request that the consulate | 7 |
| obtain through the agency the appropriate home studies of | 8 |
| potential families in such country who may be involved in the | 9 |
| case and forward the information to the departmental caseworker | 10 |
| directly responsible for the case.
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| (b) When a foreign national minor is placed in his or her | 12 |
| country or a minor holding dual nationality is placed in the | 13 |
| country other than the United States in which he or she holds | 14 |
| nationality, the Department shall take all steps necessary to | 15 |
| obtain the cooperation of the consulate and the agency to | 16 |
| ensure the minor's welfare and provide whatever services are | 17 |
| needed. The Department shall request copies of the monitoring | 18 |
| reports prepared by the agency concerning the welfare of the | 19 |
| minor and shall ensure that such information is delivered to | 20 |
| the Department caseworker directly responsible for the case of | 21 |
| the minor.
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| Section 50. Witnesses. The Department may request the | 23 |
| cooperation of the appropriate consulate to locate individuals | 24 |
| who reside in a foreign country and are required to appear in |
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| an Illinois court in connection with cases involving a foreign | 2 |
| national minor or a minor holding dual nationality, in order to | 3 |
| properly notify such individuals of court appearances. | 4 |
| Section 55. Ongoing communication. Department staff shall | 5 |
| meet as needed with consular officers in order to discuss, | 6 |
| clarify, and coordinate activities in areas of mutual interest | 7 |
| and concern. The Department may participate with the consulates | 8 |
| in joint prevention efforts regarding the protection and | 9 |
| well-being of foreign national minors and minors holding dual | 10 |
| nationality and their families. In addition, the Department's | 11 |
| Division of Communications shall make every effort to exchange | 12 |
| with the consulates ideas and concerns of a high profile nature | 13 |
| that may result in media attention, in a timely manner. The | 14 |
| consulates may contact the Department's Division of Guardian | 15 |
| and Advocacy, Advocacy Office for Children and Families, or | 16 |
| Office of Inspector General at any time, however, | 17 |
| notwithstanding any other provision of this Act. | 18 |
| Section 60. Immunity. Except as otherwise expressly | 19 |
| provided in this Act, nothing in this Act shall be construed as | 20 |
| a waiver of immunities to which a consulate and its consular | 21 |
| agents are entitled to under international law, the Foreign | 22 |
| Sovereign Immunities Act of 1976, 28 U.S.C. 1602 et seq., and | 23 |
| international treaties in force between the United States and | 24 |
| foreign countries. Except as otherwise expressly provided in |
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| this Act, this Act shall not imply or confer a submission by | 2 |
| any foreign country or its consular agents to the jurisdiction | 3 |
| of any United States or Illinois courts. | 4 |
| Section 65. No authority to make or promulgate rules. | 5 |
| Notwithstanding any other rulemaking authority that may exist, | 6 |
| neither the Governor nor any agency or agency head under the | 7 |
| jurisdiction of the Governor has any authority to make or | 8 |
| promulgate rules to implement or enforce the provisions of this | 9 |
| Act. If, however, the Governor believes that rules are | 10 |
| necessary to implement or enforce the provisions of this Act, | 11 |
| the Governor may suggest rules to the General Assembly by | 12 |
| filing them with the Clerk of the House and Secretary of the | 13 |
| Senate and by requesting that the General Assembly authorize | 14 |
| such rulemaking by law, enact those suggested rules into law, | 15 |
| or take any other appropriate action in the General Assembly's | 16 |
| discretion. Nothing contained in this Act shall be interpreted | 17 |
| to grant rulemaking authority under any other Illinois statute | 18 |
| where such authority is not otherwise explicitly given. For the | 19 |
| purposes of this Act, "rules" is given the meaning contained in | 20 |
| Section 1-70 of the Illinois Administrative Procedure Act, and | 21 |
| "agency" and "agency head" are given the meanings contained in | 22 |
| Sections 1-20 and 1-25 of the Illinois Administrative Procedure | 23 |
| Act to the extent that such definitions apply to agencies or | 24 |
| agency heads under the jurisdiction of the Governor.".
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