Bipartisan Border Solutions Act of 2021
A BILL
To establish regional processing centers, to improve the asylum and credible fear processes to promote fairness and efficiency, to require immigration court docketing priorities during irregular migration influx events, and to improve the capability of the Department of Homeland Security to manage migration flows, and for other purposes.
Sec. 2 Definitions
In this Act:
Alien— The term alien has the meaning given the term in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)).
Appropriate committee of congress— The term appropriate committee of Congress means—
the Committee on Homeland Security and Governmental Affairs and the Committee on the Judiciary of the Senate; and
the Committee on Homeland Security and the Committee on the Judiciary of the House of Representatives.
Immigration laws— The term immigration laws has the meaning given the term in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)).
Irregular migration influx event— The term irregular migration influx event means a period during which there is a significant increase in, or a sustained large number of, Department of Homeland Security encounters with aliens who—
do not use the formal immigration system of the United States or the countries they are traveling through; and
intend to enter the United States.
Legally determinative aspect of the asylum process— The term legally determinative aspect of the asylum process means any stage of the asylum process in which the alien is present and evidence of an alien’s credible fear of persecution or eligibility for asylum is gathered or considered, or a determination of an alien’s credible fear of persecution or eligibility for asylum is made, including—
a credibility determination under section 208(b)(1)(B)(iii) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(1)(B)(iii));
an asylum interview and credible fear determination under section 235(b)(1)(B) of that Act;
an immigration judge review of a negative credible fear determination under clause (iii)(III) of that section; and
a removal proceeding under section 240 of that Act.
Secretary— The term Secretary means the Secretary of Homeland Security.
Unaccompanied alien child— The term unaccompanied alien child has the meaning give the term in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)).
Sec. 3 Regional processing centers
Subtitle C of title IV of the Homeland Security Act of 2002 (6 U.S.C. 231 et seq.) is amended by adding at the end the following:
“437. Regional processing centers
“(a) In general—The Secretary shall establish not fewer than 4 regional processing centers located in high traffic sectors of U.S. Border Patrol, as determined by the Secretary, along the southern border land border of the United States (referred to in this section as a “regional processing center”).
“(b) Purpose—The regional processing centers shall carry out processing and management activities, including—
“(1) criminal history checks;
“(2) identity verification;
“(3) biometrics collection and analysis;
“(4) medical screenings;
“(5) asylum interviews and credible fear determinations under section 235 of the Immigration and Nationality Act (8 U.S.C. 1225) and reasonable fear determinations under section 241(b)(3)(B) of that Act (8 U.S.C. 1231(b)(3)(B));
“(6) facilitating coordination and communication between Federal entities and nongovernmental organizations that are directly involved in providing assistance to aliens;
“(7) legal orientation programming and communication between aliens and outside legal counsel;
“(8) issuance of legal documents relating to immigration court proceedings of aliens;
“(9) short-term detention of not more than 72 hours before release or transfer to another facility; and
“(10) any other activity the Secretary considers appropriate.
“(c) Personnel and living conditions—The regional processing centers shall include—
“(1) personnel assigned from—
“(A) U.S. Customs and Border Protection;
“(B) U.S. Immigration and Customs Enforcement;
“(C) the Federal Emergency Management Agency;
“(D) U.S. Citizenship and Immigration Services; and
“(E) the Office of Refugee Resettlement;
“(2) upon agreement with an applicable Federal agency, personnel from such Federal agency who are assigned to the regional processing center;
“(3) sufficient medical staff, including physicians specializing in pediatric or family medicine, nurse practitioners, and physician assistants;
“(4) licensed social workers;
“(5) mental health professionals;
“(6) child advocates appointed by the Secretary of Health and Human Services under section 235(c)(6)(B) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(c)(6)(B)); and
“(7) sufficient space to carry out the processing and management activities described in subsection (b).
“(d) Criminal history checks—Each criminal history check carried out under subsection (b)(1) shall be conducted using a set of fingerprints or other biometric identifier obtained from—
“(1) the Federal Bureau of Investigation;
“(2) the criminal history repositories of all States that the individual listed as a current or former residence; and
“(3) any other appropriate Federal or State database resource or repository, as determined by the Secretary.
“(e) Exceptions for additional purposes—Subject to operational and spatial availability, in the event of a major disaster or emergency declared under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.) or any homeland security crisis requiring the establishment of a departmental Joint Task Force under section 708(b), the Secretary may temporarily utilize a regional processing center to carry out operations relating to such declaration or crisis.
“(f) Donations—The Department may accept donations from private entities, nongovernmental organizations, and other groups independent of the Federal Government for the care of children and family units detained at a regional processing center, including—
“(1) medical goods and services;
“(2) school supplies;
“(3) toys;
“(4) clothing; and
“(5) any other item intended to promote the well-being of such children and family units.
“(g) Access to facilities for private entities and nongovernmental organizations
“(1) In general—Private entities and nongovernmental organizations that are directly involved in providing humanitarian or legal assistance to families and individuals encountered by the Department along the southwest border of the United States, or organizations that provide assistance to detained individuals, shall have access to regional processing centers for purposes of—
“(A) legal orientation programming;
“(B) coordination with the Department with respect to the care of families and individuals held in regional processing centers, including the care of families and individuals who are released or scheduled to be released;
“(C) communication between aliens and outside legal counsel;
“(D) the provision of humanitarian assistance; and
“(E) any other purpose the Secretary considers appropriate.
“(2) Access plan—Not later than 60 days after the date of the enactment of this section, the Secretary shall publish in the Federal Register procedures relating to access to regional processing centers under paragraph (1) that ensure—
“(A) the safety of personnel of, and aliens detained in, regional processing centers; and
“(B) the orderly management and operation of regional processing centers.
“(h) Legal counsel—Aliens detained in a regional processing center shall have access to legal counsel in accordance with section 292 of the Immigration and Nationality Act (8 U.S.C. 1362), including the opportunity to consult with counsel before any legally determinative aspect of the asylum process occurs.
“(i) Procedures To facilitate communication with counsel—The Secretary shall develop written procedures to permit aliens detained in a regional processing center to visit with, and make confidential telephone calls to, legal representatives and legal services providers and to receive incoming calls from legal representatives and legal services providers, in a private and confidential space while in custody, for the purposes of retaining or consulting with counsel or obtaining legal advice from legal services providers.
“(j) Legal orientation
“(1) In general—An alien detained in a regional processing center shall be provided the opportunity to receive a complete legal orientation presentation administered by a nongovernmental organization in cooperation with the Executive Office for Immigration Review.
“(2) Timeline
“(A) In general—The Secretary shall prioritize the provision of the legal orientation presentation required by paragraph (1) to an alien within 12 hours of apprehension.
“(B) Requirement—In the case of an alien who does not receive such legal orientation presentation within 12 hours of apprehension, the Secretary shall ensure that the alien receives the presentation—
“(i) not later than 24 hours after apprehension; and
“(ii) not less than 24 hours before the alien initially appears before an asylum officer or immigration judge in connection with a claim for asylum.
“(k) Management of regional processing centers
“(1) Operation—The Commissioner of U.S. Customs and Border Protection, in consultation with the interagency coordinating council established under paragraph (2), shall operate the regional processing centers.
“(2) Interagency coordinating committee
“(A) Establishment—There is established an interagency coordinating committee for the purpose of coordinating operations and management of the regional processing centers.
“(B) Membership—The interagency coordinating committee shall be chaired by the Commissioner of U.S. Customs and Border Protection, or his or her designee, and shall include representatives designated by the heads of the following agencies:
“(i) U.S. Immigration and Customs Enforcement.
“(ii) The Federal Emergency Management Agency.
“(iii) U.S. Citizenship and Immigration Services.
“(iv) The Office of Refugee Resettlement.
“(v) Any other agency that supplies personnel to the regional processing centers, upon agreement between the Commissioner of U.S. Customs and Border Protection and the head of such other agency.”
Sec. 4 Credible fear determination and asylum process improvement pilot programs
In general— The Secretary and the Attorney General shall develop pilot programs to facilitate—
fair and more efficient asylum decisions under section 208(b) of the Immigration and Nationality Act (8 U.S.C. 1158(b));
fair and more efficient credible fear determinations under section 235(b)(1)(B) of that Act (8 U.S.C. 1225(b)(1)(B));
improved access to legal counsel; and
improved case management of aliens awaiting asylum hearings or decisions.
Implementation—
Workforce plan— The Secretary and the Attorney General shall not implement any pilot program under this section until the workforce plan described in subsection (d) is fully implemented.
Legal orientation programs— The Attorney General and the Secretary shall ensure that each alien enrolled in a pilot program under this section receives a complete, live legal orientation presentation before any legally determinative aspect of the asylum process occurs.
Notice to Congress— Not less than 90 days before the implementation of any new asylum processing policy or procedure under this section, the Secretary and the Attorney General shall provide to the appropriate committees of Congress notice of such implementation, including a description of any modification to a policy, procedure, practice, or training related to asylum processing.
Scope of pilot programs—
In general— The goal of the pilot programs under this section shall be to develop strategies to improve the asylum process to determine a final disposition fairly and more efficiently while ensuring that aliens apprehended along the southwest border and placed into removal proceedings are given a fair opportunity to effectively make an asylum claim or other relevant claim for relief, including the opportunity to retain and consult with counsel under section 292 of the Immigration and Nationality Act (8 U.S.C. 1362) before any legally determinative aspect of the asylum process occurs.
Prohibition on participation— The Secretary and the Attorney General may not enroll in a pilot program under this section—
an unaccompanied alien child;
a pregnant individual; or
an individual with a disability or an acute medical condition.
Fairness in proceedings— The Secretary and the Attorney General shall take every appropriate step to ensure that each pilot program participant has a full opportunity to exercise all legal process rights afforded under law.
Access to counsel— The pilot programs under this section shall be fully compliant with section 292 of the Immigration and Nationality Act (8 U.S.C. 1362), and the Secretary and the Attorney General shall consult with nongovernmental organizations to facilitate access to counsel for pilot program participants.
Case management programming— The pilot programs under this section may include case management programming for participants who are awaiting immigration court hearings, which may include—
the provision of information about legal rights, responsibilities, and procedures;
basic assistance in identifying relevant forms and documents;
facilitating the attendance of aliens at their immigration court hearings; and
any other relevant case management assistance the Secretary and the Attorney General consider appropriate.
Right to judicial review— Participation in a pilot program under this section shall not abrogate any existing right of an alien to request judicial review, including under section 242 of the Immigration and Nationality Act (8 U.S.C. 1252), of a decision related to his or her case.
Staffing requirements— The Secretary shall—
identify the staffing requirements necessary to carry out the pilot programs under this section, including the number of trained U.S. Citizenship and Immigration Services officers necessary to conduct all asylum interviews, credible fear interviews, and reasonable fear interviews; and
develop a workforce plan for each such pilot program.
Access to counsel—
In general— Each alien enrolled in a pilot program under this section shall be afforded an opportunity to consult with 1 or more individuals of their choosing in a private consultation area, prior to a credible fear interview under section 235(b)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(B)).
List of legal services providers— Each alien enrolled in such a pilot program shall be provided a contact list of potential legal resources and providers.
Procedures to facilitate communication with counsel— The Secretary shall develop written procedures to permit aliens enrolled in such a pilot program to make telephone calls at no cost to legal representatives and legal services providers and to receive incoming calls from legal representatives and legal services providers in a private and confidential space.
Language access—
In general— The Secretary and the Attorney General shall provide each alien enrolled in a pilot program under this section with any written materials produced by the Department of Homeland Security or the Department of Justice in a language the alien understands.
Verbal explanation— In the case of an alien who is unable to read the written materials provided under paragraph (1), the Secretary and the Attorney General shall ensure that the materials are explained verbally to the alien in a language the alien understands.
Legal orientation— Not later than 24 hours after apprehension, and not less than 24 hours before initially appearing before an asylum officer or immigration judge in connection with a claim for asylum, an alien enrolled in a pilot program under this section shall be provided the opportunity to receive a complete legal orientation presentation administered in cooperation with the Executive Office for Immigration Review.
Evaluation plan— Not later than the date on which implementation of a pilot program under this section commences or not later than 180 days after the date of the enactment of this Act, whichever is earlier, the Secretary and the Attorney General shall submit to appropriate committees of Congress an evaluation plan for the pilot program that includes the following:
Well-defined, clear, and measurable objectives.
Performance criteria or standards for determining the performance of the pilot program.
Clearly articulated evaluation methodology, including—
sound sampling methods;
a determination of the appropriate sample size for the evaluation design; and
a strategy for tracking the pilot program’s performance and evaluating the final results.
A plan detailing the sources of data necessary to evaluate the pilot program, methods for data collection, and the timing and frequency of data collection.
Notice to Congress—
In general— Not less than 90 days before the implementation of a pilot program under this section, the Secretary and the Attorney General shall provide to the appropriate committees of Congress notice of such implementation, including a description of any modification to a pilot program policy, procedure, practice, or training relating to asylum processing.
Elements— Each notice required by paragraph (1) shall include a description of the following:
The procedures and policies to ensure all asylum interviews are conducted by trained U.S. Citizenship and Immigration Services asylum officers.
The procedures and policies to ensure credible fear interviews are only done remotely in limited and exigent circumstances and the likely exigent circumstances that the officers conducing the pilot program may encounter.
The procedures and policies to ensure any credible fear interviews done remotely shall be videotaped and a written transcript shall be produced.
Procedures and policies used to ensure questions asked by Department of Homeland Security personnel who exercise expedited removal authority under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b)) are asked in a uniform manner, to the greatest extent possible.
Report to Congress—
In general— Not later than 1 year after the date on which implementation of a pilot program under this section commences or not later than 1 year after the date of the enactment of this Act, whichever is earlier, and annually thereafter until the date on which the pilot program terminates, the Secretary and the Attorney General shall submit to the appropriate committees of Congress a report on the pilot programs under this section.
Elements— Each report required by paragraph (1) shall include the following:
An evaluation of the pilot program using the evaluation plan described in subsection (h).
A discussion of the performance criteria or standards established under subsection (h)(2) and an assessment as to whether modifications to the criteria or standards are necessary.
An assessment of the staffing levels necessary to carry out the pilot program and a description of any effect of current staffing levels on the ability of the Secretary to carry out the responsibilities of the Secretary with respect to border security.
A description of the resources required to transport aliens in connection with the pilot program.
A description of the resources necessary to improve legal orientation presentations and access to counsel in connection with the pilot program, consistent with section 7.
A description of the information technology systems used in connection with the pilot program and an assessment as to whether additional resources or upgrades are necessary.
An analysis of the effect of access to counsel under subsection (e) and language access under subsection (f) on the outcomes of credible fear determinations under section 235(b)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(B)).
Recommendations for any legislative changes needed to further implement or expand the pilot programs.
An explanation of any impediment to implementing the pilot programs, if relevant.
Rule of construction— Nothing in this section may be construed to authorize an extension of the duration for which an alien would otherwise be detained.
Termination of authority— The authority of the Secretary and the Attorney General to carry out this section shall terminate on the date that is 3 years after the date of the enactment of this Act.
Sec. 5 Immigration court docketing priorities during irregular migration influx events
In general— The Attorney General shall, to the greatest extent practicable, prioritize docketing and processing of removal cases under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a) for aliens who are apprehended on entering the United States in connection with an irregular migration influx event.
Irregular migration influx events— The Attorney General, in consultation with the Secretary, shall establish criteria for determining when an irregular migration influx event commences and ends for purposes of carrying out the docketing priorities under subsection (a).
Access to legal counsel— The Attorney General shall ensure that any master calendar or merits hearing in a removal case prioritized under subsection (a) is scheduled on a date and at a time that permits the alien a fair and reasonable opportunity to consult with and retain counsel prior to such hearing, consistent with section 292 of the Immigration and Nationality Act (8 U.S.C. 1362).
Report to Congress— Not later than December 31, 2021, the Attorney General shall submit to the appropriate committees of Congress a report that includes—
the number of aliens who were apprehended after entering the United States in connection with an irregular migration influx event identified in accordance with subsection (b) and placed in removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a), organized by the fiscal year in which the apprehension occurred and stating the number of single adults, unaccompanied alien children, and aliens that are apprehended as part of a family unit;
the number of aliens identified under paragraph (1) who appeared at master calendar hearings, including—
the number and percentage represented by counsel at such hearings; and
the average number of days between apprehension and such hearings;
the number of in absentia orders of removal issued to aliens identified under paragraph (1) at master calendar hearings, including the number of such aliens represented by counsel;
the number of aliens identified under paragraph (1) who appeared at final merits hearings, including the number and percentage represented by counsel at such hearings, and the average number of days between apprehension and such hearings; and
the number of in absentia orders of removal issued to aliens identified under paragraph (1) at final merits hearings, including the number of such aliens represented by counsel.
Rule of construction— Nothing in this section shall be construed to permit the Attorney General to adopt abbreviated procedures in connection with adjudication of removal cases prioritized under subsection (a) beyond the extent permitted by law.
Sec. 6 Office for Civil Rights and Civil Liberties impact assessment
In general— Not later than 90 days after the date of the enactment of this Act, the Officer for Civil Rights and Civil Liberties of the Department shall complete a full impact assessment of asylum processing and determinations with respect to credible fear of persecution carried out at—
regional processing centers established under section 437(a) of the Homeland Security Act of 2002; and
any other Department of Homeland Security facility at which a legally determinative aspect of the asylum process occurs.
Elements— The impact assessment required by subsection (a) shall include—
a description of the considerations relating to civil rights and civil liberties taken into account by the Secretary in developing and implementing asylum processing at such regional processing centers;
a description of—
with respect to potential civil rights and civil liberties violations, stakeholder feedback gathered before and during the implementation of asylum processing at regional processing centers; and
the steps taken by the Secretary to gather and respond to such feedback and any changes made to asylum processing based on such feedback;
an assessment of the ability of the language access plans of the Department of Homeland Security to allow Department personnel to communicate effectively with aliens with limited English proficiency who are placed in asylum processing, including any specific challenges faced by speakers of indigenous languages;
a review of the language access plan of each component of the Department of Homeland Security to ensure each language access plan provides uniform guidance so as to allow Department personnel to communicate effectively with aliens with limited English proficiency, including speakers of indigenous languages, during asylum processing;
a review of any negative impact on the ability of the Department of Homeland Security to process aliens during the asylum process due to language deficiencies and translation difficulties, including longer processing times, increased expenses as a result of increased translation services, and increases in the length of time aliens are detained by the Department;
an assessment of the impact of current Department of Homeland Security policies and procedures for processing and adjudicating asylum claims, including language access plans and other accommodations, on vulnerable populations, especially on—
individuals with mental health challenges, trauma, or physical health conditions; and
pregnant individuals;
any other current or historical guidance or policy review provided by the Office for Civil Rights and Civil Liberties to Department of Homeland Security components regarding asylum processing programs previously implemented or used by the Department; and
any other element—
the Officer for Civil Rights and Civil Liberties of the Department considers necessary;
required by law; or
requested by the Secretary.
Report—
In general— Not later than 90 days after the date on which the impact assessment required by subsection (a) is completed, the Officer for Civil Rights and Civil Liberties of the Department of Homeland Security shall submit to the Secretary and the appropriate committees of Congress a report on the results of the impact assessment.
Elements— The report required by paragraph (1) shall include—
a description of potential civil rights and civil liberties violations that are directly related to—
whether the Department of Homeland Security’s practices, standards, guidelines, and regulations ensure that aliens who experience language barriers, illiteracy, mental health issues, trauma, physical health conditions, pregnancy, or other conditions are not at a disadvantage with respect to credible fear determinations under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b));
an alien’s—
inability to understand basic explanations of legal information; or
limited English proficiency; and
an alien’s inability to consult with 1 or more individuals of his or her choosing before such interview;
an assessment of the impact of expedited asylum processing initiatives operated by the Department of Homeland Security during the 10-year period preceding the date of the enactment of this Act on the civil rights and civil liberties of migrants enrolled in such initiatives;
an assessment of any other civil rights or civil liberties violation relating to asylum processing;
recommended updates to the language access plan of any component of the Department of Homeland Security to prevent the potential civil rights and civil liberties violations identified under subparagraph (A);
recommendations—
to improve the processing and adjudication of speakers of indigenous languages; and
to adapt language access plans to accommodate such individuals;
recommendations for the appropriate use by Department of Homeland Security components of updated language access plans;
recommended modifications to improve asylum processes to better serve vulnerable populations such as those with mental or physical health challenges, trauma, and pregnant individuals;
recommended modifications to policies and procedures relating to asylum processing that would allow asylum processing to achieve compliance with current standards and guidelines of the Office for Civil Rights and Civil Liberties of the Department; and
any other recommendation the Officer for Civil Rights and Civil Liberties considers appropriate.
Implementation plan—
In general— Not later than 60 days after the date on which the Officer for Civil Rights and Civil Liberties of the Department of Homeland Security submits the report under subsection (c), the Secretary shall submit to the appropriate committees of Congress an implementation plan that addresses the findings and recommendations contained in the report.
Elements— The implementation plan required by paragraph (1) shall include a description of—
the recommendations contained in the report under subsection (c) addressed by the plan;
any such recommendation not addressed by the plan and a justification for declining to address the recommendation; and
any other matter the Secretary considers relevant to the implementation of such recommendations.
Publication— Not later than the date on which the Secretary submits the plan required by paragraph (1), the Secretary shall publish the plan in the Federal Register.
Sec. 7 Plan to expand legal orientation program
Interim plan—
In general— Not later than 180 days after the date of the enactment of this Act, the Secretary shall develop and submit to the appropriate committees of Congress an interim plan to expand the legal orientation program to each regional processing center established under section 437(a) of the Homeland Security Act of 2002 and any other Department of Homeland Security facility at which—
1 or more aliens are detained following apprehension by U.S. Customs and Border Protection; and
any legally determinative aspect of the asylum process occurs.
Elements— The interim plan required by paragraph (1) shall include—
a list of the critical items required for a final legal orientation plan that cannot be implemented in the interim plan due to necessary logistical and procedural changes at each facility at which assessments for credible fear of persecution, or other aspects of the asylum process, occur;
a description of the manner in which the legal orientation program will be immediately adapted to assist aliens detained at Department of Homeland Security facilities, including such regional processing centers;
a description of the manner in which access to counsel will be facilitated for such aliens who are subject to any type of asylum processing; and
a list of Department of Homeland Security facilities—
at which asylum processing occurs; and
that are capable of providing basic legal orientation services, including through a remote interface.
Implementation— The Secretary shall commence implementation of the interim plan beginning not later than 60 days after the submittal of the plan under paragraph (1) and ending on the date on which implementation of the final plan described in subsection (b) commences.
Public consultation— In developing the interim plan under paragraph (1), the Secretary shall consult with nongovernmental organizations, legal services providers, and any other entity the Secretary considers appropriate.
Final plan—
In general— Not later than 180 days after the date of the enactment of this Act, the Secretary shall develop and submit to the appropriate committees of Congress a final plan to expand the legal orientation program to each Department of Homeland Security facility at which—
1 or more aliens are detained; and
any legally determinative aspect of the asylum process occurs.
Elements— The final plan required by paragraph (1) shall include—
a consultation with the Director of the Executive Office for Immigration Review to determine the most efficient and effective manner by which to expand or modify legal orientation program requirements and standards to include aliens seeking asylum protections at each Department of Homeland Security facility at which any part of the asylum process, including credible fear interviews, occurs;
an assessment of necessary procedural and programmatic changes to the legal orientation program that will best accommodate such aliens;
an assessment of challenges to expanding the legal orientation program to facilities that cannot be met by the interim plan under subsection (a);
a requirement that legal orientation program sessions shall provide explanations of all expedited asylum processing programs and procedures and relevant forms of relief under the immigration laws;
a requirement that legal orientation programs shall include access to self-help legal materials and communication with available pro bono legal representatives;
a requirement that private and confidential space shall be provided to such aliens, if they wish to use it, for individual legal orientation and consultation and telephone calls with nonprofit organizations and legal representatives before—
hearings relating to credible fear of persecution;
any Executive Office for Immigration Review hearing;
any legally determinative aspect of the asylum process; or
any other legal proceeding or consultation related to an asylum claim;
protocols that allow such aliens to make and receive telephone calls to legal representatives, at no cost to such aliens, while detained at the Department of Homeland Security facility; and
a requirement that—
legal orientation programs shall ensure that written notice of legal rights is made available to such aliens in English and in not fewer than the 5 most common native languages spoken by aliens in custody at each Department of Homeland Security facility during the preceding fiscal year;
protocols shall be established to provide written or oral translation of materials that Department of Homeland Security produces for legal orientation programs or that Department of Homeland Security contracts with outside entities for use in a legal orientation programs for such aliens who do not speak a language described in clause (i), including—
development of a list of all languages spoken by aliens encountered in the preceding 1-year period;
procedures for providing oral interpretation services if it is not possible to produce a written translation in a manner that will not unreasonably prolong an alien’s time in custody, or if the alien is unable to read written materials; and
an after-action plan for improving future responses after a language is encountered for which the Department of Homeland Security is unable to timely develop written materials; and
the Secretary shall have in place at each Department of Homeland Security facility—
a feasible plan to provide language translation or interpretation services for any alien in a language the alien understands; and
a list of translation and interpretation services and resources readily available to meet translation needs.
Implementation— Not later than 90 days after the submittal of the final plan required by paragraph (1), the Secretary shall commence implementation of the plan.
Procedures To ensure availability—
In general— The Secretary, in consultation with the Attorney General, shall develop and implement procedures—
to ensure that legal orientation programs are available for all detained aliens not later than 12 hours after being taken into custody at a Department of Homeland Security facility; and
to provide such aliens with information relating to—
the basic procedures of immigration hearings;
the rights of aliens under the immigration laws with respect to such hearings;
the consequences of filing a frivolous legal claim or knowingly making a false statement in the course of a hearing; and
any other matter the Secretary, in consultation with the Attorney General, considers appropriate.
Elements— The procedures developed under paragraph (1) shall include—
the provision to aliens of a contact list of potential legal resources and providers;
the provision of a clear explanation, in a language the alien fully understands, of the asylum process and standards relating to assessments for credible fear of persecution;
a requirement to provide group orientations to aliens apprehended by U.S. Customs and Border Protection regarding asylum processing programs, including applicable pilot programs established under section 4, and forms of relief under the immigration laws;
a requirement to provide aliens with access to self-help legal materials and communication with available pro bono legal representatives;
protocols to allow aliens to make telephone calls to legal representatives and to receive incoming calls from legal representatives in a private and confidential space while in custody at Department of Homeland Security facilities; and
a requirement to provide clear guidance to aliens on—
additional procedural steps that occur after an interview with respect to credible fear of persecution;
relevant forms required to be submitted to apply for asylum or withholding of removal;
information that aliens are required to update as their cases are processed by U.S. Citizenship and Immigration Services and the Executive Office for Immigration Review; and
the consequences of failing to appear at any proceeding before the Executive Office for Immigration Review, and an explanation of the legal significance of an in absentia order of removal.
Sec. 8 Modifications to U.S. Customs and Border Protection standards on transport, escort, detention, and search to conform with legal orientation program requirements
Interim plan— Not later than 90 days after the date of the enactment of this Act, the Secretary shall—
complete an assessment of the modifications to U.S. Customs and Border Protection transport, escort, detention, and search standards necessary—
to implement the interim plan for expanded legal orientation and access programs under section 7(a); and
to ensure—
the safety of personnel of, and aliens detained in, U.S. Customs and Border Protection facilities; and
orderly management and operation of such facilities; and
implement such modifications.
Final plan— Not later than 30 days after the submittal of the final plan under section 7(b), the Secretary shall—
complete an assessment of the modifications to U.S. Customs and Border Protection transport, escort, detention, and search standards necessary—
to implement the final plan for expanded legal orientation and access programs under such section; and
to ensure—
the safety of personnel of, and aliens detained in, U.S. Customs and Border facilities; and
orderly management and operation of such facilities; and
implement such modifications.
Elements— The modifications under subsection (a) and (b) shall include the development of protocols and procedures to allow employees of nonprofit organizations and legal representatives to enter U.S. Customs and Border Protection facilities to carry out legal orientation programming, communication between aliens and outside counsel, and any other activity the Secretary considers appropriate.
Sec. 9 Standard operating procedures; facilities standards
Standard operating procedures— Section 411(k)(1) of the Homeland Security Act of 2002 (6 U.S.C. 211(k)) is amended—
in subparagraph (D), by striking “and” at the end;
in subparagraph (E)(iv), by striking the period at the end and inserting “; and”; and
adding at the end the following:
“(F) standard operating procedures regarding the detection, interdiction, inspection, processing, or transferring of alien children that officers and agents of U.S. Customs and Border Protection shall employ in the execution of their duties.”
Facilities standards—
Initial review and update— Not later than 270 days after the date of the enactment of this Act, the Secretary shall review and update the regulations under part 115 of title 6, Code of Federal Regulations, that set standards to prevent, detect, and respond to sexual abuse and assault in immigration detention facilities and other holding facilities under the jurisdiction of the Department of Homeland Security.
Quadrennial review— The Secretary shall review and update the regulations referred to in paragraph (1) not less frequently than once every 4 years.
Sec. 10 Criminal background checks for sponsors of unaccompanied alien children
In general— Section 235(c) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(c)) is amended—
in paragraph (3)—
in subparagraph (A), in the first sentence, by striking “subparagraph (B)” and inserting “subparagraphs (B) and (C)”;
by redesignating subparagraphs (B) and (C) as subparagraphs (C) and (D), respectively;
by inserting after subparagraph (A) the following:
“(B) Criminal background checks
“(i) In general—Before placing an unaccompanied alien child with an individual, the Secretary of Health and Human Services shall—
“(I) conduct a criminal history background check on the individual and each adult member of the individual’s household; and
“(II) if appropriate, collect biometric samples in connection with any such background check.
“(ii) Scope
“(I) In general—Each biometric criminal history background check required under clause (i) shall be conducted through—
“(aa) the Federal Bureau of Investigation;
“(bb) criminal history repositories of each State the individual lists as a current or former residence; and
“(cc) any other Federal or State database or repository the Secretary of Health and Human Services considers appropriate.
“(II) Use of rapid DNA instruments—DNA analysis of a DNA sample collected under subclause (I) may be carried out with Rapid DNA instruments (as defined in section 3(c) of the DNA Analysis Backlog Elimination Act of 2000 (34 U.S.C. 40702(c))).
“(III) Limitation on use of biometric samples—The Secretary of Health and Human Services may not release a fingerprint or DNA sample collected, or disclose the results of a fingerprint or DNA analysis conducted under this subparagraph, or any other information obtained pursuant to this section, to the Department of Homeland Security for any immigration enforcement purpose.
“(IV) Access to information through the Department of Homeland Security—Not later than 14 days after receiving a request from the Secretary of Health and Human Services, the Secretary of Homeland Security shall provide information necessary to conduct suitability assessments from appropriate Federal, State, and local law enforcement and immigration databases.
“(iii) Prohibition on placement with individuals convicted of certain offenses—The Secretary of Health and Human Services may not place an unaccompanied alien child in the custody or household of an individual who has been convicted of, or is currently being tried for—
“(I) a sex offense (as defined in section 111 of the Sex Offender Registration and Notification Act (34 U.S.C. 20911));
“(II) a crime involving severe forms of trafficking in persons (as defined in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102);
“(III) a crime of domestic violence (as defined in section 40002(a) of the Violence Against Women Act (34 U.S.C. 12291(a));
“(IV) a crime of child abuse and neglect (as defined in section 3 of the Child Abuse Prevention and Treatment Act (Public Law 93–247; 42 U.S.C. 5101 note));
“(V) murder, manslaughter, or an attempt to commit murder or manslaughter (within the meanings of such terms in sections 1111, 1112, and 1113 of title 18, United States Code); or
“(VI) a crime involving receipt, distribution, or possession of a visual depiction of a minor engaging in sexually explicit conduct (within the meanings of such terms in section 2252 of title 18, United States Code).”
by adding at the end the following:
“(E) Well-being follow-up calls—Not later than 30 days after the date on which an unaccompanied alien child is released from the custody of the Secretary of Health and Human Services, and every 60 days thereafter until the date on which a final decision has been issued in the removal proceedings of the child or such proceedings are terminated, the Secretary shall conduct a follow-up telephone call with the unaccompanied alien child and the child’s custodian or the primary point of contact for any other entity with which the child was placed.
“(F) Change of address—The Secretary of Health and Human Services shall—
“(i) require each custodian with whom an unaccompanied alien child is placed under this subsection to notify the Secretary with respect to any change in the unaccompanied alien child’s physical or mailing address, including any situation in which the unaccompanied alien child permanently departs the custodian’s residence, not later than 7 days after the date on which such change or departure occurs; and
“(ii) develop and implement a system that permits custodians to submit notifications electronically with respect to a change of address.”
Collection and compilation of statistical information— Section 462(b)(1)(K) of the Homeland Security Act of 2002 (6 U.S.C. 279(b)(1)(K)) is amended by striking “; and” and inserting
“(i) the average length of time from apprehension to the child’s master calendar hearing, organized by the fiscal year in which the children were apprehended by U.S. Customs and Border Protection;
“(ii) the number of children identified under clause (i) who did and did not appear at master calendar hearings, including the percentage of children in each category who were represented by counsel;
“(iii) the average length of time from apprehension to the child’s merits hearing, organized by the fiscal year in which the children were apprehended by U.S. Customs and Border Protection;
“(iv) the number of children identified under clause (i) who did and did not appear at merits hearings, including the percentage of children in each category who are represented by counsel; and
“(v) the total number of well-being follow-up calls conducted under section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(c)(3)(E)) at each time interval following placement with a custodian or other entity, and the number of children that the Secretary of Health and Human Services is unable to contact at each interval, organized by the fiscal year in which the children were apprehended by U.S. Customs and Border Protection; and”
Sec. 11 Fraud in connection with the transfer of custody of unaccompanied alien children
In general— Chapter 47 of title 18, United States Code, is amended by adding at the end the following:
“1041. Fraud in connection with the transfer of custody of unaccompanied alien children
“(a) In general—It shall be unlawful for a person to obtain custody of an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)))—
“(1) by making any materially false, fictitious, or fraudulent statement or representation; or
“(2) by making or using any false writing or document with the knowledge that such writing or document contains any materially false, fictitious, or fraudulent statement or entry.
“(b) Penalties
“(1) In general—Any person who violates, or attempts or conspires to violate, subsection (a) shall be fined under this title and imprisoned for not less than 1 year.
“(2) Enhanced penalty for trafficking—If the primary purpose of a violation, attempted violation, or conspiracy to violate this section was to subject the child to sexually explicit activity or any other form of exploitation, the offender shall be fined under this title and imprisoned for not less than 15 years.”
Clerical amendment— The chapter analysis for chapter 47 of title 18, United States Code, is amended by adding at the end the following:
Sec. 12 Accountability for children and taxpayers
In general— Section 235(b) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(b)) is amended by adding at the end the following:
“(5) Inspection of facilities
“(A) Facilities used by Secretary of Health and Human Services—The Inspector General of the Department of Health and Human Services shall conduct regular inspections of facilities used by the Secretary of Health and Human Services to provide care and custody of unaccompanied alien children who are in the immediate custody of the Secretary to ensure that such facilities are operated in an efficient and effective manner while also ensuring—
“(i) the safety of unaccompanied alien children; and
“(ii) that unaccompanied alien children—
“(I) have access to information relevant to their removal proceedings and claims for relief; and
“(II) are able to communicate efficaciously with their legal representatives.
“(B) Facilities used by the Secretary of Homeland Security—The Inspector General of the Department of Homeland Security shall conduct regular inspections of facilities, including temporary facilities and facilities built or obtained for use to deal with an irregular migration influx, used by the Secretary of Homeland Security in which unaccompanied alien children and family units are detained, to ensure that—
“(i) such facilities are operated in an efficient and effective manner; and
“(ii) unaccompanied alien child and family units—
“(I) have access to information relevant to their removal proceedings and claims for relief; and
“(II) are able to communicate efficaciously with their legal representatives.
“(6) Report on facility operation costs—Not less frequently than annually, the Secretary of Health and Human Services and the Secretary of Homeland Security shall each submit to the Committee on the Judiciary and the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on the Judiciary and the Committee on Homeland Security of the House of Representatives a report detailing, for each facility described in subparagraph (A) or (B) of paragraph (5), respectively—
“(A) the average daily cost for each unaccompanied alien child housed or detained at such facility;
“(B) the average cost over the entire system; and
“(C) in the case of such a facility the average daily cost per child of which significantly exceeds the average cost over the entire system, an explanation of expenditures.”
Sec. 13 Hiring authority
U.S. Customs and Border Protection—
In general— The Commissioner of U.S. Customs and Border Protection shall hire, train, and assign—
not fewer than 600 new Office of Field Operations Officers (above the current attrition level) during every fiscal year until the total number of Office of Field Operations officers equals and sustains the requirements identified each year in the Workforce Staffing Model;
support staff, including technicians, to perform non-law enforcement administrative functions to support the new Office of Field Operations officers hired pursuant to subparagraph (A); and
not fewer than 250 Border Patrol processing coordinators.
Traffic forecasts— In calculating the number of Office of Field Operations officers needed at each port of entry through the Workforce Staffing Model, the Commissioner of U.S. Customs and Border Protection shall—
rely on data collected regarding the inspections and other activities conducted at each such port of entry; and
consider volume from seasonal influxes, other projected changes in commercial and passenger volumes, the most current commercial forecasts, and temporary detailed personnel of the Office of Field Operations to assist with irregular migration influx events or other events, and other relevant information.
GAO report— If the Commissioner of U.S. Customs and Border Protection does not hire 600 additional Office of Field Operations officers pursuant to paragraph (1)(A) during the fiscal year in which this Act is enacted, or during any subsequent fiscal year in which the hiring requirements set forth in the Workforce Staffing Model have not been achieved, the Comptroller General of the United States shall—
conduct a review of U.S. Customs and Border Protection hiring practices to determine the reasons that such requirements were not achieved and to address other issues related to hiring by U.S. Customs and Border Protection; and
submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives that describes the results of the review conducted under subparagraph (A).
U.S. Immigration and Customs Enforcement—
In general— The Director of U.S. Immigration and Customs Enforcement shall hire, train, and assign—
not fewer than 300 Enforcement and Removal Operations support personnel to address case management responsibilities relating to aliens apprehended along the southwest border, and the operation of regional processing centers established under section 437(a) of the Homeland Security Act of 2002;
not fewer than 128 attorneys in the Office of the Principal Legal Advisor; and
not fewer than 41 support staff within the Office of the Principal Legal Advisor to assist immigration judges within the Executive Office for Immigration Review with removal, asylum, and custody determination proceedings.
GAO review and report relating to staffing needs—
Review— The Comptroller General of the United States shall conduct a review of—
U.S. Immigration and Customs Enforcement activities and staffing needs related to irregular migration influx events along the southwest border during fiscal years 2014, 2019, and 2021, including—
the total number of aliens placed in removal proceedings in connection with such irregular migration influx events;
the number of hours dedicated to responding to irregular migration influx events by Enforcement and Removal Operations officers, Enforcement and Removal Operations support personnel, attorneys within the Office of the Principal Legal Advisor, and support staff within the Office of the Principal Legal Advisor; and
the impact that response to such irregular migration influx events had on the ability of U.S. Immigration and Customs Enforcement to carry out other aspects of its mission, including the regular transport of migrants from U.S. Customs and Border Protection facilities to U.S. Immigration and Customs Enforcement facilities; and
staffing levels within the Office of the Principal Legal Advisor, U.S. Immigration and Customs Enforcement, including the impact such staffing levels have on docketing of cases within the Executive Office for Immigration Review.
Report— Not later than 1 year after the date of the enactment of this Act, the Comptroller General shall submit to the appropriate committees of Congress a report that describes the results of the review conducted under subparagraph (A).
Executive Office for Immigration Review— The Director of the Executive Office for Immigration Review shall hire, train, and assign not fewer than 150 new Immigration Judge teams, including staff attorneys and all applicable support staff for such Immigration Judge teams.
U.S. Citizenship and Immigration Services— The Director of U.S. Citizenship and Immigration Services shall hire, train, and assign not fewer than 300 asylum officers.
Sec. 14 Reports to Congress
Unaccompanied alien children—
Care of unaccompanied alien children— Not later than 180 days after the date of the enactment of this Act, the Secretary of Health and Human Services shall submit to the appropriate committees of Congress, and make publicly available, a report that includes—
a detailed summary of the contracts in effect to care for and house unaccompanied alien children, including the names and locations of contractors and the facilities being used;
for each contractor and facility referred to in subparagraph (A), the cost per day to care for and house an unaccompanied alien child, including a breakdown of factors that contribute to such cost;
the number of unaccompanied alien children who have been released to a sponsor, if any;
a list of the States in which unaccompanied alien children have been released from the custody of the Secretary of Health and Human Services to the care of a sponsor or placement in a facility;
a determination of whether more than 1 unaccompanied alien child has been released to the same sponsor, including the number of children who were released to such sponsor;
an assessment of the extent to which the Secretary of Health and Human Services is monitoring the release of unaccompanied alien children, including home studies and any other monitoring activity;
an assessment of the extent to which the Secretary of Health and Human Services is making efforts—
to educate unaccompanied alien children about their legal rights and the legal process; and
to provide unaccompanied alien children access to pro bono counsel; and
an assessment of efforts by the Secretary of Health and Human Services to mitigate the spread of contagious disease within facilities operated or contracted by the Secretary, including—
medical screening and treatment services provided to unaccompanied alien children; and
communication with State, local, and Tribal governments regarding the release from custody of any unaccompanied alien child who suffers from a contagious disease or may be especially vulnerable to a contagious disease.
Returns to country of nationality— Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit to the appropriate committees of Congress, and make publicly available, a report that identifies—
the number of unaccompanied alien children who have voluntarily returned to their country of nationality or habitual residence, disaggregated by—
country of nationality or habitual residence; and
age of the unaccompanied alien children;
the number of unaccompanied alien children who have been returned to their country of nationality or habitual residence, including the length of time such children were present in the United States;
the number of unaccompanied alien children who have not been returned to their country of nationality or habitual residence pending travel documents or other requirements from such country, including how long they have been waiting to return; and
the number of unaccompanied alien children who were granted relief in the United States, whether through asylum, any other immigration benefit or status, or deferred action.
Immigration proceedings— Not later than 90 days after the date of the enactment of this Act, and not less frequently than every 90 days thereafter, the Secretary, in coordination with the Director of the Executive Office for Immigration Review, shall submit to the appropriate committees of Congress, and make publicly available, a report that identifies—
the number of unaccompanied alien children who, after proceedings under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b)), were returned to their country of nationality or habitual residence, disaggregated by—
country of nationality or residence; and
age and gender of such aliens;
the number of unaccompanied alien children who, after proceedings under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b)), prove a claim of admissibility and are placed in proceedings under section 240 of that Act (8 U.S.C. 1229a); and
the number of unaccompanied alien children who fail to appear at a removal hearing that such alien was required to attend.
Binational efforts To combat irregular migration— Not later than 180 days after the date of the enactment of this Act, the Secretary of State shall submit to the appropriate committees of Congress, and make publicly available, a report that includes—
a copy of any repatriation agreement in effect for unaccompanied alien children;
a description of the status of any repatriation agreement that is being considered or negotiated;
a description of the foreign assistance funding provided by the United States Government to the 20 countries that have the highest total number of nationals entering the United States as unaccompanied alien children and the 20 countries that have the highest total number of nationals entering the United States who do not use the formal immigration system of the United States or of the countries such individuals are traveling through, including amounts provided for, and descriptions of, initiatives or programs—
to deter the children, adults, and families of each such country from illegally entering the United States; and
to care for or reintegrate repatriated unaccompanied alien children in the country of nationality or last habitual residence;
an examination of domestic initiatives by countries described in paragraph (3) with respect to the prevention of irregular migration by children, adults, and families and the manner in which the United States may work with such countries to make such initiatives more successful; and
recommendations on actions the United States may take, through foreign aid programs of the United States, to improve the ability of such countries to combat irregular migration.
Suspected trafficking of alien children— Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit to the appropriate committees of Congress, and make publicly available, a report that includes—
an anonymized data set describing incidents in which the Secretary has suspected that an alien child was apprehended multiple times as a part of different family units and the response of the Secretary to such incidents;
an anonymized data set describing incidents not described in paragraph (1) in which the Secretary has suspected that an alien child was falsely claimed as a member of a family unit and the response of the Secretary to such incidents;
a description of current techniques and technologies used to verify the identity of alien children who are presented as members of multiple family units; and
legislative recommendations to improve the ability of the Secretary to detect and respond to incidents in which an alien child is fraudulently claimed to be a member of a family unit.
Sec. 15 Improving the ability to transport migrants
Improvement of Transportation Policy and Standards—
In general— Not later than 90 days after the date of enactment of this Act, the Secretary shall update the transportation policies, standards, definitions, and any other needed guidance or regulations of the Department of Homeland Security to expand and improve the capability of the Department to conduct ground transportation of migrants at the southwest border.
Elements— The update required by paragraph 1 shall include—
the provision of authority, to the extent possible, for the Department of Homeland Security to transport migrants who are being released by the Department to facilities operated by State, local, or Tribal governments, or by nongovernmental organizations directly working to provide aid to migrants along the southwest border so as—
to ensure the health and safety of local communities and the migrants;
to promote an orderly environment along the border and at United States ports of entry; and
to avoid overburdening small communities that are poorly equipped to handle a population influx;
a consideration of the manner in which a public health emergency may require changes in Department transportation policy to protect public health and the health of migrants; and
a system through which the Department shall consistently provide not less than 4 hours advance notification to State, local, or Tribal governments, and nongovernmental organizations and private entities directly providing aid or other services to migrants, including services provided for a fee, of the intent of the Department to transport migrants to such jurisdictions or facilities located in such jurisdiction.
Limitation— Any authority established under paragraph (2)(A) shall be limited to transportation within the States of California, Arizona, New Mexico, and Texas, unless the Secretary certifies, on a case-by-case basis, that transport to a particular facility located in another State is necessary for the public good.
Report to Congress— Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit to the appropriate committees of Congress, and make publicly available, a report that includes—
an assessment as to whether current Department of Homeland Security ground transportation resources are sufficient—
to meet Department responsibilities with respect to the transportation of migrants; and
to ensure the safety of Department personnel and migrants;
a description of current Department contracts regarding transportation of migrants at the southwest border, the ability of the Department to expand such contracts to improve transportation capacity, and any limitations related to such contracts that impede the expansion of transportation capacity;
a description of recommended changes to Department transportation policies and standards that would require additional legislative authority;
recommendations to Congress for legislative changes that would improve the ability of the Department to expand and improve its transportation capabilities; and
an assessment of the impact of public health emergencies on Department transportation and the steps the Department will take to further improve transportation of migrants during public health emergencies.
Sec. 16 Rule of construction
Nothing in this Act shall be construed to affect any requirement placed on the Department of Homeland Security or any other agency under the terms of any lawful settlement agreement or consent decree entered into by the Department or another agency.
Sec. 17 Authorization of appropriations
There are authorized to be appropriated such sums as are necessary to carry out this Act and the amendments made by this Act.