Secure and Protect Act of 2021

II 117TH CONGRESS 1ST SESSION S. 959 To amend the William Wilberforce Trafficking Victims Protection Reauthor- ization Act of 2008 to protect alien minors and to amend the Immigra- tion and Nationality Act to end abuse of the asylum system and establish refugee application and processing centers outside the United States, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 24, 2021 Mr. GRAHAM (for himself, Mr. TILLIS, and Mr. BARRASSO) introduced the fol- lowing bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend the William Wilberforce Trafficking Victims Pro- tection Reauthorization Act of 2008 to protect alien mi- nors and to amend the Immigration and Nationality Act to end abuse of the asylum system and establish refugee application and processing centers outside the United States, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Secure and Protect 4 Act of 2021’’. 5 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 2 •S 959 IS SEC. 2. PROTECTION OF MINORS. 1 (a) PROMOTING FAMILY UNITY.—Section 235 of the 2 William Wilberforce Trafficking Victims Protection Reau- 3 thorization Act of 2008 (8 U.S.C. 1232) is amended by 4 adding at the end the following: 5 ‘‘(j) PROMOTING FAMILY UNITY.— 6 ‘‘(1) DETENTION OF ALIEN MINORS.— 7 ‘‘(A) IN GENERAL.—Notwithstanding any 8 other provision of law, judicial determination, 9 consent decree, or settlement agreement, the 10 Secretary of Homeland Security may detain any 11 alien minor (other than an unaccompanied alien 12 child) who is inadmissible to the United States 13 under section 212(a) of the Immigration and 14 Nationality Act (8 U.S.C. 1182(a)) or remov- 15 able from the United States under section 16 237(a) of that Act (8 U.S.C. 1227(a)) pending 17 the completion of removal proceedings, regard- 18 less of whether the alien minor was previously 19 an unaccompanied alien child. 20 ‘‘(B) PRIORITY REMOVAL CASES.—The At- 21 torney General shall— 22 ‘‘(i) prioritize the removal proceedings 23 of an alien minor, or a family unit that in- 24 cludes an alien minor, detained under sub- 25 paragraph (A); and 26 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 3 •S 959 IS ‘‘(ii) set a case completion goal of not 1 more than 100 days for such proceedings. 2 ‘‘(C) DETENTION AND RELEASE DECI- 3 SIONS.—The decision to detain or release an 4 alien minor described in subparagraph (A)— 5 ‘‘(i) shall be governed solely by sec- 6 tions 212(d)(5), 217, 235, 236, and 241 of 7 the Immigration and Nationality Act (8 8 U.S.C. 1182(d)(5), 1187, 1225, 1226, and 9 1231) and implementing regulations or 10 policies; and 11 ‘‘(ii) shall not be governed by stand- 12 ards, requirements, restrictions, or proce- 13 dures contained in a judicial decree or set- 14 tlement relating to the authority to detain 15 or release alien minors. 16 ‘‘(2) CONDITIONS OF DETENTION.— 17 ‘‘(A) IN GENERAL.—Notwithstanding any 18 other provision of law, judicial determination, 19 consent decree, or settlement agreement, the 20 Secretary of Homeland Security shall deter- 21 mine, in the sole discretion of the Secretary, the 22 conditions of detention applicable to an alien 23 minor described in paragraph (1)(A) regardless 24 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 4 •S 959 IS of whether the alien minor was previously an 1 unaccompanied alien child. 2 ‘‘(B) NO JUDICIAL REVIEW.—A determina- 3 tion under subparagraph (A) shall not be sub- 4 ject to judicial review. 5 ‘‘(3) RULE OF CONSTRUCTION.—Nothing in 6 this section— 7 ‘‘(A) affects the eligibility for bond or pa- 8 role of an alien; or 9 ‘‘(B) limits the authority of a court to hear 10 a claim arising under the Constitution of the 11 United States. 12 ‘‘(4) PREEMPTION OF STATE LICENSING RE- 13 QUIREMENTS.—Notwithstanding any other provision 14 of law, judicial determination, consent decree, or set- 15 tlement agreement, a State may not require an im- 16 migration detention facility used to detain families 17 consisting of one or more children who have not at- 18 tained 18 years of age and the parents or legal 19 guardians of such children, that is located in the 20 State, to be licensed by the State or any political 21 subdivision thereof. 22 ‘‘(5) CONDITIONS OF CUSTODY.—The Secretary 23 of Homeland Security shall ensure that each— 24 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 5 •S 959 IS ‘‘(A) family residential facility is secure 1 and safe; and 2 ‘‘(B) alien child and accompanying parent 3 at a family residential facility has— 4 ‘‘(i) suitable living accommodations; 5 ‘‘(ii) access to drinking water and 6 food; 7 ‘‘(iii) timely access to medical assist- 8 ance, including mental health assistance; 9 and 10 ‘‘(iv) access to any other service nec- 11 essary for the adequate care of a minor 12 child. 13 ‘‘(6) AUTHORIZATION OF APPROPRIATIONS.— 14 There are authorized to be appropriated such sums 15 as may be necessary to carry out this subsection. 16 ‘‘(k) APPLICABILITY OF CONSENT DECREES, SET- 17 TLEMENTS, AND JUDICIAL DETERMINATIONS.— 18 ‘‘(1) FLORES SETTLEMENT AGREEMENT INAP- 19 PLICABLE.—Any conduct or activity that was, before 20 the date of the enactment of this subsection, subject 21 to any restriction or obligation imposed by the stipu- 22 lated settlement agreement filed on January 17, 23 1997, in the United States District Court for the 24 Central District of California in Flores v. Reno, CV 25 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 6 •S 959 IS 85–4544–RJK, (commonly known as the ‘Flores set- 1 tlement agreement’), or imposed by any amendment 2 of that agreement or judicial determination based on 3 that agreement— 4 ‘‘(A) shall be subject to the restrictions 5 and obligations in subsection (j) or imposed by 6 the William Wilberforce Trafficking Victims 7 Protection Reauthorization Act of 2008 (Public 8 Law 110–457); and 9 ‘‘(B) shall not be subject to the restrictions 10 and the obligations imposed by such settlement 11 agreement or judicial determination. 12 ‘‘(2) OTHER SETTLEMENT AGREEMENTS OR 13 CONSENT DECREES.—In any civil action with respect 14 to the conditions of detention of alien children, the 15 court shall not enter or approve a settlement agree- 16 ment or consent decree unless it complies with the 17 limitations set forth in subsection (j).’’. 18 (b) SAFE AND PROMPT RETURN OF UNACCOM- 19 PANIED ALIEN CHILDREN.—Section 235(a) of the Wil- 20 liam Wilberforce Trafficking Victims Protection Reauthor- 21 ization Act of 2008 (8 U.S.C. 1232(a)) is amended— 22 (1) in paragraph (2)— 23 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 7 •S 959 IS (A) by amending the paragraph heading to 1 read as follows: ‘‘RULES FOR REPATRIATING 2 UNACCOMPANIED ALIEN CHILDREN’’; 3 (B) in subparagraph (A), in the matter 4 preceding clause (i), by striking ‘‘who is a na- 5 tional or habitual resident of a country that is 6 contiguous with the United States shall be 7 treated in accordance with subparagraph (B)’’ 8 and inserting ‘‘shall be treated in accordance 9 with this paragraph or subsection (b), as appli- 10 cable’’; 11 (C) in subparagraph (B)— 12 (i) by redesignating clauses (i) and 13 (ii) as subclauses (I) and (II), and moving 14 the subclauses two ems to the right; 15 (ii) in the matter preceding subclause 16 (I), as so redesignated, by striking ‘‘An im- 17 migration officer’’ and inserting the fol- 18 lowing: 19 ‘‘(i) IN GENERAL.—An immigration 20 officer’’; and 21 (iii) by adding at the end the fol- 22 lowing: 23 ‘‘(ii) CHILDREN UNABLE TO MAKE 24 DECISIONS WITH RESPECT TO WITH- 25 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 8 •S 959 IS DRAWAL OF APPLICATIONS FOR ADMIS- 1 SION.—If at the time of initial apprehen- 2 sion, an immigration officer determines, in 3 the sole and unreviewable discretion of the 4 immigration officer, that an unaccom- 5 panied alien child is not able to make an 6 independent decision with respect to the 7 withdrawal of his or her application for ad- 8 mission to the United States, the immigra- 9 tion officer shall refer the unaccompanied 10 alien child for removal proceedings under 11 section 240 of the Immigration and Na- 12 tionality Act (8 U.S.C. 1229a). 13 ‘‘(iii) CHILDREN ABLE TO MAKE DECI- 14 SIONS WITH RESPECT TO WITHDRAWAL OF 15 APPLICATIONS FOR ADMISSION.— 16 ‘‘(I) IN GENERAL.—Except as 17 described in subclause (III)(aa), not- 18 withstanding any other provision of 19 law that requires removal proceedings 20 under section 240 of the Immigration 21 and Nationality Act (8 U.S.C. 1229a), 22 including subparagraph (D) and sec- 23 tion 235 of the Immigration and Na- 24 tionality Act (8 U.S.C. 1225), in the 25 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 9 •S 959 IS case of an unaccompanied alien child 1 who is able to make an independent 2 decision with respect to the with- 3 drawal of his or her application for 4 admission to the United States, as de- 5 termined by an immigration officer at 6 the time of initial apprehension, and 7 does not wish to withdraw such appli- 8 cation, the immigration officer shall— 9 ‘‘(aa) make a record of any 10 finding of inadmissibility or de- 11 portability, which shall be the 12 basis of a repatriation order, 13 which shall be carried out and 14 the child shall be returned to his 15 or her country of nationality or 16 last habitual residence, unless the 17 child is referred— 18 ‘‘(AA) for removal pro- 19 ceedings pursuant to sub- 20 clause (III)(aa); or 21 ‘‘(BB) to an immigra- 22 tion judge for a determina- 23 tion pursuant to subclause 24 (III)(bb); and 25 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 10 •S 959 IS ‘‘(bb) refer the unaccom- 1 panied alien child for an inter- 2 view under subclause (II) to de- 3 termine whether it is more likely 4 than not that the unaccompanied 5 alien child— 6 ‘‘(AA) will be subjected 7 to trafficking on return to 8 his or her country of nation- 9 ality or last habitual resi- 10 dence; and 11 ‘‘(BB) would be grant- 12 ed asylum under section 208 13 of the Immigration and Na- 14 tionality Act (8 U.S.C. 15 1158), withholding of re- 16 moval under section 17 241(b)(3) of that Act (8 18 U.S.C. 1231(b)(3)), or pro- 19 tection under the regulations 20 issued pursuant to the legis- 21 lation implementing the 22 Convention Against Torture 23 and Other Cruel, Inhuman 24 or Degrading Treatment or 25 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 11 •S 959 IS Punishment, done at New 1 York, December 10, 1984 2 (referred to in this clause as 3 the ‘Convention Against 4 Torture’). 5 ‘‘(II) INTERVIEW.— 6 ‘‘(aa) IN GENERAL.—An 7 interview under subclause (I)(bb) 8 shall be conducted by an immi- 9 gration officer with specialized 10 training relating to— 11 ‘‘(AA) applicable law; 12 ‘‘(BB) interviewing 13 children; and 14 ‘‘(CC) child trafficking. 15 ‘‘(III) DETERMINATIONS BASED 16 ON INTERVIEW.— 17 ‘‘(aa) REMOVAL PRO- 18 CEEDINGS.—An unaccompanied 19 alien child described in subclause 20 (I) shall be referred for removal 21 proceedings under section 240 of 22 the Immigration and Nationality 23 Act (8 U.S.C. 1229a) if, based 24 on an interview under item (bb) 25 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 12 •S 959 IS of that subclause, the immigra- 1 tion officer makes a determina- 2 tion that it is more likely than 3 not that the unaccompanied alien 4 child will be trafficked on return 5 to his or her country of nation- 6 ality or last habitual residence. 7 ‘‘(bb) ASYLUM ONLY DETER- 8 MINATIONS.— 9 ‘‘(AA) IN GENERAL.— 10 If, based on an interview 11 under subclause (I)(bb), the 12 immigration officer makes a 13 determination that it is 14 more likely than not that the 15 claim of an unaccompanied 16 alien child for asylum under 17 section 208 of the Immigra- 18 tion and Nationality Act (8 19 U.S.C. 1158), withholding of 20 removal under section 21 241(b)(3) of that Act (8 22 U.S.C. 1231(b)(3)), or pro- 23 tection under the Convention 24 Against Torture will be 25 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 13 •S 959 IS granted, the unaccompanied 1 alien child shall be referred 2 to an immigration judge 3 solely for a determination 4 with respect to whether the 5 unaccompanied alien child is 6 eligible for asylum under 7 section 208 of that Act (8 8 U.S.C. 1158), withholding of 9 removal under section 10 241(b)(3) of that Act (8 11 U.S.C. 1231(b)(3)), or pro- 12 tection under the regulations 13 issued pursuant to the legis- 14 lation implementing the 15 Convention Against Torture 16 and, if otherwise eligible for 17 asylum, whether asylum 18 shall be granted in the exer- 19 cise of discretion. 20 ‘‘(BB) REPATRI- 21 ATION.—An unaccompanied 22 alien child referred to an im- 23 migration judge under 24 subitem (AA) shall be re- 25 VerDate Sep 11 2014 22:01 Apr 17, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S959.IS S959 kjohnson on DSK79L0C42PROD with BILLS 14 •S 959 IS turned to his or her country 1 of nationality or last habit- 2 ual residence if the immigra- 3 tion judge finds that the un- 4 accompanied alien child is 5 not entitled to asylum, with- 6 holding of removal, or pro- 7 tection under the regulations 8 issued pursuant to the legis- 9 lation implementing the 10 Convention Against Torture. 11 ‘‘(IV) DISCRETION OF IMMIGRA- 12 TION OFFICER; NO JUDICIAL RE- 13 VIEW.—A decision of an immigration 14 officer under this clause, and the 15 issuance of a [Text truncated for display. 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