Border Surge Response and Resilience Act

I 117TH CONGRESS 1ST SESSION H. R. 2321 To direct the Secretary of Homeland Security to establish a plan to respond to irregular migration surges at the border, to establish an irregular migration surge border response fund, and for other purposes. IN THE HOUSE OF REPRESENTATIVES APRIL 1, 2021 Mr. KATKO (for himself, Mr. CUELLAR, Mr. MCCAUL, Mr. HIGGINS of Lou- isiana, Mr. GUEST, Mr. VAN DREW, Mr. NORMAN, Mrs. HARSHBARGER, Mr. GIMENEZ, Mrs. MILLER-MEEKS, Mrs. CAMMACK, Mr. LATURNER, Mr. GARBARINO, Mr. CLYDE, and Mr. MEIJER) introduced the following bill; which was referred to the Committee on Homeland Security A BILL To direct the Secretary of Homeland Security to establish a plan to respond to irregular migration surges at the border, to establish an irregular migration surge border response fund, 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 ‘‘Border Surge Re- 4 sponse and Resilience Act’’. 5 VerDate Sep 11 2014 03:27 Jun 02, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2321.IH H2321 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 2321 IH SEC. 2. IRREGULAR MIGRATION SURGE BORDER RE- 1 SPONSE PLAN AND FUND. 2 (a) IN GENERAL.—Subtitle C of title IV of the 3 Homeland Security Act of 2002 (6 U.S.C. 231 et seq.) 4 is amended by adding at the end the following new section: 5 ‘‘SEC. 437. IRREGULAR MIGRATION SURGE BORDER RE- 6 SPONSE PLAN AND FUND. 7 ‘‘(a) RESPONSE PLAN.— 8 ‘‘(1) IN GENERAL.—The Secretary, in coordina- 9 tion with the heads of appropriate Federal agencies, 10 shall develop a plan to respond to irregular migra- 11 tion surges at the border that present risks to bor- 12 der security (referred to in this section as the ‘Re- 13 sponse Plan’). 14 ‘‘(2) ELEMENTS.—The Response Plan shall in- 15 clude the following: 16 ‘‘(A) The identification of— 17 ‘‘(i) each agency, component, and of- 18 fice participating in the Response Plan; 19 and 20 ‘‘(ii) the role, chain of command, and 21 responsibilities, including minimum accept- 22 able response times, of each such entity 23 identified pursuant to clause (i). 24 ‘‘(B) A strategy to— 25 VerDate Sep 11 2014 03:27 Jun 02, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2321.IH H2321 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 2321 IH ‘‘(i) enhance security and reinforce in- 1 frastructure of the Department along the 2 border; 3 ‘‘(ii) maximize the use of Border Pa- 4 trol Processing Coordinators to assist with 5 processing individuals in the custody of the 6 Department at the border; and 7 ‘‘(iii) conduct streamlined screening 8 and processing procedures of individuals in 9 the custody of the Department at the bor- 10 der without diminishing security measures 11 or normally conducted checks during such 12 procedures. 13 ‘‘(C) A process to— 14 ‘‘(i) identify needed personnel and de- 15 tail such personnel to the border; 16 ‘‘(ii) request interagency assistance 17 for the border; 18 ‘‘(iii) quickly expand temporary proc- 19 essing and holding capacity to respond to 20 an irregular migration surge at the border; 21 and 22 ‘‘(iv) track and keep the Secretary in- 23 formed of the metrics identified in sub- 24 section (c). 25 VerDate Sep 11 2014 03:27 Jun 02, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2321.IH H2321 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 2321 IH ‘‘(D) Policies and procedures to ensure 1 timely communication and coordination between 2 relevant agencies relating to— 3 ‘‘(i) the capacity of Department bor- 4 der facilities; and 5 ‘‘(ii) transferring individuals at the 6 border in the custody of the Department 7 within the Department or to other agen- 8 cies. 9 ‘‘(E) A process to initiate and conduct an 10 after-action review of the efforts of the Depart- 11 ment in response to an irregular migration 12 surge at the border. 13 ‘‘(F) A strategy to ensure any individual at 14 the border in the custody of the Department is 15 not released into the United States during a 16 public health emergency, if any such individual 17 has a communicable disease relating to the pub- 18 lic health emergency. 19 ‘‘(G) A strategy to inform and coordinate, 20 for the purposes of public safety, any release of 21 individuals at the border from the custody of 22 the Department with the appropriate State, 23 Tribal, and local governments, non-govern- 24 VerDate Sep 11 2014 03:27 Jun 02, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2321.IH H2321 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 2321 IH mental organizations, and relevant transpor- 1 tation companies. 2 ‘‘(H) A regularly updated intelligence driv- 3 en analysis that includes— 4 ‘‘(i) trends at the border with respect 5 to demographics and group size that could 6 contribute to overcrowding of CBP border 7 facilities; 8 ‘‘(ii) migrant perceptions of United 9 States law and policy at the border, includ- 10 ing human smuggling organization mes- 11 saging and propaganda; 12 ‘‘(iii) tactics, techniques, and proce- 13 dures used by human smuggling organiza- 14 tions to exploit border security 15 vulnerabilities to facilitate such smuggling 16 activities across the border; 17 ‘‘(iv) a consideration of historical ap- 18 prehension recidivism rates and any fluc- 19 tuation with respect to such rates; 20 ‘‘(v) the methods and use of tech- 21 nology to organize and encourage irregular 22 migration and undermine border security; 23 and 24 VerDate Sep 11 2014 03:27 Jun 02, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2321.IH H2321 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 2321 IH ‘‘(vi) any other information the Sec- 1 retary determines appropriate. 2 ‘‘(b) DEPARTMENT COORDINATION.— 3 ‘‘(1) PARTNERSHIPS.—The Secretary shall di- 4 rect the participants in the Response Plan of the 5 Department to enter into necessary and appropriate 6 memoranda of understanding or other appropriate 7 agreements, to be periodically updated, to carry out 8 the requirements of this section. 9 ‘‘(2) ONGOING INTELLIGENCE ANALYSIS.—The 10 Secretary shall identify and implement the appro- 11 priate process to coordinate information sharing be- 12 tween the Office of Intelligence and Analysis, CBP, 13 ICE, and any other appropriate agency in prepara- 14 tion for or during an irregular migration surge at 15 the border to assess the estimated number of indi- 16 viduals traveling to the United States border outside 17 of standard trade and travel routes. 18 ‘‘(3) COMMUNICATION.—The Secretary shall 19 identify the most appropriate communication struc- 20 ture to ensure immediate and continued success of 21 the Response Plan. 22 ‘‘(c) RESPONSE PLAN ACTIVATION.— 23 ‘‘(1) THRESHOLD IDENTIFICATION AND ACTIVA- 24 TION.—The Secretary shall— 25 VerDate Sep 11 2014 03:27 Jun 02, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2321.IH H2321 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 2321 IH ‘‘(A) identify metric thresholds required to 1 activate the Response Plan; and 2 ‘‘(B) activate the Response Plan when 3 such thresholds are satisfied. 4 ‘‘(2) ELEMENTS.—The metric thresholds to be 5 considered by the Secretary pursuant to paragraph 6 (1) include the following: 7 ‘‘(A) The average amount of time an indi- 8 vidual at the border is in the custody of CBP, 9 disaggregated by whether such individual is a 10 single adult, a member of a family unit, or an 11 unaccompanied alien child. 12 ‘‘(B) The total percentage of individuals at 13 the border in the custody of the Department 14 with respect to capacity, disaggregated by— 15 ‘‘(i) field office or sector; and 16 ‘‘(ii) whether such an individual in the 17 custody of the Department is a single 18 adult, a member of a family unit, or an 19 unaccompanied alien child. 20 ‘‘(C) The total percentage of individuals in 21 the custody of a partner agency with respect to 22 capacity, disaggregated by each facility holding 23 such individuals. 24 VerDate Sep 11 2014 03:27 Jun 02, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2321.IH H2321 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 2321 IH ‘‘(D) The estimated number of individuals 1 traveling to the United States border outside of 2 standard trade and travel routes as determined 3 by intelligence and other sources. 4 ‘‘(E) Any other such threshold the Sec- 5 retary determines appropriate. 6 ‘‘(3) NOTIFICATIONS TO CONGRESS.— 7 ‘‘(A) IN GENERAL.—Not later than 45 8 days after the date of the enactment of this 9 Act, the Secretary shall notify the appropriate 10 congressional committees of the finalization of 11 the metric thresholds required under paragraph 12 (1)(A). 13 ‘‘(B) UPDATING METRIC THRESHOLDS.— 14 Not later than 14 days after the Secretary up- 15 dates such metric thresholds, the Secretary 16 shall notify the appropriate congressional com- 17 mittees of such update. 18 ‘‘(d) AFTER-ACTION REVIEW.—The Secretary shall 19 develop a process, including policies and procedures, to ini- 20 tiate and conduct an after-action review of the efforts of 21 the Department in response to an irregular migration 22 surge at the border that presents risks to border security. 23 The review shall— 24 VerDate Sep 11 2014 03:27 Jun 02, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2321.IH H2321 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 2321 IH ‘‘(1) be conducted at the conclusion of such a 1 surge in which the Response Plan has been activated 2 by the Secretary; and 3 ‘‘(2) include a consideration of any necessary 4 changes, including allocation of resources and 5 changes in authority, law, or policy to improve the 6 ability of the Department to respond to future irreg- 7 ular migration surges at the border and mititgate 8 the risks to border security from such surges. 9 ‘‘(e) UPDATING RESPONSE PLAN.—The Secretary 10 shall— 11 ‘‘(1) periodically update the Response Plan and 12 the appropriate metric thresholds to activate the Re- 13 sponse Plan; and 14 ‘‘(2) consider the most recent action-after re- 15 view required under subsection (d) for such an up- 16 date. 17 ‘‘(f) BRIEFING TO CONGRESS.—If the Secretary acti- 18 vates the Response Plan pursuant to subsection (c)(1)(B), 19 not later than 14 days after such activation, the Secretary 20 shall— 21 ‘‘(1) brief the appropriate congressional com- 22 mittees with respect to such activation; and 23 ‘‘(2) include with such briefing an assessment 24 with respect to whether there is a need to obligate 25 VerDate Sep 11 2014 03:27 Jun 02, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2321.IH H2321 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 2321 IH and expend amounts available from the Irregular 1 Migration Surge Border Response Fund, established 2 pursuant to subsection (g). 3 ‘‘(g) IRREGULAR MIGRATION SURGE BORDER RE- 4 SPONSE FUND.— 5 ‘‘(1) CREATION OF FUND.—There is established 6 in the Treasury of the United States a fund to be 7 known as the ‘Irregular Migration Surge Border Re- 8 sponse Fund’ (referred to in this section referred to 9 as the ‘Fund’), consisting of amounts appropriated 10 pursuant to the authorization of appropriations in 11 paragraph (4). 12 ‘‘(2) INVESTMENT OF AMOUNTS.— 13 ‘‘(A) IN GENERAL.—The Secretary of the 14 Treasury shall invest such portion of the Fund 15 as is not required to meet current withdrawals 16 in interest-bearing obligations of the United 17 States or in obligations guaranteed as to both 18 principal and interest by the United States. 19 ‘‘(B) INTEREST AND PROCEEDS.—The in- 20 terest on, and the proceeds from the sale or re- 21 demption of, any obligations held in the Fund 22 shall be credited to and form a part of the 23 Fund. 24 ‘‘(3) USE OF FUNDS.— 25 VerDate Sep 11 2014 03:27 Jun 02, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2321.IH H2321 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 2321 IH ‘‘(A) IN GENERAL.—The Secretary may 1 only obligate and expend amounts available in 2 the Fund— 3 ‘‘(i) if the Secretary activates the Re- 4 sponse Plan pursuant to subsection 5 (a)(4)(A); and 6 ‘‘(ii) for the purposes described in 7 subparagraph (B). 8 ‘‘(B) PURPOSES.—The purposes described 9 in this subparagraph are the following: 10 ‘‘(i) Replenishing the depletion of 11 consumables, personal protective equip- 12 ment, medical supplies and equipment, 13 transportation equipment, and personnel 14 overtime funds. 15 ‘‘(ii) Expanding temporary Depart- 16 ment processing capacity, long-term hold- 17 ing capacity, and transportation services 18 for individuals at the border in the custody 19 of the Department or partner agencies. 20 ‘‘(iii) Ensuring timely communication 21 and transportation between the agencies of 22 the Department, or with partner agencies, 23 with respect to the transfer of individuals 24 VerDate Sep 11 2014 03:27 Jun 02, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2321.IH H2321 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 2321 IH at the border in the custody of the Depart- 1 ment. 2 ‘‘(iv) Requesting interagency assist- 3 ance and detailing Department personnel 4 in order to respond to an irregular migra- 5 tion surge. 6 ‘‘(4) REMAINING AMOUNTS.— 7 ‘‘(A) IN GENERAL.—Amounts in the Fund 8 shall remain available until expended. 9 ‘‘(B) EXCEPTION.—Amounts remaining in 10 the Fund at the end of fiscal year 2025 shall 11 be returned to the general fund of the Treas- 12 ury. 13 ‘‘(5) AUTHORIZATION OF APPROPRIATIONS.— 14 There are authorized to be appropriated to the Ir- 15 regular Migration Surge Border Response Fund 16 $1,000,000,000 in fiscal year 2022 and such sums 17 as are necessary to maintain a balance of 18 $1,000,000,000 for each fiscal year from 2022 19 through 2025. 20 ‘‘(h) DEFINITIONS.—In this section: 21 ‘‘(1) APPROPRIATE CONGRESSIONAL COMMIT- 22 TEES.—The term ‘appropriate congressional com- 23 mittees’ means— 24 VerDate Sep 11 2014 03:27 Jun 02, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H2321.IH H2321 pbinns on DSKJLVW7X2PROD with BILLS 13 •HR 2321 IH ‘‘(A) the Committee on Homeland Security 1 of the House of Representatives; and 2 ‘‘(B) the Committee on Homeland Security 3 and Governmental Affairs of the Senate. 4 ‘‘(2) BORDER.—The term ‘border’ means the 5 international land borders of the United States. 6 ‘‘(3) CBP.—The term ‘CBP’ means U.S. Cus- 7 toms and Border Protection. 8 ‘‘(4) ICE.—The term ‘ICE’ means U.S. Immi- 9 gration and Customs Enforcement. 10 ‘‘(5) IRREGULAR MIGRATION SURGE.—The term 11 ‘irregular migration surge’ means a significant in- 12 crease or a sustained large number of Department 13 encounters with individuals at the border that— 14 ‘‘(A) do not use the for [Text truncated for display. 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