Border Response Resilience Act

II 117TH CONGRESS 1ST SESSION S. 1949 To direct the Secretary of Homeland Security to establish a plan to respond to irregular migration at the border, to establish an irregular migration border response fund, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 27, 2021 Mr. PORTMAN (for himself and Mr. KELLY) introduced the following bill; which was read twice and referred to the Committee on Homeland Secu- rity and Governmental Affairs A BILL To direct the Secretary of Homeland Security to establish a plan to respond to irregular migration at the border, to establish an irregular migration 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 Response Resil- 4 ience Act’’. 5 VerDate Sep 11 2014 02:41 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1949.IS S1949 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1949 IS SEC. 2. IRREGULAR MIGRATION BORDER RESPONSE PLAN 1 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: 5 ‘‘SEC. 437. IRREGULAR MIGRATION BORDER RESPONSE 6 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 at the border that present risks to border secu- 12 rity (referred to in this section as the ‘Response 13 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— 25 VerDate Sep 11 2014 02:41 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1949.IS S1949 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1949 IS ‘‘(i) to enhance security and reinforce 1 infrastructure of the Department along the 2 border; 3 ‘‘(ii) to maximize the use of Border 4 Patrol Processing Coordinators to assist 5 with processing individuals in the custody 6 of the Department at the border; and 7 ‘‘(iii) to 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— 14 ‘‘(i) to identify needed personnel and 15 detail such personnel to the border; 16 ‘‘(ii) to request interagency assistance 17 for the border; 18 ‘‘(iii) to quickly expand temporary 19 processing and holding capacity to respond 20 to an irregular migration event at the bor- 21 der; and 22 ‘‘(iv) to track and keep the Secretary 23 informed of the metrics identified under 24 subsection (c). 25 VerDate Sep 11 2014 02:41 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1949.IS S1949 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1949 IS ‘‘(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 event at the border. 13 ‘‘(F) A strategy to ensure that an indi- 14 vidual at the border in the custody of the De- 15 partment is not released into the United States 16 during a public health emergency if the indi- 17 vidual has a communicable disease directly re- 18 lating to the public health emergency. 19 ‘‘(G) A strategy, for the purpose of public 20 safety, to inform and coordinate with other 21 Federal agencies, nongovernmental organiza- 22 tions, and relevant transportation companies 23 with respect to any release at the border of an 24 individual from the custody of the Department. 25 VerDate Sep 11 2014 02:41 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1949.IS S1949 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1949 IS ‘‘(H) A regularly updated intelligence-driv- 1 en analysis that includes— 2 ‘‘(i) trends at the border with respect 3 to demographics and group size that could 4 contribute to overcrowding of U.S. Cus- 5 toms and Border Protection facilities; 6 ‘‘(ii) migrant perceptions of United 7 States law and policy at the border, includ- 8 ing human smuggling organization mes- 9 saging and propaganda; 10 ‘‘(iii) tactics, techniques, and proce- 11 dures used by human smuggling organiza- 12 tions to exploit border security 13 vulnerabilities to facilitate such smuggling 14 activities across the border; 15 ‘‘(iv) the methods and use of tech- 16 nology to organize and encourage irregular 17 migration and undermine border security; 18 and 19 ‘‘(v) any other information the Sec- 20 retary determines appropriate. 21 ‘‘(b) DEPARTMENT COORDINATION.— 22 ‘‘(1) PARTNERSHIPS.— 23 ‘‘(A) IN GENERAL.—The Secretary shall 24 direct the participants in the Response Plan to 25 VerDate Sep 11 2014 02:41 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1949.IS S1949 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1949 IS enter into necessary and appropriate memo- 1 randa of understanding or other appropriate 2 agreements, to be periodically updated, to carry 3 out the requirements of this section. 4 ‘‘(B) RULE OF CONSTRUCTION.—Nothing 5 in this section may be construed to require par- 6 ticipants in the Response Plan to share the in- 7 formation or status of any individual. 8 ‘‘(2) ONGOING INTELLIGENCE ANALYSIS.—The 9 Secretary shall identify and implement the appro- 10 priate process to coordinate information sharing be- 11 tween the Office of Intelligence and Analysis, U.S. 12 Customs and Border Protection, U.S. Immigration 13 and Customs Enforcement, and any other appro- 14 priate agency in preparation for or during an irreg- 15 ular migration event at the border to assess the esti- 16 mated number of individuals traveling to the United 17 States border outside of standard trade and travel 18 routes. 19 ‘‘(3) COMMUNICATION.—The Secretary shall 20 identify the most appropriate communication struc- 21 ture to ensure immediate and continued success of 22 the Response Plan. 23 ‘‘(c) RESPONSE PLAN ACTIVATION.— 24 VerDate Sep 11 2014 02:41 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1949.IS S1949 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1949 IS ‘‘(1) THRESHOLD IDENTIFICATION, ACTIVA- 1 TION, AND DEACTIVATION.—The Secretary shall— 2 ‘‘(A) identify metric thresholds required to 3 activate the Response Plan; 4 ‘‘(B) activate the Response Plan when one 5 or more such thresholds are exceeded; and 6 ‘‘(C) deactivate the Response Plan when 7 one or more thresholds are no longer met. 8 ‘‘(2) ELEMENTS.—The metric thresholds to be 9 considered by the Secretary pursuant to paragraph 10 (1) shall include the following: 11 ‘‘(A) The average amount of time an indi- 12 vidual at the border is in the custody of U.S. 13 Customs and Border Protection, disaggregated 14 by whether such individual is a single adult, a 15 member of a family unit, or an unaccompanied 16 alien child. 17 ‘‘(B) The total percentage of individuals at 18 the border in the custody of the Department 19 with respect to capacity, disaggregated by— 20 ‘‘(i) field office or sector; and 21 ‘‘(ii) whether such an individual in the 22 custody of the Department is a single 23 adult, a member of a family unit, or an 24 unaccompanied alien child. 25 VerDate Sep 11 2014 02:41 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1949.IS S1949 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1949 IS ‘‘(C) The total percentage of individuals in 1 the custody of a partner agency with respect to 2 capacity, disaggregated by each facility holding 3 such individuals. 4 ‘‘(D) The estimated number of individuals 5 traveling to the United States border outside of 6 standard trade and travel routes as determined 7 by intelligence and other sources. 8 ‘‘(E) The estimated number of individuals 9 at the southern border of the United States 10 who are seeking food, shelter, or medical care 11 due to a natural disaster or other humanitarian 12 crisis in their home countries. 13 ‘‘(F) Any other such threshold the Sec- 14 retary considers appropriate. 15 ‘‘(3) NOTIFICATIONS TO CONGRESS.— 16 ‘‘(A) IN GENERAL.—Not later than 90 17 days after the date of the enactment of this sec- 18 tion, the Secretary shall— 19 ‘‘(i) publish in the Federal Register 20 the final of metric thresholds required 21 under paragraph (1)(A); and 22 ‘‘(ii) notify the appropriate commit- 23 tees of Congress of such publication. 24 VerDate Sep 11 2014 02:41 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1949.IS S1949 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1949 IS ‘‘(B) UPDATES.—Not later than 14 days 1 after the Secretary updates such metric thresh- 2 olds, the Secretary shall notify the appropriate 3 committees of Congress of such update. 4 ‘‘(d) AFTER-ACTION REVIEW.— 5 ‘‘(1) IN GENERAL.—The Secretary shall— 6 ‘‘(A) develop a process, including policies 7 and procedures, for initiating and conducting 8 an after-action review of the efforts of the De- 9 partment in response to an irregular migration 10 event at the border that poses a risk to border 11 security; and 12 ‘‘(B) conduct such a review at the conclu- 13 sion of any irregular migration event for which 14 the Response Plan has been activated. 15 ‘‘(2) ELEMENTS.—Each such review shall in- 16 clude the following: 17 ‘‘(A) An assessment of any changes nec- 18 essary, including adjustments in the allocation 19 of resources and modifications to authority, law, 20 or policy— 21 ‘‘(i) to improve the ability of the De- 22 partment to respond to future irregular 23 migration events at the border; and 24 VerDate Sep 11 2014 02:41 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1949.IS S1949 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1949 IS ‘‘(ii) to mitigate the risks to border 1 security posed by irregular migration 2 events. 3 ‘‘(B) Recommendations on reforms nec- 4 essary to enable the Department to better co- 5 ordinate with other Federal agencies and non- 6 governmental organizations on cases of individ- 7 uals requesting asylum in the United States. 8 ‘‘(3) REPORT.— 9 ‘‘(A) IN GENERAL.—Not later than 90 10 days after the completion of each after-action 11 review, the Secretary shall submit to the appro- 12 priate committees of Congress a report on the 13 results of the review. 14 ‘‘(B) FORM.—A report required under sub- 15 paragraph (A) shall be submitted in unclassi- 16 fied form but may contain a classified annex. 17 ‘‘(e) UPDATING RESPONSE PLAN.—The Secretary 18 shall— 19 ‘‘(1) periodically update the Response Plan and 20 the appropriate metric thresholds to activate the Re- 21 sponse Plan; and 22 ‘‘(2) consider the most recent action-after re- 23 view required under subsection (d) for such an up- 24 date. 25 VerDate Sep 11 2014 02:41 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1949.IS S1949 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1949 IS ‘‘(f) BRIEFING TO CONGRESS.—If the Secretary acti- 1 vates the Response Plan pursuant to subsection (c)(1)(B), 2 not later than 14 days after such activation, the Secretary 3 shall— 4 ‘‘(1) brief the appropriate committees of Con- 5 gress with respect to such activation; and 6 ‘‘(2) include with such briefing an assessment 7 with respect to whether there is a need to obligate 8 and expend amounts available from the Irregular 9 Migration Border Response Fund, established pursu- 10 ant to subsection (g). 11 ‘‘(g) IRREGULAR MIGRATION BORDER RESPONSE 12 FUND.— 13 ‘‘(1) ESTABLISHMENT.—There is established in 14 the Treasury of the United States a fund to be 15 known as the ‘Irregular Migration Border Response 16 Fund’ (referred to in this section as the ‘Fund’), 17 consisting of amounts appropriated pursuant to 18 paragraph (5). 19 ‘‘(2) INVESTMENT OF AMOUNTS.— 20 ‘‘(A) IN GENERAL.—The Secretary of the 21 Treasury shall invest such portion of the Fund 22 as is not required to meet current withdrawals 23 in interest-bearing obligations of the United 24 VerDate Sep 11 2014 02:41 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1949.IS S1949 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1949 IS States or in obligations guaranteed as to both 1 principal and interest by the United States. 2 ‘‘(B) INTEREST AND PROCEEDS.—The in- 3 terest on, and the proceeds from the sale or re- 4 demption of, any obligations held in the Fund 5 shall be credited to and form a part of the 6 Fund. 7 ‘‘(3) USE OF FUNDS.— 8 ‘‘(A) IN GENERAL.—The Secretary may 9 only obligate and expend amounts available in 10 the Fund— 11 ‘‘(i) if the Secretary activates the Re- 12 sponse Plan pursuant to subsection 13 (c)(1)(B); and 14 ‘‘(ii) for the purposes described in 15 subparagraph (B). 16 ‘‘(B) PURPOSES.—The purposes described 17 in this subparagraph are the following: 18 ‘‘(i) Replenishing the depletion of 19 consumables, personal protective equip- 20 ment, medical supplies and equipment, 21 transportation equipment, and personnel 22 overtime funds. 23 ‘‘(ii) Expanding temporary Depart- 24 ment processing capacity. 25 VerDate Sep 11 2014 02:41 Jun 16, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1949.IS S1949 kjohnson on DSK79L0C42PROD with BILLS 13 •S 1949 IS ‘‘(iii) Improving and ensuring— 1 ‘‘(I) age-appropriate and family- 2 appropriate shelter capacity; and 3 ‘‘(II) the safety of, and transpor- 4 tation and telecommunications serv- 5 ices for, individuals at the border in 6 the custody of the Department or 7 partner agencies. 8 ‘‘(iv) Coordinating with and providing 9 funding for nongovernmental organiza- 10 tions. 11 ‘‘(v) Ensuring timely communication 12 and transportation between the agencies of 13 the Department, or with partner agencies, 14 with respect to the transfer of individuals 15 at the border in the custody of the Depart- 16 ment. 17 ‘‘(vi) Requesting interagency assist- 18 ance and detailing Department personnel 19 in order to respond to an irregular migra- 20 tion event. 21 ‘‘(vii) Providing appropriate and ac- 22 cessible health care, [Text truncated for display. 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