Secure and Protect Act of 2019

II Calendar No. 181 116TH CONGRESS 1ST SESSION S. 1494 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 MAY 15, 2019 Mr. GRAHAM (for himself and Ms. MCSALLY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary AUGUST 16, 2019 Reported under authority of the order of the Senate of August 1, 2019, by Mr. GRAHAM, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] 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 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1494 RS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Secure and Protect 2 Act of 2019’’. 3 SEC. 2. PROTECTION OF MINORS. 4 (a) PROMOTING FAMILY UNITY.—Section 235 of the 5 William Wilberforce Trafficking Victims Protection Reau- 6 thorization Act of 2008 (8 U.S.C. 1232) is amended by 7 adding at the end the following: 8 ‘‘(j) PROMOTING FAMILY UNITY.— 9 ‘‘(1) DETENTION OF ALIEN MINORS.— 10 ‘‘(A) IN GENERAL.—Notwithstanding any 11 other provision of law, judicial determination, 12 consent decree, or settlement agreement, the 13 Secretary of Homeland Security may detain any 14 alien minor (other than an unaccompanied alien 15 child) who is removable from the United States 16 under section 237 of the Immigration and Na- 17 tionality Act (8 U.S.C. 1227) for not more than 18 100 days pending the completion of removal 19 proceedings, regardless of whether the alien 20 minor was previously an unaccompanied alien 21 child. 22 ‘‘(B) PRIORITY REMOVAL CASES.—The Di- 23 rector of the Executive Office for Immigration 24 Review shall— 25 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1494 RS ‘‘(i) prioritize the removal proceedings 1 of an alien minor, or a family unit that in- 2 cludes an alien minor, detained under sub- 3 paragraph (A); and 4 ‘‘(ii) set a case completion goal of not 5 more than 100 days for such proceedings. 6 ‘‘(C) DETENTION AND RELEASE DECI- 7 SIONS.—The decision to detain or release an 8 alien minor described in subparagraph (A)— 9 ‘‘(i) shall be governed solely by sec- 10 tions 212(d)(5), 217, 235, 236, and 241 of 11 the Immigration and Nationality Act (8 12 U.S.C. 1182(d)(5), 1187, 1225, 1226, and 13 1231) and implementing regulations or 14 policies; and 15 ‘‘(ii) shall not be governed by stand- 16 ards, requirements, restrictions, or proce- 17 dures contained in a judicial decree or set- 18 tlement relating to the authority to detain 19 or release alien minors. 20 ‘‘(2) CONDITIONS OF DETENTION.— 21 ‘‘(A) IN GENERAL.—Notwithstanding any 22 other provision of law, judicial determination, 23 consent decree, or settlement agreement, the 24 Secretary of Homeland Security shall deter- 25 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1494 RS mine, in the sole discretion of the Secretary, the 1 conditions of detention applicable to an alien 2 minor described in paragraph (1)(A) regardless 3 of whether the alien minor was previously an 4 unaccompanied alien child. 5 ‘‘(B) NO JUDICIAL REVIEW.—A determina- 6 tion under subparagraph (A) shall not be sub- 7 ject to judicial review. 8 ‘‘(3) RULE OF CONSTRUCTION.—Nothing in 9 this section— 10 ‘‘(A) affects the eligibility for bond or pa- 11 role of an alien; or 12 ‘‘(B) limits the authority of a court to hear 13 a claim arising under the Constitution of the 14 United States. 15 ‘‘(4) PREEMPTION OF STATE LICENSING RE- 16 QUIREMENTS.—Notwithstanding any other provision 17 of law, judicial determination, consent decree, or set- 18 tlement agreement, a State may not require an im- 19 migration detention facility used to detain families 20 consisting of one or more children who have not at- 21 tained 18 years of age and the parents or legal 22 guardians of such children, that is located in the 23 State, to be licensed by the State or any political 24 subdivision thereof. 25 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1494 RS ‘‘(5) AUTHORIZATION OF APPROPRIATIONS.— 1 There are authorized to be appropriated such sums 2 as may be necessary to carry out this subsection. 3 ‘‘(k) APPLICABILITY OF CONSENT DECREES, SET- 4 TLEMENTS, AND JUDICIAL DETERMINATIONS.— 5 ‘‘(1) FLORES SETTLEMENT AGREEMENT INAP- 6 PLICABLE.—Conduct and activity that was, before 7 the date of the enactment of this subsection, subject 8 to a restriction or an obligation imposed by the stip- 9 ulated settlement agreement filed on January 17, 10 1997, in the United States District Court for the 11 Central District of California in Flores v. Reno (CV 12 85–4544–RJK) (commonly known as the ‘Flores 13 settlement agreement’), including any modification 14 of and any judicial determination based on such 15 agreement— 16 ‘‘(A) shall not be subject to such restric- 17 tion or obligation; and 18 ‘‘(B) shall be subject to the restrictions 19 and obligations under this Act. 20 ‘‘(2) OTHER SETTLEMENT AGREEMENTS OR 21 CONSENT DECREES.—Any settlement agreement or 22 consent decree relating to the conditions of detention 23 of an alien child shall be consistent with subsection 24 (j).’’. 25 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1494 RS (b) SAFE AND PROMPT RETURN OF UNACCOM- 1 PANIED ALIEN CHILDREN.—Section 235(a) of the Wil- 2 liam Wilberforce Trafficking Victims Protection Reauthor- 3 ization Act of 2008 (8 U.S.C. 1232(a)) is amended— 4 (1) in paragraph (2)— 5 (A) by amending the paragraph heading to 6 read as follows: ‘‘RULES FOR REPATRIATING 7 UNACCOMPANIED ALIEN CHILDREN’’; 8 (B) in subparagraph (A), in the matter 9 preceding clause (i), by striking ‘‘who is a na- 10 tional or habitual resident of a country that is 11 contiguous with the United States shall be 12 treated in accordance with subparagraph (B)’’ 13 and inserting ‘‘shall be treated in accordance 14 with this paragraph or subsection (b), as appli- 15 cable’’; 16 (C) in subparagraph (B)— 17 (i) by redesignating clauses (i) and 18 (ii) as subclauses (I) and (II), and moving 19 the subclauses two ems to the right; 20 (ii) in the matter preceding subclause 21 (I), as so redesignated, by striking ‘‘An im- 22 migration officer’’ and inserting the fol- 23 lowing: 24 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1494 RS ‘‘(i) IN GENERAL.—An immigration 1 officer’’; and 2 (iii) by adding at the end the fol- 3 lowing: 4 ‘‘(ii) CHILDREN UNABLE TO MAKE 5 DECISIONS WITH RESPECT TO WITH- 6 DRAWAL OF APPLICATIONS FOR ADMIS- 7 SION.—If at the time of initial apprehen- 8 sion, an immigration officer determines, in 9 the sole and unreviewable discretion of the 10 immigration officer, that an unaccom- 11 panied alien child is not able to make an 12 independent decision with respect to the 13 withdrawal of his or her application for ad- 14 mission to the United States, the immigra- 15 tion officer shall refer the unaccompanied 16 alien child for removal proceedings under 17 section 240 of the Immigration and Na- 18 tionality Act (8 U.S.C. 1229a). 19 ‘‘(iii) CHILDREN ABLE TO MAKE DECI- 20 SIONS WITH RESPECT TO WITHDRAWAL OF 21 APPLICATIONS FOR ADMISSION.— 22 ‘‘(I) IN GENERAL.—Except as 23 described in subclause (III)(aa), not- 24 withstanding any other provision of 25 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1494 RS law that requires removal proceedings 1 under section 240 of the Immigration 2 and Nationality Act (8 U.S.C. 1229a), 3 including subparagraph (D) and sec- 4 tion 235 of the Immigration and Na- 5 tionality Act (8 U.S.C. 1225), in the 6 case of an unaccompanied alien child 7 who is able to make an independent 8 decision with respect to the with- 9 drawal of his or her application for 10 admission to the United States, as de- 11 termined by an immigration officer at 12 the time of initial apprehension, and 13 does not wish to withdraw such appli- 14 cation, the immigration officer shall— 15 ‘‘(aa) make a record of any 16 finding of inadmissibility or de- 17 portability, which shall be the 18 basis of a repatriation order; and 19 ‘‘(bb) refer the unaccom- 20 panied alien child for an inter- 21 view under subclause (II) to de- 22 termine whether it is more likely 23 than not that the unaccompanied 24 alien child— 25 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6401 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1494 RS ‘‘(AA) will be subjected 1 to trafficking on return to 2 his or her country of nation- 3 ality or last habitual resi- 4 dence; and 5 ‘‘(BB) would be grant- 6 ed asylum under section 208 7 of the Immigration and Na- 8 tionality Act (8 U.S.C. 9 1158), withholding of re- 10 moval under section 11 241(b)(3) of that Act (8 12 U.S.C. 1231(b)(3)), or pro- 13 tection under the Convention 14 Against Torture and Other 15 Cruel, Inhuman or Degrad- 16 ing Treatment or Punish- 17 ment, done at New York, 18 December 10, 1984 (re- 19 ferred to in this clause as 20 the ‘Convention Against 21 Torture’). 22 ‘‘(II) INTERVIEW.— 23 ‘‘(aa) IN GENERAL.—An 24 interview under subclause (I)(bb) 25 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6401 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1494 RS shall be conducted by an immi- 1 gration officer with specialized 2 training relating to— 3 ‘‘(AA) applicable law; 4 ‘‘(BB) interviewing 5 children; and 6 ‘‘(CC) child trafficking. 7 ‘‘(III) DETERMINATIONS BASED 8 ON INTERVIEW.— 9 ‘‘(aa) REMOVAL PRO- 10 CEEDINGS.—An unaccompanied 11 alien child described in subclause 12 (I) shall be referred for removal 13 proceedings under section 240 of 14 the Immigration and Nationality 15 Act (8 U.S.C. 1229a) if, based 16 on an interview under item (bb) 17 of that subclause, the immigra- 18 tion officer makes a determina- 19 tion that it is more likely than 20 not that the unaccompanied alien 21 child will be trafficked on return 22 to his or her country of nation- 23 ality or last habitual residence. 24 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6401 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1494 RS ‘‘(bb) ASYLUM ONLY DETER- 1 MINATIONS.— 2 ‘‘(AA) IN GENERAL.— 3 If, based on an interview 4 under subclause (I)(bb), the 5 immigration officer makes a 6 determination that it is 7 more likely than not that the 8 claim of an unaccompanied 9 alien child for asylum under 10 section 208 of the Immigra- 11 tion and Nationality Act (8 12 U.S.C. 1158), withholding of 13 removal under section 14 241(b)(3) of that Act (8 15 U.S.C. 1231(b)(3)), or pro- 16 tection under the Convention 17 Against Torture will be 18 granted, the unaccompanied 19 alien child shall be referred 20 to an immigration judge 21 solely for a determination 22 with respect to whether the 23 unaccompanied alien child is 24 eligible for asylum under 25 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6401 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 1494 RS section 208 of that Act (8 1 U.S.C. 1158), withholding of 2 removal under section 3 241(b)(3) of that Act (8 4 U.S.C. 1231(b)(3)), or pro- 5 tection under the Convention 6 Against Torture and, if oth- 7 erwise eligible for asylum, 8 whether asylum shall be 9 granted in the exercise of 10 discretion. 11 ‘‘(BB) REPATRI- 12 ATION.—An unaccompanied 13 alien child referred to an im- 14 migration judge under 15 subitem (AA) shall be re- 16 turned to his or her country 17 of nationality or last habit- 18 ual residence if the immigra- 19 tion judge finds that the un- 20 accompanied alien child is 21 not entitled to asylum, with- 22 holding of removal, or pro- 23 tection under the Convention 24 Against Torture. 25 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6401 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 13 •S 1494 RS ‘‘(IV) DISCRETION OF IMMIGRA- 1 TION OFFICER; NO JUDICIAL RE- 2 VIEW.—A decision of an immigration 3 officer under this clause, and the 4 issuance of a repatriation order, shall 5 be in the sole, unreviewable discretion 6 of the immigration officer. 7 ‘‘(iv) DETENTION DURING PRO- 8 CEEDINGS.— 9 ‘‘(I) IN GENERAL.—Except as 10 provided in subclause (II), notwith- 11 standing any other provision of law, 12 settlement agreement, or consent de- 13 cree, an unaccompanied alien child 14 shall not be released from the custody 15 of the Secretary of Homeland Security 16 or the Director of the Office of Ref- 17 ugee Resettlement during the pend- 18 ency of the immigration or removal 19 proceedings of the unaccompanied 20 alien child. 21 ‘‘(II) EXCEPTION.—An unaccom- 22 panied alien child may be released in 23 the sole, unreviewable discretion of 24 VerDate Sep 11 2014 20:51 Aug 16, 2019 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6401 E:\BILLS\S1494.RS S1494 pamtmann on DSKBFK8HB2PROD with BILLS 14 •S 1494 RS the Director of the Office of Refugee 1 Resettlement.’’; and 2 (D) in subparagraph (C)— 3 (i) by amending the subparagraph 4 heading to read as follows: ‘‘AGREEMENTS 5 WITH FOREIGN COUNTRIES.—’’; and 6 (ii) in the matter preceding clause (i), 7 by striking ‘‘countries contiguous to the 8 United States’’ and inserting ‘‘Canada, El 9 Salvador, Guatemala, Honduras, Mexico, 10 and any other foreign country the Sec- 11 retary considers appropriate’’; 12 (2) by striking paragraph (3); 13 (3) by redes [Text truncated for display. 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