Alternatives to Detention Act of 2019

II 116TH CONGRESS 1ST SESSION S. 1894 To require the Secretary of Homeland Security to use alternatives to detention for certain vulnerable immigrant populations, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 19, 2019 Ms. CORTEZ MASTO (for herself, Mr. MARKEY, Mrs. GILLIBRAND, Mr. BLUMENTHAL, and Mr. MERKLEY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To require the Secretary of Homeland Security to use alter- natives to detention for certain vulnerable immigrant populations, 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 ‘‘Alternatives to Deten- 4 tion Act of 2019’’. 5 SEC. 2. ALTERNATIVES TO DETENTION UNDER IMMIGRA- 6 TION LAWS. 7 (a) ESTABLISHMENT.— 8 VerDate Sep 11 2014 23:41 Jun 20, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS 2 •S 1894 IS (1) IN GENERAL.—The Secretary shall establish 1 programs to provide alternatives to detention under 2 the immigration laws. 3 (2) AVAILABILITY.—The programs under para- 4 graph (1) shall be available to an alien regardless of 5 whether— 6 (A) a decision on a charge of removability 7 with respect to the alien is pending; or 8 (B) the alien is subject to an order of re- 9 moval. 10 (3) CONTINUUM OF SUPERVISION.—The pro- 11 grams under paragraph (1) shall provide for a con- 12 tinuum of supervision mechanisms and options, in- 13 cluding community-based supervision and commu- 14 nity support. 15 (4) CONTRACTS WITH NONGOVERNMENTAL OR- 16 GANIZATIONS.—The Secretary may contract with 17 one or more nongovernmental organizations to pro- 18 vide services under this subsection and subsection 19 (b). 20 (b) RESTORATION OF THE FAMILY CASE MANAGE- 21 MENT PROGRAM.—Not later than 7 days after the date 22 of the enactment of this Act, the Secretary shall fully re- 23 store the U.S. Immigration and Customs Enforcement 24 VerDate Sep 11 2014 23:41 Jun 20, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS 3 •S 1894 IS Family Case Management Program as the program ex- 1 isted on January 21, 2016, which shall— 2 (1) provide community supervision and commu- 3 nity support services, including case management 4 services, appearance services, and screening of aliens 5 who have been detained; and 6 (2) be carried out through a contract with a 7 nongovernmental organization that has dem- 8 onstrated expertise in providing such supervision 9 and support services. 10 (c) DETERMINATION OF VULNERABLE POPULATION 11 OR CAREGIVER STATUS REQUIRED.— 12 (1) IN GENERAL.—Except as provided in para- 13 graph (3) and subject to paragraph (2), not later 14 than 72 hours after taking an individual into cus- 15 tody under the immigration laws, the Secretary, the 16 Commissioner of U.S. Customs and Border Protec- 17 tion, an immigration officer, or an immigration 18 judge shall make an individualized determination 19 with respect to— 20 (A) whether the individual may participate 21 in an alternatives to detention program, includ- 22 ing the Family Case Management Program de- 23 scribed in subsection (b); and 24 (B) the appropriate level of supervision. 25 VerDate Sep 11 2014 23:41 Jun 20, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS 4 •S 1894 IS (2) PRESUMPTION FOR PLACEMENT IN ALTER- 1 NATIVES TO DETENTION PROGRAM.— 2 (A) IN GENERAL.—There shall be a pre- 3 sumption for placement in an alternatives to de- 4 tention program that is a community-based su- 5 pervision program for any alien who is— 6 (i) taken into the physical custody of 7 the Department of Homeland Security; 8 and 9 (ii) a member of a vulnerable popu- 10 lation, a parent of a child under 18 years 11 of age, a dependent caregiver, or a family 12 caregiver. 13 (B) EXCEPTION.—The presumption de- 14 scribed in subparagraph (A) shall not apply if 15 the Secretary, the Commissioner of U.S. Cus- 16 toms and Border Protection, an immigration of- 17 ficer, or an immigration judge specifically deter- 18 mines that the alien is a threat to himself or 19 herself or the public. 20 (3) EXCEPTIONS.—Alternatives to detention 21 programs shall not be available to any individual— 22 (A) detained under section 236A of the 23 Immigration and Nationality Act (8 U.S.C. 24 1226a); or 25 VerDate Sep 11 2014 23:41 Jun 20, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS 5 •S 1894 IS (B) for whom release on bond or recog- 1 nizance is determined to be a sufficient measure 2 to ensure appearances at immigration pro- 3 ceedings and public safety. 4 (d) COORDINATOR OF ALTERNATIVES TO DETEN- 5 TION.— 6 (1) IN GENERAL.—Not later than 30 days after 7 the date of the enactment of this Act, the Secretary 8 shall— 9 (A) establish within the Department of 10 Homeland Security the position of Coordinator 11 of Alternatives to Detention (referred to in this 12 subsection as the ‘‘Coordinator’’), which shall 13 report directly to the Secretary; and 14 (B) appoint the Coordinator. 15 (2) RESOURCES.—The Secretary shall make 16 available to the Coordinator such personnel, funds, 17 and other resources as may be appropriate to enable 18 the Coordinator to carry out the mission under para- 19 graph (3)(A). 20 (3) MISSION AND DUTIES.— 21 (A) MISSION.—The mission of the Coordi- 22 nator shall be to coordinate, in collaboration 23 with the executive departments, the use of al- 24 ternatives to detention programs. 25 VerDate Sep 11 2014 23:41 Jun 20, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS 6 •S 1894 IS (B) DUTIES OF COORDINATOR.— 1 (i) IN GENERAL.—The Coordinator 2 shall— 3 (I) serve as the primary point of 4 contact within the executive branch 5 for Congress, State and local govern- 6 ments, the private sector, and commu- 7 nity leaders with respect to the alter- 8 natives to detention programs; and 9 (II) in coordination with the ex- 10 ecutive departments, with respect to 11 Congress, State and local govern- 12 ments, the private sector, and commu- 13 nity leaders, manage information flow 14 about, requests for actions relating to, 15 and discussions on such programs. 16 (ii) REPORTS REQUIRED.— 17 (I) MONTHLY REPORTS.—Not 18 later than 30 days after the date of 19 the appointment of the Coordinator, 20 and every 30 days thereafter, the Co- 21 ordinator shall submit to Congress a 22 report that includes— 23 VerDate Sep 11 2014 23:41 Jun 20, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS 7 •S 1894 IS (aa) the number of individ- 1 uals detained under the immigra- 2 tion laws— 3 (AA) pending a decision 4 on whether the individual is 5 to be removed; and 6 (BB) after the issuance 7 of a removal order; 8 (bb) an assessment whether 9 any individual described in item 10 (aa) is subject to the special rule 11 under subsection (c)(2); and 12 (cc) the number of individ- 13 uals participating in an alter- 14 natives to detention program es- 15 tablished under subsection (a), 16 disaggregated by the level of su- 17 pervision of such individuals. 18 (II) ANNUAL REPORTS.—Not 19 later than one year after the date of 20 the appointment of the Coordinator, 21 and annually thereafter, the Coordi- 22 nator shall submit to Congress a re- 23 port that includes— 24 VerDate Sep 11 2014 23:41 Jun 20, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS 8 •S 1894 IS (aa) guidance and require- 1 ments for referral and placement 2 decisions in alternatives to deten- 3 tion programs; 4 (bb) information on enroll- 5 ment in alternatives to detention 6 programs, disaggregated by field 7 office; 8 (cc) information on the 9 length of enrollment in alter- 10 natives to detention programs, 11 disaggregated by type of alter- 12 native to detention program; and 13 (dd) information on the pop- 14 ulation enrolled in alternatives to 15 detention programs, disaggre- 16 gated by type of alternative to 17 detention program and point of 18 apprehension. 19 (C) DUTIES OF EXECUTIVE DEPART- 20 MENTS.—The heads of the executive depart- 21 ments shall— 22 (i) respond promptly to any request 23 by the Coordinator; 24 VerDate Sep 11 2014 03:41 Jun 25, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS 9 •S 1894 IS (ii) consistent with applicable law, 1 provide such information as the Coordi- 2 nator considers necessary to carry out the 3 mission of the Coordinator; and 4 (iii) otherwise cooperate with the Co- 5 ordinator to the maximum extent prac- 6 ticable to facilitate the performance of the 7 mission under subparagraph (A). 8 (e) GAO STUDY AND REPORT.—The Comptroller 9 General of the United States shall— 10 (1) conduct a study on the use and effectiveness 11 of the alternatives to detention programs established 12 under subsection (a); and 13 (2) not later than two years after the date of 14 the enactment of this Act, submit to Congress a re- 15 port on the results of the study under paragraph 16 (1). 17 (f) DEFINITIONS.—In this section: 18 (1) DEPENDENT CAREGIVER.—The term ‘‘de- 19 pendent caregiver’’ means an individual who lives 20 with, and provides more than 1⁄2 of the financial 21 support required by, a family member who is— 22 (A) under 18 years of age; or 23 VerDate Sep 11 2014 23:41 Jun 20, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS 10 •S 1894 IS (B) unable to engage in substantial em- 1 ployment due to a physical or mental health 2 condition or disability. 3 (2) EXECUTIVE DEPARTMENTS.—The term ‘‘ex- 4 ecutive departments’’ has the meaning given the 5 term in section 101 of title 5, United States Code. 6 (3) FAMILY CAREGIVER.—The term ‘‘family 7 caregiver’’ means an individual who lives with, and 8 provides more than 1⁄2 of the personal care required 9 by, a family member who is— 10 (A) under 18 years of age; or 11 (B) unable to engage in substantial em- 12 ployment due to a physical or mental health 13 condition or disability. 14 (4) FAMILY MEMBER.—The term ‘‘family mem- 15 ber’’, with respect to an individual receiving personal 16 care services or financial support, means an indi- 17 vidual who is— 18 (A) a parent or legal guardian; 19 (B) a spouse; 20 (C) a child; 21 (D) a step-family member; or 22 (E) an extended family member. 23 (5) IMMIGRATION LAWS.—The term ‘‘immigra- 24 tion laws’’ has the meaning given the term in section 25 VerDate Sep 11 2014 23:41 Jun 20, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS 11 •S 1894 IS 101(a)(17) of the Immigration and Nationality Act 1 (8 U.S.C. 1101(a)(17)). 2 (6) LEGAL GUARDIAN.—The term ‘‘legal guard- 3 ian’’ means a legal guardian under State law or the 4 law of a foreign country. 5 (7) MEMBER OF A VULNERABLE POPU- 6 LATION.—The term ‘‘member of a vulnerable popu- 7 lation’’ means an individual who— 8 (A) is an asylum seeker or is otherwise 9 seeking lawful status; 10 (B) is a victim of torture or trafficking; 11 (C) has special religious, cultural, or spir- 12 itual considerations; 13 (D) is pregnant or nursing; 14 (E) is under 21 years of age; 15 (F) is older than 60 years of age; 16 (G) identifies as gay, lesbian, bisexual, 17 transgender, or intersex; 18 (H) is a victim or witness of a crime; 19 (I) has a mental disorder or physical dis- 20 ability; or 21 (J) is experiencing severe trauma or is a 22 survivor of torture or gender-based violence, as 23 determined by an immigration judge or the Sec- 24 retary based on information obtained— 25 VerDate Sep 11 2014 23:41 Jun 20, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS 12 •S 1894 IS (i) by the attorney or legal services 1 provider of the individual during intake; or 2 (ii) through credible reporting by the 3 individual. 4 (8) PARENT.—The term ‘‘parent’’ means a bio- 5 logical or adoptive parent of a child, whose parental 6 rights have not been relinquished or terminated 7 under State law or the law of a foreign country. 8 (9) SECRETARY.—The term ‘‘Secretary’’ means 9 the Secretary of Homeland Security. 10 SEC. 3. SAVINGS PROVISIONS. 11 (a) FEDERAL LAW.—Nothing in this Act may be con- 12 strued to supersede or modify— 13 (1) the William Wilberforce Trafficking Victims 14 Protection Reauthorization Act of 2008 (8 U.S.C. 15 1232 et seq.); 16 (2) the Stipulated Settlement Agreement filed 17 in the United States District Court for the Central 18 District of California on January 17, 1997 (CV 85– 19 4544–RJK) (commonly known as the ‘‘Flores Settle- 20 ment Agreement’’); 21 (3) the Homeland Security Act of 2002 (6 22 U.S.C. 101 et seq.); or 23 VerDate Sep 11 2014 23:41 Jun 20, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS 13 •S 1894 IS (4) any applicable Federal child welfare law, in- 1 cluding the Adoption and Safe Families Act of 1997 2 (Public Law 105–89). 3 (b) STATE LAW.—Nothing in this Act may be con- 4 strued to supersede or modify any applicable State child 5 welfare laws. 6 Æ VerDate Sep 11 2014 23:41 Jun 20, 2019 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6301 E:\BILLS\S1894.IS S1894 kjohnson on DSK79L0C42 with BILLS