New Way Forward Act

I 116TH CONGRESS 1ST SESSION H. R. 5383 To reform the process for enforcing the immigration laws of the United States, and for other purposes. IN THE HOUSE OF REPRESENTATIVES DECEMBER 10, 2019 Mr. GARCI´A of Illinois (for himself, Ms. JAYAPAL, Ms. BASS, Ms. PRESSLEY, Mr. GRIJALVA, Ms. VELA´ZQUEZ, Ms. HAALAND, Ms. TLAIB, Ms. ESCOBAR, Ms. OMAR, Ms. GARCIA of Texas, Mr. ESPAILLAT, Ms. OCASIO-CORTEZ, Ms. JUDY CHU of California, Mr. DANNY K. DAVIS of Illinois, Ms. LEE of California, Mr. RUSH, Mr. BLUMENAUER, Mr. TAKANO, Ms. BARRAGA´N, Mr. MCGOVERN, Ms. MENG, Mrs. NAPOLI- TANO, Ms. SCHAKOWSKY, Ms. WILSON of Florida, Mr. SERRANO, Ms. CLARKE of New York, Ms. NORTON, Mrs. WATSON COLEMAN, Mr. VARGAS, Mr. CA´RDENAS, Mr. BROWN of Maryland, Mr. JOHNSON of Georgia, Mr. CORREA, and Mr. MEEKS) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To reform the process for enforcing the immigration laws of 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 ‘‘New Way Forward 4 Act’’. 5 VerDate Sep 11 2014 23:58 Dec 15, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5383.IH H5383 kjohnson on DSK79L0C42 with BILLS 2 •HR 5383 IH TITLE I—END MANDATORY DE- 1 TENTION AND REQUIRE 2 PROBABLE CAUSE FOR AR- 3 REST 4 SEC. 101. PHASE-OUT OF PRIVATE FOR-PROFIT DETENTION 5 FACILITIES AND USE OF JAILS. 6 (a) SECURE DETENTION FACILITIES.—Beginning on 7 the date of the enactment of this Act, the Secretary of 8 Homeland Security may not enter into, or extend, any con- 9 tract with any public or private for-profit entity that owns 10 or operates a detention facility for use of that facility to 11 detain aliens in the custody of the Department of Home- 12 land Security, and shall terminate any such contract not 13 later than the date that is 3 years after the date of the 14 enactment of this Act. Beginning on the date that is 3 15 years after the date of the enactment of this Act, any facil- 16 ity at which aliens in the custody of the Department of 17 Homeland Security are detained shall be owned and oper- 18 ated by the Department of Homeland Security. 19 (b) NON-SECURE DETENTION PROGRAMS.—Begin- 20 ning on the date of the enactment of this Act, the Sec- 21 retary of Homeland Security may not enter into, or ex- 22 tend, any contract with any public or private for-profit en- 23 tity that owns or operates a program or facility that pro- 24 vides for non-residential detention-related activities for 25 VerDate Sep 11 2014 23:58 Dec 15, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5383.IH H5383 kjohnson on DSK79L0C42 with BILLS 3 •HR 5383 IH aliens who are subject to monitoring by the Department 1 of Homeland Security, and shall terminate any such con- 2 tact not later than the date that is 3 years after the date 3 of the enactment of this Act. Beginning on the date that 4 is 3 years after the date of the enactment of this Act, 5 any such program or facility shall be owned and operated 6 by a nonprofit organization or by the Department of 7 Homeland Security. 8 (c) PUBLICATION OF PLAN.—Not later than 60 days 9 after the date of the enactment of this Act, the Secretary 10 shall develop, and make publicly available, a plan and 11 timeline for the implementation of this section. 12 SEC. 102. PROCEDURES FOR DETAINING ALIENS. 13 (a) CUSTODY AND BOND DETERMINATIONS.—Sec- 14 tion 236 of the Immigration and Nationality Act (8 U.S.C. 15 1226) is amended— 16 (1) by striking subsections (a) through (c) and 17 inserting the following: 18 ‘‘(a) ARREST, DETENTION, AND RELEASE.— 19 ‘‘(1) IN GENERAL.—On a warrant issued by an 20 immigration judge, or pursuant to section 287(a)(2), 21 the Secretary of Homeland Security may arrest an 22 alien and, in accordance with this section, may, 23 pending a decision on whether the alien is to be re- 24 moved from the United States— 25 VerDate Sep 11 2014 23:58 Dec 15, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5383.IH H5383 kjohnson on DSK79L0C42 with BILLS 4 •HR 5383 IH ‘‘(A) detain the alien; or 1 ‘‘(B) release the alien— 2 ‘‘(i) on bond; 3 ‘‘(ii) subject to conditions; or 4 ‘‘(iii) on the alien’s own recognizance. 5 ‘‘(2) EXCEPTION.—This section shall not apply 6 to an unaccompanied alien child (as defined in sec- 7 tion 462(g)(2) of the Homeland Security Act of 8 2002 (6 U.S.C. 279(g)(2))). Such an alien shall be 9 transferred to the custody of the Secretary of Health 10 and Human Services pursuant to section 235(b)(3) 11 of the William Wilberforce Trafficking Victims Pro- 12 tection Reauthorization Act of 2008 (8 U.S.C. 13 1232(b)(3)). 14 ‘‘(b) CUSTODY AND BOND DETERMINATIONS.— 15 ‘‘(1) INITIAL DETERMINATION.—Not later than 16 48 hours after taking an alien into custody, the Sec- 17 retary of Homeland Security shall make an initial 18 custody determination with regard to that alien, and 19 provide that determination in writing to the alien. If 20 the Secretary determines that the release without 21 conditions of an alien will not reasonably assure the 22 appearance of the alien as required or will endanger 23 the safety of any other person or the community, the 24 custody determination under this paragraph will im- 25 VerDate Sep 11 2014 23:58 Dec 15, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5383.IH H5383 kjohnson on DSK79L0C42 with BILLS 5 •HR 5383 IH pose the least restrictive conditions, as described in 1 paragraph (4). 2 ‘‘(2) TIMING.—If an alien seeks to challenge 3 the initial custody determination under paragraph 4 (1), the alien shall be provided with the opportunity 5 for a hearing before an immigration judge to deter- 6 mine whether the alien should be detained, which 7 hearing shall occur not later than 72 hours after the 8 initial custody determination, except that an immi- 9 gration judge may grant a reasonable continuance 10 upon the alien’s request for additional time to pre- 11 pare for the hearing. 12 ‘‘(3) PRESUMPTION OF RELEASE.—In a hearing 13 under this subsection, there shall be a rebuttable 14 presumption that the alien should be released. The 15 Government shall have the duty of rebutting this 16 presumption by clear and convincing evidence based 17 on credible and individualized information that es- 18 tablishes that the use of alternatives to detention 19 will not reasonably assure the appearance of the 20 alien at removal proceedings, or that the alien is a 21 threat to another person or the community. The fact 22 that an alien has a prior conviction or a criminal 23 charge pending against the alien may not be the sole 24 factor to justify the continued detention of the alien. 25 VerDate Sep 11 2014 23:58 Dec 15, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5383.IH H5383 kjohnson on DSK79L0C42 with BILLS 6 •HR 5383 IH ‘‘(4) LEAST RESTRICTIVE CONDITIONS RE- 1 QUIRED.—If an immigration judge determines pur- 2 suant to a hearing under this section that the re- 3 lease without conditions of an alien will not reason- 4 ably assure the appearance of the alien as required 5 or will endanger the safety of any other person or 6 the community, the immigration judge shall order 7 the least restrictive conditions, or combination of 8 conditions, that the judge determines will reasonably 9 assure the appearance of the alien as required and 10 the safety of any other person and the community, 11 which may include secured or unsecured release on 12 bond, or participation in a program described in 13 subsection (i). Any conditions assigned to an alien 14 pursuant to this paragraph shall be reviewed by the 15 immigration judge on a monthly basis. 16 ‘‘(5) BOND DETERMINATION.—In the case that 17 an immigration judge makes a determination to re- 18 lease an alien on bond under subsection (a)(1)(B)(i), 19 the immigration judge shall consider, for purposes of 20 setting the amount of the bond, the alien’s financial 21 resources and ability to pay the bond without impos- 22 ing financial hardship on the alien. 23 ‘‘(6) SPECIAL RULE FOR VULNERABLE PER- 24 SONS AND PRIMARY CAREGIVERS.—In a case in 25 VerDate Sep 11 2014 23:58 Dec 15, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5383.IH H5383 kjohnson on DSK79L0C42 with BILLS 7 •HR 5383 IH which an alien who is the subject of a custody deter- 1 mination under this subsection is a vulnerable per- 2 son or a primary caregiver, the alien may not be de- 3 tained unless the Government shows, in addition to 4 the requirements under paragraph (3), that it is un- 5 reasonable or not practicable to place the individual 6 in a community-based supervision program. 7 ‘‘(7) DEFINITION.—In this subsection, the term 8 ‘vulnerable person’ means an individual who— 9 ‘‘(A) is under 21 years of age or over 60 10 years of age; 11 ‘‘(B) is pregnant; 12 ‘‘(C) identifies as lesbian, gay, bisexual, 13 transgender, or intersex; 14 ‘‘(D) is victim or witness of a crime; 15 ‘‘(E) has filed a nonfrivolous civil rights 16 claim in Federal or State court; 17 ‘‘(F) has a serious mental or physical ill- 18 ness or disability; 19 ‘‘(G) has been determined by an asylum of- 20 ficer in an interview conducted under section 21 235(b)(1)(B) to have a credible fear of persecu- 22 tion or a reasonable fear of persecution under 23 section 208.31 or 241.8(e) of title 8, Code of 24 VerDate Sep 11 2014 23:58 Dec 15, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5383.IH H5383 kjohnson on DSK79L0C42 with BILLS 8 •HR 5383 IH Federal Regulations (as in effect on the date of 1 the enactment of the New Way Forward Act); 2 ‘‘(H) has limited English language pro- 3 ficiency and is not provided access to appro- 4 priate and meaningful language services in a 5 timely fashion; or 6 ‘‘(I) has been determined by an immigra- 7 tion judge or the Secretary of Homeland Secu- 8 rity to be experiencing severe trauma or to be 9 a survivor of torture or gender-based violence, 10 based on information obtained during intake, 11 from the alien’s attorney or legal service pro- 12 vider, or through credible self-reporting. 13 ‘‘(c) SUBSEQUENT DETERMINATIONS.—An alien who 14 is detained under this section shall be provided with a de 15 novo custody determination hearing under this subsection 16 every 60 days, as well as upon showing of a change in 17 circumstances or good cause for a de novo custody deter- 18 mination hearing.’’; and 19 (2) by striking subsection (e) and inserting the 20 following: 21 ‘‘(e) RELEASE UPON AN ORDER GRANTING RELIEF 22 FROM REMOVAL.—In the case of an alien with respect to 23 whom an immigration judge has entered an order termi- 24 nating removal proceedings or an order providing for relief 25 VerDate Sep 11 2014 23:58 Dec 15, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5383.IH H5383 kjohnson on DSK79L0C42 with BILLS 9 •HR 5383 IH from removal, including an order granting asylum, or pro- 1 viding for withholding, deferral, or cancellation of removal, 2 which order is pending appeal, the Secretary of Homeland 3 Security shall immediately release the alien upon entry of 4 the order, and may impose only reasonable conditions on 5 the alien’s release from custody. 6 ‘‘(f) ALTERNATIVES TO DETENTION.— 7 ‘‘(1) IN GENERAL.—The Secretary of Homeland 8 Security shall establish programs that provide alter- 9 natives to detaining aliens, which shall offer a con- 10 tinuum of supervision mechanisms and options, in- 11 cluding community-based supervision programs and 12 community support. The Secretary may contract 13 with nongovernmental community-based organiza- 14 tions to provide programs, which may include case 15 management services, appearance assistance serv- 16 ices, and screenings of aliens who have been de- 17 tained. 18 ‘‘(2) INDIVIDUALIZED DETERMINATION RE- 19 QUIRED.—In determining whether to order an alien 20 to participate in a program under this subsection, 21 the Secretary, or the immigration judge, as appro- 22 priate shall make an individualized determination to 23 determine the appropriate level of supervision for the 24 alien. Participation in a program under this sub- 25 VerDate Sep 11 2014 23:58 Dec 15, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5383.IH H5383 kjohnson on DSK79L0C42 with BILLS 10 •HR 5383 IH section may not be ordered for an alien for whom it 1 is determined that release on reasonable bond or re- 2 cognizance will reasonably assure the appearance of 3 the alien as required and the safety of any other 4 person and the community.’’. 5 (b) PROBABLE CAUSE HEARING.—Section 287(a) of 6 the Immigration and Nationality Act (8 U.S.C. 1357(a)) 7 is amended by striking the matter preceding paragraph 8 (3) and inserting the following: 9 ‘‘(a) Any officer or employee of the Department of 10 Homeland Security authorized under regulations pre- 11 scribed by the Secretary of Homeland Security shall have 12 power without warrant— 13 ‘‘(1) to interrogate any alien or person believed 14 to be an alien as to the person’s right to be or to 15 remain in the United States, provided that such in- 16 terrogation is not based on the person’s race, eth- 17 nicity, national origin, religion, sexual orientation, 18 color, spoken language, or English language pro- 19 ficiency; and 20 ‘‘(2) to arrest any alien who in the officer or 21 employee’s presence or view is entering or attempt- 22 ing to enter the United States in violation of any law 23 or regulation made in pursuance of law regulating 24 the admission, exclusion, expulsion, or removal of 25 VerDate Sep 11 2014 23:58 Dec 15, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H5383.IH H5383 kjohnson on DSK79L0C42 with BILLS 11 •HR 5383 IH aliens, or to arrest any alien in the United States, 1 if— 2 ‘‘(A) the officer or employee has probable 3 cause to believe that the alien so arrested is in 4 the United States in violation of any such law 5 or regulation and is likely to escape before a 6 warrant can be obtained for his arrest; 7 ‘‘(B) the officer or employee has reason to 8 believe that the person would knowingly and 9 willfully fail to appear in immigration court in 10 response to a properly served notice to appear; 11 and 12 ‘‘(C) not later than 48 hours after being 13 taken into custody, the arrested alien is pro- 14 vided with a hearing before an immigration 15 judge to determine whether there is probable 16 cause as required by this section, including 17 probable cause to believe that the person would 18 have knowingly and willfully failed to appear as 19 required under subparagraph (B), which burden 20 to establish probable cause shall be on th [Text truncated for display. 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