Federal

New Way Forward Act

Source: Congress.gov · 6,680 words in original text

What This Bill Does

This bill reforms how immigration laws are enforced in the United States. It ends mandatory detention of immigrants, requires probable cause for arrest, eliminates private for-profit detention facilities, and decriminalizes unauthorized entry and reentry. The bill also restricts state and local law enforcement from enforcing immigration laws and allows certain previously deported immigrants to reopen their cases.

Who It Affects

- Immigrants and asylum seekers in custody or facing removal - The Department of Homeland Security - Private and public detention facility operators - Immigration judges - State and local law enforcement agencies - Immigrants previously ordered removed or deported

Key Provisions

- The Department of Homeland Security must stop using private for-profit detention facilities within 3 years and must own and operate all detention facilities itself (Sec. 101) - Immigrants can only be arrested with a warrant from an immigration judge or if an officer has probable cause to believe they violated immigration law and will escape before a warrant can be obtained (Sec. 102) - An immigration judge must hold a hearing within 48 to 72 hours of arrest to determine if an immigrant should be detained, with a legal presumption that the person should be released (Sec. 102) - The Department of Homeland Security must create a community-based case management program that offers alternatives to detention, including housing, medical services, and legal services (Sec. 102) - State and local law enforcement officers are prohibited from performing immigration enforcement functions or accessing civil immigration warrants (Sec. 501) - Criminal penalties for unauthorized entry and reentry into the United States are repealed (Sec. 601) - Immigrants previously deported or excluded can request to reopen their cases if they would not have been deported under the new law (Sec. 701)

What Changes

If this bill becomes law, immigrants cannot be held in private for-profit detention facilities. Detention decisions would shift from mandatory to discretionary, meaning judges must consider alternatives first. Arrests without warrants would require probable cause and a hearing within 72 hours. Criminal charges for unauthorized border crossing would no longer exist. State and local police could no longer assist with immigration enforcement or share immigration status information. Immigrants previously deported would have the right to reopen their cases and potentially return to the United States at government expense.

Important Definitions

- "Vulnerable person" means someone who is under 21 or over 60 years old, pregnant, LGBTQ, a crime victim or witness, has a serious mental or physical illness, has credible fear of persecution, has limited English language access, or has experienced severe trauma, torture, or gender-based violence (Sec. 102) - "Aggravated felony" means a felony conviction requiring at least 5 years of imprisonment (Sec. 302) - "Conviction" means a judgment of guilt that has not been dismissed, expunged, sealed, deferred, annulled, invalidated, withheld, or vacated by a court, and does not include probation without entry of judgment or pardons (Sec. 302)

Effective Date

The bill takes effect on the date of enactment, except that detention facility phase-out occurs within 3 years of enactment and civil immigration warrant information must be removed from databases within 90 days of enactment (Sec. 101, Sec. 501).

I 118TH CONGRESS 1ST SESSION H. R. 2374 To reform the process for enforcing the immigration laws of the United States, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MARCH 29, 2023 Mr. GARCI´A of Illinois (for himself, Mr. CASAR, Ms. PRESSLEY, Mr. ESPAILLAT, Ms. SCHAKOWSKY, Mrs. WATSON COLEMAN, Ms. NORTON, Ms. OCASIO-CORTEZ, Ms. GARCIA of Texas, Ms. CLARKE of New York, Mr. MCGOVERN, Ms. OMAR, Mr. BLUMENAUER, Mr. CA´RDENAS, Mr. POCAN, Ms. TLAIB, Mr. VARGAS, Mr. BOWMAN, Ms. BUSH, Ms. WIL- LIAMS of Georgia, Ms. VELA´ZQUEZ, Mrs. NAPOLITANO, Ms. CHU, Mr. GRIJALVA, Ms. BARRAGA´N, Mr. JOHNSON of Georgia, Ms. MENG, Mr. GOMEZ, Mrs. RAMIREZ, Ms. WILSON of Florida, and Mr. FROST) intro- duced the following bill; which was referred to the Committee on the Ju- diciary 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 19:18 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2374.IH H2374 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 2374 IH TITLE I—END MANDATORY DE- 1 TENTION AND REQUIRE 2 PROBABLE CAUSE FOR AR- 3 REST 4 SEC. 101. PHASE-OUT OF PRIVATE FOR-PROFIT DETENTION 5 FACILITIES AND USE OF JAILS. 6 (a) SECURE DETENTION FACILITIES.—Beginning on 7 the date of the enactment of this Act, the Secretary of 8 Homeland Security may not enter into, or extend, any con- 9 tract with any public or private for-profit entity that owns 10 or operates a detention facility for use of that facility to 11 detain aliens in the custody of the Department of Home- 12 land Security, and shall terminate any such contract not 13 later than the date that is 3 years after the date of the 14 enactment of this Act. Beginning on the date that is 3 15 years after the date of the enactment of this Act, any facil- 16 ity at which aliens in the custody of the Department of 17 Homeland Security are detained shall be owned and oper- 18 ated by the Department of Homeland Security. 19 (b) NON-SECURE DETENTION PROGRAMS.—Begin- 20 ning on the date of the enactment of this Act, the Sec- 21 retary of Homeland Security may not enter into, or ex- 22 tend, any contract with any public or private for-profit en- 23 tity that owns or operates a program or facility that pro- 24 vides for non-residential detention-related activities for 25 VerDate Sep 11 2014 19:18 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2374.IH H2374 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 2374 IH aliens who are subject to monitoring by the Department 1 of Homeland Security, and shall terminate any such con- 2 tract 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 19:18 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2374.IH H2374 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 2374 IH ‘‘(A) detain the alien; or 1 ‘‘(B) release the alien— 2 ‘‘(i) on bond; 3 ‘‘(ii) subject to conditions; or 4 ‘‘(iii) on the alien’s own recognizance. 5 ‘‘(2) EXCEPTION.—This section shall not apply 6 to an unaccompanied alien child (as defined in sec- 7 tion 462(g)(2) of the Homeland Security Act of 8 2002 (6 U.S.C. 279(g)(2))). Such an alien shall be 9 transferred to the custody of the Secretary of Health 10 and Human Services pursuant to section 235(b)(3) 11 of the William Wilberforce Trafficking Victims Pro- 12 tection Reauthorization Act of 2008 (8 U.S.C. 13 1232(b)(3)). 14 ‘‘(b) CUSTODY AND BOND DETERMINATIONS.— 15 ‘‘(1) INITIAL DETERMINATION.—Not later than 16 48 hours after taking an alien into custody, the Sec- 17 retary of Homeland Security shall make an initial 18 custody determination with regard to that alien, and 19 provide that determination in writing to the alien. If 20 the Secretary determines that the release without 21 conditions of an alien will not reasonably assure the 22 appearance of the alien as required or will endanger 23 the safety of any other person or the community, the 24 custody determination under this paragraph will im- 25 VerDate Sep 11 2014 19:18 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2374.IH H2374 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 2374 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 19:18 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2374.IH H2374 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 2374 IH ‘‘(4) LEAST RESTRICTIVE CONDITIONS RE- 1 QUIRED.—If an immigration judge determines pur- 2 suant to a hearing under this section that the re- 3 lease without conditions of an alien will not reason- 4 ably assure the appearance of the alien as required 5 or will endanger the safety of any other person or 6 the community, the immigration judge shall order 7 the least restrictive conditions, or combination of 8 conditions, that the judge determines will reasonably 9 assure the appearance of the alien as required and 10 the safety of any other person and the community, 11 which may include secured or unsecured release on 12 bond, or participation in a program described in 13 subsection (i). Any conditions assigned to an alien 14 pursuant to this paragraph shall be reviewed by the 15 immigration judge on a monthly basis. 16 ‘‘(5) BOND DETERMINATION.—In the case that 17 an immigration judge makes a determination to re- 18 lease an alien on bond under subsection (a)(1)(B)(i), 19 the immigration judge shall consider, for purposes of 20 setting the amount of the bond, the alien’s financial 21 resources and ability to pay the bond without impos- 22 ing financial hardship on the alien. 23 ‘‘(6) SPECIAL RULE FOR VULNERABLE PER- 24 SONS AND PRIMARY CAREGIVERS.—In a case in 25 VerDate Sep 11 2014 19:18 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2374.IH H2374 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 2374 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 19:18 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2374.IH H2374 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 2374 IH Federal Regulations (as in effect on the date of 1 the enactment of the New Way Forward Act); 2 ‘‘(H) has limited English language pro- 3 ficiency and is not provided access to appro- 4 priate and meaningful language services in a 5 timely fashion; or 6 ‘‘(I) has been determined by an immigra- 7 tion judge or the Secretary of Homeland Secu- 8 rity to be experiencing severe trauma or to be 9 a survivor of torture or gender-based violence, 10 based on information obtained during intake, 11 from the alien’s attorney or legal service pro- 12 vider, or through credible self-reporting. 13 ‘‘(c) SUBSEQUENT DETERMINATIONS.—An alien who 14 is detained under this section shall be provided with a de 15 novo custody determination hearing under this subsection 16 every 60 days, as well as upon showing of a change in 17 circumstances or good cause for a de novo custody deter- 18 mination hearing.’’; and 19 (2) by striking subsection (e) and inserting the 20 following: 21 ‘‘(e) RELEASE UPON AN ORDER GRANTING RELIEF 22 FROM REMOVAL.—In the case of an alien with respect to 23 whom an immigration judge has entered an order termi- 24 nating removal proceedings or an order providing for relief 25 VerDate Sep 11 2014 19:18 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2374.IH H2374 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 2374 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) COMMUNITY-BASED CASE MANAGEMENT PRO- 7 GRAM.— 8 ‘‘(1) IN GENERAL.—The Secretary of Homeland 9 Security shall establish, outside of the purview of 10 U.S. Immigration and Customs Enforcement, a com- 11 munity-based case management program that— 12 ‘‘(A) provides alternatives to detaining 13 aliens; 14 ‘‘(B) offers a continuum of community- 15 based support options and services, including— 16 ‘‘(i) case management; and 17 ‘‘(ii) access to— 18 ‘‘(I) social services; 19 ‘‘(II) medical and mental health 20 services; 21 ‘‘(III) housing; 22 ‘‘(IV) transportation; and 23 ‘‘(V) legal services; and 24 VerDate Sep 11 2014 19:18 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2374.IH H2374 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HR 2374 IH ‘‘(C) provides services in the appropriate 1 language. 2 ‘‘(2) PROHIBITION ON ELECTRONIC SURVEIL- 3 LANCE.—The program under paragraph (1) may not 4 include, as an alternative to detention, the provision 5 of ankle monitors or other forms of electronic sur- 6 veillance. 7 ‘‘(3) STUDY.—Within 180 days, the Secretary 8 shall undertake a study to examine best practices of 9 government-funded case management and related 10 services, including exploring the possibility of fund- 11 ing case management services out of the Depart- 12 ment. 13 ‘‘(4) CONTRACTS.— 14 ‘‘(A) IN GENERAL.—The Secretary may 15 enter into 1 or more contracts to operate the 16 case management program described in para- 17 graph (1). 18 ‘‘(B) PRIORITIZATION.—In entering into a 19 contract under subparagraph (A), the Secretary 20 shall give priority to direct contracts with quali- 21 fied nongovernmental community-based organi- 22 zations that have experience providing services 23 to immigrant, refugee, and asylum-seeking pop- 24 ulations. 25 VerDate Sep 11 2014 19:18 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2374.IH H2374 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •HR 2374 IH ‘‘(5) INDIVIDUALIZED DETERMINATION RE- 1 QUIRED.— 2 ‘‘(A) IN GENERAL.—In determining wheth- 3 er to order an alien to participate in a program 4 under this subsection, the Secretary or the im- 5 migration judge, as appropriate, shall make an 6 individualized determination to determine the 7 appropriate level of supervision for the alien. 8 ‘‘(B) EXEMPTION.—Participation in a pro- 9 gram under this subsection may not be ordered 10 for an alien for whom it is determined that re- 11 lease on reasonable bond or recognizance will 12 reasonably ensure the appearance of the alien 13 as required and the safety of any other person 14 and the community. 15 ‘‘(6) PROHIBITION ON FEES FOR ALTER- 16 NATIVES TO DETENTION.—An alien who is required 17 to participate in a specific alternatives to detention 18 program or service may not be charged a fee for 19 such participation. 20 ‘‘(7) CASE MANAGEMENT REVIEW.—Not later 21 than 180 days after the date of the enactment of the 22 New Way Forward Act, the Secretary shall conduct 23 a review of— 24 VerDate Sep 11 2014 19:18 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2374.IH H2374 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •HR 2374 IH ‘‘(A) best practices in federally funded case 1 management programs; and 2 ‘‘(B) the feasibility of transferring alter- 3 natives to detention case management programs 4 out of the purview of the Department of Home- 5 land Security.’’. 6 (b) PROBABLE CAUSE HEARING.—Section 287(a) of 7 the Immigration and Nationality Act (8 U.S.C. 1357(a)) 8 is [Text truncated for display. Full text available on Congress.gov.]

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