II 

117TH CONGRESS 

1ST SESSION S. 2795 

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 

SEPTEMBER 22 (legislative day, SEPTEMBER 21), 2021 

Ms. CORTEZ MASTO (for herself, Mr. BLUMENTHAL, Mr. MARKEY, Mr. 

MERKLEY, and Mrs. FEINSTEIN) 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 alternatives to detention for certain vulnerable immigrant 

populations, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Alternatives to Deten5 tion Act of 2021’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

8 (1) DEPENDENT CAREGIVER.—The term ‘‘de9 pendent caregiver’’ means an individual who lives 


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with, and provides more than 1 1 ⁄2 of the financial 

2 support required by, a family member who is— 

3 (A) younger than 18 years of age; or 

4 (B) unable to engage in substantial em5 ployment due to a physical or mental health 

6 condition or disability. 

7 (2) EXECUTIVE DEPARTMENTS.—The term ‘‘ex8 ecutive departments’’ means the Federal Depart9 ments listed under section 101 of title 5, United 

10 States Code. 

11 (3) FAMILY CAREGIVER.—The term ‘‘family 

12 caregiver’’ means an individual who lives with, and 

provides more than 1 13 ⁄2 of the personal care required 

14 by, a family member who is— 

15 (A) younger than 18 years of age; or 

16 (B) unable to engage in substantial em17 ployment due to a physical or mental health 

18 condition or disability. 

19 (4) FAMILY MEMBER.—The term ‘‘family mem20 ber’’, with respect to an individual receiving personal 

21 care services or financial support, means an indi22 vidual who is— 

23 (A) a parent or legal guardian; 

24 (B) a spouse; 

25 (C) a child; 


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1 (D) a step-family member; or 

2 (E) an extended family member. 

3 (5) IMMIGRATION LAWS.—The term ‘‘immigra4 tion laws’’ has the meaning given such term in sec5 tion 101(a)(17) of the Immigration and Nationality 

6 Act (8 U.S.C. 1101(a)(17)). 

7 (6) LEGAL GUARDIAN.—The term ‘‘legal guard8 ian’’ means a legal guardian, as defined under State 

9 law or under the law of a foreign country. 

10 (7) MEMBER OF A VULNERABLE POPU11 LATION.—The term ‘‘member of a vulnerable popu12 lation’’ means an individual who— 

13 (A) is an asylum seeker or is otherwise 

14 seeking lawful status; 

15 (B) is a victim of torture or trafficking; 

16 (C) has special religious, cultural, or spir17 itual considerations; 

18 (D) is pregnant or nursing; 

19 (E) is younger than 21 years of age; 

20 (F) is older than 60 years of age; 

21 (G) identifies as gay, lesbian, bisexual, 

22 transgender, or intersex; 

23 (H) is a victim or a witness of a crime; 

24 (I) has a mental disorder or physical dis25 ability; or 


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1 (J) is experiencing severe trauma or is a 

2 survivor of torture or gender-based violence, as 

3 determined by an immigration judge or the Sec4 retary based on information obtained— 

5 (i) by the attorney or legal services 

6 provider of the individual during the intake 

7 process; or 

8 (ii) through credible reporting by the 

9 individual. 

10 (8) PARENT.—The term ‘‘parent’’ means a bio11 logical or adoptive parent of a child, whose parental 

12 rights have not been relinquished or terminated 

13 under State law or the law of a foreign country. 

14 (9) SECRETARY.—The term ‘‘Secretary’’ means 

15 the Secretary of Homeland Security. 

16 SEC. 3. ALTERNATIVES TO DETENTION UNDER THE IMMI17 GRATION LAWS. 

18 (a) ESTABLISHMENT.— 

19 (1) IN GENERAL.—The Secretary shall establish 

20 programs to provide alternatives to detention under 

21 the immigration laws. 

22 (2) AVAILABILITY.—The programs required 

23 under paragraph (1) shall be available to an alien 

24 regardless of whether— 


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1 (A) a decision on a charge of removability 

2 with respect to the alien is pending; or 

3 (B) the alien is subject to an order of re4 moval. 

5 (3) CONTINUUM OF SUPERVISION.—The pro6 grams required under paragraph (1) shall provide 

7 for a continuum of supervision mechanisms and op8 tions, including community-based supervision and 

9 community support. 

10 (4) CONTRACTS WITH NONGOVERNMENTAL OR11 GANIZATIONS.—The Secretary may contract with 

12 one or more nongovernmental organizations to pro13 vide services under this subsection and subsection 

14 (b). 

15 (b) RESTORATION OF THE FAMILY CASE MANAGE16 MENT PROGRAM.—Not later than 7 days after the date 

17 of the enactment of this Act, the Secretary shall fully re18 store the U.S. Immigration and Customs Enforcement 

19 Family Case Management Program, as constituted on 

20 January 21, 2016, which shall— 

21 (1) provide community supervision and commu22 nity support services, including case management 

23 services, appearance services, and screening of aliens 

24 who have been detained; and 


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1 (2) be carried out through a contract with a 

2 nongovernmental organization that has dem3 onstrated expertise in providing such supervision 

4 and support services. 

5 (c) DETERMINATION OF VULNERABLE POPULATION

6 OR CAREGIVER STATUS REQUIRED.— 

7 (1) IN GENERAL.—Subject to paragraphs (2) 

8 and (3), not later than 72 hours after taking an in9 dividual into custody under the immigration laws, 

10 the Secretary, the Commissioner of U.S. Customs 

11 and Border Protection, an immigration officer, or an 

12 immigration judge shall make an individualized de13 termination with respect to— 

14 (A) whether the individual may participate 

15 in an alternatives to detention program, includ16 ing the Family Case Management Program de17 scribed in subsection (b); and 

18 (B) the appropriate level of supervision for 

19 such individual. 

20 (2) PRESUMPTION FOR PLACEMENT IN ALTER21 NATIVES TO DETENTION PROGRAM.— 

22 (A) IN GENERAL.—There shall be a pre23 sumption for placement in an alternatives to de24 tention program that is a community-based su25 pervision program for any alien who is— 


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1 (i) taken into the physical custody of 

2 the Department of Homeland Security; 

3 and 

4 (ii) a member of a vulnerable popu5 lation, a parent of a child who is younger 

6 than 18 years of age, a dependent care7 giver, or a family caregiver. 

8 (B) EXCEPTION.—The presumption de9 scribed in subparagraph (A) shall not apply if 

10 the Secretary, the Commissioner of U.S. Cus11 toms and Border Protection, an immigration of12 ficer, or an immigration judge specifically deter13 mines that the alien is a threat to himself or 

14 herself or to the public. 

15 (3) EXCEPTIONS.—Alternatives to detention 

16 programs shall not be available to any individual— 

17 (A) who is detained pursuant to section 

18 236A of the Immigration and Nationality Act 

19 (8 U.S.C. 1226a); or 

20 (B) for whom release on bond or recog21 nizance is determined to be a sufficient measure 

22 to ensure appearances at immigration pro23 ceedings and public safety. 

24 (d) COORDINATOR OF ALTERNATIVES TO DETEN25 TION.— 


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1 (1) IN GENERAL.—Not later than 30 days after 

2 the date of the enactment of this Act, the Secretary 

3 shall— 

4 (A) establish within the Department of 

5 Homeland Security the position of Coordinator 

6 of Alternatives to Detention (referred to in this 

7 subsection as the ‘‘Coordinator’’), who shall re8 port directly to the Secretary; and 

9 (B) appoint the Coordinator. 

10 (2) RESOURCES.—The Secretary shall make 

11 available to the Coordinator such personnel, funds, 

12 and other resources as may be appropriate to enable 

13 the Coordinator to carry out the mission described 

14 in paragraph (3)(A). 

15 (3) MISSION AND DUTIES.— 

16 (A) MISSION.—The mission of the Coordi17 nator shall be to coordinate, in collaboration 

18 with the executive departments, the use of al19 ternatives to detention programs. 

20 (B) DUTIES OF COORDINATOR.— 

21 (i) IN GENERAL.—The Coordinator 

22 shall— 

23 (I) serve as the primary point of 

24 contact within the executive branch 

25 for Congress, State and local governVerDate Sep 11 2014 16:53 Sep 24, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2795.IS S2795

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1 ments, the private sector, and commu2 nity leaders with respect to the alter3 natives to detention programs; and 

4 (II) in coordination with the ex5 ecutive departments, with respect to 

6 Congress, State and local govern7 ments, the private sector, and commu8 nity leaders, manage information flow 

9 about, requests for actions relating to, 

10 and discussions on, such programs. 

11 (ii) REPORTS REQUIRED.— 

12 (I) MONTHLY REPORTS.—Not 

13 later than 30 days after the date on 

14 which the Coordinator is appointed, 

15 and every 30 days thereafter, the Co16 ordinator shall submit a report to 

17 Congress that includes, for the report18 ing period— 

19 (aa) the number of individ20 uals detained under the immigra21 tion laws— 

22 (AA) pending a decision 

23 on whether the individual is 

24 to be removed; and 


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1 (BB) after the issuance 

2 of a removal order; 

3 (bb) an assessment whether 

4 any individual described in item 

5 (aa) is subject to the special rule 

6 under subsection (c)(2)(B); and 

7 (cc) the number of individ8 uals participating in an alter9 natives to detention program es10 tablished under subsection (a), 

11 disaggregated by the level of su12 pervision of such individuals. 

13 (II) ANNUAL REPORTS.—Not 

14 later than 1 year after the date on 

15 which the Coordinator is appointed, 

16 and annually thereafter, the Coordi17 nator shall submit a report to Con18 gress that includes— 

19 (aa) guidance and require20 ments for referral and placement 

21 decisions in alternatives to deten22 tion programs; 

23 (bb) information on enroll24 ment in alternatives to detention 


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1 programs, disaggregated by field 

2 office; 

3 (cc) information on the 

4 length of enrollment in alter5 natives to detention programs, 

6 disaggregated by type of alter7 native to detention program; and 

8 (dd) information on the pop9 ulation enrolled in alternatives to 

10 detention programs, 

11 disaggregated by type of alter12 native to detention program and 

13 point of apprehension. 

14 (C) DUTIES OF EXECUTIVE DEPART15 MENTS.—The heads of the executive depart16 ments shall— 

17 (i) respond promptly to any request 

18 by the Coordinator; 

19 (ii) consistent with applicable law, 

20 provide such information as the Coordi21 nator considers necessary to carry out the 

22 mission of the Coordinator; and 

23 (iii) otherwise cooperate with the Co24 ordinator to the maximum extent pracVerDate Sep 11 2014 16:53 Sep 24, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2795.IS S2795

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1 ticable to facilitate the performance of the 

2 mission described in subparagraph (A). 

3 (e) GAO STUDY AND REPORT.—The Comptroller 

4 General of the United States shall— 

5 (1) conduct a study on the use and effectiveness 

6 of the alternatives to detention programs established 

7 pursuant to subsection (a); and 

8 (2) not later than 2 years after the date of the 

9 enactment of this Act, submit a report to Congress 

10 that contains the results of the study conducted pur11 suant to paragraph (1). 

12 SEC. 4. SAVINGS PROVISIONS. 

13 (a) FEDERAL LAW.—Nothing in this Act may be con14 strued to supersede or modify— 

15 (1) the William Wilberforce Trafficking Victims 

16 Protection Reauthorization Act of 2008 (8 U.S.C. 

17 1232 et seq.); 

18 (2) the Stipulated Settlement Agreement filed 

19 in the United States District Court for the Central 

20 District of California on January 17, 1997 (CV 85– 

21 4544–RJK) (commonly known as the ‘‘Flores Settle22 ment Agreement’’); 

23 (3) the Homeland Security Act of 2002 (6 

24 U.S.C. 101 et seq.); or 


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1 (4) any applicable Federal child welfare law, in2 cluding the Adoption and Safe Families Act of 1997 

3 (Public Law 105–89). 

4 (b) STATE LAW.—Nothing in this Act may be con5 strued to supersede or modify any applicable State child 

6 welfare law. 

Æ 


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