Alternatives to Detention Act of 2021
Bill: S.2795 | Sponsor: Sen. Cortez Masto, Catherine (D-NV)
Policy area: Immigration

Summary:
Alternatives to Detention Act of 2021
This bill requires the Department of Homeland Security (DHS) to establish programs that are alternatives to detention for immigration enforcement and addresses related issues.
Such programs must be available regardless of whether an alien is subject to a removal order or whether a charge of removability is pending, but shall not be available to certain aliens, such as those subject to mandatory detention.
DHS or an immigration judge must determine, within 72 hours of an individual being taken into custody for immigration enforcement, the appropriate level of supervision for the individual and whether the individual may participate in such an alternative program. For a member of a vulnerable population (such as a victim of trafficking) or a caregiver (such as a parent of a minor), there must be a presumption that such an individual must be placed in a community-based supervision program.
DHS must restore the Family Case Management Program as an alternative to detention. This program must provide community supervision and community support services through a contract with a nongovernmental organization.
DHS must establish a Coordinator of Alternatives to Detention position.
The Government Accountability Office must report on the use and effectiveness of the programs established under this bill.

To require the Secretary of Homeland Security to use alternatives to 
 detention for certain vulnerable immigrant populations, and for other 
                               purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Alternatives to Detention Act of 
2021''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Dependent caregiver.--The term ``dependent caregiver'' 
        means an individual who lives with, and provides more than \1/
        2\ of the financial support required by, a family member who 
        is--
                    (A) younger than 18 years of age; or
                    (B) unable to engage in substantial employment due 
                to a physical or mental health condition or disability.
            (2) Executive departments.--The term ``executive 
        departments'' means the Federal Departments listed under 
        section 101 of title 5, United States Code.
            (3) Family caregiver.--The term ``family caregiver'' means 
        an individual who lives with, and provides more than \1/2\ of 
        the personal care required by, a family member who is--
                    (A) younger than 18 years of age; or
                    (B) unable to engage in substantial employment due 
                to a physical or mental health condition or disability.
            (4) Family member.--The term ``family member'', with 
        respect to an individual receiving personal care services or 
        financial support, means an individual who is--
                    (A) a parent or legal guardian;
                    (B) a spouse;
                    (C) a child;
                    (D) a step-family member; or
                    (E) an extended family member.
            (5) Immigration laws.--The term ``immigration laws'' has 
        the meaning given such term in section 101(a)(17) of the 
        Immigration and Nationality Act (8 U.S.C. 1101(a)(17)).
            (6) Legal guardian.--The term ``legal guardian'' means a 
        legal guardian, as defined under State law or under the law of 
        a foreign country.
            (7) Member of a vulnerable population.--The term ``member 
        of a vulnerable population'' means an individual who--
                    (A) is an asylum seeker or is otherwise seeking 
                lawful status;
                    (B) is a victim of torture or trafficking;
                    (C) has special religious, cultural, or spiritual 
                considerations;
                    (D) is pregnant or nursing;
                    (E) is younger than 21 years of age;
                    (F) is older than 60 years of age;
                    (G) identifies as gay, lesbian, bisexual, 
                transgender, or intersex;
                    (H) is a victim or a witness of a crime;
                    (I) has a mental disorder or physical disability; 
                or
                    (J) is experiencing severe trauma or is a survivor 
                of torture or gender-based violence, as determined by 
                an immigration judge or the Secretary based on 
                information obtained--
                            (i) by the attorney or legal services 
                        provider of the individual during the intake 
                        process; or
                            (ii) through credible reporting by the 
                        individual.
            (8) Parent.--The term ``parent'' means a biological or 
        adoptive parent of a child, whose parental rights have not been 
        relinquished or terminated under State law or the law of a 
        foreign country.
            (9) Secretary.--The term ``Secretary'' means the Secretary 
        of Homeland Security.

SEC. 3. ALTERNATIVES TO DETENTION UNDER THE IMMIGRATION LAWS.

    (a) Establishment.--
            (1) In general.--The Secretary shall establish programs to 
        provide alternatives to detention under the immigration laws.
            (2) Availability.--The programs required under paragraph 
        (1) shall be available to an alien regardless of whether--
                    (A) a decision on a charge of removability with 
                respect to the alien is pending; or
                    (B) the alien is subject to an order of removal.
            (3) Continuum of supervision.--The programs required under 
        paragraph (1) shall provide for a continuum of supervision 
        mechanisms and options, including community-based supervision 
        and community support.
            (4) Contracts with nongovernmental organizations.--The 
        Secretary may contract with one or more nongovernmental 
        organizations to provide services under this subsection and 
        subsection (b).
    (b) Restoration of the Family Case Management Program.--Not later 
than 7 days after the date of the enactment of this Act, the Secretary 
shall fully restore the U.S. Immigration and Customs Enforcement Family 
Case Management Program, as constituted on January 21, 2016, which 
shall--
            (1) provide community supervision and community support 
        services, including case management services, appearance 
        services, and screening of aliens who have been detained; and
            (2) be carried out through a contract with a 
        nongovernmental organization that has demonstrated expertise in 
        providing such supervision and support services.
    (c) Determination of Vulnerable Population or Caregiver Status 
Required.--
            (1) In general.--Subject to paragraphs (2) and (3), not 
        later than 72 hours after taking an individual into custody 
        under the immigration laws, the Secretary, the Commissioner of 
        U.S. Customs and Border Protection, an immigration officer, or 
        an immigration judge shall make an individualized determination 
        with respect to--
                    (A) whether the individual may participate in an 
                alternatives to detention program, including the Family 
                Case Management Program described in subsection (b); 
                and
                    (B) the appropriate level of supervision for such 
                individual.
            (2) Presumption for placement in alternatives to detention 
        program.--
                    (A) In general.--There shall be a presumption for 
                placement in an alternatives to detention program that 
                is a community-based supervision program for any alien 
                who is--
                            (i) taken into the physical custody of the 
                        Department of Homeland Security; and
                            (ii) a member of a vulnerable population, a 
                        parent of a child who is younger than 18 years 
                        of age, a dependent caregiver, or a family 
                        caregiver.
                    (B) Exception.--The presumption described in 
                subparagraph (A) shall not apply if the Secretary, the 
                Commissioner of U.S. Customs and Border Protection, an 
                immigration officer, or an immigration judge 
                specifically determines that the alien is a threat to 
                himself or herself or to the public.
            (3) Exceptions.--Alternatives to detention programs shall 
        not be available to any individual--
                    (A) who is detained pursuant to section 236A of the 
                Immigration and Nationality Act (8 U.S.C. 1226a); or
                    (B) for whom release on bond or recognizance is 
                determined to be a sufficient measure to ensure 
                appearances at immigration proceedings and public 
                safety.
    (d) Coordinator of Alternatives to Detention.--
            (1) In general.--Not later than 30 days after the date of 
        the enactment of this Act, the Secretary shall--
                    (A) establish within the Department of Homeland 
                Security the position of Coordinator of Alternatives to 
                Detention (referred to in this subsection as the 
                ``Coordinator''), who shall report directly to the 
                Secretary; and
                    (B) appoint the Coordinator.
            (2) Resources.--The Secretary shall make available to the 
        Coordinator such personnel, funds, and other resources as may 
        be appropriate to enable the Coordinator to carry out the 
        mission described in paragraph (3)(A).
            (3) Mission and duties.--
                    (A) Mission.--The mission of the Coordinator shall 
                be to coordinate, in collaboration with the executive 
                departments, the use of alternatives to detention 
                programs.
                    (B) Duties of coordinator.--
                            (i) In general.--The Coordinator shall--
                                    (I) serve as the primary point of 
                                contact within the executive branch for 
                                Congress, State and local governments, 
                                the private sector, and community 
                                leaders with respect to the 
                                alternatives to detention programs; and
                                    (II) in coordination with the 
                                executive departments, with respect to 
                                Congress, State and local governments, 
                                the private sector, and community 
                                leaders, manage information flow about, 
                                requests for actions relating to, and 
                                discussions on, such programs.
                            (ii) Reports required.--
                                    (I) Monthly reports.--Not later 
                                than 30 days after the date on which 
                                the Coordinator is appointed, and every 
                                30 days thereafter, the Coordinator 
                                shall submit a report to Congress that 
                                includes, for the reporting period--
                                            (aa) the number of 
                                        individuals detained under the 
                                        immigration laws--

                                                    (AA) pending a 
                                                decision on whether the 
                                                individual is to be 
                                                removed; and

                                                    (BB) after the 
                                                issuance of a removal 
                                                order;

                                            (bb) an assessment whether 
                                        any individual described in 
                                        item (aa) is subject to the 
                                        special rule under subsection 
                                        (c)(2)(B); and
                                            (cc) the number of 
                                        individuals participating in an 
                                        alternatives to detention 
                                        program established under 
                                        subsection (a), disaggregated 
                                        by the level of supervision of 
                                        such individuals.
                                    (II) Annual reports.--Not later 
                                than 1 year after the date on which the 
                                Coordinator is appointed, and annually 
                                thereafter, the Coordinator shall 
                                submit a report to Congress that 
                                includes--
                                            (aa) guidance and 
                                        requirements for referral and 
                                        placement decisions in 
                                        alternatives to detention 
                                        programs;
                                            (bb) information on 
                                        enrollment in alternatives to 
                                        detention programs, 
                                        disaggregated by field office;
                                            (cc) information on the 
                                        length of enrollment in 
                                        alternatives to detention 
                                        programs, disaggregated by type 
                                        of alternative to detention 
                                        program; and
                                            (dd) information on the 
                                        population enrolled in 
                                        alternatives to detention 
                                        programs, disaggregated by type 
                                        of alternative to detention 
                                        program and point of 
                                        apprehension.
                    (C) Duties of executive departments.--The heads of 
                the executive departments shall--
                            (i) respond promptly to any request by the 
                        Coordinator;
                            (ii) consistent with applicable law, 
                        provide such information as the Coordinator 
                        considers necessary to carry out the mission of 
                        the Coordinator; and
                            (iii) otherwise cooperate with the 
                        Coordinator to the maximum extent practicable 
                        to facilitate the performance of the mission 
                        described in subparagraph (A).
    (e) GAO Study and Report.--The Comptroller General of the United 
States shall--
            (1) conduct a study on the use and effectiveness of the 
        alternatives to detention programs established pursuant to 
        subsection (a); and
            (2) not later than 2 years after the date of the enactment 
        of this Act, submit a report to Congress that contains the 
        results of the study conducted pursuant to paragraph (1).

SEC. 4. SAVINGS PROVISIONS.

    (a) Federal Law.--Nothing in this Act may be construed to supersede 
or modify--
            (1) the William Wilberforce Trafficking Victims Protection 
        Reauthorization Act of 2008 (8 U.S.C. 1232 et seq.);
            (2) the Stipulated Settlement Agreement filed in the United 
        States District Court for the Central District of California on 
        January 17, 1997 (CV 85-4544-RJK) (commonly known as the 
        ``Flores Settlement Agreement'');
            (3) the Homeland Security Act of 2002 (6 U.S.C. 101 et 
        seq.); or
            (4) any applicable Federal child welfare law, including the 
        Adoption and Safe Families Act of 1997 (Public Law 105-89).
    (b) State Law.--Nothing in this Act may be construed to supersede 
or modify any applicable State child welfare law.
                                 <all>