II 117th CONGRESS 1st Session S. 1949 IN THE SENATE OF THE UNITED STATES May 27, 2021 Mr. Portman (for himself and Mr. Kelly ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To direct the Secretary of Homeland Security to establish a plan to respond to irregular migration at the border, to establish an irregular migration border response fund, and for other purposes.

1. Short title This Act may be cited as the Border Response Resilience Act . 2. Irregular migration border response plan and fund (a) In general Subtitle C of title IV of the Homeland Security Act of 2002 ( 6 U.S.C. 231 et seq. ) is amended by adding at the end the following: 437. Irregular migration border response plan and fund (a) Response plan (1) In general The Secretary, in coordination with the heads of appropriate Federal agencies, shall develop a plan to respond to irregular migration at the border that present risks to border security (referred to in this section as the Response Plan ). (2) Elements The Response Plan shall include the following: (A) The identification of— (i) each agency, component, and office participating in the Response Plan; and (ii) the role, chain of command, and responsibilities, including minimum acceptable response times, of each such entity identified pursuant to clause (i). (B) A strategy— (i) to enhance security and reinforce infrastructure of the Department along the border; (ii) to maximize the use of Border Patrol Processing Coordinators to assist with processing individuals in the custody of the Department at the border; and (iii) to conduct streamlined screening and processing procedures of individuals in the custody of the Department at the border without diminishing security measures or normally conducted checks during such procedures. (C) A process— (i) to identify needed personnel and detail such personnel to the border; (ii) to request interagency assistance for the border; (iii) to quickly expand temporary processing and holding capacity to respond to an irregular migration event at the border; and (iv) to track and keep the Secretary informed of the metrics identified under subsection (c). (D) Policies and procedures to ensure timely communication and coordination between relevant agencies relating to— (i) the capacity of Department border facilities; and (ii) transferring individuals at the border in the custody of the Department within the Department or to other agencies. (E) A process to initiate and conduct an after-action review of the efforts of the Department in response to an irregular migration event at the border. (F) A strategy to ensure that an individual at the border in the custody of the Department is not released into the United States during a public health emergency if the individual has a communicable disease directly relating to the public health emergency. (G) A strategy, for the purpose of public safety, to inform and coordinate with other Federal agencies, nongovernmental organizations, and relevant transportation companies with respect to any release at the border of an individual from the custody of the Department. (H) A regularly updated intelligence-driven analysis that includes— (i) trends at the border with respect to demographics and group size that could contribute to overcrowding of U.S. Customs and Border Protection facilities; (ii) migrant perceptions of United States law and policy at the border, including human smuggling organization messaging and propaganda; (iii) tactics, techniques, and procedures used by human smuggling organizations to exploit border security vulnerabilities to facilitate such smuggling activities across the border; (iv) the methods and use of technology to organize and encourage irregular migration and undermine border security; and (v) any other information the Secretary determines appropriate. (b) Department coordination (1) Partnerships (A) In general The Secretary shall direct the participants in the Response Plan to enter into necessary and appropriate memoranda of understanding or other appropriate agreements, to be periodically updated, to carry out the requirements of this section. (B) Rule of construction Nothing in this section may be construed to require participants in the Response Plan to share the information or status of any individual. (2) Ongoing intelligence analysis The Secretary shall identify and implement the appropriate process to coordinate information sharing between the Office of Intelligence and Analysis, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and any other appropriate agency in preparation for or during an irregular migration event at the border to assess the estimated number of individuals traveling to the United States border outside of standard trade and travel routes. (3) Communication The Secretary shall identify the most appropriate communication structure to ensure immediate and continued success of the Response Plan. (c) Response Plan activation (1) Threshold identification, activation, and deactivation The Secretary shall— (A) identify metric thresholds required to activate the Response Plan; (B) activate the Response Plan when one or more such thresholds are exceeded; and (C) deactivate the Response Plan when one or more thresholds are no longer met. (2) Elements The metric thresholds to be considered by the Secretary pursuant to paragraph (1) shall include the following: (A) The average amount of time an individual at the border is in the custody of U.S. Customs and Border Protection, disaggregated by whether such individual is a single adult, a member of a family unit, or an unaccompanied alien child. (B) The total percentage of individuals at the border in the custody of the Department with respect to capacity, disaggregated by— (i) field office or sector; and (ii) whether such an individual in the custody of the Department is a single adult, a member of a family unit, or an unaccompanied alien child. (C) The total percentage of individuals in the custody of a partner agency with respect to capacity, disaggregated by each facility holding such individuals. (D) The estimated number of individuals traveling to the United States border outside of standard trade and travel routes as determined by intelligence and other sources. (E) The estimated number of individuals at the southern border of the United States who are seeking food, shelter, or medical care due to a natural disaster or other humanitarian crisis in their home countries. (F) Any other such threshold the Secretary considers appropriate. (3) Notifications to Congress (A) In general Not later than 90 days after the date of the enactment of this section, the Secretary shall— (i) publish in the Federal Register the final of metric thresholds required under paragraph (1)(A); and (ii) notify the appropriate committees of Congress of such publication. (B) Updates Not later than 14 days after the Secretary updates such metric thresholds, the Secretary shall notify the appropriate committees of Congress of such update. (d) After-Action review (1) In general The Secretary shall— (A) develop a process, including policies and procedures, for initiating and conducting an after-action review of the efforts of the Department in response to an irregular migration event at the border that poses a risk to border security; and (B) conduct such a review at the conclusion of any irregular migration event for which the Response Plan has been activated. (2) Elements Each such review shall include the following: (A) An assessment of any changes necessary, including adjustments in the allocation of resources and modifications to authority, law, or policy— (i) to improve the ability of the Department to respond to future irregular migration events at the border; and (ii) to mitigate the risks to border security posed by irregular migration events. (B) Recommendations on reforms necessary to enable the Department to better coordinate with other Federal agencies and nongovernmental organizations on cases of individuals requesting asylum in the United States. (3) Report (A) In general Not later than 90 days after the completion of each after-action review, the Secretary shall submit to the appropriate committees of Congress a report on the results of the review. (B) Form A report required under subparagraph (A) shall be submitted in unclassified form but may contain a classified annex. (e) Updating response plan The Secretary shall— (1) periodically update the Response Plan and the appropriate metric thresholds to activate the Response Plan; and (2) consider the most recent action-after review required under subsection (d) for such an update. (f) Briefing to Congress If the Secretary activates the Response Plan pursuant to subsection (c)(1)(B), not later than 14 days after such activation, the Secretary shall— (1) brief the appropriate committees of Congress with respect to such activation; and (2) include with such briefing an assessment with respect to whether there is a need to obligate and expend amounts available from the Irregular Migration Border Response Fund, established pursuant to subsection (g). (g) Irregular Migration Border Response Fund (1) Establishment There is established in the Treasury of the United States a fund to be known as the Irregular Migration Border Response Fund (referred to in this section as the Fund ), consisting of amounts appropriated pursuant to paragraph (5). (2) Investment of amounts (A) In general The Secretary of the Treasury shall invest such portion of the Fund as is not required to meet current withdrawals in interest-bearing obligations of the United States or in obligations guaranteed as to both principal and interest by the United States. (B) Interest and proceeds The interest on, and the proceeds from the sale or redemption of, any obligations held in the Fund shall be credited to and form a part of the Fund. (3) Use of funds (A) In general The Secretary may only obligate and expend amounts available in the Fund— (i) if the Secretary activates the Response Plan pursuant to subsection (c)(1)(B); and (ii) for the purposes described in subparagraph (B). (B) Purposes The purposes described in this subparagraph are the following: (i) Replenishing the depletion of consumables, personal protective equipment, medical supplies and equipment, transportation equipment, and personnel overtime funds. (ii) Expanding temporary Department processing capacity. (iii) Improving and ensuring— (I) age-appropriate and family-appropriate shelter capacity; and (II) the safety of, and transportation and telecommunications services for, individuals at the border in the custody of the Department or partner agencies. (iv) Coordinating with and providing funding for nongovernmental organizations. (v) Ensuring timely communication and transportation between the agencies of the Department, or with partner agencies, with respect to the transfer of individuals at the border in the custody of the Department. (vi) Requesting interagency assistance and detailing Department personnel in order to respond to an irregular migration event. (vii) Providing appropriate and accessible health care, including mental health care, for all individuals at the border in the custody of the Department. (viii) Providing appropriate trauma-informed care for unaccompanied alien children (as defined in section 462(g)) at the border in the custody of the Department. (4) Remaining amounts (A) In general Amounts in the Fund shall remain available until expended. (B) Exception Amounts remaining in the Fund at the end of fiscal year 2025 shall be returned to the general fund of the Treasury. (5) Authorization of appropriations There are authorized to be appropriated to the Irregular Migration Border Response Fund— (A) $1,000,000,000 for fiscal year 2022; and (B) such sums as are necessary to maintain a balance of $1,000,000,000 for each of fiscal years 2022 through 2025. (h) Definitions In this section: (1) Appropriate committees of Congress The term appropriate committees of Congress means— (A) the Committee on Homeland Security and Governmental Affairs of the Senate; and (B) the Committee on Homeland Security of the House of Representatives. (2) Border The term border means the international land borders of the United States. (3) Irregular migration The term irregular migration means the arrival of 1 or more individuals at the border who are traveling to the United States outside of standard trade and travel routes for the purpose of attempting to enter the United States illegally. (4) Irregular migration event The term irregular migration event means a significant increase in, or a sustained large number of, Department encounters with individuals at the border who are traveling to the United States outside of standard trade and travel routes for the purpose of attempting to enter the United States illegally. (5) Public health emergency The term public health emergency means a public health emergency declared by the Secretary of Health and Human Services pursuant to section 319 of the Public Health Service Act ( 42 U.S.C. 247d ). . (b) Clerical amendment The table of contents in section 1(b) of the Homeland Security Act of 2002 is amended by inserting after the item relating to section 436 the following: Sec. 437. Irregular migration border response plan and fund. .