II 117th CONGRESS 1st Session S. 959 IN THE SENATE OF THE UNITED STATES March 24, 2021 Mr. Graham (for himself, Mr. Tillis , and Mr. Barrasso ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 to protect alien minors and to amend the Immigration and Nationality Act to end abuse of the asylum system and establish refugee application and processing centers outside the United States, and for other purposes.

1. Short title This Act may be cited as the Secure and Protect Act of 2021 . 2. Protection of minors (a) Promoting family unity Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ( 8 U.S.C. 1232 ) is amended by adding at the end the following: (j) Promoting family unity (1) Detention of alien minors (A) In general Notwithstanding any other provision of law, judicial determination, consent decree, or settlement agreement, the Secretary of Homeland Security may detain any alien minor (other than an unaccompanied alien child) who is inadmissible to the United States under section 212(a) of the Immigration and Nationality Act ( 8 U.S.C. 1182(a) ) or removable from the United States under section 237(a) of that Act ( 8 U.S.C. 1227(a) ) pending the completion of removal proceedings, regardless of whether the alien minor was previously an unaccompanied alien child. (B) Priority removal cases The Attorney General shall— (i) prioritize the removal proceedings of an alien minor, or a family unit that includes an alien minor, detained under subparagraph (A); and (ii) set a case completion goal of not more than 100 days for such proceedings. (C) Detention and release decisions The decision to detain or release an alien minor described in subparagraph (A)— (i) shall be governed solely by sections 212(d)(5), 217, 235, 236, and 241 of the Immigration and Nationality Act ( 8 U.S.C. 1182(d)(5) , 1187, 1225, 1226, and 1231) and implementing regulations or policies; and (ii) shall not be governed by standards, requirements, restrictions, or procedures contained in a judicial decree or settlement relating to the authority to detain or release alien minors. (2) Conditions of detention (A) In general Notwithstanding any other provision of law, judicial determination, consent decree, or settlement agreement, the Secretary of Homeland Security shall determine, in the sole discretion of the Secretary, the conditions of detention applicable to an alien minor described in paragraph (1)(A) regardless of whether the alien minor was previously an unaccompanied alien child. (B) No judicial review A determination under subparagraph (A) shall not be subject to judicial review. (3) Rule of construction Nothing in this section— (A) affects the eligibility for bond or parole of an alien; or (B) limits the authority of a court to hear a claim arising under the Constitution of the United States. (4) Preemption of State licensing requirements Notwithstanding any other provision of law, judicial determination, consent decree, or settlement agreement, a State may not require an immigration detention facility used to detain families consisting of one or more children who have not attained 18 years of age and the parents or legal guardians of such children, that is located in the State, to be licensed by the State or any political subdivision thereof. (5) Conditions of custody The Secretary of Homeland Security shall ensure that each— (A) family residential facility is secure and safe; and (B) alien child and accompanying parent at a family residential facility has— (i) suitable living accommodations; (ii) access to drinking water and food; (iii) timely access to medical assistance, including mental health assistance; and (iv) access to any other service necessary for the adequate care of a minor child. (6) Authorization of appropriations There are authorized to be appropriated such sums as may be necessary to carry out this subsection. (k) Applicability of consent decrees, settlements, and judicial determinations (1) Flores settlement agreement inapplicable Any conduct or activity that was, before the date of the enactment of this subsection, subject to any restriction or obligation imposed by the stipulated settlement agreement filed on January 17, 1997, in the United States District Court for the Central District of California in Flores v. Reno, CV 85–4544–RJK, (commonly known as the Flores settlement agreement ), or imposed by any amendment of that agreement or judicial determination based on that agreement— (A) shall be subject to the restrictions and obligations in subsection (j) or imposed by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ( Public Law 110–457 ); and (B) shall not be subject to the restrictions and the obligations imposed by such settlement agreement or judicial determination. (2) Other settlement agreements or consent decrees In any civil action with respect to the conditions of detention of alien children, the court shall not enter or approve a settlement agreement or consent decree unless it complies with the limitations set forth in subsection (j). . (b) Safe and prompt return of unaccompanied alien children Section 235(a) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ( 8 U.S.C. 1232(a) ) is amended— (1) in paragraph (2)— (A) by amending the paragraph heading to read as follows: Rules for repatriating unaccompanied alien children ; (B) in subparagraph (A), in the matter preceding clause (i), by striking who is a national or habitual resident of a country that is contiguous with the United States shall be treated in accordance with subparagraph (B) and inserting shall be treated in accordance with this paragraph or subsection (b), as applicable ; (C) in subparagraph (B)— (i) by redesignating clauses (i) and (ii) as subclauses (I) and (II), and moving the subclauses two ems to the right; (ii) in the matter preceding subclause (I), as so redesignated, by striking An immigration officer and inserting the following: (i) In general An immigration officer ; and (iii) by adding at the end the following: (ii) Children unable to make decisions with respect to withdrawal of applications for admission If at the time of initial apprehension, an immigration officer determines, in the sole and unreviewable discretion of the immigration officer, that an unaccompanied alien child is not able to make an independent decision with respect to the withdrawal of his or her application for admission to the United States, the immigration officer shall refer the unaccompanied alien child for removal proceedings under section 240 of the Immigration and Nationality Act ( 8 U.S.C. 1229a ). (iii) Children able to make decisions with respect to withdrawal of applications for admission (I) In general Except as described in subclause (III)(aa), notwithstanding any other provision of law that requires removal proceedings under section 240 of the Immigration and Nationality Act ( 8 U.S.C. 1229a ), including subparagraph (D) and section 235 of the Immigration and Nationality Act ( 8 U.S.C. 1225 ), in the case of an unaccompanied alien child who is able to make an independent decision with respect to the withdrawal of his or her application for admission to the United States, as determined by an immigration officer at the time of initial apprehension, and does not wish to withdraw such application, the immigration officer shall— (aa) make a record of any finding of inadmissibility or deportability, which shall be the basis of a repatriation order, which shall be carried out and the child shall be returned to his or her country of nationality or last habitual residence, unless the child is referred— (AA) for removal proceedings pursuant to subclause (III)(aa); or (BB) to an immigration judge for a determination pursuant to subclause (III)(bb); and (bb) refer the unaccompanied alien child for an interview under subclause (II) to determine whether it is more likely than not that the unaccompanied alien child— (AA) will be subjected to trafficking on return to his or her country of nationality or last habitual residence; and (BB) would be granted asylum under section 208 of the Immigration and Nationality Act ( 8 U.S.C. 1158 ), withholding of removal under section 241(b)(3) of that Act ( 8 U.S.C. 1231(b)(3) ), or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York, December 10, 1984 (referred to in this clause as the Convention Against Torture ). (II) Interview (aa) In general An interview under subclause (I)(bb) shall be conducted by an immigration officer with specialized training relating to— (AA) applicable law; (BB) interviewing children; and (CC) child trafficking. (III) Determinations based on interview (aa) Removal proceedings An unaccompanied alien child described in subclause (I) shall be referred for removal proceedings under section 240 of the Immigration and Nationality Act ( 8 U.S.C. 1229a ) if, based on an interview under item (bb) of that subclause, the immigration officer makes a determination that it is more likely than not that the unaccompanied alien child will be trafficked on return to his or her country of nationality or last habitual residence. (bb) Asylum only determinations (AA) In general If, based on an interview under subclause (I)(bb), the immigration officer makes a determination that it is more likely than not that the claim of an unaccompanied alien child for asylum under section 208 of the Immigration and Nationality Act ( 8 U.S.C. 1158 ), withholding of removal under section 241(b)(3) of that Act ( 8 U.S.C. 1231(b)(3) ), or protection under the Convention Against Torture will be granted, the unaccompanied alien child shall be referred to an immigration judge solely for a determination with respect to whether the unaccompanied alien child is eligible for asylum under section 208 of that Act ( 8 U.S.C. 1158 ), withholding of removal under section 241(b)(3) of that Act ( 8 U.S.C. 1231(b)(3) ), or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and, if otherwise eligible for asylum, whether asylum shall be granted in the exercise of discretion. (BB) Repatriation An unaccompanied alien child referred to an immigration judge under subitem (AA) shall be returned to his or her country of nationality or last habitual residence if the immigration judge finds that the unaccompanied alien child is not entitled to asylum, withholding of removal, or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture. (IV) Discretion of immigration officer; no judicial review A decision of an immigration officer under this clause, and the issuance of a repatriation order, shall be in the sole, unreviewable discretion of the immigration officer. (iv) Detention during proceedings (I) In general Except as provided in subclauses (II) and (III), notwithstanding any other provision of law, settlement agreement, or consent decree, an unaccompanied alien child shall not be released from the custody of the Secretary of Homeland Security or the Director of the Office of Refugee Resettlement during the pendency of the immigration or removal proceedings of the unaccompanied alien child. (II) Release to sponsor (aa) In general Except as provided in item (bb), the Director of the Office of Refugee Resettlement may, in the sole, unreviewable discretion of the Director, release an unaccompanied alien child to a sponsor who is a verified parent or legal guardian or, in the case of an unaccompanied alien child who does not have a verified parent or legal guardian in the United States, a close relative, a distant relative, or an unrelated adult. (bb) Exception The Director of the Office of Refugee Resettlement shall not under any circumstance release an unaccompanied alien child to a sponsor or a member of the sponsor's household who has committed an offense described in section 236(c)(1) of the Immigration and Nationality Act ( 8 U.S.C. 1226(c)(1) ), is detained while in removal proceedings under section 240 of such Act ( 8 U.S.C. 1229a ), has assisted or facilitated the smuggling or trafficking of a child, or would otherwise pose a threat to the well-being of the unaccompanied alien child. (cc) Provision of information to Secretary of Homeland Security The Secretary of Health and Human Services shall provide to the Secretary of Homeland Security information relating to the sponsor, potential sponsor, and each member of the household of the sponsor or potential sponsor, of each unaccompanied alien child. (III) Programs for unaccompanied alien children without sponsors In the case of an unaccompanied alien child who cannot be placed with a sponsor under item (aa), the Director of the Office of Refugee Resettlement may release the child to a program for unaccompanied alien minors, such as a program under section 412(d) of the Immigration and Nationality Act ( 8 U.S.C. 1522(d) ). ; and (D) in subparagraph (C)— (i) by amending the subparagraph heading to read as follows: Agreements with foreign countries.— ; and (ii) in the matter preceding clause (i), by striking countries contiguous to the United States and inserting Canada, El Salvador, Guatemala, Honduras, Mexico, and any other foreign country the Secretary considers appropriate ; (2) by striking paragraph (3); (3) by redesignating paragraphs (4) and (5) as paragraphs (3) and (4), respectively; and (4) in paragraph (4)(D), as so redesignated, by striking from a contiguous country . (c) Protecting integrity of special immigrant juvenile visa program Section 101(a)(27)(J) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(27)(J) ) is amended— (1) in clause (i), by striking , and whose and all that follows through State law ; and (2) in clause (iii)— (A) in subclause (I), by striking and at the end; and (B) by adding at the end the following: (III) an alien may not be granted special immigrant juvenile status under this subparagraph if the juvenile court determines that the alien may be returned to the legal custody of any parent of the alien; and (IV) (aa) in assessing whether an alien is entitled to special immigrant juvenile classification under this subparagraph, the Secretary of Homeland Security may, in the discretion of the Secretary, determine whether— (AA) an order of dependency or custody issued for purposes of clause (i) was issued during juvenile court abuse and neglect proceedings for the purpose of providing permanency to an alien the parents of whom have been found to be unfit; and (BB) such order was issued by a court of appropriate jurisdiction ; and (bb) notwithstanding any other provision of law, no court shall have jurisdiction to review a determination made by the Secretary of Homeland Security under this subclause; . (d) Parole reform (1) In general Paragraph (5) of section 212(d) ( 8 U.S.C. 1182(d) ) is amended to read as follows: (5) Humanitarian and significant public benefit parole (A) In general Subject to the provisions of this paragraph and section 214(f)(2), the Secretary of Homeland Security, in the sole discretion of the Secretary of Homeland Security, may, on an individual case-by-case basis and not according to eligibility criteria describing an entire class of potential parole recipients, parole an alien into the United States temporarily, under such conditions as the Secretary of Homeland Security may prescribe, only— (i) for an urgent humanitarian reason (as described under subparagraph (B)); or (ii) for a reason deemed strictly for the significant public benefit (as described under subparagraph (C)). (B) Humanitarian parole The Secretary of Homeland Security may parole an alien based on an urgent humanitarian reason described in this subparagraph only if— (i) the alien has a medical emergency and the alien cannot obtain necessary treatment in the foreign state in which the alien is residing or the medical emergency is life-threatening and there is insufficient time for the alien to be admitted through the normal visa process; (ii) the alien is the legal guardian or otherwise has legal authority to make medical decisions on behalf of an alien described in clause (i); (iii) the alien is needed in the United States in order to donate an organ or other tissue for transplant into an immediate family member and there is insufficient time for the alien to be admitted through the normal visa process; (iv) the alien has an immediate family member in the United States whose death is imminent and the alien could not arrive in the United States in time to see such family member alive if the alien were to be admitted through the normal visa process; (v) the alien is a lawful applicant for adjustment of status under section 245; or (vi) the alien was lawfully granted status under section 208 or lawfully admitted under section 207. (C) Significant public benefit parole The Secretary of Homeland Security may parole an alien based on a reason deemed strictly for the significant public benefit described in this subparagraph only if— (i) the presence of the alien is necessary in a matter such as a criminal investigation or prosecution, espionage activity, or other similar law enforcement or intelligence-related activity; (ii) the presence of the alien is necessary in a civil matter concerning the termination of parental rights; (iii) the alien has previously assisted the United States Government in a matter described in clause (i) and the life of the alien would be threatened if the alien were not permitted to enter the United States; (iv) in the case of an alien detained under section 235, it is necessary to release from detention and grant parole to the alien due to a safety concern or for the preservation of life and property, including in the case of— (I) lack of adequate bed space in a detention facility; or (II) an alien who has a serious medical condition such that continued detention would be life-threatening or would risk serious bodily injury, disfigurement, or permanent disability; or (v) in the case of an alien returned to a foreign territory contiguous to the United States pursuant to section 235(b)(2)(C), it is necessary to parole the alien into the United States for an immigration proceeding. (D) Limitation on the use of parole authority The Secretary of Homeland Security may not use the parole authority under this paragraph— (i) to circumvent immigration policy established by law; (ii) to admit classes of aliens who do not qualify for admission under established legal immigration categories; or (iii) to supplement established immigration categories without an Act of Congress. (E) Parole not an admission Parole of an alien under this paragraph shall not be considered an admission of the alien into the United States. When the purposes of the parole of an alien have been served, or such parole is revoked, as determined by the Secretary of Homeland Security, the alien shall immediately return or be returned to the custody from which the alien was paroled and the alien shall be considered for admission to the United States on the same basis as other similarly situated applicants for admission. (F) Report to Congress Not later than 90 days after the end of each fiscal year, the Secretary of Homeland Security shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives describing the number and categories of aliens paroled into the United States under this paragraph. Each such report shall contain information and data concerning the number and categories of aliens paroled, the duration of parole, and the current status of aliens paroled during the preceding fiscal year. . (2) Effective date The amendment made by paragraph (1) shall take effect on the first day of the first month beginning more than 60 days after the date of the enactment of this Act. 3. Ending abuse of asylum system (a) Standards To deter fraud and advance meritorious asylum claims Section 235(b)(1)(B) of the Immigration and Nationality Act ( 8 U.S.C. 1225(b)(1)(B) ) is amended— (1) by amending clause (v) to read as follows: (v) Credible fear of persecution (I) In general For purposes of this subparagraph, the term credible fear of persecution means that it is more likely than not that the alien would be able to establish eligibility for asylum under section 208— (aa) taking into account such facts as are known to the officer; and (bb) only if the officer has determined, under subsection (b)(1)(B)(iii) of such section, that it is more likely than not that the statements made by the alien or on behalf of the alien are true. (II) Bars to asylum An alien shall not be determined to have a credible fear of persecution if the alien is prohibited from applying for or receiving asylum, including an alien subject to a limitation or condition under subsection (a)(2) or (b)(2) (including a regulation promulgated under such subsection) of section 208. ; and (2) by adding at the end the following: (vi) Eligibility for relief (I) Credible fear review by immigration judge An alien determined to have a credible fear of persecution shall be referred to an immigration judge for review of such determination, which shall be limited to a determination whether the alien— (aa) is eligible for asylum under section 208, withholding of removal under section 241(b)(3), or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York, December 10, 1984 (referred to in this clause as the Convention Against Torture) ; and (bb) merits a grant of asylum in the exercise of discretion. (II) Aliens with reasonable fear of persecution (aa) In general Except as provided in item (bb), if an alien referred under subparagraph (A)(ii) is determined to have a reasonable fear of persecution or torture, the alien shall be eligible only for consideration of an application for withholding of removal under section 241(b)(3) or protection under the Convention Against Torture. (bb) Exception An alien shall not be eligible for consideration of an application for relief under item (aa) if the failure of the alien to establish a credible fear of persecution precludes the alien from eligibility for such relief. (cc) Limitation An alien whose application for relief is adjudicated under item (aa) shall not be eligible for any other form of relief or protection from removal. (vii) Ineligibility for removal proceedings An alien referred under subparagraph (A)(ii) shall not be eligible for a hearing under section 240. . (b) Applications for asylum Section 208 of the Immigration and Nationality Act ( 8 U.S.C. 1158 ) is amended— (1) in subsection (a)— (A) by striking paragraph (1) and inserting the following: (1) In general Only an alien who has entered the United States through a designated port of entry may apply for asylum under this section or section 235(b), as applicable. ; and (B) in paragraph (2)— (i) in subparagraph (A), by striking , pursuant to a bilateral or multilateral agreement, ; and (ii) in subparagraph (E), by striking Subparagraphs (A) and (B) and inserting Subparagraph (A) ; and (2) in subsection (b)(3), by striking subparagraph (C). (c) Authority for certain aliens To apply for asylum Section 208(a)(2) of the Immigration and Nationality Act ( 8 U.S.C. 1158(a)(2) ) is amended by adding at the end the following: (F) Ineligibility for asylum (i) In general Notwithstanding any other provision of law, including paragraph (1), except as provided in clause (ii), an alien is ineligible for asylum if the alien— (I) has been convicted of a felony; (II) is inadmissible under section 212(a) (except paragraphs (4), (5), and (7)); (III) has been previously removed from the United States; or (IV) is a national or habitual resident of— (aa) a country in Central America that has a refugee application and processing center; or (bb) a country contiguous to such a country (other than Mexico). (ii) Exception Notwithstanding clause (i), paragraph (1) shall not apply to any alien who is present in the United States on the date of the enactment of this subparagraph. . 4. Establishment of refugee application and processing centers (a) Definition Section 101(a) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a) ) is amended by adding at the end the following: (53) The term refugee application and processing center — (A) means a facility designated under section 207(g) by the Secretary of State to accept and process applications for refugee admissions to the United States; and (B) may include a United States embassy, consulate, or other diplomatic facility. . (b) Designation Section 207 of the Immigration and Nationality Act ( 8 U.S.C. 1157 ) is amended by adding at the end the following: (g) Refugee application and processing centers (1) Designation Not later than 240 days after the date of the enactment of this subsection, the Secretary of State, in consultation with the Secretary of Homeland Security, shall designate refugee application and processing centers outside the United States. (2) Locations The Secretary of State shall establish— (A) not fewer than 1 refugee application and processing center in Mexico; and (B) not fewer than 3 refugee application and processing centers in Central America at locations selected by the Secretary of State, in consultation with the Secretary of Homeland Security. (3) Duties of Secretary of State The Secretary of State, in coordination with the Secretary of Homeland Security, shall ensure that any alien who is a national or habitual resident of a country in which a refugee application and processing center is located, or a country contiguous to such a country, may apply for refugee status at a refugee application and processing center. (4) Adjudication by refugee officers An application for refugee status submitted to a refugee application and processing center shall be adjudicated by a refugee officer. (5) Priority The Secretary of State shall ensure that refugee application and processing centers accord priority to applications submitted— (A) by aliens who have been referred by an authorized nongovernmental organization, as determined by the Secretary of State; (B) not later than 90 days after the date on which such referral is made; and (C) in accordance with the requirements and procedures established by the Secretary of State under this subsection. (6) Application fees (A) In general The Secretary of State and the Secretary of Homeland Security shall charge, collect, and account for fees prescribed by each such Secretary pursuant to subsections (m) and (n) of section 286 and section 9701 of title 31, United States Code, for the purpose of receiving, docketing, processing, and adjudicating an application under this subsection. (B) Basis for fees The fees prescribed under subparagraph (A) shall be based on a consideration of the amount necessary to deter frivolous applications and the cost for processing the application, including the implementation of program integrity and anti-fraud measures. . (c) Sunset The amendments made by this section shall cease to be effective beginning on the date that is three years and 240 days after the date of the enactment of this Act. 5. Regulations Notwithstanding section 553(b) of title 5, United States Code, not later than 210 days after the date of the enactment of this Act, the Secretary of Homeland Security and the Attorney General shall, jointly or separately, publish in the Federal Register interim final rules to implement the amendments made by section 3(c) and section 4. 6. Hiring authority (a) Immigration judges The Attorney General shall increase— (1) the number of immigration judges by not fewer than an additional 500 judges, as compared to the number of immigration judges as of the date of the enactment of this Act; and (2) the corresponding number of support staff, as necessary. (b) Immigration and Customs Enforcement attorneys The Director of U.S. Immigration and Customs Enforcement shall increase the number of attorneys and staff employed by U.S. Immigration and Customs Enforcement by the number that is consistent with the workload staffing model to support the increase in immigration judges. (c) Authorization of appropriations There are authorized to be appropriated such sums as may be necessary for— (1) the hiring of immigration judges, support staff, and U.S. Immigration and Customs Enforcement attorneys under this section; and (2) the lease, purchase, or construction of facilities or equipment (including video teleconferencing equipment and equipment for electronic filing of immigration cases), and the transfer of federally owned temporary housing units to serve as facilities, for— (A) the increased number of immigration judges, attorneys, and support staff under this section; and (B) conducting immigration court proceedings in close proximity to the locations at which aliens are apprehended and detained.