Humanitarian Border Supplemental - H.R.3401
HR 3401, Emergency Supplemental Appropriations for Humanitarian Assistance and Security at the Southern Border Act. The bill provides $4.6 billion to address the growing humanitarian crisis at the U.S.-Mexico border caused by the large influx of immigrants seeking asylum. In particular, it provides $2.9 billion for Health and Human Services Department care of unaccompanied minors who cross the border; the department's funding for that purpose is nearly exhausted. The Senate Appropriations Committee last week by a 30-1 vote reported its own $4.6 billion bill (S 1900) that was negotiated by Senate Republicans and Democrats, which the White House supports. House Democratic appropriators sought to negotiate their own version with Republican appropriators but were unable to reach agreement — and on Friday introduced their own version to bring to the House floor.
BACKGROUND:
A central focus of Donald Trump's campaign for president, and in governing after becoming president, has been immigration — in particular stopping the flow of undocumented immigrants into the United States, primarily by building a wall on the U.S.-Mexico border.
U.S. government apprehensions of individuals illegally crossing the southwest U.S. border dropped during President Trump's first year in office, but rose in 2018 and has increased dramatically this year (although until the last few months they remained well below the averages of prior decades). In May, more than 144,000 migrants were taken into custody.
Compared to prior decades, the mix of migrants has changed from primarily Mexican adults looking for jobs in the United States to Central Americans fleeing their nations (primarily El Salvador, Guatemala and Honduras, the so-called Northern Triangle) because of poverty and violence, who are seeking asylum in the United States. A majority entering the U.S. are now families and unaccompanied children.
The increase in migrant families and children has overwhelmed the U.S. border enforcement system, which was mostly designed to detain individual adults, with Homeland Security Department officials in March saying that the system was "at the breaking point." All parties now agree that a humanitarian crisis has developed.
The U.S. Border Patrol, which usually apprehends migrants and initially processes them before handing them off to other federal agencies, has been unable to keep up with the influx. With its holding facilities over capacity it has temporarily housed migrants at Border Patrol stations and other Customs and Border Protection (CBP) facilities, and have dropped migrants off in local communities with the expectation the community will provide needed services. Recent news reports have revealed that many unaccompanied children, who are supposed to be transferred from CBP custody no later than 72 hours after being apprehended, were being housed for weeks in squalid, overcrowded conditions at some CBP facilities along the border.
And the Health and Human Services (HHS) Department's Office of Refugee Resettlement (ORR), which takes custody of unaccompanied migrant children and shelters and cares for them while seeking to place them with a sponsor living in the United States (usually a close or extended family member) also has not been able to keep up with the influx — and has increasingly been keeping children in crowded, temporary unlicensed housing operated by private companies.
Administration Request
On May 1, the White House requested that Congress provide $4.5 billion in supplemental funding to address the situation at the U.S. southern border, with $3.3 billion being for humanitarian assistance — including $2.8 billion for HHS's Office of Refugee Resettlement, which the White House said will otherwise run out of money by the end of June, and $391 million for Homeland Security to provide for additional migrant processing facilities where incoming families and unaccompanied children could "receive timely and appropriate medical attention, food, and temporary shelter before being transferred to other residential locations."
The request also included $1.1 billion for border operations by Homeland Security, the Defense Department and Justice Department (for prisoner detention), and $178 million for Homeland Security border mission support costs.
Initially, the administration sought to have the funding added to the $19.1 billion natural disaster supplemental package then pending before Congress (eventually enacted as PL 116-20). Democrats expressed a willingness to include the $2.8 billion requested for HHS as well as certain other humanitarian relief, but they opposed funding they believed could be diverted for use in immigration enforcement or for increasing the number of detention beds. Efforts to include that humanitarian funding in the disaster package faltered, however, partly because Democrats wanted language to further restrict HHS’s ability to share information with Homeland Security regarding family members or others in the U.S. who agree to sponsor an unaccompanied child, particularly their citizenship status.
Senate & House Appropriations Bills
Negotiations regarding the supplemental request continued in the Senate, with a bipartisan agreement finally being reached and the Senate Appropriations Committee approving it by a 30-1 vote on June 19.
That Senate bill (S 1900) provides a total of $4.59 billion for humanitarian and other border needs, $400 million less than requested (the administration made several other requests that increased its total request to $4.99 billion). It also continues existing language in the FY 2019 Homeland Security appropriations act that restricts HHS from sharing information about the citizenship status of sponsors who agree to take in unaccompanied children (which provides exceptions for cases of suspected child molestation, trafficking and other crimes that could put the children at risk), and it sets certain conditions regarding the housing of unaccompanied minors and provides funding for additional immigration judge teams to process asylum cases and to educate migrants regarding the asylum process.
That Senate bill is expected to be considered on the Senate floor this week.
After the Senate Appropriations Committee approved its bill, House Appropriations Chairwoman Lowey, D-N.Y., issued a statement saying Democratic appropriators "have concerns with the Senate bill as currently written." Democrats say they sought to reach an agreement on their own version of a border supplemental with Republican appropriators — but they have been pressed by more liberal Democrats who object to President Trump’s immigration policies and who remain upset he diverted other federal funds to help build his border wall. Those passions were further inflamed on June 17 when the president tweeted that U.S. immigration agents would soon "begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States" (an action he has temporarily postponed), and liberals fear the president will use funds provided by the bill for immigration enforcement actions.
Consequently, House Democratic appropriators last Friday introduced their own version of a border supplemental that among other things provides less funding for ICE and includes stricter requirements regarding the quality of housing and care of migrants, in particular migrant children. With liberals still objecting on Monday and highlighting the poor treatment of migrant children in custody, additional provisions have been added to ensure humane treatment for such children.
House Republicans argue that the House should instead pass the bipartisan version approved by Senate Appropriations, saying the White House has indicated President Trump would sign it into law.
SUMMARY: The recommended rule would automatically modify the bill upon its adoption; following is a summary of the bill as modified.
This bill provides a total of $4.5 billion in emergency supplemental FY 2019 appropriations to addresses the humanitarian crisis at the southern border — including $2.9 billion to address the funding shortfall being experienced by the Health and Human Services (HHS) Department in sheltering and caring for unaccompanied children who cross the border.
It requires U.S. Customs and Border Protection (CBP) to establish standards for ensuring the health and safety of migrants in its custody, with standards for temporary holding facilities for children to comply with recommendations by the National Academy of Pediatrics.
It generally prohibits HHS from placing unaccompanied children in unlicensed influx facilities unless certain conditions are met, expressly prohibits children under the age of 13 from being placed in such facilities, and requires that children who have been in such facilities for more than 90 days be moved to state-licensed facilities. It requires HHS to cancel the contracts of non-licensed facilities that fail to meet certain Flores Settlement conditions of care for unaccompanied children.
It also requires that funds previously appropriated for aid to El Salvador, Guatemala, and Honduras be used for those nations, and not blocked as President Trump has proposed.
The measure provide no funding for ICE detention beds or for a border wall or barriers, and it effectively prohibits any of the funds provided by the measure from being used for a border wall or barriers or for ICE enforcement actions (including detention beds and deportation raids).
Care of Unaccompanied Minors
The measure provides $2.9 billion for programs and activities of the Office of Refugee Resettlement within HHS — which shelters and cares for unaccompanied children who cross the border while seeking to place them with a sponsor who lives in the United States (usually a close or extended family member). According to the House Appropriations Committee, that funding would be sufficient to last through Dec. 31, 2019.
Within that total, it provides $866 million for state-licensed shelters in the Office of Refugee Resettlement's network, including $212 million to expand capacity in small- and medium-scale state-licensed facilities to reduce reliance on influx shelters.
The total also includes $100 million for legal services for unaccompanied children as well as for the Child Advocate program; $9 million to hire additional Federal Field Specialists and expand case management services in order to more quickly place children with sponsors; and $5 million for the Inspector General to oversee HHS's unaccompanied children program.
It restores funds to other HHS accounts that have been reprogrammed since mid-May to keep the unaccompanied children program running.
Use of Influx Shelters
In housing unaccompanied children, the bill requires HHS to prioritize the use of community-based residential care (including long-term and transitional foster care and small group homes) and state-licensed, hard-sided dormitories.
HHS could use so-called "influx shelters" only on a temporary basis due to an emergency or an influx of unaccompanied children. (Influx shelters are generally temporary, unlicensed shelters operated by private companies.) In such cases, facilities that remain in operation for more than six months must maintain at least one staff member for every eight children (one for every 16 children at night), the children must have access to legal services, and the shelter must comply with the Flores Settlement.
HHS could grant 60-day waivers for facilities that are making good-faith efforts to comply, with a facility eligible for up to three consecutive waivers. With each waiver, HHS must identify the requirement that is being waived. However, HHS could not waive requirements under the Flores Settlement that the facility provide proper physical care to the children (including suitable living accommodations, food, clothing and personal grooming items), as well as routine medical and dental care, educational services, exercise and leisure activities, and religious services. In addition, children must receive a complete medical examination (including a screening for infectious diseases) within 48 hours of admission, have an individual counseling session at least once a week, and be allowed visitation and contact with family (regardless of the family's immigration status). Facility contractors who fail to meet the above requirements would have their contract terminated and would not be eligible for new grants or contracts.
The measure prohibits unaccompanied children under the age of 13 from being placed in influx shelters. Similarly, the following categories of children also could not be placed in influx shelters: those who do not speak English or Spanish; those who have special needs; minors who are pregnant or parenting; and children who are not expected to be quickly placed with a sponsor (defined to be within 30 days).
Finally, the measure prohibits any child from spending more than 90 days in aggregate at an unlicensed facility, with any children who have been at unlicensed facilities for more than 90 days to be transferred by HHS to a state-licensed facility (unless the child is expected to be placed with a sponsor within 30 days).
Other Policy Provisions
The bill continues the prohibition included in the FY 2019 Homeland Security Appropriations Act that prevents the Homeland Security Department from using citizenship or other information collected by HHS during a sponsor's vetting process for immigration enforcement purposes.
It requires any facility caring for unaccompanied children to permit oversight visits from members of Congress, without any prior notice.
It also requires HHS to notify Congress within 24 hours if an unaccompanied child dies in its custody. According to press reports, since October 2018 six children have died in U.S. custody, or shortly after being released; HHS is not currently required to notify Congress or the public of children who die in its custody.
Finally HHS must report monthly to Congress on children who were separated from their parents or legal guardians and were subsequently classified as unaccompanied children and transferred to HHS custody.
Homeland Security Department
The bill provides a total of $1.5 billion for the Homeland Security Department, including $1.3 billion for U.S. Customs and Border Protection (CBP), $128 million for Immigration and Customs Enforcement, and $60 million for the Federal Emergency Management Agency.
The measure requires the CBP to establish standards for ensuring the health and safety of migrants in its custody, particularly children, and it seeks to increase CBP capacity to process migrants and reduce overcrowding, while also providing migrants with needed food, water and other supplies. It reimburses local communities for the services to migrants that they have been providing.
It also requires the department to prepare a plan to ensure that all migrants encountered by Homeland Security personnel have access to translation services, with this plan to be submitted to Congress along with an estimate of its feasibility, costs and potential benefits.
It provides no funding for ICE detention beds or for a border wall or barriers, and it effectively prohibits the transfer of the bill's funds for those purposes or for ICE enforcement activities.
CBP
The measure provides $1.3 billion for U.S. Customs and Border Protection (CBP), including $1.2 billion in operations and support funding and $85 million in procurement funding.
Within the total, $788 million is for the acquisition and operation of soft-side and modular facilities to alleviate severe overcrowding at CBP facilities, and $8 million is for security at these facilities. It provides $92 million for food, water, sanitary items, blankets, and other consumables for migrants, and $20 million for medical support.
It also provides $35 million for transportation of migrants from border patrol stations to alleviate overcrowding and expedite processing, and $91 million for CBP temporary duty and overtime costs.
It requires the CBP to establish standards for ensuring the health and safety of migrants in its custody, including standards and response protocols for medical assessments and medical emergencies, and requirements for ensuring the provision of water, appropriate nutrition, hygiene and sanitation needs. The standards must also establish protocols for responding to surges of migrants, and require appropriate training regarding the care and treatment of migrants to all federal employees and contractors who interact with migrants in civil detention.
The standards it sets for temporary holding facilities must adhere to best practices for care of children and comply with American Academy of Pediatrics recommendations in its "Detention of Immigrant Children" policy statement.
Finally, the measure provides $50 million for CBP to modernize its data systems to better integrate immigration processing and reporting by HHS and the Justice Department — and it requires that $200 million of the total provided to CBP be used for an integrated, multi-agency processing center pilot program to coordinate the activities of those three departments and agencies in an effort to speed up the asylum process for migrant families and unaccompanied children.
ICE
The bill provides $128 million for Immigration and Customs Enforcement (ICE); unlike the Senate bill, it does not include funds to address pay shortfalls and overtime costs or to fund additional investigative activities.
The ICE total includes $45 million for detention facility medical support and other related healthcare costs for migrants in its custody, and $36 million for transportation of unaccompanied children to HHS custody. It also includes $12 million for migrant transportation for medical needs and court proceedings, as well as for transfers from CBP custody.
It includes $20 million for ICE's Alternatives to Detention program, under which ICE can ensure that undocumented immigrants will participate in their immigration court proceedings through means other than detention — such as through parole arrangements, check-ins at ICE offices, home visits, and GPS monitoring through the use of ankle bracelets.
Finally, it includes $10 million for background investigations of ICE contractors and personnel, and for inspections of ICE facilities.
FEMA
The measure provides $60 million for FEMA's Emergency Food and Shelter Program to provide assistance to, or reimburse, non-profit organizations that have provided services to migrants in communities that have experienced a significant influx of migrants.
Return to Mexico Policy
The bill requires the Homeland Security Department to establish written guidelines for the administration's Migrant Protection Protocols policy — i.e., its "Return to Mexico" initiative that was started in January, under which individuals seeking asylum in the United States must return to Mexico and wait outside of the U.S. for the duration of their immigration proceedings.
Specifically, the department must establish guidelines and policies to ensure such individuals are briefed regarding their legal rights and obligations prior to being returned to Mexico; to have private meeting space and videoconferencing access in Mexico to consult with their lawyers; and to address the housing, transportation and security needs of such individuals in Mexico. The policies also must prioritize the immigration proceedings of migrants who participate in the program and return to Mexico.
Other Policy Provisions
The bill prohibits CBP from using operations and support funds that are provided by the measure unless the agency adheres to the National Standards on Transport, Escort, Detention, and Search. Those policies, which were released in October 2015, set nationwide standards that are supposed to govern CBP's interaction with detained individuals.
It requires the department to report to Congress on the number of CBP officers assigned to Northern Border land ports of entry that have been temporarily reassigned to the southwest border in response to the humanitarian crisis, and what would be needed to return northern border staffing levels to at least the number prescribed by the department's June 12, 2018, Northern Border Strategy.
Finally, it prohibits the transfer of Trusted Traveler Programs to the National Targeting Center. These risk-based programs (Global Entry, TSA PreCheck, SENTRI, NEXUS, and FAST) facilitate the entry of pre-approved travelers through land borders and airport screening centers.
Justice Department
The bill provides a total of $172 million to the Justice Department, of which $15 million is for the Executive Office for Immigration Review to conduct its Legal Orientation Program — which provides immigrants with information about their immigration legal proceedings. At least $2 million of that office funding must be used for continued operation of the Immigration Court Helpdesk Program, which focuses help to those in deportation proceedings.
The Justice total also includes $155 million for the U.S. Marshals Service to meet shortfalls in the agency's operational costs, including the cost of detaining prisoners in their custody. According to the committee, these funds are needed to help prevent the need to use other department resources and thereby avoid delays in implementing the First Step Act (PL 115-391) which aims to reduce the incarcerated population and help prisoners reintegrate into society.
Aid to Northern Triangle Nations
The bill requires that funds appropriated for aid in FY 2017, FY 2018 and FY 2019 to El Salvador, Guatemala, and Honduras (the Northern Triangle countries) be used for those nations — and not be blocked as President Trump has proposed. The president, angered that those nations have not done more to prevent their citizens from traveling to the U.S. border and seeking asylum, has called for that U.S. aid to be suspended and used for other purposes.
However, the measure provides that if the State Department determines the aid cannot be provided to the governments of those nations because they fail to meet certification requirements under the law, at least 75% of the withheld funds must be reprogrammed to be provided to nongovernmental organizations or local entities in those nations, with the balance to be used for other nations in the Caribbean and Latin America.
