[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1494 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  1st Session
                                S. 1494

    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.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 15, 2019

  Mr. Graham 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.

    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 ``Secure and Protect Act of 2019''.

SEC. 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 removable 
                from the United States under section 237 of the 
                Immigration and Nationality Act (8 U.S.C. 1227) for not 
                more than 100 days pending the completion of removal 
                proceedings, regardless of whether the alien minor was 
                previously an unaccompanied alien child.
                    ``(B) Priority removal cases.--The Director of the 
                Executive Office for Immigration Review 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) 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.--Conduct 
        and activity that was, before the date of the enactment of this 
        subsection, subject to a restriction or an 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'), 
        including any modification of and any judicial determination 
        based on such agreement--
                    ``(A) shall not be subject to such restriction or 
                obligation; and
                    ``(B) shall be subject to the restrictions and 
                obligations under this Act.
            ``(2) Other settlement agreements or consent decrees.--Any 
        settlement agreement or consent decree relating to the 
        conditions of detention of an alien child shall be consistent 
        with 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; 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 
                                                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 
                                                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 
                                                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 subclause (II), 
                                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) Exception.--An unaccompanied 
                                alien child may be released in the 
                                sole, unreviewable discretion of the 
                                Director of the Office of Refugee 
                                Resettlement.''; 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 reunification 
                                of the alien with any parent or legal 
                                guardian of the alien is not precluded 
                                by abuse, neglect, abandonment, or any 
                                similar cause under State law; and
                                    ``(IV)(aa) in assessing whether an 
                                alien is entitled to special immigrant 
                                juvenile status under this 
                                subparagraph, the Secretary of Homeland 
                                Security shall determine whether an 
                                order of dependency issued for purposes 
                                of clause (i) was issued by an 
                                appropriate court with 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;''.

SEC. 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, 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.--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)(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 that has a 
                                        refugee application and 
                                        processing center; or
                                            ``(bb) a country contiguous 
                                        to such a country.
                            ``(ii) Exception.--Notwithstanding clause 
                        (i), paragraph (1) applies to any alien who is 
                        present in the United States on the date of the 
                        enactment of this subparagraph.''.

SEC. 4. ESTABLISHMENT OF REFUGEE APPLICATION AND PROCESSING CENTERS.

            (1) 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.''.
            (2) 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) 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) Number of referrals and grants of admission for 
        refugees.--The admission to the United States of refugees under 
        this subsection shall be subject to the limitations, including 
        the numerical limitations, under this section.
            ``(7) 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 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.''.

SEC. 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.

SEC. 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.
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