[House Report 116-162]
[From the U.S. Government Publishing Office]
116th Congress } { Rept. 116-162
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
HUMANITARIAN STANDARDS FOR INDIVIDUALS IN CUSTOMS AND BORDER PROTECTION
CUSTODY ACT
_______
July 19, 2019.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3239]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3239) to require U.S. Customs and Border Protection
to perform an initial health screening on detainees, and for
other purposes, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 6
Background and Need for the Legislation.......................... 6
Hearings......................................................... 9
Committee Consideration.......................................... 10
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 20
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 20
Duplication of Federal Programs.................................. 20
Performance Goals and Objectives................................. 20
Advisory on Earmarks............................................. 20
Section-by-Section Analysis...................................... 20
Committee Correspondence......................................... 24
Dissenting Views................................................. 26
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Humanitarian
Standards for Individuals in Customs and Border Protection Custody
Act''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Initial health screening protocol.
Sec. 3. Water, sanitation and hygiene.
Sec. 4. Food and nutrition.
Sec. 5. Shelter.
Sec. 6. Coordination and Surge capacity.
Sec. 7. Training.
Sec. 8. Interfacility transfer of care.
Sec. 9. Planning and initial implementation.
Sec. 10. Contractor compliance.
Sec. 11. Inspections.
Sec. 12. GAO report.
Sec. 13. Rule of construction.
Sec. 14. Definitions.
SEC. 2. INITIAL HEALTH SCREENING PROTOCOL.
(a) In General.--The Commissioner of U.S. Customs and Border
Protection (referred to in this Act as the ``Commissioner''), in
consultation with the Secretary of Health and Human Services, the
Administrator of the Health Resources and Services Administration, and
nongovernmental experts in the delivery of health care in humanitarian
crises and in the delivery of health care to children, shall develop
guidelines and protocols for the provision of health screenings and
appropriate medical care for individuals in the custody of U.S. Customs
and Border Protection (referred to in this Act as ``CBP''), as required
under this section.
(b) Initial Screening and Medical Assessment.--The Commissioner shall
ensure that any individual who is detained in the custody of CBP
(referred to in this Act as a ``detainee'') receives an initial in-
person screening by a licensed medical professional in accordance with
the standards described in subsection (c)--
(1) to assess and identify any illness, condition, or age-
appropriate mental or physical symptoms that may have resulted
from distressing or traumatic experiences;
(2) to identify acute conditions and high-risk
vulnerabilities; and
(3) to ensure that appropriate healthcare is provided to
individuals as needed, including pediatric, obstetric, and
geriatric care.
(c) Standardization of Initial Screening and Medical Assessment.--
(1) In general.--The initial screening and medical
assessment shall include--
(A) an interview and the use of a standardized
medical intake questionnaire or the equivalent;
(B) screening of vital signs, including pulse rate,
body temperature, blood pressure, oxygen saturation,
and respiration rate;
(C) screening for blood glucose for known or
suspected diabetics;
(D) weight assessment of detainees under 12 years of
age;
(E) a physical examination; and
(F) a risk-assessment and the development of a plan
for monitoring and care, when appropriate.
(2) Prescription medication.--The medical professional shall
review any prescribed medication that is in the detainee's
possession or that was confiscated by CBP upon arrival and
determine if the medication may be kept by the detainee for use
during detention, properly stored by CBP with appropriate
access for use during detention, or maintained with the
detained individual's personal property. A detainee may not be
denied the use of necessary and appropriate medication for the
management of the detainee's illness.
(3) Rule of construction.--Nothing in this subsection shall
be construed as requiring detainees to disclose their medical
status or history.
(d) Timing.--
(1) In general.--Except as provided in paragraph (2), the
initial screening and medical assessment described in
subsections (b) and (c) shall take place as soon as
practicable, but not later than 12 hours after a detainee's
arrival at a CBP facility.
(2) High priority individuals.--The initial screening and
medical assessment described in subsections (b) and (c) shall
take place as soon as practicable, but not later than 6 hours
after a detainee's arrival at a CBP facility if the individual
reasonably self-identifies as having a medical condition that
requires prompt medical attention or is--
(A) exhibiting signs of acute or potentially severe
physical or mental illness, or otherwise has an acute
or chronic physical or mental disability or illness;
(B) pregnant;
(C) a child (with priority given, as appropriate, to
the youngest children); or
(D) elderly.
(e) Further Care.--
(1) In general.--If, as a result of the initial health
screening and medical assessment, the licensed medical
professional conducting the screening or assessment determines
that one or more of the detainee's vital sign measurements are
significantly outside normal ranges in accordance with the
National Emergency Services Education Standards, or if the
detainee is identified as high-risk or in need of medical
intervention, the detainee shall be provided, as expeditiously
as possible, with an in-person or technology-facilitated
medical consultation with a licensed emergency care
professional.
(2) Re-evaluation.--
(A) In general.--Detainees described in paragraph (1)
shall be re-evaluated within 24 hours and monitored
thereafter as determined by an emergency care
professional (and in the care of a consultation
provided to a child, with a licensed emergency care
professional with a background in pediatric care).
(B) Reevaluation prior to transportation.--In
addition to the re-evaluations under subparagraph (A),
detainees shall have all vital signs re-evaluated and
be cleared as safe to travel by a medical professional
prior to transportation.
(3) Pyschological and mental care.--The Commissioner shall
ensure that detainees who have experienced physical or sexual
violence or who have experienced events that may cause severe
trauma or toxic stress, are provided access to basic, humane,
and supportive psychological assistance.
(f) Interpreters.--To ensure that health screenings and medical care
required under this section are carried out in the best interests of
the detainee, the Commissioner shall ensure that language-appropriate
interpretation services, including indigenous languages, are provided
to each detainee and that each detainee is informed of the availability
of interpretation services.
(g) Chaperones.--To ensure that health screenings and medical care
required under this section are carried out in the best interests of
the detainee--
(1) the Commissioner shall establish guidelines for and
ensure the presence of chaperones for all detainees during
medical screenings and examinations consistent with relevant
guidelines in the American Medical Association Code of Medical
Ethics, and recommendations of the American Academy of
Pediatrics; and
(2) to the extent practicable, the physical examination of a
child shall always be performed in the presence of a parent or
legal guardian or in the presence of the detainee's closest
present adult relative if a parent or legal guardian is
unavailable.
(h) Documentation.--The Commissioner shall ensure that the health
screenings and medical care required under this section, along with any
other medical evaluations and interventions for detainees, are
documented in accordance with commonly accepted standards in the United
States for medical record documentation. Such documentation shall be
provided to any individual who received a health screening and
subsequent medical treatment upon release from CBP custody.
(i) Infrastructure and Equipment.--The Commissioner or the
Administrator of General Services shall ensure that each location to
which detainees are first transported after an initial encounter with
an agent or officer of CBP has the following:
(1) A private space that provides a comfortable and
considerate atmosphere for the patient and that ensures the
patient's dignity and right to privacy during the health
screening and medical assessment and any necessary follow-up
care.
(2) All necessary and appropriate medical equipment and
facilities to conduct the health screenings and follow-up care
required under this section, to treat trauma, to provide
emergency care, including resuscitation of individuals of all
ages, and to prevent the spread of communicable diseases.
(3) Basic over-the-counter medications appropriate for all
age groups.
(4) Appropriate transportation to medical facilities in the
case of a medical emergency, or an on-call service with the
ability to arrive at the CBP facility within 30 minutes.
(j) Personnel.--The Commissioner or the Administrator of General
Services shall ensure that each location to which detainees are first
transported after an initial encounter has onsite at least one licensed
medical professional to conduct health screenings. Other personnel that
are or may be necessary for carrying out the functions described in
subsection (e), such as licensed emergency care professionals,
specialty physicians (including physicians specializing in pediatrics,
family medicine, obstetrics and gynecology, geriatric medicine,
internal medicine, and infectious diseases), nurse practitioners, other
nurses, physician assistants. licensed social workers, mental health
professionals, public health professionals, dieticians, interpreters,
and chaperones, shall be located on site to the extent practicable, or
if not practicable, shall be available on call.
(k) Ethical Guidelines.--The Commissioner shall ensure that all
medical assessments and procedures conducted pursuant to this section
are conducted in accordance with ethical guidelines in the applicable
medical field, and respect human dignity.
SEC. 3. WATER, SANITATION AND HYGIENE.
The Commissioner shall ensure that detainees have access to--
(1) not less than one gallon of drinking water per person per
day, and age-appropriate fluids as needed;
(2) a private, safe, clean, and reliable permanent or
portable toilet with proper waste disposal and a hand washing
station, with not less than one toilet available for every 12
male detainees, and 1 toilet for every 8 female detainees;
(3) a clean diaper changing facility, which includes proper
waste disposal, a hand washing station, and unrestricted access
to diapers;
(4) the opportunity to bathe daily in a permanent or portable
shower that is private and secure; and
(5) products for individuals of all age groups and with
disabilities to maintain basic personal hygiene, including
soap, a toothbrush, toothpaste, adult diapers, and feminine
hygiene products, as well as receptacles for the proper storage
and disposal of such products.
SEC. 4. FOOD AND NUTRITION.
The Commissioner shall ensure that detainees have access to--
(1) three meals per day including--
(A) in the case of an individual age 12 or older, a
diet that contains not less than 2,000 calories per
day; and
(B) in the case of a child who is under the age of
12, a diet that contains an appropriate number of
calories per day based on the child's age and weight;
(2) accommodations for any dietary needs or restrictions; and
(3) access to food in a manner that follows applicable food
safety standards.
SEC. 5. SHELTER.
The Commissioner shall ensure that each facility at which a detainee
is detained meets the following requirements:
(1) Except as provided in paragraph (2), males and females
shall be detained separately.
(2) In the case of a minor child arriving in the United
States with an adult relative or legal guardian, such child
shall be detained with such relative or legal guardian unless
such an arrangement poses safety or security concerns. In no
case shall a minor who is detained apart from an adult relative
or legal guardian as a result of such safety or security
concerns be detained with other adults.
(3) In the case of an unaccompanied minor arriving in the
United States without an adult relative or legal guardian, such
child shall be detained in an age-appropriate facility and
shall not be detained with adults.
(4) A detainee with a temporary or permanent disability shall
be held in an accessible location and in a manner that provides
for his or her safety, comfort, and security, with
accommodations provided as needed.
(5) No detainee shall be placed in a room for any period of
time if the detainee's placement would exceed the maximum
occupancy level as determined by the appropriate building code,
fire marshal, or other authority.
(6) Each detainee shall be provided with temperature
appropriate clothing and bedding.
(7) The facility shall be well lit and well ventilated, with
the humidity and temperature kept at comfortable levels
(between 68 and 74 degrees Fahrenheit).
(8) Detainees who are in custody for more than 48 hours shall
have access to the outdoors for not less than 1 hour during the
daylight hours during each 24-hour period.
(9) Detainees shall have the ability to practice their
religion or not to practice a religion, as applicable.
(10) Detainees shall have access to lighting and noise levels
that are safe and conducive for sleeping throughout the night
between the hours of 10 p.m. and 6 a.m.
(11) Officers, employees, and contracted personnel of CBP
shall--
(A) follow medical standards for the isolation and
prevention of communicable diseases; and
(B) ensure the physical and mental safety of
detainees who identify as lesbian, gay, bisexual,
transgender, and intersex.
(12) The facility shall have video-monitoring to provide for
the safety of the detained population and to prevent sexual
abuse and physical harm of vulnerable detainees.
(13) The Commissioner shall ensure that language-appropriate
``Detainee Bill of Rights'', including indigenous languages,
are posted or otherwise made available in all areas where
detainees are located. The ``Detainee Bill of Rights'' shall
include all rights afforded to the detainee under this Act.
(14) Video from video-monitoring must be preserved for 90
days and the detention facility must maintain certified records
that the video-monitoring is properly working at all times.
SEC. 6. COORDINATION AND SURGE CAPACITY.
The Secretary of Homeland Security shall enter into memoranda of
understanding with appropriate Federal agencies, such as the Department
of Health and Human Services, and applicable emergency government
relief services, as well as contracts with health care, public health,
social work, and transportation professionals, for purposes of
addressing surge capacity and ensuring compliance with this Act.
SEC. 7. TRAINING.
The Commissioner shall ensure that CBP personnel assigned to each
short-term custodial facility are professionally trained, including
continuing education as the Commissioner deems appropriate, in all
subjects necessary to ensure compliance with this Act, including--
(1) humanitarian response protocols and standards;
(2) indicators of physical and mental illness, and medical
distress in children and adults;
(3) indicators of child sexual exploitation and effective
responses to missing migrant children; and
(4) procedures to report incidents of suspected child sexual
abuse and exploitation directly to the National Center for
Missing and Exploited Children.
SEC. 8. INTERFACILITY TRANSFER OF CARE.
(a) Transfer.--When a detainee is discharged from a medical facility
or emergency department, the Commissioner shall ensure that
responsibility of care is transferred from the medical facility or
emergency department to an accepting licensed health care provider of
CBP.
(b) Responsibilities of Accepting Providers.--Such accepting licensed
health care provider shall review the medical facility or emergency
department's evaluation, diagnosis, treatment, management, and
discharge care instructions to assess the safety of the discharge and
transfer and to provide necessary follow-up care.
SEC. 9. PLANNING AND INITIAL IMPLEMENTATION.
(a) Planning.--Not later than 60 days after the date of enactment of
this Act, the Secretary of Homeland Security shall submit to Congress a
detailed plan delineating the timeline, process, and challenges of
carrying out the requirements of this Act.
(b) Implementation.--The Secretary of Homeland Security shall ensure
that the requirements of this Act are implemented not later than 6
months after the date of enactment.
SEC. 10. CONTRACTOR COMPLIANCE.
The Secretary of Homeland Security shall ensure that all personnel
contracted to carry out this Act do so in accordance with the
requirements of this Act.
SEC. 11. INSPECTIONS.
(a) In General.--The Inspector General of the Department of Homeland
Security shall--
(1) conduct unannounced inspections of ports of entry, border
patrol stations, and detention facilities administered by CBP
or contractors of CBP; and
(2) submit to Congress, reports on the results of such
inspections as well as other reports of the Inspector General
related to custody operations.
(b) Particular Attention.--In carrying out subsection (a), the
Inspector General of the Department of Homeland Security shall pay
particular attention to--
(1) the degree of compliance by CBP with the requirements of
this Act;
(2) remedial actions taken by CBP; and
(3) the health needs of detainees.
(c) Access to Facilities.--The Commissioner may not deny a Member of
Congress entrance to any facility or building used, owned, or operated
by CBP.
SEC. 12. GAO REPORT.
(a) In General.--The Comptroller General of the United States shall--
(1) not later than 6 months after the date of enactment of
this Act, commence a study on implementation of, and compliance
with, this Act; and
(2) not later than 1 year after the date of enactment of this
Act, submit a report to Congress on the results of such study.
(b) Issues to Be Studied.--The study required by subsection (a) shall
examine the management and oversight by CBP of ports of entry, border
patrol stations, and other detention facilities, including the extent
to which CBP and the Department of Homeland Security have effective
processes in place to comply with this Act. The study shall also
examine the extent to which CBP personnel, in carrying out this Act,
make abusive, derisive, profane, or harassing statements or gestures,
or engage in any other conduct evidencing hatred or invidious prejudice
to or about one person or group on account of race, color, religion,
national origin, sex, sexual orientation, age, or disability, including
on social media.
SEC. 13. RULE OF CONSTRUCTION.
Nothing in this Act shall be construed to authorize CBP to detain
individuals for longer than 72 hours.
SEC. 14. DEFINITIONS.
In this Act:
(1) Interpretation services.--The term ``interpretation
services'' includes translation services that are performed
either in-person or through a telephone or video service.
(2) Child.--The term ``child'' has the meaning given the term
in section 101(b)(1) of the Immigration and Nationality Act (8
U.S.C. 1101(b)(1)).
(3) U.S. customs and border protection facility.--The term
``U.S. Customs and Border Protection Facility'' includes--
(A) U.S. Border Patrol stations;
(B) ports of entry;
(C) checkpoints;
(D) forward operating bases;
(E) secondary inspection areas; and
(F) short-term custody facilities.
(4) Forward operating base.--The term ``forward operating
base'' means a permanent facility established by CBP in forward
or remote locations, and designated as such by CBP.
Purpose and Summary
H.R. 3239, the ``Humanitarian Standards for Individuals in
Customs and Border Protection Custody Act,'' requires U.S.
Customs and Border Protection (CBP) to ensure that its border
facilities are equipped to meet and deliver basic humanitarian
standards of care for detained individuals, including families
and children.
Background and Need for the Legislation
Most Border Patrol facilities and ports of entry were
designed to hold adult single men, given that for years the
vast majority of individuals apprehended at the Southern border
were Mexican men seeking employment opportunities in the United
States. Over the last few years, however, the situation at the
border has changed with significant numbers of unaccompanied
children and family units coming to the border and turning
themselves over to CBP. This current fiscal year, apprehensions
have spiked compared to recent years.
CBP officials, for example, consider CBP to be ``at
capacity'' when 4,000 individuals are in the agency's custody
at any one time. Between May 14 and June 13, 2019, however, CBP
detained more than 14,000 people per day--and sometimes as many
as 18,000.\1\ Overall, from March 2019 to June 2019, almost
400,000 individuals were apprehended at the Southern border;
more than double the number of apprehensions made during the
same period in the previous year.\2\
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\1\Dara Lind, The Horrifying Conditions Facing Kids in Border
Detention, Explained, VOX (June 25, 2019), https://www.vox.com/policy-
and-politics/2019/6/25/18715725/children-border-detention-kids-cages-
immigration; Cedar Attanasio, Garance Burke, Attorneys: Texas Border
Facility is Neglecting Migrant Kids, Associated Press (June 21, 2019),
https://www.apnews.com/46da2dbe04f54adbb875cfbc06bbc615.
\2\Customs and Border Protection, Southwest Border Migration
FY2019, Dep't of Homeland Security (last modified July 10, 2019),
https://www.cbp.gov/newsroom/stats/sw-border-migration; see also David
Bier, Decline in June Border Patrol Apprehensions Tracks Prior Years'
Patterns, CATO Institute (July 9, 2019), https://www.cato.org/blog/
decline-june-apprehensions-track-prior-years-patterns.
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So far this fiscal year, CBP has reported the deaths of
three children and seven adults in agency custody.\3\ The
conditions that contributed to these tragic incidents should
not have come as a surprise. In a December 2018 appearance
before the Senate Judiciary Committee, then-CBP Commissioner
Kevin McAleenan testified that CBP's short-term holding
facilities are ``incompatible'' with the increasing migration
of family units and unaccompanied children.''\4\
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\3\ Email received from Megan Ilnicky, Office of Congressional
Affairs, Customs and Border Protection, on July 10, 2019 (on file with
Committee); see also Camilo Montoya-Galvez, Top Border Protection
Official is ``Confident'' in Agency's Data on Migrant Child Deaths, CBS
NEWS (May 23, 2019), https://www.cbsnews.com/news/migrant-child-deaths-
top-customs-and-border-protection-official-is-confident-in-agency-data-
on-migrant-child-deaths/.
\4\Nick Miroff & Robert Moore, 7-year-old Migrant Girl Taken into
Border Patrol Custody Dies of Dehydration, Exhaustion, Washington Post
(Dec. 13, 2018), https://www.washingtonpost.com/world/national-
security/7-year-old-migrant-girl-taken-into-border-patrol-custody-dies-
of-dehydration-exhaustion/2018/12/13/8909e356-ff03-11e8-862a-
b6a6f3ce8199_story.html?utm_term=.8d6319c9c800.
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On May 30, 2019, the Department of Homeland Security's
Office of Inspector General (DHS OIG) issued the first of two
``Management Alerts'' on the conditions experienced by
children, families, and adults in the six busiest CBP custody
facilities in Texas.\5\ The May 30 Alert primarily focused on
dangerous overcrowding of single adults at the Del Norte
Processing Center, and documented, among other things, the
following concerns:
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\5\DHS Office of Inspector General, Management Alert--DHS Needs to
Address Dangerous Overcrowding Among Single Adults at El Paso Del Norte
Processing Center, Dep't of Homeland Security, OIG-19-49 (May 30,
2019), https://www.oig.dhs.gov/sites/default/files/assets/2019-05/OIG-
19-46-May19.pdf.
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On May 7 and 8, some 750 and 900 individuals
respectively were detained in a facility with a maximum
capacity of 125.
A cell with a maximum capacity of 12 held 76
detainees; a cell with a maximum capacity of 8 held 41
detainees; and a cell with a maximum capacity of 35
held 155 detainees.
Border Patrol agents told DHS inspectors
that some of the individuals had been held in standing-
room-only conditions for days or weeks.
With limited access to showers and clean
clothing, individuals were wearing soiled clothing for
days or weeks.
Individuals were standing on toilets in the
cells to make room and gain breathing space, thus
limiting access to the toilets.
DHS reviewed and responded to the Alert before it was
published, and formal comments were incorporated by DHS OIG.
While DHS concurred with the recommendation made to alleviate
overcrowding at the Del Norte Processing Center, it identified
November 30, 2020 as the date on which the situation would be
corrected. As a result, DHS OIG considered the recommendation
open and unresolved, as ``DHS's corrective action is critical
to the immediate health and safety needs of detainees, who
cannot continue to be held in standing-room-only conditions for
weeks until additional tents are constructed.''\6\
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\6\Id. at 1.
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On July 2, 2019, DHS OIG issued a second ``Management
Alert'' focused on the dangerous overcrowding and prolonged
detention of children and adults at five CBP custody facilities
in the Rio Grande Valley.\7\ This Alert documented, among other
things, the following concerns:
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\7\DHS Office of Inspector General, Management Alert--DHS Needs to
Address Dangerous Overcrowding and Prolonged Detention of Children and
Adults in the Rio Grande Valley, Dep't of Homeland Security, OIG-19-51
(July 2, 2019), https://www.oig.dhs.gov/sites/default/files/assets/
2019-07/OIG-19-51-Jul19_.pdf.
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Border Patrol was holding about 8,000
detainees in custody at the time of the visit, with
3,400 detainees held longer than the 72 hours generally
permitted under the CBP Transport, Escort, Detention,
and Search (TEDS) standards.\8\ Of those 3,400
detainees, Border Patrol was holding 1,500 for more
than ten days.
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\8\Id.
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Border Patrol data indicated that 826 (31
percent) of the 2,669 children at these facilities were
being held longer than the 72 hours generally permitted
under the TEDS standards and the Flores Agreement.\9\
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\9\The Flores Settlement Agreement generally prohibits the
detention of minors for longer than 72 hours. In the case of an influx
of minors, placement should be as expeditious as possible (Jenny
Lissette Flores v. Reno, Case No. 85-4544-RJK (C.D. CA 1997). 8 U.S.C.
Sec. 1232(b)(3) requires DHS to meet this timeline unless there are
``exceptional circumstances.'' The Flores Agreement also requires
facilities that hold minors to provide: (1) access to food and drinking
water; (2) medical assistance in the event of emergencies; (3) toilets
and sinks; (4) adequate temperature control and ventilation; (5)
adequate supervision to protect minors from others; (6) separation from
unrelated adults whenever possible; and (7) contact with family members
who were arrested with the minor.
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Of the 1,031 unaccompanied children held at
the Centralized Processing Center in McAllen, Texas,
806 had already been processed and were awaiting
transfer to HHS custody. Of those 806 children, 165 had
been in custody longer than a week.
Among more than 50 unaccompanied children
younger than seven years old, some had been in custody
more than two weeks while awaiting transfer.
Although TEDS standards require CBP to make
a reasonable effort to provide a shower for adults
after 72 hours, most single adults had not had a shower
in CBP custody, despite several being held for as long
as a month.
Most single adults were wearing the same
clothes they were wearing when they arrived days,
weeks, and even up to a month earlier.
DHS reviewed and responded to the Alert before it was
published, and formal comments were incorporated by DHS OIG.
DHS responded by citing measures taken to expand CBP's capacity
on the Southern border. DHS OIG recognized the ``extraordinary
challenges'' facing CBP, but stated that it ``remained
concerned that DHS is not taking sufficient measures to address
prolonged detention in CBP custody among single adults.
Although an additional 500 beds in the Rio Grande Valley may
reduce overcrowding among single adults, DHS must transfer
single adults to ICE custody as quickly as possible; within
DHS, long-term detention is ICE's responsibility.''\10\
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\10\See supra note 7 at 10.
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These reports are troubling, but unfortunately they are not
isolated incidents. Members of Congress, doctors, lawyers, and
journalists have also documented the disturbing conditions in
other facilities in which many children are held. Observations
and allegations include children being forced to wear
``clothing stained with vomit''\11\ and to share combs during a
lice outbreak.\12\ According to members of the American
Association of Pediatricians, which met with children in CBP
custody in June, ``the smell of sweat, urine and feces'' was
the first thing that hit them when they walked in the door.\13\
In June 2019, the Associated Press (AP) detailed conditions
inside a CBP facility in Clint, Texas, where an estimated 250
to 300 children, including some infants, were being held.\14\
According to the AP, the facility lacked adequate food, water,
and sanitation, while ``teen mothers and other younger kids
[were] being asked to care for infants and toddlers on their
own, with little or no help from any adults.''\15\
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\11\Simon Romero, `Don't Talk to Her': We Toured the Troubled
Border Station Housing Migrant Children, The N.Y. Times (June 26,
2019), https://www.nytimes.com/2019/06/26/us/migrant-children-border-
clint-texas.html.
\12\Isaac Chotiner, Inside a Texas Building Where the Government is
Holding Immigrant Children, The New Yorker (June 22, 2019), https://
www.newyorker.com/news/q-and-a/inside-a-texas-building-where-the-
government-is-holding-immigrant-children.
\13\Elizabeth Cohen, Pediatricians Share Migrant Children's
Disturbing Drawings of Their Time in US Custody, CNN (July 4, 2019),
https://www.cnn.com/2019/07/03/health/migrant-drawings-cbp-children/
index.html.
\14\A Firsthand Report of `Inhumane Conditions' at a Migrant
Children's Detention Facility,'' PBS Newshour (June 21, 2019), https://
www.pbs.org/newshour/show/a-firsthand-report-of-inhumane-conditions-at-
a-migrant-childrens-detention-facility.
\15\Id.
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Last week, Vice President Mike Pence visited a Border
Patrol station in McAllen, Texas where individuals in CBP
custody told reporters they had been there for 40 days, were
hungry, and did not have ready access to water.\16\ Vice
President Pence said he was ``not surprised by what he saw''
and added, ``this is tough stuff.''\17\
---------------------------------------------------------------------------
\16\Josh Dawsey & Colby Itkowitz, `This is Tough Stuff': At Texas
Detention Facility Pence Sees Hundreds of Migrants Crammed with No
Beds, Wash. Post (July 12, 2019), https://www.washingtonpost.com/
politics/pence-tours-detention-facilities-at-the-border-defends-
administrations-treatment-of-migrants/2019/07/12/993f54e0-a4bc-11e9-
b8c8-75dae2607e60_story.html?utm_term=.e7ccf3be4208.
\17\Id.
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Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress, the following hearing was used to develop H.R.
3239: ``Dangerous Overcrowding and Prolonged Detention at CBP
Facilities,'' held before the Subcommittee on Immigration and
Citizenship on July 15, 2019. The Subcommittee heard testimony
from Diana Shaw, Assistant Inspector General for Special
Reviews and Evaluation, Office of Inspector General, Department
of Homeland Security (DHS). The witness's testimony centered on
the two Management Alerts issued by DHS OIG in May and July
2019, discussed above. The witness described in additional
detail the overcrowded conditions at the inspected facilities;
the prolonged detention of unaccompanied children, families,
and adults documented in each report; and the conditions at
other facilities mentioned in reports by various media
outlets.\18\
---------------------------------------------------------------------------
\18\See e.g., A Firsthand Report of `Inhumane Conditions' at a
Migrant Children's Detention Facility,'' PBS Newshour (June 21, 2019),
https://www.pbs.org/newshour/show/a-firsthand-report-of-inhumane-
conditions-at-a-migrant-childrens-detention-facility; Rafael Carranza,
Reports of Misconduct and Sexual Assault of Migrant Kids Surface at
Yuma Border Facility, Arizona Republic (July 9, 2019), https://
www.azcentral.com/story/news/politics/border-issues/2019/07/09/reports-
abuse-migrant-kids-surface-yuma-border-facility/1689876001/.
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Committee Consideration
On July 17, 2019, the Committee met in open session and
ordered the bill, H.R. 3239, favorably reported with an
amendment in the nature of a substitute by a rollcall vote of
18 to 13, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 3239:
1. An amendment by Mr. Biggs to amend Section 5 to allow a
child to be detained with an adult when the adult is a
``parent'' instead of an ``adult relative'' or ``relative'' was
defeated by a roll call vote of 8 to 21.
2. An amendment by Ms. Jackson Lee to: (1) require the
preservation of video recordings from monitoring devices for 90
days and to require CBP to maintain certified records that
video monitoring equipment is properly working at all times;
and (2) ensure that language-appropriate ``Detainee Bill of
Rights'' information is posted or otherwise made available in
all areas where detainees are located was passed by a roll call
vote of 18 to 12.
3. An amendment by Mr. Steube to amend Section 9 to provide
that the Secretary of Homeland Security ensure that this Act is
implemented not later than 6 months after the date of its
enactment provided Congress has appropriated an amount of funds
sufficient to carry out the Act's requirements was defeated by
a roll call vote of 9 to 17.
4. An amendment by Mr. Gaetz to express the sense of
Congress that the provisions of the bill require additional
resources and personnel for the CBP and that the House of
Representatives should pass supplemental funding for the CBP to
mitigate the humanitarian crisis at the Southern border and to
implement this legislation quickly and effectively was defeated
by a roll call vote of 9 to 17.
5. Motion to report H.R. 3239, as amended, was agreed to by
a roll call vote of 18 to 13.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office. The Committee has
requested but not received from the Director of the
Congressional Budget Office a statement as to whether this bill
contains any new budget authority, spending authority, credit
authority, or an increase or decrease in revenues or tax
expenditures.
Duplication of Federal Programs
No provision of H.R. 3239 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
3239 would require CBP to ensure that its border facilities are
equipped to meet and deliver basic humanitarian standards of
care for detained individuals, including families and children.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 3239 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. Section 1(a) sets forth the short
title of the bill as the ``Humanitarian Standards for
Individuals in Customs and Border Protection Custody Act''.
Section 1(b) sets forth the table of contents for the Act.
Sec. 2. Initial Health Screening Protocol. Section 2(a)
requires the Commissioner of U.S. Customs and Border Protection
(CBP), in consultation with the Secretary of Health and Human
Services, the Administrator of the Health Resources and
Services Administration, and nongovernmental experts in the
delivery of health care in humanitarian crises and the delivery
of health care to children, to develop guidelines for the
provision of health screenings and medical care for individuals
in CBP custody.
Section 2(b) states that each individual in CBP custody
shall receive an in-person screening by a licensed medical
professional to assess and identify any illness, condition, or
trauma-related symptoms, including the identification of acute
conditions and high-risk vulnerabilities, and ensure that
appropriate care is provided.
Section 2(c) describes the screening process, which must
include: an interview and intake questionnaire; screening of
vital signs; screening of blood glucose, for known or suspected
diabetics; weight assessment of detainees under 12 years of
age; a physical exam; and a risk assessment and the development
of a plan for monitoring and care, as appropriate. The medical
professional must review any prescribed medications in the
possession of the detainee to determine if the medication may
be kept by the detainee, stored by CBP for use as prescribed,
or maintained with the detainee's property. Detainees may not
be denied the use of necessary and appropriate medication to
manage an illness.
Section 2(d) states that, in general, detainees are to
receive a health screening within 12 hours of arrival at a CBP
facility. The following high-priority populations are to
receive a health screening within six hours of arrival:
detainees who reasonably self-identify as having a medical
condition that requires prompt attention; detainees exhibiting
signs of acute or potentially severe physical or mental
illness, or who otherwise have an acute or chronic physical or
mental illness or disability; pregnant women; children; and
elderly detainees.
Section 2(e) states that if the initial health screening
reveals vital sign measurements significantly outside of normal
ranges, or if the detainee is identified as high-risk or in
need of medical intervention, the detainee shall be provided
with an in-person or technology-facilitated medical
consultation with a licensed emergency care professional. The
detainee will be re-evaluated within 24 hours and monitored
thereafter as determined by an emergency care professional.
Detainees must be cleared to travel before they can be
transported. Detainees who have experienced physical or sexual
violence or who have experienced events that may cause severe
trauma or toxic stress shall be provided access to basic
psychological assistance.
Section 2(f) requires CBP to provide detainees with
interpretation services during the screening and follow-up
procedures, and inform detainees that such services are
available.
Section 2(g) requires CBP to have chaperones available
during medical screenings and examinations in accordance with
American Medical Association guidelines.
Section 2(h) requires CBP to document health screenings and
any medical care provided, and to provide such documents to an
individual who receives a health screening and subsequent
medical treatment upon their release from CBP custody.
Section 2(i) requires each CBP facility where detainees are
first transported to have: a private space to conduct health
screenings and follow-up care; all necessary equipment to
conduct the health screening and follow-up care, to treat
trauma, provide emergency care, and prevent the spread of
communicable diseases; basic over-the-counter medications for
all ages; and transportation to a medical facility in the case
of a medical emergency, or an on-call service with the ability
to arrive at the CBP facility within 30 minutes.
Section 2(j) requires each CBP facility where detainees are
first transported to have at least one licensed medical
professional to conduct health screenings on site. Other
personnel who are or may be necessary for carrying out the
functions described in this section such as licensed emergency
care professionals, specialty physicians, interpreters, and
chaperones-shall be located on site to the extent practicable,
or if not practicable, shall be available on call.
Section 2(k) requires all medical assessments and
procedures to be conducted in accordance with ethical
guidelines in the applicable medical field and with respect for
human dignity.
Sec. 3. Water, Sanitation, and Hygiene. Section 3 requires
CBP to ensure that detainees have access to: at least one
gallon of drinking water per person per day; a private, safe,
clean, and reliable toilet with proper waste disposal and a
hand washing station (one toilet per every 12 male detainees;
one toilet per every eight female detainees); a clean diaper
changing facility; the opportunity to bathe daily in a private
and secure shower; products to maintain basic personal hygiene
including but not limited to soap, toothbrush, toothpaste,
feminine products, and diapers.
Sec. 4. Food and Nutrition. Section 4 requires CBP to
provide detainees with access to three meals a day, with
accomodations for dietary needs or restrictions (at least 2,000
calories a day for adults and an age- and weight-appropriate
number of calories for children under the age of 12).
Sec. 5. Shelter. Section 5 requires CBP to ensure that each
facility at which an individual is detained meets the following
requirements: (1) males and females shall be detained
separately; (2) minor children who arrive with an adult
relative or legal guardian shall be detained with the relative
or guardian, unless there are safety or security concerns; (3)
children who arrive without an adult relative or legal guardian
(or who are separated from an adult relative or guardian
because of safety or security concerns) shall not be detained
with adults; (4) detainees with a temporary or permanent
disabililty shall be held in an accessible location and in a
manner that provides safety, comfort, and security, with
accomodations provided as needed; (5) detainees may not be
placed in a room for any period of time if placement would
exceed the room's maximum occupancy level; (6) detainees shall
be provided temperature-appropriate clothing and bedding; (7)
facilities must be well-lit and ventilated and kept at
comfortable temperature levels; (8) detainees who are held more
than 48 hours must have outdoor access during daylight hours
for 1 hour per day; (9) detainees shall have the ability to
practice their religion; (10) detainees shall have access to
lighting and noise levels that are safe and conducive for
sleeping throughout the night; (11) CBP shall follow medical
standards to isolate and prevent communicable diseases and
ensure the safety of individuals who identify as lesbian, gay,
bisexual, transgender, or intersex; and (12) facilities shall
have video-monitoring to provide for the safety of detainees
and to prevent sexual abuse and physical harm of vulnerable
detainees.
Recordings from video monitoring devices shall be preserved
for 90 days, and facilities must maintain certified records
that video monitoring equipment is properly working at all
times. CBP must also ensure that language-appropriate Detainee
Bill of Rights information is posted or otherwise made
available to detainees.
Sec. 6. Coordination and Surge Capacity. Section 6 requires
CBP to enter into memoranda of understanding with appropriate
federal agencies and applicable emergency government relief
services--as well as contracts with health care, public health,
social work, and transportation professionals--to address surge
capacity and ensure compliance with the Act.
Sec. 7. Training. Section 7 requires the training of CBP
personnel on humanitarian response protocols and standards;
indicators of physical and mental illness, and medical distress
in children and adults; indicators of child sexual exploitation
and effective responses to missing migrant children; and
procedures to report incidents of suspected child sexual abuse
and exploitation.
Sec. 8. Interfacility Transfer of Care. Section 8 requires
CBP to ensure that responsibility of care is transferred from a
medical facility or emergency department to a CBP licensed
health care provider. The accepting healthcare provider shall
review all relevant records from the prior facility to assess
the safety of the discharge and transfer, and to provide
necessary follow-up care.
Sec. 9. Implementation Plan. Section 9 requires the
Secretary of Homeland Security to submit a plan to Congress 60
days after the date of enactment, delineating the timeline,
process, and challenges of carrying out these requirements, and
to implement the Act's requirements not later than 6 months
after the date of enactment.
Sec. 10. Contractor Compliance. Section 10 requires the
Secretary of Homeland Security to ensure that contract
personnel carry out the Act's requirements.
Sec. 11. Inspections. Section 11 requires the DHS Office of
Inspector General to conduct unannounced inspections of CBP
ports of entry, border patrol stations, and other detention
facilities administered by CBP or CBP contractors and to submit
the results and other reports related to custody operations to
Congress. No Member of Congress may be denied access to a
facility owned or operated by CBP.
Sec. 12. GAO Report. Section 12 requires the Government
Accountability Office to commence a study no later than six
months after the date of enactment on the management and
oversight of ports of entry, border patrol stations, and other
CBP detention facilities, as well as the extent to which CBP
personnel engage in abusive, profane, or harassing conduct, or
other conduct evidencing hatred or prejudice in carrying out
the Act, including on social media platforms, and report to
Congress within 1 year on the results of the study.
Sec. 13. Rule of Construction. Section 13 states that
nothing in this Act may be construed to authorize CBP to detain
individuals for longer than 72 hours.
Sec. 14. Definitions. Section 14 defines the following
terms: interpretation services; child; and U.S. Customs and
Border Protection facility.
Dissenting Views
H.R. 3239\1\ would impose burdensome--and in many cases
impossible--standards of care onto hundreds of U.S. Customs and
Border Protection (``CBP'') facilities across the country. As
the men and women of CBP confront the realities of an
unprecedented crisis, H.R. 3239 would require the provision of
extensive medical screenings and follow-up health care at any
CBP facility where individuals are detained or transported
after their initial encounter with CBP. It would also impose
certain standards with respect to facilities, nutrition, and
sanitation. The requirements of this bill are onerous,
applicable to hundreds of diverse facilities in both urban and
remote regions, and would be impossible to implement within the
6 month time-frame required by the bill.
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\1\Amendment in the Nature of a Substitute to H.R. 3239, as amended
by the Lofgren Manager's Amendment, 116th Cong. (Humanitarian Standards
for Individuals in Customs and Border Protection Custody Act).
---------------------------------------------------------------------------
Under H.R. 3239, all aliens entering CBP custody would
receive an extensive medical assessment\2\--essentially a full
physical--which must take place in ``a private space that
provides a comfortable and considerate atmosphere for the
patient . . .''\3\ The assessment must include ``an interview
and the use of a standardized medical intake questionnaire or
the equivalent,'' ``screening of vital signs, including pulse
rate, body temperature, blood pressure, oxygen saturation, and
respiration rate,'' ``screening for blood glucose for known or
suspected diabetics,'' ``weight assessment of detainees under
12 years of age,'' ``a physical examination,'' and ``a risk-
assessment and the development of a plan for monitoring and
care, when appropriate.''\4\ In addition to providing
interpreters, CBP must also ensure ``chaperones'' are present
during these screenings.\5\ CBP medical personnel must document
these physicals and provide those medical records to detainees
upon release or transfer from custody.\6\ These screenings must
occur within 12 hours of a detainee's arrival at a CBP
facility, but not later than 6 hours in the case of a ``high
priority individual''.\7\
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\2\Id. at Sec. 2(c).
\3\Id. at Sec. 2(i)(1).
\4\Id. at Sec. 2(c)(1).
\5\Id. at Sec. Sec. 2(f) and (g).
\6\Id. at Sec. 2(h).
\7\Id. at Sec. 2(d).
---------------------------------------------------------------------------
In addition to the licensed medical professionals necessary
to conduct the initial health screenings, who must be located
on site, the bill states the following personnel ``shall be
located on site to the extent practicable'' at each CBP
facility: ``licensed emergency care professionals, specialty
physicians (including physicians specializing in pediatrics,
family medicine, obstetrics and gynecology, geriatric medicine,
internal medicine, and infectious diseases), nurse
practitioners, other nurses, physician assistants, licensed
social workers, mental health professionals, public health
professionals, dieticians, interpreters, and chaperones . .
.''\8\ CBP is also required to ensure access to ``psychological
assistance'' for individuals ``who have experienced events that
may cause severe trauma or toxic stress . . .''\9\ Moreover,
CBP facilities are required to have, on location, ``[a]ll
necessary and appropriate medical equipment and facilities to
conduct the health screenings and follow-up care required under
[Section 2 of the bill], to treat trauma, to provide emergency
care, including resuscitation of individuals of all ages, and
to prevent the spread of communicable diseases.''\10\ CBP is
also required to have ``[a]ppropriate transportation to medical
facilities in the case of a medical emergency, or an on-call
service with the ability to arrive at the CBP facility within
30 minutes.''\11\ CBP would also be required to transport
individuals for follow-up care if they are discharged from
another medical facility.\12\
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\8\Id. at Sec. 2(j).
\9\Id. at Sec. 2(e)(3).
\10\Id. at Sec. 2(i)(2).
\11\Id. at Sec. 2(i)(4).
\12\Id. at Sec. 8.
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During the markup, Republicans pointed out at least some
Veterans Affairs hospitals do not have specialty physicians
located on site, and referrals can take weeks. Thus H.R. 3239
will ensure better care for some illegal aliens than our
military veterans receive.
H.R. 3239 imposes facilities requirements that would limit
CBP's ability to respond to a surge or influx of migrants. The
bill states, ``No detainee shall be placed in a room for any
period of time if the detainee's placement would exceed the
maximum occupancy level''\13\ but also limits the ability to
use temporary outdoor facilities by requiring ``The facility
shall be well lit and well ventilated, with the humidity and
temperature kept at comfortable levels (between 68 and 74
degrees Fahrenheit).''\14\ This would prevent CBP from being
able to use shading structures or other temporary outdoor
facilities to house migrants in times of influx.
---------------------------------------------------------------------------
\13\Id. at Sec. 5(5).
\14\Id. at Sec. 5(7).
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The bill would also require ``private'' toilets ``with not
less than one toilet available for every 12 male detainees, and
1 toilet for every 8 female detainees'',\15\ diaper changing
stations,\16\ ``the opportunity to bathe daily in a permanent
or portable shower that is private and secure,''\17\ (emphasis
added), and access to certain personal hygiene products.\18\
H.R. 3239 also requires CBP to install video-monitoring at all
covered facilities, but also requires that CBP provide
``lighting and noise levels that are safe and conducive for
sleeping'' between certain hours.\19\ This will require CBP to
retrofit facilities with infrared cameras so the facilities can
be monitored in low-light levels at night. An amendment
accepted by the Democrats at markup will require CBP to post a
written ``language-appropriate `Detainee Bill of Rights,'
including indigenous languages'' in all areas where detainees
are located which ``shall include all rights afforded to the
detainee under this bill.''\20\
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\15\Id. at Sec. 3(2).
\16\Id. at Sec. 3(3).
\17\Id. at Sec. 3(4).
\18\Id. at Sec. 3(5).
\19\Id. at Sec. 5(10) and 5(12).
\20\Amendment to H.R. 3239 offered by Ms. Jackson Lee of Texas.
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Under H.R. 3239, all CBP facilities where individuals are
taken upon apprehension\21\ would have to comply with the
requirements imposed by the bill, including U.S. Border Patrol
Stations, ports of entry (including land, sea, and airports),
checkpoints, forward operating bases, and secondary inspection
areas.\22\ H.R. 3239 is a one-size-fits-all approach that won't
work. These facilities would have to have medical staff on hand
to conduct initial medical screenings regardless of the number
of staff or apprehensions. It is important to note not all CBP
facilities are Border Patrol stations or are in urban areas
with ready access to medical specialties or emergency services.
In fact, many are in remote areas of not just southern border
states, but also states such as Alaska, where placement of such
personnel would be unfeasible and a waste of funding in times
of low border crossing numbers. CBP ``facilities'' as defined
in the bill would include remote checkpoints, very busy
international airports, and small port structures that are big
enough only to fit a few people.
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\21\Amendment in the Nature of a Substitute to H.R. 3239, as
amended by the Lofgren Manager's Amendment, 116th Cong. (Humanitarian
Standards for Individuals in Customs and Border Protection Custody Act)
at Sec. 2(i).
\22\Id. at Sec. 14(3) (``U.S. Customs and Border Protection
Facility'' defined).
---------------------------------------------------------------------------
Very small ports in very remote areas that process only a
few individuals per day would have to comply the same way that
a port in an urban area would have to comply. CBP already has a
difficult time competing with the private sector for their
current staff or contracted medical professionals, and this
bill would expand those requirements even in geographically
remote areas.
It is also important to note CBP may be limited in its
ability to unilaterally make required facilities changes. For
example, the Government Services Administration (``GSA'') would
have to approve changes to certain CBP facilities. When such
facilities are co-located at airports or seaports, the port
owner's approval would also be required to approve such
changes--which would take significant time.
The cost of compliance with all of H.R. 3239's requirements
is unclear but will be immense, requiring updates to hundreds
of CBP facilities, requisition of personnel and equipment, and
training\23\ for all CBP personnel at covered facilities. This
bill would add to the unmet facility needs for CBP (currently
around $3 billion), as CBP would be required to rescope or
build on to hundreds of facilities. Also unclear is how it will
be paid for as the bill contains no authorization for
appropriations. Republicans offered an amendment at markup to
require the DHS Secretary to report on the costs of
implementation to Congress, and to delay implementation beyond
six months\24\ if Congress has not appropriated sufficient
funds to carry out the requirements of the bill. No Democrats
voted for the amendment.
---------------------------------------------------------------------------
\23\Id. at Sec. 7.
\24\Id. at Sec. 9(b).
---------------------------------------------------------------------------
H.R. 3239 would also make the border crisis worse by
changing a longstanding practice that family units consist of
parents/legal guardians and their minor children. Instead, CBP
will now be required to consider any ``adult relative'' of a
minor child to be part of a family unit, and the child must be
detained with the adult relative ``unless such an arrangement
poses safety or security concerns.''\25\ ``Adult relative'' is
undefined. Democrats at the markup claimed it would apply only
in the case of a sibling or grandparent, but that's not what
the bill text actually says. Presumably an ``adult relative''
would include aunts and uncles, or even third cousins twice
removed. The Flores Settlement Agreement already incentivizes
bringing a child to the border to guarantee release into the
U.S. interior. H.R. 3239 will expand beyond parents and legal
guardians the adults who can now utilize this loophole,
allowing distant relatives--or human traffickers posing as
distant relatives--to use children to gain access to the United
States. This requirement will also add to DHS's responsibility
to verify a true family relationship to ensure children are not
being trafficked, even though distant family relationships will
be harder to verify than those of a parent or legal guardian.
Republicans offered an amendment at markup to ensure children
were kept together with their parents or legal guardians, and
prevent widening this loophole. No Democrats voted for the
amendment.
---------------------------------------------------------------------------
\25\Id. at Sec. 5(2).
---------------------------------------------------------------------------
There is a crisis on our southern border caused by an
unprecedented influx of individuals. U.S. Border Patrol
apprehended 94,897 individuals in June, 132,880 in May, 99,290
in April, and 92,835 in March.\26\ Whereas prior influxes were
primarily comprised of single adult males, the overwhelming
majority of current apprehensions consist of family units and
unaccompanied alien children. This influx has strained current
infrastructure and overwhelmed the men and women of law
enforcement who must respond to this crisis. Yet Democrats at
the markup claimed the overcrowded conditions at CBP facilities
are the result of the administration's incompetence or
deliberate failure to plan for ``seasonal'' migration flows,
and argued the requirements imposed by H.R. 3239 are necessary
to prevent the U.S. Government from committing ``torture'' of
children in custody. There is nothing ``seasonal'' about the
current unprecedented influx of migrants overwhelming the
system and straining current infrastructure, and the
``torture'' claim is profoundly irresponsible, disrespectful,
and untrue. As Democrats continue to deny the existence of a
border crisis and accuse the Trump Administration of committing
torture, it is unsurprising that H.R. 3239 is aimed at
ameliorating the symptoms of the crisis instead of the root
causes.
---------------------------------------------------------------------------
\26\Southwest Border Migration FY 2019, U.S. Customs and Border
Protection, U.S. Border Patrol Southwest Border Apprehensions FY 2019.
Available at https://www.cbp.gov/newsroom/stats/sw-border-migration.
---------------------------------------------------------------------------
Given that Democrats are content to blame the Trump
Administration for a problem House Democrats refuse to fix, it
is unsurprising H.R. 3239 does nothing to address the influx of
migrants. H.R. 3239 does not address deficiencies in current
U.S. law that act as a pull factor for families and
unaccompanied children. It does not reform the asylum system to
ensure legitimate claims for protection are quickly
adjudicated, while frivolous claims are quickly denied. It does
not solve the problems of economic insecurity, corruption, and
criminal activity in migrants' home countries that act as push
factors. Instead, it will simply impose unreasonable
requirements on CBP, turning their facilities into free
hospitals for illegal aliens, while limiting their ability to
respond to future influxes--which the bill ensures will
undoubtedly occur.
I urge my colleagues to reject this bill.
Sincerely,
Doug Collins,
Ranking Member.
[all]