[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3401 Enrolled Bill (ENR)]
H.R.3401
One Hundred Sixteenth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Thursday,
the third day of January, two thousand and nineteen
An Act
Making emergency supplemental appropriations for the fiscal year ending
September 30, 2019, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,  That the following
sums are appropriated, out of any money in the Treasury not otherwise
appropriated, for the fiscal year ending September 30, 2019, and for
other purposes, namely:
TITLE I
DEPARTMENT OF JUSTICE
General Administration
executive office for immigration review
For an additional amount for ``Executive Office for Immigration
Review'', $65,000,000, of which $45,000,000 shall be for the hiring of
30 additional Immigration Judge Teams, of which $10,000,000 shall be
used for the purchase or lease of immigration judge courtroom space and
equipment, and of which $10,000,000 shall be used only for services and
activities provided by the Legal Orientation Program:  Provided, That
Immigration Judge Teams shall include appropriate attorneys, law
clerks, paralegals, court administrators, and other support staff:
Provided further, That such amount is designated by the Congress as
being for an emergency requirement pursuant to section 251(b)(2)(A)(i)
of the Balanced Budget and Emergency Deficit Control Act of 1985.
United States Marshals Service
federal prisoner detention
For an additional amount for ``Federal Prisoner Detention'', for
necessary expenses related to United States prisoners in the custody of
the United States Marshals Service, to be used only as authorized by
section 4013 of title 18, United States Code, $155,000,000, to remain
available until expended:  Provided, That such amount is designated by
the Congress as being for an emergency requirement pursuant to section
251(b)(2)(A)(i) of the Balanced Budget and Emergency Deficit Control
Act of 1985.
TITLE II
DEPARTMENT OF DEFENSE
Operation and Maintenance
operation and maintenance, army
For an additional amount for ``Operation and Maintenance, Army'',
$92,800,000, for necessary expenses to respond to the significant rise
in unaccompanied minors and family unit aliens at the southwest border
and related activities:  Provided, That such amount is designated by
the Congress as being for an emergency requirement pursuant to section
251(b)(2)(A)(i) of the Balanced Budget and Emergency Deficit Control
Act of 1985.
operation and maintenance, marine corps
For an additional amount for ``Operation and Maintenance, Marine
Corps'', $13,025,000, for necessary expenses to respond to the
significant rise in unaccompanied minors and family unit aliens at the
southwest border and related activities:  Provided, That such amount is
designated by the Congress as being for an emergency requirement
pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and
Emergency Deficit Control Act of 1985.
operation and maintenance, air force
For an additional amount for ``Operation and Maintenance, Air
Force'', $18,000,000, for necessary expenses to respond to the
significant rise in unaccompanied minors and family unit aliens at the
southwest border and related activities:  Provided, That such amount is
designated by the Congress as being for an emergency requirement
pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and
Emergency Deficit Control Act of 1985.
operation and maintenance, army national guard
For an additional amount for ``Operation and Maintenance, Army
National Guard'', $21,024,000, for necessary expenses to respond to the
significant rise in unaccompanied minors and family unit aliens at the
southwest border and related activities:  Provided, That such amount is
designated by the Congress as being for an emergency requirement
pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and
Emergency Deficit Control Act of 1985.
TITLE III
DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
operations and support
For an additional amount for ``Operations and Support'' for
necessary expenses to respond to the significant rise in aliens at the
southwest border and related activities, $1,015,431,000; of which
$819,950,000 shall be available until September 30, 2020:  Provided,
That of the amounts provided under this heading, $708,000,000 is for
establishing and operating migrant care and processing facilities,
$111,950,000 is for consumables and medical care, $35,000,000 is for
transportation, $110,481,000 is for temporary duty and overtime costs
including reimbursements, and $50,000,000 is for mission support data
systems and analysis:  Provided further, That such amount is designated
by the Congress as being for an emergency requirement pursuant to
section 251(b)(2)(A)(i) of the Balanced Budget and Emergency Deficit
Control Act of 1985.
procurement, construction, and improvements
For an additional amount for ``Procurement, Construction, and
Improvements'' for migrant care and processing facilities, $85,000,000,
to remain available until September 30, 2023:  Provided, That such
amount is designated by the Congress as being for an emergency
requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget
and Emergency Deficit Control Act of 1985.
U.S. Immigration and Customs Enforcement
operations and support
For an additional amount for ``Operations and Support'' for
necessary expenses to respond to the significant rise in aliens at the
southwest border and related activities, $208,945,000:  Provided, That
of the amounts provided under this heading, $35,943,000 is for
transportation of unaccompanied alien children, $11,981,000 is for
detainee transportation for medical needs, court proceedings, or
relocation from U.S. Customs and Border Protection custody, $20,000,000
is for alternatives to detention, $45,000,000 is for detainee medical
care, $69,735,000 is for temporary duty, overtime, and other on-board
personnel costs including reimbursements, $5,000,000 is for the Office
of Professional Responsibility for background investigations and
facility inspections, and $21,286,000 is for Homeland Security
Investigations human trafficking investigations:  Provided further,
That such amount is designated by the Congress as being for an
emergency requirement pursuant to section 251(b)(2)(A)(i) of the
Balanced Budget and Emergency Deficit Control Act of 1985.
Federal Emergency Management Agency
federal assistance
For an additional amount for ``Federal Assistance'', $30,000,000,
to remain available until September 30, 2020, for the emergency food
and shelter program under title III of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11331 et seq.) for the purposes of providing
assistance to aliens released from the custody of the Department of
Homeland Security:  Provided, That notwithstanding sections 315 and
316(b) of such Act, funds made available under this section shall be
disbursed by the Emergency Food and Shelter Program National Board not
later than 30 days after the date on which such funds become available:
Provided further, That the Emergency Food and Shelter Program National
Board shall distribute such funds only to jurisdictions or local
recipient organizations serving communities that have experienced a
significant influx of such aliens:  Provided further, That such funds
may be used to reimburse such jurisdictions or local recipient
organizations for costs incurred in providing services to such aliens
on or after January 1, 2019:  Provided further, That such amount is
designated by the Congress as being for an emergency requirement
pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and
Emergency Deficit Control Act of 1985.
GENERAL PROVISIONS--THIS TITLE

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available under each heading in this title shall only be used for the
purposes specifically described under that heading.

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(Public Law 116-6) is amended by adding after section 540 the
following:
``Sec. 541. (a) Section 831 of the Homeland Security Act of 2002 (6
U.S.C. 391) shall be applied--
``(1) In subsection (a), by substituting `September 30, 2019,'
for `September 30, 2017,'; and
``(2) In subsection (c)(1), by substituting `September 30,
2019,' for `September 30, 2017'.
``(b) The Secretary of Homeland Security, under the authority of
section 831 of the Homeland Security Act of 2002 (6 U.S.C. 391(a)), may
carry out prototype projects under section 2371b of title 10, United
States Code, and the Secretary shall perform the functions of the
Secretary of Defense as prescribed.
``(c) The Secretary of Homeland Security under section 831 of the
Homeland Security Act of 2002 (6 U.S.C. 391(d)) may use the definition
of nontraditional government contractor as defined in section 2371b(e)
of title 10, United States Code.''.

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Customs and Border Protection--Operations and Support'' for facilities
shall be available until U.S. Customs and Border Protection establishes
policies (via directive, procedures, guidance, and/or memorandum) and
training programs to ensure that such facilities adhere to the National
Standards on Transport, Escort, Detention, and Search, published in
October of 2015:  Provided, That not later than 90 days after the date
of enactment of this Act, U.S. Customs and Border Protection shall
provide a detailed report to the Committees on Appropriations of the
Senate and the House of Representatives, the Committee on the Judiciary
of the Senate, and the House Judiciary Committee regarding the
establishment and implementation of such policies and training
programs.

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this Act, the Secretary of Homeland Security shall provide a report on
the number of U.S. Customs and Border Protection Officers assigned to
northern border land ports of entry and temporarily assigned to the
ongoing humanitarian crisis:  Provided, That the report shall outline
what resources and conditions would allow a return to northern border
staffing levels that are no less than the number committed in the June
12, 2018 Department of Homeland Security Northern Border Strategy:
Provided further, That the report shall include the number of officers
temporarily assigned to the southwest border in response to the ongoing
humanitarian crisis, the number of days the officers will be away from
their northern border assignment, the northern border ports from which
officers are being assigned to the southwest border, and efforts being
made to limit the impact on operations at each northern border land
port of entry where officers have been temporarily assigned to the
southwest border.

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available by this Act or division A of the Consolidated Appropriations
Act, 2019 (Public Law 116-6) for the Department of Homeland Security
may be used to relocate to the National Targeting Center the vetting of
Trusted Traveler Program applications and operations currently carried
out at existing locations unless specifically authorized by a statute
enacted after the date of enactment of this Act.

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of the Department of Homeland Security may be deployed to support
activities of the Department of Homeland Security related to the
significant rise in aliens at the southwest border and related
activities, and for the enforcement of immigration and customs laws,
detention and removals of aliens crossing the border unlawfully, and
investigations without reimbursement as jointly agreed by the detailing
components.
TITLE IV
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
refugee and entrant assistance
For an additional amount for ``Refugee and Entrant Assistance'',
$2,881,552,000, to be merged with and available for the same period as
funds appropriated in Public Law 115-245 ``for carrying out such
sections 414, 501, 462, and 235'', which shall be available for any
purpose funded under such heading in such law:  Provided, That if any
part of the reprogramming described in the notification submitted by
the Secretary of Health and Human Services (the ``Secretary'') to the
Committees on Appropriations of the House of Representatives and the
Senate on May 16, 2019 has been executed, such amounts provided by this
Act as are necessary shall be used to reverse such reprogramming:
Provided further, That amounts allocated by the Secretary for costs of
leases of property that include facilities to be used as hard-sided
dormitories for which the Secretary intends to seek State licensure for
the care of unaccompanied alien children, and that are executed under
authorities transferred to the Director of the Office of Refugee
Resettlement (ORR) under section 462 of the Homeland Security Act of
2002, shall remain available until expended:  Provided further, That
ORR shall notify the Committees on Appropriations of the House of
Representatives and the Senate within 72 hours of conducting a formal
assessment of a facility for possible lease or acquisition and within 7
days of any acquisition or lease of real property:  Provided further,
That not less than $866,000,000 of amounts provided under this heading
shall be used for the provision of care in licensed shelters and for
expanding the supply of shelters for which State licensure will be
sought, of which not less than $27,000,000 shall be available for the
purposes of adding shelter beds in State-licensed facilities in
response to funding opportunity HHS-2017-ACF-ORR-ZU-1132, and of which
not less than $185,000,000 shall be available for expansion grants to
add beds in State-licensed facilities and open new State-licensed
facilities, and for contract costs to acquire, activate, and operate
facilities that will include small- and medium-scale hard-sided
facilities for which the Secretary intends to seek State licensure in
an effort to phase out the need for shelter beds in unlicensed
facilities:  Provided further, That not less than $100,000,000 of
amounts provided under this heading shall be used for post-release
services, child advocates, and legal services:  Provided further, That
not less than $8,000,000 of amounts provided under this heading shall
be used for the purposes of hiring additional Federal Field Specialists
and for increasing case management and case coordination services, with
the goal of more expeditiously placing unaccompanied alien children
with sponsors and reducing the length of stay in ORR custody:  Provided
further, That not less than $1,000,000 of amounts provided under this
heading shall be used for the purposes of hiring project officers and
program monitor staff dedicated to pursuing strategic improvements to
the Unaccompanied Alien Children program and for the development of a
discharge rate improvement plan which shall be submitted to the
Committees on Appropriations of the House of Representatives and the
Senate within 120 days of enactment of this Act:  Provided further,
That of the amounts provided under this heading, $5,000,000 shall be
transferred to ``Office of the Secretary--Office of Inspector General''
and shall remain available until expended for oversight of activities
supported with funds appropriated under this heading:  Provided
further, That such amount is designated by the Congress as being for an
emergency requirement pursuant to section 251(b)(2)(A)(i) of the
Balanced Budget and Emergency Deficit Control Act of 1985.
GENERAL PROVISIONS--THIS TITLE

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``Secretary'') shall prioritize use of community-based residential care
(including long-term and transitional foster care and small group
homes) and shelter care other than large-scale institutional shelter
facilities to house unaccompanied alien children in its custody. The
Secretary shall prioritize State-licensed and hard-sided dormitories.

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grantees and, to the greatest extent practicable, potential sponsors of
unaccompanied alien children are aware of current law regarding the use
of information collected as part of the sponsor suitability
determination process.

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appropriations Act may be used to reverse changes in procedures made by
operational directives issued to providers by the Office of Refugee
Resettlement on December 18, 2018, March 23, 2019, and June 10, 2019
regarding the Memorandum of Agreement on Information Sharing executed
April 13, 2018.
(b) Notwithstanding subsection (a), the Secretary may make changes
to such operational directives upon making a determination that such
changes are necessary to prevent unaccompanied alien children from
being placed in danger, and the Secretary shall provide a written
justification to Congress and the Inspector General of the Department
of Health and Human Services in advance of implementing such changes.
(c) Within 15 days of the Secretary's communication of the
justification, the Inspector General of the Department of Health and
Human Services shall provide an assessment, in writing, to the
Secretary and to Committees on Appropriations of the House of
Representatives and the Senate of whether such changes to operational
directives are necessary to prevent unaccompanied children from being
placed in danger.

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heading ``Department of Health and Human Services--Administration for
Children and Families--Refugee and Entrant Assistance'' may be
obligated to a grantee or contractor to house unaccompanied alien
children (as such term is defined in section 462(g)(2) of the Homeland
Security Act of 2002 (6 U.S.C. 279(g)(2))) in any facility that is not
State-licensed for the care of unaccompanied alien children, except in
the case that the Secretary determines that housing unaccompanied alien
children in such a facility is necessary on a temporary basis due to an
influx of such children or an emergency, provided that--
(1) the terms of the grant or contract for the operations of
any such facility that remains in operation for more than six
consecutive months shall require compliance with--
(A) the same requirements as licensed placements, as listed
in Exhibit 1 of the Flores Settlement Agreement that the
Secretary determines are applicable to non-State licensed
facilities; and
(B) staffing ratios of one (1) on-duty Youth Care Worker
for every eight (8) children or youth during waking hours, one
(1) on-duty Youth Care Worker for every sixteen (16) children
or youth during sleeping hours, and clinician ratios to
children (including mental health providers) as required in
grantee cooperative agreements;
(2) the Secretary may grant a 60-day waiver for a contractor's
or grantee's non-compliance with paragraph (1) if the Secretary
certifies and provides a report to Congress on the contractor's or
grantee's good-faith efforts and progress towards compliance;
(3) not more than four consecutive waivers under paragraph (2)
may be granted to a contractor or grantee with respect to a
specific facility;
(4) ORR shall ensure full adherence to the monitoring
requirements set forth in section 5.5 of its Policies and
Procedures Guide as of May 15, 2019;
(5) for any such unlicensed facility in operation for more than
three consecutive months, ORR shall conduct a minimum of one
comprehensive monitoring visit during the first three months of
operation, with quarterly monitoring visits thereafter; and
(6) not later than 60 days after the date of enactment of this
Act, ORR shall brief the Committees on Appropriations of the House
of Representatives and the Senate outlining the requirements of ORR
for influx facilities including any requirement listed in paragraph
(1)(A) that the Secretary has determined are not applicable to non-
State licensed facilities.

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for formal site assessments of potential influx facilities, the
Secretary shall notify the Committees on Appropriations of the House of
Representatives and the Senate at least 15 days before operationalizing
an unlicensed facility, and shall (1) specify whether the facility is
hard-sided or soft-sided, and (2) provide analysis that indicates that,
in the absence of the influx facility, the likely outcome is that
unaccompanied alien children will remain in the custody of the
Department of Homeland Security for longer than 72 hours or that
unaccompanied alien children will be otherwise placed in danger. Within
60 days of bringing such a facility online, and monthly thereafter, the
Secretary shall provide to the Committees on Appropriations of the
House of Representatives and the Senate a report detailing the total
number of children in care at the facility, the average length of stay
and average length of care of children at the facility, and, for any
child that has been at the facility for more than 60 days, their length
of stay and reason for delay in release.

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unaccompanied alien child is at an unlicensed facility if the child--
(1) is not expected to be placed with a sponsor within 30 days;
(2) is under the age of 13;
(3) does not speak English or Spanish as his or her preferred
language;
(4) has known special needs, behavioral health issues, or
medical issues that would be better served at an alternative
facility;
(5) is a pregnant or parenting teen; or
(6) would have a diminution of legal services as a result of
the transfer to such an unlicensed facility.
(b) ORR shall notify a child's attorney of record in advance of any
transfer, where applicable.

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to prevent a United States Senator or Member of the House of
Representatives from entering, for the purpose of conducting oversight,
any facility in the United States used for the purpose of maintaining
custody of, or otherwise housing, unaccompanied alien children (as
defined in section 462(g)(2) of the Homeland Security Act of 2002 (6
U.S.C. 279(g)(2))), provided that such Senator or Member has
coordinated the oversight visit with the Office of Refugee Resettlement
not less than two business days in advance to ensure that such visit
would not interfere with the operations (including child welfare and
child safety operations) of such facility.

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this Act, and monthly thereafter, the Secretary shall submit to the
Committees on Appropriations of the House of Representatives and the
Senate, and make publicly available online, a report with respect to
children who were separated from their parents or legal guardians by
the Department of Homeland Security (DHS) (regardless of whether or not
such separation was pursuant to an option selected by the children,
parents, or guardians), subsequently classified as unaccompanied alien
children, and transferred to the care and custody of ORR during the
previous month. Each report shall contain the following information:
(1) the number and ages of children so separated subsequent to
apprehension at or between ports of entry, to be reported by sector
where separation occurred; and
(2) the documented cause of separation, as reported by DHS when
each child was referred.

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``Department of Health and Human Services--Administration for Children
and Families--Refugee and Entrant Assistance'' shall be subject to the
authorities and conditions of section 224 of division A of the
Consolidated Appropriations Act, 2019 (Public Law 116-6).

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this Act, the Secretary shall submit to the Committees on
Appropriations of the House of Representatives and the Senate a
detailed spend plan of anticipated uses of funds made available in this
account, including the following: a list of existing grants and
contracts for both permanent and influx facilities, including their
costs, capacity, and timelines; costs for expanding capacity through
the use of community-based residential care placements (including long-
term and transitional foster care and small group homes) through new or
modified grants and contracts; current and planned efforts to expand
small-scale shelters and available foster care placements, including
collaboration with state child welfare providers; influx facilities
being assessed for possible use, costs and services to be provided for
legal services, child advocates, and post release services; program
administration; and the average number of weekly referrals and
discharge rate assumed in the spend plan:  Provided, That such plan
shall be updated to reflect changes and expenditures and submitted to
the Committees on Appropriations of the House of Representatives and
the Senate every 60 days until all funds are expended or expired.
TITLE V
GENERAL PROVISIONS--THIS ACT

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is in addition to amounts otherwise appropriated for the fiscal year
involved.

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remain available for obligation beyond the current fiscal year unless
expressly so provided herein.

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additional amounts appropriated by this Act to appropriations accounts
shall be available under the authorities and conditions applicable to
such appropriations accounts for fiscal year 2019.

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being for an emergency requirement pursuant to section 251(b)(2)(A)(i)
of the Balanced Budget and Emergency Deficit Control Act of 1985 shall
be available (or rescinded or transferred, if applicable) only if the
President subsequently so designates all such amounts and transmits
such designations to the Congress.

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Congress as an emergency requirement pursuant to section
251(b)(2)(A)(i) of the Balanced Budget and Emergency Deficit Control
Act of 1985 and subsequently so designated by the President, and
transferred pursuant to transfer authorities provided by this Act shall
retain such designation.

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of this Act, the Comptroller General of the United States shall submit
a report to the Committees on Appropriations of the House of
Representatives and the Senate on the number of asylum officers and
immigration judges, including temporary immigration judges, and the
corresponding number of support staff necessary--
(1) to fairly and effectively make credible fear determinations
with respect to individuals within family units and unaccompanied
alien children;
(2) to ensure that the credible fear determination and asylum
interview is completed not later than 20 days after the date on
which a family unit is apprehended; and
(3) to fairly and effectively review appeals of credible fear
determinations with respect to individuals within family units and
unaccompanied alien children.
In addition, the report shall determine if there is any physical
infrastructure such as hearing or courtroom space needed to achieve
these goals.
This Act may be cited as the ``Emergency Supplemental
Appropriations for Humanitarian Assistance and Security at the Southern
Border Act, 2019''.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

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Emergency Supplemental Appropriations for Humanitarian Assistance and Security at the Southern Border Act, 2019 — HR. 3401

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