118th CONGRESS
1st Session
S. 1600
IN THE SENATE OF THE UNITED STATES
May 15, 2023
Mr. Durbin (for himself, Mr. Peters, Mr. Brown, Mr. Heinrich, Mr. Luján, Mr. Padilla, Mr. Carper, Ms. Cortez Masto, Mr. King, Ms. Klobuchar, Ms. Rosen, Ms. Baldwin, and Mr. Bennet) introduced the following bill; which was read twice and referred to the Committee on Appropriations
A BILL
Making further supplemental appropriations for the fiscal year ending September 30, 2023, for border management activities, and for other purposes.
Short title
This Act may be cited as the Border Management, Security, and Assistance Act of 2023
.
Table of contents
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. References.
Division A—Border Management Supplemental Appropriations Act, 2023
Division B—Border Procedures and Improvements Act
References
Except as expressly provided otherwise, any reference to this Act
contained in any division of this Act shall be treated as referring only to the provisions of that division.
BORDER MANAGEMENT SUPPLEMENTAL APPROPRIATIONS ACT, 2023
The following sums are appropriated, out of any money in the Treasury not otherwise appropriated, for the fiscal year ending September 30, 2023, and for other purposes, namely:
DEPARTMENT OF JUSTICE
Executive office for immigration review
For an additional amount for Executive Office for Immigration Review
, $95,000,000, to remain available until September 30, 2024: Provided, That of the amounts made available under this heading, $60,000,000 shall be for new Immigration Judge Teams, including travel, salaries, rental space, and support staff; $10,000,000 shall be for Information Technology improvements and modernization and other efficiencies, including digitizing records and providing remote capabilities for proceedings; $22,000,000 shall be for covering expenses related to supporting weekend adjudications; and $3,000,000 shall be for services and activities provided by the Legal Orientation Program.
Legal activities
salaries and expenses, general legal activities
For an additional amount for Salaries and Expenses, General Legal Activities
, $21,873,000, to remain available until expended: Provided, That of the amounts made available under this heading, $7,373,000 shall be to support the Criminal Division’s Joint Task Force Alpha; $1,300,000 shall be for the Civil Division’s Office of Immigration Litigation, District Courts section, to be used for immediate litigation related to Southwest border enforcement; and $13,200,000 shall be for the Civil Division’s Office of Immigration Litigation, Appellate section, to be used for personnel and additional litigation needs related to Southwest border enforcement.
salaries and expenses, united states attorneys
For an additional amount for Salaries and Expenses, United States Attorneys
, $47,000,000, to remain available until September 30, 2025, for necessary expenses for increased law enforcement activities related to Southwest border enforcement: Provided, That no funds shall be used to prosecute an alien pursuant to section 275 or 276 of the Immigration and Nationality Act (8 U.S.C. 1325 or 8 U.S.C. 1326), if such alien has a pending claim for protection, has received a positive adjudication of such claim, or is subject to an administrative or judicial appeal or process.
United states marshals service
salaries and expenses
For an additional amount for Salaries and Expenses
, $50,100,000, to remain available until September 30, 2024, for necessary expenses for increased law enforcement activities related to Southwest border enforcement.
federal prisoner detention
For an additional amount for Federal Prisoner Detention
, $150,000,000, to remain available until expended.
Federal bureau of investigation
salaries and expenses
For an additional amount for Salaries and Expenses
, $160,000,000: Provided, That of the amounts made available under this heading, $2,550,000, to remain available until September 30, 2024, shall be to acquire additional DNA kits related to Southwest border enforcement and $157,450,000, to remain available until September 30, 2025, shall be for analysis of DNA samples received from the Department of Homeland Security related to Southwest border enforcement.
Drug enforcement administration
salaries and expenses
For an additional amount for Salaries and Expenses
, $68,400,000, to remain available until September 30, 2025, for necessary expenses for increased law enforcement activities related to Southwest border enforcement.
State and local law enforcement activities
Office of justice programs
state and local law enforcement assistance
For an additional amount for State and Local Law Enforcement Assistance
, $13,000,000, to remain available until September 30, 2024: Provided, That of the amounts made available under this heading, $3,000,000 shall be for small, rural, and Tribal law enforcement agencies in jurisdictions along or near the Southwest border for grants authorized under the Missing Persons and Unidentified Remains Act of 2019 (Public Law 116–277) and $10,000,000 shall be for a rural violent crime initiative to support the investigation and prosecution of violent crime for State, local, and Tribal governments for jurisdictions located within 100 miles of the Southwest border.
DEPARTMENT OF DEFENSE
MILITARY PERSONNEL
Military personnel, army
For an additional amount for Military Personnel, Army
, $135,000,000 for necessary expenses related to Southwest border activities.
OPERATION AND MAINTENANCE
Operation and maintenance, army
For an additional amount for Operation and Maintenance, Army
, $116,000,000 for necessary expenses related to Southwest border activities.
SECURITY, ENFORCEMENT, AND INVESTIGATIONS
U.S. Customs and border protection
operations and support
(including transfer of funds)
For an additional amount for Operations and Support
for necessary expenses to respond to the rise in noncitizen arrivals at the southwest border and related activities, $2,888,968,000, to remain available until September 30, 2024: Provided, That of the amounts made available under this heading, $1,950,000,000 shall be transferred to Federal Emergency Management Agency—Federal Assistance
for the Shelter and Services Program to support sheltering and related activities provided by non-Federal entities, including construction and facility improvements: Provided further, That of the amounts made available under this heading, $603,520,000 shall be for establishing and operating temporary processing facilities, including auxiliary facilities to increase processing capacity at ports of entry along the southwest border while supporting trade facilitation and travel; $67,655,000 shall be for temporary duty, overtime costs, and volunteer force; $57,025,000 shall be for transportation; $56,000,000 shall be for mission support data systems and analysis; $53,150,000 shall be for contract support for intake processing and data entry; $51,000,000 shall be for additional Customs and Border Protection Officers; $28,618,000 shall be for caregivers and medical care; $11,000,000 shall be for employee wellness; and $11,000,000 shall be for employee retention.
procurement, construction, and improvements
For an additional amount for Procurement, Construction, and Improvements
for improving security at and between ports of entry along the southwest border, $1,130,000,000, to remain available until September 30, 2025: Provided, That of the amounts made available under this heading, $700,000,000 shall be for additional non-intrusive inspection equipment to increase scanning of vehicles and $430,000,000 shall be for the acquisition and deployment of innovative border security technology, including for surveillance, such as mobile and fixed towers, unmanned aerial technology, subterranean detection capabilities, and other technologies to assist with search and rescue detection.
U.S. Immigration and customs enforcement
operations and support
For an additional amount for Operations and Support
for necessary expenses to respond to the rise in noncitizen arrivals at the southwest border and related activities, $960,000,000, to remain available until September 30, 2024: Provided, That of the amounts made available under this heading, $553,420,000 shall be for transportation and removal; $127,000,000 shall be for alternatives to detention; $13,000,000 shall be for additional technology and capacity to conduct immigration proceedings while in custody and access counsel; $36,000,000 shall be for Transportation Processing Coordinator positions; $52,300,000 shall be for temporary duty, overtime, other on-board personnel costs including reimbursements, and employee wellness; $117,000,000 shall be to reimburse for noncitizen medical bills accrued by third parties within seven days of release from custody, including State, local, and emergency and first response; and $61,280,000 shall be for Homeland Security Investigations trafficking investigations and investigations related to Operation Blue Lotus.
U.S. Citizenship and immigration services
operations and support
For an additional amount for Operations and Support
for necessary expenses to respond to the rise in noncitizen arrivals at the southwest border and related activities, $409,000,000, to remain available until September 30, 2024: Provided, That of the amounts made available under this heading, $210,000,000 shall be for the efficient processing of asylum claims and related protection screenings; $100,000,000 shall be for backlogs in the asylum system; and $99,000,000 shall be for work authorization adjudications associated with processes to adjudicate protection claims in a safe and orderly way.
GENERAL PROVISIONS—THIS TITLE
Not later than 45 days after the date of enactment of this Act, the Under Secretary for Management of the Department of Homeland Security shall provide an expenditure plan for the use of the funds made available in this title to the Committees on Appropriations of the Senate and the House of Representatives.
Such plan shall be updated to reflect changes and expenditures and submitted to the Committees on Appropriations of the Senate and the House of Representatives every 60 days until all funds are expended or expired.
Not later than 180 days after the date of enactment of this Act, the Under Secretary for Management of the Department of Homeland Security, in coordination with the Federal Emergency Management Agency and U.S. Customs and Border Protection, shall provide a report to Congress on the Shelter and Services Program funds made available in this title.
Such plan shall include:
award obligations;
a description of the outreach to local communities and non-governmental organizations receiving newly arrived noncitizens;
the program criteria and requirements suggested or adapted in response to such outreach to ensure funding is accessible and meeting the needs of local communities;
a description of the program goals, policies, and program structure;
the award allocation methodology used by the Program that depends to the greatest extent possible on available border data; and
outcome performance measures and results related to achieving program goals.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for children and families
refugee and entrant assistance
For an additional amount for Refugee and Entrant Assistance
, $1,000,000,000, to remain available until September 30, 2024, for carrying out section 462 of the Homeland Security Act of 2002 and section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, and for refugee and entrant assistance activities authorized by section 414 of the Immigration and Nationality Act and section 501 of the Refugee Education Assistance Act of 1980, including for hiring additional Federal Field Specialists, increasing and improving case management and case coordination services, and increasing post-release services, legal services, and child advocate services to ensure the physical and mental well-being of children in and after release from the Office of Refugee Resettlement’s care.
BILATERAL ECONOMIC ASSISTANCE
Funds appropriated to the president
international disaster assistance
For an additional amount for International Disaster Assistance
, $100,000,000, to remain available until expended, to respond to humanitarian needs in countries in the Western Hemisphere, including the provision of emergency food and shelter.
economic support fund
For an additional amount for Economic Support Fund
, $150,000,000, to remain available until September 30, 2024, for assistance for countries in the Western Hemisphere to address the root causes of migration: Provided, That funds appropriated under this heading in this Act may be made available as contributions.
Department of state
migration and refugee assistance
For an additional amount for Migration and Refugee Assistance
, $500,000,000, to remain available until expended, to address humanitarian needs in, and to assist migrants from, countries in the Western Hemisphere.
GENERAL PROVISIONS—THIS ACT
Each amount appropriated or made available by this Act is in addition to amounts otherwise appropriated for the fiscal year involved.
No part of any appropriation contained in this Act shall remain available for obligation beyond the current fiscal year unless expressly so provided herein.
Unless otherwise provided for by this Act, the 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 2023.
Each amount provided by this division is designated by the Congress as being for an emergency requirement pursuant to section 4001(a)(1) of S. Con. Res. 14 (117th Congress), the concurrent resolution on the budget for fiscal year 2022, and to legislation establishing fiscal year 2024 budget enforcement in the House of Representatives.
This division may be cited as the Border Management Supplemental Appropriations Act, 2023
.
Border Procedures and Improvements Act
Consequence delivery
Enhanced penalties for organized smuggling schemes
In general
Section 274(a)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1324(a)(1)(B)) is amended—
by redesignating clauses (iii) and (iv) as clauses (iv) and (v), respectively;
by inserting after clause (ii) the following:
in the case of a violation of subparagraph (A)(i) during and in relation to which the person, while acting for profit or other financial gain, knowingly directs or participates in an effort or scheme to assist or cause 10 or more persons (other than a parent, spouse, or child of the offender) to enter or to attempt to enter the United States at the same time at a place other than a designated port of entry or place other than designated by the Secretary, be fined under title 18, United States Code, imprisoned not more than 15 years, or both;
; and
in clause (iv), as redesignated, by inserting commits or attempts to commit sexual assault of,
after section 1365 of title 18, United States Code) to,
.
Bulk cash smuggling
Section 5332(b)(1) of title 31, United States Code, is amended—
in the paragraph heading, by striking Term of imprisonment
and inserting In general
; and
by inserting , fined under title 18, or both
after 5 years
.
Enhanced penalties for illegal spotting and surveillance
Immigration and Nationality Act
The Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after section 274D the following:
Hindering immigration, border, and customs controls
Illicit spotting
In general
It shall be unlawful to knowingly surveil, track, monitor, or transmit the location, movement, or activities of any officer or employee of a Federal, State, or tribal law enforcement agency—
with the intent to gain financially; and
in furtherance of any violation of the immigration laws, the customs and trade laws of the United States (as defined in section 2 of the Trade Facilitation and Trade Enforcement Act of 2015 (Public Law 114–125)), any other Federal law relating to transporting controlled substances, agriculture, or monetary instruments into the United States, or any Federal law relating to border controls measures of the United States.
Penalty
Any person who violates paragraph (1) shall be fined under title 18, United States Code, imprisoned for not more than 5 years, or both.
Destruction of United States border controls
In general
It shall be unlawful to knowingly and without lawful authorization—
destroy or significantly damage any fence, barrier, sensor, camera, or other physical or electronic device deployed by the Federal Government to control an international border of, or a port of entry to, the United States; or
otherwise seek to construct, excavate, or make any structure intended to defeat, circumvent or evade such a fence, barrier, sensor camera, or other physical or electronic device deployed by the Federal Government to control an international border of, or a port of entry to, the United States.
Penalty
Any person who violates paragraph (1) shall be fined under title 18, United States Code, imprisoned for not more than 5 years, or both.
.
Clerical amendment
The table of contents of such Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 274D the following:
Sec. 274E. Hindering immigration, border, and customs controls.
.
Streamlining processing, access to lawful pathways, and removals
Electronic notice To appear and immigration court notice
In general
Section 239(a) of the Immigration and Nationality Act (8 U.S.C. 1229) is amended—
in paragraph (1)—
by inserting or by any other means that the alien consented to in writing, including by email or other electronic means,
after by mail,
;
by amending subparagraph (F) to read as follows:
The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address, telephone number (if any), and electronic means (if any) by which the alien may be contacted respecting proceedings under section 1229a of this title.
The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien's contact information described in clause (i).
The consequences under section 1229a(b)(5) of this title of failure to provide contact information pursuant to this subparagraph.
; and
by amending subsection (c) to read as follows:
Service
By mail
Service by mail under this section shall be sufficient if there is proof of attempted delivery of the notice to appear to the last address provided by the alien in accordance with subsection (a)(1)(F).
By electronic means
Service by electronic means under this section shall be sufficient if there is proof that the notice to appear was sent electronically through a system that is accessible to the alien.
.
Employment authorization for aliens seeking a durable solution
Section 208(d)(2) of the Immigration and Nationality Act (8 U.S.C. 1158(d)(2)) is amended to read as follows:
Employment authorization
Eligibility
Notwithstanding the Immigration and Nationality Act (8 U.S.C. 1101, et seq.), the Secretary of Homeland Security shall authorize employment for an alien who is not in the physical custody of the Department of Homeland Security after the procedures required under paragraph (5)(A)(i) have been completed, and the alien has—
a non-frivolous, properly filed application for asylum, or other immigration benefit request for humanitarian relief; or
been processed for release by the Department of Homeland Security pending further processing or proceedings.
Exceptions
Paragraph (2)(A) shall not apply to an alien who—
after release, comes into the physical custody of any Federal, State, or local entity for purposes of criminal or civil violations;
fails to appear for any proceedings described in any section this Act; and
fails to comply with terms and conditions of release, as determined by the Secretary.
Terms
At no time shall employment authorization under this paragraph shall be issued later than 30 days of release from custody or after a properly filed application occurs, whichever is sooner, and shall be—
for a period of 2 years;
renewable for additional 2-year periods while the applicant’s asylum claim is being adjudicated, pending, or administratively closed, including administrative or judicial review; and
any other terms or conditions as determined by the Secretary.
Clarifications
Paragraph (2)(A)(ii) shall apply to aliens irrespective of whether any form of removal proceedings have commenced or whether the alien has a pending request for immigration benefits.
.
Streamlining voluntary departure
Section 240B(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1229c(a)(1)) is amended by striking at the alien’s own expense
.
Direct access pathways for refugees in the Western Hemisphere
The Secretary of State, in consultation with the Secretary of Homeland Security, shall—
monitor Latin America and the Caribbean for regional instability and migration resulting from large scale persecution on account of race, religion, nationality, membership in a particular social group, or political opinion; and
designate members of the group experiencing such persecution as Priority 2 refugees of special humanitarian concern.
Staffing for border management
Staffing allocation models
Department of homeland security
The Secretary of the Department of Homeland Security shall develop and implement staffing allocation models for U.S. Border Patrol and Air and Marine Operations of U.S. Customs and Border Protection and for U.S. Citizenship and Immigration Services, by not later than six months after the date of enactment of this Act.
Executive office of immigration review
The Attorney General shall develop and implement staffing allocation models for the Executive Office of Immigration Review, by not later than six months after the date of enactment of this Act.
Requirements
Each staffing model shall—
take into account variations in operating environments, technology, and the required operational support levels to carry out their respective duties;
include a plan for periodically updating and improving the model, including incorporating operational, technological, and personnel changes; and
receive independent verification and validation by an entity that is technically, managerially, and financially independent from the office or Department.
Reporting
The Secretary and Attorney General shall report to the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, and the Committee on Appropriations of the Senate and the Committee on Homeland Security, the Committee on the Judiciary, and the Committee on Appropriations of the House of Representatives detailing the finalized models, including a description of—
the data sources and methodology used to generate the models;
actions taken to independently verify the model; and
the plan for updating and maturing the model.
Shelter and Services Program GAO report
Not later than 1 year than the date of enactment of this Act, and every two years thereafter, the Comptroller General of the United States shall submit to the Committees on Homeland Security and Governmental Affairs, the Committee on the Judiciary, and the Committee on Appropriations of the Senate and the Committee on Homeland Security, the Committee on the Judiciary, and the Committee on Appropriations of the House of Representatives an assessment of the grant criteria for Shelter and Services Program funds, the distribution of those funds, and the impact of program policies and practices on the ability of State and local governments and nongovernmental organizations to issue such funds.