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H.R. 3401: Emergency Supplemental Appropriations for Humanitarian Assistance and Security at the Southern Border Act, 2019

The text of the bill below is as of Jun 21, 2019 (Introduced).


I

116th CONGRESS

1st Session

H. R. 3401

IN THE HOUSE OF REPRESENTATIVES

June 21, 2019

introduced the following bill; which was referred to the Committee on Appropriations, and in addition to the Committee on the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

Making emergency supplemental appropriations for the fiscal year ending September 30, 2019, and for other purposes.

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:

I

DEPARTMENT OF JUSTICE

General Administration

Executive Office for Immigration Review

For an additional amount for Executive Office for Immigration Review, $15,000,000 to be used only for services and activities provided by the Legal Orientation Program: 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.

United States Marshals Service

federal prisoner detention

For an additional amount for Federal Prisoner Detention, $155,000,000 to be used only for the necessary expenses related to United States prisoners in the custody of the United States Marshals Service as authorized by section 4013 of title 18, United States Code: 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.

II

DEPARTMENT OF HOMELAND SECURITY

Security, Enforcement, and Border Protection

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, $1,217,931,000, to remain available until September 30, 2020; of which $702,500,000 is for migrant processing facilities; of which $92,000,000 is for consumables; of which $19,950,000 is for medical assets and high risk support; of which $8,000,000 is for Federal Protective Service support; of which $35,000,000 is for transportation; of which $90,636,000 is for temporary duty and overtime costs; of which $19,845,000 is for reimbursements for temporary duty and overtime costs; and of which $50,000,000 is for mission support data systems and analysis: 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.

procurement, construction, and improvements

For an additional amount for Procurement, Construction, and Improvements for migrant 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, $128,238,000; of which $35,943,000 is for transportation of unaccompanied alien children; of which $11,981,000 is for detainee transportation for medical needs, court proceedings, or relocation to and from U.S. Customs and Border Protection custody; of which $5,114,000 is for reimbursements for overtime and temporary duty costs; of which $20,000,000 is for alternatives to detention; of which $45,000,000 is for detainee medical care; and of which $10,200,000 is for the Office of Professional Responsibility for background investigations and facility inspections: 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.

Federal Emergency Management Agency

Federal Assistance

For an additional amount for Federal Assistance, $60,000,000, 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 becomes 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

201.

Notwithstanding any other provision of law, funds made available under each heading in this title shall only be used for the purposes specifically described under that heading.

202.

Division A of the Consolidated Appropriations Act, 2019 (Public Law 116–6) is amended by adding after section 540 the following:

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.

.

203.
(a)

The Secretary of the Department of Homeland Security shall establish policies and distribute written personnel guidance, as appropriate, not later than 60 days after the date of enactment of this Act on the following:

(1)

Providing private meeting space and video teleconferencing access for individuals returned to Mexico under the Migrant Protection Protocols to consult with legal counsel, including prior to initial immigration court hearings.

(2)

Efforts, in consultation with the Department of State, to address the housing, transportation, and security needs of such individuals.

(3)

Efforts, in consultation with the Department of Justice, to ensure that such individuals are briefed, in their primary spoken language to the greatest extent possible, on their legal rights and obligations prior to being returned to Mexico.

(4)

Efforts, in consultation with the Department of Justice, to prioritize the immigration proceedings of such individuals.

(5)

The establishment of written policies defining categories of vulnerable individuals who should not be so returned.

(b)

For purposes of this section, the term Migrant Protection Protocols means the actions taken by the Secretary to implement the memorandum dated January 25, 2019 entitled Policy Guidance for the Implementation of the Migrant Protection Protocols.

(c)

The amounts provided by this section are 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.

204.

None of the funds provided in this Act under U.S. 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.

205.

No later than 30 days after the date of enactment of 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.

206.

None of the funds appropriated or otherwise made 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.

207.
(a)

Of the additional amount provided under U.S. Customs and Border Protection—Operations and Support, $200,000,000 is for a multi-agency, integrated, migrant processing center pilot program for family units and unaccompanied alien children, including the following:

(1)

Ongoing assessment and treatment efforts for physical or mental health conditions, including development of a support plan and services for each member of a vulnerable population.

(2)

Assessments of child protection and welfare needs.

(3)

Food, shelter, hygiene services and supplies, clothing, and activities appropriate for the non-penal, civil detention of families.

(4)

Personnel with appropriate training on caring for families and vulnerable populations in a civil detention environment.

(5)

Free telephonic communication access, including support for contacting family members.

(6)

Direct access to legal orientation, legal representation, and case management in private areas of the center.

(7)

Credible fear and reasonable fear interviews conducted by U.S. Citizenship and Immigration Services asylum officers in private areas of the center.

(8)

Granting of asylum directly by U.S. Citizenship and Immigration Services for manifestly well-founded or clearly meritorious cases.

(9)

For family units not found removable prior to departure from the center—

(A)

release on own recognizance or placement in alternatives to detention with case management; and

(B)

coordinated transport to a respite shelter or city of final destination.

(10)

For family units found removable prior to departure from the center, safe return planning support by an immigration case manager, including a consular visit to assist with reintegration.

(11)

On-site operational support by non-governmental organizations for the identification and protection of vulnerable populations.

(b)

The Secretary shall notify the Committees on Appropriations of the Senate and the House of Representatives within 24 hours of any—

(1)

unaccompanied child placed in the pilot program whose time in Department of Homeland Security custody exceeds 72 hours; and

(2)

family unit placed in the pilot program whose time in such custody exceed exceeds 9 days.

(c)

Prior to the obligation of the amount identified in subsection (a), but not later than 30 days after the date of enactment of this Act, the Secretary shall submit a plan for the implementation of the pilot program to the Committees on Appropriations of the Senate and the House of Representatives which shall include a definition of vulnerable populations.

III

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

refugee and entrant assistance

(Including Transfer of Funds)

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 division B of Public Law 115–245 and made available through fiscal year 2021 under this heading, and to be made 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 as of the date of the enactment of this Act, such amounts provided by this Act as are necessary shall be used to reverse such reprogramming: Provided further, That of the amounts provided under this heading, the amount 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 lease or acquisition of real property: Provided further, That not less than $866,000,000 of the 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 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 the amounts provided under this heading shall be used for post-release services, child advocates, and legal services: Provided further, That the amount made available for legal services in the preceding proviso shall be made available for the same purposes for which amounts were provided for such services in fiscal year 2017: Provided further, That not less than $8,000,000 of the 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 the date 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 none of the funds made available under this heading may be transferred pursuant to the authority in section 205 of division B of Public Law 115–245: Provided further, That the amount provided under this heading 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

301.

The Secretary of Health and Human Services (the 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 the custody of the Department of Health and Human Services. The Secretary shall prioritize State-licensed, hard-sided dormitories.

302.

Funds made available in this Act under the heading Department of Health and Human Services—Administration for Children and Families—Refugee and Entrant Assistance shall remain available for obligation only if the operational directives issued by the Office of Refugee Resettlement between December 1, 2018, and June 15, 2019, to accelerate the identification and approval of sponsors, remain in effect.

303.

Funds made available in this Act under the heading 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).

304.

None of the funds made available in this Act under the 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 of Health and Human Services (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, regardless of the status of the underlying settlement agreement;

(B)

staffing ratios of 1 on-duty Youth Care Worker for every 8 children or youth during waking hours, 1 on-duty Youth Care Worker for every 16 children or youth during sleeping hours, and clinician ratios to children (including mental health providers) as required in grantee cooperative agreements; and

(C)

access provided to legal services;

(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 three 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 June 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.

305.

In addition to the existing Congressional notification requirements 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.

306.
(a)

The Secretary shall ensure that, when feasible, no unaccompanied alien child is at an unlicensed facility if the child is not expected to be placed with a sponsor within 30 days.

(b)

The Secretary shall ensure that no unaccompanied alien child is at an unlicensed facility if the child—

(1)

is under the age of 13;

(2)

does not speak English or Spanish as his or her preferred language;

(3)

has known special needs, behavioral health issues, or medical issues that would be better served at an alternative facility;

(4)

is a pregnant or parenting teen; or

(5)

would have a diminution of legal services as a result of the transfer to such an unlicensed facility.

(c)

ORR shall notify a child’s attorney of record in advance of any transfer, where applicable.

307.

None of the funds made available in this Act may be used 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 nothing in this section shall be construed to require such a Senator or Member to provide prior notice of the intent to enter such a facility for such purpose.

308.

Not later than 14 days after the date of enactment of this Act, and monthly thereafter, the Secretary of Health and Human Services 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.

(2)

The documented cause of separation, as reported by DHS when each child was referred.

309.

Not later than 30 days after the date of enactment of this Act, the Secretary of Health and Human Services 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 expire.

310.

The Office of Refugee Resettlement shall ensure that its grantees are aware of current law regarding the use of information collected as part of the sponsor vetting process.

311.

The Secretary is directed to report the death of any unaccompanied alien child in Office of Refugee Resettlement (ORR) custody or in the custody of any grantee on behalf of ORR within 24 hours, including relevant details regarding the circumstances of the fatality, to the Committees on Appropriations of the House of Representatives and the Senate.

312.

Notwithstanding any other provision of law, funds made available in this Act under the heading Department of Health and Human Services—Administration for Children and Families—Refugee and Entrant Assistance shall only be used for the purposes specifically described under that heading.

IV

GENERAL PROVISIONS—This Act

401.
(a)

Fiscal year 2017

Funds made available by the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2017 (division J of Public Law 115–31) that were initially obligated for assistance for El Salvador, Guatemala, and Honduras may not be reprogrammed after the date of enactment of this Act for assistance for a country other than for which such funds were initially obligated: Provided, That if the Secretary of State suspends assistance for the central government of El Salvador, Guatemala, or Honduras pursuant to section 7045(a)(5) of such Act, not less than 75 percent of the funds for such central government shall be reprogrammed for assistance through nongovernmental organizations or local government entities in such country: Provided further, That the balance of such funds shall only be reprogrammed for assistance for countries in the Western Hemisphere.

(b)

Fiscal year 2018

Section 7045(a) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2018 (division K of Public Law 115–141) is amended by striking paragraph (4)(D) and inserting in lieu of paragraph (1) the following paragraph:

(1)

Funding

Subject to the requirements of this subsection, of the funds appropriated under titles III and IV of this Act, not less than $615,000,000 shall be made available for assistance for countries in Central America, of which not less than $452,000,000 shall be for assistance for El Salvador, Guatemala, and Honduras to implement the United States Strategy for Engagement in Central America (the Strategy): Provided, That such amounts shall be made available notwithstanding any provision of law permitting deviations below such amounts: Provided further, That if the Secretary of State cannot make the certifications under paragraph (3), or makes a determination under paragraph (4)(A) or (4)(C) that the central government of El Salvador, Guatemala, or Honduras is not meeting the requirements of this subsection, not less than 75 percent of the funds for such central government shall be reprogrammed for assistance through nongovernmental organizations or local government entities in such country: Provided further, That the balance of such funds shall only be reprogrammed for assistance for countries in the Western Hemisphere.

.

(c)

Fiscal year 2019

Section 7045(a) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2019 (division F of Public Law 116–6) is amended by striking paragraph (2)(C) and inserting at the end, between paragraph (4)(B) and subsection (b), the following new paragraph:

(5)

Funding

Subject to the requirements of this subsection, of the funds appropriated under titles III and IV of this Act, not less than $540,850,000 shall be made available for assistance for countries in Central America, of which not less than $452,000,000 shall be made available for assistance for El Salvador, Guatemala, and Honduras to implement the United States Strategy for Engagement in Central America: Provided, That such amounts shall be made available notwithstanding any provision of law permitting deviations below such amounts: Provided further, That if the Secretary of State cannot make the certification under paragraph (1), or makes a determination under paragraph (2) that the central government of El Salvador, Guatemala, or Honduras is not meeting the requirements of this subsection, not less than 75 percent of the funds for such central government shall be reprogrammed for assistance through nongovernmental organizations or local government entities in such country: Provided further, That the balance of such funds shall only be reprogrammed for assistance for countries in the Western Hemisphere.

.

402.

Each amount appropriated or made available by this Act is in addition to amounts otherwise appropriated for the fiscal year involved.

403.

No part of any appropriation contained in this Act shall remain available for obligation beyond the current fiscal year unless expressly so provided herein.

404.

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 2019.

405.

Each amount designated in this Act 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 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.

406.

Any amount appropriated by this Act, 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 and subsequently so designated by the President, and transferred pursuant to transfer authorities provided by this Act shall retain such designation.

This Act may be cited as the Emergency Supplemental Appropriations for Humanitarian Assistance and Security at the Southern Border Act, 2019.