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 S 1940 IS

106th CONGRESS

1st Session

S. 1940

To amend the Immigration and Nationality Act to reaffirm the United States historic commitment to protecting refugees who are fleeing persecution or torture.

IN THE SENATE OF THE UNITED STATES

November 17, 1999

Mr. LEAHY (for himself, Mr. BROWNBACK, Mr. FEINGOLD, Mr. KENNEDY, Mr. KERRY, Mr. JEFFORDS, and Mr. LAUTENBERG) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


A BILL

To amend the Immigration and Nationality Act to reaffirm the United States historic commitment to protecting refugees who are fleeing persecution or torture.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES IN ACT.

(a) SHORT TITLE- This Act may be cited as the `Refugee Protection Act of 1999'.

(b) REFERENCES IN ACT- Except as specifically provided in this Act, whenever in this Act an amendment or repeal is expressed as an amendment to or repeal of a provision, the reference shall be deemed to be made to that provision in the Immigration and Nationality Act.

SEC. 2. CONGRESSIONAL FINDINGS AND PURPOSE.

(a) FINDINGS- Congress makes the following findings:

(1) The very foundation of the Republic was laid by people who came to America to escape persecution, including many who fled persecution on the basis of their faith.

(2) Protecting people from persecution is a cherished goal and a guiding principle of the American people.

(3) The United States has a history of generosity to persons fleeing persecution, which has served as an inspiring example to other nations developing refugee policy, even though only a tiny fraction of the world's oppressed actually seek refuge on American shores.

(4) Conversely, when the United States has restricted protection for refugees, other nations have followed that lead.

(5) Current law fails to ensure that those who arrive in the United States fleeing persecution have a fair and adequate opportunity to present claims for protection.

(b) PURPOSE- The purpose of this Act is to reduce the likelihood that a bona fide refugee will be returned to persecution in the refugee's country of nationality or country of last habitual residence by United States authorities because of expedited removal procedures or lack of due process in the United States asylum system.

SEC. 3. SAFEGUARDS AGAINST ERRONEOUS EXCLUSION OF ASYLUM SEEKERS.

(a) LIMITATION OF SUMMARY INSPECTION PROCEDURES TO IMMIGRATION EMERGENCIES- Section 235(b)(1) (8 U.S.C. 1225(b)(1)) is amended--

(1) by redesignating subparagraphs (A) through (F) as subparagraphs (B) through (G), respectively; and

(2) by inserting after the caption for paragraph (1) the following new subparagraph:

`(A) EMERGENCY MIGRATION SITUATIONS-

`(i) SCOPE OF PARAGRAPH- The authority in this paragraph shall apply to those instances where the Attorney General determines that the numbers or circumstances of aliens en route to or arriving in the United States, by land, sea, or air present an extraordinary migration situation.

`(ii) EXTRAORDINARY MIGRATION SITUATION DEFINED- As used in this subparagraph, the term `extraordinary migration situation' means the arrival or imminent arrival in the United States or its territorial waters of aliens who by their numbers or circumstances substantially exceed the capacity for inspection and examination of such aliens.

`(iii) DETERMINATIONS BY THE ATTORNEY GENERAL- The determination of whether there exists an extraordinary migration situation within the meaning of this paragraph is committed to the sole and exclusive discretion of the Attorney General. Before making such determination, the Attorney General shall consider whether the source of the extraordinary migration flow is a country that meets the criteria of subparagraph (G).

`(iv) EFFECTIVE PERIOD OF DETERMINATIONS- A determination by the Attorney General under this subparagraph that an extraordinary migration situation exists shall be effective for a period not to exceed 90 days, unless, within such 90-day period (or extension thereof), the Attorney General determines, after consultation with the Committees on the Judiciary of the Senate and the House of Representatives, that an extraordinary migration situation continues to warrant such procedures remaining in effect for an additional 90-day period.'.

(b) REFORM OF SUMMARY INSPECTION PROCEDURES TO DECREASE THE LIKELIHOOD OF ERROR- Section 235(b)(1)(B) (as redesignated by subsection (a)) is amended to read as follows:

`(B) SCREENING-

`(i) IN GENERAL- If an immigration officer determines that an alien (other than an alien described in subparagraph (G)) who is arriving in the United States is inadmissible under section 212(a)(6)(C) or 212(a)(7) because the alien has no documents or has documents that are invalid on their face, the officer shall permit the alien to withdraw the application for admission under subsection (a)(4), or order the alien removed from the United States, unless the alien indicates an intention to apply for asylum under section 208 or a

fear of returning to his country of nationality or country of last habitual residence. Prior to withdrawal of an application for admission or issuance of a removal order, the alien shall be informed in writing and in a language the alien understands of the consequences of withdrawal or issuance of a removal order, the availability of review of a removal order, and that the alien shall have access to counsel in connection with such review, as provided by clause (iii).

`(ii) CLAIMS FOR ASYLUM- If an immigration officer determines that an alien (other than an alien described in subparagraph (G)) arriving in the United States is inadmissible under clause (i) and the alien indicates an intention to apply for asylum under section 208 or a fear of returning to his country of nationality or country of last habitual residence, the officer shall refer the alien for an interview by an asylum officer under subparagraph (C).

`(iii) REVIEW OF REMOVAL ORDERS-

`(I) IN GENERAL- The Attorney General shall provide by regulation for de novo review by an immigration judge of an order issued under clause (i) unless the alien waives such review.

`(II) PROCEDURES- The review shall include an opportunity for the alien to be heard and questioned by the immigration judge in person and to be represented at the review by a person or persons of the alien's choosing at no expense to the Government. The alien shall be advised of these procedures and provided the list of persons prepared under section 239(b)(2). Review shall be concluded as expeditiously as possible.

`(III) DETERMINATIONS OF INADMISSIBILITY- If the immigration judge determines that the alien is inadmissible under section 212(a)(6)(C) or 212(a)(7) because the alien has no documents or has documents that are invalid on their face, the immigration judge shall permit the alien to withdraw the application for admission under subsection (a)(4), or order the alien removed from the United States, unless the alien indicates an intention to apply for asylum under section 208 or a fear of returning to his country of nationality or country of last habitual residence.

`(IV) REFERRAL TO ASYLUM OFFICERS- If the alien indicates an intention to apply for asylum under section 208 or a fear of returning to his country of nationality or country of last habitual residence, the immigration judge shall refer the alien for an interview by an asylum officer under subparagraph (B).

`(V) OTHER DETERMINATIONS- If the immigration judge determines that the alien is not inadmissible under section 212(a)(6)(C) or 212(a)(7), the immigration judge shall order the alien admitted or shall refer the alien for a removal hearing under section 240.'.

(c) EXCEPTIONS TO SUMMARY INSPECTION PROCEDURES FOR ALIENS FLEEING COUNTRIES WITH POOR HUMAN RIGHTS RECORDS- Section 235(b)(1)(G) (as redesignated by subsection (a)) is amended to read as follows:

`(G) EXCEPTIONS- Subparagraph (B) shall not apply to an alien if--

`(i) the alien has fled from a country with respect to which the Attorney General, in consultation with the Assistant Secretary of State for Democracy, Human Rights and Labor, has determined that the government (or a group within the country that the government is unable or unwilling to control)--

`(I) engages in torture or other cruel, inhuman, or degrading treatment or punishment;

`(II) engages in prolonged arbitrary detention without charges or trial;

`(III) engages in abduction, forced disappearance, or clandestine detention;

`(IV) engages in systematic persecution; or

`(V) where an ongoing armed conflict or other extraordinary conditions would pose a serious threat to the alien's safety;

`(ii) the alien is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry; or

`(iii) the alien is a child unaccompanied by a parent or guardian.'.

(d) REFORM OF CREDIBLE FEAR REVIEW PROCEDURES TO DECREASE THE LIKELIHOOD OF ERROR- Section 235(b)(1)(C)(iii) (as redesignated by subsection (a)) is amended--

(1) in the caption of clause (iii), by striking `WITHOUT FURTHER REVIEW';

(2) in subclause (I), by striking `without further hearing or review'; and

(3) by amending subparagraph (III) to read as follows:

`(III) REVIEW OF DETERMINATIONS- The Attorney General shall provide by regulation for prompt review by an immigration judge of a determination under subclause (I) that the alien does not have a credible fear of persecution. Such review shall include an opportunity for the alien to be heard and questioned by the immigration judge in person and to be represented at the review at no expense to the Government. Review shall be concluded as expeditiously as possible, to the maximum extent practicable within 7 days after the date of determination under subclause (I).'.

(e) REFORM OF CREDIBLE FEAR STANDARD TO DECREASE THE LIKELIHOOD OF ERROR- Section 235(b)(1)(C)(v) (as redesignated by subsection (a)) is amended to read as follows:

`(v) CREDIBLE FEAR OF PERSECUTION DEFINED- For purposes of this paragraph, the term `credible fear of persecution' means that, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts in support of the alien's claim as are known to the officer, the alien's claim of eligibility for asylum under section 208 is not clearly fraudulent and is related to the criteria for granting asylum.'.

(f) CLARIFICATION OF ATTORNEY GENERAL'S DISCRETION TO DETAIN ASYLUM SEEKERS- Section 235(b)(1)(B) (as redesignated by subsection (a)) is amended--

(1) in clause (ii), by striking `shall' and inserting `may, in the Attorney General's discretion,'; and

(2) in clause (iii)(IV), by striking `shall' and inserting `may, in the Attorney General's discretion,'.

(g) ENHANCED AVAILABILITY OF JUDICIAL REVIEW AS A SAFEGUARD AGAINST ERRONEOUS EXCLUSION OF ASYLUM SEEKERS- Section 242 (8 U.S.C. 1252) is amended--

(1) in subsection (a), by striking the parenthetical in paragraph (1);

(2) in subsection (a)(2)--

(A) by striking subparagraph (A); and

(B) by redesignating subparagraphs (B) and (C) as subparagraphs (A) and (B), respectively;

(3) in subsection (b)--

(A) by striking `manifestly' in paragraph (4)(D); and

(B) by striking `and' in paragraph (4)(D) and inserting `or'; and

(4) by striking subsection (e).

(h) CONFORMING AMENDMENTS-

(1) CONDUCT OF INTERVIEWS BY ASYLUM OFFICERS- Section 235(b)(1)(C)(i) (as so redesignated) is amended by striking `subparagraph (A)(ii)' and inserting `subparagraph (B) (ii) or (iii)'.

(2) LIMITATIONS ON ADMINISTRATIVE REVIEW- Section 235(b)(1)(D) (as so redesignated) is amended--

(A) by striking `subparagraph (B)(iii)(III)' and inserting `subparagraph (C)(iii)(III)';

(B) by striking `subparagraph (A)(i) or (B)(iii)(I)' and inserting `subparagraph (B)(iii) or (C)(iii)(I)'; and

(C) by striking `subparagraph (A)(i)' and inserting `subparagraph (B)(iii)'.

(3) APPLICATION TO STOWAWAYS- Section 235(a)(2) (8 U.S.C. 1225(a)(2)) is amended--

(A) by inserting before the period at the end of the first sentence the following: `, except that the alien shall be informed of the availability of review of the order under subsection (b)(1)(C)(iii);

(B) in the second sentence, by striking `persecution' and inserting `returning to his country of nationality or country of last habitual residence'; and

(C) by striking `subsection (b)(1)(B)' each place it appears and inserting `subsection (b)(1)(C)'.

(4) HEADING CORRECTION- The heading of subclause IV of section 235(b)(1)(C)(iii), as redesignated by section 3(a)(1) of this Act, is amended by striking `MANDATORY DETENTION' and inserting `DETENTION'.

SEC. 4. ADDITIONAL REFORMS TO ENSURE A FAIR AND ADEQUATE OPPORTUNITY FOR REFUGEES TO PRESENT CLAIMS FOR PROTECTION.

(a) `GOOD CAUSE' EXCEPTION TO THE TIME LIMITATION FOR APPLYING FOR ASYLUM- Section 208(a)(2)(B) (8 U.S.C. 1158(a)(2)(B)) is amended by inserting before the period at the end the following: `or the alien demonstrates, by a preponderance of the evidence, good cause for filing after the expiration of the period specified in this subparagraph.'.

(b) ALLOWING REAPPLICATION WHERE JUSTIFIED BY GOOD CAUSE OR THE INTEREST OF JUSTICE- Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is amended--

(1) in subparagraph (C), by inserting before the period at the end the following: `unless the alien demonstrates good cause for filing another application for asylum'; and

(2) in subparagraph (D), by inserting before the period at the end the following: `or of other circumstances in which consideration of the claim would clearly be in the interest of justice'.

(c) CLARIFICATION REGARDING FRIVOLOUS APPLICATIONS FOR ASYLUM- Section 208(d)(6) (8 U.S.C. 1158(d)(6)) is amended--

(1) by adding at the end the following: `An application for asylum is frivolous if the application as a whole is clearly fraudulent or is made with knowledge that the application as a whole is not related to the criteria for granting refugee status.';

(2) by striking `permanently';

(3) by inserting `for five years' after `chapter'; and

(4) by inserting `, except withholding of removal,' after `benefits'.

SEC. 5. EFFECTIVE DATE.

This Act, and the amendments made by this Act, shall take effect 30 days after the date of enactment of this Act.

END

 


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