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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

S 1311 IS

107th CONGRESS

1st Session

S. 1311

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

August 2, 2001

Mr. LEAHY (for himself, Mr. BROWNBACK, Mr. KENNEDY, Ms. COLLINS, Mr. DURBIN, Mr. JEFFORDS, and Mr. GRAHAM) 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 2001'.

    (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 (8 U.S.C. 1101 et seq.).

SEC. 2. CONGRESSIONAL FINDINGS AND PURPOSES.

    (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 United States.

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

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

      (5) United States law fails to ensure that a person fleeing persecution who arrives in the United States has a fair and adequate opportunity to present a claim for protection.

    (b) PURPOSES- The purposes of this Act are--

      (1) 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 fairness in the United States asylum system; and

      (2) to provide alternatives to detention and improve detention conditions for asylum seekers.

TITLE I--PROTECTION OF ASYLUM SEEKERS

SEC. 101. 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 in which 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, and only to those aliens arriving from the foreign state or states giving rise to 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 those aliens, where there are extraordinary and temporary conditions in the foreign state of which those aliens are nationals.

          `(iii) DETERMINATIONS BY THE ATTORNEY GENERAL- The determination of whether there exists an extraordinary migration situation is in the sole and exclusive discretion of the Attorney General.

          `(iv) EFFECTIVE PERIOD OF DETERMINATIONS- A determination made under this subparagraph shall be effective for a period not to exceed 90 days, unless, within that 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 those 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 at no expense to the Government 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 that 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 (C).

            `(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- Section 235(b)(1)(G) (as redesignated by subsection (a)) is amended to read as follows:

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

          `(i) an alien who 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

          `(ii) an alien who 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. 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 at no expense to the Government. Review shall be concluded as expeditiously as possible, and to the maximum extent practicable, within 7 days after the date of determination under subclause (I).'.

    (e) 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)--

        (A) by striking the parenthetical in paragraph (1); and

        (B) in paragraph (2) by--

          (i) by striking subparagraph (A); and

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

      (2) in subsection (b)(4)(D) by striking `manifestly contrary to the law and' and inserting `contrary to the law or'; and

      (3) by striking subsection (e).

    (f) CONFORMING AMENDMENTS-

      (1) CONDUCT OF INTERVIEWS BY ASYLUM OFFICERS- Section 235(b)(1)(C)(i) (as redesignated by subsection (a)) 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 redesignated by subsection (a)) 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)'.

SEC. 102. ELIMINATION OF ARBITRARY TIME LIMITS ON ASYLUM APPLICATIONS.

    Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is amended--

      (1) by striking subparagraph (B);

      (2) in subparagraph (C), by striking `(D)' and inserting `(C)';

      (3) in subparagraph (D), by striking `subparagraphs (B) and (C),' and inserting `subparagraph (B),'; and

      (4) by redesignating subparagraphs (C) and (D) as subparagraphs (B) and (C), respectively.

SEC. 103. ELIMINATION OF NUMERICAL LIMITATION ON ADJUSTMENT OF ASYLEES.

    Section 209(b) (8 U.S.C. 1159(b)) is amended by striking `Not more than' and all that follows through `who' and inserting the following: `The Attorney General may, in the discretion of the Attorney General, adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum who'.

SEC. 104. ELIMINATION OF ANNUAL ALLOCATION FOR CERTAIN CATEGORY OF REFUGEES.

    Section 207(a) (8 U.S.C. 1157(a)) is amended by striking paragraph (5).

TITLE II--DETENTION

SEC. 201. ALTERNATIVES TO DETENTION OF ASYLUM SEEKERS.

    (a) ATTORNEY GENERAL'S DISCRETION TO DETAIN ASYLUM SEEKERS-

      (1) Section 235(b)(1)(C) (as redesignated in section 101(a)) is amended--

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

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

        (C) in the heading of clause (iii)(IV), by striking `MANDATORY DETENTION' and inserting `DETENTION'; and

        (D) by adding at the end the following:

          `(vi) PAROLE OF CERTAIN ALIENS- It is the policy of the United States to parole asylum seekers who have established a credible fear of persecution, as defined in clause (v).'.

      (2) The Attorney General shall promulgate regulations establishing criteria for the parole of asylum seekers.

    (b) COVERED PERSONS- References in this section to alternatives to detention shall apply only with respect to asylum seekers.

    (c) DEVELOPMENT OF ALTERNATIVES TO DETENTION- The Attorney General shall promulgate regulations that--

      (1) authorize and promote the utilization of alternatives to detention of asylum seekers; and

      (2) establish the conditions for detention of asylum seekers that ensure a safe and humane environment.

    (d) REGULATIONS REGARDING ALTERNATIVES TO DETENTION- The regulations developed under subsection (c)(1) shall at a minimum take into account the following:

      (1) SPECIFIC ALTERNATIVES- Specific alternatives to detention, including--

        (A) unsupervised parole from detention;

        (B) for individuals not otherwise qualified for parole under subparagraph (A), supervised parole to private nonprofit voluntary agencies;

        (C) for individuals not otherwise qualified for parole under subparagraph (A) or (B), non-secure shelter care or group homes supervised by private nonprofit voluntary agencies; and

        (D) noninstitutional settings for minors, such as foster care or group homes operated by private nonprofit voluntary agencies.

    (e) PROGRAMS AUTHORIZED-

      (1) IN GENERAL- Subject to the availability of appropriations, the Attorney General shall enter into contracts with nongovernmental agencies for the purpose of developing, implementing, or expanding alternatives to detention programs.

      (2) USE OF FUNDS- A nongovernmental agency that receives a contract under this subsection shall use amounts provided under the contract to develop, implement, or expand alternatives to detention programs.

      (3) PROGRAM REQUIREMENTS- A nongovernmental agency that enters into a contract under this subsection shall develop, implement, or expand a program that may include the following:

        (A) Development of a screening procedure through which the nongovernmental agency, in conjunction with the Immigration and Naturalization Service, selects appropriate candidates for participation in the alternative to detention program.

        (B) Coordination of housing for program participants.

        (C) Coordination of necessary services for program participants, including legal, social, medical, mental health, educational and vocational training, job placement, and English as a Second Language courses.

        (D) Assistance with the integration of participants into the community by helping participants make contacts in their ethnic and religious communities.

        (E) Facilitation of compliance by participants with Immigration and Naturalization Service and court proceedings.

    (f) REGULATIONS REGARDING CONDITIONS FOR DETENTION- The regulations developed under subsection (c)(2) shall at a minimum include the following:

      (1) ACCESS TO LEGAL SERVICES-

        (A) LISTS OF LEGAL SERVICE PROVIDERS- Procedures for providing to all Immigration and Naturalization Service detainees promptly upon their arrival at the facility an updated and accurate list of free or low-cost immigration legal service providers that are located in the area of the detention facility.

        (B) GROUP LEGAL ORIENTATION PRESENTATIONS-

          (i) IN GENERAL- Procedures to allow for regularly scheduled, group legal orientation presentations.

          (ii) DEFINITION- In this subparagraph, the term `group legal orientation presentations' means live presentations, supplemented by video presentations and individual evaluations, by private nongovernmental organizations, given to Immigration and Naturalization Service detainees for the purpose of informing the detainees about United States immigration law and procedures and enabling detainees to determine their eligibility for relief.

          (iii) ESTABLISHMENT OF A NATIONAL LEGAL ORIENTATION SUPPORT AND TRAINING CENTER- The Attorney General shall establish a National Legal Orientation Support and Training Center (referred to in this subsection as the Center) the purpose of which shall be to ensure quality and consistent implementation of legal orientation programs nationwide.

          (iv) DUTIES- The Center shall be responsible for--

            (I) offering training to nonprofit agencies that will offer group legal orientation programs;

            (II) consulting with nonprofit agencies that offer group legal orientation programs regarding program development and substantive legal issues; and

            (III) developing standards for the legal orientation programs.

        (C) PROGRAMS AUTHORIZED- A program that shall make grants to nongovernmental agencies for the purpose of developing, implementing, or expanding legal orientation programs available to all Immigration and Naturalization Service detainees at the facilities in which such programs are offered.

        (D) VISITS- Procedures that permit Immigration and Naturalization Service detainees to have adequate access to contact visits from the following individuals:

          (i) Legal service providers, including attorneys, paralegals, law graduates, law students, and representatives accredited by the Board of Immigration Appeals.

          (ii) Consultants, as authorized under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b)), before and during interviews in which determinations of credible fear of persecution are made.

          (iii) Individuals assisting in the provision of legal representation and documentation in support of the asylum seekers' cases, including interpreters, medical personnel, mental health providers, social welfare workers, expert and fact witnesses, and others.

        (E) NOTIFICATION REQUIREMENT- Procedures to provide adequate and prompt notice to Immigration and Naturalization Service detainees of their available release options and the procedures to request those options provided in the language of the detainee.

        (F) LOCATION OF FACILITIES- A presumption in favor of locating detention facilities near sources of free or low-cost legal representation with expertise in asylum and immigration law to ensure that such services are readily accessible.

        (G) UPDATED LEGAL RESOURCES- Access to an updated law library.

        (H) NOTIFICATION OF TRANSFERS- Procedures requiring the prompt notification of the legal representative of an Immigration and Naturalization Service detainee before the detainee is transferred to another detention facility.

        (I) ACCESS TO TELEPHONES- Procedures permitting Immigration and Naturalization Service detainees reasonable, equitable, and sufficient access to telephones, and the ability to make direct, free calls to legal representatives, the immigration courts, the Board of Immigration Appeals, Federal and State courts, other government offices, and consular officials.

      (2) RELIGIOUS AND CULTURAL PROVISIONS-

        (A) ACCESS TO RELIGIOUS SERVICES- Full and equitable access to religious services, religious materials, opportunity for religious group study, and religious counseling appropriate to Immigration and Naturalization Service detainees' religious beliefs and practices.

        (B) CHAPLAINS- The assignment of a chaplain to each detention facility. The chaplain shall be responsible for managing the religious activities, including providing pastoral care and counseling to detainees, and for facilitating access to pastoral care and counseling from external clergy or religious service providers, representing the faiths of the Immigration and Naturalization Service detainees detained at the facility.

        (C) DIETARY NEEDS- Procedures to ensure that Immigration and Naturalization Service detainees' religious, medical, and cultural dietary needs are met.

        (D) QUALIFICATIONS OF STAFF- Procedures to ensure that detention facility staff members are trained to recognize and address cultural and gender issues relevant to male, female, and child Immigration and Naturalization Service detainees.

        (E) ACCESS TO DETENTION FACILITIES BY NONGOVERNMENTAL ORGANIZATIONS- Reasonable access to a detention facility shall be provided to nongovernmental organizations for purposes including--

          (i) observing the conditions of detention outlined in this title;

          (ii) engaging in teaching and training programs for the Immigration and Naturalizaiton Service detainees detained at the facility; and

          (iii) providing legal or religious services to the Immigration and Naturalization Service detainees.

SEC. 202. DETENTION OF ASYLUM SEEKERS.

    (a) REQUIREMENT- If found ineligible for parole or placement in an alternative to detention under the previous section, asylum seekers shall be detained only in Immigration and Naturalization Service service processing centers or in facilities contracted by the Immigration and Naturalization Service solely to house immigration detainees, unless the asylum seeker agrees to placement at another facility.

    (b) DETERMINATION BY ASYLUM OFFICERS-

      (1) IN GENERAL- Asylum officers shall determine whether to parole an asylum seeker or place an asylum seeker in an appropriate alternative to detention.

      (2) TIMING OF DETERMINATION- A determination made under paragraph (1) shall be made within 1 week of a request for parole made by an asylum seeker.

      (3) RENEWAL OF REQUEST- If a request for parole is denied, an asylum seeker may renew the request if the asylum seeker has new or additional supporting information.

      (4) TRAINING OF ASYLUM OFFICERS- Asylum officers shall be trained in the appropriate use of and referral to detention alternatives.

      (5) LIMITATION ON AUTHORITY TO DETAIN- No asylum seeker may be detained if an asylum officer or immigration judge has determined that parole is appropriate.

    (c) REVIEW OF DETENTION- In each case in which a request for release from detention by an asylum seeker is denied, or in which no determination to parole or place an asylum seeker in an appropriate alternative to detention is made within one week of an asylum seeker's request for parole, an immigration judge shall--

      (1) examine the parole request, and any evidence in a hearing that includes all evidence provided in support of that request and determine within 10 days whether the individual should be paroled; and

      (2) provide in writing to the detained asylum seeker, and to the asylum seeker's legal representative, the reason for any denial of release from detention.

TITLE III--GENERAL PROVISIONS

SEC. 301. DEFINITIONS.

    In this Act:

      (1) ASYLUM OFFICER- The term `asylum officer' has the meaning given the term in section 235(b)(1)(F) (as redesignated by section 101(a)) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(F)).

      (2) ASYLUM SEEKER-

        (A) IN GENERAL- The term `asylum seeker' means--

          (i) any applicant for asylum under section 208 of the Immigration and Nationality Act (8 U.S.C. 1158);

          (ii) any alien who indicates an intention to apply for asylum under that section;

          (iii) any applicant for withholding of removal, pursuant either to section 1231 of title 8, United States Code; or

          (iv) an applicant who indicates an intention to apply for relief pursuant to the Convention Against Torture.

        (B) LIMITATION- The term `asylum seeker' includes an individual who is pursuing appeals through Federal court, but does not include an individual with respect to whom a final order denying asylum has been entered.

      (3) IMMIGRATION JUDGE- The term `immigration judge' has the meaning given the term in section 101(b)(4) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(4)).

      (4) DETENTION FACILITY- The term `detention facility' means a Federal facility that meets the requirements of section 202(a) in which an asylum seeker is detained for more than 24 hours, or any other facility in which those detention services are provided to the Federal Government by contract, and does not include detention at any port of entry in the United States.

SEC. 302. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated to the Department of Justice such sums as may be necessary to carry out this Act.

SEC. 303. EFFECTIVE DATE.

    This Act, and the amendments made by this Act, shall take effect 90 days after the date of enactment of this Act.

END


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