Border Crisis Prevention Act of 2021
This bill imposes additional requirements on asylum seekers, increases certain time limits related to detained aliens, and addresses other immigration-related issues.
The Department of Homeland Security (DHS) must detain certain aliens, such as an alien convicted of an aggravated felony or believed to be a trafficker of controlled substances, beyond certain time limits for detaining an alien.
The bill also provides for additional instances when DHS may extend the 90-day removal period (generally the window in which DHS has to remove an alien after a final order of removal). An alien choosing to appeal mandatory detention or detention as part of a removal period extension may do so only by filing for a writ of habeas corpus.
DHS shall establish a process to determine whether an alien not subject to mandatory detention and who has tried to comply with a removal order should be detained or released with conditions.
Furthermore, under this bill, an alien's credible fear of persecution must be more probable than not in order to be eligible for asylum.
DHS may also deny asylum to an applying alien and remove the alien to a country that is not the alien's country of nationality, if the alien would be safe and would be able to apply for asylum from that country. (Currently, an asylum applicant may be removed to a third country only if that country is party to an agreement allowing for such removal.)
The Department of Justice may appoint 100 additional immigration judges.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 709 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 709
To amend the Immigration and Nationality Act to reform certain asylum
procedures, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 2, 2021
Mrs. Lesko introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to reform certain asylum
procedures, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Border Crisis Prevention Act of
2021''.
SEC. 2. CREDIBLE FEAR INTERVIEWS.
(a) Determination of Probability of Claim Truth.--Section
235(b)(1)(B)(v) of the Immigration and Nationality Act (8 U.S.C.
1225(b)(1)(B)(v)) is amended by striking ``claim'' and all that
follows, and inserting ``claim, as determined pursuant to section
208(b)(1)(B)(iii), and such other facts as are known to the officer,
that the alien could establish eligibility for asylum under section
208, and it is more probable than not that the statements made by, and
on behalf of, the alien in support of the alien's claim are true.''.
(b) Jurisdiction of Asylum Applications.--Section 208(b)(3) of the
Immigration and Nationality Act (8 U.S.C. 1158) is amended by striking
subparagraph (C).
(c) Recording Expedited Removal and Credible Fear Interviews.--
(1) In general.--The Secretary of Homeland Security shall
establish quality assurance procedures and take steps to
effectively ensure that questions by employees of the
Department of Homeland Security exercising expedited removal
authority under section 235(b) of the Immigration and
Nationality Act (8 U.S.C. 1225(b)) are asked in a uniform
manner, to the extent possible, and that both these questions
and the answers provided in response to them are recorded in a
uniform fashion.
(2) Factors relating to sworn statements.--Where
practicable, any sworn or signed written statement taken of an
alien as part of the record of a proceeding under section
235(b)(1)(A) of the Immigration and Nationality Act (8 U.S.C.
1225(b)(1)(A)) shall be accompanied by a recording of the
interview which served as the basis for that sworn statement.
(3) Interpreters.--The Secretary shall ensure that a
competent interpreter, not affiliated with the government of
the country from which the alien may claim asylum, is used when
the interviewing officer does not speak a language understood
by the alien.
(4) Recordings in immigration proceedings.--There shall be
an audio or audio visual recording of interviews of aliens
subject to expedited removal. The recording shall be included
in the record of proceeding and shall be considered as evidence
in any further proceedings involving the alien.
(5) No private right of action.--Nothing in this subsection
shall be construed to create any right, benefit, trust, or
responsibility, whether substantive or procedural, enforceable
in law or equity by a party against the United States, its
departments, agencies, instrumentalities, entities, officers,
employees, or agents, or any person, nor does this subsection
create any right of review in any administrative, judicial, or
other proceeding.
SEC. 3. SAFE THIRD COUNTRY.
Section 208(a)(2)(A) of the Immigration and Nationality Act (8
U.S.C. 1158(a)(2)(A)) is amended--
(1) by striking ``Attorney General'' each place it appears
and inserting ``Secretary of Homeland Security''; and
(2) by striking ``removed, pursuant to a bilateral or
multilateral agreement, to'' and inserting ``removed to''.
SEC. 4. DETENTION SPACES.
There is authorized to be appropriated such sums as may be
necessary to provide for sufficient detention spaces as the Secretary
of Homeland Security determines necessary to enforce the immigration
laws.
SEC. 5. IMMIGRATION JUDGES.
(a) In General.--The Attorney General may appoint 100 additional
immigration judges in addition to immigration judges currently serving
as of the date of enactment of this Act.
(b) Authorization of Appropriations.--There is authorized to be
appropriated such sums as may be necessary to carry out this section.
SEC. 6. ASYLUM PROCEDURES RELATED TO FILING FRIVOLOUS APPLICATIONS.
(a) Notice Concerning Frivolous Asylum Applications.--
(1) In general.--Section 208(d)(4) of the Immigration and
Nationality Act (8 U.S.C. 1158(d)(4)) is amended--
(A) in the matter preceding subparagraph (A), by
inserting ``the Secretary of Homeland Security or''
before ``the Attorney General'';
(B) in subparagraph (A), by striking ``and of the
consequences, under paragraph (6), of knowingly filing
a frivolous application for asylum; and'' and inserting
a semicolon;
(C) in subparagraph (B), by striking the period and
inserting ``; and''; and
(D) by adding at the end the following:
``(C) ensure that a written warning appears on the
asylum application advising the alien of the
consequences of filing a frivolous application and
serving as notice to the alien of the consequence of
filing a frivolous application.''.
(2) Conforming amendment.--Section 208(d)(6) of the
Immigration and Nationality Act (8 U.S.C. 1158(d)(6)) is
amended by striking ``If the'' and all that follows and
inserting:
``(A) If the Secretary of Homeland Security or the
Attorney General determines that an alien has knowingly
made a frivolous application for asylum and the alien
has received the notice under paragraph (4)(C), the
alien shall be permanently ineligible for any benefits
under this chapter, effective as the date of the final
determination of such an application.
``(B) An application is frivolous if the Secretary
of Homeland Security or the Attorney General
determines, consistent with subparagraph (C), that--
``(i) it is so insufficient in substance
that it is clear that the applicant knowingly
filed the application solely or in part to
delay removal from the United States, to seek
employment authorization as an applicant for
asylum pursuant to regulations issued pursuant
to paragraph (2), or to seek issuance of a
Notice to Appear in order to pursue
Cancellation of Removal under section 240A(b);
or
``(ii) any of the material elements are
knowingly fabricated.
``(C) In determining that an application is
frivolous, the Secretary or the Attorney General must
be satisfied that the applicant, during the course of
the proceedings, has had sufficient opportunity to
clarify any discrepancies or implausible aspects of the
claim.
``(D) For purposes of this section, a finding that
an alien filed a frivolous asylum application shall not
preclude the alien from seeking withholding of removal
under section 241(b)(3) or protection pursuant to the
Convention Against Torture.''.
(b) Anti-Fraud Investigative Work Product.--
(1) Asylum credibility determinations.--Section
208(b)(1)(B)(iii) of the Immigration and Nationality Act (8
U.S.C. 1158(b)(1)(B)(iii)) is amended by inserting after ``all
relevant factors'' the following: ``, including statements made
to, and investigative reports prepared by, immigration
authorities and other government officials''.
(2) Relief for removal credibility determinations.--Section
240(c)(4)(C) of the Immigration and Nationality Act (8 U.S.C.
1229a(c)(4)(C)) is amended by inserting after ``all relevant
factors'' the following: ``, including statements made to, and
investigative reports prepared by, immigration authorities and
other government officials''.
SEC. 7. DETENTION OF DANGEROUS ALIENS.
Section 241(a) of the Immigration and Nationality Act (8 U.S.C.
1231(a)) is amended--
(1) by striking ``Attorney General'' each place it appears,
except for the first reference in paragraph (4)(B)(i), and
inserting ``Secretary of Homeland Security'';
(2) in paragraph (1), by amending subparagraph (B) to read
as follows:
``(B) Beginning of period.--The removal period
begins on the latest of the following:
``(i) The date the order of removal becomes
administratively final.
``(ii) If the alien is not in the custody
of the Secretary on the date the order of
removal becomes administratively final, the
date the alien is taken into such custody.
``(iii) If the alien is detained or
confined (except under an immigration process)
on the date the order of removal becomes
administratively final, the date the alien is
taken into the custody of the Secretary, after
the alien is released from such detention or
confinement.'';
(3) in paragraph (1), by amending subparagraph (C) to read
as follows:
``(C) Suspension of period.--
``(i) Extension.--The removal period shall
be extended beyond a period of 90 days and the
Secretary may, in the Secretary's sole
discretion, keep the alien in detention during
such extended period if--
``(I) the alien fails or refuses to
make all reasonable efforts to comply
with the removal order, or to fully
cooperate with the Secretary's efforts
to establish the alien's identity and
carry out the removal order, including
making timely application in good faith
for travel or other documents necessary
to the alien's departure or conspires
or acts to prevent the alien's removal
that is subject to an order of removal;
``(II) a court, the Board of
Immigration Appeals, or an immigration
judge orders a stay of removal of an
alien who is subject to an
administratively final order of
removal;
``(III) the Secretary transfers
custody of the alien pursuant to law to
another Federal agency or a State or
local government agency in connection
with the official duties of such
agency; or
``(IV) a court or the Board of
Immigration Appeals orders a remand to
an immigration judge or the Board of
Immigration Appeals, during the time
period when the case is pending a
decision on remand (with the removal
period beginning anew on the date that
the alien is ordered removed on
remand).
``(ii) Renewal.--If the removal period has
been extended under subparagraph (C)(i), a new
removal period shall be deemed to have begun on
the date--
``(I) the alien makes all
reasonable efforts to comply with the
removal order, or to fully cooperate
with the Secretary's efforts to
establish the alien's identity and
carry out the removal order;
``(II) the stay of removal is no
longer in effect; or
``(III) the alien is returned to
the custody of the Secretary.
``(iii) Mandatory detention for certain
aliens.--In the case of an alien described in
subparagraphs (A) through (D) of section
236(c)(1), the Secretary shall keep that alien
in detention during the extended period
described in clause (i).
``(iv) Sole form of relief.--An alien may
seek relief from detention under this
subparagraph only by filing an application for
a writ of habeas corpus in accordance with
chapter 153 of title 28, United States Code. No
alien whose period of detention is extended
under this subparagraph shall have the right to
seek release on bond.'';
(4) in paragraph (3)--
(A) by adding after ``If the alien does not leave
or is not removed within the removal period'' the
following: ``or is not detained pursuant to paragraph
(6) of this subsection''; and
(B) by striking subparagraph (D) and inserting the
following:
``(D) to obey reasonable restrictions on the
alien's conduct or activities that the Secretary
prescribes for the alien, in order to prevent the alien
from absconding, for the protection of the community,
or for other purposes related to the enforcement of the
immigration laws.'';
(5) in paragraph (4)(A), by striking ``paragraph (2)'' and
inserting ``subparagraph (B)''; and
(6) by striking paragraph (6) and inserting the following:
``(6) Additional rules for detention or release of certain
aliens.--
``(A) Detention review process for cooperative
aliens established.--For an alien who is not otherwise
subject to mandatory detention, who has made all
reasonable efforts to comply with a removal order and
to cooperate fully with the Secretary of Homeland
Security's efforts to establish the alien's identity
and carry out the removal order, including making
timely application in good faith for travel or other
documents necessary to the alien's departure, and who
has not conspired or acted to prevent removal, the
Secretary shall establish an administrative review
process to determine whether the alien should be
detained or released on conditions. The Secretary shall
make a determination whether to release an alien after
the removal period in accordance with subparagraph (B).
The determination shall include consideration of any
evidence submitted by the alien, and may include
consideration of any other evidence, including any
information or assistance provided by the Secretary of
State or other Federal official and any other
information available to the Secretary of Homeland
Security pertaining to the ability to remove the alien.
``(B) Authority to detain beyond removal period.--
``(i) In general.--The Secretary of
Homeland Security, in the exercise of the
Secretary's sole discretion, may continue to
detain an alien for 90 days beyond the removal
period (including any extension of the removal
period as provided in paragraph (1)(C)). An
alien whose detention is extended under this
subparagraph shall have no right to seek
release on bond.
``(ii) Specific circumstances.--The
Secretary of Homeland Security, in the exercise
of the Secretary's sole discretion, may
continue to detain an alien beyond the 90 days
authorized in clause (i)--
``(I) until the alien is removed,
if the Secretary, in the Secretary's
sole discretion, determines that there
is a significant likelihood that the
alien--
``(aa) will be removed in
the reasonably foreseeable
future; or
``(bb) would be removed in
the reasonably foreseeable
future, or would have been
removed, but for the alien's
failure or refusal to make all
reasonable efforts to comply
with the removal order, or to
cooperate fully with the
Secretary's efforts to
establish the alien's identity
and carry out the removal
order, including making timely
application in good faith for
travel or other documents
necessary to the alien's
departure, or conspires or acts
to prevent removal;
``(II) until the alien is removed,
if the Secretary of Homeland Security
certifies in writing--
``(aa) in consultation with
the Secretary of Health and
Human Services, that the alien
has a highly contagious disease
that poses a threat to public
safety;
``(bb) after receipt of a
written recommendation from the
Secretary of State, that
release of the alien is likely
to have serious adverse foreign
policy consequences for the
United States;
``(cc) based on information
available to the Secretary of
Homeland Security (including
classified, sensitive, or
national security information,
and without regard to the
grounds upon which the alien
was ordered removed), that
there is reason to believe that
the release of the alien would
threaten the national security
of the United States; or
``(dd) that the release of
the alien will threaten the
safety of the community or any
person, conditions of release
cannot reasonably be expected
to ensure the safety of the
community or any person, and
either (AA) the alien has been
convicted of one or more
aggravated felonies (as defined
in section 101(a)(43)(A)) or of
one or more crimes identified
by the Secretary of Homeland
Security by regulation, or of
one or more attempts or
conspiracies to commit any such
aggravated felonies or such
identified crimes, if the
aggregate term of imprisonment
for such attempts or
conspiracies is at least 5
years; or (BB) the alien has
committed one or more crimes of
violence (as defined in section
16 of title 18, United States
Code, but not including a
purely political offense) and,
because of a mental condition
or personality disorder and
behavior associated with that
condition or disorder, the
alien is likely to engage in
acts of violence in the future;
or
``(III) pending a certification
under subclause (II), so long as the
Secretary of Homeland Security has
initiated the administrative review
process not later than 30 days after
the expiration of the removal period
(including any extension of the removal
period, as provided in paragraph
(1)(C)).
``(iii) No right to bond hearing.--An alien
whose detention is extended under this
subparagraph shall have no right to seek
release on bond, including by reason of a
certification under clause (ii)(II).
``(C) Renewal and delegation of certification.--
``(i) Renewal.--The Secretary of Homeland
Security may renew a certification under
subparagraph (B)(ii)(II) every 6 months, after
providing an opportunity for the alien to
request reconsideration of the certification
and to submit documents or other evidence in
support of that request. If the Secretary does
not renew a certification, the Secretary may
not continue to detain the alien under
subparagraph (B)(ii)(II).
``(ii) Delegation.--Notwithstanding section
103, the Secretary of Homeland Security may not
delegate the authority to make or renew a
certification described in item (bb), (cc), or
(dd) of subparagraph (B)(ii)(II) below the
level of the Director of Immigration and
Customs Enforcement.
``(iii) Hearing.--The Secretary of Homeland
Security may request that the Attorney General
or the Attorney General's designee provide for
a hearing to make the determination described
in item (dd)(BB) of subparagraph (B)(ii)(II).
``(D) Release on conditions.--If it is determined
that an alien should be released from detention by a
Federal court, the Board of Immigration Appeals, or if
an immigration judge orders a stay of removal, the
Secretary of Homeland Security, in the exercise of the
Secretary's discretion, may impose conditions on
release as provided in paragraph (3).
``(E) Redetention.--The Secretary of Homeland
Security, in the exercise of the Secretary's
discretion, without any limitations other than those
specified in this section, may again detain any alien
subject to a final removal order who is released from
custody, if removal becomes likely in the reasonably
foreseeable future, the alien fails to comply with the
conditions of release, or to continue to satisfy the
conditions described in subparagraph (A), or if, upon
reconsideration, the Secretary, in the Secretary's sole
discretion, determines that the alien can be detained
under subparagraph (B). This section shall apply to any
alien returned to custody pursuant to this
subparagraph, as if the removal period terminated on
the day of the redetention.
``(F) Review of determinations by secretary.--A
determination by the Secretary under this paragraph
shall not be subject to review by any other agency.''.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
Referred to the Subcommittee on Immigration and Citizenship.
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