skip to main content

H.R. 759: Asylum Reform and Border Protection Act of 2021


The text of the bill below is as of Feb 3, 2021 (Introduced).


I

117th CONGRESS

1st Session

H. R. 759

IN THE HOUSE OF REPRESENTATIVES

February 3, 2021

introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To modify the treatment of unaccompanied alien children who are in Federal custody by reason of their immigration status, and for other purposes.

1.

Short title

This Act may be cited as the Asylum Reform and Border Protection Act of 2021.

2.

Clarification of intent regarding taxpayer-provided counsel

Section 292 of the Immigration and Nationality Act (8 U.S.C. 1362) is amended—

(1)

by striking In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings and inserting In any removal proceedings before an immigration judge, or any other immigration proceedings before the Attorney General, the Secretary of Homeland Security, or any appeal of such a proceeding;

(2)

by striking (at no expense to the Government); and

(3)

by adding at the end the following:

Notwithstanding any other provision of law, in no instance shall the Government bear any expense for counsel for any person in proceedings described in this section.

.

3.

Credible fear interviews

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..

4.

Recording expedited removal and credible fear interviews

(a)

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.

(b)

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.

(c)

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.

(d)

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.

(e)

No private right of action

Nothing in this section 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 section create any right of review in any administrative, judicial, or other proceeding.

5.

Parole reform

(a)

In general

Paragraph (5) of section 212(d) of the Immigration and Nationality Act (8 U.S.C. 1182(d)) is amended to read as follows:

(5)

Humanitarian and significant public interest parole

(A)

In general

Subject to the provisions of this paragraph and section 214(f)(2), the Secretary of Homeland Security, in the sole discretion of the Secretary of Homeland Security, may on an individual case-by-case basis, and not according to eligibility criteria describing an entire class of potential parole recipients, parole an alien into the United States temporarily, under such conditions as the Secretary of Homeland Security may prescribe, only—

(i)

an alien not present in the United States for an urgent humanitarian reason (as described under subparagraph (B));

(ii)

an alien not present in the United States for a reason deemed strictly in the significant public interest (as described under subparagraph (C)); or

(iii)

an alien who—

(I)

is present in the United States without lawful immigration status;

(II)

is the beneficiary of a pending or approved petition under section 203(a);

(III)

is not otherwise inadmissible or deportable; and

(IV)

is the spouse or minor child of a member of the Armed Forces serving on active duty at the request of the member of the Armed Forces.

(B)

Humanitarian parole

The Secretary of Homeland Security may parole an alien based on an urgent humanitarian reason described in this subparagraph only if—

(i)

the alien has a medical emergency and the alien cannot obtain necessary treatment in the foreign state in which the alien is residing or the medical emergency is life-threatening and there is insufficient time for the alien to be admitted through the normal visa process;

(ii)

the alien is the parent or legal guardian of an alien described in clause (i), if the alien described in clause (i) is a minor;

(iii)

the alien is needed in the United States in order to donate an organ or other tissue for transplant into a close family member and there is insufficient time for the alien to be admitted through the normal visa process;

(iv)

the alien has a close family member in the United States whose death is imminent and the alien could not arrive in the United States in time to see such family member alive if the alien were to be admitted through the normal visa process;

(v)

the alien is an adopted child with an urgent medical condition, who is in the legal custody of the petitioner for a final adoption-related visa, and whose medical treatment is required prior to the expected award of a final adoption-related visa;

(vi)

the alien is a lawful applicant for adjustment of status under section 245; or

(vii)

the alien was—

(I)

lawfully granted status under section 208;

(II)

lawfully admitted under section 207; or

(III)

granted withholding of removal under section 241(b)(3).

(C)

Significant public interest parole

The Secretary of Homeland Security may parole an alien based on a reason deemed strictly in the significant public interest described in this subparagraph only if the alien has assisted (or will assist, whether knowingly or not) the United States Government in a matter, such as a criminal investigation, espionage, or other similar law enforcement activity, including a civil litigation matter requiring the alien’s presence, and either the alien’s presence in the United States is required by the Government or the alien’s life would be threatened if the alien were not permitted to come to the United States. Only a matter described in this subparagraph shall qualify for purposes of this subparagraph, and no other matter may qualify.

(D)

Limitation on the use of parole authority

The Secretary of Homeland Security may not use the parole authority under this paragraph—

(i)

to circumvent immigration policy established by law to admit classes of aliens who do not qualify for admission; or

(ii)

to supplement established immigration categories without congressional approval.

(E)

Parole not an admission

Parole of an alien under this paragraph shall not be considered an admission of the alien into the United States. When the purposes of the parole of an alien have been served, as determined by the Secretary of Homeland Security, the alien shall immediately return or be returned to the custody from which the alien was paroled and the alien shall be considered for admission to the United States on the same basis as other similarly situated applicants for admission.

(F)

Report to Congress

Not later than 90 days after the end of each fiscal year, the Secretary of Homeland Security shall submit a report to the Committees on the Judiciary of the House of Representatives and the Senate describing the number and categories of aliens paroled into the United States under this paragraph. Each such report shall contain information and data concerning the number and categories of aliens paroled, the duration of parole, and the current status of aliens paroled during the preceding fiscal year.

.

(b)

Effective date

The amendment made by subsection (a) shall take effect on the first day of the first month beginning more than 60 days after the date of the enactment of this Act.

6.

Modifications to preferential availability for asylum for unaccompanied alien minors

Section 208(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1158(a)(2)) is amended by striking subparagraph (E).

7.

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.

8.

Withholding of removal

Section 241(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3)) is amended—

(1)

by adding at the end of subparagraph (A) the following:

The burden of proof shall be on the alien to establish that the alien's life or freedom would be threatened in that country, and that race, religion, nationality, membership in a particular social group, or political opinion would be at least one central reason for such threat.

; and

(2)

in subparagraph (C), by striking In determining whether an alien has demonstrated that the alien's life or freedom would be threatened for a reason described in subparagraph (A), and inserting For purposes of this paragraph,.

9.

Firm resettlement

Section 208(b)(2)(A)(vi) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(2)(A)(vi)) is amended by striking States. and inserting States, which shall be considered demonstrated by evidence that the alien can live in such country (in any legal status) without fear of persecution..

10.

Termination of Asylum Status Pursuant to Return to Home Country

(a)

In general

Section 208(c) of the Immigration and Nationality Act (8 U.S.C. 1158(c)) is amended by adding at the end the following new paragraph:

(3)

Termination of status pursuant to return to home country

(A)

In general

Except as provided in subparagraphs (B) and (C), any alien who is granted asylum status under this Act, who, absent changed country conditions, subsequently returns to the country of such alien’s nationality or, in the case of an alien having no nationality, returns to any country in which such alien last habitually resided, and who applied for such status because of persecution or a well-founded fear of persecution in that country on account of race, religion, nationality, membership in a particular social group, or political opinion, shall have his or her status terminated.

(B)

Waiver

The Secretary has discretion to waive subparagraph (A) if it is established to the satisfaction of the Secretary that the alien had a compelling reason for the return. The waiver shall be sought prior to departure from the United States or upon return.

.

(b)

Conforming amendment

Section 208(c)(3) of the Immigration and Nationality Act (8 U.S.C. 1158(c)(3)) is amended by inserting after paragraph (2) the following: or (4).

11.

Notice concerning frivolous asylum applications

(a)

In general

Section 208(d)(4) of the Immigration and Nationality Act (8 U.S.C. 1158(d)(4)) is amended—

(1)

in the matter preceding subparagraph (A), by inserting the Secretary of Homeland Security or before the Attorney General;

(2)

in subparagraph (A), by striking and of the consequences, under paragraph (6), of knowingly filing a frivolous application for asylum;

(3)

in subparagraph (B), by striking the period and inserting ; and;

(4)

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

(5)

by inserting after subparagraph (C) the following:

The written warning referred to in subparagraph (C) shall serve as notice to the alien of the consequences of filing a frivolous application.

.

(b)

Conforming amendment

Section 208(d)(6) of the Immigration and Nationality Act (8 U.S.C. 1158(d)(6)) is amended—

(1)

by striking If the Attorney General and inserting (A) In general.—If the Department of Homeland Security or the Attorney General;

(2)

by striking paragraph (4)(A) in subparagraph (A) (as designated in paragraph (1) of this subsection) and inserting paragraph (4)(C); and

(3)

by adding at the end the following:

(B)

Determination

An application may be found frivolous if it is determined—

(i)

to be totally insufficient in substance such that it is clear that the applicant knowingly filed the application without intending to pursue the merits of his or her asylum claim solely—

(I)

to delay removal from the United States;

(II)

to seek employment authorization as an applicant for asylum pursuant to regulations issued pursuant to paragraph (2); or

(III)

for applicants whom have not yet had removal proceedings initiated against them under section 239, to seek issuance of a notice to appear in order to pursue cancellation of removal under section 240A(b); or

(ii)

that any of its material elements is deliberately fabricated.

(C)

Limitation on determination

A determination under subparagraph (B) shall only be made if the decision maker is satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim. 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).

.

12.

Termination of Asylum Status in Removal Proceedings

Section 208(c) of the Immigration and Nationality Act (8 U.S.C. 1158(c)), as amended by this Act, is further amended—

(1)

in paragraph (2)—

(A)

in the matter preceding subparagraph (A), by inserting the Secretary of Homeland Security or before the Attorney General; and

(B)

in subparagraph (C), by striking , pursuant to a bilateral or multilateral agreement,; and

(2)

by adding at the end the following:

(5)

Timing for Consideration of Termination of Asylum Status in Removal Proceedings

If an alien's asylum status is subject to termination under paragraph (2) or (4), the immigration judge shall first determine whether the conditions specified under that paragraph have been met, and if so, terminate the alien’s asylum status before considering whether the alien is eligible for adjustment of status under section 209.

.

13.

Limitation on Eligibility for Asylum Based on Generalized Violence

Section 208(b)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(2)(B)) is amended by adding at the end the following:

(iii)

Limitation on Eligibility Based on Generalized Violence

An alien is not eligible for asylum under this section, or withholding of removal under section 241, based on any of the following circumstances:

(I)

Being, or having been, a member of a criminal gang.

(II)

Participating, or having participated, in the activities of a criminal gang.

(III)

Having been recruited into, or having a fear of being recruited into, membership of, or the activities of, a criminal gang.

(IV)

Having been, or having a fear of being, the victim of a crime committed by a member of a criminal gang, or otherwise having been, or having a fear of being, the victim of a crime in the alien’s home country, unless the main motivating factor for the commission of the crime, or the fear of being the victim of a crime, is related to the alien’s race, religion, national origin, or political opinion.

.

14.

Membership in a particular social group defined

Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the end the following:

(53)

The term membership in a particular social group means membership in a group that is—

(A)

composed of members who share a common immutable characteristic;

(B)

defined with particularity; and

(C)

socially distinct within the society in question.

.

15.

Anti-fraud investigative work product

(a)

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.

(b)

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.

16.

Clarification for conduct of rogue foreign officials

(a)

Asylum applications

Section 208(b)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(2)(B)), as amended by this Act, is further amended by adding at the end the following:

(iv)

Rogue foreign government officials

The burden of proof under paragraph (1)(B) may not be established based on the conduct of rogue foreign government officials acting outside the scope of their official capacity.

.

(b)

Countries to which an alien may be removed

Section 241(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3)) is amended by adding at the end the following:

(C)

Special rule

The burden of proof for relief under this paragraph may not be established based on the conduct of rogue foreign government officials acting outside the scope of their official capacity.

.

17.

Technical amendments

Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) is amended—

(1)

in subsection (a)—

(A)

in paragraph (2)(D), by inserting Secretary of Homeland Security or the before Attorney General; and

(B)

in paragraph (3), by inserting Secretary of Homeland Security or the before Attorney General;

(2)

in subsection (b)(2), by inserting Secretary of Homeland Security or the before Attorney General each place such term appears;

(3)

in subsection (c)—

(A)

in paragraph (1), by striking Attorney General each place such term appears and inserting Secretary of Homeland Security; and

(B)

in paragraph (3), by inserting Secretary of Homeland Security or the before Attorney General; and

(4)

in subsection (d)—

(A)

in paragraph (1), by inserting Secretary of Homeland Security or the before Attorney General each place such term appears;

(B)

in paragraph (2), by striking Attorney General and inserting Secretary of Homeland Security;

(C)

in paragraph (3), by inserting Secretary of Homeland Security or the before Attorney General each place such term appears;

(D)

in paragraph (5)—

(i)

in subparagraph (A), by inserting Secretary of Homeland Security or the before Attorney General; and

(ii)

in subparagraph (B), by inserting Secretary of Homeland Security or the before Attorney General; and

(E)

in paragraph (6), by inserting Secretary of Homeland Security or the before Attorney General each place such term appears.