skip to main content

S. 884: Stopping Border Surges Act


The text of the bill below is as of Mar 22, 2021 (Introduced).


II

117th CONGRESS

1st Session

S. 884

IN THE SENATE OF THE UNITED STATES

March 22, 2021

(for himself, Mrs. Blackburn, Mr. Tuberville, and Ms. Ernst) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To close loopholes in the immigration laws that serve as incentives to aliens to attempt to enter the United States unlawfully, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Stopping Border Surges Act.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Title I—Unaccompanied Alien Children

Sec. 101. Repatriation of unaccompanied alien children.

Sec. 102. Clarification of standards for family detention.

Sec. 103. Special immigrant juvenile status for immigrants unable to reunite with either parent.

Title II—Asylum Reform

Sec. 201. Credible fear interviews.

Sec. 202. Jurisdiction of asylum applications.

Sec. 203. Recording expedited removal and credible fear interviews.

Sec. 204. Safe third country.

Sec. 205. Renunciation of asylum status pursuant to return to home country.

Sec. 206. Notice concerning frivolous asylum applications.

Sec. 207. Anti-fraud investigative work product.

Sec. 208. Clarification of asylum eligibility.

Sec. 209. Application timing.

Sec. 210. Clarification of burden of proof.

Sec. 211. Additional exception.

Sec. 212. Clarification regarding employment eligibility.

Sec. 213. Penalties for asylum fraud.

Sec. 214. Statute of limitations for asylum fraud.

Sec. 215. Technical amendments.

I

Unaccompanied Alien Children

101.

Repatriation of unaccompanied alien children

(a)

In general

Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is amended—

(1)

in subsection (a)—

(A)

in paragraph (2)—

(i)

by amending the heading to read as follows: Rules for unaccompanied alien children.—;

(ii)

in subparagraph (A)—

(I)

in the matter preceding clause (i), by striking who is a national or habitual resident of a country that is contiguous with the United States;

(II)

in clause (i), by inserting and at the end;

(III)

in clause (ii), by striking ; and and inserting a period; and

(IV)

by striking clause (iii);

(iii)

in subparagraph (B)—

(I)

in the matter preceding clause (i), by striking (8 U.S.C. 1101 et seq.) may— and inserting (8 U.S.C. 1101 et seq.)—;

(II)

in clause (i), by inserting before permit such child to withdraw the following: may; and

(III)

in clause (ii), by inserting before return such child the following: shall; and

(iv)

in subparagraph (C)—

(I)

by amending the heading to read as follows: Agreements with foreign countries.—; and

(II)

in the matter preceding clause (i), by striking The Secretary of State shall negotiate agreements between the United States and countries contiguous to the United States and inserting The Secretary of State may negotiate agreements between the United States and any foreign country that the Secretary determines appropriate;

(B)

by redesignating paragraphs (3) through (5) as paragraphs (4) through (6), respectively, and inserting after paragraph (2) the following:

(3)

Special rules for interviewing unaccompanied alien children

An unaccompanied alien child shall be interviewed by an immigration officer with specialized training in interviewing child trafficking victims.

; and

(C)

in paragraph (6)(D) (as so redesignated)—

(i)

in the matter preceding clause (i), by striking , except for an unaccompanied alien child from a contiguous country subject to exceptions under subsection (a)(2), and inserting who does not meet the criteria listed in paragraph (2)(A); and

(ii)

in clause (i), by inserting before the semicolon at the end the following: , which shall include a hearing before an immigration judge not later than 14 days after being screened under paragraph (4);

(2)

in subsection (b)—

(A)

in paragraph (2)—

(i)

in subparagraph (A), by inserting before the semicolon the following: believed not to meet the criteria listed in subsection (a)(2)(A); and

(ii)

in subparagraph (B), by inserting before the period the following: and does not meet the criteria listed in subsection (a)(2)(A); and

(B)

in paragraph (3), by striking an unaccompanied alien child in custody shall and all that follows, and inserting the following:

an unaccompanied alien child in custody—

(A)

in the case of a child who does not meet the criteria listed in subsection (a)(2)(A), shall transfer the custody of such child to the Secretary of Health and Human Services not later than 30 days after determining that such child is an unaccompanied alien child who does not meet such criteria; or

(B)

in the case of child who meets the criteria listed in subsection (a)(2)(A), may transfer the custody of such child to the Secretary of Health and Human Services after determining that such child is an unaccompanied alien child who meets such criteria.

; and

(3)

in subsection (c)—

(A)

in paragraph (3), by inserting at the end the following:

(D)

Information about individuals with whom children are placed

(i)

Information to be provided to Homeland Security

Before placing a child with an individual, the Secretary of Health and Human Services shall provide to the Secretary of Homeland Security, regarding the individual with whom the child will be placed, the following information:

(I)

The name of the individual.

(II)

The social security number of the individual, if available.

(III)

The date of birth of the individual.

(IV)

The location of the individual’s residence where the child will be placed.

(V)

The immigration status of the individual, if known.

(VI)

Contact information for the individual.

(ii)

Special rule

In the case of a child who was apprehended on or after the effective date of this clause, and before the date of the enactment of this subparagraph, who the Secretary of Health and Human Services placed with an individual, the Secretary shall provide the information listed in clause (i) to the Secretary of Homeland Security not later than 90 days after such date of enactment.

; and

(B)

in paragraph (5)—

(i)

by inserting after to the greatest extent practicable the following: (at no expense to the Government); and

(ii)

by striking have counsel to represent them and inserting have access to counsel to represent them.

(b)

Effective date

The amendments made by this section shall apply to any unaccompanied alien child apprehended on or after the date of enactment.

102.

Clarification of standards for family detention

(a)

In general

Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is amended by adding at the end the following:

(j)

Construction

(1)

In general

Notwithstanding any other provision of law, judicial determination, consent decree, or settlement agreement, the detention of any alien child who is not an unaccompanied alien child shall be governed by sections 217, 235, 236, and 241 of the Immigration and Nationality Act (8 U.S.C. 1187, 1225, 1226, and 1231). There is no presumption that an alien child who is not an unaccompanied alien child should not be detained, and all such determinations shall be in the discretion of the Secretary of Homeland Security.

(2)

Release of minors other than unaccompanied aliens

In no circumstances shall an alien minor who is not an unaccompanied alien child be released by the Secretary of Homeland Security other than to a parent or legal guardian, who is lawfully present in the United States.

(3)

Family detention

The Secretary of Homeland Security shall—

(A)

maintain the care and custody of an alien, during the period during which the charges described in clause (i) are pending, who—

(i)

is charged only with a misdemeanor offense under section 275(a) of the Immigration and Nationality Act (8 U.S.C. 1325(a)); and

(ii)

entered the United States with the alien’s child who has not attained 18 years of age; and

(B)

detain the alien with the alien’s child.

.

(b)

Sense of Congress

It is the sense of Congress that the amendments in this section to section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) are intended to satisfy the requirements of the Settlement Agreement in Flores v. Meese, No. 85–4544 (C.D. Cal) as approved by the court on January 28, 1997, with respect to its interpretation in Flores v. Johnson, 212 F. Supp. 3d 864 (C.D. Cal. 2015), that the agreement applies to accompanied minors.

(c)

Effective date

The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to all actions that occur before, on, or after the date of the enactment of this Act.

(d)

Preemption of State licensing requirements

Notwithstanding any other provision of law, judicial determination, consent decree, or settlement agreement, no State may require that an immigration detention facility used to detain children who have not attained 18 years of age, or families consisting of one or more of such children and the parents or legal guardians of such children, that is located in that State, be licensed by the State or any political subdivision thereof.

103.

Special immigrant juvenile status for immigrants unable to reunite with either parent

Section 101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)) is amended—

(1)

in clause (i), by striking , and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; and

(2)

in clause (iii)—

(A)

by striking and at the end of subclause (I);

(B)

by inserting and at the end of subclause (II); and

(C)

by adding at the end the following:

(III)

an alien may not be granted special immigrant juvenile status under this subparagraph if his or her reunification with any one parent or legal guardian is not precluded by abuse, neglect, abandonment, or any similar cause under State law;

.

II

Asylum Reform

201.

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..

202.

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).

203.

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)

Credible fear interview checklists

The Secretary of Homeland Security shall provide a checklist of standard questions and concepts to be addressed in all interviews under section 235(b) to immigration officers exercising decision-making authority in such interviews. Such checklists shall be routinely updated to include relevant changes to law and procedures and shall, at a minimum, require that all immigration officers utilizing such checklists provide concise justifications of their decision regardless of whether credible fear was or was not established.

(c)

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.

(d)

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.

(e)

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.

(f)

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.

204.

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 if the Attorney General determines and inserting if the Attorney General or the Secretary of Homeland Security determines—;

(2)

by striking that the alien may be removed and inserting:

(i)

that the alien may be removed

;

(3)

by striking removed, pursuant to a bilateral or multilateral agreement, to and inserting removed to;

(4)

by inserting , on a case by case basis, before finds that;

(5)

by striking the period at the end and inserting ; or; and

(6)

by adding at the end the following:

(ii)

that the alien entered, attempted to enter, or arrived in the United States after transiting through at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence en route to the United States, unless—

(I)

the alien demonstrates that he or she applied for protection from persecution or torture in at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States, and the alien received a final judgement denying the alien protection in each country;

(II)

the alien demonstrates that he or she was a victim of a severe form of trafficking in which a commercial sex act was induced by force, fraud, or coercion, or in which the person induced to perform such act was under the age of 18 years; or in which the trafficking included the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery, and was unable to apply for protection from persecution in all countries that alien transited en route to the United States as a result of such severe form of trafficking; or

(III)

the only countries through which the alien transited en route to the United States were, at the time of the transit, not parties to the 1951 United Nations Convention relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

.

205.

Renunciation 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:

(4)

Renunciation of status pursuant to return to home country

(A)

In general

Except as provided in subparagraph (B), 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 may 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).

206.

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; and and inserting a semicolon;

(3)

in subparagraph (B), by striking the period and inserting ; and; 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 serving as notice to the alien of the consequence 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 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.

.

207.

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.

208.

Clarification of asylum eligibility

(a)

In general

Section 208(b)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(1)(A)) is amended by inserting after section 101(a)(42)(A) the following: and is eligible to apply for asylum under subsection (a).

(b)

Place of arrival

Section 208(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1158(a)(1)) is amended—

(1)

by striking or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters),; and

(2)

by inserting after United States the following: and has arrived in the United States at a port of entry,.

209.

Application timing

Section 208(a)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1158(a)(2)(B)) is amended by striking 1 year and inserting 6 months.

210.

Clarification of burden of proof

Section 208(b)(1)(B)(i) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(1)(B)(i)) is amended by striking at least one and inserting the.

211.

Additional exception

Section 208(b)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(2)(A)) is amended—

(1)

in clause (v), by striking or at the end;

(2)

in clause (vi), by striking the period and inserting ; or; and

(3)

by adding at the end the following:

(vii)

there are reasonable grounds for concluding the alien could avoid persecution by relocating to another part of the alien’s country of nationality or, if stateless, another part of the alien’s country of last habitual residence.

.

212.

Clarification regarding employment eligibility

Section 208(d)(2) of the Immigration and Nationality Act (8 U.S.C. 1158(d)(2)) is amended—

(1)

by striking 180 days and inserting 1 year; and

(2)

by inserting and the authorization shall expire 6 months after the date of issuance before the period at the end.

213.

Penalties for asylum fraud

Section 1001 of title 18, United States Code, is amended by inserting at the end of the paragraph—

(d)

Whoever, in any matter before the Secretary of Homeland Security or the Attorney General pertaining to asylum under section 208 of the Immigration and Nationality Act or withholding of removal under section 241(b)(3) of such Act, knowingly and willfully—

(1)

makes any materially false, fictitious, or fraudulent statement or representation; or

(2)

makes or uses any false writings or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry,

shall be fined under this title or imprisoned not more than 10 years, or both.

.

214.

Statute of limitations for asylum fraud

Section 3291 of title 18, United States Code, is amended—

(1)

by striking 1544, and inserting 1544, and section 1546,; and

(2)

by striking offense. and inserting offense or within 10 years after the fraud is discovered..

215.

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;

(B)

in paragraph (2), in the matter preceding subparagraph (A), by inserting Secretary of Homeland Security or the before Attorney General; and

(C)

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; and

(C)

in paragraph (5)—

(i)

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

(ii)

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