[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2836 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 2836

To improve the admissions process at airports and other ports of entry, 
   to strengthen criminal sanctions for alien smuggling and related 
criminal activities, and to enhance the investigatory authority of the 
                Immigration and Naturalization Service.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             August 3, 1993

 Mr. Brooks (for himself and Mr. Mazzoli) (both by request) introduced 
    the following bill; which was referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
To improve the admissions process at airports and other ports of entry, 
   to strengthen criminal sanctions for alien smuggling and related 
criminal activities, and to enhance the investigatory authority of the 
                Immigration and Naturalization Service.

    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 ``Expedited Exclusion and Alien 
Smuggling Enhanced Penalties Act of 1993''.

SEC. 2. RESTRICTIONS ON ADMISSIONS FRAUD.

    (a) Exclusion for Fraudulent Documents or Failure To Present 
Documents.--Section 212(a)(6)(C) of the Immigration and Nationality Act 
(8 U.S.C. 1182(a)(6)(C)) is amended)--
            (1) by striking out ``(C) Misrepresentation'' and inserting 
        in lieu thereof the following:
                    ``(C) Fraud, misrepresentation, and failure to 
                present documents''; and
            (2) by adding at the end the following new clause:
                            ``(iii) Fraud, misrepresentation, and 
                        failure to present documents:
                                    ``(I) Any alien who, in seeking 
                                entry to the United States or boarding 
                                a common carrier for the purpose of 
                                coming to the United States presents 
                                any document which, in the 
                                determination of the immigration 
                                officer, is forged, counterfeit, 
                                altered, falsely made, stolen, or 
                                inapplicable to the person presenting 
                                the document, or otherwise contains a 
                                misrepresentation of a material fact, 
                                is excludable.
                                    ``(II) Any alien who is required to 
                                present a document relating to the 
                                alien's eligibility to enter the United 
                                States prior to boarding a common 
                                carrier for the purpose of coming to 
                                the United States and who fails to 
                                present such document to an immigration 
                                officer upon arrival at a port of entry 
                                into the United States is 
                                excludable.''.
    (b) Provision for Asylum and Other Discretionary Relief.
            (1) Section 208 of the Immigration and Nationality Act (8 
        U.S.C. 1158) is amended by adding at the end the following new 
        subsection:
    ``(e)(1) Notwithstanding subsection (a), any alien who, in seeking 
entry to the United States or boarding a common carrier for the purpose 
of coming to the United States, presents any document which, in the 
determination of the immigration officer, is fraudulent, forged, 
stolen, or inapplicable to the person presenting the document, or 
otherwise contains a misrepresentation of a material fact, may not 
apply for or be granted asylum, unless presentation of the document was 
pursuant to direct departure from a country in which the alien has a 
credible fear of persecution or of return to persecution.
    ``(2) Notwithstanding subsection (a), an alien who boards a common 
carrier for the purpose of coming to the United States through the 
presentation of any document which relates or purports to relate to the 
alien's eligibility to enter the United States, and who fails to 
present such document to an immigration officer upon arrival at a port 
of entry into the United States, may not apply for or be granted 
asylum, unless presentation of such document was pursuant to direct 
departure from a country in which the alien has a credible fear of 
persecution or of return to persecution.
    ``(3) Notwithstanding subsection (a), an alien described in section 
235(d)(3) may not apply for or be granted asylum, unless the person 
departed directly from a country in which the alien has a credible fear 
of persecution or of return to persecution.
    ``(4) Notwithstanding paragraphs (1), (2), and (3), the Attorney 
General may, in the Attorney General's sole discretion, permit an alien 
described in paragraphs (1), (2), or (3) to apply for asylum.
    ``(5)(A) When an immigration officer has determined that an alien 
has sought entry under either of the circumstances described in 
paragraphs (1) or (2) or is an alien described in section 235(d)(3) and 
the alien has indicated a desire to apply for asylum, the immigration 
officer shall refer the matter to an asylum officer who shall interview 
the alien to determine whether presentation of the document was 
pursuant to direct departure from a country in which the alien has a 
credible fear of persecution or of return to persecution, or, in the 
case of an alien described in section 235(d)(3), whether the alien had 
directly departed from such a country.
    ``(B) If the officer determines that the alien does not have a 
credible fear of persecution or of return to persecution in the country 
in which the alien was last present prior to attempting entry into the 
United States or arriving in the United States or a port of entry under 
the circumstances described in section 235(d)(3), the alien may be 
specially excluded and deported in accordance with section 235(e).
    ``(C) The Attorney General shall provide by regulation for the 
prompt review of a determination under subparagraph (B) that an alien 
does not have a credible fear of persecution or of return to 
persecution in the country in which the alien was last present. Such 
review shall be by an officer who shall possess qualifications at least 
equivalent to those of an asylum officer, who shall be employed by an 
agency or division independent of the Service, and who shall have 
discretion to review any aspect of the initial determination. The 
Attorney General shall provide for such special training for reviewing 
officers as the Attorney General may deem necessary.
    ``(D) The Attorney General shall provide information concerning the 
credible fear determination process described in this paragraph to 
persons who may be eligible for that process under the provisions of 
this subsection. An alien who is eligible for a credible fear 
determination pursuant to subparagraph (A) may consult with a person or 
persons of his or her choosing prior to the credible fear determination 
process or any review thereof, according to regulations prescribed by 
the Attorney General. Such consultation shall be at no expense to the 
Government and shall not delay the process.
    ``(6) As used in this section, the term `credible fear of 
persecution or of return to persecution' means that there is a 
substantial likelihood--
            ``(A) that the statements made by the alien in support of 
        his or her claim are true; and
            ``(B) in light of such statements and country conditions,
                    ``(i) that the alien could establish eligibility as 
                a refugee within the meaning of section 101(a)(42)(A); 
                or
                    ``(ii) that the alien could be returned, without 
                access to a full and fair procedure for refugee status 
                determination, to a country with respect to which there 
                is a substantial likelihood that he or she could 
                establish eligibility as a refugee within the meaning 
                of section 101(a)(42)(A).
    ``(7) As used in this subsection, the term `asylum officer' means a 
person who--
            ``(A) has had extensive professional training in country 
        conditions, asylum law, and interview techniques;
            ``(B) has been employed for at least one year in a position 
        the primary responsibility of which is the adjudication of 
        asylum claims or who has substantially equivalent experience; 
        and
            ``(C) is supervised by an officer who meets conditions (A) 
        and (B) above.''.
            (2) Section 235 of the Immigration and Nationality Act (8 
        U.S.C. 1225) is amended by adding at the end the following new 
        subsection:
    ``(d)(1) Subject to paragraph (2), any alien who has not been 
admitted to the United States, and who is excludable under section 
212(a)(6)(C)(iii), or who is an alien described in paragraph (3), is 
ineligible for withholding of deportation pursuant to section 243(h), 
and may not apply therefor or for any other relief under this Act, 
except that an alien found to have a credible fear of persecution or of 
return to persecution in accordance with section 208(e) shall be taken 
before a special inquiry officer for exclusion proceedings in 
accordance with section 236 and may apply for asylum, withholding of 
deportation, or both in the course of such proceedings.
    ``(2) An alien described in paragraph (1) who has been found 
ineligible to apply for asylum under section 208(e) may be returned 
under the provisions of this section only to a country in which he or 
she has no credible fear of persecution or of return to persecution. If 
there is no country to which the alien can be returned in accordance 
with the provisions of this paragraph, the alien shall be taken before 
a special inquiry officer for exclusion proceedings in accordance with 
section 236 and may apply for asylum, withholding of deportation, or 
both in the course of such proceedings.
    ``(3) Any alien who is excludable under section 212(a), and who has 
been brought or escorted under the authority of the United States: (a) 
into the United States, having been on board a vessel encountered 
seaward of the territorial sea by officers of the United States, or (b) 
to a port of entry, having been on board a vessel encountered within 
the territorial sea or internal waters of the United States, shall 
either be detained on board the vessel on which such person arrived or 
in such facilities as are designated by the Attorney General or paroled 
in the discretion of the Attorney General pursuant to section 212(d)(5) 
pending accomplishment of the purpose for which the person was brought 
or escorted into the United States or to the port of entry: Provided, 
however, That no alien shall be detained on board a public vessel of 
the United States without the concurrence of the Secretary of the 
Department under whose authority the vessel is operating.''.
            (3) Section 237(a) of the Immigration and Nationality Act 
        (8 U.S.C. 1227(a)) is amended--
                    (A) in the second sentence of paragraph (1) by 
                striking out ``Deportation'' and inserting in lieu 
                thereof ``Subject to section 235(d)(2), deportation''; 
                and
                    (B) in the first sentence of paragraph (2) by 
                striking out ``If'' and inserting in lieu thereof 
                ``Subject to section 235(d)(2), if''.

SEC. 3. SPECIAL PORT OF ENTRY EXCLUSION FOR ADMISSIONS FRAUD.

    Section 235 of the Immigration and Nationality Act (8 U.S.C. 1225) 
is amended by adding after subsection (d) the following new subsection:
    ``(e)(1) Subject to paragraph (d)(2), any alien (including an alien 
crewman) who--
            ``(A) may appear to the examining immigration officer or to 
        the special inquiry officer during the examination before 
        either of such officers to be excludable under section 
        212(a)(6)(C)(iii) of the Immigration and Nationality Act may be 
        ordered specially excluded and deported by the Attorney 
        General, either by a special inquiry officer or otherwise.
            ``(B) was brought to the United States pursuant to 
        subsection (d)(3) and who may appear to an examining 
        immigration officer to be excludable may be ordered specially 
        excluded and deported by the Attorney General without any 
        further inquiry, either by a special inquiry officer or 
        otherwise.
    ``(2) Such special exclusion order is not subject to administrative 
appeal, except that the Attorney General shall provide by regulation 
for prompt review of such an order against an applicant who claims to 
have been lawfully admitted for permanent residence. A special 
exclusion order entered in accordance with the provisions of this 
subsection shall have the same effect as if the alien had been ordered 
excluded and deported pursuant to section 236, except that judicial 
review of such an order shall be available only under section 106.
    ``(3) Nothing in this subsection shall be regarded as requiring an 
inquiry before a special inquiry officer in the case of an alien 
crewman.''.

SEC. 4. JUDICIAL REVIEW.

    (a) Section 106 of the Immigration and Nationality Act (8 U.S.C. 
1105a) is amended by changing the heading to read ``judicial review of 
orders of deportation and exclusion, and special exclusion'', and by 
adding at the end the following new subsection:
    ``(d)(1) Notwithstanding any other provision of law, and except as 
provided in this subsection, no court shall have jurisdiction to review 
any individual determination, or to entertain any other cause or claim, 
arising from or relating to the implementation or operation of the 
special exclusion provisions contained in sections 208(e), 
212(a)(6)(C)(iii), 235(d), and 235(e). Regardless of the nature of the 
action or claim, or the party or parties bringing the action, no court 
shall have jurisdiction or authority to enter declaratory, injunctive, 
or other equitable relief not specifically authorized in this 
subsection, nor to certify a class under Rule 23 of the Federal Rules 
of Civil Procedure.
    ``(2) Judicial review of any cause, claim, or individual 
determination covered under paragraph (d)(1) shall only be available in 
habeas corpus proceedings, and shall be limited to determinations of: 
(i) whether the petitioner is an alien, if the petitioner makes a 
showing that his or her claim of United States nationality is not 
frivolous; (ii) whether the petitioner was ordered specially excluded; 
and (iii) whether the petitioner can prove by a preponderance of the 
evidence that he or she is an alien lawfully admitted for permanent 
residence and is entitled to such further inquiry as is prescribed by 
the Attorney General pursuant to section 235(e)(2).
    ``(3) In any case where the court determines that an alien was not 
ordered specially excluded, or was not properly subject to special 
exclusion under the regulations adopted by the Attorney General, the 
court may order no relief beyond requiring that the alien receive a 
hearing in accordance with section 236, or a determination in 
accordance with section 235(c) or 273(d). Any alien excludable under 
section 212(a)(6)(C)(iii) who receives a hearing under section 236, 
whether by order of court or otherwise, may thereafter obtain judicial 
review of any resulting final order of exclusion pursuant to subsection 
(b).
    ``(4) In determining whether an alien has been ordered specially 
excluded, the court's inquiry shall be limited to whether such an order 
was in fact issued and whether it relates to the petitioner. There 
shall be no review of whether the alien is actually excludable under 
section 212(a)(6)(C)(iii) or entitled to any relief from exclusion.''.
    (b) Section 235 of the Immigration and Nationality Act (8 U.S.C. 
1225) is amended by adding after subsection (e) the following new 
subsection:
    ``(f) In any action brought for the assessment of penalties for 
improper entry or re-entry of an alien under sections 275 and 276 of 
the Immigration and Nationality Act, no court shall have jurisdiction 
to hear claims collaterally attacking the validity of orders of 
exclusion, special exclusion, or deportation entered under sections 
235, 236, and 242 of the Immigration and Nationality Act.''.

SEC. 5. IMMIGRATION INSPECTION FEE INCREASE.

    (a) Section 286(d) of the Immigration and Nationality Act (8 U.S.C. 
1356) is amended--
            (1) by striking out ``$5'' and inserting in lieu thereof 
        ``$6''; and
            (2) by adding at the end of the subsection ``Provided, That 
        this subsection shall not apply to the inspection at designated 
        ports of entry of passengers arriving by international ferries 
        or vessels on the Great Lakes and connecting waterways, when 
        operating on regular schedules.''.
    (b) Section 286(e) of the Immigration and Nationality Act (8 U.S.C. 
1356) is amended by striking out paragraph (1) and ``(2)''.

SEC. 6. ENHANCED PENALTIES FOR CERTAIN ALIEN SMUGGLING.

    (a) Section 274(a)(1) of the Immigration and Nationality Act (8 
U.S.C. 1324(a)(1)) is amended by striking out ``shall be fined in 
accordance with title 18, or imprisoned not more than five years, or 
both, for each alien in respect to whom any violation of this paragraph 
occurs'' and inserting in lieu thereof ``shall, for each alien in 
respect to whom any violation of this paragraph occurs, be fined in 
accordance with title 18 or (i) in the case of a violation of 
subparagraph (A), imprisoned for not more than ten years, or both, and 
(ii) in the case of a violation of subparagraphs (B), (C), or (D), 
imprisoned for not more than five years, or both: Provided, That if 
during and in relation to the offense the person causes serious bodily 
injury (as defined in section 1365 of title 18) to, or places in 
jeopardy the life of, any alien, such person shall be fined in 
accordance with title 18, or imprisoned not more than twenty years, or 
both, and if the death of any alien results, shall be imprisoned for 
any term of years up to life.''.
    (b) Section 274(a)(2) of the Immigration and Nationality Act (8 
U.S.C. 1324(a)(2)) is amended by striking out ``or imprisoned not more 
than five years, or both'' and inserting in lieu thereof ``or, in the 
case of a violation of subparagraph (B)(ii), imprisoned not more than 
ten years, or both; and, in the case of a violation of subparagraph 
(B)(i) or (B)(iii), imprisoned not more than five years, or both.''.
    (c) Section 1324 of title 8 of the United States Code is amended by 
adding at the end the following new subsection:
    ``(d) Conspiracy.--Whoever conspires to commit any offense defined 
in this section shall be subject to the same penalties as those 
prescribed for the offense the commission of which was the object of 
the conspiracy.''.

SEC. 7. SENTENCING GUIDELINES.

    The United States Sentencing Commission shall promptly promulgate, 
pursuant to 28 United States Code 994, amendments to the sentencing 
guidelines to make appropriate increases in the base offense level for 
offenses under section 274 of the Immigration and Nationality Act to 
reflect the increases in maximum penalties for such offenses in section 
6 of this Act.

SEC. 8. EXPANSION OF FORFEITURE PROVISIONS.

    Section 274(b) of the Immigration and Nationality Act of 1952, as 
amended (8 U.S.C. 1324(b)) is amended--
    (a) by amending paragraph (1) to read:
    ``(b) Seizure and Forfeiture.--(1) The following property shall be 
subject to seizure and forfeiture: (i) any conveyance, including any 
vessel, vehicle, or aircraft, which has been or is being used in the 
commission of a violation of subsection (a); (ii) any property, real or 
personal, (A) which constitutes, or is derived from or traceable to the 
proceeds obtained directly or indirectly from the commission of a 
violation of subsection (a), or (B) which is used to facilitate, or is 
intended to be so used in the commission of, a violation of 
subparagraph (a)(1)(A), except that--
            ``(A) no property used by any person as a common carrier in 
        the transaction of business as a common carrier shall be 
        forfeited under this section, unless the owner or other person 
        with lawful custody of the property was a consenting party to 
        or privy to the violation of subsection (a) or of sections 
        274A(a)(1) or 274A(a)(2);
            ``(B) no property shall be forfeited under the provisions 
        of this section by reason of any act or omission established by 
        the owner to have been committed or omitted by a person other 
        than the owner while the property was unlawfully in the 
        possession of a person other than the owner in violation of the 
        criminal laws of the United States, or of any State; and
            ``(C) no property shall be forfeited under the provisions 
        of this section to the extent of an interest of the owner, by 
        reason of any act or omission established by the owner to have 
        been committed or omitted without the knowledge, consent, or 
        willful blindness of the owner unless the act or omission was 
        committed or omitted by an employee or agent of the owner or 
        other person with lawful custody of the property, with the 
        intent of furthering the business interests of, or to confer 
        any other benefit upon, the owner or other person with lawful 
        custody of the property.'';
    (b) in paragraph (2)--
            (1) by striking out ``conveyance'' both places it appears 
        and inserting in lieu thereof ``property''; and
            (2) by striking out ``is being used in'' and inserting in 
        lieu thereof ``is being used in, is facilitating, has 
        facilitated, is facilitating or was intended to facilitate''; 
        and
    (c) in paragraphs (4) and (5) by striking out ``a conveyance'' and 
``conveyance'' each place the phrase or word appears and inserting in 
lieu thereof ``property''.

SEC. 9. WIRETAP AUTHORITY FOR ALIEN SMUGGLING INVESTIGATIONS.

    Section 2516(1) of title 18, United State Code, is amended--
            (a) in paragraph (c) by inserting after ``weapons),'' the 
        following: ``or a felony violation of section 1028 (relating to 
        production of false identification documentation), section 1542 
        (relating to false statements in passport applications), 
        section 1546 (relating to fraud and misuse of visas, permits, 
        and other documents),'';
            (b) by striking out ``or'' after paragraph (l) and 
        redesignating paragraphs (m), (n), and (o) as paragraphs (n), 
        (o), and (p), respectively; and
            (c) by inserting after paragraph (l) the following new 
        paragraph:
    ``(m) a violation of section 274 of the Immigration and Nationality 
Act (8 U.S.C. 1324) (relating to alien smuggling), of section 277 of 
the Immigration and Nationality Act (8 U.S.C. 1327) (relating to the 
smuggling of aliens convicted of aggravated felonies or of aliens 
subject to exclusion on grounds of national security), or of section 
278 of the Immigration and Nationality Act (8 U.S.C. 1328) (relating to 
smuggling of aliens for the purpose of prostitution or other immoral 
purpose);''.

SEC. 10. RACKETEERING INFLUENCED AND CORRUPT ORGANIZATIONS ENFORCEMENT 
              AUTHORITY.

    Section 1961(1) of title 18, United States Code, is amended by 
striking out ``or'' before ``(E) any act'' and adding after ``Currency 
and Foreign Transactions Reporting Act'' the following: ``, or (F) any 
act which is indictable under title 8, United States Code, section 
1324(a)(1) (dealing with prohibitions on bringing in and harboring 
certain aliens)''.

SEC. 11. INTERNATIONAL TERRORISM AWARDS.

    Section 524(c)(1)(B) of title 28, United States Code, is amended by 
inserting ``, or relating to international terrorism as authorized by 
sections 3071 and 3072 of title 18'' at the end thereof.

SEC. 12. EFFECTIVE DATE.

    These amendments shall be effective upon enactment or October 1, 
1993, whichever occurs later, and shall apply to aliens who arrive in 
or seek admission to the United States on or after such date. 
Notwithstanding any other provision of law, the Attorney General may 
issue interim final regulations to implement the provisions of these 
amendments at any time on or after their effective date, which 
regulations may become effective upon publication without prior notice 
or opportunity for public comment.

                                 <all>

HR 2836 IH----2