[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 1940 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                S. 1940

  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

                           November 17, 1999

 Mr. Leahy (for himself, Mr. Brownback, Mr. Feingold, Mr. Kennedy, Mr. 
Kerry, Mr. Jeffords, and Mr. Lautenberg) 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 1999''.
    (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.

 SEC. 2. CONGRESSIONAL FINDINGS AND PURPOSE.

    (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 American people.
            (3) The United States has a history of generosity to 
        persons fleeing persecution, which has served as an inspiring 
        example to other nations developing refugee policy, even though 
        only a tiny fraction of the world's oppressed actually seek 
        refuge on American shores.
            (4) Conversely, when the United States has restricted 
        protection for refugees, other nations have followed that lead.
            (5) Current law fails to ensure that those who arrive in 
        the United States fleeing persecution have a fair and adequate 
        opportunity to present claims for protection.
    (b) Purpose.--The purpose of this Act is 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 due process in the United States asylum system.

 SEC. 3. 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 
                        where 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.
                            ``(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 such aliens.
                            ``(iii) Determinations by the attorney 
                        general.--The determination of whether there 
                        exists an extraordinary migration situation 
                        within the meaning of this paragraph is 
                        committed to the sole and exclusive discretion 
                        of the Attorney General. Before making such 
                        determination, the Attorney General shall 
                        consider whether the source of the 
                        extraordinary migration flow is a country that 
                        meets the criteria of subparagraph (G).
                            ``(iv) Effective period of 
                        determinations.--A determination by the 
                        Attorney General under this subparagraph that 
                        an extraordinary migration situation exists 
                        shall be effective for a period not to exceed 
                        90 days, unless, within such 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 such 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 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 such 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 (B).
                                    ``(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 for Aliens Fleeing 
Countries With Poor Human Rights Records.--Section 235(b)(1)(G) (as 
redesignated by subsection (a)) is amended to read as follows:
                    ``(G) Exceptions.--Subparagraph (B) shall not apply 
                to an alien if--
                            ``(i) the alien has fled from a country 
                        with respect to which the Attorney General, in 
                        consultation with the Assistant Secretary of 
                        State for Democracy, Human Rights and Labor, 
                        has determined that the government (or a group 
                        within the country that the government is 
                        unable or unwilling to control)--
                                    ``(I) engages in torture or other 
                                cruel, inhuman, or degrading treatment 
                                or punishment;
                                    ``(II) engages in prolonged 
                                arbitrary detention without charges or 
                                trial;
                                    ``(III) engages in abduction, 
                                forced disappearance, or clandestine 
                                detention;
                                    ``(IV) engages in systematic 
                                persecution; or
                                    ``(V) where an ongoing armed 
                                conflict or other extraordinary 
                                conditions would pose a serious threat 
                                to the alien's safety;
                            ``(ii) the alien 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
                            ``(iii) the alien 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. Such 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, to the 
                                maximum extent practicable within 7 
                                days after the date of determination 
                                under subclause (I).''.
    (e) Reform of Credible Fear Standard To Decrease the Likelihood of 
Error.--Section 235(b)(1)(C)(v) (as redesignated by subsection (a)) is 
amended to read as follows:
                            ``(v) Credible fear of persecution 
                        defined.--For purposes of this paragraph, the 
                        term `credible fear of persecution' means that, 
                        taking into account the credibility of the 
                        statements made by the alien in support of the 
                        alien's claim and such other facts in support 
                        of the alien's claim as are known to the 
                        officer, the alien's claim of eligibility for 
                        asylum under section 208 is not clearly 
                        fraudulent and is related to the criteria for 
                        granting asylum.''.
    (f) Clarification of Attorney General's Discretion To Detain Asylum 
Seekers.--Section 235(b)(1)(B) (as redesignated by subsection (a)) is 
amended--
            (1) in clause (ii), by striking ``shall'' and inserting 
        ``may, in the Attorney General's discretion,''; and
            (2) in clause (iii)(IV), by striking ``shall'' and 
        inserting ``may, in the Attorney General's discretion,''.
    (g) 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), by striking the parenthetical in 
        paragraph (1);
            (2) in subsection (a)(2)--
                    (A) by striking subparagraph (A); and
                    (B) by redesignating subparagraphs (B) and (C) as 
                subparagraphs (A) and (B), respectively;
            (3) in subsection (b)--
                    (A) by striking ``manifestly'' in paragraph (4)(D); 
                and
                    (B) by striking ``and'' in paragraph (4)(D) and 
                inserting ``or''; and
            (4) by striking subsection (e).
    (h) Conforming Amendments.--
            (1) Conduct of interviews by asylum officers.--Section 
        235(b)(1)(C)(i) (as so redesignated) 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 so redesignated) 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)''.
            (4) Heading correction.--The heading of subclause IV of 
        section 235(b)(1)(C)(iii), as redesignated by section 3(a)(1) 
        of this Act, is amended by striking ``Mandatory detention'' and 
        inserting ``Detention''.

SEC. 4. ADDITIONAL REFORMS TO ENSURE A FAIR AND ADEQUATE OPPORTUNITY 
              FOR REFUGEES TO PRESENT CLAIMS FOR PROTECTION.

    (a) ``Good Cause'' Exception to the Time Limitation for Applying 
for Asylum.--Section 208(a)(2)(B) (8 U.S.C. 1158(a)(2)(B)) is amended 
by inserting before the period at the end the following: ``or the alien 
demonstrates, by a preponderance of the evidence, good cause for filing 
after the expiration of the period specified in this subparagraph.''.
    (b) Allowing Reapplication Where Justified by Good Cause or the 
Interest of Justice.--Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is 
amended--
            (1) in subparagraph (C), by inserting before the period at 
        the end the following: ``unless the alien demonstrates good 
        cause for filing another application for asylum''; and
            (2) in subparagraph (D), by inserting before the period at 
        the end the following: ``or of other circumstances in which 
        consideration of the claim would clearly be in the interest of 
        justice''.
    (c) Clarification Regarding Frivolous Applications for Asylum.--
Section 208(d)(6) (8 U.S.C. 1158(d)(6)) is amended--
            (1) by adding at the end the following: ``An application 
        for asylum is frivolous if the application as a whole is 
        clearly fraudulent or is made with knowledge that the 
        application as a whole is not related to the criteria for 
        granting refugee status.'';
            (2) by striking ``permanently'';
            (3) by inserting ``for five years'' after ``chapter''; and
            (4) by inserting ``, except withholding of removal,'' after 
        ``benefits''.

SEC. 5. EFFECTIVE DATE.

    This Act, and the amendments made by this Act, shall take effect 30 
days after the date of enactment of this Act.
                                 <all>