[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4074 Introduced in House (IH)]







107th CONGRESS
  2d Session
                                H. R. 4074

  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 HOUSE OF REPRESENTATIVES

                             March 20, 2002

Mr. Smith of New Jersey (for himself, Mr. Berman, Ms. Ros-Lehtinen, and 
Mr. Delahunt) introduced the following bill; which was 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 2002''.
    (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 (8 
U.S.C. 1101 et seq.).

SEC. 2. CONGRESSIONAL FINDINGS AND PURPOSES.

    (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 United States.
            (3) The United States has a history of generosity to 
        persons fleeing persecution, a history that has served as an 
        inspiring example to other countries developing refugee policy, 
        even though only a tiny fraction of the world's oppressed 
        actually seek refuge on United States shores.
            (4) Conversely, when the United States has restricted 
        protection for refugees, other countries have followed that 
        lead.
            (5) United States law fails to ensure that a person fleeing 
        persecution who arrives in the United States has a fair and 
        adequate opportunity to present a claim for protection.
    (b) Purposes.--The purposes of this Act are--
            (1) 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 fairness in the United States asylum system; and
            (2) to provide alternatives to detention and improve 
        detention conditions for asylum seekers.

                 TITLE I--PROTECTION OF ASYLUM SEEKERS

SEC. 101. 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 
                        in which 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, and only to those aliens arriving 
                        from the foreign state or states giving rise to 
                        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 those aliens, where there are 
                        extraordinary and temporary conditions in the 
                        foreign state of which those aliens are 
                        nationals.
                            ``(iii) Determinations by the attorney 
                        general.--The determination of whether there 
                        exists an extraordinary migration situation is 
                        in the sole and exclusive discretion of the 
                        Attorney General.
                            ``(iv) Effective period of 
                        determinations.--A determination made under 
                        this subparagraph shall be effective for a 
                        period not to exceed 90 days, unless, within 
                        that 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 those 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 at no expense to the Government 
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 that 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 (C).
                                    ``(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.--Section 
235(b)(1)(G) (as redesignated by subsection (a)) is amended to read as 
follows:
                    ``(G) Exceptions.--Subparagraph (B) shall not apply 
                to--
                            ``(i) an alien who 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
                            ``(ii) an alien who 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. 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 at no expense to the 
                                Government. Review shall be concluded 
                                as expeditiously as possible, and to 
                                the maximum extent practicable, within 
                                7 days after the date of determination 
                                under subclause (I).''.
    (e) 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)--
                    (A) by striking the parenthetical in paragraph (1); 
                and
                    (B) in paragraph (2) by--
                            (i) by striking subparagraph (A); and
                            (ii) by redesignating subparagraphs (B) and 
                        (C) as subparagraphs (A) and (B), respectively;
            (2) in subsection (b)(4)(D) by striking ``manifestly 
        contrary to the law and'' and inserting ``contrary to the law 
        or''; and
            (3) by striking subsection (e).
    (f) Conforming Amendments.--
            (1) Conduct of interviews by asylum officers.--Section 
        235(b)(1)(C)(i) (as redesignated by subsection (a)) 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 redesignated by subsection (a)) 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)''.

SEC. 102. ELIMINATION OF ARBITRARY TIME LIMITS ON ASYLUM APPLICATIONS.

    Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is amended--
            (1) by striking subparagraph (B);
            (2) in subparagraph (C), by striking ``(D)'' and inserting 
        ``(C)'';
            (3) in subparagraph (D), by striking ``subparagraphs (B) 
        and (C),'' and inserting ``subparagraph (B),''; and
            (4) by redesignating subparagraphs (C) and (D) as 
        subparagraphs (B) and (C), respectively.

SEC. 103. ELIMINATION OF NUMERICAL LIMITATION ON ADJUSTMENT OF ASYLEES.

    Section 209(b) (8 U.S.C. 1159(b)) is amended by striking ``Not more 
than'' and all that follows through ``who'' and inserting the 
following: ``The Attorney General may, in the discretion of the 
Attorney General, adjust to the status of an alien lawfully admitted 
for permanent residence the status of any alien granted asylum who''.

SEC. 104. ELIMINATION OF ANNUAL ALLOCATION FOR CERTAIN CATEGORY OF 
              REFUGEES.

    Section 207(a) (8 U.S.C. 1157(a)) is amended by striking paragraph 
(5).

                          TITLE II--DETENTION

SEC. 201. ALTERNATIVES TO DETENTION OF ASYLUM SEEKERS.

    (a) Attorney General's Discretion To Detain Asylum Seekers.--
            (1) Section 235(b)(1)(C) (as redesignated in section 
        101(a)) is amended--
                    (A) in clause (ii), by striking ``shall'' and 
                inserting ``may, in the Attorney General's 
                discretion,'';
                    (B) in clause (iii)(IV), by striking ``shall'' and 
                inserting ``may, in the Attorney General's 
                discretion,'';
                    (C) in the heading of clause (iii)(IV), by striking 
                ``Mandatory detention'' and inserting ``Detention''; 
                and
                    (D) by adding at the end the following:
                            ``(vi) Parole of certain aliens.--It is the 
                        policy of the United States to parole asylum 
                        seekers who have established a credible fear of 
                        persecution, as defined in clause (v).''.
            (2) The Attorney General shall promulgate regulations 
        establishing criteria for the parole of asylum seekers.
    (b) Covered Persons.--References in this section to alternatives to 
detention shall apply only with respect to asylum seekers.
    (c) Development of Alternatives to Detention.--The Attorney General 
shall promulgate regulations that--
            (1) authorize and promote the utilization of alternatives 
        to detention of asylum seekers; and
            (2) establish the conditions for detention of asylum 
        seekers that ensure a safe and humane environment.
    (d) Regulations Regarding Alternatives to Detention.--The 
regulations developed under subsection (c)(1) shall at a minimum take 
into account the following:
            (1) Specific alternatives.--Specific alternatives to 
        detention, including--
                    (A) unsupervised parole from detention;
                    (B) for individuals not otherwise qualified for 
                parole under subparagraph (A), supervised parole to 
                private nonprofit voluntary agencies;
                    (C) for individuals not otherwise qualified for 
                parole under subparagraph (A) or (B), non-secure 
                shelter care or group homes supervised by private 
                nonprofit voluntary agencies; and
                    (D) noninstitutional settings for minors, such as 
                foster care or group homes operated by private 
                nonprofit voluntary agencies.
    (e) Programs Authorized.--
            (1) In general.--Subject to the availability of 
        appropriations, the Attorney General shall enter into contracts 
        with nongovernmental agencies for the purpose of developing, 
        implementing, or expanding alternatives to detention programs.
            (2) Use of funds.--A nongovernmental agency that receives a 
        contract under this subsection shall use amounts provided under 
        the contract to develop, implement, or expand alternatives to 
        detention programs.
            (3) Program requirements.--A nongovernmental agency that 
        enters into a contract under this subsection shall develop, 
        implement, or expand a program that may include the following:
                    (A) Development of a screening procedure through 
                which the nongovernmental agency, in conjunction with 
                the Immigration and Naturalization Service, selects 
                appropriate candidates for participation in the 
                alternative to detention program.
                    (B) Coordination of housing for program 
                participants.
                    (C) Coordination of necessary services for program 
                participants, including legal, social, medical, mental 
health, educational and vocational training, job placement, and English 
as a Second Language courses.
                    (D) Assistance with the integration of participants 
                into the community by helping participants make 
                contacts in their ethnic and religious communities.
                    (E) Facilitation of compliance by participants with 
                Immigration and Naturalization Service and court 
                proceedings.
    (f) Regulations Regarding Conditions for Detention.--The 
regulations developed under subsection (c)(2) shall at a minimum 
include the following:
            (1) Access to legal services.--
                    (A) Lists of legal service providers.--Procedures 
                for providing to all Immigration and Naturalization 
                Service detainees promptly upon their arrival at the 
                facility an updated and accurate list of free or low-
                cost immigration legal service providers that are 
                located in the area of the detention facility.
                    (B) Group legal orientation presentations.--
                            (i) In general.--Procedures to allow for 
                        regularly scheduled, group legal orientation 
                        presentations.
                            (ii) Definition.--In this subparagraph, the 
                        term ``group legal orientation presentations'' 
                        means live presentations, supplemented by video 
                        presentations and individual evaluations, by 
                        private nongovernmental organizations, given to 
                        Immigration and Naturalization Service 
                        detainees for the purpose of informing the 
                        detainees about United States immigration law 
                        and procedures and enabling detainees to 
                        determine their eligibility for relief.
                            (iii) Establishment of a national legal 
                        orientation support and training center.--The 
                        Attorney General shall establish a National 
                        Legal Orientation Support and Training Center 
                        (referred to in this subsection as the Center) 
                        the purpose of which shall be to ensure quality 
                        and consistent implementation of legal 
                        orientation programs nationwide.
                            (iv) Duties.--The Center shall be 
                        responsible for--
                                    (I) offering training to nonprofit 
                                agencies that will offer group legal 
                                orientation programs;
                                    (II) consulting with nonprofit 
                                agencies that offer group legal 
                                orientation programs regarding program 
                                development and substantive legal 
                                issues; and
                                    (III) developing standards for the 
                                legal orientation programs.
                    (C) Programs authorized.--A program that shall make 
                grants to nongovernmental agencies for the purpose of 
                developing, implementing, or expanding legal 
                orientation programs available to all Immigration and 
                Naturalization Service detainees at the facilities in 
                which such programs are offered.
                    (D) Visits.--Procedures that permit Immigration and 
                Naturalization Service detainees to have adequate 
                access to contact visits from the following 
                individuals:
                            (i) Legal service providers, including 
                        attorneys, paralegals, law graduates, law 
                        students, and representatives accredited by the 
                        Board of Immigration Appeals.
                            (ii) Consultants, as authorized under 
                        section 235(b) of the Immigration and 
                        Nationality Act (8 U.S.C. 1225(b)), before and 
                        during interviews in which determinations of 
                        credible fear of persecution are made.
                            (iii) Individuals assisting in the 
                        provision of legal representation and 
                        documentation in support of the asylum seekers' 
                        cases, including interpreters, medical 
                        personnel, mental health providers, social 
                        welfare workers, expert and fact witnesses, and 
                        others.
                    (E) Notification requirement.--Procedures to 
                provide adequate and prompt notice to Immigration and 
                Naturalization Service detainees of their available 
                release options and the procedures to request those 
                options provided in the language of the detainee.
                    (F) Location of facilities.--A presumption in favor 
                of locating detention facilities near sources of free 
                or low-cost legal representation with expertise in 
                asylum and immigration law to ensure that such services 
                are readily accessible.
                    (G) Updated legal resources.--Access to an updated 
                law library.
                    (H) Notification of transfers.--Procedures 
                requiring the prompt notification of the legal 
                representative of an Immigration and Naturalization 
                Service detainee before the detainee is transferred to 
                another detention facility.
                    (I) Access to telephones.--Procedures permitting 
                Immigration and Naturalization Service detainees 
                reasonable, equitable, and sufficient access to 
                telephones, and the ability to make direct, free calls 
                to legal representatives, the immigration courts, the 
                Board of Immigration Appeals, Federal and State courts, 
                other government offices, and consular officials.
            (2) Religious and cultural provisions.--
                    (A) Access to religious services.--Full and 
                equitable access to religious services, religious 
                materials, opportunity for religious group study, and 
                religious counseling appropriate to Immigration and 
                Naturalization Service detainees' religious beliefs and 
                practices.
                    (B) Chaplains.--The assignment of a chaplain to 
                each detention facility. The chaplain shall be 
                responsible for managing the religious activities, 
                including providing pastoral care and counseling to 
                detainees, and for facilitating access to pastoral care 
                and counseling from external clergy or religious 
                service providers, representing the faiths of the 
                Immigration and Naturalization Service detainees 
                detained at the facility.
                    (C) Dietary needs.--Procedures to ensure that 
                Immigration and Naturalization Service detainees' 
                religious, medical, and cultural dietary needs are met.
                    (D) Qualifications of staff.--Procedures to ensure 
                that detention facility staff members are trained to 
                recognize and address cultural and gender issues 
                relevant to male, female, and child Immigration and 
                Naturalization Service detainees.
                    (E) Access to detention facilities by 
                nongovernmental organizations.--Reasonable access to a 
                detention facility shall be provided to nongovernmental 
                organizations for purposes including--
                            (i) observing the conditions of detention 
                        outlined in this title;
                            (ii) engaging in teaching and training 
                        programs for the Immigration and Naturalization 
                        Service detainees detained at the facility; and
                            (iii) providing legal or religious services 
                        to the Immigration and Naturalization Service 
                        detainees.

SEC. 202. DETENTION OF ASYLUM SEEKERS.

    (a) Requirement.--If found ineligible for parole or placement in an 
alternative to detention under the previous section, asylum seekers 
shall be detained only in Immigration and Naturalization Service 
service processing centers or in facilities contracted by the 
Immigration and Naturalization Service solely to house immigration 
detainees, unless the asylum seeker agrees to placement at another 
facility.
    (b) Determination by Asylum Officers.--
            (1) In general.--Asylum officers shall determine whether to 
        parole an asylum seeker or place an asylum seeker in an 
        appropriate alternative to detention.
            (2) Timing of determination.--A determination made under 
        paragraph (1) shall be made within 1 week of a request for 
        parole made by an asylum seeker.
            (3) Renewal of request.--If a request for parole is denied, 
        an asylum seeker may renew the request if the asylum seeker has 
        new or additional supporting information.
            (4) Training of asylum officers.--Asylum officers shall be 
        trained in the appropriate use of and referral to detention 
        alternatives.
            (5) Limitation on authority to detain.--No asylum seeker 
        may be detained if an asylum officer or immigration judge has 
        determined that parole is appropriate.
    (c) Review of Detention.--In each case in which a request for 
release from detention by an asylum seeker is denied, or in which no 
determination to parole or place an asylum seeker in an appropriate 
alternative to detention is made within one week of an asylum seeker's 
request for parole, an immigration judge shall--
            (1) examine the parole request, and any evidence in a 
        hearing that includes all evidence provided in support of that 
        request and determine within 10 days whether the individual 
        should be paroled; and
            (2) provide in writing to the detained asylum seeker, and 
        to the asylum seeker's legal representative, the reason for any 
        denial of release from detention.

                     TITLE III--GENERAL PROVISIONS

SEC. 301. DEFINITIONS.

    In this Act:
            (1) Asylum officer.--The term ``asylum officer'' has the 
        meaning given the term in section 235(b)(1)(F) (as redesignated 
        by section 101(a)) of the Immigration and Nationality Act (8 
        U.S.C. 1225(b)(1)(F)).
            (2) Asylum seeker.--
                    (A) In general.--The term ``asylum seeker'' means--
                            (i) any applicant for asylum under section 
                        208 of the Immigration and Nationality Act (8 
                        U.S.C. 1158);
                            (ii) any alien who indicates an intention 
                        to apply for asylum under that section;
                            (iii) any applicant for withholding of 
                        removal, pursuant either to section 1231 of 
                        title 8, United States Code; or
                            (iv) an applicant who indicates an 
                        intention to apply for relief pursuant to the 
                        Convention Against Torture.
                    (B) Limitation.--The term ``asylum seeker'' 
                includes an individual who is pursuing appeals through 
                Federal court, but does not include an individual with 
                respect to whom a final order denying asylum has been 
                entered.
            (3) Immigration judge.--The term ``immigration judge'' has 
        the meaning given the term in section 101(b)(4) of the 
        Immigration and Nationality Act (8 U.S.C. 1101(b)(4)).
            (4) Detention facility.--The term ``detention facility'' 
        means a Federal facility that meets the requirements of section 
        202(a) in which an asylum seeker is detained for more than 24 
        hours, or any other facility in which those detention services 
        are provided to the Federal Government by contract, and does 
        not include detention at any port of entry in the United 
        States.

SEC. 302. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated to the Department of 
Justice such sums as may be necessary to carry out this Act.

SEC. 303. EFFECTIVE DATE.

    This Act, and the amendments made by this Act, shall take effect 90 
days after the date of enactment of this Act.
                                 <all>