[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1311 Introduced in Senate (IS)]
107th CONGRESS
1st Session
S. 1311
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
August 2, 2001
Mr. Leahy (for himself, Mr. Brownback, Mr. Kennedy, Ms. Collins, Mr.
Durbin, Mr. Jeffords, and Mr. Graham) 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 2001''.
(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 Naturalizaiton
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.
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