[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3309 Introduced in House (IH)]

  1st Session
                                H. R. 3309

    To amend the Immigration and Nationality Act to restore certain 
 provisions relating to the definition of aggravated felony and other 
provisions as they were before the enactment of the Illegal Immigration 
            Reform and Immigrant Responsibility Act of 1996.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 16, 2003

  Mr. Filner introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To amend the Immigration and Nationality Act to restore certain 
 provisions relating to the definition of aggravated felony and other 
provisions as they were before the enactment of the Illegal Immigration 
            Reform and Immigrant Responsibility Act of 1996.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Keeping Families 
Together Act of 2003''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Restoration of definition of aggravated felony (repeal of 
                            section 321 of IIRIRA).
Sec. 3. Restoration of detention policy.
Sec. 4. Repeal of time stop provisions.
Sec. 5. Repeal of section 101(a)(48).
Sec. 6. Restoration of section 212(c).
Sec. 7. Restoration of judicial review provisions.
Sec. 8. Post-proceeding relief for affected aliens.

SEC. 2. RESTORATION OF DEFINITION OF AGGRAVATED FELONY (REPEAL OF 
              SECTION 321 OF IIRIRA).

    (a) In General.--Effective as if included in the enactment of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(division C of Public Law 104-208), section 321 of such Act is repealed 
and the provisions of law amended by such section are restored as if 
such section had not been enacted.
    (b) Restoration of Rights.--Any alien whose legal permanent 
resident status, application for permanent residence, or application 
for cancellation of removal, was affected by the changes in the 
definition of ``aggravated felony'' made by such section 321 may apply 
to the Attorney General to be considered for adjustment of status or 
cancellation of removal in conformance with the provisions of section 
101(a)(43) of the Immigration and Nationality Act, as restored by 
subsection (a).

SEC. 3. RESTORATION OF DETENTION POLICY.

    (a) In General.--Section 236(c) of the Immigration and Nationality 
Act (8 U.S.C. 1226(c)) is amended to read as follows:
    ``(c) Detention of Criminal Aliens.--
            ``(1) In general.--The Attorney General shall take into 
        custody any alien convicted of an aggravated felony upon 
        release of the alien (regardless of whether or not such release 
        is on parole, supervised release, or probation, and regardless 
        of the possibility of rearrest or further confinement in 
        respect of the same offense). Notwithstanding subsection (a) or 
        section 241(a) but subject to paragraph (2), the Attorney 
        General shall not release such felon from custody.
            ``(2) Non-release.--The Attorney General may not release 
        from custody any who has been convicted of an aggravated 
        felony, either before or after a determination of removability, 
        unless--
                    ``(A)(i) the alien was lawfully admitted, or
                    ``(ii) the alien was not lawfully admitted but the 
                alien cannot be removed because the designated country 
                of removal will not accept the alien; and
                    ``(B) the alien satisfies the Attorney General that 
                the alien will not pose a danger to the safety of other 
                persons or of property and is likely to appear for any 
                scheduled proceeding.''.
    (b) Effective Date.--The amendment made by subsection (a) shall be 
effective as if included in the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996.

SEC. 4. REPEAL OF TIME STOP PROVISIONS.

    (a) In General.--Section 240A(d) of the Immigration and Nationality 
Act (8 U.S.C. 1229b(d)) is repealed.
    (b) Effective Date.--The repeal made by subsection (a) shall be 
effective as if included in the enactment of subtitle A of title III of 
the Illegal Immigration Reform and Immigrant Responsibility Act of 
1996.

SEC. 5. REPEAL OF SECTION 101(A)(48).

    (a) In General.--Paragraph (48) of section 101(a)(48) of the 
Immigration and Nationality Act (8 U.S.C. 1101(a)) is repealed.
    (b) Effective Date.--The repeal made by subsection (a) shall take 
effect as if included in the enactment of section 322(a) of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996.

SEC. 6. RESTORATION OF SECTION 212(C).

    (a) In General.--Section 212 of the Immigration and Nationality Act 
(8 U.S.C. 1182) is amended by inserting after subsection (b) the 
following new subsection:
    ``(c) Aliens lawfully admitted for permanent residence who 
temporarily proceeded abroad voluntarily and not under an order of 
deportation or removal, and who are returning to a lawful 
unrelinquished domicile of seven consecutive years, may be admitted in 
the discretion of the Attorney General without regard to the provisions 
of subsection (a) (other than paragraphs (3) and (10)(C)). Nothing 
contained in this subsection shall limit the authority of the Attorney 
General to exercise the discretion vested in him under section 211(b). 
The first sentence of this subsection shall not apply to an alien who 
has been convicted of one or more aggravated felonies and has served 
for such felony or felonies a term of imprisonment of at least 5 
years.''.
    (b) Effective Date.--The amendment made by subsection (a) applies 
as of April 24, 1996, as if section 440(d) of the Antiterrorism and 
Effective Death Penalty Act of 1996 (Public Law 104-132) and section 
304(b) of Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996 (division C of Public Law 104-208) had not been enacted.

SEC. 7. RESTORATION OF JUDICIAL REVIEW PROVISIONS.

    (a) In General.--Section 242 of the Immigration and Nationality Act 
(8 U.S.C. 1252) is amended to read as follows:

                 ``judicial review of orders of removal

    ``Sec. 242. (a) The procedure prescribed by, and all the provisions 
of chapter 158 of title 28, United States Code, shall apply to, and 
shall be the sole and exclusive procedure for, the judicial review of 
all final orders of removal heretofore or hereafter made against aliens 
within the United States pursuant to administrative proceedings under 
section 240 of this Act or comparable provisions of any prior Act, 
except that--
            ``(1) a petition for review may be filed not later than 90 
        days after the date of the issuance of the final removal order, 
        or, in the case of an alien convicted of an aggravated felony 
        not later than 30 days after the issuance of such order;
            ``(2) the venue of any petition for review under this 
        section shall be in the judicial circuit in which the 
        administrative proceedings before an immigration judge were 
        conducted in whole or in part, or in the judicial circuit 
        wherein is the residence, as defined in this Act, of the 
        petitioner, but not in more than one circuit;
            ``(3) the action shall be brought against the Immigration 
        and Naturalization Service, as respondent. Service of the 
        petition to review shall be made upon the Attorney General of 
        the United States and upon the official of the Immigration and 
        Naturalization Service in charge of the Service district in 
        which the office of the clerk of the court is located. The 
        service of the petition for review upon such official of the 
        Service shall stay the removal of the alien pending 
        determination of the petition by the court, unless the court 
        otherwise directs or unless the alien is convicted of an 
        aggravated felony, in which case the Service shall not stay the 
        removal of the alien pending determination of the petition of 
        the court unless the court otherwise directs;
            ``(4) except as provided in clause (B) of paragraph (5) of 
        this subsection, the petition shall be determined solely upon 
        the administrative record upon which the removal order is based 
        and the Attorney General's findings of fact, if supported by 
        reasonable, substantial, and probative evidence on the record 
        considered as a whole, shall be conclusive;
            ``(5) whenever any petitioner, who seeks review of an order 
        under this section, claims to be a national of the United 
        States and makes a showing that his claim is not frivolous, the 
        court shall (A) pass upon the issues presented when it appears 
        from the pleadings and affidavits filed by the parties that no 
        genuine issue of material fact is presented; or (B) where a 
        genuine issue of material fact as to the petitioner's 
        nationality is presented, transfer the proceedings to a United 
        States district court for the district where the petitioner has 
        his residence for hearing de novo of the nationality claim and 
        determination as if such proceedings were originally initiated 
        in the district court under the provisions of section 2201 of 
        title 28, United States Code. Any such petitioner shall not be 
        entitled to have such issue determined under section 360(a) of 
        this Act or otherwise;
            ``(6) whenever a petitioner seeks review of an order under 
        this section, any review sought with respect to a motion to 
        reopen or reconsider such an order shall be consolidated with 
        the review of the order;
            ``(7) if the validity of a removal order has not been 
        judicially determined, its validity may be challenged in a 
        criminal proceeding against the alien for violation of 
        subsection (a) or (b) of section 243 of this Act only by 
        separate motion for judicial review before trial. Such motion 
        shall be determined by the court without a jury and before the 
        trial of the general issue. Whenever a claim to United States 
        nationality is made in such motion, and in the opinion of the 
court, a genuine issue of material fact as to the alien's nationality 
is presented, the court shall accord him a hearing de novo on the 
nationality claim and determine that issue as if proceedings had been 
initiated under the provisions of section 2201 of title 28, United 
States Code. Any such alien shall not be entitled to have such issue 
determined under section 360(a) of this Act or otherwise. If no such 
hearing de novo as to nationality is conducted, the determination shall 
be made solely upon the administrative record upon which the removal 
order is based and the Attorney General's findings of fact, if 
supported by reasonable, substantial, and probative evidence on the 
record considered as a whole, shall be conclusive. If the removal order 
is held invalid, the court shall dismiss the indictment and the United 
States shall have the right to appeal to the court of appeals within 30 
days. The procedure on such appeals shall be as provided in the Federal 
rules of criminal procedure. No petition for review under this section 
may be filed by any alien during the pendency of a criminal proceeding 
against such alien for violation of subsection (a) or (b) of section 
243 of this Act;
            ``(8) nothing in this section shall be construed to require 
        the Attorney General to defer removal of an alien after the 
        issuance of a removal order because of the right of judicial 
        review of the order granted by this section, or to relieve any 
        alien from compliance with subsections (a) and (b) of section 
        243 of this Act. Nothing contained in this section shall be 
        construed to preclude the Attorney General from detaining or 
        continuing to detain an alien or from taking the alien into 
        custody pursuant to section 241 of this Act at any time after 
        the issuance of a removal order;
            ``(9) it shall not be necessary to print the record or any 
        part thereof, or the briefs, and the court shall review the 
        proceedings on a typewritten record and on typewritten briefs; 
        and
            ``(10) any alien held in custody pursuant to an order of 
        removal may obtain judicial review thereof by habeas corpus 
        proceedings.
    ``(b) Notwithstanding the provisions of any other law, any alien 
against whom a final order of removal has been made heretofore or 
hereafter under the provisions of section 235 of this Act or comparable 
provisions of any prior Act may obtain judicial review of such order by 
habeas corpus proceedings and not otherwise.
    ``(c) An order of removal shall not be reviewed by any court if the 
alien has not exhausted the administrative remedies available to the 
alien as of right under the immigration laws and regulations or if the 
alien has departed from the United States after the issuance of the 
order. Every petition for review or for habeas corpus shall state 
whether the validity of the order has been upheld in any prior judicial 
proceeding, and, if so, the nature and date thereof, and the court in 
which such proceeding took place. No petition for review or for habeas 
corpus shall be entertained if the validity of the order has been 
previously determined in any civil or criminal proceeding, unless the 
petition presents grounds which the court finds could not have been 
presented in such prior proceeding, or the court finds that the remedy 
provided by such prior proceeding was inadequate or ineffective to test 
the validity of the order.
    ``(d)(1) A petition for review or for habeas corpus on behalf of an 
alien against whom a final order of removal has been issued pursuant to 
section 238(b) may challenge only--
            ``(A) whether the alien is in fact the alien described in 
        the order;
            ``(B) whether the alien is in fact an alien described in 
        section 238(b)(2);
            ``(C) whether the alien has been convicted of an aggravated 
        felony and such conviction has become final; and
            ``(D) whether the alien was afforded the procedures 
        required by section 238(b)(4).
    ``(2) No court shall have jurisdiction to review any issue other 
than an issue described in paragraph (1).''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
take effect on the date of the enactment of this Act and shall apply to 
determinations pending on or after such date with respect to which--
            (1) a final administrative decision has been/not been 
        rendered as of such date; or
            (2) such a decision has been rendered but the period for 
        seeking judicial review of the decision has not expired.

SEC. 8. POST-PROCEEDING RELIEF FOR AFFECTED ALIENS.

    (a) In General.--Notwithstanding section 240(c)(6) of the 
Immigration and Nationality Act (8 U.S.C. 1229a(c)(6)) or any other 
limitation imposed by law on motions to reopen removal proceedings, the 
Attorney General shall establish a process (whether through permitting 
the reopening of a removal proceeding or otherwise) under which an 
alien--
            (1) who is (or was) in removal proceedings before the date 
        of the enactment of this Act (whether or not the alien has been 
        removed as of such date); and
            (2) whose eligibility for cancellation of removal has been 
        established by this Act;
may apply (or reapply) for cancellation of removal under section 
240A(a) of the Immigration and Nationality Act (8 U.S.C. 1229b(a)) as a 
beneficiary of the relief provided under this Act.
    (b) Parole.--The Attorney General should exercise the parole 
authority under section 212(d)(5)(A) of the Immigration and Nationality 
Act (8 U.S.C. 1182(d)(5)(A)) for the purpose of permitting aliens 
removed from the United States to participate in the process 
established under subsection (a).
                                 <all>