[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2443 Introduced in Senate (IS)]







108th CONGRESS
  2d Session
                                S. 2443

To reform the judicial review process of orders of removal for purposes 
                of the Immigration and Nationality Act.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 19, 2004

  Mr. Hatch (for himself, Mr. Kyl, Mr. Cornyn, Mr. Sessions, and Mr. 
  Chambliss) introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To reform the judicial review process of orders of removal for purposes 
                of the Immigration and Nationality Act.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fairness in Immigration Litigation 
Act''.

SEC. 2. JUDICIAL REVIEW OF ORDERS OF REMOVAL.

    (a) In General.--Section 242 of the Immigration and Nationality Act 
(8 U.S.C. 1252) is amended--
            (1) in subsection (a)--
                    (A) in paragraph (2)--
                            (i) in subparagraphs (A), (B), and (C), by 
                        inserting ``(statutory and nonstatutory), 
                        including section 2241 of title 28, United 
                        States Code, or any other habeas corpus 
                        provision, and sections 1361 and 1651 of title 
                        28, United States Code'' after 
                        ``Notwithstanding any other provision of law''; 
                        and
                            (ii) by adding at the end the following:
                    ``(D) Judicial review of certain legal claims.--
                Nothing in this paragraph shall be construed as 
                precluding consideration by the circuit courts of 
                appeals of constitutional claims or pure questions of 
                law raised upon petitions for review filed in 
                accordance with this section. Notwithstanding any other 
                provision of law (statutory and nonstatutory), 
                including section 2241 of title 28, United States Code, 
                or, except as provided in subsection (e), any other 
                habeas corpus provision, and sections 1361 and 1651 of 
                title 28, United States Code, such petitions for review 
                shall be the sole and exclusive means of raising any 
                and all claims with respect to orders of removal 
                entered or issued under any provision of this Act.''; 
                and
                    (B) by adding at the end the following:
            ``(4) Claims under the united nations convention.--
        Notwithstanding any other provision of law (statutory and 
        nonstatutory), including section 2241 of title 28, United 
        States Code, or any other habeas corpus provision, and sections 
        1361 and 1651 of title 28, United States Code, a petition for 
        review by the circuit courts of appeals filed in accordance 
        with this section is the sole and exclusive means of judicial 
        review of claims arising under the United Nations Convention 
        Against Torture and Other Forms of Cruel, Inhuman, or Degrading 
        Treatment or Punishment.
            ``(5) Exclusive means of review.--The judicial review 
        specified in this subsection shall be the sole and exclusive 
        means for review by any court of an order of removal entered or 
        issued under any provision of this Act. For purposes of this 
        title, in every provision that limits or eliminates judicial 
        review or jurisdiction to review, the terms `judicial review' 
        and `jurisdiction to review' include habeas corpus review 
        pursuant to section 2241 of title 28, United States Code, or 
        any other habeas corpus provision, sections 1361 and 1651 of 
        title 28, United States Code, and review pursuant to any other 
        provision of law.'';
            (2) in subsection (b)--
                    (A) in paragraph (3)(B), by inserting ``pursuant to 
                subsection (f)'' after ``unless''; and
                    (B) in paragraph (9), by adding at the end the 
                following: ``Except as otherwise provided in this 
                subsection, no court shall have jurisdiction, by habeas 
                corpus under section 2241 of title 28, United States 
                Code, or any other habeas corpus provision, by section 
                1361 or 1651 of title 28, United States Code, or by any 
                other provision of law (statutory or nonstatutory), to 
                hear any cause or claim subject to these consolidation 
                provisions.'';
            (3) in subsection (f)(2), by inserting ``or stay, by 
        temporary or permanent order, including stays pending judicial 
        review,'' after ``no court shall enjoin''; and
            (4) in subsection (g), by inserting ``(statutory and 
        nonstatutory), including section 2241 of title 28, United 
        States Code, or any other habeas corpus provision, and sections 
        1361 and 1651 of title 28, United States Code'' after 
        ``notwithstanding any other provision of law''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
take effect upon the date of enactment of this Act and shall apply to 
cases in which the final administrative removal order was issued 
before, on, or after the date of enactment of this Act.

SEC. 3. CONSOLIDATION OF APPEALS.

    (a) In General.--Section 242(b)(2) of the Immigration and 
Nationality Act (8 U.S.C. 1252(b)(2)), is amended by striking the first 
sentence and inserting the following: ``The petition for review shall 
be filed with the court of appeals for the Federal Circuit.''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
apply to any final agency order that was entered on or after the date 
of enactment of this Act.

SEC. 4. ADDITIONAL REMOVAL AUTHORITIES.

    (a) In General.--Section 241(b) of the Immigration and Nationality 
Act (8 U.S.C. 1231(b)) is amended--
            (1) in paragraph (1)--
                    (A) in each of subparagraphs (A) and (B), by 
                striking the period at the end and inserting ``unless, 
                in the opinion of the Secretary of Homeland Security, 
                removing the alien to such country would be prejudicial 
                to the United States.''; and
                    (B) by amending subparagraph (C) to read as 
                follows:
                    ``(C) Alternative countries.--If the alien is not 
                removed to a country designated in subparagraph (A) or 
                (B), the Secretary of Homeland Security shall remove 
                the alien to--
                            ``(i) the country of which the alien is a 
                        citizen, subject, or national, where the alien 
                        was born, or where the alien has a residence, 
                        unless the country physically prevents the 
                        alien from entering the country upon the 
                        alien's removal there; or
                            ``(ii) any country whose government will 
                        accept the alien into that country.''; and
            (2) in paragraph (2)--
                    (A) by striking ``Attorney General'' each place 
                such term appears and inserting ``Secretary of Homeland 
                Security'';
                    (B) by amending subparagraph (D) to read as 
                follows:
                    ``(D) Alternative countries.--If the alien is not 
                removed to a country designated under subparagraph 
                (A)(i), the Secretary of Homeland Security shall remove 
                the alien to a country of which the alien is a subject, 
                national, or citizen, where the alien was born, or 
                where the alien has a residence, unless--
                            ``(i) such country physically prevents the 
                        alien from entering the country upon the 
                        alien's removal there; or
                            ``(ii) in the opinion of the Secretary of 
                        Homeland Security, removing the alien to the 
                        country would be prejudicial to the United 
                        States.''; and
                    (C) by amending subparagraph (E)(vii) to read as 
                follows:
                            ``(vii) Any country whose government will 
                        accept the alien into that country.''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
take effect on the date of the enactment of this Act and shall apply to 
any deportation, exclusion, or removal on or after such date pursuant 
to any deportation, exclusion, or removal order, regardless of whether 
such order is administratively final before, on, or after such date.

SEC. 5. BURDEN OF PROOF.

    (a) Conditions for Granting Asylum.--Section 208(b) of the 
Immigration and Nationality Act (8 U.S.C. 1158(b)) is amended--
            (1) in paragraph (1), by striking ``The Attorney General'' 
        and inserting the following:
                    ``(A) Eligibility.--The Secretary of Homeland 
                Security or the Attorney General''; and
            (2) by adding at the end the following:
                    ``(B) Burden of proof.--The burden of proof is on 
                the applicant to establish that the applicant is a 
                refugee within the meaning of section 101(a)(42)(A). To 
                establish that the applicant is a refugee within the 
                meaning of this Act, the applicant must establish that 
                race, religion, nationality, membership in a particular 
                social group, or political opinion was or will be the 
                central motive for persecuting the applicant. The 
                testimony of the applicant, only if it is credible, is 
                persuasive, and refers to specific facts that 
                demonstrate that the applicant is a refugee, may be 
                sufficient to sustain such burden without 
                corroboration. Where the trier of fact finds that it is 
                reasonable to expect corroborating evidence for certain 
                alleged facts pertaining to the specifics of the 
                applicant's claim, such evidence must be provided 
                unless a reasonable explanation is given as to why such 
                information is not provided. The credibility 
                determination of the trier of fact may be based, in 
                addition to other factors, on the demeanor, candor, or 
                responsiveness of the applicant or witness, the 
                consistency between the applicant's or witness's 
                written and oral statements, whether or not under oath, 
                made at any time to any officer, agent, or employee of 
                the United States, the internal consistency of each 
                such statement, the consistency of such statements with 
                the country conditions in the country from which the 
                applicant claims asylum, as presented by the Department 
                of State, and any inaccuracies or falsehoods in such 
                statements. These factors may be considered 
                individually or cumulatively.''.
    (b) Standard of Review for Orders of Removal.--Section 242(b)(4) of 
the Immigration and Nationality Act (8 U.S.C. 1252(b)(4)) is amended by 
adding after subparagraph (D) the following flush language:
        ``No court shall reverse a determination made by an adjudicator 
        with respect to the availability of corroborating evidence as 
        described in section 208(b)(1)(B), unless the court finds that 
        a reasonable adjudicator is compelled to conclude that such 
        corroborating evidence is unavailable.''.
    (c) Effective Date.--The amendment made by subsection (b) shall 
take effect upon the date of enactment of this Act and shall apply to 
cases in which the final administrative removal order was issued 
before, on, or after the date of enactment of this Act.

SEC. 6. EFFECTIVE DATE.

    This Act and the amendments made by this Act shall take effect upon 
the date of enactment of this Act.
                                 <all>