[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2055 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 2055

  To amend the Immigration and Nationality Act to permit certain long-
 term permanent resident aliens to seek cancellation of removal under 
                   such Act, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 3, 2005

  Mr. Frank of Massachusetts introduced the following bill; which was 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To amend the Immigration and Nationality Act to permit certain long-
 term permanent resident aliens to seek cancellation of removal under 
                   such Act, and for other purposes.

    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 ``Family Reunification Act of 2005''.

SEC. 2. CANCELLATION OF REMOVAL FOR LONG-TERM PERMANENT RESIDENT 
              ALIENS.

    Section 240A(a) of the Immigration and Nationality Act (8 U.S.C. 
1229b(a)) is amended to read as follows:
    ``(a) Cancellation of Removal for Certain Permanent Residents.--
            ``(1) Permanent residents not convicted of any aggravated 
        felony.--The Secretary of Homeland Security may cancel removal 
        in the case of an alien who is inadmissible to, or deportable 
        from, the United States, if the alien--
                    ``(A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    ``(B) resided in the United States continuously for 
                7 years after having been admitted in any status; and
                    ``(C) has not been convicted of any aggravated 
                felony.
            ``(2) Permanent residents convicted of a nonviolent 
        aggravated felony.--The Secretary of Homeland Security may 
        cancel removal in the case of an alien who is inadmissible to, 
        or deportable from, the United States, if the alien--
                    ``(A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    ``(B) satisfies the residence requirements of 
                paragraph (6);
                    ``(C) has never been convicted of--
                            ``(i) an act of murder, rape, or sexual 
                        abuse of a minor;
                            ``(ii) any crime of violence (as defined in 
                        section 16 of title 18, United States Code); or
                            ``(iii) an attempt or conspiracy to commit 
                        an offense described in clause (i) or (ii);
                    ``(D) has been convicted of--
                            ``(i) a single aggravated felony for which 
                        the alien was sentenced to serve a term of 
                        imprisonment of 4 years or less;
                            ``(ii) multiple aggravated felonies arising 
                        out of a single scheme of criminal misconduct 
                        for which the alien was sentenced to serve, in 
                        the aggregate, a term of imprisonment of 4 
                        years or less; or
                            ``(iii) 2 aggravated felonies arising out 
                        of separate schemes of criminal misconduct for 
                        which the alien was sentenced to serve, in the 
                        aggregate, a term of imprisonment of 4 years or 
                        less, but for neither of which the alien was 
                        actually incarcerated;
                    ``(E) was not, in the commission of the aggravated 
                felony or felonies described in subparagraph (D)--
                            ``(i) an organizer, leader, manager, or 
                        supervisor of others; or
                            ``(ii) engaged in a continuing criminal 
                        enterprise (as defined in section 408(c) of the 
                        Controlled Substances Act (21 U.S.C. 848(c)));
                    ``(F) has never been incarcerated for any offense 
                except--
                            ``(i) the offense described in clause (i) 
                        of subparagraph (D), or another offense that 
                        was committed in the course of the same scheme 
                        of criminal misconduct; or
                            ``(ii) an offense that was committed in the 
                        course of the scheme or schemes described in 
                        clause (ii) or (iii) of such subparagraph; and
                    ``(G) has not been the subject of a timely 
                certification described in paragraph (7) with respect 
                to the aggravated felony or felonies described in 
                subparagraph (D), unless such certification has been 
                revoked pursuant to such paragraph.
            ``(3) Permanent residents convicted of an aggravated felony 
        classified as a crime of violence.--The Secretary of Homeland 
        Security may cancel removal in the case of an alien who is 
        inadmissible to, or deportable from, the United States, if the 
        alien--
                    ``(A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    ``(B) satisfies the residence requirements of 
                paragraph (6);
                    ``(C) has never been convicted of--
                            ``(i) an act of murder, rape, or sexual 
                        abuse of a minor; or
                            ``(ii) an attempt or conspiracy to commit 
                        an offense described in clause (i);
                    ``(D) has never been convicted of any aggravated 
                felony that resulted in death or serious bodily injury 
                to any person other than the alien;
                    ``(E) has been convicted of--
                            ``(i) a single aggravated felony for which 
                        the alien was sentenced to serve a term of 
                        imprisonment of 2 years or less;
                            ``(ii) multiple aggravated felonies arising 
                        out of a single scheme of criminal misconduct 
                        for which the alien was sentenced to serve, in 
                        the aggregate, a term of imprisonment of 2 
                        years or less; or
                            ``(iii) 2 aggravated felonies arising out 
                        of separate schemes of criminal misconduct for 
                        which the alien was sentenced to serve, in the 
                        aggregate, a term of imprisonment of 2 years or 
                        less, but for neither of which the alien was 
                        actually incarcerated;
                    ``(F) was not, in the commission of the aggravated 
                felony or felonies described in subparagraph (E)--
                            ``(i) an organizer, leader, manager, or 
                        supervisor of others; or
                            ``(ii) engaged in a continuing criminal 
                        enterprise (as defined in section 408(c) of the 
                        Controlled Substances Act (21 U.S.C. 848(c)));
                    ``(G) has never been incarcerated for any offense 
                except--
                            ``(i) the offense described in clause (i) 
                        of subparagraph (E), or another offense that 
                        was committed in the course of the same scheme 
                        of criminal misconduct; or
                            ``(ii) an offense that was committed in the 
                        course of the scheme or schemes described in 
                        clause (ii) or (iii) of such subparagraph; and
                    ``(H) has not been the subject of a timely 
                certification described in paragraph (7) with respect 
                to the aggravated felony or felonies described in 
                subparagraph (E), unless such certification has been 
                revoked pursuant to such paragraph.
            ``(4) Permanent residents admitted before age 10.--The 
        Secretary of Homeland Security may cancel removal in the case 
        of an alien who is inadmissible to, or deportable from, the 
        United States, if the alien--
                    ``(A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    ``(B) resided in the United States continuously for 
                7 years after having been admitted in any status when 
                the alien was under 10 years of age;
                    ``(C) has never been convicted of--
                            ``(i) an act of murder, rape, or sexual 
                        abuse of a minor; or
                            ``(ii) an attempt or conspiracy to commit 
                        an offense described in clause (i); and
                    ``(D) has never been incarcerated for a third (or 
                succeeding) aggravated felony, except that multiple 
                felonies arising out of a single scheme of criminal 
                misconduct shall be considered a single felony for 
                purposes of this subparagraph.
            ``(5) Permanent residents admitted before age 16.--The 
        Secretary of Homeland Security may cancel removal in the case 
        of an alien who is inadmissible to, or deportable from, the 
        United States, if the alien--
                    ``(A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    ``(B) resided in the United States continuously for 
                7 years--
                            ``(i) before the alien committed any 
                        aggravated felony; and
                            ``(ii) after having been admitted in any 
                        status when the alien was under 16 years of 
                        age;
                    ``(C) has never been convicted of--
                            ``(i) an act of murder, rape, or sexual 
                        abuse of a minor; or
                            ``(ii) an attempt or conspiracy to commit 
                        an offense described in clause (i); and
                    ``(D) has never been incarcerated for a third (or 
                succeeding) aggravated felony, except that multiple 
                felonies arising out of a single scheme of criminal 
                misconduct shall be considered a single felony for 
                purposes of this subparagraph.
            ``(6) Residence requirements for certain aliens.--In the 
        case of an alien seeking relief under paragraph (2) or (3), the 
        residence requirements described in this paragraph are as 
        follows:
                    ``(A) If the alien has been convicted of any 
                aggravated felony committed after the date of the 
                enactment of the Family Reunification Act of 2005, the 
                alien is required to have resided in the United 
                States--
                            ``(i) continuously for 7 years after having 
                        been admitted in any status and prior to the 
                        commission of such aggravated felony; or
                            ``(ii) continuously for 10 years after 
                        having been admitted in any status, except 
                        that, if the alien is incarcerated with respect 
                        to such aggravated felony, the period beginning 
                        on the date on which such aggravated felony was 
                        committed and ending on the last day of such 
                        term of incarceration shall be excluded in 
                        determining continuous residence under this 
                        clause.
                    ``(B) If the alien has not been convicted of an 
                aggravated felony committed after the date of the 
                enactment of the Family Reunification Act of 2005, but 
                has otherwise been incarcerated for any aggravated 
                felony, the alien is required to have resided in the 
                United States--
                            ``(i) continuously for 7 years after having 
                        been admitted in any status and prior to the 
                        commencement of such term of incarceration; or
                            ``(ii) continuously for 10 years after 
                        having been admitted in any status, except that 
                        any term of incarceration for any aggravated 
                        felony shall be excluded in determining 
                        continuous residence under this clause.
                    ``(C) If the alien is not described in subparagraph 
                (A) or (B), the alien is required to have resided in 
                the United States continuously for 7 years after having 
                been admitted in any status.
            ``(7) Certifications.--
                    ``(A) In general.--In the case of an alien seeking 
                relief under paragraph (2) or (3), not later than 2 
                weeks after the alien files an application for such 
                relief, the Secretary of Homeland Security may notify 
                each agency that prosecuted an aggravated felony 
                referred to in paragraph (2)(D) or (3)(E), as the case 
                may be.
                    ``(B) Contents.--The notification shall inform the 
                agency that it has an opportunity--
                            ``(i) to certify to the Secretary of 
                        Homeland Security, not later than 60 days after 
                        the date on which the notification is mailed, 
                        that the alien has not truthfully provided to 
                        the agency all information and evidence the 
                        alien has concerning such felony or felonies, 
                        and any other offense or offenses that were 
                        part of the same scheme of criminal misconduct 
                        as such felony or felonies; and
                            ``(ii) on those grounds, to object to 
                        cancellation of removal.
                    ``(C) Provision to alien.--The Secretary of 
                Homeland Security shall mail any certification timely 
                made pursuant to subparagraph (B) with respect to an 
                alien to such alien. The alien shall have an 
                opportunity, during the 21-day period beginning on the 
                date on which the certification is mailed, to 
                truthfully provide to the agency all information and 
                evidence which the agency certifies has not been 
                provided.
                    ``(D) Revocation of certification.--
                            ``(i) In general.--The agency may, during 
                        the 21-day period beginning after the end of 
                        the period described in subparagraph (C), 
                        revoke any certification made pursuant to 
                        subparagraph (B). Any revocation of a 
                        certification shall void such certification.
                            ``(ii) Untimely revocations.--A revocation 
                        under this subparagraph that is not timely made 
                        may be considered by the Secretary of Homeland 
                        Security in the Secretary of Homeland 
                        Security's discretion if it is made prior to 
                        the issuance of a final order of removal, but 
                        the absence of a timely revocation shall not be 
                        the basis for any continuance or delay of 
                        proceedings. Any determination to deny relief 
                        based in whole or in part on a revocation that 
                        is not made, or not timely made, shall not be 
                        subject to administrative or judicial review in 
                        any forum.
                    ``(E) Forms requirement.--The Secretary of Homeland 
                Security shall ensure that the consequences under this 
                paragraph of failing to provide information or evidence 
                with respect to aggravated felonies are clearly 
                explained in any form promulgated by the Secretary of 
                Homeland Security that may be used to apply for relief 
                under paragraph (2) or (3).
                    ``(F) Construction.--This paragraph, and paragraphs 
                (2) and (3), shall not be construed to require the 
                Secretary of Homeland Security to notify any agency 
                under subparagraph (A). If the Secretary of Homeland 
                Security fails to send, or fails timely to send, the 
                notification described in such subparagraph, the alien 
                shall be deemed not to be the subject of a 
                certification.
            ``(8) Clarification with respect to certain references.--
        Any reference in this subsection to a term of imprisonment or a 
        sentence with respect to an offense is deemed to include the 
        period of incarceration or confinement ordered by a court of 
        law, regardless of any suspension of the imposition or 
        execution of that imprisonment or sentence in whole or in part. 
        However, a period of probation is not a term of imprisonment or 
        a sentence for purposes of this subsection.
            ``(9) Limitation on delegation.--Cancellation of removal 
        under paragraph (2), (3), (4), or (5) may be granted only by 
        the Secretary of Homeland Security or Deputy Secretary of 
        Homeland Security. No delegation of such authority to any other 
        official may be made.''.

SEC. 3. CHANGE IN CONDITIONS FOR TERMINATION OF PERIOD OF CONTINUOUS 
              RESIDENCE OR CONTINUOUS PHYSICAL PRESENCE.

    Section 240A(d)(1) of the Immigration and Nationality Act (8 U.S.C. 
1229b(d)(1)) is amended to read as follows:
            ``(1) Termination of continuous period.--For purposes of 
        this section, any period of continuous residence or continuous 
        physical presence in the United States shall be deemed to end, 
        except in the case of an alien who applies for cancellation of 
        removal under subsection (b)(2), when the alien is served a 
        notice to appear under section 239(a).''.

SEC. 4. PERMITTING CERTAIN PERMANENT RESIDENT ALIENS TO RETURN WITHOUT 
              SEEKING ADMISSION.

    Section 101(a)(13)(C) of the Immigration and Nationality Act (8 
U.S.C. 1101(a)(13)(C)) is amended--
            (1) by striking the comma at the end of each of clauses 
        (i), (ii), (iii), and (iv) and inserting a semicolon at the end 
        of each such clause;
            (2) by amending clause (v) to read as follows:
            ``(v) has committed outside the United States an offense 
        identified in section 212(a)(2), unless, since such offense, 
        the alien has been granted relief under section 212(h) or 
        240A(a), or under section 212(c) (before its repeal by section 
        304(b) of the Illegal Immigration Reform and Immigrant 
        Responsibility Act of 1996 (110 Stat. 3009-597));'';
            (3) by redesignating clause (vi) as clause (vii); and
            (4) by inserting after clause (v) the following:
            ``(vi) has committed in the United States an offense 
        identified in section 212(a)(2), and has been absent from the 
        United States for a continuous period in excess of 30 days 
        since committing such offense (or, if the absence after the 
        30th day was beyond the alien's control, for a continuous 
        period in excess of 60 days), unless, since such offense, the 
        alien has been granted relief under section 212(h) or 240A(a), 
        or under section 212(c) (before its repeal by section 304(b) of 
        the Illegal Immigration Reform and Immigrant Responsibility Act 
        of 1996 (110 Stat. 3009-597)); or''.

SEC. 5. RELEASE OF NONDANGEROUS ALIENS.

    (a) In General.--Section 236(c)(2) of the Immigration and 
Nationality Act (8 U.S.C. 1226(c)(2)) is amended to read as follows:
            ``(2) Release.--
                    ``(A) In general.--The Secretary of Homeland 
                Security may release an alien described in paragraph 
                (1) only in accordance with subparagraph (B) or (C). A 
                decision relating to release under this paragraph shall 
                take place in accordance with a procedure that 
                considers the severity of any offense committed by the 
                alien.
                    ``(B) Protection for witnesses, potential 
                witnesses, and persons cooperating with criminal 
                investigations.--The Secretary of Homeland Security may 
                release an alien described in paragraph (1) if--
                            ``(i) the Secretary of Homeland Security 
                        decides pursuant to section 3521 of title 18, 
                        United States Code, that release of the alien 
                        from custody is necessary to provide protection 
                        to a witness, a potential witness, a person 
                        cooperating with an investigation into major 
                        criminal activity, or an immediate family 
                        member or close associate of a witness, 
                        potential witness, or person cooperating with 
                        such an investigation; and
                            ``(ii) the alien satisfies the Secretary of 
                        Homeland Security that the alien will not pose 
                        a danger to the national security of the United 
                        States or the safety of persons or property and 
                        is likely to appear for any scheduled 
                        proceeding.
                    ``(C) Permanent resident aliens eligible for 
                cancellation of removal.--The Secretary of Homeland 
                Security may release an alien described in paragraph 
                (1) if the alien demonstrates, by a preponderance of 
                the evidence, that the alien--
                            ``(i) has prima facie evidence sufficient 
                        to establish that the alien is eligible for 
                        cancellation of removal under section 240A(a); 
                        and
                            ``(ii) will not pose a danger to the 
                        national security of the United States or the 
                        safety of persons or property and is likely to 
                        appear for any scheduled proceeding.''.
    (b) Application to Aliens Detained on Effective Date.--In the case 
of an alien detained under section 241(a)(2) of the Immigration and 
Nationality Act (8 U.S.C. 1231(a)(2)) on the date of the enactment of 
this Act, if the alien has prima facie evidence sufficient to establish 
that the alien is eligible for cancellation of removal under section 
240A(a) of such Act (8 U.S.C. 1229b(a)), as amended by section 2 of 
this Act (and subject to the other amendments made by this Act), the 
alien may seek release from detention under section 236(c)(2)(C) of 
such Act (8 U.S.C. 1226(c)(2)(C)), as added by this section.

SEC. 6. CLARIFICATION OF EFFECT OF VACATION OF CONVICTION.

    Section 101(a)(48) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(48)) is amended by adding at the end the following:
    ``(C) Any conviction entered by a court that otherwise would be 
considered a conviction under this paragraph shall continue to be so 
considered notwithstanding a vacation of that conviction, unless the 
conviction is vacated--
            ``(i) on the merits; or
            ``(ii) on grounds relating to a violation of a statutory or 
        constitutional right in the underlying criminal proceeding.''.

SEC. 7. EFFECTIVE DATE; SPECIAL APPLICABILITY RULE.

    (a) In General.--The amendments made by this Act shall take effect 
on the date of the enactment of this Act and shall apply to aliens 
who--
            (1) are in removal proceedings under the Immigration and 
        Nationality Act (8 U.S.C. 1101 et seq.) on or after such date;
            (2) were in such proceedings before such date, were 
        ineligible for cancellation of removal under section 240A(a) of 
        such Act (8 U.S.C. 1229b(a)) before such date, but would have 
        been eligible for cancellation of removal under such section if 
        the amendments made by this Act had been in effect during the 
        entire pendency of such proceedings; or
            (3) were in exclusion or deportation proceedings under such 
        Act before such date, and were ineligible for relief under 
        section 212(c) of such Act (as in effect on March 31, 1997, 
        before its repeal by section 304(b) of the Illegal Immigration 
        Reform and Immigrant Responsibility Act of 1996 (110 Stat. 
        3009-597)) by reason of the amendments made by section 440(d) 
        of the Antiterrorism and Effective Death Penalty Act of 1996 
        (Public Law 104-132; 110 Stat. 1277).
    (b) Special Applicability Rule.--
            (1) In general.--Notwithstanding any other provision of 
        law, aliens described in subsection (a)(3) shall be considered 
        to be, or to have been, in removal proceedings under the 
        Immigration and Nationality Act (8 U.S.C. 1101 et seq.) to the 
        extent necessary to permit them to apply, and be considered 
        eligible, for cancellation of removal under section 240A(a) of 
        such Act (8 U.S.C. 1229b(a)), as amended by this Act.
            (2) Relief.--If the Secretary of Homeland Security 
        determines that an alien described in subsection (a)(3) should 
        be provided relief pursuant to this Act, the Secretary of 
        Homeland Security shall take such steps as may be necessary to 
        terminate any proceedings to exclude or deport the alien that 
        may be pending, and shall grant or restore to the alien the 
        status of an alien lawfully admitted to the United States for 
        permanent residence.

SEC. 8. MOTIONS TO REOPEN.

    (a) In General.--Not later than 1 year after the effective date of 
the final regulations issued under section 9(b) of this Act, and in 
accordance with such regulations, an alien described in subsection (b) 
may file a motion to reopen removal, deportation, or exclusion 
proceedings in order to apply for cancellation of removal under section 
240A(a) of the Immigration and Nationality Act (8 U.S.C. 1229b(a)) 
pursuant to the amendments made by this Act.
    (b) Aliens Described.--An alien is described in this subsection if 
the alien--
            (1) is described in subsection (a) of section 7; and
            (2) is otherwise unable to apply, or reapply, for 
        cancellation of removal under section 240A(a) of the 
        Immigration and Nationality Act (8 U.S.C. 1229b(a)) by reason 
        of the procedural posture of the exclusion, deportation, or 
        removal proceedings that are, or were, pending against the 
        alien (including the fact that such proceedings are finally 
        concluded).
    (c) Evidence.--A motion filed under subsection (a) shall describe 
or set forth prima facie evidence sufficient to establish that the 
alien is eligible for cancellation of removal under section 240A(a) of 
the Immigration and Nationality Act (8 U.S.C. 1229b(a)), as amended by 
this Act.
    (d) No Reentry or Readmission to File or Prosecute Motion.--No 
alien may be admitted or otherwise authorized to enter the United 
States solely to file or prosecute a motion to reopen under this 
section or otherwise to apply for relief under this Act or the 
amendments made by this Act, except as the Secretary of Homeland 
Security may provide pursuant to the sole and unreviewable discretion 
of the Secretary of Homeland Security. Hearings held pursuant to this 
Act and the amendments made by this Act may be held in the United 
States or abroad, with the alien appearing in person or by video phone 
or similar device.
    (e) Discretion.--The grant or denial of any motion to reopen filed 
under this section shall be in the sole and unreviewable discretion of 
the Secretary of Homeland Security.
    (f) No Judicial Review.--No court shall have jurisdiction to review 
any decision of the Secretary of Homeland Security denying a motion to 
reopen under this section.

SEC. 9. RULES.

    (a) Issuance of Advance Notice of Proposed Rulemaking.--The 
Secretary of Homeland Security shall issue an advance notice of 
proposed rulemaking pertaining to this Act, and the amendments made by 
this Act, not later than 60 days after the date of the enactment of 
this Act.
    (b) Issuance of Final Regulations.--The Secretary of Homeland 
Security shall issue the final regulations to carry out this Act not 
later than 90 days after the date of the enactment of this Act, 
specifying an effective date that is not more than 15 days after the 
date of publication of such final regulations.

SEC. 10. SUNSET.

    This Act, and the amendments made by this Act, shall cease to have 
effect on December 31, 2008, or 3 years after the date on which final 
regulations to carry out this Act are issued, whichever occurs later.

SEC. 11. ANNUAL REPORT.

    The Secretary of Homeland Security annually shall submit to the 
Committee on the Judiciary of the United States House of 
Representatives and the Committee on the Judiciary of the Senate a 
report with respect to this Act and the amendments made by this Act. 
The report shall contain information on--
            (1) the number of aliens who applied for cancellation of 
        removal, release from detention, or any other immigration 
        benefit, based on this Act or the amendments made by this Act;
            (2) the crimes committed by the aliens described in 
        paragraph (1);
            (3) the number of applications described in paragraph (1) 
        that were granted; and
            (4) any other subject the Secretary of Homeland Security 
        considers relevant.
                                 <all>