[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2865 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 2865
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
June 13, 2005
Mr. Filner (for himself, Mr. Pastor, Mr. Grijalva, Mr. Serrano, and Mr.
McDermott) 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 2005''.
(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(division C of Public Law 104-208), section 321 of such Act is repealed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 Secretary of Homeland Security 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 Secretary of Homeland Security 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 Secretary of Homeland Security shall not release such felon
from custody.
``(2) Non-release.--The Secretary of Homeland Security 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 Secretary of Homeland
Security 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 Secretary of Homeland Security 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 Secretary of Homeland Security 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 Department of
Homeland Security, as respondent. Service of the petition to
review shall be made upon the Secretary of Homeland Security of
the United States and upon the official of the Department of
Homeland Security in charge of the 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 Secretary of Homeland Security'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 Secretary of Homeland Security'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 Secretary of Homeland Security 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 Secretary of Homeland
Security 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
Secretary of Homeland Security 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 Secretary of Homeland Security 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).
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