I 111th CONGRESS 1st Session H. R. 3628 IN THE HOUSE OF REPRESENTATIVES September 22, 2009 Mr. Poe of Texas introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Foreign Affairs, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To create a cause of action and allow standing in Federal courts against a country that denies or unreasonably delays the repatriation of a national ordered removed from the United States to such country who later commits a crime of violence in the United States, to withhold foreign assistance from each country that denies or unreasonably delays the repatriation of nationals of such country who have been ordered removed from the United States, to prohibit the issuance of visas to nationals of such country, and for other purposes.

1.

Failure to repatriate exception to immunity

(a)

Standing in Federal courts

(1)

In general

Chapter 97 of title 28, United States Code, is amended by inserting after section 1605A the following:

1605B.

Failure to repatriate exception to the jurisdictional immunity of a foreign state

(a)

No immunity

A foreign state shall not be immune from the jurisdiction of courts of the United States in any case not otherwise covered by this chapter— (1)which is brought against a foreign state that denies or unreasonably delays the repatriation of an alien who— (A)is a citizen, subject, national, or resident of such country; (B)has received a final order of removal under chapter 4 of title II of the Immigration and Nationality Act (8 U.S.C. 1221 et seq.); and (C)commits and is convicted of a crime of violence in the United States after the issuance of such final order; and (2)in which money damages for personal injury or death caused by the crime of violence referred to in paragraph (1)(C) are sought by the victim of such crime, by the legal representative of such victim, or by the United States on behalf of such victim. (b)

Private right of action

A foreign state that denies or unreasonably delays the repatriation of an alien described under subsection (a)(1), and any official, employee, or agent of that foreign state, who is responsible for such denial or delay, while acting within the scope of his or her office, employment, or agency, shall be liable to the victim of the crime of violence described under subsection (a)(1)(C), to the legal representative of such victim, or to the United States on behalf of such victim, for money damages for personal injury or death caused by such crime, committed by such alien, for which the courts of the United States may maintain jurisdiction under this section. (c)

Money damages

If the United States proceeds with an action under this subsection and the court awards money damages, such money damages shall be awarded to the victim of the crime of violence described under subsection (a)(1)(C). (d)

Attorney fees

In the case of any prevailing plaintiff, other than the United States, under subsection (b), the court may award to the prevailing plaintiff the costs of the action and reasonable attorney fees. (e)

Limitations

An action may be brought or maintained under this section if the action is commenced— (1)not later than 5 years after the date on which the crime of violence that is the basis for the action was committed if the crime of violence is not punishable by death; and (2)at any time without limitation if the crime of violence that is the basis for the action is punishable by death. (f)

Definitions

In this section: (1)

Crime of violence

The term crime of violence means— (A)murder, rape, or the sexual abuse of a minor; (B)an offense that has as an element the use, attempted use, or threatened use of physical force against another person; or (C)any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against another person may be used in the course of committing the offense. (2)

Denies or unreasonably delays

(A)

In general

Except as provided under subparagraph (B), a country denies or unreasonably delays the acceptance of an alien who is a citizen, subject, national, or resident of the country if the country does not accept the alien within the removal period. (B)

Alien that may not be removed

For purposes of subparagraph (A), a country does not deny or unreasonably delay the acceptance of an alien who is a citizen, subject, national, or resident of the country if such alien may not be removed pursuant to section 241 of the Immigration and Nationality Act (8 U.S.C. 1231). (3)

Removal period

The term removal period has the meaning given such term in section 241(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1231(a)(1)).

. (2)

Amendment to chapter analysis

The table of sections at the beginning of chapter 97 of title 28, United States Code, is amended by inserting after the item relating to section 1605A the following: 1605B. Failure to repatriate exception to jurisdictional immunity of a foreign state. . (b)

Conforming amendment

Section 1607(a) of title 28, United States Code, is amended by striking or 1605A and inserting, 1605A, or 1605B.

2.

Prohibition on foreign assistance to a country that denies or unreasonably delays the repatriation of a national who has been ordered removed from the United States

Chapter 1 of part I of the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.) is amended by adding at the end the following:

137.

Prohibition on assistance to a country that denies or unreasonably delays the repatriation of a national who has been ordered removed from the United States

(a)

In General

Except as otherwise provided under this section, no assistance may be provided under this Act to a foreign country that denies or unreasonably delays the acceptance of an alien who— (1)is physically present in the United States; (2)is a citizen, subject, national, or resident of such country; and (3)has received a final order of removal under chapter 4 of title II of the Immigration and Nationality Act (8 U.S.C. 1221 et seq.). (b)

Quarterly Reports

Except as otherwise provided under this section, not later than 90 days after the date of enactment of this section, and every 3 months thereafter, the Secretary of Homeland Security shall submit a report to the Congress that— (1)lists all the countries that deny or unreasonably delay the acceptance of an alien described under subsection (a); and (2)includes the total number of aliens described under subsection (a), organized by— (A)name; (B)country; (C)detention status; and (D)criminal status. (c)

Compliance with repatriation

If the Secretary of Homeland Security determines that a country listed in the quarterly report under subsection (b) has accepted each alien listed with respect to that country under subsection (b)(2), the country shall be removed from the list in the next quarterly report submitted under subsection (b) and shall not be subject to the sanctions described under subsection (a) or under section 241(b)(4) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(4)), unless subsection (b) of this section applies to such country with respect to another alien. (d)

Emergency and humanitarian exceptions

The prohibition under subsection (a) shall not apply if the President determines and certifies to the Congress that there is an emergency circumstance or a humanitarian reason to provide assistance otherwise subject to the prohibition. The authority of the President to make determinations under this subsection may not be delegated. (e)

Definitions

In this section: (1)

Denies or unreasonably delays

(A)

In general

Except as provided under subparagraph (B), a country denies or unreasonably delays the acceptance of an alien who is a citizen, subject, national, or resident of the country if the country does not accept the alien within the removal period. (B)

Alien that may not be removed

For purposes of subparagraph (A), a country does not deny or unreasonably delay the acceptance of an alien who is a citizen, subject, national, or resident of the country if such alien may not be removed pursuant to section 241 of the Immigration and Nationality Act (8 U.S.C. 1231). (2)

Removal period

The term removal period has the meaning given such term in section 241(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1231(a)(1)).

.

3.

Discontinuing granting visas to nationals of country denying or delaying accepting aliens

(a)

Amendment

Section 243 of the Immigration and Nationality Act (8 U.S.C. 1253) is amended by striking subsection (d). (b)

Discontinuing Granting Visas to Nationals of Country Denying or Delaying Accepting Alien

Section 241(b) of the Immigration and Nationality Act (8 U.S.C. 1231(b)) is amended by adding at the end the following: (4)

Discontinuing Granting Visas and Denying Admission to Nationals of Country Denying or Delaying Accepting Aliens

(A)

Discontinuing granting visas

Except as provided under subparagraph (C), if a country is listed in the most recent quarterly report submitted by the Secretary of Homeland Security to Congress under section 137(b) of the Foreign Assistance Act of 1961, the Secretary of State may not issue a visa to a citizen, subject, national, or resident of such country until— (i)the Secretary of Homeland Security notifies the Secretary of State that the country is not subject to the sanction under section 137(a) of that Act; or (ii)each alien listed in the report with respect to such country has otherwise been removed from the United States. (B)

Denying admission to nationals and foreign government officials

Except as provided under subparagraph (C), if a country is listed in the most recent quarterly report submitted by the Secretary of Homeland Security to Congress under section 137(b) of the Foreign Assistance Act of 1961, the Secretary of Homeland Security, in consultation with the Secretary of State— (i)shall deny admission to any citizen, subject, national, or resident of that country who has received any immigrant or nonimmigrant visa; and (ii)shall deny admission to any citizen, subject, national, or resident of that country who has received a nonimmigrant visa pursuant to subparagraph (A) or (G) of section 101(a)(15). (C)

Exception

Subparagraphs (A) and (B) do not apply if the Secretary of State determines that the life or freedom of the visa applicant or individual seeking admission would be threatened in the country listed under section 137(b) of the Foreign Assistance Act of 1961. (D)

Effect of unauthorized issuance

Any visa issued in violation of this paragraph shall be null and void. .

4.

Notice to State and local law enforcement

(a)

Notice

(1)

In general

As soon as practicable, the Secretary of Homeland Security shall notify the chief law enforcement officer of the State and of the local jurisdiction in which any alien described in paragraph (2) has been detained by the United States is released. (2)

Alien described

An alien is described in this paragraph if the alien— (A)is listed in the most recent quarterly report submitted by the Secretary of Homeland Security to Congress under section 137(b) of the Foreign Assistance Act of 1961; or (B)has received a final order of removal under chapter 4 of title II of the Immigration and Nationality Act (8 U.S.C. 1221 et seq.) and has not been removed from the United States. (b)

Information contained in notice

The notice under subsection (a) shall include the following information, if available, about each alien: (1)Name. (2)Location where the alien is released. (3)Date of release. (4)Country of nationality. (5)Detention status. (6)Criminal history, including probation and parole information.