H. R. 9944 (Introduced-in-House)

To authorize judicial review of temporary protected status terminations, and for other purposes.

Ms. Wasserman Schultz (for herself, Ms. Clarke of New York, Mr. Espaillat, Ms. Meng, Ms. Norton, Ms. Simon, Ms. Wilson of Florida, Mr. Amo, Mr. Beyer, Mr. Carson, Ms. Brown, Mr. Bell, Mr. Castro of Texas, Ms. Chu, Ms. Castor of Florida, Ms. Craig, Mr. Davis of Illinois, Ms. Dexter, Ms. DelBene, Mr. Frost, Ms. Lois Frankel of Florida, Mr. Gomez, Mrs. Grijalva, Mr. García of Illinois, Mr. Jackson of Illinois, Mr. Green of Texas, Ms. Kamlager-Dove, Mr. Horsford, Mr. Larsen of Washington, Mr. Larson of Connecticut, Mr. Latimer, Mr. Johnson of Georgia, Ms. Lofgren, Mr. Mannion, Ms. McClellan, Mr. McGarvey, Mr. Lynch, Mr. Meeks, Mr. McGovern, Ms. Matsui, Mr. Moulton, Mr. Moskowitz, Mr. Peters, Ms. Plaskett, Ms. Pelosi, Ms. Pressley, Ms. Pettersen, Mr. Pocan, Mr. Quigley, Ms. Ross, Ms. Salinas, Ms. Stansbury, Mr. Smith of Washington, Mr. Soto, Ms. Tlaib, Mr. Tonko, Mr. Veasey, Ms. Velázquez, and Mrs. Watson Coleman) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Rules, 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

To authorize judicial review of temporary protected status terminations, and for other purposes.

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

SEC. 2. Restoration of judicial review of temporary protected status determinations.

(a) Termination determinations.—Section 244(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1254a(b)(3)(B)) is amended to read as follows:

“(i) IN GENERAL.—If, after conducting the review required under subparagraph (A), the Secretary determines that the foreign state no longer continues to meet the conditions for designation under paragraph (1), the Secretary shall terminate the designation in accordance with this subparagraph.

“(I) be based solely upon the administrative record compiled and certified pursuant to paragraph (5)(D);

“(II) include written findings of fact and conclusions of law identifying the evidence supporting the determination;

“(III) address each statutory basis for designation under paragraph (1), including any basis upon which the designation or any redesignation was previously made;

“(IV) consider all relevant and reasonably available information regarding current country conditions, including information provided by the Department of State, other appropriate Federal agencies, international organizations, and credible nongovernmental organizations;

“(V) explain the Secretary’s evaluation of any material evidence that is inconsistent with the determination; and

“(VI) certify that the determination was made without regard to race, religion, ethnicity, national origin, political viewpoint, or any other constitutionally impermissible consideration.

“(iii) FEDERAL REGISTER.—The written determination required under clause (ii) shall be published in the Federal Register concurrently with any notice of termination of a designation under this subsection.

“(iv) EFFECTIVE DATE.—A termination under this subparagraph shall be effective in accordance with subsection (d)(3), but shall not be effective earlier than 60 days after the date on which the notice required under clause (iii) is published in the Federal Register or, if later, the expiration of the most recent previous extension under subparagraph (C).”.

(b) Judicial review.—Section 244(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1254a(b)(5)) is amended to read as follows:

“(A) REVIEWABILITY.—Notwithstanding any other provision of this Act or any other provision of law, any termination under this subsection shall constitute a final agency action subject to judicial review under chapter 7 of title 5, United States Code.

“(B) PERSONS AUTHORIZED TO BRING AN ACTION.—A civil action for judicial review may be brought by—

“(i) any individual who is eligible for, has applied for, or has been granted temporary protected status under this section;

“(iii) any organization or consortium of organizations representing or serving beneficiaries or applicants for temporary protected status; or

“(iv) any State or unit of local government alleging injury resulting from the challenged termination.

“(C) VENUE.—An action under this paragraph may be brought in the United States District Court for the District of Columbia or any appropriate district court.

“(i) PRESERVATION OF RECORDS.—Prior to issuing any designation, redesignation, extension, or termination under this subsection, the Secretary of Homeland Security shall compile, certify, and preserve an administrative record consisting of all materials compiled, considered, relied upon, generated, or before the Secretary of Homeland Security, directly or indirectly, in connection with the determination.

“(ii) DISSENTING ANALYSIS.—The administrative record shall include any dissenting recommendation, contrary analysis, or material evidence inconsistent with the determination that was compiled, considered, relied upon, generated, or before the decisionmaker.

“(iii) SCOPE OF REVIEW.—Judicial review shall ordinarily be limited to the administrative record, except that the reviewing court may consider evidence outside the record upon a showing of bad faith, improper conduct, material omission, or other extraordinary circumstances.

“(E) CONSIDERATIONS OF COURT.—In reviewing a final agency action, a court shall consider whether the agency failed to adequately consider relevant country conditions, including armed conflict, environmental disaster, public health emergencies, or other extraordinary and temporary conditions, including information obtained through consultation with the Department of State or any other Federal agency.

“(i) CLEAR AND CONVINCING EVIDENCE.—In any action challenging a termination of a designation, the Secretary of Homeland Security shall bear the burden of establishing by clear and convincing evidence, based on the administrative record, except to the extent the court considers evidence outside the record pursuant to subparagraph (D)(iii), that—

“(I) the requirements of paragraph (3)(B) have been satisfied and the foreign state no longer continues to meet the conditions for designation under paragraph (1);

“(II) the termination is supported by substantial evidence contained in the administrative record;

“(III) all relevant and reasonably available evidence regarding current country conditions was considered;

“(IV) the termination was not arbitrary, capricious, contrary to law, or motivated by unconstitutional or otherwise unlawful considerations; and

“(ii) VACATE TERMINATION.—In the case that the Secretary of Homeland Security fails to satisfy the burden under this subparagraph, the challenged termination shall be vacated.

“(i) IN GENERAL.—With respect to a challenged termination of a designation under this section, a reviewing court may—

“(III) postpone, suspend, or stay implementation of the challenged termination;

“(V) require the Secretary of Homeland Security to reconsider the termination consistent with the court’s decision; and

“(VI) grant any other legal or equitable relief the court determines appropriate.

“(ii) APPLICATION OF RELIEF.—Relief under this paragraph may extend beyond the named plaintiffs where necessary to provide complete relief, prevent inconsistent administration of this section, or ensure uniform application of this section.

“(iii) RULE OF CONSTRUCTION.—Nothing in this paragraph shall be construed to limit the authority of a court to certify a class under the Federal Rules of Civil Procedure or to issue declaratory or injunctive relief applicable to all persons affected by the challenged termination.

“(i) STAY OF TERMINATION.—Upon the filing of an action under this paragraph, the challenged termination shall be stayed pending final judgment.

“(I) each grant of temporary protected status affected by the challenged termination shall remain in effect;

“(II) each affected beneficiary shall remain authorized to remain in the United States;

“(III) any employment authorization issued pursuant to this section shall remain valid and shall be automatically extended by the Secretary of Homeland Security as necessary; and

“(IV) no beneficiary shall be removed, detained solely because of the challenged termination, or denied an immigration benefit, license, or employment authorization solely because of the challenged termination.

“(I) APPLICATION TO INDIVIDUALS.—The Secretary of Homeland Security shall establish an administrative procedure for the review of the denial of benefits to aliens under this section. Such procedure shall not prevent an alien from asserting protection under this section in removal proceedings if the alien demonstrates that the alien is a national of a foreign state designated under paragraph (1).

“(ii) to diminish any protection otherwise afforded under this Act or any other provision of Federal law; or

“(iii) to restrict the equitable authority of a court of the United States.”.

(c) Conforming amendment relating to judicial review.—Section 242 of the Immigration and Nationality Act (8 U.S.C. 1252) is amended by adding at the end the following:

“(h) Temporary protected status.—Notwithstanding any other provision of this section an action authorized under section 244(b)(5) may be brought and adjudicated in accordance with section 244(b)(5).”.

(a) CRA.—Section 804 of title 5, United States Code, is amended by adding at the end the following:

“(A) MAJOR RULE.—For purposes of this chapter, any determination by the Secretary of Homeland Security to terminate, partially terminate, or materially reduce a designation of temporary protected status, or any action that has the practical effect of terminating or materially reducing such a designation under section 244(b) of the Immigration and Nationality Act, shall constitute a major rule.

“(B) JUDICIAL REVIEW AVAILABLE.—Notwithstanding section 805, compliance with this chapter with respect to a determination described in this paragraph, including compliance with section 801(a)(1)(A), shall be subject to judicial review under section 244(b)(5) of the Immigration and Nationality Act.”.

(b) No force or effect.—Notwithstanding section 801(c) of title 5, United States Code, no determination described in paragraph (4) of section 804 of title 5, United States Code, shall have force or effect until—

(1) the submission requirements of section 801(a)(1)(A) of such title have been satisfied; and

(2) the latest date on which a major rule may take effect under section 801(a)(3) of such title has occurred, including any period of additional review provided under section 801(d) of such title.

(1) any determination with respect to a designation, redesignation, extension, or termination under section 244 of the Immigration and Nationality Act made on or after the date of enactment; and

(2) any civil action challenging such a determination that is pending on, or filed after, the date of enactment.

If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional or otherwise invalid, the remainder of this Act, the amendments made by this Act, and the application of such provisions and amendments to any other person or circumstance shall not be affected thereby.