[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 5371 Introduced in Senate (IS)]
<DOC>
119th CONGRESS
2d Session
S. 5371
To close loopholes in the immigration laws that serve as incentives to
aliens to attempt to enter the United States unlawfully, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
August 7, 2026
Mr. Lee (for himself, Mr. Tuberville, Mrs. Britt, Mr. Cruz, Mr. Scott
of Florida, and Mr. Banks) introduced the following bill; which was
read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To close loopholes in the immigration laws that serve as incentives to
aliens to attempt to enter the United States unlawfully, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Stopping Border
Surges Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--UNACCOMPANIED ALIEN CHILDREN
Sec. 101. Repatriation of unaccompanied alien children.
Sec. 102. Clarification of standards for family detention.
Sec. 103. Special immigrant juvenile status for immigrants unable to
reunite with either parent.
TITLE II--ASYLUM REFORM
Sec. 201. Clarification of asylum eligibility.
Sec. 202. Safe third country.
Sec. 203. Application timing.
Sec. 204. Clarification of burden of proof.
Sec. 205. Anti-fraud investigative work product.
Sec. 206. Additional exception.
Sec. 207. Jurisdiction of asylum applications.
Sec. 208. Renunciation of asylum status pursuant to return to home
country.
Sec. 209. Clarification regarding employment eligibility.
Sec. 210. Notice concerning frivolous asylum applications.
Sec. 211. Credible fear interviews.
Sec. 212. Recording expedited removal and credible fear interviews.
Sec. 213. Penalties for asylum fraud.
Sec. 214. Statute of limitations for asylum fraud.
Sec. 215. Technical amendments.
TITLE I--UNACCOMPANIED ALIEN CHILDREN
SEC. 101. REPATRIATION OF UNACCOMPANIED ALIEN CHILDREN.
(a) In General.--Section 235 of the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is
amended--
(1) in subsection (a)--
(A) in paragraph (2)--
(i) by amending the paragraph heading to
read as follows: ``Rules for unaccompanied
alien children.--'';
(ii) in subparagraph (A)--
(I) in the matter preceding clause
(i), by striking ``who is a national or
habitual resident of a country that is
contiguous with the United States'';
(II) in clause (i), by inserting
``and'' at the end;
(III) in clause (ii), by striking
``; and'' and inserting a period; and
(IV) by striking clause (iii);
(iii) in subparagraph (B)--
(I) in the matter preceding clause
(i), by striking ``may'';
(II) in clause (i), by inserting
``may'' before ``permit''; and
(III) in clause (ii), by inserting
``shall'' before ``return''; and
(iv) in subparagraph (C)--
(I) by amending the subparagraph
heading to read as follows:
``Agreements with foreign countries.--
''; and
(II) in the matter preceding clause
(i), by striking ``shall negotiate
agreements between the United States
and countries contiguous to the United
States'' and inserting ``may negotiate
agreements between the United States
and any foreign country the Secretary
determines appropriate'';
(B) by redesignating paragraphs (3) through (5) as
paragraphs (4) through (6), respectively;
(C) by inserting after paragraph (2) the following:
``(3) Special rules for interviewing unaccompanied alien
children.--An unaccompanied alien child shall be interviewed by
an immigration officer who has received specialized training in
interviewing child trafficking victims.''; and
(D) in paragraph (6)(D), as redesignated--
(i) in the matter preceding clause (i), by
striking ``, except for an unaccompanied alien
child from a contiguous country subject to
exceptions under subsection (a)(2),'' and
inserting ``who does not meet the criteria
listed in paragraph (2)(A)''; and
(ii) in clause (i), by inserting ``, which
shall include a hearing before an immigration
judge not later than 14 days after being
screened in accordance with paragraph (5)''
before the semicolon at the end;
(2) in subsection (b)--
(A) in paragraph (2)--
(i) in the matter preceding subparagraph
(A), by striking ``services'' and inserting
``Services'';
(ii) in subparagraph (A), by inserting
``who does not meet the criteria listed in
subsection (a)(2)(A)'' before the semicolon at
the end; and
(iii) in subparagraph (B), by inserting
``and does not meet the criteria listed in
subsection (a)(2)(A)'' before the period at the
end; and
(B) in paragraph (3), by striking ``an
unaccompanied alien child in custody shall'' and all
that follows, and inserting the following: ``an
unaccompanied alien child in custody--
``(A) in the case of a child who does not meet the
criteria listed in subsection (a)(2)(A), shall transfer
the custody of such child to the Secretary of Health
and Human Services not later than 30 days after
determining such child is an unaccompanied alien child
who does not meet such criteria; or
``(B) in the case of child who meets the criteria
listed in subsection (a)(2)(A), may transfer the
custody of such child to the Secretary of Health and
Human Services after determining such child is an
unaccompanied alien child who meets such criteria.'';
and
(3) in subsection (c)--
(A) in paragraph (3), by adding at the end the
following:
``(D) Information about individuals with whom
children are placed.--
``(i) Information to be provided to the
department of homeland security.--Before
placing an unaccompanied alien child with an
individual, the Secretary of Health and Human
Services shall provide to the Secretary of
Homeland Security the following information
regarding the individual with whom the child
will be placed:
``(I) The name of such individual.
``(II) The Social Security number
of such individual, if available.
``(III) The date of birth of such
individual.
``(IV) The location of such
individual's residence at which the
child will be placed.
``(V) The immigration status of
such individual, if known.
``(VI) Contact information for such
individual.
``(ii) Special rule.--Not later than 90
days after the date of the enactment of this
subparagraph, the Secretary of Health and Human
Services shall provide to the Secretary of
Homeland Security the information listed in
clause (i) with respect to any unaccompanied
alien child apprehended between January 1,
2021, and such date of enactment who the
Secretary of Health and Human Services has
placed with an individual.
``(iii) Activities of the secretary of
homeland security.--Not later than 30 days
after receiving the information listed in
clause (i), the Secretary of Homeland Security
shall--
``(I) if the immigration status of
an individual with whom a child is
placed is unknown, investigate the
immigration status of such individual;
and
``(II) upon determining an
individual with whom a child is placed
is unlawfully present in the United
States, initiate removal proceedings
against such individual pursuant to
chapter 4 of title II of the
Immigration and Nationality Act (8
U.S.C. 1221 et seq.)''; and
(B) in paragraph (5)--
(i) by inserting ``(at no expense to the
Government)'' after ``to the greatest extent
practicable''; and
(ii) by striking ``have counsel to
represent them'' and inserting ``have access to
counsel to represent them''.
(b) Effective Date.--The amendments made by this section shall
apply to any unaccompanied alien child apprehended on or after the date
of the enactment of this Act.
SEC. 102. CLARIFICATION OF STANDARDS FOR FAMILY DETENTION.
(a) In General.--Section 235 of the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is
amended--
(1) by redesignating subsection (h) as subsection (j) and
moving it so as to appear after subsection (i); and
(2) by inserting after subsection (g) the following:
``(h) Rule of Construction.--
``(1) In general.--Notwithstanding any other provision of
law, judicial determination, consent decree, or settlement
agreement--
``(A) the detention of any alien child who is not
an unaccompanied alien child shall be governed by
sections 217, 235, 236, and 241 of the Immigration and
Nationality Act (8 U.S.C. 1187, 1225, 1226, and 1231);
``(B) there is no presumption that an alien child
who is not an unaccompanied alien child should not be
detained; and
``(C) all determinations regarding the detention of
such children shall be in the discretion of the
Secretary of Homeland Security.
``(2) Release of minors other than unaccompanied aliens.--
An alien minor who is not an unaccompanied alien child may not
be released by the Secretary of Homeland Security other than to
a parent or legal guardian who is lawfully present in the
United States.
``(3) Family detention.--The Secretary of Homeland Security
shall--
``(A) maintain the care and custody of an alien,
during the period during which the charges described in
clause (i) are pending, who--
``(i) is charged only with a misdemeanor
offense under section 275(a) of the Immigration
and Nationality Act (8 U.S.C. 1325(a)); and
``(ii) entered the United States with the
alien's child who has not attained 18 years of
age; and
``(B) detain the alien with the alien's child.''.
(b) Sense of Congress.--It is the sense of Congress that the
amendment made by subsection (a) is intended to satisfy the
requirements of the Settlement Agreement in Flores v. Meese, No. 85-
4544 (C.D. Cal) as approved by the court on January 28, 1997, with
respect to its interpretation in Flores v. Johnson, 212 F. Supp. 3d 864
(C.D. Cal. 2015), that the agreement applies to accompanied minors.
(c) Effective Date.--The amendment made by subsection (a)--
(1) shall take effect on the date of the enactment of this
Act; and
(2) shall apply to all actions that occur before, on, or
after such date of enactment.
(d) Preemption of State Licensing Requirements.--Notwithstanding
any other provision of law, judicial determination, consent decree, or
settlement agreement, no State may require that an immigration
detention facility used to detain children who have not attained 18
years of age, or families consisting of 1 or more of such children and
the parents or legal guardians of such children, that is located in
such State, be licensed by the State or by any political subdivision of
such State.
SEC. 103. SPECIAL IMMIGRANT JUVENILE STATUS FOR IMMIGRANTS UNABLE TO
REUNITE WITH EITHER PARENT.
Section 101(a)(27)(J) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(27)(J)) is amended--
(1) by moving the subparagraph 2 ems to the left;
(2) in clause (i), by striking ``, and whose reunification
with 1 or both of the immigrant's parents is not viable due to
abuse, neglect, abandonment, or a similar basis found under
State law''; and
(3) in clause (iii)--
(A) in subclause (I), by striking ``and'' at the
end;
(B) in subclause (II), by adding ``and'' at the
end; and
(C) by adding at the end the following:
``(III) an alien may not be granted special
immigrant juvenile status under this
subparagraph if his or her reunification with
any parent or legal guardian is not precluded
by abuse, neglect, abandonment, or any similar
cause under State law;''.
TITLE II--ASYLUM REFORM
SEC. 201. CLARIFICATION OF ASYLUM ELIGIBILITY.
(a) Place of Arrival.--Section 208(a)(1) of the Immigration and
Nationality Act (8 U.S.C. 1158(a)(1)) is amended by striking ``or who
arrives in the United States (whether or not at a designated port of
arrival and including an alien who is brought to the United States
after having been interdicted in international or United States
waters),'' and inserting ``and has arrived in the United States at a
port of entry,''.
(b) Eligibility.--Section 208(b)(1)(A) of such Act (8 U.S.C.
1158(b)(1)(A)) is amended by inserting ``and is eligible to apply for
asylum under subsection (a)'' before the period at the end.
SEC. 202. SAFE THIRD COUNTRY.
Section 208(a)(2)(A) of the Immigration and Nationality Act (8
U.S.C. 1158(a)(2)(A)) is amended to read as follows:
``(A) Safe third country.--Paragraph (1) shall not
apply to an alien if the Secretary of Homeland Security
or the Attorney General determines--
``(i) the alien may be removed to a country
(other than the country of the alien's
nationality or, in the case of an alien having
no nationality, the country of the alien's last
habitual residence) in which the alien's life
or freedom would not be threatened on account
of race, religion, nationality, membership in a
particular social group, or political opinion,
and where the alien would have access to a full
and fair procedure for determining a claim to
asylum or equivalent temporary protection,
unless the Attorney General, on a case-by-case
basis, finds that it is in the public interest
for the alien to receive asylum in the United
States; or
``(ii) the alien entered, attempted to
enter, or arrived in the United States after
transiting through at least one country outside
the alien's country of citizenship,
nationality, or last lawful habitual residence
en route to the United States, unless--
``(I) the alien demonstrates that
he or she applied for protection from
persecution or torture in at least one
country outside the alien's country of
citizenship, nationality, or last
lawful habitual residence through which
the alien transited en route to the
United States, and the alien received a
final judgement denying the alien
protection in each country;
``(II) the alien demonstrates that
he or she was a victim of a severe form
of trafficking in which a commercial
sex act was induced by force, fraud, or
coercion, or in which the person
induced to perform such act was younger
than 18 years of age; or in which the
trafficking included the recruitment,
harboring, transportation, provision,
or obtaining of a person for labor or
services through the use of force,
fraud, or coercion for the purpose of
subjection to involuntary servitude,
peonage, debt bondage, or slavery, and
was unable to apply for protection from
persecution in all countries that alien
transited en route to the United States
as a result of such severe form of
trafficking; or
``(III) the only countries through
which the alien transited en route to
the United States were, at the time of
the transit, not parties to the 1951
United Nations Convention relating to
the Status of Refugees, the 1967
Protocol Relating to the Status of
Refugees, or the United Nations
Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment.''.
SEC. 203. APPLICATION TIMING.
Section 208(a)(2)(B) of the Immigration and Nationality Act (8
U.S.C. 1158(a)(2)(B)) is amended by striking ``1 year'' and inserting
``6 months''.
SEC. 204. CLARIFICATION OF BURDEN OF PROOF.
Section 208(b)(1)(B)(i) of the Immigration and Nationality Act (8
U.S.C. 1158(b)(1)(B)(i)) is amended by striking ``at least one central
reason'' and inserting ``the central reason''.
SEC. 205. ANTI-FRAUD INVESTIGATIVE WORK PRODUCT.
(a) Asylum Credibility Determinations.--Section 208(b)(1)(B)(iii)
of the Immigration and Nationality Act (8 U.S.C. 1158(b)(1)(B)(iii)) is
amended by inserting ``, including statements made to, and
investigative reports prepared by, immigration authorities and other
government officials'' after ``all relevant factors''.
(b) Relief for Removal Credibility Determinations.--Section
240(c)(4)(C) of such Act (8 U.S.C. 1229a(c)(4)(C)) is amended by
inserting ``, including statements made to, and investigative reports
prepared by, immigration authorities and other government officials''
after ``all relevant factors''.
SEC. 206. ADDITIONAL EXCEPTION.
Section 208(b)(2)(A) of the Immigration and Nationality Act (8
U.S.C. 1158(b)(2)(A)) is amended--
(1) in clause (v), by striking ``or'' at the end;
(2) in clause (vi), by striking the period at the end and
inserting ``; or''; and
(3) by adding at the end the following:
``(vii) there are reasonable grounds for
concluding the alien could avoid persecution by
relocating to another part of the alien's
country of nationality or, if stateless,
another part of the alien's country of last
habitual residence.''.
SEC. 207. JURISDICTION OF ASYLUM APPLICATIONS.
Section 208(b)(3) of the Immigration and Nationality Act (8 U.S.C.
1158) is amended by striking subparagraph (C).
SEC. 208. RENUNCIATION OF ASYLUM STATUS PURSUANT TO RETURN TO HOME
COUNTRY.
(a) In General.--Section 208(c) of the Immigration and Nationality
Act (8 U.S.C. 1158(c)) is amended by adding at the end the following:
``(4) Renunciation of status pursuant to return to home
country.--
``(A) In general.--Except as provided in
subparagraph (B), any alien who has been granted asylum
status under this Act shall have such status terminated
if the alien--
``(i) applied for such status because of
persecution or a well-founded fear of
persecution in that country on account of race,
religion, nationality, membership in a
particular social group, or political opinion;
and
``(ii) absent changed country conditions,
subsequently returns to the country of such
alien's nationality or, in the case of an alien
having no nationality, returns to any country
in which such alien last habitually resided.
``(B) Waiver.--The Secretary has discretion to
waive the application of subparagraph (A) if it is
established, to the satisfaction of the Secretary, that
the alien had a compelling reason for returning to his
or her country of nationality or last habitual
residence. Such waiver may be sought prior to departing
from the United States or upon the alien's return to
the United States.''.
(b) Conforming and Technical Amendments.--Section 208(c)(3) of such
Act (8 U.S.C. 1158(c)(3)) is amended--
(1) by inserting ``or (4)'' after ``paragraph (2)''; and
(2) by striking ``under section'' and inserting ``under
sections''.
SEC. 209. CLARIFICATION REGARDING EMPLOYMENT ELIGIBILITY.
Section 208(d)(2) of the Immigration and Nationality Act (8 U.S.C.
1158(d)(2)) is amended--
(1) by striking ``prior to 180 days'' and inserting
``before the date that is 1 year''; and
(2) by inserting ``and such authorization shall expire on
the date that is 6 months after the date on which it is
granted'' before the period at the end.
SEC. 210. NOTICE CONCERNING FRIVOLOUS ASYLUM APPLICATIONS.
(a) In General.--Section 208(d)(4) of the Immigration and
Nationality Act (8 U.S.C. 1158(d)(4)) is amended--
(1) in the matter preceding subparagraph (A), by inserting
``the Secretary of Homeland Security or'' before ``the Attorney
General'';
(2) in subparagraph (A), by striking ``and of the
consequences, under paragraph (6), of knowingly filing a
frivolous application for asylum; and'' and inserting a
semicolon;
(3) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(4) by adding at the end the following:
``(C) ensure that a written warning appears on the
asylum application advising the alien of the
consequences of filing a frivolous application and
serving as notice to the alien of the consequence of
filing a frivolous application.''.
(b) Conforming Amendment.--Section 208(d)(6) of the Immigration and
Nationality Act (8 U.S.C. 1158(d)(6)) is amended to read as follows:
``(6) Frivolous applications.--
``(A) Consequence.--If the Secretary of Homeland
Security or the Attorney General determines an alien
has knowingly made a frivolous application for asylum
after receiving the written warning required under
paragraph (4)(C), such alien shall be permanently
ineligible for any benefits under this chapter,
effective as of the date of the final determination of
such application.
``(B) Determination.--An application shall be
considered frivolous if the Secretary of Homeland
Security or the Attorney General determines, in
accordance with subparagraph (C), that--
``(i) the application is so insufficient in
substance that it is clear that the applicant
knowingly filed the application solely or in
part to delay removal from the United States,
to seek employment authorization as an
applicant for asylum pursuant to regulations
issued pursuant to paragraph (2), or to seek
issuance of a Notice to Appear in order to
pursue Cancellation of Removal under section
240A(b); or
``(ii) any of the material elements are
knowingly fabricated.
``(C) Opportunity to clarify claim.--An application
may not be considered frivolous under this paragraph
unless the Secretary or the Attorney General are
satisfied that the applicant, during the course of the
proceedings, has had sufficient opportunity to clarify
any discrepancies or implausible aspects of the
applicant's claim.
``(D) Withholding of removal.--A determination
under this paragraph that an alien filed a frivolous
asylum application shall not preclude such alien from
seeking withholding of removal under section 241(b)(3)
or protection pursuant to the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, done at New York December 10, 1984.''.
SEC. 211. CREDIBLE FEAR INTERVIEWS.
Section 235(b)(1)(B)(v) of the Immigration and Nationality Act (8
U.S.C. 1225(b)(1)(B)(v)) is amended by striking ``claim'' and all that
follows, and inserting ``claim, as determined pursuant to section
208(b)(1)(B)(iii), and such other facts as are known to the officer,
that the alien could establish eligibility for asylum under section
208, and it is more probable than not that the statements made by, and
on behalf of, the alien in support of the alien's claim are true.''.
SEC. 212. RECORDING EXPEDITED REMOVAL AND CREDIBLE FEAR INTERVIEWS.
(a) In General.--The Secretary of Homeland Security shall establish
quality assurance procedures and take steps to effectively ensure
that--
(1) questions by employees of the Department of Homeland
Security exercising expedited removal authority under section
235(b) of the Immigration and Nationality Act (8 U.S.C.
1225(b)) are asked in a uniform manner, to the extent possible;
and
(2) such questions and the answers provided in response to
such questions are recorded in a uniform manner.
(b) Credible Fear Interview Checklists.--The Secretary of Homeland
Security shall--
(1) provide a checklist of standard questions and concepts
to be addressed in all interviews required under section 235(b)
of the Immigration and Nationality Act (8 U.S.C. 1225(b)) to
immigration officers exercising decision-making authority in
such interviews;
(2) routinely update such checklist to include relevant
changes to law and procedures; and
(3) require all immigration officers utilizing such
checklists to provide concise justifications of their decisions
regardless of whether credible fear was or was not established
by the alien.
(c) Factors Relating to Sworn Statements.--To the extent
practicable, any sworn or signed written statement taken from an alien
as part of the record of a proceeding under section 235(b)(1)(A) of the
Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(A)) shall be
accompanied by a recording of the interview which served as the basis
for such sworn statement.
(d) Interpreters.--The Secretary of Homeland Security shall ensure
the use of a competent interpreter who is not affiliated with the
government of the country from which the alien may claim asylum if the
interviewing officer does not speak a language understood by the alien.
(e) Recordings in Immigration Proceedings.--All interviews of
aliens subject to expedited removal shall be recorded (either by audio
or by audio visual). Such recordings shall be included in the record of
proceeding and shall be considered as evidence in any further
proceedings involving such aliens.
(f) No Private Right of Action.--Nothing in this section may be
construed to create--
(1) any right, benefit, trust, or responsibility, whether
substantive or procedural, enforceable in law or equity by a
party against the United States, its departments, agencies,
instrumentalities, entities, officers, employees, or agents, or
any person; or
(2) any right of review in any administrative, judicial, or
other proceeding.
SEC. 213. PENALTIES FOR ASYLUM FRAUD.
Section 1001 of title 18, United States Code, is amended by adding
at the end the following:
``(d) Any person who, in any matter before the Secretary of
Homeland Security or the Attorney General pertaining to asylum under
section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) or
withholding of removal under section 241(b)(3) of such Act (8 U.S.C.
1231(b)(3)), knowingly and willfully--
``(1) makes any materially false, fictitious, or fraudulent
statement or representation; or
``(2) makes or uses any false writings or document knowing
the same to contain any materially false, fictitious, or
fraudulent statement or entry,
shall be fined under this title, imprisoned not more than 10 years, or
both.''.
SEC. 214. STATUTE OF LIMITATIONS FOR ASYLUM FRAUD.
Section 3291 of title 18, United States Code, is amended--
(1) by inserting ``and section 1546,'' after
``inclusive,''; and
(2) by inserting ``or within 10 years after the fraud is
discovered'' before the period at the end.
SEC. 215. TECHNICAL AMENDMENTS.
Section 208 of the Immigration and Nationality Act, as amended by
this title, is further amended--
(1) in subsection (a)--
(A) in paragraph (2)(D), by inserting ``Secretary
of Homeland Security or the'' before ``Attorney
General''; and
(B) in paragraph (3), by inserting ``Secretary of
Homeland Security or the'' before ``Attorney General'';
(2) in subsection (b)(2), by inserting ``Secretary of
Homeland Security or the'' before ``Attorney General'' each
place such term appears;
(3) in subsection (c)--
(A) in paragraph (1), by striking ``Attorney
General'' each place such term appears and inserting
``Secretary of Homeland Security'';
(B) in paragraph (2), in the matter preceding
subparagraph (A), by inserting ``Secretary of Homeland
Security or the'' before ``Attorney General''; and
(C) in paragraph (3), by inserting ``Secretary of
Homeland Security or the'' before ``Attorney General'';
and
(4) in subsection (d)--
(A) in paragraph (1), by inserting ``Secretary of
Homeland Security or the'' before ``Attorney General''
each place such term appears;
(B) in paragraph (2), by striking ``Attorney
General'' and inserting ``Secretary of Homeland
Security''; and
(C) in paragraph (5)--
(i) in subparagraph (A), by striking
``Attorney General'' and inserting ``Secretary
of Homeland Security''; and
(ii) in subparagraph (B), by inserting
``the Secretary of Homeland Security or''
before ``the Attorney General''.
<all>