[Congressional Record Volume 142, Number 137 (Saturday, September 28, 1996)]
[Extensions of Remarks]
[Pages E1806-E1808]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           IMMIGRATION COURT

                                 ______
                                 

                           HON. BILL McCOLLUM

                               of florida

                    in the house of representatives

                       Friday, September 27, 1996

  Mr. McCOLLUM. Mr. Speaker, today I am introducing legislation to 
establish a new United States Immigration Court. This bill will remove 
the immigration adjudication functions from the Justice Department and 
invest them in a new article I court, composed of a trial division and 
an appellate division whose decisions will be appealable to the Court 
of Appeals for the Federal Circuit.
  The system for adjudicating immigration matters has matured 
tremendously over the last 15 years. Special inquiry judges have become 
true immigration judges in just about every aspect but name, and the 
immigration reform conference report that the House passed on Wednesday 
rectifies that situation. The Board of Immigration Appeals has been 
greatly expanded, and the whole Executive Office for Immigration Review 
has been separated from the Immigration and Naturalization Service.
  Yet much of this system, including the Board of Immigration Appeals, 
does not exist in statute. And while separated from the INS, aliens 
still take their cases before judges who are employed by the same 
department as the trial attorneys who are prosecuting them.
  I believe it is time to take the next logical step and establish a 
full-blown adjudicatory system in statute, and I believe that such a 
system should be independent of the Justice Department. This is not a 
new concept. I first introduced legislation to take this step in 1982, 
and I continue to believe that an article I court would allow for more 
efficient and streamlined consideration of immigration claims with 
enhanced confidence by aliens and practitioners in the fairness and 
independence of the process.
  The bill I am introducing today provides a solid framework on which 
to build debate on this important and far-reaching reform. I look 
forward to working with all interested parties in fine-tuning and 
further developing this proposal where necessary and enacting this much 
needed reform in the next Congress.

                      Section-By-Section Analysis


section 1. short title; amendments to immigration and nationality act; 
                           table of contents

       The short title of the bill is the ``United States 
     Immigration Court Act of 1996.'' Subsection (b) provides that 
     all amendments made by this bill are to the Immigration and 
     Nationality Act (INA), unless otherwise specified. Subsection 
     (c) is a table of contents.


        sec. 2. establishment of united states immigration court

       Subsection (a) establishes the United States Immigration 
     Court under a new chapter 2 title I of the Immigration and 
     Nationality Act. The following is a section-by-section 
     analysis of that new chapter:
       Section 111 establishes the United States Immigration Court 
     as a court of record under article I of the Constitution of 
     the United States. The Court consists of two divisions: the 
     trial division and the appellate division.
       Section 112. Appellate Division. Subsection (a) provides 
     for the appointment by the President, by and with the advice 
     and consent of the Senate, of a chief immigration appeals 
     judge and five other immigration appeals judges.
       Subsection (b) sets the term of office for appeals judges 
     at 15 years, with the first group of judges to be appointed 
     for staggered terms.
       Subsection (c) sets the compensation for the chief 
     immigration appeals judge at 94 percent of the next to the 
     highest rate of basic pay for the Senior Executive Service, 
     and the compensation for the other appeals judges at 93 
     percent.
       Subsection (d) makes the chief immigration appeals judge 
     responsible on behalf of the appellate division for the 
     administrative operations of the Immigration Court.
       Subsection (e) provides that three appeals judges 
     constitute a quorum.
       Subsection (f) provides that the appellate division shall 
     act in panels of three or in banc, and a final decision of 
     such panel shall be a final decision of the appellate 
     division.
       Subsection (g) outlines the process for the removal of 
     appeals judges, which shall only be for incompetency, 
     misconduct, neglect of duty, engaging in the practice of law, 
     or physical or mental disability and shall be by the Court of 
     Appeals for the Federal Circuit.
       Subsection (h) provides for the payment of expenses for 
     travel and subsistence for appeals judges while traveling on 
     duty and away from their designated stations.
       Section 113. Trial Division. Subsection (a) provides for a 
     chief immigration trial judge, to be appointed by the chief 
     immigration appeals judge. Every current immigration judge 
     who is qualified under this Act to be an immigration trial 
     judge shall be appointed by the chief immigration appeals 
     judge.
       Subsection (b) sets the term of office for trial judges at 
     15 years.
       Subsection (c) establishes the rates of pay for immigration 
     trial judges.
       Subsection (d) makes the chief immigration trial judge 
     responsible for administrative activities affecting the trial 
     division and gives him/her the authority to designate any 
     trial judge to hear any case over which the trial division 
     has jurisdiction.
       Subsection (e) provides that trial judges may be removed in 
     the same manner as appeals judges, except removal shall be by 
     the appellate division rather than the Court of Appeals for 
     the Federal Circuit.
       Subsection (f) outlines the authority of trial judges in 
     conducting hearings.
       Subsection (g) provides that witnesses shall be paid the 
     same fee and mileage allowance as witnesses in any other 
     court in the U.S.
       Subsection (h) provides for the payment of expenses for 
     travel and subsistence for trial judges while traveling on 
     duty and away from their designated stations.
       Section 114 outlines the jurisdiction of the appellate and 
     trial divisions.
       Subsection (a) outlines the jurisdiction of the appellate 
     division as follows.
       Paragraph (1) provides that the appellate division shall 
     hear and determine appeals from final decisions of 
     immigration trial judges, decisions involving the imposition 
     of administrative fines and penalties under title II of the 
     INA, and decisions on petitions filed under section 204 for 
     immigrant status and under 205 revoking approval of such 
     petitions.

[[Page E1807]]

       Paragraph (2) provides that either party to a case may 
     appeal an immigration trial judge's decision to the appellate 
     division. Appeals from final orders of deportation and 
     exclusion are to be filed not later than 20 days after the 
     date of final order. Review of an immigration trial judge's 
     decision shall be based solely upon the trial record, and the 
     findings of fact by the trial judge are conclusive if 
     supported by reasonable, substantial, and probative evidence 
     on the record considered as a whole.
       Paragraph (3) provides that a final decision of the 
     appellate division is binding on all immigration trial 
     judges, immigration officers, and consular officers unless 
     and until otherwise modified or reversed by the Court of 
     Appeals for the Federal Circuit or the Supreme Court.
       Paragraph (4) requires the appellate division to render a 
     decision on an appeal respecting an asylum claim no later 
     than 60 days after the date the appeal is filed.
       Subsection (b) outlines the jurisdiction of the trial 
     division as follows:
       Paragraph (1) provides that the trial division shall hear 
     and decide exclusion and deportation cases (including asylum 
     and discretionary relief requests raised in such cases); 
     rescission of adjustment of status cases; applications for 
     asylum referred to the Immigration Court by the Attorney 
     General for adjudication; contested assessments of civil 
     penalties under employer sanctions, contested determinations 
     relating to bond, parole, or detention of an alien; and such 
     other cases arising under the INA as the appellate division 
     may provide by regulation.
       Paragraph (2) outlines the duties of immigration trial 
     judges including recording and receiving evidence and 
     rendering findings of fact and conclusions of law, 
     determining all applications for discretionary relief which 
     may properly be raised in the proceedings, and exercising 
     such discretion conferred upon the Attorney General by law as 
     may be necessary for the just and equitable disposition of 
     cases.
       Section 115. Rules of Court. Subsection (a) directs the 
     appellate division to promulgate rules of court governing 
     practice and procedure in the appellate and trial divisions.
       Subsection (b) provides that each nongovernmental party in 
     a proceeding shall have the privilege of being represented 
     (at no expense to the government), and the rules of the court 
     shall provide for the admission of qualified attorneys and 
     nonattorneys to practice before the court.
       Subsection (c) give each division of the Immigration Court 
     contempt power.
       Subsection (d) authorizes the Immigration Court to impose 
     such fees as it may provide for under its rules and 
     procedures.
       Section 116. Retirement of Judges; Senior Judges. 
     Subsection (a) provides that a judge of the Immigration Court 
     shall be retired upon reaching the age of 70; a judge who is 
     65 may retire after serving as a judge for 15 or more years; 
     a judge who is not reappointed upon the expiration of his/her 
     term may retire if the judge has served as an Immigration 
     Court judge for 15 or more years and advised the appointing 
     authority of his/her willingness to accept reappointment. A 
     judge who becomes permanently disabled from performing 
     judicial duties shall be retired. Computation and payment of 
     retirement pay, election to receive retired pay, coordination 
     with civil service retirement, and revocation of an election 
     to receive retired pay for and by Immigration Court judges 
     shall be dealt with in the same way as for judges of the 
     United States Tax Court. Judges shall not receive retired pay 
     for any periods during which they accept any civil office or 
     employment with the U.S. government (other than as a senior 
     judge) or during which they provide legal services to clients 
     in a case arising under this chapter.
       Subsection (b) allows judges of the Immigration Court to 
     provide annuities to their surviving spouses and dependent 
     children in the same way as provided for judges of the United 
     States Tax Court. Amounts deducted and withheld from 
     the salaries of judges of the Immigration Court for this 
     purpose shall be deposited in the Treasury to the credit 
     of a fund to be known as the ``Immigration Court judges 
     survivors annuity fund''.
       Subsection (c) provides for senior immigration appeals and 
     trial judges, who are retired judges who may be recalled, 
     with their consent, to perform duties as an immigration 
     appeals or trial judge.
       Subsection (b) is a conforming amendment to the table of 
     contents of the INA adding the new chapter 2 and sections 111 
     through 116.
       Subsection (c) includes effective dates and transition 
     provisions. Except as otherwise provided, the amendments made 
     by this section shall take effect on the date of enactment. 
     Section 113(c) (relating to compensation of immigration trial 
     judges) shall take effect 90 days after the date of 
     enactment.
       Paragraph (2) outlines a timetable for establishment of the 
     Immigration Court. The President is to nominate the chief 
     immigration appeals judge and other appeals judges not later 
     than 14 days after enactment. The chief immigration appeals 
     judge shall designate a date, not later than 30 days after 
     she/he and a majority of the other appeals judges are 
     appointed, on which the appellate division shall assume the 
     functions of the Board of Immigration Appeals. The chief 
     immigration appeals judge shall appoint trial judges pursuant 
     to section 113(a)(2) promptly after being appointed. The 
     appellate division shall provide promptly for the 
     establishment of interim final rules of practice and 
     procedure which will apply after the hearing transition date.
       Paragraph (3) directs the chief immigration appeals judge, 
     in consultation with the Attorney General, to designate a 
     transition date, not later than 45 days after the date 
     interim final rules of practice and procedure are established 
     under paragraph (2)(C). During the period before the 
     transition hearing date, any proceeding or hearing under the 
     INA that may be conducted by a special inquiry officer or 
     immigration judge may be conducted by an immigration trial 
     judge.
       Paragraph (4) provides continuing authority for individuals 
     who are special inquiry officers or immigration judges on the 
     date of enactment and on the transition date to continue to 
     conduct proceedings or hearings after the transition date for 
     two years after the date of enactment.
       Paragraph (5) provides for the continuation of all existing 
     powers, rights, and jurisdiction and deems the appellate 
     division to be a continuation of the Board of Immigration 
     Appeals and immigration trial judges to be a continuation of 
     special inquiry officers or immigration judges with respect 
     to deportation and exclusion cases and asylum applications 
     pending as of the transition date.


         sec. 3. judicial review of immigration court decisions

       Subsection (a) amends section 106(a) of the INA to provide 
     that petitions for review of Immigration Court decisions must 
     be filed not later than 30 days after the date of issuance of 
     the final deportation order (currently 90 days except for 
     aggravated felons who have 30 days.) Petitions for review 
     shall be filed with the Court of Appeals for the Federal 
     Circuit. The Court of Appeals shall decide the petition only 
     on the record of the Immigration Court, the Immigration 
     Court's finding of fact are conclusive if supported by 
     reasonable, substantial, and probative evidence on the record 
     considered as a whole, and a decision that an alien is not 
     eligible for admission to the United States is conclusive 
     unless manifestly contrary to law.
       Subsection (b) adds the following new subsections to 
     section 106 of the INA:
       New subsection (f) provides that review of determinations 
     relating to asylum applications shall be limited to whether 
     the Immigration Court properly exercised jurisdiction, 
     whether the determination as made in compliance with 
     applicable laws and regulations, the constitutionality of 
     those laws and regulations, and whether the decisions were 
     arbitrary and capricious.
       New subsection (g) provides that only the Court of Appeals 
     for the Federal Circuit shall have jurisdiction to hear 
     petitions relating to asylum; only the Immigration Court, the 
     Court of Appeals for the Federal Circuit, and the Supreme 
     Court may entertain habeas corpus applications or grant 
     injunctive or declaratory relief with respect to an 
     immigration matter; the Court of Appeals for the Federal 
     Circuit shall have exclusion jurisdiction to review all 
     constitutional issues relating to an immigration matter by 
     writ of certiorari filed no later than 30 days from the date 
     of the final order of the appellate division relating to that 
     matter; in the case of a writ of certiorari, if a question of 
     fact is presented, a determination of fact previously made by 
     the Attorney General or Immigration Court shall be conclusive 
     if supported in the record by reasonable, substantial, and 
     probative evidence on the record considered as a whole, and 
     if no determination was previously made, the Court may 
     provide for a hearing before an immigration trial judge to 
     make the appropriate findings of fact. Notwithstanding any 
     other provision of law, no court shall have jurisdiction to 
     review decisions by either division of the Immigration Court 
     respecting reopening or reconsideration of deportation or 
     exclusion proceedings or asylum determinations outside of 
     such proceedings, the reopening of an application for asylum 
     because of changed circumstances, or the Attorney General's 
     denial of a stay of execution of a deportation order.
       Subsection (c) amends the United States Code to expand the 
     jurisdiction of the Court of Appeals of the Federal Circuit 
     in conformance with the amendments made by this Act to 
     section 106 of the INA.
       Subsection (d) provides for the amendments of this section 
     to take effect upon the hearing transition date designated 
     under section 2(c)(3).


                        sec. 4. reform of asylum

       Subsection (a) replaces the current section 208 of the INA 
     provision on asylum with a new section 208, which is 
     consistent in most aspects with the language in H.R. 2202, 
     with conforming amendments to reflect the new role of the 
     Immigration Court.
       New subsection (a) provides that an alien in or arriving in 
     the U.S. may apply for asylum, unless the Attorney General 
     determines that the alien can be returned to a safe third 
     country, the alien did not apply within 180 days of 
     arriving in the United States (absent a showing of changed 
     circumstances or extraordinary circumstances), or the 
     alien previously applied and was denied (absent a showing 
     of changed circumstances). Judicial review of a 
     determination by the AG under this provision is limited to 
     the Immigration Court.
       New subsection (b) provides that the Attorney General may 
     grant asylum to an alien who has complied with this section 
     whom the Immigration Court or an asylum officer determines is 
     a refugee. However, asylum may not be granted if the 
     Immigration Court

[[Page E1808]]

     finds that the alien participated in persecution, the alien 
     has been convicted of a particularly serious crime, there are 
     serious reasons for believing the alien committed a serious 
     nonpolitical crime outside the U.S., there are reasonable 
     grounds for regarding the alien as a threat to U.S. security, 
     the alien is excludable or deportable because of terrorist 
     activities, or the alien was firmly resettled in another 
     country prior to arriving in the U.S.
       New subsection (c) outlines the status of aliens granted 
     asylum. Asylum may be terminated if the Attorney General 
     asserts and the Immigration Court finds that the alien no 
     longer is a refugee because of changed circumstances, the 
     alien is not eligible for asylum for one of the reasons 
     listed in the previous paragraph, the alien may be deported 
     to a safe third country, the alien has voluntarily returned 
     to his/her country, or the alien has acquired a new 
     nationality. An alien whose asylum status has been terminated 
     is subject to deportation.
       New subsection (d) outlines the procedure for applying for 
     asylum. Affirmative asylum applications shall be filed with 
     the Attorney General and reviewed by an asylum officer. 
     Aliens who unquestionably are eligible will be referred 
     directly to the Attorney General; aliens whose eligibility is 
     questionable will be referred to the Immigration Court for 
     adjudication. At the time of filing an application, the alien 
     shall be advised of the privilege of being represented and 
     the consequences of filing a frivolous claim (permanent 
     ineligibility for immigration benefits), and shall be 
     provided a list of pro bono immigration lawyers, which shall 
     be compiled and updated by the Immigration Court. Absent 
     exceptional circumstances, a decision by an immigration trial 
     judge of an affirmative asylum claim shall be issued not 
     later than 45 days after it was referred to the Court. An 
     appeal to the appellate division shall be filed within 20 
     days of a trial judge's decision granting or denying asylum 
     or within 20 days of the completion of deportation or 
     exclusion proceedings.


                     sec. 5. conforming amendments.

       This section makes conforming amendments to section 
     209(a)(2) (adjustment of status of refugees), section 234 
     (physical and mental examination of aliens), section 235 
     (inspection by immigration officers), section 236 (exclusion 
     proceedings), section 242 (apprehension and deportation of 
     aliens), section 242A (expedited deportation of aliens 
     convicted of committing aggravated felonies), section 242B 
     (deportation procedures), section 243(h) (withholding of 
     deportation), section 244 (suspension of deportation; 
     voluntary departure), section 246(a) (rescission of 
     adjustment of status), section 273(d) (regarding stowaways), 
     section 279 (jurisdiction of district courts), section 291 
     (burden of proof), section 292 (right to counsel), section 
     360(c) (exclusion of aliens issued certificate of identity) 
     of the INA and to section 235(b) (expedited exclusion) as 
     amended by section 422 of the Antiterrorism and Effective 
     Death Penalty Act of 1996.


                 sec. 6. effective date; severability.

       Subsection (a) makes the amendments made by section 5 
     effective on the transition hearing date designated pursuant 
     to section 2(c)(3) of this Act.
       Subsection (b) is a severability clause.

                          ____________________