[Congressional Record Volume 170, Number 23 (Thursday, February 8, 2024)]
[Senate]
[Pages S527-S529]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 1412. Mr. ROUNDS submitted an amendment intended to be proposed to 
amendment SA 1388 submitted by Mrs. Murray (for herself and Mr. 
Schumer) and intended to be proposed to the bill H.R. 815, to amend 
title 38, United States Code, to make certain improvements relating to 
the eligibility of veterans to receive reimbursement for emergency 
treatment furnished through the Veterans Community Care program, and 
for other purposes; which was ordered to lie on the table; as follows:

       At the appropriate place, insert the following:

     SEC. __. CLARIFICATION OF ASYLUM ELIGIBILITY.

       (a) In General.--Section 208 of the Immigration and 
     Nationality Act (8 U.S.C. 1158) is amended--
       (1) in subsection (a)--
       (A) in paragraph (1), by striking ``or who arrives in the 
     United States (whether or not at a designated port of arrival 
     and including'' and inserting ``and has arrived in the United 
     States at a port of entry (including''; and
       (B) in paragraph (2), by amending subparagraph (A) to read 
     as follows:
       ``(A) Safe third country.--Paragraph (1) shall not apply to 
     an alien if the Attorney General or the Secretary of Homeland 
     Security determines that--
       ``(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 
     or the Secretary, 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 judgment 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 under the age of 18 
     years; 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 each country 
     through which the 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.''; and

       (2) in subsection (b)--
       (A) in paragraph (1)(A), by inserting ``(in accordance with 
     the rules set forth in this section), and is eligible to 
     apply for asylum under subsection (a)'' before the semicolon 
     at the end; and
       (B) by amending paragraph (2) to read as follows:
       ``(2) Exceptions.--
       ``(A) In general.--Paragraph (1) shall not apply to an 
     alien if the Secretary of Homeland Security or the Attorney 
     General determines that--
       ``(i) the alien ordered, incited, assisted, or otherwise 
     participated in the persecution of any person on account of 
     race, religion, nationality, membership in a particular 
     social group, or political opinion;
       ``(ii) the alien has been convicted of any felony under 
     Federal, State, tribal, or local law;
       ``(iii) the alien has been convicted of any misdemeanor 
     offense under Federal, State, tribal, or local law 
     involving--

       ``(I) the unlawful possession or use of an identification 
     document, authentication feature, or false identification 
     document (as such terms are defined in the jurisdiction where 
     the conviction occurred), unless the alien can establish that 
     the conviction resulted from circumstances showing that--

       ``(aa) the document or feature was presented before 
     boarding a common carrier;
       ``(bb) the document or feature related to the alien's 
     eligibility to enter the United States;
       ``(cc) the alien used the document or feature to depart a 
     country wherein the alien has claimed a fear of persecution; 
     and
       ``(dd) the alien claimed a fear of persecution without 
     delay upon presenting himself or herself to an immigration 
     officer upon arrival at a United States port of entry;

       ``(II) the unlawful receipt of a Federal public benefit (as 
     defined in section 401(c) of the Personal Responsibility and 
     Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 
     1611(c))), from a Federal entity, or the unlawful receipt of 
     similar public benefits from a State, tribal, or local 
     entity; or
       ``(III) possession or trafficking of a controlled substance 
     or controlled substance paraphernalia, as those phrases are 
     defined under the law of the jurisdiction where the 
     conviction occurred, other than a single offense involving 
     possession for one's own use of 30 grams or less of marijuana 
     (as marijuana is defined under the law of the jurisdiction 
     where the conviction occurred);

       ``(iv) the alien has been convicted of an offense arising 
     under paragraph (1)(A) or (2) of section 274(a), or under 
     section 276;
       ``(v) the alien has been convicted of a Federal, State, 
     tribal, or local crime that the Attorney General or Secretary 
     of Homeland Security knows, or has reason to believe, was 
     committed in support, promotion, or furtherance of the 
     activity of a criminal street gang (as defined under the law 
     of the jurisdiction where the conviction occurred or in 
     section 521(a) of title 18, United States Code);
       ``(vi) the alien has been convicted of an offense for 
     driving while intoxicated or impaired, as those terms are 
     defined under the law of the jurisdiction where the 
     conviction occurred (including a conviction for driving while 
     under the influence of or impaired by alcohol or drugs), 
     without regard to whether the conviction is classified as a 
     misdemeanor or felony under Federal, State, tribal, or local 
     law, in which such intoxicated or impaired driving was a 
     cause of serious bodily injury or death of another person;
       ``(vii) the alien has been convicted of more than one 
     offense for driving while intoxicated or impaired, as those 
     terms are defined under the law of the jurisdiction where the 
     conviction occurred (including a conviction for driving while 
     under the influence of or impaired by alcohol or drugs), 
     without regard to whether the conviction is classified as a 
     misdemeanor or felony under Federal, State, tribal, or local 
     law;
       ``(viii) the alien has been convicted of a crime--

[[Page S528]]

       ``(I) that involves conduct amounting to a crime of 
     stalking;
       ``(II) of child abuse, child neglect, or child abandonment; 
     or
       ``(III) that involves conduct amounting to a domestic 
     assault or battery offense, including--

       ``(aa) a misdemeanor crime of domestic violence, as 
     described in section 921(a)(33) of title 18, United States 
     Code;
       ``(bb) a crime of domestic violence, as described in 
     section 40002(a)(12) of the Violence Against Women Act of 
     1994 (34 U.S.C. 12291(a)(12)); or
       ``(cc) any crime based on conduct in which the alien 
     harassed, coerced, intimidated, voluntarily or recklessly 
     used (or threatened to use) force or violence against, or 
     inflicted physical injury or physical pain, however slight, 
     upon a person--
       ``(AA) who is a current or former spouse of the alien;
       ``(BB) with whom the alien shares a child;
       ``(CC) who is cohabitating with, or who has cohabitated 
     with, the alien as a spouse;
       ``(DD) who is similarly situated to a spouse of the alien 
     under the domestic or family violence laws of the 
     jurisdiction where the offense occurred; or
       ``(EE) who is protected from that alien's acts under the 
     domestic or family violence laws of the United States or of 
     any State, tribal government, or unit of local government;
       ``(ix) the alien has engaged in acts of battery or extreme 
     cruelty upon a person and the person--

       ``(I) is a current or former spouse of the alien;
       ``(II) shares a child with the alien;
       ``(III) cohabitates or has cohabitated with the alien as a 
     spouse;
       ``(IV) is similarly situated to a spouse of the alien under 
     the domestic or family violence laws of the jurisdiction 
     where the offense occurred; or
       ``(V) is protected from that alien's acts under the 
     domestic or family violence laws of the United States or of 
     any State, tribal government, or unit of local government;

       ``(x) the alien, having been convicted by a final judgment 
     of a particularly serious crime, constitutes a danger to the 
     community of the United States;
       ``(xi) there are serious reasons for believing that the 
     alien has committed a serious nonpolitical crime outside the 
     United States prior to the arrival of the alien in the United 
     States;
       ``(xii) there are reasonable grounds for regarding the 
     alien as a danger to the security of the United States;
       ``(xiii) the alien is described in subclause (I), (II), 
     (III), (IV), or (VI) of section 212(a)(3)(B)(i) or section 
     237(a)(4)(B) (relating to terrorist activity), unless, in the 
     case only of an alien inadmissible under subclause (IV) of 
     section 212(a)(3)(B)(i), the Secretary of Homeland Security 
     or the Attorney General determines, in the Secretary's or the 
     Attorney General's discretion, that there are not reasonable 
     grounds for regarding the alien as a danger to the security 
     of the United States;
       ``(xiv) the alien was firmly resettled in another country 
     prior to arriving in the United States; or
       ``(xv) there are reasonable grounds for concluding the 
     alien could avoid persecution by relocating to another part 
     of the alien's country of nationality or, in the case of an 
     alien having no nationality, another part of the alien's 
     country of last habitual residence.
       ``(B) Special rules.--
       ``(i) Particularly serious crime; serious nonpolitical 
     crime outside the united states.--

       ``(I) In general.--For purposes of subparagraph (A)(x), the 
     Attorney General or Secretary of Homeland Security, in their 
     discretion, may determine that a conviction constitutes a 
     particularly serious crime based on--

       ``(aa) the nature of the conviction;
       ``(bb) the type of sentence imposed; or
       ``(cc) the circumstances and underlying facts of the 
     conviction.

       ``(II) Determination.--In making a determination under 
     subclause (I), the Attorney General or Secretary of Homeland 
     Security may consider all reliable information and is not 
     limited to facts found by the criminal court or provided in 
     the underlying record of conviction.
       ``(III) Treatment of felonies.--In making a determination 
     under subclause (I), an alien who has been convicted of a 
     felony (as defined under this section) or an aggravated 
     felony (as defined under section 101(a)(43)), shall be 
     considered to have been convicted of a particularly serious 
     crime.
       ``(IV) Interpol red notice.--In making a determination 
     under subparagraph (A)(xi), an Interpol Red Notice may 
     constitute reliable evidence that the alien has committed a 
     serious nonpolitical crime outside the United States.

       ``(ii) Crimes and exceptions.--

       ``(I) Driving while intoxicated or impaired.--A finding 
     under subparagraph (A)(vi) does not require the Attorney 
     General or Secretary of Homeland Security to find the first 
     conviction for driving while intoxicated or impaired 
     (including a conviction for driving while under the influence 
     of or impaired by alcohol or drugs) as a predicate offense. 
     The Attorney General or Secretary of Homeland Security need 
     only make a factual determination that the alien previously 
     was convicted for driving while intoxicated or impaired as 
     those terms are defined under the jurisdiction where the 
     conviction occurred (including a conviction for driving while 
     under the influence of or impaired by alcohol or drugs).
       ``(II) Stalking and other crimes.--In making a 
     determination under subparagraph (A)(viii), including 
     determining the existence of a domestic relationship between 
     the alien and the victim, the underlying conduct of the crime 
     may be considered, and the Attorney General or Secretary of 
     Homeland Security is not limited to facts found by the 
     criminal court or provided in the underlying record of 
     conviction.
       ``(III) Battery or extreme cruelty.--In making a 
     determination under subparagraph (A)(ix), the phrase `battery 
     or extreme cruelty' includes--

       ``(aa) any act or threatened act of violence, including any 
     forceful detention, which results or threatens to result in 
     physical or mental injury;
       ``(bb) psychological or sexual abuse or exploitation, 
     including rape, molestation, incest, or forced prostitution, 
     shall be considered acts of violence; and
       ``(cc) other abusive acts, including acts that, in and of 
     themselves, may not initially appear violent, but that are a 
     part of an overall pattern of violence.

       ``(IV) Exception for victims of domestic violence.--An 
     alien who was convicted of an offense described in clause 
     (viii) or (ix) of subparagraph (A) is not ineligible for 
     asylum on that basis if the alien satisfies the criteria 
     under section 237(a)(7)(A).

       ``(C) Specific circumstances.--Paragraph (1) shall not 
     apply to an alien whose claim is based on--
       ``(i) personal animus or retribution, including personal 
     animus in which the alleged persecutor has not targeted, or 
     manifested an animus against, other members of an alleged 
     particular social group in addition to the member who has 
     raised the claim at issue;
       ``(ii) the applicant's generalized disapproval of, 
     disagreement with, or opposition to criminal, terrorist, 
     gang, guerilla, or other non-state organizations absent 
     expressive behavior in furtherance of a discrete cause 
     against such organizations related to control of a State or 
     expressive behavior that is antithetical to the State or a 
     legal unit of the State;
       ``(iii) the applicant's resistance to recruitment or 
     coercion by guerrilla, criminal, gang, terrorist, or other 
     non-state organizations;
       ``(iv) the targeting of the applicant for criminal activity 
     for financial gain based on wealth or affluence or 
     perceptions of wealth or affluence;
       ``(v) the applicant's criminal activity; or
       ``(vi) the applicant's perceived, past or present, gang 
     affiliation.
       ``(D) Definitions and clarifications.--
       ``(i) Definitions.--In this paragraph:

       ``(I) Felony.--The term `felony' means--

       ``(aa) any crime defined as a felony by the relevant 
     jurisdiction (Federal, State, tribal, or local) of 
     conviction; or
       ``(bb) any crime punishable by more than one year of 
     imprisonment.

       ``(II) Misdemeanor.--The term `misdemeanor' means--

       ``(aa) any crime defined as a misdemeanor by the relevant 
     jurisdiction (Federal, State, tribal, or local) of 
     conviction; or
       ``(bb) any crime not punishable by more than one year of 
     imprisonment.
       ``(ii) Clarifications.--

       ``(I) Construction.--For purposes of this paragraph, 
     whether any activity or conviction also may constitute a 
     basis for removal is immaterial to a determination of asylum 
     eligibility.
       ``(II) Attempt, conspiracy, or solicitation.--For purposes 
     of this paragraph, all references to a criminal offense or 
     criminal conviction shall be deemed to include any attempt, 
     conspiracy, or solicitation to commit the offense or any 
     other inchoate form of the offense.
       ``(III) Effect of certain orders.--

       ``(aa) In general.--No order vacating a conviction, 
     modifying a sentence, clarifying a sentence, or otherwise 
     altering a conviction or sentence shall have any effect under 
     this paragraph unless the Attorney General or Secretary of 
     Homeland Security determines that--
       ``(AA) the court issuing the order had jurisdiction and 
     authority to do so; and
       ``(BB) the order was not entered for rehabilitative 
     purposes or for purposes of ameliorating the immigration 
     consequences of the conviction or sentence.
       ``(bb) Ameliorating immigration consequences.--For purposes 
     of item (aa)(BB), the order shall be presumed to be for the 
     purpose of ameliorating immigration consequences if--
       ``(AA) the order was entered after the initiation of any 
     proceeding to remove the alien from the United States; or
       ``(BB) the alien moved for the order more than one year 
     after the date of the original order of conviction or 
     sentencing, whichever is later.
       ``(cc) Authority of immigration judge.--An immigration 
     judge is not limited to consideration only of material 
     included in any order vacating a conviction, modifying a 
     sentence, or clarifying a sentence to determine whether such 
     order should be given any effect under this paragraph, but 
     may consider such additional information as the immigration 
     judge determines appropriate.
       ``(E) Additional limitations.--The Secretary of Homeland 
     Security or the Attorney

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     General may by regulation establish additional limitations 
     and conditions, consistent with this section, under which an 
     alien shall be ineligible for asylum under paragraph (1).
       ``(F) No judicial review.--There shall be no judicial 
     review of a determination of the Secretary of Homeland 
     Security or the Attorney General under subparagraph 
     (A)(xiii).''.
       (b) 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 ``there is a 
     significant possibility'' and all that follows, and inserting 
     ``, taking into account the credibility of the statements 
     made by the alien in support of the alien's claim, as 
     determined pursuant to section 208(b)(1)(B)(iii), and such 
     other facts as are known to the officer, the alien more 
     likely than not could establish eligibility for asylum under 
     section 208, and it is more likely than not that the 
     statements made by, and on behalf of, the alien in support of 
     the alien's claim are true.''.
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