[Congressional Record Volume 170, Number 24 (Friday, February 9, 2024)]
[Senate]
[Pages S635-S637]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 1468. Mr. GRAHAM submitted an amendment intended to be proposed to 
amendment SA 1388 proposed by Mrs. Murray (for herself and Mr. Schumer) 
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. ___. BORDER EMERGENCY AUTHORITY.

       (a) In General.--Chapter 4 of title II of the Immigration 
     and Nationality Act (8 U.S.C. 1221 et seq.) is amended by 
     adding at the end the following:

     ``SEC. 244A. BORDER EMERGENCY AUTHORITY.

       ``(a) Use of Authority.--
       ``(1) In general.--In order to respond to extraordinary 
     border circumstances, there shall be available to the 
     Secretary, notwithstanding any other provision of law, a 
     border emergency authority.
       ``(2) Exceptions.--The border emergency authority shall not 
     be activated with respect to any of the following:
       ``(A) A citizen or national of the United States.
       ``(B) An alien who is lawfully admitted for permanent 
     residence.
       ``(C) An alien who an immigration officer determines, with 
     the approval of a supervisory immigration officer, should be 
     excepted from the border emergency authority based on the 
     totality of the circumstances, including consideration of 
     significant law enforcement, officer and public safety, 
     humanitarian, and public health interests, or an alien who an 
     immigration officer determines, in consultation with U.S. 
     Immigration and Customs Enforcement, should be excepted from 
     the border emergency authority due to operational 
     considerations.

[[Page S636]]

       ``(D) An alien who is determined to be a victim of a severe 
     form of trafficking in persons (as defined in section 103 of 
     the Trafficking Victims Protection Act of 2000 (22 U.S.C. 
     7102)).
       ``(E) An alien who has a valid visa or other lawful 
     permission to enter the United States, including--
       ``(i) a member of the Armed Forces of the United States and 
     associated personnel, United States Government employees or 
     contractors on orders abroad, or United States Government 
     employees or contractors, and an accompanying family member 
     who is on orders or is a member of the alien's household, 
     subject to required assurances;
       ``(ii) an alien who holds a valid travel document upon 
     arrival at a port of entry;
       ``(iii) an alien from a visa waiver program country under 
     section 217 who is not otherwise subject to travel 
     restrictions and who arrives at a port of entry; or
       ``(iv) an alien who presents at a port of entry pursuant to 
     a process approved by the Secretary to allow for safe and 
     orderly entry into the United States.
       ``(3) Applicability.--The border emergency authority shall 
     only be activated as to aliens who are not subject to an 
     exception under paragraph (2), and who are, after the 
     authority is activated, within 100 miles of the United States 
     southwest land border and within the 14-day period after 
     entry.
       ``(b) Border Emergency Authority Described.--
       ``(1) In general.--Whenever the border emergency authority 
     is activated, the Secretary shall summarily remove from and 
     prohibit, in whole or in part, entry into the United States 
     of any alien identified in subsection (a)(3) who is subject 
     to such authority in accordance with this subsection.
       ``(2) Terms and conditions.--
       ``(A) Summary removal.--Notwithstanding any other provision 
     of this Act, subject to subparagraph (B), the Secretary shall 
     issue a summary removal order and summarily remove an alien 
     to the country of which the alien is a subject, national, or 
     citizen (or, in the case of an alien having no nationality, 
     the country of the alien's last habitual residence), or in 
     accordance with the processes established under section 241, 
     unless the summary removal of the alien to such country would 
     be prejudicial to the interests of the United States.
       ``(B) Withholding and convention against torture 
     interviews.--
       ``(i) In general.--In the case of an alien subject to the 
     border emergency authority who manifests a fear of 
     persecution or torture with respect to a proposed country of 
     summary removal, an asylum officer (as defined in section 
     235(b)(1)(E)) shall conduct an interview, during which the 
     asylum officer shall determine that, if such alien 
     demonstrates during the interview that the alien has a 
     reasonable possibility of persecution or torture, such alien 
     shall be referred to or placed in proceedings under section 
     240.
       ``(ii) Sole mechanism to request protection.--An interview 
     under this subparagraph conducted by an asylum officer shall 
     be the sole mechanism by which an alien described in clause 
     (i) may make a claim for protection under--

       ``(I) section 241(b)(3); and
       ``(II) the Convention Against Torture.

       ``(iii) Alien referred for additional proceedings.--In the 
     case of an alien interviewed under clause (i) who 
     demonstrates that the alien is eligible to apply for 
     protection under section 241(b)(3) or the Convention Against 
     Torture, the alien--

       ``(I) shall not be summarily removed; and
       ``(II) shall instead be processed under section 240.

       ``(iv) Additional review.--

       ``(I) Opportunity for secondary review.--A supervisory 
     asylum officer shall review any case in which the asylum 
     officer who interviewed the alien under the procedures in 
     clause (iii) finds that the alien is not eligible for 
     protection under section 241(b)(3) or the Convention Against 
     Torture.
       ``(II) Vacatur.--If, in conducting such a secondary review, 
     the supervisory asylum officer determines that the alien 
     demonstrates eligibility for such protection--

       ``(aa) the supervisory asylum officer shall vacate the 
     previous negative determination; and
       ``(bb) the alien shall instead be processed under section 
     240.

       ``(III) Summary removal.--If an alien does not seek such a 
     secondary review, or if the supervisory asylum officer finds 
     that such alien is not eligible for such protection, the 
     supervisory asylum officer shall order the alien summarily 
     removed without further review.

       ``(3) Activations of authority.--
       ``(A) Discretionary activation.--The Secretary may activate 
     the border emergency authority if, during a period of 7 
     consecutive calendar days, there is an average of 100 or more 
     aliens who are encountered each day.
       ``(B) Mandatory activation.--The Secretary shall activate 
     the border emergency authority if--
       ``(i) during a period of 7 consecutive calendar days, there 
     is an average of 1,000 or more aliens who are encountered 
     each day; or
       ``(ii) on any 1 calendar day, a combined total of 2,000 or 
     more aliens are encountered.
       ``(C) Calculation of activation.--For purposes of 
     subparagraphs (A) and (B), the average for the applicable 7-
     day period shall be calculated using--
       ``(i) the sum of--

       ``(I) the number of encounters that occur between the 
     southwest land border ports of entry of the United States;
       ``(II) the number of encounters that occur between the 
     ports of entry along the southern coastal borders; and
       ``(III) the number of inadmissible aliens encountered at a 
     southwest land border port of entry as described in 
     subsection (a)(2)(E)(iv); divided by

       ``(ii) 7.
       ``(c) Bar to Admission.--Any alien who, during a period of 
     365 days, has 2 or more summary removals pursuant to the 
     border emergency authority, shall be inadmissible for a 
     period of 1 year beginning on the date of the alien's most 
     recent summary removal.
       ``(d) Rule of Construction.--For purposes of the Convention 
     Relating to the Status of Refugees, done at Geneva July 28, 
     1952 (as made applicable by the 1967 Protocol Relating to the 
     Status of Refugees, done at New York January 31, 1967 (19 UST 
     6223)), the Convention Against Torture, and any other 
     applicable treaty, as applied to this section, the interview 
     under this section shall occur only in the context of the 
     border emergency authority.
       ``(e) Judicial Review.--Judicial review of any decision or 
     action applying the border emergency authority shall be 
     governed only by this subsection as follows:
       ``(1) Notwithstanding any other provision of law, except as 
     provided in paragraph (2), no court or judge shall have 
     jurisdiction to review any cause or claim by an individual 
     alien arising from the decision to enter a summary removal 
     order against such alien under this section, or removing such 
     alien pursuant to such summary removal order.
       ``(2) The United States District Court for the Southern 
     District of Texas shall have sole and original jurisdiction 
     to hear challenges, whether constitutional or otherwise, to 
     the validity of this section or any written policy directive, 
     written policy guideline, written procedure, or the 
     implementation thereof, issued by or under the authority of 
     the Secretary to implement this section.
       ``(f) Effective Date.--
       ``(1) In general.--This section shall take effect on the 
     day after the date of the enactment of this section.
       ``(2) 7-day period.--The initial activation of the 
     authority under subparagraph (A) or (B)(i) of subsection 
     (b)(3) shall take into account the average number of 
     encounters during the preceding 7 consecutive calendar days, 
     as described in such subparagraphs, which may include the 6 
     consecutive calendar days immediately preceding the date of 
     the enactment of this section.
       ``(g) Rulemaking.--
       ``(1) In general.--The Secretary may promulgate such 
     regulations as are necessary to implement this section in 
     compliance with the requirements of section 553 of title 5, 
     United States Code.
       ``(2) Initial implementation.--Until the date that is 180 
     days after the date of the enactment of this section, the 
     Secretary may issue any interim final rules necessary to 
     implement this section without having to satisfy the 
     requirements of section 553(b)(B) of title 5, United States 
     Code, provided that any such interim final rules shall 
     include a 30-day post promulgation notice and comment period 
     prior to finalization in the Federal Register.
       ``(3) Requirement.--All regulations promulgated to 
     implement this section beginning on the date that is 180 days 
     after the date of the enactment of this section shall be 
     issued pursuant to the requirements set forth in section 553 
     of title 5, United States Code.
       ``(h) Definitions.--In this section:
       ``(1) Border emergency authority.--The term `border 
     emergency authority' means all authorities and procedures 
     under this section.
       ``(2) Convention against torture.--The term `Convention 
     Against Torture' means the Convention against Torture and 
     Other Cruel, Inhuman or Degrading Treatment or Punishment, 
     done at New York December 10, 1984, and includes the 
     regulations implementing any law enacted pursuant to Article 
     3 of the Convention against Torture and Other Cruel, Inhuman 
     or Degrading Treatment or Punishment, done at New York 
     December 10, 1984.
       ``(3) Encounter.--With respect to an alien, the term 
     `encounter' means an alien who--
       ``(A) is physically apprehended by U.S. Customs and Border 
     Protection personnel--
       ``(i) within 100 miles of the southwest land border of the 
     United States during the 14-day period immediately after 
     entry between ports of entry; or
       ``(ii) at the southern coastal borders during the 14-day 
     period immediately after entry between ports of entry; or
       ``(B) is seeking admission at a southwest land border port 
     of entry and is determined to be inadmissible, including an 
     alien who utilizes a process approved by the Secretary to 
     allow for safe and orderly entry into the United States.
       ``(4) Secretary.--The term `Secretary' means the Secretary 
     of Homeland Security.
       ``(5) Southern coastal borders.--The term `southern coastal 
     borders' means all maritime borders in California, Texas, 
     Louisiana, Mississippi, Alabama, and Florida.''.
       (b) Clerical Amendment.--The table of contents of the 
     Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is 
     amended by inserting after the item relating to section 244 
     the following:

``Sec. 244A. Border emergency authority.''.

[[Page S637]]

  

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