[Congressional Record Volume 170, Number 24 (Friday, February 9, 2024)]
[Senate]
[Pages S644-S645]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1477. Mr. TUBERVILLE 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. ___. RULES FOR DETERMINING ASYLUM ELIGIBILITY.
Section 208 of the Immigration and Nationality Act (8
U.S.C. 1158) is amended by adding at the end the following:
``(f) Rules for Determining Asylum Eligibility.--In making
a determination under subsection (b)(1)(A) with respect to
whether an alien is a refugee within the meaning of section
101(a)(42)(A), the following shall apply:
``(1) Particular social group.--The Secretary of Homeland
Security or the Attorney General shall not determine that an
alien is a member of a particular social group unless the
alien articulates on the record, or provides a basis on the
record for determining, the definition and boundaries of the
alleged particular social group, establishes that the
particular social group exists independently from the alleged
persecution, and establishes that the alien's claim of
membership in a particular social group does not involve--
``(A) past or present criminal activity or association
(including gang membership);
``(B) presence in a country with generalized violence or a
high crime rate;
``(C) being the subject of a recruitment effort by
criminal, terrorist, or persecutory groups;
``(D) the targeting of the applicant for criminal activity
for financial gain based on perceptions of wealth or
affluence;
``(E) interpersonal disputes of which governmental
authorities in the relevant society or region were unaware or
uninvolved;
``(F) private criminal acts of which governmental
authorities in the relevant society or region were unaware or
uninvolved;
``(G) past or present terrorist activity or association;
``(H) past or present persecutory activity or association;
or
``(I) status as an alien returning from the United States.
``(2) Political opinion.--The Secretary of Homeland
Security or the Attorney General may not determine that an
alien holds a political opinion with respect to which the
alien is subject to persecution if the political opinion is
constituted solely by generalized disapproval of,
disagreement with, or opposition to criminal, terrorist,
gang, guerilla, or other non-state organizations and does not
include expressive behavior in furtherance of a cause against
such organizations related to efforts by the State to control
such organizations or behavior that is antithetical to or
otherwise opposes the ruling legal entity of the State or a
unit thereof.
``(3) Persecution.--The Secretary of Homeland Security or
the Attorney General may not determine that an alien has been
subject to persecution or has a well-founded fear of
persecution based only on--
``(A) the existence of laws or government policies that are
unenforced or infrequently enforced, unless there is credible
evidence that such a law or policy has been or would be
applied to the applicant personally; or
``(B) the conduct of rogue foreign government officials
acting outside the scope of their official capacity.
``(4) Discretionary determination.--
``(A) Adverse discretionary factors.--The Secretary of
Homeland Security or the Attorney General may only grant
asylum to an alien if the alien establishes that he or she
warrants a favorable exercise of discretion. In making such a
determination, the Attorney General or Secretary of Homeland
Security shall consider, if applicable, an alien's use of
fraudulent documents to enter the United States, unless the
alien arrived in the United States by air, sea, or land
directly from the applicant's home country without transiting
through any other country.
``(B) Favorable exercise of discretion not permitted.--
Except as provided in subparagraph (C), the Attorney General
or Secretary of Homeland Security shall not favorably
exercise discretion under this section for any alien who--
``(i) has accrued more than one year of unlawful presence
in the United States, as defined in sections 212(a)(9)(B)(ii)
and (iii), prior to filing an application for asylum;
``(ii) at the time the asylum application is filed with the
immigration court or is referred from the Department of
Homeland Security, has--
``(I) failed to timely file (or timely file a request for
an extension of time to file) any required Federal, State, or
local income tax returns;
``(II) failed to satisfy any outstanding Federal, State, or
local tax obligations; or
``(III) income that would result in tax liability under
section 1 of the Internal Revenue Code of 1986 and that was
not reported to the Internal Revenue Service;
``(iii) has had two or more prior asylum applications
denied for any reason;
``(iv) has withdrawn a prior asylum application with
prejudice or been found to have abandoned a prior asylum
application;
``(v) failed to attend an interview regarding his or her
asylum application with the Department of Homeland Security,
unless the alien shows by a preponderance of the evidence
that--
``(I) exceptional circumstances prevented the alien from
attending the interview; or
[[Page S645]]
``(II) the interview notice was not mailed to the last
address provided by the alien or the alien's representative
and neither the alien nor the alien's representative received
notice of the interview; or
``(vi) was subject to a final order of removal,
deportation, or exclusion and did not file a motion to reopen
to seek asylum based on changed country conditions within one
year of the change in country conditions.
``(C) Exceptions.--If one or more of the adverse
discretionary factors set forth in subparagraph (B) are
present, the Attorney General or the Secretary, may,
notwithstanding such subparagraph (B), favorably exercise
discretion under section 208--
``(i) in extraordinary circumstances, such as those
involving national security or foreign policy considerations;
or
``(ii) if the alien, by clear and convincing evidence,
demonstrates that the denial of the application for asylum
would result in exceptional and extremely unusual hardship to
the alien.
``(5) Limitation.--If the Secretary or the Attorney General
determines that an alien fails to satisfy the requirement
under paragraph (1), the alien may not be granted asylum
based on membership in a particular social group, and may not
appeal the determination of the Secretary or Attorney
General, as applicable. A determination under this paragraph
shall not serve as the basis for any motion to reopen or
reconsider an application for asylum or withholding of
removal for any reason, including a claim of ineffective
assistance of counsel, unless the alien complies with the
procedural requirements for such a motion and demonstrates
that counsel's failure to define, or provide a basis for
defining, a formulation of a particular social group was both
not a strategic choice and constituted egregious conduct.
``(6) Stereotypes.--Evidence offered in support of an
application for asylum that promotes cultural stereotypes
about a country, its inhabitants, or an alleged persecutor,
including stereotypes based on race, religion, nationality,
or gender, shall not be admissible in adjudicating that
application, except that evidence that an alleged persecutor
holds stereotypical views of the applicant shall be
admissible.
``(7) Definitions.--In this section:
``(A) The term `membership in a particular social group'
means membership in a group that is--
``(i) composed of members who share a common immutable
characteristic;
``(ii) defined with particularity; and
``(iii) socially distinct within the society in question.
``(B) The term `political opinion' means an ideal or
conviction in support of the furtherance of a discrete cause
related to political control of a state or a unit thereof.
``(C) The term `persecution' means the infliction of a
severe level of harm constituting an exigent threat by the
government of a country or by persons or an organization that
the government was unable or unwilling to control. Such term
does not include--
``(i) generalized harm or violence that arises out of
civil, criminal, or military strife in a country;
``(ii) all treatment that the United States regards as
unfair, offensive, unjust, unlawful, or unconstitutional;
``(iii) intermittent harassment, including brief
detentions;
``(iv) threats with no actual effort to carry out the
threats, except that particularized threats of severe harm of
an immediate and menacing nature made by an identified entity
may constitute persecution; or
``(v) non-severe economic harm or property damage.''.
______