[Congressional Record Volume 170, Number 90 (Thursday, May 23, 2024)]
[Senate]
[Pages S3894-S3897]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

                                 ______
                                 
  SA 2068. Mr. ROUNDS submitted an amendment intended to be proposed by 
him to the bill S. 4361, making emergency supplemental appropriations 
for border security and combatting fentanyl for the fiscal year ending 
September 30, 2024, and for other purposes; which was ordered to lie on 
the table; as follows:

       On page 240, after line 24, add the following:

     SEC. 406. EXCLUDING RETURNING H-2B WORKERS FROM ANNUAL CAP.

       (a) In General.--Section 214(g)(9)(A) of the Immigration 
     and Nationality Act (8 U.S.C. 1184(g)(9)(A)) is amended to 
     read as follows:
       ``(A)(i) Except as provided in clause (ii), and subject to 
     subparagraphs (B) and (C), an alien who has already been 
     counted toward the numerical limitation under paragraph 
     (1)(B) during 1 of the 3 preceding fiscal years shall not be 
     counted again toward such limitation during the current 
     fiscal year and shall be considered a returning worker.
       ``(ii) An alien who has already been counted toward the 
     numerical limitation under paragraph (1)(B) shall be counted 
     again toward such limitation if such alien--
       ``(I) departs the United States for a period longer than 1 
     year;
       ``(II) was not counted toward such limitation in any of the 
     3 most recent fiscal years; or
       ``(III) violated his or her status during the authorized 
     period of stay.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect on October 1, 2024.
                                 ______
                                 
  SA 2069. Mr. ROUNDS submitted an amendment intended to be proposed by 
him to the bill S. 4361, making emergency supplemental appropriations 
for border security and combatting fentanyl for the fiscal year ending 
September 30, 2024, and for other purposes; which was ordered to lie on 
the table; as follows:

       Beginning on page 143, strike line 14 and all that follows 
     through page 145, line 6, and insert the following:

     SEC. 202. CLARIFICATION OF ASYLUM ELIGIBILITY.

       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;

[[Page S3895]]

       ``(viii) the alien has been convicted of a crime--

       ``(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 cohabiting with, or who has cohabited 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) cohabits or has cohabited 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.

[[Page S3896]]

       ``(E) Additional limitations.--The Secretary of Homeland 
     Security or the Attorney 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).''.

     SEC. 203. 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.''.
                                 ______
                                 
  SA 2070. Mr. ROUNDS submitted an amendment intended to be proposed by 
him to the bill S. 4361, making emergency supplemental appropriations 
for border security and combatting fentanyl for the fiscal year ending 
September 30, 2024, and for other purposes; which was ordered to lie on 
the table; as follows:

       Beginning on page 145, strike line 21 and all that follows 
     through the undesignated matter following line 5 on page 165, 
     and insert the following:

                 Subtitle A--Border Emergency Authority

     SEC. 1301. BORDER EMERGENCY AUTHORITY.

       (a) In General.--Chapter 4 of title II of the Immigration 
     and Nationality Act (8 U.S.C. 1221 et seq.), as amended by 
     section 1146(a), is further amended by adding at the end the 
     following:

     ``SEC. 244B. BORDER EMERGENCY AUTHORITY.

       ``(a) Use of Authority.--
       ``(1) In general.--In order to respond to extraordinary 
     migration 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 unaccompanied alien child.
       ``(D) 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.
       ``(E) 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)).
       ``(F) 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 have the authority, in the 
     Secretary's sole and unreviewable discretion, to 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 or 240D, as appropriate.
       ``(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 or 
     240D, as appropriate.

       ``(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 or 240D.

       ``(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) Mandatory activation.--The Secretary shall activate 
     the border emergency authority if there is an average of 
     1,000 or more aliens encountered per day during a period of 7 
     consecutive days.
       ``(B) Calculation of activation.--For purposes of 
     subparagraph (A), 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)(F)(iv); divided by

       ``(ii) 7.
       ``(4) Implementation.--The Secretary shall implement the 
     border emergency authority not later than 24 hours after it 
     is activated.
       ``(c) Continued Access to Southwest Land Border Ports of 
     Entry.--
       ``(1) In general.--During any activation of the border 
     emergency authority under subsection (b), the Secretary shall 
     maintain the capacity to process, and continue processing, 
     under section 235 or 235B a minimum of 1,400 inadmissible 
     aliens each calendar day cumulatively across all southwest 
     land border ports of entry in a safe and orderly process 
     developed by the Secretary.
       ``(2) Special rules.--
       ``(A) Unaccompanied alien children exception.--For the 
     purpose of calculating the number under paragraph (1), the 
     Secretary shall count all unaccompanied alien children.
       ``(B) Transition rules.--The provisions of section 244A(c) 
     shall apply to this section.
       ``(d) 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.
       ``(e) Savings Provisions.--
       ``(1) Unaccompanied alien children.--Nothing in this 
     section may be construed to interfere with the processing of 
     unaccompanied alien children and such children are not 
     subject to this section.
       ``(2) Settlement agreements.--Nothing in this section may 
     be construed to interfere with any rights or responsibilities 
     established through a settlement agreement in effect before 
     the date of the enactment of this section.
       ``(3) 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

[[Page S3897]]

     only in the context of the border emergency authority.
       ``(f) 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 District of 
     Columbia 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.
       ``(g) 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.
       ``(h) 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.
       ``(i) 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.
       ``(6) Unaccompanied alien child.--The term `unaccompanied 
     alien child' has the meaning given such term in section 
     462(g)(2) of the Homeland Security Act of 2002 (6 U.S.C. 
     279(g)(2)).
       ``(j) Sunset.--This section--
       ``(1) shall take effect on the date of the enactment of 
     this section; and
       ``(2) shall cease to be effective on the day after the 
     first date on which the average daily southwest border 
     encounters has been fewer than 1,000 for 7 consecutive 
     days.''.
       (b) Clerical Amendment.--The table of contents of the 
     Immigration and Nationality Act (8 U.S.C. 1101 et seq.), as 
     amended by section 1146(b), is further amended by inserting 
     after the item relating to section 244A the following:

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

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