[Congressional Record Volume 170, Number 90 (Thursday, May 23, 2024)]
[Senate]
[Pages S3896-S3897]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  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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