[House Report 117-21]
[From the U.S. Government Publishing Office]


117th Congress  }                                               {  Report
                        HOUSE OF REPRESENTATIVES
 1st Session    }                                               {  117-21

======================================================================



 
                     ACCESS TO COUNSEL ACT OF 2021

                                _______
                                

 April 16, 2021.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Nadler, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 1573]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1573) to clarify the rights of all persons who are 
held or detained at a port of entry or at any detention 
facility overseen by U.S. Customs and Border Protection or U.S. 
Immigration and Customs Enforcement, having considered the 
same, reports favorably thereon with amendments and recommends 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     3
Hearings.........................................................     7
Committee Consideration..........................................     8
Committee Votes..................................................     8
Committee Oversight Findings.....................................    23
New Budget Authority and Tax Expenditures........................    23
Congressional Budget Office Cost Estimate........................    23
Duplication of Federal Programs..................................    25
Performance Goals and Objectives.................................    25
Advisory on Earmarks.............................................    25
Section-by-Section Analysis......................................    25
Changes in Existing Law Made by the Bill, as Reported............    26
Minority Views...................................................    34

    The amendments are as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Access to Counsel Act of 2021''.

SEC. 2. ACCESS TO COUNSEL AND OTHER ASSISTANCE AT PORTS OF ENTRY AND 
                    DURING DEFERRED INSPECTION.

  (a) Access to Counsel and Other Assistance During Inspection.--
Section 235 of the Immigration and Nationality Act (8 U.S.C. 1225) is 
amended by adding at the end the following:
  ``(e) Access to Counsel and Other Assistance During Inspection at 
Ports of Entry and During Deferred Inspection.--
          ``(1) In general.--The Secretary of Homeland Security shall 
        ensure that a covered individual has a meaningful opportunity 
        to consult with counsel and an interested party during the 
        inspection process.
          ``(2) Scope of assistance.--The Secretary of Homeland 
        Security shall--
                  ``(A) provide the covered individual a meaningful 
                opportunity to consult (including consultation via 
                telephone) with counsel and an interested party not 
                later than one hour after the secondary inspection 
                process commences and as necessary throughout the 
                remainder of the inspection process, including, as 
                applicable, during deferred inspection;
                  ``(B) allow counsel and an interested party to 
                advocate on behalf of the covered individual, including 
                by providing to the examining immigration officer 
                information, documentation, and other evidence in 
                support of the covered individual; and
                  ``(C) to the greatest extent practicable, accommodate 
                a request by the covered individual for counsel or an 
                interested party to appear in-person at the secondary 
                or deferred inspection site.
          ``(3) Special rule for lawful permanent residents.--
                  ``(A) In general.--Except as provided in subparagraph 
                (B), the Secretary of Homeland Security may not accept 
                a Form I-407 Record of Abandonment of Lawful Permanent 
                Resident Status (or a successor form) from a lawful 
                permanent resident subject to secondary or deferred 
                inspection without first providing such lawful 
                permanent resident a meaningful opportunity to seek 
                advice from counsel.
                  ``(B) Exception.--The Secretary of Homeland Security 
                may accept Form I-407 Record of Abandonment of Lawful 
                Permanent Resident Status (or a successor form) from a 
                lawful permanent resident subject to secondary or 
                deferred inspection if such lawful permanent resident 
                knowingly, intelligently, and voluntarily waives, in 
                writing, the opportunity to seek advice from counsel.
          ``(4) Definitions.--In this section:
                  ``(A) Counsel.--The term `counsel' means--
                          ``(i) an attorney who is a member in good 
                        standing of the bar of any State, the District 
                        of Columbia, or a territory or a possession of 
                        the United States and is not under an order 
                        suspending, enjoining, restraining, disbarring, 
                        or otherwise restricting the attorney in the 
                        practice of law; or
                          ``(ii) an individual accredited by the 
                        Attorney General, acting as a representative of 
                        an organization recognized by the Executive 
                        Office for Immigration Review, to represent a 
                        covered individual in immigration matters.
                  ``(B) Covered individual.--The term `covered 
                individual' means an individual subject to secondary or 
                deferred inspection who is--
                          ``(i) a national of the United States;
                          ``(ii) an immigrant, lawfully admitted for 
                        permanent residence, who is returning from a 
                        temporary visit abroad;
                          ``(iii) an alien seeking admission as an 
                        immigrant in possession of a valid unexpired 
                        immigrant visa;
                          ``(iv) an alien seeking admission as a 
                        nonimmigrant in possession of a valid unexpired 
                        nonimmigrant visa;
                          ``(v) a refugee;
                          ``(vi) a returning asylee; or
                          ``(vii) an alien who has been approved for 
                        parole under section 212(d)(5)(A), including an 
                        alien who is returning to the United States in 
                        possession of a valid advance parole document.
                  ``(C) Interested party.--The term `interested party' 
                means--
                          ``(i) a relative of the covered individual;
                          ``(ii) in the case of a covered individual to 
                        whom an immigrant or a nonimmigrant visa has 
                        been issued, the petitioner or sponsor thereof 
                        (including an agent of such petitioner or 
                        sponsor); or
                          ``(iii) a person, organization, or entity in 
                        the United States with a bona fide connection 
                        to the covered individual.''.
  (b) Effective Date.--The amendment made by subsection (a) shall take 
effect 180 days after the date of the enactment of this Act.
  (c) Savings Provision.--Nothing in this Act, or in any amendment made 
by this Act, may be construed to limit a right to counsel or any right 
to appointed counsel under--
          (1) section 240(b)(4)(A) (8 U.S.C. 1229a(b)(4)(A));
          (2) section 292 of the Immigration and Nationality Act (8 
        U.S.C. 1362); or
          (3) any other provision of law, including any final court 
        order securing such rights,
as in effect on the day before the date of the enactment of this Act.

    Amend the title so as to read:
    A bill to clarify the rights of certain persons who are 
held or detained at a port of entry or at any facility overseen 
by U.S. Customs and Border Protection.

                          Purpose and Summary

    H.R. 1573, the ``Access to Counsel Act of 2021,'' amends 
section 235 of the Immigration and Nationality Act (INA) to 
require the Department of Homeland Security (DHS) to ensure 
that certain individuals who are subjected to prolonged 
inspection by U.S. Customs and Border Protection (CBP) at ports 
of entry have a meaningful opportunity to communicate with 
counsel and other interested parties. H.R. 1573 does not create 
a ``right'' to counsel during the inspection process, nor does 
it impose any obligation on the federal government to pay for 
or otherwise provide counsel to individuals during CBP 
inspection proceedings. Instead, it will simply ensure that 
such individuals are not prohibited from communicating with 
outside parties--which may include counsel--or receiving the 
support and assistance of such parties during the inspection 
process.
    Counsel and interested parties would be able to provide 
additional information and documentation to the inspecting 
officer to facilitate the inspection process and provide 
assistance and support to the applicant for admission. The bill 
also provides extra protection for lawful permanent residents 
(LPRs) by prohibiting DHS from accepting a Record of 
Abandonment of Lawful Permanent Resident Status from an LPR 
without first providing the LPR a reasonable opportunity to 
consult with counsel.

                Background and Need for the Legislation

    All individuals--including U.S. citizens--who seek to 
lawfully enter the United States are subject to ``inspection'' 
by CBP officers at ports of entry.\1\ Most individuals who are 
not U.S. citizens or LPRs, but who are in possession of proper 
documentation, are admitted to the United States after 
answering a few routine questions involving the intended 
purpose and length of their stay in the main queue known as 
``primary'' inspection.\2\ However, if CBP cannot verify the 
individual's identity or the validity of their documentation, 
or if there are questions regarding admissibility, the 
individual may be referred to ``secondary'' or ``deferred'' 
inspection.\3\ Secondary inspection occurs in designated areas 
at ports of entry where CBP can ask the individual additional 
questions and continue conducting background checks and 
research. A person may be scheduled for deferred inspection if 
a decision regarding immigration status cannot be made due to a 
lack of documentation.\4\ In such cases, the individual is 
``paroled'' into the United States and scheduled to appear at a 
deferred inspection site to present the requested documentation 
at a later date.\5\
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    \1\See generally 8 C.F.R. Sec.  235.1.
    \2\Lisa Seghetti, Border Security: Immigration Inspections at Ports 
of Entry, Cong. Research Serv., 10 (Jan. 26, 2015).
    \3\T. Alexander Aleinikoff et al., Immigration and Citizenship: 
Process and Policy 489 (8th ed. West 2016).
    \4\U.S. Customs and Border Protection, Deferred Inspection Sites, 
https://www.cbp.gov/contact/ports/deferred-inspection-sites.
    \5\8 C.F.R. Sec.  235.2.
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    The Immigration and Nationality Act (INA) provides 
individuals in removal proceedings with the right to 
representation, at no expense to the government.\6\ Although 
the regulations extend this right to any individual subject to 
an immigration-related ``examination,'' applicants for 
admission in primary or secondary inspection are specifically 
excluded, unless they ``become the focus of a criminal 
investigation'' and are ``taken into custody.''\7\ Yet the 
consequences of being denied admission to the United States can 
be significant. A U.S. research institution may lose the 
opportunity to employ a next generation cancer researcher if 
that researcher is denied admission despite possessing a valid 
O-1 nonimmigrant visa.\8\ Individuals who are refused admission 
may be unable to reunite with their families, unable to receive 
critical medical care unavailable in their home country, or 
denied the opportunity to pursue higher education at a U.S. 
university. Although some individuals may be permitted to 
withdraw their applications for admission and return home 
without long term consequences, others may be ordered removed 
without a hearing or further review under ``expedited removal'' 
procedures.\9\ An individual who receives an expedited removal 
order is barred from returning to the United States for five 
years.\10\
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    \6\INA Sec. Sec.  240(b)(4)(a), 292; 8 U.S.C. Sec. Sec.  
1229a(b)(4)(A), 1362.
    \7\8 C.F.R. Sec.  292.5(b).
    \8\O-1 visas are available to individuals with ``extraordinary 
ability'' in the sciences, arts, education, business, or athletics. See 
generally INA Sec.  101(a)(15)(O)(i); 8 U.S.C. Sec. 1101(a)(15)(O)(i).
    \9\INA Sec. Sec.  235(a)(4), (b)(1); 8 U.S.C. Sec. Sec.  
1225(a)(4), (b)(1).
    \10\INA Sec.  212(a)(9)(A)(i); 8 U.S.C. Sec.  1182(a)(9)(A)(i).
---------------------------------------------------------------------------
    Due to the complexity of U.S. immigration law, it is not 
uncommon for CBP to have difficulty resolving some questions 
that arise during the inspection process. Such questions can 
involve individuals' citizenship status, the continuing 
validity of their LPR status, or whether the stated purpose of 
their visit is compatible with their visa. Most applicants for 
admission are unfamiliar with the nuances of our immigration 
laws, are often alone, and may not be proficient in English. As 
a result, individuals can remain in secondary inspection for 
hours, largely cut off from the world while undergoing 
questioning by CBP.
    Complicating matters further, CBP provides no public 
guidance on an individual's ability to communicate with counsel 
and other individuals during the inspection process. In 2014, 
the American Immigration Council released a report summarizing 
the results of its request under the Freedom of Information Act 
for CBP policies on access to counsel.\11\ According to the 
report, with respect to both secondary and deferred inspection, 
``CBP policies and practices on access to counsel vary from one 
office to another.''\12\ While some ports of entry ``completely 
bar counsel in primary or secondary inspection,'' other ports 
provide specific procedures for interacting with counsel or 
provide the inspecting officer with broad discretion to decide 
whether and with whom to communicate.\13\
---------------------------------------------------------------------------
    \11\American Immigration Council, CBP Restrictions on Access to 
Counsel, https://www.americanimmigrationcouncil.org/sites/default/
files/other_litigation_documents/
final_cbp_access_to_counsel_foia_factsheet_2_1.pdf.
    \12\Id. at 1.
    \13\Id. at 2-3. For example, in Nevada, ``[w]hen an individual in 
secondary inspection states that his attorney is waiting in the entry 
area, the officer's only responsibility `is to notify a relative or 
friend' if the individual is detained for more than two hours.'' Id.
---------------------------------------------------------------------------

              THE IMPLEMENTATION OF EXECUTIVE ORDER 13769

    On January 27, 2017, President Trump issued Executive Order 
(EO) 13769, suspending the entry of nationals of seven Muslim 
majority countries--Iran, Iraq, Libya, Somalia, Sudan, Syria, 
and Yemen--for at least 90 days.\14\ As a result of the Trump 
Administration's quick rollout of EO 13769, widespread 
confusion unfolded at airports across the nation. Individuals 
arriving from covered countries were detained at airports for 
hours, and many were sent back to their home countries without 
the ability to contact their families or communicate with 
counsel.\15\ In the days that followed, several courts issued 
orders blocking the federal government from continuing to 
implement the EO and mandating access to counsel for LPRs in 
secondary inspection.\16\
---------------------------------------------------------------------------
    \14\Exec. Order No. 13769, Protecting the Nation from Foreign 
Terrorist Entry into the United States, 82 Fed. Reg. 8977 (Feb. 1, 
2017).
    \15\Wesley Lowery & Josh Dawsey, Early Chaos of Trump's Travel Ban 
Set Stage For a Year of Immigration Policy Debates, Wash. Post (Feb. 6, 
2018), https://www.washingtonpost.com/national/early-chaos-of-trumps-
travel-ban-set-stage-for-a-year-of-immigration-policy-debates/2018/02/
06/f5386128-01d0-11e8-8acf-ad2991367d9d_story.html; Abigail Williams & 
Adam Edelman, Lawyers, Activists Gear Up for Travel Ban Airport Issues, 
NBC News (June 29, 2017), https://www.nbcnews.com/politics/donald-
trump/u-s-defines-who-can-enter-under-travel-ban-n778031.
    \16\See e.g. Washington v. Trump, 2017 U.S. Dist. Lexis 16012 (Feb. 
3, 2017).
---------------------------------------------------------------------------
    A DHS Inspector General report released on the one-year 
anniversary of the ban provided additional details regarding 
the restrictions placed on individuals due to the EO.\17\ The 
Inspector General found that individuals held in secondary 
inspection were not afforded the opportunity to consult with 
counsel and, in some cases, were not permitted to make 
telephone calls at all.\18\ Others had their phones confiscated 
by CBP.\19\ Even after the court order mandating attorney 
access for LPRs was issued, CBP continued to refuse such 
access, arguing that the right to counsel only attaches once 
the inspection ``becomes a custodial interrogation or a 
criminal investigation.''\20\ The Inspector General concluded 
that CBP's ``highly aggressive stance in light of'' the court 
orders was ``questionable'' and ``troubling.''\21\
---------------------------------------------------------------------------
    \17\U.S. Dep't of Homeland Sec., Off. of Inspector Gen., DHS 
Implementation of Executive Order #13769 ``Protecting the Nation From 
Foreign Terrorist Entry Into the United States'' (January 27, 2017), at 
5 (Jan. 18, 2018), www.oig.dhs.gov/sites/default/files/assets/2018-01/
OIG-18-37-Jan18.pdf.
    \18\See, e.g. id. at 76.
    \19\Id. at 39.
    \20\Id.
    \21\Id. at 79.
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DETENTION OF IRANIAN-AMERICANS IN SECONDARY INSPECTION AT THE NORTHERN 
                                 BORDER

    In January 2020, as tensions between Iran and the United 
States escalated, up to 200 individuals of Iranian descent were 
detained and questioned in secondary inspection at the Peace 
Arch Border Crossing in Blaine, Washington.\22\ These 
individuals--many of whom were U.S. citizens or LPRs, including 
seniors and children--were held for several hours, with some 
reportedly held for up to 12 hours.\23\ In one case, CBP held a 
family of four U.S. citizens for nearly five hours even though 
they were already designated as ``Trusted Travelers'' under 
CBP's NEXUS program.\24\ Anecdotal reports indicate that 
attorneys who arrived on the scene to assist were refused 
admission, and at least some individuals were unable to make 
phone calls to family members and others.
---------------------------------------------------------------------------
    \22\Mike Baker & Caitlin Dickerson, Iranian-Americans Questioned at 
the Border: `My Kids Shouldn't Experience Such Things,' N.Y. Times 
(Jan. 6, 2019), https://www.nytimes.com/2020/01/06/us/border-iranians-
washington-patrol.html.
    \23\Abigail Hauslohner, Advocates Allege Delays at U.S. Border for 
Travelers Linked to Iran, a Claim the Government Denies, Wash. Post 
(Jan. 6, 2020), https://www.washingtonpost.com/immigration/advocates-
allege-delays-at-us-border-for-travelers-linked-to-iran-a-claim-the-
government-denies/2020/01/06/5e7d0e3e-3093-11ea-a053-
dc6d944ba776_story.html.
    \24\Negah Hekmati, I'm a U.S. Citizen. My Family Was Detained at 
the Border Because We're From Iran, Wash. Post (Jan. 9, 2020), https://
www.washingtonpost.com/outlook/2020/01/09/im-us-citizen-my-family-was-
detained-border-because-were-iran/. NEXUS is a CBP ``Trusted Traveler'' 
program that allows approved individuals to enter the United States and 
Canada more quickly by using designated lanes and a radio frequency 
identification card. See U.S. Customs and Border Protection, Benefits 
of NEXUS, https://www.cbp.gov/travel/trusted-traveler-programs/nexus/
benefits-nexus.
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             ALLEGATIONS OF BIAS IN INSPECTION PROCEEDINGS

    Immigrants and civil rights activists have also raised 
concerns that CBP appears to target individuals for inspection 
based on racial profiling, and often holds U.S citizens with 
proper documentation in secondary inspection without access to 
an attorney. For example, three Black CBP officers recently 
filed a lawsuit against DHS, alleging CBP routinely targets and 
harasses Black travelers at the Blue Water bridge between Port 
Huron and Sarnia on the Canada-Michigan border.\25\ A March 25, 
2021 report by the American Civil Liberties Union of Michigan 
examined CBP data on apprehensions at the Michigan-Canada 
border and corroborates these allegations. The report found 
that between 2012 and 2019, over 96% of the 13,000 documented 
apprehensions involved people of color, and one-third involved 
U.S. citizens.\26\
---------------------------------------------------------------------------
    \25\Tresa Baldas, Customs and Border Protection Officer Says Racism 
at Michigan-Canada Border Happens Daily: `It Needs to be Exposed', USA 
Today (Apr. 4, 2021) https://www.usatoday.com/story/news/nation/2021/
04/04/cbp-officers-lawsuit-racial-profiling-issue-us-canada-border/
7076949002/.
    \26\American Civil Liberties Union of Michigan, The Border's Long 
Shadow: How Border Patrol Uses Racial Profiling and Local and State 
Police to Instill Fear in Michigan's Immigrant Communities (Mar. 25, 
2021), https://www.aclumich.org/en/publications/borders-long-shadow.
---------------------------------------------------------------------------
    In another example, Tianna Spears, a Black U.S. citizen 
diplomat at the U.S. consulate in Ciudad Juarez, Mexico said 
that she was targeted regularly for inspection over a four 
month period, despite crossing the border daily, possessing a 
diplomatic passport and Global Entry approval, and having 
registered her car in the SENTRI system.\27\ She states that 
during these encounters, she was unable to contact counsel or 
State Department colleagues who could verify her identity. 
After four months of regular apprehensions, she began to 
develop symptoms of PTSD, and was forced to transfer to a 
different post. She later resigned from the State 
Department.\28\
---------------------------------------------------------------------------
    \27\Tianna Spears, I Was a U.S. Diplomat. Customs and Border 
Protection Only Cared That I Was Black, Politico (Aug. 3, 2020), 
https://www.politico.com/news/magazine/2020/08/30/black-us-diplomat-
customs-border-protection-cbp-detained-harassed-325676.
    \28\Id.
---------------------------------------------------------------------------

              OTHER ISSUES WITH LIMITED ACCESS TO COUNSEL

    Complications in the inspection process can arise in 
response to sweeping changes in immigration policy or shifting 
world events. But the greatest impact on individuals on a day-
to-day basis comes from the consistent lack of access to 
counsel and other assistance at ports of entry. For example, in 
2017, Henry Rousso, a French historian and Holocaust scholar, 
was held in secondary inspection at George Bush 
Intercontinental Airport in Houston, Texas for more than 10 
hours.\29\ Mr. Rousso came to the United States to speak at an 
academic conference hosted by Texas A&M University. Upon 
questioning, Mr. Rousso was referred to secondary inspection, 
where CBP made a preliminary determination that he had violated 
the law by receiving a $2,000 honorarium to speak at the 
conference. When Mr. Rousso failed to meet the driver who had 
been sent to the airport to pick him up, representatives from 
the university contacted an attorney.\30\ The attorney was able 
to explain to CBP that Mr. Rousso's receipt of an honorarium 
was proper under the immigration laws, as section 212(q) of the 
INA expressly allows individuals admitted to the United States 
on visitor visas to accept honorarium payments and associated 
incidental expenses for certain academic activities.\31\ Due to 
the assistance of the attorney, Mr. Rousso was eventually 
admitted into the United States.\32\
---------------------------------------------------------------------------
    \29\Erin McCann, French Historian Says He was Threatened with 
Deportation at Houston Airport, N.Y. Times (Feb. 26, 2017), https://
www.nytimes.com/2017/02/26/us/french-historian-detained-immigration-
henry-rousso.html.
    \30\Id.
    \31\Id; INA Sec.  212(q).
    \32\Id.
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    Mr. Rousso was fortunate for two reasons. First, as a well-
known scholar supported by faculty at an American university, 
he had ready access to a lawyer. Second, CBP officials in 
Houston were amenable to allowing counsel to assist Mr. Rousso. 
Most individuals, however, are not so lucky. Because access to 
counsel during the inspection process is not required, most 
applicants for admission who are referred to secondary 
inspection are unable to communicate with counsel or others who 
might be able to provide useful information relevant to 
admission. Rather than having the opportunity to vindicate 
their rights and lawfully enter the country, most are instead 
refused admission or issued an expedited removal order.

                                Hearings

    For the purposes of clause 3(c)(6) of House Rule XIII, the 
following hearing was used to develop H.R. 1573: ``The U.S. 
Immigration System: The Need for Bold Reform,'' held on 
February 11, 2021, before the House Committee on the Judiciary, 
Subcommittee on Immigration and Citizenship. The Subcommittee 
heard testimony from:
           Ms. Marielena Hincapie, Executive Director, 
        National Immigration Law Center;
           Dr. Jennifer Hunt, Professor of Economics, 
        Rutgers University;
           Mr. John Lettieri, President and CEO, 
        Economic Innovation Group; and
           Mr. Peter Kirsanow, Partner, Benesch, 
        Friedlander, Coplan & Aronoff LLP.
    The hearing explored the need for immigration reform, 
including the Access to Counsel Act.
    The following hearing in the 116th Congress was also used 
to develop H.R. 1573: ``Oversight of the Trump Administration's 
Muslim Ban,'' held on September 24, 2019 before the House 
Committee on the Judiciary, Subcommittee on Immigration and 
Citizenship and the House Foreign Affairs Committee, 
Subcommittee on Oversight and Investigations. The Subcommittees 
heard testimony from:
           Edward J. Ramotowski, Deputy Assistant 
        Secretary for Visa Services, Bureau of Consular 
        Affairs, U.S. Department of State;
           Elizabeth Neumann, Assistant Secretary for 
        Threat Prevention and Security Policy, Office of 
        Strategy, Policy, and Plans, U.S. Department of 
        Homeland Security;
           Todd Hoffman, Executive Director of 
        Admissibility and Passenger Programs (APP), Office of 
        Field Operations (OFO), U.S. Customs and Border 
        Protection, U.S. Department of Homeland Security;
           Dr. Abdollah ``Iman'' Dehzangi, Assistant 
        Professor at Morgan State University in Baltimore, 
        Maryland;
           Ismail Ahmed Hezam Alghazali, a U.S. citizen 
        born in Yemen who left his job to travel to Djibouti to 
        be with his pregnant wife;
           Farhana Khera, President and Executive 
        Director, Muslim Advocates; and
           Andrew Arthur, Resident Fellow in Law and 
        Policy, Center for Immigration Studies.
    The hearing explored the initial implementation of the ban, 
including the chaos that unfolded at airports around the 
country, which stemmed, in part, from the lack of access to 
counsel.

                        Committee Consideration

    On April 14, 2021, the Committee met in open session and 
ordered the bill, H.R. 1573, favorably reported with an 
amendment in the nature of a substitute, by a rollcall vote of 
24 to 16, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 1573.
    1. A motion to table an appeal of the ruling of the Chair 
on the germaneness of an amendment by Mr. Biggs to require the 
Secretary of Homeland Security to return non-covered 
individuals who arrive at the border from a foreign contiguous 
territory to such territory while removal proceedings are 
pending, was agreed to by a rollcall vote of 21 to 15.


    2. An amendment by Mr. Issa to delay the effective date of 
the legislation until the Secretary of Homeland Security 
certifies that the Department of Homeland Security has 
sufficient resources to accommodate access to counsel in 
secondary inspection, and that the implementation of the 
legislation would not cause a substantial negative impact on 
lawful trade and travel to the United States, was defeated 16 
to 23.


    3. An amendment by Mr. Roy to exclude from the definition 
of ``interested party,'' a person or organization that the 
immigration officer has reasonable suspicion to believe is 
involved in a criminal conspiracy with the covered individual 
was defeated 16 to 23.


    4. A motion to table an appeal of the ruling of the Chair 
on the germaneness of an amendment by Mr. Roy to change the 
asylum eligibility requirements for individuals who transit 
through at least one country other than their country of 
citizenship, nationality, or last habitual residence while en 
route to the United States, was agreed to 23 to 16.


    5. An amendment by Mr. Issa to render sections 1 and 2 of 
the legislation ineffective if a federal court holds that a 
covered individual is to be afforded counsel at the expense of 
the government was defeated 17 to 22.


    6. An amendment by Ms. Spartz to delay the effective date 
of the legislation until the Secretary of Homeland Security 
certifies that the Department of Homeland Security has 
sufficient resources to accommodate access to counsel in 
secondary inspection, and that the implementation of the 
legislation would not cause a substantial negative impact on 
national security and public safety was defeated 16 to 24.


    The motion to report H.R. 1573, as amended, favorably was 
agreed to by a rollcall vote of 24 to 16.


                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1573, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 15, 2021.
Hon. Jerrold Nadler,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1573, the Access 
to Counsel Act of 2021.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lindsay 
Wylie.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

    
    

    H.R. 1573 would require the Department of Homeland Security 
(DHS) to allow individuals subject to secondary immigration 
inspection at U.S. ports of entry to consult with an attorney, 
accredited immigration official, family member, or immigration 
sponsor during the inspection. The bill also would require DHS 
to allow the counsel or interested party to appear in person at 
the inspection site to the greatest extent practicable. (A 
secondary immigration inspection is conducted by customs 
officers if individuals entering the United States do not have 
the required documents for entry or if their information cannot 
be initially verified.)
    Approximately 10.2 million individuals were referred to 
secondary inspection at the United States' 328 ports of entry 
in 2019. Using information provided by Customs and Border 
Protection (CBP), CBO expects that roughly 8 percent of 
referrals would request access to counsel each year. 
Immigration at ports of entry has declined significantly in 
fiscal years 2020 and 2021 because of the coronavirus pandemic; 
CBO assumes referrals would return to pre-pandemic levels 
beginning in mid-2022.
    CBO estimates that CBP would need two new full-time 
officers on average at each port of entry to provide security 
and transportation services for individuals requesting access 
to counsel. (The number of CBP officers stationed at each port 
of entry ranges from several individuals to up to several 
thousands, and the number of additional officers needed at each 
port under the bill would vary by the size of the port.) CBO 
estimates that salaries, benefits, and overtime for the 
additional staff would cost about $700 million over the 2021-
2026 period; such spending would be subject to the availability 
of appropriated funds.
    Additionally, using information provided by the agency, CBO 
expects that 222 ports of entry (nearly two-thirds of all 
ports) would need additional space or other upgrades to 
accommodate the bill's requirement to allow counsel to appear 
in person at inspection sites. Using that same information and 
historical patterns of construction costs, CBO estimates the 
total cost for construction and operation of the additional 
space would total $123 million over the 2021-2026 period.
    Specifically, CBO estimates that construction costs at 113 
land facilities would total $62 million over the 2021-2026 
period, with $10 million spent in subsequent years. CBO 
estimates the cost of renting additional space at 109 airport 
facilities would total $44 million over the 2021-2026 period. 
In addition, CBO estimates the cost of initial setup, recurring 
maintenance, and other operational expenses associated with the 
additional space would total $17 million over the 2021-2026 
period. All construction and operational costs would be subject 
to the availability of appropriated funds.
    The costs of the legislation, detailed in Table 1, fall 
within budget function 750 (administration of justice).

               TABLE 1.--ESTIMATED INCREASES IN SPENDING SUBJECT TO APPROPRIATION UNDER H.R. 1573
----------------------------------------------------------------------------------------------------------------
                                                              By fiscal year, millions of dollars--
                                                ----------------------------------------------------------------
                                                   2021     2022     2023     2024     2025     2026   2021-2026
----------------------------------------------------------------------------------------------------------------
CBP Personnel:
    Estimated Authorization....................        0       62      132      158      189      226       767
    Estimated Outlays..........................        0       50      112      146      180      215       703
Construction and Operation at Ports of Entry:
    Estimated Authorization....................        0       82       12       13       13       13       134
    Estimated Outlays..........................        0       13       27       27       28       28       123
Total Changes:
    Estimated Authorization....................        0      144      145      171      202      239       900
    Estimated Outlays..........................        0       63      139      173      208      243       825
----------------------------------------------------------------------------------------------------------------
Components may not sum to totals because of rounding; CBP = Customs and Border Protection.

    The CBO staff contact for this estimate is Lindsay Wylie. 
The estimate was reviewed by Leo Lex, Deputy Director of Budget 
Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 1573 establishes or reauthorizes a 
program of the Federal government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1573 would require DHS to ensure that certain individuals who 
are subjected to prolonged inspection by CBP at ports of entry 
have a meaningful opportunity to communicate with counsel and 
other interested parties. The bill also provides extra 
protection for lawful permanent residents by prohibiting DHS 
from accepting a Record of Abandonment of Lawful Permanent 
Resident Status from an individual without first providing a 
reasonable opportunity for such individual to consult with 
counsel.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1573 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.

                      Section-by-Section Analysis

    Sec. 1. Short Title. Section 1 sets forth the short title 
of the bill as the ``Access to Counsel Act of 2021''.
    Sec. 2. Access to Counsel and Other Assistance at Ports of 
Entry and During Deferred Inspection.
    Section (2)(a) amends section 235 of the INA to create a 
new subsection (e).
    New subsection (e)(1) requires the Secretary of Homeland 
Security to ensure that ``covered individuals'' have a 
meaningful opportunity to consult with counsel or an interested 
party during the inspection process.
    New subsection (e)(2) sets forth the scope of such access, 
requiring the Secretary to ensure that individuals are 
permitted to consult with counsel or interested parties not 
later than one hour after secondary inspection commences and 
through the end of the inspection process. Counsel and 
interested parties shall be allowed to advocate on behalf of 
the covered individual and provide supporting documentation and 
other information to the Customs and Border Protection (CBP) 
inspecting officer. CBP shall, to the greatest extent 
practicable, accommodate a request for counsel or an interested 
party to appear in-person at the secondary or deferred 
inspection site.
    New subsection (e)(3) provides extra protection for lawful 
permanent residents (LPRs) by prohibiting the Secretary of 
Homeland Security from accepting a Record of Abandonment of 
Lawful Permanent Resident Status (Form I-407) from an LPR 
without providing the LPR with a reasonable opportunity to 
consult with counsel. The Secretary may, however, accept such 
form if the LPR waives the opportunity to seek advice from 
counsel in writing.
    New subsection (e)(4) defines the terms ``counsel,'' 
``covered individual,'' and ``interested party''.
    Section (2)(b) establishes the effective date as 180 days 
after the enactment of the Act.
    Section (2)(c) clarifies that nothing in the Act may be 
construed to limit a pre-existing right to counsel or right to 
appointed counsel under the INA or any other provision of law, 
including a court order.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, H.R. 1573, as reported, are shown as follows:

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                    IMMIGRATION AND NATIONALITY ACT



           *       *       *       *       *       *       *
TITLE II--IMMIGRATION

           *       *       *       *       *       *       *


   Chapter 4--Inspection, Apprehension, Examination, Exclusion, and 
Removal

           *       *       *       *       *       *       *


 inspection by immigration officers; expedited removal of inadmissible 
                 arriving aliens; referral for hearing

  Sec. 235. (a) Inspection.--
          (1) Aliens treated as applicants for admission.--An 
        alien present in the United States who has not been 
        admitted or who arrives in the United States (whether 
        or not at a designated port of arrival and including an 
        alien who is brought to the United States after having 
        been interdicted in international or United States 
        waters) shall be deemed for purposes of this Act an 
        applicant for admission.
          (2) Stowaways.--An arriving alien who is a stowaway 
        is not eligible to apply for admission or to be 
        admitted and shall be ordered removed upon inspection 
        by an immigration officer. Upon such inspection if the 
        alien indicates an intention to apply for asylum under 
        section 208 or a fear of persecution, the officer shall 
        refer the alien for an interview under subsection 
        (b)(1)(B). A stowaway may apply for asylum only if the 
        stowaway is found to have a credible fear of 
        persecution under subsection (b)(1)(B). In no case may 
        a stowaway be considered an applicant for admission or 
        eligible for a hearing under section 240.
          (3) Inspection.--All aliens (including alien crewmen) 
        who are applicants for admission or otherwise seeking 
        admission or readmission to or transit through the 
        United States shall be inspected by immigration 
        officers.
          (4) Withdrawal of application for admission.--An 
        alien applying for admission may, in the discretion of 
        the Attorney General and at any time, be permitted to 
        withdraw the application for admission and depart 
        immediately from the United States.
          (5) Statements.--An applicant for admission may be 
        required to state under oath any information sought by 
        an immigration officer regarding the purposes and 
        intentions of the applicant in seeking admission to the 
        United States, including the applicant's intended 
        length of stay and whether the applicant intends to 
        remain permanently or become a United States citizen, 
        and whether the applicant is inadmissible.
  (b) Inspection of Applicants for Admission.--
          (1) Inspection of aliens arriving in the united 
        states and certain other aliens who have not been 
        admitted or paroled.--
                  (A) Screening.--
                          (i) In general.--If an immigration 
                        officer determines that an alien (other 
                        than an alien described in subparagraph 
                        (F)) who is arriving in the United 
                        States or is described in clause (iii) 
                        is inadmissible under section 
                        212(a)(6)(C) or 212(a)(7), the officer 
                        shall order the alien removed from the 
                        United States without further hearing 
                        or review unless the alien indicates 
                        either an intention to apply for asylum 
                        under section 208 or a fear of 
                        persecution.
                          (ii) Claims for asylum.--If an 
                        immigration officer determines that an 
                        alien (other than an alien described in 
                        subparagraph (F)) who is arriving in 
                        the United States or is described in 
                        clause (iii) is inadmissible under 
                        section 212(a)(6)(C) or 212(a)(7) and 
                        the alien indicates either an intention 
                        to apply for asylum under section 208 
                        or a fear of persecution, the officer 
                        shall refer the alien for an interview 
                        by an asylum officer under subparagraph 
                        (B).
                          (iii) Application to certain other 
                        aliens.--
                                  (I) In general.--The Attorney 
                                General may apply clauses (i) 
                                and (ii) of this subparagraph 
                                to any or all aliens described 
                                in subclause (II) as designated 
                                by the Attorney General. Such 
                                designation shall be in the 
                                sole and unreviewable 
                                discretion of the Attorney 
                                General and may be modified at 
                                any time.
                                  (II) Aliens described.--An 
                                alien described in this clause 
                                is an alien who is not 
                                described in subparagraph (F), 
                                who has not been admitted or 
                                paroled into the United States, 
                                and who has not affirmatively 
                                shown, to the satisfaction of 
                                an immigration officer, that 
                                the alien has been physically 
                                present in the United States 
                                continuously for the 2-year 
                                period immediately prior to the 
                                date of the determination of 
                                inadmissibility under this 
                                subparagraph.
                  (B) Asylum interviews.--
                          (i) Conduct by asylum officers.--An 
                        asylum officer shall conduct interviews 
                        of aliens referred under subparagraph 
                        (A)(ii), either at a port of entry or 
                        at such other place designated by the 
                        Attorney General.
                          (ii) Referral of certain aliens.--If 
                        the officer determines at the time of 
                        the interview that an alien has a 
                        credible fear of persecution (within 
                        the meaning of clause (v)), the alien 
                        shall be detained for further 
                        consideration of the application for 
                        asylum.
                          (iii) Removal without further review 
                        if no credible fear of persecution.--
                                  (I) In general.--Subject to 
                                subclause (III), if the officer 
                                determines that an alien does 
                                not have a credible fear of 
                                persecution, the officer shall 
                                order the alien removed from 
                                the United States without 
                                further hearing or review.
                                  (II) Record of 
                                determination.--The officer 
                                shall prepare a written record 
                                of a determination under 
                                subclause (I). Such record 
                                shall include a summary of the 
                                material facts as stated by the 
                                applicant, such additional 
                                facts (if any) relied upon by 
                                the officer, and the officer's 
                                analysis of why, in the light 
                                of such facts, the alien has 
                                not established a credible fear 
                                of persecution. A copy of the 
                                officer's interview notes shall 
                                be attached to the written 
                                summary.
                                  (III) Review of 
                                determination.--The Attorney 
                                General shall provide by 
                                regulation and upon the alien's 
                                request for prompt review by an 
                                immigration judge of a 
                                determination under subclause 
                                (I) that the alien does not 
                                have a credible fear of 
                                persecution. Such review shall 
                                include an opportunity for the 
                                alien to be heard and 
                                questioned by the immigration 
                                judge, either in person or by 
                                telephonic or video connection. 
                                Review shall be concluded as 
                                expeditiously as possible, to 
                                the maximum extent practicable 
                                within 24 hours, but in no case 
                                later than 7 days after the 
                                date of the determination under 
                                subclause (I).
                                  (IV) Mandatory detention.--
                                Any alien subject to the 
                                procedures under this clause 
                                shall be detained pending a 
                                final determination of credible 
                                fear of persecution and, if 
                                found not to have such a fear, 
                                until removed.
                          (iv) Information about interviews.--
                        The Attorney General shall provide 
                        information concerning the asylum 
                        interview described in this 
                        subparagraph to aliens who may be 
                        eligible. An alien who is eligible for 
                        such interview may consult with a 
                        person or persons of the alien's 
                        choosing prior to the interview or any 
                        review thereof, according to 
                        regulations prescribed by the Attorney 
                        General. Such consultation shall be at 
                        no expense to the Government and shall 
                        not unreasonably delay the process.
                          (v) Credible fear of persecution 
                        defined.--For purposes of this 
                        subparagraph, the term ``credible fear 
                        of persecution'' means that there is a 
                        significant possibility, taking into 
                        account the credibility of the 
                        statements made by the alien in support 
                        of the alien's claim and such other 
                        facts as are known to the officer, that 
                        the alien could establish eligibility 
                        for asylum under section 208.
                  (C) Limitation on administrative review.--
                Except as provided in subparagraph 
                (B)(iii)(III), a removal order entered in 
                accordance with subparagraph (A)(i) or 
                (B)(iii)(I) is not subject to administrative 
                appeal, except that the Attorney General shall 
                provide by regulation for prompt review of such 
                an order under subparagraph (A)(i) against an 
                alien who claims under oath, or as permitted 
                under penalty of perjury under section 1746 of 
                title 28, United States Code, after having been 
                warned of the penalties for falsely making such 
                claim under such conditions, to have been 
                lawfully admitted for permanent residence, to 
                have been admitted as a refugee under section 
                207, or to have been granted asylum under 
                section 208.
                  (D) Limit on collateral attacks.--In any 
                action brought against an alien under section 
                275(a) or section 276, the court shall not have 
                jurisdiction to hear any claim attacking the 
                validity of an order of removal entered under 
                subparagraph (A)(i) or (B)(iii).
                  (E) Asylum officer defined.--As used in this 
                paragraph, the term ``asylum officer'' means an 
                immigration officer who--
                          (i) has had professional training in 
                        country conditions, asylum law, and 
                        interview techniques comparable to that 
                        provided to full-time adjudicators of 
                        applications under section 208, and
                          (ii) is supervised by an officer who 
                        meets the condition described in clause 
                        (i) and has had substantial experience 
                        adjudicating asylum applications.
                  (F) Exception.--Subparagraph (A) shall not 
                apply to an alien who is a native or citizen of 
                a country in the Western Hemisphere with whose 
                government the United States does not have full 
                diplomatic relations and who arrives by 
                aircraft at a port of entry.
                  (G) Commonwealth of the northern mariana 
                islands.--Nothing in this subsection shall be 
                construed to authorize or require any person 
                described in section 208(e) to be permitted to 
                apply for asylum under section 208 at any time 
                before January 1, 2014.
          (2) Inspection of other aliens.--
                  (A) In general.--Subject to subparagraphs (B) 
                and (C), in the case of an alien who is an 
                applicant for admission, if the examining 
                immigration officer determines that an alien 
                seeking admission is not clearly and beyond a 
                doubt entitled to be admitted, the alien shall 
                be detained for a proceeding under section 240.
                  (B) Exception.--Subparagraph (A) shall not 
                apply to an alien--
                          (i) who is a crewman,
                          (ii) to whom paragraph (1) applies, 
                        or
                          (iii) who is a stowaway.
                  (C) Treatment of aliens arriving from 
                contiguous territory.--In the case of an alien 
                described in subparagraph (A) who is arriving 
                on land (whether or not at a designated port of 
                arrival) from a foreign territory contiguous to 
                the United States, the Attorney General may 
                return the alien to that territory pending a 
                proceeding under section 240.
          (3) Challenge of decision.--The decision of the 
        examining immigration officer, if favorable to the 
        admission of any alien, shall be subject to challenge 
        by any other immigration officer and such challenge 
        shall operate to take the alien whose privilege to be 
        admitted is so challenged, before an immigration judge 
        for a proceeding under section 240.
  (c) Removal of Aliens Inadmissible on Security and Related 
Grounds.--
          (1) Removal without further hearing.--If an 
        immigration officer or an immigration judge suspects 
        that an arriving alien may be inadmissible under 
        subparagraph (A) (other than clause (ii)), (B), or (C) 
        of section 212(a)(3), the officer or judge shall--
                  (A) order the alien removed, subject to 
                review under paragraph (2);
                  (B) report the order of removal to the 
                Attorney General; and
                  (C) not conduct any further inquiry or 
                hearing until ordered by the Attorney General.
          (2) Review of order.--(A) The Attorney General shall 
        review orders issued under paragraph (1).
          (B) If the Attorney General--
                  (i) is satisfied on the basis of confidential 
                information that the alien is inadmissible 
                under subparagraph (A) (other than clause 
                (ii)), (B), or (C) of section 212(a)(3), and
                  (ii) after consulting with appropriate 
                security agencies of the United States 
                Government, concludes that disclosure of the 
                information would be prejudicial to the public 
                interest, safety, or security,
        the Attorney General may order the alien removed 
        without further inquiry or hearing by an immigration 
        judge.
          (C) If the Attorney General does not order the 
        removal of the alien under subparagraph (B), the 
        Attorney General shall specify the further inquiry or 
        hearing that shall be conducted in the case.
          (3) Submission of statement and information.--The 
        alien or the alien's representative may submit a 
        written statement and additional information for 
        consideration by the Attorney General.
  (d) Authority Relating to Inspections.--
          (1) Authority to search conveyances.--Immigration 
        officers are authorized to board and search any vessel, 
        aircraft, railway car, or other conveyance or vehicle 
        in which they believe aliens are being brought into the 
        United States.
          (2) Authority to order detention and delivery of 
        arriving aliens.--Immigration officers are authorized 
        to order an owner, agent, master, commanding officer, 
        person in charge, purser, or consignee of a vessel or 
        aircraft bringing an alien (except an alien crewmember) 
        to the United States--
                  (A) to detain the alien on the vessel or at 
                the airport of arrival, and
                  (B) to deliver the alien to an immigration 
                officer for inspection or to a medical officer 
                for examination.
          (3) Administration of oath and consideration of 
        evidence.--The Attorney General and any immigration 
        officer shall have power to administer oaths and to 
        take and consider evidence of or from any person 
        touching the privilege of any alien or person he 
        believes or suspects to be an alien to enter, reenter, 
        transit through, or reside in the United States or 
        concerning any matter which is material and relevant to 
        the enforcement of this Act and the administration of 
        the Service.
          (4) Subpoena authority.--(A) The Attorney General and 
        any immigration officer shall have power to require by 
        subpoena the attendance and testimony of witnesses 
        before immigration officers and the production of 
        books, papers, and documents relating to the privilege 
        of any person to enter, reenter, reside in, or pass 
        through the United States or concerning any matter 
        which is material and relevant to the enforcement of 
        this Act and the administration of the Service, and to 
        that end may invoke the aid of any court of the United 
        States.
          (B) Any United States district court within the 
        jurisdiction of which investigations or inquiries are 
        being conducted by an immigration officer may, in the 
        event of neglect or refusal to respond to a subpoena 
        issued under this paragraph or refusal to testify 
        before an immigration officer, issue an order requiring 
        such persons to appear before an immigration officer, 
        produce books, papers, and documents if demanded, and 
        testify, and any failure to obey such order of the 
        court may be punished by the court as a contempt 
        thereof.
  (e) Access to Counsel and Other Assistance During Inspection 
at Ports of Entry and During Deferred Inspection.--
          (1) In general.--The Secretary of Homeland Security 
        shall ensure that a covered individual has a meaningful 
        opportunity to consult with counsel and an interested 
        party during the inspection process.
          (2) Scope of assistance.--The Secretary of Homeland 
        Security shall--
                  (A) provide the covered individual a 
                meaningful opportunity to consult (including 
                consultation via telephone) with counsel and an 
                interested party not later than one hour after 
                the secondary inspection process commences and 
                as necessary throughout the remainder of the 
                inspection process, including, as applicable, 
                during deferred inspection;
                  (B) allow counsel and an interested party to 
                advocate on behalf of the covered individual, 
                including by providing to the examining 
                immigration officer information, documentation, 
                and other evidence in support of the covered 
                individual; and
                  (C) to the greatest extent practicable, 
                accommodate a request by the covered individual 
                for counsel or an interested party to appear 
                in-person at the secondary or deferred 
                inspection site.
          (3) Special rule for lawful permanent residents.--
                  (A) In general.--Except as provided in 
                subparagraph (B), the Secretary of Homeland 
                Security may not accept a Form I-407 Record of 
                Abandonment of Lawful Permanent Resident Status 
                (or a successor form) from a lawful permanent 
                resident subject to secondary or deferred 
                inspection without first providing such lawful 
                permanent resident a meaningful opportunity to 
                seek advice from counsel.
                  (B) Exception.--The Secretary of Homeland 
                Security may accept Form I-407 Record of 
                Abandonment of Lawful Permanent Resident Status 
                (or a successor form) from a lawful permanent 
                resident subject to secondary or deferred 
                inspection if such lawful permanent resident 
                knowingly, intelligently, and voluntarily 
                waives, in writing, the opportunity to seek 
                advice from counsel.
          (4) Definitions.--In this section:
                  (A) Counsel.--The term ``counsel'' means--
                          (i) an attorney who is a member in 
                        good standing of the bar of any State, 
                        the District of Columbia, or a 
                        territory or a possession of the United 
                        States and is not under an order 
                        suspending, enjoining, restraining, 
                        disbarring, or otherwise restricting 
                        the attorney in the practice of law; or
                          (ii) an individual accredited by the 
                        Attorney General, acting as a 
                        representative of an organization 
                        recognized by the Executive Office for 
                        Immigration Review, to represent a 
                        covered individual in immigration 
                        matters.
                  (B) Covered individual.--The term ``covered 
                individual'' means an individual subject to 
                secondary or deferred inspection who is--
                          (i) a national of the United States;
                          (ii) an immigrant, lawfully admitted 
                        for permanent residence, who is 
                        returning from a temporary visit 
                        abroad;
                          (iii) an alien seeking admission as 
                        an immigrant in possession of a valid 
                        unexpired immigrant visa;
                          (iv) an alien seeking admission as a 
                        nonimmigrant in possession of a valid 
                        unexpired nonimmigrant visa;
                          (v) a refugee;
                          (vi) a returning asylee; or
                          (vii) an alien who has been approved 
                        for parole under section 212(d)(5)(A), 
                        including an alien who is returning to 
                        the United States in possession of a 
                        valid advance parole document.
                  (C) Interested party.--The term ``interested 
                party'' means--
                          (i) a relative of the covered 
                        individual;
                          (ii) in the case of a covered 
                        individual to whom an immigrant or a 
                        nonimmigrant visa has been issued, the 
                        petitioner or sponsor thereof 
                        (including an agent of such petitioner 
                        or sponsor); or
                          (iii) a person, organization, or 
                        entity in the United States with a bona 
                        fide connection to the covered 
                        individual.

           *       *       *       *       *       *       *


                             Minority Views

    House Democrats' answer to the raging Biden Border Crisis 
is to send in the lawyers. H.R. 1573 would amend section 235 of 
the Immigration and Nationality Act to provide a right to 
consult with counsel and an ``interested party'' during 
secondary inspections of travelers to the United States at any 
port of entry. U.S. Customs and Border Protection (CBP) has 
raised concerns about the serious operational and practical 
implications of providing a right to consult with counsel and 
an ``interested party'' during the secondary inspection 
process. Yet, the Democrat majority held no legislative hearing 
on this bill prior to markup. At a time when the U.S. faces an 
unprecedented crisis at the southern border, this bill will 
significantly burden federal immigration agencies and do 
nothing to stop the Biden Border Crisis.

  I. THE BILL'S RIGHT OF ACCESS TO COUNSEL AND AN INTERESTED PARTY IS 
                               MISGUIDED

    H.R. 1573 would require the Secretary of the Department 
Homeland Security (DHS) to provide a individual in the 
secondary inspection process with a meaningful opportunity to 
consult with counsel not later than one hour after the 
secondary inspection process commences. This requirement would 
apply at any port of entry where secondary inspections are 
conducted, including land, air, and sea ports. There are 328 
U.S. ports of entry.\1\
---------------------------------------------------------------------------
    \1\Information provided by U.S. Customs and Border Protection.
---------------------------------------------------------------------------
    H.R. 1573 also grants the individual in secondary 
inspection access to an interested party during the first hour 
of referral to secondary inspection. Under the bill, an 
``interested party'' is defined as a relative of the covered 
individual; the petitioner or sponsor of the covered 
individual; or a person, organization, or entity in the U.S. 
with a bona fide connection to the covered individual. The bill 
does not address the serious potential that a person could use 
the ``interested party'' contact in furtherance of a crime. For 
example, an individual part of a criminal conspiracy could 
contact and communicate with a co-conspirator while in 
secondary inspection.
    The right to consultation under the bill applies to 
nationals of the United States, returning Lawful Permanent 
Residents, aliens seeking admission with unexpired immigrant or 
nonimmigrant visas, refugees, returning asylees, and aliens 
approved for parole or in possession of an advance parole 
document. The bill also prohibits DHS from accepting an 
abandonment of Lawful Permanent Resident status unless the 
individual has the ability to consult with counsel or waives 
that right.
    Under current regulations, applicants for admission are not 
entitled to representation in primary or secondary inspections 
unless the applicant has become the focus of a criminal 
investigation and has been taken into custody.\2\ The right to 
counsel only attaches once the screening turns from questions 
of admissibility of people or goods to a custodial 
interrogation relating to a criminal offense.\3\ An alien 
seeking admission to the United States has no due process right 
to counsel except insofar as Congress would provide,\4\ and 
there is no right to counsel in secondary inspection.\5\ 
However, the CBP Adjudicator's Field Manual does provide that 
the inspecting officer may, at his or her discretion, permit a 
relative, friend, or representative access to the inspection 
area to provide assistance.\6\
---------------------------------------------------------------------------
    \2\8 C.F.R. Sec.  292.6 (``Provided, that nothing in this paragraph 
shall be construed to provide any applicant for admission in either 
primary or secondary inspection the right to representation, unless the 
applicant for admission has become the focus of a criminal 
investigation and has been taken into custody.'').
    \3\Miranda v. Arizona, 384 U.S. 436 (1966).
    \4\See Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (``Whatever 
the procedure authorized by Congress is, it is due process as far as an 
alien denied entry is concerned'').
    \5\American Immigration Lawyer's Assn. v. Reno, 199 F.3d 1352 (D.C. 
Cir. 2000) (affirming lower court's determination that ``ban[ning] 
access to counsel during the secondary inspection stage is reasonable 
in view of Congress's dual purposes in providing fair procedures while 
creating a more expedited removal process''); AILA v. Reno, 18 F. Supp. 
2d 38, 55 (D.D.C. 1998).
    \6\CBP Inspector's Field Manual, Chapter 2.9, available at https://
www.aila.org/File/Related/11120959A.pdf.
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       II. THE BILL WILL HAVE SIGNIFICANT NEGATIVE EFFECTS ON CBP

    Secondary inspection--as opposed to primary inspection in 
which travelers are quickly screened for admissibility\7\ and 
customs\8\ purposes--is a tool used by customs officers to 
conduct additional screening and vetting of certain individuals 
without causing delays for other travelers.\9\ A person 
``referred to secondary'' is usually\10\ directed to wait at an 
adjacent inspections location for additional questioning by a 
customs officer, physical searches, or to give customs officers 
more time to research the applicant in law enforcement 
databases.\11\ CBP conducts over 17 million secondary 
inspections of persons each year at various ports of entry.\12\
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    \7\INA Sec.  235(a)(3) (``All aliens (including alien crewmen) who 
are applicants for admission or otherwise seeking admission or 
readmission to or transit through the United States shall be inspected 
by immigration officers.'').
    \8\19 C.F.R. Sec.  162.6 (``All persons, baggage and merchandise 
arriving in the Customs territory of the United States from places 
outside thereof are liable to inspection by a CBP officer.'').
    \9\See Privacy Impact Assessment, U.S. Customs and Border 
Protection, TECS, (Dec. 22, 2010), available at https://www.dhs.gov/
xlibrary/assets/privacy/privacy-pia-cbp-tecs.pdf (``At primary, CBP 
obtains information directly from the traveler via his or her presented 
travel documents (e.g., passport) and/or verbal communication between 
the CBP officer and the traveler If the CBP officer at primary 
determines that additional inspection is needed, the traveler will be 
referred to secondary.'').
    \10\However, in some ports of entry, primary and secondary will 
occur at the same time with the same CBP officer.
    \11\Saghetti, Lisa: Border Security: Immigration Inspections at 
Ports of Entry, (Jan. 26, 2015) Congressional Research Service, 
available at https://fas.org/sgp/crs/homesec/R43356.pdf.
    \12\Data provided by CBP to Committee Staff on February 7, 2020.
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    Giving individuals the right to access counsel during 
secondary inspection would have serious logistical and 
practical consequences for CBP's ability to screen travelers 
and carry out its mission of facilitating lawful trade and 
travel quickly and efficiently. CBP enforces nearly 500 U.S. 
trade laws and regulations on behalf of 49 different government 
agencies.\13\ In fiscal year 2019, CBP processed more than 410 
million travelers at ports of entry, including almost 136 
million at airports.\14\ Each day CBP inspects over one million 
people at the various land, air, and sea ports of entry.\15\
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    \13\CBP Trade and Travel Report: Fiscal Year 2019, (Jan. 2020), 
available at https://www.cbp.gov/sites/default/files/assets/documents/
2020-Jan/CBP%20FY2019%20Trade%20and
%20Travel%20Report.pdf.
    \14\Id.
    \15\Id.
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    According to the Congressional Budget Office (CBO), CBP 
officials have indicated that H.R. 1573 could increase the 
length of secondary inspections and drastically delay 
processing, which would have an upstream effect on primary 
inspection as well.\16\ CBO also notes that CBP does not have 
physical space in its ports to accommodate in-person attorney 
visits for everyone referred to secondary inspection. CBP will 
thus need to build out facilities to accommodate in- person 
attorney consultations and will have to dedicate countless 
additional manhours holding individuals in secondary inspection 
who are waiting for counsel or interested parties to show up at 
the port and spend time consulting.\17\ CBP will need to hire 
additional personnel at each port of entry, provide security 
and transportation for each individual seeking access to 
counsel, upgrade current space, and construct new space for 
necessary meetings.\18\ CBO estimates that H.R. 1573 will cost 
$825 million over the next five years.\19\
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    \16\Congressional Budget Office, Cost Estimate of H.R. 1573 Access 
to Counsel Act of 2021 (Apr. 15, 2021).
    \17\Id.
    \18\Id.
    \19\Id.
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    During the week of April 5, 2021, Republican Members of the 
Judiciary Committee traveled to McAllen, Texas and visited the 
Hidalgo Port of Entry, where officers explained that facilities 
were already too small, outdated, and in dire need of upgrades. 
The officers explained that the city of McAllen was already 
paying for structural upkeep of the port facility because 
Congress had neglected to do so for so long. H.R. 1573 would 
only further strain CBP's resources and complicate CBP's 
ability to carry out its mission and protect our country.
    Other than Republican fact-finding in McAllen, Texas--which 
Democrats declined to join--the Democrat majority made no 
effort this Congress to gather information about how H.R. 1573 
would affect CBP or border communities. The Committee 
considered H.R. 1573 without any legislative hearing this 
Congress to receive and examine input from CBP, immigration 
stakeholders, and members of border communities. Additionally, 
during the Committee's consideration of the bill. Democrats 
rejected all amendments offered by Republicans that would have 
improved the bill's provisions.

                            III. CONCLUSION

    The Democrats failed to conduct any legislative due 
diligence on H.R. 1573 in the 117th Congress. As a result, the 
bill's access to counsel and interested party provisions are 
misguided. The bill's implementation will severely and 
negatively affect CBP's ability to facilitate lawful trade and 
travel. Most egregiously, at a time when CBP and other 
immigration agencies are stretched thin by the Biden 
Administration's radical immigration policies, H.R. 1573 does 
nothing to address the Biden Border Crisis.
                                                Jim Jordan,
                                                    Ranking Member.