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[House Report 107-254]
[From the U.S. Government Publishing Office]

107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    107-254

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    TO EXTEND ELIGIBILITY FOR REFUGEE STATUS OF UNMARRIED SONS AND 
                DAUGHTERS OF CERTAIN VIETNAMESE REFUGEES

                                _______
                                

October 29, 2001.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                        [To accompany H.R. 1840]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1840) to extend eligibility for refugee status of 
unmarried sons and daughters of certain Vietnamese refugees, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Oversight Findings.....................................     4
Performance Goals and Objectives.................................     4
New Budget Authority and Tax Expenditures........................     4
Congressional Budget Office Cost Estimate........................     4
Constitutional Authority Statement...............................     5
Section-by-Section Analysis and Discussion.......................     5
Agency Views.....................................................     7
Markup Transcript................................................    13

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. ELIGIBILITY FOR REFUGEE STATUS.

    (a) Eligibility for In-Country Refugee Processing in Vietnam.--For 
purposes of eligibility for in-country refugee processing for nationals 
of Vietnam during fiscal years 2002 and 2003, an alien described in 
subsection (b) shall be considered to be a refugee of special 
humanitarian concern to the United States (within the meaning of 
section 207 of the Immigration and Nationality Act (8 U.S.C. 1157)) and 
shall be admitted to the United States for resettlement if the alien 
would be admissible as an immigrant under the Immigration and 
Nationality Act (except as provided in section 207(c)(3) of that Act).
    (b) Aliens Covered.--An alien described in this subsection is an 
alien who--
            (1) is the son or daughter of a qualified national;
            (2) is 21 years of age or older; and
            (3) was unmarried as of the date of acceptance of the 
        alien's parent for resettlement under the Orderly Departure 
        Program or through the United States Consulate General in Ho 
        Chi Minh City.
    (c) Qualified National.--The term ``qualified national'' in 
subsection (b)(1) means a national of Vietnam who--
            (1)(A) was formerly interned in a re-education camp in 
        Vietnam by the Government of the Socialist Republic of Vietnam; 
        or
            (B) is the widow or widower of an individual described in 
        subparagraph (A);
            (2)(A) qualified for refugee processing under the Orderly 
        Departure Program re-education subprogram; and
            (B) is or was accepted under the Orderly Departure Program 
        or through the United States Consulate General in Ho Chi Minh 
        City--
                    (i) for resettlement as a refugee; or
                    (ii) for admission to the United States as an 
                immediate relative immigrant; and
            (3)(A) is presently maintaining a residence in the United 
        States or whose surviving spouse is presently maintaining such 
        a residence; or
            (B) was approved for refugee resettlement or immigrant visa 
        processing and is awaiting departure formalities from Vietnam 
        or whose surviving spouse is awaiting such departure 
        formalities.

                          Purpose and Summary

    The purpose of this Act is to extend eligibility for 
refugee status of unmarried sons and daughters of certain 
Vietnamese refugees. The Act extends the time period that the 
State Department and the Immigration and Naturalization Service 
(INS) have to process eligible adult, unmarried sons and 
daughters through fiscal year 2003. It removes the date of 
April 1, 1995, imposed by the McCain Amendment,\1\ so that the 
cases of sons and daughters processed after April 1, 1995, are 
adjudicated in the same manner as those cases processed prior 
to that date. The Act permits the INS to reconsider cases that 
were previously denied for failure of proof of family 
relationship, rather than just those cases that were denied 
based on the issue of co-habitation with the principal alien. 
Finally, the Act expands eligibility to adult, unmarried sons 
and daughters whose principal parent has died, but whose 
surviving parent is maintaining a residence in the United 
States or is awaiting departure formalities from Vietnam.
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    \1\ Sec. 584 of the Foreign Operations, Export Financing, and 
Related Programs Appropriations Act, 1997, Division A of H.R. 3610; 
Pub. L. No. 104-208; 110 Stat. 3009-171.
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                Background and Need for the Legislation

                               Background

    The Orderly Departure Program (ODP) was established in 1979 
to give eligible nationals of Vietnam an alternative method of 
emigrating to a foreign country, rather than undertake illegal, 
hazardous departures by boat or land. In 1989, the INS began 
adjudicating applications for refugee status in Vietnam for 
certain Vietnamese nationals who had been in re-education camps 
for at least 3 years and widows of Vietnamese nationals who had 
died as a result of confinement in re-education camps. The INS 
included unmarried sons and daughters 21 years and older based 
on case eligibility guidelines set up by the State Department 
10 years earlier. However, this contradicted immigration 
regulations. INS had been treating these unmarried sons/
daughters as derivative refugees, but the immigration 
regulations define derivative refugees as spouses and unmarried 
children under 21 years of age. After extensively announcing 
that registration for the ODP would draw to a close, 
registration for the ODP ceased on September 30, 1994.
    In April 1995, the INS, with concurrence of the State 
Department, modified its criteria of who could be included on 
the refugee claim to exclude unmarried, adult sons and 
daughters. In response to this modification, legislation (the 
``McCain Amendment'') was enacted to re-establish refugee 
eligibility to unmarried, adult sons and daughters of the 
qualifying Vietnamese nationals. The legislation was 
retroactive to April 1, 1995, the date on which the 
modification had taken effect. The McCain Amendment provided 
legal authority to the INS to consider and approve individuals 
who were not properly classifiable as derivatives. This 
Amendment was extended in 1998 (as section 255 of the Admiral 
James W. Nance and Meg Donovan Foreign Relations Authorization 
Act for fiscal years 2000 and 2001).\2\
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    \2\ Sec. 255 of Division A of H.R. 3427; Pub. L. No. 106-113, 
appendix G; 113 Stat. 1501A-432.
---------------------------------------------------------------------------
    The INS has denied derivative refugee status to those 
unmarried sons and daughters who failed to prove their family 
relationship with the principal applicant. The INS mistakenly 
denied some for no proof of family relationship when the 
applicant could not show he or she continuously resided with 
the parent. After determining that it was incorrectly denying 
some derivatives based on co-residency, the INS identified the 
entire caseload of improperly adjudicated derivative family 
member cases. The agency had until September 30, 2001, to 
correct the cases adjudicated on or after April 1, 1995, where 
the original denial was based solely on the issue of co-
residency with the principal applicant.

                                The Bill

    The INS needs additional time to adjudicate pending cases 
under the McCain Amendment. As such, H.R. 1840 extends the time 
to adjudicate those cases by two years.
    The intent of H.R. 1840 is to extend the same eligibility 
criteria applied to cases currently being processed under the 
McCain Amendment to individuals whose parent's case was 
processed prior to April 1, 1995. Accordingly, the Act removes 
the date of April 1, 1995, imposed by the McCain Amendment.
    In addition to failure to prove co-residency, the INS has 
denied some cases because the applicants were unable to prove 
their family relationship to a principal applicant. Due to new 
identification methods, such as DNA, H.R. 1840 permits the INS 
to reconsider cases that were previously denied for failure of 
proof, rather than just those cases that were denied based on 
the issue of co-habitation with the principal alien.
    Finally, some sons and daughters have been denied 
derivative refugee status because their principal applicant 
parent has died, although their surviving parent resides in the 
United States or is awaiting departure formalities from 
Vietnam. Accordingly, H.R. 1840 expands eligibility to include 
these adult, unmarried sons and daughters.

                                Hearings

    No hearings were held on H.R. 1840.

                        Committee Consideration

    On June 27, 2001, the Subcommittee on Immigration and 
Claims met in open session and ordered favorably reported the 
bill H.R. 1840, as amended, by a vote of 6 to 3, a quorum being 
present. On October, 10, 2001, the Committee met in open 
session and ordered favorably reported the bill H.R. 1840 with 
amendment by voice vote, a quorum being present.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports 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.

                    Performance Goals and Objectives

    H.R. 1840 does not authorize funding. Therefore, clause 
3(c) of rule XIII of the Rules of the House of Representatives 
is inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII 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. 1840, 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, October 12, 2001.
Hon. F. James Sensenbrenner, Jr., 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. 1840, a bill to 
extend eligibility for refugee status of unmarried sons and 
daughters of certain Vietnamese refugees.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 1840--A bill to extend eligibility for refugee status of unmarried 
        sons and daughters of certain Vietnamese refugees.
    CBO estimates that enacting H.R. 1840 would result in no 
significant cost to the Federal Government. The bill could 
affect direct spending, so pay-as-you-go procedures would 
apply, but we estimate that any such effects would be 
insignificant. H.R. 1840 contains no intergovernmental or 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act and would impose no significant costs on state, 
local, or tribal governments.
    Until September 30, 2001, unmarried adult children of 
certain Vietnamese nationals were eligible for admission to the 
United States as refugees of special humanitarian concern. H.R. 
1840 would renew their eligibility through the end of fiscal 
year 2003. Enacting the bill would lead to an increase in 
refugee admissions, which would increase administrative costs 
to the Immigration and Naturalization Service and increase 
spending for certain benefit programs. However, CBO expects the 
bill would aid no more than 1,000 persons annually, so any 
increases in direct spending would not be significant.
    The CBO staff contact for this estimate is Mark Grabowicz, 
who can be reached at 226-2860. This estimate was approved by 
Peter H. Fontaine, Deputy Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clause 4 of the 
Constitution.

               Section-by-Section Analysis and Discussion

                 Sec. 1. Eligibility for Refugee Status

    Section 1(a) Eligibility for In-Country Refugee Processing 
in Vietnam. Section 1(a) permits in-country refugee processing 
by the State Department and the INS to continue through fiscal 
year 2003. It states that aliens described in subsection 1(b) 
are considered to be refugees of special humanitarian concern 
to the United States within the meaning of section 207 of the 
Immigration and Nationality Act (INA) (referring to refugees) 
and should be admitted to reside in the U.S. if the alien would 
be admissible as an immigrant under the Immigration and 
Nationality Act (except as provided in section 207(c)(3) of the 
INA).
    Section 1(b) Aliens Covered. Section 1(b) describes the 
beneficiaries under this Act. An alien must be (1) the son or 
daughter of a qualified national (defined in subsection 1(c)); 
(2) 21 years of age or older; and (3) be unmarried as of the 
date of acceptance of the alien's parent for resettlement under 
the Orderly Departure Program or through the U.S. Consulate 
General in Ho Chi Minh City.
    Section 1(c) Qualified National. Subsection 1(c) defines 
the term ``qualified national'' in subsection (b)(1) as a 
national of Vietnam who:

        (1)(A) was formerly interned in a re-education camp in 
        Vietnam by the Socialist Republic of Vietnam 
        Government; or

        (B) is the widow or widower of an individual described 
        in subparagraph (1)(A);

        (2)(A) qualified for refugee processing under the 
        Orderly Departure Program re-education subprogram; and

        (B) is or was accepted under the Orderly Departure 
        Program or through the U.S. Consulate General in Ho Chi 
        Minh City for
                (i)
                   resettlement as a refugee; or
                (ii)
                   admission to the U.S. as an immediate 
                relative immigrant; and

        (3)(A) is presently maintaining a residence in the U.S. 
        or whose surviving spouse is presently maintaining such 
        a residence; or

        (B) was approved for refugee resettlement or immigrant 
        visa processing and is awaiting departure formalities 
        from Vietnam or whose surviving spouse is awaiting such 
        departure formalities.

                              Agency Views

                           Markup Transcript

                            BUSINESS MEETING

                      WEDNESDAY, OCTOBER 10, 2001

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to call, at 2:35 p.m., in Room 
2141 Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    Chairman Sensenbrenner. The next item on the agenda is H.R. 
1840, to extend the eligibility for refugee status of unmarried 
sons and daughters of certain Vietnamese refugees. The Chair 
recognizes the gentleman from Pennsylvania, Mr. Gekas, the 
Chairman of the Subcommittee on Immigration and Claims.
    Mr. Gekas. Mr. Chairman, the Subcommittee on Immigration 
and Claims reports favorably the bill, H.R. 1840, with a single 
amendment in the nature of a substitute, and moves its 
favorable recognition to the full House.
    [The bill, H.R. 1840, follows:]
    
    
    Chairman Sensenbrenner. Without objection, the bill will be 
considered as read and open for amendment at any point, and the 
Subcommittee amendment in the nature of a substitute, which the 
Members have before them, will be considered as read and be 
considered as the original text for purposes of amendment.
    The Chair recognizes the gentleman from Pennsylvania to 
offer a substitute which has been negotiated since the 
Subcommittee markup and to explain the substitute.
    Mr. Gekas. I thank the Chairman. This amendment----
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment in the nature of a substitute to the 
Subcommittee amendment to H.R. 1840, offered by Mr. Gekas.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read and open for amendment at any point, and the 
gentleman from Pennsylvania is recognized for 5 minutes.
    Mr. Gekas. Thank you, Mr. Chairman.
    The amendment in the nature of a substitute is very similar 
to the underlying bill because it benefits all those adult 
unmarried children of reeducation camp survivors, the 
Vietnamese brand, who deserve our consideration. This amendment 
was drafted by the Administration and has the full support of 
the Justice and State Departments, as well as the support of 
Representative Davis, the gentleman from Virginia, the author 
of the bill.
    In keeping with that, I ask unanimous consent, Mr. 
Chairman, that the record receive two statements approving of 
the language, one from the Department of Justice and the other 
from the Department of State. I ask unanimous consent that they 
be included in the record.
    Chairman Sensenbrenner. Without objection.
    Mr. Gekas. Like the underlying bill, it extends the time 
INS has to process the derivative reconsideration cases to the 
end of fiscal year 2003. Like the underlying bill, it deletes 
the April 1, 1995 date so that cases adjudicated prior to that 
date may be reconsidered. And like H.R. 1840, it permits cases 
that were denied for any reason, not just based on cohabitation 
with the parent, to be reconsidered.
    The amendment does two additional things. It strikes the 
cap language inserted at Subcommittee and, number two, it 
permits the son or daughter of a qualified national parent who 
has died to be eligible for consideration for resettlement in 
the U.S. if his or her other parent is residing in the U.S. or 
awaiting exit papers for U.S. resettlement.
    I urge my colleagues to join the Administration and the 
author of the bill to support this amendment. I yield back the 
balance of my time.
    Chairman Sensenbrenner. Does the minority wish to make a 
statement on the substitute?
    Ms. Jackson Lee. Yes, Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from Texas is 
recognized for 5 minutes.
    Ms. Jackson Lee. I thank the Chairman very much. I rise to 
support the substitute because it supports the underlying 
legislation, H.R. 1840, which is Representative Tom Davis's 
bill to restore refugee eligibility for certain sons and 
daughters of Vietnamese reeducation camp survivors.
    I think it is important that the legislation, underlying 
legislation, fixes the devastating problem of what happened to 
our longstanding friends of the Vietnam War, the Vietnamese 
soldiers, combat soldiers, who fought with us and suffered long 
terms in reeducation camps because of their wartime association 
with the United States. This imposed a particularly harsh 
burden on the refugees and their children. These children had 
already been without their fathers throughout the time they 
were in reeducation camps, in some cases for 10 to 15 years. 
Then the refugees were given a choice between living forever in 
a communist dictatorship or leaving their children behind.
    This legislation allows these families to be reunited in 
the United States under provisions dated in April 1995, and the 
amendment is very helpful, inasmuch as it clears up factual 
problems dealing with the family relationships that will allow 
these particular individuals to be reunited. There were some 
past Administration changes that I think hurt the bill and hurt 
the process. I believe the manager's amendment as well as the 
underlying legislation clears up an obligation that I believe 
is so important, making good on our friends, helping these 
combat soldiers to be reunited with their 21-year-old-plus 
family members, children who have remained unmarried and who 
are living with them.
    With that, Mr. Chairman, I ask my colleagues to support the 
amendment and the underlying legislation.
    [The statement of Ms. Jackson Lee follows:]
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress From the State of Texas
    Thank you Mr. Chairman.
    I support H.R. 1840--which is Rep. Tom Davis's bill to restore 
refugee eligibility for certain sons and daughters of Vietnamese re-
education camp survivors as originally introduced. I also support the 
Manager's amendment offered today.
    Until April 1, 1995, refugees accepted for resettlement in the U.S. 
were allowed to bring their sons and daughters, even those above the 
age of 21, so long as they had never married and were members of the 
refugee parent's household.
    On April 1, 1995, INS changed its interpretation of the then-
existing law, to exclude children who were over 21, even if they were 
unmarried and living with their parents.
    In the case of South Vietnamese combat veterans and others who had 
suffered long terms in ``re-education camps'' because of their wartime 
associations with the United States, this imposed a particularly harsh 
burden on the refugees and their children. These children had already 
been without their fathers throughout the time they were in re-
education camps, in some cases for 10 or 15 years. Then the refugees 
were given a choice between living forever in a Communist dictatorship 
or leaving their children behind. These children were marked as members 
of a ``counterrevolutionary family'', denied educational and employment 
opportunities, and would be sure to go on suffering in Viet Nam.
    Recognizing these realities, Congress has three times adopted the 
``McCain Amendment'' which changes the INS interpretation of the law, 
so that refugees who are survivors of re-education camps can once again 
be accompanied by their unmarried sons and daughters. The latest 
extension of the McCain amendment will expire on September 30. The 
Davis bill would extend the McCain amendment for an additional two 
years.
    During consideration of the current version of the McCain 
amendment--enacted in 1999 as part of the Foreign Relations 
Authorization Act for FY 2000 and 2001--proponents of the provision 
tried to fix a drafting problem in the original language of the 
amendment. This original language--apparently drafted by executive 
branch employees during previous Clinton-era renewals of the 
amendment--excluded sons and daughters who were mistakenly rejected 
before April 1, 1995.
    The Davis bill will fix this problem once and for all, simply by 
enacting the very same rules for pre-April 1995 cases that already 
apply to later cases.
    The same executive branch employees who suggested the earlier 
restrictive language have now drafted a restrictive amendment to the 
Davis bill, which a Judiciary Committee member is expected to offer at 
Committee markup. This language would extend the protection of the 
McCain amendment to a few sons and daughters whose parents were 
accepted prior to April 1, 1995. By requiring an affirmative 
``rejection'' by INS, however, it would still exclude sons and 
daughters who were denied access to an INS interview by vindictive or 
corrupt Communist officials, or who were wrongly ``screened out'' by 
U.S. officials or contractors prior to the interview.
    There is no ``floodgates of immigration'' issue with the original 
Davis bill. The Davis bill only applies the same INS rules and 
procedures to pre-April 1995 cases that already apply to post-April 
1995 cases, which have generated no such floodgates. The best estimate 
is that this amendment would apply to a few hundred people, or at most 
to 1000-2000. If INS properly implements the law, we can reunite these 
families quickly and no further extension should be necessary after 
2003.
    Under the original language of the Davis bill, INS is not compelled 
to admit a single new immigrant or refugee--it is merely given the 
authority to correct past mistakes, if and only if it determines that a 
mistake was really made. So there is no need for a new set of 
restrictions to keep the numbers low. This bill provides much-needed 
relief to a small and carefully defined group of people, and INS 
already has the authority, the skills, and the resources it needs to 
prevent the provision from being taken advantage of by other, 
undeserving applicants.
    Thank you Mr. Chairman. I yield back the balance of my time.

    Chairman Sensenbrenner. Does the gentlewoman yield back 
now?
    Ms. Jackson Lee. I yield back. Thank you.
    Chairman Sensenbrenner. Are there any amendments to the 
amendment in the nature of a substitute?
    Hearing none, the question is on the amendment in the 
nature of a substitute offered by the gentleman from 
Pennsylvania, Mr. Gekas. Those in favor will signify by saying 
aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment in the nature of a substitute is adopted.
    A reporting quorum is present. The question is now on 
reporting the bill favorably, as amended. Those in favor will 
signify by saying aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the bill 
is reported favorably, as amended by the amendment in the 
nature of a substitute.
    Without objection, the Chairman is authorized to move to go 
to conference pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes, 
and all Members will be given 2 days by the House rules in 
which to submit additional, dissenting, supplemental, or 
minority views.
    [Intervening business.]
    And the Committee stands adjourned.
    [Whereupon, at 5:12 p.m., the Committee was adjourned.]

                                  
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