99–006

107TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 107–254

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

2

1Sec. 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.

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.

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 unVerDate 13-OCT-2001 21:59 Oct 29, 2001 Jkt 099006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6601 E:\HR\OC\HR254.XXX pfrm02 PsN: HR254
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2Sec. 255 of Division A of H.R. 3427; Pub. L. No. 106–113, appendix G; 113 Stat. 1501A–432.

married 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

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.

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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.

5

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

6

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.

7

AGENCY VIEWS


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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:]

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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:]


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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 legislaVerDate 13-OCT-2001 21:59 Oct 29, 2001 Jkt 099006 PO 00000 Frm 00018 Fmt 6659 Sfmt 6601 E:\HR\OC\HR254.XXX pfrm02 PsN: HR254

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tion, 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

20

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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