I

107TH CONGRESS

1ST SESSION H. R. 87

To amend the Immigration and Nationality Act to restore certain provisions

relating to the definition of aggravated felony and other provisions as

they were before the enactment of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 3, 2001

Mr. FILNER introduced the following bill; which was referred to the

Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act to restore

certain provisions relating to the definition of aggravated

felony and other provisions as they were before the enactment of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Keeping Families Together Act of 2001’’.

6 (b) TABLE OF CONTENTS.—The table of contents of

7 this Act is as follows:
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Sec. 1. Short title; table of contents.

Sec. 2. Restoration of definition of aggravated felony (repeal of section 321 of

IIRIRA).

Sec. 3. Restoration of detention policy.

Sec. 4. Repeal of time stop provisions.

Sec. 5. Repeal of section 101(a)(48).

Sec. 6. Restoration of section 212(c).

Sec. 7. Restoration of judicial review provisions.

Sec. 8. Post-proceeding relief for affected aliens.

1 SEC. 2. RESTORATION OF DEFINITION OF AGGRAVATED

2 FELONY (REPEAL OF SECTION 321 OF IIRIRA).

3 (a) IN GENERAL.—Effective as if included in the en4 actment of the Illegal Immigration Reform and Immigrant

5 Responsibility Act of 1996 (division C of Public Law 104–

6 208), section 321 of such Act is repealed and the provi7 sions of law amended by such section are restored as if

8 such section had not been enacted.

9 (b) RESTORATION OF RIGHTS.—Any alien whose

10 legal permanent resident status, application for permanent

11 residence, or application for cancellation of removal, was

12 affected by the changes in the definition of ‘‘aggravated

13 felony’’ made by such section 321 may apply to the Attor14 ney General to be considered for adjustment of status or

15 cancellation of removal in conformance with the provisions

16 of section 101(a)(43) of the Immigration and Nationality

17 Act, as restored by subsection (a).

18 SEC. 3. RESTORATION OF DETENTION POLICY.

19 (a) IN GENERAL.—Section 236(c) of the Immigration

20 and Nationality Act (8 U.S.C. 1226(c)) is amended to

21 read as follows:
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1 ‘‘(c) DETENTION OF CRIMINAL ALIENS.—

2 ‘‘(1) IN GENERAL.—The Attorney General shall

3 take into custody any alien convicted of an aggra4 vated felony upon release of the alien (regardless of

5 whether or not such release is on parole, supervised

6 release, or probation, and regardless of the possi7 bility of rearrest or further confinement in respect of

8 the same offense). Notwithstanding subsection (a) or

9 section 241(a) but subject to paragraph (2), the At10 torney General shall not release such felon from cus11 tody.

12 ‘‘(2) NON-RELEASE.—The Attorney General

13 may not release from custody any who has been con14 victed of an aggravated felony, either before or after

15 a determination of removability, unless—

16 ‘‘(A)(i) the alien was lawfully admitted, or

17 ‘‘(ii) the alien was not lawfully admitted

18 but the alien cannot be removed because the

19 designated country of removal will not accept

20 the alien; and

21 ‘‘(B) the alien satisfies the Attorney Gen22 eral that the alien will not pose a danger to the

23 safety of other persons or of property and is

24 likely to appear for any scheduled proceeding.’’.
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1 (b) EFFECTIVE DATE.—The amendment made by

2 subsection (a) shall be effective as if included in the Illegal

3 Immigration Reform and Immigrant Responsibility Act of

4 1996.

5 SEC. 4. REPEAL OF TIME STOP PROVISIONS.

6 (a) IN GENERAL.—Section 240A(d) of the Immigra7 tion and Nationality Act (8 U.S.C. 1229b(d)) is repealed.

8 (b) EFFECTIVE DATE.—The repeal made by sub9 section (a) shall be effective as if included in the enact10 ment of subtitle A of title III of the Illegal Immigration

11 Reform and Immigrant Responsibility Act of 1996.

12 SEC. 5. REPEAL OF SECTION 101(A)(48).

13 (a) IN GENERAL.—Paragraph (48) of section

14 101(a)(48) of the Immigration and Nationality Act (8

15 U.S.C. 1101(a)) is repealed.

16 (b) EFFECTIVE DATE.—The repeal made by sub17 section (a) shall take effect as if included in the enactment

18 of section 322(a) of the Illegal Immigration Reform and

19 Immigrant Responsibility Act of 1996.

20 SEC. 6. RESTORATION OF SECTION 212(C).

21 (a) IN GENERAL.—Section 212 of the Immigration

22 and Nationality Act (8 U.S.C. 1182) is amended by insert23 ing after subsection (b) the following new subsection:

24 ‘‘(c) Aliens lawfully admitted for permanent residence

25 who temporarily proceeded abroad voluntarily and not
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1 under an order of deportation or removal, and who are

2 returning to a lawful unrelinquished domicile of seven con3 secutive years, may be admitted in the discretion of the

4 Attorney General without regard to the provisions of sub5 section (a) (other than paragraphs (3) and (10)(C)).

6 Nothing contained in this subsection shall limit the au7 thority of the Attorney General to exercise the discretion

8 vested in him under section 211(b). The first sentence of

9 this subsection shall not apply to an alien who has been

10 convicted of one or more aggravated felonies and has

11 served for such felony or felonies a term of imprisonment

12 of at least 5 years.’’.

13 (b) EFFECTIVE DATE.—The amendment made by

14 subsection (a) applies as of April 24, 1996, as if section

15 440(d) of the Antiterrorism and Effective Death Penalty

16 Act of 1996 (Public Law 104–132) and section 304(b) of

17 Illegal Immigration Reform and Immigrant Responsibility

18 Act of 1996 (division C of Public Law 104–208) had not

19 been enacted.

20 SEC. 7. RESTORATION OF JUDICIAL REVIEW PROVISIONS.

21 (a) IN GENERAL.—Section 242 of the Immigration

22 and Nationality Act (8 U.S.C. 1252) is amended to read

23 as follows:

24 ‘‘JUDICIAL REVIEW OF ORDERS OF REMOVAL

25 ‘‘SEC. 242. (a) The procedure prescribed by, and all

26 the provisions of chapter 158 of title 28, United States
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1 Code, shall apply to, and shall be the sole and exclusive

2 procedure for, the judicial review of all final orders of re3 moval heretofore or hereafter made against aliens within

4 the United States pursuant to administrative proceedings

5 under section 240 of this Act or comparable provisions of

6 any prior Act, except that—

7 ‘‘(1) a petition for review may be filed not later

8 than 90 days after the date of the issuance of the

9 final removal order, or, in the case of an alien con10 victed of an aggravated felony not later than 30

11 days after the issuance of such order;

12 ‘‘(2) the venue of any petition for review under

13 this section shall be in the judicial circuit in which

14 the administrative proceedings before an immigra15 tion judge were conducted in whole or in part, or in

16 the judicial circuit wherein is the residence, as de17 fined in this Act, of the petitioner, but not in more

18 than one circuit;

19 ‘‘(3) the action shall be brought against the Im20 migration and Naturalization Service, as respondent.

21 Service of the petition to review shall be made upon

22 the Attorney General of the United States and upon

23 the official of the Immigration and Naturalization

24 Service in charge of the Service district in which the

25 office of the clerk of the court is located. The service
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1 of the petition for review upon such official of the

2 Service shall stay the removal of the alien pending

3 determination of the petition by the court, unless the

4 court otherwise directs or unless the alien is con5 victed of an aggravated felony, in which case the

6 Service shall not stay the removal of the alien pend7 ing determination of the petition of the court unless

8 the court otherwise directs;

9 ‘‘(4) except as provided in clause (B) of para10 graph (5) of this subsection, the petition shall be de11 termined solely upon the administrative record upon

12 which the removal order is based and the Attorney

13 General’s findings of fact, if supported by reason14 able, substantial, and probative evidence on the

15 record considered as a whole, shall be conclusive;

16 ‘‘(5) whenever any petitioner, who seeks review

17 of an order under this section, claims to be a na18 tional of the United States and makes a showing

19 that his claim is not frivolous, the court shall (A)

20 pass upon the issues presented when it appears from

21 the pleadings and affidavits filed by the parties that

22 no genuine issue of material fact is presented; or (B)

23 where a genuine issue of material fact as to the peti24 tioner’s nationality is presented, transfer the pro25 ceedings to a United States district court for the
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1 district where the petitioner has his residence for

2 hearing de novo of the nationality claim and deter3 mination as if such proceedings were originally initi4 ated in the district court under the provisions of sec5 tion 2201 of title 28, United States Code. Any such

6 petitioner shall not be entitled to have such issue de7 termined under section 360(a) of this Act or other8 wise;

9 ‘‘(6) whenever a petitioner seeks review of an

10 order under this section, any review sought with re11 spect to a motion to reopen or reconsider such an

12 order shall be consolidated with the review of the

13 order;

14 ‘‘(7) if the validity of a removal order has not

15 been judicially determined, its validity may be chal16 lenged in a criminal proceeding against the alien for

17 violation of subsection (a) or (b) of section 243 of

18 this Act only by separate motion for judicial review

19 before trial. Such motion shall be determined by the

20 court without a jury and before the trial of the gen21 eral issue. Whenever a claim to United States na22 tionality is made in such motion, and in the opinion

23 of the court, a genuine issue of material fact as to

24 the alien’s nationality is presented, the court shall

25 accord him a hearing de novo on the nationality
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1 claim and determine that issue as if proceedings had

2 been initiated under the provisions of section 2201

3 of title 28, United States Code. Any such alien shall

4 not be entitled to have such issue determined under

5 section 360(a) of this Act or otherwise. If no such

6 hearing de novo as to nationality is conducted, the

7 determination shall be made solely upon the admin8 istrative record upon which the removal order is

9 based and the Attorney General’s findings of fact, if

10 supported by reasonable, substantial, and probative

11 evidence on the record considered as a whole, shall

12 be conclusive. If the removal order is held invalid,

13 the court shall dismiss the indictment and the

14 United States shall have the right to appeal to the

15 court of appeals within 30 days. The procedure on

16 such appeals shall be as provided in the Federal

17 rules of criminal procedure. No petition for review

18 under this section may be filed by any alien during

19 the pendency of a criminal proceeding against such

20 alien for violation of subsection (a) or (b) of section

21 243 of this Act;

22 ‘‘(8) nothing in this section shall be construed

23 to require the Attorney General to defer removal of

24 an alien after the issuance of a removal order be25 cause of the right of judicial review of the order
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1 granted by this section, or to relieve any alien from

2 compliance with subsections (a) and (b) of section

3 243 of this Act. Nothing contained in this section

4 shall be construed to preclude the Attorney General

5 from detaining or continuing to detain an alien or

6 from taking the alien into custody pursuant to sec7 tion 241 of this Act at any time after the issuance

8 of a removal order;

9 ‘‘(9) it shall not be necessary to print the

10 record or any part thereof, or the briefs, and the

11 court shall review the proceedings on a typewritten

12 record and on typewritten briefs; and

13 ‘‘(10) any alien held in custody pursuant to an

14 order of removal may obtain judicial review thereof

15 by habeas corpus proceedings.

16 ‘‘(b) Notwithstanding the provisions of any other law,

17 any alien against whom a final order of removal has been

18 made heretofore or hereafter under the provisions of sec19 tion 235 of this Act or comparable provisions of any prior

20 Act may obtain judicial review of such order by habeas

21 corpus proceedings and not otherwise.

22 ‘‘(c) An order of removal shall not be reviewed by any

23 court if the alien has not exhausted the administrative

24 remedies available to the alien as of right under the immi25 gration laws and regulations or if the alien has departed
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1 from the United States after the issuance of the order.

2 Every petition for review or for habeas corpus shall state

3 whether the validity of the order has been upheld in any

4 prior judicial proceeding, and, if so, the nature and date

5 thereof, and the court in which such proceeding took place.

6 No petition for review or for habeas corpus shall be enter7 tained if the validity of the order has been previously de8 termined in any civil or criminal proceeding, unless the

9 petition presents grounds which the court finds could not

10 have been presented in such prior proceeding, or the court

11 finds that the remedy provided by such prior proceeding

12 was inadequate or ineffective to test the validity of the

13 order.

14 ‘‘(d)(1) A petition for review or for habeas corpus on

15 behalf of an alien against whom a final order of removal

16 has been issued pursuant to section 238(b) may challenge

17 only—

18 ‘‘(A) whether the alien is in fact the alien de19 scribed in the order;

20 ‘‘(B) whether the alien is in fact an alien de21 scribed in section 238(b)(2);

22 ‘‘(C) whether the alien has been convicted of an

23 aggravated felony and such conviction has become

24 final; and
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1 ‘‘(D) whether the alien was afforded the proce2 dures required by section 238(b)(4).

3 ‘‘(2) No court shall have jurisdiction to review any

4 issue other than an issue described in paragraph (1).’’.

5 (b) EFFECTIVE DATE.—The amendment made by

6 subsection (a) shall take effect on the date of the enact7 ment of this Act and shall apply to determinations pending

8 on or after such date with respect to which—

9 (1) a final administrative decision has been not

10 been rendered as of such date; or

11 (2) such a decision has been rendered but the

12 period for seeking judicial review of the decision has

13 not expired.

14 SEC. 8. POST-PROCEEDING RELIEF FOR AFFECTED ALIENS.

15 (a) IN GENERAL.—Notwithstanding section

16 240(c)(6) of the Immigration and Nationality Act (8

17 U.S.C. 1229a(c)(6)) or any other limitation imposed by

18 law on motions to reopen removal proceedings, the Attor19 ney General shall establish a process (whether through

20 permitting the reopening of a removal proceeding or other21 wise) under which an alien—

22 (1) who is (or was) in removal proceedings be23 fore the date of the enactment of this Act (whether

24 or not the alien has been removed as of such date);

25 and
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1 (2) whose eligibility for cancellation of removal

2 has been established by this Act;

3 may apply (or reapply) for cancellation of removal under

4 section 240A(a) of the Immigration and Nationality Act

5 (8 U.S.C. 1229b(a)) as a beneficiary of the relief provided

6 under this Act.

7 (b) PAROLE.—The Attorney General should exercise

8 the parole authority under section 212(d)(5)(A) of the Im9 migration and Nationality Act (8 U.S.C. 1182(d)(5)(A))

10 for the purpose of permitting aliens removed from the

11 United States to participate in the process established

12 under subsection (a).

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