I

103D CONGRESS

1ST SESSION H. R. 3223

To amend the Immigration and Nationality Act to establish fair and expedited

procedures for adjudicating political asylum claims and to prevent fraud

and abuse in the asylum process.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 6, 1993

Mr. BECERRA (for himself and Mr. NADLER) introduced the following bill;

which was referred to the Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act to establish

fair and expedited procedures for adjudicating political

asylum claims and to prevent fraud and abuse in the

asylum process.

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; REFERENCES IN ACT; TABLE OF

4 CONTENTS.

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

6 ‘‘Asylum Abuse Prevention and System Improvements Act

7 of 1993’’.
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1 (b) REFERENCES TO IMMIGRATION AND NATIONAL2 ITY ACT.—Except as otherwise expressly provided, when3 ever in this Act an amendment or repeal is expressed in

4 terms of an amendment to, or repeal of, a section or other

5 provision, the reference shall be considered to be made to

6 a section or other provision of the Immigration and Na7 tionality Act.

8 (c) TABLE OF CONTENTS.—The table of contents of

9 this Act is as follows:

Sec. 1. Short title; references in Act; table of contents.

Sec. 2. Criminal penalty for assisting in fraudulent asylum applications.

Sec. 3. Procedures for adjudicating political asylum claims.

Sec. 4. Detention and release.

Sec. 5. Increased resources for asylum adjudications.

Sec. 6. Report to congress on reduction in backlog of pending asylum cases.

Sec. 7. Use of immigration emergency fund.

Sec. 8. Definitions.

Sec. 9. Effective date.

10 SEC. 2. CRIMINAL PENALTY FOR ASSISTING IN FRAUDU11 LENT ASYLUM APPLICATIONS.

12 (a) IN GENERAL.—Section 275 (8 U.S.C. 1325) is

13 amended by adding at the end the following new sub14 section:

15 ‘‘(d) Any person who knowingly for the purpose of

16 commercial advantage or private financial gain assists an

17 alien in misrepresenting a material fact in an application

18 for asylum or induces an alien to make a misrepresenta19 tion of a material fact in an asylum application, for each

20 transaction constituting a violation of this subsection, re21 gardless of the number of aliens involved, shall—
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1 ‘‘(1) be fined in accordance with title 18,

2 United States Code, or imprisoned for not more

3 than 5 years, or both; or

4 ‘‘(2) in the case of a second or subsequent of5 fense be fined in accordance with title 18, United

6 States Code, or imprisoned not more than 10 years,

7 or both.’’.

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

9 subsection (a) shall apply to violations occurring on or

10 after the date of the enactment of this Act.

11 SEC. 3. PROCEDURES FOR ADJUDICATING POLITICAL ASY12 LUM CLAIMS.

13 (a) IN GENERAL.—Section 208 (8 U.S.C. 1158) is

14 amended—

15 (1) by amending the heading to read as follows:

16 ‘‘ASYLUM’’;

17 (2) by striking subsection (a) and inserting the

18 following:

19 ‘‘(a) IN GENERAL.—

20 ‘‘(1) APPLICATION FOR ASYLUM.—An alien

21 physically present in the United States or at a land

22 border or port of entry, irrespective of such alien’s

23 status, may apply for asylum in accordance with this

24 section.

25 ‘‘(2) CONDITIONS FOR GRANTING ASYLUM.—

26 Under such regulations as the Attorney General may
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1 prescribe, the Attorney General may, in the discre2 tion of the Attorney General, grant asylum to an

3 alien if the alien applies for asylum and establishes

4 that the alien is a refugee within the meaning of sec5 tion 101(a)(42)(A).’’;

6 (3) by redesignating subsections (b) through (d)

7 as (c) through (e), respectively; and

8 (4) by inserting after subsection (a) the follow9 ing new subsection:

10 ‘‘(b) ASYLUM PROCEDURES.—

11 ‘‘(1) JURISDICTION.—The Attorney General

12 shall provide that the Executive Office of Immigra13 tion Review, established by the Attorney General by

14 regulation, shall have jurisdiction over all applica15 tions for asylum and withholdings of deportation.

16 ‘‘(2) COORDINATION BETWEEN INS AND

17 EOIR.—Not later than 90 days after enactment of

18 this Act, the Attorney General shall establish by reg19 ulation procedures for coordination between the Im20 migration and Naturalization Service and the Execu21 tive Office for Immigration Review on the issuance

22 by the Service of Orders to Show Cause and Exclu23 sion Orders, when necessary, to asylum applicants.

24 Such regulations shall ensure that such orders are

25 issued and served in a manner that facilitates adju-
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1 dication of asylum claims and other forms of relief

2 available to such aliens under the procedures and

3 time frames of this Act.

4 ‘‘(3) CENTRAL ASYLUM OFFICE.—

5 ‘‘(A) ESTABLISHMENT OF OFFICE.—The

6 Attorney General shall provide for the establish7 ment, within the Executive Office of Immigra8 tion Review, of an office, to be known as the

9 ‘Central Asylum Office’, to be headed by a di10 rector appointed by the Attorney General.

11 There shall be assigned to such office such em12 ployees as the Attorney General shall direct.

13 ‘‘(B) ASYLUM OFFICERS.—Among the em14 ployees assigned to such office there shall be a

15 corps of professional asylum officers who shall

16 receive comprehensive training in international

17 human rights and refugee law, as well as other

18 information relevant to asylum determinations.

19 ‘‘(C) DOCUMENTATION CENTER.—Such of20 fice shall maintain a documentation center with

21 regularly updated information on country-spe22 cific worldwide human rights conditions. Such

23 documentation center shall be made available to

24 both personnel of the office and representatives

25 of applicants.
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1 ‘‘(4) ASYLUM IMMIGRATION JUDGES.—The At2 torney General shall designate from among the corps

3 of special inquiry officers within the Executive Office

4 of Immigration Review, a corps of asylum immigra5 tion judges who have received comprehensive train6 ing in international human rights and refugee law.

7 ‘‘(5) ASYLUM ADJUDICATION PROCEDURES.—

8 ‘‘(A) ASYLUM OFFICER INTERVIEW AND

9 DETERMINATION.—

10 ‘‘(i) IN GENERAL.—An applicant for

11 asylum shall be granted a first-instance,

12 nonadversarial interview by an asylum offi13 cer promptly after the filing of the alien’s

14 application. Promptly after such interview,

15 the asylum officer shall—

16 ‘‘(I) grant asylum under clause

17 (ii),

18 ‘‘(II) find that an application is

19 frivolous under clause (iii), or

20 ‘‘(III) refer the case without prej21 udice to the asylum immigration judge

22 for a full hearing on the merits under

23 clause (iv).

24 ‘‘(ii) GRANT OF ASYLUM BY THE ASY25 LUM OFFICER.—The asylum officer may in
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1 the exercise of the officer’s discretion grant

2 asylum to any applicant the asylum officer

3 determines to be a refugee within the

4 meaning of section 101(a)(42)(A).

5 ‘‘(iii) FINDING BY ASYLUM OFFICER

6 THAT AN APPLICATION IS FRIVOLOUS.—

7 ‘‘(I) IN GENERAL.—If the asylum

8 officer determines that the alien’s

9 claim to asylum is frivolous, the asy10 lum officer shall find the alien ineli11 gible for asylum. Subject to the provi12 sions of paragraph (9), such alien who

13 has been served an order to show

14 cause under section 242B or put into

15 exclusion proceedings under section

16 236 shall be taken into custody pend17 ing a hearing before an asylum immi18 gration judge. Aliens who are not in a

19 unlawful status whose claims are

20 ruled frivolous shall be entitled to no

21 further administrative or judicial re22 view of the asylum officer’s deter23 mination that a claim is frivolous.

24 ‘‘(II) REVIEW OF ASYLUM OFFI25 CER DETERMINATION OF FRIVOLOUS
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1 ASYLUM CLAIM.—An alien adversely

2 affected by a determination of an asy3 lum officer under subclause (I) shall

4 be informed of the alien’s right to

5 seek a review of that ruling and may

6 request such a review, to be held at

7 the time of the alien’s exclusion or de8 portation hearing before an asylum

9 immigration judge.

10 ‘‘(iv) REFERRAL OF APPLICATION TO

11 ASYLUM IMMIGRATION JUDGE FOR DETER12 MINATION.—If an asylum officer does not

13 grant asylum to the applicant but does not

14 determine that the alien’s claim to asylum

15 is frivolous, the asylum officer shall refer

16 the claim to an asylum immigration judge

17 for a full hearing on the merits.

18 ‘‘(v) FAILURE OF ASYLUM OFFICER

19 TO CONDUCT INTERVIEW WITHIN 30 DAYS

20 OF FILING AN APPLICATION FOR ASY21 LUM.—An alien who is not interviewed by

22 an asylum officer within 30 days of filing

23 an application for asylum may request that

24 their case be referred directly to an asylum

25 immigration judge for a full hearing on the
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1 merits to determine the applicant’s quali2 fication for asylum.

3 ‘‘(B) ASYLUM IMMIGRATION JUDGE HEAR4 ING AND DECISION ON FRIVOLOUS NATURE OF

5 ASYLUM CLAIM.—

6 ‘‘(i) Promptly after a determination

7 by an asylum officer under subparagraph

8 (A)(iii)(I) that an alien’s application for

9 asylum is frivolous, the alien shall be enti10 tled to a review of that determination to be

11 held during any deportation or exclusion

12 hearing.

13 ‘‘(ii) REVIEW OF FRIVOLOUS DETER14 MINATION.—If an asylum immigration

15 judge finds that an alien’s asylum applica16 tion is frivolous, the judge shall proceed to

17 a determination of the alien’s deportability

18 or excludability, and eligibility for relief

19 thereof. There shall be no further adminis20 trative appeal of the decision of the asylum

21 immigration judge on the question of the

22 frivolous or nonfrivolous nature of the

23 alien’s asylum application.

24 ‘‘(iii) FINDING BY ASYLUM IMMIGRA25 TION JUDGE THAT AN APPLICATION IS
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1 NONFRIVOLOUS.—If an asylum immigra2 tion judge finds that an alien’s application

3 is nonfrivolous, the alien shall be entitled

4 to a hearing before an asylum immigration

5 judge under subparagraph (C).

6 ‘‘(C) HEARING AND DECISION BY ASYLUM

7 IMMIGRATION JUDGE.—

8 ‘‘(i) IN GENERAL.—An asylum immi9 gration judge shall conduct a hearing

10 promptly after the finding that an applica11 tion is not frivolous under subparagraphs

12 (A)(iv) or (B)(iii). Such hearing shall be

13 on the merits of the asylum claim and, in

14 the case of an alien who has been served

15 an order to show cause under section 242B

16 or put into exclusion proceedings under

17 section 236, on the order to show cause or

18 exclusion order. Such hearing shall be con19 ducted within 45 days of the filing of the

20 application for asylum in a manner consist21 ent with paragraphs (1) through (4) of

22 section 242(b).

23 ‘‘(ii) DECISION.—Promptly after the

24 conclusion of a hearing under clause (i), an
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1 asylum immigration judge shall grant or

2 deny an alien’s application for asylum.

3 ‘‘(D) OPPORTUNITY FOR COUNSEL; TRANS4 LATION AND INTERPRETER SERVICES.—At all

5 stages of the asylum adjudication process, the

6 alien shall have—

7 ‘‘(i) the opportunity to be represented

8 by counsel of the alien’s choosing, at no ex9 pense to the Government; and

10 ‘‘(ii) translation and interpreter serv11 ices.

12 ‘‘(E) BAR ON DAMAGES FOR FAILURE TO

13 MEET DEADLINES.—Nothing in this paragraph

14 relating to scheduling and deadlines may be

15 construed as creating any right to monetary

16 damages.

17 ‘‘(6) MANDATORY DENIALS.—An application for

18 asylum shall be denied if—

19 ‘‘(A) the alien, having been convicted by a

20 final judgment of a particularly serious crime in

21 the United States, constitutes a danger to the

22 community;

23 ‘‘(B) the applicant has been firmly reset24 tled into another country;
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1 ‘‘(C) there are reasonable grounds for re2 garding the alien as a danger to the security of

3 the United States; or

4 ‘‘(D) the applicant has ordered, incited, as5 sisted or otherwise participated in the persecu6 tion of any person on account of race, religion,

7 nationality, membership in a particular social

8 group, or political opinion.’’.

9 (b) CLERICAL AMENDMENT.—The item in the table

10 of contents relating to section 208 is amended to read as

11 follows:

‘‘Sec. 208. Asylum.’’.

12 SEC. 4. DETENTION AND RELEASE.

13 Section 208(b) (8 U.S.C. 1158), as amended by sec14 tion 3(a) of this Act, is further amended by adding at the

15 end the following new paragraph:

16 ‘‘(9) DETENTION AND RELEASE OF ASYLUM AP17 PLICANTS.—

18 ‘‘(A) TRANSFER OF CLOSED MILITARY

19 BASES FOR DETENTION OF ASYLUM APPLI20 CANTS.—

21 ‘‘(i) PRIORITY AVAILABILITY TO DE22 PARTMENT OF JUSTICE.—Notwithstanding

23 any other provision of law, military instal24 lations to be closed under a base closure

25 law shall be made available, as determined
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1 by the Attorney General, to the Depart2 ment of Justice, Immigration and Natu3 ralization Service, for use as facilities for

4 the detention of applicants for asylum.

5 ‘‘(ii) Clause (i) shall apply only to fa6 cilities within a 50-mile radius of a major

7 metropolitan area.

8 ‘‘(iii) DEFINITION.—For purposes of

9 this subparagraph, the term ‘base closure

10 law’ means each of the following:

11 ‘‘(I) the Defense Base Closure

12 and Realignment Act of 1990 (part A

13 of title XXIX of Public Law 101–510;

14 10 U.S.C. 2687 note);

15 ‘‘(II) title II of the Defense Au16 thorization Amendments and Base

17 Closure and Realignment Act (Public

18 Law 100–526; 10 U.S.C. 2687 note);

19 ‘‘(III) section 2687 of title 10,

20 United States Code; or

21 ‘‘(IV) any other similar law en22 acted after the date of the enactment

23 of this paragraph.

24 ‘‘(B) CONDITIONS FOR RELEASE.—Except

25 as provided in subparagraph (D), an asylum
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1 applicant who is taken into custody pursuant to

2 section 235 or 242(a)(1) may be released pend3 ing a final decision if—

4 ‘‘(i)(I) the alien’s application was not

5 determined to be frivolous under sub6 section (b)(5); and

7 ‘‘(II) the Attorney General determines

8 that the alien poses no danger to the com9 munity, is not likely to abscond, and has

10 either posted a reasonable bond or has ties

11 to the community in the form of a family

12 member, sponsoring agency, or other re13 sponsible adult; or

14 ‘‘(ii) the Attorney General determines

15 that the alien’s detention is not in the pub16 lic interest.

17 ‘‘(C) DETENTION STANDARDS FOR MINORS

18 WHO APPLY FOR ASYLUM.—The Attorney Gen19 eral shall make provision for the prompt release

20 to licensed child welfare agencies, foster homes,

21 group homes or to relatives or other responsible

22 adults living in the United States, any applicant

23 who is aged 18 years or younger and who is not

24 in the company of a parent or adult guardian,

25 except that no juvenile shall be released from
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1 detention if there are reasonable grounds to be2 lieve that the juvenile poses a danger to public

3 safety. Provisions for release of minors shall be

4 in accordance with Federal law and regulation

5 regarding detention and release of juveniles, ap6 plicable child welfare laws and standards, and

7 applicable State and local government licensing

8 standards, regulations and laws.

9 ‘‘(D) OBLIGATIONS.—Prior to an alien’s

10 release from detention, a prescreening officer

11 shall provide the released alien with information

12 on the next stages in the application process;

13 precise dates on the next stages; notice of obli14 gations and the consequences for failing to meet

15 those obligations; and the availability of coun16 sel. Throughout the prescreening procedure, ap17 plicants may be represented by counsel.

18 ‘‘(E) SUPERVISION AND PERIODIC CON19 TACT.—

20 ‘‘(i) An applicant released under sub21 paragraph (B) or (C) shall maintain peri22 odic contact with an entity designated by

23 the Attorney General under clause (iii).

24 Entities designated under this clause may

25 either be employees of the United States
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1 Government or private or voluntary agen2 cies or individuals with experience in such

3 matters.

4 ‘‘(ii) At such time as the conditions in

5 clause (iii) have been met, an applicant’s

6 failure to substantially comply with clause

7 (i) shall constitute a violation of the terms

8 of the alien’s release.

9 ‘‘(iii) Not later than 90 days after en10 actment of this Act, the Attorney General

11 shall establish criteria and procedures for

12 the supervision of and periodic contact

13 with asylum applicants released under sub14 paragraph (A).

15 ‘‘(F) PENALTIES FOR FAILURE TO AP16 PEAR.—The unexcused failure of an applicant

17 to appear for a scheduled interview or hearing

18 shall be presumed an abandonment of the appli19 cation and cause for summary dismissal of the

20 claim to asylum. Failure to appear shall be ex21 cused if the notice of the interview was not

22 mailed to the applicant’s current address and

23 such address had been provided to the Execu24 tive Office of Immigration Review by the appli25 cant prior to the date of mailing in accordance
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1 with section 265 and regulations promulgated

2 thereunder. Such failure to appear may be ex3 cused for other serious reasons at the discretion

4 of the asylum officer or asylum immigration

5 judge.

6 ‘‘(G) SPECIAL DUTIES TOWARD ALIENS IN

7 CUSTODY OF THE SERVICE.—When any alien in

8 the custody of the Service requests asylum or

9 withholding of deportation or expresses fear of

10 persecution or harm upon return to the alien’s

11 country of origin or to agents thereof, the Serv12 ice shall make available the appropriate applica13 tion forms for asylum and withholding of depor14 tation and shall provide—

15 ‘‘(i) up-to-date and accurate lists of

16 persons, legal services and private non17 profit agencies that can assist the alien in

18 preparing his asylum claim;

19 ‘‘(ii) access to private facilities for

20 consultation with legal representatives and/

21 or counsel regarding the preparation of

22 said application;

23 ‘‘(iii) clear and concise presentation of

24 rights and responsibilities applicable under

25 the law;
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1 ‘‘(iv) reasonable access to counsel and

2 representatives; and

3 ‘‘(v) reasonable access to materials

4 necessary in preparing an asylum claim.’’.

5 SEC. 5. INCREASED RESOURCES FOR ASYLUM ADJUDICA6 TIONS.

7 (a) FUNDS FORMERLY USED FOR INS ASYLUM AD8 JUDICATIONS TO BE USED FOR CENTRAL ASYLUM OF9 FICE.—Section 286(n) (8 U.S.C. 1356(n)) is amended by

10 adding at the end the following: ‘‘The Attorney General

11 shall ensure that from the funds deposited in such ac12 count, an amount not less than the amount allocated in

13 fiscal year 1993 to the Department of Justice, Immigra14 tion and Naturalization Service, Office of Refugees Asy15 lum and Parole, for adjudicating asylum claims in fiscal

16 year 1993 be provided each fiscal year to the Central Asy17 lum Office in the Executive Office of Immigration Review,

18 for the purposes of carrying out adjudication procedures

19 in section 208(b).’’.

20 (b) INCREASE IN NUMBER OF ASYLUM OFFICERS

21 AND ASYLUM IMMIGRATION JUDGES.—Beginning in fiscal

22 year 1994 and for each subsequent fiscal year for which

23 the number of pending asylum adjudications at the end

24 of the preceding fiscal year exceeds 50,000, there are au25 thorized to be appropriated for the Department of Justice,
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1 Executive Office of Immigration Review, such sums as

2 may be necessary to provide for—

3 (1) an increase in the number of asylum offi4 cers so that the average level of such personnel for

5 such fiscal year is at least 100 percent higher than

6 such level for fiscal year 1993,

7 (2) an increase in special inquiry officers so

8 that the number of such personnel is at least 100

9 percent higher than such level for fiscal year 1993,

10 and

11 (3) an increase in the number of clerks, trial at12 torneys, support staff, and requisite materials nec13 essary to support the increased personnel under

14 paragraphs (1) and (2).

15 SEC. 6. REPORT TO CONGRESS ON REDUCTION IN BACK16 LOG OF PENDING ASYLUM CASES.

17 Not later than 180 days after the date of the enact18 ment of this Act, the Attorney General shall submit to

19 the Judiciary Committees of the House and Senate a re20 port detailing the nature of the backlog in adjudicating

21 asylum claims. Such report shall include—

22 (1) an assessment of the number of applicants

23 awaiting asylum adjudications and the length of

24 time they have been waiting;
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1 (2) an assessment of the number, nature, and

2 sizes of specific identifiable classes of aliens awaiting

3 adjudication;

4 (3) recommendations on administrative meas5 ures that the Department of Justice can take to

6 eliminate the backlog in asylum adjudications; and

7 (4) recommendations on actions Congress can

8 take to eliminate the backlog, with specific emphasis

9 on eliminating the backlog in instances where there

10 are large classes of pending asylum cases.

11 SEC. 7. USE OF IMMIGRATION EMERGENCY FUND.

12 Section 404(b) (8 U.S.C. 1101 note) is amended—

13 (1) in paragraph (2)(A), by striking ‘‘Funds’’

14 and inserting ‘‘Notwithstanding any other provision

15 of this section, except as provided in paragraph (3),

16 funds’’, and

17 (2) by adding at the end the following new

18 paragraph:

19 ‘‘(3) The Attorney General may use up to

20 $15,000,000 of this fund to manage large and sudden

21 numbers of asylum applicants arriving at or attempting

22 to land or enter the United States, including the territorial

23 waters of the United States and ports of entry. For the

24 purposes of this paragraph, the requirement of paragraph
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1 (1) that an immigration emergency be determined shall

2 not apply.’’.

3 SEC. 8. DEFINITIONS.

4 Section 101(a) (8 U.S.C. 1101(a)) is amended by

5 adding at the end the following new paragraphs:

6 ‘‘(47) The term ‘frivolous’ means, with respect to a

7 claim for asylum, a claim that—

8 ‘‘(A) the grounds of the claim are outside the

9 scope of the definition of a refugee under this sec10 tion;

11 ‘‘(B) the claim is totally lacking in substance;

12 or

13 ‘‘(C) the claim is manifestly lacking in any

14 credibility.

15 ‘‘(48) The term ‘firmly resettled’ means, after an

16 alien’s entry into a country of refuge, the alien’s receipt

17 of an offer of permanent resident status, citizenship, or

18 some other type of permanent resettlement unless the

19 alien establishes that—

20 ‘‘(A) the entry into that country was a nec21 essary consequence of the flight from persecution,

22 that the alien remained in the country only as long

23 as was necessary to arrange onward travel, and that

24 the alien did not establish significant ties in that

25 country, or
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1 ‘‘(B) the conditions of residence in that country

2 were so substantially and consciously restricted by

3 the authorities of that country that the alien was not

4 in fact resettled, taking into account the conditions

5 under which other residents of that country live, the

6 type of housing made available to the alien, whether

7 permanent or temporary, the types and extent of

8 employment available to the alien, whether perma9 nent or temporary, and the extent to which the alien

10 received permission to hold property and to enjoy

11 other rights and privileges ordinarily available to

12 other residents in the country such as travel docu13 mentation (including documentation for a right of

14 entry or reentry), education, public relief, or natu15 ralization.’’.

16 SEC. 9. EFFECTIVE DATE.

17 Except as otherwise provided, the amendments made

18 by this Act shall take effect 90 days after the enactment

19 of this Act.

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