II

103D CONGRESS

1ST SESSION S. 1333

To improve the admissions process at airports and other ports of entry,

to strengthen criminal sanctions for alien smuggling and related criminal

activities, and to enhance the investigatory authority of the Immigration

and Naturalization Service.

IN THE SENATE OF THE UNITED STATES

JULY 30 (legislative day, JUNE 30), 1993

Mr. KENNEDY (for himself, Mr. SIMON, Mr. DECONCINI, Mrs. FEINSTEIN,

Mr. D’AMATO, Mr. BYRD, Mr. GRAHAM, Mr. BREAUX, and Mrs. BOXER)

introduced the following bill; which was read twice and referred to the

Committee on the Judiciary

A BILL

To improve the admissions process at airports and other

ports of entry, to strengthen criminal sanctions for alien

smuggling and related criminal activities, and to enhance

the investigatory authority of the Immigration and Naturalization Service.

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.

4 This Act may be cited as the ‘‘Expedited Exclusion

5 and Alien Smuggling Enhanced Penalties Act of 1993’’.
2

S 1333 IS

1 SEC. 2. RESTRICTIONS ON ADMISSIONS FRAUD.

2 (a) EXCLUSION FOR FRAUDULENT DOCUMENTS OR

3 FAILURE TO PRESENT DOCUMENTS.—Section

4 212(a)(6)(C) of the Immigration and Nationality Act (8

5 U.S.C. 1182(a)(6)(C)) is amended—

6 (1) by striking out ‘‘(C) MISREPRESENTATION’’

7 and inserting in lieu thereof the following:

8 ‘‘(C) FRAUD, MISREPRESENTATION, AND FAILURE

9 TO PRESENT DOCUMENTS’’; and

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

11 clause:

12 ‘‘(iii) FRAUD, MISREPRESENTATION, AND FAIL13 URE TO PRESENT DOCUMENTS.—

14 ‘‘(I) Any alien who, in seeking entry to the

15 United States or boarding a common carrier for

16 the purpose of coming to the United States pre17 sents any document which, in the determination

18 of the immigration officer, is forged, counter19 feit, altered, falsely made, stolen, or inapplica20 ble to the person presenting the document, or

21 otherwise contains a misrepresentation of a ma22 terial fact, is excludable.

23 ‘‘(II) Any alien who is required to present

24 a document relating to the alien’s eligibility to

25 enter the United States prior to boarding a

26 common carrier for the purpose of coming to
3

S 1333 IS

1 the United States and who fails to present such

2 document to an immigration officer upon arriv3 al at a port of entry into the United States is

4 excludable.’’.

5 (b) PROVISION FOR ASYLUM AND OTHER DISCRE6 TIONARY RELIEF.—

7 (1) Section 208 of the Immigration and Nation8 ality Act (8 U.S.C. 1158) is amended by adding at

9 the end the following new subsection:

10 ‘‘(e)(1) Notwithstanding subsection (a), any alien

11 who, in seeking entry to the United States or boarding

12 a common carrier for the purpose of coming to the United

13 States, presents any document which, in the determination

14 of the immigration officer, is fraudulent, forged, stolen,

15 or inapplicable to the person presenting the document, or

16 otherwise contains a misrepresentation of a material fact,

17 may not apply for or be granted asylum, unless presen18 tation of the document was pursuant to direct departure

19 from a country in which the alien has a credible fear of

20 persecution or of return to persecution.

21 ‘‘(2) Notwithstanding subsection (a), an alien who

22 boards a common carrier for the purpose of coming to the

23 United States through the presentation of any document

24 which relates or purports to relate to the alien’s eligibility

25 to enter the United States, and who fails to present such
4

S 1333 IS

1 document to an immigration officer upon arrival at a port

2 of entry into the United States, may not apply for or be

3 granted asylum, unless presentation of such document was

4 pursuant to direct departure from a country in which the

5 alien has a credible fear of persecution or of return to per6 secution.

7 ‘‘(3) Notwithstanding subsection (a), an alien de8 scribed in section 235(d)(3) may not apply for or be grant9 ed asylum, unless the person departed directly from a

10 country in which the alien has a credible fear of persecu11 tion or of return to persecution.

12 ‘‘(4) Notwithstanding paragraphs (1), (2), and (3),

13 the Attorney General may, in the Attorney General’s sole

14 discretion, permit an alien described in paragraphs (1),

15 (2), or (3) to apply for asylum.

16 ‘‘(5)(A) When an immigration officer has determined

17 that an alien has sought entry under either of the cir18 cumstances described in paragraphs (1) or (2) or is an

19 alien described in section 235(d)(3) and the alien has indi20 cated a desire to apply for asylum, the immigration officer

21 shall refer the matter to an asylum officer who shall inter22 view the alien to determine whether presentation of the

23 document was pursuant to direct departure from a coun24 try in which the alien has a credible fear of persecution

25 or of return to persecution, or in the case of an alien de-
5

S 1333 IS

1 scribed in section 235(d)(3), whether the alien had directly

2 departed from such a country.

3 ‘‘(B) If the officer determines that the alien does not

4 have a credible fear of persecution or of return to persecu5 tion in the country in which the alien was last present

6 prior to attempting entry into the United States or arriv7 ing in the United States or a port of entry under the cir8 cumstances described in section 235(d)(3), the alien may

9 be specially excluded and deported in accordance with sec10 tion 235(e).

11 ‘‘(C) The Attorney General shall provide by regula12 tion for the prompt review of a determination under sub13 paragraph (B) that an alien does not have a credible fear

14 of persecution or of return to persecution in the country

15 in which the alien was last present. Such review shall be

16 by an officer who shall possess qualifications at least

17 equivalent to those of an asylum officer, who shall be em18 ployed by an agency or division independent of the Service,

19 and who shall have discretion to review any aspect of the

20 initial determination. The Attorney General shall provide

21 for such special training for reviewing officers as the At22 torney General may deem necessary.

23 ‘‘(D) The Attorney General shall provide information

24 concerning the credible fear determination process de25 scribed in this paragraph to persons who may be eligible
6

S 1333 IS

1 for that process under the provisions of this subsection.

2 An alien who is eligible for a credible fear determination

3 pursuant to subparagraph (A) may consult with a person

4 or persons of his or her choosing prior to the credible fear

5 determination process or any review thereof, according to

6 regulations prescribed by the Attorney General. Such con7 sultation shall be at no expense to the Government and

8 shall not delay the process.

9 ‘‘(6) As used in this section, the term ‘credible fear

10 of persecution or of return to persecution’ means that

11 there is a substantial likelihood—

12 ‘‘(A) that the statements made by the alien in

13 support of his or her claim are true; and

14 ‘‘(B) in light of such statements and country

15 conditions,

16 ‘‘(i) that the alien could establish eligibility

17 as a refugee within the meaning of section

18 101(a)(42)(A); or

19 ‘‘(ii) that the alien could be returned, with20 out access to a full and fair procedure for refu21 gee status determination, to a country with re22 spect to which there is a substantial likelihood

23 that he or she could establish eligibility as a

24 refugee within the meaning of section

25 101(a)(42)(A).
7

S 1333 IS

1 ‘‘(7) As used in this subsection, the term ‘asylum offi2 cer’ means a person who—

3 ‘‘(A) has had extensive professional training in

4 country conditions, asylum law, and interview tech5 niques;

6 ‘‘(B) has been employed for at least one year in

7 a position the primary responsibility of which is the

8 adjudication of asylum claims or who has substan9 tially equivalent experience; and

10 ‘‘(C) is supervised by an officer who meets con11 ditions (A) and (B) above.’’.

12 (2) Section 235 of the Immigration and Nation13 ality Act (8 U.S.C. 1225) is amended by adding at

14 the end the following new subsection:

15 ‘‘(d)(1) Subject to paragraph (2), any alien who has

16 not been admitted to the United States, and who is exclud17 able under section 212(a)(6)(C)(iii), or who is an alien de18 scribed in paragraph (3), is ineligible for withholding of

19 deportation pursuant to section 243(h), and may not apply

20 therefor or for any other relief under this Act, except that

21 an alien found to have a credible fear of persecution or

22 of return to persecution in accordance with section 208(e)

23 shall be taken before a special inquiry officer for exclusion

24 proceedings in accordance with section 236 and may apply
8

S 1333 IS

1 for asylum, withholding of deportation, or both in the

2 course of such proceedings.

3 ‘‘(2) An alien described in paragraph (1) who has

4 been found ineligible to apply for asylum under section

5 208(e) may be returned under the provisions of this sec6 tion only to a country in which he or she has no credible

7 fear of persecution or of return to persecution. If there

8 is no country to which the alien can be returned in accord9 ance with the provisions of this paragraph, the alien shall

10 be taken before a special inquiry officer for exclusion pro11 ceedings in accordance with section 236 and may apply

12 for asylum, withholding of deportation, or both in the

13 course of such proceedings.

14 ‘‘(3) Any alien who is excludable under section

15 212(a), and who has been brought or escorted under the

16 authority of the United States: (a) into the United States,

17 having been on board a vessel encountered seaward of the

18 territorial sea by officers of the United States, or (b) to

19 a port of entry, having been on board a vessel encountered

20 within the territorial sea or internal waters of the United

21 States, shall either be detained on board the vessel on

22 which such person arrived or in such facilities as are des23 ignated by the Attorney General or paroled in the discre24 tion of the Attorney General pursuant to section 212(d)(5)

25 pending accomplishment of the purpose for which the per-
9

S 1333 IS

1 son was brought or escorted into the United States or to

2 the port of entry: Provided, however, That no alien shall

3 be detained on board a public vessel of the United States

4 without the concurrence of the Secretary of the Depart5 ment under whose authority the vessel is operating.’’.

6 (3) Section 237(a) of the Immigration and Na7 tionality Act (8 U.S.C. 1227(a)) is amended—

8 (A) in the second sentence of paragraph

9 (1) by striking out ‘‘Deportation’’ and inserting

10 in lieu thereof ‘‘Subject to section 235(d)(2),

11 deportation’’; and

12 (B) in the first sentence of paragraph (2)

13 by striking out ‘‘If’’ and inserting in lieu there14 of ‘‘Subject to section 235(d)(2), if’’.

15 SEC. 3. SPECIAL PORT OF ENTRY EXCLUSION FOR ADMIS16 SIONS FRAUD.

17 Section 235 of the Immigration and Nationality Act

18 (8 U.S.C. 1225) is amended by adding after subsection

19 (d) the following new subsection:

20 ‘‘(e)(1) Subject to paragraph (d)(2), any alien (in21 cluding an alien crewman) who—

22 ‘‘(A) may appear to the examining immigration

23 officer or to the special inquiry officer during the ex24 amination before either of such officers to be exclud25 able under section 212(a)(6)(C)(iii) of the Immigra-
10

S 1333 IS

1 tion and Nationality Act may be ordered specially

2 excluded and deported by the Attorney General, ei3 ther by a special inquiry officer or otherwise.

4 ‘‘(B) was brought to the United States pursu5 ant to subsection (d)(3) and who may appear to an

6 examining immigration officer to be excludable may

7 be ordered specially excluded and deported by the

8 Attorney General without any further inquiry, either

9 by a special inquiry officer or otherwise.

10 ‘‘(2) Such special exclusion order is not subject to

11 administrative appeal, except that the Attorney General

12 shall provide by regulation for prompt review of such an

13 order against an applicant who claims to have been law14 fully admitted for permanent residence. A special exclu15 sion order entered in accordance with the provisions of

16 this subsection shall have the same effect as if the alien

17 had been ordered excluded and deported pursuant to sec18 tion 236, except that judicial review of such an order shall

19 be available only under section 106.

20 ‘‘(3) Nothing in this subsection shall be regarded as

21 requiring an inquiry before a special inquiry officer in the

22 case of an alien crewman.’’.

23 SEC. 4. JUDICIAL REVIEW.

24 (a) Section 106 of the Immigration and Nationality

25 Act (8 U.S.C. 1105a) is amended by changing the heading
11

S 1333 IS

1 to read ‘‘JUDICIAL REVIEW OF ORDERS OF DEPORTATION

2 AND EXCLUSION, AND SPECIAL EXCLUSION’’, and by add3 ing at the end the following new subsection:

4 ‘‘(d)(1) Notwithstanding any other provision of law,

5 and except as provided in this subsection, no court shall

6 have jurisdiction to review any individual determination,

7 or to entertain any other cause or claim, arising from or

8 relating to the implementation or operation of the special

9 exclusion provisions contained in sections 208(e),

10 212(a)(6)(C)(iii), 235(d), and 235(e). Regardless of the

11 nature of the action or claim, or the party or parties bring12 ing the action, no court shall have jurisdiction or authority

13 to enter declaratory, injunctive, or other equitable relief

14 not specifically authorized in this subsection, nor to certify

15 a class under Rule 23 of the Federal Rules of Civil Proce16 dure.

17 ‘‘(2) Judicial review of any cause, claim, or individual

18 determination covered under paragraph (d)(1) shall only

19 be available in habeas corpus proceedings, and shall be

20 limited to determinations of: (i) whether the petitioner is

21 an alien, if the petitioner makes a showing that his or her

22 claim of United States nationality is not frivolous; (ii)

23 whether the petitioner was ordered specially excluded; and

24 (iii) whether the petitioner can prove by a preponderance

25 of the evidence that he or she is an alien lawfully admitted
12

S 1333 IS

1 for permanent residence and is entitled to such further

2 inquiry as is prescribed by the Attorney General pursuant

3 to section 235(e)(2).

4 ‘‘(3) In any case where the court determines that an

5 alien was not ordered specially excluded, or was not prop6 erly subject to special exclusion under the regulations

7 adopted by the Attorney General, the court may order no

8 relief beyond requiring that the alien receive a hearing in

9 accordance with section 236, or a determination in accord10 ance with section 235(c) or 273(d). Any alien excludable

11 under section 212(a)(6)(C)(iii) who receives a hearing

12 under section 236, whether by order of court or otherwise,

13 may thereafter obtain judicial review of any resulting final

14 order of exclusion pursuant to subsection (b).

15 ‘‘(4) In determining whether an alien has been or16 dered specially excluded, the court’s inquiry shall be lim17 ited to whether such an order was in fact issued and

18 whether it relates to the petitioner. There shall be no re19 view of whether the alien is actually excludable under sec20 tion 212(a)(6)(C)(iii) or entitled to any relief from exclu21 sion.’’.

22 (b) Section 235 of the Immigration and Nationality

23 Act (8 U.S.C. 1225) is amended by adding after sub24 section (e) the following new subsection:
13

S 1333 IS

1 ‘‘(f) In any action brought for the assessment of pen2 alties for improper entry or re-entry of an alien under sec3 tions 275 and 276 of the Immigration and Nationality

4 Act, no court shall have jurisdiction to hear claims collat5 erally attacking the validity of orders of exclusion, special

6 exclusion, or deportation entered under sections 235, 236,

7 and 242 of the Immigration and Nationality Act.’’.

8 SEC. 5. IMMIGRATION INSPECTION FEE INCREASE.

9 (a) Section 286(d) of the Immigration and National10 ity Act (8 U.S.C. 1356) is amended—

11 (1) by striking out ‘‘$5’’ and inserting in lieu

12 thereof ‘‘$6’’; and

13 (2) by adding at the end of the subsection

14 ‘‘Provided, That this subsection shall not apply to

15 the inspection at designated ports of entry of pas16 sengers arriving by international ferries or vessels on

17 the Great Lakes and connecting waterways, when

18 operating on regular schedules.’’.

19 (b) Section 286(e) of the Immigration and National20 ity Act (8 U.S.C. 1356) is amended by striking out para21 graph (1) and ‘‘(2)’’.

22 SEC. 6. ENHANCED PENALTIES FOR CERTAIN ALIEN SMUG23 GLING.

24 (a) Section 274(a)(1) of the Immigration and Nation25 ality Act (8 U.S.C. 1324(a)(1)), is amended by striking
14

S 1333 IS

1 out ‘‘shall be fined in accordance with title 18, or impris2 oned not more than five years, or both, for each alien in

3 respect to whom any violation of this paragraph occurs’’

4 and inserting in lieu thereof ‘‘shall, for each alien in re5 spect to whom any violation of this paragraph occurs, be

6 fined in accordance with title 18 or (i) in the case of a

7 violation of subparagraph (A), imprisoned for not more

8 than ten years, or both, and (ii) in the case of a violation

9 of subparagraphs (B), (C), or (D), imprisoned for not

10 more than five years, or both: Provided, That if during

11 and in relation to the offense the person causes serious

12 bodily injury (as defined in section 1365 of title 18) to,

13 or places in jeopardy the life of, any alien, such person

14 shall be fined in accordance with title 18, or imprisoned

15 not more than twenty years, or both, and if the death of

16 any alien results, shall be imprisoned for any term of years

17 up to life.’’.

18 (b) Section 274(a)(2) of the Immigration and Nation19 ality Act (8 U.S.C. 1324(a)(2)), is amended by striking

20 out ‘‘or imprisoned not more than five years, or both’’ and

21 inserting in lieu thereof ‘‘or, in the case of a violation of

22 subparagraph (B)(ii), imprisoned not more than ten years,

23 or both; and, in the case of a violation of subparagraph

24 (B)(i) or (B)(iii), imprisoned not more than five years, or

25 both.’’.
15

S 1333 IS

1 (c) Section 1324 of title 8 of the United States Code

2 is amended by adding at the end the following new sub3 section:

4 ‘‘(d) CONSPIRACY.—Whoever conspires to commit

5 any offense defined in this section shall be subject to the

6 same penalties as those prescribed for the offense the com7 mission of which was the object of the conspiracy.’’.

8 SEC. 7. SENTENCING GUIDELINES.

9 The United States Sentencing Commission shall

10 promptly promulgate, pursuant to 28 U.S.C. 994, amend11 ments to the sentencing guidelines to make appropriate

12 increases in the base offense level for offenses under sec13 tion 274 of the Immigration and Nationality Act to reflect

14 the increases in maximum penalties for such offenses in

15 section 6 of this Act.

16 SEC. 8. EXPANSION OF FORFEITURE PROVISIONS.

17 Section 274(b) of the Immigration and Nationality

18 Act of 1952, as amended (8 U.S.C. 1324(b)) is amend19 ed—

20 (a) by amending paragraph (1) to read:

21 ‘‘(b) SEIZURE AND FORFEITURE.—(1) The following

22 property shall be subject to seizure and forfeiture: (i) any

23 conveyance, including any vessel, vehicle, or aircraft,

24 which has been or is being used in the commission of a

25 violation of subsection (a); (ii) any property, real or per-
16

S 1333 IS

1 sonal, (A) which constitutes, or is derived from or trace2 able to the proceeds obtained directly or indirectly from

3 the commission of a violation of subsection (a), or (B)

4 which is used to facilitate, or is intended to be so used

5 in the commission of, a violation of subparagraph

6 (a)(1)(A), except that—

7 ‘‘(A) no property used by any person as a com8 mon carrier in the transaction of business as a com9 mon carrier shall be forfeited under this section, un10 less the owner or other person with lawful custody

11 of the property was a consenting party to or privy

12 to the violation of subsection (a) or of sections

13 274A(a)(1) or 274A(a)(2);

14 ‘‘(B) no property shall be forfeited under the

15 provisions of this section by reason of any act or

16 omission established by the owner to have been com17 mitted or omitted by a person other than the owner

18 while the property was unlawfully in the possession

19 of a person other than the owner in violation of the

20 criminal laws of the United States, or of any State;

21 and

22 ‘‘(C) no property shall be forfeited under the

23 provisions of this section to the extent of an interest

24 of the owner, by reason of any act or omission estab25 lished by the owner to have been committed or omit-
17

S 1333 IS

1 ted without the knowledge, consent, or willful blind2 ness of the owner unless the act or omission was

3 committed or omitted by an employee or agent of

4 the owner or other person with lawful custody of the

5 property, with the intent of furthering the business

6 interests of, or to confer any other benefit upon, the

7 owner or other person with lawful custody of the

8 property.’’;

9 (b) in paragraph (2)—

10 (1) by striking out ‘‘conveyance’’ both places it

11 appears and inserting in lieu thereof ‘‘property’’;

12 and

13 (2) by striking out ‘‘is being used in’’ and in14 serting in lieu thereof ‘‘is being used in, is facilitat15 ing, has facilitated, is facilitating or was intended to

16 facilitate’’; and

17 (c) in paragraphs (4) and (5) by striking out ‘‘a

18 conveyance’’ and ‘‘conveyance’’ each place the

19 phrase or word appears and inserting in lieu thereof

20 ‘‘property’’.

21 SEC. 9. WIRETAP AUTHORITY FOR ALIEN SMUGGLING IN22 VESTIGATIONS.

23 Section 2516(1) of title 18, United States Code, is

24 amended—
18

S 1333 IS

1 (a) in paragraph (c) by inserting after ‘‘weap2 ons),’’ the following: ‘‘or a felony violation of section

3 1028 (relating to production of false identification

4 documentation), section 1542 (relating to false

5 statements in passport applications), section 1546

6 (relating to fraud and misuse of visas, permits, and

7 other documents),’’;

8 (b) by striking out ‘‘or’’ after paragraph (l) and

9 redesignating paragraphs (m), (n), and (o) as para10 graphs (n), (o), and (p), respectively; and

11 (c) by inserting after paragraph (l) the follow12 ing new paragraph:

13 ‘‘(m) a violation of section 274 of the Immigration

14 and Nationality Act (8 U.S.C. 1324) (relating to alien

15 smuggling), of section 277 of the Immigration and Nation16 ality Act (8 U.S.C. 1327) (relating to the smuggling of

17 aliens convicted of aggravated felonies or of aliens subject

18 to exclusion on grounds of national security), or of section

19 278 of the Immigration and Nationality Act (8 U.S.C.

20 1328) (relating to the smuggling of aliens for the purpose

21 of prostitution or other immoral purpose);’’.

22 SEC. 10. RACKETEERING INFLUENCED AND CORRUPT OR23 GANIZATIONS ENFORCEMENT AUTHORITY.

24 Section 1961(1) of title 18, United States Code, is

25 amended by striking out ‘‘or’’ before ‘‘(E) any act’’ and
19

S 1333 IS

1 adding after ‘‘Currency and Foreign Transactions Report2 ing Act’’ the following: ‘‘, or (F) any act which is indict3 able under title 8, United States Code, section 1324(a)(1)

4 (dealing with prohibitions on bringing in and harboring

5 certain aliens)’’.

6 SEC. 11. INTERNATIONAL TERRORISM AWARDS.

7 Section 524(c)(1)(B), of title 28, United States Code,

8 is amended by inserting ‘‘, or relating to international ter9 rorism as authorized by sections 3071 and 3072 of title

10 18’’ at the end thereof.

11 SEC. 12. EFFECTIVE DATE.

12 These amendments shall be effective upon enactment

13 or October 1, 1993, whichever occurs later, and shall apply

14 to aliens who arrive in or seek admission to the United

15 States on or after such date. Notwithstanding any other

16 provision of law, the Attorney General may issue interim

17 final regulations to implement the provisions of these

18 amendments at any time on or after their effective date,

19 which regulations may become effective upon publication

20 without prior notice or opportunity for public comment.

Æ

S 1333 IS——2