II

Calendar No. 343

105TH CONGRESS

2D SESSION S. 1504

To adjust the immigration status of certain Haitian nationals who were

provided refuge in the United States.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 9, 1997

Mr. GRAHAM (for himself, Mr. MACK, Mr. KENNEDY, Mr. ABRAHAM, Ms.

MOSELEY-BRAUN, Mr. MOYNIHAN, Mr. DURBIN, Mr. KERRY, Mrs. FEINSTEIN, and Mr. D’AMATO) introduced the following bill; which was read

twice and referred to the Committee on the Judiciary

APRIL 23, 1998

Reported by Mr. HATCH, with an amendment in the nature of a substitute

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To adjust the immigration status of certain Haitian nationals

who were provided refuge in the United States.

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 ‘‘Haitian Refugee Immi5 gration Fairness Act of 1997’’.
2

S 1504 RS

1 SEC. 2. ADJUSTMENT OF STATUS OF CERTAIN HAITIAN NA2 TIONALS.

3 (a) ADJUSTMENT OF STATUS.—

4 (1) IN GENERAL.—Notwithstanding section

5 245(c) of the Immigration and Nationality Act, the

6 status of any alien described in subsection (b) shall

7 be adjusted by the Attorney General to that of an

8 alien lawfully admitted for permanent residence, if

9 the alien—

10 (A) applies for such adjustment before

11 April 1, 2000; and

12 (B) is otherwise eligible to receive an im13 migrant visa and is otherwise admissible to the

14 United States for permanent residence, except

15 in determining such admissibility the grounds

16 for inadmissibility specified in paragraphs (4),

17 (5), (6)(A), and (7)(A) of section 212(a) of the

18 Immigration and Nationality Act shall not

19 apply.

20 (2) RELATIONSHIP OF APPLICATION TO CER21 TAIN ORDERS.—An alien present in the United

22 States who has been ordered excluded, deported, re23 moved, or ordered to depart voluntarily from the

24 United States under any provision of the Immigra25 tion and Nationality Act may, notwithstanding such

26 order, apply for adjustment of status under para-
3

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1 graph (1). Such an alien may not be required, as a

2 condition on submitting or granting such applica3 tion, to file a motion to reopen, reconsider, or vacate

4 such order. If the Attorney General grants the appli5 cation, the Attorney General shall cancel the order.

6 If the Attorney General renders a final administra7 tive decision to deny the application, the order shall

8 be effective and enforceable to the same extent as if

9 the application had not been made.

10 (b) ALIENS ELIGIBLE FOR ADJUSTMENT OF STA11 TUS.—The benefits provided by subsection (a) shall apply

12 to any alien who is a national of Haiti—

13 (1) who filed for asylum before December 31,

14 1995, or was paroled into the United States prior to

15 December 31, 1995, after having been identified as

16 having a credible fear of persecution, or paroled for

17 emergent reasons or reasons deemed strictly in the

18 public interest, and

19 (2) has been physically present in the United

20 States for at least 1 year and is physically present

21 in the United States on the date the application for

22 such adjustment is filed, except an alien shall not be

23 considered to have failed to maintain continuous

24 physical presence by reason of an absence, or ab-
4

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1 sences, from the United States for any periods in

2 the aggregate not exceeding 180 days.

3 (c) STAY OF REMOVAL.—

4 (1) IN GENERAL.—The Attorney General shall

5 provide by regulation for an alien subject to a final

6 order of deportation or removal or exclusion to seek

7 a stay of such order based on the filing of an appli8 cation under subsection (a).

9 (2) DURING CERTAIN PROCEEDINGS.—Notwith10 standing any provision of the Immigration and Na11 tionality Act, the Attorney General shall not order

12 any alien to be removed from the United States, if

13 the alien is in exclusion, deportation, or removal pro14 ceedings under any provision of such Act and raises

15 as a defense to such an order the eligibility of the

16 alien to apply for adjustment of status under sub17 section (a), except where the Attorney General has

18 rendered a final administrative determination to

19 deny the application.

20 (3) WORK AUTHORIZATION.—The Attorney

21 General may authorize an alien who has applied for

22 adjustment of status under subsection (a) to engage

23 in employment in the United States during the

24 pendency of such application and may provide the

25 alien with an ‘‘employment authorized’’ endorsement
5

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1 or other appropriate document signifying authoriza2 tion of employment, except that if such application

3 is pending for a period exceeding 180 days, and has

4 not been denied, the Attorney General shall author5 ize such employment.

6 (d) ADJUSTMENT OF STATUS FOR SPOUSES AND

7 CHILDREN.—

8 (1) IN GENERAL.—Notwithstanding section

9 245(c) of the Immigration and Nationality Act, the

10 status of an alien shall be adjusted by the Attorney

11 General to that of an alien lawfully admitted for per12 manent residence, if—

13 (A) the alien is a national of Haiti;

14 (B) the alien is the spouse, child, or un15 married son or daughter, of an alien whose sta16 tus is adjusted to that of an alien lawfully ad17 mitted for permanent residence under sub18 section (a), except that in the case of such an

19 unmarried son or daughter, the son or daughter

20 shall be required to establish that they have

21 been physically present in the United States for

22 at least 1 year and is physically present in the

23 United States on the date the application for

24 such adjustment is filed.
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1 (C) the alien applies for such adjustment

2 and is physically present in the United States

3 on the date the application is filed; and

4 (D) the alien is otherwise eligible to receive

5 an immigration visa and is otherwise admissible

6 to the United States for permanent residence,

7 except in determining such admissibility the

8 grounds for exclusion specified in paragraphs

9 (4), (5), (6)(A), and (7)(A) of section 212(a) of

10 the Immigration and Nationality Act shall not

11 apply.

12 (2) PROOF OF CONTINUOUS PRESENCE.—For

13 purposes of establishing the period of continuous

14 physical presence referred to in paragraph (1)(B),

15 an alien shall not be considered to have failed to

16 maintain continuous physical presence by reason of

17 an absence, or absences, from the United States for

18 any periods in aggregate not exceeding 180 days.

19 (e) AVAILABILITY OF ADMINISTRATIVE REVIEW.—

20 The Attorney General shall provide to applicants for ad21 justment of status under subsection (a) the same right to,

22 and procedures for, administrative review as are provided

23 to—
7

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1 (1) applicants for adjustment of status under

2 section 245 of the Immigration and Nationality Act;

3 or

4 (2) aliens subject to removal proceedings under

5 section 240 of such Act.

6 (f) LIMITATION ON JUDICIAL REVIEW.—A deter7 mination by the Attorney General as to whether the status

8 of any alien should be adjusted under this section is final

9 and shall not be subject to review by any court.

10 (g) NO OFFSET IN NUMBER OF VISAS AVAILABLE.—

11 When an alien is granted the status of having been law12 fully admitted for permanent resident pursuant to this

13 section, the Secretary of State shall not be required to re14 duce the number of immigrant visas authorized to be

15 issued under any provision of the Immigration and Na16 tionality Act.

17 (h) APPLICATION OF IMMIGRATION AND NATIONAL18 ITY ACT PROVISIONS.—Except as otherwise specifically

19 provided in this Act, the definitions contained in the Immi20 gration and Nationality Act shall apply in the administra21 tion of this section. Nothing contained in this Act shall

22 be held to repeal, amend, alter, modify, effect, or restrict

23 the powers, duties, functions, or authority of the Attorney

24 General in the administration and enforcement of such

25 Act or any other law relating to immigration, nationality,
8

S 1504 RS

1 or naturalization. The fact that an alien may be eligible

2 to be granted the status of having been lawfully admitted

3 for permanent residence under this section shall not pre4 clude the alien from seeking such status under any other

5 provision of law for which the alien may be eligible.

6 SECTION 1. SHORT TITLE.

7 This Act may be cited as the ‘‘Haitian Refugee Immi8 gration Fairness Act of 1998’’.

9 SEC. 2. ADJUSTMENT OF STATUS OF CERTAIN HAITIAN NA10 TIONALS.

11 (a) ADJUSTMENT OF STATUS.—

12 (1) IN GENERAL.—The status of any alien de13 scribed in subsection (b) shall be adjusted by the At14 torney General to that of an alien lawfully admitted

15 for permanent residence, if the alien—

16 (A) applies for such adjustment before April

17 1, 2000; and

18 (B) is otherwise admissible to the United

19 States for permanent residence, except that, in

20 determining such admissibility, the grounds for

21 inadmissibility specified in paragraphs (4), (5),

22 (6)(A), (7)(A), and (9)(B) of section 212(a) of

23 the Immigration and Nationality Act shall not

24 apply.
9

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1 (2) RELATIONSHIP OF APPLICATION TO CERTAIN

2 ORDERS.—An alien present in the United States who

3 has been ordered excluded, deported, removed, or or4 dered to depart voluntarily from the United States

5 under any provision of the Immigration and Nation6 ality Act may, notwithstanding such order, apply for

7 adjustment of status under paragraph (1). Such an

8 alien may not be required, as a condition on submit9 ting or granting such application, to file a separate

10 motion to reopen, reconsider, or vacate such order. If

11 the Attorney General grants the application, the At12 torney General shall cancel the order. If the Attorney

13 General makes a final decision to deny the applica14 tion, the order shall be effective and enforceable to the

15 same extent as if the application had not been made.

16 (b) ALIENS ELIGIBLE FOR ADJUSTMENT OF STA17 TUS.—The benefits provided by subsection (a) shall apply

18 to any alien who is a national of Haiti who—

19 (1) was present in the United States on Decem20 ber 31, 1995, who—

21 (A) filed for asylum before December 31,

22 1995,

23 (B) was paroled into the United States

24 prior to December 31, 1995, after having been

25 identified as having a credible fear of persecu-
10

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1 tion, or paroled for emergent reasons or reasons

2 deemed strictly in the public interest, or

3 (C) was a child (as defined in the text above

4 subparagraph (A) of section 101(b)(1) of the Im5 migration and Nationality Act (8 U.S.C.

6 1101(b)(1) at the time of arrival in the United

7 States and on December 31, 1995, and who—

8 (i) arrived in the United States with9 out parents in the United States and has

10 remained without parents in the United

11 States since such arrival,

12 (ii) became orphaned subsequent to ar13 rival in the United States, or

14 (iii) was abandoned by parents or

15 guardians prior to April 1, 1998 and has

16 remained abandoned since such abandon17 ment; and

18 (2) has been physically present in the United

19 States for a continuous period beginning not later

20 than December 31, 1995, and ending not earlier than

21 the date the application for such adjustment is filed,

22 except that an alien shall not be considered to have

23 failed to maintain continuous physical presence by

24 reasons of an absence or absences, from the United
11

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1 States for any period or periods amounting in the ag2 gregate to not more than 180 days.

3 (c) STAY OF REMOVAL.—

4 (1) IN GENERAL.—The Attorney General shall

5 provide by regulation for an alien who is subject to

6 a final order of deportation or removal or exclusion

7 to seek a stay of such order based on the filing of an

8 application under subsection (a).

9 (2) DURING CERTAIN PROCEEDINGS.—Notwith10 standing any provision of the Immigration and Na11 tionality Act, the Attorney General shall not order

12 any alien to be removed from the United States, if the

13 alien is in exclusion, deportation, or removal proceed14 ings under any provision of such Act and has applied

15 for adjustment of status under subsection (a), except

16 where the Attorney General has made a final deter17 mination to deny the application.

18 (3) WORK AUTHORIZATION.—The Attorney Gen19 eral may authorize an alien who has applied for ad20 justment of status under subsection (a) to engage in

21 employment in the United States during the pendency

22 of such application and may provide the alien with

23 an ‘‘employment authorized’’ endorsement or other

24 appropriate document signifying authorization of em25 ployment, except that if such application is pending
12

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1 for a period exceeding 180 days, and has not been de2 nied, the Attorney General shall authorize such em3 ployment.

4 (d) ADJUSTMENT OF STATUS FOR SPOUSES AND CHIL5 DREN.—

6 (1) IN GENERAL.—The status of an alien shall be

7 adjusted by the Attorney General to that of an alien

8 lawfully admitted for permanent residence, if—

9 (A) the alien is a national of Haiti;

10 (B) the alien is the spouse, child, or unmar11 ried son or daughter, of an alien whose status is

12 adjusted to that of an alien lawfully admitted for

13 permanent residence under subsection (a), except

14 that, in the case of such an unmarried son or

15 daughter, the son or daughter shall be required

16 to establish that he or she has been physically

17 present in the United States for a continuous pe18 riod beginning not later than December 31,

19 1995, and ending not earlier than the date the

20 application for such adjustment is filed;

21 (C) the alien applies for such adjustment

22 and is physically present in the United States on

23 the date the application is filed; and

24 (D) the alien is otherwise admissible to the

25 United States for permanent residence, except
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1 that, in determining such admissibility, the

2 grounds for inadmissibility specified in para3 graphs (4), (5), (6)(A), (7)(A), and (9)(B) of sec4 tion 212(a) of the Immigration and Nationality

5 Act shall not apply.

6 (2) PROOF OF CONTINUOUS PRESENCE.—For

7 purposes of establishing the period of continuous

8 physical presence referred to in paragraph (1)(B), an

9 alien shall not be considered to have failed to main10 tain continuous physical presence by reason of an ab11 sence, or absences, from the United States for any pe12 riod or periods amounting in the aggregate to not

13 more than 180 days.

14 (e) AVAILABILITY OF ADMINISTRATIVE REVIEW.—The

15 Attorney General shall provide to applicants for adjustment

16 of status under subsection (a) the same right to, and proce17 dures for, administrative review as are provided to—

18 (1) applicants for adjustment of status under

19 section 245 of the Immigration and Nationality Act;

20 or

21 (2) aliens subject to removal proceedings under

22 section 240 of such Act.

23 (f) LIMITATION ON JUDICIAL REVIEW.—A determina24 tion by the Attorney General as to whether the status of
14

S 1504 RS

1 any alien should be adjusted under this section is final and

2 shall not be subject to review by any court.

3 (g) NO OFFSET IN NUMBER OF VISAS AVAILABLE.—

4 When an alien is granted the status of having been lawfully

5 admitted for permanent residence pursuant to this section,

6 the Secretary of State shall not be required to reduce the

7 number of immigrant visas authorized to be issued under

8 any provision of the Immigration and Nationality Act.

9 (h) APPLICATION OF IMMIGRATION AND NATIONALITY

10 ACT PROVISIONS.—Except as otherwise specifically pro11 vided in this Act, the definitions contained in the Immigra12 tion and Nationality Act shall apply in the administration

13 of this section. Nothing contained in this Act shall be held

14 to repeal, amend, alter, modify, effect, or restrict the powers,

15 duties, functions, or authority of the Attorney General in

16 the administration and enforcement of such Act or any

17 other law relating to immigration, nationality, or natu18 ralization. The fact that an alien may be eligible to be

19 granted the status of having been lawfully admitted for per20 manent residence under this section shall not preclude the

21 alien from seeking such status under any other provision

22 of law for which the alien may be eligible.
15

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1 SEC. 3. COLLECTION OF DATA ON DETAINED ASYLUM SEEK2 ERS.

3 (a) IN GENERAL.—The Attorney General shall regu4 larly collect data on a nationwide basis with respect to asy5 lum seekers in detention in the United States, including

6 the following information:

7 (1) The number of detainees.

8 (2) An identification of the countries of origin of

9 the detainees.

10 (3) The percentage of each gender within the

11 total number of detainees.

12 (4) The number of detainees listed by each year

13 of age of the detainees.

14 (5) The location of each detainee by detention fa15 cility.

16 (6) With respect to each facility where detainees

17 are held, whether the facility is also used to detain

18 criminals and whether any of the detainees are held

19 in the same cells as criminals.

20 (7) The number and frequency of the transfers of

21 detainees between detention facilities.

22 (8) The average length of detention and the num23 ber of detainees by category of the length of detention.

24 (9) The rate of release from detention of detain25 ees for each district of the Immigration and Natu26 ralization Service.
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1 (10) A description of the disposition of cases.

2 (b) ANNUAL REPORTS.—Beginning October 1, 1999,

3 and not later than October 1 of each year thereafter, the

4 Attorney General shall submit to the Committee on the Ju5 diciary of each House of Congress a report setting forth the

6 data collected under subsection (a) for the fiscal year ending

7 September 30 of that year.

8 (c) AVAILABILITY TO PUBLIC.—Copies of the data col9 lected under subsection (a) shall be made available to mem10 bers of the public upon request pursuant to such regulations

11 as the Attorney General shall prescribe.

12 SEC. 4. COLLECTION OF DATA ON OTHER DETAINED

13 ALIENS.

14 (a) IN GENERAL.—The Attorney General shall regu15 larly collect data on a Nationwide basis on other aliens

16 being detained in the United States by the Immigration

17 and Naturalization Service, including the following infor18 mation:

19 (1) The number of detainees who are criminal

20 aliens and the number of detainees who are noncrimi21 nal aliens who are not seeking asylum;

22 (2) An identification of the ages, gender, and

23 countries of origin of detainees within each of these

24 categories; and
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1 (3) The types of facilities, whether INS or other

2 Federal, State, or local facilities, in which each of

3 these categories of detainees are held.

4 (b) LENGTH OF DETENTION, TRANSFERS, AND DIS5 POSITIONS.—With respect to detainees who are criminal

6 aliens and detainees who are noncriminal aliens who are

7 not seeking asylum, the Attorney General shall also collect

8 data concerning—

9 (1) the number and frequency of transfers be10 tween detention facilities for each category of de11 tainee;

12 (2) the average length of detention of each cat13 egory of detainee;

14 (3) for each category of detainee, the number of

15 detainees who have been detained for the same length

16 of time, in three-month increments;

17 (4) for each category of detainee, the rate of re18 lease from detention for each district of the Immigra19 tion and Naturalization Service; and

20 (5) for each category of detainee, the disposition

21 of detention, including whether detention ended due to

22 deportation, release on parole, or any other release.

23 (c) CRIMINAL ALIENS.—With respect to criminal

24 aliens, the Attorney General shall also collect data concern25 ing—
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1 (1) the number of criminal aliens apprehended

2 under the immigration laws and not detained by the

3 Attorney General; and

4 (2) a list of crimes committed by criminal aliens

5 after the decision was made not to detain them, to the

6 extent this information can be derived by cross-check7 ing the list of criminal aliens not detained with other

8 databases accessible to the Attorney General.

9 (d) ANNUAL REPORTS.—Beginning on October 1,

10 1999, and not later than October 1 of each year thereafter,

11 the Attorney General shall submit to the Committee on the

12 Judiciary of each House of Congress a report setting forth

13 the data collected under subsections (a), (b), and (c), for

14 the fiscal year ending September 30 of that year.

15 (e) AVAILABILITY TO PUBLIC.—Copies of the data col16 lected under subsections (a), (b), and (c) shall be made

17 available to members of the public upon request pursuant

18 to such regulations as the Attorney General shall prescribe.

Calendar No. 343

105TH CONGRESS

2D SESSION S. 1504

A BILL

To adjust the immigration status of certain Haitian

States.nationals who were provided refuge in the United

APRIL 23, 1998

Reported with an amendment in the nature of a

substitute