I 

111TH CONGRESS 

1ST SESSION H. R. 938 

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 

FEBRUARY 10, 2009 

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 2009’’. 

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

7 this Act is as follows: 


rwilkins on PROD1PC63 with BILLS
2 

•HR 938 IH

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6 208), section 321 of such Act is repealed and the provi7 sions of law amended by such section are restored as if 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 Sec14 retary of Homeland Security to be considered for adjust15 ment of status or cancellation of removal in conformance 

16 with the provisions of section 101(a)(43) of the Immigra17 tion and Nationality 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: 


rwilkins on PROD1PC63 with BILLS
3 

•HR 938 IH

1 ‘‘(c) DETENTION OF CRIMINAL ALIENS.— 

2 ‘‘(1) IN GENERAL.—The Secretary of Homeland 

3 Security shall take into custody any alien convicted 

4 of an aggravated felony upon release of the alien (re5 gardless of whether or not such release is on parole, 

6 supervised release, or probation, and regardless of 

7 the possibility of rearrest or further confinement in 

8 respect of the same offense). Notwithstanding sub9 section (a) or section 241(a) but subject to para10 graph (2), the Secretary of Homeland Security shall 

11 not release such felon from custody. 

12 ‘‘(2) NON-RELEASE.—The Secretary of Home13 land Security may not release from custody any who 

14 has been convicted of an aggravated felony, either 

15 before or after a determination of removability, un16 less— 

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

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

19 but the alien cannot be removed because the 

20 designated country of removal will not accept 

21 the alien; and 

22 ‘‘(B) the alien satisfies the Secretary of 

23 Homeland Security that the alien will not pose 

24 a danger to the safety of other persons or of 


rwilkins on PROD1PC63 with BILLS
4 

•HR 938 IH

1 property and is likely to appear for any sched2 uled proceeding.’’. 

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

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

5 Immigration Reform and Immigrant Responsibility Act of 

6 1996. 

7 SEC. 4. REPEAL OF TIME STOP PROVISIONS. 

8 (a) IN GENERAL.—Section 240A(d) of the Immigra9 tion and Nationality Act (8 U.S.C. 1229b(d)) is repealed. 

10 (b) EFFECTIVE DATE.—The repeal made by sub11 section (a) shall be effective as if included in the enact12 ment of subtitle A of title III of the Illegal Immigration 

13 Reform and Immigrant Responsibility Act of 1996. 

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

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

16 101(a)(48) of the Immigration and Nationality Act (8 

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

18 (b) EFFECTIVE DATE.—The repeal made by sub19 section (a) shall take effect as if included in the enactment 

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

21 Immigrant Responsibility Act of 1996. 

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

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

24 and Nationality Act (8 U.S.C. 1182) is amended by insert25 ing after subsection (b) the following new subsection: 


rwilkins on PROD1PC63 with BILLS
5 

•HR 938 IH

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

2 who temporarily proceeded abroad voluntarily and not 

3 under an order of deportation or removal, and who are 

4 returning to a lawful unrelinquished domicile of seven con5 secutive years, may be admitted in the discretion of the 

6 Secretary of Homeland Security without regard to the pro7 visions of subsection (a) (other than paragraphs (3) and 

8 (10)(C)). Nothing contained in this subsection shall limit 

9 the authority of the Secretary of Homeland Security to 

10 exercise the discretion vested in him under section 211(b). 

11 The first sentence of this subsection shall not apply to an 

12 alien who has been convicted of one or more aggravated 

13 felonies and has served for such felony or felonies a term 

14 of imprisonment of at least 5 years.’’. 

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

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

17 440(d) of the Antiterrorism and Effective Death Penalty 

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

19 Illegal Immigration Reform and Immigrant Responsibility 

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

21 been enacted. 

22 SEC. 7. RESTORATION OF JUDICIAL REVIEW PROVISIONS. 

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

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

25 as follows: 


rwilkins on PROD1PC63 with BILLS
6 

•HR 938 IH

1 ‘‘JUDICIAL REVIEW OF ORDERS OF REMOVAL

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

3 the provisions of chapter 158 of title 28, United States 

4 Code, shall apply to, and shall be the sole and exclusive 

5 procedure for, the judicial review of all final orders of re6 moval heretofore or hereafter made against aliens within 

7 the United States pursuant to administrative proceedings 

8 under section 240 of this Act or comparable provisions of 

9 any prior Act, except that— 

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

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

12 final removal order, or, in the case of an alien con13 victed of an aggravated felony not later than 30 

14 days after the issuance of such order; 

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

16 this section shall be in the judicial circuit in which 

17 the administrative proceedings before an immigra18 tion judge were conducted in whole or in part, or in 

19 the judicial circuit wherein is the residence, as de20 fined in this Act, of the petitioner, but not in more 

21 than one circuit; 

22 ‘‘(3) the action shall be brought against the De23 partment of Homeland Security, as respondent. 

24 Service of the petition to review shall be made upon 

25 the Secretary of Homeland Security of the United 


rwilkins on PROD1PC63 with BILLS
7 

•HR 938 IH

1 States and upon the official of the Department of 

2 Homeland Security in charge of the district in which 

3 the office of the clerk of the court is located. The 

4 service of the petition for review upon such official 

5 of the Service shall stay the removal of the alien 

6 pending determination of the petition by the court, 

7 unless the court otherwise directs or unless the alien 

8 is convicted of an aggravated felony, in which case 

9 the Service shall not stay the removal of the alien 

10 pending determination of the petition of the court 

11 unless the court otherwise directs; 

12 ‘‘(4) except as provided in clause (B) of para13 graph (5) of this subsection, the petition shall be de14 termined solely upon the administrative record upon 

15 which the removal order is based and the Secretary 

16 of Homeland Security’s findings of fact, if supported 

17 by reasonable, substantial, and probative evidence on 

18 the record considered as a whole, shall be conclusive; 

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

20 of an order under this section, claims to be a na21 tional of the United States and makes a showing 

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

23 pass upon the issues presented when it appears from 

24 the pleadings and affidavits filed by the parties that 

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


rwilkins on PROD1PC63 with BILLS
8 

•HR 938 IH

1 where a genuine issue of material fact as to the peti2 tioner’s nationality is presented, transfer the pro3 ceedings to a United States district court for the 

4 district where the petitioner has his residence for 

5 hearing de novo of the nationality claim and deter6 mination as if such proceedings were originally initi7 ated in the district court under the provisions of sec8 tion 2201 of title 28, United States Code. Any such 

9 petitioner shall not be entitled to have such issue de10 termined under section 360(a) of this Act or other11 wise; 

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

13 order under this section, any review sought with re14 spect to a motion to reopen or reconsider such an 

15 order shall be consolidated with the review of the 

16 order; 

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

18 been judicially determined, its validity may be chal19 lenged in a criminal proceeding against the alien for 

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

21 this Act only by separate motion for judicial review 

22 before trial. Such motion shall be determined by the 

23 court without a jury and before the trial of the gen24 eral issue. Whenever a claim to United States na25 tionality is made in such motion, and in the opinion 


rwilkins on PROD1PC63 with BILLS
9 

•HR 938 IH

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

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

3 accord him a hearing de novo on the nationality 

4 claim and determine that issue as if proceedings had 

5 been initiated under the provisions of section 2201 

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

7 not be entitled to have such issue determined under 

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

9 hearing de novo as to nationality is conducted, the 

10 determination shall be made solely upon the admin11 istrative record upon which the removal order is 

12 based and the Secretary of Homeland Security’s 

13 findings of fact, if supported by reasonable, substan14 tial, and probative evidence on the record considered 

15 as a whole, shall be conclusive. If the removal order 

16 is held invalid, the court shall dismiss the indictment 

17 and the United States shall have the right to appeal 

18 to the court of appeals within 30 days. The proce19 dure on such appeals shall be as provided in the 

20 Federal rules of criminal procedure. No petition for 

21 review under this section may be filed by any alien 

22 during the pendency of a criminal proceeding 

23 against such alien for violation of subsection (a) or 

24 (b) of section 243 of this Act; 


rwilkins on PROD1PC63 with BILLS
10 

•HR 938 IH

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

2 to require the Secretary of Homeland Security to 

3 defer removal of an alien after the issuance of a re4 moval order because of the right of judicial review 

5 of the order granted by this section, or to relieve any 

6 alien from compliance with subsections (a) and (b) 

7 of section 243 of this Act. Nothing contained in this 

8 section shall be construed to preclude the Secretary 

9 of Homeland Security from detaining or continuing 

10 to detain an alien or from taking the alien into cus11 tody pursuant to section 241 of this Act at any time 

12 after the issuance of a removal order; 

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

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

15 court shall review the proceedings on a typewritten 

16 record and on typewritten briefs; and 

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

18 order of removal may obtain judicial review thereof 

19 by habeas corpus proceedings. 

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

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

22 made heretofore or hereafter under the provisions of sec23 tion 235 of this Act or comparable provisions of any prior 

24 Act may obtain judicial review of such order by habeas 

25 corpus proceedings and not otherwise. 


rwilkins on PROD1PC63 with BILLS
11 

•HR 938 IH

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

2 court if the alien has not exhausted the administrative 

3 remedies available to the alien as of right under the immi4 gration laws and regulations or if the alien has departed 

5 from the United States after the issuance of the order. 

6 Every petition for review or for habeas corpus shall state 

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

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

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

10 No petition for review or for habeas corpus shall be enter11 tained if the validity of the order has been previously de12 termined in any civil or criminal proceeding, unless the 

13 petition presents grounds which the court finds could not 

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

15 finds that the remedy provided by such prior proceeding 

16 was inadequate or ineffective to test the validity of the 

17 order. 

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

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

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

21 only— 

22 ‘‘(A) whether the alien is in fact the alien de23 scribed in the order; 

24 ‘‘(B) whether the alien is in fact an alien de25 scribed in section 238(b)(2); 


rwilkins on PROD1PC63 with BILLS
12 

•HR 938 IH

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

2 aggravated felony and such conviction has become 

3 final; and 

4 ‘‘(D) whether the alien was afforded the proce5 dures required by section 238(b)(4). 

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

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

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

9 subsection (a) shall take effect on the date of the enact10 ment of this Act and shall apply to determinations pending 

11 on or after such date with respect to which— 

12 (1) a final administrative decision has been/not 

13 been rendered as of such date; or 

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

15 period for seeking judicial review of the decision has 

16 not expired. 

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

18 (a) IN GENERAL.—Notwithstanding section 

19 240(c)(6) of the Immigration and Nationality Act (8 

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

21 law on motions to reopen removal proceedings, the Sec22 retary of Homeland Security shall establish a process 

23 (whether through permitting the reopening of a removal 

24 proceeding or otherwise) under which an alien— 


rwilkins on PROD1PC63 with BILLS
13 

•HR 938 IH

1 (1) who is (or was) in removal proceedings be2 fore the date of the enactment of this Act (whether 

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

4 and 

5 (2) whose eligibility for cancellation of removal 

6 has been established by this Act; 

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

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

9 (8 U.S.C. 1229b(a)) as a beneficiary of the relief provided 

10 under this Act. 

11 (b) PAROLE.—The Secretary of Homeland Security 

12 should exercise the parole authority under section 

13 212(d)(5)(A) of the Immigration and Nationality Act (8 

14 U.S.C. 1182(d)(5)(A)) for the purpose of permitting 

15 aliens removed from the United States to participate in 

16 the process established under subsection (a). 

Æ 


rwilkins on PROD1PC63 with BILLS