II

106TH CONGRESS

1ST SESSION S. 1940

To amend the Immigration and Nationality Act to reaffirm the United States

historic commitment to protecting refugees who are fleeing persecution

or torture.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 17, 1999

Mr. LEAHY (for himself, Mr. BROWNBACK, Mr. FEINGOLD, Mr. KENNEDY,

Mr. KERRY, Mr. JEFFORDS, and Mr. LAUTENBERG) introduced the following bill; which was read twice and referred to the Committee on the

Judiciary

A BILL

To amend the Immigration and Nationality Act to reaffirm

the United States historic commitment to protecting refugees who are fleeing persecution or torture.

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.

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

5 ‘‘Refugee Protection Act of 1999’’.

6 (b) REFERENCES IN ACT.—Except as specifically

7 provided in this Act, whenever in this Act an amendment

8 or repeal is expressed as an amendment to or repeal of
2

•S 1940 IS

1 a provision, the reference shall be deemed to be made to

2 that provision in the Immigration and Nationality Act.

3 SEC. 2. CONGRESSIONAL FINDINGS AND PURPOSE.

4 (a) FINDINGS.—Congress makes the following find5 ings:

6 (1) The very foundation of the Republic was

7 laid by people who came to America to escape perse8 cution, including many who fled persecution on the

9 basis of their faith.

10 (2) Protecting people from persecution is a

11 cherished goal and a guiding principle of the Amer12 ican people.

13 (3) The United States has a history of gen14 erosity to persons fleeing persecution, which has

15 served as an inspiring example to other nations de16 veloping refugee policy, even though only a tiny frac17 tion of the world’s oppressed actually seek refuge on

18 American shores.

19 (4) Conversely, when the United States has re20 stricted protection for refugees, other nations have

21 followed that lead.

22 (5) Current law fails to ensure that those who

23 arrive in the United States fleeing persecution have

24 a fair and adequate opportunity to present claims

25 for protection.
3

•S 1940 IS

1 (b) PURPOSE.—The purpose of this Act is to reduce

2 the likelihood that a bona fide refugee will be returned

3 to persecution in the refugee’s country of nationality or

4 country of last habitual residence by United States au5 thorities because of expedited removal procedures or lack

6 of due process in the United States asylum system.

7 SEC. 3. SAFEGUARDS AGAINST ERRONEOUS EXCLUSION OF

8 ASYLUM SEEKERS.

9 (a) LIMITATION OF SUMMARY INSPECTION PROCE10 DURES TO IMMIGRATION EMERGENCIES.—Section

11 235(b)(1) (8 U.S.C. 1225(b)(1)) is amended—

12 (1) by redesignating subparagraphs (A) through

13 (F) as subparagraphs (B) through (G), respectively;

14 and

15 (2) by inserting after the caption for paragraph

16 (1) the following new subparagraph:

17 ‘‘(A) EMERGENCY MIGRATION SITUA18 TIONS.—

19 ‘‘(i) SCOPE OF PARAGRAPH.—The au20 thority in this paragraph shall apply to

21 those instances where the Attorney General

22 determines that the numbers or cir23 cumstances of aliens en route to or arriv24 ing in the United States, by land, sea, or
4

•S 1940 IS

1 air present an extraordinary migration sit2 uation.

3 ‘‘(ii) EXTRAORDINARY MIGRATION

4 SITUATION DEFINED.—As used in this

5 subparagraph, the term ‘extraordinary mi6 gration situation’ means the arrival or im7 minent arrival in the United States or its

8 territorial waters of aliens who by their

9 numbers or circumstances substantially ex10 ceed the capacity for inspection and exam11 ination of such aliens.

12 ‘‘(iii) DETERMINATIONS BY THE AT13 TORNEY GENERAL.—The determination of

14 whether there exists an extraordinary mi15 gration situation within the meaning of

16 this paragraph is committed to the sole

17 and exclusive discretion of the Attorney

18 General. Before making such determina19 tion, the Attorney General shall consider

20 whether the source of the extraordinary

21 migration flow is a country that meets the

22 criteria of subparagraph (G).

23 ‘‘(iv) EFFECTIVE PERIOD OF DETER24 MINATIONS.—A determination by the At25 torney General under this subparagraph
5

•S 1940 IS

1 that an extraordinary migration situation

2 exists shall be effective for a period not to

3 exceed 90 days, unless, within such 90-day

4 period (or extension thereof), the Attorney

5 General determines, after consultation with

6 the Committees on the Judiciary of the

7 Senate and the House of Representatives,

8 that an extraordinary migration situation

9 continues to warrant such procedures re10 maining in effect for an additional 90-day

11 period.’’.

12 (b) REFORM OF SUMMARY INSPECTION PROCEDURES

13 TO DECREASE THE LIKELIHOOD OF ERROR.—Section

14 235(b)(1)(B) (as redesignated by subsection (a)) is

15 amended to read as follows:

16 ‘‘(B) SCREENING.—

17 ‘‘(i) IN GENERAL.—If an immigration

18 officer determines that an alien (other

19 than an alien described in subparagraph

20 (G)) who is arriving in the United States

21 is inadmissible under section 212(a)(6)(C)

22 or 212(a)(7) because the alien has no doc23 uments or has documents that are invalid

24 on their face, the officer shall permit the

25 alien to withdraw the application for ad-
6

•S 1940 IS

1 mission under subsection (a)(4), or order

2 the alien removed from the United States,

3 unless the alien indicates an intention to

4 apply for asylum under section 208 or a

5 fear of returning to his country of nation6 ality or country of last habitual residence.

7 Prior to withdrawal of an application for

8 admission or issuance of a removal order,

9 the alien shall be informed in writing and

10 in a language the alien understands of the

11 consequences of withdrawal or issuance of

12 a removal order, the availability of review

13 of a removal order, and that the alien shall

14 have access to counsel in connection with

15 such review, as provided by clause (iii).

16 ‘‘(ii) CLAIMS FOR ASYLUM.—If an im17 migration officer determines that an alien

18 (other than an alien described in subpara19 graph (G)) arriving in the United States is

20 inadmissible under clause (i) and the alien

21 indicates an intention to apply for asylum

22 under section 208 or a fear of returning to

23 his country of nationality or country of last

24 habitual residence, the officer shall refer
7

•S 1940 IS

1 the alien for an interview by an asylum of2 ficer under subparagraph (C).

3 ‘‘(iii) REVIEW OF REMOVAL OR4 DERS.—

5 ‘‘(I) IN GENERAL.—The Attorney

6 General shall provide by regulation for

7 de novo review by an immigration

8 judge of an order issued under clause

9 (i) unless the alien waives such re10 view.

11 ‘‘(II) PROCEDURES.—The review

12 shall include an opportunity for the

13 alien to be heard and questioned by

14 the immigration judge in person and

15 to be represented at the review by a

16 person or persons of the alien’s choos17 ing at no expense to the Government.

18 The alien shall be advised of these

19 procedures and provided the list of

20 persons prepared under section

21 239(b)(2). Review shall be concluded

22 as expeditiously as possible.

23 ‘‘(III) DETERMINATIONS OF IN24 ADMISSIBILITY.—If the immigration

25 judge determines that the alien is in-
8

•S 1940 IS

1 admissible under section 212(a)(6)(C)

2 or 212(a)(7) because the alien has no

3 documents or has documents that are

4 invalid on their face, the immigration

5 judge shall permit the alien to with6 draw the application for admission

7 under subsection (a)(4), or order the

8 alien removed from the United States,

9 unless the alien indicates an intention

10 to apply for asylum under section 208

11 or a fear of returning to his country

12 of nationality or country of last habit13 ual residence.

14 ‘‘(IV) REFERRAL TO ASYLUM OF15 FICERS.—If the alien indicates an in16 tention to apply for asylum under sec17 tion 208 or a fear of returning to his

18 country of nationality or country of

19 last habitual residence, the immigra20 tion judge shall refer the alien for an

21 interview by an asylum officer under

22 subparagraph (B).

23 ‘‘(V) OTHER DETERMINA24 TIONS.—If the immigration judge de25 termines that the alien is not inadmis-
9

•S 1940 IS

1 sible under section 212(a)(6)(C) or

2 212(a)(7), the immigration judge shall

3 order the alien admitted or shall refer

4 the alien for a removal hearing under

5 section 240.’’.

6 (c) EXCEPTIONS TO SUMMARY INSPECTION PROCE7 DURES FOR ALIENS FLEEING COUNTRIES WITH POOR

8 HUMAN RIGHTS RECORDS.—Section 235(b)(1)(G) (as re9 designated by subsection (a)) is amended to read as fol10 lows:

11 ‘‘(G) EXCEPTIONS.—Subparagraph (B)

12 shall not apply to an alien if—

13 ‘‘(i) the alien has fled from a country

14 with respect to which the Attorney Gen15 eral, in consultation with the Assistant

16 Secretary of State for Democracy, Human

17 Rights and Labor, has determined that the

18 government (or a group within the country

19 that the government is unable or unwilling

20 to control)—

21 ‘‘(I) engages in torture or other

22 cruel, inhuman, or degrading treat23 ment or punishment;
10

•S 1940 IS

1 ‘‘(II) engages in prolonged arbi2 trary detention without charges or

3 trial;

4 ‘‘(III) engages in abduction,

5 forced disappearance, or clandestine

6 detention;

7 ‘‘(IV) engages in systematic per8 secution; or

9 ‘‘(V) where an ongoing armed

10 conflict or other extraordinary condi11 tions would pose a serious threat to

12 the alien’s safety;

13 ‘‘(ii) the alien is a native or citizen of

14 a country in the Western Hemisphere with

15 whose government the United States does

16 not have full diplomatic relations and who

17 arrives by aircraft at a port of entry; or

18 ‘‘(iii) the alien is a child unaccom19 panied by a parent or guardian.’’.

20 (d) REFORM OF CREDIBLE FEAR REVIEW PROCE21 DURES TO DECREASE THE LIKELIHOOD OF ERROR.—

22 Section 235(b)(1)(C)(iii) (as redesignated by subsection

23 (a)) is amended—

24 (1) in the caption of clause (iii), by striking

25 ‘‘WITHOUT FURTHER REVIEW’’;
11

•S 1940 IS

1 (2) in subclause (I), by striking ‘‘without fur2 ther hearing or review’’; and

3 (3) by amending subparagraph (III) to read as

4 follows:

5 ‘‘(III) REVIEW OF DETERMINA6 TIONS.—The Attorney General shall

7 provide by regulation for prompt re8 view by an immigration judge of a de9 termination under subclause (I) that

10 the alien does not have a credible fear

11 of persecution. Such review shall in12 clude an opportunity for the alien to

13 be heard and questioned by the immi14 gration judge in person and to be rep15 resented at the review at no expense

16 to the Government. Review shall be

17 concluded as expeditiously as possible,

18 to the maximum extent practicable

19 within 7 days after the date of deter20 mination under subclause (I).’’.

21 (e) REFORM OF CREDIBLE FEAR STANDARD TO DE22 CREASE THE LIKELIHOOD OF ERROR.—Section

23 235(b)(1)(C)(v) (as redesignated by subsection (a)) is

24 amended to read as follows:
12

•S 1940 IS

1 ‘‘(v) CREDIBLE FEAR OF PERSECU2 TION DEFINED.—For purposes of this

3 paragraph, the term ‘credible fear of perse4 cution’ means that, taking into account the

5 credibility of the statements made by the

6 alien in support of the alien’s claim and

7 such other facts in support of the alien’s

8 claim as are known to the officer, the

9 alien’s claim of eligibility for asylum under

10 section 208 is not clearly fraudulent and is

11 related to the criteria for granting asy12 lum.’’.

13 (f) CLARIFICATION OF ATTORNEY GENERAL’S DIS14 CRETION TO DETAIN ASYLUM SEEKERS.—Section

15 235(b)(1)(B) (as redesignated by subsection (a)) is

16 amended—

17 (1) in clause (ii), by striking ‘‘shall’’ and insert18 ing ‘‘may, in the Attorney General’s discretion,’’;

19 and

20 (2) in clause (iii)(IV), by striking ‘‘shall’’ and

21 inserting ‘‘may, in the Attorney General’s discre22 tion,’’.

23 (g) ENHANCED AVAILABILITY OF JUDICIAL REVIEW

24 AS A SAFEGUARD AGAINST ERRONEOUS EXCLUSION OF
13

•S 1940 IS

1 ASYLUM SEEKERS.—Section 242 (8 U.S.C. 1252) is

2 amended—

3 (1) in subsection (a), by striking the parenthet4 ical in paragraph (1);

5 (2) in subsection (a)(2)—

6 (A) by striking subparagraph (A); and

7 (B) by redesignating subparagraphs (B)

8 and (C) as subparagraphs (A) and (B), respec9 tively;

10 (3) in subsection (b)—

11 (A) by striking ‘‘manifestly’’ in paragraph

12 (4)(D); and

13 (B) by striking ‘‘and’’ in paragraph (4)(D)

14 and inserting ‘‘or’’; and

15 (4) by striking subsection (e).

16 (h) CONFORMING AMENDMENTS.—

17 (1) CONDUCT OF INTERVIEWS BY ASYLUM OF18 FICERS.—Section 235(b)(1)(C)(i) (as so redesig19 nated) is amended by striking ‘‘subparagraph

20 (A)(ii)’’ and inserting ‘‘subparagraph (B) (ii) or

21 (iii)’’.

22 (2) LIMITATIONS ON ADMINISTRATIVE RE23 VIEW.—Section 235(b)(1)(D) (as so redesignated) is

24 amended—
14

•S 1940 IS

1 (A) by striking ‘‘subparagraph

2 (B)(iii)(III)’’ and inserting ‘‘subparagraph

3 (C)(iii)(III)’’;

4 (B) by striking ‘‘subparagraph (A)(i) or

5 (B)(iii)(I)’’ and inserting ‘‘subparagraph

6 (B)(iii) or (C)(iii)(I)’’; and

7 (C) by striking ‘‘subparagraph (A)(i)’’ and

8 inserting ‘‘subparagraph (B)(iii)’’.

9 (3) APPLICATION TO STOWAWAYS.—Section

10 235(a)(2) (8 U.S.C. 1225(a)(2)) is amended—

11 (A) by inserting before the period at the

12 end of the first sentence the following: ‘‘, except

13 that the alien shall be informed of the avail14 ability of review of the order under subsection

15 (b)(1)(C)(iii);

16 (B) in the second sentence, by striking

17 ‘‘persecution’’ and inserting ‘‘returning to his

18 country of nationality or country of last habit19 ual residence’’; and

20 (C) by striking ‘‘subsection (b)(1)(B)’’

21 each place it appears and inserting ‘‘subsection

22 (b)(1)(C)’’.

23 (4) HEADING CORRECTION.—The heading of

24 subclause IV of section 235(b)(1)(C)(iii), as redesig25 nated by section 3(a)(1) of this Act, is amended by
15

•S 1940 IS

1 striking ‘‘MANDATORY DETENTION’’ and inserting

2 ‘‘DETENTION’’.

3 SEC. 4. ADDITIONAL REFORMS TO ENSURE A FAIR AND

4 ADEQUATE OPPORTUNITY FOR REFUGEES TO

5 PRESENT CLAIMS FOR PROTECTION.

6 (a) ‘‘GOOD CAUSE’’ EXCEPTION TO THE TIME LIMI7 TATION FOR APPLYING FOR ASYLUM.—Section

8 208(a)(2)(B) (8 U.S.C. 1158(a)(2)(B)) is amended by in9 serting before the period at the end the following: ‘‘or the

10 alien demonstrates, by a preponderance of the evidence,

11 good cause for filing after the expiration of the period

12 specified in this subparagraph.’’.

13 (b) ALLOWING REAPPLICATION WHERE JUSTIFIED

14 BY GOOD CAUSE OR THE INTEREST OF JUSTICE.—Sec15 tion 208(a)(2) (8 U.S.C. 1158(a)(2)) is amended—

16 (1) in subparagraph (C), by inserting before the

17 period at the end the following: ‘‘unless the alien

18 demonstrates good cause for filing another applica19 tion for asylum’’; and

20 (2) in subparagraph (D), by inserting before

21 the period at the end the following: ‘‘or of other cir22 cumstances in which consideration of the claim

23 would clearly be in the interest of justice’’.
16

•S 1940 IS

1 (c) CLARIFICATION REGARDING FRIVOLOUS APPLI2 CATIONS FOR ASYLUM.—Section 208(d)(6) (8 U.S.C.

3 1158(d)(6)) is amended—

4 (1) by adding at the end the following: ‘‘An ap5 plication for asylum is frivolous if the application as

6 a whole is clearly fraudulent or is made with knowl7 edge that the application as a whole is not related

8 to the criteria for granting refugee status.’’;

9 (2) by striking ‘‘permanently’’;

10 (3) by inserting ‘‘for five years’’ after ‘‘chap11 ter’’; and

12 (4) by inserting ‘‘, except withholding of re13 moval,’’ after ‘‘benefits’’.

14 SEC. 5. EFFECTIVE DATE.

15 This Act, and the amendments made by this Act,

16 shall take effect 30 days after the date of enactment of

17 this Act.

Æ