I

104TH CONGRESS

2D SESSION H. R. 4258

To establish the United States Immigration Court.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 27, 1996

Mr. MCCOLLUM introduced the following bill; which was referred to the

Committee on the Judiciary

A BILL

To establish the United States Immigration Court.

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; AMENDMENTS TO IMMIGRATION

4 AND NATIONALITY ACT; TABLE OF CON5 TENTS.

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

7 ‘‘United States Immigration Court Act of 1996’’.

8 (b) AMENDMENTS TO IMMIGRATION AND NATIONAL9 ITY ACT.—Except as otherwise specifically provided,

10 whenever in this Act an amendment or repeal is expressed

11 as the amendment or repeal of a section or other provision,
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1 the reference shall be considered to be made to that sec2 tion or provision in the Immigration and Nationality Act.

3 (c) TABLE OF CONTENTS.—

Sec. 1. Short title; amendments to Immigration and Nationality Act; table of

contents.

Sec. 2. Establishment of United States Immigration Court.

Sec. 3. Judicial review of Immigration Court decisions.

Sec. 4. Reform of asylum.

Sec. 5. Conforming amendments.

Sec. 6. Effective date; severability.

4 SEC. 2. ESTABLISHMENT OF UNITED STATES IMMIGRATION

5 COURT.

6 (a) NEW CHAPTER 2.—Title I is amended—

7 (1) by inserting the following after the title

8 heading:

9 ‘‘CHAPTER 1—DEFINITIONS AND POWERS’’ and

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

11 chapter:

12 ‘‘CHAPTER 2—UNITED STATES IMMIGRATION COURT

13 ‘‘ESTABLISHMENT OF IMMIGRATION COURT

14 ‘‘SEC. 111. ARTICLE I UNITED STATES IMMIGRA15 TION COURT.—(a) There is established, under article I of

16 the Constitution of the United States, a court of record

17 to be known as the United States Immigration Court.

18 ‘‘(b) The Immigration Court shall consist of a trial

19 division and an appellate division.

20 ‘‘APPELLATE DIVISION

21 ‘‘SEC. 112. (a) APPOINTMENT OF APPEALS

22 JUDGES.—The appellate division of the Immigration
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1 Court shall be composed of a chief immigration appeals

2 judge and five other immigration appeals judges, ap3 pointed by the President by and with the advice and con4 sent of the Senate.

5 ‘‘(b) TERM OF OFFICE.—The term of office of each

6 immigration appeals judge shall be fifteen years, except

7 that—

8 ‘‘(1) of the judges first appointed under this

9 subsection, two shall each be appointed for terms of

10 five, ten, and fifteen years,

11 ‘‘(2) a judge appointed to fill a vacancy occur12 ring before the expiration of the term for which a

13 predecessor was appointed shall be appointed only

14 for the remainder of such term, and

15 ‘‘(3) a judge may serve after the expiration of

16 the judge’s term until reappointed or a successor has

17 taken office.

18 ‘‘(c) COMPENSATION.—Each judge of the appellate

19 division shall receive a salary at the rate equal to 93 per20 cent of the next to the highest rate of basic pay for the

21 Senior Executive Service, except that the chief immigra22 tion appeals judge shall receive a salary at the rate equal

23 to 94 percent of the next to the highest rate of basic pay

24 for the Senior Executive Service.
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1 ‘‘(d) CHIEF IMMIGRATION APPEALS JUDGE.—The

2 chief immigration appeals judge shall be responsible on be3 half of the appellate division for the administrative oper4 ations of the Immigration Court and shall have the power

5 to appoint such administrative assistants, attorneys,

6 clerks, and other personnel as may be needed for that pur7 pose.

8 ‘‘(e) QUORUM.—Three immigration appeals judges

9 constitute a quorum of the appellate division, except that

10 the chief immigration appeals judge (or any immigration

11 appeals judge designated by the chief judge) is empowered

12 to decide nondispositive motions.

13 ‘‘(f) ACTING IN PANELS.—The appellate division

14 shall act in panels of three or more judges or in banc (as

15 designated by the chief immigration appeals judge in ac16 cordance with the rules of the appellate division). A final

17 decision of such a panel shall be considered to be a final

18 decision of the appellate division.

19 ‘‘(g) REMOVAL OF JUDGES FOR CAUSE.—(1) Re20 moval of an immigration appeals judge of the Immigration

21 Court during the term for which the judge is appointed

22 shall be only for incompetency, misconduct, neglect of

23 duty, engaging in the practice of law, or physical or mental

24 disability. Removal shall be by the United States Court

25 of Appeals for the Federal Circuit, but removal may not
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1 occur unless a majority of all judges of such court of ap2 peals concur in the order of removal.

3 ‘‘(2) Before any order of removal may be entered, a

4 full specification of the charges shall be furnished to the

5 immigration appeals judge involved, and such judge shall

6 be accorded an opportunity to be heard on the charges.

7 ‘‘(3) Any cause for removal of any immigration ap8 peals judge coming to the knowledge of the Director of

9 the Administrative Office of the United States Courts or

10 to the Attorney General of the United States shall be re11 ported by the Director or the Attorney General to the

12 Chief Judge of the United States Court of Appeals for

13 the Federal Circuit, and a copy of the report shall at the

14 same time be transmitted to the immigration appeals

15 judge.

16 ‘‘(4) An immigration appeals judge removed from of17 fice in accordance with this subsection shall not be per18 mitted at any time to practice before the Immigration

19 Court.

20 ‘‘(h) EXPENSES FOR TRAVEL AND SUBSISTENCE.—

21 Immigration appeals judges shall receive necessary travel22 ing expenses and expenses actually incurred for subsist23 ence while traveling on duty and away from their des24 ignated stations, subject to the same limitations in amount
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1 as are new or may hereafter be applicable to the United

2 States Court of International Trade.

3 ‘‘(i) OFFICE OF COURT.—The principal office of the

4 appellate division of the Immigration Court shall be in,

5 or within twenty miles of, the District of Columbia, but

6 the Immigration Court may hold court at such times and

7 in such places as it may provide by rule of court.

8 ‘‘TRIAL DIVISION

9 ‘‘SEC. 113. (a) APPOINTMENT OF TRIAL JUDGES.—

10 ‘‘(1) The trial division of the Immigration

11 Court shall be composed of a chief immigration trial

12 judge and other immigration trial judges, appointed

13 by the Chief Immigration Appeals Judge.

14 ‘‘(2) Every immigration judge who is serving as

15 an immigration judge as of the time of enactment of

16 paragraph (1) and who is qualified under this Act

17 to serve as an immigration trial judge shall be ap18 pointed by the Chief Immigration Appeals Judge to

19 serve as an immigration trial judge pursuant to

20 paragraph (1).

21 ‘‘(b) TERM OF OFFICE.—The term of office of each

22 immigration trial judge shall be fifteen years, except

23 that—

24 ‘‘(1) a judge appointed to fill a vacancy occur25 ring before the expiration of the term for which a
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1 predecessor was appointed shall be appointed only

2 for the remainder of such term, and

3 ‘‘(2) a judge may serve after the expiration of

4 such judge’s term until reappointed or a successor

5 has taken office.

6 ‘‘(c) COMPENSATION.—

7 ‘‘(1) IN GENERAL.—There shall be four levels

8 of pay for immigration trial judges, under the Immi9 gration Judge Schedule, (designated as IJ–1, 2, 3,

10 and 4, respectively), and each such judge shall be

11 paid at one of those levels, in accordance with the

12 provisions of this subsection.

13 ‘‘(2) RATES OF PAY.—(A) The rates of basic

14 pay for the levels established under paragraph (1)

15 shall be as follows:

‘‘IJ–1 ............................................. 70 percent of the next to highest rate

of basic pay for the Senior Executive Service

‘‘IJ–2 ............................................. 80 percent of the next to highest rate

of basic pay for the Senior Executive Service

‘‘IJ–3 ............................................. 90 percent of the next to highest rate

of basic pay for the Senior Executive Service

‘‘IJ–4 ............................................. 92 percent of the next to highest rate

of basic pay for the Senior Executive Service.

16 ‘‘(B) Locality pay, where applicable, shall be

17 calculated into the basic pay for immigration trial

18 judges.

19 ‘‘(3) APPOINTMENT.—(A) Upon appointment,

20 an immigration trial judge shall be paid at IJ–1,
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1 and shall be advanced to IJ–2 upon completion of

2 104 weeks of service, to IJ–3 upon completion of

3 104 weeks of service in the next lower rate, and to

4 IJ–4 upon completion of 52 weeks of service in the

5 next lower rate.

6 ‘‘(B) Notwithstanding subparagraph (A), the

7 chief immigration appeals judge may provide for a

8 newly- appointed immigration trial judge to be paid

9 at an advanced rate under such circumstances as the

10 chief immigration appeals judge may determine ap11 propriate.

12 ‘‘(4) TRANSITION.—Immigration trial judges

13 serving as immigration judges as of the effective

14 date of this Act shall be paid at the rate that cor15 responds to the amount of time, as provided under

16 paragraph (3)(A), that they have served as an immi17 gration judge, and in no case shall such an immigra18 tion trial judge be paid less than such judge was

19 paid prior to the effective date.

20 ‘‘(d) CHIEF IMMIGRATION TRIAL JUDGE.—In ac21 cordance with rules established by the appellate division

22 of the Immigration Court, the chief immigration trial

23 judge—

24 ‘‘(1) shall have responsibility for the adminis25 trative activities affecting immigration trial judges
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1 and shall have the power to appoint such adminis2 trative assistants, attorneys, clerks, and other per3 sonnel as may be needed for the purpose, and

4 ‘‘(2) may designate any immigration trial judge

5 in active service to hear and decide any cases de6 scribed in section 114.

7 ‘‘(e) REMOVAL FOR CAUSE.—Immigration trial

8 judges may be removed from office in the same manner

9 as immigration appeals judges may be removed under sec10 tion 112(g), except that any reference in that section to

11 the United States Court of Appeals for the Federal Circuit

12 shall be deemed a reference to the appellate division of

13 the Immigration Court.

14 ‘‘(f) AUTHORITY OF JUDGES.—Immigration trial

15 judges shall administer oaths, receive evidence, and inter16 rogate, examine, and cross-examine the alien and any wit17 nesses. Immigration trial judges may take depositions,

18 issue subpoenas requiring the attendance and testimony

19 of witnesses and the production of documentation or other

20 evidence from any place in the United States or any terri21 tory or possession thereof, order the taking of depositions,

22 and order responses to written interrogatories.

23 ‘‘(g) WITNESS FEES.—Witnesses (whether appearing

24 voluntarily or under subpoena) shall be paid the same fee
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1 and mileage allowance as are paid subpoenaed witnesses

2 in any other court in the United States.

3 ‘‘(h) EXPENSES FOR TRAVEL AND SUBSISTENCE.—

4 Immigration trial judges shall receive necessary traveling

5 expenses, and expenses actually incurred for subsistence

6 while traveling on duty and away from their designated

7 stations, subject to the same limitations in amount as are

8 now or may hereafter be applicable to the United States

9 Court of International Trade.

10 ‘‘JURISDICTION

11 ‘‘SEC. 114. (a) THE APPELLATE DIVISION.—

12 ‘‘(1) IN GENERAL.—The appellate division of

13 the Immigration Court shall hear and determine ap14 peals from—

15 ‘‘(A) final decisions of immigration trial

16 judges under this Act, other than a determina17 tion granting voluntary departure under section

18 244(e) within a period of at least 30 days if the

19 sole ground of appeal is that a greater period

20 of departure time should have been fixed;

21 ‘‘(B) decisions involving the imposition of

22 administrative fines and penalties under title II

23 of this Act, including mitigation thereof; and

24 ‘‘(C)(i) decisions on petitions filed in ac25 cordance with section 204, other than petitions

26 to accord preference status under section
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1 203(b) or petitions on behalf of a child de2 scribed in section 101(b)(1)(F), and

3 ‘‘(ii) decisions on requests for revalidations

4 and decisions revoking approval of such peti5 tions under section 205.

6 ‘‘(2) REVIEW OF DECISIONS.—(A) Either party

7 to a case may appeal an immigration trial judge’s

8 decision to the appellate division.

9 ‘‘(B) Appeals to the appellate division from

10 final orders of deportation or exclusion (including an

11 order respecting asylum contained in such an order)

12 shall be filed not later than 20 days after the date

13 of the final order.

14 ‘‘(C) The appellate division shall review the de15 cision of an immigration trial judge based solely

16 upon the trial record upon which the decision is

17 made, and the findings of fact in the judge’s order,

18 if supported by reasonable, substantial, and pro19 bative evidence on the record considered as a whole,

20 shall be conclusive.

21 ‘‘(3) BINDING DECISIONS.—A final decision of

22 the appellate division shall be binding on all immi23 gration trial judges, immigration officers, and con24 sular officers under this Act unless and until other25 wise modified or reversed by the Court of Appeals
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1 for the Federal Circuit or by the United States Su2 preme Court.

3 ‘‘(4) DECISIONS WITHIN 60 DAYS.—In a case in

4 which the appellate division is considering an appeal

5 of a decision of an immigration trial judge respect6 ing an application for asylum, the division shall

7 render its decision on the appeal not later than 60

8 days after the date the appeal is filed.

9 ‘‘(b) JURISDICTION OF TRIAL DIVISION.—

10 (1) IN GENERAL.—Immigration trial judges

11 shall hear and decide—

12 ‘‘(A) exclusion cases under section 236 and

13 360(c) and discretionary relief under section

14 212(c),

15 ‘‘(B) deportation cases and discretionary

16 relief cases under sections 212(c), 242, 242A,

17 243, and 244,

18 ‘‘(C) rescission of adjustment of status

19 cases under section 246,

20 ‘‘(D) claims for asylum raised in proceed21 ings before the judges and in applications re22 ferred to the Immigration Court for adjudica23 tion,

24 ‘‘(E) contested assessments of civil pen25 alties under section 274A,
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1 ‘‘(F) contested determinations relating to

2 bond, parole, or detention of an alien, and

3 ‘‘(G) such other cases arising under this

4 Act as the appellate division may provide by

5 regulation.

6 ‘‘(2) DUTIES OF TRIAL JUDGES.—In consider7 ing and deciding cases coming before them, immi8 gration trial judges shall record and receive evidence

9 and render findings of fact and conclusions of law,

10 shall determine all applications for discretionary re11 lief which may properly be raised in the proceedings,

12 and shall exercise such discretion conferred upon the

13 Attorney General by law as may be necessary for the

14 just and equitable disposition of cases coming before

15 such judges.

16 ‘‘RULES OF COURT

17 ‘‘SEC. 115. (a) RULES OF PRACTICE AND PROCE18 DURE.—The appellate division shall promulgate rules of

19 court, consistent with this Act, governing practice and pro20 cedure in the appellate division and the trial division. Only

21 such selected provisions of the Federal Rules of Evidence

22 and the Federal Rules of Civil Procedure as the appellate

23 division deems appropriate for inclusion in the rules of the

24 Immigration Court shall apply to proceedings in the Immi25 gration Court.
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1 ‘‘(b) REPRESENTATION.—(1) In any proceeding be2 fore the Immigration Court, each nongovernmental party

3 shall have the privilege of being represented (at no expense

4 to the Government) by such counsel, authorized to practice

5 in such proceedings, as the party shall choose.

6 ‘‘(2) The rules of the Immigration Court shall provide

7 for the admission of qualified attorneys and nonattorneys

8 to practice before the court.

9 ‘‘(c) CONTEMPT OF COURT.—Each division of the

10 Immigration Court shall have the power to punish by fine

11 or imprisonment, at its discretion, such contempt of its

12 authority, and none other, as—

13 ‘‘(1) misbehavior of any person in its presence

14 or so near thereto as to obstruct the administration

15 of justice,

16 ‘‘(2) misbehavior of any of its officers in their

17 official transactions, or

18 (3) disobedience or resistance to its lawful writ,

19 process, order, rule, decree, or command.

20 Each such division shall have such assistance in the carry21 ing out of its lawful writ, process, order, rule, decree, or

22 command as is available to a court of the United States.

23 ‘‘(d) FEES.—The Immigration Court may impose

24 fees for the adjudication of asylum applications and for
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1 judicial review and such other fees as it may provide for

2 under its rules and procedures.

3 ‘‘RETIREMENT OF JUDGES; SENIOR JUDGES

4 ‘‘SEC. 116. (a) RETIREMENT OF JUDGES.—(1) a

5 judge of the Immigration Court who attains the age of

6 70 shall be retired upon attaining such age.

7 ‘‘(2) A judge of the Immigration Court who has at8 tained the age of sixty-five may retire at any time after

9 serving as a judge for fifteen years or more.

10 ‘‘(3) A judge of the Immigration Court who is not

11 reappointed following the expiration of such judge’s term

12 of office may retire upon the completion of such term if—

13 ‘‘(A) the judge has served as a judge of the Im14 migration Court for fifteen years or more; and

15 ‘‘(B) not earlier than nine months preceding

16 the date of the expiration of such term of office and

17 not later than six months preceding such date, the

18 judge advised the President, in the case of an immi19 gration appeals judge, or the Chief Immigration Ap20 peals Judge, in the case of an immigration trial

21 judge, that the judge was willing to accept re22 appointment to the court.

23 ‘‘(4)(A) A judge of the Immigration Court who be24 comes permanently disabled from performing judicial du25 ties under this chapter shall be retired.
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1 ‘‘(B) A judge of the Immigration Court who becomes

2 permanently disabled from performing judicial duties

3 under this chapter shall certify to the President, or in the

4 case of an immigration trial judge to the Chief Immigra5 tion Appeals Judge, such disability in writing, and such

6 certificate of disability shall be signed by the chief judge

7 of the division. If the Chief Immigration Appeals Judge

8 retires for disability, such retirement shall not take effect

9 until concurred in by the President.

10 ‘‘(5) The provisions of subsection (d) (relating to

11 computation and payment of retired pay), subsection (e)

12 (relating to election to receive retired pay), subsection (g)

13 (relating to coordination with civil service retirement), and

14 subsection (i) (relating to revocation of an election to re15 ceive retired pay) of section 7447 of the Internal Revenue

16 Code of 1954 shall apply to judges within a division of

17 the Immigration Court in the same manner as such provi18 sions apply to judges of the United States Tax Court.

19 ‘‘(6) A person who has elected to receive retired pay

20 under the application of section 7447(e) of the Internal

21 Revenue Code of 1954 to judges of the Immigration Court

22 in accordance with paragraph (5) who thereafter—

23 ‘‘(A) accepts any civil office or employment

24 under the Government of the United States (other
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1 than the performance of judicial duties pursuant to

2 subsection (c)); or

3 ‘‘(B) provides legal services to a client in a case

4 arising under this chapter;

5 shall forfeit all rights to retired pay under the application

6 of such section of the Internal Revenue Code of 1954 for

7 periods during which such person accepts such office or

8 employment or provides such legal services.

9 ‘‘(7) In any determination of the length of service of

10 any person as a judge of the Immigration Court there

11 shall be included all periods of service (whether or not con12 secutive) during which the person served as a judge of the

13 Immigration Court under this chapter.

14 ‘‘(b)(1) Judges of the Immigration court may provide

15 annuities to their surviving spouses and dependent chil16 dren in the same manner and subject to the same terms

17 and conditions as judges of the United States Tax Court

18 provide annuities to their surviving spouse and dependent

19 children under section 7448 of the Internal Revenue Code

20 of 1986.

21 ‘‘(2) Amounts deducted and withheld from the sala22 ries of judges of the Immigration Court in the application

23 of section 7448(c) of the Internal Revenue Code of 1954

24 to such judges in accordance with paragraph (1) shall be

25 deposited in the Treasury to the credit of a fund to be
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1 known as the ‘Immigration Court judges survivors annuity

2 fund’.

3 ‘‘(c) SENIOR JUDGES.—(1) Any immigration appeals

4 or trial judge of the Immigration Court who has retired

5 from regular active service under subchapter III of chap6 ter 83 of title 5, United States Code, shall be known and

7 designated as a senior immigration appeals or trial judge

8 and may perform duties as an immigration appeals or trial

9 judge when recalled pursuant to paragraph (2).

10 ‘‘(2) The chief immigration appeals judge may recall

11 any senior immigration appeals or trial judge, with such

12 judge’s consent, to perform such duties as an immigration

13 appeals or trial judge and for such period of time as such

14 chief judge may specify.

15 ‘‘(3) Any senior immigration appeals judge perform16 ing duties pursuant to this section shall not be counted

17 as an immigration appeals judge for purposes of the num18 ber of judgeships authorized by subsection (a).

19 ‘‘(4) Any senior immigration appeals or trial judge,

20 while performing duties pursuant to this section, shall be

21 paid the same allowances for travel and other expenses

22 as an immigration appeals or trial judge in active service.

23 Such senior immigration appeals or trial judge shall also

24 receive from the Immigration Court supplemental pay in

25 an amount sufficient, when added to his civil service re-
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1 tirement annuity, to equal the salary of an immigration

2 appeals or trial judge in active service for the same period

3 or periods of time. Such supplemental pay shall be paid

4 in the same manner as the salary of an immigration ap5 peals or trial judge.’’.

6 (b) CONFORMING AMENDMENTS TO THE TABLE OF

7 CONTENTS.—The table of contents is amended—

8 (1) by inserting before the item relating to section

9 101 the following:

‘‘CHAPTER 1—DEFINITIONS AND POWERS’’,

10 and

11 (2) by inserting after the item relating to sec12 tion 106 the following:

‘‘CHAPTER 2—UNITED STATES IMMIGRATION COURT

‘‘Sec. 111. Establishment of Immigration Court.

‘‘Sec. 112. Appellate division.

‘‘Sec. 113. Trial division.

‘‘Sec. 114. Jurisdiction.

‘‘Sec. 115. Rules of Court.

‘‘Sec. 116. Retirement of Judges; Senior Judges.’’.

13 (c) EFFECTIVE DATES AND TRANSITION.—

14 (1) IN GENERAL.—(A) Except as otherwise pro15 vided in this subsection, the amendments made by

16 this section take effect on the date of enactment of

17 this Act.

18 (B) Section 113(c) of chapter 2 as added by

19 this section shall take effect 90 days after the date

20 of enactment of this Act.
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1 (2) TIMETABLE FOR ESTABLISHMENT OF

2 COURT.—(A) The President shall nominate the chief

3 immigration appeals judge and other immigration

4 appeals judges of the appellate division of the United

5 States Immigration Court (hereinafter in this sub6 section referred to as the ‘‘Court’’) not later than 14

7 days after the date of the enactment of this Act.

8 (B) The chief immigration appeals judge, in

9 consultation with the Attorney General, shall des10 ignate a date, not later than 30 days after the chief

11 immigration appeals judge and a majority of the im12 migration appeals judges are appointed, on which

13 the appellate division shall assume the present func14 tions of the Board of Immigration Appeals (under

15 existing rules and regulations).

16 (C) Promptly after the chief immigration ap17 peals judge is appointed, such chief judge shall ap18 point immigration trial judges pursuant to section

19 113(a)(2).

20 (D) The appellate division of the Court shall provide

21 promptly for establishment of interim final rules of

22 practice and procedure which will apply to the Court

23 and immigration trial judges under the immigration

24 and Nationality Act after the transition date des25 ignated under paragraph (3).
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1 (3) HEARING TRANSITION DATE.—(A) In order

2 to provide for the orderly transfer of proceedings

3 from the existing system to the Court, the chief im4 migration appeals judge, in consultation with the At5 torney General, shall designate a transition date, to

6 be not later than 45 days after the date interim final

7 rules of practice and procedure are established under

8 paragraph (2)(C).

9 (B) During the period before the transition

10 date, any proceeding or hearing under the Immigra11 tion and Nationality Act which may be conducted by

12 a special inquiry officer or immigration judge may

13 be conducted by an individual appointed as an immi14 gration trial judge in accordance with all the rules

15 and procedures otherwise applicable to the conduct

16 of such proceeding or hearing.

17 (4) CONTINUATION OF AUTHORITY.—Individ18 uals acting as special inquiry officers or immigration

19 judges on the date of enactment of this Act and on

20 the transition date may (without regard to other

21 provisions of law) continue to conduct proceedings or

22 hearings under the Immigration and Nationality Act

23 after such transition date during the period ending

24 two years after the date of the enactment of this

25 Act.
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1 (5) CONTINUATION OF RIGHTS.—(A) The en2 actment of this Act shall not result in any loss of

3 rights or powers, interruption of jurisdiction, or

4 prejudice to matters pending in the Board of Immi5 gration Appeals or before special inquiry officers or

6 immigration judges on the day before this Act takes

7 effect.

8 (B) Under rules established by the appellate di9 vision of the United States Immigration Court, with

10 respect to deportation and exclusion cases and asy11 lum applications pending as of the transition date,

12 the appellate division shall be deemed to be a con13 tinuation of the Board of Immigration Appeals and

14 immigration trial judges shall be deemed a continu15 ation of special inquiry officers or immigration

16 judges for the purposes of effectuating the continu17 ation of all existing powers, rights, and jurisdiction.

18 SEC. 3. JUDICIAL REVIEW OF IMMIGRATION COURT DECI19 SIONS.

20 (a) IN GENERAL.—Section 106(a) is amended—

21 (1) by striking ‘‘the judicial review’’ and insert22 ing ‘‘the review’’,

23 (2) by striking ‘‘to administrative proceedings’’

24 and inserting ‘‘to proceedings’’,
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1 (3) in paragraph (1), by striking ‘‘90 days’’ and

2 inserting ‘‘30 days’’ and by striking ‘‘,or, in the

3 case’’ and all that follows through ‘‘of such order’’,

4 (4) by amending paragraph (2) to read as fol5 lows:

6 ‘‘(2) a petition for review shall be filed with the

7 Court of Appeals for the Federal Circuit;’’ and

8 (5) by amending paragraph (4) to read as fol9 lows:

10 ‘‘(4) except as provided in paragraph (5)(B)—

11 ‘‘(A) the Court of Appeals shall decide the

12 petition only on the record of the Immigration

13 Court on which the order of deportation is

14 based,

15 ‘‘(B) the Immigration Court’s findings of

16 fact are conclusive if supported by reasonable,

17 substantial, and probative evidence on the

18 record considered as a whole, and

19 ‘‘(C) a decision that an alien is not eligible

20 for admission to the United States is conclusive

21 unless manifestly contrary to law.’’.

22 (b) ASYLUM.—Section 106 is amended by adding at

23 the end the following new subsections:

24 ‘‘(f) JUDICIAL REVIEW OF ORDERS UNDER SECTION

25 208.—To the extent that an order relates to a determina-
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1 tion on an application for asylum, the Court of Appeals

2 shall only have jurisdiction to review (1) whether the juris3 diction of the Immigration Court was properly exercised,

4 (2) whether the asylum determination was made in accord5 ance with applicable laws and regulations, (3) the con6 stitutionality of the laws and regulations pursuant to

7 which the determination was made, and (4) whether the

8 decision was arbitrary or capricious.

9 ‘‘(g)(1)(A) No court shall have jurisdiction to enter10 tain a petition relating to a determination concerning asy11 lum under section 208 except the United States Court of

12 Appeals for the Federal Circuit.

13 ‘‘(B) No application for habeas corpus shall be enter14 tained and no extraordinary writ shall be directed to any

15 government official or employee and no injunctive or de16 claratory relief shall be granted with respect to an immi17 gration matter (as defined in subparagraph (E)), other

18 than by the Immigration Court, the United States Court

19 of Appeals for the Federal Circuit, or the Supreme Court.

20 ‘‘(C) The Court of Appeals for the Federal Circuit

21 shall have exclusive jurisdiction to review all Constitu22 tional issues (including habeas corpus and writs for other

23 extraordinary relief) with respect to immigration matters

24 by writ of certiorari filed no later than 30 days from the
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1 date of the final order of the appellate division of the Im2 migration Court relating to that matter.

3 ‘‘(D) In the case of a writ of certiorari filed under

4 this section which the Court finds that a question of fact

5 is presented—

6 ‘‘(i) if a determination with respect to that fact

7 was previously made by the Attorney General or the

8 Immigration Court, such determination shall be con9 clusive if supported in the record by reasonable, sub10 stantial, and probative evidence on the record con11 sidered as a whole, and

12 ‘‘(ii) if no such determination was made, the

13 Court may provide, in accordance with rules estab14 lished by the Court in cooperation with the Immigra15 tion Court, for a hearing before an immigration trial

16 judge to make the appropriate findings of fact.

17 ‘‘(E) As used in this paragraph, the term ‘immigra18 tion matter’ means a determination under this Act re19 specting deportation, exclusion, or asylum (or the custody

20 or detention of an alien associated therewith) or any mat21 ter reviewable by the appellate division of the Immigration

22 Court under section 114.

23 ‘‘(2) Notwithstanding any other provision of law, no

24 court of the United States shall have jurisdiction to review

25 determinations of immigration trial judges or of the appel-
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1 late division of the Immigration Court respecting the re2 opening or reconsideration of deportation or exclusion pro3 ceedings or asylum determinations outside of such pro4 ceedings, the reopening of an application for asylum be5 cause of changed circumstances, or the Attorney General’s

6 denial of a stay of execution of a deportation order.’’.

7 (c) EXPANDING JURISDICTION OF THE UNITED

8 STATES COURT OF APPEALS FOR THE FEDERAL CIR9 CUIT.—(1) Section 1295(a) of title 28, United States Code

10 is amended—

11 (A) by striking out ‘‘and’’ at the end of para12 graph (9),

13 (B) by striking out the period at the end of

14 paragraph (1) and inserting in lieu thereof ‘‘; and’’,

15 and

16 (C) by adding at the end the following new

17 paragraph:

18 ‘‘(11) by writ of certiorari of an appeal under

19 section 106 of the Immigration and Nationality Act

20 and to entertain and grant applications for writs of

21 habeas corpus and petitions for relief respecting im22 migration matters pursuant to such section.’’.

23 (2) Section 2241(a) of such title is amended by strik24 ing out ‘‘Writs’’ and inserting in lieu thereof ‘‘Except as

25 provided in section 1295(a)(11) of this title, writs’’.
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1 (d) EFFECTIVE DATE.—The amendments made by

2 this section shall take effect on the hearing transition date

3 designated pursuant to section 2(c)(3) of this Act.

4 SEC. 4. REFORM OF ASYLUM.

5 (a) ASYLUM REFORM.—Section 208 (8 U.S.C. 1158)

6 is amended to read as follows:

7 ‘‘ASYLUM

8 SEC. 208. (a) AUTHORITY TO APPLY FOR ASYLUM.—

9 ‘‘(1) IN GENERAL.—Any alien who is physically

10 present in the United States or who arrives in the

11 United States (whether or not at a designated port

12 of entry and including an alien who is brought to the

13 United States after having been interdicted in inter14 national or United States water), irrespective of

15 such alien’s status, may apply for asylum in accord16 ance with this section or, where applicable, section

17 235(b).

18 ‘‘(2) EXCEPTIONS.—

19 ‘‘(A) SAFE THIRD COUNTRY.—Paragraph

20 (1) shall not apply to an alien if the Attorney

21 General determines that the alien may be re22 moved, including pursuant to a bilateral or mul23 tilateral agreement, to a country (other than

24 the country of the alien’s nationality or, in the

25 case of an alien having no nationality, the coun26 try of the alien’s last habitual residence) in
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1 which the alien’s life or freedom would not be

2 threatened on account of race, religion, nation3 ality, membership in a particular social group,

4 or political opinion, and where the alien would

5 have access to a full and fair procedure for de6 termining a claim to asylum or equivalent tem7 porary protection, unless the Attorney General

8 finds that it is in the public interest for the

9 alien to receive asylum in the United States.

10 ‘‘(B) TIME LIMIT.—Subject to subpara11 graph (D), paragraph (1) shall not apply to an

12 alien unless the alien demonstrates by clear and

13 convincing evidence that the application has

14 been filed within 180 days after the date of the

15 alien’s arrival in the United States.

16 ‘‘(C) PREVIOUS ASYLUM APPLICATIONS.—

17 Subject to subparagraph (D), paragraph (1)

18 shall not apply to an alien if the alien pre19 viously has applied for asylum and had such ap20 plication denied.

21 ‘‘(D) CHANGED OR EXCEPTIONAL CIR22 CUMSTANCES.—An application for asylum of an

23 alien may be considered, notwithstanding sub24 paragraphs (B) and (C), if the alien dem25 onstrates to the satisfaction of the Attorney
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1 General either the existence of fundamentally

2 changed circumstances that materially affect

3 the applicant’s eligibility for asylum or extraor4 dinary circumstances relating to the delay in fil5 ing an application within the period specified in

6 subparagraph (B).

7 ‘‘(3) LIMITATION ON JUDICIAL REVIEW.—A de8 termination of the Attorney General under para9 graph (2) is subject to review by the Immigration

10 Court. A final decision by the Immigration Court re11 garding such a determination is not subject to fur12 ther judicial review.

13 ‘‘(b) CONDITIONS FOR GRANTING ASYLUM.—

14 ‘‘(1) IN GENERAL.—The Attorney General may

15 grant asylum to an alien who has applied for asylum

16 in accordance with the requirements and procedures

17 established under this section whom the Immigration

18 Court or an asylum officer determines is a refugee

19 within the meaning of section 101(a)(42)(A).

20 ‘‘(2) EXCEPTIONS.—

21 ‘‘(A) IN GENERAL.—Paragraph (1) shall

22 not apply to an alien if the Immigration Court

23 finds that—

24 ‘‘(i) the alien ordered, incited, as25 sisted, or otherwise participated in the per-
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1 secution of any person on account of race,

2 religion, nationality, membership in a par3 ticular social group, or political opinion;

4 ‘‘(ii) the alien, having been convicted

5 by a final judgment of a particularly seri6 ous crime, constitutes a danger to the com7 munity of the United States;

8 ‘‘(iii) there are serious reasons for be9 lieving that the alien has committed a seri10 ous nonpolitical crime outside the United

11 States prior to the arrival of the alien in

12 the United States;

13 ‘‘(iv) there are reasonable grounds for

14 regarding the alien as a danger to the se15 curity of the United States;

16 ‘‘(v) the alien is excludable under sub17 clause (I), (II), (III), or (IV) of section

18 212(a)(3)(B)(i) or deportable under sec19 tion 241(a)(4)(B) (relating to terrorist ac20 tivity), unless, in the case only of an alien

21 excludable under subclause (IV) of section

22 212(a)(3)(B)(i), the Attorney General de23 termines, in the Attorney General’s discre24 tion, that there are not reasonable grounds
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1 for regarding the alien as a danger to the

2 security of the United States; or

3 ‘‘(vi) the alien was firmly resettled in

4 another country prior to arriving in the

5 United States.

6 ‘‘(B) SPECIAL RULES.—

7 ‘‘(i) CONVICTION OF AGGRAVATED

8 FELONY.—For purposes of clause (ii) of

9 subparagraph (A), an alien who has been

10 convicted of an aggravated felony shall be

11 considered to have been convicted of a par12 ticularly serious crime.

13 ‘‘(ii) OFFENSES.—The Attorney Gen14 eral may designate by regulation offenses

15 that will be considered to be a crime de16 scribed in clause (ii) or (iii) of subpara17 graph (A).

18 ‘‘(C) ADDITIONAL LIMITATIONS.—The At19 torney General may by regulation establish ad20 ditional limitations and conditions, consistent

21 with this section, under which an alien shall be

22 ineligible for asylum under paragraph (1).

23 ‘‘(D) JUDICIAL REVIEW.—There shall be

24 no judicial review of a determination of the At25 torney General under subparagraph (A)(v).
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1 ‘‘(3) TREATMENT OF SPOUSE AND CHIL2 DREN.—A spouse or child (as defined in subpara3 graphs (A), (B), (C), (D), or (E) of section

4 101(b)(1)) of an alien who is granted asylum under

5 this subsection may, if not otherwise eligible for asy6 lum under this section, be granted the same status

7 as the alien if accompanying, or following to join,

8 such alien.

9 ‘‘(c) ASYLUM STATUS.—

10 ‘‘(1) IN GENERAL.—In the case of an alien

11 granted asylum under subsection (b), the Attorney

12 General—

13 ‘‘(A) shall not remove or return the alien

14 to the alien’s country of nationality or, in the

15 case of a person having no nationality, the

16 country of the alien’s last habitual residence;

17 ‘‘(B) shall authorize the alien to engage in

18 employment in the United States and provide

19 the alien with appropriate endorsement of that

20 authorization; and

21 ‘‘(C) may allow the alien to travel abroad

22 with the prior consent of the Attorney General.

23 ‘‘(2) TERMINATION OF ASYLUM.—Asylum

24 granted under subsection (b) does not convey a right

25 to remain permanently in the United States, and
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1 may be terminated if the Attorney General asserts

2 and the Immigration Court finds that—

3 ‘‘(A) the alien no longer meets the condi4 tions described in subsection (b)(1) owing to a

5 fundamental change in circumstances;

6 ‘‘(B) the alien meets a condition described

7 in subsection (b)(2);

8 ‘‘(C) the alien may be deported, including

9 pursuant to a bilateral or multilateral agree10 ment, to a country (other than the country of

11 the alien’s nationality or, in the case of an alien

12 having no nationality, the country of the alien’s

13 last habitual residence) in which the alien’s life

14 or freedom would not be threatened on account

15 of race, religion, nationality, membership in a

16 particular social group, or political opinion, and

17 where the alien is eligible to receive asylum or

18 equivalent temporary protection;

19 ‘‘(D) the alien has voluntarily availed him20 self or herself of the protection of the alien’s

21 country of nationality or, in the case of an alien

22 having no nationality, the alien’s country of last

23 habitual residence, by returning to such country

24 with permanent resident status or the reason25 able possibility of obtaining such status with
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1 the same rights and obligations pertaining to

2 other permanent residents of that country; or

3 ‘‘(E) the alien has acquired a new nation4 ality and enjoys the protection of the country of

5 his or her new nationality.

6 ‘‘(3) REMOVAL WHEN ASYLUM IS TERMI7 NATED.—An alien described in paragraph (2) is sub8 ject to any applicable grounds of exclusion or deport9 ability under section 212(a) and 241(a), and the

10 alien’s deportation or return shall be directed by the

11 Attorney General in accordance with section 242 or

12 242A.

13 ‘‘(d) ASYLUM PROCEDURE.—

14 ‘‘(1) APPLICATIONS.—The Attorney General

15 shall establish a procedure for the filing and consid16 eration of asylum applications.

17 ‘‘(A) The Attorney General may require

18 applicants to submit fingerprints and a photo19 graph at such time and in such manner to be

20 determined by regulation by the Attorney Gen21 eral.

22 ‘‘(B) Except for asylum claims first raised

23 in a proceeding before an Immigration trial

24 judge, an asylum officer shall review each asy25 lum application and interview applicants.
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1 ‘‘(i) If the asylum officer determines

2 that an applicant is beyond a reasonable

3 doubt eligible for asylum, the application

4 shall be referred directly to the Attorney

5 General.

6 ‘‘(ii) If the asylum officer determines

7 that an applicant is not beyond a reason8 able doubt eligible for asylum, the applica9 tion shall be referred to the Immigration

10 Court for adjudication of the applicant’s

11 claim to be a refugee within the meaning

12 of section 101(a)(42)(A).

13 ‘‘(iii) The asylum officer shall prepare

14 a written record of a determination under

15 clause (i) or (ii). Such record shall include

16 a summary of the material facts as stated

17 by the applicant, such additional facts (if

18 any) relied upon by the officer, and the of19 ficer’s analysis of why, in light of such

20 facts, the alien has or has not established

21 eligibility beyond a reasonable doubt for

22 asylum. A copy of the officer’s interview

23 notes shall be attached to the written sum24 mary.
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1 ‘‘(iv) In the absence of exceptional cir2 cumstance, the administrative actions re3 garding an asylum application shall be

4 completed not later than 45 days after the

5 date an application is filed.

6 ‘‘(v) The Attorney General shall re7 port to Congress annually regarding the

8 number and nature of applications ap9 proved under clause (i).

10 ‘‘(C) The Attorney General shall check the

11 identify of each applicant against all appro12 priate records or databases maintained by the

13 Attorney General and by the Secretary of State,

14 including the Automated Visa Lookout System,

15 to determine any grounds on which the alien

16 may be excludable or deportable from the Unit17 ed States, or ineligible to apply for or be grant18 ed asylum.

19 ‘‘(D) An applicant for assylum is not enti20 tled to employment authorization, but such au21 thorization may be provided under regulation by

22 the Attorney General. An applicant who is not

23 otherwise eligible for employment authorization

24 shall not be granted such authorization prior to
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1 180 days after the date of filing of the applica2 tion for asylum.

3 ‘‘(E) The Attorney General may impose

4 fees for the consideration of an application for

5 asylum, for employment authorization under

6 this section, and for adjustment of status under

7 section 209(b). Such fees shall not exceed the

8 Attorney General’s costs in processing the ap9 plications. The Attorney General may provide

10 for the assessment and payment of such fees

11 over a period of time or by installments. Noth12 ing in this paragraph shall be construed to re13 quire the Attorney General to charge fees for

14 processing services provided to asylum appli15 cants, or to limit the authority of the Attorney

16 General to set adjudication and naturalization

17 fees in accordance with section 286(m).

18 ‘‘(2) NOTICE OF PRIVILEGE OF COUNSEL AND

19 CONSEQUENCES OF FRIVOLOUS APPLICATION.—At

20 the time of filing an application for asylum, the At21 torney General shall—

22 ‘‘(A) advise the alien of the privilege of

23 being represented by counsel and of the con24 sequences, under paragraph (6), of knowingly

25 filing a frivolous application for asylum; and
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1 ‘‘(B) provide the alien a list of persons

2 (updated not less often than quarterly) who

3 have indicated their availability to represent

4 aliens in asylum proceedings on a pro bono

5 basis. Such lists are to be compiled and updated

6 by the Immigration Court.

7 ‘‘(3) ADJUDICATION OF ASYLUM APPLICA8 TIONS.—

9 ‘‘(A) DECISION BY IMMIGRATION TRIAL

10 JUDGE.—In the absence of exceptional cir11 cumstances, a final decision by an immigration

12 trial judge on an asylum application referred to

13 the Immigration Court by an asylum officer

14 shall be issued not later than 45 days after the

15 application has been referred to the Immigra16 tion Court.

17 ‘‘(B) APPEAL TO APPELLATE DIVISION.—

18 Any appeal to the appellate division shall be

19 filed within 20 days of a decision granting or

20 denying asylum, or within 20 days of the com21 pletion of deportation or exclusion proceedings

22 before an immigration trial judge under section

23 236 or 242, whichever is later.

24 ‘‘(C) SANCTION FOR FAILURE TO AP25 PEAR.—In the case of an applicant for asylum
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1 who fails without prior authorization or in the

2 absence of exceptional circumstances to appear

3 for an interview under paragraph (1)(B) or a

4 hearing before the Immigration Court, includ5 ing a hearing under section 236 or 242, the ap6 plication may be dismissed or the applicant may

7 be otherwise sanctioned for such failure.

8 ‘‘(4) ADDITIONAL REGULATORY CONDITIONS.—

9 The Attorney General and the Immigration Court

10 may provide by regulation for any other conditions

11 or limitations on the consideration of an application

12 for asylum not inconsistent with this Act.

13 ‘‘(5) FRIVOLOUS APPLICATIONS.—If the Immi14 gration Court determines that an alien has know15 ingly made a frivolous application for asylum and

16 the alien has received the notice under paragraph

17 (4)(A), the alien shall be permanently ineligible for

18 any benefits under this Act, effective as of the date

19 of a final determination on such application.

20 ‘‘(7) NO PRIVATE RIGHT OF ACTION.—Nothing

21 in this subsection shall be construed to create any

22 substantive or procedural right or benefit that is le23 gally enforceable by any party against the United

24 States or its agencies or officers or any other per25 son.’’.
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1 (b) CONFORMING AND CLERICAL AMENDMENTS.—

2 (1) The item in the table of contents relating

3 to section 208 is amended to read as follows:

‘‘SEC. 208. Asylum.’’.

4 (2) Section 104(d)(1)(A) of the Immigration

5 Act of 1990 (Public Law 101–649) is amended by

6 striking ‘‘208(b)’’ and inserting ‘‘208’’.

7 (c) EFFECTIVE DATE.—The amendment made by

8 subsection (a) shall apply to applications for asylum filed

9 on or after the first day of the first month beginning more

10 than 180 days after the date of enactment of this Act.

11 SEC. 5. CONFORMING AMENDMENTS.

12 (a) SECTION 209.—Section 209(a)(2) (8 U.S.C.

13 1159(a)(2)) is amended by striking ‘‘a special inquiry offi14 cer’’ and inserting ‘‘an immigration trial judge’’.

15 (b) SECTION 234.—Section 234 (8 U.S.C. 1224) is

16 amended by striking ‘‘special inquiry officers’’ and insert17 ing ‘‘Immigration Court’’.

18 (c) SECTION 235.—(1) Subsection (a) of section 235

19 (8 U.S.C. 1225) is amended—

20 (A) by striking ‘‘in regard to special inquiry of21 ficers’’ in the first sentence;

22 (B) by striking ‘‘, including special inquiry offi23 cers,’’ in the fourth sentence;
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1 (C) by striking ‘‘, including special inquiry offi2 cer,’’ and ‘‘and special inquiry officers’’ in the sixth

3 sentence; and

4 (D) by striking ‘‘or special inquiry officer’’ each

5 place it appears in the seventh sentence.

6 (2) Subsection (b) of such section is amended—

7 (A) by striking ‘‘for further inquiry to be con8 ducted by a special inquiry officer’’ and inserting

9 ‘‘for a hearing before the Immigration Court’’, and

10 (B) by striking ‘‘before a special inquiry officer

11 for further inquiry’’ and inserting ‘‘before the Immi12 gration Court for a hearing’’.

13 (3) Subsection (c) of such section is amended—

14 (A) by striking ‘‘the special inquiry officer’’ and

15 inserting ‘‘the Immigration Court’’,

16 (B) by striking ‘‘before either of such officers’’

17 and inserting ‘‘or hearing’’,

18 (C) by striking ‘‘no further inquiry by a special

19 inquiry officer’’ and inserting ‘‘no further proceed20 ings by the Immigration Court’’,

21 (D) by striking ‘‘such an inquiry or further in22 quiry’’ and inserting ‘‘an inquiry’’,

23 (E) by striking ‘‘any inquiry or further inquiry

24 by a special inquiry officer’’ and inserting ‘‘any
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1 hearing or further proceedings before the Immigra2 tion Court’’, and

3 (F) by striking ‘‘an inquiry before a special in4 quiry officer’’ and inserting ‘‘any proceedings before

5 the Immigration Court’’.

6 (d) SECTION 236.—(1) Subsection (a) of section 236

7 (8 U.S.C. 1226) is amended to read as follows:

8 ‘‘(a) An immigration trial judge shall conduct pro9 ceedings under this section, administer oaths, present and

10 receive evidence, and interrogate, examine, and cross-ex11 amine the alien or witnesses. Such judge shall have au12 thority in any case to determine whether an arriving alien

13 who has been detained for a hearing under paragraph

14 (1)(C)(ii), (2), or (3) of section 235(b) shall be allowed

15 to enter or shall be excluded and deported. The decision

16 of such judge shall be based only on the evidence produced

17 at the hearing. No immigration trial judge shall conduct

18 a proceeding in any case under this section in which such

19 judge participated in prosecuting functions. Proceedings

20 before an immigration trial judge under this section shall

21 be conducted in accordance with this section and such

22 rules as the Immigration Court shall promulgate, and

23 shall be the sole and exclusive procedure for determining

24 admissibility of a person to the United States under the

25 provisions of this section. At such hearing, which shall be
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1 kept separate and apart from the public, the alien may

2 have one friend or relative present, under such conditions

3 as may be prescribed by the Immigration Court. A com4 plete record of the proceedings and of all testimony and

5 evidence produced at such hearing shall be kept.’’.

6 (2) Subsection (b) of such section is amended to read

7 as follows:

8 ‘‘(b)(1) From a decision of an immigration trial judge

9 excluding an alien, such alien may take a timely appeal

10 to the appellate division of the Immigration Court in ac11 cordance with chapter 2 of title I, and any such alien shall

12 be advised of his right to take such appeal. No appeal may

13 be taken from an exclusion under section 235(c), and ap14 peals of exclusions under section 235(b)(1) are governed

15 exclusively by section 106(e).

16 ‘‘(2) From a decision of the immigration trial judge

17 to admit an alien, the immigration officer in charge at

18 the port where the hearing held may take a timely appeal

19 to the appellate division of the Immigration Court, in ac20 cordance with chapter 2 of title I.

21 ‘‘(3) Review by the appellate division shall be based

22 only on the evidence presented before the trial judge, and

23 the findings of fact by the trial judge are conclusive unless

24 any reasonable adjudicator would be compelled to conclude

25 to the contrary.
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1 ‘‘(4) During the pendency of an appeal from a deci2 sion of an immigration trial judge the alien shall be

3 deemed to be an applicant for admission to the United

4 States regardless of whether the alien is in or outside the

5 United States.

6 ‘‘(5) In exceptional cases, while a decision on an ap7 peal is pending, an alien in the United States may, upon

8 request to the Service, be granted permission to depart

9 from and return to the United States within a period of

10 time not to exceed sixty days. Such temporary departure

11 and return shall not have any effect on the alien’s applica12 tion and shall not relieve from liability the carrier that

13 brought the alien to the United States at the time the

14 alien was held for exclusion proceedings.’’.

15 (3) Subsection (c) of such section is amended—

16 (A) by striking ‘‘a special inquiry officer’’ and

17 inserting ‘‘an immigration trial judge’’, and

18 (B) by striking ‘‘the Attorney General’’ and in19 serting ‘‘the appellate division of the Immigration

20 Court’’.

21 (4) Subsection (d) of such section is amended—

22 (A) by striking ‘‘the special inquiry officer’’ and

23 inserting ‘‘the immigration trial judge’’, and

24 (B) by striking ‘‘a special inquiry officer’’ and

25 inserting ‘‘an immigration trial judge’’.
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1 (e) SECTION 242.—(1) Subsection (a) of section 242

2 (8 U.S.C. 1252) is amended—

3 (A) by amending the fourth sentence of para4 graph (1) to read as follows: ‘‘Upon application by

5 the alien, the trial division of the Immigration Court

6 may review and revise a determination by the Attor7 ney General regarding the detention or release of

8 any alien or the grant, revocation, or denial of bond

9 or parole upon a conclusive showing that the Attor10 ney General is not proceeding with reasonable dis11 patch to initiate a deportation proceeding or is oth12 erwise unreasonably delaying a deportation proceed13 ing. A decision by the trial division under this para14 graph may be appealed to the appellate division by

15 either the alien or the Attorney General, and the de16 termination of the Attorney General shall remain ef17 fective pending such an appeal. A decision by the ap18 pellate division is not subject to further judicial re19 view.’’,

20 (B) by amending paragraph (2)(B) to read as

21 follows:

22 ‘‘(B) The Immigration Court may order the Attorney

23 General to release from custody any lawfully admitted

24 alien who has been convicted of an aggravated felony, ei25 ther before or after a determination of deportability, only
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1 if the alien demonstrates to the satisfaction of the Court

2 that such alien is not a threat to the community and that

3 the alien is likely to appear before any scheduled hear4 ings.’’.

5 (2) Subsection (b) of such section is amended—

6 (A) by striking ‘‘a special inquiry officer and in7 serting ‘‘an immigration trial judge’’ each place it

8 appears in the first, second, and seventh sentences,

9 (B) by striking ‘‘as authorized by the Attorney

10 General,’’,

11 (C) by striking ‘‘in which case the Attorney

12 General shall prescribe necessary and proper safe13 guards for the rights and privileges of such alien’’

14 and inserting ‘‘in which case necessary and proper

15 safeguards for the rights and privileges of the alien

16 shall be extended in accordance with rules promul17 gated by the appellate division of the Immigration

18 Court’’,

19 (D) by striking ‘‘the special inquiry officer’’ and

20 inserting ‘‘the immigration trial judge’’ in the third

21 sentence,

22 (E) by striking ‘‘In any case’’ and all that fol23 lows through ‘‘additional immigration officer’’ and

24 inserting ‘‘An immigration officer’’ and by striking
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1 ‘‘such additional immigration officer’’ and inserting

2 ‘‘such immigration officer’’ in the fourth sentence,

3 (F) by striking the fifth sentence,

4 (G) by striking ‘‘No special inquiry officer’’ and

5 inserting ‘‘No immigration trial judge’’ and by strik6 ing ‘‘(except as provided in this subsection)’’ in the

7 sixth sentence,

8 (H) by striking ‘‘such regulations,’’ and all that

9 follows through ‘‘Attorney General’’ and inserting

10 ‘‘such rules, not inconsistent with this Act, as the

11 appellate division of the Immigration Court’’ in the

12 seventh sentence,

13 (I) by striking ‘‘Such regulations’’ and inserting

14 ‘‘Such rules’’ in the eighth sentence, and

15 (J) by striking ‘‘the Attorney General’’ and in16 serting ‘‘the Immigration Court’’ in the tenth sen17 tence.

18 (3) Subsection (c) of such section is amended—

19 (A) by striking ‘‘under administrative processes

20 is made’’ and inserting ‘‘is issued by the Immigra21 tion Court’’,

22 (B) by striking ‘‘judicial review is had’’ and

23 ‘‘court’’ and inserting ‘‘an appeal is taken to the

24 Court of Appeals for the Federal Circuit’’ and
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1 ‘‘Court of Appeals’’, respectively, in the first sen2 tence, and

3 (C) by amending the second sentence to read as

4 follows: ‘‘Upon application by the alien, the trial di5 vision of the Immigration Court may review and re6 vise a determination by the Attorney General re7 garding the detention or release of any alien or the

8 grant, revocation, or denial of bond or parole during

9 such six-month period upon a conclusive showing

10 that the Attorney General is not proceeding with

11 reasonable dispatch to effect such alien’s departure

12 from the United States within such six-month pe13 riod. A decision by the trial division under this para14 graph may be appealed to the appellate division by

15 either the alien or the Attorney General, and the de16 termination of the Attorney General shall remain ef17 fective pending such an appeal. A decision by the ap18 pellate division is not subject to further judicial re19 view.’’.

20 (4) Subsection (e) of such section is amended—

21 (A) by striking ‘‘under administrative proc22 esses’’ and all that follows through ‘‘of the court’’

23 and inserting ‘‘is issued by the Immigration Court,

24 or, if an appeal is taken to the Court of Appeals for
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1 the Federal Circuit, then from the date of the final

2 order of the Court of Appeals’’, and

3 (B) by striking ‘‘: Provided further,’’ and all

4 that follows through ‘‘under the immigration laws.’’

5 (5) Subsection (f) of such section is amended—

6 (A) by striking ‘‘Attorney General’’ and insert7 ing ‘‘Immigration Court’’, and

8 (B) by striking ‘‘on any ground’’ and all that

9 follows through ‘‘in subsection (e),’’.

10 (6) Subsection (i) of such section is amended by strik11 ing ‘‘shall begin’’ and inserting ‘‘shall initiate and the Im12 migration Court shall conduct’’.

13 (f) SECTION 242A.—(1) Subsection (a) of section

14 242A (8 U.S.C. 1252a) is amended—

15 (A) in paragraph (1) by striking ‘‘Attorney

16 General’’ and inserting ‘‘Immigration Court’’,

17 (B) in paragraph (3)(A) by striking ‘‘shall pro18 vide for’’ and all that follows through ‘‘appeals

19 thereof,’’ and inserting ‘‘shall initiate and the Immi20 gration Court shall, to the extent possible, complete

21 deportation proceedings and appeals’’, and

22 (C) in paragraph (4) by striking subparagraph

23 (A) and striking ‘‘(B)’’.

24 (2) Subsection (b) of such section is amended—
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1 (A) in paragraph (1) by striking ‘‘Attorney

2 General’’ and inserting ‘‘Immigration Court’’,

3 (B) in paragraph (3) by striking ‘‘106’’ and in4 serting ‘‘106(d)’’, and

5 (C) in paragraph (4) by striking ‘‘Attorney

6 General’’ and inserting ‘‘Immigration Court’’

7 each place it appears.

8 (3) Subsection (d) is redesignated as subsection (c)

9 and newly designated subsection (c)(3)(A)(i) is amended

10 by striking ‘‘court of appeals’’ and all that follows through

11 ‘‘is located’’ and inserting ‘‘Court of Appeals for the Fed12 eral Circuit’’.

13 (g) SECTION 242B.—(1) Subsection (c) of section

14 242B (8 U.S.C. 1252b(d)) is amended by striking ‘‘, not15 withstanding’’ and all that follows through ‘‘deportation

16 and’’.

17 (2) Subsection (d) of such section is amended—

18 (A) by striking ‘‘Attorney General’’ and insert19 ing ‘‘Immigration Court’’ each place it appears,

20 (B) in paragraph (1) by striking ‘‘a special in21 quiry officer or before an appellate administrative

22 body’’ and inserting ‘‘a judge or judges of a division

23 of the Court’’, and
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1 (C) in paragraph (2) by striking ‘‘administra2 tive appeal of a’’ and inserting ‘‘appeal of an immi3 gration trial judge’s’’.

4 (3) Subsection (e) of such subsection is amended—

5 (A) by striking ‘‘Attorney General’’ and insert6 ing ‘‘Immigration Court’’, and

7 (B) by inserting ‘‘, notice’’ after ‘‘under this

8 section’’.

9 (h) SECTION 243.—Section 243(h) (8 U.S.C.

10 1253(h)) is amended—

11 (1) in paragraph (1) by striking ‘‘the Attorney

12 General determines’’ and inserting ‘‘the Immigration

13 Court determines’’, and

14 (2) in paragraph (2) by striking ‘‘the Attorney

15 General’’ and inserting ‘‘the Immigration Court’’.

16 (i) SECTION 244.—(1) Subsection (a) of section 244

17 (8 U.S.C. 1254) is amended—

18 (A) by striking ‘‘the Attorney General may’’

19 and inserting ‘‘the presiding immigration trial judge

20 may’’,

21 (B) by striking ‘‘applies to the Attorney Gen22 eral’’ and inserting ‘‘applies to the Immigration

23 Court’’,
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1 (C) in paragraph (1) by striking ‘‘the Attorney

2 General’’ and inserting ‘‘the immigration trial

3 judge’’, and

4 (D) in paragraphs (2) and (3) by striking ‘‘the

5 Attorney General’’ and inserting ‘‘the immigration

6 trial judge’’ each place it appears.

7 (2) Subsection (c) of such section is amended to read:

8 ‘‘(c) Either party in a deportation proceeding may ap9 peal a decision to suspend deportation under subsection

10 (a).’’.

11 (3) Subsection (d) of such section is amended by

12 striking ‘‘cancellation’’ and inserting ‘‘suspension’’.

13 (4) Subsection (e) of such section is amended—

14 (A) by striking ‘‘Attorney General’’ each place

15 it appears and inserting ‘‘Immigration Court’’, and

16 (B) by striking ‘‘in his discretion’’ and inserting

17 ‘‘in its discretion’’.

18 (j) SECTION 246.—Section 246(a) (8 U.S.C.

19 1256(a)) is amended by striking ‘‘Attorney General’’ and

20 inserting ‘‘Immigration Court’’ each place it appears.

21 (k) SECTION 243.—Section 273(d) (8 U.S.C.

22 1323(d)) is amended by striking ‘‘special inquiry officers’’

23 and inserting ‘‘immigration trial judges’’.

24 (l) SECTION 279.—Section 279 (8 U.S.C. 1329) is

25 amended—
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1 (1) by striking out ‘‘The district courts’’ in the

2 first sentence and inserting ‘‘Except as otherwise

3 provided in this Act and except in such cases as ju4 risdiction is conferred by law in the Immigration

5 Court (regardless of whether the cause is brought by

6 or against the United States), the district courts’’,

7 and

8 (2) by striking ‘‘such suit when brought by the

9 United States’’ and inserting ‘‘suit brought by the

10 United States under this title’’.

11 (m) SECTION 291.—Section 291 (8 U.S.C. 1361) is

12 amended by inserting ‘‘or the Immigration Court’’ after

13 ‘‘satisfaction of the Attorney General’’.

14 (n) SECTION 292.—Section 292 (8 U.S.C. 1362) is

15 amended by striking ‘‘a special inquiry officer’’ and all

16 that follows through ‘‘such exclusion or deportation pro17 ceedings’’ and inserting ‘‘the Immigration Court’’.

18 (o) SECTION 360.—The second sentence of section

19 360(c) (8 U.S.C. 1503(c)) is amended—

20 (1) by striking ‘‘by the Attorney General’’ and

21 inserting ‘‘by the Immigration Court’’, and

22 (2) by striking ‘‘by any court of competent ju23 risdiction’’ and inserting ‘‘by the Court of Appeals

24 of the Federal Circuit’’.
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1 (p) SECTION 235.—Section 235(b) as amended by

2 section 422 of the Antiterrorism and Effective Death Pen3 alty Act of 1996 (Public Law 104–132) is amended—

4 (1) in paragraph (1)(C)(ii) by striking ‘‘an asy5 lum hearing before an asylum officer under section

6 208’’ and inserting ‘‘further consideration of the ap7 plication for asylum’’,

8 (2) in paragraph (1)(E)(i)—

9 (A) by striking ‘‘administrative appeal’’

10 and inserting ‘‘appeal to the Immigration

11 Court’’,

12 (B) striking ‘‘review’’ and inserting ‘‘refer13 ral to the Immigration Court’’, and

14 (C) adding at the end the following new

15 sentence: ‘‘The Immigration Court shall expe16 dited review of claims referred to it under this

17 clause.’’,

18 (3) in paragraphs (2)(A) and (3) by striking ‘‘a

19 special inquiry officer’’ and inserting ‘‘the Immigra20 tion Court’’ each place it appears.

21 SEC. 6. EFFECTIVE DATE; SEVERABILITY.

22 (a) EFFECTIVE DATE.—The amendments made by

23 section 5 shall take effect on the hearing transition date

24 designated pursuant to section 2(c)(3) of this Act.
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1 (b) SEVERABILITY.—If any provision or amendment

2 made by this Act or the application of such provision or

3 amendment to any person or circumstance is held to be

4 invalid, the remainder of this Act and its amendments and

5 the application of such provisions or amendments to any

6 person or circumstance shall not be affected thereby.

Æ