I 

117TH CONGRESS 

1ST SESSION H. R. 709 

To amend the Immigration and Nationality Act to reform certain asylum 

procedures, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 2, 2021 

Mrs. LESKO introduced the following bill; which was referred to the 

Committee on the Judiciary 

A BILL 

To amend the Immigration and Nationality Act to reform 

certain asylum procedures, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Border Crisis Preven5 tion Act of 2021’’. 

6 SEC. 2. CREDIBLE FEAR INTERVIEWS. 

7 (a) DETERMINATION OF PROBABILITY OF CLAIM

8 TRUTH.—Section 235(b)(1)(B)(v) of the Immigration and 

9 Nationality Act (8 U.S.C. 1225(b)(1)(B)(v)) is amended 

10 by striking ‘‘claim’’ and all that follows, and inserting 


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1 ‘‘claim, as determined pursuant to section 

2 208(b)(1)(B)(iii), and such other facts as are known to 

3 the officer, that the alien could establish eligibility for asy4 lum under section 208, and it is more probable than not 

5 that the statements made by, and on behalf of, the alien 

6 in support of the alien’s claim are true.’’. 

7 (b) JURISDICTION OF ASYLUM APPLICATIONS.—Sec8 tion 208(b)(3) of the Immigration and Nationality Act (8 

9 U.S.C. 1158) is amended by striking subparagraph (C). 

10 (c) RECORDING EXPEDITED REMOVAL AND CRED11 IBLE FEAR INTERVIEWS.— 

12 (1) IN GENERAL.—The Secretary of Homeland 

13 Security shall establish quality assurance procedures 

14 and take steps to effectively ensure that questions by 

15 employees of the Department of Homeland Security 

16 exercising expedited removal authority under section 

17 235(b) of the Immigration and Nationality Act (8 

18 U.S.C. 1225(b)) are asked in a uniform manner, to 

19 the extent possible, and that both these questions 

20 and the answers provided in response to them are 

21 recorded in a uniform fashion. 

22 (2) FACTORS RELATING TO SWORN STATE23 MENTS.—Where practicable, any sworn or signed 

24 written statement taken of an alien as part of the 

25 record of a proceeding under section 235(b)(1)(A) of 


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1 the Immigration and Nationality Act (8 U.S.C. 

2 1225(b)(1)(A)) shall be accompanied by a recording 

3 of the interview which served as the basis for that 

4 sworn statement. 

5 (3) INTERPRETERS.—The Secretary shall en6 sure that a competent interpreter, not affiliated with 

7 the government of the country from which the alien 

8 may claim asylum, is used when the interviewing of9 ficer does not speak a language understood by the 

10 alien. 

11 (4) RECORDINGS IN IMMIGRATION PRO12 CEEDINGS.—There shall be an audio or audio visual 

13 recording of interviews of aliens subject to expedited 

14 removal. The recording shall be included in the 

15 record of proceeding and shall be considered as evi16 dence in any further proceedings involving the alien. 

17 (5) NO PRIVATE RIGHT OF ACTION.—Nothing 

18 in this subsection shall be construed to create any 

19 right, benefit, trust, or responsibility, whether sub20 stantive or procedural, enforceable in law or equity 

21 by a party against the United States, its depart22 ments, agencies, instrumentalities, entities, officers, 

23 employees, or agents, or any person, nor does this 

24 subsection create any right of review in any adminis25 trative, judicial, or other proceeding. 


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1 SEC. 3. SAFE THIRD COUNTRY. 

2 Section 208(a)(2)(A) of the Immigration and Nation3 ality Act (8 U.S.C. 1158(a)(2)(A)) is amended— 

4 (1) by striking ‘‘Attorney General’’ each place 

5 it appears and inserting ‘‘Secretary of Homeland Se6 curity’’; and 

7 (2) by striking ‘‘removed, pursuant to a bilat8 eral or multilateral agreement, to’’ and inserting 

9 ‘‘removed to’’. 

10 SEC. 4. DETENTION SPACES. 

11 There is authorized to be appropriated such sums as 

12 may be necessary to provide for sufficient detention spaces 

13 as the Secretary of Homeland Security determines nec14 essary to enforce the immigration laws. 

15 SEC. 5. IMMIGRATION JUDGES. 

16 (a) IN GENERAL.—The Attorney General may ap17 point 100 additional immigration judges in addition to im18 migration judges currently serving as of the date of enact19 ment of this Act. 

20 (b) AUTHORIZATION OF APPROPRIATIONS.—There is 

21 authorized to be appropriated such sums as may be nec22 essary to carry out this section. 

23 SEC. 6. ASYLUM PROCEDURES RELATED TO FILING FRIVO24 LOUS APPLICATIONS. 

25 (a) NOTICE CONCERNING FRIVOLOUS ASYLUM AP26 PLICATIONS.— 


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1 (1) IN GENERAL.—Section 208(d)(4) of the Im2 migration and Nationality Act (8 U.S.C. 

3 1158(d)(4)) is amended— 

4 (A) in the matter preceding subparagraph 

5 (A), by inserting ‘‘the Secretary of Homeland 

6 Security or’’ before ‘‘the Attorney General’’; 

7 (B) in subparagraph (A), by striking ‘‘and 

8 of the consequences, under paragraph (6), of 

9 knowingly filing a frivolous application for asy10 lum; and’’ and inserting a semicolon; 

11 (C) in subparagraph (B), by striking the 

12 period and inserting ‘‘; and’’; and 

13 (D) by adding at the end the following: 

14 ‘‘(C) ensure that a written warning ap15 pears on the asylum application advising the 

16 alien of the consequences of filing a frivolous 

17 application and serving as notice to the alien of 

18 the consequence of filing a frivolous applica19 tion.’’. 

20 (2) CONFORMING AMENDMENT.—Section 

21 208(d)(6) of the Immigration and Nationality Act (8 

22 U.S.C. 1158(d)(6)) is amended by striking ‘‘If the’’ 

23 and all that follows and inserting: 

24 ‘‘(A) If the Secretary of Homeland Secu25 rity or the Attorney General determines that an 


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1 alien has knowingly made a frivolous applica2 tion for asylum and the alien has received the 

3 notice under paragraph (4)(C), the alien shall 

4 be permanently ineligible for any benefits under 

5 this chapter, effective as the date of the final 

6 determination of such an application. 

7 ‘‘(B) An application is frivolous if the Sec8 retary of Homeland Security or the Attorney 

9 General determines, consistent with subpara10 graph (C), that— 

11 ‘‘(i) it is so insufficient in substance 

12 that it is clear that the applicant know13 ingly filed the application solely or in part 

14 to delay removal from the United States, 

15 to seek employment authorization as an 

16 applicant for asylum pursuant to regula17 tions issued pursuant to paragraph (2), or 

18 to seek issuance of a Notice to Appear in 

19 order to pursue Cancellation of Removal 

20 under section 240A(b); or 

21 ‘‘(ii) any of the material elements are 

22 knowingly fabricated. 

23 ‘‘(C) In determining that an application is 

24 frivolous, the Secretary or the Attorney General 

25 must be satisfied that the applicant, during the 


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1 course of the proceedings, has had sufficient op2 portunity to clarify any discrepancies or implau3 sible aspects of the claim. 

4 ‘‘(D) For purposes of this section, a find5 ing that an alien filed a frivolous asylum appli6 cation shall not preclude the alien from seeking 

7 withholding of removal under section 241(b)(3) 

8 or protection pursuant to the Convention 

9 Against Torture.’’. 

10 (b) ANTI-FRAUD INVESTIGATIVE WORK PRODUCT.— 

11 (1) ASYLUM CREDIBILITY DETERMINATIONS.— 

12 Section 208(b)(1)(B)(iii) of the Immigration and 

13 Nationality Act (8 U.S.C. 1158(b)(1)(B)(iii)) is 

14 amended by inserting after ‘‘all relevant factors’’ the 

15 following: ‘‘, including statements made to, and in16 vestigative reports prepared by, immigration authori17 ties and other government officials’’. 

18 (2) RELIEF FOR REMOVAL CREDIBILITY DETER19 MINATIONS.—Section 240(c)(4)(C) of the Immigra20 tion and Nationality Act (8 U.S.C. 1229a(c)(4)(C)) 

21 is amended by inserting after ‘‘all relevant factors’’ 

22 the following: ‘‘, including statements made to, and 

23 investigative reports prepared by, immigration au24 thorities and other government officials’’. 


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1 SEC. 7. DETENTION OF DANGEROUS ALIENS. 

2 Section 241(a) of the Immigration and Nationality 

3 Act (8 U.S.C. 1231(a)) is amended— 

4 (1) by striking ‘‘Attorney General’’ each place 

5 it appears, except for the first reference in para6 graph (4)(B)(i), and inserting ‘‘Secretary of Home7 land Security’’; 

8 (2) in paragraph (1), by amending subpara9 graph (B) to read as follows: 

10 ‘‘(B) BEGINNING OF PERIOD.—The re11 moval period begins on the latest of the fol12 lowing: 

13 ‘‘(i) The date the order of removal be14 comes administratively final. 

15 ‘‘(ii) If the alien is not in the custody 

16 of the Secretary on the date the order of 

17 removal becomes administratively final, the 

18 date the alien is taken into such custody. 

19 ‘‘(iii) If the alien is detained or con20 fined (except under an immigration proc21 ess) on the date the order of removal be22 comes administratively final, the date the 

23 alien is taken into the custody of the Sec24 retary, after the alien is released from such 

25 detention or confinement.’’; 


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1 (3) in paragraph (1), by amending subpara2 graph (C) to read as follows: 

3 ‘‘(C) SUSPENSION OF PERIOD.— 

4 ‘‘(i) EXTENSION.—The removal period 

5 shall be extended beyond a period of 90 

6 days and the Secretary may, in the Sec7 retary’s sole discretion, keep the alien in 

8 detention during such extended period if— 

9 ‘‘(I) the alien fails or refuses to 

10 make all reasonable efforts to comply 

11 with the removal order, or to fully co12 operate with the Secretary’s efforts to 

13 establish the alien’s identity and carry 

14 out the removal order, including mak15 ing timely application in good faith 

16 for travel or other documents nec17 essary to the alien’s departure or con18 spires or acts to prevent the alien’s 

19 removal that is subject to an order of 

20 removal; 

21 ‘‘(II) a court, the Board of Immi22 gration Appeals, or an immigration 

23 judge orders a stay of removal of an 

24 alien who is subject to an administra25 tively final order of removal; 


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1 ‘‘(III) the Secretary transfers 

2 custody of the alien pursuant to law 

3 to another Federal agency or a State 

4 or local government agency in connec5 tion with the official duties of such 

6 agency; or 

7 ‘‘(IV) a court or the Board of 

8 Immigration Appeals orders a remand 

9 to an immigration judge or the Board 

10 of Immigration Appeals, during the 

11 time period when the case is pending 

12 a decision on remand (with the re13 moval period beginning anew on the 

14 date that the alien is ordered removed 

15 on remand). 

16 ‘‘(ii) RENEWAL.—If the removal pe17 riod has been extended under subpara18 graph (C)(i), a new removal period shall be 

19 deemed to have begun on the date— 

20 ‘‘(I) the alien makes all reason21 able efforts to comply with the re22 moval order, or to fully cooperate with 

23 the Secretary’s efforts to establish the 

24 alien’s identity and carry out the re25 moval order; 


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1 ‘‘(II) the stay of removal is no 

2 longer in effect; or 

3 ‘‘(III) the alien is returned to the 

4 custody of the Secretary. 

5 ‘‘(iii) MANDATORY DETENTION FOR

6 CERTAIN ALIENS.—In the case of an alien 

7 described in subparagraphs (A) through 

8 (D) of section 236(c)(1), the Secretary 

9 shall keep that alien in detention during 

10 the extended period described in clause (i). 

11 ‘‘(iv) SOLE FORM OF RELIEF.—An 

12 alien may seek relief from detention under 

13 this subparagraph only by filing an appli14 cation for a writ of habeas corpus in ac15 cordance with chapter 153 of title 28, 

16 United States Code. No alien whose period 

17 of detention is extended under this sub18 paragraph shall have the right to seek re19 lease on bond.’’; 

20 (4) in paragraph (3)— 

21 (A) by adding after ‘‘If the alien does not 

22 leave or is not removed within the removal pe23 riod’’ the following: ‘‘or is not detained pursu24 ant to paragraph (6) of this subsection’’; and 


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1 (B) by striking subparagraph (D) and in2 serting the following: 

3 ‘‘(D) to obey reasonable restrictions on the 

4 alien’s conduct or activities that the Secretary 

5 prescribes for the alien, in order to prevent the 

6 alien from absconding, for the protection of the 

7 community, or for other purposes related to the 

8 enforcement of the immigration laws.’’; 

9 (5) in paragraph (4)(A), by striking ‘‘paragraph 

10 (2)’’ and inserting ‘‘subparagraph (B)’’; and 

11 (6) by striking paragraph (6) and inserting the 

12 following: 

13 ‘‘(6) ADDITIONAL RULES FOR DETENTION OR

14 RELEASE OF CERTAIN ALIENS.— 

15 ‘‘(A) DETENTION REVIEW PROCESS FOR

16 COOPERATIVE ALIENS ESTABLISHED.—For an 

17 alien who is not otherwise subject to mandatory 

18 detention, who has made all reasonable efforts 

19 to comply with a removal order and to cooper20 ate fully with the Secretary of Homeland Secu21 rity’s efforts to establish the alien’s identity and 

22 carry out the removal order, including making 

23 timely application in good faith for travel or 

24 other documents necessary to the alien’s depar25 ture, and who has not conspired or acted to 


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1 prevent removal, the Secretary shall establish 

2 an administrative review process to determine 

3 whether the alien should be detained or released 

4 on conditions. The Secretary shall make a de5 termination whether to release an alien after 

6 the removal period in accordance with subpara7 graph (B). The determination shall include con8 sideration of any evidence submitted by the 

9 alien, and may include consideration of any 

10 other evidence, including any information or as11 sistance provided by the Secretary of State or 

12 other Federal official and any other information 

13 available to the Secretary of Homeland Security 

14 pertaining to the ability to remove the alien. 

15 ‘‘(B) AUTHORITY TO DETAIN BEYOND RE16 MOVAL PERIOD.— 

17 ‘‘(i) IN GENERAL.—The Secretary of 

18 Homeland Security, in the exercise of the 

19 Secretary’s sole discretion, may continue to 

20 detain an alien for 90 days beyond the re21 moval period (including any extension of 

22 the removal period as provided in para23 graph (1)(C)). An alien whose detention is 

24 extended under this subparagraph shall 

25 have no right to seek release on bond. 


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1 ‘‘(ii) SPECIFIC CIRCUMSTANCES.—The 

2 Secretary of Homeland Security, in the ex3 ercise of the Secretary’s sole discretion, 

4 may continue to detain an alien beyond the 

5 90 days authorized in clause (i)— 

6 ‘‘(I) until the alien is removed, if 

7 the Secretary, in the Secretary’s sole 

8 discretion, determines that there is a 

9 significant likelihood that the alien— 

10 ‘‘(aa) will be removed in the 

11 reasonably foreseeable future; or 

12 ‘‘(bb) would be removed in 

13 the reasonably foreseeable future, 

14 or would have been removed, but 

15 for the alien’s failure or refusal 

16 to make all reasonable efforts to 

17 comply with the removal order, 

18 or to cooperate fully with the 

19 Secretary’s efforts to establish 

20 the alien’s identity and carry out 

21 the removal order, including 

22 making timely application in 

23 good faith for travel or other doc24 uments necessary to the alien’s 


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1 departure, or conspires or acts to 

2 prevent removal; 

3 ‘‘(II) until the alien is removed, 

4 if the Secretary of Homeland Security 

5 certifies in writing— 

6 ‘‘(aa) in consultation with 

7 the Secretary of Health and 

8 Human Services, that the alien 

9 has a highly contagious disease 

10 that poses a threat to public safe11 ty; 

12 ‘‘(bb) after receipt of a writ13 ten recommendation from the 

14 Secretary of State, that release 

15 of the alien is likely to have seri16 ous adverse foreign policy con17 sequences for the United States; 

18 ‘‘(cc) based on information 

19 available to the Secretary of 

20 Homeland Security (including 

21 classified, sensitive, or national 

22 security information, and without 

23 regard to the grounds upon 

24 which the alien was ordered re25 moved), that there is reason to 


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1 believe that the release of the 

2 alien would threaten the national 

3 security of the United States; or 

4 ‘‘(dd) that the release of the 

5 alien will threaten the safety of 

6 the community or any person, 

7 conditions of release cannot rea8 sonably be expected to ensure the 

9 safety of the community or any 

10 person, and either (AA) the alien 

11 has been convicted of one or 

12 more aggravated felonies (as de13 fined in section 101(a)(43)(A)) 

14 or of one or more crimes identi15 fied by the Secretary of Home16 land Security by regulation, or of 

17 one or more attempts or conspir18 acies to commit any such aggra19 vated felonies or such identified 

20 crimes, if the aggregate term of 

21 imprisonment for such attempts 

22 or conspiracies is at least 5 

23 years; or (BB) the alien has com24 mitted one or more crimes of vio25 lence (as defined in section 16 of 


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1 title 18, United States Code, but 

2 not including a purely political 

3 offense) and, because of a mental 

4 condition or personality disorder 

5 and behavior associated with that 

6 condition or disorder, the alien is 

7 likely to engage in acts of vio8 lence in the future; or 

9 ‘‘(III) pending a certification 

10 under subclause (II), so long as the 

11 Secretary of Homeland Security has 

12 initiated the administrative review 

13 process not later than 30 days after 

14 the expiration of the removal period 

15 (including any extension of the re16 moval period, as provided in para17 graph (1)(C)). 

18 ‘‘(iii) NO RIGHT TO BOND HEARING.— 

19 An alien whose detention is extended under 

20 this subparagraph shall have no right to 

21 seek release on bond, including by reason 

22 of a certification under clause (ii)(II). 

23 ‘‘(C) RENEWAL AND DELEGATION OF CER24 TIFICATION.— 


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1 ‘‘(i) RENEWAL.—The Secretary of 

2 Homeland Security may renew a certifi3 cation under subparagraph (B)(ii)(II) 

4 every 6 months, after providing an oppor5 tunity for the alien to request reconsider6 ation of the certification and to submit 

7 documents or other evidence in support of 

8 that request. If the Secretary does not 

9 renew a certification, the Secretary may 

10 not continue to detain the alien under sub11 paragraph (B)(ii)(II). 

12 ‘‘(ii) DELEGATION.—Notwithstanding 

13 section 103, the Secretary of Homeland 

14 Security may not delegate the authority to 

15 make or renew a certification described in 

16 item (bb), (cc), or (dd) of subparagraph 

17 (B)(ii)(II) below the level of the Director 

18 of Immigration and Customs Enforcement. 

19 ‘‘(iii) HEARING.—The Secretary of 

20 Homeland Security may request that the 

21 Attorney General or the Attorney General’s 

22 designee provide for a hearing to make the 

23 determination described in item (dd)(BB) 

24 of subparagraph (B)(ii)(II). 


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1 ‘‘(D) RELEASE ON CONDITIONS.—If it is 

2 determined that an alien should be released 

3 from detention by a Federal court, the Board of 

4 Immigration Appeals, or if an immigration 

5 judge orders a stay of removal, the Secretary of 

6 Homeland Security, in the exercise of the Sec7 retary’s discretion, may impose conditions on 

8 release as provided in paragraph (3). 

9 ‘‘(E) REDETENTION.—The Secretary of 

10 Homeland Security, in the exercise of the Sec11 retary’s discretion, without any limitations 

12 other than those specified in this section, may 

13 again detain any alien subject to a final re14 moval order who is released from custody, if re15 moval becomes likely in the reasonably foresee16 able future, the alien fails to comply with the 

17 conditions of release, or to continue to satisfy 

18 the conditions described in subparagraph (A), 

19 or if, upon reconsideration, the Secretary, in 

20 the Secretary’s sole discretion, determines that 

21 the alien can be detained under subparagraph 

22 (B). This section shall apply to any alien re23 turned to custody pursuant to this subpara24 graph, as if the removal period terminated on 

25 the day of the redetention. 


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1 ‘‘(F) REVIEW OF DETERMINATIONS BY

2 SECRETARY.—A determination by the Secretary 

3 under this paragraph shall not be subject to re4 view by any other agency.’’. 

Æ 


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