II 

108TH CONGRESS 

2D SESSION S. 2443 

To reform the judicial review process of orders of removal for purposes 

of the Immigration and Nationality Act. 

IN THE SENATE OF THE UNITED STATES 

MAY 19, 2004 

Mr. HATCH (for himself, Mr. KYL, Mr. CORNYN, Mr. SESSIONS, and Mr. 

CHAMBLISS) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

A BILL 

To reform the judicial review process of orders of removal 

for purposes of the Immigration and Nationality Act. 

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 ‘‘Fairness in Immigra5 tion Litigation Act’’. 

6 SEC. 2. JUDICIAL REVIEW OF ORDERS OF REMOVAL. 

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

8 and Nationality Act (8 U.S.C. 1252) is amended— 

9 (1) in subsection (a)— 

10 (A) in paragraph (2)— 
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1 (i) in subparagraphs (A), (B), and 

2 (C), by inserting ‘‘(statutory and nonstatu3 tory), including section 2241 of title 28, 

4 United States Code, or any other habeas 

5 corpus provision, and sections 1361 and 

6 1651 of title 28, United States Code’’ after 

7 ‘‘Notwithstanding any other provision of 

8 law’’; and 

9 (ii) by adding at the end the fol10 lowing: 

11 ‘‘(D) JUDICIAL REVIEW OF CERTAIN

12 LEGAL CLAIMS.—Nothing in this paragraph 

13 shall be construed as precluding consideration 

14 by the circuit courts of appeals of constitutional 

15 claims or pure questions of law raised upon pe16 titions for review filed in accordance with this 

17 section. Notwithstanding any other provision of 

18 law (statutory and nonstatutory), including sec19 tion 2241 of title 28, United States Code, or, 

20 except as provided in subsection (e), any other 

21 habeas corpus provision, and sections 1361 and 

22 1651 of title 28, United States Code, such peti23 tions for review shall be the sole and exclusive 

24 means of raising any and all claims with respect 
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1 to orders of removal entered or issued under 

2 any provision of this Act.’’; and 

3 (B) by adding at the end the following: 

4 ‘‘(4) CLAIMS UNDER THE UNITED NATIONS

5 CONVENTION.—Notwithstanding any other provision 

6 of law (statutory and nonstatutory), including sec7 tion 2241 of title 28, United States Code, or any 

8 other habeas corpus provision, and sections 1361 

9 and 1651 of title 28, United States Code, a petition 

10 for review by the circuit courts of appeals filed in ac11 cordance with this section is the sole and exclusive 

12 means of judicial review of claims arising under the 

13 United Nations Convention Against Torture and 

14 Other Forms of Cruel, Inhuman, or Degrading 

15 Treatment or Punishment. 

16 ‘‘(5) EXCLUSIVE MEANS OF REVIEW.—The ju17 dicial review specified in this subsection shall be the 

18 sole and exclusive means for review by any court of 

19 an order of removal entered or issued under any pro20 vision of this Act. For purposes of this title, in every 

21 provision that limits or eliminates judicial review or 

22 jurisdiction to review, the terms ‘judicial review’ and 

23 ‘jurisdiction to review’ include habeas corpus review 

24 pursuant to section 2241 of title 28, United States 

25 Code, or any other habeas corpus provision, sections 
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1 1361 and 1651 of title 28, United States Code, and 

2 review pursuant to any other provision of law.’’; 

3 (2) in subsection (b)— 

4 (A) in paragraph (3)(B), by inserting 

5 ‘‘pursuant to subsection (f)’’ after ‘‘unless’’; 

6 and 

7 (B) in paragraph (9), by adding at the end 

8 the following: ‘‘Except as otherwise provided in 

9 this subsection, no court shall have jurisdiction, 

10 by habeas corpus under section 2241 of title 

11 28, United States Code, or any other habeas 

12 corpus provision, by section 1361 or 1651 of 

13 title 28, United States Code, or by any other 

14 provision of law (statutory or nonstatutory), to 

15 hear any cause or claim subject to these con16 solidation provisions.’’; 

17 (3) in subsection (f)(2), by inserting ‘‘or stay, 

18 by temporary or permanent order, including stays 

19 pending judicial review,’’ after ‘‘no court shall en20 join’’; and 

21 (4) in subsection (g), by inserting ‘‘(statutory 

22 and nonstatutory), including section 2241 of title 

23 28, United States Code, or any other habeas corpus 

24 provision, and sections 1361 and 1651 of title 28, 
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1 United States Code’’ after ‘‘notwithstanding any 

2 other provision of law’’. 

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

4 subsection (a) shall take effect upon the date of enactment 

5 of this Act and shall apply to cases in which the final ad6 ministrative removal order was issued before, on, or after 

7 the date of enactment of this Act. 

8 SEC. 3. CONSOLIDATION OF APPEALS. 

9 (a) IN GENERAL.—Section 242(b)(2) of the Immi10 gration and Nationality Act (8 U.S.C. 1252(b)(2)), is 

11 amended by striking the first sentence and inserting the 

12 following: ‘‘The petition for review shall be filed with the 

13 court of appeals for the Federal Circuit.’’. 

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

15 subsection (a) shall apply to any final agency order that 

16 was entered on or after the date of enactment of this Act. 

17 SEC. 4. ADDITIONAL REMOVAL AUTHORITIES. 

18 (a) IN GENERAL.—Section 241(b) of the Immigra19 tion and Nationality Act (8 U.S.C. 1231(b)) is amended— 

20 (1) in paragraph (1)— 

21 (A) in each of subparagraphs (A) and (B), 

22 by striking the period at the end and inserting 

23 ‘‘unless, in the opinion of the Secretary of 

24 Homeland Security, removing the alien to such 
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1 country would be prejudicial to the United 

2 States.’’; and 

3 (B) by amending subparagraph (C) to read 

4 as follows: 

5 ‘‘(C) ALTERNATIVE COUNTRIES.—If the 

6 alien is not removed to a country designated in 

7 subparagraph (A) or (B), the Secretary of 

8 Homeland Security shall remove the alien to— 

9 ‘‘(i) the country of which the alien is 

10 a citizen, subject, or national, where the 

11 alien was born, or where the alien has a 

12 residence, unless the country physically 

13 prevents the alien from entering the coun14 try upon the alien’s removal there; or 

15 ‘‘(ii) any country whose government 

16 will accept the alien into that country.’’; 

17 and 

18 (2) in paragraph (2)— 

19 (A) by striking ‘‘Attorney General’’ each 

20 place such term appears and inserting ‘‘Sec21 retary of Homeland Security’’; 

22 (B) by amending subparagraph (D) to 

23 read as follows: 

24 ‘‘(D) ALTERNATIVE COUNTRIES.—If the 

25 alien is not removed to a country designated 
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1 under subparagraph (A)(i), the Secretary of 

2 Homeland Security shall remove the alien to a 

3 country of which the alien is a subject, national, 

4 or citizen, where the alien was born, or where 

5 the alien has a residence, unless— 

6 ‘‘(i) such country physically prevents 

7 the alien from entering the country upon 

8 the alien’s removal there; or 

9 ‘‘(ii) in the opinion of the Secretary of 

10 Homeland Security, removing the alien to 

11 the country would be prejudicial to the 

12 United States.’’; and 

13 (C) by amending subparagraph (E)(vii) to 

14 read as follows: 

15 ‘‘(vii) Any country whose government 

16 will accept the alien into that country.’’. 

17 (b) EFFECTIVE DATE.—The amendments made by 

18 subsection (a) shall take effect on the date of the enact19 ment of this Act and shall apply to any deportation, exclu20 sion, or removal on or after such date pursuant to any 

21 deportation, exclusion, or removal order, regardless of 

22 whether such order is administratively final before, on, or 

23 after such date. 
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1 SEC. 5. BURDEN OF PROOF. 

2 (a) CONDITIONS FOR GRANTING ASYLUM.—Section 

3 208(b) of the Immigration and Nationality Act (8 U.S.C. 

4 1158(b)) is amended— 

5 (1) in paragraph (1), by striking ‘‘The Attorney 

6 General’’ and inserting the following: 

7 ‘‘(A) ELIGIBILITY.—The Secretary of 

8 Homeland Security or the Attorney General’’; 

9 and 

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

11 ‘‘(B) BURDEN OF PROOF.—The burden of 

12 proof is on the applicant to establish that the 

13 applicant is a refugee within the meaning of 

14 section 101(a)(42)(A). To establish that the ap15 plicant is a refugee within the meaning of this 

16 Act, the applicant must establish that race, reli17 gion, nationality, membership in a particular 

18 social group, or political opinion was or will be 

19 the central motive for persecuting the applicant. 

20 The testimony of the applicant, only if it is 

21 credible, is persuasive, and refers to specific 

22 facts that demonstrate that the applicant is a 

23 refugee, may be sufficient to sustain such bur24 den without corroboration. Where the trier of 

25 fact finds that it is reasonable to expect cor26 roborating evidence for certain alleged facts 
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1 pertaining to the specifics of the applicant’s 

2 claim, such evidence must be provided unless a 

3 reasonable explanation is given as to why such 

4 information is not provided. The credibility de5 termination of the trier of fact may be based, 

6 in addition to other factors, on the demeanor, 

7 candor, or responsiveness of the applicant or 

8 witness, the consistency between the applicant’s 

9 or witness’s written and oral statements, wheth10 er or not under oath, made at any time to any 

11 officer, agent, or employee of the United States, 

12 the internal consistency of each such statement, 

13 the consistency of such statements with the 

14 country conditions in the country from which 

15 the applicant claims asylum, as presented by 

16 the Department of State, and any inaccuracies 

17 or falsehoods in such statements. These factors 

18 may be considered individually or cumula19 tively.’’. 

20 (b) STANDARD OF REVIEW FOR ORDERS OF RE21 MOVAL.—Section 242(b)(4) of the Immigration and Na22 tionality Act (8 U.S.C. 1252(b)(4)) is amended by adding 

23 after subparagraph (D) the following flush language: 

24 ‘‘No court shall reverse a determination made by an 

25 adjudicator with respect to the availability of cor-
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1 roborating evidence as described in section 

2 208(b)(1)(B), unless the court finds that a reason3 able adjudicator is compelled to conclude that such 

4 corroborating evidence is unavailable.’’. 

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

6 subsection (b) shall take effect upon the date of enactment 

7 of this Act and shall apply to cases in which the final ad8 ministrative removal order was issued before, on, or after 

9 the date of enactment of this Act. 

10 SEC. 6. EFFECTIVE DATE. 

11 This Act and the amendments made by this Act shall 

12 take effect upon the date of enactment of this Act. 

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