I 

108TH CONGRESS 

1ST SESSION H. R. 47

To amend the Immigration and Nationality Act to restore fairness to 

immigration law, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 7, 2003

Mr. CONYERS (for himself, Ms. JACKSON-LEE of Texas, Mr. FRANK of Massachusetts, Mr. RODRIGUEZ, Ms. ROS-LEHTINEN, Mr. ABERCROMBIE, Mr. 

DELAHUNT, Mr. FATTAH, Mr. BERMAN, Mr. GUTIERREZ, Mr. 

MCDERMOTT, Mr. PAYNE, Mr. REYES, Ms. LEE, Mr. NADLER, Mr. 

SERRANO, Mr. KLECZKA, Ms. ROYBAL-ALLARD, Mr. FILNER, Ms. 

SCHAKOWSKY, Mr. HONDA, Mrs. JONES of Ohio, and Ms. WOOLSEY) introduced the following bill; which was referred to the Committee on the 

Judiciary 

A BILL

To amend the Immigration and Nationality Act to restore 

fairness to immigration law, 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; AMENDMENTS TO IMMIGRATION 

4 AND NATIONALITY ACT; TABLE OF CON5 TENTS. 

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

7 ‘‘Restoration of Fairness in Immigration Act of 2003’’. 
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1 (b) AMENDMENTS TO IMMIGRATION AND NATION2 ALITY ACT.—Except as otherwise specifically provided in 

3 this Act, whenever in this Act an amendment or repeal 

4 is expressed as the amendment or repeal of a section or 

5 other provision, the reference shall be considered to be 

6 made to that section or provision in the Immigration and 

7 Nationality Act. 

8 (c) TABLE OF CONTENTS.—The table of contents of 

9 this Act is as follows:

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

contents. 

TITLE I—DUE PROCESS IN IMMIGRATION PROCEEDINGS 

Subtitle A—Due Process in Expedited Removal Proceedings 

Sec. 101. Due process in admissibility and asylum cases. 

Sec. 102. Using immigration judges in expedited removal proceedings. 

Sec. 103. Equitable determination of ‘‘credible fear of persecution’’ in cases involving unique fact patterns. 

Subtitle B—Judicial Review in Immigration Proceedings 

Sec. 111. Judicial review of administrative remedies and habeas corpus. 

Sec. 112. Judicial review of asylum determinations. 

Sec. 113. Judicial review of decisions concerning apprehension and detention of 

aliens. 

Sec. 114. Judicial review of decisions concerning waivers. 

Sec. 115. Judicial review of orders issued in absentia. 

Sec. 116. Judicial review of denial of request for order of voluntary departure. 

Sec. 117. Transitional changes in judicial review. 

Subtitle C—Fairness in Removal Proceedings 

Sec. 121. Equitable burden of proof for admissibility. 

Sec. 122. Presumption in favor of withdrawal of application for admission. 

Sec. 123. Absences outside the control of the alien. 

Sec. 124. Reinstatement of removal orders against aliens illegally reentering. 

Sec. 125. Removal hearings open to the public. 

Sec. 126. Deadline for placement in removal proceedings. 

Subtitle D—Fairness in Detention 

Sec. 131. Restoring discretionary authority to the Attorney General in cases of 

individuals who pose no risk to safety or of fleeing. 

Sec. 132. Periodic review of detention determination. 

Sec. 133. Limitation on indefinite detention. 
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Sec. 134. Pilot program to consider alternatives to detention. 

Sec. 135. Elimination of mandatory detention in expedited removal proceedings. 

Sec. 136. Right to counsel. 

Sec. 137. Automatic stays of release orders. 

Sec. 138. Report on detention of aliens. 

Sec. 139. Clarification of intent of transitional provision on references to removal orders. 

Subtitle E—Consular Review of Visa Applications 

Sec. 141. Establishment of a Board of Visa Appeals. 

Sec. 142. Nondiscrimination provisions. 

TITLE II—FAIRNESS AND EQUITY IN CASES INVOLVING 

PREVIOUS AND MINOR MISCONDUCT 

Subtitle A—Increased Fairness and Equity Concerning Removal Proceedings 

Sec. 201. Equitable definition of ‘‘crime involving moral turpitude’’. 

Sec. 202. Equitable application and definition of ‘‘aggravated felony’’. 

Sec. 203. Equitable definitions of ‘‘conviction’’ and ‘‘term of imprisonment’’. 

Sec. 204. Equitable definition of ‘‘crimes of moral turpitude’’. 

Sec. 205. Restoration of fairness in equitable relief for long-time legal permanent residents. 

Sec. 206. Restoration of fairness in equitable relief for other noncitizens. 

Sec. 207. Eliminating unfair retroactive changes in removal rules for persons 

subject to pending proceedings. 

Sec. 208. Eliminating unfair retroactive changes in removal rules for persons 

previously removed. 

Subtitle B—Increased Fairness and Equity Concerning 5-Year Bars to 

Admission and Other Grounds for Exclusion 

Sec. 211. Limiting 5-year bar to admission to persons who willfully fail to attend removal proceedings. 

Sec. 212. Limiting 5-year bar to admission to persons who willfully violate student visa conditions. 

Sec. 213. Limiting ban on admissibility to persons who willfully make false 

claims for citizenship. 

Sec. 214. Equitable waiver of inadmissibility for minor criminal offenses. 

Sec. 215. Eliminating the 3 and 10 year bars to inadmissibility. 

TITLE III—ENCOURAGING FAMILY REUNIFICATION 

Subtitle A—Reuniting Family Members 

Sec. 301. Visa for spouses and children of permanent residents temporarily 

waiting for visa numbers. 

Sec. 302. Refugee status for unmarried sons and daughters of refugees. 

Sec. 303. Asylee status for unmarried sons and daughters of asylees. 

Subtitle B—Limited Waiver of Grounds of Admissibility 

Sec. 311. Discretionary waiver in cases involving family members. 

Sec. 312. Discretionary waiver in document cases involving family members. 

Sec. 313. Discretionary waiver to admit persons in unusual circumstances. 

Subtitle C—Eliminating Unfairness and Waste in Section 245(i) Waivers
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Sec. 321. Permanent application of section 245(i). 

Subtitle D—Equitable Procedures Concerning Voluntary Departure 

Sec. 331. Discretionary determination of period of voluntary departure. 

Sec. 332. Discretionary determination of voluntary departure bond based on individual circumstances. 

Sec. 333. Elimination of automatic penalties for failing to depart in accordance 

with a voluntary departure grant. 

Subtitle E—Fairness in Determination of Public Charge 

Sec. 341. Equitable procedures concerning public charge and affidavit of support. 

TITLE IV—FAIRNESS IN ASYLUM AND REFUGEE PROCEEDINGS 

Subtitle A—Increased Fairness in Asylum Proceedings 

Sec. 401. Elimination of arbitrary time limits on asylum applications. 

Sec. 402. Gender-based persecution. 

Sec. 403. Presumption of asylum in cases of past persecution. 

Sec. 404. Rebuttable presumption of asylum where persecution occurs with respect to a particular location in a country. 

Sec. 405. Elimination of arbitrary cap on persons eligible to adjust status from 

asylees to legal permanent residents. 

Sec. 406. Restoration of eligibility for withholding of removal for persons facing 

loss of life or freedom. 

Subtitle B—Increased Fairness and Rationality in Refugee Consultations 

Sec. 411. Timely consultation with respect to refugee admissions. 

TITLE V—MISCELLANEOUS PROVISIONS 

Sec. 501. Limiting forfeiture for certain assets used to violate INA where there 

was no commercial gain. 

Sec. 502. Elimination of ban on State and local governments from preventing 

communications with the INS. 

Sec. 503. Elimination of authority to permit State personnel to carry out immigration officer functions. 

Sec. 504. Parole authority. 

Sec. 505. Enhanced border patrol recruitment and retention. 

Sec. 506. Elimination of denial of immigration benefits for erroneous asylum 

application. 

Sec. 507. Authorization of appropriations for implementation of Act. 

TITLE VI—EFFECTIVE DATES 

Sec. 601. General effective date. 

Sec. 602. Other effective dates.
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1 TITLE I—DUE PROCESS IN 

2 IMMIGRATION PROCEEDINGS 

3 Subtitle A—Due Process in 

4 Expedited Removal Proceedings 

5 SEC. 101. DUE PROCESS IN ADMISSIBILITY AND ASYLUM 

6 CASES. 

7 At the end of section 235 (8 U.S.C. 1225), add the 

8 following: 

9 ‘‘(e) LIMITATION ON USE OF EXPEDITED PROCE10 DURE.—

11 ‘‘(1) EXPEDITED REMOVAL LIMITED TO EX12 TRAORDINARY MIGRATION SITUATIONS.—Notwith13 standing subsection (b)(1), unless the Attorney Gen14 eral determines that the numbers or circumstances 

15 of aliens en route to or arriving in the United States 

16 present an extraordinary migration situation, the At17 torney General may not apply the provisions of such 

18 subsection to any such alien. 

19 ‘‘(2) EXTRAORDINARY MIGRATION SITUA20 TION.—As used in this subsection, the term ‘extraor21 dinary migration situation’ means the arrival or im22 minent arrival at a border of the United States of 

23 aliens who by their numbers or circumstances sub24 stantially exceed the capacity for the inspection and 

25 examination of such aliens. 
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1 ‘‘(3) DISCRETION.—Subject to paragraph (4), 

2 the determination whether there exists an extraor3 dinary migration situation within the meaning of 

4 paragraphs (1) and (2) is committed to the sole and 

5 exclusive discretion of the Attorney General. 

6 ‘‘(4) PERIOD.—The provisions of this sub7 section may be invoked under paragraph (1) for a 

8 period not to exceed 90 days, unless within such 90-

9 day period or any extension thereof, the Attorney 

10 General determines, after consultation with the 

11 Committees on the Judiciary of the United States 

12 House of Representatives and the Senate, that an 

13 extraordinary migration situation continues to war14 rant such procedures remaining in effect for addi15 tional 90-day periods.’’. 

16 SEC. 102. USING IMMIGRATION JUDGES IN EXPEDITED RE17 MOVAL PROCEEDINGS. 

18 Section 235(b)(1)(A) (8 U.S.C. 1225(b)(1)(A)) is 

19 amended—

20 (1) in clause (i)—

21 (A) by striking ‘‘is inadmissible’’ and in22 serting ‘‘may be inadmissible’’; 

23 (B) by striking ‘‘(iii)’’ and inserting ‘‘(iv)’’; 

24 and 
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1 (C) by striking ‘‘shall order’’ and all that 

2 follows through the period at the end and in3 serting ‘‘shall refer the alien to an immigration 

4 judge for a hearing.’’; 

5 (2) by redesignating clauses (ii) and (iii) as 

6 clauses (iii) and (iv), respectively; 

7 (3) by inserting after clause (i) the following: 

8 ‘‘(ii) IMMIGRATION JUDGE HEAR9 ING.—If an immigration judge determines, 

10 based on a hearing, that an alien described 

11 in clause (i) is inadmissible under para12 graph (6)(C) or (7) of section 212(a), the 

13 judge shall order the alien removed from 

14 the United States without further hearing 

15 or review unless the alien indicates either 

16 an intention to apply for asylum under sec17 tion 208 or a fear of persecution.’’; 

18 (4) in clause (iii) (as so redesignated)—

19 (A) by striking ‘‘immigration officer’’ and 

20 inserting ‘‘immigration judge’’; 

21 (B) by striking ‘‘clause (iii)’’ and inserting 

22 ‘‘clause (iv)’’; and 

23 (C) by striking ‘‘officer shall’’ and insert24 ing ‘‘judge shall’’; and 
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1 (5) in clause (iv) (as so redesignated), by strik2 ing ‘‘(i) and (ii)’’ and inserting ‘‘(i), (ii), and (iii)’’. 

3 SEC. 103. EQUITABLE DETERMINATION OF ‘‘CREDIBLE 

4 FEAR OF PERSECUTION’’ IN CASES INVOLV5 ING UNIQUE FACT PATTERNS. 

6 Section 235(b)(1)(B)(v) (8 U.S.C. 1225(b)(1)(B)(v)) 

7 is amended by adding at the end ‘‘Nothing in the pre8 ceding sentence shall be construed to preclude an alien 

9 from satisfying the standard in such sentence based upon 

10 a novel factual situation or a new legal argument.’’. 

11 Subtitle B—Judicial Review in 

12 Immigration Proceedings 

13 SEC. 111. JUDICIAL REVIEW OF ADMINISTRATIVE REM14 EDIES AND HABEAS CORPUS. 

15 Section 242 (8 U.S.C. 1252) is amended to read as 

16 follows: 

17 ‘‘JUDICIAL REVIEW OF ORDERS OF REMOVAL

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

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

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

21 procedure for, the judicial review of all final orders of re22 moval heretofore or hereafter made against aliens within 

23 the United States pursuant to administrative proceedings 

24 under section 240 or pursuant to section 238 of this Act 

25 or comparable provisions of any prior Act, except as fol26 lows:
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1 ‘‘(1) A petition for review may be filed not later 

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

3 final removal order, or, in the case of an alien con4 victed of an aggravated felony (including an alien 

5 described in section 238) not later than 30 days 

6 after the issuance of such order. No alien shall be 

7 removed in the 90 day period (or in the 30 day pe8 riod in the case of aggravated felons) in which the 

9 alien may file a petition for review of a final removal 

10 order. 

11 ‘‘(2) The venue of any petition for review under 

12 this section shall be in the judicial circuit in which 

13 the administrative proceedings before an immigra14 tion judge were conducted in whole or in part, or in 

15 the judicial circuit wherein is the residence, as de16 fined in this Act, of the petitioner, but not in more 

17 than one circuit. 

18 ‘‘(3) The action shall be brought against the 

19 Immigration and Naturalization Service, as respond20 ent. Service of the petition to review shall be made 

21 upon the Attorney General of the United States and 

22 upon the official of the Immigration and Naturaliza23 tion Service in charge of the Service district in which 

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

25 service of the petition for review upon such official
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1 of the Service shall stay the removal of the alien 

2 pending determination of the petition by the court, 

3 unless the court otherwise directs or unless the alien 

4 is convicted of an aggravated felony (including an 

5 alien described in section 238), in which case the 

6 Service shall not stay the removal of the alien pend7 ing determination of the petition of the court unless 

8 the court otherwise directs. 

9 ‘‘(4) Except as provided in clause (B) of para10 graph (5) of this subsection, the petition shall be de11 termined solely upon the administrative record upon 

12 which the removal order is based and the Attorney 

13 General’s findings of fact, if supported by reason14 able, substantial, and probative evidence on the 

15 record considered as a whole, shall be conclusive. 

16 ‘‘(5) Whenever any petitioner, who seeks review 

17 of an order under this section, claims to be a na18 tional of the United States and makes a showing 

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

20 pass upon the issues presented when it appears from 

21 the pleadings and affidavits filed by the parties that 

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

23 where a genuine issue of material fact as to the peti24 tioner’s nationality is presented, transfer the pro25 ceedings to a United States district court for the 
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1 district where the petitioner has his residence for 

2 hearing de novo of the nationality claim and deter3 mination as if such proceedings were originally initi4 ated in the district court under the provisions of sec5 tion 2201 of title 28, United States Code. Any such 

6 petitioner shall not be entitled to have such issue de7 termined under section 360(a) of this Act or other8 wise. 

9 ‘‘(6) Whenever a petitioner seeks review of an 

10 order under this section, any review sought with re11 spect to a motion to reopen or reconsider such an 

12 order shall be consolidated with the review of the 

13 order. 

14 ‘‘(7) If the validity of a removal order has not 

15 been judicially determined, its validity may be chal16 lenged in a criminal proceeding against the alien for 

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

18 this Act only by separate motion for judicial review 

19 before trial. Such motion shall be determined by the 

20 court without a jury and before the trial of the gen21 eral issue. Whenever a claim to United States na22 tionality is made in such motion, and in the opinion 

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

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

25 accord him a hearing de novo on the nationality 
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1 claim and determine that issue as if proceedings had 

2 been initiated under the provisions of section 2201 

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

4 not be entitled to have such issue determined under 

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

6 hearing de novo as to nationality is conducted, the 

7 determination shall be made solely upon the admin8 istrative record upon which the removal order is 

9 based and the Attorney General’s findings of fact, if 

10 supported by reasonable, substantial, and probative 

11 evidence on the record considered as a whole, shall 

12 be conclusive. If the removal order is held invalid, 

13 the court shall dismiss the indictment and the 

14 United States shall have the right to appeal to the 

15 court of appeals within 30 days. The procedure on 

16 such appeals shall be as provided in the Federal 

17 rules of criminal procedure. No petition for review 

18 under this section may be filed by any alien during 

19 the pendency of a criminal proceeding against such 

20 alien for violation of subsection (a) or (b) of section 

21 243 of this Act. 

22 ‘‘(8) Nothing in this section shall be construed 

23 to require the Attorney General to defer removal of 

24 an alien after the issuance of a removal order be25 cause of the right of judicial review of the order 
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1 granted by this section, or to relieve any alien from 

2 compliance with subsections (a) and (b) of section 

3 243 of this Act. No alien shall be removed in the 90-

4 day period (or in the 30-day period in the case of 

5 aggravated felons) in which the alien may file a peti6 tion for review of a final removal order. 

7 ‘‘(9) Nothing contained in this section shall be 

8 construed to preclude the Attorney General from de9 taining or continuing to detain an alien or from tak10 ing the alien into custody pursuant to section 241 of 

11 this Act at any time after the issuance of a removal 

12 order. 

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

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

15 court shall review the proceedings on a typewritten 

16 record and on typewritten briefs. 

17 ‘‘(11) Any alien held in custody pursuant to an 

18 order of removal may obtain judicial review thereof 

19 by habeas corpus proceedings. 

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

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

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

24 Act may obtain judicial review of such order by habeas 

25 corpus proceedings and not otherwise.
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1 ‘‘(c) An order of removal shall not be reviewed by any 

2 court if the alien has not exhausted the administrative 

3 remedies available to the alien as of right under the immi4 gration laws and regulations. Every petition for review or 

5 for habeas corpus shall state whether the validity of the 

6 order has been upheld in any prior judicial proceeding, 

7 and, if so, the nature and date thereof, and the court in 

8 which such proceeding took place. No petition for review 

9 or for habeas corpus shall be entertained if the validity 

10 of the order has been previously determined in any civil 

11 or criminal proceeding, unless the petition presents 

12 grounds which the court finds could not have been pre13 sented in such prior proceeding, or the court finds that 

14 the remedy provided by such prior proceeding was inad15 equate or ineffective to test the validity of the order. 

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

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

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

19 only—

20 ‘‘(A) whether the alien is in fact the alien de21 scribed in the order; 

22 ‘‘(B) whether the alien is in fact an alien de23 scribed in section 238(b)(2)(A) who is not eligible 

24 for relief from removal under this Act;
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1 ‘‘(C) whether the alien has been convicted of an 

2 aggravated felony and such conviction has become 

3 final; and 

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

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

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

8 SEC. 112. JUDICIAL REVIEW OF ASYLUM DETERMINATIONS. 

9 (a) AUTHORITY TO APPLY FOR ASYLUM.—Section 

10 208(a) (8 U.S.C. 1158(a)) is amended by striking para11 graph (3). 

12 (b) CONDITIONS FOR GRANTING ASYLUM.—Section 

13 208(b)(2) (8 U.S.C. 1158(b)(2)) is amended by striking 

14 subparagraph (D). 

15 SEC. 113. JUDICIAL REVIEW OF DECISIONS CONCERNING 

16 APPREHENSION AND DETENTION OF ALIENS. 

17 Section 236 (8 U.S.C. 1226) is amended by striking 

18 subsection (e). 

19 SEC. 114. JUDICIAL REVIEW OF DECISIONS CONCERNING 

20 WAIVERS. 

21 (a) INADMISSIBLE ALIENS.—Section 212 (8 U.S.C. 

22 1182) is amended—

23 (1) by striking the final sentences of sub24 sections (d)(12) and (h); and 

25 (2) in subsection (i)—
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1 (A) by striking paragraph (2); and 

2 (B) by striking ‘‘(i)(1)’’ and inserting 

3 ‘‘(i)’’. 

4 (b) DEPORTABLE ALIENS.—Section 237(a)(3)(C)(ii) 

5 (8 U.S.C. 1227(a)(3)(C)(ii)) is amended by striking the 

6 final sentence. 

7 SEC. 115. JUDICIAL REVIEW OF ORDERS ISSUED IN 

8 ABSENTIA. 

9 Section 240(b)(5) (8 U.S.C. 1229a(b)(5)) is amended 

10 by striking subparagraph (D) and redesignating subpara11 graph (E) as subparagraph (D). 

12 SEC. 116. JUDICIAL REVIEW OF DENIAL OF REQUEST FOR 

13 ORDER OF VOLUNTARY DEPARTURE. 

14 Section 240B (8 U.S.C. 1229c) is amended by strik15 ing subsection (f). 

16 SEC. 117. TRANSITIONAL CHANGES IN JUDICIAL REVIEW. 

17 Section 309(c)(4) of the Illegal Immigration Reform 

18 and Immigrant Responsibility Act of 1996 (8 U.S.C. 1101 

19 note) is repealed. 

20 Subtitle C—Fairness in Removal 

21 Proceedings 

22 SEC. 121. EQUITABLE BURDEN OF PROOF FOR ADMISSI23 BILITY. 

24 Section 240(c)(2) (8 U.S.C. 1229a(c)(2)) is amend25 ed—
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1 (1) in the matter preceding subparagraph (A), 

2 by striking ‘‘establishing—’’ and inserting ‘‘estab3 lishing, by clear and convincing evidence—’’; 

4 (2) in subparagraph (A), by striking ‘‘clearly 

5 and beyond doubt’’; and 

6 (3) in subparagraph (B), by striking ‘‘by clear 

7 and convincing evidence,’’.

8 SEC. 122. PRESUMPTION IN FAVOR OF WITHDRAWAL OF AP9 PLICATION FOR ADMISSION. 

10 Section 235(a)(4) (8 U.S.C. 1225(a)(4)) is amended 

11 to read as follows: 

12 ‘‘(4) WITHDRAWAL OF APPLICATION FOR AD13 MISSION.—

14 ‘‘(A) PRESUMPTION IN FAVOR OF WITH15 DRAWAL.—The Attorney General shall permit 

16 an alien applying for admission to withdraw the 

17 application and depart immediately from the 

18 United States at any time, unless an immigra19 tion judge has rendered a decision with respect 

20 to the admissibility of the alien, except that the 

21 Attorney General may deny permission for the 

22 withdrawal when warranted by unusual cir23 cumstances. 

24 ‘‘(B) PERMISSIVE WITHDRAWAL.—Except 

25 as provided in subparagraph (A), an alien ap-
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1 plying for admission may, in the discretion of 

2 the Attorney General and at any time after a 

3 decision described in such subparagraph has 

4 been rendered, be permitted to withdraw the 

5 application and depart immediately from the 

6 United States.’’. 

7 SEC. 123. ABSENCES OUTSIDE THE CONTROL OF THE 

8 ALIEN. 

9 Section 101(a)(13)(C) (8 U.S.C. 1101(a)(13(C)) is 

10 amended—

11 (1) by amending clause (ii) to read as follows: 

12 ‘‘(ii) has been absent from the United 

13 States for a continuous period in excess of 

14 one year unless the alien’s return was im15 peded by emergency or extenuating cir16 cumstances outside the control of the 

17 alien,’’; 

18 (2) by inserting ‘‘or’’ at the end of clause (iii); 

19 (3) by striking clauses (iv) and (v); and 

20 (4) by redesignating clause (vi) as clause (iv). 

21 SEC. 124. REINSTATEMENT OF REMOVAL ORDERS AGAINST 

22 ALIENS ILLEGALLY REENTERING. 

23 Section 241(a)(5) (8 U.S.C. 1231(a)(5)) is amended 

24 is amended to read as follows:
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1 ‘‘(5) REINSTATEMENT OF REMOVAL ORDERS

2 AGAINST ALIENS ILLEGALLY REENTERING.—If after 

3 a hearing before an immigration judge the Attorney 

4 General finds that an alien has reentered the United 

5 States illegally after having been removed or having 

6 departed voluntarily, under an order of removal 

7 issued on or after April 1, 1997, the prior order of 

8 removal may be deemed to be reinstated from its 

9 original date and the alien may be removed under 

10 the prior order at any time after the reentry subject 

11 to reopening and review of the previous order. Noth12 ing in this section shall preclude an alien from ap13 plying for any relief from removal under this Act.’’. 

14 SEC. 125. REMOVAL HEARINGS OPEN TO THE PUBLIC. 

15 Section 239 (8 U.S.C. 1229) is amended by adding 

16 at the end the following new subsection: 

17 ‘‘(e) REMOVAL PROCEEDINGS OPEN TO THE PUB18 LIC.—

19 ‘‘(1) IN GENERAL.—Subject to paragraph (2), a 

20 removal proceeding held pursuant to section 240 

21 shall be open to the public. 

22 ‘‘(2) EXCEPTIONS.—A removal proceeding may 

23 be closed to the public to preserve the confidentiality 

24 of asylum applications, withholding of removal, relief 

25 under the Convention Against Torture, battered im-
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1 migrants, or for protecting witnesses, parties, or 

2 other persons from a substantial risk of physical 

3 harm. In a case where closing a removal proceeding 

4 is appropriate pursuant to this paragraph, the clos5 ing of the proceeding shall be limited to the portion 

6 that is necessary to achieve a compelling interest 

7 and there is no less restrictive alternative.’’. 

8 SEC. 126. DEADLINE FOR PLACEMENT IN REMOVAL PRO9 CEEDINGS. 

10 Section 236(a) (8 U.S.C. 1226(a)) is amended by 

11 adding after and below paragraph (3) at the end the fol12 lowing: 

13 ‘‘Except as provided in section 236A(a)(5), the Attorney 

14 General shall place an alien detained under this Act in 

15 removal proceedings not later than 48 hours after com16 mencement of such detention.’’. 

17 Subtitle D—Fairness in Detention 

18 SEC. 131. RESTORING DISCRETIONARY AUTHORITY TO THE 

19 ATTORNEY GENERAL IN CASES OF INDIVID20 UALS WHO POSE NO RISK TO SAFETY OR OF 

21 FLEEING. 

22 Section 236(c) (8 U.S.C. 1226(c)) is amended—

23 (1) in paragraph (1), by striking ‘‘Attorney 

24 General shall’’ and inserting ‘‘Attorney General 

25 may’’; and
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1 (2) by amending paragraph (2) to read as fol2 lows: 

3 ‘‘(2) RELEASE.—The Attorney General shall re4 lease any alien described in paragraph (1) if the 

5 alien satisfies the Attorney General that the alien 

6 will not pose a danger to the safety of other persons 

7 or of property and is likely to appear for any sched8 uled proceeding. All custody, bond, and parole deter9 minations shall be reviewable by an immigration 

10 judge and subject to administrative appeal.’’. 

11 SEC. 132. PERIODIC REVIEW OF DETENTION DETERMINA12 TION. 

13 Section 241(a)(6) (8 U.S.C. 1231(a)(6)) is amend14 ed—

15 (1) by inserting ‘‘(A)’’ after the dash; 

16 (2) by inserting ‘‘for a reasonable period of 

17 time, not to exceed 6 months following the entry of 

18 a final order of removal, to allow for ongoing nego19 tiations to effect such removal’’ after ‘‘removal pe20 riod’’; and 

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

22 ‘‘(B) During the removal period, the Attorney 

23 General shall review whether continued detention of 

24 the alien is appropriate under subparagraph (A). 
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1 ‘‘(C) Determinations under this paragraph shall 

2 be subject to de novo review by an immigration 

3 judge and administrative appeal. In such review, it 

4 shall be the Attorney General’s burden to prove that 

5 continued detention is appropriate under subpara6 graph (A). 

7 ‘‘(D) This paragraph does not apply to aliens 

8 detained pursuant to section 236A(a)(1).’’. 

9 SEC. 133. LIMITATION ON INDEFINITE DETENTION. 

10 Section 241 (8 U.S.C. 1231) is amended by adding 

11 at the end the following: 

12 ‘‘(j) Notwithstanding any other provision of this sec13 tion, including subsection (a)(2), the Attorney General 

14 may not detain an alien who requests release and dem15 onstrates to the Attorney General that—

16 ‘‘(1) the alien is not a risk to the community 

17 and is likely to comply with the order of removal; 

18 and 

19 ‘‘(2) removal of the alien cannot be effectuated 

20 within the removal period specified in section 

21 241(a)(6)(A). 

22 The determination by the Attorney General shall be sub23 ject to de novo review by an immigration judge and admin24 istrative appeal.’’. 
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1 SEC. 134. PILOT PROGRAM TO CONSIDER ALTERNATIVES 

2 TO DETENTION. 

3 (a) PILOT PROGRAM ON ALTERNATIVES TO DETEN4 TION IN PENAL SETTING.—The Attorney General shall es5 tablish a pilot program in 3 district offices of the Immi6 gration and Naturalization Service to determine the viabil7 ity of supervision, through means other than confinement 

8 in a penal setting, of aliens who have no criminal record, 

9 or have a criminal record that does not include a felony 

10 that constitutes a crime of violence as described in section 

11 16 of title 18, United States Code, but who are subject 

12 to detention under the Immigration and Nationality Act 

13 at the discretion of the Attorney General. 

14 (b) STUDY AND REPORT ON ALTERNATIVES TO DE15 TENTION IN PENAL SETTING.—In carrying out subsection 

16 (a), the Attorney General shall conduct a study, and sub17 mit a report to the Congress not later than 6 months after 

18 the date of the enactment of this Act, on alternatives to 

19 detention of aliens who have no criminal record (or have 

20 a criminal record that does not include a felony that con21 stitutes a crime of violence as described in section 16 of 

22 title 18, United States Code) and are not inadmissible or 

23 deportable by reason of having committed a criminal of24 fense in detention facilities used for the incarceration of 

25 persons convicted of a criminal offense.
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1 SEC. 135. ELIMINATION OF MANDATORY DETENTION IN EX2 PEDITED REMOVAL PROCEEDINGS. 

3 Section 235(b)(1)(B)(iii)(IV) (8 U.S.C. 

4 1225(b)(1)(B)(iii)(IV)) is amended to read as follows: 

5 ‘‘(IV) DETENTION.—Aliens sub6 ject to the procedures under this 

7 clause shall be detained in accordance 

8 with section 236.’’. 

9 SEC. 136. RIGHT TO COUNSEL. 

10 Section 292 (8 U.S.C. 1362) is amended by striking 

11 the matter after the section designation and inserting the 

12 following: ‘‘In any bond, custody, detention, or removal 

13 proceedings before the Attorney General and in any appeal 

14 proceedings before the Attorney General from any such 

15 proceedings, the person concerned shall have the privilege 

16 of being represented (at no expense to the government) 

17 by such counsel, authorized to practice in such pro18 ceedings, as he shall choose. With consent of their clients, 

19 counsel may enter appearances limited to bond, custody, 

20 or other specific proceedings.’’.

21 SEC. 137. AUTOMATIC STAYS OF RELEASE ORDERS. 

22 (a) RELEASE ORDERS OF IMMIGRATION JUDGES AND

23 THE BOARD OF IMMIGRATION APPEALS.—

24 (1) IN GENERAL.——

25 (A) STAY.—In the case of an alien de26 tained by the Service in which a district direc-
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1 tor of the Service has determined that the alien 

2 should not be released or has set a bond for re3 lease of the alien, no order of an immigration 

4 judge or the Board authorizing release (on bond 

5 or otherwise) may be stayed except in accord6 ance with this section. 

7 (B) DEADLINE.—In any case where the 

8 Board has issued a stay of release pending ap9 peal, a final decision on the appeal from the 

10 bond redetermination decision shall be made 

11 within 30 days. 

12 (2) STAYS OF IMMIGRATION JUDGE RELEASE

13 ORDERS BY BOARD.—

14 (A) EMERGENCY STAY.—An order of an 

15 immigration judge redetermining the conditions 

16 of custody of an alien may be stayed by order 

17 of the Board, for a period not to exceed 30 days 

18 from the date of the order authorizing release, 

19 if the Service demonstrates to the satisfaction 

20 of the Board that—

21 (i) there is a likelihood of success by 

22 the Service on the merits; 

23 (ii) irreparable harm would occur if a 

24 stay of the order is not granted;
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1 (iii) the potential harm to the Service 

2 outweighs the harm to the alien who is the 

3 subject of the order if a stay of the order 

4 is not granted; and 

5 (iv) granting a stay of the order would 

6 serve the public interest. 

7 (B) AUTOMATIC STAY IN CERTAIN

8 CASES.—If an alien is subject to section 

9 236(c)(1), and the Service has denied the 

10 alien’s request for release or has set a bond of 

11 $10,000 or more, any order of an immigration 

12 judge authorizing release of an alien (on bond 

13 or otherwise) shall, upon the Service’s filing of 

14 a notice of intent to appeal a custody redeter15 mination with the immigration court within one 

16 business day of the day the order is issued, be 

17 automatically stayed for a period of 5 days in 

18 order to provide the Service with an opportunity 

19 to request an emergency stay under subpara20 graph (A). Any such stay shall lapse upon fail21 ure of the Service to file a timely notice of ap22 peal. 

23 (3) BOARD RELEASE ORDERS; STAYS BY AT24 TORNEY GENERAL.—
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1 (A) PERIOD REQUIRED TO FILE STAY.—An 

2 order of the Board authorizing release of an 

3 alien (on bond or otherwise) shall be stayed for 

4 a period of 48 hours if the Service files with the 

5 Board a notice of intent to seek certification of 

6 the case to the Attorney General. 

7 (B) STAY.—If, within the 48-hour period 

8 described in subparagraph (A), the Attorney 

9 General or the Deputy Attorney General per10 sonally determines in writing that there are rea11 sonable grounds to believe that the alien is in12 volved in terrorist activity or is a threat to na13 tional security, an order described in subpara14 graph (A) may be stayed for an additional pe15 riod 10 days from the date of the order of the 

16 Board authorizing release. 

17 (C) DECISION BY ATTORNEY GENERAL.—

18 Before the expiration of the 10-day period de19 scribed in subparagraph (B), the Attorney Gen20 eral or the Deputy Attorney General shall per21 sonally determine whether to certify the alien 

22 under section 236A of the Immigration and 

23 Naturalization Act. If the alien is not so cer24 tified, the stay shall expire and the order of the 

25 Board authorizing release shall go into effect. 
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1 (b) DEFINITIONS.—In this section: 

2 (1) BOARD.—The term ‘‘Board’’ means the 

3 Board of Immigration Appeals or successor body 

4 charged with reviewing the decisions of an immigra5 tion judge. 

6 (2) IMMIGRATION JUDGE.—The term ‘‘immigra7 tion judge’’ means an immigration judge or other 

8 hearing officer charged with reviewing initial cus9 tody, bond and release decisions. 

10 (3) SERVICE.—The term ‘‘Service’’ means the 

11 Immigration and Naturalization Service or successor 

12 body charged with making initial custody, bond or 

13 release decisions. 

14 SEC. 138. REPORT ON DETENTION OF ALIENS. 

15 (a) AMENDMENT TO HRIFA.—Section 904 of the 

16 Haitian Refugee Immigration Fairness Act of 1998 (en17 acted as part of Public Law 105–277) is amended—

18 (1) in subsection (a)(3), by inserting ‘‘or con19 tract facilities with private sector entities,’’ after 

20 ‘‘local facilities’’; 

21 (2) in subsections (d) and (e), by striking ‘‘and 

22 (c)’’ and inserting ‘‘(c), (d), and (e)’’ and by redesig23 nating such subsections as subsections (f) and (g), 

24 respectively; and
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•HR 47 IH 

1 (3) inserting after subsection (c) the following 

2 new subsections: 

3 ‘‘(d) INDEFINITE DETAINEES.—With respect to non4 removable aliens who have been detained for 90 days or 

5 more after having been served with a final order of re6 moval, the Attorney General shall also collect data and 

7 report to Congress, at least once every three months, con8 cerning the following: 

9 ‘‘(1) The number of such detainees per country 

10 of origin. 

11 ‘‘(2) The location of each such detainee by de12 tention facility. 

13 ‘‘(3) The number of such detainees who have 

14 been detained for the same length of time, in 3-

15 month increments. 

16 ‘‘(4) The number and percentage of such de17 tainees who have had annual custody reviews. 

18 ‘‘(5) The number and percentage of such de19 tainees who have come forward for a review of their 

20 detention pursuant to the Service’s custody review 

21 procedures. 

22 ‘‘(6) The number and percentage of such de23 tainees who have legal representation to assist them 

24 in custody determinations, cross referenced with the 

25 number who have come forward for a review of their 
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1 detention pursuant to the Service’s custody review 

2 procedures. 

3 ‘‘(7) The percentage of such detainees who did 

4 not receive a custody review initially because they 

5 did not make the requisite efforts to comply with 

6 their removal orders. 

7 ‘‘(e) PERSONS DETAINED ON OR AFTER SEPTEMBER

8 11, 2001.—With respect to persons who have been de9 tained on or after September 11, 2001, by the Department 

10 of Justice in connection with its initiatives on terrorism, 

11 whether or not certified as suspected terrorists under sec12 tion 236A(a)(3), and whether or not charged with any 

13 criminal offense or ground of removal relating to ter14 rorism, the Attorney General shall collect data and report 

15 to Congress, at least once every three months, concerning 

16 the following: 

17 ‘‘(1) The number of such persons who have 

18 been detained and the number who remain in deten19 tion, by country of origin and ethnic background. 

20 ‘‘(2) For each person detained—

21 ‘‘(A) the charges against such person; 

22 ‘‘(B) the disposition or current status of 

23 such charges; and
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1 ‘‘(C) the length of time after such person 

2 was taken into custody before immigration or 

3 criminal charges were filed. 

4 ‘‘(3) For each person held as a material wit5 ness, the orders of a court permitting such detention 

6 which have not been sealed and any orders permit7 ting the sealing of such orders. 

8 ‘‘(4) For each alien detained—

9 ‘‘(A) whether such alien was advised of the 

10 alien’s right to be represented by an attorney, 

11 at the alien’s own expense, whether such alien 

12 obtained representation, and the efforts of the 

13 Department to facilitate such representation; 

14 and 

15 ‘‘(B) whether such alien was advised of the 

16 alien’s right to consular assistance and the 

17 practical steps taken to permit such person to 

18 obtain such assistance. 

19 ‘‘(5) For each alien who was charged with a 

20 ground of removal and ordered removed, whether 

21 such alien has been removed. 

22 ‘‘(6) For each alien who was charged with a 

23 ground of removal and who has not been removed—

24 ‘‘(A) whether such alien continues to be 

25 detained and whether such alien has been given 
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1 a hearing before an immigration judge to deter2 mine risk of flight or dangerousness and the 

3 outcome of such hearing and any appeals there4 from; and 

5 ‘‘(B) whether such alien is contesting de6 portability or inadmissibility or applying for any 

7 relief from removal and, if such alien is not 

8 doing so, the reason for the alien’s continued 

9 detention. 

10 ‘‘(7) For each alien who has been removed—

11 ‘‘(A) whether the United States govern12 ment urged the nation to which the alien was 

13 removed to detain that alien; 

14 ‘‘(B) the United States government’s pur15 pose in urging such detention; 

16 ‘‘(C) whether the Department of State has 

17 determined that the foreign government detain18 ing such alien uses torture or other coercive 

19 methods of interrogation; and 

20 ‘‘(D) whether the United States govern21 ment intends to obtain any information from 

22 such foreign government that is the result of in23 terrogation of that alien.’’. 

24 (b) SENSE OF CONGRESS.—The following is the sense 

25 of Congress:
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1 (1) The failure of the Attorney General to meet 

2 the reporting requirements of sections 903(b) and 

3 904(d) of the Haitian Refugee Immigration Fairness 

4 Act of 1998 (enacted as part of Public Law 105–

5 277), as in effect prior to the date of the enactment 

6 of this Act, has severely impacted the ability of Con7 gress to exercise its plenary power over immigration 

8 and meet its constitutional responsibility to conduct 

9 oversight over the detention practices of the Immi10 gration and Naturalization Service. 

11 (2) Congress is deeply troubled by the repeated 

12 failure of the Attorney General, without explanation, 

13 to meet these and other reporting requirements 

14 mandated by law. 

15 (3) Congress expects that the Attorney General 

16 will produce the reports mandated by sections 

17 903(b) and 904(d) of such Act (as in effect prior to 

18 the date of the enactment of this Act) without delay. 

19 (4) Congress further expects that the Attorney 

20 General will produce the reports mandated by sec21 tions 904(d) and 904(e) of such Act, as amended by 

22 this section, not later than 90 days after the date of 

23 the enactment of this Act. 

24 (5) Congress further expects that, immediately 

25 upon the enactment of this Act, the Attorney Gen-
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1 eral will inform Congress of his progress in com2 plying with the reporting requirements described in 

3 paragraphs (3) and (4), including the estimated 

4 dates of completion of such reports. 

5 SEC. 139. CLARIFICATION OF INTENT OF TRANSITIONAL 

6 PROVISION ON REFERENCES TO REMOVAL 

7 ORDERS. 

8 Section 309(d)(2) of the Illegal Immigration Reform 

9 and Immigrant Responsibility Act of 1996 (8 U.S.C. 1101 

10 note) is amended by striking ‘‘deportation.’’ and inserting 

11 ‘‘deportation, except that nothing in this paragraph shall 

12 be construed as making any change in the Immigration 

13 and Nationality Act made by this Act effective retro14 actively.’’. 

15 Subtitle E—Consular Review of 

16 Visa Applications 

17 SEC. 141. ESTABLISHMENT OF A BOARD OF VISA APPEALS. 

18 (a) IN GENERAL.—The Immigration and Nationality 

19 Act is amended by inserting after section 224 the following 

20 new section: 

21 ‘‘BOARD OF VISA APPEALS

22 ‘‘SEC. 225. (a) ESTABLISHMENT.—The Secretary of 

23 State shall establish within the Department of State a 

24 Board of Visa Appeals. The Board shall be composed of 

25 5 members who shall be appointed by the Secretary. Not 
35

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1 more than 2 members of the Board may be consular offi2 cers. The Secretary shall designate a member who shall 

3 be chairperson of the Board. 

4 ‘‘(b) AUTHORITY AND FUNCTIONS.—The Board shall 

5 have authority to review any discretionary decision of a 

6 consular officer with respect to an alien concerning the 

7 denial, revocation, or cancellation of an immigrant visa or 

8 of a nonimmigrant visa or petition, or the denial of an 

9 application for waiver of one or more grounds of inadmis10 sibility under section 212. The review of the Board shall 

11 be made upon the record for decision of the consular offi12 cer, including all documents, notes, and memoranda filed 

13 with the consular officer, supplemented by affidavits and 

14 other writings if offered by the consular officer or alien. 

15 Upon a conclusive showing that the decision of the con16 sular official is contrary to the preponderance of the evi17 dence, the Board shall have authority to overrule, or re18 mand for further consideration, the decision of such con19 sular officer. 

20 ‘‘(c) PROCEDURE.—Proceedings before the Board 

21 shall be in accordance with such regulations, not incon22 sistent with this Act and sections 556 and 557 of title 

23 5, United States Code, as the Secretary of State shall pre24 scribe. Such regulations shall include requirements that 

25 provide that—
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1 ‘‘(1) at the time of any decision of a consular 

2 officer under subsection (b), an alien, attorney of 

3 record, and any interested party defined in sub4 section (d) shall be given notice of the availability of 

5 the review process and the necessary steps to re6 quest such review; 

7 ‘‘(2) a written record of the proceedings and de8 cision of the consular officer (in accordance with sec9 tions 556 and 557 of title 5, United States Code) 

10 shall be available to the Board, and on payment of 

11 lawfully prescribed costs, shall be made available to 

12 the alien; 

13 ‘‘(3) upon receipt of request for review under 

14 this section, the Board shall, within 30 days, notify 

15 the consular officer with respect to whose decision 

16 review is sought, and, upon receipt of such notice, 

17 such officer shall promptly (but in no event more 

18 than 30 days after such receipt) forward to the 

19 Board the record of proceeding as described in sub20 section (b); 

21 ‘‘(4) the appellant shall be given notice, reason22 able under all the circumstances of the time and 

23 place at which the Board proceedings will be held; 

24 ‘‘(5) the appellant may be represented (at no 

25 expense to the Government) by such counsel, author-
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1 ized to practice in such proceedings, as the appellant 

2 shall choose; and 

3 ‘‘(6) a request for review under this section 

4 must be made in writing to the Board within 60 

5 days after receipt of notice of the denial, revocation, 

6 or cancellation. 

7 ‘‘(d) INTERESTED PARTIES.—The Board shall review 

8 each decision described in subsection (b) upon request of 

9 the alien or any of the following interested parties: 

10 ‘‘(1) The petitioner or beneficiary of an immi11 grant visa petition approved under section 203(a), 

12 203(b)(1), 203(b)(4), 203(b)(5), or 203(c), or the 

13 petitioner of an immigrant visa petition approved 

14 under section 203(b)(2) or 203(b)(3). 

15 ‘‘(2) The petitioner of a nonimmigrant visa pe16 tition. 

17 ‘‘(3) The postsecondary educational institution 

18 approved for the attendance of nonimmigrant stu19 dents under section 101(a)(15)(F)(i) or 

20 101(a)(15)(M)(i) which has provided notice of the 

21 acceptance of the alien in its program. 

22 ‘‘(4) A recognized international agency or orga23 nization approved as a program sponsor under sec24 tion 101(a)(15)(J) which has provided notice of the 

25 acceptance of the alien in its program.
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•HR 47 IH 

1 ‘‘(5) A treaty investor or trader individual or 

2 organization in the United States that, under section 

3 101(a)(15)(E), has made an offer of employment to 

4 an alien to perform executive or supervisory manage5 ment functions. 

6 ‘‘(e) LIMITATION.—A review may not be requested 

7 under this section more than once in any 24-month period. 

8 ‘‘(f) CONSTRUCTION.—This section may not be con9 strued to restrict any right to further administrative or 

10 judicial review established under any other provision of 

11 law. 

12 ‘‘(g) FEES.—The Secretary of State shall charge, and 

13 collect, an appropriate fee associated with a request to the 

14 Board for a review. Such fee shall be sufficient to cover 

15 the cost of the administration of this section.’’. 

16 (b) TECHNICAL AMENDMENTS.—

17 (1) Section 222(f) (8 U.S.C. 1202(f)) is amend18 ed—

19 (A) by striking ‘‘except that’’ and all that 

20 follows up to the period; and 

21 (B) by adding at the end: ‘‘An interested 

22 party under section 225(d) or court shall be 

23 permitted to inspect the record of proceeding as 

24 described in subsections (c)(2) and (c)(3) of 

25 section 225.’’. 
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1 (2) Section 104(a)(1) (8 U.S.C. 1104(a)(1)) is 

2 amended by striking the ‘‘except’’ and inserting ‘‘in3 cluding’’. 

4 (3) The table of contents is amended by insert5 ing after the item relating to section 224 the fol6 lowing new item:

‘‘Sec. 225. Board of Visa Appeals.’’.

7 SEC. 142. NONDISCRIMINATION PROVISIONS. 

8 (a) NONDISCRIMINATION IN ISSUANCE OF IMMI9 GRANT VISAS.—Section 202(a)(1) (8 U.S.C. 1152(a)(1)) 

10 is amended—

11 (1) in subparagraph (A), by inserting ‘‘sexual 

12 orientation, disability,’’ after ‘‘sex,’’; and 

13 (2) in subparagraph (B), by striking ‘‘proc14 essed.’’ and inserting ‘‘processed, to the extent that 

15 such procedures do not discriminate based on race, 

16 sex, sexual orientation, disability, nationality, place 

17 of birth, or place of residence in violation of sub18 paragraph (A).’’. 

19 (b) NONDISCRIMINATION IN ISSUANCE OF NON20 IMMIGRANT VISAS.—Section 214 (8 U.S.C. 1184) is 

21 amended—

22 (1) by redesignating the subsection (l) added by 

23 section 625(a) of the Illegal Immigration Reform 

24 and Immigrant Responsibility Act of 1996 (Public 
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1 Law 104–208; 110 Stat. 3009–1820) as subsection 

2 (m); and 

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

4 ‘‘(n) Except as specifically provided by law, no person 

5 shall receive any preference or priority or be discriminated 

6 against in the issuance of a nonimmigrant visa because 

7 of the person’s race, sex, sexual orientation, disability, na8 tionality, place of birth, or place of residence.’’. 

9 TITLE II—FAIRNESS AND EQUITY 

10 IN CASES INVOLVING PRE11 VIOUS AND MINOR MIS12 CONDUCT 

13 Subtitle A—Increased Fairness and 

14 Equity Concerning Removal 

15 Proceedings 

16 SEC. 201. EQUITABLE DEFINITION OF ‘‘CRIME INVOLVING 

17 MORAL TURPITUDE’’. 

18 (a) CONVICTION OF CERTAIN CRIMES.—Section 

19 212(a)(2)(A)(i) (8 U.S.C. 1182(a)(2)(A)(i)) is amended 

20 by striking ‘‘of, or who admits having committed, or who 

21 admits committing acts which constitute the essential ele22 ments of—’’ and inserting ‘‘of—’’. 

23 (b) EXCEPTION.—Section 212(a)(2)(A)(ii)(II) (8 

24 U.S.C. 1182(a)(2)(A)(ii)(II)) is amended—
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1 (1) by striking ‘‘the maximum’’ and all that fol2 lows through ‘‘such crime,’’; and 

3 (2) by striking ‘‘6 months’’ and inserting ‘‘1 

4 year’’. 

5 SEC. 202. EQUITABLE APPLICATION AND DEFINITION OF 

6 ‘‘AGGRAVATED FELONY’’. 

7 (a) ILLICIT TRAFFICKING.—Section 101(a)(43)(B) 

8 (8 U.S.C. 1101(a)(43))(B)) is amended by striking 

9 ‘‘Code);’’ and inserting ‘‘Code), except a single offense of 

10 simple possession of a controlled substance that is an 

11 alien’s first controlled substance offense;’’. 

12 (b) CRIMES OF VIOLENCE AND THEFT OFFENSES.—

13 Subparagraphs (F), (G), (J), (M), (R), and (S) of section 

14 101(a)(43) (8 U.S.C. 1101(a)(43)) are each amended by 

15 striking ‘‘imprisonment’’ and all that follows through the 

16 semicolon and inserting ‘‘imprisonment of more than 5 

17 years;’’. 

18 (c) ALIEN SMUGGLING.—Section 101(a)(43)(N) (8 

19 U.S.C. 101(a)(43)(N)) is amended—

20 (1) by inserting ‘‘committed for the purpose of 

21 commercial advantage,’’ after ‘‘smuggling),’’; and 

22 (2) by adding at the end a semicolon. 

23 (d) DISCRETIONARY WAIVER IN CASES OF OTHER

24 MINOR FELONIES.—Section 101 (8 U.S.C. 1101) is 

25 amended by adding at the end the following:
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1 ‘‘(i) For purposes of this Act, and notwithstanding 

2 subsection (a)(43), the Attorney General may treat any 

3 conviction that did not result in incarceration for more 

4 than 1 year as if such conviction were not a conviction 

5 for an aggravated felony.’’. 

6 (e) CONFORMING CHANGE CONCERNING REMOVAL

7 OF NONPERMANENT RESIDENTS.—Section 238(b) (8 

8 U.S.C. 1228(b)) is amended by striking paragraph (5). 

9 SEC. 203. EQUITABLE DEFINITIONS OF ‘‘CONVICTION’’ AND 

10 ‘‘TERM OF IMPRISONMENT’’. 

11 Section 101(a)(48) (8 U.S.C. 1101(a)(48)) is amend12 ed—

13 (1) in subparagraph (A), by striking ‘‘court’’ 

14 and all that follows through the period at the end 

15 and inserting ‘‘court. An adjudication or judgment 

16 of guilt that has been expunged, deferred, annulled, 

17 invalidated, withheld, or vacated, an order of proba18 tion without entry of judgment, or any similar dis19 position shall not be considered a conviction for pur20 poses of this Act.’’; and 

21 (2) in subparagraph (B)—

22 (A) by inserting ‘‘only’’ after ‘‘deemed to 

23 include’’; and 

24 (B) by striking ‘‘court of law’’ and all that 

25 follows through the period at the end and in-
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1 serting ‘‘court of law. Any such reference shall 

2 not be deemed to include any suspension of the 

3 imposition or execution of that imprisonment or 

4 sentence in whole or in part.’’. 

5 SEC. 204. EQUITABLE DEFINITION OF ‘‘CRIMES OF MORAL 

6 TURPITUDE’’. 

7 Section 237(a)(2)(A)(i)(II) (8 U.S.C. 

8 1227(a)(2)(A)(i)(II)) is amended to read as follows: 

9 ‘‘(II) for which the alien has been 

10 incarcerated for a period exceeding 

11 one year,’’.

12 SEC. 205. RESTORATION OF FAIRNESS IN EQUITABLE RE13 LIEF FOR LONG-TIME LEGAL PERMANENT 

14 RESIDENTS. 

15 (a) CANCELLATION OF REMOVAL.—Section 

16 240A(a)(3) (8 U.S.C. 1229b(a)(3)) is amended to read as 

17 follows: 

18 ‘‘(3) has not been convicted of an aggravated 

19 felony for which the sentence imposed is five years 

20 or more.’’. 

21 (b) REPEAL OF RULE FOR TERMINATION OF CON22 TINUOUS PERIOD.—

23 (1) Section 240A(d)(1) (8 U.S.C. 1229b(d)(1)) 

24 (8 U.S.C. 1229b(a)) is repealed. 
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1 (2) Section 240A(d) (8 U.S.C. 1229b) is 

2 amended—

3 (A) by redesignating paragraphs (2) and 

4 (3) as paragraphs (1) and (2), respectively; and 

5 (B) by inserting before the period at the 

6 end of paragraph (1) (as redesignated) the fol7 lowing: ‘‘, unless the alien’s departure from the 

8 United States was due to a temporary trip 

9 abroad required by emergency or extenuating 

10 circumstances outside the control of the alien’’. 

11 (c) CANCELLATION OF REMOVAL FOR CERTAIN

12 OTHER PERMANENT RESIDENTS FOR URGENT HUMANI13 TARIAN REASONS OR SIGNIFICANT PUBLIC BENEFIT.—

14 Section 240A (8 U.S.C. 1229b) is amended by adding at 

15 the end the following: 

16 ‘‘(f) CANCELLATION OF REMOVAL FOR CERTAIN

17 PERMANENT RESIDENTS FOR URGENT HUMANITARIAN

18 REASONS OR SIGNIFICANT PUBLIC BENEFIT.—In the 

19 case of an alien otherwise eligible for cancellation of re20 moval under subsection (a), except that the alien has been 

21 convicted of an aggravated felony that renders the alien 

22 unable to satisfy the requirement in subsection (a)(3), the 

23 Attorney General may cancel removal of the alien under 

24 such conditions as the Attorney General may prescribe, 

25 but only—
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•HR 47 IH 

1 ‘‘(1) on a case-by-case basis for urgent humani2 tarian reasons, significant public benefit (including 

3 assuring family unity), or any other sufficiently com4 pelling reason; and 

5 ‘‘(2) after making a written determination that 

6 the cancellation of removal poses no danger to the 

7 safety of persons or property.’’. 

8 SEC. 206. RESTORATION OF FAIRNESS IN EQUITABLE RE9 LIEF FOR OTHER NONCITIZENS. 

10 (a) CANCELLATION OF REMOVAL AND ADJUSTMENT

11 FOR CERTAIN NONPERMANENT RESIDENTS.—Section 

12 240A(b)(1) (8 U.S.C. 1229b(b)(1)) is amended to read as 

13 follows: 

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

15 cancel removal in the case of an alien who is inad16 missible or deportable from the United States if the 

17 alien—

18 ‘‘(A) has been physically present in the 

19 United States for a continuous period of—

20 ‘‘(i) 7 years immediately preceding the 

21 date of application in the case of an 

22 alien—

23 ‘‘(I) who is deportable on any 

24 ground other than a ground specified 

25 in clause (ii)(I); and
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1 ‘‘(II) whose deportation would, in 

2 the opinion of the Attorney General, 

3 result in extreme hardship to the alien 

4 or the alien’s spouse, parent, son, or 

5 daughter, who is a citizen of the 

6 United States or an alien lawfully ad7 mitted for permanent residence; or 

8 ‘‘(ii) 10 years immediately preceding 

9 the date of application in the case of an 

10 alien—

11 ‘‘(I) who is deportable for convic12 tion of an offense under section 

13 212(a)(2), 237(a)(2), or 237(a)(3); 

14 and 

15 ‘‘(II) whose deportation would, in 

16 the opinion of the Attorney General, 

17 result in exceptional and extremely 

18 unusual hardship to the alien or the 

19 alien’s spouse, parent, son, or daugh20 ter, who is a citizen of the United 

21 States or an alien lawfully admitted 

22 for permanent residence’’; and 

23 ‘‘(B) has been a person of good moral 

24 character during such period.’’.
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1 (b) ELIMINATION OF ANNUAL LIMITATION.—Section 

2 240A (8 U.S.C. 1229b) is amended by striking subsection 

3 (e). 

4 SEC. 207. ELIMINATING UNFAIR RETROACTIVE CHANGES IN 

5 REMOVAL RULES FOR PERSONS SUBJECT TO 

6 PENDING PROCEEDINGS. 

7 (a) APPLICATION OF AGGRAVATED FELONY DEFINI8 TION.—The last sentence of section 101(a)(43) (8 U.S.C. 

9 1101(a)(43)) is amended to read as follows: ‘‘The term 

10 shall not apply to any offense that was not covered by 

11 the term on the date on which the offense occurred.’’. 

12 (b) GROUNDS OF DEPORTABILITY.—Section 237 (8 

13 U.S.C. 1227) is amended by adding at the end the fol14 lowing new subsection: 

15 ‘‘(d) Notwithstanding any other provision of this sec16 tion, an alien is not deportable by reason of committing 

17 any offense that was not a ground of deportability on the 

18 date the offense occurred.’’. 

19 (c) GROUNDS OF INADMISSIBILITY.—Section 212 (8 

20 U.S.C. 1182) is amended by adding at the end the fol21 lowing new subsection: 

22 ‘‘(p) Notwithstanding any other provision of this sec23 tion, an alien is not inadmissible by reason of committing 

24 any offense that was not a ground of inadmissibility on 

25 the date the offense occurred.’’. 
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1 SEC. 208. ELIMINATING UNFAIR RETROACTIVE CHANGES IN 

2 REMOVAL RULES FOR PERSONS PREVIOUSLY 

3 REMOVED. 

4 (a) IN GENERAL.—The Attorney General shall estab5 lish a process by which an alien described in subsection 

6 (b) may apply for reopening a proceeding so as to seek 

7 relief from exclusion, deportation, or removal under sec8 tion 212(c) of the Immigration and Nationality Act, as 

9 such section was in effect prior to the enactment of the 

10 Antiterrorism and Effective Death Penalty Act of 1996, 

11 or section 240A of the Immigration and Nationality Act, 

12 as amended by this Act. 

13 (b) ALIEN DESCRIBED.—An alien referred to in sub14 section (a) is an alien who received a final order of exclu15 sion, deportation, or removal, or a decision on a petition 

16 for review or petition for habeas corpus, on or after Sep17 tember 30, 1996, and who was—

18 (1) excluded, deported, or removed from the 

19 United States by reason of having committed a 

20 criminal offense that was not a basis for removal, 

21 exclusion, or deportation on the date on which the 

22 offense was committed; 

23 (2) excluded, deported, or removed from the 

24 United States by reason of having committed a 

25 criminal offense that is not a basis for removal, ex-
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1 clusion, or deportation on the date of the enactment 

2 of this Act; or 

3 (3) excluded, deported, or removed from the 

4 United States by reason of having committed a 

5 criminal offense prior to April 24, 1996, for which 

6 there was relief from exclusion, deportation, or re7 moval available prior to such date. 

8 (c) PAROLE.—The Attorney General may exercise the 

9 parole authority under section 212(d)(5)(A) of the Immi10 gration and Nationality Act (8 U.S.C. 1182(d)(5)(A)) for 

11 the purpose of permitting aliens excluded, deported, or re12 moved from the United States to participate in the process 

13 established under subsection (a), if the alien establishes 

14 prima facie eligibility for the relief. 

15 Subtitle B—Increased Fairness and 

16 Equity Concerning 5-Year Bars 

17 to Admission and Other 

18 Grounds for Exclusion 

19 SEC. 211. LIMITING 5-YEAR BAR TO ADMISSION TO PER20 SONS WHO WILLFULLY FAIL TO ATTEND RE21 MOVAL PROCEEDINGS. 

22 Section 212(a)(6)(B) (8 U.S.C. 1182(a)(6)(B)) is 

23 amended to read as follows: 

24 ‘‘(B) FAILURE TO ATTEND REMOVAL PRO25 CEEDINGS.—
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1 ‘‘(i) IN GENERAL.—Any alien who 

2 willfully and without reasonable cause fails 

3 or refuses to attend or remain in attend4 ance at a proceeding to determine the 

5 alien’s inadmissibility or deportability and 

6 who seeks admission to the United States 

7 within 5 years of such alien’s subsequent 

8 departure or removal is inadmissible. 

9 ‘‘(ii) WAIVER AUTHORIZED.—For pro10 vision authorizing waiver of clause (i), see 

11 subsection (d)(13).’’. 

12 SEC. 212. LIMITING 5-YEAR BAR TO ADMISSION TO PER13 SONS WHO WILLFULLY VIOLATE STUDENT 

14 VISA CONDITIONS. 

15 (a) IN GENERAL.—Section 212(a)(6)(G) (8 U.S.C. 

16 1182(a)(6)(G)) is amended to read as follows: 

17 ‘‘(G) STUDENT VISA ABUSERS.—

18 ‘‘(i) IN GENERAL.—An alien who ob19 tains the status of a nonimmigrant under 

20 section 101(a)(15)(F)(i) and who willfully 

21 violates a term or condition of such status 

22 under section 214(m) is inadmissible until 

23 the alien has been outside the United 

24 States for a continuous period of 5 years 

25 after the date of the violation.
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1 ‘‘(ii) WAIVER AUTHORIZED.—For pro2 vision authorizing waiver of clause (i), see 

3 subsection (d)(13).’’. 

4 (b) TECHNICAL AMENDMENT.—Section 

5 101(a)(15)(F)(i) (8 U.S.C. 1101(a)(15)(F)(i)) is amended 

6 by striking ‘‘214(l)’’ and inserting ‘‘214(m)’’. 

7 SEC. 213. LIMITING BAN ON ADMISSIBILITY TO PERSONS 

8 WHO WILLFULLY MAKE FALSE CLAIMS FOR 

9 CITIZENSHIP. 

10 (a) CLASSES OF DEPORTABLE ALIENS.—Section 

11 237(a)(3)(D) (8 U.S.C. 1227(a)(3)(D)) is amended by in12 serting ‘‘and willfully’’ after ‘‘falsely’’ each place such 

13 term appears. 

14 (b) CLASSES OF INADMISSIBLE ALIENS.—Section 

15 212(a)(6)(C)(ii) (8 U.S.C. 1182(a)(6)(C)(ii)) is amended 

16 by inserting ‘‘and willfully’’ after ‘‘falsely’’ each place such 

17 term appears. 

18 SEC. 214. EQUITABLE WAIVER OF INADMISSIBILITY FOR 

19 MINOR CRIMINAL OFFENSES. 

20 Section 212(h) (8 U.S.C. 1182(h)) is amended—

21 (1) in the matter preceding paragraph (1), by 

22 striking ‘‘offense of simple possession of 30 grams or 

23 less of marijuana’’ and inserting ‘‘controlled sub24 stance offense for which the alien was not incarcer25 ated for a period exceeding 1 year’’; and
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1 (2) by striking the final two sentences. 

2 SEC. 215. ELIMINATING THE 3 AND 10 YEAR BARS TO INAD3 MISSIBILITY. 

4 Section 212(a)(9) (8 U.S.C. 1182(a)(9)) is amend5 ed—

6 (1) by striking subparagraph (B) and redesig7 nating subparagraph (C) as subparagraph (B); and 

8 (2) in subparagraph (B), as so redesignated, by 

9 striking ‘‘10 years’’ and inserting ‘‘3 years’’.

10 TITLE III—ENCOURAGING 

11 FAMILY REUNIFICATION 

12 Subtitle A—Reuniting Family 

13 Members 

14 SEC. 301. VISA FOR SPOUSES AND CHILDREN OF PERMA15 NENT RESIDENTS TEMPORARILY WAITING 

16 FOR VISA NUMBERS. 

17 (a) IN GENERAL.—Section 101(a)(15)(V) (8 U.S.C. 

18 1101(a)(15)(V)) is amended to read as follows: 

19 ‘‘(V) an alien (other than one coming for the 

20 purpose of study or of performing skilled or un21 skilled labor or as a representative of foreign press, 

22 radio, film, or other foreign information media com23 ing to engage in such vocation) who is the bene24 ficiary of a petition approved under—
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1 ‘‘(i) section 204 (excluding the provisions 

2 of such section referred to in clause (ii)) for 

3 classification by reason of a relationship de4 scribed in section 203(a)(2)(A) with an alien 

5 lawfully admitted for permanent residence, who 

6 is awaiting the availability of an immigrant visa 

7 based upon such approval, and who seeks to 

8 enter the United States to achieve family unity 

9 by joining the permanent resident alien in the 

10 United States; or 

11 ‘‘(ii) clause (iii), (iv), (v), or (vi) of section 

12 204(a)(1)(A) or clause (ii), (iii), or (iv) of sec13 tion 204(a)(1)(B) and who is awaiting the 

14 availability of an immigrant visa based upon 

15 such approval.’’. 

16 (b) PROVISIONS AFFECTING NONIMMIGRANT STA17 TUS.—Section 214 (8 U.S.C. 1184) is amended—

18 (1) by redesignating the subsections (o) and 

19 (p), as added by sections 1102(b) and 1103(b) of 

20 the Departments of Commerce, Justice, and State, 

21 the Judiciary, and Related Agencies Appropriations 

22 Act, 2001 (as enacted into law by section 1(a)(2) of 

23 Public Law 106–553) as subsections (p) and (q), re24 spectively; and 
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1 (2) by amending paragraph (1)(B)(i) of sub2 section (p) (as so redesignated) to read as follows: 

3 ‘‘(i) The petition filed under section 204 

4 for which the visa was authorized under section 

5 101(a)(15)(V).’’. 

6 SEC. 302. REFUGEE STATUS FOR UNMARRIED SONS AND 

7 DAUGHTERS OF REFUGEES. 

8 Section 207(c)(2) (8 U.S.C. 1157(c)(2)) is amended 

9 by adding at the end the following: 

10 ‘‘When warranted by unusual circumstances or to 

11 preserve family unity, the Attorney General may, in 

12 the Attorney General’s discretion, consider an un13 married son or daughter of a refugee to be a child 

14 of the refugee for purposes of this paragraph.’’. 

15 SEC. 303. ASYLEE STATUS FOR UNMARRIED SONS AND 

16 DAUGHTERS OF ASYLEES. 

17 Section 208(b)(3) (8 U.S.C. 1158(b)(3)) is amended 

18 by adding at the end the following: 

19 ‘‘When warranted by unusual circumstances or to 

20 preserve family unity, the Attorney General may, in 

21 the Attorney General’s discretion, consider an un22 married son or daughter of an alien who is granted 

23 asylum under this subsection to be a child of the 

24 alien for purposes of this paragraph.’’.
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1 Subtitle B—Limited Waiver of 

2 Grounds of Admissibility 

3 SEC. 311. DISCRETIONARY WAIVER IN CASES INVOLVING 

4 FAMILY MEMBERS. 

5 (a) IN GENERAL.—Section 212(i) (8 U.S.C. 1182(i)) 

6 is amended to read as follows: 

7 ‘‘(i) The Attorney General may, in the discretion of 

8 the Attorney General, waive the application of subpara9 graph (A)(i), or clause (i) or (ii) of subparagraph (C), of 

10 subsection (a)(6) in the case of an immigrant who is the 

11 parent, spouse, son, or daughter of a United States citizen 

12 or of an alien lawfully admitted for permanent residence 

13 if it is established to the satisfaction of the Attorney Gen14 eral that the refusal of admission to the United States 

15 of such immigrant alien would result in hardship to the 

16 alien or to the citizen or lawfully resident parent, spouse, 

17 son, or daughter of such an alien.’’. 

18 (b) CONFORMING AMENDMENTS.—Section 212(a)(6) 

19 (8 U.S.C. 1182(a)(6)) is amended—

20 (1) in subparagraph (A), by adding at the end 

21 the following: 

22 ‘‘(iii) WAIVER AUTHORIZED.—For 

23 provision authorizing waiver of this sub24 paragraph, see subsection (i).’’; and 
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1 (2) in subparagraph (C)(iii), by striking ‘‘clause 

2 (i),’’ and inserting ‘‘this subparagraph’’. 

3 SEC. 312. DISCRETIONARY WAIVER IN DOCUMENT CASES 

4 INVOLVING FAMILY MEMBERS. 

5 (a) INADMISSIBLE ALIENS.—Section 212(d)(12) (8 

6 U.S.C. 1182(d)(12)) is amended by striking ‘‘spouse or 

7 child’’ and inserting ‘‘spouse, son, daughter, or parent’’. 

8 (b) DEPORTABLE ALIENS.—Section 237(a)(3)(C)(ii) 

9 (8 U.S.C. 1227(a)(3)(C)(ii)) is amended by striking 

10 ‘‘spouse or child’’ and inserting ‘‘spouse, son, daughter, 

11 or parent’’. 

12 SEC. 313. DISCRETIONARY WAIVER TO ADMIT PERSONS IN 

13 UNUSUAL CIRCUMSTANCES. 

14 (a) NEW GENERAL WAIVER.—Section 212(d) (8 

15 U.S.C. 1182(d)) is amended by adding at the end the fol16 lowing: 

17 ‘‘(13) The Attorney General may, in the discretion 

18 of the Attorney General for humanitarian purposes, to as19 sure family unity, or when it is otherwise in the public 

20 interest, waive the application of subparagraph (B)(i) or 

21 (G)(i) of subsection (a)(6) or clause (i) or (ii) of subsection 

22 (a)(9)(A) in unusual circumstances. For purposes of the 

23 preceding sentence, an instance of battering or extreme 

24 cruelty is deemed to constitute unusual circumstances in 

25 the case where it is inflicted on an alien (or a child of
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1 an alien) by the alien’s United States citizen or lawful per2 manent resident spouse, parent, child, son, or daughter.’’. 

3 (b) WAIVER FOR ALIENS PREVIOUSLY REMOVED.—

4 Section 212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)) is amend5 ed by adding at the end the following: 

6 ‘‘(iv) WAIVER AUTHORIZED.—For 

7 provision authorizing waiver of clause (i) 

8 or (ii), see subsection (d)(13).’’. 

9 Subtitle C—Eliminating Unfairness 

10 and Waste in Section 245(i) 

11 Waivers 

12 SEC. 321. PERMANENT APPLICATION OF SECTION 245(i). 

13 Section 245(i)(1) (8 U.S.C. 1255(i)(1)) is amended 

14 by striking ‘‘(i)(1)’’ and all that follows through ‘‘The At15 torney General’’ and inserting the following:

16 ‘‘(i)(1) Notwithstanding the provisions of subsections 

17 (a) and (c) of this section, an alien physically present in 

18 the United States who—

19 ‘‘(A) entered the United States without inspec20 tion; or 

21 ‘‘(B) is within one of the classes enumerated in 

22 subsection (c) of this section; 

23 may apply to the Attorney General for the adjustment of 

24 his or her status to that of an alien lawfully admitted for 

25 permanent residence. The Attorney General’’. 
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1 Subtitle D—Equitable Procedures 

2 Concerning Voluntary Departure 

3 SEC. 331. DISCRETIONARY DETERMINATION OF PERIOD OF 

4 VOLUNTARY DEPARTURE. 

5 Section 240B (8 U.S.C. 1229c) is amended in sub6 sections (a)(2) and (b)(2) by striking ‘‘not be valid’’ and 

7 all that follows through the period and inserting ‘‘be valid 

8 for a period determined by the Attorney General to be 

9 suitable to an alien’s circumstances and that permits the 

10 alien to depart without government expense or interven11 tion.’’. 

12 SEC. 332. DISCRETIONARY DETERMINATION OF VOL13 UNTARY DEPARTURE BOND BASED ON INDI14 VIDUAL CIRCUMSTANCES. 

15 Section 240B(b)(3) (8 U.S.C. 1229c(b)(3)) is amend16 ed by striking ‘‘shall’’ and inserting ‘‘may’’. 

17 SEC. 333. ELIMINATION OF AUTOMATIC PENALTIES FOR 

18 FAILING TO DEPART IN ACCORDANCE WITH A 

19 VOLUNTARY DEPARTURE GRANT. 

20 Section 240B (8 U.S.C. 1229c) is amended by strik21 ing subsection (d). 
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1 Subtitle E—Fairness in 

2 Determination of Public Charge 

3 SEC. 341. EQUITABLE PROCEDURES CONCERNING PUBLIC 

4 CHARGE AND AFFIDAVIT OF SUPPORT. 

5 (a) GROUNDS FOR INELIGIBILITY FOR ADMISSION.—

6 Section 212(a)(4) (8 U.S.C. 1182(a)(4)) is amended—

7 (1) by amending subparagraph (B)(ii) to read 

8 as follows: 

9 ‘‘(ii) If an alien submits an affidavit of 

10 support described in section 213A, in addition 

11 to the factors under clause (i), the consular of12 ficer or the Attorney General shall also consider 

13 such affidavit in determining whether the alien 

14 is inadmissible under this paragraph.’’; and 

15 (2) by striking subparagraphs (C) and (D). 

16 (b) REQUIREMENTS FOR SPONSOR’S AFFIDAVIT OF

17 SUPPORT.—Subsections (a)(1)(A), (f)(1)(E), and 

18 (f)(4)(B)(i) of section 213A (8 U.S.C. 1183a(a)(1)(A), 

19 (f)(1)(E), and (f)(4)(B)(i)) are amended by striking 

20 ‘‘125’’ and inserting ‘‘100’’. 
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1 TITLE IV—FAIRNESS IN ASYLUM 

2 AND REFUGEE PROCEEDINGS 

3 Subtitle A—Increased Fairness in 

4 Asylum Proceedings 

5 SEC. 401. ELIMINATION OF ARBITRARY TIME LIMITS ON 

6 ASYLUM APPLICATIONS. 

7 Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is amend8 ed—

9 (1) by striking subparagraph (B); 

10 (2) in subparagraph (C), by striking ‘‘(D)’’ and 

11 inserting ‘‘(C)’’; 

12 (3) in subparagraph (D), by striking ‘‘subpara13 graphs (B) and (C),’’ and inserting ‘‘subparagraph 

14 (B),’’; and 

15 (4) by redesignating subparagraphs (C) and 

16 (D) as subparagraphs (B) and (C), respectively. 

17 SEC. 402. GENDER-BASED PERSECUTION. 

18 (a) TREATMENT AS REFUGEE.—Section 101(a)(42) 

19 (8 U.S.C. 1101(a)(42)) is amended by adding at the end 

20 the following: 

21 ‘‘For purposes of determinations under this Act, a person 

22 who establishes that he or she suffered persecution in the 

23 past, or has a well-founded fear of persecution, on account 

24 of gender shall be considered to have suffered persecution, 
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1 or to have a well-founded fear of persecution, on account 

2 of membership in a particular social group.’’. 

3 (b) RESTRICTION ON REMOVAL TO COUNTRY WHERE

4 ALIEN WOULD BE THREATENED.—Section 241(b)(3) (8 

5 U.S.C. 1231(b)(3)) is amended by adding at the end the 

6 following: 

7 ‘‘(C) GENDER-BASED PERSECUTION.—For 

8 purposes of determinations under this para9 graph, an alien who establishes that the alien’s 

10 life or freedom would be threatened in a coun11 try on account of gender shall be considered to 

12 have established that the alien’s life or freedom 

13 would be threatened in that country on account 

14 of membership in a particular social group.’’. 

15 SEC. 403. PRESUMPTION OF ASYLUM IN CASES OF PAST 

16 PERSECUTION. 

17 Section 101(a)(42) (8 U.S.C. 1101(a)(42)) is amend18 ed by adding at the end the following: 

19 ‘‘For purposes of determinations under this Act, a person 

20 shall be presumed to have a well-founded fear of future 

21 persecution if he or she has established that he or she was 

22 persecuted in the past, unless a preponderance of the evi23 dence establishes that since the time the persecution oc24 curred conditions in the person’s country of nationality or 

25 last habitual residence have changed to such an extent
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1 that the person no longer has a well-founded fear of being 

2 persecuted if he or she were to return. In a case where 

3 the presumption is rebutted, the person nonetheless may 

4 be considered a refugee if the person demonstrates com5 pelling reason for being unwilling to return to the person’s 

6 country of nationality or last habitual residence arising 

7 out of the severity of the past persecution.’’. 

8 SEC. 404. REBUTTABLE PRESUMPTION OF ASYLUM WHERE 

9 PERSECUTION OCCURS WITH RESPECT TO A 

10 PARTICULAR LOCATION IN A COUNTRY. 

11 Section 101(a)(42) (8 U.S.C. 1101(a)(42)) is amend12 ed by adding at the end the following: 

13 ‘‘For purposes of determinations under this Act, a person 

14 who establishes that he or she suffered persecution in the 

15 past, or has a well-founded fear of persecution, with re16 spect to any location in the person’s country of nationality 

17 or last habitual residence shall be presumed to have a well18 founded fear of future persecution with respect to all loca19 tions in such country, unless a preponderance of the evi20 dence establishes that the threat of future persecution is 

21 not country-wide. In a case where the presumption is re22 butted, the person nonetheless may be considered a ref23 ugee if the person demonstrates that it would be unreason24 able to require the person to resettle in any location in 

25 such country.’’. 
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1 SEC. 405. ELIMINATION OF ARBITRARY CAP ON PERSONS 

2 ELIGIBLE TO ADJUST STATUS FROM ASYLEES 

3 TO LEGAL PERMANENT RESIDENTS. 

4 Section 209(b) (8 U.S.C. 1159(b)) is amended by 

5 striking ‘‘Not more than 10,000 of the’’ and all that fol6 lows through ‘‘to adjust to’’ and inserting ‘‘The Attorney 

7 General may adjust, in the Attorney General’s discretion 

8 and under such regulations as the Attorney General may 

9 prescribe,’’.

10 SEC. 406. RESTORATION OF ELIGIBILITY FOR WITH11 HOLDING OF REMOVAL FOR PERSONS FAC12 ING LOSS OF LIFE OR FREEDOM. 

13 Section 241(b)(3)(B) (8 U.S.C. 1231(b)(3)(B)) is 

14 amended—

15 (1) by amending clause (ii) to read as follows: 

16 ‘‘(ii) the alien—

17 ‘‘(I) has been convicted by final 

18 judgment of a particularly serious 

19 crime for which the sentence imposed 

20 was an aggregate term of imprison21 ment of five years or more; and 

22 ‘‘(II) is a danger to the commu23 nity of the United States.’’; 

24 (2) by striking the second and third sentences; 

25 and 
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1 (3) by adding at the end ‘‘Notwithstanding this 

2 subparagraph, an alien may be granted relief under 

3 subparagraph (A) if the Attorney General deter4 mines the alien should not be removed for urgent 

5 humanitarian reasons.’’. 

6 Subtitle B—Increased Fairness and 

7 Rationality in Refugee Con8 sultations 

9 SEC. 411. TIMELY CONSULTATION WITH RESPECT TO REF10 UGEE ADMISSIONS. 

11 Section 207(d)(1) (8 U.S.C. 1157(d)(1)) is amended 

12 by striking ‘‘the start of each fiscal year’’ and inserting 

13 ‘‘the submission by the President to the Congress of the 

14 President’s budget for the Federal Government with re15 spect to a fiscal year,’’. 

16 TITLE V—MISCELLANEOUS 

17 PROVISIONS 

18 SEC. 501. LIMITING FORFEITURE FOR CERTAIN ASSETS 

19 USED TO VIOLATE INS WHERE THERE WAS 

20 NO COMMERCIAL GAIN. 

21 Section 274(b)(1) (8 U.S.C. 1324(b)(1)) is amended 

22 by inserting ‘‘for the purpose of commercial advantage or 

23 private financial gain’’ after ‘‘subsection (a)’’. 
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1 SEC. 502. ELIMINATION OF BAN ON STATE AND LOCAL GOV2 ERNMENTS FROM PREVENTING COMMUNICA3 TIONS WITH THE INS. 

4 (a) IN GENERAL.—Section 642 of the Illegal Immi5 gration Reform and Immigrant Responsibility Act of 1996 

6 (8 U.S.C. 1373) is repealed. 

7 (b) VERIFICATION OF ELIGIBILITY FOR FEDERAL

8 PUBLIC BENEFITS.—Section 432 of the Personal Respon9 sibility and Work Opportunity Reconciliation Act of 1996 

10 (8 U.S.C. 1642) is repealed. 

11 SEC. 503. ELIMINATION OF AUTHORITY TO PERMIT STATE 

12 PERSONNEL TO CARRY OUT IMMIGRATION 

13 OFFICER FUNCTIONS. 

14 Section 287(g) (8 U.S.C. 1357(g)) is repealed. 

15 SEC. 504. PAROLE AUTHORITY. 

16 Section 212(d)(5)(A) (8 U.S.C. 1182(d)(5)(A)) is 

17 amended by striking ‘‘only on a case-by-case basis for ur18 gent humanitarian reasons or significant public benefit’’ 

19 and inserting ‘‘for emergent reasons or for reasons deemed 

20 strictly in the public interest’’. 

21 SEC. 505. ENHANCED BORDER PATROL RECRUITMENT AND 

22 RETENTION. 

23 (a) IN GENERAL.—

24 (1) GS–11 CLASSIFICATION.—Any Border Pa25 trol agent classified as a GS–1896 position who 

26 completes a 1-year period of service at a GS–9 grade 
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1 and whose current rating of record is fully successful 

2 or higher shall be classified at a GS–11 grade and 

3 receive pay at the minimum rate of basic pay for a 

4 GS–11 position. 

5 (2) NONREDUCTION.—Paragraph (1) shall not 

6 be construed to—

7 (A) limit or reduce the rate of pay of any 

8 Border Patrol agent; or 

9 (B) reclassify a Border Patrol agent at a 

10 lower classification of position. 

11 (b) OFFICE OF BORDER PATROL RECRUITMENT AND

12 RETENTION.—

13 (1) ESTABLISHMENT.—Not later than 90 days 

14 after the date of the enactment of this Act, the 

15 Commissioner of the Immigration and Naturaliza16 tion Service shall establish an Office of Border Pa17 trol Recruitment and Retention within the Immigra18 tion and Naturalization Service. 

19 (2) FUNCTIONS.—The Office of Border Patrol 

20 Recruitment and Retention shall—

21 (A) develop outreach programs to identify 

22 and recruit prospective Border Patrol agents; 

23 (B) develop programs to retain Border Pa24 trol agents; and
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1 (C) submit recommendations to the Com2 missioner of the Immigration and Naturaliza3 tion Service relating to pay and benefits of Bor4 der Patrol agents. 

5 (3) REPORT TO CONGRESS.—Not later than 

6 150 days after the date of the enactment of this Act, 

7 the Commissioner of the Immigration and Natu8 ralization Service shall submit a report to the Con9 gress on the establishment and activities of the Of10 fice of Border Patrol Recruitment and Retention. 

11 (c) AUTHORIZATION OF APPROPRIATIONS.—There 

12 are authorized to be appropriated $50,000,000 for fiscal 

13 year 2003 and such sums as may be necessary for each 

14 fiscal year thereafter to carry out this section. 

15 SEC. 506. ELIMINATION OF DENIAL OF IMMIGRATION BENE16 FITS FOR ERRONEOUS ASYLUM APPLICA17 TION. 

18 Section 208(d) (8 U.S.C. 1158(d)) is amended by 

19 striking paragraphs (6) and (7). 

20 SEC. 507. AUTHORIZATION OF APPROPRIATIONS FOR IM21 PLEMENTATION OF ACT. 

22 There are authorized to be appropriated for fiscal 

23 years 2003 through 2009 such sums as may be necessary 

24 to implement this Act. 
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1 TITLE VI—EFFECTIVE DATES 

2 SEC. 601. GENERAL EFFECTIVE DATE. 

3 Except as provided in section 602, the amendments 

4 made by this Act shall take effect on the date of the enact5 ment of this Act. 

6 SEC. 602. OTHER EFFECTIVE DATES. 

7 (a) TITLE I.—

8 (1) SECTION 102.—The amendments made by 

9 section 102 shall take effect on the date of the en10 actment of this Act and shall apply to petitions for 

11 review of determinations of the Attorney General 

12 made on or after such date. 

13 (2) SECTION 111.—The amendment made by 

14 section 111 shall take effect on the date of the en15 actment of this Act and shall apply to determina16 tions pending on or after such date with respect to 

17 which—

18 (A) a final administrative decision has 

19 been not been rendered as of such date; or 

20 (B) such a decision has been rendered but 

21 the period for seeking judicial review of the de22 cision has not expired. 

23 (3) SECTION 113.—The amendment made by 

24 section 113 shall take effect on the date of the en-
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1 actment of this Act and shall apply to aliens who are 

2 in custody on or after such date. 

3 (4) SECTIONS 114 AND 115.—The amendments 

4 made by sections 114 and 115 shall take effect on 

5 the date of the enactment of this Act and shall apply 

6 to petitions for review filed on or after such date. 

7 (5) SECTION 116.—The amendment made by 

8 section 116 shall take effect on the date of the en9 actment of this Act and shall apply to appeals from 

10 denial of a request for an order of voluntary depar11 ture, and requests for a stay of an alien’s removal 

12 pending consideration of any claim with respect to 

13 voluntary departure, filed on or after such date. 

14 (6) SECTION 117.—The amendment made by 

15 section 117 shall take effect on the date of the en16 actment of this Act and shall apply to cases in which 

17 a final order of exclusion or deportation is entered 

18 on or after the date of the enactment of this Act. 

19 (7) SECTION 121.—The amendments made by 

20 section 121 shall take effect on the date of the en21 actment of this Act and shall apply to removal pro22 ceedings pending on or after such date. 

23 (8) SECTION 122.—The amendment made by 

24 section 122 shall take effect on the date of the en-
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1 actment of this Act and shall apply to applications 

2 for admission pending on or after such date. 

3 (9) SECTION 141.—

4 (A) IN GENERAL.—The amendment made 

5 by section 141(a) shall take effect 120 days 

6 after the date of the enactment of this Act. 

7 (B) DEADLINE FOR REGULATIONS.—Pro8 posed regulations with respect to the amend9 ment made by section 141(a) shall be promul10 gated not later than 30 days after the date of 

11 the enactment of this Act. 

12 (C) APPOINTMENTS.—Members of the 

13 Board of Visa Appeals under section 225 of the 

14 Immigration and Nationality Act (as inserted 

15 by section 141(a) of this Act) shall be ap16 pointed not later than 120 days after the date 

17 of the enactment of this Act. 

18 (b) TITLE II.—

19 (1) SECTION 201.—The amendments made by 

20 section 201 shall take effect on the date of the en21 actment of this Act and shall apply to applications 

22 pending on or after such date with respect to which 

23 no final administrative decision has been rendered. 

24 (2) SECTION 202.—
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1 (A) SUBSECTION (a).—The amendment 

2 made by section 202(a) shall apply to offenses 

3 committed on or after the date of the enact4 ment of this Act. 

5 (B) SUBSECTIONS (b) AND (c).—The 

6 amendments made by subsections (b) and (c) of 

7 section 202 shall apply to convictions entered 

8 on or after April 24, 1996. 

9 (C) SUBSECTION (d).—The amendment 

10 made by section 202(d) shall apply to convic11 tions entered on or after the date of the enact12 ment of this Act. 

13 (3) SECTION 203.—The amendments made by 

14 section 203 shall take effect on the date of the en15 actment of this Act and shall apply to convictions 

16 and sentences entered on or after such date. 

17 (4) SECTION 204.—The amendment made by 

18 section 204 shall apply to convictions entered on or 

19 after the date of the enactment of this Act. 

20 (5) SECTIONS 206 AND 207.—The amendments 

21 made by sections 206(a) and 207 shall take effect 

22 on the date of the enactment of this Act and shall 

23 apply to aliens in removal proceedings on or after 

24 April 1, 1997.
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1 (6) SECTIONS 211 AND 214.—The amendments 

2 made by sections 211 and 214 shall apply to deter3 minations of inadmissibility made on or after April 

4 1, 1997. 

5 (7) SECTION 212.—The amendments made by 

6 section 212 shall apply to aliens who obtain the sta7 tus of a nonimmigrant under section 101(a)(15)(F) 

8 of the Immigration and Nationality Act after the 

9 end of the 60-day period beginning on September 

10 30, 1996, including aliens whose status as such a 

11 nonimmigrant is extended after the end of such pe12 riod. 

13 (8) SECTION 213.—The amendments made by 

14 section 213 shall apply to representations made on 

15 or after September 30, 1996. 

16 (c) TITLE III.—

17 (1) SECTION 301.—The amendments made by 

18 section 301 shall take effect on the date of the en19 actment of this Act and shall apply to an alien who 

20 is the beneficiary of a classification petition filed 

21 under section 204 before, on, or after such date. 

22 (2) SECTION 302.—The amendment made by 

23 section 302 shall take effect on the date of the en24 actment of this Act and shall apply to applications 
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1 for admission as a refugee pending on or after such 

2 date. 

3 (3) SECTION 303.—The amendment made by 

4 section 303 shall take effect on the date of the en5 actment of this Act and shall apply to asylum appli6 cations pending on or after such date. 

7 (4) SECTION 304.—The amendments made by 

8 section 304 shall take effect 90 days after the date 

9 of the enactment of this Act and shall apply to ap10 plications pending on or after such effective date. 

11 (5) SECTIONS 312(a), 313, AND 341.—The 

12 amendments made by sections 312(a), 313, and 341 

13 shall take effect on the date of the enactment of this 

14 Act and shall apply to applications pending on or 

15 after such date with respect to which no final ad16 ministrative decision has been rendered. 

17 (6) SECTION 312(b).—The amendment made by 

18 section 312(b) shall take effect on the date of the 

19 enactment of this Act and shall apply to proceedings 

20 pending on or after such date with respect to which 

21 no final administrative decision has been rendered. 

22 (7) SECTION 321.—The amendment made by 

23 section 321 shall take effect on the date of the en24 actment of this Act and shall apply to applications 
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1 for adjustment of status pending on or after such 

2 date. 

3 (d) TITLE IV.—

4 (1) SECTION 401.—The amendments made by 

5 section 401 shall take effect on the date of the en6 actment of this Act and shall apply to asylum appli7 cations pending on or after such date. 

8 (2) SECTION 402.—The amendments made by 

9 section 402 shall take effect on the date of the en10 actment of this Act and shall apply to applications 

11 for asylum or admission as a refugee, and deter12 minations under section 241(b)(3) of the Immigra13 tion and Nationality Act, pending on or after such 

14 date. 

15 (3) SECTION 403.—The amendment made by 

16 section 403 shall take effect on the date of the en17 actment of this Act and shall apply to applications 

18 for asylum or admission as a refugee pending on or 

19 after such date. 

20 (4) SECTION 404.—The amendment made by 

21 section 404 shall take effect on the date of the en22 actment of this Act and shall apply to applications 

23 for asylum or admission as a refugee pending on or 

24 after such date. 
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1 (5) SECTION 405.—The amendment made by 

2 section 405 shall take effect on the date of the en3 actment of this Act and shall apply to applications 

4 for adjustment of status pending on or after such 

5 date. 

6 (e) TITLE V.—

7 (1) SECTION 505.—Paragraphs (1) and (2) of 

8 section 505(a) shall take effect on the first day of 

9 the first applicable pay period beginning on or after 

10 the date that is 120 days after the date of the enact11 ment of this Act. 

12 (2) SECTION 506.—The amendment made by 

13 section 506 shall take effect on the date of the en14 actment of this Act and shall apply to asylum appli15 cations made before, on, or after such date.

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