I

103D CONGRESS

1ST SESSION H. R. 1679

To amend the Immigration and Nationality Act with respect to

nonrefoulement and asylum.

IN THE HOUSE OF REPRESENTATIVES

APRIL 2, 1993

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

Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act with respect

to nonrefoulement and asylum.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Asylum Reform Act

5 of 1993’’.

6 SEC. 2. NONREFOULEMENT AND ASYLUM.

7 (a) IN GENERAL.—Section 208 of the Immigration

8 and Nationality Act is amended to read as follows:

9 ‘‘SEC. 208. NONREFOULEMENT AND ASYLUM.

10 ‘‘(a) NONREFOULEMENT.—
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1 ‘‘(1) RIGHT TO APPLY.—An alien physically

2 present in the United States or at a land border or

3 port of entry, irrespective of such alien’s status, may

4 apply for nonrefoulement in accordance with this

5 section.

6 ‘‘(2) CONDITIONS FOR GRANTING.—

7 ‘‘(A) IN GENERAL.—The Attorney General

8 shall grant nonrefoulement to an alien if the

9 alien applies for nonrefoulement in accordance

10 with the requirements of this section and estab11 lishes that it is more likely than not that in the

12 country of nationality (or, in the case of a per13 son having no nationality, the country in which

14 such alien last habitually resided) such alien’s

15 life or freedom would be threatened on account

16 of race, religion, nationality, membership in a

17 particular social group, or political opinion.

18 ‘‘(B) EXCEPTION.—Subparagraph (A)

19 shall not apply to an alien if the Attorney Gen20 eral determines that—

21 ‘‘(i) the alien ordered, incited, as22 sisted, or otherwise participated in the per23 secution of any person on account of race,

24 religion, nationality, membership in a par25 ticular social group, or political opinion;
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1 ‘‘(ii) the alien, having been convicted

2 by a final judgment of a particularly seri3 ous crime, constitutes a danger to the com4 munity of the United States;

5 ‘‘(iii) there are serious reasons for be6 lieving that the alien has committed a seri7 ous nonpolitical crime outside the United

8 States prior to the arrival of the alien in

9 the United States;

10 ‘‘(iv) there are reasonable grounds for

11 regarding the alien as a danger to the se12 curity of the United States; or

13 ‘‘(v) a country willing to accept the

14 alien has been identified (other than the

15 country described in subparagraph (A)) to

16 which the alien can be deported or re17 turned and the alien does not establish

18 that it is more likely than not that the

19 alien’s life or freedom would be threatened

20 in such country on account of race, reli21 gion, nationality, membership in a particu22 lar social group, or political opinion.

23 For purposes of clause (ii), an alien who has been

24 convicted of an aggravated felony shall be considered

25 to have committed a particularly serious crime.
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1 ‘‘(3) NONREFOULEMENT STATUS.—In the case

2 of any alien granted nonrefoulement under para3 graph (2), the Attorney General, in accordance with

4 this section—

5 ‘‘(A) shall not deport or return the alien to

6 the country described under paragraph (2)(A);

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

8 employment in the United States and provide

9 the alien with an ‘employment authorized’ en10 dorsement or other appropriate work permit;

11 and

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

13 with the prior consent of the Attorney General.

14 ‘‘(4) TERMINATION.—Nonrefoulement status

15 granted under paragraph (2) may be terminated if

16 the Attorney General, pursuant to such regulations

17 as the Attorney General may prescribe, determines

18 that—

19 ‘‘(A) the alien no longer meets the condi20 tions described in paragraph (2)(A) owing to a

21 change in circumstances in the alien’s country

22 of nationality or, in the case of an alien having

23 no nationality, in the country in which the alien

24 last habitually resided;
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1 ‘‘(B) the alien meets a condition described

2 in paragraph (2)(B); or

3 ‘‘(C) a country willing to accept the alien

4 has been identified (other than the country de5 scribed in paragraph (2)(A)) to which the alien

6 can be deported or returned and the alien can7 not establish that it is more likely than not that

8 the alien’s life or freedom would be threatened

9 in such country on account of race, religion, na10 tionality, membership in a particular social

11 group, or political opinion.

12 ‘‘(5) ACCEPTANCE BY ANOTHER COUNTRY.—In

13 the case of an alien described in paragraph (2)(B)(v)

14 or paragraph (4)(C), the alien’s deportation or re15 turn shall be directed by the Attorney General in the

16 sole discretion of the Attorney General, to any coun17 try which is willing to accept the alien into its terri18 tory (other than the country described in paragraph

19 (2)(A)).’’.

20 ‘‘(b) NONREFOULEMENT PROCEDURE.—

21 ‘‘(1) APPLICATIONS.—

22 ‘‘(A) IN GENERAL.—

23 ‘‘(i) DEADLINE.—Subject to clause

24 (ii), an alien’s application for
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1 nonrefoulement shall not be considered

2 under this section unless—

3 ‘‘(I) the alien has filed, not later

4 than 7 days after entering or coming

5 to the United States, notice of inten6 tion to file such an application, and

7 ‘‘(II) such application is actually

8 filed not later than 30 days after the

9 date of filing such notice of intention.

10 ‘‘(ii) EXCEPTION.—An application for

11 nonrefoulement may be considered, not12 withstanding that the requirements of

13 clause (i) have not been met, only if the

14 alien demonstrates by clear and convincing

15 evidence changed circumstances in the

16 alien’s country of nationality (or in the

17 case of an alien with no nationality, in the

18 country where the alien last habitually re19 sided) affecting eligibility for

20 nonrefoulement.

21 ‘‘(B) REQUIREMENTS.—An application for

22 nonrefoulement shall not be considered unless

23 the alien submits to the taking of fingerprints

24 and a photograph in a manner determined by

25 the Attorney General.
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1 ‘‘(C) FEES.—The Attorney General may

2 provide for a reasonable fee for the consider3 ation of an application for nonrefoulement or

4 for any proceeding or filing connected there5 with.

6 ‘‘(D) PRIVILEGE OF COUNSEL.—

7 ‘‘(i) NOTICE.—At the time of filing a

8 notice of intention to apply for

9 nonrefoulement, the alien shall be advised

10 of the privilege of being represented (at no

11 expense to the government) by such coun12 sel, authorized to practice in such proceed13 ings, as the alien shall choose.

14 ‘‘(ii) PROVISION OF LIST OF COUN15 SEL.—The Attorney General shall provide

16 for lists (updated not less often than quar17 terly) of persons who have indicated their

18 availability to represent pro bono aliens in

19 nonrefoulement proceedings. Such lists

20 shall be provided to the alien at the time

21 of filing of notice of intention to apply for

22 nonrefoulement, and otherwise be made

23 generally available.

24 ‘‘(2) CONSIDERATION OF APPLICATIONS; HEAR25 INGS.—
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1 ‘‘(A) NONREFOULEMENT OFFICERS.—Ap2 plications for nonrefoulement shall be consid3 ered by officers of the Service (referred to in

4 this Act as ‘nonrefoulement officers’) who are

5 specially designated by the Service as having

6 special training and knowledge of international

7 conditions and human rights records of foreign

8 countries.

9 ‘‘(B) SCHEDULING OF HEARINGS.—

10 ‘‘(i) IN GENERAL.—Upon the filing of

11 an application for nonrefoulement, a

12 nonrefoulement officer, at the earliest

13 practicable time and after consultation

14 with the attorney for the Government and

15 the attorney (if any) for the applicant,

16 shall set the application for hearing on a

17 day certain or list it on a weekly or other

18 short-term calendar, so as to assure a

19 speedy hearing.

20 ‘‘(ii) DEADLINE.—Unless the appli21 cant (or an attorney for the applicant) con22 sents in writing to the contrary, the hear23 ing on the nonrefoulement application shall

24 commence not later than 45 days after the

25 date the application was filed.
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1 ‘‘(C) PUBLIC HEARINGS.—A hearing on a

2 nonrefoulement application shall be open to the

3 public unless the applicant requests that it be

4 closed to the public.

5 ‘‘(D) RIGHTS IN HEARINGS.—During such

6 hearing, the applicant shall have the privilege of

7 the assistance and participation of counsel (as

8 provided under paragraph (1)(D)) and shall be

9 entitled to present evidence and witnesses, to

10 examine and object to evidence presented by the

11 Government, and to cross-examine all witnesses

12 presented by the Government.

13 ‘‘(E) TRANSCRIPT OF HEARINGS.—A com14 plete record of the proceedings and of all testi15 mony and evidence produced at the hearing

16 shall be kept. The hearing shall be recorded

17 verbatim. The Attorney General and the Service

18 shall provide that a transcript of a hearing held

19 under this section is made available not later

20 than 10 days after the date of completion of the

21 hearing.

22 ‘‘(F) DEADLINE FOR DETERMINATIONS ON

23 APPLICATIONS.—The officer shall render a de24 termination on the application not later than 30

25 days after the date of completion of the hear-
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1 ing. The determination of the officer shall be

2 based only on the evidence produced at the

3 hearing.

4 ‘‘(G) RESOURCE ALLOCATION.—The Attor5 ney General shall allocate sufficient resources

6 so as to assure that applications for

7 nonrefoulement are heard and determined on a

8 timely basis.

9 ‘‘(H) SANCTIONS FOR FAILURE TO AP10 PEAR.—

11 ‘‘(i) Subject to clause (ii), the applica12 tion for nonrefoulement of an alien who

13 does not appear for a hearing on such ap14 plication shall be summarily dismissed un15 less the alien can show exceptional cir16 cumstances (as defined in section

17 242B(f)(2)) as determined by the

18 nonrefoulement officer.

19 ‘‘(ii) Clause (i) shall not apply if writ20 ten and oral notice were not provided as

21 required by section 242B(e)(4)(B).

22 ‘‘(I) FINALITY OF DETERMINATIONS.—

23 ‘‘(i) IN GENERAL.—The decision of

24 the nonrefoulement officer shall be the
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1 final administrative determination of a

2 claim for nonrefoulement.

3 ‘‘(ii) TREATMENT OF CASES IN EX4 CLUSION OR DEPORTATION.—If proceed5 ings are instituted against an alien under

6 section 235 or 242 of this Act and the

7 alien files an application for

8 nonrefoulement based on circumstances de9 scribed in subsection (b)(1)(A)(ii), the

10 nonrefoulement officer shall render, on an

11 expedited basis, a decision on the applica12 tion. The decision of the nonrefoulement

13 officer shall be the final administrative de14 termination of a claim for nonrefoulement.

15 ‘‘(3) TREATMENT OF CLASSES OF ALIENS.—

16 ‘‘(A) DESIGNATION.—In the sole discretion

17 of the Attorney General, the Attorney General

18 may designate—

19 ‘‘(i) any class of aliens who are na20 tionals or residents of a foreign state for

21 which the Attorney General determines

22 that a high percentage of that class of

23 aliens have been granted nonrefoulement

24 under subsection (a)(2)(A) in the 6-month
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1 period prior to the designation of such

2 class; or

3 ‘‘(ii) any class of aliens who are na4 tionals or residents of a foreign state for

5 which the Attorney General determines

6 that a high percentage of that class of na7 tionals or residents would be granted

8 nonrefoulement status under subsection

9 (a)(2)(A) in the 6-month period after des10 ignation.

11 ‘‘(B) ALIENS IN DESIGNATED CLASSES.—

12 An alien who is within one of the designated

13 classes under subparagraph (A) shall be pre14 sumed to have fulfilled the requirement under

15 subsection (a)(2)(A) of establishing that such

16 alien’s life or freedom would be threatened on

17 account of race, religion, nationality, member18 ship in a particular social group, or political

19 opinion.

20 ‘‘(C) PERIODIC REVIEW.—The Attorney

21 General shall periodically review the status of

22 any class of aliens designated under subpara23 graph (A) to determine whether conditions con24 tinue to warrant such designation. The Attor25 ney General shall have the authority to termi-
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1 nate, without notice or review, any designation

2 under subparagraph (A).

3 ‘‘(c) ASYLUM.—

4 ‘‘(1) ADJUSTMENT OF STATUS.—Under such

5 regulations as the Attorney General may prescribe,

6 the Attorney General shall adjust to the status of an

7 alien granted asylum the status of any alien granted

8 nonrefoulement under subsection (a)(2)(A) who—

9 ‘‘(A) applies for such adjustment;

10 ‘‘(B) has been physically present in the

11 United States for at least 1 year after being

12 granted nonrefoulement;

13 ‘‘(C) continues to be eligible for

14 nonrefoulement under this section;

15 ‘‘(D) is not firmly resettled in any foreign

16 country; and

17 ‘‘(E) is admissible under this Act at the

18 time of examination for adjustment of status

19 under this subsection.

20 ‘‘(2) TREATMENT OF SPOUSE AND CHIL21 DREN.—A spouse or child (as defined in section

22 101(b)(A), (B), (C), (D), or (E)) of an alien whose

23 status is adjusted to that of an alien granted asylum

24 under paragraph (a)(2) may be granted the same
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1 status as the alien if accompanying, or following to

2 join, such alien.

3 ‘‘(3) APPLICATION FEES.—The Attorney Gen4 eral may impose a reasonable fee for the filing of an

5 application for adjustment of status under this sub6 section.’’.

7 (b) CLERICAL AMENDMENT.—The item in the table

8 of contents of such Act relating to section 208 is amended

9 to read as follows:

‘‘Sec. 208. Nonrefoulement and asylum.’’.

10 SEC. 3. FAILURE TO APPEAR FOR NONREFOULEMENT

11 HEARING; JUDICIAL REVIEW.

12 (a) FAILURE TO APPEAR FOR NONREFOULEMENT

13 HEARING.—Section 242B(e)(4) of the Immigration and

14 Nationality Act (8 U.S.C. 1252b(e)(4)) is amended—

15 (1) in the heading, by striking ‘‘ASYLUM’’ and

16 inserting ‘‘NONREFOULEMENT’’;

17 (2) by striking ‘‘asylum’’ each place it appears

18 and inserting ‘‘nonrefoulement’’; and

19 (3) in subparagraph (A), by striking all after

20 clause (iii) and inserting ‘‘shall not be eligible for

21 any benefits under this Act.’’.

22 (b) JUDICIAL REVIEW.—Section 106 of such Act (8

23 U.S.C. 1105a) is amended by adding at the end the follow24 ing subsection:
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1 ‘‘(d) The procedure prescribed by, and all the provi2 sions of chapter 158 of title 28, United States Code, shall

3 apply to, and shall be the sole and exclusive procedure for,

4 the judicial review of all final orders granting or denying

5 nonrefoulement, except that—

6 ‘‘(1) a petition for review may be filed not later

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

8 final order granting or denying nonrefoulement;

9 ‘‘(2) the venue of any petition for review under

10 this subsection shall be in the judicial circuit in

11 which the administrative proceedings before a

12 nonrefoulement officer were conducted in whole or in

13 part, or in the judicial circuit wherein is the resi14 dence, as defined in this Act, of the petitioner, but

15 not in more than one circuit; and

16 ‘‘(3) notwithstanding any other provision of

17 law, a determination granting or denying

18 nonrefoulement based on changed circumstances

19 pursuant to section 208(b)(1)(A)(ii) shall be in the

20 sole discretion of the Attorney General.’’.

21 SEC. 4. CONFORMING AMENDMENTS.

22 (a) LIMITATION ON DEPORTATION.—Section 243 of

23 the Immigration and Nationality Act (8 U.S.C. 1253) is

24 amended by striking subsection (h).
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1 (b) ADJUSTMENT OF STATUS.—Section 209(b) of

2 such Act (8 U.S.C. 1159(b)) is amended—

3 (1) in paragraph (2) by striking ‘‘one year’’ and

4 inserting ‘‘2 years’’; and

5 (2) by amending paragraph (3) to read as

6 follows:

7 ‘‘(3) continues to be eligible for nonrefoulement

8 under section 208,’’.

9 (c) ALIENS INELIGIBLE FOR TEMPORARY PRO10 TECTED STATUS.—Section 244A(c)(2)(B)(ii) of the Immi11 gration and Nationality Act (8 U.S.C. 1254a(c)(2)(B)(ii))

12 is amended by striking ‘‘section 243(h)(2)’’ and inserting

13 ‘‘clauses (i), (ii), (iii), or (iv) of section 208(a)(2)(B)’’.

14 (d) ELIGIBILITY FOR NATURALIZATION.—Section

15 316(f)(1) of the Immigration and Nationality Act (8

16 U.S.C. 1427(f)(1)) is amended by striking ‘‘subpara17 graphs (A) through (D) of paragraph 243(h)(2)’’ and in18 serting ‘‘clauses (i), (ii), (iii), or (iv) of section

19 208(a)(2)(B).’’.

20 (e) FAMILY UNITY.—Section 301(e) of the Immigra21 tion Act of 1990 (P.L. 101–649) is amended by striking

22 ‘‘section 243(h)(2)’’ and inserting ‘‘clauses (i), (ii), (iii),

23 or (iv) of section 208(a)(2)(B).’’.
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1 SEC. 5. EFFECTIVE DATES.

2 (a) IN GENERAL.—Except as otherwise provided, the

3 amendments made by this Act shall take effect on the date

4 of the enactment of this Act.

5 (b) EXCEPTIONS.—

6 (1) The amendments made by this Act shall not

7 apply to applications for asylum or withholding of

8 deportation made before the first day of the first

9 month that begins more than 180 days after the

10 date of the enactment of this Act and no application

11 for nonrefoulement under section 208 of the Immi12 gration and Nationality Act (as amended by section

13 2 of this Act) shall be considered before such first

14 day.

15 (2) In applying section 208(b)(1)(A) of the Im16 migration and Nationality Act (as amended by this

17 Act) in the case of an alien who has entered or came

18 to the United States before the first day described

19 in paragraph (1), notwithstanding the deadlines

20 specified in such section—

21 (A) the deadline for the filing of a notice

22 of intention to file an application for

23 nonrefoulement is 30 days after such first day,

24 and
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1 (B) the deadline for the filing of the appli2 cation for nonrefoulement is 30 days after the

3 date of filing such notice.

4 (3) The amendments made by section 4(b) (re5 lating to adjustment of status) shall not apply to

6 aliens granted asylum under section 208 of the Im7 migration and Nationality Act, as in effect before

8 the date of the enactment of this Act.

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