I

103D CONGRESS

1ST SESSION H. R. 2836

To improve the admissions process at airports and other ports of entry,

to strengthen criminal sanctions for alien smuggling and related criminal

activities, and to enhance the investigatory authority of the Immigration

and Naturalization Service.

IN THE HOUSE OF REPRESENTATIVES

AUGUST 3, 1993

Mr. BROOKS (for himself and Mr. MAZZOLI) (both by request) introduced the

following bill; which was referred to the Committee on the Judiciary

A BILL

To improve the admissions process at airports and other

ports of entry, to strengthen criminal sanctions for alien

smuggling and related criminal activities, and to enhance

the investigatory authority of the Immigration and Naturalization Service.

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 ‘‘Expedited Exclusion

5 and Alien Smuggling Enhanced Penalties Act of 1993’’.
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1 SEC. 2. RESTRICTIONS ON ADMISSIONS FRAUD.

2 (a) EXCLUSION FOR FRAUDULENT DOCUMENTS OR

3 FAILURE TO PRESENT DOCUMENTS.—Section

4 212(a)(6)(C) of the Immigration and Nationality Act (8

5 U.S.C. 1182(a)(6)(C)) is amended)—

6 (1) by striking out ‘‘(C) MISREPRESENTATION’’

7 and inserting in lieu thereof the following:

8 ‘‘(C) FRAUD, MISREPRESENTATION, AND

9 FAILURE TO PRESENT DOCUMENTS’’; and

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

11 clause:

12 ‘‘(iii) FRAUD, MISREPRESENTATION,

13 AND FAILURE TO PRESENT DOCUMENTS:

14 ‘‘(I) Any alien who, in seeking

15 entry to the United States or board16 ing a common carrier for the purpose

17 of coming to the United States pre18 sents any document which, in the de19 termination of the immigration offi20 cer, is forged, counterfeit, altered,

21 falsely made, stolen, or inapplicable to

22 the person presenting the document,

23 or otherwise contains a misrepresenta24 tion of a material fact, is excludable.

25 ‘‘(II) Any alien who is required

26 to present a document relating to the
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1 alien’s eligibility to enter the United

2 States prior to boarding a common

3 carrier for the purpose of coming to

4 the United States and who fails to

5 present such document to an immi6 gration officer upon arrival at a port

7 of entry into the United States is ex8 cludable.’’.

9 (b) PROVISION FOR ASYLUM AND OTHER DISCRE10 TIONARY RELIEF.

11 (1) Section 208 of the Immigration and Nation12 ality Act (8 U.S.C. 1158) is amended by adding at

13 the end the following new subsection:

14 ‘‘(e)(1) Notwithstanding subsection (a), any alien

15 who, in seeking entry to the United States or boarding

16 a common carrier for the purpose of coming to the United

17 States, presents any document which, in the determination

18 of the immigration officer, is fraudulent, forged, stolen,

19 or inapplicable to the person presenting the document, or

20 otherwise contains a misrepresentation of a material fact,

21 may not apply for or be granted asylum, unless presen22 tation of the document was pursuant to direct departure

23 from a country in which the alien has a credible fear of

24 persecution or of return to persecution.
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1 ‘‘(2) Notwithstanding subsection (a), an alien who

2 boards a common carrier for the purpose of coming to the

3 United States through the presentation of any document

4 which relates or purports to relate to the alien’s eligibility

5 to enter the United States, and who fails to present such

6 document to an immigration officer upon arrival at a port

7 of entry into the United States, may not apply for or be

8 granted asylum, unless presentation of such document was

9 pursuant to direct departure from a country in which the

10 alien has a credible fear of persecution or of return to per11 secution.

12 ‘‘(3) Notwithstanding subsection (a), an alien de13 scribed in section 235(d)(3) may not apply for or be grant14 ed asylum, unless the person departed directly from a

15 country in which the alien has a credible fear of persecu16 tion or of return to persecution.

17 ‘‘(4) Notwithstanding paragraphs (1), (2), and (3),

18 the Attorney General may, in the Attorney General’s sole

19 discretion, permit an alien described in paragraphs (1),

20 (2), or (3) to apply for asylum.

21 ‘‘(5)(A) When an immigration officer has determined

22 that an alien has sought entry under either of the cir23 cumstances described in paragraphs (1) or (2) or is an

24 alien described in section 235(d)(3) and the alien has indi25 cated a desire to apply for asylum, the immigration officer
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1 shall refer the matter to an asylum officer who shall inter2 view the alien to determine whether presentation of the

3 document was pursuant to direct departure from a coun4 try in which the alien has a credible fear of persecution

5 or of return to persecution, or, in the case of an alien de6 scribed in section 235(d)(3), whether the alien had directly

7 departed from such a country.

8 ‘‘(B) If the officer determines that the alien does not

9 have a credible fear of persecution or of return to persecu10 tion in the country in which the alien was last present

11 prior to attempting entry into the United States or arriv12 ing in the United States or a port of entry under the cir13 cumstances described in section 235(d)(3), the alien may

14 be specially excluded and deported in accordance with sec15 tion 235(e).

16 ‘‘(C) The Attorney General shall provide by regula17 tion for the prompt review of a determination under sub18 paragraph (B) that an alien does not have a credible fear

19 of persecution or of return to persecution in the country

20 in which the alien was last present. Such review shall be

21 by an officer who shall possess qualifications at least

22 equivalent to those of an asylum officer, who shall be em23 ployed by an agency or division independent of the Service,

24 and who shall have discretion to review any aspect of the

25 initial determination. The Attorney General shall provide
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1 for such special training for reviewing officers as the At2 torney General may deem necessary.

3 ‘‘(D) The Attorney General shall provide information

4 concerning the credible fear determination process de5 scribed in this paragraph to persons who may be eligible

6 for that process under the provisions of this subsection.

7 An alien who is eligible for a credible fear determination

8 pursuant to subparagraph (A) may consult with a person

9 or persons of his or her choosing prior to the credible fear

10 determination process or any review thereof, according to

11 regulations prescribed by the Attorney General. Such con12 sultation shall be at no expense to the Government and

13 shall not delay the process.

14 ‘‘(6) As used in this section, the term ‘credible fear

15 of persecution or of return to persecution’ means that

16 there is a substantial likelihood—

17 ‘‘(A) that the statements made by the alien in

18 support of his or her claim are true; and

19 ‘‘(B) in light of such statements and country

20 conditions,

21 ‘‘(i) that the alien could establish eligibility

22 as a refugee within the meaning of section

23 101(a)(42)(A); or

24 ‘‘(ii) that the alien could be returned, with25 out access to a full and fair procedure for refu-
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1 gee status determination, to a country with re2 spect to which there is a substantial likelihood

3 that he or she could establish eligibility as a

4 refugee within the meaning of section

5 101(a)(42)(A).

6 ‘‘(7) As used in this subsection, the term ‘asylum offi7 cer’ means a person who—

8 ‘‘(A) has had extensive professional training in

9 country conditions, asylum law, and interview tech10 niques;

11 ‘‘(B) has been employed for at least one year in

12 a position the primary responsibility of which is the

13 adjudication of asylum claims or who has substan14 tially equivalent experience; and

15 ‘‘(C) is supervised by an officer who meets con16 ditions (A) and (B) above.’’.

17 (2) Section 235 of the Immigration and Nation18 ality Act (8 U.S.C. 1225) is amended by adding at

19 the end the following new subsection:

20 ‘‘(d)(1) Subject to paragraph (2), any alien who has

21 not been admitted to the United States, and who is exclud22 able under section 212(a)(6)(C)(iii), or who is an alien de23 scribed in paragraph (3), is ineligible for withholding of

24 deportation pursuant to section 243(h), and may not apply

25 therefor or for any other relief under this Act, except that
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1 an alien found to have a credible fear of persecution or

2 of return to persecution in accordance with section 208(e)

3 shall be taken before a special inquiry officer for exclusion

4 proceedings in accordance with section 236 and may apply

5 for asylum, withholding of deportation, or both in the

6 course of such proceedings.

7 ‘‘(2) An alien described in paragraph (1) who has

8 been found ineligible to apply for asylum under section

9 208(e) may be returned under the provisions of this sec10 tion only to a country in which he or she has no credible

11 fear of persecution or of return to persecution. If there

12 is no country to which the alien can be returned in accord13 ance with the provisions of this paragraph, the alien shall

14 be taken before a special inquiry officer for exclusion pro15 ceedings in accordance with section 236 and may apply

16 for asylum, withholding of deportation, or both in the

17 course of such proceedings.

18 ‘‘(3) Any alien who is excludable under section

19 212(a), and who has been brought or escorted under the

20 authority of the United States: (a) into the United States,

21 having been on board a vessel encountered seaward of the

22 territorial sea by officers of the United States, or (b) to

23 a port of entry, having been on board a vessel encountered

24 within the territorial sea or internal waters of the United

25 States, shall either be detained on board the vessel on
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1 which such person arrived or in such facilities as are des2 ignated by the Attorney General or paroled in the discre3 tion of the Attorney General pursuant to section 212(d)(5)

4 pending accomplishment of the purpose for which the per5 son was brought or escorted into the United States or to

6 the port of entry: Provided, however, That no alien shall

7 be detained on board a public vessel of the United States

8 without the concurrence of the Secretary of the Depart9 ment under whose authority the vessel is operating.’’.

10 (3) Section 237(a) of the Immigration and Na11 tionality Act (8 U.S.C. 1227(a)) is amended—

12 (A) in the second sentence of paragraph

13 (1) by striking out ‘‘Deportation’’ and inserting

14 in lieu thereof ‘‘Subject to section 235(d)(2),

15 deportation’’; and

16 (B) in the first sentence of paragraph (2)

17 by striking out ‘‘If’’ and inserting in lieu there18 of ‘‘Subject to section 235(d)(2), if’’.

19 SEC. 3. SPECIAL PORT OF ENTRY EXCLUSION FOR ADMIS20 SIONS FRAUD.

21 Section 235 of the Immigration and Nationality Act

22 (8 U.S.C. 1225) is amended by adding after subsection

23 (d) the following new subsection:

24 ‘‘(e)(1) Subject to paragraph (d)(2), any alien (in25 cluding an alien crewman) who—
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1 ‘‘(A) may appear to the examining immigration

2 officer or to the special inquiry officer during the ex3 amination before either of such officers to be exclud4 able under section 212(a)(6)(C)(iii) of the Immigra5 tion and Nationality Act may be ordered specially

6 excluded and deported by the Attorney General, ei7 ther by a special inquiry officer or otherwise.

8 ‘‘(B) was brought to the United States pursu9 ant to subsection (d)(3) and who may appear to an

10 examining immigration officer to be excludable may

11 be ordered specially excluded and deported by the

12 Attorney General without any further inquiry, either

13 by a special inquiry officer or otherwise.

14 ‘‘(2) Such special exclusion order is not subject to

15 administrative appeal, except that the Attorney General

16 shall provide by regulation for prompt review of such an

17 order against an applicant who claims to have been law18 fully admitted for permanent residence. A special exclu19 sion order entered in accordance with the provisions of

20 this subsection shall have the same effect as if the alien

21 had been ordered excluded and deported pursuant to sec22 tion 236, except that judicial review of such an order shall

23 be available only under section 106.
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1 ‘‘(3) Nothing in this subsection shall be regarded as

2 requiring an inquiry before a special inquiry officer in the

3 case of an alien crewman.’’.

4 SEC. 4. JUDICIAL REVIEW.

5 (a) Section 106 of the Immigration and Nationality

6 Act (8 U.S.C. 1105a) is amended by changing the heading

7 to read ‘‘JUDICIAL REVIEW OF ORDERS OF DEPORTATION

8 AND EXCLUSION, AND SPECIAL EXCLUSION’’, and by add9 ing at the end the following new subsection:

10 ‘‘(d)(1) Notwithstanding any other provision of law,

11 and except as provided in this subsection, no court shall

12 have jurisdiction to review any individual determination,

13 or to entertain any other cause or claim, arising from or

14 relating to the implementation or operation of the special

15 exclusion provisions contained in sections 208(e),

16 212(a)(6)(C)(iii), 235(d), and 235(e). Regardless of the

17 nature of the action or claim, or the party or parties bring18 ing the action, no court shall have jurisdiction or authority

19 to enter declaratory, injunctive, or other equitable relief

20 not specifically authorized in this subsection, nor to certify

21 a class under Rule 23 of the Federal Rules of Civil Proce22 dure.

23 ‘‘(2) Judicial review of any cause, claim, or individual

24 determination covered under paragraph (d)(1) shall only

25 be available in habeas corpus proceedings, and shall be
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1 limited to determinations of: (i) whether the petitioner is

2 an alien, if the petitioner makes a showing that his or her

3 claim of United States nationality is not frivolous; (ii)

4 whether the petitioner was ordered specially excluded; and

5 (iii) whether the petitioner can prove by a preponderance

6 of the evidence that he or she is an alien lawfully admitted

7 for permanent residence and is entitled to such further

8 inquiry as is prescribed by the Attorney General pursuant

9 to section 235(e)(2).

10 ‘‘(3) In any case where the court determines that an

11 alien was not ordered specially excluded, or was not prop12 erly subject to special exclusion under the regulations

13 adopted by the Attorney General, the court may order no

14 relief beyond requiring that the alien receive a hearing in

15 accordance with section 236, or a determination in accord16 ance with section 235(c) or 273(d). Any alien excludable

17 under section 212(a)(6)(C)(iii) who receives a hearing

18 under section 236, whether by order of court or otherwise,

19 may thereafter obtain judicial review of any resulting final

20 order of exclusion pursuant to subsection (b).

21 ‘‘(4) In determining whether an alien has been or22 dered specially excluded, the court’s inquiry shall be lim23 ited to whether such an order was in fact issued and

24 whether it relates to the petitioner. There shall be no re25 view of whether the alien is actually excludable under
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1 section 212(a)(6)(C)(iii) or entitled to any relief from

2 exclusion.’’.

3 (b) Section 235 of the Immigration and Nationality

4 Act (8 U.S.C. 1225) is amended by adding after sub5 section (e) the following new subsection:

6 ‘‘(f) In any action brought for the assessment of pen7 alties for improper entry or re-entry of an alien under sec8 tions 275 and 276 of the Immigration and Nationality

9 Act, no court shall have jurisdiction to hear claims collat10 erally attacking the validity of orders of exclusion, special

11 exclusion, or deportation entered under sections 235, 236,

12 and 242 of the Immigration and Nationality Act.’’.

13 SEC. 5. IMMIGRATION INSPECTION FEE INCREASE.

14 (a) Section 286(d) of the Immigration and National15 ity Act (8 U.S.C. 1356) is amended—

16 (1) by striking out ‘‘$5’’ and inserting in lieu

17 thereof ‘‘$6’’; and

18 (2) by adding at the end of the subsection

19 ‘‘Provided, That this subsection shall not apply to

20 the inspection at designated ports of entry of pas21 sengers arriving by international ferries or vessels on

22 the Great Lakes and connecting waterways, when

23 operating on regular schedules.’’.
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1 (b) Section 286(e) of the Immigration and National2 ity Act (8 U.S.C. 1356) is amended by striking out para3 graph (1) and ‘‘(2)’’.

4 SEC. 6. ENHANCED PENALTIES FOR CERTAIN ALIEN SMUG5 GLING.

6 (a) Section 274(a)(1) of the Immigration and Nation7 ality Act (8 U.S.C. 1324(a)(1)) is amended by striking

8 out ‘‘shall be fined in accordance with title 18, or impris9 oned not more than five years, or both, for each alien in

10 respect to whom any violation of this paragraph occurs’’

11 and inserting in lieu thereof ‘‘shall, for each alien in re12 spect to whom any violation of this paragraph occurs, be

13 fined in accordance with title 18 or (i) in the case of a

14 violation of subparagraph (A), imprisoned for not more

15 than ten years, or both, and (ii) in the case of a violation

16 of subparagraphs (B), (C), or (D), imprisoned for not

17 more than five years, or both: Provided, That if during

18 and in relation to the offense the person causes serious

19 bodily injury (as defined in section 1365 of title 18) to,

20 or places in jeopardy the life of, any alien, such person

21 shall be fined in accordance with title 18, or imprisoned

22 not more than twenty years, or both, and if the death of

23 any alien results, shall be imprisoned for any term of years

24 up to life.’’.
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1 (b) Section 274(a)(2) of the Immigration and Nation2 ality Act (8 U.S.C. 1324(a)(2)) is amended by striking

3 out ‘‘or imprisoned not more than five years, or both’’ and

4 inserting in lieu thereof ‘‘or, in the case of a violation of

5 subparagraph (B)(ii), imprisoned not more than ten years,

6 or both; and, in the case of a violation of subparagraph

7 (B)(i) or (B)(iii), imprisoned not more than five years, or

8 both.’’.

9 (c) Section 1324 of title 8 of the United States Code

10 is amended by adding at the end the following new sub11 section:

12 ‘‘(d) CONSPIRACY.—Whoever conspires to commit

13 any offense defined in this section shall be subject to the

14 same penalties as those prescribed for the offense the com15 mission of which was the object of the conspiracy.’’.

16 SEC. 7. SENTENCING GUIDELINES.

17 The United States Sentencing Commission shall

18 promptly promulgate, pursuant to 28 United States Code

19 994, amendments to the sentencing guidelines to make ap20 propriate increases in the base offense level for offenses

21 under section 274 of the Immigration and Nationality Act

22 to reflect the increases in maximum penalties for such of23 fenses in section 6 of this Act.
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1 SEC. 8. EXPANSION OF FORFEITURE PROVISIONS.

2 Section 274(b) of the Immigration and Nationality

3 Act of 1952, as amended (8 U.S.C. 1324(b)) is amend4 ed—

5 (a) by amending paragraph (1) to read:

6 ‘‘(b) SEIZURE AND FORFEITURE.—(1) The following

7 property shall be subject to seizure and forfeiture: (i) any

8 conveyance, including any vessel, vehicle, or aircraft,

9 which has been or is being used in the commission of a

10 violation of subsection (a); (ii) any property, real or per11 sonal, (A) which constitutes, or is derived from or trace12 able to the proceeds obtained directly or indirectly from

13 the commission of a violation of subsection (a), or (B)

14 which is used to facilitate, or is intended to be so used

15 in the commission of, a violation of subparagraph

16 (a)(1)(A), except that—

17 ‘‘(A) no property used by any person as a com18 mon carrier in the transaction of business as a com19 mon carrier shall be forfeited under this section, un20 less the owner or other person with lawful custody

21 of the property was a consenting party to or privy

22 to the violation of subsection (a) or of sections

23 274A(a)(1) or 274A(a)(2);

24 ‘‘(B) no property shall be forfeited under the

25 provisions of this section by reason of any act or

26 omission established by the owner to have been com-
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1 mitted or omitted by a person other than the owner

2 while the property was unlawfully in the possession

3 of a person other than the owner in violation of the

4 criminal laws of the United States, or of any State;

5 and

6 ‘‘(C) no property shall be forfeited under the

7 provisions of this section to the extent of an interest

8 of the owner, by reason of any act or omission estab9 lished by the owner to have been committed or omit10 ted without the knowledge, consent, or willful blind11 ness of the owner unless the act or omission was

12 committed or omitted by an employee or agent of

13 the owner or other person with lawful custody of the

14 property, with the intent of furthering the business

15 interests of, or to confer any other benefit upon, the

16 owner or other person with lawful custody of the

17 property.’’;

18 (b) in paragraph (2)—

19 (1) by striking out ‘‘conveyance’’ both places it

20 appears and inserting in lieu thereof ‘‘property’’;

21 and

22 (2) by striking out ‘‘is being used in’’ and in23 serting in lieu thereof ‘‘is being used in, is facilitat24 ing, has facilitated, is facilitating or was intended to

25 facilitate’’; and
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1 (c) in paragraphs (4) and (5) by striking out ‘‘a con2 veyance’’ and ‘‘conveyance’’ each place the phrase or word

3 appears and inserting in lieu thereof ‘‘property’’.

4 SEC. 9. WIRETAP AUTHORITY FOR ALIEN SMUGGLING IN5 VESTIGATIONS.

6 Section 2516(1) of title 18, United State Code, is

7 amended—

8 (a) in paragraph (c) by inserting after ‘‘weap9 ons),’’ the following: ‘‘or a felony violation of section

10 1028 (relating to production of false identification

11 documentation), section 1542 (relating to false

12 statements in passport applications), section 1546

13 (relating to fraud and misuse of visas, permits, and

14 other documents),’’;

15 (b) by striking out ‘‘or’’ after paragraph (l) and

16 redesignating paragraphs (m), (n), and (o) as para17 graphs (n), (o), and (p), respectively; and

18 (c) by inserting after paragraph (l) the follow19 ing new paragraph:

20 ‘‘(m) a violation of section 274 of the Immigration

21 and Nationality Act (8 U.S.C. 1324) (relating to alien

22 smuggling), of section 277 of the Immigration and Nation23 ality Act (8 U.S.C. 1327) (relating to the smuggling of

24 aliens convicted of aggravated felonies or of aliens subject

25 to exclusion on grounds of national security), or of section
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1 278 of the Immigration and Nationality Act (8 U.S.C.

2 1328) (relating to smuggling of aliens for the purpose of

3 prostitution or other immoral purpose);’’.

4 SEC. 10. RACKETEERING INFLUENCED AND CORRUPT OR5 GANIZATIONS ENFORCEMENT AUTHORITY.

6 Section 1961(1) of title 18, United States Code, is

7 amended by striking out ‘‘or’’ before ‘‘(E) any act’’ and

8 adding after ‘‘Currency and Foreign Transactions Report9 ing Act’’ the following: ‘‘, or (F) any act which is indict10 able under title 8, United States Code, section 1324(a)(1)

11 (dealing with prohibitions on bringing in and harboring

12 certain aliens)’’.

13 SEC. 11. INTERNATIONAL TERRORISM AWARDS.

14 Section 524(c)(1)(B) of title 28, United States Code,

15 is amended by inserting ‘‘, or relating to international ter16 rorism as authorized by sections 3071 and 3072 of title

17 18’’ at the end thereof.

18 SEC. 12. EFFECTIVE DATE.

19 These amendments shall be effective upon enactment

20 or October 1, 1993, whichever occurs later, and shall apply

21 to aliens who arrive in or seek admission to the United

22 States on or after such date. Notwithstanding any other

23 provision of law, the Attorney General may issue interim

24 final regulations to implement the provisions of these

25 amendments at any time on or after their effective date,
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1 which regulations may become effective upon publication

2 without prior notice or opportunity for public comment.

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