Border Crisis Prevention Act of 2021

To amend the Immigration and Nationality Act to reform certain asylum procedures, and for other purposes. 1. Short title This Act may be cited as the Border Crisis Prevention Act of 2021 2. Credible fear interviews (a) Determination of probability of claim truth Section 235(b)(1)(B)(v) of the Immigration and Nationality Act ( 8 U.S.C. 1225(b)(1)(B)(v) claim claim, as determined pursuant to section 208(b)(1)(B)(iii), and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208, and it is more probable than not that the statements made by, and on behalf of, the alien in support of the alien’s claim are true. (b) Jurisdiction of asylum applications Section 208(b)(3) of the Immigration and Nationality Act ( 8 U.S.C. 1158 (c) Recording expedited removal and credible fear interviews (1) In general The Secretary of Homeland Security shall establish quality assurance procedures and take steps to effectively ensure that questions by employees of the Department of Homeland Security exercising expedited removal authority under section 235(b) of the Immigration and Nationality Act ( 8 U.S.C. 1225(b) (2) Factors relating to sworn statements Where practicable, any sworn or signed written statement taken of an alien as part of the record of a proceeding under section 235(b)(1)(A) of the Immigration and Nationality Act ( 8 U.S.C. 1225(b)(1)(A) (3) Interpreters The Secretary shall ensure that a competent interpreter, not affiliated with the government of the country from which the alien may claim asylum, is used when the interviewing officer does not speak a language understood by the alien. (4) Recordings in immigration proceedings There shall be an audio or audio visual recording of interviews of aliens subject to expedited removal. The recording shall be included in the record of proceeding and shall be considered as evidence in any further proceedings involving the alien. (5) No private right of action Nothing in this subsection shall be construed to create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable in law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does this subsection create any right of review in any administrative, judicial, or other proceeding. 3. Safe third country Section 208(a)(2)(A) of the Immigration and Nationality Act ( 8 U.S.C. 1158(a)(2)(A) (1) by striking Attorney General Secretary of Homeland Security (2) by striking removed, pursuant to a bilateral or multilateral agreement, to removed to 4. Detention spaces There is authorized to be appropriated such sums as may be necessary to provide for sufficient detention spaces as the Secretary of Homeland Security determines necessary to enforce the immigration laws. 5. Immigration judges (a) In general The Attorney General may appoint 100 additional immigration judges in addition to immigration judges currently serving as of the date of enactment of this Act. (b) Authorization of appropriations There is authorized to be appropriated such sums as may be necessary to carry out this section. 6. Asylum procedures related to filing frivolous applications (a) Notice concerning frivolous asylum applications (1) In general Section 208(d)(4) of the Immigration and Nationality Act ( 8 U.S.C. 1158(d)(4) (A) in the matter preceding subparagraph (A), by inserting the Secretary of Homeland Security or the Attorney General (B) in subparagraph (A), by striking and of the consequences, under paragraph (6), of knowingly filing a frivolous application for asylum; and (C) in subparagraph (B), by striking the period and inserting ; and (D) by adding at the end the following: (C) ensure that a written warning appears on the asylum application advising the alien of the consequences of filing a frivolous application and serving as notice to the alien of the consequence of filing a frivolous application. . (2) Conforming amendment Section 208(d)(6) of the Immigration and Nationality Act ( 8 U.S.C. 1158(d)(6) If the (A) If the Secretary of Homeland Security or the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(C), the alien shall be permanently ineligible for any benefits under this chapter, effective as the date of the final determination of such an application. (B) An application is frivolous if the Secretary of Homeland Security or the Attorney General determines, consistent with subparagraph (C), that— (i) it is so insufficient in substance that it is clear that the applicant knowingly filed the application solely or in part to delay removal from the United States, to seek employment authorization as an applicant for asylum pursuant to regulations issued pursuant to paragraph (2), or to seek issuance of a Notice to Appear in order to pursue Cancellation of Removal under section 240A(b); or (ii) any of the material elements are knowingly fabricated. (C) In determining that an application is frivolous, the Secretary or the Attorney General must be satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to clarify any discrepancies or implausible aspects of the claim. (D) For purposes of this section, a finding that an alien filed a frivolous asylum application shall not preclude the alien from seeking withholding of removal under section 241(b)(3) or protection pursuant to the Convention Against Torture. . (b) Anti-Fraud investigative work product (1) Asylum credibility determinations Section 208(b)(1)(B)(iii) of the Immigration and Nationality Act ( 8 U.S.C. 1158(b)(1)(B)(iii) all relevant factors , including statements made to, and investigative reports prepared by, immigration authorities and other government officials (2) Relief for removal credibility determinations Section 240(c)(4)(C) of the Immigration and Nationality Act ( 8 U.S.C. 1229a(c)(4)(C) all relevant factors , including statements made to, and investigative reports prepared by, immigration authorities and other government officials 7. Detention of dangerous aliens Section 241(a) of the Immigration and Nationality Act ( 8 U.S.C. 1231(a) (1) by striking Attorney General Secretary of Homeland Security (2) in paragraph (1), by amending subparagraph (B) to read as follows: (B) Beginning of period The removal period begins on the latest of the following: (i) The date the order of removal becomes administratively final. (ii) If the alien is not in the custody of the Secretary on the date the order of removal becomes administratively final, the date the alien is taken into such custody. (iii) If the alien is detained or confined (except under an immigration process) on the date the order of removal becomes administratively final, the date the alien is taken into the custody of the Secretary, after the alien is released from such detention or confinement. ; (3) in paragraph (1), by amending subparagraph (C) to read as follows: (C) Suspension of period (i) Extension The removal period shall be extended beyond a period of 90 days and the Secretary may, in the Secretary’s sole discretion, keep the alien in detention during such extended period if— (I) the alien fails or refuses to make all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal that is subject to an order of removal; (II) a court, the Board of Immigration Appeals, or an immigration judge orders a stay of removal of an alien who is subject to an administratively final order of removal; (III) the Secretary transfers custody of the alien pursuant to law to another Federal agency or a State or local government agency in connection with the official duties of such agency; or (IV) a court or the Board of Immigration Appeals orders a remand to an immigration judge or the Board of Immigration Appeals, during the time period when the case is pending a decision on remand (with the removal period beginning anew on the date that the alien is ordered removed on remand). (ii) Renewal If the removal period has been extended under subparagraph (C)(i), a new removal period shall be deemed to have begun on the date— (I) the alien makes all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order; (II) the stay of removal is no longer in effect; or (III) the alien is returned to the custody of the Secretary. (iii) Mandatory detention for certain aliens In the case of an alien described in subparagraphs (A) through (D) of section 236(c)(1), the Secretary shall keep that alien in detention during the extended period described in clause (i). (iv) Sole form of relief An alien may seek relief from detention under this subparagraph only by filing an application for a writ of habeas corpus in accordance with chapter 153 ; (4) in paragraph (3)— (A) by adding after If the alien does not leave or is not removed within the removal period or is not detained pursuant to paragraph (6) of this subsection (B) by striking subparagraph (D) and inserting the following: (D) to obey reasonable restrictions on the alien’s conduct or activities that the Secretary prescribes for the alien, in order to prevent the alien from absconding, for the protection of the community, or for other purposes related to the enforcement of the immigration laws. ; (5) in paragraph (4)(A), by striking paragraph (2) subparagraph (B) (6) by striking paragraph (6) and inserting the following: (6) Additional rules for detention or release of certain aliens (A) Detention review process for cooperative aliens established For an alien who is not otherwise subject to mandatory detention, who has made all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary of Homeland Security's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, and who has not conspired or acted to prevent removal, the Secretary shall establish an administrative review process to determine whether the alien should be detained or released on conditions. The Secretary shall make a determination whether to release an alien after the removal period in accordance with subparagraph (B). The determination shall include consideration of any evidence submitted by the alien, and may include consideration of any other evidence, including any information or assistance provided by the Secretary of State or other Federal official and any other information available to the Secretary of Homeland Security pertaining to the ability to remove the alien. (B) Authority to detain beyond removal period (i) In general The Secretary of Homeland Security, in the exercise of the Secretary’s sole discretion, may continue to detain an alien for 90 days beyond the removal period (including any extension of the removal period as provided in paragraph (1)(C)). An alien whose detention is extended under this subparagraph shall have no right to seek release on bond. (ii) specific circumstances The Secretary of Homeland Security, in the exercise of the Secretary’s sole discretion, may continue to detain an alien beyond the 90 days authorized in clause (i)— (I) until the alien is removed, if the Secretary, in the Secretary’s sole discretion, determines that there is a significant likelihood that the alien— (aa) will be removed in the reasonably foreseeable future; or (bb) would be removed in the reasonably foreseeable future, or would have been removed, but for the alien's failure or refusal to make all reasonable efforts to comply with the removal order, or to cooperate fully with the Secretary's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, or conspires or acts to prevent removal; (II) until the alien is removed, if the Secretary of Homeland Security certifies in writing— (aa) in consultation with the Secretary of Health and Human Services, that the alien has a highly contagious disease that poses a threat to public safety; (bb) after receipt of a written recommendation from the Secretary of State, that release of the alien is likely to have serious adverse foreign policy consequences for the United States; (cc) based on information available to the Secretary of Homeland Security (including classified, sensitive, or national security information, and without regard to the grounds upon which the alien was ordered removed), that there is reason to believe that the release of the alien would threaten the national security of the United States; or (dd) that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or any person, and either (AA) the alien has been convicted of one or more aggravated felonies (as defined in section 101(a)(43)(A)) or of one or more crimes identified by the Secretary of Homeland Security by regulation, or of one or more attempts or conspiracies to commit any such aggravated felonies or such identified crimes, if the aggregate term of imprisonment for such attempts or conspiracies is at least 5 years; or (BB) the alien has committed one or more crimes of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) and, because of a mental condition or personality disorder and behavior associated with that condition or disorder, the alien is likely to engage in acts of violence in the future; or (III) pending a certification under subclause (II), so long as the Secretary of Homeland Security has initiated the administrative review process not later than 30 days after the expiration of the removal period (including any extension of the removal period, as provided in paragraph (1)(C)). (iii) No right to bond hearing An alien whose detention is extended under this subparagraph shall have no right to seek release on bond, including by reason of a certification under clause (ii)(II). (C) Renewal and delegation of certification (i) Renewal The Secretary of Homeland Security may renew a certification under subparagraph (B)(ii)(II) every 6 months, after providing an opportunity for the alien to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew a certification, the Secretary may not continue to detain the alien under subparagraph (B)(ii)(II). (ii) Delegation Notwithstanding section 103, the Secretary of Homeland Security may not delegate the authority to make or renew a certification described in item (bb), (cc), or (dd) of subparagraph (B)(ii)(II) below the level of the Director of Immigration and Customs Enforcement. (iii) Hearing The Secretary of Homeland Security may request that the Attorney General or the Attorney General's designee provide for a hearing to make the determination described in item (dd)(BB) of subparagraph (B)(ii)(II). (D) Release on conditions If it is determined that an alien should be released from detention by a Federal court, the Board of Immigration Appeals, or if an immigration judge orders a stay of removal, the Secretary of Homeland Security, in the exercise of the Secretary's discretion, may impose conditions on release as provided in paragraph (3). (E) Redetention The Secretary of Homeland Security, in the exercise of the Secretary's discretion, without any limitations other than those specified in this section, may again detain any alien subject to a final removal order who is released from custody, if removal becomes likely in the reasonably foreseeable future, the alien fails to comply with the conditions of release, or to continue to satisfy the conditions described in subparagraph (A), or if, upon reconsideration, the Secretary, in the Secretary’s sole discretion, determines that the alien can be detained under subparagraph (B). This section shall apply to any alien returned to custody pursuant to this subparagraph, as if the removal period terminated on the day of the redetention. (F) Review of determinations by Secretary A determination by the Secretary under this paragraph shall not be subject to review by any other agency. .

Summary: Border Crisis Prevention Act of 2021 This bill imposes additional requirements on asylum seekers, increases certain time limits related to detained aliens, and addresses other immigration-related issues. The Department of Homeland Security (DHS) must detain certain aliens, such as an alien convicted of an aggravated felony or believed to be a trafficker of controlled substances, beyond certain time limits for detaining an alien. The bill also provides for additional instances when DHS may extend the 90-day removal period (generally the window in which DHS has to remove an alien after a final order of removal). An alien choosing to appeal mandatory detention or detention as part of a removal period extension may do so only by filing for a writ of habeas corpus. DHS shall establish a process to determine whether an alien not subject to mandatory detention and who has tried to comply with a removal order should be detained or released with conditions. Furthermore, under this bill, an alien's credible fear of persecution must be more probable than not in order to be eligible for asylum. DHS may also deny asylum to an applying alien and remove the alien to a country that is not the alien's country of nationality, if the alien would be safe and would be able to apply for asylum from that country. (Currently, an asylum applicant may be removed to a third country only if that country is party to an agreement allowing for such removal.) The Department of Justice may appoint 100 additional immigration judges.