IB 
Union Calendar No. 31 
118TH CONGRESS 
1ST SESSION H. R. 2640 
[Report No. 118–47, Part I] 
To provide for reform of the asylum system and protection of the border. 
IN THE HOUSE OF REPRESENTATIVES 
APRIL 17, 2023 
Mr. MCCLINTOCK (for himself and Mr. BIGGS) introduced the following bill; 
which was referred to the Committee on the Judiciary, and in addition 
to the Committees on Ways and Means, Education and the Workforce, 
and Homeland Security, for a period to be subsequently determined by 
the Speaker, in each case for consideration of such provisions as fall with-
in the jurisdiction of the committee concerned 
MAY 5, 2023 
Additional sponsor: Mrs. LESKO 
MAY 5, 2023 
Reported from the Committee on the Judiciary with an amendment 
[Strike out all after the enacting clause and insert the part printed in italic] 
MAY 5, 2023 
Committees on Ways and Means, Education and the Workforce, and Home-
land Security discharged; committed to the Committee of the Whole 
House on the State of the Union and ordered to be printed 
[For text of introduced bill, see copy of bill as introduced on April 17, 2023] 
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A BILL 
To provide for reform of the asylum system and protection 
of the border. 
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Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Border Security and Enforcement Act of 2023’’. 
(b) TABLE OF CONTENTS.—The table of contents for 
this Act is as follows: 
Sec. 1. Short title; table of contents. 
TITLE I—ASYLUM REFORM AND BORDER PROTECTION 
Sec. 101. Short title. 
Sec. 102. Safe third country. 
Sec. 103. Credible fear interviews. 
Sec. 104. Clarification of asylum eligibility. 
Sec. 105. Exceptions. 
Sec. 106. Employment authorization. 
Sec. 107. Asylum fees. 
Sec. 108. Rules for determining asylum eligibility. 
Sec. 109. Firm resettlement. 
Sec. 110. Notice concerning frivolous asylum applications. 
Sec. 111. Technical amendments. 
Sec. 112. Requirement for procedures relating to certain asylum applications. 
TITLE II—BORDER SAFETY AND MIGRANT PROTECTION 
Sec. 201. Short title. 
Sec. 202. Inspection of applicants for admission. 
Sec. 203. Operational detention facilities. 
TITLE III—ENSURING UNITED FAMILIES AT THE BORDER 
Sec. 301. Short title. 
Sec. 302. Clarification of standards for family detention. 
TITLE IV—PROTECTION OF CHILDREN 
Sec. 401. Short title. 
Sec. 402. Findings. 
Sec. 403. Repatriation of unaccompanied alien children. 
Sec. 404. Special immigrant juvenile status for immigrants unable to reunite 
with either parent. 
Sec. 405. Rule of construction. 
TITLE V—VISA OVERSTAYS PENALTIES 
Sec. 501. Short title. 
Sec. 502. Expanded penalties for illegal entry or presence. 
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TITLE VI—IMMIGRATION PAROLE REFORM 
Sec. 601. Short title. 
Sec. 602. Immigration parole reform. 
Sec. 603. Implementation. 
Sec. 604. Cause of action. 
Sec. 605. Severability. 
TITLE VII—LEGAL WORKFORCE 
Sec. 701. Short title. 
Sec. 702. Employment eligibility verification process. 
Sec. 703. Employment eligibility verification system. 
Sec. 704. Recruitment, referral, and continuation of employment. 
Sec. 705. Good faith defense. 
Sec. 706. Preemption and States’ rights. 
Sec. 707. Repeal. 
Sec. 708. Penalties. 
Sec. 709. Fraud and misuse of documents. 
Sec. 710. Protection of Social Security Administration programs. 
Sec. 711. Fraud prevention. 
Sec. 712. Use of employment eligibility verification photo tool. 
Sec. 713. Identity authentication employment eligibility verification pilot pro-
grams. 
Sec. 714. Inspector General audits. 
Sec. 715. Agriculture Workforce Study. 
Sec. 716. Repealing regulations. 
TITLE I—ASYLUM REFORM AND 
BORDER PROTECTION 
SEC. 101. SHORT TITLE. 
This title may be cited as the ‘‘Asylum Reform and 
Border Protection Act of 2023’’. 
SEC. 102. SAFE THIRD COUNTRY. 
Section 208(a)(2)(A) of the Immigration and Nation-
ality Act (8 U.S.C. 1158(a)(2)(A)) is amended— 
(1) by striking ‘‘if the Attorney General deter-
mines’’ and inserting ‘‘if the Attorney General or the 
Secretary of Homeland Security determines—’’; 
(2) by striking ‘‘that the alien may be removed’’ 
and inserting the following: 
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‘‘(i) that the alien may be removed’’; 
(3) by striking ‘‘, pursuant to a bilateral or mul-
tilateral agreement, to’’ and inserting ‘‘to’’; 
(4) by inserting ‘‘or the Secretary, on a case by 
case basis,’’ before ‘‘finds that’’; 
(5) by striking the period at the end and insert-
ing ‘‘; or’’; and 
(6) by adding at the end the following: 
‘‘(ii) that the alien entered, attempted to enter, 
or arrived in the United States after transiting 
through at least one country outside the alien’s coun-
try of citizenship, nationality, or last lawful habitual 
residence en route to the United States, unless— 
‘‘(I) the alien demonstrates that he or she 
applied for protection from persecution or tor-
ture in at least one country outside the alien’s 
country of citizenship, nationality, or last lawful 
habitual residence through which the alien 
transited en route to the United States, and the 
alien received a final judgment denying the alien 
protection in each country; 
‘‘(II) the alien demonstrates that he or she 
was a victim of a severe form of trafficking in 
which a commercial sex act was induced by 
force, fraud, or coercion, or in which the person 
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of the statements made by the alien in support of the alien’s 
claim, as determined pursuant to section 208(b)(1)(B)(iii), 
and such other facts as are known to the officer, the alien 
more likely than not could establish eligibility for asylum 
under section 208, and it is more likely than not that the 
statements made by, and on behalf of, the alien in support 
of the alien’s claim are true.’’. 
SEC. 104. CLARIFICATION OF ASYLUM ELIGIBILITY. 
(a) IN GENERAL.—Section 208(b)(1)(A) of the Immi-
gration and Nationality Act (8 U.S.C. 1158(b)(1)(A)) is 
amended by inserting after ‘‘section 101(a)(42)(A)’’ the fol-
lowing: ‘‘(in accordance with the rules set forth in this sec-
tion), and is eligible to apply for asylum under subsection 
(a)’’. 
(b) PLACE OF ARRIVAL.—Section 208(a)(1) of the Im-
migration and Nationality Act (8 U.S.C. 1158(a)(1)) is 
amended— 
(1) by striking ‘‘or who arrives in the United 
States (whether or not at a designated port of arrival 
and including an alien who is brought to the United 
States after having been interdicted in international 
or United States waters),’’; and 
(2) by inserting after ‘‘United States’’ the fol-
lowing: ‘‘and has arrived in the United States at a 
port of entry (including an alien who is brought to 
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the United States after having been interdicted in 
international or United States waters),’’. 
SEC. 105. EXCEPTIONS. 
Paragraph (2) of section 208(b) of the Immigration 
and Nationality Act (8 U.S.C. 1158(b)(2)) is amended to 
read as follows: 
‘‘(2) EXCEPTIONS.— 
‘‘(A) IN
GENERAL.—Paragraph (1) shall 
not apply to an alien if the Secretary of Home-
land Security or the Attorney General deter-
mines that— 
‘‘(i) the alien ordered, incited, assisted, 
or otherwise participated in the persecution 
of any person on account of race, religion, 
nationality, membership in a particular so-
cial group, or political opinion; 
‘‘(ii) the alien has been convicted of 
any felony under Federal, State, tribal, or 
local law; 
‘‘(iii) the alien has been convicted of 
any misdemeanor offense under Federal, 
State, tribal, or local law involving— 
‘‘(I) the unlawful possession or 
use of an identification document, au-
thentication feature, or false identifica-
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tion document (as those terms and 
phrases are defined in the jurisdiction 
where the conviction occurred), unless 
the alien can establish that the convic-
tion resulted from circumstances show-
ing that— 
‘‘(aa) the document or fea-
ture was presented before boarding 
a common carrier; 
‘‘(bb) the document or feature 
related to the alien’s eligibility to 
enter the United States; 
‘‘(cc) the alien used the docu-
ment or feature to depart a coun-
try wherein the alien has claimed 
a fear of persecution; and 
‘‘(dd) the alien claimed a 
fear of persecution without delay 
upon presenting himself or herself 
to an immigration officer upon 
arrival at a United States port of 
entry; 
‘‘(II) the unlawful receipt of a 
Federal public benefit (as defined in 
section 401(c) of the Personal Respon-
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sibility and Work Opportunity Rec-
onciliation Act of 1996 (8 U.S.C. 
1611(c))), from a Federal entity, or the 
unlawful receipt of similar public ben-
efits from a State, tribal, or local enti-
ty; or 
‘‘(III) possession or trafficking of 
a controlled substance or controlled 
substance 
paraphernalia, 
as 
those 
phrases are defined under the law of 
the jurisdiction where the conviction 
occurred, other than a single offense in-
volving possession for one’s own use of 
30 grams or less of marijuana (as 
marijuana is defined under the law of 
the jurisdiction where the conviction 
occurred); 
‘‘(iv) the alien has been convicted of an 
offense arising under paragraph (1)(A) or 
(2) of section 274(a), or under section 276; 
‘‘(v) the alien has been convicted of a 
Federal, State, tribal, or local crime that 
the Attorney General or Secretary of Home-
land Security knows, or has reason to be-
lieve, was committed in support, promotion, 
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or furtherance of the activity of a criminal 
street gang (as defined under the law of the 
jurisdiction where the conviction occurred 
or in section 521(a) of title 18, United 
States Code); 
‘‘(vi) the alien has been convicted of an 
offense for driving while intoxicated or im-
paired, as those terms are defined under the 
law of the jurisdiction where the conviction 
occurred (including a conviction for driving 
while under the influence of or impaired by 
alcohol or drugs), without regard to whether 
the conviction is classified as a mis-
demeanor or felony under Federal, State, 
tribal, or local law, in which such intoxi-
cated or impaired driving was a cause of 
serious bodily injury or death of another 
person; 
‘‘(vii) the alien has been convicted of 
more than one offense for driving while in-
toxicated or impaired, as those terms are 
defined under the law of the jurisdiction 
where the conviction occurred (including a 
conviction for driving while under the influ-
ence of or impaired by alcohol or drugs), 
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without regard to whether the conviction is 
classified as a misdemeanor or felony under 
Federal, State, tribal, or local law; 
‘‘(viii) the alien has been convicted of 
a crime— 
‘‘(I) 
that 
involves 
conduct 
amounting to a crime of stalking; 
‘‘(II) of child abuse, child neglect, 
or child abandonment; or 
‘‘(III) 
that 
involves 
conduct 
amounting to a domestic assault or 
battery offense, including— 
‘‘(aa) a misdemeanor crime 
of domestic violence, as described 
in section 921(a)(33) of title 18, 
United States Code; 
‘‘(bb) a crime of domestic vi-
olence, as described in section 
40002(a)(12) 
of 
the 
Violence 
Against Women Act of 1994 (34 
U.S.C. 12291(a)(12)); or 
‘‘(cc) any crime based on 
conduct in which the alien har-
assed, coerced, intimidated, volun-
tarily 
or 
recklessly 
used 
(or 
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threatened to use) force or violence 
against, or inflicted physical in-
jury or physical pain, however 
slight, upon a person— 
‘‘(AA) who is a current 
or former spouse of the alien; 
‘‘(BB) with whom the 
alien shares a child; 
‘‘(CC) who is cohabi-
tating with, or who has 
cohabitated with, the alien as 
a spouse; 
‘‘(DD) who is similarly 
situated to a spouse of the 
alien under the domestic or 
family violence laws of the 
jurisdiction where the offense 
occurred; or 
‘‘(EE) who is protected 
from that alien’s acts under 
the domestic or family vio-
lence laws of the United 
States or of any State, tribal 
government, or unit of local 
government; 
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‘‘(ix) the alien has engaged in acts of 
battery or extreme cruelty upon a person 
and the person— 
‘‘(I) is a current or former spouse 
of the alien; 
‘‘(II) shares a child with the 
alien; 
‘‘(III) 
cohabitates 
or 
has 
cohabitated with the alien as a spouse; 
‘‘(IV) is similarly situated to a 
spouse of the alien under the domestic 
or family violence laws of the jurisdic-
tion where the offense occurred; or 
‘‘(V) is protected from that alien’s 
acts under the domestic or family vio-
lence laws of the United States or of 
any State, tribal government, or unit 
of local government; 
‘‘(x) the alien, having been convicted 
by a final judgment of a particularly seri-
ous crime, constitutes a danger to the com-
munity of the United States; 
‘‘(xi) there are serious reasons for be-
lieving that the alien has committed a seri-
ous nonpolitical crime outside the United 
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States prior to the arrival of the alien in 
the United States; 
‘‘(xii) there are reasonable grounds for 
regarding the alien as a danger to the secu-
rity of the United States; 
‘‘(xiii) the alien is described in sub-
clause (I), (II), (III), (IV), or (VI) of section 
212(a)(3)(B)(i) or section 237(a)(4)(B) (re-
lating to terrorist activity), unless, in the 
case only of an alien inadmissible under 
subclause (IV) of section 212(a)(3)(B)(i), 
the Secretary of Homeland Security or the 
Attorney General determines, in the Sec-
retary’s or the Attorney General’s discre-
tion, that there are not reasonable grounds 
for regarding the alien as a danger to the 
security of the United States; 
‘‘(xiv) the alien was firmly resettled in 
another country prior to arriving in the 
United States; or 
‘‘(xv) there are reasonable grounds for 
concluding the alien could avoid persecution 
by relocating to another part of the alien’s 
country of nationality or, in the case of an 
alien having no nationality, another part of 
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the alien’s country of last habitual resi-
dence. 
‘‘(B) SPECIAL RULES.— 
‘‘(i) PARTICULARLY
SERIOUS
CRIME; 
SERIOUS
NONPOLITICAL
CRIME
OUTSIDE 
THE UNITED STATES.— 
‘‘(I) IN GENERAL.—For purposes 
of subparagraph (A)(x), the Attorney 
General or Secretary of Homeland Se-
curity, in their discretion, may deter-
mine that a conviction constitutes a 
particularly serious crime based on— 
‘‘(aa) the nature of the con-
viction; 
‘‘(bb) the type of sentence im-
posed; or 
‘‘(cc) the circumstances and 
underlying facts of the conviction. 
‘‘(II) DETERMINATION.—In mak-
ing a determination under subclause 
(I), the Attorney General or Secretary 
of Homeland Security may consider all 
reliable information and is not limited 
to facts found by the criminal court or 
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provided in the underlying record of 
conviction. 
‘‘(III) 
TREATMENT
OF
FELO-
NIES.—In making a determination 
under subclause (I), an alien who has 
been convicted of a felony (as defined 
under this section) or an aggravated 
felony 
(as 
defined 
under 
section 
101(a)(43)), shall be considered to have 
been convicted of a particularly serious 
crime. 
‘‘(IV) INTERPOL RED NOTICE.—In 
making a determination under sub-
paragraph (A)(xi), an Interpol Red 
Notice may constitute reliable evidence 
that the alien has committed a serious 
nonpolitical crime outside the United 
States. 
‘‘(ii) CRIMES AND EXCEPTIONS.— 
‘‘(I) DRIVING WHILE INTOXICATED 
OR IMPAIRED.—A finding under sub-
paragraph (A)(vi) does not require the 
Attorney General or Secretary of 
Homeland Security to find the first 
conviction for driving while intoxi-
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cated or impaired (including a convic-
tion for driving while under the influ-
ence of or impaired by alcohol or 
drugs) as a predicate offense. The At-
torney General or Secretary of Home-
land Security need only make a fac-
tual determination that the alien pre-
viously was convicted for driving while 
intoxicated or impaired as those terms 
are defined under the jurisdiction 
where the conviction occurred (includ-
ing a conviction for driving while 
under the influence of or impaired by 
alcohol or drugs). 
‘‘(II) 
STALKING
AND
OTHER 
CRIMES.—In making a determination 
under subparagraph (A)(viii), includ-
ing determining the existence of a do-
mestic relationship between the alien 
and the victim, the underlying conduct 
of the crime may be considered, and 
the Attorney General or Secretary of 
Homeland Security is not limited to 
facts found by the criminal court or 
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provided in the underlying record of 
conviction. 
‘‘(III) BATTERY
OR
EXTREME 
CRUELTY.—In making a determination 
under 
subparagraph 
(A)(ix), 
the 
phrase ‘battery or extreme cruelty’ in-
cludes— 
‘‘(aa) any act or threatened 
act of violence, including any 
forceful detention, which results or 
threatens to result in physical or 
mental injury; 
‘‘(bb) psychological or sexual 
abuse or exploitation, including 
rape, molestation, incest, or forced 
prostitution, shall be considered 
acts of violence; and 
‘‘(cc) other abusive acts, in-
cluding acts that, in and of them-
selves, may not initially appear 
violent, but that are a part of an 
overall pattern of violence. 
‘‘(IV) EXCEPTION FOR VICTIMS OF 
DOMESTIC
VIOLENCE.—An alien who 
was convicted of an offense described in 
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clause (viii) or (ix) of subparagraph 
(A) is not ineligible for asylum on that 
basis if the alien satisfies the criteria 
under section 237(a)(7)(A). 
‘‘(C) 
SPECIFIC
CIRCUMSTANCES.—Para-
graph (1) shall not apply to an alien whose 
claim is based on— 
‘‘(i) personal animus or retribution, 
including personal animus in which the al-
leged persecutor has not targeted, or mani-
fested an animus against, other members of 
an alleged particular social group in addi-
tion to the member who has raised the claim 
at issue; 
‘‘(ii) the applicant’s generalized dis-
approval of, disagreement with, or opposi-
tion to criminal, terrorist, gang, guerilla, or 
other non-state organizations absent expres-
sive behavior in furtherance of a discrete 
cause against such organizations related to 
control of a State or expressive behavior 
that is antithetical to the State or a legal 
unit of the State; 
‘‘(iii) the applicant’s resistance to re-
cruitment or coercion by guerrilla, crimi-
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nal, gang, terrorist, or other non-state orga-
nizations; 
‘‘(iv) the targeting of the applicant for 
criminal activity for financial gain based 
on wealth or affluence or perceptions of 
wealth or affluence; 
‘‘(v) the applicant’s criminal activity; 
or 
‘‘(vi) the applicant’s perceived, past or 
present, gang affiliation. 
‘‘(D) DEFINITIONS AND CLARIFICATIONS.— 
‘‘(i) DEFINITIONS.—For purposes of 
this paragraph: 
‘‘(I) FELONY.—The term ‘felony’ 
means— 
‘‘(aa) any crime defined as a 
felony by the relevant jurisdiction 
(Federal, State, tribal, or local) of 
conviction; or 
‘‘(bb) any crime punishable 
by more than one year of impris-
onment. 
‘‘(II) MISDEMEANOR.—The term 
‘misdemeanor’ means— 
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‘‘(aa) any crime defined as a 
misdemeanor by the relevant ju-
risdiction (Federal, State, tribal, 
or local) of conviction; or 
‘‘(bb) any crime not punish-
able by more than one year of im-
prisonment. 
‘‘(ii) CLARIFICATIONS.— 
‘‘(I) CONSTRUCTION.—For pur-
poses of this paragraph, whether any 
activity or conviction also may con-
stitute a basis for removal is immate-
rial to a determination of asylum eli-
gibility. 
‘‘(II) ATTEMPT, CONSPIRACY, OR 
SOLICITATION.—For purposes of this 
paragraph, all references to a criminal 
offense or criminal conviction shall be 
deemed to include any attempt, con-
spiracy, or solicitation to commit the 
offense or any other inchoate form of 
the offense. 
‘‘(III) EFFECT
OF
CERTAIN
OR-
DERS.— 
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‘‘(aa) 
IN
GENERAL.—No 
order vacating a conviction, modi-
fying a sentence, clarifying a sen-
tence, or otherwise altering a con-
viction or sentence shall have any 
effect under this paragraph unless 
the Attorney General or Secretary 
of Homeland Security determines 
that— 
‘‘(AA) the court issuing 
the order had jurisdiction 
and authority to do so; and 
‘‘(BB) the order was not 
entered 
for 
rehabilitative 
purposes or for purposes of 
ameliorating the immigra-
tion consequences of the con-
viction or sentence. 
‘‘(bb) AMELIORATING
IMMI-
GRATION
CONSEQUENCES.—For 
purposes of item (aa)(BB), the 
order shall be presumed to be for 
the purpose of ameliorating immi-
gration consequences if— 
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‘‘(AA) the order was en-
tered after the initiation of 
any proceeding to remove the 
alien from the United States; 
or 
‘‘(BB) the alien moved 
for the order more than one 
year after the date of the 
original order of conviction 
or sentencing, whichever is 
later. 
‘‘(cc) AUTHORITY
OF
IMMI-
GRATION
JUDGE.—An immigra-
tion judge is not limited to con-
sideration only of material in-
cluded in any order vacating a 
conviction, modifying a sentence, 
or clarifying a sentence to deter-
mine whether such order should be 
given any effect under this para-
graph, but may consider such ad-
ditional information as the immi-
gration judge determines appro-
priate. 
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‘‘(E) ADDITIONAL LIMITATIONS.—The Sec-
retary of Homeland Security or the Attorney 
General may by regulation establish additional 
limitations and conditions, consistent with this 
section, under which an alien shall be ineligible 
for asylum under paragraph (1). 
‘‘(F) NO JUDICIAL REVIEW.—There shall be 
no judicial review of a determination of the Sec-
retary of Homeland Security or the Attorney 
General under subparagraph (A)(xiii).’’. 
SEC. 106. EMPLOYMENT AUTHORIZATION. 
Paragraph (2) of section 208(d) of the Immigration 
and Nationality Act (8 U.S.C. 1158(d)) is amended to read 
as follows: 
‘‘(2) EMPLOYMENT AUTHORIZATION.— 
‘‘(A) AUTHORIZATION PERMITTED.—An ap-
plicant for asylum is not entitled to employment 
authorization, but such authorization may be 
provided under regulation by the Secretary of 
Homeland Security. An applicant who is not 
otherwise eligible for employment authorization 
shall not be granted such authorization prior to 
the date that is 180 days after the date of filing 
of the application for asylum. 
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‘‘(B) TERMINATION.—Each grant of em-
ployment authorization under subparagraph (A), 
and any renewal or extension thereof, shall be 
valid for a period of 6 months, except that such 
authorization, renewal, or extension shall termi-
nate prior to the end of such 6 month period as 
follows: 
‘‘(i) Immediately following the denial 
of an asylum application by an asylum of-
ficer, unless the case is referred to an immi-
gration judge. 
‘‘(ii) 30 days after the date on which 
an immigration judge denies an asylum ap-
plication, unless the alien timely appeals to 
the Board of Immigration Appeals. 
‘‘(iii) Immediately following the denial 
by the Board of Immigration Appeals of an 
appeal of a denial of an asylum applica-
tion. 
‘‘(C) RENEWAL.—The Secretary of Home-
land Security may not grant, renew, or extend 
employment authorization to an alien if the 
alien was previously granted employment au-
thorization under subparagraph (A), and the em-
ployment authorization was terminated pursu-
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ant to a circumstance described in subparagraph 
(B)(i), (ii), or (iii), unless a Federal court of ap-
peals remands the alien’s case to the Board of 
Immigration Appeals. 
‘‘(D) 
INELIGIBILITY.—The 
Secretary 
of 
Homeland Security may not grant employment 
authorization to an alien under this paragraph 
if the alien— 
‘‘(i) is ineligible for asylum under sub-
section (b)(2)(A); or 
‘‘(ii) entered or attempted to enter the 
United States at a place and time other 
than lawfully through a United States port 
of entry.’’. 
SEC. 107. ASYLUM FEES. 
Paragraph (3) of section 208(d) of the Immigration 
and Nationality Act (8 U.S.C. 1158(d)) is amended to read 
as follows: 
‘‘(3) FEES.— 
‘‘(A) APPLICATION FEE.—A fee of not less 
than $50 for each application for asylum shall 
be imposed. Such fee shall not exceed the cost of 
adjudicating the application. Such fee shall not 
apply to an unaccompanied alien child who files 
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an asylum application in proceedings under sec-
tion 240. 
‘‘(B) EMPLOYMENT AUTHORIZATION.—A fee 
may also be imposed for the consideration of an 
application for employment authorization under 
this section and for adjustment of status under 
section 209(b). Such a fee shall not exceed the 
cost of adjudicating the application. 
‘‘(C) PAYMENT.—Fees under this paragraph 
may be assessed and paid over a period of time 
or by installments. 
‘‘(D) RULE OF CONSTRUCTION.—Nothing in 
this paragraph shall be construed to limit the 
authority of the Attorney General or Secretary of 
Homeland Security to set adjudication and nat-
uralization fees in accordance with section 
286(m).’’. 
SEC. 108. RULES FOR DETERMINING ASYLUM ELIGIBILITY. 
Section 208 of the Immigration and Nationality Act 
(8 U.S.C. 1158) is amended by adding at the end the fol-
lowing: 
‘‘(f) RULES
FOR
DETERMINING
ASYLUM
ELIGI-
BILITY.—In making a determination under subsection 
(b)(1)(A) with respect to whether an alien is a refugee with-
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in the meaning of section 101(a)(42)(A), the following shall 
apply: 
‘‘(1) PARTICULAR
SOCIAL
GROUP.—The Sec-
retary of Homeland Security or the Attorney General 
shall not determine that an alien is a member of a 
particular social group unless the alien articulates on 
the record, or provides a basis on the record for deter-
mining, the definition and boundaries of the alleged 
particular social group, establishes that the particular 
social group exists independently from the alleged 
persecution, and establishes that the alien’s claim of 
membership in a particular social group does not in-
volve— 
‘‘(A) past or present criminal activity or 
association (including gang membership); 
‘‘(B) presence in a country with generalized 
violence or a high crime rate; 
‘‘(C) being the subject of a recruitment effort 
by criminal, terrorist, or persecutory groups; 
‘‘(D) the targeting of the applicant for 
criminal activity for financial gain based on 
perceptions of wealth or affluence; 
‘‘(E) interpersonal disputes of which gov-
ernmental authorities in the relevant society or 
region were unaware or uninvolved; 
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‘‘(F) private criminal acts of which govern-
mental authorities in the relevant society or re-
gion were unaware or uninvolved; 
‘‘(G) past or present terrorist activity or as-
sociation; 
‘‘(H) past or present persecutory activity or 
association; or 
‘‘(I) status as an alien returning from the 
United States. 
‘‘(2) POLITICAL
OPINION.—The Secretary of 
Homeland Security or the Attorney General may not 
determine that an alien holds a political opinion with 
respect to which the alien is subject to persecution if 
the political opinion is constituted solely by general-
ized disapproval of, disagreement with, or opposition 
to criminal, terrorist, gang, guerilla, or other non- 
state organizations and does not include expressive 
behavior in furtherance of a cause against such orga-
nizations related to efforts by the State to control such 
organizations or behavior that is antithetical to or 
otherwise opposes the ruling legal entity of the State 
or a unit thereof. 
‘‘(3) PERSECUTION.—The Secretary of Home-
land Security or the Attorney General may not deter-
mine that an alien has been subject to persecution or 
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has a well-founded fear of persecution based only 
on— 
‘‘(A) the existence of laws or government 
policies that are unenforced or infrequently en-
forced, unless there is credible evidence that such 
a law or policy has been or would be applied to 
the applicant personally; or 
‘‘(B) the conduct of rogue foreign govern-
ment officials acting outside the scope of their of-
ficial capacity. 
‘‘(4) DISCRETIONARY DETERMINATION.— 
‘‘(A) ADVERSE DISCRETIONARY FACTORS.— 
The Secretary of Homeland Security or the At-
torney General may only grant asylum to an 
alien if the alien establishes that he or she war-
rants a favorable exercise of discretion. In mak-
ing such a determination, the Attorney General 
or Secretary of Homeland Security shall con-
sider, if applicable, an alien’s use of fraudulent 
documents to enter the United States, unless the 
alien arrived in the United States by air, sea, or 
land directly from the applicant’s home country 
without transiting through any other country. 
‘‘(B) FAVORABLE EXERCISE OF DISCRETION 
NOT PERMITTED.—Except as provided in sub-
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paragraph (C), the Attorney General or Sec-
retary of Homeland Security shall not favorably 
exercise discretion under this section for any 
alien who— 
‘‘(i) has accrued more than one year of 
unlawful presence in the United States, as 
defined in sections 212(a)(9)(B)(ii) and 
(iii), prior to filing an application for asy-
lum; 
‘‘(ii) at the time the asylum applica-
tion is filed with the immigration court or 
is referred from the Department of Home-
land Security, has— 
‘‘(I) failed to timely file (or time-
ly file a request for an extension of 
time to file) any required Federal, 
State, or local income tax returns; 
‘‘(II) failed to satisfy any out-
standing Federal, State, or local tax 
obligations; or 
‘‘(III) income that would result in 
tax liability under section 1 of the In-
ternal Revenue Code of 1986 and that 
was not reported to the Internal Rev-
enue Service; 
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