Asylum Reform and Border Protection Act of 2021
Bill: H.R.759 | Sponsor: Rep. Johnson, Mike (R-LA)
Policy area: Immigration

Summary:
Asylum Reform and Border Protection Act of 2021
This bill makes various immigration-related changes, such as restricting Department of Homeland Security (DHS) authority to parole certain aliens.
The bill (1) bars the government from paying for counsel for a person in any immigration proceeding before DHS or the Department of Justice, whereas currently the prohibition only applies to removal proceedings; and (2) raises the burden on an alien to establish the alien's claimed fear of persecution when seeking asylum.
DHS shall standardize questions asked in expedited removal proceedings and record such proceedings.
DHS may parole an alien into the United States only on an individualized basis and may not use eligibility criteria describing an entire class of people. The bill imposes additional restrictions on such parole authority.
The bill removes an exception which allows an unaccompanied alien child to seek asylum while in the United States (or upon arrival at the U.S. border) even if the child may be removed to a safe third country where the child may seek asylum.
The bill also bars an alien from seeking asylum while in the United States (or upon arrival at the U.S. border) if the alien may be removed to a safe third country where the alien may seek asylum. Currently, this bar only applies if the United States has an agreement with the third country.
The bill bars several grounds for asylum related to generalized violence.
The bill expands what constitutes a frivolous asylum application to include those filed solely to delay removal, among others. Currently, an application is frivolous only if any material elements are deliberately fabricated.

To modify the treatment of unaccompanied alien children who are in 
 Federal custody by reason of their immigration status, and for other 
                               purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Asylum Reform and Border Protection 
Act of 2021''.

SEC. 2. CLARIFICATION OF INTENT REGARDING TAXPAYER-PROVIDED COUNSEL.

    Section 292 of the Immigration and Nationality Act (8 U.S.C. 1362) 
is amended--
            (1) by striking ``In any removal proceedings before an 
        immigration judge and in any appeal proceedings before the 
        Attorney General from any such removal proceedings'' and 
        inserting ``In any removal proceedings before an immigration 
        judge, or any other immigration proceedings before the Attorney 
        General, the Secretary of Homeland Security, or any appeal of 
        such a proceeding'';
            (2) by striking ``(at no expense to the Government)''; and
            (3) by adding at the end the following:
``Notwithstanding any other provision of law, in no instance shall the 
Government bear any expense for counsel for any person in proceedings 
described in this section.''.

SEC. 3. CREDIBLE FEAR INTERVIEWS.

    Section 235(b)(1)(B)(v) of the Immigration and Nationality Act (8 
U.S.C. 1225(b)(1)(B)(v)) is amended by striking ``claim'' and all that 
follows and inserting ``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.''.

SEC. 4. RECORDING EXPEDITED REMOVAL AND CREDIBLE FEAR INTERVIEWS.

    (a) 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)) are asked in a 
uniform manner, to the extent possible, and that both these questions 
and the answers provided in response to them are recorded in a uniform 
fashion.
    (b) 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)) shall be accompanied by a 
recording of the interview which served as the basis for that sworn 
statement.
    (c) 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.
    (d) 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.
    (e) No Private Right of Action.--Nothing in this section 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 section create any right of review in any 
administrative, judicial, or other proceeding.

SEC. 5. PAROLE REFORM.

    (a) In General.--Paragraph (5) of section 212(d) of the Immigration 
and Nationality Act (8 U.S.C. 1182(d)) is amended to read as follows:
            ``(5) Humanitarian and significant public interest 
        parole.--
                    ``(A) In general.--Subject to the provisions of 
                this paragraph and section 214(f)(2), the Secretary of 
                Homeland Security, in the sole discretion of the 
                Secretary of Homeland Security, may on an individual 
                case-by-case basis, and not according to eligibility 
                criteria describing an entire class of potential parole 
                recipients, parole an alien into the United States 
                temporarily, under such conditions as the Secretary of 
                Homeland Security may prescribe, only--
                            ``(i) an alien not present in the United 
                        States for an urgent humanitarian reason (as 
                        described under subparagraph (B));
                            ``(ii) an alien not present in the United 
                        States for a reason deemed strictly in the 
                        significant public interest (as described under 
                        subparagraph (C)); or
                            ``(iii) an alien who--
                                    ``(I) is present in the United 
                                States without lawful immigration 
                                status;
                                    ``(II) is the beneficiary of a 
                                pending or approved petition under 
                                section 203(a);
                                    ``(III) is not otherwise 
                                inadmissible or deportable; and
                                    ``(IV) is the spouse or minor child 
                                of a member of the Armed Forces serving 
                                on active duty at the request of the 
                                member of the Armed Forces.
                    ``(B) Humanitarian parole.--The Secretary of 
                Homeland Security may parole an alien based on an 
                urgent humanitarian reason described in this 
                subparagraph only if--
                            ``(i) the alien has a medical emergency and 
                        the alien cannot obtain necessary treatment in 
                        the foreign state in which the alien is 
                        residing or the medical emergency is life-
                        threatening and there is insufficient time for 
                        the alien to be admitted through the normal 
                        visa process;
                            ``(ii) the alien is the parent or legal 
                        guardian of an alien described in clause (i), 
                        if the alien described in clause (i) is a 
                        minor;
                            ``(iii) the alien is needed in the United 
                        States in order to donate an organ or other 
                        tissue for transplant into a close family 
                        member and there is insufficient time for the 
                        alien to be admitted through the normal visa 
                        process;
                            ``(iv) the alien has a close family member 
                        in the United States whose death is imminent 
                        and the alien could not arrive in the United 
                        States in time to see such family member alive 
                        if the alien were to be admitted through the 
                        normal visa process;
                            ``(v) the alien is an adopted child with an 
                        urgent medical condition, who is in the legal 
                        custody of the petitioner for a final adoption-
                        related visa, and whose medical treatment is 
                        required prior to the expected award of a final 
                        adoption-related visa;
                            ``(vi) the alien is a lawful applicant for 
                        adjustment of status under section 245; or
                            ``(vii) the alien was--
                                    ``(I) lawfully granted status under 
                                section 208;
                                    ``(II) lawfully admitted under 
                                section 207; or
                                    ``(III) granted withholding of 
                                removal under section 241(b)(3).
                    ``(C) Significant public interest parole.--The 
                Secretary of Homeland Security may parole an alien 
                based on a reason deemed strictly in the significant 
                public interest described in this subparagraph only if 
                the alien has assisted (or will assist, whether 
                knowingly or not) the United States Government in a 
                matter, such as a criminal investigation, espionage, or 
                other similar law enforcement activity, including a 
                civil litigation matter requiring the alien's presence, 
                and either the alien's presence in the United States is 
                required by the Government or the alien's life would be 
                threatened if the alien were not permitted to come to 
                the United States. Only a matter described in this 
                subparagraph shall qualify for purposes of this 
                subparagraph, and no other matter may qualify.
                    ``(D) Limitation on the use of parole authority.--
                The Secretary of Homeland Security may not use the 
                parole authority under this paragraph--
                            ``(i) to circumvent immigration policy 
                        established by law to admit classes of aliens 
                        who do not qualify for admission; or
                            ``(ii) to supplement established 
                        immigration categories without congressional 
                        approval.
                    ``(E) Parole not an admission.--Parole of an alien 
                under this paragraph shall not be considered an 
                admission of the alien into the United States. When the 
                purposes of the parole of an alien have been served, as 
                determined by the Secretary of Homeland Security, the 
                alien shall immediately return or be returned to the 
                custody from which the alien was paroled and the alien 
                shall be considered for admission to the United States 
                on the same basis as other similarly situated 
                applicants for admission.
                    ``(F) Report to congress.--Not later than 90 days 
                after the end of each fiscal year, the Secretary of 
                Homeland Security shall submit a report to the 
                Committees on the Judiciary of the House of 
                Representatives and the Senate describing the number 
                and categories of aliens paroled into the United States 
                under this paragraph. Each such report shall contain 
                information and data concerning the number and 
                categories of aliens paroled, the duration of parole, 
                and the current status of aliens paroled during the 
                preceding fiscal year.''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
take effect on the first day of the first month beginning more than 60 
days after the date of the enactment of this Act.

SEC. 6. MODIFICATIONS TO PREFERENTIAL AVAILABILITY FOR ASYLUM FOR 
              UNACCOMPANIED ALIEN MINORS.

    Section 208(a)(2) of the Immigration and Nationality Act (8 U.S.C. 
1158(a)(2)) is amended by striking subparagraph (E).

SEC. 7. SAFE THIRD COUNTRY.

    Section 208(a)(2)(A) of the Immigration and Nationality Act (8 
U.S.C. 1158(a)(2)(A)) is amended--
            (1) by striking ``Attorney General'' each place it appears 
        and inserting ``Secretary of Homeland Security''; and
            (2) by striking ``removed, pursuant to a bilateral or 
        multilateral agreement, to'' and inserting ``removed to''.

SEC. 8. WITHHOLDING OF REMOVAL.

    Section 241(b)(3) of the Immigration and Nationality Act (8 U.S.C. 
1231(b)(3)) is amended--
            (1) by adding at the end of subparagraph (A) the following:
                ``The burden of proof shall be on the alien to 
                establish that the alien's life or freedom would be 
                threatened in that country, and that race, religion, 
                nationality, membership in a particular social group, 
                or political opinion would be at least one central 
                reason for such threat.''; and
            (2) in subparagraph (C), by striking ``In determining 
        whether an alien has demonstrated that the alien's life or 
        freedom would be threatened for a reason described in 
        subparagraph (A),'' and inserting ``For purposes of this 
        paragraph,''.

SEC. 9. FIRM RESETTLEMENT.

    Section 208(b)(2)(A)(vi) of the Immigration and Nationality Act (8 
U.S.C. 1158(b)(2)(A)(vi)) is amended by striking ``States.'' and 
inserting ``States, which shall be considered demonstrated by evidence 
that the alien can live in such country (in any legal status) without 
fear of persecution.''.

SEC. 10. TERMINATION OF ASYLUM STATUS PURSUANT TO RETURN TO HOME 
              COUNTRY.

    (a) In General.--Section 208(c) of the Immigration and Nationality 
Act (8 U.S.C. 1158(c)) is amended by adding at the end the following 
new paragraph:
            ``(3) Termination of status pursuant to return to home 
        country.--
                    ``(A) In general.--Except as provided in 
                subparagraphs (B) and (C), any alien who is granted 
                asylum status under this Act, who, absent changed 
                country conditions, subsequently returns to the country 
                of such alien's nationality or, in the case of an alien 
                having no nationality, returns to any country in which 
                such alien last habitually resided, and who applied for 
                such status because of persecution or a well-founded 
                fear of persecution in that country on account of race, 
                religion, nationality, membership in a particular 
                social group, or political opinion, shall have his or 
                her status terminated.
                    ``(B) Waiver.--The Secretary has discretion to 
                waive subparagraph (A) if it is established to the 
                satisfaction of the Secretary that the alien had a 
                compelling reason for the return. The waiver shall be 
                sought prior to departure from the United States or 
                upon return.''.
    (b) Conforming Amendment.--Section 208(c)(3) of the Immigration and 
Nationality Act (8 U.S.C. 1158(c)(3)) is amended by inserting after 
``paragraph (2)'' the following: ``or (4)''.

SEC. 11. NOTICE CONCERNING FRIVOLOUS ASYLUM APPLICATIONS.

    (a) In General.--Section 208(d)(4) of the Immigration and 
Nationality Act (8 U.S.C. 1158(d)(4)) is amended--
            (1) in the matter preceding subparagraph (A), by inserting 
        ``the Secretary of Homeland Security or'' before ``the Attorney 
        General'';
            (2) in subparagraph (A), by striking ``and of the 
        consequences, under paragraph (6), of knowingly filing a 
        frivolous application for asylum'';
            (3) in subparagraph (B), by striking the period and 
        inserting ``; and'';
            (4) 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
            (5) by inserting after subparagraph (C) the following:
        ``The written warning referred to in subparagraph (C) shall 
        serve as notice to the alien of the consequences of filing a 
        frivolous application.''.
    (b) Conforming Amendment.--Section 208(d)(6) of the Immigration and 
Nationality Act (8 U.S.C. 1158(d)(6)) is amended--
            (1) by striking ``If the Attorney General'' and inserting 
        ``(A) In general.--If the Department of Homeland Security or 
        the Attorney General'';
            (2) by striking ``paragraph (4)(A)'' in subparagraph (A) 
        (as designated in paragraph (1) of this subsection) and 
        inserting ``paragraph (4)(C)''; and
            (3) by adding at the end the following:
                    ``(B) Determination.--An application may be found 
                `frivolous' if it is determined--
                            ``(i) to be totally insufficient in 
                        substance such that it is clear that the 
                        applicant knowingly filed the application 
                        without intending to pursue the merits of his 
                        or her asylum claim solely--
                                    ``(I) to delay removal from the 
                                United States;
                                    ``(II) to seek employment 
                                authorization as an applicant for 
                                asylum pursuant to regulations issued 
                                pursuant to paragraph (2); or
                                    ``(III) for applicants whom have 
                                not yet had removal proceedings 
                                initiated against them under section 
                                239, to seek issuance of a notice to 
                                appear in order to pursue cancellation 
                                of removal under section 240A(b); or
                            ``(ii) that any of its material elements is 
                        deliberately fabricated.
                    ``(C) Limitation on determination.--A determination 
                under subparagraph (B) shall only be made if the 
                decision maker is satisfied that the applicant, during 
                the course of the proceedings, has had sufficient 
                opportunity to account for any discrepancies or 
                implausible aspects of the claim. 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).''.

SEC. 12. TERMINATION OF ASYLUM STATUS IN REMOVAL PROCEEDINGS.

    Section 208(c) of the Immigration and Nationality Act (8 U.S.C. 
1158(c)), as amended by this Act, is further amended--
            (1) in paragraph (2)--
                    (A) in the matter preceding subparagraph (A), by 
                inserting ``the Secretary of Homeland Security or'' 
                before ``the Attorney General''; and
                    (B) in subparagraph (C), by striking ``, pursuant 
                to a bilateral or multilateral agreement,''; and
            (2) by adding at the end the following:
            ``(5) Timing for consideration of termination of asylum 
        status in removal proceedings.--If an alien's asylum status is 
        subject to termination under paragraph (2) or (4), the 
        immigration judge shall first determine whether the conditions 
        specified under that paragraph have been met, and if so, 
        terminate the alien's asylum status before considering whether 
        the alien is eligible for adjustment of status under section 
        209.''.

SEC. 13. LIMITATION ON ELIGIBILITY FOR ASYLUM BASED ON GENERALIZED 
              VIOLENCE.

    Section 208(b)(2)(B) of the Immigration and Nationality Act (8 
U.S.C. 1158(b)(2)(B)) is amended by adding at the end the following:
                            ``(iii) Limitation on eligibility based on 
                        generalized violence.--An alien is not eligible 
                        for asylum under this section, or withholding 
                        of removal under section 241, based on any of 
                        the following circumstances:
                                    ``(I) Being, or having been, a 
                                member of a criminal gang.
                                    ``(II) Participating, or having 
                                participated, in the activities of a 
                                criminal gang.
                                    ``(III) Having been recruited into, 
                                or having a fear of being recruited 
                                into, membership of, or the activities 
                                of, a criminal gang.
                                    ``(IV) Having been, or having a 
                                fear of being, the victim of a crime 
                                committed by a member of a criminal 
                                gang, or otherwise having been, or 
                                having a fear of being, the victim of a 
                                crime in the alien's home country, 
                                unless the main motivating factor for 
                                the commission of the crime, or the 
                                fear of being the victim of a crime, is 
                                related to the alien's race, religion, 
                                national origin, or political 
                                opinion.''.

SEC. 14. MEMBERSHIP IN A PARTICULAR SOCIAL GROUP DEFINED.

    Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)) is amended by adding at the end the following:
            ``(53) The term `membership in a particular social group' 
        means membership in a group that is--
                    ``(A) composed of members who share a common 
                immutable characteristic;
                    ``(B) defined with particularity; and
                    ``(C) socially distinct within the society in 
                question.''.

SEC. 15. ANTI-FRAUD INVESTIGATIVE WORK PRODUCT.

    (a) Asylum Credibility Determinations.--Section 208(b)(1)(B)(iii) 
of the Immigration and Nationality Act (8 U.S.C. 1158(b)(1)(B)(iii)) is 
amended by inserting after ``all relevant factors'' the following: ``, 
including statements made to, and investigative reports prepared by, 
immigration authorities and other government officials''.
    (b) Relief for Removal Credibility Determinations.--Section 
240(c)(4)(C) of the Immigration and Nationality Act (8 U.S.C. 
1229a(c)(4)(C)) is amended by inserting after ``all relevant factors'' 
the following: ``, including statements made to, and investigative 
reports prepared by, immigration authorities and other government 
officials''.

SEC. 16. CLARIFICATION FOR CONDUCT OF ROGUE FOREIGN OFFICIALS.

    (a) Asylum Applications.--Section 208(b)(2)(B) of the Immigration 
and Nationality Act (8 U.S.C. 1158(b)(2)(B)), as amended by this Act, 
is further amended by adding at the end the following:
                            ``(iv) Rogue foreign government 
                        officials.--The burden of proof under paragraph 
                        (1)(B) may not be established based on the 
                        conduct of rogue foreign government officials 
                        acting outside the scope of their official 
                        capacity.''.
    (b) Countries to Which an Alien May Be Removed.--Section 241(b)(3) 
of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3)) is amended 
by adding at the end the following:
                    ``(C) Special rule.--The burden of proof for relief 
                under this paragraph may not be established based on 
                the conduct of rogue foreign government officials 
                acting outside the scope of their official capacity.''.

SEC. 17. TECHNICAL AMENDMENTS.

    Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) 
is amended--
            (1) in subsection (a)--
                    (A) in paragraph (2)(D), by inserting ``Secretary 
                of Homeland Security or the'' before ``Attorney 
                General''; and
                    (B) in paragraph (3), by inserting ``Secretary of 
                Homeland Security or the'' before ``Attorney General'';
            (2) in subsection (b)(2), by inserting ``Secretary of 
        Homeland Security or the'' before ``Attorney General'' each 
        place such term appears;
            (3) in subsection (c)--
                    (A) in paragraph (1), by striking ``Attorney 
                General'' each place such term appears and inserting 
                ``Secretary of Homeland Security''; and
                    (B) in paragraph (3), by inserting ``Secretary of 
                Homeland Security or the'' before ``Attorney General''; 
                and
            (4) in subsection (d)--
                    (A) in paragraph (1), by inserting ``Secretary of 
                Homeland Security or the'' before ``Attorney General'' 
                each place such term appears;
                    (B) in paragraph (2), by striking ``Attorney 
                General'' and inserting ``Secretary of Homeland 
                Security'';
                    (C) in paragraph (3), by inserting ``Secretary of 
                Homeland Security or the'' before ``Attorney General'' 
                each place such term appears;
                    (D) in paragraph (5)--
                            (i) in subparagraph (A), by inserting 
                        ``Secretary of Homeland Security or the'' 
                        before ``Attorney General''; and
                            (ii) in subparagraph (B), by inserting 
                        ``Secretary of Homeland Security or the'' 
                        before ``Attorney General''; and
                    (E) in paragraph (6), by inserting ``Secretary of 
                Homeland Security or the'' before ``Attorney General'' 
                each place such term appears.
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