[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 685 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 685
To close loopholes in the immigration laws that serve as incentives to
aliens to attempt to enter the United States unlawfully, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 7, 2023
Mr. Lee (for himself, Mr. Cruz, Mr. Tuberville, Mr. Daines, Mrs. Britt,
Mrs. Blackburn, Mr. Cotton, Mr. Moran, Mr. Graham, Mr. Grassley, Mr.
Braun, and Ms. Ernst) introduced the following bill; which was read
twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To close loopholes in the immigration laws that serve as incentives to
aliens to attempt to enter the United States unlawfully, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Stopping Border
Surges Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--UNACCOMPANIED ALIEN CHILDREN
Sec. 101. Repatriation of unaccompanied alien children.
Sec. 102. Clarification of standards for family detention.
Sec. 103. Special immigrant juvenile status for immigrants unable to
reunite with either parent.
TITLE II--ASYLUM REFORM
Sec. 201. Clarification of asylum eligibility.
Sec. 202. Safe third country.
Sec. 203. Application timing.
Sec. 204. Clarification of burden of proof.
Sec. 205. Anti-fraud investigative work product.
Sec. 206. Additional exception.
Sec. 207. Jurisdiction of asylum applications.
Sec. 208. Renunciation of asylum status pursuant to return to home
country.
Sec. 209. Clarification regarding employment eligibility.
Sec. 210. Notice concerning frivolous asylum applications.
Sec. 211. Credible fear interviews.
Sec. 212. Recording expedited removal and credible fear interviews.
Sec. 213. Penalties for asylum fraud.
Sec. 214. Statute of limitations for asylum fraud.
Sec. 215. Technical amendments.
TITLE I--UNACCOMPANIED ALIEN CHILDREN
SEC. 101. REPATRIATION OF UNACCOMPANIED ALIEN CHILDREN.
(a) In General.--Section 235 of the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is
amended--
(1) in subsection (a)--
(A) in paragraph (2)--
(i) by amending the paragraph heading to
read as follows: ``Rules for unaccompanied
alien children.--'';
(ii) in subparagraph (A)--
(I) in the matter preceding clause
(i), by striking ``who is a national or
habitual resident of a country that is
contiguous with the United States'';
(II) in clause (i), by inserting
``and'' at the end;
(III) in clause (ii), by striking
``; and'' and inserting a period; and
(IV) by striking clause (iii);
(iii) in subparagraph (B)--
(I) in the matter preceding clause
(i), by striking ``(8 U.S.C. 1101 et
seq.) may--'' and inserting ``(8 U.S.C.
1101 et seq.)--'';
(II) in clause (i), by inserting
before ``permit such child to
withdraw'' the following: ``may''; and
(III) in clause (ii), by inserting
before ``return such child'' the
following: ``shall''; and
(iv) in subparagraph (C)--
(I) by amending the subparagraph
heading to read as follows:
``Agreements with foreign countries.--
''; and
(II) in the matter preceding clause
(i), by striking ``The Secretary of
State shall negotiate agreements
between the United States and countries
contiguous to the United States'' and
inserting ``The Secretary of State may
negotiate agreements between the United
States and any foreign country that the
Secretary determines appropriate'';
(B) by redesignating paragraphs (3) through (5) as
paragraphs (4) through (6), respectively;
(C) by inserting after paragraph (2) the following:
``(3) Special rules for interviewing unaccompanied alien
children.--An unaccompanied alien child shall be interviewed by
an immigration officer with specialized training in
interviewing child trafficking victims.''; and
(D) in paragraph (6)(D), as redesignated--
(i) in the matter preceding clause (i), by
striking ``, except for an unaccompanied alien
child from a contiguous country subject to
exceptions under subsection (a)(2),'' and
inserting ``who does not meet the criteria
listed in paragraph (2)(A)''; and
(ii) in clause (i), by inserting ``, which
shall include a hearing before an immigration
judge not later than 14 days after being
screened under paragraph (4)'' before the
semicolon at the end;
(2) in subsection (b)--
(A) in paragraph (2)--
(i) in subparagraph (A), by inserting
``believed not to meet the criteria listed in
subsection (a)(2)(A)'' before the semicolon at
the end; and
(ii) in subparagraph (B), by inserting
``and does not meet the criteria listed in
subsection (a)(2)(A)'' before the period at the
end; and
(B) in paragraph (3), by striking ``an
unaccompanied alien child in custody shall'' and all
that follows, and inserting the following: ``an
unaccompanied alien child in custody--
``(A) in the case of a child who does not meet the
criteria listed in subsection (a)(2)(A), shall transfer
the custody of such child to the Secretary of Health
and Human Services not later than 30 days after
determining that such child is an unaccompanied alien
child who does not meet such criteria; or
``(B) in the case of child who meets the criteria
listed in subsection (a)(2)(A), may transfer the
custody of such child to the Secretary of Health and
Human Services after determining that such child is an
unaccompanied alien child who meets such criteria.'';
and
(3) in subsection (c)--
(A) in paragraph (3), by adding at the end the
following:
``(D) Information about individuals with whom
children are placed.--
``(i) Information to be provided to the
department of homeland security.--Before
placing an unaccompanied alien child with an
individual, the Secretary of Health and Human
Services shall provide to the Secretary of
Homeland Security, regarding the individual
with whom the child will be placed, the
following information:
``(I) The name of the individual.
``(II) The Social Security number
of the individual, if available.
``(III) The date of birth of the
individual.
``(IV) The location of the
individual's residence where the child
will be placed.
``(V) The immigration status of the
individual, if known.
``(VI) Contact information for the
individual.
``(ii) Special rule.--Not later than 90
days after the date of the enactment of this
subparagraph, the Secretary of Health and Human
Services shall provide to the Secretary of
Homeland Security the information listed in
clause (i) with respect to any unaccompanied
alien child apprehended between January 1,
2021, and such date of enactment who the
Secretary of Health and Human Services has
placed with an individual.
``(iii) Activities of the secretary of
homeland security.--Not later than 30 days
after receiving the information listed in
clause (i), the Secretary of Homeland Security
shall--
``(I) if the immigration status of
an individual with whom a child is
placed is unknown, investigate the
immigration status of such individual;
and
``(II) upon determining that an
individual with whom a child is placed
is unlawfully present in the United
States, initiate removal proceedings
against such individual pursuant to
chapter 4 of title II of the
Immigration and Nationality Act (8
U.S.C. 1221 et seq.)''; and
(B) in paragraph (5)--
(i) by inserting after ``to the greatest
extent practicable'' the following: ``(at no
expense to the Government)''; and
(ii) by striking ``have counsel to
represent them'' and inserting ``have access to
counsel to represent them''.
(b) Effective Date.--The amendments made by this section shall
apply to any unaccompanied alien child apprehended on or after the date
of enactment of this Act.
SEC. 102. CLARIFICATION OF STANDARDS FOR FAMILY DETENTION.
(a) In General.--Section 235 of the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is
amended by adding at the end the following:
``(j) Rule of Construction.--
``(1) In general.--Notwithstanding any other provision of
law, judicial determination, consent decree, or settlement
agreement, the detention of any alien child who is not an
unaccompanied alien child shall be governed by sections 217,
235, 236, and 241 of the Immigration and Nationality Act (8
U.S.C. 1187, 1225, 1226, and 1231). There is no presumption
that an alien child who is not an unaccompanied alien child
should not be detained, and all determinations regarding the
detention of such children shall be in the discretion of the
Secretary of Homeland Security.
``(2) Release of minors other than unaccompanied aliens.--
An alien minor who is not an unaccompanied alien child may not
be released by the Secretary of Homeland Security other than to
a parent or legal guardian who is lawfully present in the
United States.
``(3) Family detention.--The Secretary of Homeland Security
shall--
``(A) maintain the care and custody of an alien,
during the period during which the charges described in
clause (i) are pending, who--
``(i) is charged only with a misdemeanor
offense under section 275(a) of the Immigration
and Nationality Act (8 U.S.C. 1325(a)); and
``(ii) entered the United States with the
alien's child who has not attained 18 years of
age; and
``(B) detain the alien with the alien's child.''.
(b) Sense of Congress.--It is the sense of Congress that the
amendment made by subsection (a) is intended to satisfy the
requirements of the Settlement Agreement in Flores v. Meese, No. 85-
4544 (C.D. Cal) as approved by the court on January 28, 1997, with
respect to its interpretation in Flores v. Johnson, 212 F. Supp. 3d 864
(C.D. Cal. 2015), that the agreement applies to accompanied minors.
(c) Effective Date.--The amendment made by subsection (a)--
(1) shall take effect on the date of the enactment of this
Act; and
(2) shall apply to all actions that occur before, on, or
after such date of enactment.
(d) Preemption of State Licensing Requirements.--Notwithstanding
any other provision of law, judicial determination, consent decree, or
settlement agreement, no State may require that an immigration
detention facility used to detain children who have not attained 18
years of age, or families consisting of 1 or more of such children and
the parents or legal guardians of such children, that is located in
such State, be licensed by the State or by any political subdivision of
such State.
SEC. 103. SPECIAL IMMIGRANT JUVENILE STATUS FOR IMMIGRANTS UNABLE TO
REUNITE WITH EITHER PARENT.
Section 101(a)(27)(J) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(27)(J)) is amended--
(1) in clause (i), by striking ``, and whose reunification
with 1 or both of the immigrant's parents is not viable due to
abuse, neglect, abandonment, or a similar basis found under
State law''; and
(2) in clause (iii)--
(A) in subclause (I), by striking ``and'' at the
end;
(B) in subclause (II), by adding ``and'' at the
end; and
(C) by adding at the end the following:
``(III) an alien may not be granted
special immigrant juvenile status under
this subparagraph if his or her
reunification with any parent or legal
guardian is not precluded by abuse,
neglect, abandonment, or any similar
cause under State law;''.
TITLE II--ASYLUM REFORM
SEC. 201. CLARIFICATION OF ASYLUM ELIGIBILITY.
(a) Place of Arrival.--Section 208(a)(1) of the Immigration 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 ``and has arrived in the United States at
a port of entry,'' after ``United States''.
(b) Eligibility.--Section 208(b)(1)(A) of such Act (8 U.S.C.
1158(b)(1)(A)) is amended by inserting ``and is eligible to apply for
asylum under subsection (a)'' after ``section 101(a)(42)(A)''.
SEC. 202. 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 ``if the Attorney General determines that
the alien may be removed'' and inserting the following: ``if
the Attorney General or the Secretary of Homeland Security
determines that--
``(i) the alien may be removed'';
(2) by striking ``removed, pursuant to a bilateral or
multilateral agreement, to'' and inserting ``removed to'';
(3) by inserting ``, on a case by case basis,'' before
``finds that'';
(4) by striking the period at the end and inserting ``;
or''; and
(5) by adding at the end the following:
``(ii) the alien entered, attempted to enter, or arrived in
the United States after transiting through at least one country
outside the alien's country 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 torture 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 judgement
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 induced to perform
such act was younger than 18 years of age; or in which
the trafficking included the recruitment, harboring,
transportation, provision, or obtaining of a person for
labor or services through the use of force, fraud, or
coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery, and was
unable to apply for protection from persecution in all
countries that alien transited en route to the United
States as a result of such severe form of trafficking;
or
``(III) the only countries through which the alien
transited en route to the United States were, at the
time of the transit, not parties to the 1951 United
Nations Convention relating to the Status of Refugees,
the 1967 Protocol Relating to the Status of Refugees,
or the United Nations Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or
Punishment.''.
SEC. 203. APPLICATION TIMING.
Section 208(a)(2)(B) of the Immigration and Nationality Act (8
U.S.C. 1158(a)(2)(B)) is amended by striking ``1 year'' and inserting
``6 months''.
SEC. 204. CLARIFICATION OF BURDEN OF PROOF.
Section 208(b)(1)(B)(i) of the Immigration and Nationality Act (8
U.S.C. 1158(b)(1)(B)(i)) is amended by striking ``at least one central
reason'' and inserting ``the central reason''.
SEC. 205. 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 such Act (8 U.S.C. 1229a(c)(4)(C)) is amended by
inserting ``, including statements made to, and investigative reports
prepared by, immigration authorities and other government officials''
after ``all relevant factors''.
SEC. 206. ADDITIONAL EXCEPTION.
Section 208(b)(2)(A) of the Immigration and Nationality Act (8
U.S.C. 1158(b)(2)(A)) is amended--
(1) in clause (v), by striking ``or'' at the end;
(2) in clause (vi), by striking the period and inserting
``; or''; and
(3) by adding at the end the following:
``(vii) there are reasonable grounds for
concluding the alien could avoid persecution by
relocating to another part of the alien's
country of nationality or, if stateless,
another part of the alien's country of last
habitual residence.''.
SEC. 207. JURISDICTION OF ASYLUM APPLICATIONS.
Section 208(b)(3) of the Immigration and Nationality Act (8 U.S.C.
1158) is amended by striking subparagraph (C).
SEC. 208. RENUNCIATION 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:
``(4) Renunciation of status pursuant to return to home
country.--
``(A) In general.--Except as provided in
subparagraph (B), 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 may be
sought prior to departure from the United States or
upon return.''.
(b) Conforming Amendment.--Section 208(c)(3) of such Act (8 U.S.C.
1158(c)(3)) is amended by inserting ``or (4)'' after ``paragraph (2)''.
SEC. 209. CLARIFICATION REGARDING EMPLOYMENT ELIGIBILITY.
Section 208(d)(2) of the Immigration and Nationality Act (8 U.S.C.
1158(d)(2)) is amended--
(1) by striking ``prior to 180 days'' and inserting
``before the date that is 1 year''; and
(2) by inserting ``and the authorization shall expire 6
months after the date on which it is granted'' before the
period at the end.
SEC. 210. 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; and'' and inserting a
semicolon;
(3) in subparagraph (B), by striking the period at the end
and inserting ``; and''; 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
serving as notice to the alien of the consequence 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 to read as follows:
``(6) Frivolous applications.--
``(A) Consequence.--If the Secretary of Homeland
Security or the Attorney General determines that an
alien has knowingly made a frivolous application for
asylum after receiving the written warning required
under paragraph (4)(C), such alien shall be permanently
ineligible for any benefits under this chapter,
effective as the date of the final determination of
such an application.
``(B) Determination.--An application shall be
considered frivolous if the Secretary of Homeland
Security or the Attorney General determines, consistent
with subparagraph (C), that--
``(i) the application 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) Opportunity to clarify claim.--An application
may not be considered frivolous under this paragraph
unless the Secretary or the Attorney General are
satisfied that the applicant, during the course of the
proceedings, has had sufficient opportunity to clarify
any discrepancies or implausible aspects of the
applicant's claim.
``(D) Withholding of removal.--A determination
under this paragraph that an alien filed a frivolous
asylum application shall not preclude such alien from
seeking withholding of removal under section 241(b)(3)
or protection pursuant to the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, done at New York December 10, 1984.''.
SEC. 211. 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. 212. 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--
(1) 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
(2) such questions and the answers provided in response to
such questions are recorded in a uniform manner.
(b) Credible Fear Interview Checklists.--The Secretary of Homeland
Security shall--
(1) provide a checklist of standard questions and concepts
to be addressed in all interviews required under section 235(b)
of the Immigration and Nationality Act (8 U.S.C. 1225(b)) to
immigration officers exercising decision-making authority in
such interviews;
(2) routinely update such checklist to include relevant
changes to law and procedures; and
(3) require all immigration officers utilizing such
checklists to provide concise justifications of their decisions
regardless of whether credible fear was or was not established
by the alien.
(c) Factors Relating to Sworn Statements.--To the extent
practicable, any sworn or signed written statement taken from 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 such sworn statement.
(d) Interpreters.--The Secretary of Homeland Security shall ensure
the use of a competent interpreter who is not affiliated with the
government of the country from which the alien may claim asylum if the
interviewing officer does not speak a language understood by the alien.
(e) Recordings in Immigration Proceedings.--All interviews of
aliens subject to expedited removal shall be recorded (either by audio
or by audio visual). Such recordings shall be included in the record of
proceeding and shall be considered as evidence in any further
proceedings involving such aliens.
(f) No Private Right of Action.--Nothing in this section may be
construed to create--
(1) 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; or
(2) any right of review in any administrative, judicial, or
other proceeding.
SEC. 213. PENALTIES FOR ASYLUM FRAUD.
Section 1001 of title 18, United States Code, is amended by adding
at the end the following:
``(d) Any person who, in any matter before the Secretary of
Homeland Security or the Attorney General pertaining to asylum under
section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) or
withholding of removal under section 241(b)(3) of such Act (8 U.S.C.
1231(b)(3)), knowingly and willfully--
``(1) makes any materially false, fictitious, or fraudulent
statement or representation; or
``(2) makes or uses any false writings or document knowing
the same to contain any materially false, fictitious, or
fraudulent statement or entry,
shall be fined under this title, imprisoned not more than 10 years, or
both.''.
SEC. 214. STATUTE OF LIMITATIONS FOR ASYLUM FRAUD.
Section 3291 of title 18, United States Code, is amended--
(1) by striking ``1544,'' and inserting ``1544, and section
1546,''; and
(2) by inserting ``or within 10 years after the fraud is
discovered'' before the period at the end.
SEC. 215. TECHNICAL AMENDMENTS.
Section 208 of the Immigration and Nationality Act, as amended by
this title, is further 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'';
(B) in paragraph (2), in the matter preceding
subparagraph (A), by inserting ``Secretary of Homeland
Security or the'' before ``Attorney General''; and
(C) 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''; and
(C) in paragraph (5)--
(i) in subparagraph (A), by striking
``Attorney General'' and inserting ``Secretary
of Homeland Security''; and
(ii) in subparagraph (B), by inserting
``Secretary of Homeland Security or the''
before ``Attorney General''.
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