Border Crisis Prevention Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 709 To amend the Immigration and Nationality Act to reform certain asylum procedures, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 2, 2021 Mrs. LESKO introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend the Immigration and Nationality Act to reform certain asylum procedures, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Border Crisis Preven- 4 tion Act of 2021’’. 5 SEC. 2. CREDIBLE FEAR INTERVIEWS. 6 (a) DETERMINATION OF PROBABILITY OF CLAIM 7 TRUTH.—Section 235(b)(1)(B)(v) of the Immigration and 8 Nationality Act (8 U.S.C. 1225(b)(1)(B)(v)) is amended 9 by striking ‘‘claim’’ and all that follows, and inserting 10 VerDate Sep 11 2014 18:56 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H709.IH H709 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 709 IH ‘‘claim, as determined pursuant to section 1 208(b)(1)(B)(iii), and such other facts as are known to 2 the officer, that the alien could establish eligibility for asy- 3 lum under section 208, and it is more probable than not 4 that the statements made by, and on behalf of, the alien 5 in support of the alien’s claim are true.’’. 6 (b) JURISDICTION OF ASYLUM APPLICATIONS.—Sec- 7 tion 208(b)(3) of the Immigration and Nationality Act (8 8 U.S.C. 1158) is amended by striking subparagraph (C). 9 (c) RECORDING EXPEDITED REMOVAL AND CRED- 10 IBLE FEAR INTERVIEWS.— 11 (1) IN GENERAL.—The Secretary of Homeland 12 Security shall establish quality assurance procedures 13 and take steps to effectively ensure that questions by 14 employees of the Department of Homeland Security 15 exercising expedited removal authority under section 16 235(b) of the Immigration and Nationality Act (8 17 U.S.C. 1225(b)) are asked in a uniform manner, to 18 the extent possible, and that both these questions 19 and the answers provided in response to them are 20 recorded in a uniform fashion. 21 (2) FACTORS RELATING TO SWORN STATE- 22 MENTS.—Where practicable, any sworn or signed 23 written statement taken of an alien as part of the 24 record of a proceeding under section 235(b)(1)(A) of 25 VerDate Sep 11 2014 18:56 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H709.IH H709 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 709 IH the Immigration and Nationality Act (8 U.S.C. 1 1225(b)(1)(A)) shall be accompanied by a recording 2 of the interview which served as the basis for that 3 sworn statement. 4 (3) INTERPRETERS.—The Secretary shall en- 5 sure that a competent interpreter, not affiliated with 6 the government of the country from which the alien 7 may claim asylum, is used when the interviewing of- 8 ficer does not speak a language understood by the 9 alien. 10 (4) RECORDINGS IN IMMIGRATION PRO- 11 CEEDINGS.—There shall be an audio or audio visual 12 recording of interviews of aliens subject to expedited 13 removal. The recording shall be included in the 14 record of proceeding and shall be considered as evi- 15 dence in any further proceedings involving the alien. 16 (5) NO PRIVATE RIGHT OF ACTION.—Nothing 17 in this subsection shall be construed to create any 18 right, benefit, trust, or responsibility, whether sub- 19 stantive or procedural, enforceable in law or equity 20 by a party against the United States, its depart- 21 ments, agencies, instrumentalities, entities, officers, 22 employees, or agents, or any person, nor does this 23 subsection create any right of review in any adminis- 24 trative, judicial, or other proceeding. 25 VerDate Sep 11 2014 18:56 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H709.IH H709 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 709 IH SEC. 3. SAFE THIRD COUNTRY. 1 Section 208(a)(2)(A) of the Immigration and Nation- 2 ality Act (8 U.S.C. 1158(a)(2)(A)) is amended— 3 (1) by striking ‘‘Attorney General’’ each place 4 it appears and inserting ‘‘Secretary of Homeland Se- 5 curity’’; and 6 (2) by striking ‘‘removed, pursuant to a bilat- 7 eral or multilateral agreement, to’’ and inserting 8 ‘‘removed to’’. 9 SEC. 4. DETENTION SPACES. 10 There is authorized to be appropriated such sums as 11 may be necessary to provide for sufficient detention spaces 12 as the Secretary of Homeland Security determines nec- 13 essary to enforce the immigration laws. 14 SEC. 5. IMMIGRATION JUDGES. 15 (a) IN GENERAL.—The Attorney General may ap- 16 point 100 additional immigration judges in addition to im- 17 migration judges currently serving as of the date of enact- 18 ment of this Act. 19 (b) AUTHORIZATION OF APPROPRIATIONS.—There is 20 authorized to be appropriated such sums as may be nec- 21 essary to carry out this section. 22 SEC. 6. ASYLUM PROCEDURES RELATED TO FILING FRIVO- 23 LOUS APPLICATIONS. 24 (a) NOTICE CONCERNING FRIVOLOUS ASYLUM AP- 25 PLICATIONS.— 26 VerDate Sep 11 2014 18:56 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H709.IH H709 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 709 IH (1) IN GENERAL.—Section 208(d)(4) of the Im- 1 migration and Nationality Act (8 U.S.C. 2 1158(d)(4)) is amended— 3 (A) in the matter preceding subparagraph 4 (A), by inserting ‘‘the Secretary of Homeland 5 Security or’’ before ‘‘the Attorney General’’; 6 (B) in subparagraph (A), by striking ‘‘and 7 of the consequences, under paragraph (6), of 8 knowingly filing a frivolous application for asy- 9 lum; and’’ and inserting a semicolon; 10 (C) in subparagraph (B), by striking the 11 period and inserting ‘‘; and’’; and 12 (D) by adding at the end the following: 13 ‘‘(C) ensure that a written warning ap- 14 pears on the asylum application advising the 15 alien of the consequences of filing a frivolous 16 application and serving as notice to the alien of 17 the consequence of filing a frivolous applica- 18 tion.’’. 19 (2) CONFORMING AMENDMENT.—Section 20 208(d)(6) of the Immigration and Nationality Act (8 21 U.S.C. 1158(d)(6)) is amended by striking ‘‘If the’’ 22 and all that follows and inserting: 23 ‘‘(A) If the Secretary of Homeland Secu- 24 rity or the Attorney General determines that an 25 VerDate Sep 11 2014 18:56 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H709.IH H709 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 709 IH alien has knowingly made a frivolous applica- 1 tion for asylum and the alien has received the 2 notice under paragraph (4)(C), the alien shall 3 be permanently ineligible for any benefits under 4 this chapter, effective as the date of the final 5 determination of such an application. 6 ‘‘(B) An application is frivolous if the Sec- 7 retary of Homeland Security or the Attorney 8 General determines, consistent with subpara- 9 graph (C), that— 10 ‘‘(i) it is so insufficient in substance 11 that it is clear that the applicant know- 12 ingly filed the application solely or in part 13 to delay removal from the United States, 14 to seek employment authorization as an 15 applicant for asylum pursuant to regula- 16 tions issued pursuant to paragraph (2), or 17 to seek issuance of a Notice to Appear in 18 order to pursue Cancellation of Removal 19 under section 240A(b); or 20 ‘‘(ii) any of the material elements are 21 knowingly fabricated. 22 ‘‘(C) In determining that an application is 23 frivolous, the Secretary or the Attorney General 24 must be satisfied that the applicant, during the 25 VerDate Sep 11 2014 18:56 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H709.IH H709 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 709 IH course of the proceedings, has had sufficient op- 1 portunity to clarify any discrepancies or implau- 2 sible aspects of the claim. 3 ‘‘(D) For purposes of this section, a find- 4 ing that an alien filed a frivolous asylum appli- 5 cation shall not preclude the alien from seeking 6 withholding of removal under section 241(b)(3) 7 or protection pursuant to the Convention 8 Against Torture.’’. 9 (b) ANTI-FRAUD INVESTIGATIVE WORK PRODUCT.— 10 (1) ASYLUM CREDIBILITY DETERMINATIONS.— 11 Section 208(b)(1)(B)(iii) of the Immigration and 12 Nationality Act (8 U.S.C. 1158(b)(1)(B)(iii)) is 13 amended by inserting after ‘‘all relevant factors’’ the 14 following: ‘‘, including statements made to, and in- 15 vestigative reports prepared by, immigration authori- 16 ties and other government officials’’. 17 (2) RELIEF FOR REMOVAL CREDIBILITY DETER- 18 MINATIONS.—Section 240(c)(4)(C) of the Immigra- 19 tion and Nationality Act (8 U.S.C. 1229a(c)(4)(C)) 20 is amended by inserting after ‘‘all relevant factors’’ 21 the following: ‘‘, including statements made to, and 22 investigative reports prepared by, immigration au- 23 thorities and other government officials’’. 24 VerDate Sep 11 2014 18:56 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H709.IH H709 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 709 IH SEC. 7. DETENTION OF DANGEROUS ALIENS. 1 Section 241(a) of the Immigration and Nationality 2 Act (8 U.S.C. 1231(a)) is amended— 3 (1) by striking ‘‘Attorney General’’ each place 4 it appears, except for the first reference in para- 5 graph (4)(B)(i), and inserting ‘‘Secretary of Home- 6 land Security’’; 7 (2) in paragraph (1), by amending subpara- 8 graph (B) to read as follows: 9 ‘‘(B) BEGINNING OF PERIOD.—The re- 10 moval period begins on the latest of the fol- 11 lowing: 12 ‘‘(i) The date the order of removal be- 13 comes administratively final. 14 ‘‘(ii) If the alien is not in the custody 15 of the Secretary on the date the order of 16 removal becomes administratively final, the 17 date the alien is taken into such custody. 18 ‘‘(iii) If the alien is detained or con- 19 fined (except under an immigration proc- 20 ess) on the date the order of removal be- 21 comes administratively final, the date the 22 alien is taken into the custody of the Sec- 23 retary, after the alien is released from such 24 detention or confinement.’’; 25 VerDate Sep 11 2014 18:56 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H709.IH H709 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 709 IH (3) in paragraph (1), by amending subpara- 1 graph (C) to read as follows: 2 ‘‘(C) SUSPENSION OF PERIOD.— 3 ‘‘(i) EXTENSION.—The removal period 4 shall be extended beyond a period of 90 5 days and the Secretary may, in the Sec- 6 retary’s sole discretion, keep the alien in 7 detention during such extended period if— 8 ‘‘(I) the alien fails or refuses to 9 make all reasonable efforts to comply 10 with the removal order, or to fully co- 11 operate with the Secretary’s efforts to 12 establish the alien’s identity and carry 13 out the removal order, including mak- 14 ing timely application in good faith 15 for travel or other documents nec- 16 essary to the alien’s departure or con- 17 spires or acts to prevent the alien’s 18 removal that is subject to an order of 19 removal; 20 ‘‘(II) a court, the Board of Immi- 21 gration Appeals, or an immigration 22 judge orders a stay of removal of an 23 alien who is subject to an administra- 24 tively final order of removal; 25 VerDate Sep 11 2014 18:56 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H709.IH H709 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 709 IH ‘‘(III) the Secretary transfers 1 custody of the alien pursuant to law 2 to another Federal agency or a State 3 or local government agency in connec- 4 tion with the official duties of such 5 agency; or 6 ‘‘(IV) a court or the Board of 7 Immigration Appeals orders a remand 8 to an immigration judge or the Board 9 of Immigration Appeals, during the 10 time period when the case is pending 11 a decision on remand (with the re- 12 moval period beginning anew on the 13 date that the alien is ordered removed 14 on remand). 15 ‘‘(ii) RENEWAL.—If the removal pe- 16 riod has been extended under subpara- 17 graph (C)(i), a new removal period shall be 18 deemed to have begun on the date— 19 ‘‘(I) the alien makes all reason- 20 able efforts to comply with the re- 21 moval order, or to fully cooperate with 22 the Secretary’s efforts to establish the 23 alien’s identity and carry out the re- 24 moval order; 25 VerDate Sep 11 2014 18:56 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H709.IH H709 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 709 IH ‘‘(II) the stay of removal is no 1 longer in effect; or 2 ‘‘(III) the alien is returned to the 3 custody of the Secretary. 4 ‘‘(iii) MANDATORY DETENTION FOR 5 CERTAIN ALIENS.—In the case of an alien 6 described in subparagraphs (A) through 7 (D) of section 236(c)(1), the Secretary 8 shall keep that alien in detention during 9 the extended period described in clause (i). 10 ‘‘(iv) SOLE FORM OF RELIEF.—An 11 alien may seek relief from detention under 12 this subparagraph only by filing an appli- 13 cation for a writ of habeas corpus in ac- 14 cordance with chapter 153 of title 28, 15 United States Code. No alien whose period 16 of detention is extended under this sub- 17 paragraph shall have the right to seek re- 18 lease on bond.’’; 19 (4) in paragraph (3)— 20 (A) by adding after ‘‘If the alien does not 21 leave or is not removed within the removal pe- 22 riod’’ the following: ‘‘or is not detained pursu- 23 ant to paragraph (6) of this subsection’’; and 24 VerDate Sep 11 2014 18:56 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H709.IH H709 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 709 IH (B) by striking subparagraph (D) and in- 1 serting the following: 2 ‘‘(D) to obey reasonable restrictions on the 3 alien’s conduct or activities that the Secretary 4 prescribes for the alien, in order to prevent the 5 alien from absconding, for the protection of the 6 community, or for other purposes related to the 7 enforcement of the immigration laws.’’; 8 (5) in paragraph (4)(A), by striking ‘‘paragraph 9 (2)’’ and inserting ‘‘subparagraph (B)’’; and 10 (6) by striking paragraph (6) and inserting the 11 following: 12 ‘‘(6) ADDITIONAL RULES FOR DETENTION OR 13 RELEASE OF CERTAIN ALIENS.— 14 ‘‘(A) DETENTION REVIEW PROCESS FOR 15 COOPERATIVE ALIENS ESTABLISHED.—For an 16 alien who is not otherwise subject to mandatory 17 detention, who has made all reasonable efforts 18 to comply with a removal order and to cooper- 19 ate fully with the Secretary of Homeland Secu- 20 rity’s efforts to establish the alien’s identity and 21 carry out the removal order, including making 22 timely application in good faith for travel or 23 other documents necessary to the alien’s depar- 24 ture, and who has not conspired or acted to 25 VerDate Sep 11 2014 18:56 Feb 21, 202 [Text truncated for display. 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