H.R. 116 — Stopping Border Surges Act

This section revises the rules governing the custody, screening, placement, and repatriation of unaccompanied alien children under 8 U.S.C. § 1232. It (1) removes the special contiguous-country limitation from the existing return procedures, so the rules for withdrawal of an application for admission and return to the country of nationality or last habitual residence may apply to unaccompanied alien children from any country; (2) changes the Secretary of State’s authority from requiring agreements with contiguous countries to permitting agreements with any foreign country the Secretary determines appropriate; and (3) adds a new requirement that an unaccompanied alien child be interviewed by an immigration officer with specialized training in interviewing child trafficking victims. The section also revises custody-transfer rules. For an unaccompanied alien child who does not meet the criteria in subsection (a)(2)(A), the Secretary of Homeland Security must transfer custody to the Secretary of Health and Human Services not later than 30 days after determining the child is an unaccompanied alien child. For a child who does meet those criteria, the Secretary may transfer custody to Health and Human Services. It further requires that a child who does not meet the subsection (a)(2)(A) criteria receive a hearing before an immigration judge not later than 14 days after being screened under paragraph (4). The section adds a new requirement that, before placing a child with an individual, the Secretary of Health and Human Services provide the Secretary of Homeland Security with the individual’s name, Social Security number if available, date of birth, residence location, immigration status if known, and contact information. For children apprehended on or after the effective date of the clause and before enactment, Health and Human Services must provide that information to Homeland Security not later than 90 days after enactment. Finally, the section requires that legal services for unaccompanied alien children be provided to the greatest extent practicable at no expense to the Government and changes the right to counsel from having counsel to represent them to having access to counsel to represent them. The amendments apply to any unaccompanied alien child apprehended on or after the date of enactment.

This section revises the standards governing the detention and release of alien children and family units in immigration custody under section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 8 U.S.C. § 1232. It provides that, notwithstanding any other law, court order, consent decree, or settlement agreement, the detention of any alien child who is not an unaccompanied alien child is governed by sections 217, 235, 236, and 241 of the Immigration and Nationality Act, 8 U.S.C. §§ 1187, 1225, 1226, and 1231, and states that there is no presumption against detention for such children, with detention decisions left to the discretion of the Secretary of Homeland Security. This section limits release of a minor who is not an unaccompanied alien child to a parent or legal guardian who is lawfully present in the United States. It also directs the Secretary of Homeland Security to maintain custody of an alien who is charged only with a misdemeanor offense under 8 U.S.C. § 1325(a) and who entered the United States with a child under 18 years old, and to detain the alien together with that child. (Thus, the provision requires family detention for certain misdemeanor border-crossing cases involving children under 18.) This section states that the amendments are intended to satisfy the Flores settlement agreement as interpreted in Flores v. Johnson with respect to accompanied minors. It makes the amendment effective on the date of enactment and applies it to actions before, on, and after enactment. It also preempts state licensing requirements by prohibiting any state from requiring that an immigration detention facility used to detain children under 18 years old, or families consisting of one or more such children and their parents or legal guardians, be licensed by the state or a political subdivision of the state.

This section revises the special immigrant juvenile status definition under the Immigration and Nationality Act by removing the requirement in clause (i) that reunification with 1 or both parents be “not viable” because of abuse, neglect, abandonment, or a similar basis under State law, and by adding a new clause (iii)(III) that bars special immigrant juvenile status unless reunification with any one parent or legal guardian is precluded by abuse, neglect, abandonment, or a similar cause under State law. (Thus, an applicant must show that reunification with at least one parent or legal guardian is not possible for one of the specified reasons.)

This section revises the credible fear standard used in expedited removal proceedings under 8 U.S.C. 1225(b)(1)(B)(v) by requiring an asylum officer to determine, based on the alien’s claim as determined under 8 U.S.C. 1158(b)(1)(B)(iii) and other known facts, that the alien could establish eligibility for asylum under section 208 and that it is more probable than not that the statements made by or on behalf of the alien in support of the claim are true. (Thus, the provision narrows the screening standard for aliens subject to expedited removal by adding a truthfulness threshold and tying the assessment to the asylum credibility factors.)

This section terminates the statutory restriction on asylum applications by striking 8 U.S.C. § 1158(b)(3)(C), which had barred an alien from applying for asylum if the alien had previously applied for asylum and had that application denied.

This section establishes quality assurance and recording requirements for expedited removal and credible fear interviews under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b)). It directs the Secretary of Homeland Security to ensure that questions asked by Department of Homeland Security employees exercising expedited removal authority are posed in a uniform manner, to the extent possible, and that both the questions and answers are recorded uniformly. It also requires the Secretary to provide immigration officers with a checklist of standard questions and concepts for all credible fear interviews, to update those checklists routinely to reflect changes in law and procedure, and to require concise written justifications for each decision, whether credible fear is found or not. In addition, where practicable, any sworn or signed written statement taken from an alien in a proceeding under 8 U.S.C. 1225(b)(1)(A) must be accompanied by a recording of the interview on which the statement was based. The section further requires the use of a competent interpreter who is not affiliated with the government of the country from which the alien may claim asylum when the interviewing officer does not speak a language understood by the alien. It requires an audio or audio-visual recording of interviews of aliens subject to expedited removal, and provides that the recording must be included in the record of proceeding and may be used as evidence in any further proceedings involving the alien. Finally, it bars any private right of action or administrative, judicial, or other review based on this section.

This section revises the safe third country bar to asylum under 8 U.S.C. § 1158(a)(2)(A) by authorizing the Attorney General or the Secretary of Homeland Security to make the removal determination, removing the requirement that removal be made pursuant to a bilateral or multilateral agreement, and specifying that the public-interest exception is made on a case-by-case basis. It also adds a new transit-based asylum bar for an alien who entered, attempted to enter, or arrived in the United States after transiting through at least 1 country outside the alien’s country of citizenship, nationality, or last lawful habitual residence, unless the alien (1) applied for protection from persecution or torture in at least 1 transit country and received a final judgment denying protection in each country, (2) was a victim of a severe form of trafficking and was unable to apply for protection in all transit countries as a result of that trafficking, or (3) transited only through countries that were not parties, at the time of transit, to the 1951 Refugee Convention, the 1967 Refugee Protocol, or the Convention Against Torture.

This section terminates asylum status for an alien who, after being granted asylum, later returns to the country of nationality or, for a stateless alien, the country of last habitual residence, if the alien originally sought asylum 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 and the return occurs absent changed country conditions. It also authorizes the Secretary of Homeland Security to waive that termination if the Secretary determines the alien had a compelling reason for the return, and permits the waiver request to be made either before departure from the United States or after return. The section makes a conforming change to clarify that the existing bar on judicial review of certain asylum termination determinations also applies to this new termination ground.

This section revises the notice and penalty provisions for frivolous asylum applications under 8 U.S.C. § 1158(d) by (1) requiring the Secretary of Homeland Security or the Attorney General, rather than only the Attorney General, to provide the required asylum advisals; (2) removing the existing requirement to warn applicants in the oral advisal about the consequences of knowingly filing a frivolous asylum application under paragraph (6); and (3) requiring a written warning on the asylum application itself advising the alien of those consequences. It also revises the frivolous-application penalty so that, if the Secretary of Homeland Security or the Attorney General determines that an alien knowingly filed a frivolous asylum application and the alien received the written notice under paragraph (4)(C), the alien is permanently ineligible for any benefits under the Immigration and Nationality Act, effective on the date of the final determination. The section defines a frivolous application as one filed solely or partly to delay removal, seek employment authorization, or seek a Notice to Appear to pursue cancellation of removal under section 240A(b), or one in which any material element is knowingly fabricated, and requires that the applicant have had a sufficient opportunity to explain discrepancies before a frivolousness finding is made. It further clarifies that a frivolous-asylum finding does not bar an alien from seeking withholding of removal under section 241(b)(3) or protection under the Convention Against Torture.

This section revises the credibility factors used in asylum determinations under 8 U.S.C. § 1158(b)(1)(B)(iii) by requiring immigration adjudicators to consider, as part of “all relevant factors,” statements made to, and investigative reports prepared by, immigration authorities and other government officials. (Thus, asylum officers and immigration judges may rely on government investigative work product when assessing whether an applicant’s testimony is credible.)

This section limits asylum eligibility to aliens who are physically present in the United States and who arrived at a port of entry, rather than any alien who arrives in the United States whether or not at a designated port of arrival or after interdiction in international or U.S. waters. It also requires that an alien be eligible to apply for asylum under subsection (a) before the Secretary of Homeland Security or the Attorney General may grant asylum under 8 U.S.C. § 1158(b)(1)(A). (Thus, the amendment narrows the class of individuals who may seek asylum and ties the grant of asylum to compliance with the revised place-of-arrival requirement.)

This section shortens the deadline for filing an asylum application from 1 year to 6 months after the date of an alien’s arrival in the United States under 8 U.S.C. § 1158(a)(2)(B). (Thus, an applicant must now demonstrate by clear and convincing evidence that the application was filed within 6 months, rather than within 1 year, unless an exception for changed or extraordinary circumstances applies.)

This section revises the burden-of-proof standard for asylum eligibility under 8 U.S.C. § 1158(b)(1)(B)(i) by striking “at least one” and inserting “the,” thereby requiring an applicant to establish the required nexus to a protected ground under the statute.

This section expands the exceptions to asylum eligibility under 8 U.S.C. § 1158(b)(2)(A) by adding a new ground for denial when there are reasonable grounds to conclude that an alien could avoid persecution by relocating to another part of the alien’s country of nationality or, if stateless, another part of the country of last habitual residence. It also makes conforming punctuation changes to clauses (v) and (vi) to accommodate the new clause (vii).

This section revises the employment authorization rules for asylum applicants under 8 U.S.C. § 1158(d)(2) by changing the waiting period for initial work authorization to 1 year from 180 days and by providing that the authorization expires 6 months after the date of issuance. (Thus, an asylum applicant would have to wait longer before becoming eligible for employment authorization, and any authorization granted would remain valid for a shorter period.)

This section establishes a new offense for knowingly and willfully making materially false statements or using false writings or documents in any matter before the Secretary of Homeland Security or the Attorney General relating to asylum under section 208 of the Immigration and Nationality Act or withholding of removal under section 241(b)(3) of that Act. It authorizes a fine, imprisonment for not more than 10 years, or both.

This section extends the statute of limitations for prosecutions involving asylum fraud by adding section 1546 of title 18, United States Code, to the covered offenses and by allowing charges to be brought within 10 years after the offense or within 10 years after the fraud is discovered, instead of only within 10 years after the offense. (Thus, prosecutors would have an additional 10-year discovery window for asylum fraud cases under 18 U.S.C. § 3291.)

This section makes technical amendments to section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) to conform asylum provisions to the Department of Homeland Security’s role by inserting “Secretary of Homeland Security or the” before “Attorney General” in multiple places and, in several provisions, replacing “Attorney General” with “Secretary of Homeland Security.” As background, section 208 governs who may apply for asylum, the one-year filing deadline and exceptions, judicial review limits, asylum eligibility determinations, and related asylum procedures. Thus, the amendment updates references so that both the Secretary of Homeland Security and the Attorney General are identified where applicable, while assigning certain functions solely to the Secretary of Homeland Security in subsection (c)(1), subsection (d)(2), and subsection (d)(5)(A).