Title II — H.R. 2278 (Reported in House)

Sec. 201 Removal of, and denial of benefits to, terrorist aliens

(a)

Asylum— Section 208(b)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(2)(A)) is amended—

(1)

by inserting “or the Secretary of Homeland Security” after “if the Attorney General”; and

(2)

by amending clause (v) to read as follows:

“(v) the alien is described in subparagraph (B)(i) or (F) of section 212(a)(3), unless, in the case of an alien described in subparagraph (IV), (V), or (IX) of section 212(a)(3)(B)(i), the Secretary of Homeland Security or the Attorney General determines, in the discretion of the Secretary or the Attorney General, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; or”

(b)

Cancellation of removal— Section 240A(c)(4) of such Act (8 U.S.C. 1229b(c)(4)) is amended—

(1)

by striking “inadmissible under” and inserting “described in”; and

(2)

by striking “deportable under” and inserting “described in”.

(c)

Voluntary departure— Section 240B(b)(1)(C) of such Act (8 U.S.C. 1229c(b)(1)(C)) is amended by striking “deportable under section 237(a)(2)(A)(iii) or section 237(a)(4);” and inserting “described in paragraph (2)(A)(iii) or (4) of section 237(a);”.

(d)

Restriction on removal— Section 241(b)(3)(B) of such Act (8 U.S.C. 1231(b)(3)(B)) is amended—

(1)

by inserting “or the Secretary of Homeland Security” after “Attorney General” each place it appears;

(2)

in clause (iii), by striking “or” at the end;

(3)

in clause (iv), by striking the period at the end and inserting “; or”;

(4)

by inserting after clause (iv) the following:

“(v) the alien is described in subparagraph (B)(i) or (F) of section 212(a)(3), unless, in the case of an alien described in subparagraph (IV), (V), or (IX) of section 212(a)(3)(B)(i), the Secretary of Homeland Security or the Attorney General determines, in discretion of the Secretary or the Attorney General, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States.”

(5)

by striking the final sentence.

(e)

Record of admission—

(1)

In general— Section 249 of such Act (8 U.S.C. 1259) is amended to read as follows:

“249. Record of admission for permanent residence in the case of certain aliens who entered the United States prior to January 1, 1972

“The Secretary of Homeland Security, in the discretion of the Secretary and under such regulations as the Secretary may prescribe, may enter a record of lawful admission for permanent residence in the case of any alien, if no such record is otherwise available and the alien—

“(1) entered the United States before January 1, 1972;

“(2) has continuously resided in the United States since such entry;

“(3) has been a person of good moral character since such entry;

“(4) is not ineligible for citizenship;

“(5) is not described in paragraph (1)(A)(iv), (2), (3), (6)(C), (6)(E), or (8) of section 212(a); and

“(6) did not, at any time, without reasonable cause fail or refuse to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability.”

(2)

Clerical amendment— The table of contents for such Act is amended by amending the item relating to section 249 to read as follows:

(f)

Effective date— The amendments made by this section shall take effect on the date of enactment of this Act and sections 208(b)(2)(A), 212(a), 240A, 240B, 241(b)(3), and 249 of the Immigration and Nationality Act, as so amended, shall apply to—

(1)

all aliens in removal, deportation, or exclusion proceedings;

(2)

all applications pending on, or filed after, the date of the enactment of this Act; and

(3)

with respect to aliens and applications described in paragraph (1) or (2) of this subsection, acts and conditions constituting a ground for exclusion, deportation, or removal occurring or existing before, on, or after the date of the enactment of this Act.

Sec. 202 Terrorist bar to good moral character

(a)

Definition of good moral character— Section 101(f) of the Immigration and Nationality Act (8 U.S.C. 1101(f)) is amended—

(1)

by inserting after paragraph (1) the following:

“(2) one who the Secretary of Homeland Security or Attorney General determines to have been at any time an alien described in section 212(a)(3) or 237(a)(4), which determination may be based upon any relevant information or evidence, including classified, sensitive, or national security information;”

(2)

in paragraph (8), by inserting “, regardless whether the crime was classified as an aggravated felony at the time of conviction, except that the Secretary of Homeland Security or Attorney General may, in the unreviewable discretion of the Secretary or Attorney General, determine that this paragraph shall not apply in the case of a single aggravated felony conviction (other than murder, manslaughter, homicide, rape, or any sex offense when the victim of such sex offense was a minor) for which completion of the term of imprisonment or the sentence (whichever is later) occurred 10 or more years prior to the date of application” after “(as defined in subsection (a)(43))”; and

(3)

in the matter following paragraph (9), by striking the first sentence and inserting the following: “The fact that any person is not within any of the foregoing classes shall not preclude a discretionary finding for other reasons that such a person is or was not of good moral character. The Secretary or the Attorney General shall not be limited to the applicant’s conduct during the period for which good moral character is required, but may take into consideration as a basis for determination the applicant’s conduct and acts at any time.”

(b)

Aggravated felons— Section 509(b) of the Immigration Act of 1990 (8 U.S.C. 1101 note) is amended to read as follows:

“(b) Effective date—The amendment made by subsection (a) shall take effect on November 29, 1990, and shall apply to convictions occurring before, on or after such date.”

(c)

Technical correction to the Intelligence Reform Act— Section 5504(2) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458) is amended by striking “adding at the end” and inserting “inserting after paragraph (8)”.

(d)

Effective date— The amendments made by subsections (a) and (b) shall take effect on the date of enactment of this Act, shall apply to any act that occurred before, on, or after such date and shall apply to any application for naturalization or any other benefit or relief, or any other case or matter under the immigration laws pending on or filed after such date. The amendments made by subsection (c) shall take effect as if enacted in the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458).

Sec. 203 Terrorist bar to naturalization

(a)

Naturalization of persons endangering the national security— Section 316 of the Immigration and Nationality Act (8 U.S.C. 1426) is amended by adding at the end the following:

“(g) Persons endangering the national security—No person shall be naturalized who the Secretary of Homeland Security determines to have been at any time an alien described in section 212(a)(3) or 237(a)(4). Such determination may be based upon any relevant information or evidence, including classified, sensitive, or national security information.”

(b)

Concurrent naturalization and removal proceedings— Section 318 of the Immigration and Nationality Act (8 U.S.C. 1429) is amended by striking “other Act;” and inserting “other Act; and no application for naturalization shall be considered by the Secretary of Homeland Security or any court if there is pending against the applicant any removal proceeding or other proceeding to determine the applicant’s inadmissibility or deportability, or to determine whether the applicant’s lawful permanent resident status should be rescinded, regardless of when such proceeding was commenced: Provided, That the findings of the Attorney General in terminating removal proceedings or in canceling the removal of an alien pursuant to the provisions of this Act, shall not be deemed binding in any way upon the Secretary of Homeland Security with respect to the question of whether such person has established his eligibility for naturalization as required by this title;”.

(c)

Pending denaturalization or removal proceedings— Section 204(b) of the Immigration and Nationality Act (8 U.S.C. 1154(b)) is amended by adding at the end the following: “No petition shall be approved pursuant to this section if there is any administrative or judicial proceeding (whether civil or criminal) pending against the petitioner that could (whether directly or indirectly) result in the petitioner’s denaturalization or the loss of the petitioner’s lawful permanent resident status.”.

(d)

Conditional permanent residents— Sections 216(e) and section 216A(e) of the Immigration and Nationality Act (8 U.S.C. 1186a(e) and 1186b(e)) are each amended by striking the period at the end and inserting “, if the alien has had the conditional basis removed pursuant to this section.”.

(e)

District court jurisdiction— Subsection 336(b) of the Immigration and Nationality Act (8 U.S.C. 1447(b)) is amended to read as follows:

“(b) If there is a failure to render a final administrative decision under section 335 before the end of the 180-day period after the date on which the Secretary of Homeland Security completes all examinations and interviews conducted under such section, as such terms are defined by the Secretary of Homeland Security pursuant to regulations, the applicant may apply to the district court for the district in which the applicant resides for a hearing on the matter. Such court shall only have jurisdiction to review the basis for delay and remand the matter to the Secretary of Homeland Security for the Secretary’s determination on the application.”

(f)

Conforming amendment— Section 310(c) of the Immigration and Nationality Act (8 U.S.C. 1421(c)) is amended—

(1)

by inserting “, not later than the date that is 120 days after the Secretary of Homeland Security’s final determination,” after “seek”; and

(2)

by striking the second sentence and inserting the following: “The burden shall be upon the petitioner to show that the Secretary’s denial of the application was not supported by facially legitimate and bona fide reasons. Except in a proceeding under section 340, notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to determine, or to review a determination of the Secretary made at any time regarding, whether, for purposes of an application for naturalization, an alien is a person of good moral character, whether the alien understands and is attached to the principles of the Constitution of the United States, or whether an alien is well disposed to the good order and happiness of the United States.”.

(g)

Effective date— The amendments made by this section shall take effect on the date of enactment of this Act, shall apply to any act that occurred before, on, or after such date, and shall apply to any application for naturalization or any other case or matter under the immigration laws pending on, or filed after, such date.

Sec. 204 Denaturalization for terrorists

(a)

In general— Section 340 of the Immigration and Nationality Act is amended—

(1)

by redesignating subsections (f) through (h) as subsections (g) through (i), respectively; and

(2)

by inserting after subsection (e) the following:

“(f)

“(1) If a person who has been naturalized participates in any act described in paragraph (2), the Attorney General is authorized to find that, as of the date of such naturalization, such person was not attached to the principles of the Constitution of the United States and was not well disposed to the good order and happiness of the United States at the time of naturalization, and upon such finding shall set aside the order admitting such person to citizenship and cancel the certificate of naturalization as having been obtained by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively.

“(2) The acts described in this paragraph are the following:

“(A) Any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means.

“(B) Engaging in a terrorist activity (as defined in clauses (iii) and (iv) of section 212(a)(3)(B)).

“(C) Incitement of terrorist activity under circumstances indicating an intention to cause death or serious bodily harm.

“(D) Receiving military-type training (as defined in section 2339D(c)(1) of title 18, United States Code) from or on behalf of any organization that, at the time the training was received, was a terrorist organization (as defined in section 212(a)(3)(B)(vi)).”

(b)

Effective date— The amendments made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to acts that occur on or after such date.

Sec. 205 Use of 1986 IRCA legalization information for national security purposes

(a)

Special agricultural workers— Section 210(b)(6) of the Immigration and Nationality Act (8 U.S.C. 1160(b)(6)) is amended—

(1)

by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”;

(2)

in subparagraph (A), by striking “Department of Justice,” and inserting “Department of Homeland Security,”;

(3)

by redesignating subparagraphs (C) and (D) as subparagraphs (D) and (E), respectively;

(4)

by inserting after subparagraph (B) the following:

“(C) Authorized disclosures

“(i) Census purpose—The Secretary of Homeland Security may provide, in his discretion, for the furnishing of information furnished under this section in the same manner and circumstances as census information may be disclosed under section 8 of title 13, United States Code.

“(ii) National security purpose—The Secretary of Homeland Security may provide, in his discretion, for the furnishing, use, publication, or release of information furnished under this section in any investigation, case, or matter, or for any purpose, relating to terrorism, national intelligence or the national security.”

(5)

in subparagraph (D), as redesignated, by striking “Service” and inserting “Department of Homeland Security”.

(b)

Adjustment of status under the Immigration Reform and Control Act of 1986— Section 245A(c)(5) of the Immigration and Nationality Act (8 U.S.C. 1255a(c)(5)), is amended—

(1)

by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”;

(2)

in subparagraph (A), by striking “Department of Justice,” and inserting “Department of Homeland Security,”;

(3)

by amending subparagraph (C) to read as follows:

“(C) Authorized disclosures

“(i) Census purpose—The Secretary of Homeland Security may provide, in his discretion, for the furnishing of information furnished under this section in the same manner and circumstances as census information may be disclosed under section 8 of title 13, United States Code.

“(ii) National security purpose—The Secretary of Homeland Security may provide, in his discretion, for the furnishing, use, publication, or release of information furnished under this section in any investigation, case, or matter, or for any purpose, relating to terrorism, national intelligence or the national security.”

(4)

in subparagraph (D)(i), striking “Service” and inserting “Department of Homeland Security”.

Sec. 206 Background and security checks

(a)

Requirement To complete background and security checks— Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:

“(h) Notwithstanding any other provision of law (statutory or nonstatutory), including but not limited to section 309 of Public Law 107–173, sections 1361 and 1651 of title 28, United States Code, and section 706(1) of title 5, United States Code, neither the Secretary of Homeland Security, the Attorney General, nor any court may—

“(1) grant, or order the grant of or adjudication of an application for adjustment of status to that of an alien lawfully admitted for permanent residence;

“(2) grant, or order the grant of or adjudication of an application for United States citizenship or any other status, relief, protection from removal, employment authorization, or other benefit under the immigration laws;

“(3) grant, or order the grant of or adjudication of, any immigrant or nonimmigrant petition; or

“(4) issue or order the issuance of any documentation evidencing or related to any such grant, until such background and security checks as the Secretary may in his discretion require have been completed or updated to the satisfaction of the Secretary.

“(i) Notwithstanding any other provision of law (statutory or nonstatutory), including but not limited to section 309 of Public Law 107–173, sections 1361 and 1651 of title 28, United States Code, and section 706(1) of title 5, United States Code, neither the Secretary of Homeland Security nor the Attorney General may be required to—

“(1) grant, or order the grant of or adjudication of an application for adjustment of status to that of an alien lawfully admitted for permanent residence,

“(2) grant, or order the grant of or adjudication of an application for United States citizenship or any other status, relief, protection from removal, employment authorization, or other benefit under the immigration laws,

“(3) grant, or order the grant of or adjudication of, any immigrant or nonimmigrant petition, or

“(4) issue or order the issuance of any documentation evidencing or related to any such grant, until any suspected or alleged materially false information, material misrepresentation or omission, concealment of a material fact, fraud or forgery, counterfeiting, or alteration, or falsification of a document, as determined by the Secretary, relating to the adjudication of an application or petition for any status (including the granting of adjustment of status), relief, protection from removal, or other benefit under this subsection has been investigated and resolved to the Secretary’s satisfaction.

“(j) Notwithstanding any other provision of law (statutory or nonstatutory), including section 309 of the Enhanced Border Security and Visa Entry Reform Act (8 U.S.C. 1738), sections 1361 and 1651 of title 28, United States Code, and section 706(1) of title 5, United States Code, no court shall have jurisdiction to require any of the acts in subsection (h) or (i) to be completed by a certain time or award any relief for failure to complete or delay in completing such acts.”

(b)

Construction—

(1)

In general— Chapter 4 of title III of the Immigration and Nationality Act (8 U.S.C. 1501 et seq.) is amended by adding at the end the following:

“362. Construction

“(a) In general—Nothing in this Act or any other law, except as provided in subsection (d), shall be construed to require the Secretary of Homeland Security, the Attorney General, the Secretary of State, the Secretary of Labor, or a consular officer to grant any application, approve any petition, or grant or continue any relief, protection from removal, employment authorization, or any other status or benefit under the immigration laws by, to, or on behalf of—

“(1) any alien deemed by the Secretary to be described in section 212(a)(3) or section 237(a)(4); or

“(2) any alien with respect to whom a criminal or other proceeding or investigation is open or pending (including, but not limited to, issuance of an arrest warrant, detainer, or indictment), where such proceeding or investigation is deemed by the official described in subsection (a) to be material to the alien’s eligibility for the status or benefit sought.

“(b) Denial or withholding of adjudication—An official described in subsection (a) may, in the discretion of the official, deny (with respect to an alien described in paragraph (1) or (2) of subsection (a)) or withhold adjudication of pending resolution of the investigation or case (with respect to an alien described in subsection (a)(2) of this section) any application, petition, relief, protection from removal, employment authorization, status or benefit.

“(c) Jurisdiction—Notwithstanding any other provision of law (statutory or nonstatutory), including section 309 of the Enhanced Border Security and Visa Entry Reform Act (8 U.S.C. 1738), sections 1361 and 1651 of title 28, United States Code, and section 706(1) of title 5, United States Code, no court shall have jurisdiction to review a decision to deny or withhold adjudication pursuant to subsection (b) of this section.

“(d) Withholding of Removal and Torture Convention—This section does not limit or modify the applicability of section 241(b)(3) or the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations and provisos contained in the United States Senate resolution of ratification of the Convention, as implemented by section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Public Law 105–277) with respect to an alien otherwise eligible for protection under such provisions.”

(2)

Clerical amendment— The table of contents for such Act is amended by inserting after the item relating to section 361 the following:

(c)

Effective date— The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to applications for immigration benefits pending on or after such date.

Sec. 207 Technical amendments relating to the Intelligence Reform and Terrorism Prevention Act of 2004

(a)

Transit Without Visa program— Section 7209(d) of the Intelligence Reform and Terrorism Prevention Act of 2004 (8 U.S.C. 1185 note) is amended by striking “the Secretary, in conjunction with the Secretary of Homeland Security,” and inserting “the Secretary of Homeland Security, in consultation with the Secretary of State,”.

(b)

Technology acquisition and dissemination plan— Section 7201(c)(1) of such Act is amended by inserting “and the Department of State” after “used by the Department of Homeland Security”.

Title II — National Security

II National Security