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William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

S. 44 · 114th Congress · Jan 7, 2015 · Lineage

A BILL

To provide for the expedited processing of unaccompanied alien children illegally entering the United States, and for other purposes.

1. Equal treatment of unaccompanied alien children

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), by striking “who is a national or habitual resident of a country that is contiguous with the United States”;
(iii)
in subparagraph (B)—
(I)
in the matter preceding clause (i), by striking “may” and inserting “shall”; and
(II)
in clause (ii), by inserting “not later than 72 hours after the child is screened under paragraph (4) by placing the child on the next available flight to such country, subject to determinations of cost, feasibility and any repatriation agreements with such country” before the period at the end; and
(iv)
in subparagraph (C), by striking “countries contiguous to the United States” and inserting “countries from which large numbers of unaccompanied alien children are unlawfully entering the United States”;
(B)
in paragraph (4)—
(i)
by striking “Within 48 hours of” and inserting the following:

“(A) In general—Not later than 48 hours after”

(ii)
by striking “Nothing in this paragraph” and inserting the following:

“(B) Gang affiliation—If an immigration officer determines that an unaccompanied alien child is, or has been, affiliated with a criminal street gang (as defined in section 521(a) of title 18, United States Code), the child shall be treated in accordance with paragraph (2)(B).

“(C) Savings provision—Nothing in this paragraph”

(C)
in paragraph (5)(D), by striking “from a contiguous country subject to exceptions under subsection (a)(2)” and inserting “described in paragraph (2)(A)”; and
(2)
in subsection (c)—
(A)
by striking paragraphs (2) through (4);
(B)
by redesignating paragraphs (5) and (6) as paragraphs (3) and (4), respectively; and
(C)
by inserting after paragraph (1) the following:

“(2) Mandatory detention for unaccompanied alien children—An unaccompanied alien child who is apprehended by U.S. Border Patrol or U.S. Immigration and Customs Enforcement shall be detained and remain in the custody of the Department of Homeland Security until the child—

“(A) voluntarily departs from the United States in accordance with section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c);

“(B) is expeditiously removed from the United States in accordance with—

“(i) an order of removal issued in accordance with section 235(b)(1) of such Act (8 U.S.C. 1225(b)(1)); or

“(ii) a final order of removal issued at the conclusion of special removal proceedings conducted pursuant to section 240 of such Act (8 U.S.C. 1229a); or

“(C) is legally admitted into the United States as—

“(i) a refugee under section 207 of such Act (8 U.S.C. 1157); or

“(ii) an asylee under section 208 of such Act (8 U.S.C. 1158).”

2. Expedited due process and screening of unaccompanied alien children

(a)
In general— Chapter 4 of the Immigration and Nationality Act (8 U.S.C. 1221 et seq.) is amended by inserting after section 235A the following:

“235B. Humane and expedited inspection and screening for unaccompanied alien children

“(a) Definitions—In this section:

“(1) Asylum officer—The term asylum officer means an immigration officer who—

“(A) has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 208, and

“(B) is supervised by an officer who—

“(i) meets the condition described in subparagraph (A); and

“(ii) has had substantial experience adjudicating asylum applications.

“(2) Substantiated fear of persecution—The term substantiated fear of persecution means, after taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, there is a significant possibility that the alien could establish eligibility for asylum under section 208.

“(b) Proceeding

“(1) In general—Not later than 7 days after the screening of an unaccompanied alien child under section 235(a)(4) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(a)(4)), an immigration judge shall conduct a proceeding to inspect, screen, and determine the status of an unaccompanied alien child who is an applicant for admission to the United States.

“(2) Biometric data collection—The inspection and screening required under paragraph (1) shall include the collection of biometric data from each unaccompanied alien child, including photographs and fingerprints.

“(3) Time limit—Not later than 72 hours after the conclusion of a proceeding with respect to an unaccompanied alien child under this section, the immigration judge who conducted such proceeding shall issue an order pursuant to subsection (e).

“(c) Conduct of proceeding

“(1) Authority of immigration judge—The immigration judge conducting a proceeding under this section—

“(A) shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses;

“(B) may issue subpoenas for the attendance of witnesses and presentation of evidence; and

“(C) is authorized to sanction by civil money penalty any action (or inaction) in contempt of the judge’s proper exercise of authority under this Act.

“(2) Form of proceeding—A proceeding under this section may take place—

“(A) in person;

“(B) at a location agreed to by the parties, in the absence of the alien;

“(C) through video conference; or

“(D) through telephone conference.

“(3) Presence of alien—If it is impracticable by reason of an alien's mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.

“(4) Rights of the alien—In a proceeding under this section—

“(A) the alien shall be given the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceedings;

“(B) the alien shall be given a reasonable opportunity—

“(i) to examine the evidence against the alien;

“(ii) to present evidence on the alien’s own behalf; and

“(iii) to cross-examine witnesses presented by the Government;

“(C) the rights set forth in subparagraph (B) shall not entitle the alien—

“(i) to examine such national security information as the Government may proffer in opposition to the alien’s admission to the United States; or

“(ii) to an application by the alien for discretionary relief under this Act; and

“(D) a complete record shall be kept of all testimony and evidence produced at the proceeding.

“(5) Withdrawal of application for admission—In the discretion of the Attorney General, an alien applying for admission to the United States may, and at any time, be permitted to withdraw such application and immediately be returned to the alien’s country of nationality or country of last habitual residence.

“(d) Decision and burden of proof

“(1) Decision

“(A) In general—At the conclusion of a proceeding under this section, the immigration judge shall determine whether an unaccompanied alien child is likely to be—

“(i) admissible to the United States; or

“(ii) eligible for any form of relief from removal under this Act.

“(B) Evidence—The determination of the immigration judge under subparagraph (A) shall be based only on the evidence produced at the hearing.

“(2) Burden of proof

“(A) In general—In a proceeding under this section, an alien who is an applicant for admission has the burden of establishing, by a preponderance of the evidence, that the alien—

“(i) is likely to be entitled to be lawfully admitted to the United States or eligible for any form of relief from removal under this Act; or

“(ii) is lawfully present in the United States pursuant to a prior admission.

“(B) Access to documents—In meeting the burden of proof under subparagraph (A)(ii), the alien shall be given access to—

“(i) the alien’s visa or other entry document, if any; and

“(ii) any other records and documents, not considered by the Attorney General to be confidential, pertaining to the alien’s admission or presence in the United States.

“(e) Orders

“(1) Placement in further proceedings—If an immigration judge determines that the unaccompanied alien child has met the burden of proof under subsection (d)(2), the judge shall order the alien to be placed in further proceedings in accordance with section 240.

“(2) Orders of removal—If an immigration judge determines that the unaccompanied alien child has not met the burden of proof required under subsection (d)(2), the judge shall order the alien removed from the United States without further hearing or review unless the alien claims—

“(A) an intention to apply for asylum under section 208; or

“(B) a substantiated fear of persecution.

“(3) Claims for asylum—If an unaccompanied alien child described in paragraph (2) claims an intention to apply for asylum under section 208 or a substantiated fear of persecution, the officer shall order the alien referred for an interview by an asylum officer under subsection (f).

“(f) Asylum interviews

“(1) Conduct by asylum officer—An asylum officer shall conduct interviews of aliens referred under subsection (e)(3).

“(2) Referral of certain aliens—If the officer determines at the time of the interview that an alien has a substantiated fear of persecution, the alien shall be held in the custody of the Secretary of Health and Human Services pursuant to section 235(b) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(b)) during further consideration of the application for asylum.

“(3) Removal without further review if no substantiated fear of persecution

“(A) In general—Subject to subparagraph (C), if the asylum officer determines that an alien does not have a substantiated fear of persecution, the officer shall order the alien removed from the United States without further hearing or review.

“(B) Record of determination—The officer shall prepare a written record of a determination under subparagraph (A), which shall include—

“(i) a summary of the material facts as stated by the applicant;

“(ii) such additional facts (if any) relied upon by the officer;

“(iii) the officer's analysis of why, in light of such facts, the alien has not established a substantiated fear of persecution; and

“(iv) a copy of the officer’s interview notes.

“(C) Review of determination

“(i) Rulemaking—The Attorney General shall establish, by regulation, a process by which an immigration judge will conduct a prompt review, upon the alien’s request, of a determination under subparagraph (A) that the alien does not have a substantiated fear of persecution.

“(ii) Mandatory components—The review described in clause (i)—

“(I) shall include an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection; and

“(II) shall be conducted—

“(aa) as expeditiously as possible;

“(bb) within the 24-hour period beginning at the time the asylum officer makes a determination under subparagraph (A), to the maximum extent practicable; and

“(cc) in no case later than 7 days after such determination.

“(D) Mandatory protective custody—Any alien subject to the procedures under this paragraph shall be held in the custody of the Department of Homeland Security—

“(i) pending a final determination of substantiated fear of persecution; and

“(ii) after a determination that the alien does not have such a fear, until the alien is removed.

“(g) Limitation on administrative review

“(1) In general—Except as provided in paragraph (2) and subsection (f)(4)(C), a removal order entered in accordance with subsection (e)(2) or (f)(4)(A) is not subject to administrative appeal.

“(2) Rulemaking—The Attorney General shall establish, by regulation, a process for the prompt review of an order under subsection (e)(2) against an alien who claims under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, after having been warned of the penal ties for falsely making such claim under such conditions to have been—

“(A) lawfully admitted for permanent residence;

“(B) admitted as a refugee under section 207; or

“(C) granted asylum under section 208.”

(b)
Clerical amendment— The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 235A the following:

3. Asylum seekers

(a)
Refugee defined— Section 101(a)(42) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(42)) is amended—
(1)
in subparagraph (A), by striking “because of persecution or a well-founded fear of persecution on account of” and inserting “the alien’s life or freedom would be threatened in that country because of the alien’s”; and
(2)
in subparagraph (B), by striking “who is persecuted or who has a well-founded fear of persecution on account of” and inserting “the person’s life or freedom is threatened if the person remains in that country because of the person’s”.
(b)
Mandatory detention— Section 208(d) of the Immigration and Nationality Act (8 U.S.C. 1158(d)) is amended by adding at the end the following:

“(8) Detention—The Secretary of Homeland Security shall detain any alien seeking asylum under this section until the alien—

“(A) is removed from the United States in accordance with—

“(i) an order of removal issued in accordance with section 235(b)(1); or

“(ii) a final order of removal issued at the conclusion of special removal proceedings conducted pursuant to section 240; or

“(B) granted asylum under subsection (b).”

4. Extension of bar to reentry

Section 212(a)(9) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)) is amended—
(1)
in subparagraph (A)(i) by striking “5 years” and inserting “10 years”; and
(2)
in subparagraph (B)(i)(I), by striking “3 years” and inserting “10 years”.

5. Reporting requirement

The Secretary of Homeland Security shall submit an annual report to Congress that identifies, for the previous 12-month period—
(1)
the number of aliens unlawfully present in the United States who were apprehended by, or placed in the physical custody of, U.S. Border Patrol or U.S. Immigration and Customs Enforcement;
(2)
the number of aliens described in paragraph (1) who were deported from the United States pursuant to a final order of removal;
(3)
the number of aliens described in paragraph (1) who departed from the United States without an order of removal (voluntary departures); and
(4)
the number of aliens who were granted refugee status or asylum.