Stopping Border Surges Act

II 117TH CONGRESS 1ST SESSION S. 884 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 22, 2021 Mr. LEE (for himself, Mrs. BLACKBURN, Mr. TUBERVILLE, 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Stopping Border Surges Act’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. TITLE I—UNACCOMPANIED ALIEN CHILDREN Sec. 101. Repatriation of unaccompanied alien children. VerDate Sep 11 2014 23:09 Apr 12, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S884.IS S884 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 884 IS 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. Credible fear interviews. Sec. 202. Jurisdiction of asylum applications. Sec. 203. Recording expedited removal and credible fear interviews. Sec. 204. Safe third country. Sec. 205. Renunciation of asylum status pursuant to return to home country. Sec. 206. Notice concerning frivolous asylum applications. Sec. 207. Anti-fraud investigative work product. Sec. 208. Clarification of asylum eligibility. Sec. 209. Application timing. Sec. 210. Clarification of burden of proof. Sec. 211. Additional exception. Sec. 212. Clarification regarding employment eligibility. Sec. 213. Penalties for asylum fraud. Sec. 214. Statute of limitations for asylum fraud. Sec. 215. Technical amendments. TITLE I—UNACCOMPANIED 1 ALIEN CHILDREN 2 SEC. 101. REPATRIATION OF UNACCOMPANIED ALIEN CHIL- 3 DREN. 4 (a) IN GENERAL.—Section 235 of the William Wil- 5 berforce Trafficking Victims Protection Reauthorization 6 Act of 2008 (8 U.S.C. 1232) is amended— 7 (1) in subsection (a)— 8 (A) in paragraph (2)— 9 (i) by amending the heading to read 10 as follows: ‘‘RULES FOR UNACCOMPANIED 11 ALIEN CHILDREN.—’’; 12 (ii) in subparagraph (A)— 13 (I) in the matter preceding clause 14 (i), by striking ‘‘who is a national or 15 VerDate Sep 11 2014 23:09 Apr 12, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S884.IS S884 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 884 IS habitual resident of a country that is 1 contiguous with the United States’’; 2 (II) in clause (i), by inserting 3 ‘‘and’’ at the end; 4 (III) in clause (ii), by striking ‘‘; 5 and’’ and inserting a period; and 6 (IV) by striking clause (iii); 7 (iii) in subparagraph (B)— 8 (I) in the matter preceding clause 9 (i), by striking ‘‘(8 U.S.C. 1101 et 10 seq.) may—’’ and inserting ‘‘(8 11 U.S.C. 1101 et seq.)—’’; 12 (II) in clause (i), by inserting be- 13 fore ‘‘permit such child to withdraw’’ 14 the following: ‘‘may’’; and 15 (III) in clause (ii), by inserting 16 before ‘‘return such child’’ the fol- 17 lowing: ‘‘shall’’; and 18 (iv) in subparagraph (C)— 19 (I) by amending the heading to 20 read as follows: ‘‘AGREEMENTS WITH 21 FOREIGN COUNTRIES.—’’; and 22 (II) in the matter preceding 23 clause (i), by striking ‘‘The Secretary 24 of State shall negotiate agreements 25 VerDate Sep 11 2014 23:09 Apr 12, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S884.IS S884 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 884 IS between the United States and coun- 1 tries contiguous to the United States’’ 2 and inserting ‘‘The Secretary of State 3 may negotiate agreements between the 4 United States and any foreign country 5 that the Secretary determines appro- 6 priate’’; 7 (B) by redesignating paragraphs (3) 8 through (5) as paragraphs (4) through (6), re- 9 spectively, and inserting after paragraph (2) the 10 following: 11 ‘‘(3) SPECIAL RULES FOR INTERVIEWING UNAC- 12 COMPANIED ALIEN CHILDREN.—An unaccompanied 13 alien child shall be interviewed by an immigration 14 officer with specialized training in interviewing child 15 trafficking victims.’’; and 16 (C) in paragraph (6)(D) (as so redesig- 17 nated)— 18 (i) in the matter preceding clause (i), 19 by striking ‘‘, except for an unaccompanied 20 alien child from a contiguous country sub- 21 ject to exceptions under subsection (a)(2),’’ 22 and inserting ‘‘who does not meet the cri- 23 teria listed in paragraph (2)(A)’’; and 24 VerDate Sep 11 2014 23:09 Apr 12, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S884.IS S884 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 884 IS (ii) in clause (i), by inserting before 1 the semicolon at the end the following: ‘‘, 2 which shall include a hearing before an im- 3 migration judge not later than 14 days 4 after being screened under paragraph (4)’’; 5 (2) in subsection (b)— 6 (A) in paragraph (2)— 7 (i) in subparagraph (A), by inserting 8 before the semicolon the following: ‘‘be- 9 lieved not to meet the criteria listed in sub- 10 section (a)(2)(A)’’; and 11 (ii) in subparagraph (B), by inserting 12 before the period the following: ‘‘and does 13 not meet the criteria listed in subsection 14 (a)(2)(A)’’; and 15 (B) in paragraph (3), by striking ‘‘an un- 16 accompanied alien child in custody shall’’ and 17 all that follows, and inserting the following: ‘‘an 18 unaccompanied alien child in custody— 19 ‘‘(A) in the case of a child who does not 20 meet the criteria listed in subsection (a)(2)(A), 21 shall transfer the custody of such child to the 22 Secretary of Health and Human Services not 23 later than 30 days after determining that such 24 VerDate Sep 11 2014 23:09 Apr 12, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S884.IS S884 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 884 IS child is an unaccompanied alien child who does 1 not meet such criteria; or 2 ‘‘(B) in the case of child who meets the 3 criteria listed in subsection (a)(2)(A), may 4 transfer the custody of such child to the Sec- 5 retary of Health and Human Services after de- 6 termining that such child is an unaccompanied 7 alien child who meets such criteria.’’; and 8 (3) in subsection (c)— 9 (A) in paragraph (3), by inserting at the 10 end the following: 11 ‘‘(D) INFORMATION ABOUT INDIVIDUALS 12 WITH WHOM CHILDREN ARE PLACED.— 13 ‘‘(i) INFORMATION TO BE PROVIDED 14 TO HOMELAND SECURITY.—Before placing 15 a child with an individual, the Secretary of 16 Health and Human Services shall provide 17 to the Secretary of Homeland Security, re- 18 garding the individual with whom the child 19 will be placed, the following information: 20 ‘‘(I) The name of the individual. 21 ‘‘(II) The social security number 22 of the individual, if available. 23 ‘‘(III) The date of birth of the in- 24 dividual. 25 VerDate Sep 11 2014 23:09 Apr 12, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S884.IS S884 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 884 IS ‘‘(IV) The location of the individ- 1 ual’s residence where the child will be 2 placed. 3 ‘‘(V) The immigration status of 4 the individual, if known. 5 ‘‘(VI) Contact information for 6 the individual. 7 ‘‘(ii) SPECIAL RULE.—In the case of a 8 child who was apprehended on or after the 9 effective date of this clause, and before the 10 date of the enactment of this subpara- 11 graph, who the Secretary of Health and 12 Human Services placed with an individual, 13 the Secretary shall provide the information 14 listed in clause (i) to the Secretary of 15 Homeland Security not later than 90 days 16 after such date of enactment.’’; and 17 (B) in paragraph (5)— 18 (i) by inserting after ‘‘to the greatest 19 extent practicable’’ the following: ‘‘(at no 20 expense to the Government)’’; and 21 (ii) by striking ‘‘have counsel to rep- 22 resent them’’ and inserting ‘‘have access to 23 counsel to represent them’’. 24 VerDate Sep 11 2014 23:09 Apr 12, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S884.IS S884 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 884 IS (b) EFFECTIVE DATE.—The amendments made by 1 this section shall apply to any unaccompanied alien child 2 apprehended on or after the date of enactment. 3 SEC. 102. CLARIFICATION OF STANDARDS FOR FAMILY DE- 4 TENTION. 5 (a) IN GENERAL.—Section 235 of the William Wil- 6 berforce Trafficking Victims Protection Reauthorization 7 Act of 2008 (8 U.S.C. 1232) is amended by adding at 8 the end the following: 9 ‘‘(j) CONSTRUCTION.— 10 ‘‘(1) IN GENERAL.—Notwithstanding any other 11 provision of law, judicial determination, consent de- 12 cree, or settlement agreement, the detention of any 13 alien child who is not an unaccompanied alien child 14 shall be governed by sections 217, 235, 236, and 15 241 of the Immigration and Nationality Act (8 16 U.S.C. 1187, 1225, 1226, and 1231). There is no 17 presumption that an alien child who is not an unac- 18 companied alien child should not be detained, and all 19 such determinations shall be in the discretion of the 20 Secretary of Homeland Security. 21 ‘‘(2) RELEASE OF MINORS OTHER THAN UNAC- 22 COMPANIED ALIENS.—In no circumstances shall an 23 alien minor who is not an unaccompanied alien child 24 be released by the Secretary of Homeland Security 25 VerDate Sep 11 2014 23:09 Apr 12, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S884.IS S884 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 884 IS other than to a parent or legal guardian, who is law- 1 fully present in the United States. 2 ‘‘(3) FAMILY DETENTION.—The Secretary of 3 Homeland Security shall— 4 ‘‘(A) maintain the care and custody of an 5 alien, during the period during which the 6 charges described in clause (i) are pending, 7 who— 8 ‘‘(i) is charged only with a mis- 9 demeanor offense under section 275(a) of 10 the Immigration and Nationality Act (8 11 U.S.C. 1325(a)); and 12 ‘‘(ii) entered the United States with 13 the alien’s child who has not attained 18 14 years of age; and 15 ‘‘(B) detain the alien with the alien’s 16 child.’’. 17 (b) SENSE OF CONGRESS.—It is the sense of Con- 18 gress that the amendments in this section to section 235 19 of the William Wilberforce Trafficking Victims Protection 20 Reauthorization Act of 2008 (8 U.S.C. 1232) are intended 21 to satisfy the requirements of the Settlement Agreement 22 in Flores v. Meese, No. 85–4544 (C.D. Cal) as approved 23 by the court on January 28, 1997, with respect to its in- 24 terpretation in Flores v. Johnson, 212 F. Supp. 3d 864 25 VerDate Sep 11 2014 23:09 Apr 12, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S884.IS S884 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 884 IS (C.D. Cal. 2015), that the agreement applies to accom- 1 panied minors. 2 (c) EFFECTIVE DATE.—The amendment made by 3 subsection (a) shall take effect on the date of the enact- 4 ment of this Act and shall apply to all actions that occur 5 before, on, or after the date of the enactment of this Act. 6 (d) PREEMPTION OF STATE LICENSING REQUIRE- 7 MENTS.—Notwithstanding any other provision of law, ju- 8 dicial determination, consent decree, or settlement agree- 9 ment, no State may require that an immigration detention 10 facility used to detain children who have not attained 18 11 years of age, or families consisting of one or more of such 12 children and the parents or legal guardians of such chil- 13 dren, that is located in that State, be licensed by the State 14 or any political subdivision thereof. 15 SEC. 103. SPECIAL IMMIGRANT JUVENILE STATUS FOR IM- 16 MIGRANTS UNABLE TO REUNITE WITH EI- 17 THER PARENT. 18 Section 101(a)(27)(J) of the Immigration and Na- 19 tionality Act (8 U.S.C. 1101(a)(27)(J)) is amended— 20 (1) in clause (i), by striking ‘‘, and whose reuni- 21 fication with 1 or both of the immigrant’s parents 22 is not viable due to abuse, neglect, abandonment, or 23 a similar basis found under State law’’; and 24 (2) in clause (iii)— 25 VerDate Sep 11 2014 23:09 Apr 12, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S884.IS S884 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 884 IS (A) by striking ‘‘and’’ at the end of sub- 1 clause (I); 2 (B) by inserting ‘‘and’’ at the end of sub- 3 clause (II); and 4 (C) by adding at the end the following: 5 ‘‘(III) an alien may not be grant- 6 ed special immigrant juvenile status 7 under this subparagraph if his or her 8 reunification with any one parent or 9 legal guardian is not precluded by 10 abuse, neglect, abandonment, or any 11 similar cause under State law;’’. 12 TITLE II—ASYLUM REFORM 13 SEC. 201. CREDIBLE FEAR INTERVIEWS. 14 Section 235(b)(1)(B)(v) of the Immigration and Na- 15 tionality Act (8 U.S.C. 1225(b)(1)(B)(v)) is amended by 16 striking ‘‘claim’’ and all that follows, and inserting ‘‘claim, 17 as determined pursuant to section 208(b)(1)(B)(iii), and 18 such other facts as are known to the officer, that the alien 19 could establish eligibility for asylum under section 208, 20 and it is more probable than not that the statements made 21 by, and on behalf of, the alien in support of the alien’s 22 claim are true.’’. 23 VerDate Sep 11 2014 23:09 Apr 12, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S884.IS S884 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 884 IS SEC. 202. JURISDICTION OF ASYLUM APPLICATIONS. 1 Section 208(b)(3) of the Immigration and Nationality 2 Act (8 U.S.C. 1158) is amended by striking subparagraph 3 (C). 4 SEC. 203. RECORDING EXPEDITED REMOVAL AND CRED- 5 IBLE FEAR INTERVIEWS. 6 (a) IN GENERAL.—The Secretary of Homeland Secu- 7 rity shall establish quality assurance procedures and take 8 steps to effectively ensure that questions by employees of 9 the Department of Homeland Security exercising expe- 10 dited removal authority under section 235(b) of the Immi- 11 gration and Nationality Act (8 U.S.C. 1225(b)) are asked 12 in a uniform manner, to the extent possible, and that both 13 these questions and the answers provided in response to 14 them are recorded in a uniform fashion. 15 (b) CREDIBLE FEAR INTERVIEW CHECKLISTS.—The 16 Secretary of Homeland Security shall provide a checklist 17 of standard questions and concepts to be addressed in all 18 interviews under section 235(b) to immigration officers ex- 19 ercising decision-making authority in such interviews. 20 Such checklists shall be routinely updated to include rel- 21 evant changes to law and procedures and shall, at a min- 22 imum, require that all immigration officers utilizing such [Text truncated for display. Full text available on Congress.gov.]