S. 2666 — Placed on Calendar (Senate)

II Calendar No. 491 113th CONGRESS 2d Session S. 2666 IN THE SENATE OF THE UNITED STATES July 24, 2014 Mr. Cruz introduced the following bill; which was read the first time July 28, 2014Read the second time and placed on the calendar A BILL To prohibit future consideration of deferred action for childhood arrivals or work authorization for aliens who are not in lawful status, to facilitate the expedited processing of minors entering the United States across the southern border, and to require the Secretary of Defense to reimburse States for National Guard deployments in response to large-scale border crossings of unaccompanied alien children from noncontiguous countries. 1. Short title This Act may be cited as the Protect Children and Families Through the Rule of Law Act. 2. Limitation on executive immigration authority No agency or instrumentality of the Federal Government may use Federal funding or resources— (1) to consider or adjudicate any new or previously denied application of any alien requesting consideration of deferred action for childhood arrivals, as authorized by Executive memorandum on August 15, 2012, or by any other succeeding executive memorandum authorizing a similar program; or (2) to authorize any alien to work in the United States if such alien— (A) was not lawfully admitted into the United States in compliance with the Immigration and Nationality Act (8 U.S.C. 1101 et seq.); and (B) is not in lawful status in the United States on the date of the enactment of this Act. 3. Repatriation of unaccompanied alien children Section 235(a) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(a)) is amended— (1) in paragraph (2)— (A) by amending the paragraph heading to read as follows: Rules for unaccompanied alien children; (B) in subparagraph (A), in the matter preceding clause (i), by striking who is a national or habitual resident of a country that is contiguous with the United States; and (C) in subparagraph (C)— (i) by amending the subparagraph heading to read as follows: Agreements with foreign countries; and (ii) in the matter preceding clause (i), by striking countries contiguous to the United States and inserting Canada, El Salvador, Guatemala, Honduras, Mexico, and any other foreign country that the Secretary determines appropriate; and (2) in paragraph (5)(D)— (A) in the subparagraph heading, by striking Placement in removal proceedings and inserting Expedited due process and screening for unaccompanied alien children; (B) in the matter preceding clause (i), by striking , except for an unaccompanied alien child from a contiguous country subject to the exceptions under subsection (a)(2), shall be— and inserting who does not meet the criteria listed in paragraph (2)(A)—; (C) by striking clause (i) and inserting the following: (i) shall be placed in a proceeding in accordance with section 235B of the Immigration and Nationality Act, which shall commence not later than 7 days after the screening of an unaccompanied alien child described in paragraph (4); ; (D) by redesignating clauses (ii) and (iii) as clauses (iii) and (iv), respectively; (E) by inserting after clause (i) the following: (ii) may not be placed in the custody of a nongovernmental sponsor or otherwise released from the custody of the United States Government until the child is repatriated unless the child is the subject of an order under section 235B(e)(1) of the Immigration and Nationality Act; ; (F) in clause (iii), as redesignated, by inserting is before eligible; and (G) in clause (iv), as redesignated, by inserting shall be before provided. 4. Expedited due process and screening of unaccompanied alien children (a) Amendments to Immigration and Nationality Act (1) In general Chapter 4 of the Immigration and Nationality Act is amended by inserting after section 235A the following: 235B. Humane and expedited inspection and screening for unaccompanied alien children (a) Defined term In this section, the term asylum officer means an immigration officer who— (1) 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 (2) is supervised by an officer who— (A) meets the condition described in paragraph (1); and (B) has had substantial experience adjudicating asylum applications. (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) 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 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 fear of persecution, the officer shall order the alien referred for an interview by an asylum officer under subsection (f). (f) Asylum interviews (1) Defined term In this subsection, the term credible 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. (2) Conduct by asylum officer An asylum officer shall conduct interviews of aliens referred under subsection (e)(3). (3) Referral of certain aliens If the officer determines at the time of the interview that an alien has a credible 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. (4) Removal without further review if no credible fear of persecution (A) In general Subject to subparagraph (C), if the asylum officer determines that an alien does not have a credible 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 credible 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 credible 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 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))— (i) pending a final determination of credible fear of persecution; and (ii) after a determination that the alien does not such a fear, until the alien is removed. (g) Limitation on administrative review (1) In general Except as provided in subsection (f)(4)(C) and in paragraph (2), 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. . (2) 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: Sec. 235B. Humane and expedited inspection and screening for unaccompanied alien children. . (b) Judicial review of orders of removal Section 242 of the Immigration and Nationality Act (8 U.S.C. 1252) is amended— (1) in subsection (a)— (A) in paragraph (1), by inserting , or an order of removal issued to an unaccompanied alien child after proceedings under section 235B after section 235(b)(1); and (B) in paragraph (2)— (i) by inserting or section 235B after section 235(b)(1) each place it appears; and (ii) in subparagraph (A)— (I) in the subparagraph heading, by inserting or 235B after section 235(b)(1); and (II) in clause (iii), by striking section 235(b)(1)(B), and inserting section 235(b)(1)(B) or 235B(f);; and (2) in subsection (e)— (A) in the subsection heading, by inserting or 235B after section 235(b)(1); (B) by inserting or section 235B after section 235(b)(1) in each place it appears; (C) in subparagraph (2)(C), by inserting or section 235B(g) after section 235(b)(1)(C); and (D) in subparagraph (3)(A), by inserting or section 235B after section 235(b). 5. Due process protections for unaccompanied alien children present in the United States (a) Special motions for unaccompanied alien children (1) Filing authorized Beginning on the date that is 60 days after the date of the enactment of this Act, the Secretary of Homeland Security, notwithstanding any other provision of law, may, at the sole and unreviewable discretion of the Secretary, permit an unaccompanied alien child who was issued a Notice to Appear under section 239 of the Immigration and Nationality Act (8 U.S.C. 1229) during the period beginning on January 1, 2013, and ending on the date of the enactment of this Act— (A) to appear, in-person, before an immigration judge who has been authorized by the Attorney General to conduct proceedings under section 235B of the Immigration and Nationality Act, as added by section 4; (B) to attest to their desire to apply for admission to the United States; and (C) to file a motion to apply for admission to the United States by being placed in proceedings under section 235B of the Immigration and Nationality Act. (2) Motion granted An immigration judge may, at the sole and unreviewable discretion of the judge, grant a motion filed under paragraph (1)(C) upon a finding that— (A) the petitioner was an unaccompanied alien child (as defined in section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232)) on the date on which a Notice to Appear was issued to the alien under section 239 of the Immigration and Nationality Act (8 U.S.C. 1229); (B) the Notice to Appear was issued during the period beginning on January 1, 2013, and ending on the date of the enactment of this Act; (C) the unaccompanied alien child is applying for admission to the United States; and (D) the granting of such motion would not be manifestly unjust. (3) Effect of motion Notwithstanding any other provision of law, upon the granting of a motion under paragraph (2)— (A) the immigration judge who granted such motion shall, while the petitioner remains in-person, immediately inspect and screen the petitioner for admission to the United States by conducting a proceeding under section 235B of the Immigration and Nationality Act; and (B) the petitioner shall not be subject to the 5-year expedited removal bar under section 212(a)(6)(B) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(B)). (4) Protective custody An unaccompanied alien child who has been granted a motion under paragraph (2) shall be held in the custody of the Secretary of Health and Human Services pursuant to section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232). 6. Emergency immigration judge resources (a) Designation Not later than 14 days after the date of the enactment of this Act, the Attorney General shall designate up to 40 immigration judges, including through the hiring of retired immigration judges or magistrate judges, or the reassignment of current immigration judges, that are dedicated to conducting humane and expedited inspection and screening for unaccompanied alien children under section 235B of the Immigration and Nationality Act, as added by section 4. (b) Requirement The Attorney General shall ensure that sufficient immigration judge resources are dedicated to the purpose described in subsection (a) to comply with the requirement under section 235B(b)(1) of the Immigration and Nationality Act. 7. Protecting children from human traffickers, sex offenders, and other criminals Section 235(c)(3) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(c)(3)) is amended— (1) in subparagraph (A), by inserting , including a mandatory biometric criminal history check before the period at the end; and (2) by adding at the end the following— (D) Prohibition on placement with sex offenders and human traffickers (i) In general The Secretary of Health and Human Services may not place an unaccompanied alien child in the custody of an individual who has been convicted of— (I) a sex offense (as defined in section 111 of the Sex Offender Registration and Notification Act (42 U.S.C. 16911)); or (II) a crime involving a severe form of trafficking in persons (as defined in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102)). (ii) Requirements of criminal background check A biometric criminal history check under subparagraph (A) shall be based on a set of fingerprints or other biometric identifiers and conducted through— (I) the Identification Division of the Federal Bureau of Investigation; and (II) criminal history repositories of all States that the individual lists as current or former residences. . 8. National Guard deployments in response to large-scale border crossings and resources for State and local border security efforts (a) National Guard deployments Section 902 of title 32, United States Code, is amended— (1) by striking The Secretary and inserting the following: (a) In general The Secretary ; (2) by striking the comma after Secretary; and (3) by adding at the end the following: (b) Mandatory reimbursement If the governor of a State deploys personnel of the National Guard in response to the apprehension of 6,000 or more unaccompanied alien children (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))) who are nationals of countries other than Canada or Mexico, the Secretary of Defense shall reimburse such State for any expenses incurred by the State as a result of such deployment. . (b) State and local assistance (1) In general The Federal Emergency Management Agency shall enhance law enforcement preparedness, humanitarian responses, and operational readiness along the Southern border through Operation Stonegarden. (2) Grants and reimbursements (A) In general Amounts appropriated pursuant to paragraph (3) shall be used for grants and reimbursements to State and local governments in Border Patrol sectors on the Southern border for— (i) personnel, overtime, travel, and other costs related to combating illegal immigration and drug smuggling; and (ii) costs related to providing humanitarian relief to unaccompanied alien children who have entered the United States. (B) Funding for state and local governments Grants and reimbursements authorized subparagraph (A) shall be made by the Federal Emergency Management Agency through a competitive process. (3) Authorization of appropriations (A) In general There are authorized to be appropriated, for fiscal years 2014 and 2015, such sums as may be necessary to carry out this subsection. (B) Offset Any amounts appropriated pursuant to subparagraph (A) shall be offset by an equal reduction in the amounts appropriated for other purposes. (C) Rescission If the reductions required under subparagraph (B) are not made during the 180-day period beginning on the date of the enactment of this Act, there shall be rescinded, from all unobligated amounts appropriated for any Federal agency (other than the Department of Defense), on a proportionate basis, an amount equal to the amount appropriated pursuant to subparagraph (A). (c) Scope of National Guard authority Section 902 of title 32, United States Code, as amended by subsection (a), is further amended by adding at the end the following: (c) Scope of authority Notwithstanding section 1385 of title 18 or any other provision of law, National Guard personnel who are deployed to conduct homeland defense activities near an international border are authorized to detain any person, and transfer such person to the custody of U.S. Border Patrol or another appropriate Federal law enforcement agency, if there is probable cause that such person has violated any Federal law relating to— (1) immigration; (2) drug trafficking; (3) human trafficking; or (4) terrorism. . July 28, 2014Read the second time and placed on the calendar