Ryan's Immigration Bill: Border Loophole, Interior Enforcement, and Judicial Review Provisions

By Andrew R. Arthur on June 18, 2018

Read more: Press Release - Analysis of Paul Ryan’s Amnesty Bill

Division B, titles III and IV of the bill provide several crucial fixes that are necessary to plug loopholes that have been exploited by families sending unaccompanied alien children (UACs) to enter the United States illegally, and by alien parents arriving illegally in the United States with children. Significantly, it also would prevent parents entering illegally from being separated from their children in immigration detention.

Those provisions would also respond to several recent court decisions that have allowed dangerous aliens to remain in the United States, clarify the detainer authority of U.S. Immigration and Customs Enforcement (ICE), and provide incentives to states and localities to comply with those detainers (as well as a significant deterrent to those states and localities who do not comply).

Division C of the bill, however, provides for broad judicial review of the bill as a whole. This will give activist judges significant authority to control the implementation of the bill as a whole, and crafty lawyers the ability to tie up the implementation of the enforcement provisions indefinitely and expand the amnesty provisions, likely beyond Congress' intent.

Division B, title III, section 3101 of the bill would amend the unaccompanied alien child (UAC) provisions in 8 U.S.C. § 1232 to close loopholes that undermine border security.

Specifically, it would eliminate the distinction between UACs from contiguous countries (that is, Canada and Mexico) and UACs from every other country who are screened by DHS.

It also removes the requirement that UACs may only be returned to their home countries if they are "able to make an independent decision to withdraw the child's application for admission to the United States." The current requirement, in essence, prevents DHS from removing younger UACs who have not been trafficked and who do not have a credible fear to their home countries. This is an irrational requirement, because such aliens are more vulnerable to predation if they are allowed to remain in the United States. It also mandates that UACs who do not have a credible fear and have not been trafficked be returned to their home countries if they withdraw their applications for admission.

That section also authorizes the secretary of State to enter into agreements with foreign countries for the repatriation of UACs; under current law, such agreements are limited to contiguous countries.

It requires special training for USCIS agents handling cases involving UACs in interviewing child trafficking victims.

In addition, it mandates that any UAC whom DHS seeks to remove be placed in removal proceedings before an immigration judge within 14 days set of screening.

That section also limits notifications by federal agencies to the Department of Health and Human Services (HHS) following the apprehension or discovery of a UAC to those UACs who have been trafficked or who do have a credible fear of return. Under current law, those notifications must be made in the case of any UAC. In addition, it gives those federal agencies 30 days to transfer any UAC who does have a credible fear or has not been trafficked, and permits those federal agencies to transfer any UAC who does not have a credible fear of return or who has not been trafficked. Current law requires all UACs to be transferred to HHS within 72 hours of the apprehension or discovery of such minor.

Section 3101 would require HHS to provide DHS with the biographical information, Social Security number (if any), address, contact information, and immigration status (if known) of an individual with whom a UAC is to be placed prior to such placement. This would enable DHS to ensure that UACs have not been trafficked, and that the individual with whom such UAC would be placed would not pose a danger to that UAC.

It would also amend the provision in 8 U.S.C. § 1232 requiring HHS to ensure "to the greatest extent practicable" that UACs who may have a credible fear or have been trafficked have counsel in legal proceedings, and make it clear that such UACs have access to counsel "at no expense to the government."

Section 3102 would eliminate the presumption under recent interpretations of the Flores settlement agreement that alien minors who are accompanied by their parents should not be detained, providing DHS with the authority to make such detention determinations, and to detain such aliens. This would prevent the separation of such minors from their parents. It also prevents the release of any such alien minor by DHS to anyone other than a parent or legal guardian.

Section 3103 would amend section 241(a)(1)(B) of the INA to clarify that the 90-day period for removal of an alien ordered removed does not begin until an alien is in the custody of DHS. It also amends the provisions suspending that 90-day period in section 241(a)(1)(C) of the INA to make it clear that such period is to be suspended where there is a stay of removal of the alien, the alien's case has been remanded, or the alien has been transferred to another state or federal agency. It also restarts the clock on the 90-day removal period to the point that the alien makes reasonable efforts to cooperate with DHS to carry after removal order, a stay of removal is no longer in effect, or the alien is returned to DHS custody.

In addition, that section mandates the detention of aliens pending removal of criminal and terrorist aliens described in section 236(c)(1)(A) through (D) of the INA throughout any period that the alien hinders his or her removal from United States and pending any stay of removal or remand. It also eliminates bond for aliens under a final order of removal during any suspensions of the 90-day period described therein.

That section also requires any alien released on supervision after the 90-day removal period:

[T]o obey reasonable restrictions on the alien's conduct or activities that the Secretary prescribes for the alien, in order to prevent the alien from absconding, for the protection of the community, or for other purposes related to the enforcement of the immigration laws.

This amendment to current law gives DHS greater authority to set conditions to ensure the ultimate appearance of aliens ordered removed, and to protect the community from any aliens ordered removed who pose a danger.

Moreover, section 3103 gives DHS greater latitude in detaining aliens beyond the 90-day removal period, and makes clear that such aliens have no right to release on bond.

Section 3104 expands the definition of "aggravated felony" in section 101(a)(43) of the INA. Notably, it expands that definition to cover all homicides and rapes (including sexual assaults and batteries), state controlled substances felony convictions, and violent crimes for which the sentence of imprisonment is a year or more to include offenses wherein the record of conviction shows the offender used physical force against the person or property of another and committing the offense. It also expands that definition as it relates to theft offenses to include motor vehicle theft and the unauthorized use of a vehicle, and to make it clear that permanent deprivation is not a requirement in applying the aggravated felony definition thereunder. These amendments were apparently made to address limitations on the aggravated felony definition set forth in various federal court decisions that were contrary to congressional intent.

Also added to the aggravated felony definition is any offense for which a term of imprisonment of two years or more was imposed, certain offenses related to terrorism or national security, and convictions for driving while intoxicated. With respect to this latter category, the aggravated felony definition is expanded to cover convictions for driving while intoxicated causing serious bodily injury or death, as well as a second or subsequent conviction for driving while intoxicated.

That section makes clear that determinations of whether an offense is an aggravated felony under section 101(a)(43) of the INA are to be made on the basis of the record of conviction, limiting irrational distinctions included in specific court decisions. Moreover, the amendments in this section establish that three or more convictions for misdemeanors not arising out of the traffic laws and felonies for which an aggregate term of imprisonment of three years or more was imposed "regardless of whether the convictions were all entered pursuant to a single trial or the offenses arose from a single pattern or scheme of conduct." This latter provision is intended to preclude possible limitations on the aggravated felony definition by courts or the Board of Immigration Appeals (BIA) on review.

Finally, the amendments in section 3104 are explicitly retrospective, applying to offenses that occurred before, on, or after the effective date of that provision.

Section 3105 amends the definition of "crime of violence" in 18 U.S.C. § 16 in response to the Supreme Court's recent decision in Dimaya v. Sessions. The Court there ruled that 18 U.S.C. § 16(b), as incorporated into the aggravated felony definition in section 101(a)(43)(F) of the INA was unconstitutionally vague, affirming a decision of the Court of Appeals for the Ninth Circuit. It amends that provision by delineating a number of offenses that have previously been identified as "crimes of violence."

Section 3106 would render alien gang members (as defined therein) inadmissible and deportable. It would also render designated gang members subject to mandatory detention, and ineligible for asylum, withholding of removal, temporary protected status, and special immigrant juvenile visas, as well as for parole. This would address the growing danger posed by alien gangs (including MS-13) that the Center has described in recent posts.

Section 3107 would amend the special immigrant juvenile status provision in section 101(a)(27)(J) of the INA. Under that provision as currently written, an alien can be eligible for a special immigrant juvenile visa if the alien has been declared dependent on a juvenile court located in the United States or committed by such court to an agency, "and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law." (Emphasis added.) As explained in the Center's May 4, 2018, Backgrounder "Catch and Release Escape Hatches", this is one of the loopholes that has been exploited by UACs who have crossed the border illegally.

The amendment would limit special immigrant juvenile status to those aliens who are not able to reunify with either parent, rather than just one.

Section 3108 would broaden the definition of conviction in section 101(a)(48) of the INA, to allow for consideration of "any facts established within the record of conviction" in determining whether a criminal alien is removable or deportable from the United States. Again, this would address case law that has irrationally limited the criminal grounds of alien removal beyond Congress' intent. It would also make clear that:

Any reversal, vacatur, expungement, or modification to a conviction, sentence, or conviction record that was granted to ameliorate the immigration consequences of the conviction, sentence, or conviction record, or was granted for rehabilitative purposes shall have no effect on the immigration consequences resulting from the original conviction.

This would address the undermining of the immigration grounds of criminal removability by activist courts, judges, and States and localities.

Section 3110 would clarify the authority of ICE to issue detainers. It would allow DHS to issue a detainer in the case of any individual arrested by federal, state, or local authorities for any criminal law or for driving while intoxicated or under the influence if the department has "probable cause to believe that the individual is an inadmissible or deportable alien." If such detainers are honored, DHS must take custody of the individual within 48 to 96 hours following the date that the individual is otherwise scheduled to be released. Those agencies that comply with a detainer would be granted immunity for their compliance in any subsequent lawsuit, and this section makes clear that the federal government would be the proper defendant in any such action. Such immunity would not cover the mistreatment of the individual by the complying agency, however.

Significantly, the section would provide a private cause of action by victims or the family members of victims of specified crimes "against a State or political subdivision of a State or public official acting in an official capacity in" federal court if that State or political subdivision released the criminal actor prior to committing that offense after refusing to comply with an immigration detainer; has a "statute, policy, or practice" prohibiting communication with DHS in violation of 8 U.S.C. § 1373 and consequently released the criminal prior to committing that subsequent crime; or has a "statute, policy, or practice" that requires a subordinate political subdivision to decline immigration detainers and that therefore released the criminal actor after refusing to comply with immigration detainer and prior to committing the criminal offense resulting in the harm to the victim.

Thus, this section provides both the incentive of immunity and the deterrent of potential monetary liability for those states and localities that comply with, or refuse to comply with, civil immigration detainers, respectively.

Division B, title IV, section 4101 of the bill would tighten the standards governing credible fear interviews under section 235(b)(1)(B)(v) of the INA. It would apply the same credibility standards that are used in asylum adjudications, and make it clear that credible fear should only be found where "it is more probable than not that the statements made by, and on behalf of, the alien in support of the alien's claim are true." All too often, it appears that asylum officers believe they are required to accept a credible-fear applicant's statements at face value absent significant inconsistencies. This provision would address that issue. This would limit the number of frivolous credible fear claims, another loophole exploited by aliens entering illegally.

Section 4102 of the bill would strike section 208(b)(3)(C) of the INA. This section of the INA provides UACs with two bites at the apple in applying for asylum, once before USCIS and once before the immigration court, regardless of whether they applied for asylum affirmatively or defensively, or whether they were in the United States following a positive credible fear determination. Again, current law provides an incentive for UACs to attempt to enter the United States illegally, knowing that they will have two opportunities to make an asylum claim.

Section 4103 would direct uniformity in questioning by asylum officers in credible fear cases, and require recording of credible fear interviews, which would be made available to the immigration court considering the alien's asylum claim. The second provision is particularly important, as aliens who have passed credible fear and are applying for asylum will often claim that they were misquoted during their credible fear interviews when confronted with inconsistencies between the record of those interviews and their testimony in court.

Section 4104 would amend the "safe third country" provision in section 208(a)(2)(A) of the INA. As currently written, that provision of the INA prevents an alien from applying for asylum if the alien can be removed pursuant to "a bilateral or multilateral agreement" to a third country were the alien's "life or freedom would not be threatened," and where the alien could apply for asylum or equivalent protection. The amendment would strike the requirement for "a bilateral or multilateral agreement," providing instead that a potential asylum applicant could be removed to any country that satisfied this standard.

Section 4105 would terminate the asylum status of any alien who returned to the country from which he or she sought asylum, absent changed country conditions. The section also provides a waiver of such termination if DHS determines that the alien had a "compelling reason" for that return. Again, this would limit frivolous asylum claims made by aliens were simply seeking status in the United States, rather than legitimately fleeing from persecution.

Section 4106 would broaden the definition of "frivolous asylum application". Section 208(d)(6) of the INA permanently bars aliens who have made frivolous asylum applications from any benefits under the INA. The regulation implementing that provision, 8 C.F.R. § 1208.20, implemented by the Clinton Justice Department, defines the term "frivolous" narrowly, providing "an asylum application is frivolous if any of its material elements is deliberately fabricated."

As amended, section 208(d)(6) of the INA would provide that an asylum application is frivolous if:

[[I]t is so insufficient in substance that it is clear that the applicant knowingly filed the application solely or in part to delay removal from the United States, to seek employment authorization ... , or to seek issuance of a Notice to Appeal in order to pursue Cancellation of Removal under section 240A(b).

As this provision suggests, aliens will often file asylum applications simply to obtain employment authorization, to remain in the United States indefinitely (exploiting the backlog in the immigration courts), or to be placed into removal proceedings to apply for cancellation of removal for nonpermanent residents. Section 4106 would plug this loophole.

Section 4107 would explicitly render statements "including statements made to, and investigative reports prepared by, immigration authorities and other government officials" admissible in considering credibility as it relates to asylum claims. This will avoid the government needing to call the maker or makers of those documents (many of whom may work abroad) in order to introduce documents that contradict or undermine some aspect of an applicant's claim for immigration relief, thereby cutting down on the number of fraudulent asylum claims.

Section 4108 would establish criminal penalties for asylum and withholding of removal fraud, rendering such offenses felonies subjecting the actor to up to 10 years in jail. These penalties would be in addition to the criminal penalties set forth in 18 U.S.C. § 1546 for fraud and misuse of visas, permits, or other documents, which criminalizes the knowing making of a false statement with respect to a material fact in any immigration application. Again, this provision would cut down on asylum fraud, allowing meritorious claims to be heard more quickly.

Section 4109 would remove the 10-year statute of limitations for prosecuting asylum fraud under 18 U.S.C. §§ 1541 to 1544, and explicitly make clear that there is no statute of limitations for a violation of 18 U.S.C. § 1546. This would allow the federal government to prosecute fraud in the immigration process that is not identified until years after the fact.

Division C, section 1101 of the bill would eliminate Chevron deference for agency interpretations of the provisions in the bill. As the Legal Information Institute explains that principle:

In Chevron, the Supreme Court set forth a legal test as to when the court should defer to the agency's answer or interpretation, holding that such judicial deference is appropriate where the agency's answer was not unreasonable, so long as the Congress had not spoken directly to the precise issue at question. The scope of the Chevron deference doctrine is that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency. Rather, as Justice Stevens wrote in Chevron, when the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's action was based on a permissible construction of the statute. The Chevron deference first requires that the administrative interpretation in question was issued by the agency charged with administering that statute being construed. Accordingly, interpretations by agencies not in charge of that statute in question are not owed any judicial deference. Also, the implicit delegation of authority to an administrative agency to interpret a statute does not extend to the agency's interpretation of its own jurisdiction under that statute.

It is not clear why the bill would eliminate such deference, given the fact that it would prevent reviewing courts of appeal from substituting their own judgment in interpreting the provisions in the bill for that of the agency experts who would work implementing those provisions, and understand Congress' intent best.

Viewed in the best light to the drafters of that legislation, this section would prevent future administrations from watering down the enforcement provisions or expanding the relief provisions in the bill. Given the likelihood that most of those determinations, however, would be made under the current administration, this would appear to subvert aspects of the Trump administration's application of the provisions in the bill, allowing activist judges to undermine the effectiveness of the bill, and expand the relief available therein. This will likely lead to needless litigation.