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108th CONGRESS
2d Session
H. R. 4406
To reform the judicial review process of orders of removal for purposes
of the Immigration and Nationality Act.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 19, 2004
Mr. Sensenbrenner (for himself and Mr. Hostettler) introduced the
following bill; which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To reform the judicial review process of orders of removal for purposes
of the Immigration and Nationality Act.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fairness in Immigration Litigation
Act''.
SEC. 2. JUDICIAL REVIEW OF ORDERS OF REMOVAL.
(a) In General.--Section 242 of the Immigration and Nationality Act
(8 U.S.C. 1252) is amended--
(1) in subsection (a)--
(A) in paragraph (2)--
(i) in subparagraphs (A), (B), and (C), by
inserting ``(statutory and nonstatutory),
including section 2241 of title 28, United
States Code, or any other habeas corpus
provision, and sections 1361 and 1651 of title
28, United States Code'' after
``Notwithstanding any other provision of law'';
and
(ii) by adding at the end the following:
``(D) Judicial review of certain legal claims.--
Nothing in this paragraph shall be construed as
precluding consideration by the circuit courts of
appeals of constitutional claims or pure questions of
law raised upon petitions for review filed in
accordance with this section. Notwithstanding any other
provision of law (statutory and nonstatutory),
including section 2241 of title 28, United States Code,
or, except as provided in subsection (e), any other
habeas corpus provision, and sections 1361 and 1651 of
title 28, United States Code, such petitions for review
shall be the sole and exclusive means of raising any
and all claims with respect to orders of removal
entered or issued under any provision of this Act.'';
and
(B) by adding at the end the following:
``(4) Claims under the united nations convention.--
Notwithstanding any other provision of law (statutory and
nonstatutory), including section 2241 of title 28, United
States Code, or any other habeas corpus provision, and sections
1361 and 1651 of title 28, United States Code, a petition for
review by the circuit courts of appeals filed in accordance
with this section is the sole and exclusive means of judicial
review of claims arising under the United Nations Convention
Against Torture and Other Forms of Cruel, Inhuman, or Degrading
Treatment or Punishment.
``(5) Exclusive means of review.--The judicial review
specified in this subsection shall be the sole and exclusive
means for review by any court of an order of removal entered or
issued under any provision of this Act. For purposes of this
title, in every provision that limits or eliminates judicial
review or jurisdiction to review, the terms `judicial review'
and `jurisdiction to review' include habeas corpus review
pursuant to section 2241 of title 28, United States Code, or
any other habeas corpus provision, sections 1361 and 1651 of
title 28, United States Code, and review pursuant to any other
provision of law.'';
(2) in subsection (b)--
(A) in paragraph (3)(B), by inserting ``pursuant to
subsection (f)'' after ``unless''; and
(B) in paragraph (9), by adding at the end the
following: ``Except as otherwise provided in this
subsection, no court shall have jurisdiction, by habeas
corpus under section 2241 of title 28, United States
Code, or any other habeas corpus provision, by section
1361 or 1651 of title 28, United States Code, or by any
other provision of law (statutory or nonstatutory), to
hear any cause or claim subject to these consolidation
provisions.'';
(3) in subsection (f)(2), by inserting ``or stay, by
temporary or permanent order, including stays pending judicial
review,'' after ``no court shall enjoin''; and
(4) in subsection (g), by inserting ``(statutory and
nonstatutory), including section 2241 of title 28, United
States Code, or any other habeas corpus provision, and sections
1361 and 1651 of title 28, United States Code'' after
``notwithstanding any other provision of law''.
(b) Effective Date.--The amendments made by subsection (a) shall
take effect upon the date of enactment of this Act and shall apply to
cases in which the final administrative removal order was issued
before, on, or after the date of enactment of this Act.
SEC. 3. CONSOLIDATION OF APPEALS.
(a) In General.--Section 242(b)(2) of the Immigration and
Nationality Act (8 U.S.C. 1252(b)(2)), is amended by striking the first
sentence and inserting the following: ``The petition for review shall
be filed with the court of appeals for the Federal Circuit.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply to any final agency order that was entered on or after the date
of enactment of this Act.
SEC. 4. ADDITIONAL REMOVAL AUTHORITIES.
(a) In General.--Section 241(b) of the Immigration and Nationality
Act (8 U.S.C. 1231(b)) is amended--
(1) in paragraph (1)--
(A) in each of subparagraphs (A) and (B), by
striking the period at the end and inserting ``unless,
in the opinion of the Secretary of Homeland Security,
removing the alien to such country would be prejudicial
to the United States.''; and
(B) by amending subparagraph (C) to read as
follows:
``(C) Alternative countries.--If the alien is not
removed to a country designated in subparagraph (A) or
(B), the Secretary of Homeland Security shall remove
the alien to--
``(i) the country of which the alien is a
citizen, subject, or national, where the alien
was born, or where the alien has a residence,
unless the country physically prevents the
alien from entering the country upon the
alien's removal there; or
``(ii) any country whose government will
accept the alien into that country.''; and
(2) in paragraph (2)--
(A) by striking ``Attorney General'' each place
such term appears and inserting ``Secretary of Homeland
Security'';
(B) by amending subparagraph (D) to read as
follows:
``(D) Alternative countries.--If the alien is not
removed to a country designated under subparagraph
(A)(i), the Secretary of Homeland Security shall remove
the alien to a country of which the alien is a subject,
national, or citizen, where the alien was born, or
where the alien has a residence, unless--
``(i) such country physically prevents the
alien from entering the country upon the
alien's removal there; or
``(ii) in the opinion of the Secretary of
Homeland Security, removing the alien to the
country would be prejudicial to the United
States.''; and
(C) by amending subparagraph (E)(vii) to read as
follows:
``(vii) Any country whose government will
accept the alien into that country.''.
(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
any deportation, exclusion, or removal on or after such date pursuant
to any deportation, exclusion, or removal order, regardless of whether
such order is administratively final before, on, or after such date.
SEC. 5. BURDEN OF PROOF.
(a) Conditions for Granting Asylum.--Section 208(b) of the
Immigration and Nationality Act (8 U.S.C. 1158(b)) is amended--
(1) in paragraph (1), by striking ``The Attorney General''
and inserting the following:
``(A) Eligibility.--The Secretary of Homeland
Security or the Attorney General''; and
(2) by adding at the end the following:
``(B) Burden of proof.--The burden of proof is on
the applicant to establish that the applicant is a
refugee within the meaning of section 101(a)(42)(A). To
establish that the applicant is a refugee within the
meaning of this Act, the applicant must establish that
race, religion, nationality, membership in a particular
social group, or political opinion was or will be the
central motive for persecuting the applicant. The
testimony of the applicant, only if it is credible, is
persuasive, and refers to specific facts that
demonstrate that the applicant is a refugee, may be
sufficient to sustain such burden without
corroboration. Where the trier of fact finds that it is
reasonable to expect corroborating evidence for certain
alleged facts pertaining to the specifics of the
applicant's claim, such evidence must be provided
unless a reasonable explanation is given as to why such
information is not provided. The credibility
determination of the trier of fact may be based, in
addition to other factors, on the demeanor, candor, or
responsiveness of the applicant or witness, the
consistency between the applicant's or witness's
written and oral statements, whether or not under oath,
made at any time to any officer, agent, or employee of
the United States, the internal consistency of each
such statement, the consistency of such statements with
the country conditions in the country from which the
applicant claims asylum, as presented by the Department
of State, and any inaccuracies or falsehoods in such
statements. These factors may be considered
individually or cumulatively.''.
(b) Standard of Review for Orders of Removal.--Section 242(b)(4) of
the Immigration and Nationality Act (8 U.S.C. 1252(b)(4)) is amended by
adding after subparagraph (D) the following flush language: ``No court
shall reverse a determination made by an adjudicator with respect to
the availability of corroborating evidence as described in section
208(b)(1)(B), unless the court finds that a reasonable adjudicator is
compelled to conclude that such corroborating evidence is
unavailable.''.
(c) Effective Date.--The amendment made by subsection (b) shall
take effect upon the date of enactment of this Act and shall apply to
cases in which the final administrative removal order was issued
before, on, or after the date of enactment of this Act.
SEC. 6. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect upon
the date of enactment of this Act.
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