S.Amdt. 1468

SA 1468. Mr. GRAHAM submitted an amendment intended to be proposed to
amendment SA 1388 proposed by Mrs. Murray (for herself and Mr. Schumer)
to the bill H.R. 815, to amend title 38, United States Code, to make
certain improvements relating to the eligibility of veterans to receive
reimbursement for emergency treatment furnished through the Veterans
Community Care program, and for other purposes; which was ordered to
lie on the table; as follows:

At the appropriate place, insert the following:

SEC. ___. BORDER EMERGENCY AUTHORITY.

(a) In General.--Chapter 4 of title II of the Immigration
and Nationality Act (8 U.S.C. 1221 et seq.) is amended by
adding at the end the following:

``SEC. 244A. BORDER EMERGENCY AUTHORITY.

``(a) Use of Authority.--
``(1) In general.--In order to respond to extraordinary
border circumstances, there shall be available to the
Secretary, notwithstanding any other provision of law, a
border emergency authority.
``(2) Exceptions.--The border emergency authority shall not
be activated with respect to any of the following:
``(A) A citizen or national of the United States.
``(B) An alien who is lawfully admitted for permanent
residence.
``(C) An alien who an immigration officer determines, with
the approval of a supervisory immigration officer, should be
excepted from the border emergency authority based on the
totality of the circumstances, including consideration of
significant law enforcement, officer and public safety,
humanitarian, and public health interests, or an alien who an
immigration officer determines, in consultation with U.S.
Immigration and Customs Enforcement, should be excepted from
the border emergency authority due to operational
considerations.

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``(D) An alien who is determined to be a victim of 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)).
``(E) An alien who has a valid visa or other lawful
permission to enter the United States, including--
``(i) a member of the Armed Forces of the United States and
associated personnel, United States Government employees or
contractors on orders abroad, or United States Government
employees or contractors, and an accompanying family member
who is on orders or is a member of the alien's household,
subject to required assurances;
``(ii) an alien who holds a valid travel document upon
arrival at a port of entry;
``(iii) an alien from a visa waiver program country under
section 217 who is not otherwise subject to travel
restrictions and who arrives at a port of entry; or
``(iv) an alien who presents at a port of entry pursuant to
a process approved by the Secretary to allow for safe and
orderly entry into the United States.
``(3) Applicability.--The border emergency authority shall
only be activated as to aliens who are not subject to an
exception under paragraph (2), and who are, after the
authority is activated, within 100 miles of the United States
southwest land border and within the 14-day period after
entry.
``(b) Border Emergency Authority Described.--
``(1) In general.--Whenever the border emergency authority
is activated, the Secretary shall summarily remove from and
prohibit, in whole or in part, entry into the United States
of any alien identified in subsection (a)(3) who is subject
to such authority in accordance with this subsection.
``(2) Terms and conditions.--
``(A) Summary removal.--Notwithstanding any other provision
of this Act, subject to subparagraph (B), the Secretary shall
issue a summary removal order and summarily remove an alien
to the country of which the alien is a subject, national, or
citizen (or, in the case of an alien having no nationality,
the country of the alien's last habitual residence), or in
accordance with the processes established under section 241,
unless the summary removal of the alien to such country would
be prejudicial to the interests of the United States.
``(B) Withholding and convention against torture
interviews.--
``(i) In general.--In the case of an alien subject to the
border emergency authority who manifests a fear of
persecution or torture with respect to a proposed country of
summary removal, an asylum officer (as defined in section
235(b)(1)(E)) shall conduct an interview, during which the
asylum officer shall determine that, if such alien
demonstrates during the interview that the alien has a
reasonable possibility of persecution or torture, such alien
shall be referred to or placed in proceedings under section
240.
``(ii) Sole mechanism to request protection.--An interview
under this subparagraph conducted by an asylum officer shall
be the sole mechanism by which an alien described in clause
(i) may make a claim for protection under--

``(I) section 241(b)(3); and
``(II) the Convention Against Torture.

``(iii) Alien referred for additional proceedings.--In the
case of an alien interviewed under clause (i) who
demonstrates that the alien is eligible to apply for
protection under section 241(b)(3) or the Convention Against
Torture, the alien--

``(I) shall not be summarily removed; and
``(II) shall instead be processed under section 240.

``(iv) Additional review.--

``(I) Opportunity for secondary review.--A supervisory
asylum officer shall review any case in which the asylum
officer who interviewed the alien under the procedures in
clause (iii) finds that the alien is not eligible for
protection under section 241(b)(3) or the Convention Against
Torture.
``(II) Vacatur.--If, in conducting such a secondary review,
the supervisory asylum officer determines that the alien
demonstrates eligibility for such protection--

``(aa) the supervisory asylum officer shall vacate the
previous negative determination; and
``(bb) the alien shall instead be processed under section
240.

``(III) Summary removal.--If an alien does not seek such a
secondary review, or if the supervisory asylum officer finds
that such alien is not eligible for such protection, the
supervisory asylum officer shall order the alien summarily
removed without further review.

``(3) Activations of authority.--
``(A) Discretionary activation.--The Secretary may activate
the border emergency authority if, during a period of 7
consecutive calendar days, there is an average of 100 or more
aliens who are encountered each day.
``(B) Mandatory activation.--The Secretary shall activate
the border emergency authority if--
``(i) during a period of 7 consecutive calendar days, there
is an average of 1,000 or more aliens who are encountered
each day; or
``(ii) on any 1 calendar day, a combined total of 2,000 or
more aliens are encountered.
``(C) Calculation of activation.--For purposes of
subparagraphs (A) and (B), the average for the applicable 7-
day period shall be calculated using--
``(i) the sum of--

``(I) the number of encounters that occur between the
southwest land border ports of entry of the United States;
``(II) the number of encounters that occur between the
ports of entry along the southern coastal borders; and
``(III) the number of inadmissible aliens encountered at a
southwest land border port of entry as described in
subsection (a)(2)(E)(iv); divided by

``(ii) 7.
``(c) Bar to Admission.--Any alien who, during a period of
365 days, has 2 or more summary removals pursuant to the
border emergency authority, shall be inadmissible for a
period of 1 year beginning on the date of the alien's most
recent summary removal.
``(d) Rule of Construction.--For purposes of the Convention
Relating to the Status of Refugees, done at Geneva July 28,
1952 (as made applicable by the 1967 Protocol Relating to the
Status of Refugees, done at New York January 31, 1967 (19 UST
6223)), the Convention Against Torture, and any other
applicable treaty, as applied to this section, the interview
under this section shall occur only in the context of the
border emergency authority.
``(e) Judicial Review.--Judicial review of any decision or
action applying the border emergency authority shall be
governed only by this subsection as follows:
``(1) Notwithstanding any other provision of law, except as
provided in paragraph (2), no court or judge shall have
jurisdiction to review any cause or claim by an individual
alien arising from the decision to enter a summary removal
order against such alien under this section, or removing such
alien pursuant to such summary removal order.
``(2) The United States District Court for the Southern
District of Texas shall have sole and original jurisdiction
to hear challenges, whether constitutional or otherwise, to
the validity of this section or any written policy directive,
written policy guideline, written procedure, or the
implementation thereof, issued by or under the authority of
the Secretary to implement this section.
``(f) Effective Date.--
``(1) In general.--This section shall take effect on the
day after the date of the enactment of this section.
``(2) 7-day period.--The initial activation of the
authority under subparagraph (A) or (B)(i) of subsection
(b)(3) shall take into account the average number of
encounters during the preceding 7 consecutive calendar days,
as described in such subparagraphs, which may include the 6
consecutive calendar days immediately preceding the date of
the enactment of this section.
``(g) Rulemaking.--
``(1) In general.--The Secretary may promulgate such
regulations as are necessary to implement this section in
compliance with the requirements of section 553 of title 5,
United States Code.
``(2) Initial implementation.--Until the date that is 180
days after the date of the enactment of this section, the
Secretary may issue any interim final rules necessary to
implement this section without having to satisfy the
requirements of section 553(b)(B) of title 5, United States
Code, provided that any such interim final rules shall
include a 30-day post promulgation notice and comment period
prior to finalization in the Federal Register.
``(3) Requirement.--All regulations promulgated to
implement this section beginning on the date that is 180 days
after the date of the enactment of this section shall be
issued pursuant to the requirements set forth in section 553
of title 5, United States Code.
``(h) Definitions.--In this section:
``(1) Border emergency authority.--The term `border
emergency authority' means all authorities and procedures
under this section.
``(2) Convention against torture.--The term `Convention
Against Torture' means the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment,
done at New York December 10, 1984, and includes the
regulations implementing any law enacted pursuant to Article
3 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, done at New York
December 10, 1984.
``(3) Encounter.--With respect to an alien, the term
`encounter' means an alien who--
``(A) is physically apprehended by U.S. Customs and Border
Protection personnel--
``(i) within 100 miles of the southwest land border of the
United States during the 14-day period immediately after
entry between ports of entry; or
``(ii) at the southern coastal borders during the 14-day
period immediately after entry between ports of entry; or
``(B) is seeking admission at a southwest land border port
of entry and is determined to be inadmissible, including an
alien who utilizes a process approved by the Secretary to
allow for safe and orderly entry into the United States.
``(4) Secretary.--The term `Secretary' means the Secretary
of Homeland Security.
``(5) Southern coastal borders.--The term `southern coastal
borders' means all maritime borders in California, Texas,
Louisiana, Mississippi, Alabama, and Florida.''.
(b) Clerical Amendment.--The table of contents of the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is
amended by inserting after the item relating to section 244
the following:

``Sec. 244A. Border emergency authority.''.

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