S.Amdt. 1470

SA 1470. Mr. GRAHAM submitted an amendment intended to be proposed to
amendment SA 1388 submitted and intended to be 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. ___. PROVISIONAL REMOVAL PROCEEDINGS.

(a) In General.--Chapter 4 of title II of the Immigration
and Nationality Act (8 U.S.C. 1221 et seq.) is amended by
inserting after section 235A the following:

``SEC. 235B. PROVISIONAL REMOVAL PROCEEDINGS.

``(a) General Rules.--
``(1) Authority.--The Secretary shall have the authority to
place individuals, including families, in provisional removal
proceedings.
``(2) Detention.--Individuals and families subject to
provisional removal proceedings shall be detained.
``(3) Timing.--The provisional removal proceedings
described in this section shall conclude, to the maximum
extent practicable, not later than 90 days after the date the
alien is inspected and determined inadmissible.
``(b) Procedures for Provisional Removal Proceedings.--
``(1) Commencement.--
``(A) In general.--Provisional removal proceedings shall
commence under this section with respect to an alien
immediately after the Secretary properly serves a notice of
removal proceedings on the alien.
``(B) 90-day timeframe.--The 90-day period under subsection
(a)(3) with respect to an alien shall commence upon an
inspection and inadmissibility determination of the alien.
``(2) Service and notice of interview requirements.--In
provisional removal proceedings conducted under this section,
the Secretary shall--
``(A) serve notice to the alien or to the alien's counsel
of record;
``(B) ensure that such notice, to the maximum extent
practicable, is in the alien's native language or in a
language the alien understands; and
``(C) include in such notice--
``(i) the nature of the proceedings against the alien;
``(ii) the legal authority under which such proceedings
will be conducted; and
``(iii) the charges against the alien and the statutory
provisions the alien is alleged to have violated;
``(3) Protection determination.--
``(A) In general.--To the maximum extent practicable,
within 90 days after the date on which an alien is referred
for proceedings under this section, an asylum officer shall
conduct a protection determination of such alien in person or
through a technology appropriate for protection
determinations.
``(B) Procedures and evidence.--The asylum officer may
receive into evidence any oral or written statement that is
material and relevant to any matter in the protection
determination. The testimony of the alien shall be under oath
or affirmation administered by the asylum officer.
``(C) Interpreters.--Whenever necessary, the asylum officer
shall procure the assistance of an interpreter, to the
maximum extent practicable, in the alien's native language or
in a language the alien understands, during any protection
determination.
``(D) Location.--Any protection determination authorized
under this section shall occur in a location convention to
the detention of the aliens.
``(E) Written record.--The asylum officer shall prepare a
written record of each protection determination, which--
``(i) shall be provided to the alien, or to the alien's
counsel of record, upon a decision; and
``(ii) shall include--

``(I) a summary of the material facts stated by the alien;
``(II) any additional facts relied upon by the asylum
officer;
``(III) the asylum officer's analysis of why, in the light
of the facts referred to in subclauses (I) and (II), the
alien has or has not established a positive or negative
outcome from the protection determination; and
``(IV) a copy of the asylum officer's interview notes.

``(F) Withdrawal of application, voluntary departure, and
voluntary repatriation.--
``(i) Voluntary departure.--The Secretary may permit an
alien to voluntarily depart.
``(ii) Withdrawal of application.--The Secretary may permit
an alien, at any time before the protection merits interview,
to withdraw his or her application and depart immediately
from the United States.
``(G) Conversion to removal proceedings under section
240.--The asylum officer or immigration officer may refer or
place an alien into removal proceedings under section 240 by
issuing a notice to appear for the purpose of initiating such
proceedings if either such officer determines that--
``(i) such proceedings are required in order to permit the
alien to seek an immigration benefit for which the alien is
legally entitled to apply; and
``(ii) such application requires such alien to be placed
in, or referred to proceedings under section 240 that are not
available to such alien under this section.
``(H) Protection of information.--
``(i) Sensitive or law enforcement information.--Nothing in
this section may be construed to compel any employee of the
Department of Homeland Security to disclose any information
that is otherwise protected from disclosure by law.
``(ii) Protection of certain information.--Before providing
the record described in subparagraph (E) to the alien or to
the alien's counsel of record, the Director shall protect any
information that is prohibited by law from being disclosed.
``(c) Protection Determination.--
``(1) Identity verification.--The Secretary may not conduct
the protection determination with respect to an alien until
the identity of the alien has been checked against all
appropriate records and databases maintained by the Attorney
General, the Secretary of State, or the Secretary.
``(2) In general.--
``(A) Eligibility.--Upon the establishing the identity of
an alien pursuant to paragraph (1), the asylum officer shall
conduct a protection determination in a location selected in
accordance with this section.
``(B) Outcome.--
``(i) Positive protection determination outcome.--If the
protection determination conducted pursuant to subparagraph
(A) results in a positive protection determination outcome,
the alien shall be referred to protection merits removal
proceedings in accordance with the procedures described in
paragraph (4).
``(ii) Negative protection determination outcome.--If such
protection determination results in a negative protection
determination outcome, the alien shall be subject to the
process described in subsection (d).
``(3) Record.--
``(A) Use of record.--In each protection determination, or
any review of such determination, the record of the alien's
protection determination required under subsection (b)(3)(E)
shall constitute the underlying application for the alien's
application for asylum, withholding of removal under section
241(b)(3), or protection under the Convention Against Torture
for purposes of the protection merits interview.
``(B) Date of filing.--The date on which the Secretary
issues a notification of a positive protection determination
pursuant to paragraph (2)(B)(i) shall be considered, for all
purposes, the date of filing and the date of receipt of the
alien's application for asylum, withholding of removal under
section 241(b)(3), or protection under the Convention Against
Torture, as applicable.
``(4) Referral for asylum proceedings.--
``(A) In general.--If the alien receives a positive
protection determination, he or she shall be referred to
asylum proceedings under section 240.
``(B) Notifications.--As soon as practicable after a
positive protection determination, the Secretary shall--
``(i) issue a written notification to the alien of the
outcome of such determination; and
``(ii) include all of the information described in
subsection (b)(2).
``(d) Negative Protection Determination.--
``(1) In general.--If an alien receives a negative
protection determination, the asylum officer shall--
``(A) provide such alien with written notification of such
determination; and
``(B) subject to paragraph (2), order the alien removed
from the United States without hearing or review.
``(2) Opportunity to request reconsideration or appeal.--
The Secretary shall notify any alien described in paragraph
(1) immediately after receiving notification of a negative
protection determination under this subsection that he or
she--
``(A) may request reconsideration of such determination in
accordance with paragraph (3); and

[[Page S638]]

``(B) may request administrative review of such protection
determination decision in accordance with paragraph (4).
``(3) Request for reconsideration.--
``(A) In general.--Any alien with respect to whom a
negative protection determination has been made may submit a
request for reconsideration to U.S. Citizenship and
Immigration Services not later than 5 days after such
determination.
``(B) Decision.--The Director, or designee, in the
Director's unreviewable discretion, may grant or deny a
request for reconsideration made pursuant to subparagraph
(A), which decision shall not be subject to review.
``(4) Administrative review.--
``(A) In general.--The administrative review of a
protection determination with respect to an alien under this
subsection shall be at the discretion of the Secretary.
``(B) Exception.--An alien referred to in subparagraph (A),
or the alien's counsel of record, may submit such additional
evidence or testimony in accordance with such policies and
procedures as the Secretary may prescribe.
``(C) Review.--Each review described in subparagraph (A)
may be conducted by asylum officers so designated by the
Secretary at the discretion of the Secretary.
``(D) Standard of review.--In accordance with the
procedures prescribed by the Secretary, a review of the
record of the protection determination carried out pursuant
to this section may be undertaken for clear error.
``(E) Determination.--
``(i) Timing.--The Secretary shall complete a review under
this paragraph, to the maximum extent practicable, not later
than 72 hours after receiving a request from an alien
pursuant to subparagraph (D).
``(ii) Effect of positive determination.--If, after
conducting a review under this paragraph, the Secretary
determines that an alien has a positive protection
determination, the alien shall be referred for asylum
proceedings under section 240.
``(iii) Effect of negative determination.--If, after
conducting a review under this paragraph, the Secretary
determines that an alien has a negative protection
determination, the alien shall be ordered removed from the
United States without additional review.
``(5) Jurisdictional matters.--In any action brought
against an alien under section 275(a) or 276, the court shall
not have jurisdiction to hear any claim attacking the
validity of an order of removal entered under this section.
``(e) Service of Protection Determination Decision.--
``(1) Protection determination decision.--
``(A) In general.--Upon reaching a decision regarding a
protection determination, the Secretary shall--
``(i) immediately notify the alien, and the alien's counsel
of record, if applicable, that a determination decision has
been made; and
``(ii) schedule the service of the protection determination
decision, which shall take place, to the maximum extent
practicable, not later than 5 days after such notification.
``(B) Special rules.--
``(i) Location.--Each service of a protection determination
decision scheduled pursuant to subparagraph (A)(ii) may occur
at--

``(I) a U.S. Immigration and Customs Enforcement facility;
``(II) an Immigration Court; or
``(III) any other federally owned or federally leased
building that--

``(aa) the Secretary has authorized or entered into a
memorandum of agreement to be used for such purpose; and
``(bb) meets the minimum requirements under this
subparagraph.
``(ii) Minimum requirements.--In conducting each service of
a protection determination decision, the Director shall
ensure basic notice.
``(2) Procedures for service of protection determination
decisions.--
``(A) Written decision.--The Secretary shall ensure that
each alien and the alien's counsel of record, if applicable,
attending a determination decision receives a written
decision that includes, at a minimum, the articulated basis
for the denial of the protection benefit sought by the alien.
``(B) Language access.--The Secretary shall ensure that
each written decision required under subparagraph (A) is
delivered to the alien in--
``(i) the alien's native language, to the maximum extent
practicable; or
``(ii) another language the alien understands.
``(C) Access to counsel.--An alien who has obtained the
services of counsel shall be represented by such counsel, at
no expense to the Federal Government, at the service of the
protection determination. Nothing in this subparagraph may be
construed to create a substantive due process right or to
unreasonably delay the scheduling of the service of the
protection determination.
``(D) Asylum officer.--A protection determination decision
may only be served by an asylum officer.
``(E) Protections for asylum officer decisions based on the
merits of the case.--The Secretary may not impose
restrictions on an asylum officer's ability to grant or deny
relief sought by an alien in a protection determination or
protection merits interview based on a numerical limitation.
``(3) Negative protection determination.--
``(A) Advisement of rights and opportunities.--If an alien
receives a negative protection determination decision, the
asylum officer shall--
``(i) advise the alien if an alternative option of return
is available to the alien, including--

``(I) voluntary departure;
``(II) withdrawal of the alien's application for admission;
or
``(III) voluntary repatriation; and

``(ii) provide written or verbal information to the alien
regarding the process, procedures, and timelines for
appealing such denial, to the maximum extent practicable, in
the alien's native language, or in a language the alien
understands.
``(4) Protection for children.--In the case of a family
unit, the Secretary shall ensure that the best interests of
the child or children are considered when conducting a
protection determination of the child's family unit.
``(5) Final order of removal.--If an alien receives a
negative protection determination decision, an alien shall be
removed in accordance with section 241 upon a final order of
removal.
``(f) 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.
``(g) Savings Provisions.--
``(1) Detention.--Nothing in this section may be construed
to affect the authority of the Secretary to detain an alien
released pursuant to this section if otherwise authorized by
law.
``(2) Special rule.--For aliens who are natives or citizens
of Cuba released pursuant to this section and who are
otherwise eligible for adjustment of status under the first
section of Public Law 89-732 (8 U.S.C. 1255 note) (commonly
known as the `Cuban Adjustment Act'), the requirement that an
alien has been inspected and admitted or paroled into the
United States shall not apply. Aliens who are natives or
citizens of Cuba or Haiti and have been released pursuant to
section 240 (8 U.S.C. 1229) shall be considered to be
individuals described in section 501(e)(1) of the Refugee
Education Assistance Act of 1980 (8 U.S.C. 1522 note).
``(3) Review of protection determinations.--Except for
reviews of constitutional claims, no court shall have
jurisdiction to review a protection determination issued by
U.S. Citizenship and Immigration Services under this section.
``(4) Final removal orders.--No court shall have
jurisdiction to review a final order of removal issued under
this section.
``(h) Judicial Review.--Notwithstanding any other provision
of this Act, judicial review of any decision or action in
this section shall be governed only by the United States
District Court for the Northern District of Texas, which
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.
``(i) Definitions.--In this section:
``(1) Asylum officer.--The term `asylum officer' has the
meaning given such term in section 235(b)(1)(E).
``(2) Convention against torture.--The term `Convention
Against Torture' means the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, done at New York December 10, 1984, including any
implementing regulations.
``(3) Director.--The term `Director' means the Director of
U.S. Citizenship and Immigration Services.
``(4) Final order of removal.--The term `final order of
removal' means an order of removal made by an asylum officer
at the conclusion of a protection determination, and any
appeal of such order, as applicable.
``(5) Protection determination decision.--The term
`protection determination decision' means the service of a
negative or positive protection determination outcome.
``(6) Secretary.--The term `Secretary' means the Secretary
of Homeland Security.''.
(b) Clerical Amendment.--The table of contents of the
Immigration and Nationality Act (8 U.S.C. 1101 note) is
amended by inserting after the item relating to section 235A
the following:
``Sec. 235B. Provisional removal proceedings.''.
______