S.Amdt. 1861

SA 1861. Mr. ROUNDS submitted an amendment intended to be proposed by
him 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. __. CLARIFICATION OF ASYLUM ELIGIBILITY.

(a) In General.--Section 208 of the Immigration and
Nationality Act (8 U.S.C. 1158) is amended--
(1) in subsection (a)--
(A) in paragraph (1), by striking ``or who arrives in the
United States (whether or not at a designated port of arrival
and including'' and inserting ``and has arrived in the United
States at a port of entry (including''; and
(B) in paragraph (2), by amending subparagraph (A) to read
as follows:
``(A) Safe third country.--Paragraph (1) shall not apply to
an alien if the Attorney General or the Secretary of Homeland
Security determines that--
``(i) the alien may be removed to a country (other than the
country of the alien's nationality or, in the case of an
alien having no nationality, the country of the alien's last
habitual residence) in which the alien's life or

[[Page S3005]]

freedom would not be threatened on account of race, religion,
nationality, membership in a particular social group, or
political opinion, and where the alien would have access to a
full and fair procedure for determining a claim to asylum or
equivalent temporary protection, unless the Attorney General
or the Secretary, on a case-by-case basis, finds that it is
in the public interest for the alien to receive asylum in the
United States; or
``(ii) the alien entered, attempted to enter, or arrived in
the United States after transiting through at least one
country outside the alien's country of citizenship,
nationality, or last lawful habitual residence en route to
the United States, unless--

``(I) the alien demonstrates that he or she applied for
protection from persecution or torture in at least one
country outside the alien's country of citizenship,
nationality, or last lawful habitual residence through which
the alien transited en route to the United States, and the
alien received a final judgment denying the alien protection
in each country;
``(II) the alien demonstrates that he or she was a victim
of a severe form of trafficking in which a commercial sex act
was induced by force, fraud, or coercion, or in which the
person induced to perform such act was under the age of 18
years; or in which the trafficking included the recruitment,
harboring, transportation, provision, or obtaining of a
person for labor or services through the use of force, fraud,
or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery, and was unable
to apply for protection from persecution in each country
through which the alien transited en route to the United
States as a result of such severe form of trafficking; or
``(III) the only countries through which the alien
transited en route to the United States were, at the time of
the transit, not parties to the 1951 United Nations
Convention relating to the Status of Refugees, the 1967
Protocol Relating to the Status of Refugees, or the United
Nations Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment.''; and

(2) in subsection (b)--
(A) in paragraph (1)(A), by inserting ``(in accordance with
the rules set forth in this section), and is eligible to
apply for asylum under subsection (a)'' before the semicolon
at the end; and
(B) by amending paragraph (2) to read as follows:
``(2) Exceptions.--
``(A) In general.--Paragraph (1) shall not apply to an
alien if the Secretary of Homeland Security or the Attorney
General determines that--
``(i) the alien ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of
race, religion, nationality, membership in a particular
social group, or political opinion;
``(ii) the alien has been convicted of any felony under
Federal, State, tribal, or local law;
``(iii) the alien has been convicted of any misdemeanor
offense under Federal, State, tribal, or local law
involving--

``(I) the unlawful possession or use of an identification
document, authentication feature, or false identification
document (as such terms are defined in the jurisdiction where
the conviction occurred), unless the alien can establish that
the conviction resulted from circumstances showing that--

``(aa) the document or feature was presented before
boarding a common carrier;
``(bb) the document or feature related to the alien's
eligibility to enter the United States;
``(cc) the alien used the document or feature to depart a
country wherein the alien has claimed a fear of persecution;
and
``(dd) the alien claimed a fear of persecution without
delay upon presenting himself or herself to an immigration
officer upon arrival at a United States port of entry;

``(II) the unlawful receipt of a Federal public benefit (as
defined in section 401(c) of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (8 U.S.C.
1611(c))), from a Federal entity, or the unlawful receipt of
similar public benefits from a State, tribal, or local
entity; or
``(III) possession or trafficking of a controlled substance
or controlled substance paraphernalia, as those phrases are
defined under the law of the jurisdiction where the
conviction occurred, other than a single offense involving
possession for one's own use of 30 grams or less of marijuana
(as marijuana is defined under the law of the jurisdiction
where the conviction occurred);

``(iv) the alien has been convicted of an offense arising
under paragraph (1)(A) or (2) of section 274(a), or under
section 276;
``(v) the alien has been convicted of a Federal, State,
tribal, or local crime that the Attorney General or Secretary
of Homeland Security knows, or has reason to believe, was
committed in support, promotion, or furtherance of the
activity of a criminal street gang (as defined under the law
of the jurisdiction where the conviction occurred or in
section 521(a) of title 18, United States Code);
``(vi) the alien has been convicted of an offense for
driving while intoxicated or impaired, as those terms are
defined under the law of the jurisdiction where the
conviction occurred (including a conviction for driving while
under the influence of or impaired by alcohol or drugs),
without regard to whether the conviction is classified as a
misdemeanor or felony under Federal, State, tribal, or local
law, in which such intoxicated or impaired driving was a
cause of serious bodily injury or death of another person;
``(vii) the alien has been convicted of more than one
offense for driving while intoxicated or impaired, as those
terms are defined under the law of the jurisdiction where the
conviction occurred (including a conviction for driving while
under the influence of or impaired by alcohol or drugs),
without regard to whether the conviction is classified as a
misdemeanor or felony under Federal, State, tribal, or local
law;
``(viii) the alien has been convicted of a crime--

``(I) that involves conduct amounting to a crime of
stalking;
``(II) of child abuse, child neglect, or child abandonment;
or
``(III) that involves conduct amounting to a domestic
assault or battery offense, including--

``(aa) a misdemeanor crime of domestic violence, as
described in section 921(a)(33) of title 18, United States
Code;
``(bb) a crime of domestic violence, as described in
section 40002(a)(12) of the Violence Against Women Act of
1994 (34 U.S.C. 12291(a)(12)); or
``(cc) any crime based on conduct in which the alien
harassed, coerced, intimidated, voluntarily or recklessly
used (or threatened to use) force or violence against, or
inflicted physical injury or physical pain, however slight,
upon a person--
``(AA) who is a current or former spouse of the alien;
``(BB) with whom the alien shares a child;
``(CC) who is cohabitating with, or who has cohabitated
with, the alien as a spouse;
``(DD) who is similarly situated to a spouse of the alien
under the domestic or family violence laws of the
jurisdiction where the offense occurred; or
``(EE) who is protected from that alien's acts under the
domestic or family violence laws of the United States or of
any State, tribal government, or unit of local government;
``(ix) the alien has engaged in acts of battery or extreme
cruelty upon a person and the person--

``(I) is a current or former spouse of the alien;
``(II) shares a child with the alien;
``(III) cohabitates or has cohabitated with the alien as a
spouse;
``(IV) is similarly situated to a spouse of the alien under
the domestic or family violence laws of the jurisdiction
where the offense occurred; or
``(V) is protected from that alien's acts under the
domestic or family violence laws of the United States or of
any State, tribal government, or unit of local government;

``(x) the alien, having been convicted by a final judgment
of a particularly serious crime, constitutes a danger to the
community of the United States;
``(xi) there are serious reasons for believing that the
alien has committed a serious nonpolitical crime outside the
United States prior to the arrival of the alien in the United
States;
``(xii) there are reasonable grounds for regarding the
alien as a danger to the security of the United States;
``(xiii) the alien is described in subclause (I), (II),
(III), (IV), or (VI) of section 212(a)(3)(B)(i) or section
237(a)(4)(B) (relating to terrorist activity), unless, in the
case only of an alien inadmissible under subclause (IV) of
section 212(a)(3)(B)(i), the Secretary of Homeland Security
or the Attorney General determines, in the Secretary's or the
Attorney General's discretion, that there are not reasonable
grounds for regarding the alien as a danger to the security
of the United States;
``(xiv) the alien was firmly resettled in another country
prior to arriving in the United States; or
``(xv) there are reasonable grounds for concluding the
alien could avoid persecution by relocating to another part
of the alien's country of nationality or, in the case of an
alien having no nationality, another part of the alien's
country of last habitual residence.
``(B) Special rules.--
``(i) Particularly serious crime; serious nonpolitical
crime outside the united states.--

``(I) In general.--For purposes of subparagraph (A)(x), the
Attorney General or Secretary of Homeland Security, in their
discretion, may determine that a conviction constitutes a
particularly serious crime based on--

``(aa) the nature of the conviction;
``(bb) the type of sentence imposed; or
``(cc) the circumstances and underlying facts of the
conviction.

``(II) Determination.--In making a determination under
subclause (I), the Attorney General or Secretary of Homeland
Security may consider all reliable information and is not
limited to facts found by the criminal court or provided in
the underlying record of conviction.
``(III) Treatment of felonies.--In making a determination
under subclause (I), an alien who has been convicted of a
felony (as defined under this section) or an aggravated
felony (as defined under section 101(a)(43)), shall be
considered to have been convicted of a particularly serious
crime.
``(IV) Interpol red notice.--In making a determination
under subparagraph (A)(xi),

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an Interpol Red Notice may constitute reliable evidence that
the alien has committed a serious nonpolitical crime outside
the United States.

``(ii) Crimes and exceptions.--

``(I) Driving while intoxicated or impaired.--A finding
under subparagraph (A)(vi) does not require the Attorney
General or Secretary of Homeland Security to find the first
conviction for driving while intoxicated or impaired
(including a conviction for driving while under the influence
of or impaired by alcohol or drugs) as a predicate offense.
The Attorney General or Secretary of Homeland Security need
only make a factual determination that the alien previously
was convicted for driving while intoxicated or impaired as
those terms are defined under the jurisdiction where the
conviction occurred (including a conviction for driving while
under the influence of or impaired by alcohol or drugs).
``(II) Stalking and other crimes.--In making a
determination under subparagraph (A)(viii), including
determining the existence of a domestic relationship between
the alien and the victim, the underlying conduct of the crime
may be considered, and the Attorney General or Secretary of
Homeland Security is not limited to facts found by the
criminal court or provided in the underlying record of
conviction.
``(III) Battery or extreme cruelty.--In making a
determination under subparagraph (A)(ix), the phrase `battery
or extreme cruelty' includes--

``(aa) any act or threatened act of violence, including any
forceful detention, which results or threatens to result in
physical or mental injury;
``(bb) psychological or sexual abuse or exploitation,
including rape, molestation, incest, or forced prostitution,
shall be considered acts of violence; and
``(cc) other abusive acts, including acts that, in and of
themselves, may not initially appear violent, but that are a
part of an overall pattern of violence.

``(IV) Exception for victims of domestic violence.--An
alien who was convicted of an offense described in clause
(viii) or (ix) of subparagraph (A) is not ineligible for
asylum on that basis if the alien satisfies the criteria
under section 237(a)(7)(A).

``(C) Specific circumstances.--Paragraph (1) shall not
apply to an alien whose claim is based on--
``(i) personal animus or retribution, including personal
animus in which the alleged persecutor has not targeted, or
manifested an animus against, other members of an alleged
particular social group in addition to the member who has
raised the claim at issue;
``(ii) the applicant's generalized disapproval of,
disagreement with, or opposition to criminal, terrorist,
gang, guerilla, or other non-state organizations absent
expressive behavior in furtherance of a discrete cause
against such organizations related to control of a State or
expressive behavior that is antithetical to the State or a
legal unit of the State;
``(iii) the applicant's resistance to recruitment or
coercion by guerrilla, criminal, gang, terrorist, or other
non-state organizations;
``(iv) the targeting of the applicant for criminal activity
for financial gain based on wealth or affluence or
perceptions of wealth or affluence;
``(v) the applicant's criminal activity; or
``(vi) the applicant's perceived, past or present, gang
affiliation.
``(D) Definitions and clarifications.--
``(i) Definitions.--In this paragraph:

``(I) Felony.--The term `felony' means--

``(aa) any crime defined as a felony by the relevant
jurisdiction (Federal, State, tribal, or local) of
conviction; or
``(bb) any crime punishable by more than one year of
imprisonment.

``(II) Misdemeanor.--The term `misdemeanor' means--

``(aa) any crime defined as a misdemeanor by the relevant
jurisdiction (Federal, State, tribal, or local) of
conviction; or
``(bb) any crime not punishable by more than one year of
imprisonment.
``(ii) Clarifications.--

``(I) Construction.--For purposes of this paragraph,
whether any activity or conviction also may constitute a
basis for removal is immaterial to a determination of asylum
eligibility.
``(II) Attempt, conspiracy, or solicitation.--For purposes
of this paragraph, all references to a criminal offense or
criminal conviction shall be deemed to include any attempt,
conspiracy, or solicitation to commit the offense or any
other inchoate form of the offense.
``(III) Effect of certain orders.--

``(aa) In general.--No order vacating a conviction,
modifying a sentence, clarifying a sentence, or otherwise
altering a conviction or sentence shall have any effect under
this paragraph unless the Attorney General or Secretary of
Homeland Security determines that--
``(AA) the court issuing the order had jurisdiction and
authority to do so; and
``(BB) the order was not entered for rehabilitative
purposes or for purposes of ameliorating the immigration
consequences of the conviction or sentence.
``(bb) Ameliorating immigration consequences.--For purposes
of item (aa)(BB), the order shall be presumed to be for the
purpose of ameliorating immigration consequences if--
``(AA) the order was entered after the initiation of any
proceeding to remove the alien from the United States; or
``(BB) the alien moved for the order more than one year
after the date of the original order of conviction or
sentencing, whichever is later.
``(cc) Authority of immigration judge.--An immigration
judge is not limited to consideration only of material
included in any order vacating a conviction, modifying a
sentence, or clarifying a sentence to determine whether such
order should be given any effect under this paragraph, but
may consider such additional information as the immigration
judge determines appropriate.
``(E) Additional limitations.--The Secretary of Homeland
Security or the Attorney General may by regulation establish
additional limitations and conditions, consistent with this
section, under which an alien shall be ineligible for asylum
under paragraph (1).
``(F) No judicial review.--There shall be no judicial
review of a determination of the Secretary of Homeland
Security or the Attorney General under subparagraph
(A)(xiii).''.
(b) Credible Fear Interviews.--Section 235(b)(1)(B)(v) of
the Immigration and Nationality Act (8 U.S.C.
1225(b)(1)(B)(v)) is amended by striking ``there is a
significant possibility'' and all that follows, and inserting
``, taking into account the credibility of the statements
made by the alien in support of the alien's claim, as
determined pursuant to section 208(b)(1)(B)(iii), and such
other facts as are known to the officer, the alien more
likely than not could establish eligibility for asylum under
section 208, and it is more likely than not that the
statements made by, and on behalf of, the alien in support of
the alien's claim are true.''.
______