About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


1 1 (October 30, 2023)

handle is hein.crs/govenhq0001 and id is 1 raw text is: Congressional Research Service neInforming the IegisIative debate since 1914 October 30, 2023 The Secure the Border Act (H.R. 2): Asylum-Related Reforms On May 11, 2023, the House passed the Secure the Border Act of 2023 (H.R. 2). The bill would, among other things, make significant changes to federal immigration laws with respect to border security, asylum, and detention. On September 14, 2023, a companion bill was introduced in the Senate (S. 2824). This In Focus examines H.R. 2, focusing specifically on provisions governing asylum, applicants for admission, and parole. Statutory Background Asylum Under 8 U.S.C. § 1158, any alien who is physically present or arriving in the United States (whether or not at a U.S. port of entry) may apply for asylum, regardless of the alien's status. To qualify for asylum, an applicant must show past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Applicants for Admission and Parole A separate statute, 8 U.S.C. § 1225(b), covers applicants for admission. Under § 1225(b)(1), the Department of Homeland Security (DHS) may place an alien encountered at or near the border who is inadmissible for lack of valid entry documents in expedited removal proceedings. If, after being placed in proceedings, the alien indicates an intent to seek asylum and shows a credible fear of persecution, the alien is typically placed in formal removal proceedings before an immigration judge for consideration of the alien's applications for asylum and related protections. Section 1225(b) generally requires applicants for admission who are either placed in expedited proceedings or placed directly in formal removal proceedings under § 1225(b)(2) to be detained. DHS has authority to release some aliens from custody, including under § 1182(d)(5)(A), which authorizes parole of applicants for admission into the United States temporarily on a case-by-case basis for urgent humanitarian reasons or significant public benefit. In addition, § 1225(b)(2)(C) authorizes DHS to return an alien arriving by land from a foreign contiguous territory (e.g., Mexico) to that territory pending the outcome of formal removal proceedings. This return authority applies only to arriving aliens placed directly in formal removal proceedings under § 1225(b)(2). The Secure the Border Act The House-passed Secure the Border Act would change current laws governing who may apply for or qualify for asylum, and it would limit the ability of arriving aliens to be released from custody into the United States pending the outcome of their removal proceedings. Asylum Section 101 of H.R. 2, Division B, would expand the classes of aliens who are ineligible to pursue asylum. Currently, under § 1158(a)(2), these ineligible aliens include those who fail to file their applications within one year of arrival in the United States (subject to exceptions); those who previously applied for asylum; and those who may be removed under a bilateral or multilateral agreement to a safe third country to seek asylum. Section 101 would amend the statute to make an alien ineligible to apply for asylum if DHS determines the alien can be removed to a safe third country whether or not there is a formal agreement with that country. Section 101 would also make an alien ineligible to pursue asylum if the alien entered, attempted to enter, or arrived in the United States after transiting through at least one third country (other than the alien's country of citizenship, nationality, or last habitual residence). This transit bar would be subject to exceptions, including if the alien had applied for protection in at least one third country and had been denied, or if the alien was a victim of human trafficking. For aliens placed in expedited removal proceedings, Section 102 would change the credible fear of persecution standard. Currently, a credible fear of persecution is statutorily defined as a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum. Section 102 would define credible fear of persecution as a showing that the alien more likely than not could establish eligibility for asylum under [8 U.S.C. § 1158], 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. Section 103 would require an alien to either be physically present in the United States or to have arrived at a U.S. port of entry in order to apply for asylum. Section 1158(a)(1) currently allows any alien arriving in the United States to pursue asylum regardless of manner of entry. Section 104 would expand the categories of aliens who may not be granted asylum. Under § 1158(b)(2), these categories currently include, among others, those who have persecuted others, have been convicted of a particularly serious crime, have engaged in terrorist-related activities, or were firmly resettled in another country before arriving in the United States. The statute does not define a particularly serious crime, but provides that an alien who has been