Sec. 301. Border emergency authority
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Chapter 4 of title II of the Immigration and Nationality Act ( 8 U.S.C. 1221 et seq. ), as amended by section 146(a), is further amended by adding at the end the following: In order to respond to extraordinary migration circumstances, there shall be available to the Secretary, notwithstanding any other provision of law, a border emergency authority. The border emergency authority shall not be activated with respect to any of the following: A citizen or national of the United States.
An alien who is lawfully admitted for permanent residence. An unaccompanied alien child. 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. 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 )). An alien who has a valid visa or other lawful permission to enter the United States, including— 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; an alien who holds a valid travel document upon arrival at a port of entry; 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 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.
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. Whenever the border emergency authority is activated, the Secretary shall have the authority, in the Secretary’s sole and unreviewable discretion, to 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.
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.
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 or 240D, as appropriate.
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— section 241(b)(3); and the Convention Against Torture. 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— shall not be summarily removed; and shall instead be processed under section 240 or 240D, as appropriate. 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. If, in conducting such a secondary review, the supervisory asylum officer determines that the alien demonstrates eligibility for such protection— the supervisory asylum officer shall vacate the previous negative determination; and the alien shall instead be processed under section 240 or 240D. 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. The Secretary may activate the border emergency authority if, during a period of 7 consecutive calendar days, there is an average of 4,000 or more aliens who are encountered each day. The Secretary shall activate the border emergency authority if— during a period of 7 consecutive calendar days, there is an average of 5,000 or more aliens who are encountered each day; or on any 1 calendar day, a combined total of 8,500 or more aliens are encountered. For purposes of subparagraphs
(A)and (B), the average for the applicable 7-day period shall be calculated using— the sum of— the number of encounters that occur between the southwest land border ports of entry of the United States; the number of encounters that occur between the ports of entry along the southern coastal borders; and the number of inadmissible aliens encountered at a southwest land border port of entry as described in subsection (a)(2)(F)(iv); divided by 7. Aliens described in subsection (a)(2)(C) from noncontiguous countries shall not be included in calculating the sum of aliens encountered. For purposes of paragraph (3), the Secretary shall not activate the border emergency authority— during the first calendar year after the effective date, for more than 270 calendar days; during the second calendar year after the effective date, for more than 225 days; and during the third calendar year, for more than 180 calendar days. When the authority is activated, the Secretary shall implement the authority within 24 hours of such activation. The Secretary shall suspend activation of the border emergency authority, and the procedures under subsections (a), (b), (c), and (d), not later than 14 calendar days after the date on which the following occurs, as applicable: In the case of an activation under subparagraph
(A)of paragraph (3), there is during a period of 7 consecutive calendar days an average of less than 75 percent of the encounter level used for activation. In the case of an activation under clause
(i)or
(ii)of paragraph (3)(B), there is during a period of 7 consecutive calendar days an average of less than 75 percent of the encounter level described in such clause (i). Notwithstanding paragraph (3), beginning the first calendar year after the effective date, the Secretary shall only have the authority to activate the border emergency authority for 270 calendar days during the calendar year, provided that— for the first 90 calendar days in which any of the requirements of paragraph
(3)have been satisfied, the Secretary shall be required to activate such authority; for the remaining 180 days that the authority is available in the calendar year, the Secretary may, in the sole, unreviewable, and exclusive discretion of the Secretary, determine whether to activate the requirements of the border emergency authority under paragraph (3)(B) until the number of days that the authority has not been activated is equal to the number of days left in the calendar year; and when the number of calendar days remaining in the calendar year is equal to the number of days that the authority has not been activated, the Secretary shall be required to activate the border emergency authority for the remainder of the calendar year on days during which the requirements of paragraph (3)(B) have been satisfied. Notwithstanding paragraph (3), beginning the second calendar year after the effective date, the Secretary shall only have the authority to activate the border emergency authority for 225 calendar days during the calendar year, provided that— during the first 75 calendar days during which any of the requirements of paragraph
(3)have been satisfied, the Secretary shall be required to activate the authority; for the remaining 150 days that the authority is available in the calendar year, the Secretary may, in the sole, unreviewable, and exclusive discretion of the Secretary, determine whether to activate the requirements of the border emergency authority under paragraph (3)(B) until the number of days that the authority has not been activated is equal to the number of days left in the calendar year; and when the number of calendar days remaining in the calendar year is equal to the number of days that the authority has not been activated, the Secretary shall be required to activate the border emergency authority for the remainder of the calendar year on days during which the requirements of paragraph (3)(B) have been satisfied. Notwithstanding paragraph (3), beginning the third calendar year after the effective date, the Secretary shall only have the authority to activate the border emergency authority for 180 calendar days during the calendar year, provided that— during the first 60 calendar days during which any of the requirements of paragraph
(3)have been satisfied, the Secretary shall be required to activate the authority; for the remaining 120 days that the authority is available in each calendar year, the Secretary may, in the sole, unreviewable, and exclusive discretion of the Secretary, determine whether to activate the requirements of the border emergency authority under paragraph (3)(B) until the number of days that the authority has not been activated is equal to the number of days left in the calendar year; and when the number of calendar days remaining in the calendar year is equal to the number of days that the authority has not been activated, the Secretary shall be required to activate the border emergency authority for the remainder of the calendar year on days during which the requirements of paragraph (3)(B) have been satisfied. If the President finds that it is in the national interest to temporarily suspend the border emergency authority, the President may direct the Secretary to suspend use of the border emergency authority on an emergency basis. In the case of a direction from the President under subparagraph (A), the Secretary shall suspend the border emergency authority for not more than 45 calendar days within a calendar year, notwithstanding any limitations on the use of the authority described in this subsection. During any activation of the border emergency authority under subsection (b), the Secretary shall maintain the capacity to process, and continue processing, under section 235 or 235B a minimum of 1,400 inadmissible aliens each calendar day cumulatively across all southwest land border ports of entry in a safe and orderly process developed by the Secretary. For the purpose of calculating the number under paragraph (1), the Secretary shall count all unaccompanied alien children, who are nationals of contiguous countries, processed at southwest land border ports of entry, but shall not count such children who are nationals of noncontiguous countries. The provisions of section 244A(c) shall apply to this section. 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. Nothing in this section may be construed to interfere with the processing of unaccompanied alien children and such children are not subject to this section. Nothing in this section may be construed to interfere with any rights or responsibilities established through a settlement agreement in effect before the date of the enactment of this section. 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. Judicial review of any decision or action applying the border emergency authority shall be governed only by this subsection as follows: 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. The United States District Court for the District of Columbia 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. This section shall take effect on the day after the date of the enactment of this section. 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. 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. 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. 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. In this section: The term border emergency authority means all authorities and procedures under this section. 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. With respect to an alien, the term encounter means an alien who— is physically apprehended by U.S. Customs and Border Protection personnel— 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 at the southern coastal borders during the 14-day period immediately after entry between ports of entry; or 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. The term Secretary means the Secretary of Homeland Security. The term southern coastal borders means all maritime borders in California, Texas, Louisiana, Mississippi, Alabama, and Florida. The term unaccompanied alien child has the meaning given such term in section 462(g)(2) of the Homeland Security Act of 2002 ( 6 U.S.C. 279(g)(2) ). This section— shall take effect on the date of the enactment of this section; and shall be repealed effective as of the date that is 3 years after such date of enactment. . The table of contents of the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. ), as amended by section 146(b), is further amended by inserting after the item relating to section 244A the following: Sec. 244B Border emergency authority. .
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