115th CONGRESS 1st Session |
To amend the Immigration and Nationality Act to promote family unity, and for other purposes.
February 14, 2017
Mr. O'Rourke (for himself, Mr. Pearce, and Mr. Swalwell of California) introduced the following bill; which was referred to the Committee on the Judiciary
To amend the Immigration and Nationality Act to promote family unity, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the “American Families United Act”.
Congress finds the following:
(1) The rights and interests of U.S. citizens should be protected by our Nation’s immigration laws.
(2) It is the intent of Congress to provide the Attorney General and Secretary of Homeland Security with the limited ability to provide fairness to the spouses, children and parents of American citizens in immigration proceedings on a case-by-case basis.
SEC. 3. Rules of Construction.
Nothing in this Act shall be construed—
(1) to provide the Attorney General or the Secretary of Homeland Security with the ability to expand the discretionary authority beyond a case-by-case basis; or
(2) to provide, confirm or concur legalization or nationalization of persons covered under this Act, it is solely designed to address hardships incurred by a small minority of American families that are adversely affected by inadmissibility and deportation provisions that cause family separation.
SEC. 4. Waivers of inadmissibility.
(a) Aliens who entered as children.—Section 212(a)(9)(B)(iii) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(B)(iii)) is amended by adding at the end the following:
“(VI) ALIENS WHO ENTERED AS CHILDREN.—Clause (i) shall not apply to an alien who is the beneficiary of an approved petition under section 101(a)(15)(H) and who has earned a baccalaureate or higher degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), and had not yet reached the age of 16 years at the time of initial entry to the United States.”.
(b) Aliens unlawfully present.—Section 212(a)(9)(B)(v) of the Immigration and Nationality Act (8 U.S.C. 1181(a)(9)(B)(v)) is amended—
(1) by striking “spouse or son or daughter” and inserting “spouse, son, daughter, or parent”;
(2) by striking “extreme”; and
(3) by inserting “, child,” after “lawfully resident spouse”.
(c) Previous immigration violations.—Section 212(a)(9)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(C)(i)) is amended by adding “, other than an alien described in clause (iii) or (iv) of subparagraph (B),” after “Any alien”.
(A) IN GENERAL.—Section 212(a)(6)(C) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)) is amended to read as follows:
“(i) IN GENERAL.—Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or within the last 3 years has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.
“(ii) FALSELY CLAIMING CITIZENSHIP.—
“(I) INADMISSIBILITY.—Subject to subclause (II), any alien who knowingly misrepresents himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including section 274A) or any other Federal or State law is inadmissible.
“(II) SPECIAL RULE.—An alien shall not be inadmissible under this clause if the misrepresentation described in subclause (I) was made by the alien when the alien—
“(aa) was under 18 years of age; or
“(bb) otherwise lacked the mental competence to knowingly misrepresent a claim of United States citizenship.
“(iii) WAIVER.—The Attorney General or the Secretary of Homeland Security may, in the discretion of the Attorney General or the Secretary, waive the application of clause (i) or (ii)(I) for an alien, regardless whether the alien is within or outside the United States, if the Attorney General or the Secretary find that a determination of inadmissibility to the United States for such alien would—
“(I) result in hardship to the alien or to the alien’s parent, spouse, son, or daughter who is a citizen of the United States or an alien lawfully admitted for permanent residence; or
“(II) in the case of a VAWA self-petitioner, result in hardship to the alien or a parent or child of the alien who is a citizen of the United States, an alien lawfully admitted for permanent residence, or a qualified alien (as defined in section 431 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641(b))).
For purposes of this clause, family separation in and of itself shall be deemed to be a hardship.
“(iv) LIMITATION ON REVIEW.—No court shall have jurisdiction to review a decision or action of the Attorney General or the Secretary regarding a waiver under clause (iii).”.
(B) CONFORMING AMENDMENT.—Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is amended by striking subsection (i).
(2) DEPORTABILITY.—Section 237(a)(3)(D) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(3)(D)) is amended to read as follows:
“(D) FALSELY CLAIMING CITIZENSHIP.—Any alien described in section 212(a)(6)(C)(ii) is deportable.”.
(e) Definition of Conviction.—
(1) IN GENERAL.—Section 101(a)(48) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(48)) is amended by striking subparagraphs (A) and (B) and inserting the following:
“(A) The term ‘conviction’ means, with respect to an alien, a final, formal judgment of guilt entered by a court. Where a State or Federal court enters an adjudication or judgment of guilt that has been withheld, deferred, expunged, annulled, invalidated or vacated, or enters an order of probation without entry of judgment, or any similar disposition under State or Federal law such judgment or adjudication shall not be considered a conviction for purposes of this Act.
“(B) Any pardon entered by a State or Federal authority shall render the prior conviction null and void for all purposes under this Act.
“(C) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include only the actual period of incarceration or confinement ordered by a court of law. The suspension of the imposition or execution of that imprisonment or sentence in whole or in part shall not be included as a part of the sentence for purposes of this Act.”.
(2) EFFECTIVE DATE AND APPLICATION.—The amendments made by paragraph (1) shall take effect on the date of the enactment of this Act and shall apply to convictions and sentences entered before, on, or after the date of the enactment of this Act.
SEC. 5. Discretionary authority with respect to removal, deportation, ineligibility or inadmissibility of citizen and resident immediate family members.
(a) Applications for relief from removal.—Section 240(c)(4) of the Immigration and Nationality Act (8 U.S.C. 1229a(c)(4)) is amended by adding at the end the following:
“(D) JUDICIAL DISCRETION.—In the case of an alien subject to removal, deportation, ineligibility or inadmissibility, the immigration judge may exercise discretion to decline to order the alien removable, deportable, ineligible or inadmissible from the United States and terminate proceedings or grant permission to reapply for admission or any application for relief from removal if the judge determines that such removal, deportation, ineligibility or inadmissibility is against the public interest or would result in hardship to the alien’s United States citizen or lawful permanent resident parent, spouse, or child, or the judge determines the alien is prima facie eligible for naturalization except that this subparagraph shall not apply to an alien whom the judge determines—
“(i) is inadmissible or deportable under—
“(I) subparagraph (B), (C), (D)(ii), (E), (H), or (I) of section 212(a)(2);
“(II) section 212(a)(3);
“(III) subparagraph (A), (C), or (D) of section 212(a)(10); or
“(IV) paragraph (2)(A)(ii), (2)(A)(v), (2)(F), (4), or (6) of section 237(a); or
“(I) engaged in conduct described in paragraph (9) or (10) of section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102); or
“(II) a felony conviction described in section 101(a)(43) that would have been classified as an aggravated felony at the time of conviction.
For purposes of this subparagraph, family separation in and of itself shall be deemed to be a hardship and shall be deemed to be against the public interest.”.
(b) Secretary’s discretion.—Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is amended by adding at the end the following:
“(u) Secretary’s discretion.—In the case of an alien who is inadmissible under this section or deportable under section 237 or ineligible under any provision of this Act, the Secretary of Homeland Security may exercise discretion to waive a ground of ineligibility, inadmissibility or deportability or grant permission to reapply for admission or any application for immigration benefits if the Secretary determines that such ineligibility, removal or refusal of admission is against the public interest or would result in hardship, including family separation, to the alien’s United States citizen or permanent resident parent, spouse, or child. For purposes of this subsection, family separation in and of itself shall be deemed to be a hardship and shall be deemed to be against the public interest. This subsection shall not apply to an alien whom the Secretary determines—
“(1) is inadmissible or deportable under—
“(A) subparagraph (B), (C), (D)(ii), (E), (H), or (I) of subsection (a)(2);
“(B) subsection (a)(3);
“(C) subparagraph (A), (C), or (D) of subsection (a)(10);
“(D) paragraph (2)(A)(ii), (2)(A)(v), (2)(F), or (6) of section 237(a); or
“(E) section 240(c)(4)(D)(ii)(II); or
“(A) engaged in conduct described in paragraph (8) or (9) of section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102);
“(B) a felony conviction described in section 101(a)(43) that would have been classified as an aggravated felony at the time of conviction;”.
(c) Reinstatement of removal orders.—Section 241(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1231(a)(5)) is amended by striking the period at the end and inserting “, unless the alien reentered prior to attaining the age of 18 years, or reinstatement of the prior order of removal would not be in the public interest or would result in hardship, including family separation, to the alien’s United States citizen or permanent resident parent, spouse, or child.”.