S.744 Immigration bill - Sec. 2104: ADDITIONAL REQUIREMENTS
Posted Wed, Apr 17, 2013 at 4:56 pm
- (a) In General- Chapter 5 of title II (8 U.S.C. 1255 et
seq.) is amended by inserting after section 245C, as added by section
2102 of this title, the following:
`SEC. 245E. ADDITIONAL REQUIREMENTS RELATING TO REGISTERED PROVISIONAL IMMIGRANTS AND OTHERS.
- `(a) Disclosures-
- `(1) PROHIBITED DISCLOSURES- Except as otherwise
provided in this subsection, no officer or employee of any Federal
- `(A) use the information furnished in an
application for lawful status under section 245B, 245C, or 245D for any
purpose other than to make a determination on any application by the
alien for any immigration benefit or protection;
- `(B) make any publication through which information furnished by any particular applicant can be identified; or
- `(C) permit anyone other than the sworn officers,
employees, and contractors of such agency or of another entity approved
by the Secretary of Homeland Security to examine individual applications
that have been filed under either such section.
- `(2) REQUIRED DISCLOSURES- The Secretary shall provide
the information furnished in an application filed under section 245B,
245C, or 245D and any other information derived from such furnished
- `(A) a law enforcement agency, intelligence agency,
national security agency, component of the Department of Homeland
Security, court, or grand jury if such information is requested by such
entity, consistent with law, in connection with--
- `(i) a criminal investigation or prosecution of any matter not related to the applicant's immigration status; or
- `(ii) a national security investigation or prosecution; and
- `(B) an official coroner for purposes of
affirmatively identifying a deceased individual, whether or not the
death of such individual resulted from a crime.
- `(3) AUDITING AND EVALUATION OF INFORMATION- The Secretary may--
- `(A) audit and evaluate information furnished as
part of any application filed under section 245B, 245C, or 245D for
purposes of identifying immigration fraud or fraud schemes; and
- `(B) use any evidence detected by means of audits
and evaluations for purposes of investigating, prosecuting, referring
for prosecution, or denying or terminating immigration benefits.
- `(b) Employer Protections-
- `(1) USE OF EMPLOYMENT RECORDS- Copies of employment
records or other evidence of employment provided by an alien or by an
alien's employer in support of an alien's application for registered
provisional immigrant status under section 245B may not be used in a
civil or criminal prosecution or investigation of that employer under
section 274A or the Internal Revenue Code of 1986 for the prior unlawful
employment of that alien regardless of the adjudication of such
application or reconsideration by the Secretary of Homeland Security of
such alien's prima facie eligibility determination. Employers that
provide unauthorized aliens with copies of employment records or other
evidence of employment pursuant to an application for registered
provisional immigrant status shall not be subject to civil and criminal
liability pursuant to section 274A for employing such unauthorized
- `(2) LIMIT ON APPLICABILITY- The protections for
employers and aliens under paragraph (1) shall not apply if the aliens
or employers submit employment records that are deemed to be fraudulent.
- `(c) Administrative Review-
- `(1) EXCLUSIVE ADMINISTRATIVE REVIEW- Administrative
review of a determination respecting an application for status under
section 245B, 245C, or 245D shall be conducted solely in accordance with
- `(2) ADMINISTRATIVE APPELLATE REVIEW-
- `(A) ESTABLISHMENT OF ADMINISTRATIVE APPELLATE
AUTHORITY- The Secretary of Homeland Security shall establish or
designate an appellate authority to provide for a single level of
administrative appellate review of a determination with respect to
applications for, or revocation of, status under sections 245B, 245C,
- `(B) SINGLE APPEAL FOR EACH ADMINISTRATIVE DECISION-
- `(i) IN GENERAL- An alien in the United States
whose application for status under section 245B, 245C, or 245D has been
denied or revoked may file with the Secretary not more than 1 appeal of
each decision to deny or revoke such status.
- `(ii) NOTICE OF APPEAL- A notice of appeal
filed under this subparagraph shall be filed not later than 90 days
after the date of service of the decision of denial or revocation,
unless the delay was reasonably justifiable.
- `(C) REVIEW BY SECRETARY- Nothing in this paragraph
may be construed to limit the authority of the Secretary to certify
appeals for review and final administrative decision.
- `(D) DENIAL OF PETITIONS FOR DEPENDENTS- Appeals of
a decision to deny or revoke a petition filed by a registered
provisional immigrant pursuant to regulations promulgated under section
245B to classify a spouse or child of such alien as a registered
provisional immigrant shall be subject to the administrative appellate
authority described in subparagraph (A).
- `(E) STAY OF REMOVAL- Aliens seeking administrative
review shall not be removed from the United States until a final
decision is rendered establishing ineligibility for status under section
245B, 245C, or 245D.
- `(3) RECORD FOR REVIEW- Administrative appellate review under paragraph (2) shall be de novo and based solely upon--
- `(A) the administrative record established at the time of the determination on the application; and
- `(B) any additional newly discovered or previously unavailable evidence.
- `(4) UNLAWFUL PRESENCE- During the period in which an
alien may request administrative review under this subsection, and
during the period that any such review is pending, the alien shall not
be considered `unlawfully present in the United States' for purposes of
- `(d) Privacy and Civil Liberties-
- `(1) IN GENERAL- The Secretary, in accordance with
subsection (a)(1), shall require appropriate administrative and physical
safeguards to protect the security, confidentiality, and integrity of
personally identifiable information collected, maintained, and
disseminated pursuant to sections 245B, 245C, and 245D.
- `(2) ASSESSMENTS- Notwithstanding the privacy
requirements set forth in section 222 of the Homeland Security Act (6
U.S.C. 142) and the E-Government Act of 2002 (Public Law 107-347), the
Secretary shall conduct a privacy impact assessment and a civil
liberties impact assessment of the legalization program established
under sections 245B, 245C, and 245D during the pendency of the interim
final regulations required to be issued under section 2110 of the Border
Security, Economic Opportunity, and Immigration Modernization Act.'.
- (b) Judicial Review- Section 242 (8 U.S.C. 1252) is amended--
- (1) in subsection (a)(2)--
- (A) in subparagraph (B), by inserting `the exercise
of discretion arising under' after `no court shall have jurisdiction to
- (B) in subparagraph (D), by striking `raised upon a
petition for review filed with an appropriate court of appeals in
accordance with this section';
- (2) in subsection (b)(2), by inserting `or, in the case
of a decision rendered under section 245E(c), in the judicial circuit
in which the petitioner resides' after `proceedings'; and
- (3) by adding at the end the following:
- `(h) Judicial Review of Eligibility Determinations Relating to Status Under Chapter 5-
- `(1) DIRECT REVIEW- If an alien's application under
section 245B, 245C, or 245D is denied, or is revoked after the
exhaustion of administrative appellate review under section 245E(c), the
alien may seek review of such decision, in accordance with chapter 7 of
title 5, United States Code, before the United States district court
for the district in which the person resides.
- `(2) STATUS DURING REVIEW- While a review described in paragraph (1) is pending--
- `(A) the alien shall not be deemed to accrue unlawful presence for purposes of section 212(a)(9);
- `(B) any unexpired grant of voluntary departure under section 240B shall be tolled; and
- `(C) the court shall have the discretion to stay the execution of any order of exclusion, deportation, or removal.
- `(3) REVIEW AFTER REMOVAL PROCEEDINGS- An alien may
seek judicial review of a denial or revocation of approval of the
alien's application under section 245B, 245C, or 245D in the appropriate
United States court of appeal in conjunction with the judicial review
of an order of removal, deportation, or exclusion if the validity of the
denial has not been upheld in a prior judicial proceeding under
- `(4) STANDARD FOR JUDICIAL REVIEW-
- `(A) BASIS- Judicial review of a denial, or
revocation of an approval, of an application under section 245B, 245C,
or 245D shall be based upon the administrative record established at the
time of the review.
- `(B) AUTHORITY TO REMAND- The reviewing court may
remand a case under this subsection to the Secretary of Homeland
Security for consideration of additional evidence if the court finds
- `(i) the additional evidence is material; and
- `(ii) there were reasonable grounds for failure to adduce the additional evidence before the Secretary.
- `(C) SCOPE OF REVIEW- Notwithstanding any other
provision of law, judicial review of all questions arising from a
denial, or revocation of an approval, of an application under section
245B, 245C, or 245D shall be governed by the standard of review set
forth in section 706 of title 5, United States Code.
- `(5) REMEDIAL POWERS-
- `(A) JURISDICTION- Notwithstanding any other
provision of law, the United States district courts shall have
jurisdiction over any cause or claim arising from a pattern or practice
of the Secretary of Homeland Security in the operation or implementation
of the Border Security, Economic Opportunity, and Immigration
Modernization Act, or the amendments made by such Act, that is
arbitrary, capricious, or otherwise contrary to law.
- `(B) SCOPE OF RELIEF- The United States district
courts may order any appropriate relief in a clause or claim described
in subparagraph (A) without regard to exhaustion, ripeness, or other
standing requirements (other than constitutionally-mandated
requirements), if the court determines that--
- `(i) the resolution of such cause or claim will serve judicial and administrative efficiency; or
- `(ii) a remedy would otherwise not be reasonably available or practicable.
- `(6) CHALLENGES TO THE VALIDITY OF THE SYSTEM-
- `(A) IN GENERAL- Except as provided in paragraph
(5), any claim that section 245B, 245C, 245D, or 245E or any regulation,
written policy, or written directive, issued or unwritten policy or
practice initiated by or under the authority of the Secretary of
Homeland Security to implement such sections, violates the Constitution
of the United States or is otherwise in violation of law is available
exclusively in an action instituted in United States District Court in
accordance with the procedures prescribed in this paragraph.
- `(B) SAVINGS PROVISION- Except as provided in
subparagraph (C), nothing in subparagraph (A) may be construed to
preclude an applicant under 245B, 245C, or 245D from asserting that an
action taken or a decision made by the Secretary with respect to the
applicant's status was contrary to law.
- `(C) CLASS ACTIONS- Any claim described in
subparagraph (A) that is brought as a class action shall be brought in
- `(i) the Class Action Fairness Act of 2005 (Public Law 109-2); and
- `(ii) the Federal Rules of Civil Procedure.
- `(D) PRECLUSIVE EFFECT- The final disposition of
any claim brought under subparagraph (A) shall be preclusive of any such
claim asserted by the same individual in a subsequent proceeding under
- `(E) EXHAUSTION AND STAY OF PROCEEDINGS-
- `(i) IN GENERAL- No claim brought under this
paragraph shall require the plaintiff to exhaust administrative remedies
under section 245E(c).
- `(ii) STAY AUTHORIZED- Nothing in this
paragraph may be construed to prevent the court from staying proceedings
under this paragraph to permit the Secretary to evaluate an allegation
of an unwritten policy or practice or to take corrective action. In
determining whether to issue such a stay, the court shall take into
account any harm the stay may cause to the claimant.'.
- (c) Rule of Construction- Section 244(h) shall not limit
the authority of the Secretary to adjust the status of an alien under
section 245C or 245D of the Immigration and Nationality Act, as added by
- (d) Effect of Failure to Register on Eligibility for
Immigration Benefits- Failure to comply with section 264.1(f) of title
8, Code of Federal Regulations or with removal orders or voluntary
departure agreements based on such section for acts committed before the
date of the enactment of this Act shall not affect the eligibility of
an alien to apply for a benefit under the Immigration and Nationality
Act (8 U.S.C. 1101 et seq.).
- (e) Clerical Amendment- The table of contents is amended by inserting after the item relating to section 245A the following:
- `Sec. 245B. Adjustment of status of eligible entrants before December 31, 2011, to that of registered provisional immigrant.
- `Sec. 245C. Adjustment of status of registered provisional immigrants.
- `Sec. 245D. Adjustment of status for certain aliens who entered the United States as children.
- `Sec. 245E. Additional requirements relating to registered provisional immigrants and others.'.