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SEC. _03. ADMINISTRATIVE REVIEW, REMOVAL PROCEEDINGS, AND JUDICIAL REVIEW FORALIENS WHO HAVE APPLIED FOR LEGAL STATUS.

(a) ADMINISTRATIVE REVIEW FOR ALIENS WHOHAVE APPLIED FOR STATUS UNDER THIS TITLE."

(1) EXCLUSIVE REVIEW."Administrative reviewof a determination respecting nonimmigrantstatus under this title shall be conducted solely inaccordance with this subsection.

(2) ADMINISTRATIVE APPELLATE REVIEW."Except as provided in subsection (b)(2), an alienwhose status under this title has been denied, terminated,or revoked may file not more than one appeal.of the denial, termination, or rescission with the Secretarynot later than 30 calendar days after the dateof the decision or mailing thereof, whichever occurslater in time. The Secretary shall establish an appellateauthority to provide for a single level of administrativeappellate review of a denial, termination, orrescission of status under this Act.

(3) STANDARD FOR REVIEW."Such administrativeappellate review shall be based solely upon theadministrative record established at the time of thedetermination on the application and upon such additionalnewly discovered or previously unavailableevidence as the administrative appellate review authoritymay decide to consider at the time of the determination.

(4) LIMITATION ON MOTIONS TO REOPEN ANDRECONSIDER."During the administrative appellatereview process the alien may file not more than onemotion to reopen or to reconsider. The Secretary'sdecision whether to consider any such motion iscommitted to the Secretary's discretion.

(b) REMOVAL OF ALIENS WHO HAVE BEEN DENIEDSTATUS UNDER THIS TITLE."

(1) SELF-INITIATED REMOVAL."Any alien whoreceives a denial under subsection (a) may request,.not later than 30 calendar days after the date of thedenial or the mailing thereof, whichever occurs laterin time, that the Secretary place the alien in removalproceedings. The Secretary shall place the alien inremoval proceedings to which the alien would otherwisebe subject, unless the alien is subject to an administrativelyfinal order of removal, provided thatno court shall have jurisdiction to review the timingof the Secretary's initiation of such proceedings. Ifthe alien is subject to an administratively final orderof removal, the alien may seek review of the denialunder this section pursuant to subsection (h) of sectionof the Immigration and Nationality Act (8U.S.C. 1252), as added by subsection (c), as thoughthe order of removal had been entered on the dateof the denial, provided that the court shall not reviewthe order of removal except as otherwise providedby law.

(2) ALIENS WHO ARE DETERMINED TO BE INELIGIBLEDUE TO CRIMINAL CONVICTIONS."

(A) AGGRAVATED FELONS."Notwithstandingany other provision of this Act, analien whose application for status under thistitle has been denied or whose status has beenterminated or revoked by the Secretary under.subclause (II) of subsection 601(d)(1)(A)(vi) because the alien has been convicted of an aggravatedfelony (as defined in section101(a)(43) of the Immigration and NationalityAct (8 U.S.C. 1101(a)(43))) may be placedforthwith in proceedings pursuant to section238(b) of such Act (8 U.S.C. 1228(b)).

(B) OTHER CRIMINALS."Notwithstandingany other provision of this Act, any other alienwhose application for status under this title hasbeen denied or whose status has been terminatedor revoked by the Secretary under subclause

(I), (III), or (IV) of section601(d)(1)(A)(vi) may be placed immediately inremoval proceedings under section 240 of theImmigration and Nationality Act (8 U.S.C.1229a).

(C) FINAL DENIAL, TERMINATION, OR RE-SCISSION."The Secretary's denial, termination,or rescission of the status of any alien describedin subparagraph (A) or (B) shall be final forpurposes of subsection (h)(3)(C) of section 242of the Immigration and Nationality Act, asadded by subsection (c), and shall represent theexhaustion of all review procedures for purposes.of subsection (h) or (o) of section 601, notwithstandingsubsection (a)(2) of this section.

(3) LIMITATION ON MOTIONS TO REOPEN ANDRECONSIDER."During the removal process underthis subsection the alien may file not more than 1motion to reopen or to reconsider. The Secretary'sor Attorney General's decision whether to considerany such motion is committed to the discretion ofthe Secretary or the Attorney General, as appropriate.

(c) JUDICIAL REVIEW."Section 242 of the Immigrationand Nationality Act (8 U.S.C. 1252) is amended byadding at the end the following new subsection:''(h) JUDICIAL REVIEW OF ELIGIBILITY DETERMINATIONSRELATING TO STATUS UNDER THE SECURE BORDERS,ECONOMIC OPPORTUNITY AND IMMIGRATION REFORMACT OF 2007."''(1) EXCLUSIVE REVIEW."Notwithstandingany other provision of law, including section 2241 oftitle 28, United States Code, or any other habeascorpus provision, and sections 1361 and 1651 ofsuch title, and except as provided in this subsection,no court shall have jurisdiction to review a determinationrespecting an application for status undertitle ll of the Secure Borders, Economic Oppor.tunity and Immigration Reform Act of 2007, including,without limitation, a denial, termination, or rescissionof such status.''(2) NO REVIEW FOR LATE FILINGS."An alienmay not file an application for status under titlell of the Secure Borders, Economic Opportunityand Immigration Reform Act of 2007 beyond the periodfor receipt of such applications established bysection l01(f) of that Act. The denial of any applicationfiled beyond the expiration of the period establishedby that subsection shall not be subject tojudicial review or remedy.''(3) REVIEW OF A DENIAL, TERMINATION, ORRESCISSION OF STATUS."A denial, termination, orrescission of status under section l01 of the SecureBorders, Economic Opportunity and ImmigrationReform Act of 2007 may be reviewed only in conjunctionwith the judicial review of an order of removalunder this section, provided that"''(A) the venue provision set forth in subsection (b)(2) shall govern;''(B) the deadline for filing the petition forreview in subsection (b)(1) shall control;''(C) the alien has exhausted all administrative remedies available to the alien as of.right, including the timely filing of an administrativeappeal pursuant to section l03(a) ofthe Secure Borders, Economic Opportunity andImmigration Reform Act of 2007;''(D) the court shall decide a challenge tothe denial of status only on the administrativerecord on which the Secretary's denial, termination,or rescission was based;''(E) notwithstanding any other provisionof law, including section 2241 of title 28,United States Code, or any other habeas corpusprovision, and sections 1361 and 1651 of suchtitle, no court reviewing a denial, termination,or rescission of status under title ll of theSecure Borders, Economic Opportunity and ImmigrationReform Act of 2007 may review anydiscretionary decision or action of the Secretaryregarding any application for or termination orrescission of such status; and''(F) an alien may file not more than 1motion to reopen or to reconsider in proceedingsbrought under this section.''(4) STANDARD FOR JUDICIAL REVIEW."Judicial review of the Secretary of Homeland Security'sdenial, termination, or rescission of status under.title ll of the Secure Borders, Economic Opportunityand Immigration Reform Act of 2007 relatingto any alien shall be based solely upon the administrativerecord before the Secretary when the Secretaryenters a final denial, termination, or rescission.The administrative findings of fact are conclusiveunless any reasonable adjudicator would be compelledto conclude to the contrary. The legal determinationsare conclusive unless manifestly contraryto law.''(5) CHALLENGES ON VALIDITY OF THE SYSTEM."''(A) IN GENERAL."Any claim that titlell of the Secure Borders, Economic Opportunityand Immigration Reform Act of 2007, orany regulation, written policy, or written directiveissued or unwritten policy or practice initiatedby or under the authority of the Secretaryof Homeland Security to implement such title,violates the Constitution of the United States oris otherwise in violation of law, is available exclusivelyin an action instituted in the UnitedStates District Court for the District of Columbiain accordance with the procedures prescribedin this paragraph. Nothing in this sub.paragraph shall preclude an applicant for statusunder such title from asserting that an actiontaken or decision made by the Secretary withrespect to the applicant's status under suchtitle was contrary to law in a proceeding undersection l03 of the Secure Borders, EconomicOpportunity and Immigration Reform Act ofand subsection (b)(2) of this section.''(B) DEADLINES FOR BRINGING AC-TIONS."Any action instituted under this paragraph"''(i) shall, if it asserts a claim thattitle llof the Secure Borders, EconomicOpportunity and Immigration Reform Actof 2007 or any regulation, written policy,or written directive issued by or under theauthority of the Secretary to implementsuch title violates the Constitution or isotherwise unlawful, be filed not later thanyear after the date of the publication orpromulgation of the challenged regulation,policy, or directive or, in cases challengingthe validity of such Act, not later than 1year after the date of the enactment ofsuch Act; and.''(ii) shall, if it asserts a claim that anunwritten policy or practice initiated by orunder the authority of the Secretary violatesthe Constitution or is otherwise unlawful,be filed not later than 1 year afterthe plaintiff knew or reasonably shouldhave known of the unwritten policy orpractice.''(C) CLASS ACTIONS."Any claim described in subparagraph (A) that is brought asa class action shall be brought in conformitywith the Class Action Fairness Act of 2005

(Public Law 109-2; 119 Stat. 4), the amendmentsmade by that Act, and the Federal Rulesof Civil Procedure.''(D) PRECLUSIVE EFFECT."The final dispositionof any claim brought under subparagraph

(A) shall be preclusive of any such claimasserted in a subsequent proceeding under thissubsection or under section l03 of the SecureBorders, Economic Opportunity and ImmigrationReform Act of 2007.''(E) EXHAUSTION AND STAY OF PRO-CEEDINGS."No claim brought under this paragraphshall require the plaintiff to exhaust ad.ministrative remedies under section l03 of theSecure Borders, Economic Opportunity and ImmigrationReform Act of 2007, but nothingshall prevent the court from staying proceedingsunder this paragraph to permit theSecretary to evaluate an allegation of an unwrittenpolicy or practice or to take correctiveaction. In issuing such a stay, the court shalltake into account any harm the stay may causeto the claimant. The court shall have no authorityto stay proceedings initiated under any othersection of this Act.''.

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2007-06-27 11:04:17

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