[House Report 107-254]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 107-254
======================================================================
TO EXTEND ELIGIBILITY FOR REFUGEE STATUS OF UNMARRIED SONS AND
DAUGHTERS OF CERTAIN VIETNAMESE REFUGEES
_______
October 29, 2001.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 1840]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1840) to extend eligibility for refugee status of
unmarried sons and daughters of certain Vietnamese refugees,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Oversight Findings..................................... 4
Performance Goals and Objectives................................. 4
New Budget Authority and Tax Expenditures........................ 4
Congressional Budget Office Cost Estimate........................ 4
Constitutional Authority Statement............................... 5
Section-by-Section Analysis and Discussion....................... 5
Agency Views..................................................... 7
Markup Transcript................................................ 13
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. ELIGIBILITY FOR REFUGEE STATUS.
(a) Eligibility for In-Country Refugee Processing in Vietnam.--For
purposes of eligibility for in-country refugee processing for nationals
of Vietnam during fiscal years 2002 and 2003, an alien described in
subsection (b) shall be considered to be a refugee of special
humanitarian concern to the United States (within the meaning of
section 207 of the Immigration and Nationality Act (8 U.S.C. 1157)) and
shall be admitted to the United States for resettlement if the alien
would be admissible as an immigrant under the Immigration and
Nationality Act (except as provided in section 207(c)(3) of that Act).
(b) Aliens Covered.--An alien described in this subsection is an
alien who--
(1) is the son or daughter of a qualified national;
(2) is 21 years of age or older; and
(3) was unmarried as of the date of acceptance of the
alien's parent for resettlement under the Orderly Departure
Program or through the United States Consulate General in Ho
Chi Minh City.
(c) Qualified National.--The term ``qualified national'' in
subsection (b)(1) means a national of Vietnam who--
(1)(A) was formerly interned in a re-education camp in
Vietnam by the Government of the Socialist Republic of Vietnam;
or
(B) is the widow or widower of an individual described in
subparagraph (A);
(2)(A) qualified for refugee processing under the Orderly
Departure Program re-education subprogram; and
(B) is or was accepted under the Orderly Departure Program
or through the United States Consulate General in Ho Chi Minh
City--
(i) for resettlement as a refugee; or
(ii) for admission to the United States as an
immediate relative immigrant; and
(3)(A) is presently maintaining a residence in the United
States or whose surviving spouse is presently maintaining such
a residence; or
(B) was approved for refugee resettlement or immigrant visa
processing and is awaiting departure formalities from Vietnam
or whose surviving spouse is awaiting such departure
formalities.
Purpose and Summary
The purpose of this Act is to extend eligibility for
refugee status of unmarried sons and daughters of certain
Vietnamese refugees. The Act extends the time period that the
State Department and the Immigration and Naturalization Service
(INS) have to process eligible adult, unmarried sons and
daughters through fiscal year 2003. It removes the date of
April 1, 1995, imposed by the McCain Amendment,\1\ so that the
cases of sons and daughters processed after April 1, 1995, are
adjudicated in the same manner as those cases processed prior
to that date. The Act permits the INS to reconsider cases that
were previously denied for failure of proof of family
relationship, rather than just those cases that were denied
based on the issue of co-habitation with the principal alien.
Finally, the Act expands eligibility to adult, unmarried sons
and daughters whose principal parent has died, but whose
surviving parent is maintaining a residence in the United
States or is awaiting departure formalities from Vietnam.
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\1\ Sec. 584 of the Foreign Operations, Export Financing, and
Related Programs Appropriations Act, 1997, Division A of H.R. 3610;
Pub. L. No. 104-208; 110 Stat. 3009-171.
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Background and Need for the Legislation
Background
The Orderly Departure Program (ODP) was established in 1979
to give eligible nationals of Vietnam an alternative method of
emigrating to a foreign country, rather than undertake illegal,
hazardous departures by boat or land. In 1989, the INS began
adjudicating applications for refugee status in Vietnam for
certain Vietnamese nationals who had been in re-education camps
for at least 3 years and widows of Vietnamese nationals who had
died as a result of confinement in re-education camps. The INS
included unmarried sons and daughters 21 years and older based
on case eligibility guidelines set up by the State Department
10 years earlier. However, this contradicted immigration
regulations. INS had been treating these unmarried sons/
daughters as derivative refugees, but the immigration
regulations define derivative refugees as spouses and unmarried
children under 21 years of age. After extensively announcing
that registration for the ODP would draw to a close,
registration for the ODP ceased on September 30, 1994.
In April 1995, the INS, with concurrence of the State
Department, modified its criteria of who could be included on
the refugee claim to exclude unmarried, adult sons and
daughters. In response to this modification, legislation (the
``McCain Amendment'') was enacted to re-establish refugee
eligibility to unmarried, adult sons and daughters of the
qualifying Vietnamese nationals. The legislation was
retroactive to April 1, 1995, the date on which the
modification had taken effect. The McCain Amendment provided
legal authority to the INS to consider and approve individuals
who were not properly classifiable as derivatives. This
Amendment was extended in 1998 (as section 255 of the Admiral
James W. Nance and Meg Donovan Foreign Relations Authorization
Act for fiscal years 2000 and 2001).\2\
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\2\ Sec. 255 of Division A of H.R. 3427; Pub. L. No. 106-113,
appendix G; 113 Stat. 1501A-432.
---------------------------------------------------------------------------
The INS has denied derivative refugee status to those
unmarried sons and daughters who failed to prove their family
relationship with the principal applicant. The INS mistakenly
denied some for no proof of family relationship when the
applicant could not show he or she continuously resided with
the parent. After determining that it was incorrectly denying
some derivatives based on co-residency, the INS identified the
entire caseload of improperly adjudicated derivative family
member cases. The agency had until September 30, 2001, to
correct the cases adjudicated on or after April 1, 1995, where
the original denial was based solely on the issue of co-
residency with the principal applicant.
The Bill
The INS needs additional time to adjudicate pending cases
under the McCain Amendment. As such, H.R. 1840 extends the time
to adjudicate those cases by two years.
The intent of H.R. 1840 is to extend the same eligibility
criteria applied to cases currently being processed under the
McCain Amendment to individuals whose parent's case was
processed prior to April 1, 1995. Accordingly, the Act removes
the date of April 1, 1995, imposed by the McCain Amendment.
In addition to failure to prove co-residency, the INS has
denied some cases because the applicants were unable to prove
their family relationship to a principal applicant. Due to new
identification methods, such as DNA, H.R. 1840 permits the INS
to reconsider cases that were previously denied for failure of
proof, rather than just those cases that were denied based on
the issue of co-habitation with the principal alien.
Finally, some sons and daughters have been denied
derivative refugee status because their principal applicant
parent has died, although their surviving parent resides in the
United States or is awaiting departure formalities from
Vietnam. Accordingly, H.R. 1840 expands eligibility to include
these adult, unmarried sons and daughters.
Hearings
No hearings were held on H.R. 1840.
Committee Consideration
On June 27, 2001, the Subcommittee on Immigration and
Claims met in open session and ordered favorably reported the
bill H.R. 1840, as amended, by a vote of 6 to 3, a quorum being
present. On October, 10, 2001, the Committee met in open
session and ordered favorably reported the bill H.R. 1840 with
amendment by voice vote, a quorum being present.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
H.R. 1840 does not authorize funding. Therefore, clause
3(c) of rule XIII of the Rules of the House of Representatives
is inapplicable.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1840, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 12, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1840, a bill to
extend eligibility for refugee status of unmarried sons and
daughters of certain Vietnamese refugees.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 1840--A bill to extend eligibility for refugee status of unmarried
sons and daughters of certain Vietnamese refugees.
CBO estimates that enacting H.R. 1840 would result in no
significant cost to the Federal Government. The bill could
affect direct spending, so pay-as-you-go procedures would
apply, but we estimate that any such effects would be
insignificant. H.R. 1840 contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act and would impose no significant costs on state,
local, or tribal governments.
Until September 30, 2001, unmarried adult children of
certain Vietnamese nationals were eligible for admission to the
United States as refugees of special humanitarian concern. H.R.
1840 would renew their eligibility through the end of fiscal
year 2003. Enacting the bill would lead to an increase in
refugee admissions, which would increase administrative costs
to the Immigration and Naturalization Service and increase
spending for certain benefit programs. However, CBO expects the
bill would aid no more than 1,000 persons annually, so any
increases in direct spending would not be significant.
The CBO staff contact for this estimate is Mark Grabowicz,
who can be reached at 226-2860. This estimate was approved by
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 4 of the
Constitution.
Section-by-Section Analysis and Discussion
Sec. 1. Eligibility for Refugee Status
Section 1(a) Eligibility for In-Country Refugee Processing
in Vietnam. Section 1(a) permits in-country refugee processing
by the State Department and the INS to continue through fiscal
year 2003. It states that aliens described in subsection 1(b)
are considered to be refugees of special humanitarian concern
to the United States within the meaning of section 207 of the
Immigration and Nationality Act (INA) (referring to refugees)
and should be admitted to reside in the U.S. if the alien would
be admissible as an immigrant under the Immigration and
Nationality Act (except as provided in section 207(c)(3) of the
INA).
Section 1(b) Aliens Covered. Section 1(b) describes the
beneficiaries under this Act. An alien must be (1) the son or
daughter of a qualified national (defined in subsection 1(c));
(2) 21 years of age or older; and (3) be unmarried as of the
date of acceptance of the alien's parent for resettlement under
the Orderly Departure Program or through the U.S. Consulate
General in Ho Chi Minh City.
Section 1(c) Qualified National. Subsection 1(c) defines
the term ``qualified national'' in subsection (b)(1) as a
national of Vietnam who:
(1)(A) was formerly interned in a re-education camp in
Vietnam by the Socialist Republic of Vietnam
Government; or
(B) is the widow or widower of an individual described
in subparagraph (1)(A);
(2)(A) qualified for refugee processing under the
Orderly Departure Program re-education subprogram; and
(B) is or was accepted under the Orderly Departure
Program or through the U.S. Consulate General in Ho Chi
Minh City for
(i)
resettlement as a refugee; or
(ii)
admission to the U.S. as an immediate
relative immigrant; and
(3)(A) is presently maintaining a residence in the U.S.
or whose surviving spouse is presently maintaining such
a residence; or
(B) was approved for refugee resettlement or immigrant
visa processing and is awaiting departure formalities
from Vietnam or whose surviving spouse is awaiting such
departure formalities.
Agency Views
Markup Transcript
BUSINESS MEETING
WEDNESDAY, OCTOBER 10, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to call, at 2:35 p.m., in Room
2141 Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman Sensenbrenner. The next item on the agenda is H.R.
1840, to extend the eligibility for refugee status of unmarried
sons and daughters of certain Vietnamese refugees. The Chair
recognizes the gentleman from Pennsylvania, Mr. Gekas, the
Chairman of the Subcommittee on Immigration and Claims.
Mr. Gekas. Mr. Chairman, the Subcommittee on Immigration
and Claims reports favorably the bill, H.R. 1840, with a single
amendment in the nature of a substitute, and moves its
favorable recognition to the full House.
[The bill, H.R. 1840, follows:]
Chairman Sensenbrenner. Without objection, the bill will be
considered as read and open for amendment at any point, and the
Subcommittee amendment in the nature of a substitute, which the
Members have before them, will be considered as read and be
considered as the original text for purposes of amendment.
The Chair recognizes the gentleman from Pennsylvania to
offer a substitute which has been negotiated since the
Subcommittee markup and to explain the substitute.
Mr. Gekas. I thank the Chairman. This amendment----
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment in the nature of a substitute to the
Subcommittee amendment to H.R. 1840, offered by Mr. Gekas.
[The amendment follows:]
Chairman Sensenbrenner. Without objection, the amendment is
considered as read and open for amendment at any point, and the
gentleman from Pennsylvania is recognized for 5 minutes.
Mr. Gekas. Thank you, Mr. Chairman.
The amendment in the nature of a substitute is very similar
to the underlying bill because it benefits all those adult
unmarried children of reeducation camp survivors, the
Vietnamese brand, who deserve our consideration. This amendment
was drafted by the Administration and has the full support of
the Justice and State Departments, as well as the support of
Representative Davis, the gentleman from Virginia, the author
of the bill.
In keeping with that, I ask unanimous consent, Mr.
Chairman, that the record receive two statements approving of
the language, one from the Department of Justice and the other
from the Department of State. I ask unanimous consent that they
be included in the record.
Chairman Sensenbrenner. Without objection.
Mr. Gekas. Like the underlying bill, it extends the time
INS has to process the derivative reconsideration cases to the
end of fiscal year 2003. Like the underlying bill, it deletes
the April 1, 1995 date so that cases adjudicated prior to that
date may be reconsidered. And like H.R. 1840, it permits cases
that were denied for any reason, not just based on cohabitation
with the parent, to be reconsidered.
The amendment does two additional things. It strikes the
cap language inserted at Subcommittee and, number two, it
permits the son or daughter of a qualified national parent who
has died to be eligible for consideration for resettlement in
the U.S. if his or her other parent is residing in the U.S. or
awaiting exit papers for U.S. resettlement.
I urge my colleagues to join the Administration and the
author of the bill to support this amendment. I yield back the
balance of my time.
Chairman Sensenbrenner. Does the minority wish to make a
statement on the substitute?
Ms. Jackson Lee. Yes, Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman from Texas is
recognized for 5 minutes.
Ms. Jackson Lee. I thank the Chairman very much. I rise to
support the substitute because it supports the underlying
legislation, H.R. 1840, which is Representative Tom Davis's
bill to restore refugee eligibility for certain sons and
daughters of Vietnamese reeducation camp survivors.
I think it is important that the legislation, underlying
legislation, fixes the devastating problem of what happened to
our longstanding friends of the Vietnam War, the Vietnamese
soldiers, combat soldiers, who fought with us and suffered long
terms in reeducation camps because of their wartime association
with the United States. This imposed a particularly harsh
burden on the refugees and their children. These children had
already been without their fathers throughout the time they
were in reeducation camps, in some cases for 10 to 15 years.
Then the refugees were given a choice between living forever in
a communist dictatorship or leaving their children behind.
This legislation allows these families to be reunited in
the United States under provisions dated in April 1995, and the
amendment is very helpful, inasmuch as it clears up factual
problems dealing with the family relationships that will allow
these particular individuals to be reunited. There were some
past Administration changes that I think hurt the bill and hurt
the process. I believe the manager's amendment as well as the
underlying legislation clears up an obligation that I believe
is so important, making good on our friends, helping these
combat soldiers to be reunited with their 21-year-old-plus
family members, children who have remained unmarried and who
are living with them.
With that, Mr. Chairman, I ask my colleagues to support the
amendment and the underlying legislation.
[The statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
Thank you Mr. Chairman.
I support H.R. 1840--which is Rep. Tom Davis's bill to restore
refugee eligibility for certain sons and daughters of Vietnamese re-
education camp survivors as originally introduced. I also support the
Manager's amendment offered today.
Until April 1, 1995, refugees accepted for resettlement in the U.S.
were allowed to bring their sons and daughters, even those above the
age of 21, so long as they had never married and were members of the
refugee parent's household.
On April 1, 1995, INS changed its interpretation of the then-
existing law, to exclude children who were over 21, even if they were
unmarried and living with their parents.
In the case of South Vietnamese combat veterans and others who had
suffered long terms in ``re-education camps'' because of their wartime
associations with the United States, this imposed a particularly harsh
burden on the refugees and their children. These children had already
been without their fathers throughout the time they were in re-
education camps, in some cases for 10 or 15 years. Then the refugees
were given a choice between living forever in a Communist dictatorship
or leaving their children behind. These children were marked as members
of a ``counterrevolutionary family'', denied educational and employment
opportunities, and would be sure to go on suffering in Viet Nam.
Recognizing these realities, Congress has three times adopted the
``McCain Amendment'' which changes the INS interpretation of the law,
so that refugees who are survivors of re-education camps can once again
be accompanied by their unmarried sons and daughters. The latest
extension of the McCain amendment will expire on September 30. The
Davis bill would extend the McCain amendment for an additional two
years.
During consideration of the current version of the McCain
amendment--enacted in 1999 as part of the Foreign Relations
Authorization Act for FY 2000 and 2001--proponents of the provision
tried to fix a drafting problem in the original language of the
amendment. This original language--apparently drafted by executive
branch employees during previous Clinton-era renewals of the
amendment--excluded sons and daughters who were mistakenly rejected
before April 1, 1995.
The Davis bill will fix this problem once and for all, simply by
enacting the very same rules for pre-April 1995 cases that already
apply to later cases.
The same executive branch employees who suggested the earlier
restrictive language have now drafted a restrictive amendment to the
Davis bill, which a Judiciary Committee member is expected to offer at
Committee markup. This language would extend the protection of the
McCain amendment to a few sons and daughters whose parents were
accepted prior to April 1, 1995. By requiring an affirmative
``rejection'' by INS, however, it would still exclude sons and
daughters who were denied access to an INS interview by vindictive or
corrupt Communist officials, or who were wrongly ``screened out'' by
U.S. officials or contractors prior to the interview.
There is no ``floodgates of immigration'' issue with the original
Davis bill. The Davis bill only applies the same INS rules and
procedures to pre-April 1995 cases that already apply to post-April
1995 cases, which have generated no such floodgates. The best estimate
is that this amendment would apply to a few hundred people, or at most
to 1000-2000. If INS properly implements the law, we can reunite these
families quickly and no further extension should be necessary after
2003.
Under the original language of the Davis bill, INS is not compelled
to admit a single new immigrant or refugee--it is merely given the
authority to correct past mistakes, if and only if it determines that a
mistake was really made. So there is no need for a new set of
restrictions to keep the numbers low. This bill provides much-needed
relief to a small and carefully defined group of people, and INS
already has the authority, the skills, and the resources it needs to
prevent the provision from being taken advantage of by other,
undeserving applicants.
Thank you Mr. Chairman. I yield back the balance of my time.
Chairman Sensenbrenner. Does the gentlewoman yield back
now?
Ms. Jackson Lee. I yield back. Thank you.
Chairman Sensenbrenner. Are there any amendments to the
amendment in the nature of a substitute?
Hearing none, the question is on the amendment in the
nature of a substitute offered by the gentleman from
Pennsylvania, Mr. Gekas. Those in favor will signify by saying
aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment in the nature of a substitute is adopted.
A reporting quorum is present. The question is now on
reporting the bill favorably, as amended. Those in favor will
signify by saying aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the bill
is reported favorably, as amended by the amendment in the
nature of a substitute.
Without objection, the Chairman is authorized to move to go
to conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes,
and all Members will be given 2 days by the House rules in
which to submit additional, dissenting, supplemental, or
minority views.
[Intervening business.]
And the Committee stands adjourned.
[Whereupon, at 5:12 p.m., the Committee was adjourned.]