AMENDMENT NO. 4 OFFERED BY MR. NADLER

Mr. NADLER. Mr. Chairman, I offer an amendment.

The Acting CHAIRMAN. The Clerk will designate the amendment.

The text of the amendment is as follows:

 

Part B Amendment No. 4 offered by Mr. Nadler:

 Strike section 101 of the bill (and redesignate the succeeding sections of title I accordingly).

 

The Acting CHAIRMAN. Pursuant to House Resolution 75, the gentleman from New York (Mr. Nadler) and a Member opposed each will control 10 minutes.

Mr. SENSENBRENNER. Mr. Chairman, I claim the time in opposition.

The Acting CHAIRMAN. The Chair recognizes the gentleman from New York (Mr. Nadler).

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I offer this amendment to strike section 101 of the bill relating to asylum seekers. Under the excuse of protecting national security, the asylum provisions in this bill make it much more difficult for legitimate victims to be granted asylum. The logic seems to be, if you keep out every asylum seeker, including legitimate victims, then the system cannot be abused.

Proponents of this section make inaccurate, dramatic claims about terrorists who abuse the asylum system to get into the country, but the cases they cite are mostly pre-1996 when the law was changed. Since that 1996 change, asylum seekers are jailed, put in custody until a finding of reasonable fear of persecution is made, so they cannot pose a threat while they are in custody.

Because current law already places the burden of proof on the asylum applicant and places the applicant in custody until he or she meets the initial burden of proof, a terrorist who wishes to enter the United States would most likely attempt to do so by a tourist visa or on fraudulent papers. They are not going to claim political asylum and then be put in jail until they can show a credible fear of persecution.

But this bill seeks to raise the bar when people finally do get into court. If we pass this bill in its current form, mothers, fathers, children with legitimate asylum claims will be sent back to their persecutors with no benefit to national security.

Current law provides that an asylum seeker must prove a reasonable fear of persecution by reason of race, color, creed, national origin, sex, or political opposition. The new provision in this bill would require proof that one of these factors, race, color, creed, political opposition, is the ``central reason'' for the legitimate fear.

This is an almost insurmountable burden of proof since the persecutors rarely stop to explain their motives while they are committing torture, rape, and murder. The judge would be forced to look into the minds of the persecutor and decide what weight to give to a particular motive in cases of mixed motives, which they are, in order to prove, the burden of proof, that this is the central reason. Not one of the major reasons, a central reason. This is an impossible burden of proof with no purpose other than to deny the asylum claim.

This section would deny a victim asylum based on an immaterial inconsistency or inaccuracy in a prior statement. So an applicant who, at the airport, perhaps without a decent understanding of English or a mistranslation, forgets or misspeaks the date of her high school graduation, or the date of her wedding or her grandchildren's births, even though the dates might not be significant in her culture, unlike in ours, would later be denied safe haven from persecution, even though they have nothing to do with the legitimacy or lack of legitimacy of her claim for asylum under the law. This would be a ridiculously harsh outcome for an absurdly innocent mistake.

There are other things that this section does. We did not have time to review it properly. It did not go before the committee. The provisions that were considered by the House last year was only a 2-page provision. This became a 10-page provision 2 days ago. No one has had a chance to properly look through it, but we do know that it does a lot of other very harsh things.

Mr. Chairman, asylum law is supposed to be about protecting individuals from serious abuses of human rights. It is not supposed to be about seizing on any possible basis to deny a claim or to return people to harm's way.

This section is not about protecting our borders; it is about xenophobia and sending victims back to their torturers. It is, Mr. Chairman, in the larger sense, un-American.

I urge my colleagues to stand with me in voting for the Nadler-Meek-Jackson-Lee amendment to strike these provisions and keep our law humane and American.

Mr. Chairman, I reserve the balance of my time. 

Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I rise in opposition to the amendment, and I wish those that were arguing against the amendment read it and see what it says; and then I think they will be convinced that this is a commonsense change.

First of all, let me say that the asylum law was designed to provide safe haven to those who are fleeing persecution in their homeland. It is not to be used as a crutch for economic migrants who are coming to the United States because the grass is greener on our side of the border.

Now, the bill as it is currently before us takes away the cap of 10,000 approved asylum applicants who are admitted to permanent residency every year. The Nadler amendment strikes that. The bill as it is before us states that the applicant for asylum has the burden of proof to prove that he or she is eligible to receive asylum in our country. The Nadler amendment strikes it. But every petitioner, whether it is a plaintiff in a lawsuit or someone who is applying for Social Security disability benefits, has got the burden of proof to show that they are entitled to the relief that they are seeking.

This bill makes it clear that asylum applicants have to make the same burden of proof as others, and the Nadler amendment strikes that.

The other thing that the Nadler amendment strikes is a detailed explanation of how the immigration judge is to determine the credibility of the applicant and the witnesses that the applicant and the government put before the judge. Every trier of fact in court makes the determination based on the credibility of witnesses. Criminal juries can send someone to their death or to prison for life based on their determination of the credibility of the witnesses, and immigration judges should do so also.

The gentleman from New York (Mr. Nadler) says that 100 percent of the people who show up at the airport claiming asylum are detained. That is not right. Ninety percent of those people are released. Only 10 percent are detained past the airport. The gentleman from New York (Mr. Nadler) says that all of the statements or the instances that we raise were pre-1996 law change cases. I will give you two that were after that.

Nuradin Abdi who was a Somali national stood accused of providing material support to al Qaeda. The government alleged that Abdi admitted al Qaeda member Iyman Faris and others initiated a plot to blow up a Columbus, Ohio, area shopping small. Mr. Abdi was granted asylum in 1999. Later after traveling to a terrorist camp in Ethiopia, he was arrested when he reentered the United States, and his asylum status was revoked. It was revoked, as the U.S. Attorney's Office puts it, because with the exception of some minor biographical data, every aspect of the asylum application he submitted was false.

Now, giving a judge an opportunity to deny a claim based upon a determination that the applicant is lying is in my bill and the gentleman from New York (Mr. Nadler) tries to strike that.

Again, in 1999 an Egyptian national who had been granted asylum, despite the fact that the INS had provided classified evidence that the alien was a known member of a foreign terrorist organization designated by the Secretary of State, and according to the committee-hearing witness, the INS submitted a report from a New York City detective showing the alien's participation in a meeting with the infamous Sheik Omar Abdel Rahman, dedicated to planning acts of terrorism in which the pros and cons of hijacking an airplane were discussed. He got asylum too.

Now, while it is true that many terrorists are statutorily barred from receiving asylum, members of terrorist organizations are explicitly allowed to receive asylum. Further, despite any statutory bar to the contrary, asylum regulations and the courts have made it practically impossible for the government to ferret out terrorists who apply.

There are a number of reasons for this, including the fact that government attorneys are barred from asking foreign governments about any evidence they may possess about the veracity of asylum claims. Thus, the only evidence available to the government to support an asylum applicant is the lack of credibility to the applicant. However, the ninth circuit is preventing immigration judges from denying asylum claims when it is clear that the alien is lying. Furthermore, the ninth circuit has held that an alien can receive asylum on the very basis that the alien's government believes he is a terrorist, even if we agree.

This bill brings back sanity to the asylum laws by overturning these rogue precedents from the ninth circuit. And if any jury in the country can convict a defendant based on its determinations of credibility, certainly an immigration judge should be able to do the same thing.

Vote down this amendment, and let us put some common sense into our asylum laws as well as giving hope and shelter to people who can legitimately claim and receive asylum.

Mr. Chairman, I reserve the balance of my time.

Mr. NADLER. Mr. Chairman, I yield for the purposes of making a unanimous consent request to the gentleman from Michigan (Mr. Conyers).

(Mr. CONYERS asked and was given permission to revise and extend his remarks.)

Mr. CONYERS. Mr. Chairman, I want to thank the gentleman from Florida (Mr. Meek) for his work on this. It is credibly important.

This is perhaps the most objectionable part of the bill.

[Begin Insert]

 

I rise in support of the Nadler/Meeks/Jackson-Lee Amendment to strike section 101 of H.R. 418 which imposes evidentiary requirements on asylum-seekers fleeing persecution and all immigrants who seek withholding of removal from deportation.

Without a doubt, if this section passes into law, genuine bona fide refugees who have fled horrible persecution that qualifies them for protection from our government will be returned to face more terror, torture and death at the hands of their persecutors.

Chairmen SENSENBRENNER is using the public's fear of terrorism to radically change asylum law for all asylees, not just those with some connection to terrorism.

Section 101 will not make us one bit safer from terrorist attack. Since we tightened some loopholes in asylum law in 1996, terrorists have not been ``abusing our asylum system'' as the proponents of this bill allege. Terrorists are already barred from receiving the benefit of asylum protection in the United States.

Those who support placing these new insurmountable hurdles on asylum-seekers have used examples of known terrorists to allegedly show that the asylum system makes us vulnerable to terrorist attack. But none of the people they talk about were granted asylum.

Ramzi Yousef and Sheik Omar Abdel Rahman, who were both involved in the first World Trade Center bombing in 1993, were never granted asylum. They filed applications for asylum that had not been adjudicated at the time of the bombing.

Mir Aimal Kansi, who killed two CIA employees in 1993, was never granted asylum. He had an asylum application pending at the time of the attack.

Gazi Ibrahim Abu Mezer, known as ``the Brooklyn bomber'' for his involvement in a planned attack on the New York City subway in 1997, was never granted asylum. He applied for asylum but withdrew his application before it was reviewed.

Ahmad Ajaj, who was involved in the first World Trade Center bombing, was never granted asylum His initial application for asylum was abandoned when he left the country, and his second application was denied.

Abdel Hakim Tizegha, who was involved in the planned Millennium attack in 1999, was never granted asylum. His application was denied in 1997 and his appeal was denied in 1999.

Hesham Mohamed Ali Hedayet, who killed two people at the El Al counter at Los Angeles International Airport in 2002, was never granted asylum. His application was denied in 1995.

Shahawar Matin Siraj, who has been accused of plotting to bomb the Harold Square subway station in New York City in August 2004, was never granted asylum. He asserts that he entered the United States legally as a teen, and he later filed an application for asylum that was suspended upon his arrest.

Immigrants cannot apply for asylum unless they are already in the United States. So it is not the fault of the asylum system that these terrorists, and terrorist suspects, entered the United States and section 101 of H.R. 418 would not have prevented their entry. In addition, filing an application for asylum should not be equated with actually receiving asylum protection and the right to remain in the United States that it grants. Many asylum applications are rejected, just as many tourist visas to enter the United States are rejected.

For people applying for asylum in 2005, under current law, extensive security checks are now done through the FBI, CIA, Homeland Security and State Department databases. Now, expedited removal rules mandate detention for people arriving without proper documents, and grant DHS authority to detain asylum-seekers throughout the adjudication of their application. Expedited processing of asylum claims now exists, and applicants are denied work authorizations that may have been a magnet for false applications before asylum reform. People who are already in the United States, who become terrorists while they are here, must be identified by intelligence and law enforcement. If they are, asylum or any other immigration benefit will be revoked under current law.

For that vast majority of asylum applicants who have no nexus to terrorism, other than being victims of it, section 101 will create high, new legal standards of evidence, and will severely limit judicial review of their cases.

First, the bill requires that refugees prove that one of the five grounds for asylum protection--race, nationality, membership in a social group, political opinion, or religion--is the ``central reason'' why they were persecuted. With little access to the documents and witnesses they left behind when fleeing their country, they must prove what was in the mind of their persecutor during the persecution. This would require an asylum-seeker from Darfur, Sudan to prove that the janjaweed attacked them and ran them off their land because they were black, and not because the militia wanted to steal the immigrant's cows, for example.

Second, the bill requires asylum-seekers to show evidence corroborating their testimony, and it would bar judicial review of decisions regarding that evidence. Yet many refugees are unable to flee with the people or paperwork that could back up their stories under evidentiary standards.

Third, the bill allows judges to deny applications if they find inconsistencies between the applicant's testimony and any statement they have made to a U.S. official, or inconsistencies in witness and documentary evidence that is provided. In addition, it allows denials on the basis of subjective assessments of an applicant's demeanor, a factor that is frequently misinterpreted by U.S. judges due to cultural differences. Thus, a person could be denied asylum due to an immaterial inconsistency in the evidence they present.

Finally, the bill strips courts from the power to review immigration judge's discretionary judgments in asylum and removal cases.

Unfortunately, this bill takes a significant step in turning our country away from its proud history as a nation of refuge for those fleeing persecution.

For these reasons, I urge my colleagues to support the Nadler/Meeks/Jackson-Lee amendment to strike section 101 of this bill.

[End Insert]

 

Mr. NADLER. Mr. Chairman, I yield 1 1/2 minutes to the distinguished gentleman from Florida (Mr. Meek).

(Mr. MEEK of Florida asked and was given permission to revise and extend his remarks.)

Mr. MEEK of Florida. Mr. Chairman, it is very hard for me to respond to what the chairman just shared with us because basically if we do not pass this amendment of striking this 101 section, we might as well just take all the language in 101 and say, if you are being persecuted or if you are being raped as a woman or you are being abused as a child, do not come to America because that is basically what this amendment is saying.

They were raising the bar beyond the capabilities of the individuals that are fleeing persecution. They are running for their lives literally, and many of these individuals are incarcerated. And where are the commercials? Where are the media reports of how lax our asylum laws are here in the United States? Because they are not. Where are the law enforcement agencies? Why are they not knocking down the doors in the halls of Congress saying, we really have to tighten up those asylum laws because they are too weak now? Where are they?

We are following the people who have focused on this the most, the 9/11 Commission, and what they are asking for is for us to review and make sure we have good asylum laws in place. We are not saying it is bad. We are not saying it is good. I commend my colleagues who are looking at this, but moving in haste and having this manager's amendment before the Congress and no one has seen it. All of the agencies, all of the religious organizations that are helping these individuals that we are trying to deal with now are saying that they support the Nadler/Meek/Jackson-Lee amendment.

I urge the Members to please support the amendment.

Mr. Chairman, I want to thank you for your comments and also the gentleman from New York (Mr. Nadler) for his leadership.

Mr. SENSENBRENNER. Mr. Chairman, I yield 2 1/2 minutes to the gentleman from Indiana (Mr. Hostettler), the chairman of the Subcommittee on Immigration, Border Security, and Claims of the Committee on the Judiciary.

(Mr. HOSTETTLER asked and was given permission to revise and extend his remarks.) 

Mr. HOSTETTLER. Mr. Chairman, I rise in opposition to this amendment.

The asylum provisions in H.R. 418 are vitally important to protect our constituents from child molesters, rapists, murderers, and other criminals, as well as terrorists seeking asylum in our country.

I believe that we must keep the asylum open and honest for those who have a good-faith claim to asylum. However, we must also protect our constituents from aliens who seek to abuse our asylum processes and do harm to our citizens. For instance, because he was free after applying for asylum, Mir Aimal Kansi was able to murder two CIA employees at CIA headquarters. Ramzi Yousef took advantage of the freedom he gained by applying for asylum to mastermind the first World Trade Center attack which killed six and injured 1,000 in the amendment author's district.

The asylum provisions in H.R. 418 do not prevent aliens from seeking asylum. Those who truly have been persecuted for religious or political grounds will be allowed to present their cases just as they are able to now. These provisions merely overturn Ninth Circuit Court decisions saying that immigration judges cannot use inconsistencies in an alien's statement to determine if he or she is being untruthful.

The bill also says that an asylum applicant may be asked to corroborate his claim with evidence, if such evidence can be obtained without leaving the United States. One of the goals of this bill is to ensure that our asylum system is consistent with our judicial system. If a judge or criminal jury can sentence a criminal defendant to life in prison or even execution because they did not believe the defendant's story, certainly an immigration judge can deny an asylum claim to an alien for the same basis.

When an American goes to court to settle a dispute, he bears the burden of proof to prove his claim. Requiring the asylum claimant to bear the burden of proof is consistent, both with our justice system and with international law.

Permitting the judge to require an asylum claimant to produce corroborating evidence he has or can obtain without leaving the United States is just common sense. If a claimant says, for example, that he fled his country because he received a threatening letter from a government official, the judge would be remiss if he failed to ask to see the letter or at least inquire about what happened to the letter.

The asylum protections in the REAL ID Act are vitally important to ensuring the honesty of the asylum system, as well as the security of our Nation and its citizens.

I urge my colleagues to support the underlying bill, H.R. 418, and oppose this amendment.

Mr. NADLER. Mr. Chairman, I yield 1 1/2 minutes to the distinguished gentlewoman from Texas (Ms. Jackson-Lee), a cosponsor of the amendment.

Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished gentleman from New York (Mr. Nadler). I thank him for protecting so many of our constitutional rights.

Mr. Chairman, let me say that the asylum laws, as I was reminded by my good and dear colleague from Florida, started in World War II when we were reminded of the ugly scene of turning away the St. Louis, the 1,000 Jews who were fleeing persecution.

Let me just suggest that we do have an opportunity to review this issue and make it right, but I can tell you that Commissioner Kean and Commissioner Hamilton indicated that in advocating that these are recommendations of the 9/11 Commission; these are not recommendations of the 9/11 Commission. There is no proof or facts that terrorists have been able to pull one over on us in large numbers.

It is very important to let the Comptroller General's study go forward that evaluates the extent to which weaknesses in the United States' asylum system have been or could be exploited by terrorists. We need to understand this.

I do not expect that the report will show that that is happening. It is extremely important that we realize that the 9/11 hijackers entered and remained in the United States as nonimmigrant visitors. They were not individuals who sought asylum. 

Let me correct my good friends about the 1993 bombing. These individuals sought asylum, but they were denied asylum. There is not a crisis here; but what is a crisis is when you turn people away from our shores who have come here downtrodden, who are seeking asylum because of religious persecution, because of mutilation of women, because of enormous child abuse or potentially child soldiers, and you turn them away because they do not look like you and because, in fact, they cannot make their case.

I would ask my colleagues to consider opposing this amendment.

[Begin Insert]

 

I rise in support of the amendment that I have offered with my colleagues Representatives NADLER and MEEK. It would strike section 101 of H.R. 418, the REAL ID Act, which is entitled, ``Preventing Terrorists From Obtaining Relief From Removal.'' Notwithstanding that title, the provisions in section 101 codify evidentiary standards for asylum proceedings. The supporters of section 101 believe that terrorists are gaming our asylum system to enter and remain in the United States.

It is not clear that terrorists actually are gaming our asylum system. Section 5403 of the Intelligence Reform and Terrorism Prevention Act requires the Comptroller General to conduct a study to evaluate the extent to which weaknesses in the United States asylum system have been or could be exploited by terrorists. We need to wait until this study is completed before we rewrite our asylum laws. We cannot correct weaknesses that have not been identified yet.

I do not expect that report to show that terrorists are gaming our asylum system. The 9/11 hijackers entered and remained in the United States as nonimmigrant visitors. Visitors' visas are easy to get. It only requires a 2-minute interview with an American Consulate Officer to get a visitor's visa. The applicant just has to establish that he will return to his country at the end of the authorized period of stay. Moreover, it would be naive to think that terrorist organizations do not have ready access to fraudulent entry documents. In contrast, it is difficult and time consuming to enter the United States as an asylum applicant. The terrorist choosing this method would have to present himself at a border and then prove in expedited removal proceedings that he has a credible fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The section 101 provisions would not come into play during expedited removal proceedings in any event. They would not apply until the alien is before an immigration judge at an asylum hearing, and by then he has already entered the country.

The approach taken by the REAL ID Act is to raise the bar on the burden of proof for everyone who applies for asylum, which would result in a denial of relief to bona fide asylum seekers without any assurance that the changes would discourage terrorists from seeking asylum. In fact, terrorist organizations are in a much better position to fabricate evidence of persecution than the typical bona fide asylum applicant who has fled his country in fear for his life without any thought of meeting evidentiary standards at an asylum hearing.

For instance, in addition to showing that the alleged persecution would be ``on account of' one of the enumerated grounds, the applicant would have to establish that the persecution was or will be ``a central reason for persecuting the applicant.'' In effect, the asylum applicant would have to establish what was in the mind of the persecutor.

Section 101 has a subsection entitled, ``Credibility Determinations.'' It states that the trier of fact should consider all relevant factors. This is fine, unnecessary but fine. Then it provides that the trier of fact has the discretion of basing a credibility determination on any relevant factor, and it specifies relevant factors that can be the sole basis for a credibility determination. Near the end it mentions inconsistencies and inaccuracies or falsehoods in statements, ``without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim.'' In other words, it permits an immigration judge to make an adverse credibility finding in asylum proceedings on the basis of an inconsistency, inaccuracy, or falsehood that has no relevance to the asylum applicant's persecution claim. What has this got to do with preventing terrorists from obtaining relief from removal?

I urge you to vote for this amendment to strike section 101.

[End Insert]

 

Mr. SENSENBRENNER. Mr. Chairman, I have the right to close and will close after the gentleman yields his time.

Mr. NADLER. Mr. Chairman, how much time remains?

The Acting CHAIRMAN (Mr. Simpson). The gentleman from New York (Mr. Nadler) has 3 minutes remaining. The gentleman from Wisconsin (Mr. Sensenbrenner) has 1 1/2 minutes remaining.

Mr. NADLER. Mr. Chairman, I yield 2 1/2 minutes to the distinguished gentleman from New Jersey (Mr. Smith).

Mr. SMITH of New Jersey. Mr. Chairman, I thank the gentleman for yielding.

Mr. Chairman, I rise in strong support of the Nadler amendment and ask Members, especially on my side of the aisle, to join us in striking section 101.

Section 101 purports to reform asylum--but it does not. Under the pretext that it mitigates terrorists' access to the United States, the provision actually does a grave injustice and disservice to the persecuted, such as religious believers, and all others who have a well-founded fear of persecution and who seek asylum in our country.

Section 101 imposes onerous new requirements on the persecuted, including those who have been traumatized by rape, torture, trafficking, and religious hate and persecution, to prove the persecutor's motive. Read the language. You have got to prove that persecution was a central reason you left and why you are seeking asylum.

I would remind my colleagues that I have been in Congress 25 years. Dictatorships and authoritarian regimes never persecute. It is always some other pretext, whether it be the People's Republic of China, Vietnam, Cuba. When it was Romania many years back, there was always a false reason. Slander against the Soviet state was used over and over again, never because you were Jewish or Christian or because you were an evangelical or some other reason. They always have a pretext.

I can guarantee if this is enacted into law that real asylum seekers will be denied, and then the piling on just begins to start.

How many Members have met persecuted people, traumatized people who are coming to our borders? They get their stories wrong. According to this language, if they have any inconsistency, even if it is not germane to the issue at hand, if they get a date wrong, how many Members have forgotten their wife's birthday, date or year? We all make mistakes. Get one of those things wrong and the trier of facts can exclude you based on that single situation.

    
This is an ugly provision. I say with respect to my friend and colleague from Wisconsin, I am against terrorism. 9/11 hurt people in my district. They were hurt big time.

This is an ugly provision, Mr. Speaker. It has not had, in my view, the kind of hearing needed in terms of the consequences that it will impose upon true asylum seekers. I hope Members will vote against this.

I have authored 3 Torture Victims Relief laws to help torture victims. I meet with a lot of torture victims. They forget; they have been traumatized. You forget something pursuant to these new requirements and you are a goner. You are being deported back to that country of origin where you have been persecuted.

Please vote against Section 101. Vote for the Nadler amendment.

Mr. NADLER. Mr. Chairman, I grant myself the remainder of the time.

The Acting CHAIRMAN (Mr. Simpson). The gentleman has 30 seconds remaining.

Mr. NADLER. Mr. Chairman, the gentleman from New Jersey and other speakers have made excellent points, but I want to make one different point.

This amendment, rather this section which we are trying to eliminate, is not focused on terrorism. It does not focus on terrorism. It does not focus on terrorists. All it does is put up additional bars to all asylum seekers, legitimate victims or otherwise. It has nothing to do with terrorism, does not claim to focus on terrorism. Does not do anything to distinguish between a terrorist and a legitimate victim of persecution or anybody else.

It simply sets the bar for all claimants at an unrealistically high level and ought to be defeated, and the amendment therefore ought to be passed for that reason.

I yield back.

Mr. SENSENBRENNER. Mr. Chairman, I yield myself the balance of the time.

Mr. Chairman, contrary to what my distinguished friend from New Jersey says, there are no onerous new requirements to meet the standard for asylum. Page 2 of the managers amendment incorporated in the bill says the applicant has to establish that he is a refugee within the meaning of this section. The applicant must establish that race, religion, nationality, membership in a particular cultural group or political opinion was or will be a central reason for persecuting the applicant.

Now, that means that all of the Jewish people who were turned away on the St. Louis prior to the Second World War would have qualified because they were being persecuted in Nazi Germany because of their religion.

People who have been engaged in what was used to be called anti-Soviet activities in the former Soviet Union, that was a political opinion, they would have been eligible for asylum.

And the comments that the gentleman from New Jersey makes about torture are simply not true. This bill does not impact the obligations of the United States under the convention to prevent torture by prohibiting the deportation of people to countries that torture them.

Now, simply what is stated is that the burden of proof is on the applicant, just like it ought to be, like it is on our constituents who apply for Social Security disability. And it sets up standards for determining the credibility of the witness. If the witness comes and says, Gee, I made a mistake because I forgot the birth date and admits to that mistake, that certainly is exonerating evidence.

Vote down the amendment. All of these arguments are a red herring.

[Begin Insert]

 

Mr. PICKERING. Mr. Chairman, during the debate of the REAL ID Act of 2005, of which I am a co-sponsor, I was unavoidably detained and unfortunately missed the opportunity to vote on the amendment offered by Representative JERROLD NADLER. If I would have been present, I would have voted a resounding ``no'' against this amendment. The Nadler amendment would have stricken the provision in the REAL ID Act that tightens and improves our asylum system, which has been abused by terrorists with deadly consequences. The REAL ID Act will protect the American people by allowing immigration judges to determine witness credibility in asylum cases and ensuring that all terrorism-related grounds for inadmissibility are also grounds for deportation. In summary, as a co-sponsor of this bill, I believe that all of the provisions in the REAL ID Act are essential in protecting our citizens from future terrorist plots and I would have voted ``no'' on the Nadler Amendment.

Mr. SMITH of Texas. Mr. Chairman, I strongly oppose the Nadler amendment, which would strip the asylum reforms from the ``REAL ID Act.''

The asylum provisions in the REAL ID Act are essential. The 9/11 Commission specifically noted that ``a number of terrorists . . . abused the asylum system.''

Just last year, a Pakistani national who had applied for asylum was caught while planning to blow up a subway station during the Republican Convention in New York City.

Under a 9th Circuit decision, a judge can determine that an asylum applicant is lying and still be required to grant the applicant admission.

The DOJ Inspector General reported that it was common for asylum applicants to make claims that they were falsely accused of being terrorists. In this situation, even if the judge believes that the applicant is lying and is a terrorist, the judge may still be required to approve the application.

The REAL ID Act reverses this 9th Circuit decision and makes it harder for terrorists to exploit our asylum system. It allows immigration judges--like judges in most other courts--to determine whether the asylum seeker is telling the truth.

Judges in ordinary criminal courts of law are routinely allowed to determine whether they believe a defendant is lying. Yet, under current law, immigration judges cannot make this common sense determination.

The REAL ID Act is essential in stopping asylum abuse. This amendment would strike the asylum reform provisions and make it easier for suspected terrorists to receive asylum.

[End Insert]

 

Mr. SENSENBRENNER. Mr. Chairman, and I yield back the balance of my time.

The Acting CHAIRMAN. The question is on the amendment offered by the gentleman from New York (Mr. Nadler).

The question was taken; and the Acting Chairman announced that the noes appeared to have it.

Mr. NADLER. Mr. Chairman, I demand a recorded vote.

The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further proceedings on the amendment offered by the gentleman from New York will be postponed.