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The Immigration Provisions of H.R. 10

By:
Date:
Location: Washington, DC


THE IMMIGRATION PROVISIONS OF H.R. 10

Mr. KENNEDY. Mr. President, I have serious concerns about the direction our Republican colleagues in the House of Representatives have taken on the legislation to implement the recommendations of the 9/11 Commission. The House bill, H.R. 10, departs in significant and problematic ways from the Commission's specifically-tailored recommendations to protect our country against future terrorist attacks. The recommendations call for preventing terrorist travel, establishing an effective screening system to protect our borders, transportation systems, and other vital facilities, expediting full implementation of a biometric entry-exit screening system, establishing global border security standards by working with trusted allies, and standardizing identity documents and birth certificates.

Instead of adhering to these carefully considered measures, as the Senate has done, the House Republican leadership has included long-rejected, antiimmigrant proposals that have nothing to do with the Commission's recommendations. The House bill severely limits the rights of immigrants, asylum seekers, and victims of torture and fails to strengthen the security of our nation.

Among the worst provisions in the House bill are those which create insurmountable obstacles and burdens for asylum seekers, including many women and children, eliminate judicial review, including the constitutional writ of habeas corpus, for certain immigration orders, and which allow the deportation of individuals to countries where they are likely to be tortured, in violation of our international treaty obligations.

Many share my concerns with the House bill. The list of critics, lead by families of the 9/11 victims, is rapidly growing. A recent letter to House members, signed by more than two dozen family members of persons who died in the terrorist attacks, states that the immigration provisions are outside the scope of the Commission's recommendations and urges House members not to enact them. To underscore their concerns, the families state their "strong collective position that legislation to implement the 9/11 Commission recommendations not be used in a politically divisive manner."

Similarly, the chair of the 9/11 Commission, Thomas Kean, has said that the House immigration provisions "which are controversial and are not part of our recommendations to make the American people safer perhaps ought to be part of another bill at another time." Likewise, the vice-chair, Lee Hamilton, warned that the inclusion of these "controversial provisions at this late hour can harm our shared purpose of getting a good bill to the President before the 108th Congress adjourns."

I am submitting for the record the letters of a broad spectrum of religious, immigrant, human rights, and civil liberties groups voicing their strong opposition to the immigration provisions in the House bill. These groups include the American-Arab Anti-Discrimination Committee, the American Civil Liberties Union, the American Immigration Lawyers Association, the American Jewish Committee, Amnesty International, the Arab-American Institute Center for Community Change, the Fair Immigration Reform Movement, Freedom House, the Hebrew Immigrant Aid Society, Human Rights First, Human Rights Watch, the Lutheran Immigration and Refugee Service, the National Asian Pacific American Legal Consortium, the National Council of La Raza, the National Immigration Forum, the RFK Memorial Center for Human Rights, the Service Employees International Union, the Tahirih Justice Center, the U.S. Catholic Bishop's Committee on Migration, World Relief, and the Women's Commission for Refugee Women and Children.

In these difficult times for our country, we know that the threat of terrorism has not ended. We have to keep doing all we can to see that our borders are protected and our immigration laws are enforced, and that law enforcement officials have the full support they need. But we must do so in ways that respect fundamental rights. Congress should not enact laws that ride rough-shod over basic rights in the name of national security. Immigrants are part of our heritage and history. We jeopardize our own fundamental values when we adopt harsh security tactics that trample the rights and liberties of immigrants. We must learn from the past, so that we do not continue to repeat these mistakes in the future.

This legislation is too important for it to be derailed by political pandering to anti-immigrant extremists. We need to pass this reform legislation, but we need to get it right. The American people expect, and deserve, better.

I ask unanimous consent to print the above-referenced letters in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

AN OPEN LETTER

To: House of Representatives.
From: Family Members of 9-11 Victims.
Re: H.R. 10.

DEAR REPRESENTATIVES: We are family members of those who died in the tragedy of 9-11. While we have diverse political views on many issues, we write to you today in one voice to express our strong collective position that legislation to implement the 9-11 Commission recommendations not be used in a politically divisive manner. The discussion around these recommendations is extremely serious and important to 9-11 families across the political spectrum. We have heard the House
Bill to implement the 9-11 Commission Recommendations (H.R. 10) also includes provisions to expand the USA Patriot Act and reform immigration law in ways not recommended by the commission.

We strongly urge you to take these provisions out of the bill, and not vote for any bill that contains them. These provisions are outside the scope of the Commission's recommendations, and this is neither the time nor place to consider controversial, unrelated issues. Those issues can be discussed at a later date and proposed in different legislation. Last week, members of the 9-11 Commission themselves (3 Republican and 3 Democrats) also called on House leaders to drop these provisions. The Chairman of the 9-11 Commission, Thomas Kean, said on September 30th: "We're very respectfully suggesting that provisions which are controversial and are not part of our recommendations to make the American people safer perhaps ought to be part of another bill at another time."

Please respect the seriousness of the discussions around the Commission Recommendations and immediately remove all unrelated provisions.

Yours Sincerely,

Colleen Kelly (Sister of William Kelly Jr.).
Adele Welty (Mother of Timothy Welty, FDNY, killed 9-11 in line of duty).
Laurette Poulos Simmons (Sister of Stephen Emanuel Poulos who died in the WTC).
Karen Shea (Niece of Steven Tighe).
Barry Amundson (Brother of Craig Amundson, killed at the Pentagon).
Kelly Campbell (Sister-in-law of Craig Amundson).
Wright and Meredith Salisbury (Father- and mother-in-law of Ted Hennessy, Jr., who was killed on 9/11).
John Leinung (Step-father of Paul Battaglia, WTC Tower 1, 100th floor).
Andrew Rice (Brother of David Rice).
Rita Lasar (Sister of Ephraim Lasar).
David Reynolds (Cousin of Scott M. Johnson, died on 9/11/2001-South Tower, 89th floor, WTC).
Alissa Rosenberg-Torres (Widow of Luis Eduardo Torres, North Tower).
David Potorti (Brother of Jim Potorti).
George Choriatis (Nephew of Theodoros Pigis, killed in the World Trade Center attacks).
Roberta Shea (Sister of Stephen Tighe, died in the WTC).
Terry Rockefeller (Sister of Laura Rockefeller).
Nissa Youngren (Daughter of Robert G. LeBlanc, United Flight 175).
J. William [Bill] Harris (Brother-in-law, Laura Rockefeller).
Logan Harris (Niece of Laura Rockefeller).
Maureen Donegan (Sister of William Kelly Jr.).
Jim and Barb Fyfe (Father and mother of Alicia Fyfe, flight attendant).
Andrea LeBlanc (Widow of Bob LeBlanc).
Loretta Filipov (Widow of Al Filipov).

September 28, 2004.

DEAR REPRESENTATIVE: The undersigned organizations urge the House of Representatives during the debate and vote on H.R. 10 (the "9/11 Recommendations Implementation Act") and amendments to H.R. 10, to be faithful to the Commission's recommendations and its admonition that the 'border and immigration system of the United States must remain a visible manifestation of our belief in freedom, democracy, global economic growth, and the rule of law, yet serve equally well as a vital element of counterterrorism."

As we seek to enhance our security, we must do so in ways that are effective and bring our nation together. If we do not rise to this challenge, legislation that is passed and signed into law could have the unintended consequences of hurting our security and making our immigration processes even more dysfunctional than they are today. Unfortunately, H.R. 10 was not crafted in a bipartisan manner and the House did not hold a sufficient number of hearings on the important issues this legislation raises. The bill also includes many provisions that we strongly oppose that go well beyond the scope of the Commission's recommendations. These provisions will distract our government from effectively enhancing our security and threaten to stall the passage of needed reforms. We urge you to oppose them:

Section 3005-Prohibition on Acceptance of the Consular Identification Card: This provision would prohibit federal employees from accepting consular identification cards. However, in a security-conscious environment, people who are here, whatever their status, must be able to prove their identity. Many cities, counties and law enforcement agencies accept consular identification cards as valid forms of identification.

Section 3006-Expedited Removal: This provision significantly expands the expedited removal regime and would subject all individuals who entered the U.S. without inspection to expedited removal unless they have been physically present in the U.S. for more than 5 years. Expedited removal currently has created significant due process concerns; this provision would magnify those concerns immeasurably.

Sections 3007, 3009 and 3033: These provisions encompass key aspects of the so-called "Fairness in Immigration Litigation Act (H.R. 4406) that would further undermine the availability of basic due process protections for non-citizens by: prohibiting habeas corpus review of a variety of immigration decisions; raising the bar substantially for a grant of asylum; prohibiting federal courts from granting stays of deportation while a case is pending except in extraordinary cases; and authorizing the government to remove foreign nationals to countries that lack a functioning government so long as that country does not physically prevent the removal.

Section 3008-Revocation of Visas and Other Travel Documents: This provision makes individuals who enter the U.S. on a valid visa that is subsequently revoked by the State Department subject to removal. This provision would prohibit all administrative and judicial review of the revocation decision. Thus, an individual whose visa is revoked based on false information (or other errors) would be removable from the U.S. without the opportunity to challenge the basis for the removal.

Section 3053-Minimum Document Requirements and Issuance Standards for Federal Recognition: This provision bars Federal agencies from accepting driver's licenses or other ID cards issued by a state unless it satisfies certain requirements established by the Secretary of Homeland Security. These requirements include: verification by the issuing agency of the authenticity of documents prior to issuance of a driver's license or other ID; proof that the applicant possesses a social security account or that the person is not eligible for one; and confirmation by the SSA of the accuracy of the social security number presented.
Not only would these requirements grind to a halt the issuance of driver's licenses throughout the country, they also would lead to a de facto immigration status requirement. Such a result would severely undermine the law enforcement utility of the Department of Motor Vehicle databases by discouraging individuals from applying for licenses.

Legislation that would enhance our security and our immigration system, and reinforce due process, civil liberties and privacy concerns needs to address the following:

1. Create a system that can deliver on its "basic commitments." The Commission notes that an immigration system unable to deliver on "basic commitments" was one of the "two systematic weaknesses" that "came together in our border system's inability to contribute to an effective defense against the 9/11 attacks.".

2. Strengthen the U.S.'s intelligence capacity and create a multi-layered border with several tiers of protection to most effectively enhance security. The Commission report repeatedly underscores the need to enhance our intelligence capacity and develop layers of protection that keep targeted people from entering the U.S. to implement such a layered border, Congress and the Administration must, among other actions, direct more money to our consulates, ensure the accuracy of watchlists and create a process that allows the deletion of names that do not belong on such lists, mandate adequate and consistent training for those who implement immigration law, and ensure that ports-of-entry receive sufficient funding and are adequately staffed with well-trained officers with access to accurate, functioning, and interoperable databases. Another critical component to well-functioning borders and ports-of-entry is access to counsel to facilitate the flow of people and ensure that the government's broad powers to admit or bar noncitizens from entry are not used improperly.

3. Effective security measures must include rigorous civil liberties, due process, and privacy protections. In this context, Congress must not erode judicial review. These measure must reflect our nation's binding commitment to protect civil liberties, due process, and individual privacy. The Commission recognizes the need to reconcile "security with liberty, since the success of one helps protect the other." While acknowledging the difficult challenge involved in preserving this balance, the Commission emphasizes the critical importance to get it right. The Commission also points out the importance of placing the burden of proof on the Executive for retaining governmental power.

4. Our nation needs an immigration system that shrinks the haystack by facilitating the entry of "trusted travelers" so we can better focus our resources on those who mean to do us harm. The 9/11 Commission recognizes the importance of facilitating travel so that resources can be focused on those who mean to do us harm. The Commission urges that the "programs to speed known travelers" be made a "higher priority, permitting inspectors to focus on greater risks." In addition, because the U.S. cannot shrink the haystack, enhance our security, and secure our borders without reforming our immigration laws, it is vitally important to reform our laws by legalizing the status of those currently living and working in the U.S., reducing the long backlogs in family-based immigration, and creating break-the-mold worker programs that allow people to enter and leave the U.S. lawfully.

5. Measures designed to enhance our security must include provisions that mandate sufficient funding, an adequate number of well-trained officers, reasonable deadlines, accurate databases, technology that is up the task, and Congressional oversight of implementation, along with prioritizing initiatives. Our history is riddled with laws that do not take these factors into account. Congress also must engage in rigorous risk-based and cost-benefit analysis to ensure that agencies are guided by clear priorities and are not overwhelmed by a flood of unachievable mandates.

6. The United States must remain a nation that welcomes people to its shores. Immigration is in our national interest, and a system that works is essential to our national and economic security. Our immigration system needs to reflect the importance of reuniting families, fulfilling the needs of American business, maintaining America's economic security (which contributes to our nation's well-being and national security), protecting refugees and asylees to meet our moral and international obligations and, as the Commission underscores, helping to enhance our security. The U.S. is a nation of immigrants and immigration remains central to who we are and helps to explain our success as a people and a country.

Sincerely,

ACORN, American-Arab Anti-Discrimination Committee, American Immigration Lawyers Association, American Jewish Committee, Arab-American Institute, Center for Community Change, Fair Immigration Reform Movement, Hebrew Immigrant Aid Society (HIAS), Lutheran Immigration and Refugee Service, National Asian Pacific American Legal Consortium, National Council of La Raza, National Immigration Forum, Service Employees International Union (SEIU), AFL-CIO, CLC, Tahirih Justice Center.

September 30, 2004.

DEAR REPRESENTATIVE: We strongly oppose a provision in H.R. 10 that would authorize the outsourcing of torture to brutal dictatorships like Syria, Saudi Arabia, and China.

Section 3032 of H.R. 10, the 9/11 Recommendations Implementation Act of 2004, would make it official U.S. policy to send or return individuals to countries where they would be at grave risk of torture. This provision would violate U.S. law and policy, and it is completely inconsistent with decades of efforts by Republicans and Democrats alike to make America a world leader in the fight against torture and for human rights. Far from implementing the 9/11 Commission's recommendations, it directly contradicts the Commission's counsel that the United States should "offer an example of moral leadership in the world, committed to treat people humanely, [and] abide by the rule of law."

The legal prohibition on torture is absolute. Along with 135 other countries that have ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United States has committed itself to upholding this fundamental principle of human dignity. Just as governments cannot engage in torture directly, they cannot send people to places where they risk being tortured. The Convention against Torture states that "no State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

Congress reiterated its commitment to upholding this obligation in 1998 when it passed section 2242 of the Foreign Affairs Reform and Restructuring Act, stating that "[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States." Section 3032 of H.R. 10 would violate that legal and moral obligation by permitting the U.S. government to turn over people to other countries even if it is 100 percent certain they will be tortured. This will have immediate and damaging consequences.

For example, the government of China has been demanding that the United States turn over to it a number of ethnic Uighur detainees held at Guantanamo Bay, Cuba. Because it believes the detainees would likely be tortured, the Bush Administration has rightly refused and is instead seeking other countries to accept them. If Congress were to approve this provision, there would be no legal bar to sending these detainees back to torture.

By contrast, in 2002 the U.S. government sent a transiting Canadian-Syrian national, Maher Arar, to Syria despite its systematic use of torture. Now safely back in Canada, Arar alleges he was severely tortured, including beatings with electrical cords, during his ten months in a Syrian prison. Such incidents undermine the credibility of U.S. efforts to promote human rights and democracy in the Arab world, which President Bush has identified as a key element in the Administration's long-term strategy to combat terrorism. If this provision is passed, such incidents will become more common, dealing a profound blow to America's moral authority in pursuing a vital goal.

In the wake of the Abu Ghraib scandal, President Bush and the Congress have gone to great pains to persuade the world that U.S. policy does not condone torture. If Congress enacts this legislation, it would make tolerance of torture official U.S. policy.
We urge you to strike this provision from the bill and to reaffirm America's commitment to a world without torture.

Sincerely,

William Schulz, Amnesty International USA; Douglas A. Johnson, The Center for Victims of Torture; Jennifer Windsor, Freedom House; Elisa Massimino, Human Rights First; Kenneth Roth, Human Rights Watch; Scott Horton, International League for Human Rights; Ralston H. Deffenbaugh, Jr., Lutheran Immigration and Refuge Services; Robin Phillips, Minnesota Advocates for Human Rights; Loenard Rubenstein, Physicians for Human Rights; Todd Howland, RFK Memorial Center for Human Rights; R. Timothy Ziemer, Rear Admiral USN (Ret.), World Relief.

NATIONAL IMMIGRATION FORUM,
Washington, DC, October 5, 2004.

DEAR REPRESENTATIVE: We write to express concern about several provisions of H.R. 10 that, contrary to the recommendations of the bipartisan 9-11 Commission, broadly restrict the rights of immigrants while failing to enhance national security.

Like all Americans, the National Immigration Forum supports proposals to enhance domestic security and prevent acts of terrorism. We applaud the bipartisan 9-11 Commission's recommendations that effectively target terrorism and not immigrants. Similarly, the bipartisan Senate bill appears to capture these recommendations and is largely free of attacks on the newcomer community. Unfortunately, House leaders crafting H.R. 10 have decided to take a different tactic and play politics with this critical legislation.

Several immigration-related provisions of H.R. 10 are of grave concern. They focus on limiting immigrants' rights to due process and legal identification documents, measures which are not only un-American, but actually counterproductive to our goal of improving national security. Specifically, we are opposed to the following provisions of this legislation:

Subjecting an immigrant with less than five years' physical presence in the U.S. to an expedited deportation, without a hearing on her right to remain in the United States (3006).

Restricting states' right to permit all immigrant drivers to be legally licensed and insured (3052).

Barring federal acceptance of identity documents issued by foreign governments (other than passports), no matter how secure the documents are determined to be (3005).

Putting up new hurdles and pitfalls for asylum-seekers that purport to address terrorism concerns, but which are unnecessary, excessive, and in violation of international conventions (3006, 3007, 3031, 3032, 3033).

Further limiting immigrants' access to meaningful judicial review (picking up where the 1996 immigration laws left off), including the right to a simple challenge of their detention pursuant to the writ of habeas corpus (3006, 3008, 3009).

Expanding the instances in which individuals can be deported to countries with no functioning governments or where they are likely to be tortured (3032, 3033).

As the 9-11 Commission pointed out in its report, intelligence is the key to finding terrorists and shutting down their operations; broad-based immigration restriction measures that cast a wide net are ineffectual at best, and a waste of precious resources.
The H.R. 10 immigration provisions outlined above fail on all counts: they don't enhance the government's ability to collect or analyze intelligence, to use intelligence in making law enforcement decisions, or to respond to or prevent terrorism. These provisions simply expand the federal government's authority to deport foreign nationals quickly and without proper judicial review, and push immigrants who want to play by the rules further underground. They have no place in this "9-11 Commission recommendations bill," which is why distinguished members of the Commission, and even the White House, have called for the removal of several of these sections.

We urge members of the House of Representatives to strike these provisions from H.R. 10 and to pursue instead the well-reasoned recommendations of the 9-11 Commission.

Sincerely,

ANGELA KELLEY,
Deputy Director.

WOMEN'S COMMISSION FOR
REFUGEE WOMEN AND CHILDREN,

October 5, 2004.

Hon. DAVID DREIER,
Chair, Committee on Rules,
House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: We are writing to you on behalf of the Women's Commission for Refugee Women and Children concerning several immigration-related provisions contained in H.R. 10, the "9/11 Recommendations Implementation Act." While the Women's Commission understands the need to pass legislation addressing the findings and recommendations of the National Commission on Terrorist Attacks Upon the United States, we believe that several of the provisions in the proposed bill go beyond the scope of what the report called for and unnecessarily harm women and children asylum-seekers. Specifically, we are concerned with the following provisions:

Section 3006. Expedited Removal: We believe that this provision impacts women and children escaping persecution in a particularly harmful manner. The new provision provides no review process for those individuals expressing a fear of persecution if they have been in the United States for longer than one year. Refugee women and children who are escaping rape, female genital mutilation, honor killings, forced marriages, sexual slavery, trafficking, recruitment as child soldiers, and other forms of age and gender related persecution often face the most difficulty in presenting their cases. Due to the extremely sensitive and often painful nature of such claims and cultural barriers that inhibit women and children from expressing themselves and their needs, women and children often require significant time and counseling before they can articulate their claims, particularly in front of government officials.

Moreover, highly specialized skills are needed to interview women and children asylum seekers in a gender and age sensitive manner, and it is unlikely that front line immigration officials will have these skills. The result could be returning at-risk women and children to life-threatening situations.

Finally, children have traditionally been exempt from expedited removal in recognition of the vulnerabilities that their tender age creates. H.R. 10, however, would apply expedited removal regardless of age, thus subjecting children to a process that they cannot reasonably be expected to understand or appreciate. Even if protections are put in place for children, children may be improperly classified and treated as adults due to the lack of a scientifically sound method to determine age.

Section 3007. Preventing terrorists from obtaining asylum. This section in actuality is irrelevant to terrorism. Instead, it fundamentally alters the evidentiary standards for asylum claims and the burden of proof for asylum applicants.

This section would require an asylum seeker to establish that the central motivation for his or her persecutor's actions was one of the five protected grounds under the refugee definition. This change would be catastrophic for both women and children asylum-seekers. Even under current law, which requires a finding of "mixed motivation," many women and children asylum-seekers have a difficult time proving motive. Most gender and age related claims are based on persecution by a private rather than government actor. Often, the violence occurs in private settings. It is thus extremely difficult to prove that the perpetrator is motivated by the victim's age or gender.

Furthermore, the provision would require the applicant to provide corroborating evidence unless unreasonable to do so. The private nature of most gender and age related persecution makes it highly unlikely that such evidence will be available. Moreover, even if it exists, children in particular are unlikely to be able to produce it unless intensive legal assistance is provided; the reality is that more than one-half of children are unrepresented when presenting asylum claims.

This section would also allow an adjudicator to consider any statements made by asylum-seekers in determining credibility. Thus, if a woman or child discusses their persecution for the first time in front of an asylum officer or an immigration judge, their failure to discuss it in prior conversations with immigration officials could be considered proof of inconsistent statements. This requirement again fails to consider the extremely difficult nature of age and gender related claims. It is unrealistic to expect a woman or child claimant to articulate the embarrassing details of their abuse to immigration officials when they first arrive in the
United States and are still fearful and confused. To later use this natural reticence against them is grossly unfair.
Furthermore, this section condones the evaluation of an applicant's demeanor in assessing credibility without clarifying that an
applicant's behavior should be considered in the context of their culture. This framework completely discounts the complex psychological, social and cultural context of many women and children asylum-seekers.

Section 3033. Additional Removal Authorities. This section authorizes the removal of individuals to countries other than their country of origin. Deporting women and children to a third country may be extremely hazardous to their safety. Women often and children always are heavily dependent on family and community support to ensure their well-being.

Section 3082. Expanded pre-inspection at foreign airports. This provision would require the expansion of pre-inspection at foreign airports. Immigration officials charged with enforcing pre-inspection would not have sufficient training or expertise to determine whether a woman or child is fleeing persecution. Even if such training were provided, the lack of oversight of such officers and the absence of assistance for women and children are likely to result in many at-risk women and children being prevented from departing the country in which they are being persecuted.

Section 3083. Immigration Security Initiative. This provision mandates the posting of immigration officials at overseas airports to check documentation of individuals traveling to the United States. This provision may inadvertently lead to more trafficking in women and children. Asylum seekers who are desperate to leave countries in which they are experiencing persecution often resort to the assistance of outsiders, who may wish to exploit them through trafficking. The more difficult it is to travel without appropriate documents, the more such vulnerable refugees will resort to avenues that could result in their further persecution.

While we have limited our comments to those sections of H.R. 10 that we believe are particularly harmful to women and children, we stand with our colleagues in also opposing those other sections (for example, section 3032) that harm all people fleeing past and future harm. Women and children constitute both the majority of and the most vulnerable of the world's refugees. Regardless of the critical merits of fighting the war against terrorism, we cannot afford to relinquish our strong international leadership role in their protection, especially when these women and children present no harm to us.

Thank you for considering our concerns. Please do not hesitate to contact us if you would like to discuss any of these issues further.

Sincerely,

Wendy Young,
Director of External Relations.

Joanne Kelsey,
Senior Coordinator for Detention and Asylum.

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