H.R. 1932 (112th): Keep Our Communities Safe Act of 2011

112th Congress, 2011–2013. Text as of Oct 18, 2011 (Reported by House Committee).

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IB

Union Calendar No. 171

112th CONGRESS

1st Session

H. R. 1932

[Report No. 112–255]

IN THE HOUSE OF REPRESENTATIVES

May 23, 2011

introduced the following bill; which was referred to the Committee on the Judiciary

October 18, 2011

Additional sponsors: Mr. Ross of Florida, Mr. Rohrabacher, Mr. Bartlett, Mr. Royce, Mr. Miller of Florida, Mr. Westmoreland, Mr. Simpson, Mr. Marchant, Mr. Bachus, Mrs. Myrick, Mr. Coffman of Colorado, Mr. Lankford, Ms. Foxx, Mr. Platts, Mr. Woodall, Mr. Gary G. Miller of California, Mr. Forbes, Mr. Mack, Mr. Mulvaney, Mr. Brooks, Mr. Manzullo, Mr. Herger, Mr. Hunter, and Mr. Bilbray

October 18, 2011

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

Strike out all after the enacting clause and insert the part printed in italic

For text of introduced bill, see copy of bill as introduced on May 23, 2011


A BILL

To amend the Immigration and Nationality Act to provide for extensions of detention of certain aliens ordered removed, and for other purposes.


1.

Short title

This Act may be cited as the Keep Our Communities Safe Act of 2011.

2.

Detention of dangerous aliens

(a)

In general

Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) is amended—

(1)

by striking out Attorney General each place it appears, except for the first reference in subsection (a)(4)(B)(i), and inserting Secretary of Homeland Security;

(2)

in paragraph (1), by amending subparagraph (B) to read as follows:

(B)

Beginning of period

The removal period begins on the latest of the following:

(i)

The date the order of removal becomes administratively final.

(ii)

If the alien is not in the custody of the Secretary on the date the order of removal becomes administratively final, the date the alien is taken into such custody.

(iii)

If the alien is detained or confined (except under an immigration process) on the date the order of removal becomes administratively final, the date the alien is taken into the custody of the Secretary, after the alien is released from such detention or confinement.

;

(3)

in paragraph (1), by amending subparagraph (C) to read as follows:

(C)

Suspension of period

(i)

Extension

The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if—

(I)

the alien fails or refuses to make all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal that is subject to an order of removal;

(II)

a court, the Board of Immigration Appeals, or an immigration judge orders a stay of removal of an alien who is subject to an administratively final order of removal; or

(III)

the Secretary transfers custody of the alien pursuant to law to another Federal agency or a State or local government agency in connection with the official duties of such agency.

(ii)

Renewal

If the removal period has been extended under clause (C)(i), a new removal period shall be deemed to have begun on the date—

(I)

the alien makes all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order;

(II)

the stay of removal is no longer in effect; or

(III)

the alien is returned to the custody of the Secretary.

;

(4)

in paragraph (3)—

(A)

by adding after If the alien does not leave or is not removed within the removal period the following: or is not detained pursuant to paragraph (6) of this subsection; and

(B)

by striking subparagraph (D) and inserting the following:

(D)

to obey reasonable restrictions on the alien’s conduct or activities that the Secretary prescribes for the alien, in order to prevent the alien from absconding, for the protection of the community, or for other purposes related to the enforcement of the immigration laws.

;

(5)

in paragraph (4)(A), by striking paragraph (2) and inserting subparagraph (B);

(6)

by striking paragraph (6) and inserting the following:

(6)

Additional rules for detention or release of certain aliens

(A)

Detention review process for cooperative aliens established

For an alien who is not otherwise subject to mandatory detention, who has made all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary of Homeland Security's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, and who has not conspired or acted to prevent removal, the Secretary shall establish an administrative review process to determine whether the alien should be detained or released on conditions. The Secretary shall make a determination whether to release an alien after the removal period in accordance with subparagraph (B). The determination shall include consideration of any evidence submitted by the alien, and may include consideration of any other evidence, including any information or assistance provided by the Secretary of State or other Federal official and any other information available to the Secretary of Homeland Security pertaining to the ability to remove the alien.

(B)

Authority to detain beyond removal period

(i)

In general

The Secretary of Homeland Security, in the exercise of the Secretary's discretion, may continue to detain an alien for 90 days beyond the removal period (including any extension of the removal period as provided in paragraph (1)(C)).

(ii)

specific circumstances

The Secretary of Homeland Security, in the exercise of the Secretary's discretion, may continue to detain an alien beyond the 90 days authorized in clause (i)—

(I)

until the alien is removed, if the Secretary determines that there is a significant likelihood that the alien—

(aa)

will be removed in the reasonably foreseeable future; or

(bb)

would be removed in the reasonably foreseeable future, or would have been removed, but for the alien's failure or refusal to make all reasonable efforts to comply with the removal order, or to cooperate fully with the Secretary's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, or conspires or acts to prevent removal;

(II)

until the alien is removed, if the Secretary of Homeland Security certifies in writing—

(aa)

in consultation with the Secretary of Health and Human Services, that the alien has a highly contagious disease that poses a threat to public safety;

(bb)

after receipt of a written recommendation from the Secretary of State, that release of the alien is likely to have serious adverse foreign policy consequences for the United States;

(cc)

based on information available to the Secretary of Homeland Security (including classified, sensitive, or national security information, and without regard to the grounds upon which the alien was ordered removed), that there is reason to believe that the release of the alien would threaten the national security of the United States; or

(dd)

that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or any person, and either (AA) the alien has been convicted of one or more aggravated felonies (as defined in section 101(a)(43)(A)) or of one or more crimes identified by the Secretary of Homeland Security by regulation, or of one or more attempts or conspiracies to commit any such aggravated felonies or such identified crimes, if the aggregate term of imprisonment for such attempts or conspiracies is at least 5 years; or (BB) the alien has committed one or more crimes of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) and, because of a mental condition or personality disorder and behavior associated with that condition or disorder, the alien is likely to engage in acts of violence in the future; or

(ee)

that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or any person, and the alien has been convicted of at least one aggravated felony (as defined in section 101(a)(43)); or

(III)

pending a certification under subclause (II), so long as the Secretary of Homeland Security has initiated the administrative review process not later than 30 days after the expiration of the removal period (including any extension of the removal period, as provided in paragraph (1)(C)).

(C)

Renewal and delegation of certification

(i)

renewal

The Secretary of Homeland Security may renew a certification under subparagraph (B)(ii)(II) every 6 months, after providing an opportunity for the alien to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew a certification, the Secretary may not continue to detain the alien under subparagraph (B)(ii)(II).

(ii)

delegation

Notwithstanding section 103, the Secretary of Homeland Security may not delegate the authority to make or renew a certification described in item (bb), (cc), or (ee) of subparagraph (B)(ii)(II) below the level of the Assistant Secretary for Immigration and Customs Enforcement.

(iii)

hearing

The Secretary of Homeland Security may request that the Attorney General or the Attorney General's designee provide for a hearing to make the determination described in item (dd)(BB) of subparagraph (B)(ii)(II).

(D)

Release on conditions

If it is determined that an alien should be released from detention by a Federal court, the Board of Immigration Appeals, or if an immigration judge orders a stay of removal, the Secretary of Homeland Security, in the exercise of the Secretary's discretion, may impose conditions on release as provided in paragraph (3).

(E)

Redetention

The Secretary of Homeland Security, in the exercise of the Secretary's discretion, without any limitations other than those specified in this section, may again detain any alien subject to a final removal order who is released from custody, if removal becomes likely in the reasonably foreseeable future, the alien fails to comply with the conditions of release, or to continue to satisfy the conditions described in subparagraph (A), or if, upon reconsideration, the Secretary determines that the alien can be detained under subparagraph (B). This section shall apply to any alien returned to custody pursuant to this subparagraph, as if the removal period terminated on the day of the redetention.

; and

(7)

by inserting after paragraph (7) the following:

(8)

Judicial review

Without regard to the place of confinement, judicial review of any action or decision pursuant to this section shall be available exclusively in habeas corpus proceedings instituted in the United States District Court for the District of Columbia, and only if the alien has exhausted all administrative remedies (statutory and regulatory) available to the alien as of right.

.

(b)

Detention of aliens during removal proceedings

(1)

Clerical amendment

(A)

Sections 235 and 236 of the Immigration and Nationality Act (8 U.S.C. 1225 and 1226) are amended by striking Attorney General each place it appears (except in the second place that term appears in section 236(a)) and inserting Secretary of Homeland Security.

(B)

Section 236(a) of the Immigration and Nationality Act (8 U.S.C. 1226(a)) is amended by inserting the Secretary of Homeland Security or before the Attorney General—.

(C)

Section 236(e) of the Immigration and Nationality Act (8 U.S.C. 1226(e)) is amended by striking Attorney General’s and inserting Secretary of Homeland Security’s.

(2)

Length of detention of certain aliens; venue for certain actions

Section 235 of the Immigration and Nationality Act (8 U.S.C. 1225) is amended by adding at the end the following:

(e)

Length of detention

(1)

Notwithstanding any other provision of this section, an alien may be detained under this section, without limitation, until the alien is subject to an final order of removal.

(2)

The length of detention under this section shall not affect any detention under section 241.

(f)

Judicial review

Without regard to the place of confinement, judicial review of any action or decision made pursuant to subsection (e) shall be available exclusively in a habeas corpus proceeding instituted in the United States District Court for the District of Columbia and only if the alien has exhausted all administrative remedies (statutory and nonstatutory) available to the alien as of right.

.

(3)

Venue for certain actions seeking judicial review of length of detention

Section 236(e) of the Immigration and Nationality Act (8 U.S.C. 1226(e)) is amended by adding the following at the end: Without regard to the place of confinement, judicial review of any action or decision made pursuant to subsection (f) shall be available exclusively in a habeas corpus proceeding instituted in the United States District Court for the District of Columbia and only if the alien has exhausted all administrative remedies (statutory and nonstatutory) available to the alien as of right..

(4)

Length of detention

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended by adding at the end the following subsection:

(f)

Length of detention

(1)

Notwithstanding any other provision of this section, an alien may be detained under this section for any period, without limitation, until the alien is subject to a final order of removal.

(2)

The length of detention under this section shall not affect detention under section 241 of this Act.

.

(5)

detention of criminal aliens

Section 236(c)(1) of the Immigration and Nationality Act (8 U.S.C. 1226(c)(1)) is amended, in the matter following subparagraph (D) to read as follows:

any time after the alien is released, without regard to whether an alien is released related to any activity, offense, or conviction described in this paragraph; to whether the alien is released on parole, supervised release, or probation; or to whether the alien may be arrested or imprisoned again for the same offense. If the activity described in this paragraph does not result in the alien being taken into custody by any person other than the Secretary, then when the alien is brought to the attention of the Secretary or when the Secretary determines it is practical to take such alien into custody, the Secretary shall take such alien into custody.

.

(6)

Administrative review

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended by adding at the end the following subsection:

(g)

Administrative review

(1)

The Attorney General’s review of the Secretary’s custody determinations under section 236(a) shall be limited to whether the alien may be detained, released on bond (of at least $1,500 with security approved by the Secretary), or released with no bond.

(2)

The Attorney General’s review of the Secretary’s custody determinations for the following classes of aliens:

(A)

Aliens in exclusion proceedings.

(B)

Arriving aliens in removal proceedings, including aliens paroled after arrival pursuant to section 212(d)(5).

(C)

Aliens described in sections 212(a)(3) and 237(a)(4).

(D)

Aliens described in section 236(c).

(E)

Aliens in deportation proceedings subject to section 242(a)(2) of the Act (as in effect prior to April 1, 1997, and as amended by section 440(c) of Public Law 104–132); is limited to a determination of whether the alien is properly included in such category.

.

(7)

Clerical amendments

(A)

Section 236(a)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1226(a)(2)(B)) is amended by striking out conditional parole and inserting in lieu thereof recognizance.

(B)

Section 236(b) of the Immigration and Nationality Act (8 U.S.C. 1226(b)) is amended by striking parole and inserting recognizance.

(c)

Severability

If any of the provisions of this Act or any amendment by this Act, or the application of any such provision to any person or circumstance, is held to be invalid for any reason, the remainder of this Act and of amendments made by this Act, and the application of the provisions and of the amendments made by this Act to any other person or circumstance shall not be affected by such holding.

(d)

Effective dates

(1)

The amendments made by subsection (a) shall take effect upon the date of enactment of this Act, and section 241 of the Immigration and Nationality Act, as so amended, shall in addition apply to—

(A)

all aliens subject to a final administrative removal, deportation, or exclusion order that was issued before, on, or after the date of enactment of this Act; and

(B)

acts and conditions occurring or existing before, on, or after the date of enactment of this Act.

(2)

The amendments made by subsection (b) shall take effect upon the date of enactment of this Act, and sections 235 and 236 of the Immigration and Nationality Act, as so amended, shall in addition apply to any alien in detention under provisions of such sections on or after the date of enactment of this Act.

3.

Sense of the Congress

It is the sense of the Congress that—

(1)

this Act should ensure that Constitutional rights are upheld and protected; and

(2)

it is the intention of the Congress to uphold the Constitutional principles of due process and that due process of the law is a right afforded to everyone in the United States.

October 18, 2011

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed