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S. 166: A bill to provide provisional protected presence status for certain aliens and to provide mandatory appropriations relating to border security.

The text of the bill below is as of Jan 16, 2019 (Introduced).


II

116th CONGRESS

1st Session

S. 166

IN THE SENATE OF THE UNITED STATES

January 16, 2019

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

A BILL

To provide provisional protected presence status for certain aliens and to provide mandatory appropriations relating to border security.

1.

Provisional protected presence

(a)

In general

Chapter 4 of title II of the Immigration and Nationality Act (8 U.S.C. 1221 et seq.) is amended by adding at the end the following:

244A.

Provisional protected presence

(a)

Definitions

In this section:

(1)

DACA recipient

The term DACA recipient means an alien who is in deferred action status on the date of the enactment of this section pursuant to the Deferred Action for Childhood Arrivals (DACA) Program announced on June 15, 2012.

(2)

Felony

The term felony means a Federal, State, or local criminal offense (excluding a State or local offense for which an essential element was the alien’s immigration status) punishable by imprisonment for a term exceeding one year.

(3)

Misdemeanor

The term misdemeanor means a Federal, State, or local criminal offense (excluding a State or local offense for which an essential element was the alien’s immigration status, a significant misdemeanor, and a minor traffic offense) for which—

(A)

the maximum term of imprisonment is greater than five days and not greater than one year; and

(B)

the individual was sentenced to time in custody of 90 days or less.

(4)

Secretary

The term Secretary means the Secretary of Homeland Security.

(5)

Significant misdemeanor

The term significant misdemeanor means a Federal, State, or local criminal offense (excluding a State or local offense for which an essential element was the alien’s immigration status) for which the maximum term of imprisonment is greater than five days and not greater than one year that—

(A)

regardless of the sentence imposed, is a crime of domestic violence (as defined in section 237(a)(2)(E)(i)) or an offense of sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence if the State law requires, as an element of the offense, the operation of a motor vehicle and a finding of impairment or a blood alcohol content of .08 or higher; or

(B)

resulted in a sentence of time in custody of more than 90 days, excluding an offense for which the sentence was suspended.

(6)

Threat to national security

An alien is a threat to national security if the alien is—

(A)

inadmissible under section 212(a)(3); or

(B)

deportable under section 237(a)(4).

(7)

Threat to public safety

An alien is a threat to public safety if the alien—

(A)

has been convicted of an offense for which an element was participation in a criminal street gang (as defined in section 521(a) of title 18, United States Code); or

(B)

has engaged in a continuing criminal enterprise (as defined in section 408(c) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 848(c))).

(b)

Authorization

The Secretary—

(1)

shall grant provisional protected presence to an alien who files an application demonstrating that he or she meets the eligibility criteria under subsection (c) and pays the appropriate application fee;

(2)

may not remove such alien from the United States during the period in which such provisional protected presence is in effect unless such status is rescinded pursuant to subsection (g); and

(3)

shall provide such alien with employment authorization.

(c)

Eligibility criteria

An alien is eligible for provisional protected presence under this section and employment authorization if the alien—

(1)

was born after June 15, 1981;

(2)

entered the United States before attaining 16 years of age;

(3)

continuously resided in the United States between June 15, 2007, and the date on which the alien files an application under this section;

(4)

was physically present in the United States on June 15, 2012, and on the date on which the alien files an application under this section;

(5)

was unlawfully present in the United States on June 15, 2012;

(6)

on the date on which the alien files an application for provisional protected presence—

(A)

is enrolled in school or in an education program assisting students in obtaining a regular high school diploma or its recognized equivalent under State law, or in passing a general educational development exam or other State-authorized exam;

(B)

has graduated or obtained a certificate of completion from high school;

(C)

has obtained a general educational development certificate; or

(D)

is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

(7)

has not been convicted of—

(A)

a felony;

(B)

a significant misdemeanor; or

(C)

three or more misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct;

(8)

is a DACA recipient; and

(9)

does not otherwise pose a threat to national security or a threat to public safety.

(d)

Duration of provisional protected presence and employment authorization

Provisional protected presence and the employment authorization provided under this section shall be effective until the date that is three years after the date of the enactment of this section.

(e)

Status during period of provisional protected presence

(1)

In general

An alien granted provisional protected presence is not considered to be unlawfully present in the United States during the period beginning on the date such status is granted and ending on the date described in subsection (d).

(2)

Status outside period

The granting of provisional protected presence under this section does not excuse previous or subsequent periods of unlawful presence.

(f)

Application

(1)

Age requirement

(A)

In general

An alien who has never been in removal proceedings, or whose proceedings have been terminated before making a request for provisional protected presence, shall be at least 15 years old on the date on which the alien submits an application under this section.

(B)

Exception

The age requirement set forth in subparagraph (A) shall not apply to an alien who, on the date on which the alien applies for provisional protected presence, is in removal proceedings, has a final removal order, or has a voluntary departure order.

(2)

Application fee

(A)

In general

The Secretary may require aliens applying for provisional protected presence and employment authorization under this section to pay a reasonable fee that is commensurate with the cost of processing the application.

(B)

Exemption

An applicant may be exempted from paying the fee required under subparagraph (A) if the alien—

(i)
(I)

is younger than 18 years of age;

(II)

received total income during the 12-month period immediately preceding the date on which the alien files an application under this section that is less than 150 percent of the United States poverty level; and

(III)

is in foster care or otherwise lacking any parental or other familial support;

(ii)

is younger than 18 years of age and is homeless;

(iii)
(I)

cannot care for himself or herself because of a serious, chronic disability; and

(II)

received total income during the 12-month period immediately preceding the date on which the alien files an application under this section that is less than 150 percent of the United States poverty level; or

(iv)
(I)

as of the date on which the alien files an application under this section, has accumulated $10,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses incurred by the alien or an immediate family member of the alien; and

(II)

received total income during the 12-month period immediately preceding the date on which the alien files an application under this section that is less than 150 percent of the United States poverty level.

(3)

Removal stayed while application pending

The Secretary may not remove an alien from the United States who appears prima facie eligible for provisional protected presence while the alien’s application for provisional protected presence is pending.

(4)

Aliens not in immigration detention

An alien who is not in immigration detention, but who is in removal proceedings, is the subject of a final removal order, or is the subject of a voluntary departure order, may apply for provisional protected presence under this section if the alien appears prima facie eligible for provisional protected presence.

(5)

Aliens in immigration detention

The Secretary shall provide any alien in immigration detention, including any alien who is in removal proceedings, is the subject of a final removal order, or is the subject of a voluntary departure order, who appears prima facie eligible for provisional protected presence, upon request, with a reasonable opportunity to apply for provisional protected presence under this section.

(6)

Confidentiality

(A)

In general

The Secretary shall protect information provided in applications for provisional protected presence under this section and in requests for consideration of DACA from disclosure to U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection for the purpose of immigration enforcement proceedings.

(B)

Referrals prohibited

The Secretary may not refer individuals whose cases have been deferred pursuant to DACA or who have been granted provisional protected presence under this section to U.S. Immigration and Customs Enforcement.

(C)

Limited exception

The information submitted in applications for provisional protected presence under this section and in requests for consideration of DACA may be shared with national security and law enforcement agencies—

(i)

for assistance in the consideration of the application for provisional protected presence;

(ii)

to identify or prevent fraudulent claims;

(iii)

for national security purposes; and

(iv)

for the investigation or prosecution of any felony not related to immigration status.

(7)

Acceptance of applications

Not later than 60 days after the date of the enactment of this section, the Secretary shall begin accepting applications for provisional protected presence and employment authorization.

(g)

Rescission of provisional protected presence

The Secretary may not rescind an alien’s provisional protected presence or employment authorization granted under this section unless the Secretary determines that the alien—

(1)

has been convicted of—

(A)

a felony;

(B)

a significant misdemeanor; or

(C)

three or more misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct;

(2)

poses a threat to national security or a threat to public safety;

(3)

has traveled outside of the United States without authorization from the Secretary; or

(4)

has ceased to continuously reside in the United States.

(h)

Treatment of brief, casual, and innocent departures and certain other absences

For purposes of subsections (c)(3) and (g)(4), an alien shall not be considered to have failed to continuously reside in the United States due to—

(1)

brief, casual, and innocent absences from the United States during the period beginning on June 15, 2007, and ending on August 14, 2012; or

(2)

travel outside of the United States on or after August 15, 2012, if such travel was authorized by the Secretary.

(i)

Treatment of expunged convictions

For purposes of subsections (c)(7) and (g)(1), an expunged conviction shall not automatically be treated as a disqualifying felony, significant misdemeanor, or misdemeanor, but shall be evaluated on a case-by-case basis according to the nature and severity of the offense to determine whether, under the particular circumstances, the alien should be eligible for provisional protected presence under this section.

(j)

Effect of deferred action under Deferred Action for Childhood Arrivals Program

(1)

Provisional protected presence

A DACA recipient is deemed to have provisional protected presence under this section through the expiration date of the alien’s deferred action status, as specified by the Secretary in conjunction with the approval of the alien’s DACA application.

(2)

Employment authorization

If a DACA recipient has been granted employment authorization by the Secretary in addition to deferred action, the employment authorization shall continue through the expiration date of the alien’s deferred action status, as specified by the Secretary in conjunction with the approval of the alien’s DACA application.

(3)

Effect of application

If a DACA recipient files an application for provisional protected presence under this section not later than the expiration date of the alien’s deferred action status, as specified by the Secretary in conjunction with the approval of the alien’s DACA application, the alien’s provisional protected presence, and any employment authorization, shall remain in effect pending the adjudication of such application.

.

244B.

Renewable provisional protected presence

(a)

In general

The Secretary of Homeland Security (referred to in this section as the Secretary) shall grant provisional protected presence, for a period of 3 years and renewable indefinitely, to an alien who—

(1)

submits an application for such status to the Secretary not later than 21 years after the first day on which applications for such status are accepted;

(2)

is admissible as an immigrant under this Act at the time of examination for such status, except that in the determination of the alien’s admissibility for purposes of this section, the Secretary shall apply the terms of section 244(c)(2)(A);

(3)

was granted temporary protected status or deferred enforced departure on or before October 1, 2017;

(4)

has been continuously physically present in the United States for a period of not less than 5 years immediately preceding the date of the enactment of this section; and

(5)

has not been convicted of—

(A)

a felony; nor

(B)

2 or more misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct.

(b)

Procedures

The Secretary shall establish a procedure allowing eligible individuals to apply for the relief available under this section without requiring placement in removal proceedings. Such procedure shall provide for the ability of a minor to apply for such relief, including through a legal guardian or counsel.

(c)

Application fee

The Secretary may require an alien applying for provisional protected presence under this section to pay a reasonable fee that is commensurate with the cost of processing the application.

(d)

Submission of biometric and biographic data

The Secretary may not grant an alien provisional protected presence under this section unless the alien submits biometric and biographic data, in accordance with procedures established by the Secretary. The Secretary shall provide an alternative procedure for aliens who are unable to provide such biometric or biographic data because of a physical impairment.

(e)

Background checks

(1)

Requirement for background checks

The Secretary shall use biometric, biographic, and other data that the Secretary determines appropriate—

(A)

to conduct security and law enforcement background checks of an alien seeking provisional protected presence under this section; and

(B)

to determine whether there is any criminal, national security, or other factor that would render the alien ineligible for such status.

(2)

Completion of background checks

The security and law enforcement background checks of an alien required under paragraph (1) shall be completed, to the satisfaction of the Secretary, before the date on which the Secretary grants such alien provisional protected presence under this section.

(3)

Criminal records requests

The Secretary, in cooperation with the Secretary of State, shall seek to obtain information about any criminal activity the alien engaged in, or for which the alien was convicted in his or her country of nationality, country of citizenship, or country of last habitual residence, from INTERPOL, EUROPOL, or any other international or national law enforcement agency of the alien’s country of nationality, country of citizenship, or country of last habitual residence.

(f)

Treatment of brief, casual, and innocent departures

For purposes of subsection (a)(4), an alien shall not be considered to have failed to maintain continuous residence in the United States by virtue of brief, casual, and innocent absences from the United States.

.

(b)

Clerical amendment

The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 note) is amended by inserting after the item relating to section 244 the following:

Sec. 244A. Provisional protected presence.

Sec. 244B. Renewable provisional protected presence.

.

2.

Mandatory appropriations

(a)

In general

Notwithstanding any other provision of law, out of any funds in the Treasury not otherwise appropriated, the Secretary of the Treasury shall transfer to the Secretary of Homeland Security and the Attorney General, as applicable, to remain available until expended—

(1)

$5,700,000,000 for U.S. Customs and Border Protection for procurement, construction, and improvements;

(2)

$800,000,000 for urgent humanitarian needs to ensure the well-being of individuals taken into the custody of U.S. Customs and Border Protection, including for enhanced medical support, transportation, consumable supplies, and additional temporary facilities for processing and short-term custody of vulnerable aliens;

(3)

$563,000,000 for the Executive Office for Immigration Review to hire not fewer than 75 additional immigration judges and support staff to reduce the backlog of cases pending before the Executive Office for Immigration Review; and

(4)

$211,000,000 to hire not fewer than 750 additional Border Patrol Agents to safeguard and secure the international borders of the United States.

(b)

Receipt and acceptance

The Secretary of Homeland Security and the Attorney General, as applicable, shall be entitled to receive, shall accept, and shall use the funds transferred under subsection (a) for the purposes described in that subsection, without further appropriation.