[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1995 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 1995
To amend the Immigration and Nationality Act with respect to aliens
associated with criminal gangs, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 17, 2021
Mr. Zeldin (for himself and Mr. Brooks) introduced the following bill;
which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act with respect to aliens
associated with criminal gangs, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting Our Communities from Gang
Violence Act of 2021''.
SEC. 2. DEFINITION OF CRIMINAL GANG.
Section 101(a) of the Immigration and Nationality Act (8 U.S.C.
1101(a)) is amended by adding at the end the following:
``(53) The term `criminal gang' means an ongoing group,
club, organization, or association of five or more persons that
has as one of its primary purposes the commission of one or
more of the following criminal offenses and the members of
which engage, or have engaged within the past 5 years, in a
continuing series of such offenses, or that has been designated
as a criminal gang by the Secretary of Homeland Security, in
consultation with the Attorney General, as meeting these
criteria. The offenses described, whether in violation of
Federal or State law or foreign law and regardless of whether
the offenses occurred before, on, or after the date of the
enactment of this paragraph, are the following:
``(A) A `felony drug offense' (as defined in
section 102 of the Controlled Substances Act (21 U.S.C.
802)).
``(B) An offense under section 274 (relating to
bringing in and harboring certain aliens), section 277
(relating to aiding or assisting certain aliens to
enter the United States), or section 278 (relating to
importation of alien for immoral purpose).
``(C) A crime of violence (as defined in section 16
of title 18, United States Code).
``(D) A crime involving obstruction of justice,
tampering with or retaliating against a witness,
victim, or informant, or burglary.
``(E) Any conduct punishable under sections 1028
and 1029 of title 18, United States Code (relating to
fraud and related activity in connection with
identification documents or access devices), sections
1581 through 1594 of such title (relating to peonage,
slavery, and trafficking in persons), section 1951 of
such title (relating to interference with commerce by
threats or violence), section 1952 of such title
(relating to interstate and foreign travel or
transportation in aid of racketeering enterprises),
section 1956 of such title (relating to the laundering
of monetary instruments), section 1957 of such title
(relating to engaging in monetary transactions in
property derived from specified unlawful activity), or
sections 2312 through 2315 of such title (relating to
interstate transportation of stolen motor vehicles or
stolen property).
``(F) A conspiracy to commit an offense described
in subparagraphs (A) through (E).''.
SEC. 3. GROUNDS OF INADMISSIBILITY AND DEPORTABILITY FOR ALIEN GANG
MEMBERS.
(a) Inadmissibility.--Section 212(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(2)) is amended by adding at the end
the following:
``(J) Aliens associated with criminal gangs.--Any
alien is inadmissible who a consular officer, the
Secretary of Homeland Security, or the Attorney General
knows or has reason to believe--
``(i) to be or to have been a member of a
criminal gang (as defined in section
101(a)(53)); or
``(ii) to have participated in the
activities of a criminal gang (as defined in
section 101(a)(53)), knowing or having reason
to know that such activities will promote,
further, aid, or support the illegal activity
of the criminal gang.''.
(b) Deportability.--Section 237(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end
the following:
``(G) Aliens associated with criminal gangs.--Any
alien is deportable who--
``(i) is or has been a member of a criminal
gang (as defined in section 101(a)(53)); or
``(ii) has participated in the activities
of a criminal gang (as so defined), knowing or
having reason to know that such activities will
promote, further, aid, or support the illegal
activity of the criminal gang.''.
(c) Designation.--
(1) In general.--Chapter 2 of title II of the Immigration
and Nationality Act (8 U.S.C. 1182) is amended by inserting
after section 219 the following:
``designation of criminal gang
``Sec. 220. (a) Designation.--
``(1) In General.--The Secretary of Homeland Security, in
consultation with the Attorney General, may designate a group, club,
organization, or association of 5 or more persons as a criminal gang if
the Secretary finds that their conduct is described in section
101(a)(53).
``(2) Procedure.--
``(A) Notification.--Seven days before making a designation
under this subsection, the Secretary shall, by classified
communication, notify the Speaker and minority leader of the
House of Representatives, the President pro tempore, majority
leader, and minority leader of the Senate, and the members of
the relevant committees of the House of Representatives and the
Senate, in writing, of the intent to designate a group, club,
organization, or association of 5 or more persons under this
subsection and the factual basis therefor.
``(B) Publication in the federal register.--The Secretary
shall publish the designation in the Federal Register seven
days after providing the notification under subparagraph (A).
``(3) Record.--
``(A) In general.--In making a designation under this
subsection, the Secretary shall create an administrative
record.
``(B) Classified information.--The Secretary may consider
classified information in making a designation under this
subsection. Classified information shall not be subject to
disclosure for such time as it remains classified, except that
such information may be disclosed to a court ex parte and in
camera for purposes of judicial review under subsection (c).
``(4) Period of Designation.--
``(A) In general.--A designation under this subsection
shall be effective for all purposes until revoked under
paragraph (5) or (6) or set aside pursuant to subsection (c).
``(B) Review of designation upon petition.--
``(i) In general.--The Secretary shall review the
designation of a criminal gang under the procedures set
forth in clauses (iii) and (iv) if the designated
group, club, organization, or association of 5 or more
persons files a petition for revocation within the
petition period described in clause (ii).
``(ii) Petition period.--For purposes of clause
(i)--
``(I) if the designated group, club,
organization, or association of 5 or more
persons has not previously filed a petition for
revocation under this subparagraph, the
petition period begins 2 years after the date
on which the designation was made; or
``(II) if the designated group, club,
organization, or association of 5 or more
persons has previously filed a petition for
revocation under this subparagraph, the
petition period begins 2 years after the date
of the determination made under clause (iv) on
that petition.
``(iii) Procedures.--Any group, club, organization,
or association of 5 or more persons that submits a
petition for revocation under this subparagraph of its
designation as a criminal gang must provide evidence in
that petition that it is not described in section
101(a)(53).
``(iv) Determination.--
``(I) In general.--Not later than 180 days
after receiving a petition for revocation
submitted under this subparagraph, the
Secretary shall make a determination as to such
revocation.
``(II) Classified information.--The
Secretary may consider classified information
in making a determination in response to a
petition for revocation. Classified information
shall not be subject to disclosure for such
time as it remains classified, except that such
information may be disclosed to a court ex
parte and in camera for purposes of judicial
review under subsection (c).
``(III) Publication of determination.--A
determination made by the Secretary under this
clause shall be published in the Federal
Register.
``(IV) Procedures.--Any revocation by the
Secretary shall be made in accordance with
paragraph (6).
``(C) Other review of designation.--
``(i) In general.--If in a 5-year period no review
has taken place under subparagraph (B), the Secretary
shall review the designation of the criminal gang in
order to determine whether such designation should be
revoked pursuant to paragraph (6).
``(ii) Procedures.--If a review does not take place
pursuant to subparagraph (B) in response to a petition
for revocation that is filed in accordance with that
subparagraph, then the review shall be conducted
pursuant to procedures established by the Secretary.
The results of such review and the applicable
procedures shall not be reviewable in any court.
``(iii) Publication of results of review.--The
Secretary shall publish any determination made pursuant
to this subparagraph in the Federal Register.
``(5) Revocation by Act of Congress.--The Congress, by an Act of
Congress, may block or revoke a designation made under paragraph (1).
``(6) Revocation Based on Change in Circumstances.--
``(A) In general.--The Secretary may revoke a designation
made under paragraph (1) at any time, and shall revoke a
designation upon completion of a review conducted pursuant to
subparagraphs (B) and (C) of paragraph (4) if the Secretary
finds that--
``(i) the group, club, organization, or association
of 5 or more persons that has been designated as a
criminal gang is no longer described in section
101(a)(53); or
``(ii) the national security or the law enforcement
interests of the United States warrants a revocation.
``(B) Procedure.--The procedural requirements of paragraphs
(2) and (3) shall apply to a revocation under this paragraph.
Any revocation shall take effect on the date specified in the
revocation or upon publication in the Federal Register if no
effective date is specified.
``(7) Effect of Revocation.--The revocation of a designation under
paragraph (5) or (6) shall not affect any action or proceeding based on
conduct committed prior to the effective date of such revocation.
``(8) Use of Designation in Trial or Hearing.--If a designation
under this subsection has become effective under paragraph (2) an alien
in a removal proceeding shall not be permitted to raise any question
concerning the validity of the issuance of such designation as a
defense or an objection.
``(b) Amendments to a Designation.--
``(1) In general.--The Secretary may amend a designation
under this subsection if the Secretary finds that the group,
club, organization, or association of 5 or more persons has
changed its name, adopted a new alias, dissolved and then
reconstituted itself under a different name or names, or merged
with another group, club, organization, or association of 5 or
more persons.
``(2) Procedure.--Amendments made to a designation in
accordance with paragraph (1) shall be effective upon
publication in the Federal Register. Paragraphs (2), (4), (5),
(6), (7), and (8) of subsection (a) shall also apply to an
amended designation.
``(3) Administrative record.--The administrative record
shall be corrected to include the amendments as well as any
additional relevant information that supports those amendments.
``(4) Classified information.--The Secretary may consider
classified information in amending a designation in accordance
with this subsection. Classified information shall not be
subject to disclosure for such time as it remains classified,
except that such information may be disclosed to a court ex
parte and in camera for purposes of judicial review under
subsection (c) of this section.
``(c) Judicial Review of Designation.--
``(1) In general.--Not later than 30 days after publication
in the Federal Register of a designation, an amended
designation, or a determination in response to a petition for
revocation, the designated group, club, organization, or
association of 5 or more persons may seek judicial review in
the United States Court of Appeals for the District of Columbia
Circuit.
``(2) Basis of review.--Review under this subsection shall
be based solely upon the administrative record, except that the
Government may submit, for ex parte and in camera review,
classified information used in making the designation, amended
designation, or determination in response to a petition for
revocation.
``(3) Scope of review.--The Court shall hold unlawful and
set aside a designation, amended designation, or determination
in response to a petition for revocation the court finds to
be--
``(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
``(B) contrary to constitutional right, power,
privilege, or immunity;
``(C) in excess of statutory jurisdiction,
authority, or limitation, or short of statutory right;
``(D) lacking substantial support in the
administrative record taken as a whole or in classified
information submitted to the court under paragraph (2);
or
``(E) not in accord with the procedures required by
law.
``(4) Judicial review invoked.--The pendency of an action
for judicial review of a designation, amended designation, or
determination in response to a petition for revocation shall
not affect the application of this section, unless the court
issues a final order setting aside the designation, amended
designation, or determination in response to a petition for
revocation.
``(d) Definitions.--As used in this section--
``(1) the term `classified information' has the meaning
given that term in section 1(a) of the Classified Information
Procedures Act (18 U.S.C. App.);
``(2) the term `national security' means the national
defense, foreign relations, or economic interests of the United
States;
``(3) the term `relevant committees' means the Committees
on the Judiciary of the Senate and of the House of
Representatives; and
``(4) the term `Secretary' means the Secretary of Homeland
Security, in consultation with the Attorney General.''.
(2) Clerical amendment.--The table of contents for such Act
is amended by inserting after the item relating to section 219
the following:
``Sec. 220. Designation.''.
(d) Mandatory Detention of Criminal Gang Members.--
(1) In general.--Section 236(c)(1) of the Immigration and
Nationality Act (8 U.S.C. 1226(c)(1)) is amended--
(A) in subparagraph (C), by striking ``or'' at the
end;
(B) in subparagraph (D), by inserting ``or'' at the
end; and
(C) by inserting after subparagraph (D) the
following:
``(E) is inadmissible under section 212(a)(2)(J) or
deportable under section 217(a)(2)(G),''.
(2) Annual report.--Not later than March 1 of each year
(beginning 1 year after the date of the enactment of this Act),
the Secretary of Homeland Security, after consultation with the
appropriate Federal agencies, shall submit a report to the
Committees on the Judiciary of the House of Representatives and
of the Senate on the number of aliens detained under the
amendments made by paragraph (1).
(e) Asylum Claims Based on Gang Affiliation.--
(1) Inapplicability of restriction on removal to certain
countries.--Section 241(b)(3)(B) of the Immigration and
Nationality Act (8 U.S.C. 1251(b)(3)(B)) is amended, in the
matter preceding clause (i), by inserting ``who is described in
section 212(a)(2)(J)(i) or section 237(a)(2)(G)(i) or who is''
after ``to an alien''.
(2) Ineligibility for asylum.--Section 208(b)(2)(A) of such
Act (8 U.S.C. 1158(b)(2)(A)) (as amended by section 201 of this
Act) is further amended--
(A) in clause (v), by striking ``or'' at the end;
(B) by redesignating clause (vi) as clause (vii);
and
(C) by inserting after clause (v) the following:
``(vi) the alien is described in section
212(a)(2)(J)(i) or section 237(a)(2)(G)(i);
or''.
(f) Temporary Protected Status.--Section 244 of such Act (8 U.S.C.
1254a) is amended--
(1) by striking ``Attorney General'' each place it appears
and inserting ``Secretary of Homeland Security'';
(2) in subparagraph (c)(2)(B)--
(A) in clause (i), by striking ``or'' at the end;
(B) in clause (ii), by striking the period and
inserting ``; or''; and
(C) by adding at the end the following:
``(iii) the alien is, or at any time has
been, described in section 212(a)(2)(J) or
section 237(a)(2)(G).''; and
(3) in subsection (d)--
(A) by striking paragraph (3); and
(B) in paragraph (4), by adding at the end the
following: ``The Secretary of Homeland Security may
detain an alien provided temporary protected status
under this section whenever appropriate under any other
provision of law.''.
(g) Special Immigrant Juvenile Visas.--Section 101(a)(27)(J)(iii)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)(iii))
is amended--
(1) in subclause (I), by striking ``and'';
(2) in subclause (II), by adding ``and'' at the end; and
(3) by adding at the end the following:
``(III) no alien who is, or at any
time has been, described in section
212(a)(2)(J) or section 237(a)(2)(G)
shall be eligible for any immigration
benefit under this subparagraph;''.
(h) Parole.--An alien described in section 212(a)(2)(J) of the
Immigration and Nationality Act, as added by subsection (b), shall not
be eligible for parole under section 212(d)(5)(A) of such Act unless--
(1) the alien is assisting or has assisted the United
States Government in a law enforcement matter, including a
criminal investigation; and
(2) the alien's presence in the United States is required
by the Government with respect to such assistance.
SEC. 4. CRIMINAL GANG MEMBERS AND SUPPORTERS DISQUALIFIED FROM GOOD
MORAL CHARACTER PROVISION.
Section 101(f) of the Immigration and Nationality Act (8 U.S.C.
1101(f)) is amended--
(1) in paragraph (8), by striking ``or'' at the end;
(2) in paragraph (9), by striking the period at the end and
inserting ``; or'';
(3) by inserting after paragraph (9), the following:
``(10) one whom the Secretary of Homeland Security or the
Attorney General determines, in the unreviewable discretion of
the Secretary of Homeland Security or the Attorney General, to
be an alien who--
``(A) is or has ever been a member, associate or
affiliate of, or who has ever provided material support
to, a criminal gang;
``(B) is or has ever been a member, associate or
affiliate of, or who has ever provided material support
to, a criminal street gang (as defined in section 520
of title 18, United States Code); or
``(C) has been convicted of or has admitted
committing the essential elements of the following
offenses--
``(i) a felony drug offense (as defined in
section 102 of the Controlled Substances Act
(21 U.S.C. 802)); or
``(ii) has engaged in conduct punishable
under section 274, 277, or 278; or
``(iii) committed a crime of violence (as
defined in section 16 of title 18, United
States Code); or
``(iv) committed a crime involving
obstruction of justice, tampering with or
retaliating against a witness, victim, or
informant, or burglary; or
``(v) engaged in conduct punishable under
section 1028 or 1029, and sections 1541 through
1546 of title 18, United States Code; or
``(vi) engaged in conduct punishable under
sections 1581 through 1594 of title 18, United
States Code; or
``(vii) engaged in conduct punishable under
sections 1951, 1952, 1956, and 1957 of title
18, United States Code; or
``(viii) engaged in conduct punishable
under sections 2312 through 2315 of title 18,
United States Code; or
``(ix) attempted to engage in an offense
described in paragraphs (1) through (8) above,
or engaged in conduct punishable under sections
2 through 4, and sections 371 through 373 of
title 18, United States Code, in furtherance of
such an offense.''; and
(4) by adding at the end, at the end of the matter
following paragraph (10) (as inserted in this section), the
following: ``An alien shall be deemed to have `admitted the
essential elements of an offense' upon an oral or written
statement to such effect, or upon a conviction or formal
finding by a competent Federal, State or local court, tribunal
or military proceeding that said person has engaged in unlawful
conduct whose essential elements include those that would be
required for conviction of a disqualifying offense. A
determination by the Secretary of Homeland Security or Attorney
General that an alien does not exhibit good moral character
based on gang membership, association, affiliation, or
provision of material support, may be based upon any relevant
information or evidence, including classified, law enforcement
sensitive, or national security information and shall be
binding upon any court regardless of the applicable standard of
review.''.
SEC. 5. PROHIBITION AGAINST FILING.
(a) In General.--No person who--
(1) is or has ever been a member, associate or affiliate
of, or who has ever provided material support to, a criminal
gang (as defined in section 101 of the Immigration and
Nationality Act (8 U.S.C. 1101));
(2) is or has ever been a member, associate or affiliate
of, or who has ever provided material support to, a criminal
street gang (as defined in section 520 of title 18, United
States Code); or
(3) has been convicted of or has admitted the essential
elements of an offense as specified in subsection (b),
shall be permitted to file an application or petition, or submit an
affidavit of support, on behalf of an alien under any provision of the
immigration laws, nor shall such person be permitted to assume
custodial care for an unaccompanied alien minor.
(b) Disqualifying Offenses.--Offenses which disqualify a person
under subsection (a) are--
(1) a felony drug offense (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802));
(2) conduct punishable under section 274, 277, or 278 of
the Immigration and Nationality Act (8 U.S.C. 1324; 1327;
1328);
(3) a crime of violence (as defined in section 16 of title
18, United States Code);
(4) a crime involving obstruction of justice, tampering
with or retaliating against a witness, victim, or informant, or
burglary;
(5) conduct punishable under section 1028 or 1029, and
sections 1541 through 1546 of title 18, United States Code;
(6) conduct punishable under sections 1581 through 1594 of
title 18, United States Code;
(7) sections 1951, 1952, 1956, and 1957 of title 18, United
States Code;
(8) sections 2312 through 2315 of title 18 of the United
States Code; or
(9) any attempt to engage in an offense described in
paragraphs (1) through (8) above, or conduct punishable under
sections 2 through 4, and sections 371 through 373 of title 18,
United States Code in furtherance of such an offense.
(c) Admission of Essential Elements of an Offense.--A person shall
be deemed to have admitted the essential elements of an offense within
the meaning of subsection (a)(3) upon an oral or written statement to
such effect, or upon a conviction or formal finding by a competent
Federal, State or local court, tribunal or military proceeding that
said person has engaged in unlawful conduct whose essential elements
include those that would be required for conviction of a disqualifying
offense as described in subsection (b).
SEC. 6. DENATURALIZATION OF CRIMINAL GANG MEMBERS AND SUPPORTERS.
Section 340 of the Immigration and Nationality Act (8 U.S.C. 1451)
is amended by striking subsection (c) and inserting the following
language:
``(c) Membership in Certain Organizations; Prima Facie Evidence.--
``(1) In general.--If a person who shall have been
naturalized after December 24, 1952, shall within 10 years
following such naturalization become a member of or affiliated
with any organization, membership in or affiliation with which
at the time of naturalization would have precluded such person
from naturalization under the provisions of section 313, it
shall be considered prima facie evidence that such person was
not attached to the principles of the Constitution of the
United States and was not well disposed to the good order and
happiness of the United States at the time of naturalization,
and, in the absence of countervailing evidence, it shall be
sufficient in the proper proceeding to authorize the revocation
and setting aside of the order admitting such person to
citizenship and the cancellation of the certificate of
naturalization as having been obtained by concealment of a
material fact or by willful misrepresentation, and such
revocation and setting aside of the order admitting such person
to citizenship and such canceling of certificate of
naturalization shall be effective as of the original date of
the order and certificate, respectively.
``(2) Organization, membership in or affiliation with which
at the time of naturalization would have precluded such person
from naturalization.--The phrase `any organization, membership
in or affiliation with which at the time of naturalization
would have precluded such person from naturalization' shall be
deemed to include an alien who--
``(A) is or has ever been a member, associate or
affiliate of, or who has ever provided material support
to, a criminal gang;
``(B) is or has ever been a member, associate or
affiliate of, or who has ever provided material support
to, a criminal street gang as defined in section 520 of
title 18 of the United States Code; or
``(C) has been convicted of or has admitted
committing the essential elements of the following
offenses--
``(i) a felony drug offense (as defined in
section 102 of the Controlled Substances Act
(21 U.S.C. 802));
``(ii) has engaged in conduct punishable
under section 274, 277, or 278;
``(iii) committed a crime of violence (as
defined in section 16 of title 18, United
States Code);
``(iv) committed a crime involving
obstruction of justice, tampering with or
retaliating against a witness, victim, or
informant, or burglary;
``(v) engaged in conduct punishable under
section 1028 or 1029, and sections 1541 through
1546 of title 18, United States Code;
``(vi) engaged in conduct punishable under
sections 1581 through 1594 of title 18, United
States Code; or engaged in conduct punishable
under sections 1951, 1952, 1956, and 1957 of
title 18, United States Code;
``(vii) engaged in conduct punishable under
sections 2312 through 2315 of title 18, United
States Code; or
``(viii) attempted to engage in an offense
described in clauses (i) through (viii) above,
or engaged in conduct punishable under sections
2 through 4, and sections 371 through 373 of
title 18, United States Code in furtherance of
such an offense.
``(3) Deemed to have admitted.--An alien shall be deemed to
have admitted the essential elements of an offense within the
meaning of paragraph (2)(C) upon an oral or written statement
to such effect, or upon a conviction or formal finding by a
competent Federal, State or local court, tribunal or military
proceeding that said person has engaged in unlawful conduct
whose essential elements include those that would be required
for conviction of a disqualifying offense.''.
SEC. 7. EFFECTIVE DATE AND APPLICATION.
The amendments made by this Act shall take effect on the date of
the enactment of this Act, shall apply to any act that occurred before,
on, or after such date, and shall apply to any application for
naturalization or any other benefit or relief, or any other case or
matter under the immigration laws, pending on, or filed after, such
date.
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