[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 1056 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
1st Session
S. 1056
To amend the Immigration and Nationality Act with respect to aliens
associated with criminal gangs, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 25, 2021
Mr. Kennedy introduced the following bill; which was read twice and
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 ``Criminal Alien Gang Member Removal
Act''.
SEC. 2. GROUNDS OF INADMISSIBILITY AND DEPORTABILITY FOR ALIEN GANG
MEMBERS.
(a) Definition of Gang Member.--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 5 or more persons that has, as 1 of its
primary purposes, the commission of 1 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 such 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 any offense described in
subparagraphs (A) through (E).''.
(b) Inadmissibility.--Section 212(a)(2) of such 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; or
``(ii) to have participated in the
activities of a criminal gang, knowing or
having reason to know that such activities will
promote, further, aid, or support the illegal
activity of the criminal gang.''.
(c) 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; or
``(ii) has participated in the activities
of a criminal gang, knowing or having reason to
know that such activities will promote,
further, aid, or support the illegal activity
of the criminal gang.''.
(d) 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:
``SEC. 220. DESIGNATION OF CRIMINAL GANG.
``(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.--Not later than 7 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 for such designation.
``(B) Publication in the federal register.--The
Secretary shall publish the designation in the Federal
Register 7 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 no review has taken
place under subparagraph (B) in a 5-year
period, 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 apply to an amended
designation.
``(3) Administrative record.--The administrative record
shall be corrected to include the amendments and 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).
``(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.--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--
``(A) the Committee on the Judiciary of the Senate;
and
``(B) the Committee on the Judiciary 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 the
Immigration and Nationality Act (8 U.S.C. 1101 note) is amended
by inserting after the item relating to section 219 the
following:
``Sec. 220. Designation of criminal gang.''.
(e) 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'' and
inserting a semicolon;
(B) in subparagraph (D), by striking the comma at
the end and inserting ``; or''; 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
Committee on the Judiciary of the Senate and the Committee on
the Judiciary of the House of Representatives regarding the
number of aliens detained as a result of the amendments made by
paragraph (1).
(f) 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)) is 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''.
(g) Temporary Protected Status.--Section 244 of the Immigration and
Nationality Act (8 U.S.C. 1254a) is amended--
(1) by striking ``Attorney General'' each place such term
appears and inserting ``Secretary of Homeland Security'';
(2) in subsection (c)(2)(B)--
(A) in clause (i), by striking ``, or'' and
inserting a semicolon;
(B) in clause (ii), by striking the period at the
end 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
237(a)(2)(G).''; and
(3) in subsection (d)--
(A) by striking paragraph (3);
(B) by redesignating paragraph (4) as paragraph
(3); and
(C) in paragraph (3), as redesignated, 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.''.
(h) 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'' at the end;
(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 237(a)(2)(G) shall be
eligible for any immigration benefit
under this subparagraph;''.
(i) Parole.--An alien described in section 212(a)(2)(J) of the
Immigration and Nationality Act, as added by subsection (b), is not
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.
(j) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act and shall apply to acts
that occur before, on, or after the date of the enactment of this Act.
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