Build the Wall, Enforce the Law Act of 2018
This bill amends the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to modify provisions relating to the enforcement of immigration laws. Specifically, the bill prohibits any individual (e.g., an employer) from restricting or interfering with the enforcement of the immigration laws by federal officials. It also denies states or localities (i.e., sanctuary jurisdictions) that fail to cooperate in the enforcement of the immigration laws eligibility for federal funds and law enforcement grants under the Omnibus Crime Control and Safe Streets Act of 1968.
The bill amends detainer provisions to authorize the Department of Homeland Security to issue detainers for the arrest of an illegal alien if there is probable cause to believe that the alien is inadmissible or deportable. It also provides qualified immunity to governmental and certain nongovernmental entities that detain an alien, except in cases of mistreatment, and allows a private right of action to relatives of victims of crime committed by an alien released from custody by a state or local governmental entity that failed to honor a detainer.
The bill also
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 7059 Introduced in House (IH)]
<DOC>
115th CONGRESS
2d Session
H. R. 7059
To fund construction of the southern border wall and to ensure
compliance with Federal immigration law.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 12, 2018
Mr. McCarthy introduced the following bill; which was referred to the
Committee on the Judiciary, and in addition to the Committees on
Homeland Security, Ways and Means, Armed Services, and the Budget, for
a period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned
_______________________________________________________________________
A BILL
To fund construction of the southern border wall and to ensure
compliance with Federal immigration law.
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 ``Build the Wall, Enforce the Law Act
of 2018''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Voting is fundamental to a functioning democracy.
(2) The Constitution prohibits discrimination in voting
based on race, sex, poll taxes, and age.
(3) It is of paramount importance that the United States
maintains the legitimacy of its elections and protects them
from interference, including interference from foreign threats
and illegal voting.
(4) The city of San Francisco, California, is allowing non-
citizens, including illegal immigrants, to register to vote in
school board elections.
(5) Federal law prohibits non-citizens from voting in
elections for Federal office.
(6) The national security interests of the United States
are dependent on the brave men and women who enforce our
Nation's immigration laws.
(7) Abolishing United States Immigration and Customs
Enforcement (ICE) would mean open borders because it would
eliminate the main agency responsible for removing people who
enter or remain in our country illegally.
(8) Calls to abolish ICE are an insult to these heroic law
enforcement officers who make sacrifices every day to secure
our borders, enforce our laws, and protect our safety and
security.
(9) Abolishing ICE would allow dangerous criminal aliens,
including violent and ruthless members of the MS-13 gang, to
remain in American communities.
(10) During fiscal year 2017, ICE Enforcement and Removal
Operations (ERO) arrested more than 127,000 aliens with
criminal convictions or charges.
(11) ICE ERO made 5,225 administrative arrests of suspected
gang members in fiscal year 2017.
(12) Criminal aliens arrested by ICE ERO in fiscal year
2017 were responsible for more than--
(A) 76,000 dangerous drug offenses;
(B) 48,000 assault offenses;
(C) 11,000 weapon offenses;
(D) 5,000 sexual assault offenses;
(E) 2,000 kidnapping offenses; and
(F) 1,800 homicide offenses.
(13) ICE Homeland Security Investigations made 4,818 gang-
related arrests in fiscal year 2017.
(14) ICE identified or rescued 904 sexually exploited
children; Whereas ICE identified or rescued 518 victims of
human trafficking; Whereas abolishing ICE would mean that
countless illegal aliens who could pose a threat to public
safety would be allowed to roam free instead of being removed
from American soil.
(15) Abolishing ICE would mean more dangerous illegal drugs
flowing into our communities, causing more Americans to
needlessly suffer.
(16) ICE plays a critical role in combatting the drug
crisis facing our Nation.
(17) ICE seized more than 980,000 pounds of narcotics in
fiscal year 2017, including thousands of pounds of the deadly
drugs fueling the opioid crisis.
(18) ICE seized 2,370 pounds of fentanyl and 6,967 pounds
of heroin in fiscal year 2017.
(19) ICE logged nearly 90,000 investigative hours directed
toward fentanyl in fiscal year 2017.
(20) Abolishing ICE would leave these drugs in our
communities to cause more devastation.
(21) Abolishing ICE would mean eliminating the agency that
deports aliens that pose a terrorist threat to the United
States.
(22) ICE was created in 2003 to better protect national
security and public safety after the 9/11 terrorists exploited
immigration laws to gain entry into the United States.
(23) The National Commission on Terrorist Attacks found
that many of the 9/11 hijackers committed visa violations.
(24) ICE identifies dangerous individuals before they enter
our country and locates them as they violate our immigration
laws.
(25) Abolishing ICE would enable the hundreds of thousands
of foreign nationals who illegally overstay their visa each
year to remain in the United States indefinitely.
SEC. 3. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) allowing illegal immigrants the right to vote devalues
the franchise and diminishes the voting power of United States
citizens; and
(2) Congress--
(A) supports all United States Immigration and
Customs Enforcement (ICE) officers and personnel who
carry out the important mission of ICE;
(B) denounces calls for the abolishment of ICE; and
(C) supports the efforts of all Federal agencies,
State law enforcement, and military personnel who bring
law and order to our Nation's borders.
SEC. 4. STATE NONCOMPLIANCE WITH ENFORCEMENT OF IMMIGRATION LAW.
(a) In General.--Section 642 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is amended--
(1) by striking subsection (a) and inserting the following:
``(a) In General.--Notwithstanding any other provision of Federal,
State, or local law, no Federal, State, or local government entity, and
no individual, may prohibit or in any way restrict, a Federal, State,
or local government entity, official, or other personnel from complying
with the immigration laws (as defined in section 101(a)(17) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(17))), or from
assisting or cooperating with Federal law enforcement entities,
officials, or other personnel regarding the enforcement of these
laws.'';
(2) by striking subsection (b) and inserting the following:
``(b) Law Enforcement Activities.--Notwithstanding any other
provision of Federal, State, or local law, no Federal, State, or local
government entity, and no individual, may prohibit, or in any way
restrict, a Federal, State, or local government entity, official, or
other personnel from undertaking any of the following law enforcement
activities as they relate to information regarding the citizenship or
immigration status, lawful or unlawful, the inadmissibility or
deportability, or the custody status, of any individual:
``(1) Making inquiries to any individual in order to obtain
such information regarding such individual or any other
individuals.
``(2) Notifying the Federal Government regarding the
presence of individuals who are encountered by law enforcement
officials or other personnel of a State or political
subdivision of a State.
``(3) Complying with requests for such information from
Federal law enforcement entities, officials, or other
personnel.'';
(3) in subsection (c), by striking ``Immigration and
Naturalization Service'' and inserting ``Department of Homeland
Security''; and
(4) by adding at the end the following:
``(d) Compliance.--
``(1) Eligibility for certain grant programs.--A State, or
a political subdivision of a State, that is found not to be in
compliance with subsection (a) or (b) shall not be eligible to
receive--
``(A) any of the funds that would otherwise be
allocated to the State or political subdivision under
section 241(i) of the Immigration and Nationality Act
(8 U.S.C. 1231(i)), the `Cops on the Beat' program
under part Q of title I of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3796dd et
seq.), or the Edward Byrne Memorial Justice Assistance
Grant Program under subpart 1 of part E of title I of
the Omnibus Crime Control and Safe Streets Act of 1968
(42 U.S.C. 3750 et seq.); or
``(B) any other grant administered by the
Department of Justice or the Department of Homeland
Security that is substantially related to law
enforcement, terrorism, national security, immigration,
or naturalization.
``(2) Exception.--A political subdivision is not found not
to be in compliance with subsection (a) or (b) as a consequence
of being required to comply with a statute or other legal
requirement of a State or another political subdivision with
jurisdiction over that political subdivision, and shall remain
eligible to receive grant funds described in paragraph (1). In
the case described in the previous sentence, the State or
political subdivision that enacted the statute or other legal
requirement shall not be eligible to receive such funds.
``(3) Transfer of custody of aliens pending removal
proceedings.--The Secretary, at the Secretary's discretion, may
decline to transfer an alien in the custody of the Department
of Homeland Security to a State or political subdivision of a
State found not to be in compliance with subsection (a) or (b),
regardless of whether the State or political subdivision of the
State has issued a writ or warrant.
``(4) Transfer of custody of certain aliens prohibited.--
The Secretary shall not transfer an alien with a final order of
removal pursuant to paragraph (1)(A) or (5) of section 241(a)
of the Immigration and Nationality Act (8 U.S.C. 1231(a)) to a
State or a political subdivision of a State that is found not
to be in compliance with subsection (a) or (b).
``(5) Annual determination.--The Secretary shall determine
for each calendar year which States or political subdivision of
States are not in compliance with subsection (a) or (b) and
shall report such determinations to Congress by March 1 of each
succeeding calendar year.
``(6) Reports.--The Secretary of Homeland Security shall
issue a report concerning the compliance with subsections (a)
and (b) of any particular State or political subdivision of a
State at the request of the House or the Senate Judiciary
Committee. Any jurisdiction that is found not to be in
compliance shall be ineligible to receive Federal financial
assistance as provided in paragraph (1) for a minimum period of
1 year, and shall only become eligible again after the
Secretary of Homeland Security certifies that the jurisdiction
has come into compliance.
``(7) Reallocation.--Any funds that are not allocated to a
State or to a political subdivision of a State due to the
failure of the State or of the political subdivision of the
State to comply with subsection (a) or (b) shall be reallocated
to States or to political subdivisions of States that comply
with both such subsections.
``(e) Construction.--Nothing in this section shall require law
enforcement officials from States, or from political subdivisions of
States, to report or arrest victims or witnesses of a criminal
offense.''.
(b) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act, except that subsection
(d) of section 642 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1373), as added by this section,
shall apply only to prohibited acts committed on or after the date of
the enactment of this Act.
SEC. 5. CLARIFYING THE AUTHORITY OF ICE DETAINERS.
(a) In General.--Section 287(d) of the Immigration and Nationality
Act (8 U.S.C. 1357(d)) is amended to read as follows:
``(d) Detainer of Inadmissible or Deportable Aliens.--
``(1) In general.--In the case of an individual who is
arrested by any Federal, State, or local law enforcement
official or other personnel for the alleged violation of any
criminal or motor vehicle law, the Secretary may issue a
detainer regarding the individual to any Federal, State, or
local law enforcement entity, official, or other personnel if
the Secretary has probable cause to believe that the individual
is an inadmissible or deportable alien.
``(2) Probable cause.--Probable cause is deemed to be
established if--
``(A) the individual who is the subject of the
detainer matches, pursuant to biometric confirmation or
other Federal database records, the identity of an
alien who the Secretary has reasonable grounds to
believe to be inadmissible or deportable;
``(B) the individual who is the subject of the
detainer is the subject of ongoing removal proceedings,
including matters where a charging document has already
been served;
``(C) the individual who is the subject of the
detainer has previously been ordered removed from the
United States and such an order is administratively
final;
``(D) the individual who is the subject of the
detainer has made voluntary statements or provided
reliable evidence that indicate that they are an
inadmissible or deportable alien; or
``(E) the Secretary otherwise has reasonable
grounds to believe that the individual who is the
subject of the detainer is an inadmissible or
deportable alien.
``(3) Transfer of custody.--If the Federal, State, or local
law enforcement entity, official, or other personnel to whom a
detainer is issued complies with the detainer and detains for
purposes of transfer of custody to the Department of Homeland
Security the individual who is the subject of the detainer, the
Department may take custody of the individual within 48 hours
(excluding weekends and holidays), but in no instance more than
96 hours, following the date that the individual is otherwise
to be released from the custody of the relevant Federal, State,
or local law enforcement entity.''.
(b) Immunity.--
(1) In general.--A State or a political subdivision of a
State (and the officials and personnel of the State or
subdivision acting in their official capacities), and a
nongovernmental entity (and its personnel) contracted by the
State or political subdivision for the purpose of providing
detention, acting in compliance with a Department of Homeland
Security detainer issued pursuant to this section who
temporarily holds an alien in its custody pursuant to the terms
of a detainer so that the alien may be taken into the custody
of the Department of Homeland Security, shall be considered to
be acting under color of Federal authority for purposes of
determining their liability and shall be held harmless for
their compliance with the detainer in any suit seeking any
punitive, compensatory, or other monetary damages.
(2) Federal government as defendant.--In any civil action
arising out of the compliance with a Department of Homeland
Security detainer by a State or a political subdivision of a
State (and the officials and personnel of the State or
subdivision acting in their official capacities), or a
nongovernmental entity (and its personnel) contracted by the
State or political subdivision for the purpose of providing
detention, the United States Government shall be the proper
party named as the defendant in the suit in regard to the
detention resulting from compliance with the detainer.
(3) Bad faith exception.--Paragraphs (1) and (2) shall not
apply to any mistreatment of an individual by a State or a
political subdivision of a State (and the officials and
personnel of the State or subdivision acting in their official
capacities), or a nongovernmental entity (and its personnel)
contracted by the State or political subdivision for the
purpose of providing detention.
(c) Private Right of Action.--
(1) Cause of action.--Any individual, or a spouse, parent,
or child of that individual (if the individual is deceased),
who is the victim of a murder, rape, or any felony, as defined
by the State, for which an alien (as defined in section
101(a)(3) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(3))) has been convicted and sentenced to a term of
imprisonment of at least 1 year, may bring an action against a
State or political subdivision of a State in the appropriate
Federal or State court if the State or political subdivision
released the alien from custody prior to the commission of such
crime as a consequence of the State or political subdivision's
declining to honor a detainer issued pursuant to section
287(d)(1) of the Immigration and Nationality Act (8 U.S.C.
1357(d)(1)).
(2) Limitation on bringing action.--An action brought under
this subsection may not be brought later than 10 years
following the occurrence of the crime, or death of a person as
a result of such crime, whichever occurs later.
(3) Attorney's fee and other costs.--In any action or
proceeding under this subsection the court shall allow a
prevailing plaintiff a reasonable attorneys' fee as part of the
costs, and include expert fees as part of the attorneys' fee.
SEC. 6. SARAH AND GRANT'S LAW.
(a) Detention of Aliens During Removal Proceedings.--
(1) Clerical amendments.--(A) Section 236 of the
Immigration and Nationality Act (8 U.S.C. 1226) is 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 such 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 such 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.--Section 236 of such Act (8 U.S.C.
1226) is amended by adding at the end the following:
``(f) Length of Detention.--
``(1) In general.--Notwithstanding any other provision of
this section, an alien may be detained, and for an alien
described in subsection (c) shall be detained, under this
section without time limitation, except as provided in
subsection (h), during the pendency of removal proceedings.
``(2) Construction.--The length of detention under this
section shall not affect detention under section 241.''.
(3) Detention of criminal aliens.--Section 236(c)(1) of
such Act (8 U.S.C. 1226(c)(1)) is amended--
(A) in subparagraph (C), by striking ``or'' at the
end;
(B) by inserting after subparagraph (D) the
following:
``(E) is unlawfully present in the United States
and has been convicted for driving while intoxicated
(including a conviction for driving while under the
influence or impaired by alcohol or drugs) without
regard to whether the conviction is classified as a
misdemeanor or felony under State law, or
``(F)(i)(I) is inadmissible under section
212(a)(6)(i),
``(II) is deportable by reason of a visa revocation
under section 221(i), or
``(III) is deportable under section
237(a)(1)(C)(i), and
``(ii) has been arrested or charged with a
particularly serious crime or a crime resulting in the
death or serious bodily injury (as defined in section
1365(h)(3) of title 18, United States Code) of another
person;''; and
(C) by amending the matter following subparagraph
(F) (as added by subparagraph (B) of this paragraph) 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.''.
(4) Administrative review.--Section 236 of the Immigration
and Nationality Act (8 U.S.C. 1226), as amended by paragraph
(2), is further amended by adding at the end the following:
``(g) Administrative Review.--The Attorney General's review of the
Secretary's custody determinations under subsection (a) for the
following classes of aliens 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:
``(1) Aliens in exclusion proceedings.
``(2) Aliens described in section 212(a)(3) or 237(a)(4).
``(3) Aliens described in subsection (c).
``(h) Release on Bond.--
``(1) In general.--An alien detained under subsection (a)
may seek release on bond. No bond may be granted except to an
alien who establishes by clear and convincing evidence that the
alien is not a flight risk or a danger to another person or the
community.
``(2) Certain aliens ineligible.--No alien detained under
subsection (c) may seek release on bond.''.
(5) 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 ``conditional parole'' and inserting
``recognizance''.
(B) Section 236(b) of such Act (8 U.S.C. 1226(b)) is
amended by striking ``parole'' and inserting ``recognizance''.
(b) Effective Date.--The amendments made by subsection (a) shall
take effect on the date of the enactment of this Act and shall apply to
any alien in detention under the provisions of section 236 of the
Immigration and Nationality Act (8 U.S.C. 1226), as so amended, or
otherwise subject to the provisions of such section, on or after such
date.
SEC. 7. ILLEGAL REENTRY.
Section 276 of the Immigration and Nationality Act (8 U.S.C. 1326)
is amended to read as follows:
``reentry of removed alien
``Sec. 276. (a) Reentry After Removal.--
``(1) In general.--Any alien who has been denied admission,
excluded, deported, or removed, or who has departed the United
States while an order of exclusion, deportation, or removal is
outstanding, and subsequently enters, attempts to enter,
crosses the border to, attempts to cross the border to, or is
at any time found in the United States, shall be fined under
title 18, United States Code, imprisoned not more than 2 years,
or both.
``(2) Exception.--If an alien sought and received the
express consent of the Secretary to reapply for admission into
the United States, or, with respect to an alien previously
denied admission and removed, the alien was not required to
obtain such advance consent under the Immigration and
Nationality Act or any prior Act, the alien shall not be
subject to the fine and imprisonment provided for in paragraph
(1).
``(b) Reentry of Criminal Offenders.--Notwithstanding the penalty
provided in subsection (a), if an alien described in that subsection
was convicted before such removal or departure--
``(1) for 3 or more misdemeanors or for a felony, the alien
shall be fined under title 18, United States Code, imprisoned
not more than 10 years, or both;
``(2) for a felony for which the alien was sentenced to a
term of imprisonment of not less than 30 months, the alien
shall be fined under such title, imprisoned not more than 15
years, or both;
``(3) for a felony for which the alien was sentenced to a
term of imprisonment of not less than 60 months, the alien
shall be fined under such title, imprisoned not more than 20
years, or both; or
``(4) for murder, rape, kidnapping, or a felony offense
described in chapter 77 (relating to peonage and slavery) or
113B (relating to terrorism) of such title, or for 3 or more
felonies of any kind, the alien shall be fined under such
title, imprisoned not more than 25 years, or both.
``(c) Reentry After Repeated Removal.--Any alien who has been
denied admission, excluded, deported, or removed 3 or more times and
thereafter enters, attempts to enter, crosses the border to, attempts
to cross the border to, or is at any time found in the United States,
shall be fined under title 18, United States Code, imprisoned not more
than 10 years, or both.
``(d) Proof of Prior Convictions.--The prior convictions described
in subsection (b) are elements of the crimes described, and the
penalties in that subsection shall apply only in cases in which the
conviction or convictions that form the basis for the additional
penalty are--
``(1) alleged in the indictment or information; and
``(2) proven beyond a reasonable doubt at trial or admitted
by the defendant.
``(e) Affirmative Defenses.--It shall be an affirmative defense to
a violation of this section that--
``(1) prior to the alleged violation, the alien had sought
and received the express consent of the Secretary of Homeland
Security to reapply for admission into the United States; or
``(2) with respect to an alien previously denied admission
and removed, the alien--
``(A) was not required to obtain such advance
consent under the Immigration and Nationality Act or
any prior Act; and
``(B) had complied with all other laws and
regulations governing the alien's admission into the
United States.
``(f) Reentry of Alien Removed Prior to Completion of Term of
Imprisonment.--Any alien removed pursuant to section 241(a)(4) who
enters, attempts to enter, crosses the border to, attempts to cross the
border to, or is at any time found in, the United States shall be
incarcerated for the remainder of the sentence of imprisonment which
was pending at the time of deportation without any reduction for parole
or supervised release unless the alien affirmatively demonstrates that
the Secretary of Homeland Security has expressly consented to the
alien's reentry. Such alien shall be subject to such other penalties
relating to the reentry of removed aliens as may be available under
this section or any other provision of law.
``(g) Definitions.--For purposes of this section and section 275,
the following definitions shall apply:
``(1) Crosses the border to the united states.--The term
`crosses the border' refers to the physical act of crossing the
border, regardless of whether the alien is free from official
restraint.
``(2) Felony.--The term `felony' means any criminal offense
punishable by a term of imprisonment of more than 1 year under
the laws of the United States, any State, or a foreign
government.
``(3) Misdemeanor.--The term `misdemeanor' means any
criminal offense punishable by a term of imprisonment of not
more than 1 year under the applicable laws of the United
States, any State, or a foreign government.
``(4) Official restraint.--The term `official restraint'
means any restraint known to the alien that serves to deprive
the alien of liberty and prevents the alien from going at large
into the United States. Surveillance unbeknownst to the alien
shall not constitute official restraint.
``(5) Removal.--The term `removal' includes any denial of
admission, exclusion, deportation, or removal, or any agreement
by which an alien stipulates or agrees to exclusion,
deportation, or removal.
``(6) State.--The term `State' means a State of the United
States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.''.
SEC. 8. 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 one 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 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 or tampering
with, or retaliating against, a witness, victim, or informant.
``(E) Any conduct punishable under sections 1028(a) 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).''.
(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 (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.''.
(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 (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.''.
(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:
``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.''.
(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'' 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).
(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)) (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''.
(g) 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.''.
(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'';
(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;''.
(i) 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.
(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.
SEC. 9. BORDER SECURITY FUNDING.
(a) Funding.--In addition to amounts otherwise made available by
this Act or any other provision of law, there is hereby appropriated to
the ``U.S. Customs and Border Protection--Procurement, Construction,
and Improvements'' account, out of any amounts in the Treasury not
otherwise appropriated, $23,400,000,000, to be available as described
in subsections (b) and (c), of which--
(1) $16,625,000,000 shall be for a border wall system along
the southern border of the United States, including physical
barriers and associated detection technology, roads, and
lighting; and
(2) $6,775,000,000 shall be for infrastructure, assets,
operations, and technology to enhance border security along the
southern border of the United States, including--
(A) border security technology, including
surveillance technology, at and between ports of entry;
(B) new roads and improvements to existing roads;
(C) U.S. Border Patrol facilities and ports of
entry;
(D) aircraft, aircraft-based sensors and associated
technology, vessels, spare parts, and equipment to
maintain such assets;
(E) a biometric entry and exit system; and
(F) family residential centers.
(b) Availability of Border Wall System Funds.--
(1) In general.--Of the amount appropriated in subsection
(a)(1)--
(A) $5,510,244,000 shall become available October
1, 2018;
(B) $1,715,000,000 shall become available October
1, 2019;
(C) $2,140,000,000 shall become available October
1, 2020;
(D) $1,735,000,000 shall become available October
1, 2021;
(E) $1,746,000,000 shall become available October
1, 2022;
(F) $1,776,000,000 shall become available October
1, 2023; and
(G) $2,002,756,000 shall become available October
1, 2024.
(2) Period of availability.--An amount made available under
subparagraph (A), (B), (C), (D), (E), (F), or (G) of paragraph
(1) shall remain available for five years after the date
specified in that subparagraph.
(c) Availability of Border Security Investment Funds.--
(1) In general.--Of the amount appropriated in subsection
(a)(2)--
(A) $500,000,000 shall become available October 1,
2018;
(B) $1,850,000,000 shall become available October
1, 2019;
(C) $1,950,000,000 shall become available October
1, 2020;
(D) $1,925,000,000 shall become available October
1, 2021; and
(E) $550,000,000 shall become available October 1,
2022.
(2) Period of availability.--An amount made available under
subparagraph (A), (B), (C), (D), or (E) of paragraph (1) shall
remain available for five years after the date specified in
that subparagraph.
(3) Transfer authority.--
(A) In general.--Notwithstanding any limitation on
transfer authority in any other provision of law and
subject to the notification requirement in subparagraph
(B), the Secretary of Homeland Security may transfer
any amounts made available under paragraph (1) to the
``U.S. Customs and Border Protection--Operations and
Support'' account only to the extent necessary to carry
out the purposes described in subsection (a)(2).
(B) Notification required.--The Secretary shall
notify the Committees on Appropriations of the Senate
and the House of Representatives not later than 30 days
before each such transfer.
(d) Multi-Year Spending Plan.--The Secretary of Homeland Security
shall include in the budget justification materials submitted in
support of the President's annual budget request for fiscal year 2020
(as submitted under section 1105(a) of title 31, United States Code) a
multi-year spending plan for the amounts made available under
subsection (a).
(e) Expenditure Plan.--Each amount that becomes available in
accordance with subsection (b) or (c) may not be obligated until the
date that is 30 days after the date on which the Committees on
Appropriations of the Senate and the House of Representatives receive a
detailed plan, prepared by the Commissioner of U.S. Customs and Border
Protection, for the expenditure of such amount.
(f) Quarterly Briefing Requirement.--Beginning not later than 180
days after the date of the enactment of this Act, and quarterly
thereafter, the Commissioner of U.S. Customs and Border Protection
shall brief the Committees on Appropriations of the Senate and the
House of Representatives regarding activities under and progress made
in carrying out this section.
(g) Rules of Construction.--Nothing in this section may be
construed to limit the availability of funds made available by any
other provision of law for carrying out the requirements of this Act or
the amendments made by this Act. Any reference in this section to an
appropriation account shall be construed to include any successor
accounts.
(h) Discretionary Amounts.--Notwithstanding any other provision of
law, the amounts appropriated under subsection (a) are discretionary
appropriations (as that term is defined in section 250(c)(7) of the
Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C.
900(c)(7)).
SEC. 10. EXCLUSION FROM PAYGO SCORECARDS.
The budgetary effects of this Act shall not be entered on either
PAYGO scorecard maintained pursuant to section 4(d) of the Statutory
Pay-As-You-Go Act of 2010.
<all>
Introduced in House
Introduced in House
Referred to the Committee on the Judiciary, and in addition to the Committees on Homeland Security, Ways and Means, Armed Services, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committees on Homeland Security, Ways and Means, Armed Services, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committees on Homeland Security, Ways and Means, Armed Services, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committees on Homeland Security, Ways and Means, Armed Services, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committees on Homeland Security, Ways and Means, Armed Services, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
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Referred to the Subcommittee on Trade.