[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6090 Introduced in House (IH)]








109th CONGRESS
  2d Session
                                H. R. 6090

   To reform immigration litigation procedures and combat alien gang 
                                 crime.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 15, 2006

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

_______________________________________________________________________

                                 A BILL


 
   To reform immigration litigation procedures and combat alien gang 
                                 crime.

    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 ``Effective Immigration Enforcement 
and Community Protection Act of 2006''.

             TITLE I--ENDING CATCH AND RELEASE ACT OF 2006

SEC. 101. APPROPRIATE REMEDIES FOR IMMIGRATION LEGISLATION.

    (a) Requirements for an Order Granting Prospective Relief Against 
the Government.--
            (1) In general.--If a court determines that prospective 
        relief should be ordered against the Government in any civil 
        action pertaining to the administration or enforcement of the 
        immigration laws of the United States, the court shall--
                    (A) limit the relief to the minimum necessary to 
                correct the violation of law;
                    (B) adopt the least intrusive means to correct the 
                violation of law;
                    (C) minimize, to the greatest extent practicable, 
                the adverse impact on national security, border 
                security, immigration administration and enforcement, 
                and public safety; and
                    (D) provide for the expiration of the relief on a 
                specific date, which is not later than the earliest 
                date necessary for the Government to remedy the 
                violation.
            (2) Written explanation.--The requirements described in 
        subparagraph (A) shall be discussed and explained in writing in 
        the order granting prospective relief and must be sufficiently 
        detailed to allow review by another court.
            (3) Expiration of preliminary injunctive relief.--
        Preliminary injunctive relief shall automatically expire on the 
        date that is 90 days after the date on which such relief is 
        entered, unless the court--
                    (A) makes the findings required under paragraph (1) 
                for the entry of permanent prospective relief; and
                    (B) makes the order final before expiration of such 
                90-day period.
            (4) Requirements for order denying motion.--This subsection 
        shall apply to any order denying the Government's motion to 
        vacate, modify, dissolve or otherwise terminate an order 
        granting prospective relief in any civil action pertaining to 
        the administration or enforcement of the immigration laws of 
        the United States.
    (b) Procedure for Motion Affecting Order Granting Prospective 
Relief Against the Government.--
            (1) In general.--A court shall promptly rule on the 
        Government's motion to vacate, modify, dissolve or otherwise 
        terminate an order granting prospective relief in any civil 
        action pertaining to the administration or enforcement of the 
        immigration laws of the United States.
            (2) Automatic stays.--
                    (A) In general.--The Government's motion to vacate, 
                modify, dissolve, or otherwise terminate an order 
                granting prospective relief made in any civil action 
                pertaining to the administration or enforcement of the 
                immigration laws of the United States shall 
                automatically, and without further order of the court, 
                stay the order granting prospective relief on the date 
                that is 15 days after the date on which such motion is 
                filed unless the court previously has granted or denied 
                the Government's motion.
                    (B) Duration of automatic stay.--An automatic stay 
                under subparagraph (A) shall continue until the court 
                enters an order granting or denying the Government's 
                motion.
                    (C) Postponement.--The court, for good cause, may 
                postpone an automatic stay under subparagraph (A) for 
                not longer than 15 days.
                    (D) Orders blocking automatic stays.--Any order 
                staying, suspending, delaying, or otherwise barring the 
                effective date of the automatic stay described in 
                subparagraph (A), other than an order to postpone the 
                effective date of the automatic stay for not longer 
                than 15 days under subparagraph (C), shall be--
                            (i) treated as an order refusing to vacate, 
                        modify, dissolve or otherwise terminate an 
                        injunction; and
                            (ii) immediately appealable under section 
                        1292(a)(1) of title 28, United States Code.
    (c) Settlements.--
            (1) Consent decrees.--In any civil action pertaining to the 
        administration or enforcement of the immigration laws of the 
        United States, the court may not enter, approve, or continue a 
        consent decree that does not comply with subsection (a).
            (2) Private settlement agreements.--Nothing in this section 
        shall preclude parties from entering into a private settlement 
        agreement that does not comply with subsection (a) if the terms 
        of that agreement are not subject to court enforcement other 
        than reinstatement of the civil proceedings that the agreement 
        settled.
    (d) Expedited Proceedings.--It shall be the duty of every court to 
advance on the docket and to expedite the disposition of any civil 
action or motion considered under this section.
    (e) Definitions.--In this section:
            (1) Consent decree.--The term ``consent decree''--
                    (A) means any relief entered by the court that is 
                based in whole or in part on the consent or 
                acquiescence of the parties; and
                    (B) does not include private settlements.
            (2) Good cause.--The term ``good cause'' does not include 
        discovery or congestion of the court's calendar.
            (3) Government.--The term ``Government'' means the United 
        States, any Federal department or agency, or any Federal agent 
        or official acting within the scope of official duties.
            (4) Permanent relief.--The term ``permanent relief'' means 
        relief issued in connection with a final decision of a court.
            (5) Private settlement agreement.--The term ``private 
        settlement agreement'' means an agreement entered into among 
        the parties that is not subject to judicial enforcement other 
        than the reinstatement of the civil action that the agreement 
        settled.
            (6) Prospective relief.--The term ``prospective relief'' 
        means temporary, preliminary, or permanent relief other than 
        compensatory monetary damages.

SEC. 102. EFFECTIVE DATE.

    (a) In General.--This title shall apply with respect to all orders 
granting prospective relief in any civil action pertaining to the 
administration or enforcement of the immigration laws of the United 
States, whether such relief was ordered before, on, or after the date 
of the enactment of this Act.
    (b) Pending Motions.--Every motion to vacate, modify, dissolve or 
otherwise terminate an order granting prospective relief in any such 
action, which motion is pending on the date of the enactment of this 
Act, shall be treated as if it had been filed on such date of 
enactment.
    (c) Automatic Stay for Pending Motions.--
            (1) In general.--An automatic stay with respect to the 
        prospective relief that is the subject of a motion described in 
        subsection (b) shall take effect without further order of the 
        court on the date which is 10 days after the date of the 
        enactment of this Act if the motion--
                    (A) was pending for 45 days as of the date of the 
                enactment of this Act; and
                    (B) is still pending on the date which is 10 days 
                after such date of enactment.
            (2) Duration of automatic stay.--An automatic stay that 
        takes effect under paragraph (1) shall continue until the court 
        enters an order granting or denying the Government's motion 
        under section 101(b). There shall be no further postponement of 
        the automatic stay with respect to any such pending motion 
        under section 101(b)(2). Any order, staying, suspending, 
        delaying or otherwise barring the effective date of this 
        automatic stay with respect to pending motions described in 
        subsection (b) shall be an order blocking an automatic stay 
        subject to immediate appeal under section 101(b)(2)(D).

                TITLE II--ALIEN GANG REMOVAL ACT OF 2006

SEC. 201. RENDERING INADMISSIBLE AND DEPORTABLE ALIENS PARTICIPATING IN 
              CRIMINAL STREET GANGS.

    (a) Inadmissible.--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) Criminal street gang participation.--
                            ``(i) In general.--Any alien is 
                        inadmissible if--
                                    ``(I) the alien has been removed 
                                under section 237(a)(2)(F); or
                                    ``(II) the consular officer or the 
                                Secretary of Homeland Security knows, 
                                or has reasonable ground to believe 
                                that the alien--
                                            ``(aa) is a member of a 
                                        criminal street gang and has 
                                        committed, conspired, or 
                                        threatened to commit, or seeks 
                                        to enter the United States to 
                                        engage solely, principally, or 
                                        incidentally in, a gang crime 
                                        or any other unlawful activity; 
                                        or
                                            ``(bb) is a member of a 
                                        criminal street gang designated 
                                        under section 219A.
                            ``(ii) Definitions.--For purposes of this 
                        subparagraph:
                                    ``(I) Criminal street gang.--The 
                                term `criminal street gang' means a 
                                formal or informal group or association 
                                of 3 or more individuals, who commit 2 
                                or more gang crimes (one of which is a 
                                crime of violence, as defined in 
                                section 16 of title 18, United States 
                                Code) in 2 or more separate criminal 
                                episodes in relation to the group or 
                                association.
                                    ``(II) Gang crime.--The term `gang 
                                crime' means conduct constituting any 
                                Federal or State crime, punishable by 
                                imprisonment for one year or more, in 
                                any of the following categories:
                                            ``(aa) A crime of violence 
                                        (as defined in section 16 of 
                                        title 18, United States Code) .
                                            ``(bb) A crime involving 
                                        obstruction of justice, 
                                        tampering with or retaliating 
                                        against a witness, victim, or 
                                        informant, or burglary.
                                            ``(cc) A crime involving 
                                        the manufacturing, importing, 
                                        distributing, possessing with 
                                        intent to distribute, or 
                                        otherwise dealing in a 
                                        controlled substance or listed 
                                        chemical (as those terms are 
                                        defined in section 102 of the 
                                        Controlled Substances Act (21 
                                        U.S.C. 802)).
                                            ``(dd) Any conduct 
                                        punishable under section 844 of 
                                        title 18, United States Code 
                                        (relating to explosive 
                                        materials), subsection (d), 
                                        (g)(1) (where the underlying 
                                        conviction is a violent felony 
                                        (as defined in section 
                                        924(e)(2)(B) of such title) or 
                                        is a serious drug offense (as 
                                        defined in section 
                                        924(e)(2)(A)), (i), (j), (k), 
                                        (o), (p), (q), (u), or (x) of 
                                        section 922 of such title 
                                        (relating to unlawful acts), or 
                                        subsection (b), (c), (g), (h), 
                                        (k), (l), (m), or (n) of 
                                        section 924 of such title 
                                        (relating to penalties), 
                                        section 930 of such title 
                                        (relating to possession of 
                                        firearms and dangerous weapons 
                                        in Federal facilities), section 
                                        931 of such title (relating to 
                                        purchase, ownership, or 
                                        possession of body armor by 
                                        violent felons), sections 1028 
                                        and 1029 of such title 
                                        (relating to fraud and related 
                                        activity in connection with 
                                        identification documents or 
                                        access devices), 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).
                                            ``(ee) Any conduct 
                                        punishable 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) of this 
                                        Act.''.
    (b) Deportable.--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:
                    ``(F) Criminal street gang participation.--
                            ``(i) In general.--Any alien is deportable 
                        who--
                                    ``(I) is a member of a criminal 
                                street gang and is convicted of 
                                committing, or conspiring, threatening, 
                                or attempting to commit, a gang crime; 
                                or
                                    ``(II) is determined by the 
                                Secretary of Homeland Security to be a 
                                member of a criminal street gang 
                                designated under section 219A.
                            ``(ii) Definitions.--For purposes of this 
                        subparagraph, the terms `criminal street gang' 
                        and `gang crime' have the meaning given such 
                        terms in section 212(a)(2)(J)(ii).''.
    (c) Designation of Criminal Street Gangs.--
            (1) In general.--Chapter 2 of title II of the Immigration 
        and Nationality Act (8 U.S.C. 1181 et seq.) is amended by 
        adding at the end the following:

                 ``designation of criminal street gangs

    ``Sec. 219A.  (a) Designation.--
            ``(1) In general.--The Attorney General is authorized to 
        designate a group or association as a criminal street gang in 
        accordance with this subsection if the Attorney General finds 
        that the group or association meets the criteria described in 
        section 212(a)(2)(J)(ii)(I).
            ``(2) Procedure.--
                    ``(A) Notice.--
                            ``(i) To congressional leaders.--Seven days 
                        before making a designation under this 
                        subsection, the Attorney General 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 or association under this 
                        subsection, together with the findings made 
                        under paragraph (1) with respect to that group 
                        or association, and the factual basis therefor.
                            ``(ii) Publication in federal register.--
                        The Attorney shall publish the designation in 
                        the Federal Register seven days after providing 
                        the notification under clause (i).
                    ``(B) Effect of designation.--
                            ``(i) A designation under this subsection 
                        shall take effect upon publication under 
                        subparagraph (A)(ii).
                            ``(ii) Any designation under this 
                        subsection shall cease to have effect upon an 
                        Act of Congress disapproving such designation.
            ``(3) Record.--In making a designation under this 
        subsection, the Attorney General shall create an administrative 
        record.
            ``(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 (b).
                    ``(B) Review of designation upon petition.--
                            ``(i) In general.--The Attorney General 
                        shall review the designation of a criminal 
                        street gang under the procedures set forth in 
                        clauses (iii) and (iv) if the designated gang 
                        or association 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 gang or 
                                association 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 gang or 
                                association 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 criminal street 
                        gang that submits a petition for revocation 
                        under this subparagraph must provide evidence 
                        in that petition that the relevant 
                        circumstances described in paragraph (1) are 
                        sufficiently different from the circumstances 
                        that were the basis for the designation such 
                        that a revocation with respect to the gang is 
                        warranted.
                            ``(iv) Determination.--
                                    ``(I) In general.--Not later than 
                                180 days after receiving a petition for 
                                revocation submitted under this 
                                subparagraph, the Attorney General 
                                shall make a determination as to such 
                                revocation.
                                    ``(II) Publication of 
                                determination.--A determination made by 
                                the Attorney General under this clause 
                                shall be published in the Federal 
                                Register.
                                    ``(III) Procedures.--Any revocation 
                                by the Attorney General 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 Attorney General shall review the 
                        designation of the criminal street 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 Attorney General. 
                        The results of such review and the applicable 
                        procedures shall not be reviewable in any 
                        court.
                            ``(iii) Publication of results of review.--
                        The Attorney General 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 Attorney General 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 Attorney General finds that--
                            ``(i) the circumstances that were the basis 
                        for the designation have changed in such a 
                        manner as to warrant revocation; or
                            ``(ii) the national security 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 hearing.--If a designation 
        under this subsection has become effective under paragraph 
        (2)(B) 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 at any 
        hearing.
    ``(b) Judicial Review of Designation.--
            ``(1) In general.--Not later than 30 days after publication 
        of the designation in the Federal Register, an group or 
        association designated as a criminal street gang may seek 
        judicial review of the designation 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.
            ``(3) Scope of review.--The Court shall hold unlawful and 
        set aside a designation 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
                    ``(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 shall not affect the 
        application of this section, unless the court issues a final 
        order setting aside the designation.
    ``(c) Relevant Committee Defined.--As used in this section, the 
term `relevant committees' means the Committees on the Judiciary of the 
House of Representatives and of the Senate.''.
            (2) Clerical amendment.--The table of contents for the 
        Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is 
        amended by inserting after the item relating to section 219 the 
        following:

``Sec. 219A. Designation of criminal street gangs.''.

SEC. 202. MANDATORY DETENTION OF SUSPECTED CRIMINAL STREET GANG 
              MEMBERS.

    (a) In General.--Section 236(c)(1)(D) of the Immigration and 
Nationality Act (8 U.S.C. 1226(c)(1)(D)) is amended--
            (1) by inserting ``or 212(a)(2)(J)'' after 
        ``212(a)(3)(B)''; and
            (2) by inserting ``or 237(a)(2)(F)'' before 
        ``237(a)(4)(B)''.
    (b) 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 subsection (a).

SEC. 203. INELIGIBILITY FROM PROTECTION FROM REMOVAL AND ASYLUM.

    (a) 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)(F)(i) or who is'' after ``to an alien''.
    (b) Ineligibility for Asylum.--Section 208(b)(2)(A) of such Act (8 
U.S.C. 1158(b)(2)(A)) is amended--
            (1) in clause (v), by striking ``or'' at the end;
            (2) by redesignating clause (vi) as clause (vii); and
            (3) by inserting after clause (v) the following:
                            ``(vi) the alien is described in section 
                        212(a)(2)(J)(i) or section 237(a)(2)(F)(i) 
                        (relating to participation in criminal street 
                        gangs); or''.
    (c) Denial of Review of Determination of Ineligibility for 
Temporary Protected Status.--Section 244(c)(2) of such Act (8 U.S.C. 
1254(c)(2)) is amended by adding at the end the following:
                    ``(C) Limitation on judicial review.--There shall 
                be no judicial review of any finding under subparagraph 
                (B) that an alien is in described in section 
                208(b)(2)(A)(vi).''.
                                 <all>