[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6843 Introduced in House (IH)]







110th CONGRESS
  2d Session
                                H. R. 6843

  To strengthen procedures regarding detention and removal of aliens.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 9, 2008

    Mr. Mahoney of Florida introduced the following bill; which was 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To strengthen procedures regarding detention and removal of aliens.

    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 ``Officer Andrew Widman Criminal Alien 
Enforcement Act of 2008''.

SEC. 2. DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED.

    (a) Strengthening Procedures Regarding Aliens Ordered Removed, 
Including Dangerous Aliens.--Section 241(a) (8 U.S.C. 1231(a)) is 
amended--
            (1) by striking ``Attorney General'' the first place it 
        appears, except for the first reference in clause (a)(4)(B)(i), 
        and inserting ``Secretary of Homeland Security'';
            (2) by striking ``Attorney General'' any other place it 
        appears and inserting ``Secretary'';
            (3) in paragraph (1)--
                    (A) in subparagraph (B), by amending clause (ii) to 
                read as follows:
    ``(ii) If a court, the Board of Immigration Appeals, or an 
immigration judge orders a stay of the removal of the alien, the 
expiration date of the stay of removal.'';
                    (B) by amending subparagraph (C) to read as 
                follows:
                    ``(C) Extension of detention for uncooperative 
                removable aliens.--The removal period shall be extended 
                beyond a period of 90 days and the alien may remain in 
                detention during such extended period if the alien 
                fails or refuses to--
                            ``(i) make all reasonable efforts to comply 
                        with the removal order; or
                            ``(ii) fully cooperate with the Secretary's 
                        efforts to establish the alien's identity and 
                        carry out the removal order, including failing 
                        to make timely application in good faith for 
                        travel or other documents necessary to the 
                        alien's departure, or conspiring or acting to 
                        prevent the alien's removal.''; and
                    (C) by adding at the end the following:
                    ``(D) Tolling of period.--If, at the time described 
                in subparagraph (B), the alien is not in the custody of 
                the Secretary under the authority of this Act, the 
                removal period shall not begin until the alien is taken 
                into such custody. If the Secretary lawfully transfers 
                custody of the alien during the removal period to 
                another Federal agency or to a State or local 
                government agency in connection with the official 
                duties of such agency, the removal period shall be 
                tolled, and shall recommence on the date on which the 
                alien is returned to the custody of the Secretary.'';
            (4) in paragraph (2), by adding at the end the following: 
        ``If a court, the Board of Immigration Appeals, or an 
        immigration judge orders a stay of removal of an alien who is 
        subject to an administrative final order of removal, the 
        Secretary, in the exercise of discretion, may detain the alien 
        during the pendency of such stay of removal.'';
            (5) in paragraph (3), by amending subparagraph (D) to read 
        as follows:
                    ``(D) to obey reasonable restrictions on the 
                alien's conduct or activities, or to perform 
                affirmative acts, that the Secretary prescribes for the 
                alien--
                            ``(i) to prevent the alien from absconding;
                            ``(ii) for the protection of the community; 
                        or
                            ``(iii) for other purposes related to the 
                        enforcement of the immigration laws.'';
            (6) in paragraph (6), by striking ``removal period and, if 
        released,'' and inserting ``removal period, in the discretion 
        of the Secretary, without any limitations other than those 
        specified in this section, until the alien is removed. If an 
        alien is released, the alien'';
            (7) by redesignating paragraph (7) as paragraph (10); and
            (8) by inserting after paragraph (6) the following:
            ``(7) Parole.--If an alien detained pursuant to paragraph 
        (6) is an applicant for admission, the Secretary of Homeland 
        Security, in the Secretary's discretion, may parole the alien 
        under section 212(d)(5) and may provide, notwithstanding 
        section 212(d)(5), that the alien shall not be returned to 
        custody unless either the alien violates the conditions of the 
        alien's parole or the alien's removal becomes reasonably 
        foreseeable, provided that in no circumstance shall such alien 
        be considered admitted.
            ``(8) Additional rules for detention of aliens.--The 
        following procedures shall apply to an alien detained under 
        this section:
                    ``(A) Detention review process for aliens who have 
                effected an entry and fully cooperate with removal.--
                The Secretary of Homeland Security shall establish an 
                administrative review process to determine whether an 
                alien described in subparagraph (B) should be detained 
                or released after the removal period in accordance with 
                this paragraph.
                    ``(B) Alien described.--An alien is described in 
                this subparagraph if the alien--
                            ``(i) has effected an entry into the United 
                        States;
                            ``(ii) has made all reasonable efforts to 
                        comply with the alien's removal order;
                            ``(iii) has cooperated fully with the 
                        Secretary's efforts to establish the alien's 
                        identity and to carry out the removal order, 
                        including making timely application in good 
                        faith for travel or other documents necessary 
                        for the alien's departure; and
                            ``(iv) has not conspired or acted to 
                        prevent removal.
                    ``(C) Evidence.--In making a determination under 
                subparagraph (A), the Secretary--
                            ``(i) shall consider any evidence submitted 
                        by the alien;
                            ``(ii) may consider any other evidence, 
                        including--
                                    ``(I) any information or assistance 
                                provided by the Department of State or 
                                other Federal agency; and
                                    ``(II) any other information 
                                available to the Secretary pertaining 
                                to the ability to remove the alien.
                    ``(D) Authority to detain aliens for 90 days beyond 
                removal period.--The Secretary, in the exercise of the 
                Secretary's discretion and without any limitations 
                other than those specified in this section, may detain 
                an alien for 90 days beyond the removal period 
                (including any extension of the removal period under 
                paragraph (1)(C)).
                    ``(E) Authority to detain dangerous aliens for 
                additional period.--The Secretary, in the exercise of 
                the Secretary's discretion and without any limitations 
                other than those specified in this section, may detain 
                an alien beyond the 90-day period authorized under 
                subparagraph (D) until the alien is removed, if the 
                Secretary--
                            ``(i) determines that there is a 
                        significant likelihood that the alien will be 
                        removed in the reasonably foreseeable future; 
                        or
                            ``(ii) certifies in writing--
                                    ``(I) in consultation with the 
                                Secretary of Health and Human Services, 
                                that the alien has a highly contagious 
                                disease that poses a threat to public 
                                safety;
                                    ``(II) after receipt of a written 
                                recommendation from the Secretary of 
                                State, that the release of the alien 
                                would likely have serious adverse 
                                foreign policy consequences for the 
                                United States;
                                    ``(III) based on information 
                                available to the Secretary (including 
                                classified, sensitive, or national 
                                security information, and regardless of 
                                the grounds upon which the alien was 
                                ordered removed), that there is reason 
                                to believe that the release of the 
                                alien would threaten the national 
                                security of the United States;
                                    ``(IV) that--
                                            ``(aa) the release of the 
                                        alien would threaten the safety 
                                        of the community or any person, 
                                        and conditions of release 
                                        cannot reasonably be expected 
                                        to ensure the safety of the 
                                        community or any person; and
                                            ``(bb) the alien--

                                                    ``(AA) has been 
                                                convicted of 1 or more 
                                                aggravated felonies (as 
                                                defined in section 
                                                101(a)(43)(A)), or of 1 
                                                or more attempts or 
                                                conspiracies to commit 
                                                any such aggravated 
                                                felonies for an 
                                                aggregate term of 
                                                imprisonment of at 
                                                least 5 years; or

                                                    ``(BB) has 
                                                committed a crime of 
                                                violence (as defined in 
                                                section 16 of title 18, 
                                                United States Code, but 
                                                not including a purely 
                                                political offense) and, 
                                                because of a mental 
                                                condition or 
                                                personality disorder 
                                                and behavior associated 
                                                with that condition or 
                                                disorder, is likely to 
                                                engage in acts of 
                                                violence in the future; 
                                                or

                                    ``(V) that--
                                            ``(aa) the release of the 
                                        alien would threaten the safety 
                                        of the community or any person, 
                                        notwithstanding conditions of 
                                        release designed to ensure the 
                                        safety of the community or any 
                                        person; and
                                            ``(bb) the alien has been 
                                        convicted of 1 or more 
                                        aggravated felonies (as defined 
                                        in section 101(a)(43)) for 
                                        which the alien was sentenced 
                                        to an aggregate term of 
                                        imprisonment of not less than 1 
                                        year.
                    ``(F) Attorney general review.--If the Secretary 
                authorizes an extension of detention under subparagraph 
                (E), the alien may seek review of that determination 
                before the Attorney General. If the Attorney General 
                concludes that the alien should be released, then the 
                Secretary shall release the alien pursuant to 
                subparagraph (I). The Attorney General, in consultation 
                with the Secretary, shall promulgate regulations 
                governing review under this paragraph.
                    ``(G) Administrative review process.--The 
                Secretary, without any limitations other than those 
                specified in this section, may detain an alien pending 
                a determination under subparagraph (E)(ii), if the 
                Secretary has initiated the administrative review 
                process identified in subparagraph (A) not later than 
                30 days after the expiration of the removal period 
                (including any extension of the removal period under 
                paragraph (1)(C)).
                    ``(H) Renewal and delegation of certification.--
                            ``(i) Renewal.--The Secretary may renew a 
                        certification under subparagraph (E)(ii) every 
                        6 months, without limitation, after providing 
                        the alien with an opportunity to request 
                        reconsideration of the certification and to 
                        submit documents or other evidence in support 
                        of that request. If the Secretary does not 
                        renew such certification, the Secretary shall 
                        release the alien, pursuant to subparagraph 
                        (I). If the Secretary authorizes an extension 
                        of detention under paragraph (E), the alien may 
                        seek review of that determination before the 
                        Attorney General. If the Attorney General 
                        concludes that the alien should be released, 
                        then the Secretary shall release the alien 
                        pursuant to subparagraph (I).
                            ``(ii) Delegation.--Notwithstanding any 
                        other provision of law, the Secretary may not 
                        delegate the authority to make or renew a 
                        certification described in subclause (II), 
                        (III), or (V) of subparagraph (E)(ii) below the 
                        level of the Assistant Secretary for 
                        Immigration and Customs Enforcement.
                            ``(iii) Hearing.--The Secretary may request 
                        that the Attorney General, or a designee of the 
                        Attorney General, provide for a hearing to make 
                        the determination described in subparagraph 
                        (E)(ii)(IV)(bb)(BB).
                    ``(I) Conditions on release.--If it is determined 
                that an alien should be released from detention, the 
                Secretary may, in the Secretary's discretion, impose 
                conditions on release in accordance with the 
                regulations prescribed pursuant to paragraph (3).
                    ``(J) Redetention of certain aliens.--The 
                Secretary, without any limitations other than those 
                specified in this section, may detain any alien subject 
                to a final removal order who has previously been 
                released from custody if--
                            ``(i) the alien fails to comply with the 
                        conditions of release;
                            ``(ii) the alien fails to continue to 
                        satisfy the conditions described in 
                        subparagraph (B); or
                            ``(iii) upon reconsideration, the Secretary 
                        determines that the alien can be detained under 
                        subparagraph (E).
                    ``(K) Applicability.--This paragraph and paragraphs 
                (6) and (7) shall apply to any alien returned to 
                custody under subparagraph (I) as if the removal period 
                terminated on the day of the redetention.
                    ``(L) Detention review process for aliens who have 
                effected an entry and fail to cooperate with removal.--
                The Secretary shall detain an alien until the alien 
                makes all reasonable efforts to comply with a removal 
                order and to cooperate fully with the Secretary's 
                efforts, if the alien--
                            ``(i) has effected an entry into the United 
                        States; and
                            ``(ii)(I) and the alien faces a significant 
                        likelihood that the alien will be removed in 
                        the reasonably foreseeable future, or would 
                        have been removed if the alien had not--
                                            ``(aa) failed or refused to 
                                        make all reasonable efforts to 
                                        comply with a removal order;
                                            ``(bb) failed or refused to 
                                        fully cooperate with the 
                                        Secretary's efforts to 
                                        establish the alien's identity 
                                        and carry out the removal 
                                        order, including the failure to 
                                        make timely application in good 
                                        faith for travel or other 
                                        documents necessary to the 
                                        alien's departure; or
                                            ``(cc) conspired or acted 
                                        to prevent removal; or
                            ``(II) the Secretary makes a certification 
                        as specified in subparagraph (E), or the 
                        renewal of a certification specified in 
                        subparagraph (H).
                    ``(M) Detention review process for aliens who have 
                not effected an entry.--Except as otherwise provided in 
                this subparagraph, the Secretary shall follow the 
                guidelines established in section 241.4 of title 8, 
                Code of Federal Regulations, when detaining aliens who 
                have not effected an entry. The Secretary may decide to 
                apply the review process outlined in this paragraph.
            ``(9) Judicial review.--Judicial review of any action or 
        decision made pursuant to paragraph (6), (7), or (8) shall be 
        available exclusively in a habeas corpus proceeding brought in 
        a United States district court and only if the alien has 
        exhausted all administrative remedies (statutory and 
        nonstatutory) available to the alien as of right.''.
    (b) Effective Date.--The amendments made by subsection (a)--
            (1) shall take effect on the date of the enactment of this 
        Act; and
            (2) shall apply to--
                    (A) any alien subject to a final administrative 
                removal, deportation, or exclusion order that was 
                issued before, on, or after the date of the enactment 
                of this Act, unless (a) that order was issued and the 
                alien was subsequently released or paroled before the 
                enactment of this Act and (b) the alien has complied 
                with and remains in compliance with the terms and 
                conditions of that release or parole; and
                    (B) any Act or condition occurring or existing 
                before, on, or after the date of the enactment of this 
                Act.
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