1.Short title; table of
contents
(a)This Act may be cited as the Keeping Families Together Act of
2011
.
(b)The table of contents of this Act is as follows:
Sec. 1. Short title; table of
contents.
Sec. 2. Restoration of definition of
aggravated felony (repeal of section 321 of IIRIRA).
Sec. 3. Restoration of detention
policy.
Sec. 4. Repeal of time stop
provisions.
Sec. 5. Repeal of section
101(a)(48).
Sec. 6. Restoration of section
212(c).
Sec. 7. Restoration of judicial review
provisions.
Sec. 8. Post-proceeding relief for
affected aliens.
2.Restoration of
definition of aggravated felony (repeal of section 321 of IIRIRA)
(a)Effective as if included in the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (division C of
Public Law 104–208), section 321 of such Act is repealed and the provisions of
law amended by such section are restored as if such section had not been
enacted.
(b)Any alien whose legal permanent resident status,
application for permanent residence, or application for cancellation of
removal, was affected by the changes in the definition of aggravated
felony
made by such section 321 may apply to the Secretary of Homeland
Security to be considered for adjustment of status or cancellation of removal
in conformance with the provisions of section 101(a)(43) of the
Immigration and Nationality Act, as
restored by subsection (a).
3.Restoration of
detention policy
(a)Section 236(c) of the Immigration and Nationality Act (8 U.S.C.
1226(c)) is amended to read as follows:
(c)Detention of
criminal aliens
(1)The Secretary of Homeland Security shall take into
custody any alien convicted of an aggravated felony upon release of the alien
(regardless of whether or not such release is on parole, supervised release, or
probation, and regardless of the possibility of rearrest or further confinement
in respect of the same offense). Notwithstanding subsection (a) or section
241(a) but subject to paragraph (2), the Secretary of Homeland Security shall
not release such felon from custody.
(2)The
Secretary of Homeland Security may not release from custody any who has been
convicted of an aggravated felony, either before or after a determination of
removability, unless—
(A)(i)the alien was lawfully
admitted, or
(ii)the alien was not lawfully
admitted but the alien cannot be removed because the designated country of
removal will not accept the alien; and
(B)the alien
satisfies the Secretary of Homeland Security that the alien will not pose a
danger to the safety of other persons or of property and is likely to appear
for any scheduled
proceeding.
.
(b)The amendment made by subsection (a) shall be effective as
if included in the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996.
4.Repeal of time
stop provisions
(a)Section 240A(d) of the Immigration and Nationality Act (8 U.S.C.
1229b(d)) is repealed.
(b)The repeal made by subsection (a) shall be effective as if
included in the enactment of subtitle A of title III of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996.
5.Repeal of Section
101(a)(48)
(a)Paragraph (48) of section 101(a)(48) of the
Immigration and Nationality Act (8
U.S.C. 1101(a)) is repealed.
(b)The repeal made by subsection (a) shall take effect as if
included in the enactment of section 322(a) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996.
6.Restoration of
Section 212(c)
(a)Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182)
is amended by inserting after subsection (b) the following new
subsection:
(c)Aliens lawfully
admitted for permanent residence who temporarily proceeded abroad voluntarily
and not under an order of deportation or removal, and who are returning to a
lawful unrelinquished domicile of seven consecutive years, may be admitted in
the discretion of the Secretary of Homeland Security without regard to the
provisions of subsection (a) (other than paragraphs (3) and (10)(C)). Nothing
contained in this subsection shall limit the authority of the Secretary of
Homeland Security to exercise the discretion vested in him under section
211(b). The first sentence of this subsection shall not apply to an alien who
has been convicted of one or more aggravated felonies and has served for such
felony or felonies a term of imprisonment of at least 5
years.
.
(b)The amendment made by subsection (a) applies as of April 24,
1996, as if section 440(d) of the Antiterrorism and Effective Death Penalty Act
of 1996 (Public Law 104–132) and section 304(b) of Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208) had
not been enacted.
7.Restoration of
judicial review provisions
(a)Section 242 of the Immigration and Nationality Act (8 U.S.C. 1252)
is amended to read as follows:
242.Judicial review of orders of removal(a)The procedure prescribed
by, and all the provisions of chapter 158 of title 28, United States Code,
shall apply to, and shall be the sole and exclusive procedure for, the judicial
review of all final orders of removal heretofore or hereafter made against
aliens within the United States pursuant to administrative proceedings under
section 240 of this Act or comparable provisions of any prior Act, except
that—
(1)a petition for
review may be filed not later than 90 days after the date of the issuance of
the final removal order, or, in the case of an alien convicted of an aggravated
felony not later than 30 days after the issuance of such order;
(2)the venue of any
petition for review under this section shall be in the judicial circuit in
which the administrative proceedings before an immigration judge were conducted
in whole or in part, or in the judicial circuit wherein is the residence, as
defined in this Act, of the petitioner, but not in more than one
circuit;
(3)the action shall
be brought against the Department of Homeland Security, as respondent. Service
of the petition to review shall be made upon the Secretary of Homeland Security
of the United States and upon the official of the Department of Homeland
Security in charge of the district in which the office of the clerk of the
court is located. The service of the petition for review upon such official of
the Service shall stay the removal of the alien pending determination of the
petition by the court, unless the court otherwise directs or unless the alien
is convicted of an aggravated felony, in which case the Service shall not stay
the removal of the alien pending determination of the petition of the court
unless the court otherwise directs;
(4)except as provided
in clause (B) of paragraph (5) of this subsection, the petition shall be
determined solely upon the administrative record upon which the removal order
is based and the Secretary of Homeland Security’s findings of fact, if
supported by reasonable, substantial, and probative evidence on the record
considered as a whole, shall be conclusive;
(5)whenever any
petitioner, who seeks review of an order under this section, claims to be a
national of the United States and makes a showing that his claim is not
frivolous, the court shall (A) pass upon the issues presented when it appears
from the pleadings and affidavits filed by the parties that no genuine issue of
material fact is presented; or (B) where a genuine issue of material fact as to
the petitioner’s nationality is presented, transfer the proceedings to a United
States district court for the district where the petitioner has his residence
for hearing de novo of the nationality claim and determination as if such
proceedings were originally initiated in the district court under the
provisions of section 2201 of title 28, United States Code. Any such petitioner
shall not be entitled to have such issue determined under section 360(a) of
this Act or otherwise;
(6)whenever a
petitioner seeks review of an order under this section, any review sought with
respect to a motion to reopen or reconsider such an order shall be consolidated
with the review of the order;
(7)if the validity of
a removal order has not been judicially determined, its validity may be
challenged in a criminal proceeding against the alien for violation of
subsection (a) or (b) of section 243 of this Act only by separate motion for
judicial review before trial. Such motion shall be determined by the court
without a jury and before the trial of the general issue. Whenever a claim to
United States nationality is made in such motion, and in the opinion of the
court, a genuine issue of material fact as to the alien’s nationality is
presented, the court shall accord him a hearing de novo on the nationality
claim and determine that issue as if proceedings had been initiated under the
provisions of section 2201 of title 28, United States Code. Any such alien
shall not be entitled to have such issue determined under section 360(a) of
this Act or otherwise. If no such hearing de novo as to nationality is
conducted, the determination shall be made solely upon the administrative
record upon which the removal order is based and the Secretary of Homeland
Security’s findings of fact, if supported by reasonable, substantial, and
probative evidence on the record considered as a whole, shall be conclusive. If
the removal order is held invalid, the court shall dismiss the indictment and
the United States shall have the right to appeal to the court of appeals within
30 days. The procedure on such appeals shall be as provided in the Federal
rules of criminal procedure. No petition for review under this section may be
filed by any alien during the pendency of a criminal proceeding against such
alien for violation of subsection (a) or (b) of section 243 of this Act;
(8)nothing in this
section shall be construed to require the Secretary of Homeland Security to
defer removal of an alien after the issuance of a removal order because of the
right of judicial review of the order granted by this section, or to relieve
any alien from compliance with subsections (a) and (b) of section 243 of this
Act. Nothing contained in this section shall be construed to preclude the
Secretary of Homeland Security from detaining or continuing to detain an alien
or from taking the alien into custody pursuant to section 241 of this Act at
any time after the issuance of a removal order;
(9)it shall not be
necessary to print the record or any part thereof, or the briefs, and the court
shall review the proceedings on a typewritten record and on typewritten briefs;
and
(10)any alien held in
custody pursuant to an order of removal may obtain judicial review thereof by
habeas corpus proceedings.
(b)Notwithstanding
the provisions of any other law, any alien against whom a final order of
removal has been made heretofore or hereafter under the provisions of section
235 of this Act or comparable provisions of any prior Act may obtain judicial
review of such order by habeas corpus proceedings and not otherwise.
(c)An order of
removal shall not be reviewed by any court if the alien has not exhausted the
administrative remedies available to the alien as of right under the
immigration laws and regulations or if the alien has departed from the United
States after the issuance of the order. Every petition for review or for habeas
corpus shall state whether the validity of the order has been upheld in any
prior judicial proceeding, and, if so, the nature and date thereof, and the
court in which such proceeding took place. No petition for review or for habeas
corpus shall be entertained if the validity of the order has been previously
determined in any civil or criminal proceeding, unless the petition presents
grounds which the court finds could not have been presented in such prior
proceeding, or the court finds that the remedy provided by such prior
proceeding was inadequate or ineffective to test the validity of the
order.
(d)(1)A petition for review or
for habeas corpus on behalf of an alien against whom a final order of removal
has been issued pursuant to section 238(b) may challenge only—
(A)whether the alien is in fact the alien
described in the order;
(B)whether the alien is in fact an alien
described in section 238(b)(2);
(C)whether the alien has been convicted
of an aggravated felony and such conviction has become final; and
(D)whether the alien was afforded the
procedures required by section 238(b)(4).
(2)No court shall have jurisdiction to
review any issue other than an issue described in paragraph
(1).
.
(b)The amendment made by subsection (a) shall take effect on
the date of the enactment of this Act and shall apply to determinations pending
on or after such date with respect to which—
(1)a
final administrative decision has been/not been rendered as of such date;
or
(2)such a decision
has been rendered but the period for seeking judicial review of the decision
has not expired.
8.Post-proceeding
relief for affected aliens
(a)Notwithstanding section 240(c)(6) of the
Immigration and Nationality Act (8
U.S.C. 1229a(c)(6)) or any other limitation imposed by law on motions to reopen
removal proceedings, the Secretary of Homeland Security shall establish a
process (whether through permitting the reopening of a removal proceeding or
otherwise) under which an alien—
(1)who is (or was) in
removal proceedings before the date of the enactment of this Act (whether or
not the alien has been removed as of such date); and
(2)whose eligibility
for cancellation of removal has been established by this Act;
may apply
(or reapply) for cancellation of removal under section 240A(a) of the
Immigration and Nationality Act (8 U.S.C. 1229b(a)) as a beneficiary of the
relief provided under this Act.(b)The
Secretary of Homeland Security should exercise the parole authority under
section 212(d)(5)(A) of the Immigration and
Nationality Act (8 U.S.C. 1182(d)(5)(A)) for the purpose of
permitting aliens removed from the United States to participate in the process
established under subsection (a).