[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 3546 Introduced in Senate (IS)]

<DOC>






114th CONGRESS
  2d Session
                                S. 3546

To provide provisional protected presence to qualified individuals who 
                 came to the United States as children.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            December 9, 2016

   Mr. Flake introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To provide provisional protected presence to qualified individuals who 
                 came to the United States as children.

    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 ``Securing Active and Fair Enforcement 
Act'' or the ``SAFE Act''.

SEC. 2. PROVISIONAL PROTECTED PRESENCE FOR YOUNG INDIVIDUALS.

    (a) In General.--Chapter 4 of title II of the Immigration and 
Nationality Act (8 U.S.C. 1221 et seq.) is amended by adding at the end 
the following:

``SEC. 244A. PROVISIONAL PROTECTED PRESENCE.

    ``(a) Definitions.--In this section:
            ``(1) DACA recipient.--The term `DACA recipient' means an 
        alien who is in deferred action status on the date of the 
        enactment of this section pursuant to the Deferred Action for 
        Childhood Arrivals (`DACA') Program announced on June 15, 2012.
            ``(2) Felony.--The term `felony' means a Federal, State, or 
        local criminal offense punishable by imprisonment for a term 
        exceeding one year.
            ``(3) Misdemeanor.--The term `misdemeanor' means a Federal, 
        State, or local criminal offense (excluding a significant 
        misdemeanor) for which--
                    ``(A) the maximum term of imprisonment is greater 
                than five days and not greater than one year; and
                    ``(B) the individual was sentenced to time in 
                custody of 90 days or less.
            ``(4) Secretary.--The term `Secretary' means the Secretary 
        of Homeland Security.
            ``(5) Significant misdemeanor.--The term `significant 
        misdemeanor' means a Federal, State, or local criminal offense 
        for which the maximum term of imprisonment is greater than five 
        days and not greater than one year that--
                    ``(A) regardless of the sentence imposed, is an 
                offense of domestic violence, sexual abuse or 
                exploitation, burglary, unlawful possession or use of a 
                firearm, drug distribution or trafficking, or driving 
                under the influence if the State law requires, as an 
                element of the offense, a finding of impairment or a 
                blood alcohol content of .08 or higher; or
                    ``(B) resulted in a sentence of time in custody of 
                more than 90 days, excluding an offense for which the 
                sentence was suspended.
            ``(6) Threat to national security.--An alien is a `threat 
        to national security' if the alien is--
                    ``(A) inadmissible under section 212(a)(3); or
                    ``(B) deportable under section 237(a)(4).
            ``(7) Threat to public safety.--An alien is a `threat to 
        public safety' if the alien--
                    ``(A) has been convicted of an offense for which an 
                element was participation in a criminal street gang (as 
                defined in section 521(a) of title 18, United States 
                Code); or
                    ``(B) has engaged in a continuing criminal 
                enterprise (as defined in section 408(c) of the 
                Comprehensive Drug Abuse Prevention and Control Act of 
                1970 (21 U.S.C. 848(c))).
    ``(b) Authorization.--The Secretary--
            ``(1) shall grant provisional protected presence to an 
        alien who files an application demonstrating that he or she 
        meets the eligibility criteria under subsection (c) and pays 
        the appropriate application fee;
            ``(2) may not remove such alien from the United States 
        during the period in which such provisional protected presence 
        is in effect unless such status is rescinded pursuant to 
        subsection (g); and
            ``(3) shall provide such alien with employment 
        authorization.
    ``(c) Eligibility Criteria.--An alien is eligible for provisional 
protected presence under this section and employment authorization if 
the alien--
            ``(1) was born after June 15, 1981;
            ``(2) entered the United States before attaining 16 years 
        of age;
            ``(3) continuously resided in the United States between 
        June 15, 2007, and the date on which the alien files an 
        application under this section;
            ``(4) was physically present in the United States on June 
        15, 2012, and on the date on which the alien files an 
        application under this section;
            ``(5) was unlawfully present in the United States on June 
        15, 2012;
            ``(6) on the date on which the alien files an application 
        for provisional protected presence--
                    ``(A) is enrolled in school or in an education 
                program assisting students in obtaining a regular high 
                school diploma or its recognized equivalent under State 
                law, or in passing a general educational development 
                exam or other State-authorized exam;
                    ``(B) has graduated or obtained a certificate of 
                completion from high school;
                    ``(C) has obtained a general educational 
                development certificate; or
                    ``(D) is an honorably discharged veteran of the 
                Coast Guard or Armed Forces of the United States;
            ``(7) has not been convicted of--
                    ``(A) a felony;
                    ``(B) a significant misdemeanor; or
                    ``(C) three or more misdemeanors not occurring on 
                the same date and not arising out of the same act, 
                omission, or scheme of misconduct; and
            ``(8) does not otherwise pose a threat to national security 
        or a threat to public safety.
    ``(d) Duration of Provisional Protected Presence and Employment 
Authorization.--Provisional protected presence and the employment 
authorization provided under this section shall be effective until the 
date that is three years after the date of the enactment of this 
section.
    ``(e) Status During Period of Provisional Protected Presence.--
            ``(1) In general.--During the period described in 
        subsection (d), the alien granted provisional protected 
        presence is not considered to be unlawfully present in the 
        United States.
            ``(2) Status outside period.--The granting of provisional 
        protected presence under this section does not excuse previous 
        or subsequent periods of unlawful presence.
    ``(f) Application.--
            ``(1) Age requirement.--
                    ``(A) In general.--An alien who has never been in 
                removal proceedings, or whose proceedings have been 
                terminated before making a request for provisional 
                protected presence, shall be at least 15 years old on 
                the date on which the alien submits an application 
                under this section.
                    ``(B) Exception.--The age requirement set forth in 
                subparagraph (A) shall not apply to an alien who, on 
                the date on which the alien applies for provisional 
                protected status, is in removal proceedings, has a 
                final removal order, or has a voluntary departure 
                order, and who is not in immigration detention.
            ``(2) Application fee.--
                    ``(A) In general.--The Secretary may require aliens 
                applying for provisional protected presence under this 
                section to pay a reasonable fee that is commensurate 
                with the cost of processing the application.
                    ``(B) Exemption.--An applicant may be exempted from 
                paying the fee required under subparagraph (A) if the 
                alien--
                            ``(i)(I) is younger than 18 years of age;
                            ``(II) received total income during the 12-
                        month period immediately preceding the date on 
                        which the alien files an application under this 
                        section that is less than 150 percent of the 
                        United States poverty level; and
                            ``(III) is in foster care or otherwise 
                        lacking any parental or other familial support;
                            ``(ii) is younger than 18 years of age and 
                        is homeless;
                            ``(iii)(I) cannot care for himself or 
                        herself because of a serious, chronic 
                        disability; and
                            ``(II) received total income during the 12-
                        month period immediately preceding the date on 
                        which the alien files an application under this 
                        section that is less than 150 percent of the 
                        United States poverty level; or
                            ``(iv)(I) on the date on which the alien 
                        files an application under this section, has 
                        accumulated $10,000 or more in debt in the past 
                        12 months as a result of unreimbursed medical 
                        expenses incurred by the alien or an immediate 
                        family member of the alien; and
                            ``(II) received total income during the 12-
                        month period immediately preceding the date on 
                        which the alien files an application under this 
                        section that is less than 150 percent of the 
                        United States poverty level.
            ``(3) Removal stayed while application pending.--The 
        Secretary may not remove an alien from the United States who 
        appears prima facie eligible for provisional protected presence 
        while the alien's application for provisional protected 
        presence is pending.
            ``(4) Special circumstances.--An alien who is in removal 
        proceedings, has an unexpired final removal order, or has an 
        unexpired voluntary departure order may apply for provisional 
        protected presence under this section if the alien--
                    ``(A) appears prima facie eligible for provisional 
                protected presence; and
                    ``(B) is not in immigration detention.
            ``(5) Aliens in immigration detention.--The Secretary shall 
        provide any alien in immigration detention who meets the 
        eligibility criteria set forth in subsection (c), upon request, 
        with a reasonable opportunity to apply for provisional 
        protected presence under this section.
            ``(6) Confidentiality.--
                    ``(A) In general.--The Secretary shall protect 
                information provided in applications for provisional 
                protected presence under this section and in requests 
                for consideration of DACA from disclosure to U.S. 
                Immigration and Customs Enforcement and U.S. Customs 
                and Border Protection for the purpose of immigration 
                enforcement proceedings.
                    ``(B) Referrals prohibited.--The Secretary may not 
                refer individuals whose cases have been deferred 
                pursuant to DACA or who have been granted provisional 
                protected presence under this section to U.S. 
                Immigration and Customs Enforcement.
                    ``(C) Limited exception.--The information submitted 
                in applications for provisional protected presence 
                under this section and in requests for consideration of 
                DACA may be shared with national security and law 
                enforcement agencies--
                            ``(i) for assistance in the consideration 
                        of the application for provisional protected 
                        presence;
                            ``(ii) to identify or prevent fraudulent 
                        claims;
                            ``(iii) for national security purposes; and
                            ``(iv) for the investigation or prosecution 
                        of any felony not related to immigration 
                        status.
    ``(g) Rescission of Provisional Protected Presence.--The Secretary 
may not rescind an alien's provisional protected presence or employment 
authorization granted under this section unless the Secretary 
determines that the alien--
            ``(1) has been convicted of--
                    ``(A) a felony;
                    ``(B) a significant misdemeanor; or
                    ``(C) three or more misdemeanors not occurring on 
                the same date and not arising out of the same act, 
                omission, or scheme of misconduct;
            ``(2) poses a threat to national security or a threat to 
        public safety;
            ``(3) has traveled outside of the United States without 
        authorization from the Secretary; or
            ``(4) ceased to continuously reside in the United States.
    ``(h) Treatment of Brief, Casual, and Innocent Departures and 
Certain Other Absences.--For purposes of subsections (c)(3) and (g)(4), 
an alien shall not be considered to have failed to continuously reside 
in the United States due to--
            ``(1) brief, casual, and innocent absences from the United 
        States during the period beginning on June 15, 2007, and ending 
        on August 14, 2012; or
            ``(2) travel outside of the United States on or after 
        August 15, 2012, if such travel was authorized by the 
        Secretary.
    ``(i) Effect of Deferred Action Under Deferred Action for Childhood 
Arrivals Program.--
            ``(1) Provisional protected presence.--A DACA recipient is 
        deemed to have provisional protected presence under this 
        section through the expiration date of the alien's deferred 
        action status, as specified by the Secretary in conjunction 
        with the approval of the alien's DACA application.
            ``(2) Employment authorization.--If a DACA recipient has 
        been granted employment authorization by the Secretary in 
        addition to deferred action, the employment authorization shall 
        continue through the expiration date of the alien's deferred 
        action status, as specified by the Secretary in conjunction 
        with the approval of the alien's DACA application.
            ``(3) Effect of application.--If a DACA recipient files an 
        application for provisional protected presence under this 
        section not later than the expiration date of the alien's 
        deferred action status, as specified by the Secretary in 
        conjunction with the approval of the alien's DACA application, 
        the alien's provisional protected presence, and any employment 
        authorization, shall remain in effect pending the adjudication 
        of such application.''.
    (b) Clerical Amendment.--The table of contents for the Immigration 
and Nationality Act (8 U.S.C. 1101 note) is amended by inserting after 
the item relating to section 244 the following:

``Sec. 244A. Provisional protected presence.''.

SEC. 3. MANDATORY DETENTION AND PROMPT REMOVAL OF CERTAIN CRIMINAL 
              ALIENS.

    (a) Detention.--Section 236(c) of the Immigration and Nationality 
Act (8 U.S.C. 1226(c)(1)) is amended--
            (1) in paragraph (1)--
                    (A) in subparagraph (A), by striking the comma at 
                the end and inserting a semicolon;
                    (B) in subparagraph (B), by striking the comma at 
                the end and inserting a semicolon;
                    (C) in subparagraph (C), by striking ``, or'' at 
                the end and inserting a semicolon;
                    (D) in subparagraph (D), by striking the comma at 
                the end and inserting ``; or''; and
                    (E) by inserting after subparagraph (D) the 
                following:
                    ``(E)(i) is unlawfully present in the United 
                States, as determined by the Secretary of Homeland 
                Security; and
                    ``(ii) is arrested for any offense described in 
                subparagraphs (A) through (D), the conviction of which 
                would render the alien inadmissible under section 
                212(a) or deportable under section 237(a),''; and
            (2) in paragraph (2)--
                    (A) by striking ``The Attorney General'' and 
                inserting the following:
                    ``(A) In general.--Except as provided in 
                subparagraph (C), the Secretary of Homeland Security'';
                    (B) by striking ``Attorney General'' each place 
                such term appears and inserting ``Secretary'';
                    (C) by striking ``Code, that release'' and 
                inserting the following: ``Code, that--
                            ``(i) release'';
                    (D) by striking ``investigation, and the alien'' 
                and inserting the following: ``investigation; and
                            ``(ii) the alien'';
                    (E) by striking ``A decision relating to such 
                release'' and inserting the following:
                    ``(B) Decision procedure.--A decision relating to a 
                release under subparagraph (A)''; and
                    (F) by adding at the end the following:
                    ``(D) Aliens who have been arrested, but not 
                convicted.--The Secretary of Homeland Security may 
                release any alien held pursuant to paragraph (1)(E) to 
                the appropriate authority for any proceedings 
                subsequent to the arrest. The Secretary shall resume 
                custody of such alien during any period pending the 
                final disposition of any such proceedings when the 
                alien is not in the custody of such appropriate 
                authority. If the alien is not convicted of the offense 
                for which the alien was arrested, the Secretary shall 
                continue to detain the alien until removal proceedings 
                are completed.''.
    (b) Prompt Removal.--Section 239(d) of the Immigration and 
Nationality Act (8 U.S.C. 1229(d)) is amended by adding at the end the 
following:
            ``(3) The Secretary of Homeland Security shall complete 
        removal proceedings for any alien held pursuant to section 
        236(c)(1)(E) not later than 90 days after such alien is 
        detained.''.

SEC. 4. EMERGENCY IMMIGRATION PERSONNEL.

    (a) Goal.--It shall be the goal of the Attorney General, the 
Secretary of Homeland Security, and the Director of the Executive 
Office for Immigration Review to use the amounts appropriated pursuant 
to subsection (d) to bring a prompt resolution to immigration cases 
pertaining to aliens who are inadmissible under section 212(a)(2) or 
237(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a) and 
1227(a)).
    (b) Emergency Immigration Judges.--
            (1) Designation.--Not later than 14 days after the date of 
        the enactment of this Act, the Attorney General shall designate 
        up to 100 temporary immigration judges, for renewable 6-month 
        terms, including by hiring retired immigration judges, 
        magistrate judges, administrative law judges, or other 
        qualified attorneys using the same criteria as applied to the 
        hiring of permanent immigration judges.
            (2) Requirement.--The Attorney General shall ensure that 
        sufficient immigration judge resources are dedicated to 
        achieving the goal described in subsection (a).
    (c) Immigration Litigation Attorneys.--The Secretary of Homeland 
Security shall hire 150 new immigration litigation attorneys in the 
Field Legal Operations of U.S. Immigration and Customs Enforcement to 
ensure that the goal described in subsection (a) is achieved.
    (d) Authorization of Appropriations.--There is authorized to be 
appropriated $100,000,000 to carry out this section.

SEC. 5. REPORTING REQUIREMENTS.

    (a) Report Required.--Not later than 180 days after the date of the 
enactment of this Act, and annually thereafter, the Secretary of 
Homeland Security shall submit a report to the Committee on the 
Judiciary of the Senate and the Committee on the Judiciary of the House 
of Representatives that includes the information specified in 
subsection (b).
    (b) Contents.--The report required under subsection (a) shall 
describe--
            (1) the number of aliens currently present in the United 
        States who have ever been arrested for a criminal offense;
            (2) the number of aliens currently present in the United 
        States who have ever been convicted of a criminal offense;
            (3) the number of aliens with final orders of removal who 
        are currently present in the United States and of such aliens--
                    (A) how many have ever been arrested for any 
                criminal offense; and
                    (B) how many have ever been convicted for any 
                criminal offense;
            (4) the number of detainers that were issued by the 
        Department of Homeland Security during the previous fiscal year 
        and the number of such detainers that were honored; and
            (5) during the previous fiscal year--
                    (A) the number of aliens who were deported not 
                later than 90 days after being detained by U.S. 
                Immigration and Customs Enforcement, as required under 
                section 239(d)(3) of the Immigration and Nationality 
                Act (8 U.S.C. 1229(d)) and the criminal offenses of 
                such aliens;
                    (B) of the aliens who should have been deported 
                under such section and were not deported within 90 days 
                of detention--
                            (i) the reasons the aliens were not 
                        deported; and
                            (ii) the criminal offenses of such aliens; 
                        and
                    (C) of the aliens who were released from the 
                custody of U.S. Immigration and Customs Enforcement and 
                not deported--
                            (i) the number of such aliens;
                            (ii) the criminal offenses committed by 
                        such aliens;
                            (iii) the conditions of their release;
                            (iv) the number of aliens who committed a 
                        crime after being released from custody; and
                            (v) a list of crimes committed by such 
                        aliens.
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