[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2380 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  2d Session
                                S. 2380

  To amend the Immigration and Nationality Act with respect to aliens 
        associated with criminal gangs, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            February 6, 2018

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

_______________________________________________________________________

                                 A BILL


 
  To amend the Immigration and Nationality Act with respect to aliens 
        associated with criminal gangs, and for other purposes.

    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 ``Criminal Alien Gang Member Removal 
Act''.

SEC. 2. GROUNDS OF INADMISSIBILITY AND DEPORTABILITY FOR ALIEN GANG 
              MEMBERS.

    (a) Definition of Gang Member.--Section 101(a) of the Immigration 
and Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the end 
the following:
    ``(53) The term `criminal gang' means an ongoing group, club, 
organization, or association of 5 or more persons that has, as 1 of its 
primary purposes, the commission of 1 or more of the criminal offenses 
listed in subparagraphs (A) through (F), whether in violation of 
Federal, State, or foreign law and regardless of whether the offenses 
occurred before, on, or after the date of the enactment of this 
paragraph, and the members of which engage, or have engaged within the 
past 5 years, in a continuing series of such offenses, or that has been 
designated as a criminal gang by the Secretary of Homeland Security, in 
consultation with the Attorney General, as meeting such criteria.
            ``(A) A `felony drug offense' (as defined in section 102 of 
        the Controlled Substances Act (21 U.S.C. 802)).
            ``(B) An offense under section 274 (relating to bringing in 
        and harboring certain aliens), section 277 (relating to aiding 
        or assisting certain aliens to enter the United States), or 
        section 278 (relating to importation of alien for immoral 
        purpose).
            ``(C) A crime of violence (as defined in section 16 of 
        title 18, United States Code).
            ``(D) A crime involving obstruction of justice, tampering 
        with or retaliating against a witness, victim, or informant, or 
        burglary.
            ``(E) Any conduct punishable under sections 1028 and 1029 
        of title 18, United States Code (relating to fraud and related 
        activity in connection with identification documents or access 
        devices), sections 1581 through 1594 of such title (relating to 
        peonage, slavery, and trafficking in persons), section 1951 of 
        such title (relating to interference with commerce by threats 
        or violence), section 1952 of such title (relating to 
        interstate and foreign travel or transportation in aid of 
        racketeering enterprises), section 1956 of such title (relating 
        to the laundering of monetary instruments), section 1957 of 
        such title (relating to engaging in monetary transactions in 
        property derived from specified unlawful activity), or sections 
        2312 through 2315 of such title (relating to interstate 
        transportation of stolen motor vehicles or stolen property).
            ``(F) A conspiracy to commit an offense described in 
        subparagraphs (A) through (E).''.
    (b) Inadmissibility.--Section 212(a)(2) of the Immigration and 
Nationality Act (8 U.S.C. 1182(a)(2)) is amended by adding at the end 
the following:
                    ``(J) Aliens associated with criminal gangs.--Any 
                alien is inadmissible if a consular officer, the 
                Secretary of Homeland Security, or the Attorney General 
                knows or has reason to believe that the alien--
                            ``(i) is or has been a member of a criminal 
                        gang; or
                            ``(ii) has participated in the activities 
                        of a criminal gang, knowing or having reason to 
                        know that such activities will promote, 
                        further, aid, or support the illegal activity 
                        of the criminal gang.''.
    (c) Deportability.--Section 237(a)(2) of the Immigration and 
Nationality Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end 
the following:
                    ``(G) Aliens associated with criminal gangs.--Any 
                alien is deportable who--
                            ``(i) is or has been a member of a criminal 
                        gang (as defined in section 101(a)(53)); or
                            ``(ii) has participated in the activities 
                        of a criminal gang (as so defined), knowing or 
                        having reason to know that such activities will 
                        promote, further, aid, or support the illegal 
                        activity of the criminal gang.''.
    (d) Designation.--
            (1) In general.--Chapter 2 of title II of the Immigration 
        and Nationality Act (8 U.S.C. 1182) is amended by inserting 
        after section 219 the following:

``SEC. 220. DESIGNATION OF CRIMINAL GANG.

    ``(a) Designation.--
            ``(1) In general.--The Secretary, in consultation with the 
        Attorney General, may designate a group, club, organization, or 
        association of 5 or more persons as a criminal gang if the 
        Secretary finds that their conduct is described in section 
        101(a)(53).
            ``(2) Procedure.--
                    ``(A) Notification.--Not later than 7 days before 
                making a designation under this subsection, the 
                Secretary, by classified communication, shall submit 
                written notification to 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 of the 
                intent to designate a group, club, organization, or 
                association of 5 or more persons under this subsection 
                and the factual basis for such designation.
                    ``(B) Publication in the federal register.--Not 
                later than 7 days after submitting the notification 
                under subparagraph (A), the Secretary shall publish 
                each designation under this subsection in the Federal 
                Register.
            ``(3) Record.--
                    ``(A) In general.--In making a designation under 
                this subsection, the Secretary shall create an 
                administrative record.
                    ``(B) Classified information.--The Secretary may 
                consider classified information in making a designation 
                under this subsection. Classified information may not 
                be subject to disclosure while it remains classified, 
                except that such information may be disclosed to a 
                court ex parte and in camera for purposes of judicial 
                review under subsection (c).
            ``(4) Period of designation.--
                    ``(A) In general.--A designation under this 
                subsection shall be effective for all purposes until 
                revoked under paragraph (5) or (6) or set aside 
                pursuant to subsection (c).
                    ``(B) Review of designation upon petition.--
                            ``(i) In general.--The Secretary shall 
                        review the designation of a criminal gang under 
                        the procedures set forth in clauses (iii) and 
                        (iv) if the designated group, club, 
                        organization, or association of 5 or more 
                        persons files a petition for revocation within 
                        the petition period described in clause (ii).
                            ``(ii) Petition period.--For purposes of 
                        clause (i)--
                                    ``(I) if the designated group, 
                                club, organization, or association of 5 
                                or more persons has not previously 
                                filed a petition for revocation under 
                                this subparagraph, the petition period 
                                begins 2 years after the date on which 
                                the designation was made; or
                                    ``(II) if the designated group, 
                                club, organization, or association of 5 
                                or more persons has previously filed a 
                                petition for revocation under this 
                                subparagraph, the petition period 
                                begins 2 years after the date of the 
                                determination made under clause (iv) on 
                                that petition.
                            ``(iii) Procedures.--Any group, club, 
                        organization, or association of 5 or more 
                        persons that submits a petition for revocation 
                        under this subparagraph of its designation as a 
                        criminal gang must provide evidence in that 
                        petition that the group, club, organization, or 
                        association is not described in section 
                        101(a)(53).
                            ``(iv) Determination.--
                                    ``(I) In general.--Not later than 
                                180 days after receiving a petition for 
                                revocation submitted under this 
                                subparagraph, the Secretary shall make 
                                a determination regarding such 
                                revocation.
                                    ``(II) Classified information.--The 
                                Secretary may consider classified 
                                information in making a determination 
                                in response to a petition for 
                                revocation. Classified information 
                                shall not be subject to disclosure for 
                                such time as it remains classified, 
                                except that such information may be 
                                disclosed to a court ex parte and in 
                                camera for purposes of judicial review 
                                under subsection (c).
                                    ``(III) Publication of 
                                determination.--A determination made by 
                                the Secretary under this clause shall 
                                be published in the Federal Register.
                                    ``(IV) Procedures.--Any revocation 
                                by the Secretary shall be made in 
                                accordance with paragraph (6).
                    ``(C) Other review of designation.--
                            ``(i) In general.--If no review has taken 
                        place under subparagraph (B) during a 5-year 
                        period, the Secretary shall review the 
                        designation of the criminal gang in order to 
                        determine whether such designation should be 
                        revoked pursuant to paragraph (6).
                            ``(ii) Procedures.--If a review does not 
                        take place pursuant to subparagraph (B) in 
                        response to a petition for revocation that is 
                        filed in accordance with that subparagraph, a 
                        review shall be conducted pursuant to 
                        procedures established by the Secretary. The 
                        results of such review and the applicable 
                        procedures are not reviewable by any court.
                            ``(iii) Publication of results of review.--
                        The Secretary shall publish any determination 
                        made under this subparagraph in the Federal 
                        Register.
            ``(5) Revocation by act of congress.--The Congress, by an 
        Act of Congress, may block or revoke a designation made under 
        paragraph (1).
            ``(6) Revocation based on change in circumstances.--
                    ``(A) In general.--The Secretary may revoke a 
                designation made under paragraph (1) at any time, and 
                shall revoke a designation upon completion of a review 
                conducted under subparagraphs (B) and (C) of paragraph 
                (4) if the Secretary determines that--
                            ``(i) the group, club, organization, or 
                        association of 5 or more persons that has been 
                        designated as a criminal gang is no longer 
                        described in section 101(a)(53); or
                            ``(ii) the national security or the law 
                        enforcement interests of the United States 
                        warrants a revocation.
                    ``(B) Procedure.--The procedural requirements of 
                paragraphs (2) and (3) shall apply to a revocation 
                under this paragraph. Any revocation shall take effect 
                on the date specified in the revocation or upon 
                publication in the Federal Register if no effective 
                date is specified.
            ``(7) Effect of revocation.--The revocation of a 
        designation under paragraph (5) or (6) shall not affect any 
        action or proceeding based on conduct committed prior to the 
        effective date of such revocation.
            ``(8) Use of designation in trial or hearing.--If a 
        designation under this subsection has become effective under 
        paragraph (2), an alien in a removal proceeding may not raise 
        any question concerning the validity of the issuance of such 
        designation as a defense or an objection.
    ``(b) Amendments to a Designation.--
            ``(1) In general.--The Secretary may amend a designation 
        under this subsection if the Secretary determines that the 
        group, club, organization, or association of 5 or more persons 
        has changed its name, adopted a new alias, dissolved and then 
        reconstituted itself under a different name or names, or merged 
        with another group, club, organization, or association of 5 or 
        more persons.
            ``(2) Procedure.--Amendments made to a designation under 
        paragraph (1) shall be effective upon publication in the 
        Federal Register. Paragraphs (2), (4), (5), (6), (7), and (8) 
        of subsection (a) shall also apply to an amended designation.
            ``(3) Administrative record.--The administrative record 
        shall be corrected to include the amendments and any additional 
        relevant information that supports such amendments.
            ``(4) Classified information.--The Secretary may consider 
        classified information in amending a designation in accordance 
        with this subsection. Classified information shall not be 
        subject to disclosure while it remains classified, except that 
        such information may be disclosed to a court ex parte and in 
        camera for purposes of judicial review under subsection (c).
    ``(c) Judicial Review of Designation.--
            ``(1) In general.--Not later than 30 days after publication 
        in the Federal Register of a designation, an amended 
        designation, or a determination in response to a petition for 
        revocation, the designated group, club, organization, or 
        association of 5 or more persons may seek judicial review in 
        the United States Court of Appeals for the District of Columbia 
        Circuit.
            ``(2) Basis of review.--Review under this subsection shall 
        be based solely upon the administrative record, except that the 
        Government may submit, for ex parte and in camera review, 
        classified information used in making the designation, amended 
        designation, or determination in response to a petition for 
        revocation.
            ``(3) Scope of review.--The Court shall hold unlawful and 
        set aside a designation, amended designation, or determination 
        in response to a petition for revocation the court finds to 
        be--
                    ``(A) arbitrary, capricious, an abuse of 
                discretion, or otherwise not in accordance with law;
                    ``(B) contrary to constitutional right, power, 
                privilege, or immunity;
                    ``(C) in excess of statutory jurisdiction, 
                authority, or limitation, or short of statutory right;
                    ``(D) lacking substantial support in the 
                administrative record taken as a whole or in classified 
                information submitted to the court under paragraph (2); 
                or
                    ``(E) not in accord with the procedures required by 
                law.
            ``(4) Judicial review invoked.--The pendency of an action 
        for judicial review of a designation, amended designation, or 
        determination in response to a petition for revocation shall 
        not affect the application of this section, unless the court 
        issues a final order setting aside the designation, amended 
        designation, or determination in response to a petition for 
        revocation.
    ``(d) Definitions.--As used in this section--
            ``(1) the term `classified information' has the meaning 
        given that term in section 1(a) of the Classified Information 
        Procedures Act (18 U.S.C. App.);
            ``(2) the term `national security' means the national 
        defense, foreign relations, or economic interests of the United 
        States;
            ``(3) the term `relevant committees' means the Committees 
        on the Judiciary of the Senate and of the House of 
        Representatives; and
            ``(4) the term `Secretary' means the Secretary of Homeland 
        Security, in consultation with the Attorney General.''.
            (2) Clerical amendment.--The table of contents for such Act 
        is amended by inserting after the item relating to section 219 
        the following:

``Sec. 220. Designation of criminal gang.''.
    (e) Mandatory Detention of Criminal Gang Members.--
            (1) In general.--Section 236(c)(1) of the Immigration and 
        Nationality Act (8 U.S.C. 1226(c)(1)) is amended--
                    (A) in subparagraph (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) is inadmissible under section 212(a)(2)(J) or 
                deportable under section 217(a)(2)(G),''.
            (2) Annual report.--Not later than March 1 of the first 
        year beginning after the date of the enactment of this Act, and 
        annually thereafter, the Secretary of Homeland Security, after 
        consultation with the appropriate Federal agencies, 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 identifies the number of aliens detained 
        as a result of the amendment made by paragraph (1)(E).
    (f) Asylum Claims Based on Gang Affiliation.--
            (1) Inapplicability of restriction on removal to certain 
        countries.--Section 241(b)(3)(B) of the Immigration and 
        Nationality Act (8 U.S.C. 1251(b)(3)(B)) is amended, in the 
        matter preceding clause (i), by inserting ``who is described in 
        section 212(a)(2)(J)(i) or section 237(a)(2)(G)(i) or who is'' 
        after ``to an alien''.
            (2) Ineligibility for asylum.--Section 208(b)(2)(A) of such 
        Act (8 U.S.C. 1158(b)(2)(A)) is amended--
                    (A) in clause (v), by striking ``or'' at the end;
                    (B) by redesignating clause (vi) as clause (vii); 
                and
                    (C) by inserting after clause (v) the following:
                            ``(vi) the alien is described in section 
                        212(a)(2)(J)(i) or 237(a)(2)(G)(i); or''.
    (g) Temporary Protected Status.--Section 244 of the Immigration and 
Nationality Act (8 U.S.C. 1254a) is amended--
            (1) by striking ``Attorney General'' each place such term 
        appears and inserting ``Secretary of Homeland Security'';
            (2) in subsection (c)(2)(B)--
                    (A) in clause (i), by striking ``, or'' at the end 
                and inserting a semicolon;
                    (B) in clause (ii), by striking the period and 
                inserting ``; or''; and
                    (C) by adding at the end the following:
                            ``(iii) the alien is, or at any time has 
                        been, described in section 212(a)(2)(J) or 
                        237(a)(2)(G).''; and
            (3) in subsection (d)--
                    (A) by striking paragraph (3); and
                    (B) in paragraph (4), by adding at the end the 
                following: ``The Secretary of Homeland Security may 
                detain an alien provided temporary protected status 
                under this section whenever appropriate under any other 
                provision of law.''.
    (h) Special Immigrant Juvenile Visas.--Section 101(a)(27)(J)(iii) 
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)(iii)) 
is amended--
            (1) in subclause (I), by striking ``and'' at the end;
            (2) in subclause (II), by adding ``and'' at the end; and
            (3) by adding at the end the following:
                                    ``(III) no alien who is, or at any 
                                time has been, described in section 
                                212(a)(2)(J) or 237(a)(2)(G) shall be 
                                eligible for any immigration benefit 
                                under this subparagraph;''.
    (i) Parole.--An alien described in section 212(a)(2)(J) of the 
Immigration and Nationality Act, as added by subsection (b), shall not 
be eligible for parole under section 212(d)(5)(A) of such Act unless--
            (1) the alien is assisting or has assisted the United 
        States Government in a law enforcement matter, including a 
        criminal investigation; and
            (2) the alien's presence in the United States is required 
        by the Government with respect to such assistance.
    (j) Effective Date.--The amendments made by this section shall take 
effect on the date of the enactment of this Act and shall apply to acts 
that occur before, on, or after the date of the enactment of this Act.
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