Short title; table of contents

(a)

Short title

This Act may be cited as the

Immigration Detainer Enforcement Act of 2021

.(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Sense of Congress.

Sec. 3. Purpose.

Sec. 4. Immigration detainer authorities of the Department of Homeland Security.

Sec. 5. Effective coordination with State, tribal, and local law enforcement agencies.

Sec. 6. Compensating States for detaining criminal aliens.

Sec. 7. Priority for distributing Federal funding and property to State and local law enforcement.

Sense of Congress

It is the sense of Congress that—(1)the removal of criminal aliens promotes public safety, national security, border security, and the integrity of the immigration system;(2)detainers have proven to be a useful law enforcement tool that serve to expedite and improve the efficiency of the removal process by enabling the Department of Homeland Security to assume custody in a timely manner of aliens in the custody of Federal, State, tribal, or local law enforcement agencies; and(3)several States and localities have limited their cooperation with immigration detainers issued by the Department of Homeland Security and limited the Department of Homeland Security’s access to information regarding the release of criminal aliens in their custody, which has resulted in the release of dangerous criminal aliens into local communities.

Purpose

The purposes of this Act are—(1)to limit recidivist criminal activity through the removal of criminal aliens released from Federal, State, tribal, or local custody;(2)to facilitate cooperation between Federal, State, tribal, and local law enforcement agencies with regard to immigration enforcement and information sharing; and(3)to limit the burden on Federal, State, tribal, and local law enforcement agencies that cooperate with the Department of Homeland Security in its prioritized immigration enforcement.

Immigration detainer authorities of the Department of Homeland Security

Section 287 of the Immigration and Nationality Act (8 U.S.C. 1357) is amended—(1)in subsection (a)(2), by striking and is likely to escape before a warrant can be obtained for his arrest; and(2)by amending subsection (d) to read as follows:

(d)

Detainer of criminal aliens

(1)

In general

If an individual is arrested by a Federal, State, tribal, or local law enforcement official for a violation of any criminal law, the Secretary of Homeland Security (or his or her designee) may issue a detainer to the arresting agency if there is reason to believe the individual is an alien who may be removable from the United States. Notwithstanding any other provision of law, no court shall have jurisdiction to review the discretionary decision or action by the Secretary of Homeland Security (or his or her designee) to issue a detainer under this paragraph.(2)

Transfer of custody

Upon the issuance of a detainer by the Secretary of Homeland Security (or his or her designee) with respect to an alien described in paragraph (1), the arresting Federal, State, tribal, or local law enforcement agency is authorized to maintain custody of the alien for a period not to exceed 48 hours in order to transfer custody of the alien to the Department of Homeland Security.(3)

Indemnification

(A)

In general

Under such regulations as the Secretary of Homeland Security shall prescribe, the Secretary (or his or her designee) may enter into agreements with State, tribal, and local law enforcement agencies to indemnify such agencies against claims (including reasonable expenses of litigation or settlement) by third parties for wrongful detention resulting from detainers issued without reason to believe that the individual is an alien who may be removable from the United States.(B)

Limitation

Indemnification under subparagraph (A) does not extend to claims relating to the negligence or willful misconduct of a Federal, State, tribal, or local law enforcement agency or the conditions of detention in the facility used by such agency to detain the individual subject to the detainer.(C)

Additional conditions

Each indemnification agreement entered into pursuant to subparagraph (A) shall—(i)require the State, tribal, or local law enforcement agency to notify the United States Government of any suit or claim against such agency for wrongful detention;(ii)authorize the United States Government, at its elections, to control or assist in the defense of such suit or claim; and(iii)limit the amount of indemnification to a sum certified by the Secretary (or his or her designee) that is just and reasonable.

Effective coordination with State, tribal, and local law enforcement agencies

(a)

In general

Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is amended to read as follows:

642.

Communication and cooperation between government agencies and the Department of Homeland Security

(a)

In general

Notwithstanding any other provision of Federal, State, tribal, or local law, a Federal, State, tribal, or local government entity or official may not prohibit, or restrict in any way, any government entity or official from sending to, or receiving from, the Department of Homeland Security information regarding the citizenship or immigration status (lawful or unlawful) of any individual.(b)

Additional authority of government entities

Notwithstanding any other provision of Federal, State, tribal, or local law, no person or agency may prohibit, or restrict in any way, a Federal, State, tribal, or local government entity from—(1)sending information regarding the citizenship or immigration status (lawful or unlawful) of any individual to, or requesting or receiving such information from, the Department of Homeland Security;(2)exchanging citizenship or immigration status information described in paragraph (1) with any other Federal, State, tribal, or local government entity;(3)providing the Department of Homeland Security with access to information in Federal, State, tribal, or local government databases regarding individuals with respect to whom a detainer has been issued, including when such individuals will be released from criminal custody; and(4)maintaining custody of an individual pursuant to section 287(d)(2) of the Immigration and Nationality Act (8 U.S.C. 1357(d)(2)).(c)

Obligation To respond to inquiries

The Secretary of Homeland Security shall respond to an inquiry by a Federal, State, tribal, or local government agency that seeks to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

(b)

Clerical amendment

The table of contents for the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1101 note) is amended by amending the item relating to 642 to read as follows:

Sec. 642. Communication and cooperation between government agencies and the Department of Homeland Security.

Compensating States for detaining criminal aliens

Section 241 of the Immigration and Nationality Act (8 U.S.C. 1231(i)) is amended to read as follows:

(i)

Incarceration or detention

(1)

Defined term

In this subsection, the term undocumented criminal alien means an alien who—(A)has been convicted of a felony or of 2 or more misdemeanors; and(B)(i)entered the United States without inspection or at any time or place other than as designated by the Secretary of Homeland Security;(ii)was the subject of exclusion, deportation, or removal proceedings at the time the alien was taken into custody by the State or a political subdivision of the State; or(iii)(I)was admitted as a nonimmigrant; and(II)at the time the alien was taken into custody by the State or a political subdivision of the State—(aa)failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 248; or(bb)failed to comply with the conditions of any such status.(2)

In general

If the governor of a State (or, if appropriate, the chief executive officer of a political subdivision of the State), exercising authority with respect to the incarceration or detention of an undocumented criminal alien, submits a written request to the Attorney General, the Attorney General may—(A)enter into a contractual arrangement providing for compensation to the State or a political subdivision of the State, as may be appropriate, with respect to the incarceration or detention of the undocumented criminal alien; or(B)take the undocumented criminal alien into the custody of the Federal Government and incarcerate or detain the alien.(3)

Detention security

In carrying out paragraph (2), the Attorney General shall—(A)give priority to the Federal incarceration of undocumented criminal aliens who have committed aggravated felonies; and(B)ensure that undocumented criminal aliens incarcerated or detained in Federal facilities pursuant to this subsection are held in facilities that provide a level of security appropriate to the crimes for which they were charged or convicted.(4)

Amount of compensation

(A)

In general

Compensation provided for each day an undocumented criminal alien is detained by a State or a political subdivision of a State pursuant to a contract under paragraph (2)(A) shall be equal to the average daily cost of incarceration or detention of a prisoner in the relevant State, as determined by the Attorney General.(B)

Certification requirement

(i)

In general

The Secretary of Homeland Security shall—(I)promulgate regulations establishing detainer compliance criteria; and(II)periodically submit a certification to the Attorney General that identifies which States and political subdivisions of a State have not complied with detainer requests received from the Department of Homeland Security.(ii)

Funding limitation

Funds may only be provided to States and political subdivisions of States under this subsection that—(I)are not identified in a certification described in clause (i)(II); and(II)are cooperating with the Secretary with respect to each detainer lodged against an individual in the custody of the State or political subdivision of the State in accordance with section 287(d) and the regulations promulgated pursuant to clause (i)(I).(C)

Effect of noncompliance

Any State or political subdivision of a State that fails to substantially comply with detainers issued by the Department of Homeland Security shall be ineligible for any funding under this subsection during the fiscal year in which such failure occurs.(5)

Authorization of appropriations

(A)

In general

There are authorized to be appropriated to carry out this subsection—(i)$750,000,000 for fiscal year 2020;(ii)$850,000,000 for fiscal year 2021; and(iii)$950,000,000 for each of the fiscal years 2022 through 2026.(B)

Limitation

Amounts appropriated pursuant to subparagraph (A) that are distributed to a State or a political subdivision of a State may only be used for correctional purposes.

Priority for distributing Federal funding and property to State and local law enforcement

(a)

Annual certification

The Secretary of Homeland Security shall annually submit a written certification to the Attorney General that identifies the States and units of local government that are not complying with detainers issued pursuant to section 287(d) of the Immigration and Nationality Act (8 U.S.C. 1357(d)).(b)

Priority for compliant jurisdictions

The Attorney General shall give priority to the jurisdictions that are not listed in the certification described in subsection (a) when selecting recipients of—(1)funding from the Edward Byrne Memorial Justice Assistance Grant Program authorized under title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10151 et seq.);(2)excess Federal equipment purchased pursuant to section 281 of title 10, United States Code (commonly referred to as the 1122 Program); and(3)excess Federal property transferred pursuant to section 2576a of title 10, United States Code (commonly referred to as the 1033 Program).