[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4370 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  2d Session
                                S. 4370

To amend the Immigration and Nationality Act to provide for extensions 
of detention of certain aliens ordered removed, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 9, 2022

Mr. Inhofe (for himself, Mr. Tillis, Mr. Wicker, Mr. Crapo, Mr. Risch, 
   Mr. Kennedy, Mr. Cruz, Mr. Grassley, Mr. Hagerty, Ms. Lummis, Mr. 
   Braun, Mr. Cassidy, Mr. Hawley, Mr. Cramer, Mrs. Hyde-Smith, Mr. 
    Marshall, Mr. Rounds, Mr. Daines, Mr. Rubio, and Mr. Barrasso) 
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 to provide for extensions 
of detention of certain aliens ordered removed, 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 ``Keep Our Communities Safe Act of 
2022''.

SEC. 2. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) rights guaranteed by the United States Constitution 
        should be upheld and protected;
            (2) Congress intends to uphold the constitutional principle 
        of due process; and
            (3) due process of law is a right afforded to every person 
        in the United States.

SEC. 3. DETENTION OF DANGEROUS ALIENS DURING REMOVAL PROCEEDINGS.

    Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) 
is amended--
            (1) by striking ``Attorney General'' each place such term 
        appears and inserting ``Secretary of Homeland Security'';
            (2) in subsection (a)--
                    (A) in the matter preceding paragraph (1), by 
                inserting ``or the Attorney General'' before the em 
                dash;
                    (B) in paragraph (1), by striking ``and'' at the 
                end; and
                    (C) in paragraph (2)(B), by striking ``conditional 
                parole; but'' and inserting ``recognizance; and'';
            (3) in subsection (b)--
                    (A) in the subsection heading, by striking 
                ``Parole'' and inserting ``Recognizance''; and
                    (B) by striking ``parole'' and inserting 
                ``recognizance'';
            (4) in subsection (c)(1), by striking the undesignated 
        matter following subparagraph (D) and inserting the following:
        ``any time after the alien is released, without regard to 
        whether an alien is released related to any activity, offense, 
        or conviction described in this paragraph; to whether the alien 
        is released on parole, supervised release, or probation; or to 
        whether the alien may be arrested or imprisoned again for the 
        same offense. If the activity described in this paragraph does 
        not result in the alien being taken into custody by any person 
        other than the Secretary, when the alien is brought to the 
        attention of the Secretary or when the Secretary determines it 
        is practical to take such alien into custody, the Secretary 
        shall take such alien into custody.'';
            (5) in subsection (e), by striking ``Attorney General's'' 
        and inserting ``Secretary of Homeland Security's''; and
            (6) by adding at the end the following:
    ``(f) Length of Detention.--Notwithstanding any other provision 
under this section, an alien may be detained under this section for any 
period, without limitation, except as provided in subsection (h), until 
the alien is subject to a final order of removal. The length of 
detention under this section shall not affect a detention under section 
241.
    ``(g) Administrative Review.--
            ``(1) Limitation.--The Attorney General's review of the 
        Secretary of Homeland Security's custody determinations under 
        subsection (a) shall be limited to whether the alien may be 
        detained, released on bond (of at least $1,500 with security 
        approved by the Secretary), or released with no bond. Any 
        review involving an alien described in paragraph (2)(D) shall 
        be limited to a determination of whether the alien is properly 
        included in such category.
            ``(2) Classes of aliens.--The Attorney General shall review 
        the Secretary's custody determinations for--
                    ``(A) aliens in exclusion proceedings;
                    ``(B) aliens described in sections 212(a)(3) and 
                237(a)(4);
                    ``(C) aliens described in subsection (c); and
                    ``(D) aliens in deportation proceedings subject to 
                section 242(a)(2) (as in effect between April 24, 1996, 
                and April 1, 1997).
    ``(h) Release on Bond.--
            ``(1) In general.--An alien detained under subsection (a) 
        may seek release on bond. No bond may be granted under this 
        subsection unless the alien establishes, by clear and 
        convincing evidence, that the alien is not a flight risk or a 
        risk to another person or the community.
            ``(2) Certain aliens ineligible.--No alien detained under 
        subsection (c) may seek release on bond under this 
        subsection.''.

SEC. 4. ALIENS ORDERED REMOVED.

    Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 
1231(a)) is amended--
            (1) by striking ``Attorney General'' each place such term 
        appears (except for the first place it appears in paragraph 
        (4)(B)(i)) and inserting ``Secretary of Homeland Security'';
            (2) in paragraph (1)--
                    (A) by amending subparagraphs (B) and (C) to read 
                as follows:
                    ``(B) Beginning of period.--The removal period 
                begins on the latest of--
                            ``(i) the date on which the order of 
                        removal becomes administratively final;
                            ``(ii) the date on which the alien is taken 
                        into such custody if the alien is not in the 
                        custody of the Secretary on the date on which 
                        the order of removal becomes administratively 
                        final; and
                            ``(iii) the date on which the alien is 
                        taken into the custody of the Secretary after 
                        the alien is released from detention or 
                        confinement if the alien is detained or 
                        confined (except for an immigration process) on 
                        the date on which the order of removal becomes 
                        administratively final.
                    ``(C) Suspension of period.--
                            ``(i) Extension.--The removal period shall 
                        be extended beyond 90 days and the Secretary 
                        may, in the Secretary's sole discretion, keep 
                        the alien in detention during such extended 
                        period, if--
                                    ``(I) the alien fails or refuses to 
                                make all reasonable efforts to comply 
                                with the removal order, or to fully 
                                cooperate with the Secretary's efforts 
                                to establish the alien's identity and 
                                carry out the removal order, including 
                                making timely application in good faith 
                                for travel or other documents necessary 
                                to the alien's departure or conspires 
                                or acts to prevent the alien's removal 
                                that is subject to an order of removal;
                                    ``(II) a court, the Board of 
                                Immigration Appeals, or an immigration 
                                judge orders a stay of removal of an 
                                alien who is subject to an 
                                administratively final order of 
                                removal;
                                    ``(III) the Secretary transfers 
                                custody of the alien pursuant to law to 
                                another Federal agency or a State or 
                                local government agency in connection 
                                with the official duties of such 
                                agency; or
                                    ``(IV) a court or the Board of 
                                Immigration Appeals orders a remand to 
                                an immigration judge or the Board of 
                                Immigration Appeals, during the time 
                                period when the case is pending a 
                                decision on remand (with the removal 
                                period beginning anew on the date that 
                                the alien is ordered removed on 
                                remand).
                            ``(ii) Renewal.--If the removal period has 
                        been extended under clause (i), a new removal 
                        period shall be deemed to have begun on the 
                        date on which--
                                    ``(I) the alien makes all 
                                reasonable efforts to comply with the 
                                removal order, or to fully cooperate 
                                with the Secretary's efforts to 
                                establish the alien's identity and 
                                carry out the removal order;
                                    ``(II) the stay of removal is no 
                                longer in effect; or
                                    ``(III) the alien is returned to 
                                the custody of the Secretary.
                            ``(iii) Mandatory detention for certain 
                        aliens.--The Secretary shall keep an alien 
                        described in subparagraphs (A) through (D) of 
                        section 236(c)(1) in detention during the 
                        extended period described in clause (i).
                            ``(iv) Sole form of relief.--An alien may 
                        only seek relief from detention under this 
                        subparagraph by filing an application for a 
                        writ of habeas corpus in accordance with 
                        chapter 153 of title 28, United States Code. No 
                        alien whose period of detention is extended 
                        under this subparagraph shall have the right to 
                        seek release on bond.'';
            (3) in paragraph (3)--
                    (A) in the matter preceding subparagraph (A), by 
                inserting ``or is not detained pursuant to paragraph 
                (6)'' after ``the removal period''; and
                    (B) by amending subparagraph (D) to read as 
                follows:
                    ``(D) to obey reasonable restrictions on the 
                alien's conduct or activities 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 Federal immigration laws.'';
            (4) in paragraph (4)(A), by striking ``paragraph (2)'' and 
        inserting ``subparagraph (B)''; and
            (5) by amending paragraph (6) to read as follows:
            ``(6) Additional rules for detention or release of certain 
        aliens.--
                    ``(A) Detention review process for cooperative 
                aliens established.--
                            ``(i) In general.--The Secretary of 
                        Homeland Security shall establish an 
                        administrative review process to determine 
                        whether an alien who is not otherwise subject 
                        to mandatory detention, who has made all 
                        reasonable efforts to comply with a removal 
                        order and to cooperate fully with the 
                        Secretary's efforts to establish the alien's 
                        identity and carry out the removal order, 
                        including making timely application in good 
                        faith for travel or other documents necessary 
                        to the alien's departure, and who has not 
                        conspired or acted to prevent removal should be 
                        detained or released on conditions.
                            ``(ii) Determination.--The Secretary of 
                        Homeland Security shall make a determination 
                        whether to release an alien after the removal 
                        period in accordance with subparagraph (B), 
                        which--
                                    ``(I) shall include consideration 
                                of any evidence submitted by the alien; 
                                and
                                    ``(II) may include consideration of 
                                any other evidence, including--
                                            ``(aa) any information or 
                                        assistance provided by the 
                                        Secretary of State or other 
                                        Federal official; and
                                            ``(bb) any other 
                                        information available to the 
                                        Secretary of Homeland Security 
                                        pertaining to the ability to 
                                        remove the alien.
                    ``(B) Authority to detain beyond removal period.--
                            ``(i) In general.--The Secretary of 
                        Homeland Security may continue to detain an 
                        alien for 90 days beyond the removal period 
                        (including any extension of the removal period 
                        under paragraph (1)(C)). An alien whose 
                        detention is extended under this subparagraph 
                        shall not have the right to seek release on 
                        bond.
                            ``(ii) Specific circumstances.--The 
                        Secretary of Homeland Security may continue to 
                        detain an alien beyond the 90 days authorized 
                        under clause (i)--
                                    ``(I) until the alien is removed, 
                                if the Secretary determines that there 
                                is a significant likelihood that the 
                                alien--
                                            ``(aa) will be removed in 
                                        the reasonably foreseeable 
                                        future;
                                            ``(bb) would be removed in 
                                        the reasonably foreseeable 
                                        future; or
                                            ``(cc) would have been 
                                        removed if the alien had not--

                                                    ``(AA) failed or 
                                                refused to make all 
                                                reasonable efforts to 
                                                comply with the removal 
                                                order;

                                                    ``(BB) failed or 
                                                refused to cooperate 
                                                fully with the 
                                                Secretary's efforts to 
                                                establish the alien's 
                                                identity and carry out 
                                                the removal order, 
                                                including making timely 
                                                application in good 
                                                faith for travel or 
                                                other documents 
                                                necessary to the 
                                                alien's departure; or

                                                    ``(CC) conspired or 
                                                acted to prevent 
                                                removal;

                                    ``(II) until the alien is removed, 
                                if the Secretary of Homeland Security 
                                certifies in writing--
                                            ``(aa) 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;
                                            ``(bb) after receipt of a 
                                        written recommendation from the 
                                        Secretary of State, that 
                                        release of the alien is likely 
                                        to have serious adverse foreign 
                                        policy consequences for the 
                                        United States;
                                            ``(cc) based on information 
                                        available to the Secretary of 
                                        Homeland Security (including 
                                        classified, sensitive, or 
                                        national security information, 
                                        and without regard to 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; or
                                            ``(dd) that the release of 
                                        the alien will threaten the 
                                        safety of the community or any 
                                        person, conditions of release 
                                        cannot reasonably be expected 
                                        to ensure the safety of the 
                                        community or of any person;

                                                    ``(AA) the alien 
                                                has been convicted of 1 
                                                or more aggravated 
                                                felonies (as defined in 
                                                section 101(a)(43)(A)) 
                                                or of 1 or more crimes 
                                                identified by the 
                                                Secretary of Homeland 
                                                Security by regulation, 
                                                or of 1 or more 
                                                attempts or 
                                                conspiracies to commit 
                                                any such aggravated 
                                                felonies or such 
                                                identified crimes, if 
                                                the aggregate term of 
                                                imprisonment for such 
                                                attempts or 
                                                conspiracies is at 
                                                least 5 years; or

                                                    ``(BB) the alien 
                                                has committed 1 or more 
                                                crimes 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, the alien is 
                                                likely to engage in 
                                                acts of violence in the 
                                                future; or

                                    ``(III) pending a certification 
                                under subclause (II), if the Secretary 
                                of Homeland Security has initiated the 
                                administrative review process not later 
                                than 30 days after the expiration of 
                                the removal period (including any 
                                extension of the removal period under 
                                paragraph (1)(C)).
                            ``(iii) No right to bond hearing.--An alien 
                        whose detention is extended under this 
                        subparagraph shall not have a right to seek 
                        release on bond, including by reason of a 
                        certification under clause (ii)(II).
                    ``(C) Renewal and delegation of certification.--
                            ``(i) Renewal.--The Secretary of Homeland 
                        Security may renew a certification under 
                        subparagraph (B)(ii)(II) every 6 months after 
                        providing an opportunity for the alien to 
                        request reconsideration of the certification 
                        and to submit documents or other evidence in 
                        support of that request. If the Secretary does 
                        not renew a certification, the Secretary may 
                        not continue to detain the alien under 
                        subparagraph (B)(ii)(II).
                            ``(ii) Delegation.--Notwithstanding section 
                        103, the Secretary of Homeland Security may not 
                        delegate the authority to make or renew a 
                        certification described in item (bb), (cc), or 
                        (dd) of subparagraph (B)(ii)(II) below the 
                        level of the Assistant Secretary for 
                        Immigration and Customs Enforcement.
                            ``(iii) Hearing.--The Secretary of Homeland 
                        Security may request that the Attorney General 
                        or the Attorney General's designee provide for 
                        a hearing to make the determination described 
                        in subparagraph (B)(ii)(II)(dd)(BB).
                    ``(D) Release on conditions.--If it is determined 
                that an alien should be released from detention by a 
                Federal court, the Board of Immigration Appeals, or if 
                an immigration judge orders a stay of removal, the 
                Secretary of Homeland Security may impose conditions on 
                release as provided under paragraph (3).
                    ``(E) Redetention.--
                            ``(i) In general.--The Secretary of 
                        Homeland Security, without any limitations 
                        other than those specified in this section, may 
                        detain any alien subject to a final removal 
                        order who is released from custody if--
                                    ``(I) removal becomes likely in the 
                                reasonably foreseeable future;
                                    ``(II) the alien fails to comply 
                                with the conditions of release or to 
                                continue to satisfy the conditions 
                                described in subparagraph (A); or
                                    ``(III) upon reconsideration, the 
                                Secretary determines that the alien can 
                                be detained under subparagraph (B).
                            ``(ii) Applicability.--This section shall 
                        apply to any alien returned to custody pursuant 
                        to this subparagraph as if the removal period 
                        terminated on the day of the redetention.
                    ``(F) Review of determinations by secretary.--A 
                determination by the Secretary under this paragraph 
                shall not be subject to review by any other agency.''.

SEC. 5. CRIME OF VIOLENCE DEFINED.

    Section 16(b) of title 18, United States Code, is amended--
            (1) by striking ``by its nature, involves'' and inserting 
        ``based on the facts of the offense, involved''; and
            (2) by striking ``may be used'' and inserting ``may have 
        been used''.

SEC. 6. SEVERABILITY.

    If any of the provisions of this Act, any amendment made by this 
Act, or the application of any such provision to any person or 
circumstance, is held to be invalid for any reason, the remainder of 
this Act, the amendments made by this Act, and the application of the 
provisions and amendments made by this Act to any other person or 
circumstance shall not be affected by such holding.

SEC. 7. EFFECTIVE DATES.

    (a) Apprehension and Detention of Aliens.--The amendments made by 
section 3 shall take effect on the date of the enactment of this Act. 
Section 236 of the Immigration and Nationality Act, as amended by 
section 3, shall apply to any alien in detention under the provisions 
of such section on or after such date of enactment.
    (b) Aliens Ordered Removed.--The amendments made by section 4 shall 
take effect on the date of the enactment of this Act. Section 241 of 
the Immigration and Nationality Act, as amended by section 4, shall 
apply to--
            (1) all aliens 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; and
            (2) acts and conditions occurring or existing before, on, 
        or after such date of enactment.
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