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 inserting or; and(C)in paragraph (2), by amending subparagraph (B) to read as follows:

(B)recognizance; and

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(3)in subsection (b)—(A)in the subsection heading, by inserting

Conditional

before

Parole

; and(B)by inserting conditional before parole;(4)in subsection (c)(1)—(A)in the matter preceding subparagraph (A), by striking Attorney General and inserting Secretary of Homeland Security; and(B)by striking the undesignated matter following subparagraph (E)(ii) and inserting the following:

at 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, the Secretary shall take such alien into custody.

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(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:

(g)

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 (i), 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.(h)

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 on recognizance. Any review involving an alien described in paragraph (2) shall be limited to a determination of whether the alien is properly included in such category.(2)

Classes of aliens

The Attorney General's review of the following classes of aliens shall be limited to a determination of whether the alien is properly included in such category:(A)Aliens in exclusion proceedings.(B)Aliens described in section 212(a)(3) or 237(a)(4).(C)Aliens described in subsection (c).(D)Aliens in deportation proceedings under section 242(a)(2) (as in effect between April 24, 1996, and April 1, 1997).(i)

Release on bond

(1)

In general

An alien detained pursuant to 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 pursuant to subsection (c) may seek release on bond under this subsection.

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 striking subparagraphs (B) and (C) and inserting the following:

(B)

Beginning of period

The removal period begins on the latest of—(i)the date on which the order of removal becomes administratively final; or(ii)the date on which the alien is taken into the custody of the Secretary of Homeland Security if the alien is not in the custody of the Secretary of Homeland Security on the date on which the order of removal becomes administratively final.(C)

Suspension of period

(i)

Suspension

The removal period shall be suspended and the Secretary of Homeland Security may, in the Secretary’s sole discretion, detain the alien during such suspension, 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)any 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; or(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.(ii)

Resumption

If the removal period has been suspended pursuant to clause (i), the removal period shall resume 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 any of subparagraphs (A) through (E) of section 236(c)(1) in detention during the periods described in clauses (i) and (ii).(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. An alien whose period of detention is extended or suspended under this paragraph does not have the right to seek release on bond.

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(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 the immigration laws.

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(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 a period of 90 days beyond the removal period. An alien whose detention is extended under this subparagraph does 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-day period 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; or(bb)would be removed in the reasonably foreseeable future, or would have been removed, but for the alien's failure or refusal to make all reasonable efforts to comply with the removal order or 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 conspires or acts to prevent removal.(II)until the alien is removed, if the Secretary 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)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;(cc)that—(AA)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; and(BB)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 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 has initiated the administrative review process not later than 30 days after the expiration of the removal period.(iii)

No right to bond hearing

An alien whose detention is extended under this subparagraph, including by reason of a certification under clause (ii)(II), does not have a right to seek release on bond.(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 pursuant to 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) or (cc) of subparagraph (B)(ii)(II) below the level of the Deputy Director of U.S. Immigration and Customs Enforcement.(D)

Release on conditions

If a Federal court orders an alien to be released from detention, the Secretary of Homeland Security may impose the conditions on release described in 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 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 of Homeland Security under this paragraph shall not be subject to review by any other agency.