[Congressional Record Volume 164, Number 28 (Tuesday, February 13, 2018)]
[Senate]
[Pages S915-S917]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1954. Mr. HELLER submitted an amendment intended to be proposed by
him to the bill H.R. 2579, to amend the Internal Revenue Code of 1986
to allow the premium tax credit with respect to unsubsidized COBRA
continuation coverage; which was ordered to lie on the table; as
follows:
At the appropriate place, insert the following:
SEC. __. CRIMINAL ALIEN GANG MEMBER REMOVAL.
(a) Short Title.--This section may be cited as the
``Criminal Alien Gang Member Removal Act''.
(b) Grounds of Inadmissibility and Deportability for Alien
Gang Members.--
(1) 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 2 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) Any aggravated felony.
``(G) Any criminal offense described in section 212(a) or
237(a).
``(H) Any offense under Federal, State, or tribal law that
has, as an element of the offense, the use or attempted use
of physical force or the threatened use of physical force or
a deadly weapon.
``(I) Any offense that has, as an element of the offense,
the use, attempted use, or threatened use of any physical
object to inflict or cause (either directly or indirectly)
serious bodily injury, including an injury that may
ultimately result in the death of a person.
``(J) A conspiracy to commit an offense described in
subparagraphs (A) through (E).''.
(2) 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
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``(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.''.
(3) 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); 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) Designation of Criminal Gang.--
(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 2 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 2 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 2 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 2 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 2 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 2 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 2 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 2 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 2 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 2 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.);
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``(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 Committee on
the Judiciary of the Senate and the Committee on the
Judiciary 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.''.
(d) 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).
(e) 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''.
(f) 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.''.
(g) 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;''.
(h) Parole.--An alien described in section 212(a)(2)(J) of
the Immigration and Nationality Act, as added by subsection
(b)(2), 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.
(i) 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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