II 117TH CONGRESS 1ST SESSION S. 60 To provide for the effective use of immigration detainers to enhance public safety. IN THE SENATE OF THE UNITED STATES JANUARY 27, 2021 Mr. TILLIS (for himself, Mr. GRASSLEY, Ms. ERNST, Mr. INHOFE, Mr. ROUNDS, Mr. MORAN, Mr. HAWLEY, and Mr. DAINES) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To provide for the effective use of immigration detainers to enhance public safety. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Immigration Detainer Enforcement Act of 2021’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 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 Secu- rity. VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S60.IS S60 kjohnson on DSK79L0C42PROD with BILLS 2 •S 60 IS 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. SEC. 2. SENSE OF CONGRESS. 1 It is the sense of Congress that— 2 (1) the removal of criminal aliens promotes 3 public safety, national security, border security, and 4 the integrity of the immigration system; 5 (2) detainers have proven to be a useful law en- 6 forcement tool that serve to expedite and improve 7 the efficiency of the removal process by enabling the 8 Department of Homeland Security to assume cus- 9 tody in a timely manner of aliens in the custody of 10 Federal, State, tribal, or local law enforcement agen- 11 cies; and 12 (3) several States and localities have limited 13 their cooperation with immigration detainers issued 14 by the Department of Homeland Security and lim- 15 ited the Department of Homeland Security’s access 16 to information regarding the release of criminal 17 aliens in their custody, which has resulted in the re- 18 lease of dangerous criminal aliens into local commu- 19 nities. 20 SEC. 3. PURPOSE. 21 The purposes of this Act are— 22 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S60.IS S60 kjohnson on DSK79L0C42PROD with BILLS 3 •S 60 IS (1) to limit recidivist criminal activity through 1 the removal of criminal aliens released from Federal, 2 State, tribal, or local custody; 3 (2) to facilitate cooperation between Federal, 4 State, tribal, and local law enforcement agencies 5 with regard to immigration enforcement and infor- 6 mation sharing; and 7 (3) to limit the burden on Federal, State, tribal, 8 and local law enforcement agencies that cooperate 9 with the Department of Homeland Security in its 10 prioritized immigration enforcement. 11 SEC. 4. IMMIGRATION DETAINER AUTHORITIES OF THE DE- 12 PARTMENT OF HOMELAND SECURITY. 13 Section 287 of the Immigration and Nationality Act 14 (8 U.S.C. 1357) is amended— 15 (1) in subsection (a)— 16 (A) in the matter preceding paragraph (1), 17 by striking ‘‘the Service authorized under regu- 18 lations prescribed by the Attorney General’’ and 19 inserting ‘‘the Department of Homeland Secu- 20 rity authorized under regulations prescribed by 21 the Secretary of Homeland Security’’; 22 (B) by inserting ‘‘or her’’ after ‘‘his’’ each 23 place such term appears; 24 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S60.IS S60 kjohnson on DSK79L0C42PROD with BILLS 4 •S 60 IS (C) in paragraph (2), by striking ‘‘and is 1 likely to escape before a warrant can be ob- 2 tained for his arrest’’; and 3 (D) in the undesignated matter following 4 paragraph (5)— 5 (i) by striking ‘‘Attorney General’’ 6 each place such term appears and inserting 7 ‘‘Secretary of Homeland Security’’; and 8 (ii) by striking ‘‘Service’’ each place 9 such term appears and inserting ‘‘Depart- 10 ment of Homeland Security’’; and 11 (2) by amending subsection (d) to read as fol- 12 lows: 13 ‘‘(d) DETAINER OF CRIMINAL ALIENS.— 14 ‘‘(1) IN GENERAL.—If an individual is arrested 15 by a Federal, State, tribal, or local law enforcement 16 official for a violation of any criminal law, the Sec- 17 retary of Homeland Security (or his or her designee) 18 may issue a detainer to the arresting agency if there 19 is reason to believe the individual is an alien who 20 may be removable from the United States. Notwith- 21 standing any other provision of law, no court shall 22 have jurisdiction to review the discretionary decision 23 or action by the Secretary of Homeland Security (or 24 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S60.IS S60 kjohnson on DSK79L0C42PROD with BILLS 5 •S 60 IS his or her designee) to issue a detainer under this 1 paragraph. 2 ‘‘(2) TRANSFER OF CUSTODY.—Upon the 3 issuance of a detainer by the Secretary of Homeland 4 Security (or his or her designee) with respect to an 5 alien described in paragraph (1), the arresting Fed- 6 eral, State, tribal, or local law enforcement agency 7 is authorized to maintain custody of the alien for a 8 period not to exceed 48 hours in order to transfer 9 custody of the alien to the Department of Homeland 10 Security. 11 ‘‘(3) INDEMNIFICATION.— 12 ‘‘(A) IN GENERAL.—Under such regula- 13 tions as the Secretary of Homeland Security 14 shall prescribe, the Secretary (or his or her des- 15 ignee) may enter into agreements with State, 16 tribal, and local law enforcement agencies to in- 17 demnify such agencies against claims (including 18 reasonable expenses of litigation or settlement) 19 by third parties for wrongful detention resulting 20 from detainers issued without reason to believe 21 that the individual is an alien who may be re- 22 movable from the United States. 23 ‘‘(B) LIMITATION.—Indemnification under 24 subparagraph (A) does not extend to claims re- 25 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S60.IS S60 kjohnson on DSK79L0C42PROD with BILLS 6 •S 60 IS lating to the negligence or willful misconduct of 1 a Federal, State, tribal, or local law enforce- 2 ment agency or the conditions of detention in 3 the facility used by such agency to detain the 4 individual subject to the detainer. 5 ‘‘(C) ADDITIONAL CONDITIONS.—Each in- 6 demnification agreement entered into pursuant 7 to subparagraph (A) shall— 8 ‘‘(i) require the State, tribal, or local 9 law enforcement agency to notify the 10 United States Government of any suit or 11 claim against such agency for wrongful de- 12 tention; 13 ‘‘(ii) authorize the United States Gov- 14 ernment, at its elections, to control or as- 15 sist in the defense of such suit or claim; 16 and 17 ‘‘(iii) limit the amount of indemnifica- 18 tion to a sum certified by the Secretary (or 19 his or her designee) that is just and rea- 20 sonable.’’. 21 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S60.IS S60 kjohnson on DSK79L0C42PROD with BILLS 7 •S 60 IS SEC. 5. EFFECTIVE COORDINATION WITH STATE, TRIBAL, 1 AND LOCAL LAW ENFORCEMENT AGENCIES. 2 (a) IN GENERAL.—Section 642 of the Illegal Immi- 3 gration Reform and Immigrant Responsibility Act of 1996 4 (8 U.S.C. 1373) is amended to read as follows: 5 ‘‘SEC. 642. COMMUNICATION AND COOPERATION BETWEEN 6 GOVERNMENT AGENCIES AND THE DEPART- 7 MENT OF HOMELAND SECURITY. 8 ‘‘(a) IN GENERAL.—Notwithstanding any other pro- 9 vision of Federal, State, tribal, or local law, a Federal, 10 State, tribal, or local government entity or official may 11 not prohibit, or restrict in any way, any government entity 12 or official from sending to, or receiving from, the Depart- 13 ment of Homeland Security information regarding the citi- 14 zenship or immigration status (lawful or unlawful) of any 15 individual. 16 ‘‘(b) ADDITIONAL AUTHORITY OF GOVERNMENT EN- 17 TITIES.—Notwithstanding any other provision of Federal, 18 State, tribal, or local law, no person or agency may pro- 19 hibit, or restrict in any way, a Federal, State, tribal, or 20 local government entity from— 21 ‘‘(1) sending information regarding the citizen- 22 ship or immigration status (lawful or unlawful) of 23 any individual to, or requesting or receiving such in- 24 formation from, the Department of Homeland Secu- 25 rity; 26 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S60.IS S60 kjohnson on DSK79L0C42PROD with BILLS 8 •S 60 IS ‘‘(2) exchanging citizenship or immigration sta- 1 tus information described in paragraph (1) with any 2 other Federal, State, tribal, or local government en- 3 tity; 4 ‘‘(3) providing the Department of Homeland 5 Security with access to information in Federal, 6 State, tribal, or local government databases regard- 7 ing individuals with respect to whom a detainer has 8 been issued, including when such individuals will be 9 released from criminal custody; or 10 ‘‘(4) maintaining custody of an individual pur- 11 suant to section 287(d)(2) of the Immigration and 12 Nationality Act (8 U.S.C. 1357(d)(2)). 13 ‘‘(c) OBLIGATION TO RESPOND TO INQUIRIES.—The 14 Secretary of Homeland Security shall respond to an in- 15 quiry by a Federal, State, tribal, or local government 16 agency that seeks to verify or ascertain the citizenship or 17 immigration status of any individual within the jurisdic- 18 tion of the agency for any purpose authorized by law, by 19 providing the requested verification or status informa- 20 tion.’’. 21 (b) CLERICAL AMENDMENT.—The table of contents 22 for the Illegal Immigration Reform and Immigrant Re- 23 sponsibility Act of 1996 (division C of Public Law 104– 24 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S60.IS S60 kjohnson on DSK79L0C42PROD with BILLS 9 •S 60 IS 208; 8 U.S.C. 1101 note) is amended by amending the 1 item relating to 642 to read as follows: 2 ‘‘Sec. 642. Communication and cooperation between government agencies and the Department of Homeland Security.’’. SEC. 6. COMPENSATING STATES FOR DETAINING CRIMINAL 3 ALIENS. 4 Section 241(i) of the Immigration and Nationality 5 Act (8 U.S.C. 1231(i)) is amended to read as follows: 6 ‘‘(i) INCARCERATION OR DETENTION.— 7 ‘‘(1) DEFINED TERM.—In this subsection, the 8 term ‘undocumented criminal alien’ means an alien 9 who— 10 ‘‘(A) has been convicted of a felony or of 11 two or more misdemeanors; and 12 ‘‘(B)(i) entered the United States without 13 inspection or at any time or place other than as 14 designated by the Secretary of Homeland Secu- 15 rity; 16 ‘‘(ii) was the subject of exclusion, deporta- 17 tion, or removal proceedings at the time the 18 alien was taken into custody by the State or a 19 political subdivision of the State; or 20 ‘‘(iii)(I) was admitted as a nonimmigrant; 21 and 22 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S60.IS S60 kjohnson on DSK79L0C42PROD with BILLS 10 •S 60 IS ‘‘(II) at the time the alien was taken into 1 custody by the State or a political subdivision 2 of the State— 3 ‘‘(aa) failed to maintain the non- 4 immigrant status in which the alien was 5 admitted or to which it was changed under 6 section 248; or 7 ‘‘(bb) failed to comply with the condi- 8 tions of any such status. 9 ‘‘(2) IN GENERAL.—If the governor of a State 10 (or, if appropriate, the chief executive officer of a 11 political subdivision of the State), exercising author- 12 ity with respect to the incarceration or detention of 13 an undocumented criminal alien, submits a written 14 request to the Attorney General, the Attorney Gen- 15 eral may— 16 ‘‘(A) enter into a contractual arrangement 17 providing for compensation to the State or a 18 political subdivision of the State, as may be ap- 19 propriate, with respect to the incarceration or 20 detention of the undocumented criminal alien; 21 or 22 ‘‘(B) take the undocumented criminal alien 23 into the custody of the Federal Government and 24 incarcerate or detain the alien. 25 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S60.IS S60 kjohnson on DSK79L0C42PROD with BILLS 11 •S 60 IS ‘‘(3) DETENTION SECURITY.—In carrying out 1 paragraph (2), the Attorney General shall— 2 ‘‘(A) give priority to the Federal incarcer- 3 ation of undocumented criminal aliens who have 4 committed aggravated felonies; and 5 ‘‘(B) ensure that undocumented criminal 6 aliens incarcerated or detained in Federal facili- 7 ties pursuant to this subsection are held in fa- 8 cilities that provide a level of security appro- 9 priate to the crimes for which they were 10 charged or convicted. 11 ‘‘(4) AMOUNT OF COMPENSATION.— 12 ‘‘(A) IN GENERAL.—Compensation pro- 13 vided for each day an undocumented criminal 14 alien is detained by a State or a political sub- 15 division of a State pursuant to a contract under 16 paragraph (2)(A) shall be equal to the average 17 daily cost of incarceration or detention of a 18 prisoner in the relevant State, as determined by 19 the Attorney General. 20 ‘‘(B) CERTIFICATION REQUIREMENT.— 21 ‘‘(i) IN GENERAL.—The Secretary of 22 Homeland Security shall— 23 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S60.IS S60 kjohnson on DSK79L0C42PROD with BILLS 12 •S 60 IS ‘‘(I) promulgate regulations es- 1 tablishing detainer compliance cri- 2 teria; and 3 ‘‘(II) periodically submit a certifi- 4 cation to the Attorney General that 5 identifies which States and political 6 subdivisions of a State have not com- 7 plied with detainer requests received 8 from the Department of Homeland 9 Security. 10 ‘‘(ii) FUNDING LIMITATION.—Funds 11 may only be provided to States and polit- 12 ical subdivisions of States under this sub- 13 section that— 14 ‘‘(I) are not identified in a cer- 15 tification described in clause (i)(II); 16 and 17 ‘‘(II) are cooperating with the 18 Secretary with respect to each de- 19 tainer lodged against an individual in 20 the custody of the State or political 21 subdivision of the State in accordance 22 with section 287(d) and the regula- 23 tions promulgated pursuant to clause 24 (i)(I). 25 VerDate Sep 11 2014 21:53 Feb 06, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S60.IS S60 kjohnson on DSK79L0C42PROD with BILLS 13 •S 60 IS ‘‘(C) EFFECT OF NONCOMPLIANCE.—Any 1 State or political subdivision of a State that 2 fails to substantially co [Text truncated for display. 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