Criminal Alien Gang Member Removal Act

II 117TH CONGRESS 1ST SESSION S. 1056 To amend the Immigration and Nationality Act with respect to aliens associated with criminal gangs, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 25, 2021 Mr. KENNEDY 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 with respect to aliens associated with criminal gangs, and for other purposes. 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. 3 This Act may be cited as the ‘‘Criminal Alien Gang 4 Member Removal Act’’. 5 SEC. 2. GROUNDS OF INADMISSIBILITY AND DEPORT- 6 ABILITY FOR ALIEN GANG MEMBERS. 7 (a) DEFINITION OF GANG MEMBER.—Section 101(a) 8 of the Immigration and Nationality Act (8 U.S.C. 9 1101(a)) is amended by adding at the end the following: 10 VerDate Sep 11 2014 20:48 Apr 23, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1056.IS S1056 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 1056 IS ‘‘(53) The term ‘criminal gang’ means an ongoing 1 group, club, organization, or association of 5 or more per- 2 sons that has, as 1 of its primary purposes, the commis- 3 sion of 1 or more of the following criminal offenses and 4 the members of which engage, or have engaged within the 5 past 5 years, in a continuing series of such offenses, or 6 that has been designated as a criminal gang by the Sec- 7 retary of Homeland Security, in consultation with the At- 8 torney General, as meeting such criteria. The offenses de- 9 scribed, whether in violation of Federal or State law or 10 foreign law and regardless of whether the offenses oc- 11 curred before, on, or after the date of the enactment of 12 this paragraph, are the following: 13 ‘‘(A) A ‘felony drug offense’ (as defined in sec- 14 tion 102 of the Controlled Substances Act (21 15 U.S.C. 802)). 16 ‘‘(B) An offense under section 274 (relating to 17 bringing in and harboring certain aliens), section 18 277 (relating to aiding or assisting certain aliens to 19 enter the United States), or section 278 (relating to 20 importation of alien for immoral purpose). 21 ‘‘(C) A crime of violence (as defined in section 22 16 of title 18, United States Code). 23 VerDate Sep 11 2014 20:48 Apr 23, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1056.IS S1056 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 1056 IS ‘‘(D) A crime involving obstruction of justice, 1 tampering with or retaliating against a witness, vic- 2 tim, or informant, or burglary. 3 ‘‘(E) Any conduct punishable under sections 4 1028 and 1029 of title 18, United States Code (re- 5 lating to fraud and related activity in connection 6 with identification documents or access devices), sec- 7 tions 1581 through 1594 of such title (relating to 8 peonage, slavery, and trafficking in persons), section 9 1951 of such title (relating to interference with com- 10 merce by threats or violence), section 1952 of such 11 title (relating to interstate and foreign travel or 12 transportation in aid of racketeering enterprises), 13 section 1956 of such title (relating to the laundering 14 of monetary instruments), section 1957 of such title 15 (relating to engaging in monetary transactions in 16 property derived from specified unlawful activity), or 17 sections 2312 through 2315 of such title (relating to 18 interstate transportation of stolen motor vehicles or 19 stolen property). 20 ‘‘(F) A conspiracy to commit any offense de- 21 scribed in subparagraphs (A) through (E).’’. 22 (b) INADMISSIBILITY.—Section 212(a)(2) of such Act 23 (8 U.S.C. 1182(a)(2)) is amended by adding at the end 24 the following: 25 VerDate Sep 11 2014 20:48 Apr 23, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1056.IS S1056 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 1056 IS ‘‘(J) ALIENS ASSOCIATED WITH CRIMINAL 1 GANGS.—Any alien is inadmissible who a con- 2 sular officer, the Secretary of Homeland Secu- 3 rity, or the Attorney General knows or has rea- 4 son to believe— 5 ‘‘(i) to be or to have been a member 6 of a criminal gang; or 7 ‘‘(ii) to have participated in the activi- 8 ties of a criminal gang, knowing or having 9 reason to know that such activities will 10 promote, further, aid, or support the illegal 11 activity of the criminal gang.’’. 12 (c) DEPORTABILITY.—Section 237(a)(2) of the Im- 13 migration and Nationality Act (8 U.S.C. 1227(a)(2)) is 14 amended by adding at the end the following: 15 ‘‘(G) ALIENS ASSOCIATED WITH CRIMINAL 16 GANGS.—Any alien is deportable who— 17 ‘‘(i) is or has been a member of a 18 criminal gang; or 19 ‘‘(ii) has participated in the activities 20 of a criminal gang, knowing or having rea- 21 son to know that such activities will pro- 22 mote, further, aid, or support the illegal 23 activity of the criminal gang.’’. 24 (d) DESIGNATION.— 25 VerDate Sep 11 2014 20:48 Apr 23, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1056.IS S1056 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 1056 IS (1) IN GENERAL.—Chapter 2 of title II of the 1 Immigration and Nationality Act (8 U.S.C. 1182) is 2 amended by inserting after section 219 the fol- 3 lowing: 4 ‘‘SEC. 220. DESIGNATION OF CRIMINAL GANG. 5 ‘‘(a) DESIGNATION.— 6 ‘‘(1) IN GENERAL.—The Secretary of Homeland 7 Security, in consultation with the Attorney General, 8 may designate a group, club, organization, or asso- 9 ciation of 5 or more persons as a criminal gang if 10 the Secretary finds that their conduct is described in 11 section 101(a)(53). 12 ‘‘(2) PROCEDURE.— 13 ‘‘(A) NOTIFICATION.—Not later than 7 14 days before making a designation under this 15 subsection, the Secretary shall, by classified 16 communication, notify the Speaker and Minor- 17 ity Leader of the House of Representatives, the 18 President pro tempore, Majority Leader, and 19 Minority Leader of the Senate, and the mem- 20 bers of the relevant committees of the House of 21 Representatives and the Senate, in writing, of 22 the intent to designate a group, club, organiza- 23 tion, or association of 5 or more persons under 24 VerDate Sep 11 2014 20:48 Apr 23, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1056.IS S1056 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 1056 IS this subsection and the factual basis for such 1 designation. 2 ‘‘(B) PUBLICATION IN THE FEDERAL REG- 3 ISTER.—The Secretary shall publish the des- 4 ignation in the Federal Register 7 days after 5 providing the notification under subparagraph 6 (A). 7 ‘‘(3) RECORD.— 8 ‘‘(A) IN GENERAL.—In making a designa- 9 tion under this subsection, the Secretary shall 10 create an administrative record. 11 ‘‘(B) CLASSIFIED INFORMATION.—The 12 Secretary may consider classified information in 13 making a designation under this subsection. 14 Classified information shall not be subject to 15 disclosure for such time as it remains classified, 16 except that such information may be disclosed 17 to a court ex parte and in camera for purposes 18 of judicial review under subsection (c). 19 ‘‘(4) PERIOD OF DESIGNATION.— 20 ‘‘(A) IN GENERAL.—A designation under 21 this subsection shall be effective for all purposes 22 until revoked under paragraph (5) or (6) or set 23 aside pursuant to subsection (c). 24 VerDate Sep 11 2014 20:48 Apr 23, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1056.IS S1056 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 1056 IS ‘‘(B) REVIEW OF DESIGNATION UPON PE- 1 TITION.— 2 ‘‘(i) IN GENERAL.—The Secretary 3 shall review the designation of a criminal 4 gang under the procedures set forth in 5 clauses (iii) and (iv) if the designated 6 group, club, organization, or association of 7 5 or more persons files a petition for rev- 8 ocation within the petition period described 9 in clause (ii). 10 ‘‘(ii) PETITION PERIOD.—For pur- 11 poses of clause (i)— 12 ‘‘(I) if the designated group, 13 club, organization, or association of 5 14 or more persons has not previously 15 filed a petition for revocation under 16 this subparagraph, the petition period 17 begins 2 years after the date on which 18 the designation was made; or 19 ‘‘(II) if the designated group, 20 club, organization, or association of 5 21 or more persons has previously filed a 22 petition for revocation under this sub- 23 paragraph, the petition period begins 24 2 years after the date of the deter- 25 VerDate Sep 11 2014 20:48 Apr 23, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1056.IS S1056 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 1056 IS mination made under clause (iv) on 1 that petition. 2 ‘‘(iii) PROCEDURES.—Any group, 3 club, organization, or association of 5 or 4 more persons that submits a petition for 5 revocation under this subparagraph of its 6 designation as a criminal gang must pro- 7 vide evidence in that petition that it is not 8 described in section 101(a)(53). 9 ‘‘(iv) DETERMINATION.— 10 ‘‘(I) IN GENERAL.—Not later 11 than 180 days after receiving a peti- 12 tion for revocation submitted under 13 this subparagraph, the Secretary shall 14 make a determination as to such rev- 15 ocation. 16 ‘‘(II) CLASSIFIED INFORMA- 17 TION.—The Secretary may consider 18 classified information in making a de- 19 termination in response to a petition 20 for revocation. Classified information 21 shall not be subject to disclosure for 22 such time as it remains classified, ex- 23 cept that such information may be 24 disclosed to a court ex parte and in 25 VerDate Sep 11 2014 20:48 Apr 23, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1056.IS S1056 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 1056 IS camera for purposes of judicial review 1 under subsection (c). 2 ‘‘(III) PUBLICATION OF DETER- 3 MINATION.—A determination made by 4 the Secretary under this clause shall 5 be published in the Federal Register. 6 ‘‘(IV) PROCEDURES.—Any rev- 7 ocation by the Secretary shall be 8 made in accordance with paragraph 9 (6). 10 ‘‘(C) OTHER REVIEW OF DESIGNATION.— 11 ‘‘(i) IN GENERAL.—If no review has 12 taken place under subparagraph (B) in a 13 5-year period, the Secretary shall review 14 the designation of the criminal gang in 15 order to determine whether such designa- 16 tion should be revoked pursuant to para- 17 graph (6). 18 ‘‘(ii) PROCEDURES.—If a review does 19 not take place pursuant to subparagraph 20 (B) in response to a petition for revocation 21 that is filed in accordance with that sub- 22 paragraph, then the review shall be con- 23 ducted pursuant to procedures established 24 by the Secretary. The results of such re- 25 VerDate Sep 11 2014 20:48 Apr 23, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1056.IS S1056 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 1056 IS view and the applicable procedures shall 1 not be reviewable in any court. 2 ‘‘(iii) PUBLICATION OF RESULTS OF 3 REVIEW.—The Secretary shall publish any 4 determination made pursuant to this sub- 5 paragraph in the Federal Register. 6 ‘‘(5) REVOCATION BY ACT OF CONGRESS.—The 7 Congress, by an Act of Congress, may block or re- 8 voke a designation made under paragraph (1). 9 ‘‘(6) REVOCATION BASED ON CHANGE IN CIR- 10 CUMSTANCES.— 11 ‘‘(A) IN GENERAL.—The Secretary may re- 12 voke a designation made under paragraph (1) 13 at any time, and shall revoke a designation 14 upon completion of a review conducted pursu- 15 ant to subparagraphs (B) and (C) of paragraph 16 (4) if the Secretary finds that— 17 ‘‘(i) the group, club, organization, or 18 association of 5 or more persons that has 19 been designated as a criminal gang is no 20 longer described in section 101(a)(53); or 21 ‘‘(ii) the national security or the law 22 enforcement interests of the United States 23 warrants a revocation. 24 VerDate Sep 11 2014 20:48 Apr 23, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1056.IS S1056 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 1056 IS ‘‘(B) PROCEDURE.—The procedural re- 1 quirements of paragraphs (2) and (3) shall 2 apply to a revocation under this paragraph. Any 3 revocation shall take effect on the date specified 4 in the revocation or upon publication in the 5 Federal Register if no effective date is specified. 6 ‘‘(7) EFFECT OF REVOCATION.—The revocation 7 of a designation under paragraph (5) or (6) shall 8 not affect any action or proceeding based on conduct 9 committed prior to the effective date of such revoca- 10 tion. 11 ‘‘(8) USE OF DESIGNATION IN TRIAL OR HEAR- 12 ING.—If a designation under this subsection has be- 13 come effective under paragraph (2) an alien in a re- 14 moval proceeding shall not be permitted to raise any 15 question concerning the validity of the issuance of 16 such designation as a defense or an objection. 17 ‘‘(b) AMENDMENTS TO A DESIGNATION.— 18 ‘‘(1) IN GENERAL.—The Secretary may amend 19 a designation under this subsection if the Secretary 20 finds that the group, club, organization, or associa- 21 tion of 5 or more persons has changed its name, 22 adopted a new alias, dissolved and then reconsti- 23 tuted itself under a different name or names, or 24 VerDate Sep 11 2014 20:48 Apr 23, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1056.IS S1056 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 1056 IS merged with another group, club, organization, or 1 association of 5 or more persons. 2 ‘‘(2) PROCEDURE.—Amendments made to a 3 designation in accordance with paragraph (1) shall 4 be effective upon publication in the Federal Register. 5 Paragraphs (2), (4), (5), (6), (7), and (8) of sub- 6 section (a) shall apply to an amended designation. 7 ‘‘(3) ADMINISTRATIVE RECORD.—The adminis- 8 trative record shall be corrected to include the 9 amendments and any additional relevant information 10 that supports those amendments. 11 ‘‘(4) CLASSIFIED INFORMATION.—The Sec- 12 retary may consider classified information in amend- 13 ing a designation in accordance with this subsection. 14 Classified information shall not be subject to disclo- 15 sure for such time as it remains classified, except 16 that such information may be disclosed to a court ex 17 parte and in camera for purposes of judicial review 18 under subsection (c). 19 ‘‘(c) JUDICIAL REVIEW OF DESIGNATION.— 20 ‘‘(1) IN GENERAL.—Not later than 30 days 21 after publication in the Federal Register of a des- 22 ignation, an amended designation, or a determina- 23 tion in response to a petition for revocation, the des- 24 ignated group, club, organization, or association of 5 25 VerDate Sep 11 2014 20:48 Apr 23, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1056.IS S1056 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 1056 IS or more persons may seek judicial review in the 1 [Text truncated for display. 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