II 116TH CONGRESS 1ST SESSION S. 166 To provide provisional protected presence status for certain aliens and to provide mandatory appropriations relating to border security. IN THE SENATE OF THE UNITED STATES JANUARY 16, 2019 Mr. GRAHAM introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To provide provisional protected presence status for certain aliens and to provide mandatory appropriations relating to border security. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. PROVISIONAL PROTECTED PRESENCE. 3 (a) IN GENERAL.—Chapter 4 of title II of the Immi- 4 gration and Nationality Act (8 U.S.C. 1221 et seq.) is 5 amended by adding at the end the following: 6 ‘‘SEC. 244A. PROVISIONAL PROTECTED PRESENCE. 7 ‘‘(a) DEFINITIONS.—In this section: 8 ‘‘(1) DACA RECIPIENT.—The term ‘DACA re- 9 cipient’ means an alien who is in deferred action sta- 10 VerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 166 IS tus on the date of the enactment of this section pur- 1 suant to the Deferred Action for Childhood Arrivals 2 (‘DACA’) Program announced on June 15, 2012. 3 ‘‘(2) FELONY.—The term ‘felony’ means a Fed- 4 eral, State, or local criminal offense (excluding a 5 State or local offense for which an essential element 6 was the alien’s immigration status) punishable by 7 imprisonment for a term exceeding one year. 8 ‘‘(3) MISDEMEANOR.—The term ‘misdemeanor’ 9 means a Federal, State, or local criminal offense 10 (excluding a State or local offense for which an es- 11 sential element was the alien’s immigration status, a 12 significant misdemeanor, and a minor traffic of- 13 fense) for which— 14 ‘‘(A) the maximum term of imprisonment 15 is greater than five days and not greater than 16 one year; and 17 ‘‘(B) the individual was sentenced to time 18 in custody of 90 days or less. 19 ‘‘(4) SECRETARY.—The term ‘Secretary’ means 20 the Secretary of Homeland Security. 21 ‘‘(5) SIGNIFICANT MISDEMEANOR.—The term 22 ‘significant misdemeanor’ means a Federal, State, or 23 local criminal offense (excluding a State or local of- 24 fense for which an essential element was the alien’s 25 VerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 166 IS immigration status) for which the maximum term of 1 imprisonment is greater than five days and not 2 greater than one year that— 3 ‘‘(A) regardless of the sentence imposed, is 4 a crime of domestic violence (as defined in sec- 5 tion 237(a)(2)(E)(i)) or an offense of sexual 6 abuse or exploitation, burglary, unlawful posses- 7 sion or use of a firearm, drug distribution or 8 trafficking, or driving under the influence if the 9 State law requires, as an element of the offense, 10 the operation of a motor vehicle and a finding 11 of impairment or a blood alcohol content of .08 12 or higher; or 13 ‘‘(B) resulted in a sentence of time in cus- 14 tody of more than 90 days, excluding an offense 15 for which the sentence was suspended. 16 ‘‘(6) THREAT TO NATIONAL SECURITY.—An 17 alien is a ‘threat to national security’ if the alien 18 is— 19 ‘‘(A) inadmissible under section 212(a)(3); 20 or 21 ‘‘(B) deportable under section 237(a)(4). 22 ‘‘(7) THREAT TO PUBLIC SAFETY.—An alien is 23 a ‘threat to public safety’ if the alien— 24 VerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 166 IS ‘‘(A) has been convicted of an offense for 1 which an element was participation in a crimi- 2 nal street gang (as defined in section 521(a) of 3 title 18, United States Code); or 4 ‘‘(B) has engaged in a continuing criminal 5 enterprise (as defined in section 408(c) of the 6 Comprehensive Drug Abuse Prevention and 7 Control Act of 1970 (21 U.S.C. 848(c))). 8 ‘‘(b) AUTHORIZATION.—The Secretary— 9 ‘‘(1) shall grant provisional protected presence 10 to an alien who files an application demonstrating 11 that he or she meets the eligibility criteria under 12 subsection (c) and pays the appropriate application 13 fee; 14 ‘‘(2) may not remove such alien from the 15 United States during the period in which such provi- 16 sional protected presence is in effect unless such sta- 17 tus is rescinded pursuant to subsection (g); and 18 ‘‘(3) shall provide such alien with employment 19 authorization. 20 ‘‘(c) ELIGIBILITY CRITERIA.—An alien is eligible for 21 provisional protected presence under this section and em- 22 ployment authorization if the alien— 23 ‘‘(1) was born after June 15, 1981; 24 VerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 166 IS ‘‘(2) entered the United States before attaining 1 16 years of age; 2 ‘‘(3) continuously resided in the United States 3 between June 15, 2007, and the date on which the 4 alien files an application under this section; 5 ‘‘(4) was physically present in the United 6 States on June 15, 2012, and on the date on which 7 the alien files an application under this section; 8 ‘‘(5) was unlawfully present in the United 9 States on June 15, 2012; 10 ‘‘(6) on the date on which the alien files an ap- 11 plication for provisional protected presence— 12 ‘‘(A) is enrolled in school or in an edu- 13 cation program assisting students in obtaining 14 a regular high school diploma or its recognized 15 equivalent under State law, or in passing a gen- 16 eral educational development exam or other 17 State-authorized exam; 18 ‘‘(B) has graduated or obtained a certifi- 19 cate of completion from high school; 20 ‘‘(C) has obtained a general educational 21 development certificate; or 22 ‘‘(D) is an honorably discharged veteran of 23 the Coast Guard or Armed Forces of the 24 United States; 25 VerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 166 IS ‘‘(7) has not been convicted of— 1 ‘‘(A) a felony; 2 ‘‘(B) a significant misdemeanor; or 3 ‘‘(C) three or more misdemeanors not oc- 4 curring on the same date and not arising out of 5 the same act, omission, or scheme of mis- 6 conduct; 7 ‘‘(8) is a DACA recipient; and 8 ‘‘(9) does not otherwise pose a threat to na- 9 tional security or a threat to public safety. 10 ‘‘(d) DURATION OF PROVISIONAL PROTECTED PRES- 11 ENCE AND EMPLOYMENT AUTHORIZATION.—Provisional 12 protected presence and the employment authorization pro- 13 vided under this section shall be effective until the date 14 that is three years after the date of the enactment of this 15 section. 16 ‘‘(e) STATUS DURING PERIOD OF PROVISIONAL PRO- 17 TECTED PRESENCE.— 18 ‘‘(1) IN GENERAL.—An alien granted provi- 19 sional protected presence is not considered to be un- 20 lawfully present in the United States during the pe- 21 riod beginning on the date such status is granted 22 and ending on the date described in subsection (d). 23 ‘‘(2) STATUS OUTSIDE PERIOD.—The granting 24 of provisional protected presence under this section 25 VerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 166 IS does not excuse previous or subsequent periods of 1 unlawful presence. 2 ‘‘(f) APPLICATION.— 3 ‘‘(1) AGE REQUIREMENT.— 4 ‘‘(A) IN GENERAL.—An alien who has 5 never been in removal proceedings, or whose 6 proceedings have been terminated before mak- 7 ing a request for provisional protected presence, 8 shall be at least 15 years old on the date on 9 which the alien submits an application under 10 this section. 11 ‘‘(B) EXCEPTION.—The age requirement 12 set forth in subparagraph (A) shall not apply to 13 an alien who, on the date on which the alien ap- 14 plies for provisional protected presence, is in re- 15 moval proceedings, has a final removal order, or 16 has a voluntary departure order. 17 ‘‘(2) APPLICATION FEE.— 18 ‘‘(A) IN GENERAL.—The Secretary may re- 19 quire aliens applying for provisional protected 20 presence and employment authorization under 21 this section to pay a reasonable fee that is com- 22 mensurate with the cost of processing the appli- 23 cation. 24 VerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 166 IS ‘‘(B) EXEMPTION.—An applicant may be 1 exempted from paying the fee required under 2 subparagraph (A) if the alien— 3 ‘‘(i)(I) is younger than 18 years of 4 age; 5 ‘‘(II) received total income during the 6 12-month period immediately preceding the 7 date on which the alien files an application 8 under this section that is less than 150 9 percent of the United States poverty level; 10 and 11 ‘‘(III) is in foster care or otherwise 12 lacking any parental or other familial sup- 13 port; 14 ‘‘(ii) is younger than 18 years of age 15 and is homeless; 16 ‘‘(iii)(I) cannot care for himself or 17 herself because of a serious, chronic dis- 18 ability; and 19 ‘‘(II) received total income during the 20 12-month period immediately preceding the 21 date on which the alien files an application 22 under this section that is less than 150 23 percent of the United States poverty level; 24 or 25 VerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 166 IS ‘‘(iv)(I) as of the date on which the 1 alien files an application under this sec- 2 tion, has accumulated $10,000 or more in 3 debt in the past 12 months as a result of 4 unreimbursed medical expenses incurred by 5 the alien or an immediate family member 6 of the alien; and 7 ‘‘(II) received total income during the 8 12-month period immediately preceding the 9 date on which the alien files an application 10 under this section that is less than 150 11 percent of the United States poverty level. 12 ‘‘(3) REMOVAL STAYED WHILE APPLICATION 13 PENDING.—The Secretary may not remove an alien 14 from the United States who appears prima facie eli- 15 gible for provisional protected presence while the 16 alien’s application for provisional protected presence 17 is pending. 18 ‘‘(4) ALIENS NOT IN IMMIGRATION DETEN- 19 TION.—An alien who is not in immigration deten- 20 tion, but who is in removal proceedings, is the sub- 21 ject of a final removal order, or is the subject of a 22 voluntary departure order, may apply for provisional 23 protected presence under this section if the alien ap- 24 VerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 166 IS pears prima facie eligible for provisional protected 1 presence. 2 ‘‘(5) ALIENS IN IMMIGRATION DETENTION.— 3 The Secretary shall provide any alien in immigration 4 detention, including any alien who is in removal pro- 5 ceedings, is the subject of a final removal order, or 6 is the subject of a voluntary departure order, who 7 appears prima facie eligible for provisional protected 8 presence, upon request, with a reasonable oppor- 9 tunity to apply for provisional protected presence 10 under this section. 11 ‘‘(6) CONFIDENTIALITY.— 12 ‘‘(A) IN GENERAL.—The Secretary shall 13 protect information provided in applications for 14 provisional protected presence under this sec- 15 tion and in requests for consideration of DACA 16 from disclosure to U.S. Immigration and Cus- 17 toms Enforcement and U.S. Customs and Bor- 18 der Protection for the purpose of immigration 19 enforcement proceedings. 20 ‘‘(B) REFERRALS PROHIBITED.—The Sec- 21 retary may not refer individuals whose cases 22 have been deferred pursuant to DACA or who 23 have been granted provisional protected pres- 24 VerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 166 IS ence under this section to U.S. Immigration 1 and Customs Enforcement. 2 ‘‘(C) LIMITED EXCEPTION.—The informa- 3 tion submitted in applications for provisional 4 protected presence under this section and in re- 5 quests for consideration of DACA may be 6 shared with national security and law enforce- 7 ment agencies— 8 ‘‘(i) for assistance in the consideration 9 of the application for provisional protected 10 presence; 11 ‘‘(ii) to identify or prevent fraudulent 12 claims; 13 ‘‘(iii) for national security purposes; 14 and 15 ‘‘(iv) for the investigation or prosecu- 16 tion of any felony not related to immigra- 17 tion status. 18 ‘‘(7) ACCEPTANCE OF APPLICATIONS.—Not 19 later than 60 days after the date of the enactment 20 of this section, the Secretary shall begin accepting 21 applications for provisional protected presence and 22 employment authorization. 23 ‘‘(g) RESCISSION OF PROVISIONAL PROTECTED 24 PRESENCE.—The Secretary may not rescind an alien’s 25 VerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 166 IS provisional protected presence or employment authoriza- 1 tion granted under this section unless the Secretary deter- 2 mines that the alien— 3 ‘‘(1) has been convicted of— 4 ‘‘(A) a felony; 5 ‘‘(B) a significant misdemeanor; or 6 ‘‘(C) three or more misdemeanors not oc- 7 curring on the same date and not arising out of 8 the same act, omission, or scheme of mis- 9 conduct; 10 ‘‘(2) poses a threat to national security or a 11 threat to public safety; 12 ‘‘(3) has traveled outside of the United States 13 without authorization from the Secretary; or 14 ‘‘(4) has ceased to continuously reside in the 15 United States. 16 ‘‘(h) TREATMENT OF BRIEF, CASUAL, AND INNO- 17 CENT DEPARTURES AND CERTAIN OTHER ABSENCES.— 18 For purposes of subsections (c)(3) and (g)(4), an alien 19 shall not be considered to have failed to continuously re- 20 side in the United States due to— 21 ‘‘(1) brief, casual, and innocent absences from 22 the United States during the period beginning on 23 June 15, 2007, and ending on August 14, 2012; or 24 VerDate Sep 11 2014 18:54 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S166.IS S166 pamtmann on DSKBFK8HB2PROD with BILLS 13 •S 166 IS ‘‘(2) travel outside of the United States on or 1 after August 15, 2012, if such travel was authorized 2 by the Secretary. 3 ‘‘(i) TREATMENT OF EXPUNGED CONVICTIONS.—For 4 purposes of subsections (c)(7) and (g)(1), an expunged 5 conviction shall not automatical [Text truncated for display. 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