I 116TH CONGRESS 1ST SESSION H. R. 3860 To amend the Immigration and Nationality Act with respect to the detention of dangerous aliens, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JULY 19, 2019 Mrs. LESKO introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend the Immigration and Nationality Act with respect to the detention of dangerous aliens, 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. DETENTION OF DANGEROUS ALIENS. 3 Section 241(a) of the Immigration and Nationality 4 Act (8 U.S.C. 1231(a)) is amended— 5 (1) by striking ‘‘Attorney General’’ each place 6 it appears, except for the first reference in para- 7 graph (4)(B)(i), and inserting ‘‘Secretary of Home- 8 land Security’’; 9 VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS 2 •HR 3860 IH (2) in paragraph (1), by amending subpara- 1 graph (B) to read as follows: 2 ‘‘(B) BEGINNING OF PERIOD.—The re- 3 moval period begins on the latest of the fol- 4 lowing: 5 ‘‘(i) The date the order of removal be- 6 comes administratively final. 7 ‘‘(ii) If the alien is not in the custody 8 of the Secretary on the date the order of 9 removal becomes administratively final, the 10 date the alien is taken into such custody. 11 ‘‘(iii) If the alien is detained or con- 12 fined (except under an immigration proc- 13 ess) on the date the order of removal be- 14 comes administratively final, the date the 15 alien is taken into the custody of the Sec- 16 retary, after the alien is released from such 17 detention or confinement.’’; 18 (3) in paragraph (1), by amending subpara- 19 graph (C) to read as follows: 20 ‘‘(C) SUSPENSION OF PERIOD.— 21 ‘‘(i) EXTENSION.—The removal period 22 shall be extended beyond a period of 90 23 days and the Secretary may, in the Sec- 24 VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS 3 •HR 3860 IH retary’s sole discretion, keep the alien in 1 detention during such extended period if— 2 ‘‘(I) the alien fails or refuses to 3 make all reasonable efforts to comply 4 with the removal order, or to fully co- 5 operate with the Secretary’s efforts to 6 establish the alien’s identity and carry 7 out the removal order, including mak- 8 ing timely application in good faith 9 for travel or other documents nec- 10 essary to the alien’s departure or con- 11 spires or acts to prevent the alien’s 12 removal that is subject to an order of 13 removal; 14 ‘‘(II) a court, the Board of Immi- 15 gration Appeals, or an immigration 16 judge orders a stay of removal of an 17 alien who is subject to an administra- 18 tively final order of removal; 19 ‘‘(III) the Secretary transfers 20 custody of the alien pursuant to law 21 to another Federal agency or a State 22 or local government agency in connec- 23 tion with the official duties of such 24 agency; or 25 VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS 4 •HR 3860 IH ‘‘(IV) a court or the Board of 1 Immigration Appeals orders a remand 2 to an immigration judge or the Board 3 of Immigration Appeals, during the 4 time period when the case is pending 5 a decision on remand (with the re- 6 moval period beginning anew on the 7 date that the alien is ordered removed 8 on remand). 9 ‘‘(ii) RENEWAL.—If the removal pe- 10 riod has been extended under subpara- 11 graph (C)(i), a new removal period shall be 12 deemed to have begun on the date— 13 ‘‘(I) the alien makes all reason- 14 able efforts to comply with the re- 15 moval order, or to fully cooperate with 16 the Secretary’s efforts to establish the 17 alien’s identity and carry out the re- 18 moval order; 19 ‘‘(II) the stay of removal is no 20 longer in effect; or 21 ‘‘(III) the alien is returned to the 22 custody of the Secretary. 23 ‘‘(iii) MANDATORY DETENTION FOR 24 CERTAIN ALIENS.—In the case of an alien 25 VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS 5 •HR 3860 IH described in subparagraphs (A) through 1 (D) of section 236(c)(1), the Secretary 2 shall keep that alien in detention during 3 the extended period described in clause (i). 4 ‘‘(iv) SOLE FORM OF RELIEF.—An 5 alien may seek relief from detention under 6 this subparagraph only by filing an appli- 7 cation for a writ of habeas corpus in ac- 8 cordance with chapter 153 of title 28, 9 United States Code. No alien whose period 10 of detention is extended under this sub- 11 paragraph shall have the right to seek re- 12 lease on bond.’’; 13 (4) in paragraph (3)— 14 (A) by adding after ‘‘If the alien does not 15 leave or is not removed within the removal pe- 16 riod’’ the following: ‘‘or is not detained pursu- 17 ant to paragraph (6) of this subsection’’; and 18 (B) by striking subparagraph (D) and in- 19 serting the following: 20 ‘‘(D) to obey reasonable restrictions on the 21 alien’s conduct or activities that the Secretary 22 prescribes for the alien, in order to prevent the 23 alien from absconding, for the protection of the 24 VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS 6 •HR 3860 IH community, or for other purposes related to the 1 enforcement of the immigration laws.’’; 2 (5) in paragraph (4)(A), by striking ‘‘paragraph 3 (2)’’ and inserting ‘‘subparagraph (B)’’; and 4 (6) by striking paragraph (6) and inserting the 5 following: 6 ‘‘(6) ADDITIONAL RULES FOR DETENTION OR 7 RELEASE OF CERTAIN ALIENS.— 8 ‘‘(A) DETENTION REVIEW PROCESS FOR 9 COOPERATIVE ALIENS ESTABLISHED.—For an 10 alien who is not otherwise subject to mandatory 11 detention, who has made all reasonable efforts 12 to comply with a removal order and to cooper- 13 ate fully with the Secretary of Homeland Secu- 14 rity’s efforts to establish the alien’s identity and 15 carry out the removal order, including making 16 timely application in good faith for travel or 17 other documents necessary to the alien’s depar- 18 ture, and who has not conspired or acted to 19 prevent removal, the Secretary shall establish 20 an administrative review process to determine 21 whether the alien should be detained or released 22 on conditions. The Secretary shall make a de- 23 termination whether to release an alien after 24 the removal period in accordance with subpara- 25 VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS 7 •HR 3860 IH graph (B). The determination shall include con- 1 sideration of any evidence submitted by the 2 alien, and may include consideration of any 3 other evidence, including any information or as- 4 sistance provided by the Secretary of State or 5 other Federal official and any other information 6 available to the Secretary of Homeland Security 7 pertaining to the ability to remove the alien. 8 ‘‘(B) AUTHORITY TO DETAIN BEYOND RE- 9 MOVAL PERIOD.— 10 ‘‘(i) IN GENERAL.—The Secretary of 11 Homeland Security, in the exercise of the 12 Secretary’s sole discretion, may continue to 13 detain an alien for 90 days beyond the re- 14 moval period (including any extension of 15 the removal period as provided in para- 16 graph (1)(C)). An alien whose detention is 17 extended under this subparagraph shall 18 have no right to seek release on bond. 19 ‘‘(ii) SPECIFIC CIRCUMSTANCES.—The 20 Secretary of Homeland Security, in the ex- 21 ercise of the Secretary’s sole discretion, 22 may continue to detain an alien beyond the 23 90 days authorized in clause (i)— 24 VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS 8 •HR 3860 IH ‘‘(I) until the alien is removed, if 1 the Secretary, in the Secretary’s sole 2 discretion, determines that there is a 3 significant likelihood that the alien— 4 ‘‘(aa) will be removed in the 5 reasonably foreseeable future; or 6 ‘‘(bb) would be removed in 7 the reasonably foreseeable future, 8 or would have been removed, but 9 for the alien’s failure or refusal 10 to make all reasonable efforts to 11 comply with the removal order, 12 or to cooperate fully with the 13 Secretary’s efforts to establish 14 the alien’s identity and carry out 15 the removal order, including 16 making timely application in 17 good faith for travel or other doc- 18 uments necessary to the alien’s 19 departure, or conspires or acts to 20 prevent removal; 21 ‘‘(II) until the alien is removed, 22 if the Secretary of Homeland Security 23 certifies in writing— 24 VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS 9 •HR 3860 IH ‘‘(aa) in consultation with 1 the Secretary of Health and 2 Human Services, that the alien 3 has a highly contagious disease 4 that poses a threat to public safe- 5 ty; 6 ‘‘(bb) after receipt of a writ- 7 ten recommendation from the 8 Secretary of State, that release 9 of the alien is likely to have seri- 10 ous adverse foreign policy con- 11 sequences for the United States; 12 ‘‘(cc) based on information 13 available to the Secretary of 14 Homeland Security (including 15 classified, sensitive, or national 16 security information, and without 17 regard to the grounds upon 18 which the alien was ordered re- 19 moved), that there is reason to 20 believe that the release of the 21 alien would threaten the national 22 security of the United States; or 23 ‘‘(dd) that the release of the 24 alien will threaten the safety of 25 VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS 10 •HR 3860 IH the community or any person, 1 conditions of release cannot rea- 2 sonably be expected to ensure the 3 safety of the community or any 4 person, and either (AA) the alien 5 has been convicted of one or 6 more aggravated felonies (as de- 7 fined in section 101(a)(43)(A)) 8 or of one or more crimes identi- 9 fied by the Secretary of Home- 10 land Security by regulation, or of 11 one or more attempts or conspir- 12 acies to commit any such aggra- 13 vated felonies or such identified 14 crimes, if the aggregate term of 15 imprisonment for such attempts 16 or conspiracies is at least 5 17 years; or (BB) the alien has com- 18 mitted one or more crimes of vio- 19 lence (as defined in section 16 of 20 title 18, United States Code, but 21 not including a purely political 22 offense) and, because of a mental 23 condition or personality disorder 24 and behavior associated with that 25 VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS 11 •HR 3860 IH condition or disorder, the alien is 1 likely to engage in acts of vio- 2 lence in the future; or 3 ‘‘(III) pending a certification 4 under subclause (II), so long as the 5 Secretary of Homeland Security has 6 initiated the administrative review 7 process not later than 30 days after 8 the expiration of the removal period 9 (including any extension of the re- 10 moval period, as provided in para- 11 graph (1)(C)). 12 ‘‘(iii) NO RIGHT TO BOND HEARING.— 13 An alien whose detention is extended under 14 this subparagraph shall have no right to 15 seek release on bond, including by reason 16 of a certification under clause (ii)(II). 17 ‘‘(C) RENEWAL AND DELEGATION OF CER- 18 TIFICATION.— 19 ‘‘(i) RENEWAL.—The Secretary of 20 Homeland Security may renew a certifi- 21 cation under subparagraph (B)(ii)(II) 22 every 6 months, after providing an oppor- 23 tunity for the alien to request reconsider- 24 ation of the certification and to submit 25 VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS 12 •HR 3860 IH documents or other evidence in support of 1 that request. If the Secretary does not 2 renew a certification, the Secretary may 3 not continue to detain the alien under sub- 4 paragraph (B)(ii)(II). 5 ‘‘(ii) DELEGATION.—Notwithstanding 6 section 103, the Secretary of Homeland 7 Security may not delegate the authority to 8 make or renew a certification described in 9 item (bb), (cc), or (dd) of subparagraph 10 (B)(ii)(II) below the level of the Director 11 of Immigration and Customs Enforcement. 12 ‘‘(iii) HEARING.—The Secretary of 13 Homeland Security may request that the 14 Attorney General or the Attorney General’s 15 designee provide for a hearing to make the 16 determination described in item (dd)(BB) 17 of subparagraph (B)(ii)(II). 18 ‘‘(D) RELEASE ON CONDITIONS.—If it is 19 determined that an alien should be released 20 from detention by a Federal court, the Board of 21 Immigration Appeals, or if an immigration 22 judge orders a stay of removal, the Secretary of 23 Homeland Security, in the exercise of the Sec- 24 VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS 13 •HR 3860 IH retary’s discretion, may impose conditions on 1 release as provided in paragraph (3). 2 ‘‘(E) REDETENTION.—The Secretary of 3 Homeland Security, in the exercise of the Sec- 4 retary’s discretion, without any limitations 5 other than those specified in this section, may 6 again detain any alien subject to a final re- 7 moval order who is released from custody, if re- 8 moval becomes likely in the reasonably foresee- 9 able future, the alien fails to comply with the 10 conditions of release, or to continue to satisfy 11 the conditions described in subparagraph (A), 12 or if, upon reconsideration, the Secretary, in 13 the Secretary’s sole discretion, determines that 14 the alien can be detained under subparagraph 15 (B). This section shall apply to any alien re- 16 turned to custody pursuant to this subpara- 17 graph, as if the removal period terminated on 18 the day of the redetention. 19 ‘‘(F) REVIEW OF DETERMINATIONS BY 20 SECRETARY.—A determination by the Secretary 21 under this paragraph shall not be subject to re- 22 view by any other agency.’’. 23 Æ VerDate Sep 11 2014 22:53 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6301 E:\BILLS\H3860.IH H3860 kjohnson on DSK79L0C42 with BILLS