Empowering Law Enforcement Act of 2023

II 118TH CONGRESS 1ST SESSION S. 1640 To provide for enhanced Federal enforcement of, and State and local assist- ance in the enforcement of, the immigration laws of the United States, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 17, 2023 Mr. TUBERVILLE (for himself, Mrs. BLACKBURN, and Mr. CASSIDY) intro- duced the following bill; which was read twice and referred to the Com- mittee on the Judiciary A BILL To provide for enhanced Federal enforcement of, and State and local assistance in the enforcement of, the immigra- tion laws of the United States, 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 ‘‘Empowering Law En- 4 forcement Act of 2023’’. 5 SEC. 2. STATE DEFINED. 6 In this Act, the term ‘‘State’’ has the meaning given 7 such term in section 101(a)(36) of the Immigration and 8 Nationality Act (8 U.S.C. 1101(a)(36)). 9 VerDate Sep 11 2014 05:17 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1640.IS S1640 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1640 IS SEC. 3. FEDERAL AFFIRMATION OF IMMIGRATION LAW EN- 1 FORCEMENT BY STATES AND POLITICAL SUB- 2 DIVISIONS OF STATES. 3 Notwithstanding any other provision of law and re- 4 affirming the existing inherent authority of States, law en- 5 forcement personnel of a State or a political subdivision 6 of a State have the inherent authority of a sovereign entity 7 to investigate, identify, apprehend, arrest, detain, or 8 transfer to Federal custody aliens in the United States 9 (including the transportation of such aliens across State 10 lines to detention centers), for the purpose of assisting in 11 the enforcement of the immigration laws of the United 12 States in the normal course of carrying out their law en- 13 forcement duties. This State authority has never been dis- 14 placed or preempted by Federal law. 15 SEC. 4. LISTING OF IMMIGRATION VIOLATORS IN THE NA- 16 TIONAL CRIME INFORMATION CENTER DATA- 17 BASE. 18 (a) PROVISION OF INFORMATION TO THE NATIONAL 19 CRIME INFORMATION CENTER.— 20 (1) IN GENERAL.—Not later than 180 days 21 after the date of the enactment of this Act, the Sec- 22 retary of Homeland Security shall submit to the Na- 23 tional Crime Information Center of the Department 24 of Justice (referred to in this section as the 25 VerDate Sep 11 2014 05:17 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1640.IS S1640 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1640 IS ‘‘NCIC’’) any information in the possession of the 1 Secretary related to— 2 (A) any alien against whom a final order 3 of removal has been issued; 4 (B) any alien who is subject to a voluntary 5 departure agreement; 6 (C) any alien who has remained in the 7 United States beyond the alien’s authorized pe- 8 riod of stay; and 9 (D) any alien whose visa has been revoked. 10 (2) REQUIREMENT TO PROVIDE AND USE IN- 11 FORMATION.—The information described in para- 12 graph (1) shall be submitted to the NCIC, and the 13 NCIC shall enter such information into the Immi- 14 gration Violators File of the NCIC database, regard- 15 less of whether— 16 (A) the alien received notice of a final 17 order of removal; 18 (B) the alien has already been removed; or 19 (C) sufficient identifying information is 20 available for the alien, such as a physical de- 21 scription of the alien. 22 (b) INCLUSION OF INFORMATION ABOUT IMMIGRA- 23 TION LAW VIOLATIONS IN THE NCIC DATABASE.—Sec- 24 tion 534(a) of title 28, United States Code, is amended— 25 VerDate Sep 11 2014 05:17 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1640.IS S1640 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1640 IS (1) in paragraph (4), by striking ‘‘and’’ at the 1 end; 2 (2) by redesignating paragraph (5) as para- 3 graph (6); and 4 (3) by inserting after paragraph (4) the fol- 5 lowing: 6 ‘‘(5) acquire, collect, classify, and preserve 7 records of violations of the immigration laws of the 8 United States, regardless of whether the alien has 9 received notice of the violation, sufficient identifying 10 information is available for the alien, or the alien 11 has already been removed; and.’’. 12 (c) PERMISSION TO DEPART VOLUNTARILY.—Sec- 13 tion 240B of the Immigration and Nationality Act (8 14 U.S.C. 1229c) is amended— 15 (1) by striking ‘‘Attorney General’’ each place 16 that term appears and inserting ‘‘Secretary of 17 Homeland Security’’; and 18 (2) in subsection (a)(2)(A), by striking ‘‘120 19 days’’ and inserting ‘‘30 days’’. 20 VerDate Sep 11 2014 05:17 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1640.IS S1640 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1640 IS SEC. 5. FEDERAL CUSTODY OF ILLEGAL ALIENS APPRE- 1 HENDED BY STATE OR LOCAL LAW ENFORCE- 2 MENT. 3 (a) IN GENERAL.—Title II of the Immigration and 4 Nationality Act (8 U.S.C. 1151 et seq.) is amended by 5 inserting after section 240C the following: 6 ‘‘SEC. 240D. TRANSFER OF ILLEGAL ALIENS FROM STATE 7 TO FEDERAL CUSTODY. 8 ‘‘(a) DEFINED TERM.—In this section, the term ‘ille- 9 gal alien’ means an alien who— 10 ‘‘(1) entered the United States without inspec- 11 tion or at any time or place other than that des- 12 ignated by the Secretary of Homeland Security; 13 ‘‘(2) after entering the United States with in- 14 spection at a time and place designated by the Sec- 15 retary of Homeland Security, was granted parole 16 into the United States; 17 ‘‘(3) was admitted as a nonimmigrant and, at 18 the time the alien was taken into custody by the 19 State or political subdivision, had failed— 20 ‘‘(A) to maintain the nonimmigrant status 21 in which the alien was admitted or to which it 22 was changed under section 248; or 23 ‘‘(B) to comply with the conditions of the 24 status described in subparagraph (A); 25 VerDate Sep 11 2014 05:17 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1640.IS S1640 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1640 IS ‘‘(4) was admitted as an immigrant and subse- 1 quently failed to comply with the requirements of 2 such status; or 3 ‘‘(5) failed to depart the United States as re- 4 quired under a voluntary departure agreement or 5 under a final order of removal. 6 ‘‘(b) IN GENERAL.—If a member of a law enforce- 7 ment entity of a State (or, if appropriate, a political sub- 8 division of the State), exercising authority with respect to 9 the apprehension or arrest of an illegal alien, submits a 10 request to the Secretary of Homeland Security that the 11 alien be taken into Federal custody, the Secretary shall— 12 ‘‘(1)(A) not later than 48 hours after the con- 13 clusion of the State charging process or dismissal 14 process (or if no State charging or dismissal process 15 is required, not later than 48 hours after the alien 16 is apprehended), take the alien into the custody of 17 the Federal Government and incarcerate the alien; 18 or 19 ‘‘(B) request that the relevant State or local 20 law enforcement agency temporarily detain or trans- 21 port the alien to a location for transfer to Federal 22 custody; and 23 ‘‘(2) designate at least 1 Federal, State, or 24 local prison or jail or a private contracted prison or 25 VerDate Sep 11 2014 05:17 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1640.IS S1640 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1640 IS detention facility within each State as the central fa- 1 cility for law enforcement entities of such State to 2 transfer custody of criminal or illegal aliens to the 3 Department of Homeland Security. 4 ‘‘(c) REIMBURSEMENT.— 5 ‘‘(1) IN GENERAL.—The Secretary of Homeland 6 Security shall reimburse a State or a political sub- 7 division of a State for all reasonable expenses, as de- 8 termined by the Secretary, incurred by the State or 9 political subdivision in the detention and transpor- 10 tation of a criminal or illegal alien under subsection 11 (b)(1). 12 ‘‘(2) COST COMPUTATION.—The amount reim- 13 bursed for costs incurred in the detention and trans- 14 portation of a criminal or illegal alien under sub- 15 section (b)(1) shall be equal to the sum of— 16 ‘‘(A) the product of— 17 ‘‘(i) the average cost of incarceration 18 of a prisoner in the relevant State, as de- 19 termined by the chief executive officer of 20 the State (or, as appropriate, a political 21 subdivision of the State); and 22 ‘‘(ii) the number of days that the alien 23 was in the custody of the State or political 24 subdivision; and 25 VerDate Sep 11 2014 05:17 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1640.IS S1640 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1640 IS ‘‘(B) the cost of transporting the criminal 1 or illegal alien from the point of apprehension 2 or arrest to— 3 ‘‘(i) the location of detention; and 4 ‘‘(ii) if the location of detention and of 5 custody transfer are different, to the cus- 6 tody transfer point. 7 ‘‘(d) REQUIREMENT FOR APPROPRIATE SECURITY.— 8 The Secretary of Homeland Security shall ensure that ille- 9 gal aliens incarcerated in Federal facilities under this sec- 10 tion are held in facilities that provide an appropriate level 11 of security. 12 ‘‘(e) SCHEDULE REQUIREMENT.— 13 ‘‘(1) IN GENERAL.—In carrying out this sec- 14 tion, the Secretary of Homeland Security shall es- 15 tablish a regular circuit and schedule for the prompt 16 transfer of apprehended illegal aliens from the cus- 17 tody of States and political subdivisions of States to 18 Federal custody. 19 ‘‘(2) AUTHORITY FOR CONTRACTS.—The Sec- 20 retary of Homeland Security may enter into con- 21 tracts with appropriate State and local law enforce- 22 ment and detention officials to implement this sec- 23 tion.’’. 24 VerDate Sep 11 2014 05:17 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1640.IS S1640 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1640 IS (b) CLERICAL AMENDMENT.—The table of contents 1 for the Immigration and Nationality Act (8 U.S.C. 1101 2 et seq.) is amended by inserting after the item relating 3 to section 240C the following: 4 ‘‘Sec. 240D. Transfer of illegal aliens from State to Federal custody.’’. SEC. 6. DETENTION OF DANGEROUS ALIENS. 5 (a) IN GENERAL.—Section 241(a) of the Immigra- 6 tion and Nationality Act (8 U.S.C. 1231(a)) is amended— 7 (1) by striking ‘‘Attorney General’’ each place 8 such term appears, except for the first reference in 9 paragraph (4)(B)(i), and inserting ‘‘Secretary of 10 Homeland Security’’; 11 (2) in paragraph (1)— 12 (A) by striking ‘‘90’’ and inserting ‘‘60’’; 13 and 14 (B) by striking subparagraphs (B) and (C) 15 and inserting the following: 16 ‘‘(B) BEGINNING OF PERIOD.—The re- 17 moval period begins on the latest of— 18 ‘‘(i) the date on which the order of re- 19 moval becomes administratively final; 20 ‘‘(ii) if the alien is not in the custody 21 of the Secretary of Homeland Security on 22 the date on which the order of removal be- 23 comes administratively final, the date on 24 VerDate Sep 11 2014 05:17 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1640.IS S1640 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1640 IS which the alien is taken into such custody; 1 or 2 ‘‘(iii) if the alien is detained or con- 3 fined (except under an immigration proc- 4 ess) on the date on which the order of re- 5 moval becomes administratively final, the 6 date on which the alien is taken into the 7 custody of the Secretary of Homeland Se- 8 curity after the alien is released from such 9 detention or confinement. 10 ‘‘(C) EXTENSION OF PERIOD.— 11 ‘‘(i) IN GENERAL.—The removal pe- 12 riod shall be extended beyond a period of 13 60 days and the Secretary of Homeland 14 Security may, in the Secretary’s sole dis- 15 cretion, keep the alien in detention during 16 such extended period if— 17 ‘‘(I) the alien fails or refuses to 18 make all reasonable efforts to comply 19 with the removal order, or to fully co- 20 operate with the Secretary’s efforts to 21 establish the alien’s identity and carry 22 out the removal order, including— 23 ‘‘(aa) making timely applica- 24 tion in good faith for travel or 25 VerDate Sep 11 2014 05:17 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1640.IS S1640 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1640 IS other documents necessary for 1 the alien’s departure; or 2 ‘‘(bb) conspiring or acting to 3 prevent the removal of an alien 4 that is subject to an order of re- 5 moval; 6 ‘‘(II) a court, the Board of Immi- 7 gration Appeals, or an immigration 8 judge orders a stay of removal of an 9 alien who is subject to an administra- 10 tively final order of removal; 11 ‘‘(III) the Secretary lawfully 12 transfers custody of the alien to an- 13 other Federal agency or to a State or 14 local government agency in connection 15 with the official duties of such agency; 16 or 17 ‘‘(IV) a court or the Board of 18 Immigration Appeals orders a remand 19 to the immigration judge or to the 20 Board of Immigration Appeals while 21 the case is pending a decision on re- 22 mand (with the removal period begin- 23 ning anew on the date on which the 24 alien is ordered removed on remand). 25 VerDate Sep 11 2014 05:17 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1640.IS S1640 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1640 IS ‘‘(ii) RENEWAL.—If the removal pe- 1 riod has been extended pursuant to clause 2 (i), a new removal period shall begin on 3 the date on which— 4 ‘‘(I) the alien makes all reason- 5 able efforts to comply with the re- 6 moval order or to fully cooperate with 7 the Secretary of Homeland Security’s 8 efforts to establish the alien’s identity 9 and carry out the removal order; 10 ‘‘(II) the stay of removal is no 11 longer in effect; or 12 ‘‘(III) the alien is returned to the 13 custody of the Secretary. 14 ‘‘(iii) MANDATORY DETENTION FOR 15 CERTAIN ALIENS.—The Secretary shall 16 keep an alien described in section 17 236(c)(1) in detention during the extended 18 period described in clause (i). 19 ‘‘(iv) SOLE FORM OF RELIEF.—An 20 alien may seek relief from detention under 21 this subparagraph by filing an application 22 for a writ of habeas corpus in accordance 23 with chapter 153 of title 28, United States 24 Code. No alien whose period of detention is 25 VerDate Sep 11 2014 05:17 Jun 07, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1640.IS S1640 kjohnson on DSK79L0C42PROD with BILLS 13 •S 1640 IS extended under this subparagraph shall 1 have the right to seek release on bond.’’; 2 (3) in paragraph (3)— 3 (A) by inserting ‘‘or is not detained pursu- 4 ant to paragraph (6)’’ after ‘‘removal period’’; [Text truncated for display. Full text available on Congress.gov.]