117th CONGRESS 1st Session |
To provide for enhanced Federal enforcement of, and State and local assistance in the enforcement of, the immigration laws of the United States, and for other purposes.
May 12, 2021
Mr. Tuberville (for himself, Mr. Tillis, and Mr. Rounds) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To provide for enhanced Federal enforcement of, and State and local assistance in the enforcement of, the immigration laws of the United States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the “Empowering Law Enforcement Act of 2021”.
In this Act, the term “State” has the meaning given such term in section 101(a)(36) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(36)).
SEC. 3. Federal affirmation of immigration law enforcement by States and political subdivisions of States.
Notwithstanding any other provision of law and reaffirming the existing inherent authority of States, law enforcement personnel of a State or a political subdivision of a State have the inherent authority of a sovereign entity to investigate, identify, apprehend, arrest, detain, or transfer to Federal custody aliens in the United States (including the transportation of such aliens across State lines to detention centers), for the purpose of assisting in the enforcement of the immigration laws of the United States in the normal course of carrying out their law enforcement duties. This State authority has never been displaced or preempted by Federal law.
SEC. 4. Listing of immigration violators in the national crime information center database.
(a) Provision of information to the National Crime Information Center.—
(1) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the National Crime Information Center of the Department of Justice (referred to in this section as the “NCIC”) any information in the possession of the Secretary related to—
(A) any alien against whom a final order of removal has been issued;
(B) any alien who is subject to a voluntary departure agreement;
(C) any alien who has remained in the United States beyond the alien’s authorized period of stay; and
(D) any alien whose visa has been revoked.
(2) REQUIREMENT TO PROVIDE AND USE INFORMATION.—The information described in paragraph (1) shall be submitted to the NCIC, and the NCIC shall enter such information into the Immigration Violators File of the NCIC database, regardless of whether—
(A) the alien received notice of a final order of removal;
(B) the alien has already been removed; or
(C) sufficient identifying information is available for the alien, such as a physical description of the alien.
(b) Inclusion of information about immigration law violations in the NCIC database.—Section 534(a) of title 28, United States Code, is amended—
(1) in paragraph (3), by striking “and” at the end;
(2) by redesignating paragraph (4) as paragraph (5); and
(3) by inserting after paragraph (3) the following:
“(4) acquire, collect, classify, and preserve records of violations of the immigration laws of the United States, regardless of whether the alien has received notice of the violation, sufficient identifying information is available for the alien, or the alien has already been removed; and”.
(c) Permission To depart voluntarily.—Section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) is amended—
(1) by striking “Attorney General” each place that term appears and inserting “Secretary of Homeland Security”; and
(2) in subsection (a)(2)(A), by striking “120 days” and inserting “30 days”.
SEC. 5. Federal custody of illegal aliens apprehended by State or local law enforcement.
(a) In general.—Title II of the Immigration and Nationality Act (8 U.S.C. 1151 et seq.) is amended by inserting after section 240C the following:
“(a) Illegal alien defined.—In this section, the term ‘illegal alien’ means an alien who—
“(1) entered the United States without inspection or at any time or place other than that designated by the Secretary of Homeland Security;
“(2) was admitted as a nonimmigrant and, at the time the alien was taken into custody by the State or political subdivision, had failed—
“(A) to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 248; or
“(B) to comply with the conditions of the status described in subparagraph (A);
“(3) was admitted as an immigrant and subsequently failed to comply with the requirements of such status; or
“(4) failed to depart the United States as required under a voluntary departure agreement or under a final order of removal.
“(b) In general.—If the head of a law enforcement entity of a State (or, if appropriate, a political subdivision of the State), exercising authority with respect to the apprehension or arrest of an illegal alien, submits a request to the Secretary of Homeland Security that the alien be taken into Federal custody, the Secretary shall—
“(1) (A) not later than 72 hours after the conclusion of the State charging process or dismissal process (or if no State charging or dismissal process is required, not later than 72 hours after the alien is apprehended), take the alien into the custody of the Federal Government and incarcerate the alien; or
“(B) request that the relevant State or local law enforcement agency temporarily detain or transport the alien to a location for transfer to Federal custody; and
“(2) designate at least 1 Federal, State, or local prison or jail or a private contracted prison or detention facility within each State as the central facility for law enforcement entities of such State to transfer custody of criminal or illegal aliens to the Department of Homeland Security.
“(1) IN GENERAL.—The Secretary of Homeland Security shall reimburse a State or a political subdivision of a State for all reasonable expenses, as determined by the Secretary, incurred by the State or political subdivision in the detention and transportation of a criminal or illegal alien under subsection (b)(1).
“(2) COST COMPUTATION.—The amount reimbursed for costs incurred in the detention and transportation of a criminal or illegal alien under subsection (b)(1) shall be equal to the sum of—
“(i) the average cost of incarceration of a prisoner in the relevant State, as determined by the chief executive officer of the State (or, as appropriate, a political subdivision of the State); and
“(ii) the number of days that the alien was in the custody of the State or political subdivision; and
“(B) the cost of transporting the criminal or illegal alien from the point of apprehension or arrest to—
“(i) the location of detention; and
“(ii) if the location of detention and of custody transfer are different, to the custody transfer point.
“(d) Requirement for appropriate security.—The Secretary of Homeland Security shall ensure that illegal aliens incarcerated in Federal facilities under this section are held in facilities that provide an appropriate level of security.
“(1) IN GENERAL.—In carrying out this section, the Secretary of Homeland Security shall establish a regular circuit and schedule for the prompt transfer of apprehended illegal aliens from the custody of States and political subdivisions of States to Federal custody.
“(2) AUTHORITY FOR CONTRACTS.—The Secretary of Homeland Security may enter into contracts with appropriate State and local law enforcement and detention officials to implement this section.”.
(b) Clerical amendment.—The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 240C the following:
“Sec. 240D. Transfer of illegal aliens from State to Federal custody.”.
SEC. 6. Detention of dangerous aliens.
(a) In general.—Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) is amended—
(1) by striking “Attorney General” each place such term appears, except for the first reference in paragraph (4)(B)(i), and inserting “Secretary of Homeland Security”;
(2) in paragraph (1), by striking subparagraphs (B) and (C) and inserting the following:
“(B) BEGINNING OF PERIOD.—The removal period begins on the latest of—
“(i) the date on which the order of removal becomes administratively final;
“(ii) if the alien is not in the custody of the Secretary of Homeland Security on the date on which the order of removal becomes administratively final, the date on which the alien is taken into such custody; or
“(iii) if the alien is detained or confined (except under an immigration process) on the date on which the order of removal becomes administratively final, the date on which the alien is taken into the custody of the Secretary of Homeland Security after the alien is released from such detention or confinement.
“(i) IN GENERAL.—The removal period shall be extended beyond a period of 90 days and the Secretary of Homeland Security may, in the Secretary’s sole discretion, keep the alien in detention during such extended period if—
“(I) the alien fails or refuses to make all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including—
“(aa) making timely application in good faith for travel or other documents necessary for the alien’s departure; or
“(bb) conspiring or acting to prevent the removal of an alien that is subject to an order of removal;
“(II) a court, the Board of Immigration Appeals, or an immigration judge orders a stay of removal of an alien who is subject to an administratively final order of removal;
“(III) the Secretary lawfully transfers custody of the alien to another Federal agency or to a State or local government agency in connection with the official duties of such agency; or
“(IV) a court or the Board of Immigration Appeals orders a remand to the immigration judge or to the Board of Immigration Appeals while the case is pending a decision on remand (with the removal period beginning anew on the date on which the alien is ordered removed on remand).
“(ii) RENEWAL.—If the removal period has been extended pursuant to clause (i), a new removal period shall begin on the date on which—
“(I) the alien makes all reasonable efforts to comply with the removal order or to fully cooperate with the Secretary of Homeland Security’s efforts to establish the alien’s identity and carry out the removal order;
“(II) the stay of removal is no longer in effect; or
“(III) the alien is returned to the custody of the Secretary.
“(iii) MANDATORY DETENTION FOR CERTAIN ALIENS.—The Secretary shall keep an alien described in section 236(c)(1) in detention during the extended period described in clause (i).
“(iv) SOLE FORM OF RELIEF.—An alien may seek relief from detention under this subparagraph by filing an application for a writ of habeas corpus in accordance with chapter 153 of title 28, United States Code. No alien whose period of detention is extended under this subparagraph shall have the right to seek release on bond.”;
(A) by inserting “or is not detained pursuant to paragraph (6)” after “removal period”; and
(B) in subparagraph (D), by inserting “in order to prevent the alien from absconding, for the protection of the community, or for other purposes related to the enforcement of the immigration laws” before the period at the end;
(4) in paragraph (4)(A), by striking “paragraph (2)” and inserting “in subparagraph (B)”; and
(5) by amending paragraph (6) to read as follows:
“(6) ADDITIONAL RULES FOR DETENTION OR RELEASE OF CERTAIN ALIENS.—
“(A) DETENTION REVIEW PROCESS FOR COOPERATIVE ALIENS.—
“(i) IN GENERAL.—The Secretary of Homeland Security shall establish an administrative review process to determine whether an alien who is not otherwise subject to mandatory detention, who has made all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary’s efforts to establish the alien’s identity and to carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien’s departure, and who has not conspired or acted to prevent removal, should be detained or released on conditions.
“(ii) DETERMINATION.—The Secretary of Homeland Security shall determine whether to release an alien after the removal period in accordance with subparagraph (B). Such determination shall include the consideration of any evidence submitted by the alien and may include the consideration of any other evidence, including any information or assistance provided by the Secretary of State or other Federal official and any other information available to the Secretary of Homeland Security pertaining to the ability to remove the alien.
“(B) AUTHORITY TO DETAIN BEYOND REMOVAL PERIOD.—
“(i) IN GENERAL.—The Secretary of Homeland Security, in the sole discretion of the Secretary, may continue to detain an alien for 90 days beyond the removal period (including any extension of the removal period under paragraph (1)(C)). An alien whose detention is extended under this subparagraph is not entitled to seek release on bond.
“(ii) SPECIFIC CIRCUMSTANCES.—The Secretary of Homeland Security, in the sole discretion of the Secretary, may continue to detain an alien beyond the 90 days authorized under clause (i)—
“(I) until the alien is removed, if the Secretary, in the sole discretion of the Secretary, determines that there is a significant likelihood that the alien—
“(aa) will be removed in the reasonably foreseeable future; or
“(bb) would be removed in the reasonably foreseeable future, or would have been removed, but for the alien’s failure or refusal to make all reasonable efforts to comply with the removal order, or to cooperate fully with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien’s departure, or conspires or acts to prevent removal;
“(II) until the alien is removed, if the Secretary of Homeland Security certifies in writing—
“(aa) in consultation with the Secretary of Health and Human Services, that the alien has a highly contagious disease that poses a threat to public safety;
“(bb) after receipt of a written recommendation from the Secretary of State, that release of the alien is likely to have serious adverse foreign policy consequences for the United States;
“(cc) based on information available to the Secretary of Homeland Security (including classified, sensitive, or national security information, and without regard to the grounds upon which the alien was ordered removed), that there is reason to believe that the release of the alien would threaten the national security of the United States; or
“(dd) that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or any person, and either—
“(AA) the alien has been convicted of 1 or more aggravated felonies (as defined in section 101(a)(43)(A)), of 1 or more crimes identified by the Secretary of Homeland Security by regulation, or of 1 or more attempts or conspiracies to commit any such aggravated felonies or such identified crimes, if the aggregate term of imprisonment for such attempts or conspiracies is at least 5 years; or
“(BB) the alien has committed 1 or more crimes of violence (as defined in section 16 of title 18, United States Code), excluding purely political offenses, and the alien, because of a mental condition or personality disorder and behavior associated with such condition or disorder, is likely to engage in acts of violence in the future; or
“(III) pending a certification under subclause (II), if the Secretary of Homeland Security initiates the administrative review process not later than 30 days after the expiration of the removal period (including any extension of the removal period under paragraph (1)(C)).
“(iii) NO RIGHT TO BOND HEARING.—An alien whose detention is extended under this subparagraph is not entitled to seek release on bond, including by reason of a certification under clause (ii)(II).
“(C) RENEWAL AND DELEGATION OF CERTIFICATION.—
“(i) RENEWAL.—The Secretary of Homeland Security may renew a certification under subparagraph (B)(ii)(II) every 6 months, after providing an opportunity for the alien to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew the certification, the Secretary may not continue to detain the alien under subparagraph (B)(ii)(II).
“(ii) DELEGATION.—Notwithstanding section 103, the Secretary of Homeland Security may not delegate the authority to make or renew a certification described in item (bb), (cc), or (dd) of subparagraph (B)(ii)(II) below the level of the Assistant Secretary for Immigration and Customs Enforcement.
“(iii) HEARING.—The Secretary of Homeland Security may request that the Attorney General or the Attorney General’s designee provide for a hearing to make the determination described in item (dd)(BB) of subparagraph (B)(ii)(II).
“(D) RELEASE ON CONDITIONS.—If a Federal court or the Board of Immigration Appeals determines that an alien should be released from detention or if an immigration judge orders a stay of removal, the Secretary of Homeland Security, in discretion of the Secretary, may impose conditions on release in accordance with paragraph (3).
“(i) IN GENERAL.—The Secretary of Homeland Security, in the discretion of the Secretary, without any limitations other than those specified in this section, may redetain any alien subject to a final removal order who is released from custody if—
“(I) removal becomes likely in the reasonably foreseeable future;
“(II) the alien fails to comply with the conditions of release or to continue to satisfy the conditions described in subparagraph (A); or
“(III) upon reconsideration, the Secretary, in the sole discretion of the Secretary, determines that the alien can be detained under subparagraph (B).
“(ii) APPLICABILITY.—This section shall apply to any alien returned to custody pursuant to this subparagraph as if the removal period terminated on the first day of such redetention.
“(F) REVIEW OF DETERMINATIONS BY SECRETARY.—A determination by the Secretary of Homeland Security under this paragraph shall not be subject to review by any other agency.”.
(b) Detention of aliens during removal proceedings.—Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended—
(1) by striking “Attorney General” each place such term appears (except in the second place the term appears in subsection (a)) and inserting “Secretary of Homeland Security”;
(A) in the matter preceding paragraph (1), by inserting “the Secretary of Homeland Security or” before “the Attorney General—”; and
(B) in paragraph (2)(B), by striking “conditional parole;” and inserting “recognizance;”;
(3) in subsection (b), by striking “parole” and inserting “recognizance”;
(4) in subsection (c), by amending paragraph (1) to read as follows:
“(A) IN GENERAL.—The Secretary of Homeland Security shall take into custody any alien described in paragraph (2) or (3) of section 212(a) or paragraph (2) or (4) of section 237(a), or who has no lawful status in the United States and has been convicted for driving while intoxicated (including a conviction for driving while under the influence or impaired by alcohol or drugs), any time after the alien is released, regardless of whether the alien—
“(i) is released related to any activity, offense, or conviction described in this paragraph;
“(ii) is released on parole, supervised release, or probation; or
“(iii) may be arrested or imprisoned again for the same offense.
“(B) SUBSEQUENT CUSTODY.—If activity, offense, or conviction described in subparagraph (A) does not result in the alien being taken into custody, the Secretary of Homeland Security shall take such alien into custody—
“(i) when the alien is brought to the attention of the Secretary; or
“(ii) when the Secretary determines it is practical to take such alien into custody.”;
(5) in subsection (e), by striking “Attorney General’s” and inserting “Secretary of Homeland Security’s”; and
(6) by adding at the end the following:
“(1) IN GENERAL.—Notwithstanding any other provision of this section, an alien may be detained under this section, and an alien described in subsection (c) shall be detained, without time limitation, except as provided in subsection (g), during the pendency of removal proceedings.
“(2) CONSTRUCTION.—The length of detention under this section shall not affect a detention authorized under section 241.
“(1) IN GENERAL.—An alien detained under subsection (a) may seek release on bond. No bond may be granted unless the alien establishes, by clear and convincing evidence, that the alien is not a flight risk or a risk to another person or to the community.
“(2) CERTAIN ALIENS INELIGIBLE.—No alien detained under subsection (c) may seek release on bond.”.
(1) SUBSECTION (A).—The amendments made by subsection (a) shall take effect upon the date of the enactment of this Act, and section 241 of the Immigration and Nationality Act, as amended, shall apply to—
(A) all aliens subject to a final administrative removal, deportation, or exclusion order that was issued before, on, or after the date of the enactment of this Act; and
(B) acts and conditions occurring or existing before, on, or after such date.
(2) SUBSECTION (B).—The amendments made by subsection (b) shall take effect upon the date of the enactment of this Act, and section 236 of the Immigration and Nationality Act, as amended, shall apply to any alien in detention under provisions of such section on or after such date.
SEC. 7. Immigration law enforcement training of State and local law enforcement personnel.
(a) Training manual and pocket guide.—
(1) PUBLICATION.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall publish—
(A) a training manual for State and local law enforcement personnel to train such personnel in the investigation, identification, apprehension, arrest, detention, and transfer to Federal custody of aliens in the United States, including—
(i) the transportation of such aliens across State lines to detention centers; and
(ii) the identification of fraudulent documents; and
(B) an immigration enforcement pocket guide for State and local law enforcement personnel to provide a quick reference for such personnel in the course of duty.
(2) AVAILABILITY.—The training manual and pocket guide published under paragraph (1) shall be made available to all State and local law enforcement personnel.
(3) APPLICABILITY.—Nothing in this subsection may be construed to require State or local law enforcement personnel to keep the training manual or pocket guide with them while on duty.
(4) COSTS.—The Secretary shall be responsible for all costs incurred in the publication of the training manual and pocket guide under this subsection.
(1) IN GENERAL.—The Secretary of Homeland Security shall make training available to State and local law enforcement officers through as many means as possible, including—
(i) the Federal Law Enforcement Training Center (FLETC) of the Department of Homeland Security in Glynco, Georgia; and
(ii) the Center for Domestic Preparedness of the Federal Emergency Management Agency in Anniston, Alabama;
(B) onsite training held at State or local police agencies or facilities;
(C) online training courses by computer, teleconferencing, and videotape; and
(D) recording training courses on DVD.
(2) ONLINE TRAINING.—The head of the FLETC Learning Center shall make training available for State and local law enforcement personnel through the Internet using a secure, encrypted distributed learning system that—
(A) has all its servers based in the United States;
(B) is sealable and survivable; and
(C) is capable of having a portal in place not later than 30 days after the date of the enactment of this Act.
(3) FEDERAL PERSONNEL TRAINING.—The training of State and local law enforcement personnel under this section may not displace the training of Federal personnel.
(c) Rule of construction.—Nothing in this Act or in any other provision of law may be construed as making any immigration-related training a requirement for, or a prerequisite to, any State or local law enforcement officer exercising the inherent authority of the officer to investigate, identify, apprehend, arrest, detain, or transfer to Federal custody illegal aliens during the normal course of carrying out the law enforcement duties of the officer.
(d) Training limitation.—Section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)) is amended—
(1) by striking “Attorney General” each place that term appears and inserting “Secretary of Homeland Security”; and
(2) in paragraph (2), by adding at the end the following: “Training described in this paragraph may not exceed 14 days or 80 hours, whichever is longer.”.
(1) IN GENERAL.—Notwithstanding any other provision of law, a law enforcement officer of a State or of a political subdivision of a State shall be immune from personal liability arising out of the enforcement of any immigration law to the same extent as a Federal law enforcement officer is immune.
(2) APPLICABILITY.—The immunity provided under paragraph (1) only applies to an officer of a State, or of a political subdivision of a State, who is acting within the scope of such officer’s official duties.
(b) Agency immunity.—Notwithstanding any other provision of law, a law enforcement agency of a State, or of a political subdivision of a State, shall be immune from any claim for money damages based on Federal, State, or local civil rights law for an incident arising out of the enforcement of any immigration law, except to the extent that the law enforcement officer of that agency, whose action the claim involves, committed a violation of Federal, State, or local criminal law in the course of enforcing such immigration law.