109th CONGRESS
2d Session
H. R. 6090
To reform immigration litigation procedures and combat alien gang
crime.
IN THE HOUSE OF REPRESENTATIVES
September 15, 2006
Mr. SENSENBRENNER introduced the following bill; which was referred to
the Committee on the Judiciary
A BILL
To reform immigration litigation procedures and combat alien gang
crime.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Effective Immigration Enforcement and Community
Protection Act of 2006'.
TITLE I--ENDING CATCH AND RELEASE ACT OF 2006
SEC. 101. APPROPRIATE REMEDIES FOR IMMIGRATION LEGISLATION.
(a) Requirements for an Order Granting Prospective Relief Against the Government-
(1) IN GENERAL- If a court determines that prospective relief should be
ordered against the Government in any civil action pertaining to the administration
or enforcement of the immigration laws of the United States, the court
shall--
(A) limit the relief to the minimum necessary to correct the violation
of law;
(B) adopt the least intrusive means to correct the violation of law;
(C) minimize, to the greatest extent practicable, the adverse impact
on national security, border security, immigration administration and
enforcement, and public safety; and
(D) provide for the expiration of the relief on a specific date, which
is not later than the earliest date necessary for the Government to
remedy the violation.
(2) WRITTEN EXPLANATION- The requirements described in subparagraph (A)
shall be discussed and explained in writing in the order granting prospective
relief and must be sufficiently detailed to allow review by another court.
(3) EXPIRATION OF PRELIMINARY INJUNCTIVE RELIEF- Preliminary injunctive
relief shall automatically expire on the date that is 90 days after the
date on which such relief is entered, unless the court--
(A) makes the findings required under paragraph (1) for the entry of
permanent prospective relief; and
(B) makes the order final before expiration of such 90-day period.
(4) REQUIREMENTS FOR ORDER DENYING MOTION- This subsection shall apply
to any order denying the Government's motion to vacate, modify, dissolve
or otherwise terminate an order granting prospective relief in any civil
action pertaining to the administration or enforcement of the immigration
laws of the United States.
(b) Procedure for Motion Affecting Order Granting Prospective Relief Against
the Government-
(1) IN GENERAL- A court shall promptly rule on the Government's motion
to vacate, modify, dissolve or otherwise terminate an order granting prospective
relief in any civil action pertaining to the administration or enforcement
of the immigration laws of the United States.
(A) IN GENERAL- The Government's motion to vacate, modify, dissolve,
or otherwise terminate an order granting prospective relief made in
any civil action pertaining to the administration or enforcement of
the immigration laws of the United States shall automatically, and without
further order of the court, stay the order granting prospective relief
on the date that is 15 days after the date on which such motion is filed
unless the court previously has granted or denied the Government's motion.
(B) DURATION OF AUTOMATIC STAY- An automatic stay under subparagraph
(A) shall continue until the court enters an order granting or denying
the Government's motion.
(C) POSTPONEMENT- The court, for good cause, may postpone an automatic
stay under subparagraph (A) for not longer than 15 days.
(D) ORDERS BLOCKING AUTOMATIC STAYS- Any order staying, suspending,
delaying, or otherwise barring the effective date of the automatic stay
described in subparagraph (A), other than an order to postpone the effective
date of the automatic stay for not longer than 15 days under subparagraph
(C), shall be--
(i) treated as an order refusing to vacate, modify, dissolve or otherwise
terminate an injunction; and
(ii) immediately appealable under section 1292(a)(1) of title 28,
United States Code.
(1) CONSENT DECREES- In any civil action pertaining to the administration
or enforcement of the immigration laws of the United States, the court
may not enter, approve, or continue a consent decree that does not comply
with subsection (a).
(2) PRIVATE SETTLEMENT AGREEMENTS- Nothing in this section shall preclude
parties from entering into a private settlement agreement that does not
comply with subsection (a) if the terms of that agreement are not subject
to court enforcement other than reinstatement of the civil proceedings
that the agreement settled.
(d) Expedited Proceedings- It shall be the duty of every court to advance
on the docket and to expedite the disposition of any civil action or motion
considered under this section.
(e) Definitions- In this section:
(1) CONSENT DECREE- The term `consent decree'--
(A) means any relief entered by the court that is based in whole or
in part on the consent or acquiescence of the parties; and
(B) does not include private settlements.
(2) GOOD CAUSE- The term `good cause' does not include discovery or congestion
of the court's calendar.
(3) GOVERNMENT- The term `Government' means the United States, any Federal
department or agency, or any Federal agent or official acting within the
scope of official duties.
(4) PERMANENT RELIEF- The term `permanent relief' means relief issued
in connection with a final decision of a court.
(5) PRIVATE SETTLEMENT AGREEMENT- The term `private settlement agreement'
means an agreement entered into among the parties that is not subject
to judicial enforcement other than the reinstatement of the civil action
that the agreement settled.
(6) PROSPECTIVE RELIEF- The term `prospective relief' means temporary,
preliminary, or permanent relief other than compensatory monetary damages.
SEC. 102. EFFECTIVE DATE.
(a) In General- This title shall apply with respect to all orders granting
prospective relief in any civil action pertaining to the administration
or enforcement of the immigration laws of the United States, whether such
relief was ordered before, on, or after the date of the enactment of this
Act.
(b) Pending Motions- Every motion to vacate, modify, dissolve or otherwise
terminate an order granting prospective relief in any such action, which
motion is pending on the date of the enactment of this Act, shall be treated
as if it had been filed on such date of enactment.
(c) Automatic Stay for Pending Motions-
(1) IN GENERAL- An automatic stay with respect to the prospective relief
that is the subject of a motion described in subsection (b) shall take
effect without further order of the court on the date which is 10 days
after the date of the enactment of this Act if the motion--
(A) was pending for 45 days as of the date of the enactment of this
Act; and
(B) is still pending on the date which is 10 days after such date of
enactment.
(2) DURATION OF AUTOMATIC STAY- An automatic stay that takes effect under
paragraph (1) shall continue until the court enters an order granting
or denying the Government's motion under section 101(b). There shall be
no further postponement of the automatic stay with respect to any such
pending motion under section 101(b)(2). Any order, staying, suspending,
delaying or otherwise barring the effective date of this automatic stay
with respect to pending motions described in subsection (b) shall be an
order blocking an automatic stay subject to immediate appeal under section
101(b)(2)(D).
TITLE II--ALIEN GANG REMOVAL ACT OF 2006
SEC. 201. RENDERING INADMISSIBLE AND DEPORTABLE ALIENS PARTICIPATING IN
CRIMINAL STREET GANGS.
(a) Inadmissible- Section 212(a)(2) of the Immigration and Nationality Act
(8 U.S.C. 1182(a)(2)) is amended by adding at the end the following:
`(J) CRIMINAL STREET GANG PARTICIPATION-
`(i) IN GENERAL- Any alien is inadmissible if--
`(I) the alien has been removed under section 237(a)(2)(F); or
`(II) the consular officer or the Secretary of Homeland Security
knows, or has reasonable ground to believe that the alien--
`(aa) is a member of a criminal street gang and has committed,
conspired, or threatened to commit, or seeks to enter the United States
to engage solely, principally, or incidentally in, a gang crime or any other
unlawful activity; or
`(bb) is a member of a criminal street gang designated under section
219A.
`(ii) DEFINITIONS- For purposes of this subparagraph:
`(I) CRIMINAL STREET GANG- The term `criminal street gang' means
a formal or informal group or association of 3 or more individuals,
who commit 2 or more gang crimes (one of which is a crime of violence,
as defined in section 16 of title 18, United States Code) in 2 or
more separate criminal episodes in relation to the group or association.
`(II) GANG CRIME- The term `gang crime' means conduct constituting
any Federal or State crime, punishable by imprisonment for one year
or more, in any of the following categories:
`(aa) A crime of violence (as defined in section 16 of title 18,
United States Code) .
`(bb) A crime involving obstruction of justice, tampering with
or retaliating against a witness, victim, or informant, or burglary.
`(cc) A crime involving the manufacturing, importing, distributing,
possessing with intent to distribute, or otherwise dealing in a controlled
substance or listed chemical (as those terms are defined in section 102
of the Controlled Substances Act (21 U.S.C. 802)).
`(dd) Any conduct punishable under section 844 of title 18, United
States Code (relating to explosive materials), subsection (d), (g)(1) (where
the underlying conviction is a violent felony (as defined in section 924(e)(2)(B)
of such title) or is a serious drug offense (as defined in section 924(e)(2)(A)),
(i), (j), (k), (o), (p), (q), (u), or (x) of section 922 of such title (relating
to unlawful acts), or subsection (b), (c), (g), (h), (k), (l), (m), or (n)
of section 924 of such title (relating to penalties), section 930 of such
title (relating to possession of firearms and dangerous weapons in Federal
facilities), section 931 of such title (relating to purchase, ownership,
or possession of body armor by violent felons), sections 1028 and 1029 of
such title (relating to fraud and related activity in connection with identification
documents or access devices), section 1952 of such title (relating to interstate
and foreign travel or transportation in aid of racketeering enterprises),
section 1956 of such title (relating to the laundering of monetary instruments),
section 1957 of such title (relating to engaging in monetary transactions
in property derived from specified unlawful activity), or sections 2312
through 2315 of such title (relating to interstate transportation of stolen
motor vehicles or stolen property).
`(ee) Any conduct punishable under section 274 (relating to bringing
in and harboring certain aliens), section 277 (relating to aiding or assisting
certain aliens to enter the United States), or section 278 (relating to
importation of alien for immoral purpose) of this Act.'.
(b) Deportable- Section 237(a)(2) of the Immigration and Nationality Act
(8 U.S.C. 1227(a)(2)) is amended by adding at the end the following:
`(F) CRIMINAL STREET GANG PARTICIPATION-
`(i) IN GENERAL- Any alien is deportable who--
`(I) is a member of a criminal street gang and is convicted of committing,
or conspiring, threatening, or attempting to commit, a gang crime;
or
`(II) is determined by the Secretary of Homeland Security to be
a member of a criminal street gang designated under section 219A.
`(ii) DEFINITIONS- For purposes of this subparagraph, the terms `criminal
street gang' and `gang crime' have the meaning given such terms in
section 212(a)(2)(J)(ii).'.
(c) Designation of Criminal Street Gangs-
(1) IN GENERAL- Chapter 2 of title II of the Immigration and Nationality
Act (8 U.S.C. 1181 et seq.) is amended by adding at the end the following:
`DESIGNATION OF CRIMINAL STREET GANGS
`Sec. 219A. (a) Designation-
`(1) IN GENERAL- The Attorney General is authorized to designate a group
or association as a criminal street gang in accordance with this subsection
if the Attorney General finds that the group or association meets the
criteria described in section 212(a)(2)(J)(ii)(I).
`(i) TO CONGRESSIONAL LEADERS- Seven days before making a designation
under this subsection, the Attorney General shall, by classified communication,
notify the Speaker and Minority Leader of the House of Representatives,
the President pro tempore, Majority Leader, and Minority Leader of
the Senate, and the members of the relevant committees of the House
of Representatives and the Senate, in writing, of the intent to designate
a group or association under this subsection, together with the findings
made under paragraph (1) with respect to that group or association,
and the factual basis therefor.
`(ii) PUBLICATION IN FEDERAL REGISTER- The Attorney shall publish
the designation in the Federal Register seven days after providing
the notification under clause (i).
`(B) EFFECT OF DESIGNATION-
`(i) A designation under this subsection shall take effect upon publication
under subparagraph (A)(ii).
`(ii) Any designation under this subsection shall cease to have effect
upon an Act of Congress disapproving such designation.
`(3) RECORD- In making a designation under this subsection, the Attorney
General shall create an administrative record.
`(4) PERIOD OF DESIGNATION-
`(A) IN GENERAL- A designation under this subsection shall be effective
for all purposes until revoked under paragraph (5) or (6) or set aside
pursuant to subsection (b).
`(B) REVIEW OF DESIGNATION UPON PETITION-
`(i) IN GENERAL- The Attorney General shall review the designation
of a criminal street gang under the procedures set forth in clauses
(iii) and (iv) if the designated gang or association files a petition
for revocation within the petition period described in clause (ii).
`(ii) PETITION PERIOD- For purposes of clause (i)--
`(I) if the designated gang or association has not previously filed
a petition for revocation under this subparagraph, the petition
period begins 2 years after the date on which the designation was
made; or
`(II) if the designated gang or association has previously filed
a petition for revocation under this subparagraph, the petition
period begins 2 years after the date of the determination made under
clause (iv) on that petition.
`(iii) PROCEDURES- Any criminal street gang that submits a petition
for revocation under this subparagraph must provide evidence in that
petition that the relevant circumstances described in paragraph (1)
are sufficiently different from the circumstances that were the basis
for the designation such that a revocation with respect to the gang
is warranted.
`(I) IN GENERAL- Not later than 180 days after receiving a petition
for revocation submitted under this subparagraph, the Attorney General
shall make a determination as to such revocation.
`(II) PUBLICATION OF DETERMINATION- A determination made by the
Attorney General under this clause shall be published in the Federal
Register.
`(III) PROCEDURES- Any revocation by the Attorney General shall
be made in accordance with paragraph (6).
`(C) OTHER REVIEW OF DESIGNATION-
`(i) IN GENERAL- If in a 5-year period no review has taken place under
subparagraph (B), the Attorney General shall review the designation
of the criminal street gang in order to determine whether such designation
should be revoked pursuant to paragraph (6).
`(ii) PROCEDURES- If a review does not take place pursuant to subparagraph
(B) in response to a petition for revocation that is filed in accordance
with that subparagraph, then the review shall be conducted pursuant
to procedures established by the Attorney General. The results of
such review and the applicable procedures shall not be reviewable
in any court.
`(iii) PUBLICATION OF RESULTS OF REVIEW- The Attorney General shall
publish any determination made pursuant to this subparagraph in the
Federal Register.
`(5) REVOCATION BY ACT OF CONGRESS- The Congress, by an Act of Congress,
may block or revoke a designation made under paragraph (1).
`(6) REVOCATION BASED ON CHANGE IN CIRCUMSTANCES-
`(A) IN GENERAL- The Attorney General may revoke a designation made
under paragraph (1) at any time, and shall revoke a designation upon
completion of a review conducted pursuant to subparagraphs (B) and (C)
of paragraph (4) if the Attorney General finds that--
`(i) the circumstances that were the basis for the designation have
changed in such a manner as to warrant revocation; or
`(ii) the national security of the United States warrants a revocation.
`(B) PROCEDURE- The procedural requirements of paragraphs (2) and (3)
shall apply to a revocation under this paragraph. Any revocation shall
take effect on the date specified in the revocation or upon publication
in the Federal Register if no effective date is specified.
`(7) EFFECT OF REVOCATION- The revocation of a designation under paragraph
(5) or (6) shall not affect any action or proceeding based on conduct
committed prior to the effective date of such revocation.
`(8) USE OF DESIGNATION IN HEARING- If a designation under this subsection
has become effective under paragraph (2)(B) an alien in a removal proceeding
shall not be permitted to raise any question concerning the validity of
the issuance of such designation as a defense or an objection at any hearing.
`(b) Judicial Review of Designation-
`(1) IN GENERAL- Not later than 30 days after publication of the designation
in the Federal Register, an group or association designated as a criminal
street gang may seek judicial review of the designation in the United
States Court of Appeals for the District of Columbia Circuit.
`(2) BASIS OF REVIEW- Review under this subsection shall be based solely
upon the administrative record.
`(3) SCOPE OF REVIEW- The Court shall hold unlawful and set aside a designation
the court finds to be--
`(A) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;
`(B) contrary to constitutional right, power, privilege, or immunity;
`(C) in excess of statutory jurisdiction, authority, or limitation,
or short of statutory right;
`(D) lacking substantial support in the administrative record taken
as a whole; or
`(E) not in accord with the procedures required by law.
`(4) JUDICIAL REVIEW INVOKED- The pendency of an action for judicial review
of a designation shall not affect the application of this section, unless
the court issues a final order setting aside the designation.
`(c) Relevant Committee Defined- As used in this section, the term `relevant
committees' means the Committees on the Judiciary of the House of Representatives
and of the Senate.'.
(2) 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 219 the following:
`Sec. 219A. Designation of criminal street gangs.'.
SEC. 202. MANDATORY DETENTION OF SUSPECTED CRIMINAL STREET GANG MEMBERS.
(a) In General- Section 236(c)(1)(D) of the Immigration and Nationality
Act (8 U.S.C. 1226(c)(1)(D)) is amended--
(1) by inserting `or 212(a)(2)(J)' after `212(a)(3)(B)'; and
(2) by inserting `or 237(a)(2)(F)' before `237(a)(4)(B)'.
(b) Annual Report- Not later than March 1 of each year (beginning 1 year
after the date of the enactment of this Act), the Secretary of Homeland
Security, after consultation with the appropriate Federal agencies, shall
submit a report to the Committees on the Judiciary of the House of Representatives
and of the Senate on the number of aliens detained under the amendments
made by subsection (a).
SEC. 203. INELIGIBILITY FROM PROTECTION FROM REMOVAL AND ASYLUM.
(a) Inapplicability of Restriction on Removal to Certain Countries- Section
241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1251(b)(3)(B))
is amended, in the matter preceding clause (i), by inserting `who is described
in section 212(a)(2)(J)(i) or section 237(a)(2)(F)(i) or who is' after `to
an alien'.
(b) Ineligibility for Asylum- Section 208(b)(2)(A) of such Act (8 U.S.C.
1158(b)(2)(A)) is amended--
(1) in clause (v), by striking `or' at the end;
(2) by redesignating clause (vi) as clause (vii); and
(3) by inserting after clause (v) the following:
`(vi) the alien is described in section 212(a)(2)(J)(i) or section
237(a)(2)(F)(i) (relating to participation in criminal street gangs);
or'.
(c) Denial of Review of Determination of Ineligibility for Temporary Protected
Status- Section 244(c)(2) of such Act (8 U.S.C. 1254(c)(2)) is amended by
adding at the end the following:
`(C) LIMITATION ON JUDICIAL REVIEW- There shall be no judicial review
of any finding under subparagraph (B) that an alien is in described
in section 208(b)(2)(A)(vi).'.
END
