115th CONGRESS 2d Session |
To fund construction of the southern border wall and to ensure compliance with Federal immigration law.
October 12, 2018
Mr. McCarthy introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Homeland Security, Ways and Means, Armed Services, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To fund construction of the southern border wall and to ensure compliance with Federal immigration law.
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 “Build the Wall, Enforce the Law Act of 2018”.
Congress finds the following:
(1) Voting is fundamental to a functioning democracy.
(2) The Constitution prohibits discrimination in voting based on race, sex, poll taxes, and age.
(3) It is of paramount importance that the United States maintains the legitimacy of its elections and protects them from interference, including interference from foreign threats and illegal voting.
(4) The city of San Francisco, California, is allowing non-citizens, including illegal immigrants, to register to vote in school board elections.
(5) Federal law prohibits non-citizens from voting in elections for Federal office.
(6) The national security interests of the United States are dependent on the brave men and women who enforce our Nation’s immigration laws.
(7) Abolishing United States Immigration and Customs Enforcement (ICE) would mean open borders because it would eliminate the main agency responsible for removing people who enter or remain in our country illegally.
(8) Calls to abolish ICE are an insult to these heroic law enforcement officers who make sacrifices every day to secure our borders, enforce our laws, and protect our safety and security.
(9) Abolishing ICE would allow dangerous criminal aliens, including violent and ruthless members of the MS–13 gang, to remain in American communities.
(10) During fiscal year 2017, ICE Enforcement and Removal Operations (ERO) arrested more than 127,000 aliens with criminal convictions or charges.
(11) ICE ERO made 5,225 administrative arrests of suspected gang members in fiscal year 2017.
(12) Criminal aliens arrested by ICE ERO in fiscal year 2017 were responsible for more than—
(A) 76,000 dangerous drug offenses;
(B) 48,000 assault offenses;
(C) 11,000 weapon offenses;
(D) 5,000 sexual assault offenses;
(E) 2,000 kidnapping offenses; and
(F) 1,800 homicide offenses.
(13) ICE Homeland Security Investigations made 4,818 gang-related arrests in fiscal year 2017.
(14) ICE identified or rescued 904 sexually exploited children; Whereas ICE identified or rescued 518 victims of human trafficking; Whereas abolishing ICE would mean that countless illegal aliens who could pose a threat to public safety would be allowed to roam free instead of being removed from American soil.
(15) Abolishing ICE would mean more dangerous illegal drugs flowing into our communities, causing more Americans to needlessly suffer.
(16) ICE plays a critical role in combatting the drug crisis facing our Nation.
(17) ICE seized more than 980,000 pounds of narcotics in fiscal year 2017, including thousands of pounds of the deadly drugs fueling the opioid crisis.
(18) ICE seized 2,370 pounds of fentanyl and 6,967 pounds of heroin in fiscal year 2017.
(19) ICE logged nearly 90,000 investigative hours directed toward fentanyl in fiscal year 2017.
(20) Abolishing ICE would leave these drugs in our communities to cause more devastation.
(21) Abolishing ICE would mean eliminating the agency that deports aliens that pose a terrorist threat to the United States.
(22) ICE was created in 2003 to better protect national security and public safety after the 9/11 terrorists exploited immigration laws to gain entry into the United States.
(23) The National Commission on Terrorist Attacks found that many of the 9/11 hijackers committed visa violations.
(24) ICE identifies dangerous individuals before they enter our country and locates them as they violate our immigration laws.
(25) Abolishing ICE would enable the hundreds of thousands of foreign nationals who illegally overstay their visa each year to remain in the United States indefinitely.
It is the sense of Congress that—
(1) allowing illegal immigrants the right to vote devalues the franchise and diminishes the voting power of United States citizens; and
(A) supports all United States Immigration and Customs Enforcement (ICE) officers and personnel who carry out the important mission of ICE;
(B) denounces calls for the abolishment of ICE; and
(C) supports the efforts of all Federal agencies, State law enforcement, and military personnel who bring law and order to our Nation’s borders.
SEC. 4. State noncompliance with enforcement of immigration law.
(a) In general.—Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is amended—
(1) by striking subsection (a) and inserting the following:
“(a) In general.—Notwithstanding any other provision of Federal, State, or local law, no Federal, State, or local government entity, and no individual, may prohibit or in any way restrict, a Federal, State, or local government entity, official, or other personnel from complying with the immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))), or from assisting or cooperating with Federal law enforcement entities, officials, or other personnel regarding the enforcement of these laws.”;
(2) by striking subsection (b) and inserting the following:
“(b) Law enforcement activities.—Notwithstanding any other provision of Federal, State, or local law, no Federal, State, or local government entity, and no individual, may prohibit, or in any way restrict, a Federal, State, or local government entity, official, or other personnel from undertaking any of the following law enforcement activities as they relate to information regarding the citizenship or immigration status, lawful or unlawful, the inadmissibility or deportability, or the custody status, of any individual:
“(1) Making inquiries to any individual in order to obtain such information regarding such individual or any other individuals.
“(2) Notifying the Federal Government regarding the presence of individuals who are encountered by law enforcement officials or other personnel of a State or political subdivision of a State.
“(3) Complying with requests for such information from Federal law enforcement entities, officials, or other personnel.”;
(3) in subsection (c), by striking “Immigration and Naturalization Service” and inserting “Department of Homeland Security”; and
(4) by adding at the end the following:
“(1) ELIGIBILITY FOR CERTAIN GRANT PROGRAMS.—A State, or a political subdivision of a State, that is found not to be in compliance with subsection (a) or (b) shall not be eligible to receive—
“(A) any of the funds that would otherwise be allocated to the State or political subdivision under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)), the ‘Cops on the Beat’ program under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.), or the Edward Byrne Memorial Justice Assistance Grant Program under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.); or
“(B) any other grant administered by the Department of Justice or the Department of Homeland Security that is substantially related to law enforcement, terrorism, national security, immigration, or naturalization.
“(2) EXCEPTION.—A political subdivision is not found not to be in compliance with subsection (a) or (b) as a consequence of being required to comply with a statute or other legal requirement of a State or another political subdivision with jurisdiction over that political subdivision, and shall remain eligible to receive grant funds described in paragraph (1). In the case described in the previous sentence, the State or political subdivision that enacted the statute or other legal requirement shall not be eligible to receive such funds.
“(3) TRANSFER OF CUSTODY OF ALIENS PENDING REMOVAL PROCEEDINGS.—The Secretary, at the Secretary’s discretion, may decline to transfer an alien in the custody of the Department of Homeland Security to a State or political subdivision of a State found not to be in compliance with subsection (a) or (b), regardless of whether the State or political subdivision of the State has issued a writ or warrant.
“(4) TRANSFER OF CUSTODY OF CERTAIN ALIENS PROHIBITED.—The Secretary shall not transfer an alien with a final order of removal pursuant to paragraph (1)(A) or (5) of section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) to a State or a political subdivision of a State that is found not to be in compliance with subsection (a) or (b).
“(5) ANNUAL DETERMINATION.—The Secretary shall determine for each calendar year which States or political subdivision of States are not in compliance with subsection (a) or (b) and shall report such determinations to Congress by March 1 of each succeeding calendar year.
“(6) REPORTS.—The Secretary of Homeland Security shall issue a report concerning the compliance with subsections (a) and (b) of any particular State or political subdivision of a State at the request of the House or the Senate Judiciary Committee. Any jurisdiction that is found not to be in compliance shall be ineligible to receive Federal financial assistance as provided in paragraph (1) for a minimum period of 1 year, and shall only become eligible again after the Secretary of Homeland Security certifies that the jurisdiction has come into compliance.
“(7) REALLOCATION.—Any funds that are not allocated to a State or to a political subdivision of a State due to the failure of the State or of the political subdivision of the State to comply with subsection (a) or (b) shall be reallocated to States or to political subdivisions of States that comply with both such subsections.
“(e) Construction.—Nothing in this section shall require law enforcement officials from States, or from political subdivisions of States, to report or arrest victims or witnesses of a criminal offense.”.
(b) Effective date.—The amendments made by this section shall take effect on the date of the enactment of this Act, except that subsection (d) of section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373), as added by this section, shall apply only to prohibited acts committed on or after the date of the enactment of this Act.
SEC. 5. Clarifying the authority of ICE detainers.
(a) In general.—Section 287(d) of the Immigration and Nationality Act (8 U.S.C. 1357(d)) is amended to read as follows:
“(d) Detainer of inadmissible or deportable aliens.—
“(1) IN GENERAL.—In the case of an individual who is arrested by any Federal, State, or local law enforcement official or other personnel for the alleged violation of any criminal or motor vehicle law, the Secretary may issue a detainer regarding the individual to any Federal, State, or local law enforcement entity, official, or other personnel if the Secretary has probable cause to believe that the individual is an inadmissible or deportable alien.
“(2) PROBABLE CAUSE.—Probable cause is deemed to be established if—
“(A) the individual who is the subject of the detainer matches, pursuant to biometric confirmation or other Federal database records, the identity of an alien who the Secretary has reasonable grounds to believe to be inadmissible or deportable;
“(B) the individual who is the subject of the detainer is the subject of ongoing removal proceedings, including matters where a charging document has already been served;
“(C) the individual who is the subject of the detainer has previously been ordered removed from the United States and such an order is administratively final;
“(D) the individual who is the subject of the detainer has made voluntary statements or provided reliable evidence that indicate that they are an inadmissible or deportable alien; or
“(E) the Secretary otherwise has reasonable grounds to believe that the individual who is the subject of the detainer is an inadmissible or deportable alien.
“(3) TRANSFER OF CUSTODY.—If the Federal, State, or local law enforcement entity, official, or other personnel to whom a detainer is issued complies with the detainer and detains for purposes of transfer of custody to the Department of Homeland Security the individual who is the subject of the detainer, the Department may take custody of the individual within 48 hours (excluding weekends and holidays), but in no instance more than 96 hours, following the date that the individual is otherwise to be released from the custody of the relevant Federal, State, or local law enforcement entity.”.
(1) IN GENERAL.—A State or a political subdivision of a State (and the officials and personnel of the State or subdivision acting in their official capacities), and a nongovernmental entity (and its personnel) contracted by the State or political subdivision for the purpose of providing detention, acting in compliance with a Department of Homeland Security detainer issued pursuant to this section who temporarily holds an alien in its custody pursuant to the terms of a detainer so that the alien may be taken into the custody of the Department of Homeland Security, shall be considered to be acting under color of Federal authority for purposes of determining their liability and shall be held harmless for their compliance with the detainer in any suit seeking any punitive, compensatory, or other monetary damages.
(2) FEDERAL GOVERNMENT AS DEFENDANT.—In any civil action arising out of the compliance with a Department of Homeland Security detainer by a State or a political subdivision of a State (and the officials and personnel of the State or subdivision acting in their official capacities), or a nongovernmental entity (and its personnel) contracted by the State or political subdivision for the purpose of providing detention, the United States Government shall be the proper party named as the defendant in the suit in regard to the detention resulting from compliance with the detainer.
(3) BAD FAITH EXCEPTION.—Paragraphs (1) and (2) shall not apply to any mistreatment of an individual by a State or a political subdivision of a State (and the officials and personnel of the State or subdivision acting in their official capacities), or a nongovernmental entity (and its personnel) contracted by the State or political subdivision for the purpose of providing detention.
(1) CAUSE OF ACTION.—Any individual, or a spouse, parent, or child of that individual (if the individual is deceased), who is the victim of a murder, rape, or any felony, as defined by the State, for which an alien (as defined in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3))) has been convicted and sentenced to a term of imprisonment of at least 1 year, may bring an action against a State or political subdivision of a State in the appropriate Federal or State court if the State or political subdivision released the alien from custody prior to the commission of such crime as a consequence of the State or political subdivision’s declining to honor a detainer issued pursuant to section 287(d)(1) of the Immigration and Nationality Act (8 U.S.C. 1357(d)(1)).
(2) LIMITATION ON BRINGING ACTION.—An action brought under this subsection may not be brought later than 10 years following the occurrence of the crime, or death of a person as a result of such crime, whichever occurs later.
(3) ATTORNEY’S FEE AND OTHER COSTS.—In any action or proceeding under this subsection the court shall allow a prevailing plaintiff a reasonable attorneys’ fee as part of the costs, and include expert fees as part of the attorneys’ fee.
SEC. 6. Sarah and Grant’s Law.
(a) Detention of aliens during removal proceedings.—
(1) CLERICAL AMENDMENTS.— (A) Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended by striking “Attorney General” each place it appears (except in the second place that term appears in section 236(a)) and inserting “Secretary of Homeland Security”.
(B) Section 236(a) of such Act (8 U.S.C. 1226(a)) is amended by inserting “the Secretary of Homeland Security or” before “the Attorney General—”.
(C) Section 236(e) of such Act (8 U.S.C. 1226(e)) is amended by striking “Attorney General’s” and inserting “Secretary of Homeland Security’s”.
(2) LENGTH OF DETENTION.—Section 236 of such Act (8 U.S.C. 1226) is amended by adding at the end the following:
“(1) IN GENERAL.—Notwithstanding any other provision of this section, an alien may be detained, and for an alien described in subsection (c) shall be detained, under this section without time limitation, except as provided in subsection (h), during the pendency of removal proceedings.
“(2) CONSTRUCTION.—The length of detention under this section shall not affect detention under section 241.”.
(3) DETENTION OF CRIMINAL ALIENS.—Section 236(c)(1) of such Act (8 U.S.C. 1226(c)(1)) is amended—
(A) in subparagraph (C), by striking “or” at the end;
(B) by inserting after subparagraph (D) the following:
“(E) is unlawfully present 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) without regard to whether the conviction is classified as a misdemeanor or felony under State law, or
“(F) (i) (I) is inadmissible under section 212(a)(6)(i),
“(II) is deportable by reason of a visa revocation under section 221(i), or
“(III) is deportable under section 237(a)(1)(C)(i), and
“(ii) has been arrested or charged with a particularly serious crime or a crime resulting in the death or serious bodily injury (as defined in section 1365(h)(3) of title 18, United States Code) of another person;”; and
(C) by amending the matter following subparagraph (F) (as added by subparagraph (B) of this paragraph) to read as follows:
“any time after the alien is released, without regard to whether an alien is released related to any activity, offense, or conviction described in this paragraph; to whether the alien is released on parole, supervised release, or probation; or to whether the alien may be arrested or imprisoned again for the same offense. If the activity described in this paragraph does not result in the alien being taken into custody by any person other than the Secretary, then when the alien is brought to the attention of the Secretary or when the Secretary determines it is practical to take such alien into custody, the Secretary shall take such alien into custody.”.
(4) ADMINISTRATIVE REVIEW.—Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226), as amended by paragraph (2), is further amended by adding at the end the following:
“(g) Administrative review.—The Attorney General’s review of the Secretary’s custody determinations under subsection (a) for the following classes of aliens shall be limited to whether the alien may be detained, released on bond (of at least $1,500 with security approved by the Secretary), or released with no bond:
“(1) Aliens in exclusion proceedings.
“(2) Aliens described in section 212(a)(3) or 237(a)(4).
“(3) Aliens described in subsection (c).
“(1) IN GENERAL.—An alien detained under subsection (a) may seek release on bond. No bond may be granted except to an alien who establishes by clear and convincing evidence that the alien is not a flight risk or a danger to another person or the community.
“(2) CERTAIN ALIENS INELIGIBLE.—No alien detained under subsection (c) may seek release on bond.”.
(5) CLERICAL AMENDMENTS.— (A) Section 236(a)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1226(a)(2)(B)) is amended by striking “conditional parole” and inserting “recognizance”.
(B) Section 236(b) of such Act (8 U.S.C. 1226(b)) is amended by striking “parole” and inserting “recognizance”.
(b) Effective date.—The amendments made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to any alien in detention under the provisions of section 236 of the Immigration and Nationality Act (8 U.S.C. 1226), as so amended, or otherwise subject to the provisions of such section, on or after such date.
Section 276 of the Immigration and Nationality Act (8 U.S.C. 1326) is amended to read as follows:
“Reentry of removed alien
“Sec. 276. (a) Reentry after removal.—
“(1) IN GENERAL.—Any alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 2 years, or both.
“(2) EXCEPTION.—If an alien sought and received the express consent of the Secretary to reapply for admission into the United States, or, with respect to an alien previously denied admission and removed, the alien was not required to obtain such advance consent under the Immigration and Nationality Act or any prior Act, the alien shall not be subject to the fine and imprisonment provided for in paragraph (1).
“(b) Reentry of criminal offenders.—Notwithstanding the penalty provided in subsection (a), if an alien described in that subsection was convicted before such removal or departure—
“(1) for 3 or more misdemeanors or for a felony, the alien shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both;
“(2) for a felony for which the alien was sentenced to a term of imprisonment of not less than 30 months, the alien shall be fined under such title, imprisoned not more than 15 years, or both;
“(3) for a felony for which the alien was sentenced to a term of imprisonment of not less than 60 months, the alien shall be fined under such title, imprisoned not more than 20 years, or both; or
“(4) for murder, rape, kidnapping, or a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, or for 3 or more felonies of any kind, the alien shall be fined under such title, imprisoned not more than 25 years, or both.
“(c) Reentry after repeated removal.—Any alien who has been denied admission, excluded, deported, or removed 3 or more times and thereafter enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both.
“(d) Proof of prior convictions.—The prior convictions described in subsection (b) are elements of the crimes described, and the penalties in that subsection shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are—
“(1) alleged in the indictment or information; and
“(2) proven beyond a reasonable doubt at trial or admitted by the defendant.
“(e) Affirmative defenses.—It shall be an affirmative defense to a violation of this section that—
“(1) prior to the alleged violation, the alien had sought and received the express consent of the Secretary of Homeland Security to reapply for admission into the United States; or
“(2) with respect to an alien previously denied admission and removed, the alien—
“(A) was not required to obtain such advance consent under the Immigration and Nationality Act or any prior Act; and
“(B) had complied with all other laws and regulations governing the alien’s admission into the United States.
“(f) Reentry of alien removed prior to completion of term of imprisonment.—Any alien removed pursuant to section 241(a)(4) who enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in, the United States shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release unless the alien affirmatively demonstrates that the Secretary of Homeland Security has expressly consented to the alien’s reentry. Such alien shall be subject to such other penalties relating to the reentry of removed aliens as may be available under this section or any other provision of law.
“(g) Definitions.—For purposes of this section and section 275, the following definitions shall apply:
“(1) CROSSES THE BORDER TO THE UNITED STATES.—The term ‘crosses the border’ refers to the physical act of crossing the border, regardless of whether the alien is free from official restraint.
“(2) FELONY.—The term ‘felony’ means any criminal offense punishable by a term of imprisonment of more than 1 year under the laws of the United States, any State, or a foreign government.
“(3) MISDEMEANOR.—The term ‘misdemeanor’ means any criminal offense punishable by a term of imprisonment of not more than 1 year under the applicable laws of the United States, any State, or a foreign government.
“(4) OFFICIAL RESTRAINT.—The term ‘official restraint’ means any restraint known to the alien that serves to deprive the alien of liberty and prevents the alien from going at large into the United States. Surveillance unbeknownst to the alien shall not constitute official restraint.
“(5) REMOVAL.—The term ‘removal’ includes any denial of admission, exclusion, deportation, or removal, or any agreement by which an alien stipulates or agrees to exclusion, deportation, or removal.
“(6) STATE.—The term ‘State’ means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.”.
SEC. 8. Grounds of inadmissibility and deportability for alien gang members.
(a) Definition of gang member.—Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the end the following:
“(53) The term ‘criminal gang’ means an ongoing group, club, organization, or association of 5 or more persons that has as one of its primary purposes the commission of 1 or more of the following criminal offenses and the members of which engage, or have engaged within the past 5 years, in a continuing series of such offenses, or that has been designated as a criminal gang by the Secretary of Homeland Security, in consultation with the Attorney General, as meeting these criteria. The offenses described, whether in violation of Federal or State law or foreign law and regardless of whether the offenses occurred before, on, or after the date of the enactment of this paragraph, are the following:
“(A) A ‘felony drug offense’ (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).
“(B) An offense 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).
“(C) A crime of violence (as defined in section 16 of title 18, United States Code).
“(D) A crime involving obstruction of justice or tampering with, or retaliating against, a witness, victim, or informant.
“(E) Any conduct punishable under sections 1028(a) and 1029 of title 18, United States Code (relating to fraud and related activity in connection with identification documents or access devices), sections 1581 through 1594 of such title (relating to peonage, slavery, and trafficking in persons), section 1951 of such title (relating to interference with commerce by threats or violence), 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).
“(F) A conspiracy to commit an offense described in subparagraphs (A) through (E).”.
(b) Inadmissibility.—Section 212(a)(2) of such Act (8 U.S.C. 1182(a)(2)) is amended by adding at the end the following:
“(J) ALIENS ASSOCIATED WITH CRIMINAL GANGS.—Any alien is inadmissible who a consular officer, the Secretary of Homeland Security, or the Attorney General knows or has reason to believe—
“(i) to be or to have been a member of a criminal gang (as defined in section 101(a)(53)); or
“(ii) to have participated in the activities of a criminal gang (as defined in section 101(a)(53)), knowing or having reason to know that such activities will promote, further, aid, or support the illegal activity of the criminal gang.”.
(c) Deportability.—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:
“(G) ALIENS ASSOCIATED WITH CRIMINAL GANGS.—Any alien is deportable who—
“(i) is or has been a member of a criminal gang (as defined in section 101(a)(53)); or
“(ii) has participated in the activities of a criminal gang (as so defined), knowing or having reason to know that such activities will promote, further, aid, or support the illegal activity of the criminal gang.”.
(1) IN GENERAL.—Chapter 2 of title II of the Immigration and Nationality Act (8 U.S.C. 1182) is amended by inserting after section 219 the following:
“Designation of criminal gang
“(1) In general.—The Secretary of Homeland Security, in consultation with the Attorney General, may designate a group, club, organization, or association of 5 or more persons as a criminal gang if the Secretary finds that their conduct is described in section 101(a)(53).
“(A) NOTIFICATION.—Seven days before making a designation under this subsection, the Secretary 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, club, organization, or association of 5 or more persons under this subsection and the factual basis therefor.
“(B) PUBLICATION IN THE FEDERAL REGISTER.—The Secretary shall publish the designation in the Federal Register seven days after providing the notification under subparagraph (A).
“(A) IN GENERAL.—In making a designation under this subsection, the Secretary shall create an administrative record.
“(B) CLASSIFIED INFORMATION.—The Secretary may consider classified information in making a designation under this subsection. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (c).
“(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 (c).
“(B) REVIEW OF DESIGNATION UPON PETITION.—
“(i) IN GENERAL.—The Secretary shall review the designation of a criminal gang under the procedures set forth in clauses (iii) and (iv) if the designated group, club, organization, or association of 5 or more persons 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 group, club, organization, or association of 5 or more persons 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 group, club, organization, or association of 5 or more persons 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 group, club, organization, or association of 5 or more persons that submits a petition for revocation under this subparagraph of its designation as a criminal gang must provide evidence in that petition that it is not described in section 101(a)(53).
“(I) IN GENERAL.—Not later than 180 days after receiving a petition for revocation submitted under this subparagraph, the Secretary shall make a determination as to such revocation.
“(II) CLASSIFIED INFORMATION.—The Secretary may consider classified information in making a determination in response to a petition for revocation. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (c).
“(III) PUBLICATION OF DETERMINATION.—A determination made by the Secretary under this clause shall be published in the Federal Register.
“(IV) PROCEDURES.—Any revocation by the Secretary 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 Secretary shall review the designation of the criminal 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 Secretary. The results of such review and the applicable procedures shall not be reviewable in any court.
“(iii) PUBLICATION OF RESULTS OF REVIEW.—The Secretary 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 Secretary 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 Secretary finds that—
“(i) the group, club, organization, or association of 5 or more persons that has been designated as a criminal gang is no longer described in section 101(a)(53); or
“(ii) the national security or the law enforcement interests 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 trial or hearing.—If a designation under this subsection has become effective under paragraph (2) 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.
“(b) Amendments to a designation.—
“(1) IN GENERAL.—The Secretary may amend a designation under this subsection if the Secretary finds that the group, club, organization, or association of 5 or more persons has changed its name, adopted a new alias, dissolved and then reconstituted itself under a different name or names, or merged with another group, club, organization, or association of 5 or more persons.
“(2) PROCEDURE.—Amendments made to a designation in accordance with paragraph (1) shall be effective upon publication in the Federal Register. Paragraphs (2), (4), (5), (6), (7), and (8) of subsection (a) shall also apply to an amended designation.
“(3) ADMINISTRATIVE RECORD.—The administrative record shall be corrected to include the amendments as well as any additional relevant information that supports those amendments.
“(4) CLASSIFIED INFORMATION.—The Secretary may consider classified information in amending a designation in accordance with this subsection. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (c) of this section.
“(c) Judicial review of designation.—
“(1) IN GENERAL.—Not later than 30 days after publication in the Federal Register of a designation, an amended designation, or a determination in response to a petition for revocation, the designated group, club, organization, or association of 5 or more persons may seek judicial review 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, except that the Government may submit, for ex parte and in camera review, classified information used in making the designation, amended designation, or determination in response to a petition for revocation.
“(3) SCOPE OF REVIEW.—The Court shall hold unlawful and set aside a designation, amended designation, or determination in response to a petition for revocation 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 in classified information submitted to the court under paragraph (2); 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, amended designation, or determination in response to a petition for revocation shall not affect the application of this section, unless the court issues a final order setting aside the designation, amended designation, or determination in response to a petition for revocation.
“(d) Definitions.—As used in this section—
“(1) the term ‘classified information’ has the meaning given that term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.);
“(2) the term ‘national security’ means the national defense, foreign relations, or economic interests of the United States;
“(3) the term ‘relevant committees’ means the Committees on the Judiciary of the Senate and of the House of Representatives; and
“(4) the term ‘Secretary’ means the Secretary of Homeland Security, in consultation with the Attorney General.”.
(2) CLERICAL AMENDMENT.—The table of contents for such Act is amended by inserting after the item relating to section 219 the following:
“Sec. 220. Designation.”.
(e) Mandatory detention of criminal gang members.—
(1) IN GENERAL.—Section 236(c)(1) of the Immigration and Nationality Act (8 U.S.C. 1226(c)(1)) is amended—
(A) in subparagraph (C), by striking “or” at the end;
(B) in subparagraph (D), by inserting “or” at the end; and
(C) by inserting after subparagraph (D) the following:
“(E) is inadmissible under section 212(a)(2)(J) or deportable under section 217(a)(2)(G),”.
(2) 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 paragraph (1).
(f) Asylum claims based on gang affiliation.—
(1) 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)(G)(i) or who is” after “to an alien”.
(2) INELIGIBILITY FOR ASYLUM.—Section 208(b)(2)(A) of such Act (8 U.S.C. 1158(b)(2)(A)) (as amended by section 201 of this Act) is further amended—
(A) in clause (v), by striking “or” at the end;
(B) by redesignating clause (vi) as clause (vii); and
(C) by inserting after clause (v) the following:
“(vi) the alien is described in section 212(a)(2)(J)(i) or section 237(a)(2)(G)(i); or”.
(g) Temporary protected status.—Section 244 of such Act (8 U.S.C. 1254a) is amended—
(1) by striking “Attorney General” each place it appears and inserting “Secretary of Homeland Security”;
(2) in subparagraph (c)(2)(B)—
(A) in clause (i), by striking “or” at the end;
(B) in clause (ii), by striking the period and inserting “; or”; and
(C) by adding at the end the following:
“(iii) the alien is, or at any time has been, described in section 212(a)(2)(J) or section 237(a)(2)(G).”; and
(A) by striking paragraph (3); and
(B) in paragraph (4), by adding at the end the following: “The Secretary of Homeland Security may detain an alien provided temporary protected status under this section whenever appropriate under any other provision of law.”.
(h) Special immigrant juvenile visas.—Section 101(a)(27)(J)(iii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)(iii)) is amended—
(1) in subclause (I), by striking “and”;
(2) in subclause (II), by adding “and” at the end; and
(3) by adding at the end the following:
“(III) no alien who is, or at any time has been, described in section 212(a)(2)(J) or section 237(a)(2)(G) shall be eligible for any immigration benefit under this subparagraph;”.
(i) Parole.—An alien described in section 212(a)(2)(J) of the Immigration and Nationality Act, as added by subsection (b), shall not be eligible for parole under section 212(d)(5)(A) of such Act unless—
(1) the alien is assisting or has assisted the United States Government in a law enforcement matter, including a criminal investigation; and
(2) the alien’s presence in the United States is required by the Government with respect to such assistance.
(j) Effective date.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to acts that occur before, on, or after the date of the enactment of this Act.
SEC. 9. Border Security Funding.
(a) Funding.—In addition to amounts otherwise made available by this Act or any other provision of law, there is hereby appropriated to the “U.S. Customs and Border Protection—Procurement, Construction, and Improvements” account, out of any amounts in the Treasury not otherwise appropriated, $23,400,000,000, to be available as described in subsections (b) and (c), of which—
(1) $16,625,000,000 shall be for a border wall system along the southern border of the United States, including physical barriers and associated detection technology, roads, and lighting; and
(2) $6,775,000,000 shall be for infrastructure, assets, operations, and technology to enhance border security along the southern border of the United States, including—
(A) border security technology, including surveillance technology, at and between ports of entry;
(B) new roads and improvements to existing roads;
(C) U.S. Border Patrol facilities and ports of entry;
(D) aircraft, aircraft-based sensors and associated technology, vessels, spare parts, and equipment to maintain such assets;
(E) a biometric entry and exit system; and
(F) family residential centers.
(b) Availability of border wall system funds.—
(1) IN GENERAL.—Of the amount appropriated in subsection (a)(1)—
(A) $5,510,244,000 shall become available October 1, 2018;
(B) $1,715,000,000 shall become available October 1, 2019;
(C) $2,140,000,000 shall become available October 1, 2020;
(D) $1,735,000,000 shall become available October 1, 2021;
(E) $1,746,000,000 shall become available October 1, 2022;
(F) $1,776,000,000 shall become available October 1, 2023; and
(G) $2,002,756,000 shall become available October 1, 2024.
(2) PERIOD OF AVAILABILITY.—An amount made available under subparagraph (A), (B), (C), (D), (E), (F), or (G) of paragraph (1) shall remain available for five years after the date specified in that subparagraph.
(c) Availability of border security investment funds.—
(1) IN GENERAL.—Of the amount appropriated in subsection (a)(2)—
(A) $500,000,000 shall become available October 1, 2018;
(B) $1,850,000,000 shall become available October 1, 2019;
(C) $1,950,000,000 shall become available October 1, 2020;
(D) $1,925,000,000 shall become available October 1, 2021; and
(E) $550,000,000 shall become available October 1, 2022.
(2) PERIOD OF AVAILABILITY.—An amount made available under subparagraph (A), (B), (C), (D), or (E) of paragraph (1) shall remain available for five years after the date specified in that subparagraph.
(A) IN GENERAL.—Notwithstanding any limitation on transfer authority in any other provision of law and subject to the notification requirement in subparagraph (B), the Secretary of Homeland Security may transfer any amounts made available under paragraph (1) to the “U.S. Customs and Border Protection—Operations and Support” account only to the extent necessary to carry out the purposes described in subsection (a)(2).
(B) NOTIFICATION REQUIRED.—The Secretary shall notify the Committees on Appropriations of the Senate and the House of Representatives not later than 30 days before each such transfer.
(d) Multi-Year spending plan.—The Secretary of Homeland Security shall include in the budget justification materials submitted in support of the President’s annual budget request for fiscal year 2020 (as submitted under section 1105(a) of title 31, United States Code) a multi-year spending plan for the amounts made available under subsection (a).
(e) Expenditure plan.—Each amount that becomes available in accordance with subsection (b) or (c) may not be obligated until the date that is 30 days after the date on which the Committees on Appropriations of the Senate and the House of Representatives receive a detailed plan, prepared by the Commissioner of U.S. Customs and Border Protection, for the expenditure of such amount.
(f) Quarterly briefing requirement.—Beginning not later than 180 days after the date of the enactment of this Act, and quarterly thereafter, the Commissioner of U.S. Customs and Border Protection shall brief the Committees on Appropriations of the Senate and the House of Representatives regarding activities under and progress made in carrying out this section.
(g) Rules of construction.—Nothing in this section may be construed to limit the availability of funds made available by any other provision of law for carrying out the requirements of this Act or the amendments made by this Act. Any reference in this section to an appropriation account shall be construed to include any successor accounts.
(h) Discretionary amounts.—Notwithstanding any other provision of law, the amounts appropriated under subsection (a) are discretionary appropriations (as that term is defined in section 250(c)(7) of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 900(c)(7)).
SEC. 10. Exclusion from PAYGO scorecards.
The budgetary effects of this Act shall not be entered on either PAYGO scorecard maintained pursuant to section 4(d) of the Statutory Pay-As-You-Go Act of 2010.