[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 367 Introduced in House (IH)]
<DOC>
118th CONGRESS
1st Session
H. R. 367
To amend the Immigration and Nationality Act with respect to aliens
associated with criminal gangs, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 13, 2023
Mr. Buchanan introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act with respect to aliens
associated with criminal gangs, and for other purposes.
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 ``Criminal Alien Gang Member Removal
Act''.
SEC. 2. 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, tampering
with or retaliating against a witness, victim, or informant, or
burglary.
``(E) Any conduct punishable under sections 1028 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.''.
(d) Designation.--
(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
``Sec. 220. (a) Designation.--
``(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).
``(2) Procedure.--
``(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).
``(3) Record.--
``(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).
``(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 (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).
``(iv) Determination.--
``(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 of criminal gang.''.
(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
(3) in subsection (d)--
(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.
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