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[House Report 112-255]
[From the U.S. Government Publishing Office]

112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-255

======================================================================

 
                 KEEP OUR COMMUNITIES SAFE ACT OF 2011

                                _______
                                

October 18, 2011.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

       Mr. Smith of Texas, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1932]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1932) to amend the Immigration and Nationality Act 
to provide for extensions of detention of certain aliens 
ordered removed, and for other purposes, having considered the 
same, reports favorably thereon with an amendment and 
recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     6
Background and Need for the Legislation..........................     6
Hearings.........................................................    20
Committee Consideration..........................................    20
Committee Votes..................................................    20
Committee Oversight Findings.....................................    25
New Budget Authority and Tax Expenditures........................    25
Congressional Budget Office Cost Estimate........................    25
Performance Goals and Objectives.................................    26
Advisory on Earmarks.............................................    26
Section-by-Section Analysis......................................    26
Changes in Existing Law Made by the Bill, as Reported............    30
Dissenting Views.................................................    41

                             The Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Keep Our Communities Safe Act of 
2011''.

SEC. 2. 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 out ``Attorney General'' each place it 
        appears, except for the first reference in subsection 
        (a)(4)(B)(i), and inserting ``Secretary of Homeland Security'';
          (2) in paragraph (1), by amending subparagraph (B) to read as 
        follows:
                  ``(B) Beginning of period.--The removal period begins 
                on the latest of the following:
                          ``(i) The date the order of removal becomes 
                        administratively final.
                          ``(ii) If the alien is not in the custody of 
                        the Secretary on the date the order of removal 
                        becomes administratively final, the date the 
                        alien is taken into such custody.
                          ``(iii) If the alien is detained or confined 
                        (except under an immigration process) on the 
                        date the order of removal becomes 
                        administratively final, the date the alien is 
                        taken into the custody of the Secretary, after 
                        the alien is released from such detention or 
                        confinement.'';
          (3) in paragraph (1), by amending subparagraph (C) to read as 
        follows:
                  ``(C) Suspension of period.--
                          ``(i) Extension.--The removal period shall be 
                        extended beyond a period of 90 days and the 
                        alien may remain 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 
                                making timely application in good faith 
                                for travel or other documents necessary 
                                to the alien's departure or conspires 
                                or acts to prevent the alien's removal 
                                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; or
                                  ``(III) the Secretary transfers 
                                custody of the alien pursuant to law to 
                                another Federal agency or a State or 
                                local government agency in connection 
                                with the official duties of such 
                                agency.
                          ``(ii) Renewal.--If the removal period has 
                        been extended under clause (C)(i), a new 
                        removal period shall be deemed to have begun on 
                        the date--
                                  ``(I) the alien makes 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;
                                  ``(II) the stay of removal is no 
                                longer in effect; or
                                  ``(III) the alien is returned to the 
                                custody of the Secretary.'';
          (4) in paragraph (3)--
                  (A) by adding after ``If the alien does not leave or 
                is not removed within the removal period'' the 
                following: ``or is not detained pursuant to paragraph 
                (6) of this subsection''; and
                  (B) by striking subparagraph (D) and inserting the 
                following:
                  ``(D) to obey reasonable restrictions on the alien's 
                conduct or activities that the Secretary prescribes for 
                the alien, 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.'';
          (5) in paragraph (4)(A), by striking ``paragraph (2)'' and 
        inserting ``subparagraph (B)'';
          (6) by striking paragraph (6) and inserting the following:
          ``(6) Additional rules for detention or release of certain 
        aliens.--
                  ``(A) Detention review process for cooperative aliens 
                established.--For 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 of Homeland Security'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, and who has not conspired or 
                acted to prevent removal, the Secretary shall establish 
                an administrative review process to determine whether 
                the alien should be detained or released on conditions. 
                The Secretary shall make a determination whether to 
                release an alien after the removal period in accordance 
                with subparagraph (B). The determination shall include 
                consideration of any evidence submitted by the alien, 
                and may include 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 exercise of the Secretary's 
                        discretion, may continue to detain an alien for 
                        90 days beyond the removal period (including 
                        any extension of the removal period as provided 
                        in paragraph (1)(C)).
                          ``(ii) Specific circumstances.--The Secretary 
                        of Homeland Security, in the exercise of the 
                        Secretary's discretion, may continue to detain 
                        an alien beyond the 90 days authorized in 
                        clause (i)--
                                  ``(I) until the alien is removed, if 
                                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 one or more 
                                        aggravated felonies (as defined 
                                        in section 101(a)(43)(A)) or of 
                                        one or more crimes identified 
                                        by the Secretary of Homeland 
                                        Security by regulation, or of 
                                        one 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 one or more crimes of 
                                        violence (as defined in section 
                                        16 of title 18, United States 
                                        Code, but not including a 
                                        purely political offense) and, 
                                        because of a mental condition 
                                        or personality disorder and 
                                        behavior associated with that 
                                        condition or disorder, the 
                                        alien is likely to engage in 
                                        acts of violence in the future; 
                                        or
                                          ``(ee) 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 
                                        the alien has been convicted of 
                                        at least one aggravated felony 
                                        (as defined in section 
                                        101(a)(43)); or
                                  ``(III) pending a certification under 
                                subclause (II), so long as the 
                                Secretary of Homeland Security has 
                                initiated the administrative review 
                                process not later than 30 days after 
                                the expiration of the removal period 
                                (including any extension of the removal 
                                period, as provided in paragraph 
                                (1)(C)).
                  ``(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 a 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 
                        (ee) 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 it is determined 
                that an alien should be released from detention by a 
                Federal court, the Board of Immigration Appeals, or if 
                an immigration judge orders a stay of removal, the 
                Secretary of Homeland Security, in the exercise of the 
                Secretary's discretion, may impose conditions on 
                release as provided in paragraph (3).
                  ``(E) Redetention.--The Secretary of Homeland 
                Security, in the exercise of the Secretary's 
                discretion, without any limitations other than those 
                specified in this section, may again detain any alien 
                subject to a final removal order who is released from 
                custody, if removal becomes likely in the reasonably 
                foreseeable future, the alien fails to comply with the 
                conditions of release, or to continue to satisfy the 
                conditions described in subparagraph (A), or if, upon 
                reconsideration, the Secretary determines that the 
                alien can be detained under subparagraph (B). This 
                section shall apply to any alien returned to custody 
                pursuant to this subparagraph, as if the removal period 
                terminated on the day of the redetention.''; and
          (7) by inserting after paragraph (7) the following:
          ``(8) Judicial review.--Without regard to the place of 
        confinement, judicial review of any action or decision pursuant 
        to this section shall be available exclusively in habeas corpus 
        proceedings instituted in the United States District Court for 
        the District of Columbia, and only if the alien has exhausted 
        all administrative remedies (statutory and regulatory) 
        available to the alien as of right.''.
  (b) Detention of Aliens During Removal Proceedings.--
          (1) Clerical amendment.--(A) Sections 235 and 236 of the 
        Immigration and Nationality Act (8 U.S.C. 1225 and 1226) are 
        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 the Immigration and Nationality 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 the Immigration and Nationality 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 of certain aliens; venue for certain 
        actions.--Section 235 of the Immigration and Nationality Act (8 
        U.S.C. 1225) is amended by adding at the end the following:
  ``(e) Length of Detention.--
          ``(1) Notwithstanding any other provision of this section, an 
        alien may be detained under this section, without limitation, 
        until the alien is subject to an final order of removal.
          ``(2) The length of detention under this section shall not 
        affect any detention under section 241.
  ``(f) Judicial Review.--Without regard to the place of confinement, 
judicial review of any action or decision made pursuant to subsection 
(e) shall be available exclusively in a habeas corpus proceeding 
instituted in the United States District Court for the District of 
Columbia and only if the alien has exhausted all administrative 
remedies (statutory and nonstatutory) available to the alien as of 
right.''.
          (3) Venue for certain actions seeking judicial review of 
        length of detention.--Section 236(e) of the Immigration and 
        Nationality Act (8 U.S.C. 1226(e)) is amended by adding the 
        following at the end: ``Without regard to the place of 
        confinement, judicial review of any action or decision made 
        pursuant to subsection (f) shall be available exclusively in a 
        habeas corpus proceeding instituted in the United States 
        District Court for the District of Columbia and only if the 
        alien has exhausted all administrative remedies (statutory and 
        nonstatutory) available to the alien as of right.''.
          (4) Length of detention.--Section 236 of the Immigration and 
        Nationality Act (8 U.S.C. 1226) is amended by adding at the end 
        the following subsection:
  ``(f) Length of Detention.--
          ``(1) Notwithstanding any other provision of this section, an 
        alien may be detained under this section for any period, 
        without limitation, until the alien is subject to a final order 
        of removal.
          ``(2) The length of detention under this section shall not 
        affect detention under section 241 of this Act.''.
          (5) Detention of criminal aliens.--Section 236(c)(1) of the 
        Immigration and Nationality Act (8 U.S.C. 1226(c)(1)) is 
        amended, in the matter following subparagraph (D) 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.''.
          (6) Administrative review.--Section 236 of the Immigration 
        and Nationality Act (8 U.S.C. 1226) is amended by adding at the 
        end the following subsection:
  ``(g) Administrative Review.--
          ``(1) The Attorney General's review of the Secretary's 
        custody determinations under section 236(a) 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.
          ``(2) The Attorney General's review of the Secretary's 
        custody determinations for the following classes of aliens:
                  ``(A) Aliens in exclusion proceedings.
                  ``(B) Arriving aliens in removal proceedings, 
                including aliens paroled after arrival pursuant to 
                section 212(d)(5).
                  ``(C) Aliens described in sections 212(a)(3) and 
                237(a)(4).
                  ``(D) Aliens described in section 236(c).
                  ``(E) Aliens in deportation proceedings subject to 
                section 242(a)(2) of the Act (as in effect prior to 
                April 1, 1997, and as amended by section 440(c) of 
                Public Law 104-132); is limited to a determination of 
                whether the alien is properly included in such 
                category.''.
          (7) 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 out ``conditional parole'' and inserting in 
        lieu thereof ``recognizance''.
          (B) Section 236(b) of the Immigration and Nationality Act (8 
        U.S.C. 1226(b)) is amended by striking ``parole'' and inserting 
        ``recognizance''.
  (c) Severability.--If any of the provisions of this Act or any 
amendment by this Act, or the application of any such provision to any 
person or circumstance, is held to be invalid for any reason, the 
remainder of this Act and of amendments made by this Act, and the 
application of the provisions and of the amendments made by this Act to 
any other person or circumstance shall not be affected by such holding.
  (d) Effective Dates.--
          (1) The amendments made by subsection (a) shall take effect 
        upon the date of enactment of this Act, and section 241 of the 
        Immigration and Nationality Act, as so amended, shall in 
        addition 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 enactment of 
                this Act; and
                  (B) acts and conditions occurring or existing before, 
                on, or after the date of enactment of this Act.
          (2) The amendments made by subsection (b) shall take effect 
        upon the date of enactment of this Act, and sections 235 and 
        236 of the Immigration and Nationality Act, as so amended, 
        shall in addition apply to any alien in detention under 
        provisions of such sections on or after the date of enactment 
        of this Act.

SEC. 3. SENSE OF THE CONGRESS.

  It is the sense of the Congress that--
          (1) this Act should ensure that Constitutional rights are 
        upheld and protected; and
          (2) it is the intention of the Congress to uphold the 
        Constitutional principles of due process and that due process 
        of the law is a right afforded to everyone in the United 
        States.

                          Purpose and Summary

    H.R. 1932 allows for the continued detention of dangerous 
aliens who cannot be removed and strengthens the Department of 
Homeland Security's ability to detain criminal aliens in 
removal proceedings.

                Background and Need for the Legislation

              I. CONTINUED DETENTION OF DANGEROUS ALIENS 
                         WHO CANNOT BE REMOVED

    The Supreme Court's decisions in Zadvydas v. Davis\1\ and 
Clark v. Martinez\2\ have interpreted current immigration law 
to limit the length of detention of aliens who have received 
orders of removal but who cannot be removed. As a result of 
these decisions, each year the Department of Homeland Security 
(``DHS'') must release thousands of criminal aliens into 
communities in the United States. The Keep Our Communities Safe 
Act amends the Immigration and Nationality Act (``INA'') to 
provide DHS with a statutory basis to continue to detain 
dangerous aliens who cannot be removed.
---------------------------------------------------------------------------
    \1\See 533 U.S. 678 (2001).
    \2\See 543 U.S. 371 (2005).
---------------------------------------------------------------------------
Zadvydas and Clark
    In the 2001 decision in Zadvydas v. Davis, the Supreme 
Court ruled that under current immigration law, aliens who were 
admitted to the U.S. and then ordered removed cannot be 
detained for more than six months if there is no reasonable 
likelihood of their being removed (in the case of Zadvydas, 
because countries could not be found that would accept the 
aliens ordered removed). Zadvydas interpreted section 241(a)(6) 
of the INA, that provides that ``[a]n alien ordered removed who 
is inadmissible . . . , removable [for violating a condition or 
entry, being convicted of certain crimes or on security 
grounds] or who has been determined . . . to be a risk to the 
community or unlikely to comply with the order of removal, may 
be detained beyond the removal period [generally, a period 
lasting 90 days after the order of removal becomes 
administratively final].''
    The Court read section 241(a)(6) to ``contain an implicit 
`reasonable time' limitation'' that was ``[b]ased on our 
conclusion that indefinite detention of aliens [beyond the 
removal period] would raise serious constitutional concerns. . 
. .''\3\ The Court stated that ``when an Act of Congress raises 
`a serious doubt' as to its constitutionality, `this Court will 
first ascertain whether a construction of the statute is fairly 
possible by which the question may be avoided.'''\4\ The Court 
decided to read section 241(a)(6) to ``limit[] an alien's post-
removal-period detention to a period reasonably necessary to 
bring about that alien's removal from the United States.''\5\ 
After six months of post-removal detention, an alien cannot be 
detained if there is not a significant likelihood of removal in 
the reasonably foreseeable future.\6\
---------------------------------------------------------------------------
    \3\Zadvydas, 533 U.S. at 682.
    \4\Id. at 689, quoting Crowell v. Benson, 285 U.S. 22, 62 (1932).
    \5\Zadvydas, 533 U.S. at 689.
    \6\See id. at 701.
---------------------------------------------------------------------------
    The Court stated that, ``[t]he Fifth Amendment's Due 
Process Clause forbids the Government to `depriv[e]' any 
`person . . . of . . . liberty . . . without due process of 
law.' Freedom from imprisonment . . . lies at the heart of the 
liberty that Clause protects.''\7\ The Court found that 
``[t]here is no sufficiently strong special justification here 
for indefinite civil detention. . . .''\8\ However, the Court's 
very next words--``at least as administered under this 
statute''\9\--point to the fact that it was especially 
concerned with the breadth of the grounds of inadmissibility 
encompassed by section 241(a)(6). The Court later pointed out 
that ``[t]he provision authorizing detention does not apply 
narrowly to `a small segment of particularly dangerous 
individuals,' . . . say, suspected terrorists, but broadly to 
aliens ordered removed for many and various reasons, including 
tourist visa violations'' and that ``the statute before us 
applies not only to terrorists and criminals, but also to 
ordinary visa violators. . . .''\10\
---------------------------------------------------------------------------
    \7\Id. at 690.
    \8\Id.
    \9\Id. (emphasis added).
    \10\Id. at 691, 697 (citation omitted).
---------------------------------------------------------------------------
    In Clark, the Court expanded its decision in Zadvydas to 
apply to non-admitted aliens.
Principal Reasons Why Aliens Ordered Removed Cannot Be Removed
    There are two principal reasons why aliens ordered removed 
from the U.S. cannot in fact be removed. First, DHS's Office of 
Inspector General reported that ``as of June 2004, more than 
133,662 illegal aliens with or pending final orders [of 
removal] had been apprehended and released into the U.S . . . 
are unlikely to ever be repatriated if ordered removed because 
of the unwillingness of their country of origin to provide the 
documents necessary for repatriation.''\11\ The report went on 
to describe a variety of means that nations used to frustrate 
the removal process.\12\
---------------------------------------------------------------------------
    \11\Department of Homeland Security Office of the Inspector 
General, Detention and Removal of Illegal Aliens (April 2006) at 18.
    \12\See id. at 17. Section 243(d) of the INA requires the Secretary 
of State to stop issuing visas to nationals of countries the Secretary 
of Homeland Security determines to have refused or delayed the return 
of their nationals who have been ordered deported. However, it is used 
sparingly because of diplomatic ramifications.
---------------------------------------------------------------------------
    The second involves the Convention Against Torture 
(``CAT''). Legislation enacting CAT was enacted in 1998.\13\ 
Its primary aim is ensuring that human rights violators and 
others engaged in torture are brought to justice and details 
the process for extradition, detention, criminal prosecution, 
and victim compensation. CAT also prohibits the return of an 
alien to a country where there are substantial grounds for 
believing that he or she would be in danger of being tortured.
---------------------------------------------------------------------------
    \13\See the Foreign Affairs Reform and Restructuring Act of 1998, 
Pub. L. No. 105-277, div. G., sec. 2242 (1998).
---------------------------------------------------------------------------
    The implementing legislation for CAT stated that ``[t]o the 
maximum extent consistent with the obligations of the United 
States under the Convention . . . the regulations . . . shall 
exclude from the protection of such regulations aliens 
described in section 241(b)(3)(B)'' of the [INA].\14\ The 
aliens described in section 241(b)(3)(B) consist of aliens who 
1) have participated in persecution, 2) have engaged in 
terrorist activity, 3) have been convicted of particularly 
serious crimes and are thus a danger to the community of the 
United States, 4) have committed serious crimes outside the 
U.S., or 5) there are reasonable grounds to believe are a 
danger to the security of the U.S. This group of aliens who are 
eligible for CAT relief consists of aliens who are barred under 
the Immigration and Nationality Act from receiving asylum and 
others forms of immigration relief.\15\
---------------------------------------------------------------------------
    \14\Id. at sec. 2242(c).
    \15\See INA sec. 208(b)(2).
---------------------------------------------------------------------------
    Unfortunately, the Department of Justice disregarded 
Congress's wishes to exclude such aliens from CAT's relief from 
removal. The regulations provide relief from removal to all 
aliens, no matter how dangerous.\16\ In fact, the more heinous 
an alien's actions, the more likely that they might be subject 
to torture in their home country. As the 9th Circuit has 
stated, ``even those who assisted in Nazi persecutions, or 
engaged in genocide, or pose a danger to our own security are 
not excluded from the protections of CAT.''\17\ Among the 
criminal aliens who have received CAT relief was an alien 
implicated in a mob-related quintuple homicide in Uzbekistan 
and an alien who killed a spectator at a Gambian soccer 
match.\18\ Terrorists have received relief from removal under 
CAT, including an alien involved in the assassination of Anwar 
Sadat.\19\ And, yes, even a Nazi war criminal has sought to 
avoid deportation through CAT.\20\
---------------------------------------------------------------------------
    \16\See 8 C.F.R. sec. 208.16-18.
    \17\Edu v. Holder, 624 F.3d 1137, 1145 (9th Cir. 2010).
    \18\See Immigration Relief Under the Convention Against Torture for 
Serious Criminals and Human Rights Violators: Hearing Before the 
Subcomm. on Immigration, Border Security and Claims of the House Comm. 
on the Judiciary at 1-2 (statement of John Hostettler, Chairman, 
Subcommittee on Immigration, Border Security and Claims).
    \19\See Soliman v. U.S., 296 F.3d 1237 (11th Cir. 2002). See also, 
e.g., Haile v. Holder, No. 06-74309/09-70779 (9th Cir. Sept. 26, 2011).
    \20\See Immigration Relief Under the Convention Against Torture for 
Serious Criminals and Human Rights Violators at 15 (statement of Eli 
Rosenbaum, Director, Office of Special Investigations, U.S. Department 
of Justice).
---------------------------------------------------------------------------
The Impact of Zadvydas and Clark on Public Safety
    DHS has provided the Committee with data that shows that 
thousands of criminal aliens have been released into American 
communities as a result of the Supreme Court's interpretation 
of section 241(a)(6). In fiscal year 2009, criminal aliens who 
have yet to be removed were released 3,847 times on the basis 
of the decisions; in fiscal year 2010, criminal aliens were 
released 3,882 times.\21\ As far back as 2005, almost 900 
criminal aliens ordered removed had received CAT relief and had 
then been released from detention as a result of Zadvydas and 
Clark.\22\
---------------------------------------------------------------------------
    \21\Information provided by DHS.
    \22\See H.R. Rep. No. 109-345, pt. 1, at 69 (2005).
---------------------------------------------------------------------------
    Administration officials have long believed that as a 
result of the decisions, ``there are instances where the 
government is forced to release aliens who have final orders of 
removal, though they may pose grave threats to the 
public.''\23\ Jonathan Cohn, then-Deputy Assistant Attorney 
General, testified that because of the decisions, ``the 
government is [now] required to release numerous rapists, child 
molesters, murderers, and other dangerous illegal aliens into 
our streets. . . . [V]icious criminal aliens are now being set 
free within the U.S.''\24\ Among the criminal aliens who have 
been released was a man who murdered his wife in the presence 
of their seven-year-old daughter, despite the fact that the 
government alleged that he had a harm threatening mental 
illness.\25\ Jonathan Cohn testified that:
---------------------------------------------------------------------------
    \23\Immigration Relief Under the Convention Against Torture for 
Serious Criminals and Human Rights Violators at 14 (statement of C. 
Stewart Verdery, Assistant Secretary for Border and Transportation 
Security Policy and Planning, Department of Homeland Security) .
    \24\Strengthening Interior Enforcement: Deportation and Related 
Issues: Hearing Before the Subcomm. on Immigration, Border Security and 
Citizenship and the Subcomm. on Terrorism, Technology and Homeland 
Security of the Senate Comm. on the Judiciary, 109th Cong. at 74 (2005) 
(statement of Jonathan Cohn, Deputy Assistant Attorney General, Civil 
Division, U.S. Department of Justice).
    \25\See Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008).

        Another example is Tuan Thai, who has raped, tortured, 
        and terrorized women and vowed to repeat his grisly 
        acts. Among other crimes, Mr. Thai repeatedly raped his 
        friend's girlfriend over the course of several months, 
        beginning while she was 6 months' pregnant. He then 
        monitored her phone calls and threatened to poison her 
        with cocaine and harm her other children if she tried 
        to kick him out of the house. He also threatened to 
        beat up his own girlfriend slowly until she died. And 
        he later threatened to kill his immigration judge and 
        prosecutor after his release.\26\
---------------------------------------------------------------------------
    \26\Strengthening Interior Enforcement at 9.

    Aliens released on the basis of the decisions have gone on 
to commit further crimes. For instance, one was subsequently 
arrested for shooting a New York State trooper in the head.\27\ 
Tragically, in at least two instances, aliens released on the 
basis of the decisions subsequently went on to commit murder.
---------------------------------------------------------------------------
    \27\See H.R. Rep. No. 109-345, pt. 1, at 69.
---------------------------------------------------------------------------
    Huang Chen entered the U.S. in 1997 on a temporary visa and 
then overstayed. He assaulted Qian Wu in 2006 and was put in 
deportation proceedings. After an immigration judge ordered him 
removed, DHS tried to obtain travel documents from the People's 
Republic of China. China refused to grant Chen the necessary 
documents. After six months of detention, DHS released Chen 
pursuant to the decisions. In August 2008, Chen was convicted 
of assault and DHS tried to deport him. Again, China refused to 
issue travel documents. He was again released pursuant to the 
decisions. Chen then murdered Ms. Wu. According to news 
reports, the victim's heart and lungs were ripped from the 
body.\28\
---------------------------------------------------------------------------
    \28\Information provided by DHS; see also Michael Schmidt, Neighbor 
Charged with Stalking and Killing Woman, N.Y. Times, Jan. 27, 2010.
---------------------------------------------------------------------------
    Abel Arango came from Cuba and entered through Miami in the 
early 1990s, and then began a life of crime in Florida. He 
served time in prison for armed robbery. He was released from 
prison in 2004, and was supposed to be deported; however, Cuba 
wouldn't take him back. Arango was released from immigration 
custody pursuant to the decisions. Thereafter, he shot Ft. 
Myers, Florida police officer Andrew Widman at close range in 
the face. The officer never had the opportunity to draw his 
weapon. The husband and father of three died at the scene, and 
Arango died in a shoot out with police.\29\
---------------------------------------------------------------------------
    \29\Information provided by DHS; see also H.R. 1932, the ``Keep Our 
Communities Safe Act of 2011'': Hearing Before the Subcomm. on 
Immigration Policy and Enforcement of the House Comm. on the Judiciary, 
112th Congress (2011) (statement of Douglas Baker, Chief of Police, 
Fort Myers, Florida, Police Department).
---------------------------------------------------------------------------
Post-Zadvydas Regulations
    In 2002, the Department of Justice (``DOJ'') issued 
regulations that provide a procedure under the authority of 
section 241(a)(6) for the detention of aliens ordered removed 
whose removal is not reasonably foreseeable but who are deemed 
to pose a special danger to the public:\30\
---------------------------------------------------------------------------
    \30\See 8 C.F.R. sec. 241.14(f).

        [DHS] shall continue to detain an alien if the release 
        of the alien would pose a special danger to the public, 
        because: i) [t]he alien has previously committed one or 
        more crimes of violence as defined in 18 U.S.C. 16; ii) 
        [d]ue to a mental condition or personality disorder and 
        behavior associated with that condition or disorder, 
        the alien is likely to engage in acts of violence in 
        the future; and iii) [n]o conditions of release can 
        reasonably be expected to ensure the safety of the 
        public.\31\
---------------------------------------------------------------------------
    \31\8 C.F.R. sec. 241.14(f)(1).

    Proceedings are divided into two phases: a reasonable cause 
hearing and continued detention review merit hearings. In the 
initial phase, an alien who is detained and has been ordered 
removed may request that DHS determine whether there is a 
significant likelihood of removal in the reasonably foreseeable 
future. If there is not, the alien must be released unless 
based on a medical and physical evaluation DHS determines that 
the alien should not be released because they would pose a 
special danger to the public.\32\
---------------------------------------------------------------------------
    \32\See 8 C.F.R. sec. 241.14(f)(1)-(3).
---------------------------------------------------------------------------
    If DHS finds the alien poses a special danger, the case is 
referred to an Immigration Judge for a reasonable cause 
hearing. This hearing is to determine whether DHS's evidence is 
sufficient to establish reasonable cause to proceed with a 
continued detention review merits hearing or whether the alien 
should be released. If the Immigration Judge finds that DHS has 
shown reasonable cause, the alien is notified and a merits 
hearing is scheduled. However, if the Immigration Judge finds 
that DHS has not met its burden, the proceedings are dismissed 
and the alien is released.\33\
---------------------------------------------------------------------------
    \33\See 8 C.F.R. sec. 241.14(h).
---------------------------------------------------------------------------
    In the continued detention review merits hearing, which 
must be held promptly, DHS has the burden of proving ``by clear 
and convincing evidence, that the alien should remain in 
custody because the alien's release would pose a special danger 
to the public. . . .''\34\ If the Immigration Judge finds that 
DHS has met its burden, the judge shall order the continued 
detention of the alien. Otherwise, the proceedings are 
dismissed.\35\
---------------------------------------------------------------------------
    \34\8 C.F.R. sec. 241.14(i)(1).
    \35\See 8 C.F.R. sec. 241.14(i)(3)-(4).
---------------------------------------------------------------------------
    The regulations provide for periodic review of continued 
detention.\36\ A detained alien may request that DHS review the 
continued detention order, but not earlier than six months 
after the most recent decision.\37\ In order to win release 
from detention, the alien must show that due to a ``material 
change in circumstances,'' their release ``would no longer pose 
a special danger to the public. . . .''\38\ If DHS does not 
release the alien, the alien may file a motion with the 
immigration judge to set aside the prior determination, and the 
alien's burden is the same--that, due to a material change in 
circumstances, his release would no longer pose a special 
danger to the public.\39\ If the Immigration Judge grants the 
motion, a new merits hearing is held.\40\
---------------------------------------------------------------------------
    \36\See 8 C.F.R. sec. 241.14(k)(1).
    \37\See 8 C.F.R. sec. 241.14(k)(2)-(3).
    \38\8 C.F.R. sec. 241.14(k)(4).
    \39\See 8 C.F.R. sec. 241.14(k)(6).
    \40\See id.
---------------------------------------------------------------------------
    The Federal circuits have split as to whether the 
regulations have a valid basis under section 241(a)(6).\41\
---------------------------------------------------------------------------
    \41\Compare Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 
2008) (regulations have a valid basis), with Tran, 515 F.3d at 478 (no 
valid basis); Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004) (no valid 
basis).
---------------------------------------------------------------------------
The Keep Our Community Safe Act
    H.R. 1932 provides new statutory authorization for DHS to 
detain for extended periods dangerous aliens ordered removed 
who cannot be removed. As Thomas Dupree, Jr., former Principal 
Deputy Assistant Attorney General, told the Committee:

        The need for [the Keep Our Communities Safe Act] is 
        acute. . . . [U]nder current law, the government is 
        compelled to set dangerous criminals loose on the 
        streets of the United States. . . . There is absolutely 
        no reason to leave uncorrected a law that compels the 
        release of some of the most dangerous and deranged 
        individuals in Federal custody. Often their home 
        countries do not want them back precisely because their 
        crimes were so heinous. . . . The [bill] will protect 
        the American people by giving the Department of 
        Homeland Security and the Department of Justice the 
        legal tools they need to keep these dangerous predators 
        off our streets.\42\
---------------------------------------------------------------------------
    \42\H.R. 1932, the ``Keep Our Communities Safe Act of 2011''.

    Under the bill, if DHS wants to continue detention of an 
alien beyond 90 days following the removal period, a DHS 
official not below the level of the Assistant Secretary for 
Immigration and Customs Enforcement may continue detention 
until removal after certifying (or pending a certification) 
that 1) the alien has a highly contagious disease that poses a 
threat to public safety, 2) release of the alien is likely to 
have serious adverse foreign policy consequences, 3) there is 
reason to believe that release would threaten national 
security, or 4) release of the alien will threaten the safety 
of the community or any person, conditions of release cannot 
reasonably be expected to ensure their safety, and either the 
alien has been convicted of an aggravated felony or certain 
other crimes (or attempts or conspiracies to commit these 
crimes) or the alien has committed a crime of violence and 
because of a mental condition or personality disorder and 
behavior associated with that condition or disorder, the alien 
is likely to engage in acts of violence in the future.
    DHS must renew such a certification every six months for as 
long as it wants to continue detention of the alien. In the 
absence of a certification, the alien is to be released, 
although conditions may be imposed and re-detention is 
possible.
Constitutionality of the Post-Zadvydas Regulations and the Keep Our 
        Communities Safe Act
    The Supreme Court clearly indicated in Clark that Congress 
has the power to amend the INA to provide for the continued 
detention beyond the removal period of aliens where the 
national interest in detention is great. In fact, the Court 
seemingly encouraged Congress to act, stating that ``[t]he 
Government fears that the security of our borders will be 
compromised if it must release into the country inadmissible 
aliens who cannot be removed. If that is so, Congress can 
attend to it.''\43\ In the corresponding footnote, the Court 
stated that ``[t]hat Congress has the capacity to do so is 
demonstrated by its reaction to our decision in Zadvydas. Less 
than four months after the release of our opinion, Congress 
enacted [section 412(a) of the USA PATRIOT Act, found at 
section 236A(a)(6) of the INA] which expressly authorized 
continued detention, for a period of six months beyond the 
removal period (and renewable indefinitely) [of terrorist 
aliens].''\44\ Section 236A(a)(6) allows for continued 
detention after the removal period of terrorist aliens not only 
if their release will threaten the national security, but also 
if release will threaten ``the safety of the community or any 
person.'' This rationale--to protect the safety of the 
community or any person--that the Court looked favorably upon 
is precisely the reason why the Keep Our Communities Safe Act 
provides for the continued detention of dangerous aliens.
---------------------------------------------------------------------------
    \43\Clark, 543 U.S. at 385.
    \44\Id. at n.8.
---------------------------------------------------------------------------
    Additionally, the 10th Circuit in the 2008 decision of 
Hernandez-Carrera v. Carlson clearly indicates that the bill 
will be upheld as constitutional.\45\ In that case, the 10th 
Circuit upheld the post-Zadvydas regulations that closely 
mirror the Keep Our Communities Safe Act. The 10th Circuit 
stated that:
---------------------------------------------------------------------------
    \45\See Hernandez-Carrera, 547 F.3d at 1237.

        In Zadvydas, the government argued that by the clear 
        terms of [section 241(a)(6) of the Immigration and 
        Naturalization Act], Congress did not place a ``limit 
        on the length of time beyond the removal period that an 
        alien who falls within one of the [provision's] 
        categories may be detained.''. . . Far from limiting 
        the Attorney General's detention authority to ``a small 
        segment of particularly dangerous individuals,'' . . . 
        this reading would have authorized the detention of any 
        removable alien under [section 241(a)(6)] without 
        regard to an alien's dangerousness or special 
        characteristics. . . . As the Supreme Court pointed 
        out, this construction suggested, at its limits, that 
        Congress had authorized the Attorney General to 
        permanently detain an alien guilty only of a tourist 
        visa violation. . . .
        . . . .

        [Under the regulations, d]etention beyond the removal 
        period is authorized only in situations where the 
        government's interest in an alien's continued detention 
        is particularly strong: in the cases of 1) aliens with 
        a highly contagious disease that is a threat to public 
        safety; 2) aliens detained on account of serious 
        adverse foreign policy consequences of release; 3) 
        aliens detained on account of security or terrorism 
        concerns; and 4) aliens determined to pose a special 
        danger to the public. . . . Therefore, in contrast to 
        the expansive scope of ICE's detention authority 
        advanced by the government in Zadvydas, the Attorney 
        General has now interpreted [section 241(a)(6)] only to 
        authorize continued detention for a ``small segment . . 
        . of individuals'' whose release would particularly 
        endanger the public's health or safety . . . or the 
        nation's foreign relations.
        . . . .

        We are confident . . . that due process is satisfied 
        here. . . . [W]e note that it is not at all clear that 
        removable aliens benefit from precisely the same 
        advantages of due process as do citizens or lawful 
        permanent resident aliens. To be sure, ``the Due 
        Process Clause applies to all 'persons' within the 
        United States, including aliens. . . . However, the 
        nature of the protection an alien is due ``may vary 
        depending upon status and circumstance.'' . . . ``The 
        fact that all persons, aliens and citizens alike, are 
        protected by the Due Process Clause does not lead to 
        the further conclusion that all aliens are entitled to 
        enjoy all the advantages of citizenship. . . .
        . . . .

        [T]he Attorney General's statutory interpretation 
        raises no serious constitutional question. . . .\46\
---------------------------------------------------------------------------
    \46\Id. at 1252-54, 1256 (citations omitted). The Supreme Court in 
Zadvydas similarly stated that ``the Due Process Clause protects an 
alien subject to a final order of deportation . . . though the nature 
of that protection may vary depending upon status and circumstances. . 
. .'' 533 U.S. at 693-94 (citations omitted and emphasis added). And in 
the later case of Demore v. Kim, the Court found that ``this Court has 
firmly and repeatedly endorsed the proposition that Congress may make 
rules as to aliens that would be unacceptable if applied to citizens.'' 
538 U.S. 510, 522 (2003) (citation omitted).

    The Committee believes that the decisions in the 5th and 
9th Circuits finding the regulations invalid were wrongly 
decided.\47\ Since the regulations are not constitutionally 
infirm, this bill, which conforms closely to the regulations, 
is also not constitutionally infirm. As Thomas Dupree, Jr., 
told the Committee:
---------------------------------------------------------------------------
    \47\Judge Kozinski, in dissenting to a 9th Circuit order denying a 
petition for rehearing, explained why Thai was wrongly decided. ``The 
Supreme Court, confronted with a very broad statute, narrowed its scope 
to avoid unconstitutionality, but the Court's method of narrowing is 
not the only permissible one. The Attorney General, pursuant to his 
statutory delegation of regulatory authority, has selected a different 
method of conforming the statute to the requirements of the 
Constitution: He has accepted the six month limitation as to most 
aliens and has provided stringent procedural protections for narrow 
classes of aliens who are believed to be a danger to the community.'' 
Thai v. Ashcroft, 389 F.3d 967, 971 (9th Cir. 2004) (Kozinski, 
dissenting).

        [T]he bill appropriately addresses the constitutional 
        concerns identified by the Zadvydas Court. . . . It 
        narrows the potential sweep of the post-removal-
        detention statute by limiting it to a small segment of 
        particularly dangerous individuals. It provides for 
        regular and individualized assessments of the need for 
        continued detention by high-level officials within the 
        Department of Homeland Security, as well as the 
        opportunity to have those assessments reviewed by a 
        Federal court.\48\
---------------------------------------------------------------------------
    \48\H.R. 1932, the ``Keep Our Communities Safe Act of 2011''.

    However, even were the decisions invalidating the 
regulations decided correctly, that would only go to show that 
the regulations were invalid interpretations of section 
241(a)(6) of the INA.\49\ It would not lead to the conclusion 
that Congress could not enact legislation mirroring the text of 
the regulations. As the 5th Circuit stated:
---------------------------------------------------------------------------
    \49\As the 9th Circuit found, ``[b]ecause the Government may not 
detain [the appellee] under [section 241(a)(6)], the . . . regulations, 
which were enacted under the authority of that statute, cannot 
authorize [the appellee's] continued and potentially indefinite 
detention.'' Thai, 366 F.3d at 799.

        While this Court is sympathetic to the Government's 
        concern for public safety, we are without power to 
        authorize . . . continued detention. . . . We note 
        however that in a similar circumstance where public 
        safety was also of great concern, Congress took prompt 
        action to address the issue. In particular, in the 
        field of national security, Congress enacted the 
        Patriot Act which authorizes detention beyond the 
        removal period of any alien whose removal is not 
        foreseeable for additional periods of up to six months 
        if the alien presents a national security threat. . . . 
        Thus, not only are the Government's concerns properly 
        directed to Congress, but importantly Congress has 
        shown that it has the authority and willingness to 
        address these concerns.\50\
---------------------------------------------------------------------------
    \50\See Tran, 515 F.3d at 485. And the 9th Circuit stated that 
``[w]e also do not speak to the possibility that Congress could enact a 
statute that explicitly allows for Federal civil commitment of aliens 
who pose a danger to the community due to their mental conditions.'' 
Thai, 366 F.3d at 799.
---------------------------------------------------------------------------
Adequacy of Civil Commitment Laws
    It is sometimes argued that the continued detention 
provisions of the Keep Our Communities Safe Act are unnecessary 
because dangerous aliens can be kept off our streets through 
Federal or state civil commitment laws. Unfortunately, such 
laws are inadequate. The Supreme Court has ruled that civil 
commitment laws can only be used against persons who ``suffer 
from a volitional impairment rendering them dangerous beyond 
their control'' because of a mental illness or abnormality.\51\
---------------------------------------------------------------------------
    \51\Kansas v. Hendricks, 521 U.S. 346, 358 (1997).
---------------------------------------------------------------------------
    Aliens who are sane but highly dangerous cannot be subject 
to civil confinement.\52\ This is true even if they have 
antisocial personalities that sometimes lead to aggressive 
conduct and for which there is no effective treatment.\53\ It 
means that aliens who are mentally ill and highly dangerous but 
found to be able to control their dangerousness cannot be 
subject to civil containment. Most dangerous aliens are beyond 
the reach of civil commitment laws.
---------------------------------------------------------------------------
    \52\See id.
    \53\See Foucha v. Louisiana, 504 U.S. 71, 82 (1992). Also see 
Sravanthi Pajerla & Alan Felthous, The Paradox of Psychopathy, 
Psychiatric Times, Nov. 1, 2007 (``High scores on the Psychopathy 
Checklist Revised . . . have been shown to be strong predicators of 
criminal and especially violent recidivism among prisoners.'').
---------------------------------------------------------------------------

                II. EXTENSION OF ZADVYDAS AND CLARK TO 
                     NON POST-REMOVAL PERIOD CASES

    Section 236(c) of the INA provides that the government 
``shall take into custody'' individuals who are inadmissible or 
deportable under various criminal and terrorist grounds. Why 
did Congress provide for mandatory detention of such aliens? 
First, because Congress did not want Americans to be 
unnecessarily put at risk. As Justice Kennedy has stated, 
``[a]ny suggestion that aliens who have completed prison terms 
no longer present a danger simply does not accord with the 
reality that a significant risk may still exist. . . .''\54\
---------------------------------------------------------------------------
    \54\Zadvydas, 533 U.S. at 714 (Kennedy, J., dissenting).
---------------------------------------------------------------------------
    The recidivism rate of criminal immigrants after release 
from detention is extremely high. In 1999, the Judiciary 
Committee subpoenaed the Justice Department for information on 
inadmissible or deportable aliens who were released from INS 
custody and then subsequently convicted of additional crimes. 
The resulting information revealed that of the 35,318 criminal 
aliens whom INS released between 1994 and 1999, 37% had been 
convicted of another crime in the United States by 2000.\55\ 
The Supreme Court has stated that ``Congress [was] justifiably 
concerned that deportable criminal aliens who are not detained 
continue to engage in crime. . . .''\56\ The Court noted that 
``deportable criminal aliens who remained in the United States 
often committed more crimes before being removed. One 1986 
study showed that, after criminal aliens were identified as 
deportable,77% were arrested at least one more and 45%--nearly 
half--were arrested multiple times before their deportation 
proceedings even began.''\57\
---------------------------------------------------------------------------
    \55\See H.R. Rept. 106-1048 at 256-57 (2001) .
    \56\Demore, 538 U.S. at 510.
    \57\Id. at 518.
---------------------------------------------------------------------------
    Second, when illegal and criminal aliens in removal 
proceedings are not detained, many simply abscond and become 
fugitives--as do most of those ordered removed. Department of 
Justice records reveal that since 1996, nearly 770,000 non-
detained aliens in removal proceedings failed to appear in 
court, 40% of all those not detained.\58\ Of all removal orders 
against aliens who were not detained, 78% represented aliens 
who failed to show up in court.\59\
---------------------------------------------------------------------------
    \58\See Mark Metcalf, Built to Fail: Deception and Disorder in 
America's Immigration Courts, 2011 Center for Immigration Studies at 17 
nn.40, 47.
    \59\See id. at 17 n.47.
---------------------------------------------------------------------------
    What happens when non-detained aliens abscond and are then 
ordered removed? They are almost never deported. The Department 
of Justice's Office of the Inspector General found that the INS 
was only able to remove 13% of nondetained aliens with final 
orders of removal.\60\ This is why U.S. Immigration and Customs 
Enforcement (``ICE'') has told the Committee that almost 
500,000 immigrant fugitives now roam our streets.\61\
---------------------------------------------------------------------------
    \60\See U.S. Department of Justice, Office of the Inspector 
General, Evaluation and Inspections Division, The Immigration and 
Naturalization Service's Removal of Aliens Issued Final Orders i, ii 
(2003).
    \61\Information provided by ICE.
---------------------------------------------------------------------------
    The Supreme Court well understands these concerns. It has 
held in Demore v. Kim that ``Congress [was] justifiably 
concerned that deportable criminal aliens who are not detained 
. . . fail to appear for their removal hearings in large 
numbers. . . .''\62\ It noted that ``Congress also had before 
it evidence that one of the major causes of the INS' failure to 
remove deportable criminal aliens was the agency's failure to 
detain those aliens during their deportation proceedings''\63\ 
and that a study ``strongly support[ed] Congress' concern that, 
even with individualized screening, releasing deportable 
criminal aliens on bond would lead to an unacceptable rate of 
flight.''\64\
---------------------------------------------------------------------------
    \62\Demore, 538 U.S. at 513.
    \63\Id. at 519.
    \64\Id. at 520.
---------------------------------------------------------------------------
    Because of these considerations, the Court ruled that the 
mandatory detention in section 236(c) did not violate the Due 
Process Clause of the Fifth Amendment--``Congress . . . may 
require that persons such as [the criminal alien] respondent be 
detained for the brief period necessary for their removal 
proceedings.''\65\
---------------------------------------------------------------------------
    \65\Id. at 513.
---------------------------------------------------------------------------
    The Court took pains to make clear that while the 
respondent relied heavily on the Court's ruling in Zadvydas in 
arguing that section 236(c) was unconstitutional, Zadvydas was 
``materially different.''\66\ First, in Zadvydas, the goal of 
detention--ultimate removal--was no longer practically 
attainable while in the present case, ``detention of deportable 
criminal aliens pending their removal proceedings . . . 
necessarily serves the purpose of preventing deportable 
criminal aliens from fleeing prior to or during their removal 
proceedings, thus increasing the chance that, if ordered 
removed, the aliens will be successfully removed.''\67\
---------------------------------------------------------------------------
    \66\Id. at 527.
    \67\Id. at 527-28 (emphasis in original).
---------------------------------------------------------------------------
    Second, ``[w]hile the period of detention at issue in 
Zadvydas was `indefinite' and `potentially permanent' . . . the 
detention here is of a much shorter duration.''\68\ 
Importantly, ``post-removal period detention, unlike detention 
pending a determination of removability . . . , has no obvious 
termination point.''\69\
---------------------------------------------------------------------------
    \68\Id. at 528 (citation omitted).
    \69\Id. at 529 (quoting Zadvydas at 697, emphasis added in Demore).
---------------------------------------------------------------------------
    The Demore Court also noted that the respondent himself had 
worked to extend the length of his detention by requesting a 
continuance of his removal hearing.\70\ This brings up the 
specter of aliens and their attorneys intentionally using 
dilatory tactics in removal proceedings in order to force their 
release.
---------------------------------------------------------------------------
    \70\See id. at 531.
---------------------------------------------------------------------------
    There is another reason why Zadvydas-type post-removal 
period detention is fundamentally different from detention 
during the removal process--and therefore why the same 
constitutional considerations don't arise. Aliens in the 
removal process generally hold the keys to their own cells--
they can accept removal and quickly win release from detention. 
Aliens in post-removal period detention generally do not have 
this ability.
    Unfortunately, in the years following Demore, some Federal 
courts have tried to turn the decision on its head. They have 
ruled that mandatory detention under section 236(c) for more 
than a few months is likely unconstitutional and therefore, 
under the doctrine of constitutional avoidance, the provision 
should be read to not require continued detention of criminal 
aliens. In Tijani v. Willis, the 9th Circuit ruled that:

        [It is] constitutionally doubtful that Congress may 
        authorize imprisonment [under section 236(c)] of [over 
        two years and eight months] for lawfully admitted 
        resident [criminal] aliens who are subject to removal. 
        . . . To avoid deciding the constitutional issue, we 
        interpret the authority conferred by [section 236(c)] 
        as applying to expedited removal of criminal aliens. 
        Two years and eight months of process is not 
        expeditious; and the foreseeable process in this court 
        . . . is a year or more.\71\
---------------------------------------------------------------------------
    \71\430 F.3d 1241, 1242 (2005).

Therefore, the case was remanded so that an Immigration Judge 
could grant the alien bail unless the government could 
establish that the alien was a flight risk or a danger to the 
community.\72\
---------------------------------------------------------------------------
    \72\Id.
---------------------------------------------------------------------------
    The decision in Tijani has no foundation in Zadvydas. As 
the dissenting judge in Tijani stated, at the very most, 
``[t]he constitutional limit, if any, to the duration of an 
alien's detention under [section 236(c)] was left open by the 
Supreme Court in Demore.''\73\ Alternately, he stated, the 
Court was ``holding that because the removal proceedings are by 
definition finite, there is no constitutional limit to the 
duration of detention under [section 236(c)].''\74\ After all, 
``[t]he reasons for detaining criminal aliens pending removal 
do not diminish over the duration of their detention.''\75\
---------------------------------------------------------------------------
    \73\Id. at 1252 (Callahan, J., dissenting).
    \74\Id. (footnote omitted).
    \75\Id. at 1252 n.5.
---------------------------------------------------------------------------
    Then, in Casas-Castrillon v. Department of Homeland 
Security, the 9th Circuit ruled that a criminal alien being 
detained pursuant to section 236(c) who receives a final 
removal order (upheld by the Board of Immigration Appeals) and 
then challenges that order in Federal circuit court is not 
subject to mandatory detention under section 236(c) after the 
court issues a stay of removal, but only to discretionary 
detention under section 236(a) of the INA.\76\ Section 236(a) 
does provide for release of an alien on bond, and the 9th 
Circuit ruled that did it not, the statute would likely be 
unconstitutional.\77\ The 2nd Circuit came to the better-
reasoned conclusion that ``when a court issues a stay pending 
its review of an administrative removal order, the alien 
continues to be detained under section 236[c] until the court 
renders its decision.''\78\
---------------------------------------------------------------------------
    \76\See 535 F.3d 942, 948 (9th Cir. 2008). Section 236(a) provides 
that ``an alien may be arrested and detained pending a decision on 
whether the alien is to be removed from the United States.'' The court 
ruled that section 236(c) only applies ``during removal proceedings.''
    \77\See id. at 951.
    \78\Wang v. Ashcroft, 320 F.3d 130, 147 (2nd Cir. 2003).
---------------------------------------------------------------------------
    The 9th Circuit has extended this type of rationale beyond 
the realm of criminal aliens. Aliens are subject to mandatory 
detention during the removal period (which begins when an order 
of removal becomes administratively final).\79\ However, the 
9th Circuit found in Prieto-Romero v. Clark that an alien 
``whose removal order is administratively final, but whose 
removal has been stayed by a court of appeals pending its 
disposition of his petition for review'' is no longer within 
the removal period, but subject only to discretionary detention 
under section 236(a).\80\ And in Nadarajah v. Gonzales, the 
court read the mandatory detention provisions for aliens 
applying for admission (found at section 235(b) of the INA) to 
be limited to a ``reasonable'' length and only ``while removal 
remains reasonably foreseeable.''\81\
---------------------------------------------------------------------------
    \79\See sec. 241(a)(1)-(2) of the INA.
    \80\534 F.3d 1053, 1059 (9th Cir. 2008).
    \81\443 F.3d 1069, 1078, 1084 (9th Cir. 2006).
---------------------------------------------------------------------------
    However, non-criminal aliens ordered removed who are not 
detained abscond just as do criminal aliens. So too do arriving 
aliens who are not entitled to be admitted. In fact, by the 
mid-1990s, thousands of aliens were arriving at U.S. airports 
each year without valid documents, often making meritless 
asylum claims, knowing that they would be released into the 
community pending asylum hearings before Immigration Judges 
because of a lack of detention space.\82\ Congress responded by 
creating the expedited removal process.
---------------------------------------------------------------------------
    \82\See H.R. Rep. No. 104-469, pt. 1, at 157-58 (1995). Even 
arriving aliens who show a ``credible fear of persecution'' may abscond 
if later denied asylum. The grant rate for credible fear determinations 
has become so high--87% percent in fiscal year 2011 (through March 
2011)--that the credible fear requirement is no longer deterring 
arriving aliens from making fraudulent asylum claims at ports of entry. 
Information provided by U.S. Citizenship and Immigration Services. What 
happens when DHS doesn't detain asylum seekers making fraudulent 
claims? The lesson from the past is clear--nondetained asylum seekers 
who are later denied asylum simply abscond. The Inspector General of 
the Department of Justice issued a report that looked at the INS's 
success in removing nondetained asylum seekers who were denied asylum. 
The INS was only able to remove three percent of these nondetained 
aliens. See Office of the Inspector General, U.S. Department of 
Justice, The Immigration and Naturalization Service's Removal of Aliens 
Issued Final Orders 16 (Feb. 2003). Similarly, a DHS report found that 
of those aliens who filed for asylum with an asylum officer in 2000, 
were never detained and were then denied asylum and ordered removed, 
less than one percent were removed by April 2003 (41 out of 9,772); of 
those claiming a credible fear of persecution at ports of entry who 
were never detained and were then denied asylum and ordered removed, 
only 19% were removed (15 out of 80). See ICE, U.S. Department of 
Homeland Security, Detained Asylum Seekers: Fiscal Year 2000 tables 
10a, 10b (undated).
---------------------------------------------------------------------------
The Keep Our Communities Safe Act
    The Keep Our Communities Safe Act rejects the expansion of 
the supposed rationale of Zadvydas and Clark to non post-
removal order cases. The bill provides that detention under 
sections 235 and 236 of the INA is ``without limitation, until 
the alien is subject to a final order of removal''--without any 
statutory limitation on duration. Duration will, of course, be 
limited in practice because immigration judges, the Board of 
Immigration Appeals, and Federal circuit courts will eventually 
reach decisions on matters before them. Aliens might also be 
less tempted to engage in dilatory tactics if they realize that 
such tactics won't get them released from detention. Finally, 
aliens will usually continue to hold the keys to their own 
detention--if they accept their removal they will be 
expeditiously freed from detention.
    Additionally, the bill provides, contra Casas-Castrillon v. 
Department of Homeland Security, that the removal period 
continues during the period after a Federal court orders a stay 
of an alien's removal. However, detention during this period is 
at the discretion of DHS.
    It should be noted that in cases of detention pursuant to 
sections 235 and 236 where detention is discretionary (such as 
with section 236(a)) and not mandatory, aliens will continue to 
have access to bond hearings by immigration judges.

   III. APPLICABILITY OF SECTION 236(C) WHEN DHS DETENTION DOES NOT 
              IMMEDIATELY FOLLOW UPON RELEASE FROM CUSTODY

    Section 236(c) provides that the government ``shall take 
into custody'' individuals who are inadmissible or deportable 
under various criminal and terrorist grounds ``when the alien 
is released, without regard to whether the alien is released on 
parole, supervised release, or probation, and without regard to 
whether the alien may be arrested or imprisoned again for the 
same offense.''
    Some Federal courts have interpreted section 236(c)'s 
mandatory detention not to apply to criminal aliens whom DHS 
does not detain immediately after they were released from 
incarceration upon the conclusion of their criminal sentences. 
For instance, a Federal district court in Virginia ruled that 
section 236(c) ``does not apply to an alien . . . who has been 
taken into immigration custody well over a month after his 
release from state custody.''\83\
---------------------------------------------------------------------------
    \83\Waffi v. Loiselle, 527 F. Supp. 2d 480, 488 (E.D. Va. 2007). 
See also, e.g., Scarlett v. DHS, 632 F. Supp. 2d 214, 219 (W.D.N.Y. 
2009).
---------------------------------------------------------------------------
    And some Federal courts have interpreted section 236(c) to 
not apply to criminal aliens whom DHS detains following 
criminal incarceration for crimes other than the crimes that 
make them subject to mandatory detention under section 236(c). 
For instance, the 1st Circuit asked the question of ``whether 
[section 236(c)] applies only when an alien is released from a 
criminal custody the basis for which is one of the offenses 
[subjecting an alien to mandatory detention under section 
236(c)] or, alternately, whether it applies whenever an alien, 
previously convicted of [such] an offense . . . is released 
from any criminal custody regardless of the reason for that 
detention.''\84\ The court ruled that section 236(c) applies 
only in the former case.\85\
---------------------------------------------------------------------------
    \84\Saysana v. Gillen, 590 F.3d 7, 8 (1st Cir. 2009) (emphasis in 
original).
    \85\See id. at 28. See also, e.g., Louisaire v. Muller, 758 F. 
Supp. 2d 229, 236 (S.D.N.Y. 2010).
---------------------------------------------------------------------------
    Putting aside the proper reading of section 236(c), these 
decisions make little policy sense. As Justice Kennedy has 
stated, ``[a]ny suggestion that aliens who have completed 
prison terms no longer present a danger simply does not accord 
with the reality that a significant risk may still exist. . . 
.''\86\ The dual purposes for the mandatory detention of 
criminal aliens are to protect the American public and to 
ensure that removal orders can be effectuated. It makes no 
difference for purposes of achieving these goals whether a 
criminal alien was placed in DHS detention immediately after 
being released from criminal incarceration or years after being 
released from criminal incarceration; it makes no difference 
whether a criminal alien was placed in DHS detention after 
incarceration for the crime making them removable or after 
incarceration for another crime; in fact, it makes no 
difference if they were ever incarcerated.
---------------------------------------------------------------------------
    \86\Zadvydas, 533 U.S. at 714 (Kennedy, J., dissenting).
---------------------------------------------------------------------------
The Keep Our Communities Safe Act
    The bill makes clear that aliens are subject to mandatory 
detention under section 236(c) regardless of whether there has 
been an intervening period since they were released from 
criminal custody or whether they were last released from 
incarceration for a crime other than the crime that makes them 
subject to mandatory detention. In both cases, the aliens are 
still subject to mandatory detention under section 236(c). The 
bill provides that a criminal alien is subject to section 
236(c) at ``any time after the alien is released, without 
regard to whether an alien is released related to any activity, 
offense, or conviction [making them subject to mandatory 
detention under section 236(c)]. . . .''

                                Hearings

    The Committee's Subcommittee on Immigration Policy and 
Enforcement held one day of hearings on H.R. 1932 on May 24, 
2011. Testimony was received from Gary Mead, Executive 
Associate Director for Enforcement and Removal Operations, ICE, 
Department of Homeland Security; Thomas Dupree, Partner, Gibson 
Dunn & Crutcher; Police Chief Douglas Baker, Tampa, Florida 
Police Department; and Ahilan Arulanantham, Deputy Legal 
Director, American Civil Liberties Union of Southern 
California.

                        Committee Consideration

    On July 14, 2011, the Committee met in open session and 
ordered the bill H.R. 1932 favorably reported with an 
amendment, by a roll call vote of 17 to 14, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 1932.
    1. An amendment by Rep. Chu failed by a vote of 13-18. The 
amendment would have stricken the provisions of the bill that 
amend sections 235 and 236 of the INA as to the detention of 
arriving aliens and aliens pending and during removal 
proceedings.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................                              X
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................             13              18
----------------------------------------------------------------------------------------------------------------

    2. An amendment by Rep. Jackson Lee failed by a vote of 13-
21. The amendment would have stricken the provisions of the 
bill that provide for detention of aliens after the removal 
period and would have substituted a civil commitment process 
for aliens who pose a special danger to others.

                                                 ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................              X
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................             13              21
----------------------------------------------------------------------------------------------------------------

    3. An amendment by Rep. Conyers failed by a vote of 12-17. 
The amendment would have stricken the provisions of the bill 
that amend section 235 of the INA as to the detention of 
arriving aliens.

                                                 ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................                              X
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................
Ms. Sanchez.....................................................              X
Ms. Wasserman...................................................
                                                                 -----------------------------------------------
    Total.......................................................             12              17
----------------------------------------------------------------------------------------------------------------

    4. An amendment by Rep. Chu failed by a vote of 13-16. The 
amendment would have stricken provisions of the bill that amend 
section 235 of the INA as to the detention of arriving aliens 
and would have substituted alternate provisions.

                                                 ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................                              X
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................              X
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................             13              16
----------------------------------------------------------------------------------------------------------------

    5. An amendment by Ms. Jackson Lee failed by a vote of 14-
15. The amendment would have stricken a provision of the bill 
that requires the detention by DHS of certain removable 
criminal aliens at any time after they are released from 
serving their criminal sentences.

                                                 ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................                              X
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................              X
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................             14              15
----------------------------------------------------------------------------------------------------------------

    6. Motion to report H.R. 1932 favorably, as amended. Passed 
17-14.

                                                 ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................              X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................
Mr. Lungren.....................................................              X
Mr. Chabot......................................................              X
Mr. Issa........................................................              X
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................              X
Mr. Poe.........................................................
Mr. Chaffetz....................................................              X
Mr. Griffin.....................................................              X
Mr. Marino......................................................              X
Mr. Gowdy.......................................................              X
Mr. Ross........................................................              X
Ms. Adams.......................................................              X
Mr. Quayle......................................................              X
Mr. Conyers, Jr., Ranking Member................................                              X
Mr. Berman......................................................                              X
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................                              X
Mr. Deutch......................................................                              X
Ms. Sanchez.....................................................                              X
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................             17              14
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1932, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 8, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1932, the ``Keep 
Our Communities Safe Act of 2011.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 1932--Keep Our Communities Safe Act of 2011.
    CBO estimates that implementing H.R. 1932 would have no 
significant costs to the Federal Government. Enacting H.R. 1932 
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures do not apply. H.R. 1932 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would not affect the budgets 
of State, local, or tribal governments.
    H.R. 1932 would clarify numerous provisions in current laws 
and regulations relating to the detention of aliens who are 
ordered removed from the United States. The bill also would 
clarify many procedural issues in the appeals process that are 
available to aliens who contest their detention or removal. In 
addition, H.R 1932 would authorize the Department of Homeland 
Security (DHS) to detain such aliens for longer than 6 months 
under certain circumstances.
    According to DHS, most aliens who receive a final order of 
removal are removed from the United States well within 6 
months. In many cases under current law, DHS detains aliens 
only as long as necessary to determine whether the individual, 
upon removal, would be accepted by his home country or by 
another country. If such acceptance is deemed unlikely, then 
generally the detainee is released. CBO anticipates that this 
policy will continue under the provisions of H.R. 1932 because 
the legislation would not require DHS to hold aliens for a 
certain length of time. Thus, we do not expect a large increase 
in the number of detainees who are held for long periods of 
time, and we estimate that H.R. 1932 would not significantly 
increase DHS detention costs.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1932 allows for the continued detention of dangerous aliens who 
cannot be removed and strengthens the Department of Homeland 
Security's ability to detain criminal aliens in removal 
proceedings.

                   Constitutional Authority Statement

    The Committee finds the authority for this legislation in 
article I, section 8, clause 4 of the Constitution.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1932 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

Section 1:
    Short Title
Section 2(a)(1):
    Consistent with the formation of the Department of Homeland 
Security, this provision clarifies that DHS has the power to 
detain, release and remove an alien ordered removed.
Section 2(a)(2):
    Current law provides that an alien must generally be 
removed within 90 days of being ordered removed (``the removal 
period''). This provision clarifies that in cases where the 
alien is confined other than by DHS at the time the order 
becomes final, the removal period begins on the date the alien 
is released and placed into DHS custody.
Section 2(a)(3):
    This provision provides that the removal period shall be 
extended beyond 90 days if the alien does not comply with 
efforts to remove them or an immigration judge, the BIA, or a 
court issues a stay of the alien's final removal order, or 
custody of the alien is transferred to another agency.
    The removal period begins again when the alien complies 
with removal efforts, the stay is no longer in effect or the 
alien is returned to DHS custody.
Section 2(a)(4):
    This provision allows DHS to continue supervision of an 
alien who is not detained under paragraph 6 (below). It expands 
supervision to include reasonable restrictions to prevent 
aliens from absconding, protect the community, and enforce 
immigration laws.
Section 2(a)(5):
    This provision clarifies that DHS has the discretion to 
order the removal of an alien before the term of imprisonment 
has ended pursuant to the Public Health Service Act and in some 
circumstances when the alien is a nonviolent criminal offender.
Section 2(a)(6):
    This provision provides a review process for DHS to 
determine whether an alien who is not subject to mandatory 
detention and has cooperated in removal efforts should be 
released or detained beyond the removal period. The review 
process requires that DHS consider any available evidence, 
including that submitted by the alien and state or Federal 
officials.
    The provision allows DHS the discretion to detain an alien 
for 90 days beyond the removal period. It further grants DHS 
the discretion to authorize detention beyond this additional 90 
day period if 1) there is a significant likelihood that the 
alien will be removed in the reasonably foreseeable future or 
would be removed in the reasonably foreseeable future but for 
the alien's failure to cooperate, 2) DHS certifies that the 
alien has a highly contagious disease that would be a threat to 
public safety, 3) DHS certifies that, based on the Secretary of 
State's recommendation, release of the alien is likely to have 
serious adverse foreign policy consequences, or 4) DHS 
certifies that, based on information available, there is reason 
to believe that release of the alien would threaten national 
security.
    DHS may also authorize detention beyond the 90 days after 
certifying that the alien will threaten the safety of the 
community or any person and conditions of release cannot 
reasonably ensure their safety, and either 1) the alien has 
been convicted of an aggravated felony or other crimes 
specified by DHS (or attempts or conspiracies to commit such 
crimes if the term of imprisonment for the attempt or 
conspiracy is five years or more), or 2) the alien has 
committed a crime of violence and because of a mental condition 
or personality disorder and associated behavior is likely to 
engage in acts of violence in the future.
    The provision provides also that DHS may detain the alien 
beyond the 90 day period following the removal period pending a 
certification decision as long as DHS initiates the review 
process no later than 30 days after the removal period expires.
    DHS must renew the certification under this section every 
six months if it wants to continue detention. It must provide 
an opportunity for the alien to request and provide evidence to 
support reconsideration of the certification. DHS cannot 
delegate the authority to issue a certification below the level 
of the Assistant Secretary for ICE.
    DHS may request that the Attorney General conduct a hearing 
to determine whether, due to a mental condition, an alien 
convicted of a crime of violence is likely to engage in acts of 
violence in the future.
    If a Federal court or the Board of Immigration Appeals 
releases an alien from detention or if an immigration judge 
orders a stay of removal, DHS may impose conditions on the 
alien's release.
    DHS has the discretion to re-detain an alien if removal 
becomes likely in the reasonably foreseeable future, the alien 
does not comply with conditions or release, or if DHS 
determines that the alien can be detained beyond the removal 
pursuant to this section.
Section 2(a)(7):
    This provision provides that judicial review of challenges 
to detention pursuant to this section is available exclusively 
in habeas corpus proceedings in the United States District 
Court for the District of Colombia. It requires that an alien 
first exhaust administrative remedies before pursuing a habeas 
corpus claim.
Section 2(b)(1):
    This is a clerical amendment to recognize the creation of 
the Department of Homeland Security.
Section 2(b)(2):
    This provision clarifies that there is no limit to the 
length of time an alien may be held in custody pursuant to 
section 235 (regarding arriving aliens), and such detention has 
no affect on the removal period under section 241. However, 
aliens detained pursuant to the non-mandatory detention 
provisions of section 235 can apply to an Immigration Judge for 
release from custody (bond hearing).
    It also provides that judicial review of challenges to 
detention pursuant to section 235 is available exclusively in 
habeas corpus proceedings in the United States District Court 
for the District of Colombia. It requires that the alien first 
exhaust administrative remedies before pursuing a habeas corpus 
claim.
Section 2(b)(3):
    This provision provides that judicial review of challenges 
to detention under section 236 is available exclusively in 
habeas corpus proceedings in the United States District Court 
for the District of Colombia. It requires that an alien first 
exhaust administrative remedies before pursuing a habeas corpus 
claim.
Section 2(b)(4):
    The provision clarifies that there is no limit to the 
length of time an alien maybe held in custody pursuant to 
section 236 and such detention has no affect on the removal 
period under section 241. However, aliens detained pursuant to 
the non-mandatory detention provisions of section 236 can apply 
to an immigration judge for release from custody (bond 
hearing).
Section 2(b)(5):
    This provision clarifies that a criminal alien is subject 
to mandatory detention under section 236(c) and shall be taken 
into custody by DHS even if they had been released at some 
prior time from serving a criminal sentence, were released from 
serving a sentence for a crime other than the crime that 
subjects them to mandatory detention, or never served a 
criminal sentence.
Section 2(b)(6):
    This provision limits the Executive Office for Immigration 
Review's review of DHS's custody determination under section 
236 to whether the alien may be detained, released with no 
bond, or released on bond of at least $1,500.
    The Executive Office for Immigration Review's review of 
DHS's custody determinations for aliens in certain classes is 
limited to whether the aliens were properly included in such 
categories, including aliens in exclusion proceedings, arriving 
aliens in removal proceedings, paroled aliens, aliens removable 
on security and related grounds, or certain criminal aliens.
Section 2(b)(7):
    This provision clarifies that DHS may release an alien 
pending final order of removal only on bond of at least $1500 
or recognizance. Current law allows such aliens to be released 
on bond of at least $1500 as well as on conditional parole.
Section 2(c):
    This provision provides that if any section of the bill is 
held to be invalid, it may be severed from the bill and will 
not affect the remainder of the bill.
Section 2(d)(1):
    This provision provides that the amendments made by section 
2(a) of the bill shall take effect on the date of the enactment 
of the bill. It clarifies that section 241 of the INA as 
amended applies to all aliens subject to a final order issued 
before, on, or after the date of enactment and to acts and 
conditions occurring or existing before, on, or after the date 
of enactment.
Section 2(d)(2):
    This provision provides that the amendments made by section 
2(b) of the bill shall take effect on the date of the enactment 
of the bill and sections 235 and 236 as amended shall apply to 
any alien in detention under provisions of those sections on or 
after the date of enactment.
Section 3:
    This section provides the sense of Congress that the bill 
should ensure that constitutional rights are upheld and 
protected and that it is the intention of Congress to uphold 
the constitutional principles of due process and that due 
process of law is a right afforded to all persons in the United 
States. Of course, as the 10th Circuit has held, ``the nature 
of the protection an alien is due `may vary depending upon 
status and circumstance.' . . . `The fact that all persons, 
aliens and citizens alike, are protected by the Due Process 
Clause does not lead to the further conclusion that all aliens 
are entitled to enjoy all the advantages of citizenship. . . 
.'''\87\
---------------------------------------------------------------------------
    \87\Hernandez-Carrera, 547 F.3d at 1254 (quoting Zadvydas, 533 U.S. 
at 694 and Mathews v. Diaz, 426 U.S. 67, 78 (1976)).
---------------------------------------------------------------------------

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                    IMMIGRATION AND NATIONALITY ACT

           *       *       *       *       *       *       *
TITLE II--IMMIGRATION

           *       *       *       *       *       *       *

   Chapter 4--Inspection, Apprehension, Examination, Exclusion, and 
Removal

           *       *       *       *       *       *       *

 INSPECTION BY IMMIGRATION OFFICERS; EXPEDITED REMOVAL OF INADMISSIBLE 
                 ARRIVING ALIENS; REFERRAL FOR HEARING

    Sec. 235. (a) Inspection.--
            (1) * * *

           *       *       *       *       *       *       *

            (4) Withdrawal of application for admission.--An 
        alien applying for admission may, in the discretion of 
        the [Attorney General] Secretary of Homeland Security 
        and at any time, be permitted to withdraw the 
        application for admission and depart immediately from 
        the United States.

           *       *       *       *       *       *       *

    (b) Inspection of Applicants for Admission.--
            (1) Inspection of aliens arriving in the united 
        states and certain other aliens who have not been 
        admitted or paroled.--
                    (A) Screening.--
                            (i) * * *

           *       *       *       *       *       *       *

                            (iii) Application to certain other 
                        aliens.--
                                    (I) In general.--The 
                                [Attorney General] Secretary of 
                                Homeland Security may apply 
                                clauses (i) and (ii) of this 
                                subparagraph to any or all 
                                aliens described in subclause 
                                (II) as designated by the 
                                [Attorney General] Secretary of 
                                Homeland Security. Such 
                                designation shall be in the 
                                sole and unreviewable 
                                discretion of the [Attorney 
                                General] Secretary of Homeland 
                                Security and may be modified at 
                                any time.

           *       *       *       *       *       *       *

                    (B) Asylum interviews.--
                            (i) Conduct by asylum officers.--An 
                        asylum officer shall conduct interviews 
                        of aliens referred under subparagraph 
                        (A)(ii), either at a port of entry or 
                        at such other place designated by the 
                        [Attorney General] Secretary of 
                        Homeland Security.

           *       *       *       *       *       *       *

                            (iii) Removal without further 
                        review if no credible fear of 
                        persecution.--
                                    (I) * * *

           *       *       *       *       *       *       *

                                    (III) Review of 
                                determination.--The [Attorney 
                                General] Secretary of Homeland 
                                Security shall provide by 
                                regulation and upon the alien's 
                                request for prompt review by an 
                                immigration judge of a 
                                determination under subclause 
                                (I) that the alien does not 
                                have a credible fear of 
                                persecution. Such review shall 
                                include an opportunity for the 
                                alien to be heard and 
                                questioned by the immigration 
                                judge, either in person or by 
                                telephonic or video connection. 
                                Review shall be concluded as 
                                expeditiously as possible, to 
                                the maximum extent practicable 
                                within 24 hours, but in no case 
                                later than 7 days after the 
                                date of the determination under 
                                subclause (I).

           *       *       *       *       *       *       *

                            (iv) Information about 
                        interviews.--The [Attorney General] 
                        Secretary of Homeland Security shall 
                        provide information concerning the 
                        asylum interview described in this 
                        subparagraph to aliens who may be 
                        eligible. An alien who is eligible for 
                        such interview may consult with a 
                        person or persons of the alien's 
                        choosing prior to the interview or any 
                        review thereof, according to 
                        regulations prescribed by the [Attorney 
                        General] Secretary of Homeland 
                        Security. Such consultation shall be at 
                        no expense to the Government and shall 
                        not unreasonably delay the process.

           *       *       *       *       *       *       *

                    (C) Limitation on administrative review.--
                Except as provided in subparagraph 
                (B)(iii)(III), a removal order entered in 
                accordance with subparagraph (A)(i) or 
                (B)(iii)(I) is not subject to administrative 
                appeal, except that the [Attorney General] 
                Secretary of Homeland Security shall provide by 
                regulation for prompt review of such an order 
                under subparagraph (A)(i) against an alien who 
                claims under oath, or as permitted under 
                penalty of perjury under section 1746 of title 
                28, United States Code, after having been 
                warned of the penalties for falsely making such 
                claim under such conditions, to have been 
                lawfully admitted for permanent residence, to 
                have been admitted as a refugee under section 
                207, or to have been granted asylum under 
                section 208.

           *       *       *       *       *       *       *

            (2) Inspection of other aliens.--
                    (A) * * *

           *       *       *       *       *       *       *

                    (C) Treatment of aliens arriving from 
                contiguous territory.--In the case of an alien 
                described in subparagraph (A) who is arriving 
                on land (whether or not at a designated port of 
                arrival) from a foreign territory contiguous to 
                the United States, the [Attorney General] 
                Secretary of Homeland Security may return the 
                alien to that territory pending a proceeding 
                under section 240.

           *       *       *       *       *       *       *

    (c) Removal of Aliens Inadmissible on Security and Related 
Grounds.--
            (1) Removal without further hearing.--If an 
        immigration officer or an immigration judge suspects 
        that an arriving alien may be inadmissible under 
        subparagraph (A) (other than clause (ii)), (B), or (C) 
        of section 212(a)(3), the officer or judge shall--
                    (A) * * *
                    (B) report the order of removal to the 
                [Attorney General] Secretary of Homeland 
                Security; and
                    (C) not conduct any further inquiry or 
                hearing until ordered by the [Attorney General] 
                Secretary of Homeland Security.
            (2) Review of order.--(A) The [Attorney General] 
        Secretary of Homeland Security shall review orders 
        issued under paragraph (1).
            (B) If the [Attorney General] Secretary of Homeland 
        Security--
                    (i) * * *

           *       *       *       *       *       *       *

        the [Attorney General] Secretary of Homeland Security 
        may order the alien removed without further inquiry or 
        hearing by an immigration judge.
            (C) If the [Attorney General] Secretary of Homeland 
        Security does not order the removal of the alien under 
        subparagraph (B), the [Attorney General] Secretary of 
        Homeland Security shall specify the further inquiry or 
        hearing that shall be conducted in the case.
            (3) Submission of statement and information.--The 
        alien or the alien's representative may submit a 
        written statement and additional information for 
        consideration by the [Attorney General] Secretary of 
        Homeland Security.
    (d) Authority Relating to Inspections.--
            (1) * * *

           *       *       *       *       *       *       *

            (3) Administration of oath and consideration of 
        evidence.--The [Attorney General] Secretary of Homeland 
        Security and any immigration officer shall have power 
        to administer oaths and to take and consider evidence 
        of or from any person touching the privilege of any 
        alien or person he believes or suspects to be an alien 
        to enter, reenter, transit through, or reside in the 
        United States or concerning any matter which is 
        material and relevant to the enforcement of this Act 
        and the administration of the Service.
            (4) Subpoena authority.--(A) The [Attorney General] 
        Secretary of Homeland Security and any immigration 
        officer shall have power to require by subpoena the 
        attendance and testimony of witnesses before 
        immigration officers and the production of books, 
        papers, and documents relating to the privilege of any 
        person to enter, reenter, reside in, or pass through 
        the United States or concerning any matter which is 
        material and relevant to the enforcement of this Act 
        and the administration of the Service, and to that end 
        may invoke the aid of any court of the United States.

           *       *       *       *       *       *       *

    (e) Length of Detention.--
            (1) Notwithstanding any other provision of this 
        section, an alien may be detained under this section, 
        without limitation, until the alien is subject to an 
        final order of removal.
            (2) The length of detention under this section 
        shall not affect any detention under section 241.
    (f) Judicial Review.--Without regard to the place of 
confinement, judicial review of any action or decision made 
pursuant to subsection (e) shall be available exclusively in a 
habeas corpus proceeding instituted in the United States 
District Court for the District of Columbia and only if the 
alien has exhausted all administrative remedies (statutory and 
nonstatutory) available to the alien as of right.

                  APPREHENSION AND DETENTION OF ALIENS

    Sec. 236. (a) Arrest, Detention, and Release.--On a warrant 
issued by the [Attorney General] Secretary of Homeland 
Security, an alien may be arrested and detained pending a 
decision on whether the alien is to be removed from the United 
States. Except as provided in subsection (c) and pending such 
decision, the Secretary of Homeland Security or the Attorney 
General--
            (1) * * *
            (2) may release the alien on--
                    (A) bond of at least $1,500 with security 
                approved by, and containing conditions 
                prescribed by, the [Attorney General] Secretary 
                of Homeland Security; or
                    (B) [conditional parole] recognizance; but

           *       *       *       *       *       *       *

    (b) Revocation of Bond or Parole.--The [Attorney General] 
Secretary of Homeland Security at any time may revoke a bond or 
[parole] recognizance authorized under subsection (a), rearrest 
the alien under the original warrant, and detain the alien.
    (c) Detention of Criminal Aliens.--
            (1) Custody.--The [Attorney General] Secretary of 
        Homeland Security shall take into custody any alien 
        who--
                    (A) * * *

           *       *       *       *       *       *       *

        [when the alien is released, without regard to whether 
        the alien is released on parole, supervised release, or 
        probation, and without regard to whether the alien may 
        be arrested or imprisoned again for the same offense.]
        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.
            (2) Release.--The [Attorney General] Secretary of 
        Homeland Security may release an alien described in 
        paragraph (1) only if the [Attorney General] Secretary 
        of Homeland Security decides pursuant to section 3521 
        of title 18, United States Code, that release of the 
        alien from custody is necessary to provide protection 
        to a witness, a potential witness, a person cooperating 
        with an investigation into major criminal activity, or 
        an immediate family member or close associate of a 
        witness, potential witness, or person cooperating with 
        such an investigation, and the alien satisfies the 
        [Attorney General] Secretary of Homeland Security that 
        the alien will not pose a danger to the safety of other 
        persons or of property and is likely to appear for any 
        scheduled proceeding. A decision relating to such 
        release shall take place in accordance with a procedure 
        that considers the severity of the offense committed by 
        the alien.
    (d) Identification of Criminal Aliens.--(1) The [Attorney 
General] Secretary of Homeland Security shall devise and 
implement a system--
            (A) * * *

           *       *       *       *       *       *       *

    (e) Judicial Review.--The [Attorney General's] Secretary of 
Homeland Security's discretionary judgment regarding the 
application of this section shall not be subject to review. No 
court may set aside any action or decision by the [Attorney 
General] Secretary of Homeland Security under this section 
regarding the detention or release of any alien or the grant, 
revocation, or denial of bond or parole. Without regard to the 
place of confinement, judicial review of any action or decision 
made pursuant to subsection (f) shall be available exclusively 
in a habeas corpus proceeding instituted in the United States 
District Court for the District of Columbia and only if the 
alien has exhausted all administrative remedies (statutory and 
nonstatutory) available to the alien as of right.
    (f) Length of Detention.--
            (1) Notwithstanding any other provision of this 
        section, an alien may be detained under this section 
        for any period, without limitation, until the alien is 
        subject to a final order of removal.
            (2) The length of detention under this section 
        shall not affect detention under section 241 of this 
        Act.
    (g) Administrative Review.--
            (1) The Attorney General's review of the 
        Secretary's custody determinations under section 236(a) 
        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.
            (2) The Attorney General's review of the 
        Secretary's custody determinations for the following 
        classes of aliens:
                    (A) Aliens in exclusion proceedings.
                    (B) Arriving aliens in removal proceedings, 
                including aliens paroled after arrival pursuant 
                to section 212(d)(5).
                    (C) Aliens described in sections 212(a)(3) 
                and 237(a)(4).
                    (D) Aliens described in section 236(c).
                    (E) Aliens in deportation proceedings 
                subject to section 242(a)(2) of the Act (as in 
                effect prior to April 1, 1997, and as amended 
                by section 440(c) of Public Law 104-132); is 
                limited to a determination of whether the alien 
                is properly included in such category.

           *       *       *       *       *       *       *

            DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED

    Sec. 241. (a) Detention, Release, and Removal of Aliens 
Ordered Removed.--
            (1) Removal period.--
                    (A) In general.--Except as otherwise 
                provided in this section, when an alien is 
                ordered removed, the [Attorney General] 
                Secretary of Homeland Security shall remove the 
                alien from the United States within a period of 
                90 days (in this section referred to as the 
                ``removal period'').
                    [(B) Beginning of period.--The removal 
                period begins on the latest of the following:
                            [(i) The date the order of removal 
                        becomes administratively final.
                            [(ii) If the removal order is 
                        judicially reviewed and if a court 
                        orders a stay of the removal of the 
                        alien, the date of the court's final 
                        order.
                            [(iii) If the alien is detained or 
                        confined (except under an immigration 
                        process), the date the alien is 
                        released from detention or confinement.
                    [(C) Suspension of period.--The removal 
                period shall be extended beyond a period of 90 
                days and the alien may remain in detention 
                during such extended period if the alien fails 
                or refuses to make timely application in good 
                faith for travel or other documents necessary 
                to the alien's departure or conspires or acts 
                to prevent the alien's removal subject to an 
                order of removal.]
                    (B) Beginning of period.--The removal 
                period begins on the latest of the following:
                            (i) The date the order of removal 
                        becomes administratively final.
                            (ii) If the alien is not in the 
                        custody of the Secretary on the date 
                        the order of removal becomes 
                        administratively final, the date the 
                        alien is taken into such custody.
                            (iii) If the alien is detained or 
                        confined (except under an immigration 
                        process) on the date the order of 
                        removal becomes administratively final, 
                        the date the alien is taken into the 
                        custody of the Secretary, after the 
                        alien is released from such detention 
                        or confinement.
                    (C) Suspension of period.--
                            (i) Extension.--The removal period 
                        shall be extended beyond a period of 90 
                        days and the alien may remain 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 
                                making timely application in 
                                good faith for travel or other 
                                documents necessary to the 
                                alien's departure or conspires 
                                or acts to prevent the alien's 
                                removal 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; or
                                    (III) the Secretary 
                                transfers custody of the alien 
                                pursuant to law to another 
                                Federal agency or a State or 
                                local government agency in 
                                connection with the official 
                                duties of such agency.
                            (ii) Renewal.--If the removal 
                        period has been extended under clause 
                        (C)(i), a new removal period shall be 
                        deemed to have begun on the date--
                                    (I) the alien makes 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;
                                    (II) the stay of removal is 
                                no longer in effect; or
                                    (III) the alien is returned 
                                to the custody of the 
                                Secretary.
            (2) Detention.--During the removal period, the 
        [Attorney General] Secretary of Homeland Security shall 
        detain the alien. Under no circumstance during the 
        removal period shall the [Attorney General] Secretary 
        of Homeland Security release an alien who has been 
        found inadmissible under section 212(a)(2) or 
        212(a)(3)(B) or deportable under section 237(a)(2) or 
        237(a)(4)(B).
            (3) Supervision after 90-day period.--If the alien 
        does not leave or is not removed within the removal 
        period or is not detained pursuant to paragraph (6) of 
        this subsection, the alien, pending removal, shall be 
        subject to supervision under regulations prescribed by 
        the [Attorney General] Secretary of Homeland Security. 
        The regulations shall include provisions requiring the 
        alien--
                    (A) * * *

           *       *       *       *       *       *       *

                    (C) to give information under oath about 
                the alien's nationality, circumstances, habits, 
                associations, and activities, and other 
                information the [Attorney General] Secretary of 
                Homeland Security considers appropriate; and
                    [(D) to obey reasonable written 
                restrictions on the alien's conduct or 
                activities that the Attorney General prescribes 
                for the alien.]
                    (D) to obey reasonable restrictions on the 
                alien's conduct or activities that the 
                Secretary prescribes for the alien, 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.
            (4) Aliens imprisoned, arrested, or on parole, 
        supervised release, or probation.--
                    (A) In general.--Except as provided in 
                section 343(a) of the Public Health Service Act 
                (42 U.S.C. 259(a)) and [paragraph (2)] 
                subparagraph (B), the [Attorney General] 
                Secretary of Homeland Security may not remove 
                an alien who is sentenced to imprisonment until 
                the alien is released from imprisonment. 
                Parole, supervised release, probation, or 
                possibility of arrest or further imprisonment 
                is not a reason to defer removal.
                    (B) Exception for removal of nonviolent 
                offenders prior to completion of sentence of 
                imprisonment.--The [Attorney General] Secretary 
                of Homeland Security is authorized to remove an 
                alien in accordance with applicable procedures 
                under this Act before the alien has completed a 
                sentence of imprisonment--
                            (i) * * *
                            (ii) in the case of an alien in the 
                        custody of a State (or a political 
                        subdivision of a State), if the chief 
                        State official exercising authority 
                        with respect to the incarceration of 
                        the alien determines that (I) the alien 
                        is confined pursuant to a final 
                        conviction for a nonviolent offense 
                        (other than an offense described in 
                        section 101(a)(43)(C) or (E)), (II) the 
                        removal is appropriate and in the best 
                        interest of the State, and (III) 
                        submits a written request to the 
                        [Attorney General] Secretary of 
                        Homeland Security that such alien be so 
                        removed.

           *       *       *       *       *       *       *

            (5) Reinstatement of removal orders against aliens 
        illegally reentering.--If the [Attorney General] 
        Secretary of Homeland Security finds that an alien has 
        reentered the United States illegally after having been 
        removed or having departed voluntarily, under an order 
        of removal, the prior order of removal is reinstated 
        from its original date and is not subject to being 
        reopened or reviewed, the alien is not eligible and may 
        not apply for any relief under this Act, and the alien 
        shall be removed under the prior order at any time 
        after the reentry.
            [(6) Inadmissible or criminal aliens.--An alien 
        ordered removed who is inadmissible under section 212, 
        removable under section 237(a)(1)(C), 237(a)(2), or 
        237(a)(4) or who has been determined by the Attorney 
        General to be a risk to the community or unlikely to 
        comply with the order of removal, may be detained 
        beyond the removal period and, if released, shall be 
        subject to the terms of supervision in paragraph (3).]
            (6) Additional rules for detention or release of 
        certain aliens.--
                    (A) Detention review process for 
                cooperative aliens established.--For 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 of Homeland Security'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, and who has not conspired or acted 
                to prevent removal, the Secretary shall 
                establish an administrative review process to 
                determine whether the alien should be detained 
                or released on conditions. The Secretary shall 
                make a determination whether to release an 
                alien after the removal period in accordance 
                with subparagraph (B). The determination shall 
                include consideration of any evidence submitted 
                by the alien, and may include 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 exercise of 
                        the Secretary's discretion, may 
                        continue to detain an alien for 90 days 
                        beyond the removal period (including 
                        any extension of the removal period as 
                        provided in paragraph (1)(C)).
                            (ii) Specific circumstances.--The 
                        Secretary of Homeland Security, in the 
                        exercise of the Secretary's discretion, 
                        may continue to detain an alien beyond 
                        the 90 days authorized in clause (i)--
                                    (I) until the alien is 
                                removed, if 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 
                                        one or more aggravated 
                                        felonies (as defined in 
                                        section 101(a)(43)(A)) 
                                        or of one or more 
                                        crimes identified by 
                                        the Secretary of 
                                        Homeland Security by 
                                        regulation, or of one 
                                        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 
                                        one or more crimes of 
                                        violence (as defined in 
                                        section 16 of title 18, 
                                        United States Code, but 
                                        not including a purely 
                                        political offense) and, 
                                        because of a mental 
                                        condition or 
                                        personality disorder 
                                        and behavior associated 
                                        with that condition or 
                                        disorder, the alien is 
                                        likely to engage in 
                                        acts of violence in the 
                                        future; or
                                            (ee) 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 the 
                                        alien has been 
                                        convicted of at least 
                                        one aggravated felony 
                                        (as defined in section 
                                        101(a)(43)); or
                                    (III) pending a 
                                certification under subclause 
                                (II), so long as the Secretary 
                                of Homeland Security has 
                                initiated the administrative 
                                review process not later than 
                                30 days after the expiration of 
                                the removal period (including 
                                any extension of the removal 
                                period, as provided in 
                                paragraph (1)(C)).
                    (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 a 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 (ee) 
                        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 it is 
                determined that an alien should be released 
                from detention by a Federal court, the Board of 
                Immigration Appeals, or if an immigration judge 
                orders a stay of removal, the Secretary of 
                Homeland Security, in the exercise of the 
                Secretary's discretion, may impose conditions 
                on release as provided in paragraph (3).
                    (E) Redetention.--The Secretary of Homeland 
                Security, in the exercise of the Secretary's 
                discretion, without any limitations other than 
                those specified in this section, may again 
                detain any alien subject to a final removal 
                order who is released from custody, if removal 
                becomes likely in the reasonably foreseeable 
                future, the alien fails to comply with the 
                conditions of release, or to continue to 
                satisfy the conditions described in 
                subparagraph (A), or if, upon reconsideration, 
                the Secretary determines that the alien can be 
                detained under subparagraph (B). This section 
                shall apply to any alien returned to custody 
                pursuant to this subparagraph, as if the 
                removal period terminated on the day of the 
                redetention.
            (7) Employment authorization.--No alien ordered 
        removed shall be eligible to receive authorization to 
        be employed in the United States unless the [Attorney 
        General] Secretary of Homeland Security makes a 
        specific finding that--
                    (A) * * *

           *       *       *       *       *       *       *

            (8) Judicial review.--Without regard to the place 
        of confinement, judicial review of any action or 
        decision pursuant to this section shall be available 
        exclusively in habeas corpus proceedings instituted in 
        the United States District Court for the District of 
        Columbia, and only if the alien has exhausted all 
        administrative remedies (statutory and regulatory) 
        available to the alien as of right.

           *       *       *       *       *       *       *

                            Dissenting Views

                            I. INTRODUCTION

    The Due Process Clause of the Fifth Amendment to the 
Constitution states: ``No person . . . shall . . . be deprived 
of life, liberty, or property, without due process of law.''\1\ 
For more than 120 years, the Supreme Court has recognized that 
this provision ``applies to all `persons' within the United 
States, including aliens, whether their presence here is 
lawful, unlawful, temporary, or permanent.''\2\
---------------------------------------------------------------------------
    \1\U.S. Const. amend. V.
    \2\Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (citing Yick Wo v. 
Hopkins, 118 U.S. 356, 369 (1886)).
---------------------------------------------------------------------------
    The Supreme Court, in Zadvydas v. Davis, observed that 
``[f]reedom from imprisonment--from government custody, 
detention or other forms of physical restraint--lies at the 
heart of the liberty that [the Due Process] Clause 
protects.''\3\ In discussing the serious constitutional 
concerns that would be raised if a statute permitted the 
indefinite detention of civil immigration detainees, the Court 
in that case noted that it has ``upheld preventive detention 
based on dangerousness only when limited to specially dangerous 
individuals and subject to strong procedural protections.''\4\ 
The Court further observed, ``In cases in which preventive 
detention is of potentially indefinite duration, we have also 
demanded that the dangerousness rationale be accompanied by 
some other special circumstance, such as mental illness, that 
helps to create the danger.''\5\
---------------------------------------------------------------------------
    \3\Id. at 690.
    \4\Id. at 691.
    \5\Id. at 692.
---------------------------------------------------------------------------
    Rather than heed the Supreme Court's constitutional 
warnings, H.R. 1932, the ``Keep Our Communities Safe Act of 
2011,'' authorizes the indefinite and possibly permanent 
detention of civil immigration detainees with little or no 
procedural protections. At the Committee's markup of this 
legislation, the majority recognized that portions of H.R. 1932 
may contravene the Supreme Court's reasoning in Zadvydas, but 
cynically welcomed a constitutional challenge to the bill in 
light of the justices who now comprise the Court.\6\ Without 
question, H.R. 1932 is a direct attack on this decision and on 
the long-standing body of constitutional law that supported the 
Court's holding. Moreover, although the chief complaint of the 
bill's sponsors is that certain countries refuse to accept, or 
unreasonably delay the return of, their nationals, the bill 
does absolutely nothing to solve that problem.
---------------------------------------------------------------------------
    \6\Unofficial Tr. of Markup of H.R. 1932, the Keep Our Communities 
Safe Act of 2011, by the H. Comm. on Judiciary, 112th Cong. 73-78 
(2011) [hereinafter Markup Transcript], available at http://
judiciary.house.gov/hearings/pdf/
7%2014%2011%20HR%201932%20HR%202480%20HR
%201002.pdf.
---------------------------------------------------------------------------
    Additionally, although the bill's sponsor claims that ``the 
point of the bill is to detain dangerous and violent illegal 
immigrants and those who are a threat to our national 
security,''\7\ H.R. 1932 goes much further than that, as 
evidenced by the debate at the Committee's markup.\8\ H.R. 1932 
clearly authorizes, and in some cases mandates, the prolonged 
detention of asylum seekers, lawful permanent residents, aliens 
who entered without inspection, and other immigrants who pose 
no danger to the public, with no limit in time and few 
procedural protections. Authorizing or mandating prolonged 
detention of persons who pose no danger to the public is a 
waste of scarce resources. Moreover, because our detention 
capacity is vast, but finite, expanding detention to such 
populations will interfere with our ability to detain persons 
who pose an actual danger to the public and will make us less 
safe.
---------------------------------------------------------------------------
    \7\Id. at 25 (statement of Rep. Lamar Smith (R-TX)).
    \8\See Markup Transcript at 107.
---------------------------------------------------------------------------
    Finally, the legislation ignores traditional rules 
governing habeas corpus petitions and consolidates virtually 
all such petitions filed by immigration detainees into the U.S. 
District Court for the District of Columbia. According to the 
Judicial Conference of the United States, the American Bar 
Association, and the Courts, Lawyers and Administration of 
Justice Section of the District of Columbia Bar, such a move 
will seriously undermine the ability of persons to challenge 
the lawfulness of their detention and will bring the already 
overburdened D.C. District Court to its knees.\9\
---------------------------------------------------------------------------
    \9\Letter from Samuel W. Seymour, President, New York City Bar 
Association, to Rep. John Boehner & Rep. Nancy Pelosi (Sept. 20, 2011) 
(on file with the H. Comm. on the Judiciary, Democratic Staff); Letter 
from Fritz Mulhauser, Co-Chair, & Sean Staples, Co-Chair, Courts, 
Lawyers and the Administration of Justice Section, District of Columbia 
Bar, to Rep. Lamar Smith et al. (Aug. 3, 2011) [hereinafter DC Bar 
Letter] (on file with the H. Comm. on the Judiciary, Democratic Staff); 
Letter from Stephen N. Zack, President, American Bar Association, to 
Rep. Lamar Smith & Rep. John Conyers, Jr. (June 30, 2011) [hereinafter 
ABA Letter] (on file with the H. Comm. on the Judiciary, Democratic 
Staff); Letter from James C. Duff, Secretary, Judicial Conference of 
the United States, to Rep. Lamar Smith & Rep. John Conyers, Jr. (June 
1, 2011) [hereinafter Judicial Conference Letter] (on file with the H. 
Comm. on the Judiciary, Democratic Staff). Although Chairman Smith 
agreed after the bill's markup to remove all three habeas corpus 
consolidation provisions from H.R. 1932 before any further action is 
taken on the legislation, the reported version of the bill still 
includes the objectionable provisions. As a result, these views will 
discuss the reasons such provisions are objectionable and must not 
become law.
---------------------------------------------------------------------------
    H.R. 1932 is opposed by a broad cross section of 
constituencies, including constitutional law scholars, 
religious organizations, civil liberties and human rights 
groups, and refugee and immigrants right advocates.\10\
---------------------------------------------------------------------------
    \10\Michael Tan, Locking Up Immigrants Forever; The ``Keep Our 
Communities Safe Act'' (H.R. 1932), Immigration Policy Center (Sept. 
2011), available at http://www.immigrationpolicy.org/special-reports/
locking-immigrants-forever-keep-our-communities-safe-act%E2%80%9D-hr-
1932; Letter from Human Rights Watch, et al., to Rep. John Boehner & 
Rep. Nancy Pelosi (Sept. 30, 2011) (on file with the H. Comm. on the 
Judiciary, Democratic Staff); Keep Our Communities Safe Act of 2011: 
Hearing on H.R. 1932 Before the H. Subcomm. on Immigration Policy and 
Enforcement of the H. Comm. on the Judiciary, 112th Cong. (2011) 
[hereinafter H.R. 1932 Hearing] (statement of the American Immigration 
Lawyers Association); id. (joint statement of Human Rights 
Organizations); id. (statement of Human Rights First); id. (statement 
of Lutheran Immigration and Refugee Services); DC Bar Letter, supra 
note 9; Letter from Faith-Based Organizations and Faith Leaders, to 
Members of Congress (July 12, 2011) (on file with the H. Comm. on the 
Judiciary, Democratic Staff); ABA Letter, supra note 9; Judicial 
Conference Letter, supra note 9; Letter from Victoria Mendez, 
President, Cuban American Bar Association, to Rep. Lamar Smith & Rep. 
John Conyers, Jr. (May 23, 2011) (on file with the H. Comm. on the 
Judiciary, Democratic Staff); Letter from Antonio M. Ginatta, Advocacy 
Director, U.S. Program, Human Rights Watch, to Rep. Elton Gallegly & 
Rep. Zoe Lofgren (May 23, 2011) (on file with the H. Comm. on the 
Judiciary, Democratic Staff); Letter from Immigration and 
Constitutional Law Professors and Scholars, to Rep. Lamar Smith and 
Rep. John Conyers, Jr. (May 23, 2011) (on file with the H. Comm. on the 
Judiciary, Democratic Staff); Letter from America's Voice Education 
Fund, et al. to Rep. Elton Gallegly & Rep. Zoe Lofgren (May 23, 2011) 
(on file with the H. Comm. on the Judiciary, Democratic Staff); Letter 
from Mary Meg McCarthy, Executive Director, National Immigrant Justice 
Center, to Rep. Elton Gallegly & Rep. Zoe Lofgren (May 23, 2011) (on 
file with the H. Comm. on the Judiciary, Democratic Staff); Letter from 
Doua Thor, Executive Director, Southeast Asia Resource Action Center, 
to Rep. Elton Gallegly & Rep. Zoe Lofgren, May 23, 2011 (on file with 
the H. Comm. on the Judiciary, Democratic Staff); Letter from Mason C. 
Clutter, Counsel, Rule of Law Program, The Constitution Project, to 
Rep. Lamar Smith & Rep. John Conyers, Jr. (May 23, 2011) (on file with 
the House of Representatives Committee on the Judiciary, Democratic 
Staff); Letter from Vincent Cochetel, Regional Representative, United 
Nations High Commissioner for Refugees, to Rep. Elton Gallegly & Rep. 
Zoe Lofgren (May 23, 2011) (on file with the H. Comm. on the Judiciary, 
Democratic Staff); Letter from Emily Tucker, Director of Policy and 
Advocacy, Detention Watch Network, to Rep. Elton Gallegly & Rep. Zoe 
Lofgren (May 23, 2011) (on file with the H. Comm. on the Judiciary, 
Democratic Staff).
---------------------------------------------------------------------------
    For these reasons, and those discussed below, we 
respectfully dissent and urge our colleagues to reject this 
dangerous and unconstitutional legislation.

                             II. BACKGROUND

    In the context of civil immigration detention, courts have 
separately addressed the problems of ``indefinite detention,'' 
which refers to individuals who are subject to final orders of 
removal, but who are not likely to be removed in the reasonably 
foreseeable future, and ``prolonged detention,'' which refers 
to the lengthy detention of individuals who are not yet subject 
to final orders of removal. H.R. 1932 amends the Immigration 
and Nationality Act (INA) to expand both forms of detention 
without meaningful procedural protections and to restrict the 
ability of civil immigration detainees to challenge the 
legality of their detention in Federal court.
A. Indefinite Detention
    In Zadvydas v. Davis, the U.S. Supreme Court held that 
indefinite detention of a non-citizen who has been ordered 
removed, but whose removal is not significantly likely to occur 
in the reasonably foreseeable future, would raise serious 
constitutional concerns. The Court held further that preventive 
detention based on dangerousness is authorized only when 
limited to specially dangerous persons and only when 
accompanied by strong procedural protections. The Court noted 
that ``the Due Process Clause applies to all `persons' within 
the United States, including aliens, whether their presence 
here is lawful, unlawful, temporary, or permanent,'' and that 
``[f]reedom from imprisonment--from government custody, 
detention or other forms of physical restraint--lies at the 
heart of the liberty that Clause protects.''\11\
---------------------------------------------------------------------------
    \11\Zadvydas, 533 U.S. at 693, 690. The Court extended the holding 
in Zadvydas to persons ordered removed on grounds of inadmissibility in 
Clark v. Martinez, 543 U.S. 371 (2005).
---------------------------------------------------------------------------
    To avoid reaching that constitutional question, the Court 
construed the immigration laws to authorize detention only to 
the point where ``removal is no longer reasonably 
foreseeable.''\12\ The Court held that for persons who have 
been ordered deported, immigration authorities have a 
presumptively reasonable 6-month period in which to accomplish 
all removals. If, after 6 months, the government determines 
that the detainee's removal is not significantly likely to 
occur in the reasonably foreseeable future, the Department of 
Homeland Security (DHS) must release the detainee on conditions 
of supervision.\13\
---------------------------------------------------------------------------
    \12\Zadvydas, 533 U.S. at 699.
    \13\Id. at 701.
---------------------------------------------------------------------------
    The Supreme Court's decision in Zadvydas reversed a long-
standing policy of indefinitely detaining persons from 
countries that have historically obstructed our efforts to 
remove their nationals from the United States. This included 
Laos, Vietnam, Cuba, Cambodia, and several other countries. It 
also affected stateless persons such as Kestutis Zadvydas, who 
was born of Lithuanian parents in a displaced persons camp in 
Germany in 1948 and was a citizen of neither Lithuania, nor 
Germany.\14\
---------------------------------------------------------------------------
    \14\Id. at 684.
---------------------------------------------------------------------------
    In the aftermath of Zadvydas, DHS promulgated regulations 
requiring post-order custody reviews. Under these regulations, 
if DHS cannot remove a person within the 90-day removal period 
established in the INA,\15\ the government must provide a post-
order custody review to determine if the person can be 
released.\16\ If the person remains in detention 6 months after 
the removal order becomes final, another custody review must be 
conducted.\17\ The regulations provide for notice and an 
opportunity to submit written materials in support of release. 
A separate provision in the law also allows DHS to continue 
holding a person if that person is obstructing the government's 
efforts to facilitate removal.\18\
---------------------------------------------------------------------------
    \15\INA Sec. 241(a)(1).
    \16\8 C.F.R. Sec. 241.4.
    \17\Id.
    \18\Id.
---------------------------------------------------------------------------
    The Ninth Circuit Court of Appeals recently held that the 
Due Process Clause requires more robust procedural protections 
than those provided in the regulations.\19\ The regulations do 
not require an in-person hearing before a neutral arbiter, such 
as an Immigration Judge, and they require the detainee to prove 
that he or she is not a flight risk or a danger to the 
community, rather than requiring DHS to prove that continued 
deprivation of liberty is justified.
---------------------------------------------------------------------------
    \19\Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011).
---------------------------------------------------------------------------
    If a person cooperates in the government's removal efforts, 
the regulations permit preventive, indefinite detention beyond 
the point when civil immigration detention no longer serves its 
purpose of helping to effectuate removal only in limited 
circumstances involving threats to national security and public 
safety.\20\ If DHS invokes such grounds based upon a finding 
that the alien is ``specially dangerous,'' the detainee must 
have a hearing before an Immigration Judge at which DHS bears 
the burden of proving by clear and convincing evidence the 
appropriateness of continued detention.\21\
---------------------------------------------------------------------------
    \20\8 C.F.R. Sec. 241.14.
    \21\8 C.F.R. Sec. 241.14(f), (g), (h), (i).
---------------------------------------------------------------------------
    The Supreme Court has not yet ruled on whether the 
regulations permitting indefinite detention on these special 
grounds are permissible, but the circuit courts are split on 
that question. Although the Tenth Circuit Court of Appeals has 
approved the regulations, the Fifth and Ninth Circuits have 
struck them down.\22\
---------------------------------------------------------------------------
    \22\Cf. Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 
2008) with Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008); Thai v. 
Ashcroft, 366 F.3d 790 (9th Cir. 2004).
---------------------------------------------------------------------------
B. Prolonged and Mandatory Detention
    Under the current mandatory detention statute, Federal 
immigration officials are required to detain certain persons 
during their removal proceedings and cannot authorize their 
release on bond.\23\ Mandatory detention is an exception to the 
general rule, which gives U.S. Immigration and Customs 
Enforcement (ICE) officials the discretion to detain people in 
removal proceedings and the discretion to release them on bond 
or conditional parole pending the completion of their removal 
proceedings.\24\ Under the general rule, the amount of bond 
will be determined based on the person's risk of flight or 
danger to the community, and the person has the right to a bond 
hearing before an Immigration Judge on this issue. People 
subject to mandatory detention under section 236(c) of the INA 
do not get a bond hearing. Instead, they must remain in 
detention while their removal case is pending, even if they 
present no danger to the community or risk of flight.
---------------------------------------------------------------------------
    \23\INA Sec. 236(c).
    \24\INA Sec. 236(a).
---------------------------------------------------------------------------
    The Supreme Court has affirmed the constitutionality of 
mandatory detention under section 236(c), holding that 
detention can be required for certain persons for ``the brief 
period necessary'' for the conclusion of removal 
proceedings.''\25\ The record before the Court at that time 
indicated that 85 percent of cases involving mandatory 
detention under section 236(c) are completed within an average 
of 47 days.\26\
---------------------------------------------------------------------------
    \25\Demore v. Kim, 538 U.S. 510, 513 (2003).
    \26\Id. at 529.
---------------------------------------------------------------------------
    Based upon the Court's holding, lower courts have 
considered whether the prolonged detention of persons detained 
far beyond the ``brief period necessary'' for completion of 
removal proceedings raises serious constitutional concerns.\27\ 
In Nadarajah v. Gonzales, for instance, the Ninth Circuit 
granted a habeas corpus petition and ordered release of a Sri 
Lankan survivor of torture who requested asylum upon arriving 
in the United States.\28\ The man was detained for almost five 
years, notwithstanding the fact that an asylum officer found 
that he possessed a credible fear of persecution; an 
Immigration Judge twice granted his request for asylum and 
relief under the Convention Against Torture; and the Board of 
Immigration Appeals affirmed the Immigration Judge's grant of 
asylum. Similarly, Baskaran Balasundaram was a farmer in Sri 
Lanka who fled his homeland after suffering torture and 
persecution at the hands of the Tamil Tigers.\29\ Detained upon 
his arrival in the country, Mr. Balasundaram was detained for 7 
months before an Immigration Judge granted him asylum. 
Nevertheless, his detention continued for 17 more months while 
ICE pursued an administrative appeal of his case.\30\ Both men 
remained detained long after the grant of asylum only because 
DHS appealed their victories, and under the regulations it was 
DHS, rather than the Immigration Judge, who had authority to 
grant release.
---------------------------------------------------------------------------
    \27\See, e.g., Diop v. ICE/Homeland Security, No. 10-1113, slip op. 
at 16, 20 (3d Cir. Sept. 1, 2011) (holding that three-year long 
detention without a bond hearing violated due process and construing 
INA Sec. 236(c) as only authorizing detention ``for a reasonable amount 
of time'' before the government bears the burden of proving the 
necessity of continued detention at an individualized bond hearing; 
Casas-Castrillon v. DHS, 535 F.3d 942, 950 (9th Cir. 2008); Tijani v. 
Willis, 430 F.3d 1241, 1242 (9th Cir. 2005) (both construing INA 
Sec. 236(c) as only authorizing detention for ``expeditious'' removal 
proceedings in order to avoid the serious constitutional problem of 
prolonged mandatory detention); Ly v. Hansen, 351 F.3d 263, 271-72 (6th 
Cir. 2003) (construing INA Sec. 236(c) as only authorizing mandatory 
detention for the period of time reasonably needed to conclude 
proceedings promptly); Welch v. Ashcroft, 293 F.3d 213, 224 (4th Cir. 
2002) (holding that ``[f]ourteen months of incarceration . . . of a 
longtime resident alien with extensive community ties, with no chance 
of release and no speedy adjudication rights'' to be impermissible); 
Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455, 468-71 (D. Mass. 
2010) (construing INA Sec. 236(c) to implicitly require that removal 
proceedings be completed within a reasonable period of time; if not, 
detention can only continue after an individualized determination of 
flight risk and dangerousness); Alli v. Decker, 644 F. Supp. 2d 535, 
539 (M.D. Pa. 2009) (noting ``the growing consensus . . . throughout 
the federal courts'' that prolonged mandatory detention raises serious 
constitutional problems).
    \28\Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006).
    \29\H.R. 1932 Hearing (statement of Ahilan Arulanantham, Deputy 
Legal Director, American Civil Liberties Union of Southern California), 
supra note 10.
    \30\Maria Sacchetti, Man Held As Security Risk Released; Says He 
was Tortured in Sri Lanka, Boston Globe, July 10, 2010.
---------------------------------------------------------------------------
    Prolonged detention affects not only arriving asylum 
seekers, but also longtime lawful permanent residents. Warren 
Joseph, a lawful permanent resident and the father of five 
United States citizen children, is a decorated veteran of the 
first Gulf War.\31\ After struggling with Post Traumatic Stress 
Disorder, Mr. Joseph was convicted in 2001 of unlawfully 
purchasing a handgun. He fully cooperated with the Federal 
investigation and was given no jail time for this offense, but 
two years later he violated his parole by moving into his 
mother's house without providing notice to his probation 
officer. Upon completing his 6-month sentence, he was placed in 
removal proceedings and transferred to ICE custody. For more 
than three years, Mr. Joseph was detained by ICE pursuant to 
INA section 236(c), and was never provided a bond hearing or 
any independent review of the appropriateness or necessity of 
his continued detention. It was only when a Federal judge 
ordered a hearing on the appropriateness of his detention and 
the Immigration Judge granted relief than ICE decided to 
release him from custody.\32\
---------------------------------------------------------------------------
    \31\Tina Kelley, Veteran Facing Deportation Wins Hearing for 
Freedom, N.Y. Times, May 23, 2007; see also H.R. 1932 Hearing 
(statement of Ahilan Arulanantham, Deputy Legal Director, American 
Civil Liberties Union of Southern California), supra note 10.
    \32\H.R. 1932 Hearing (statement of Ahilan Arulanantham, Deputy 
Legal Director, American Civil Liberties Union of Southern California), 
supra note 10.
---------------------------------------------------------------------------

                      III. DESCRIPTION OF THE BILL

A. Indefinite Detention--Section 2(a)
    Section 2(a)(6) of H.R. 1932 authorizes indefinite, and 
possibly permanent, detention of persons who have been ordered 
removed and have cooperated with efforts to remove them. Unlike 
existing regulations that already authorize the continued 
detention of persons who are ``specially dangerous'' based upon 
a past conviction for a crime of violence and the existence of 
a mental condition that makes future acts of violence likely, 
section 2(a)(6) applies broadly even to persons who are not 
``specially dangerous.'' The bill authorizes indefinite 
detention for persons who have been convicted of a single 
aggravated felony, which can include minor, non-violent 
offenses. Moreover, whereas the regulations attempt to provide 
the strong procedural protections required by the Supreme Court 
for such preventive detention, section 2(a)(6) requires nothing 
more than a discretionary certification of dangerousness by the 
Secretary of Homeland Security and periodic administrative 
review.
    Section 2(a)(7) requires that all habeas corpus petitions 
challenging the legality of post-order detention be filed in 
the U.S. District Court for the District of Columbia. In 
general, habeas corpus petitions traditionally have been 
brought in the district court where the detainee is located.
B. Prolonged and Mandatory Detention--Section 2(b)
    Although the sponsor of H.R. 1932 states that it is 
intended only to protect Americans from ``dangerous criminal 
immigrants,''\33\ section 2(b)(2) of the bill authorizes the 
prolonged detention throughout removal proceedings of arriving 
asylum seekers and aliens who entered without inspection who 
have committed no crime and who pose no danger to the public 
and lawful permanent residents with minor convictions who are 
returning from foreign travel.\34\ Section 2(b)(2) also 
provides that the time an arriving alien spends in detention 
during removal proceedings ``shall not affect'' any 
determination about the reasonable length of detention 
following a final order of removal.
---------------------------------------------------------------------------
    \33\H.R. 1932 Hearing (statement of Rep. Lamar Smith), supra note 
10.
    \34\See 8 C.F.R. Sec. 1001.1(q); Sec. 235.3(b)(5) (classifying 
lawful permanent residents who return from foreign travel as ``arriving 
aliens'').
---------------------------------------------------------------------------
    Sections 2(b)(2) and 2(b)(3) limit challenges to the 
lawfulness of pre-order detention to habeas corpus proceedings 
filed in the U.S. District Court for the District of Columbia.
    Section 2(b)(4) makes a significant change to INA section 
236, the general pre-order immigration detention statute. As 
amended, section 2(b)(4) provides that all non-citizens subject 
to detention under INA Sec. 236 ``may be detained . . . without 
limitation, until the alien is subject to a final order of 
removal.''
    Section 2(b)(5) amends INA section 236(c), the mandatory 
detention statute, to require detention ``any time after the 
alien is released, without regard to whether the release is 
related to any activity, offense, or conviction described in 
this paragraph.'' This expands the scope of mandatory detention 
to include persons who have been at liberty for years and 
leading productive lives on the basis of old criminal offenses, 
rather than applying mandatory detention to non-citizens at the 
time of their release from sentences for designated crimes. It 
also adds a new provision stating that ``[i]f the [criminal] 
activity . . . does not result in the alien being taken into 
custody,'' DHS ``shall'' take custody ``when the presence of 
the alien in the United States is brought to the attention of 
[DHS] or when [DHS] determines it is practical to take such 
alien into custody.'' In addition, section 2(b)(5) amends INA 
section 236(c) such that, in certain instances, mere 
``activity'' will trigger mandatory detention, regardless of 
whether that ``activity'' gives rise to a formal charge, much 
less a conviction and criminal custody.
    Section 2(b)(6) restricts the Attorney General's review 
over custody under INA section 236(a) to three issues: 
``whether the alien may be detained, released on bond . . . or 
released with no bond.'' This provision prohibits Immigration 
Judges from setting conditions of release such as electronic 
monitoring, supervision appointments, curfews, and travel 
restrictions.
    Section 2(b)(6) also amends INA section 236 largely to 
codify regulations restricting the Attorney General's review of 
custody for certain classes of individuals to ``a determination 
of whether the alien is properly included in such category.'' 
The provision expressly bars Immigration Judges from making 
bond determinations for persons ``described in'' the mandatory 
detention statute and implicitly bars Immigration Judges from 
making bond determinations for asylum seekers and other 
arriving aliens detained pursuant to INA section 235.

                 IV. PRINCIPAL CONCERNS WITH H.R. 1932

A. LH.R. 1932 Would Unconstitutionally Permit Indefinite Detention of 
        Broad Categories of Immigrants with Virtually No Procedural 
        Protections
    As explained above, the Supreme Court in Zadvydas reviewed 
the strong due process protections that would be implicated by 
a statute authorizing indefinite detention of immigrants with 
final orders of removal who are cooperating with removal 
efforts, but who are not likely to be removed in the reasonably 
foreseeable future. The Supreme Court has ``upheld preventive 
detention based on dangerousness only when limited to specially 
dangerous individuals and subject to strong procedural 
protections.''\35\ In United States v. Salerno, the Supreme 
Court approved preventive detention of pre-trial criminal 
detainees under the Bail Reform Act because it involved 
stringent time limits, was reserved for the most serious of 
crimes, and required the government to prove dangerousness by 
clear and convincing evidence at a hearing before a Federal 
district court judge.\36\ Moreover, where preventive detention 
based on dangerousness may be indefinite in duration, the Court 
has required more than just special dangerousness; the Court 
has required proof of an additional factor, such as mental 
illness that makes it difficult, or impossible, for the person 
to control his dangerous behavior.\37\
---------------------------------------------------------------------------
    \35\Zadvydas, 533 U.S. at 691.
    \36\United States v. Salerno, 481 U.S. 739, 747 (1987). In Foucha 
v. Louisiana, the Court invalidated a civil commitment statute placing 
the burden on the detainee to prove nondangerousness at a hearing. 
Foucha v. Louisiana, 504 U.S. 71, 81-82 (1992).
    \37\Kansas v. Hendricks, 521 U.S. 346, 358-60 (1997).
---------------------------------------------------------------------------
    H.R. 1932 is unconstitutional because it authorizes 
indefinite detention for a broad set of persons without regard 
for special dangerousness. The bill permits ICE to indefinitely 
detain a person convicted of one ``aggravated felony.'' As 
defined in the INA, a crime can be an aggravated felony even if 
it was neither aggravated, nor a felony.\38\ Nearly any drug 
offense (including most drug possession) is an aggravated 
felony, and the term can include petty offenses, such as 
passing a bad check as well as shoplifting, with a prior 
conviction. Although indefinite detention on such a ground also 
requires the Secretary of Homeland Security or Assistant 
Secretary for ICE to certify that release will ``threaten the 
safety of the community or any person'' and that ``conditions 
of release cannot reasonably be expected to ensure the safety 
of the community or any person,'' the language is so broadly 
written that it could unconstitutionally authorize the 
detention of persons who are not ``specially dangerous.'' 
Moreover, the language does not require that any additional 
factor, such as mental illness, be present, notwithstanding the 
fact that such detention may be indefinite in duration.
---------------------------------------------------------------------------
    \38\See INA Sec. 101(a)(43).
---------------------------------------------------------------------------
    The bill also falls woefully short of the constitutional 
requirements for ``strong procedural protections.'' Under H.R. 
1932, a person could be held indefinitely based upon a mere 
certification by a government official. The person is not 
entitled to a hearing before an Immigration Judge or even a 
personal interview. And although approximately 84 percent of 
immigration detainees are unrepresented in removal 
proceedings,\39\ there is no requirement of appointment of 
counsel in connection with this preventive detention decision. 
As Pepperdine University School of Law Professor Bruce J. 
Einhorn, who was formerly an Immigration Judge and Federal 
prosecutor, observed when criticizing this bill, ``[T]his 
country's fundamental notions of fairness and due process 
dictate that if someone is to be imprisoned, that should occur 
only after a full and fair hearing.''\40\
---------------------------------------------------------------------------
    \39\The Executive Office for Immigration Review: Hearing Before the 
H. Subcomm. on Immigration, Citizenship, Refugees, Border Security and 
International Law of the H. Comm. on the Judiciary, 111th Cong (2010) 
(statement of Karen T. Grisez, Chair, Commission on Immigration, 
American Bar Association).
    \40\Bruce J. Einhorn, ``Keep Our Communities Safe Act'' Takes the 
Wrong Approach, The Hill's Congressional Blog, July 27, 2011.
---------------------------------------------------------------------------
    And Asa Hutchinson, former Republican congressman and DHS 
undersecretary, made a similar point in an op-ed criticizing 
the bill. Hutchinson wrote: ``If America stands for anything in 
the world (and it does), it is that our government cannot 
detain individuals without providing an opportunity for 
meaningful, independent review. This right, which belongs to 
the innocent and guilty alike, should also extend to the 
noncitizen awaiting removal to his home country.''\41\
---------------------------------------------------------------------------
    \41\Asa Hutchinson, ``Let's Use a Scalpel with Detention Bill,'' 
Houston Chron., Sept. 23, 2011.
---------------------------------------------------------------------------
    While H.R. 1932 provides no procedural protections 
whatsoever, current Federal law offers robust procedural 
protections for persons suffering from mental illness who may 
be involuntarily hospitalized at the end of their prison 
sentences on the ground that they present a danger to the 
public that cannot be mitigated.\42\ The law provides for the 
appointment of counsel, requires the government to prove its 
case by clear and convincing evidence before a Federal district 
court judge, and mandates treatment if detention is warranted. 
States also have procedures for civil commitment and 
involuntary hospitalization and those procedures generally are 
available for persons being released from immigration 
detention. And as described above, current immigration 
regulations provide for further detention in these limited 
circumstances, but they require ICE to demonstrate to an 
Immigration Judge by clear and convincing evidence the 
appropriateness of further detention.\43\
---------------------------------------------------------------------------
    \42\18 U.S.C. Sec. 4246.
    \43\8 C.F.R. Sec. 241.14
---------------------------------------------------------------------------
    While the bill's proponents would argue that the existence 
of habeas corpus provides sufficient procedural protection for 
persons condemned to indefinite detention by the stroke of a 
pen, that argument is mistaken for two principal reasons. 
First, as a practical matter the bill's consolidation of all 
immigration detention habeas corpus petitions into the D.C. 
District Court substantially diminishes the likelihood that 
such petitions will be handled promptly. As discussed further 
below, the consolidation of habeas corpus petitions in this 
bill is an attack on judicial review and it degrades The Great 
Writ that is protected by our Constitution and at the heart of 
our very democracy.
    Second, because the writ of habeas corpus is designed to be 
a final stopgap to prevent the unlawful deprivation of liberty, 
it cannot, by itself, make constitutional an unconstitutionally 
designed system. For instance, the Sixth Amendment guarantees 
the right to counsel and a jury trial in certain criminal 
matters. If Congress enacted a law that provided for criminal 
punishment without the rights guaranteed by the Sixth 
Amendment, the fact that the prisoner would retain the right to 
challenge the lawfulness of his imprisonment would not save the 
statute from being ruled unconstitutional. Similarly, the 
Supreme Court has made it amply clear that preventive detention 
such as that authorized by H.R. 1932 is constitutional only 
where limited to special circumstances and only when 
accompanied by strong procedural protections. H.R. 1932 is 
unconstitutional because it falls far short of both of those 
requirements and the bill cannot be saved simply by the fact 
that detainees may still challenge their detention through 
writs of habeas corpus.
B. LH.R. 1932 Does Absolutely Nothing To Address the Problem of 
        Countries Who Refuse to Accept, or Significantly Delay, the 
        Return of Persons Ordered Removed From the United States.
    In addition to being unconstitutional, the bill does 
nothing to solve the problem that section 2(a) of the bill 
purports to address--namely, the problem of countries who 
refuse to accept, or significantly delay, the return of persons 
ordered removed from the United States. Except in the case of 
persons who are truly stateless, the issue of indefinite 
detention only arises when a country resists efforts to return 
its nationals. Some countries are worse than others in this 
respect. Although the United States has diplomatic relations 
with China and India, for instance, both countries are often 
very slow to help us process travel documents. Cuban nationals 
make up approximately one-half of all indefinite detainees in 
our custody at any given point and although we have returned 
some people to Cuba, we generally are unable to do so because 
we lack diplomatic ties with that country.
    Current law provides only one tool by which we can 
influence countries that resist efforts to return their 
nationals. INA section 243(d) provides that if the Secretary of 
Homeland Security notifies the Secretary of State that a 
foreign government is denying or unreasonably delaying the 
return of one of its nationals, the Secretary of State must 
order consular officers to deny future immigrant visas or 
nonimmigrant visas, or both, until the situation is resolved.
    Denying all immigrant and/or nonimmigrant visas would be an 
extremely serious sanction. Exercising this authority would 
punish Americans who have waited years to reunite with family 
members and businesses that have hired persons with needed 
skills. Because tourism is a critical industry for America, 
denying all nonimmigrant visas from a particular country (such 
as China) also would harm our Nation's economy. Finally, 
placing such a powerful tool in the hands of DHS--which is not 
principally charged with visa issuance and maintenance of 
diplomatic ties--raises foreign policy concerns.
    At a legislative hearing on H.R. 1932 before the 
Subcommittee on Immigration Policy and Enforcement, we learned 
that ICE and the State Department recently signed a Memorandum 
of Agreement (MOA) that lays out a series of steps that they 
can take to influence countries to accept return of their 
nationals.\44\ Although use of INA section 243(d) is the most 
serious step that can be taken, the State Department can begin 
by issuing a demarche (a formal diplomatic statement of views) 
and can escalate from there. ICE testified that the MOA is 
already beginning to make a difference; after a recent meeting, 
Bangladesh processed several long-delayed cases and China has 
begun to make improvements.\45\
---------------------------------------------------------------------------
    \44\H.R. 1932 Hearing (statement of Gary Mead, Associate Executive 
Director, Enforcement and Removal Operations, U.S. Immigration and 
Customs Enforcement), supra note 10.
    \45\Id.
---------------------------------------------------------------------------
    An amendment offered by Rep. Zoe Lofgren that would have 
provided the State Department with additional tools to address 
this problem, such as the authority to deny diplomatic visas to 
officials from recalcitrant foreign governments that refuse to 
timely accept return of their nationals, was ruled non-germane 
by the Chairman of the Judiciary Committee.\46\
---------------------------------------------------------------------------
    \46\Markup Transcript, supra note 6, at 7-13.
---------------------------------------------------------------------------
C. LH.R. 1932 Authorizes the Prolonged Detention--Without Even a Bond 
        Hearing--of Aliens Who Entered Without Inspection and All 
        Arriving Aliens, Including Asylum Seekers and Returning Lawful 
        Permanent Residents Who Pose Neither a Danger to the Public, 
        Nor a Flight Risk.
    Although H.R. 1932 purports to be about community safety 
and ``dangerous aliens,'' section 2(b) of the bill would permit 
the prolonged detention of persons who are neither a danger to 
the public, nor a flight risk. Sections 2(b)(2) and 2(b)(6) of 
the legislation provide that all aliens who entered without 
inspection and all arriving aliens may be detained without any 
limitation in time and that Immigration Judges shall not have 
jurisdiction to consider whether such aliens pose a danger to 
the public or a risk of flight. Under this bill, persons who 
request asylum at the airport and are found to have a credible 
fear of persecution may be detained by DHS for years without 
ever having an opportunity for a hearing to test the necessity 
or appropriateness of their detention. Such persons would still 
be eligible for release based on the Secretary's discretion, 
but they would have no right to an impartial hearing.
    Detaining a person who poses neither a danger to the 
community, nor a risk of flight, is not only poor policy, but 
it is also extremely costly. According to DHS's budget 
justification to Congress for Fiscal Year 2012, the average 
daily bed rate for a person in immigration custody is $122 or 
nearly $45,000 per year.\47\ At the legislative hearing on this 
bill, Chairman Smith argued that the extraordinary cost of 
prolonged detention is justified by the added security it 
provides to members of the public. He said:
---------------------------------------------------------------------------
    \47\U.S. Department of Homeland Security, Fiscal Year 2012 
Congressional Budget Justification, at 938, available at http://
www.dhs.gov/xlibrary/assets/dhs-congressional-budget-justification-
fy2012.pdf.
---------------------------------------------------------------------------
    [I]t just seems to me that considering the thousands of 
preventable crimes that occur every year, including the murder 
of police officers, that we ought not be so concerned about the 
$45,000 a year. We ought to be more concerned about the safety 
and lives of innocent Americans.\48\
---------------------------------------------------------------------------
    \48\H.R. 1932 Hearing, supra note 10.
---------------------------------------------------------------------------
    Nevertheless, Judiciary Republicans at the Committee's 
markup of this bill voted down an amendment offered by Ranking 
Member John Conyers, Jr. that would have stricken only the 
portions of the bill that authorize prolonged detention of non-
criminal aliens who entered without inspection and arriving 
asylum seekers and returning lawful permanent residents who 
pose neither a danger to the public, nor a risk of flight.\49\
---------------------------------------------------------------------------
    \49\Markup Transcript, supra note 6, at 105-25.
---------------------------------------------------------------------------
D. LH.R. 1932 Authorizes the Mandatory Detention--Without Consideration 
        for Bond--of Lawful Permanent Residents with Old Convictions 
        Who Pose Neither a Danger to the Public, Nor a Flight Risk
    Just as Section 2(b)(2) of the bill gives DHS complete 
authority to detain for a prolonged period of time certain 
persons who are neither a danger to the public, nor a flight 
risk, section 2(b)(5) expands the mandatory detention of 
persons, without the possibility of release on bond and without 
consideration of whether detention is necessary. INA section 
236(c), the mandatory detention statute, already applies to 
persons who: (1) are inadmissible or deportable on account of 
certain enumerated criminal grounds of removal, and (2) have 
been ``released'' from custody for such an offense. In 
reviewing current law, lower courts around the country have 
recognized that prolonged mandatory detention with no 
opportunity for an independent review of the appropriateness of 
continued detention raises serious constitutional problems.\50\
---------------------------------------------------------------------------
    \50\See supra note 27.
---------------------------------------------------------------------------
    Section 2(b)(5) greatly expands the number of people 
subject to mandatory detention by eliminating the requirement 
that the release from criminal custody be tied to the offense 
triggering mandatory detention. This means that mandatory 
detention would apply to individuals who have long since been 
released from criminal custody for any offense listed in the 
statute and who are now leading productive lives in the 
community. The language also eliminates the requirement that 
there be any prior criminal custody at all; it applies 
mandatory detention to mere ``activity,'' regardless of whether 
that ``activity'' gave rise to a formal charge, much less a 
conviction and a prison or jail sentence.
    Without the legislation, such persons would still be 
eligible for detention if they posed a danger to the public or 
represented a risk of flight. Mandating their detention, 
without permitting ICE or an Immigration Judge to consider 
release on bond, is unwise, inefficient, and raises serious 
constitutional concerns.
E. LGiven Limited Resources and Available Bed Space, the Expansion of 
        Unnecessary Detention in H.R. 1932 Will Make Us Less Safe
    The stated purpose of H.R. 1932 is to protect the American 
public from ``dangerous and violent illegal immigrants and 
those who are a threat to our national security.''\51\ The 
bill, however, authorizes prolonged detention of persons 
fleeing persecution and torture and expands the mandatory 
detention of people who pose neither a threat to the public, 
nor a risk of flight. Given the reality that our immigration 
detention resources are great, but limited, increasing the 
detention of persons who pose no threat to American society 
will necessarily diminish our ability to detain persons who do 
pose such a threat. If this bill were enacted, not only would 
it waste American taxpayers' money before being struck down as 
unconstitutional, but it actually would have the perverse 
effect of making us less safe.\52\
---------------------------------------------------------------------------
    \51\Markup Transcript, supra note 6, at 25.
    \52\As Pepperdine University School of Law Professor Bruce Einhorn 
observed, ``[T]he bill is unwarranted and would only serve to 
overburden taxpayers and divert time, money, and attention from other 
resources that serve to actually keep our communities safe.'' Einhorn, 
supra note at 40.
---------------------------------------------------------------------------
F. LBy Consolidating All Habeas Corpus Petitions into the U.S. District 
        Court for the District of Columbia, H.R. 1932 Will Overwhelm 
        the Court and Unfairly Burden Distant Litigants
    The ability to petition for a writ of habeas corpus to 
challenge the legality of detention is a fundamental guarantee 
of the Constitution and one of the few remaining tools 
available to immigration detainees. In general, habeas corpus 
petitions have traditionally been brought in the district court 
where the detainee is located.
    The legislation disrupts this rule by requiring all 
immigration detention habeas petitions challenging the legality 
of mandatory, prolonged, and indefinite detention to be filed 
in the U.S. District Court for the District of Columbia. 
Consolidating all immigration detention habeas petitions from 
around the United States into one Federal district court will 
overwhelm that court. In the District of Columbia, several 
hundred habeas corpus petitions filed by persons detained at 
the Guantanamo facility forced the court to adopt a resolution 
for the coordination and management of such cases.\53\ Chief 
Judge Royce Lamberth recently stated that because of the 
pending habeas corpus petitions, ``We plan to try very few 
civil cases this spring and summer [2011]. . . . This is as bad 
as I've seen it.''\54\
---------------------------------------------------------------------------
    \53\Jennifer K. Elsea & Michael John Garcia, Enemy Combatant 
Detainees: Habeas Corpus Challenges in Federal Court, Congressional 
Research Service, RL33180 at 38-39 (Apr. 5, 2010).
    \54\Bill Mears, Judicial Nominee Logjam Creates ``Crisis'' in Some 
Federal Courts, CNN (Mar. 4, 2011), at: http://articles.cnn.com/2011-
03-03/politics/arizona.judicial.logjam_1_chief-judge-john-roll-federal-
courts-federal-judges?_s=PM:POLITICS.
---------------------------------------------------------------------------
    The Courts, Lawyers and Administration of Justice Section 
of the District of Columbia Bar has expressed concern that 
enactment of this bill could funnel as many as one thousand 
habeas corpus petitions annually into the U.S. District Court 
for the District of Columbia, which would represent a 33% 
increase in the caseload of the court.\55\ According to the 
Section, ``That added volume has the potential to substantially 
and negatively affect the ability of the court to handle its 
other important business.''\56\
---------------------------------------------------------------------------
    \55\DC Bar Letter, supra note 9.
    \56\Id.
---------------------------------------------------------------------------
    Moreover, because immigration detainees are not entitled to 
government-paid counsel and are frequently housed in remote 
locations far from family and friends, they must already 
overcome significant barriers to seek habeas relief. 
Consolidating all such cases in the D.C. District Court may 
diminish the willingness of attorneys to represent detainees in 
such actions. According to the American Bar Association, ``The 
bill's provisions would increase the expense of pursuing 
judicial review of detention for those who are detained in 
facilities far distant from the District of Columbia, and would 
be particularly burdensome or even prohibitive for immigrants 
represented by non-profit agencies or pro bono counsel.''\57\ 
The Judicial Conference of the United States, the principal 
policymaking body for the judicial branch, similarly noted in a 
letter to the Committee that ``individual litigants may be 
unfairly burdened by a system of exclusive review in a distant 
tribunal.''\58\
---------------------------------------------------------------------------
    \57\ABA Letter, supra note 9.
    \58\Judicial Conference Letter, supra note 9.
---------------------------------------------------------------------------
    An amendment offered by Rep. Jerrold Nadler that would have 
stricken the three provisions in the bill consolidating habeas 
corpus petitions into D.C. District Court was opposed by 
Chairman Smith, who argued that consolidation was necessary 
because ``district courts around the country have applied the 
Zadvydas principles in an inconsistent manner with respect to 
habeas proceedings.''\59\ But differences of opinion between 
district courts are not resolved by consolidating cases into a 
single forum. Rather, such differences are meant to percolate 
through our judicial system, first resulting in rulings from 
our twelve circuit courts of appeal and then, where there are 
differences among the circuits, in definitive rulings from the 
Supreme Court. The consolidation provisions in H.R. 1932 
undermine this core feature of our judicial system.
---------------------------------------------------------------------------
    \59\Markup Transcript, supra note 6, at 86-93.
---------------------------------------------------------------------------
    During the debate, Chairman Smith indicated his willingness 
to discuss Rep. Nadler's amendment before the bill moves to the 
House Floor.\60\ Based upon this commitment, Rep. Nadler agreed 
to withdraw his amendment.\61\ We understand that Chairman 
Smith has agreed to strike all three provisions of the bill 
consolidating habeas corpus petitions into the D.C. District 
Court before further action is taken on the bill. We appreciate 
the Chairman's efforts to negotiate over these provisions and 
are pleased with the agreement that was struck pertaining to 
these provisions.
---------------------------------------------------------------------------
    \60\Id. at 94-95.
    \61\Id. at 97.
---------------------------------------------------------------------------

                             V. CONCLUSION

    As we began the 112th Congress, we consistently heard two 
main themes from the new Majority. First, we must honor the 
Constitution and protect basic civil liberties. Second, we need 
to cut the budget and exercise fiscal responsibility.
    Unfortunately, H.R. 1932 achieves neither of these goals. 
By authorizing the prolonged and indefinite detention of 
persons with little or no procedural protections, the bill is a 
massive expansion of government authority with no respect for 
the constitutionally protected liberty interest. And while the 
bill's short title would suggest that its goal is to ``Keep Our 
Communities Safe,'' expanding prolonged detention without a 
bond hearing to arriving asylum seekers, non-criminal aliens 
who entered without inspection, and other immigrants who pose 
no risk to the public will only make us less safe.
    H.R. 1932 is an extremely costly and largely 
unconstitutional response to a problem that the bill does not 
even attempt to remedy. For all of these reasons, we 
respectfully dissent and urge our colleagues to reject this 
legislation.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Steve Cohen.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Pedro R. Pierluisi.
                                   Mike Quigley.
                                   Judy Chu.
                                   Ted Deutch.
                                   Linda T. Sanchez.

                                  

```