II

104TH CONGRESS

1ST SESSION S. 179

To amend the Immigration and Nationality Act to facilitate the apprehension,

detention, and deportation of criminal aliens, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 9, 1995

Mr. ROTH introduced the following bill; which was read twice and referred to

the Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act to facilitate

the apprehension, detention, and deportation of criminal

aliens, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Criminal Alien Control

5 Act of 1995’’.

6 SEC. 2. TABLE OF CONTENTS.

7 The following is the table of contents for this Act:

Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I—DEPORTATION OF CRIMINAL ALIENS

Sec. 101. Equal immigration treatment to all alien felons.
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Sec. 102. Deportation procedures for certain criminal aliens.

Sec. 103. Judicial deportation.

Sec. 104. Uncontested deportations.

Sec. 105. Restricting defenses to deportation for certain criminal aliens.

Sec. 106. Extraterritorial appeals by criminal aliens.

Sec. 107. Collateral attacks on underlying deportation order.

Sec. 108. Restriction on asylum for criminal aliens.

Sec. 109. Federal incarceration.

Sec. 110. Form of deportation hearings.

Sec. 111. Construction of expedited deportation requirements.

TITLE II—LOCAL COOPERATION WITH FEDERAL OFFICIALS AND

PROCEDURES

Sec. 201. Funding based on cooperation.

Sec. 202. Production of criminal records.

TITLE III—MISCELLANEOUS

Sec. 301. Detention of undocumented criminal aliens at military installations to

be closed.

Sec. 302. Authorizing registration of aliens on criminal probation or criminal

parole.

Sec. 303. Admissible evidence before a special inquiry officer.

1 TITLE I—DEPORTATION OF

2 CRIMINAL ALIENS

3 SEC. 101. EQUAL IMMIGRATION TREATMENT TO ALL ALIEN

4 FELONS.

5 (a) FELONIES.—(1) Sections 101(f) (8 U.S.C.

6 1101(f)); 106(a) (8 U.S.C. 1105a(a)); 208(d) (8 U.S.C.

7 1158(d)); 212(a)(6)(B) (8 U.S.C. 1182(a)(6)(B));

8 236(e)(i) (8 U.S.C. 1226(e)(i)); 241(a)(2)(A) (8 U.S.C.

9 1251(a)(2)(A)); 242 (8 U.S.C. 1252(a)); 242A(d) (8

10 U.S.C. 1252a); 242B(c) (8 U.S.C. 1252b(c)); 243(h) (8

11 U.S.C. 1253(h)); 244(e) (8 U.S.C. 1254(e)); and 277 (8

12 U.S.C. 1327) are amended by striking ‘‘aggravated fel13 ony’’, ‘‘an aggravated felony’’, and ‘‘aggravated felonies’’
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1 each place they appear and inserting in lieu thereof ‘‘fel2 ony’’, ‘‘a felony’’, or ‘‘felonies’’, respectively.

3 (2) Section 101(a) of the Immigration and National4 ity Act (8 U.S.C. 1101(a)) is amended by adding at the

5 end the following new paragraph:

6 ‘‘(47) The term ‘felony’ means any offense

7 under Federal or State law that is punishable by

8 death or imprisonment for more than 1 year.’’.

9 (b) PRECLUSION OF JUDICIAL REVIEW.—Section

10 106(c) of the Immigration and Nationality Act (8 U.S.C.

11 1105a(c)) is amended—

12 (1) by inserting ‘‘(1)’’ immediately after ‘‘(c)’’;

13 and

14 (2) by adding at the end the following:

15 ‘‘(2) An order of deportation or of exclusion shall not

16 be reviewed by any court of the United States if the

17 grounds for such order is the commission of a felony by

18 the alien, except that the Attorney General may defer de19 portation or exclusion of the alien pending judicial review

20 if the Attorney General determines that to do otherwise

21 would cause hardship to the alien.’’.
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1 SEC. 102. DEPORTATION PROCEDURES FOR CERTAIN

2 CRIMINAL ALIENS.

3 (a) IN GENERAL.—Section 242A(a) of the Immigra4 tion and Nationality Act (8 U.S.C. 1252a(a)) is amend5 ed—

6 (1) in paragraph (1), by inserting ‘‘permanent

7 resident’’ after ‘‘correctional facilities for’’;

8 (2) in paragraph (2) by striking ‘‘respect to an’’

9 and inserting ‘‘respect to a permanent resident’’;

10 and

11 (3) in paragraph 3, by inserting ‘‘permanent

12 resident’’ after ‘‘in the case of any’’.

13 (b) DEPORTATION OF ALIENS WHO ARE NOT PER14 MANENT RESIDENTS.—Section 242A(b)(1) of such Act is

15 amended by striking ‘‘Attorney General may’’ and insert16 ing ‘‘Attorney General shall’’.

17 (c) PRESUMPTION OF DEPORTABILITY.—Section

18 242A of such Act (8 U.S.C. 1252a) is amended by adding

19 at the end the following new subsection:

20 ‘‘(d) PRESUMPTION OF DEPORTABILITY.—An alien

21 convicted of an aggravated felony shall be conclusively pre22 sumed to be deportable from the United States.’’.

23 (d) LIMITED JUDICIAL REVIEW.—Section 106(d) of

24 the Immigration and Nationality Act (8 U.S.C. 1105a) is

25 amended to read as follows:
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1 ‘‘(d) Notwithstanding subsection (c), a petition for

2 review or for habeas corpus on behalf of an alien described

3 in section 242A(c) may only challenge whether the alien

4 is in fact an alien described in such section, and no court

5 shall have jurisdiction to review any other issue.’’.

6 (e) EFFECTIVE DATE.—The amendments made by

7 this section shall apply to all aliens against whom deporta8 tion proceedings are initiated after the date of enactment

9 of this Act.

10 SEC. 103. JUDICIAL DEPORTATION.

11 (a) JUDICIAL DEPORTATION.—Section 242A of the

12 Immigration and Nationality Act (8 U.S.C. 1252a) is

13 amended by adding at the end the following new sub14 section:

15 ‘‘(c) JUDICIAL DEPORTATION.—

16 ‘‘(1) AUTHORITY.—Notwithstanding any other

17 provision of this Act, a United States district court

18 or a State court shall have jurisdiction to enter a ju19 dicial order of deportation at the time of sentencing

20 against an alien whose criminal conviction causes

21 such alien to be deportable under section

22 241(a)(2)(A)(iii) (relating to conviction of a felony).

23 ‘‘(2) PROCEDURE.—(A) The United States At24 torney or, in the case of a proceeding before a State

25 court, the State’s attorney general, shall provide no-
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1 tice of intent to request judicial deportation prompt2 ly after the entry in the record of an adjudication

3 of guilt or guilty plea. Such notice shall be provided

4 to the court, to the alien, to the alien’s counsel of

5 record, and to the Commissioner.

6 ‘‘(B) Notwithstanding section 242B—

7 ‘‘(i) in the case of a proceeding before a

8 United States court, the United States Attor9 ney, with the concurrence of the Commissioner,

10 or

11 ‘‘(ii) in the case of a proceeding before a

12 State court, the State’s attorney general,

13 shall, at least 20 days before the date set for sen14 tencing, file a charge containing factual allegations

15 regarding the alienage of the defendant and satisfac16 tion by the defendant of the definition of felony.

17 ‘‘(C) If the court determines that the defendant

18 has presented substantial evidence to establish prima

19 facie eligibility for relief from deportation under sec20 tion 212(c), the court shall request the Attorney

21 General to provide the court with a recommendation

22 and report regarding the alien’s eligibility for relief

23 under such section. The court shall either grant or

24 deny the relief sought.
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1 ‘‘(D)(i) The alien shall have a reasonable oppor2 tunity to examine the evidence against him or her,

3 to present evidence on his or her own behalf, and to

4 cross-examine witnesses presented by the Govern5 ment.

6 ‘‘(ii) The court, for the purposes of determining

7 whether to enter an order described in paragraph

8 (1), shall only consider evidence that would be ad9 missible in proceedings conducted pursuant to sec10 tion 242(b).

11 ‘‘(3) NOTICE, APPEAL, AND EXECUTION OF JU12 DICIAL ORDER OF DEPORTATION.—(A)(i) A judicial

13 order of deportation or denial of such order may be

14 appealed by either party to the court of appeals for

15 the circuit in which the United States district court

16 is located or to the appropriate State court of ap17 peals, as the case may be.

18 ‘‘(ii) Except as provided in clause (iii), such ap19 peal shall be considered consistent with the require20 ments described in section 106.

21 ‘‘(iii) Upon execution by the defendant of a

22 valid waiver of the right to appeal the conviction on

23 which the order of deportation is based, the expira24 tion of the period described in section 106(a)(1), or

25 the final dismissal of an appeal from such convic-
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1 tion, the order of deportation shall become final and

2 shall be executed at the end of the prison term in

3 accordance with the term of the order.

4 ‘‘(B) As soon as is practicable after entry of a

5 judicial order of deportation by a United States

6 court, the Attorney General shall provide the defend7 ant with written notice of the order of deportation,

8 which shall designate the defendant’s country of

9 choice for deportation and any alternate country

10 pursuant to section 243(a).

11 ‘‘(C) As soon as is practicable after entry of a

12 judicial order of deportation by a State court, the

13 State court shall notify the Attorney General of the

14 order. Upon the termination of imprisonment of the

15 alien, the State shall remand the alien to the cus16 tody of the Attorney General. The Attorney General

17 shall effect the deportation of the alien in the man18 ner prescribed in this Act with respect to final or19 ders of deportation.

20 ‘‘(4) DENIAL OF JUDICIAL ORDER.—Denial of a

21 request for a judicial order of deportation shall not

22 preclude the Attorney General from initiating depor23 tation proceedings pursuant to section 242 upon the

24 same ground of deportability or upon any other

25 ground of deportability provided under section
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1 241(a). Any denial of a judicial order of deportation

2 shall include a statement in writing stating the rea3 sons for the denial.

4 ‘‘(5) DEFINITION.—For purposes of this sub5 section, the term ‘State’ refers to any of the several

6 States and the District of Columbia.’’.

7 (b) TECHNICAL AND CONFORMING CHANGES.—The

8 ninth sentence of section 242(b) of the Immigration and

9 Nationality Act (8 U.S.C. 1252(b)) is amended by striking

10 out ‘‘The’’ and inserting in lieu thereof ‘‘Except as pro11 vided in section 242A(c), the’’.

12 (c) EFFECTIVE DATE.—The amendments made by

13 this section shall apply to all aliens whose adjudication of

14 guilt or guilty plea is entered in the record after the date

15 of enactment of this Act.

16 SEC. 104. UNCONTESTED DEPORTATIONS.

17 Section 242B of the Immigration and Nationality Act

18 (8 U.S.C. 1252b) is amended—

19 (1) in subsection (a)(1), by adding at the end

20 the following new subparagraph:

21 ‘‘(G) The right of an alien deportable

22 under section 241(a)(2) to execute a deporta23 tion affidavit pursuant to subsection (f) in lieu

24 of deportation proceedings.’’;
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1 (2) by redesignating subsection (f) as sub2 section (g); and

3 (3) by inserting after subsection (e) the follow4 ing:

5 ‘‘(f) DEPORTATION AFFIDAVIT.—In lieu of a deter6 mination of deportability in a proceeding before a special

7 inquiry officer, an alien may elect to admit deportability

8 under section 241(a)(2) through the execution of an affi9 davit witnessed by such an officer and a notary public.

10 A special inquiry officer shall make a determination of de11 portability under this subsection based solely on the affi12 davit and, if he finds the alien deportable, shall issue an

13 order of deportation with respect to that alien.’’.

14 SEC. 105. RESTRICTING DEFENSES TO DEPORTATION FOR

15 CERTAIN CRIMINAL ALIENS.

16 (a) DEFENSES BASED ON SEVEN YEARS OF PERMA17 NENT RESIDENCE.—Section 212(c) of the Immigration

18 and Nationality Act (8 U.S.C. 1182(c)) is amended—

19 (1) in the third sentence, by striking ‘‘has

20 served for such felony or felonies’’ and all that fol21 lows through the period and inserting ‘‘has been sen22 tenced for such felony or felonies to a term of im23 prisonment of at least 5 years, if the time for ap24 pealing such conviction or sentence has expired and

25 the sentence has become final;’’; and
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1 (2) by adding at the end the following new sen2 tence: ‘‘For purposes of calculating the period of

3 seven consecutive years under this subsection, any

4 period of imprisonment of the alien by Federal,

5 State, or local authorities shall be excluded but shall

6 not be considered to have broken the continuity of

7 the period.’’.

8 (b) DEFENSES BASED ON WITHHOLDING OF DEPOR9 TATION.—Section 243(h)(2) of the Immigration and Na10 tionality Act (8 U.S.C. 1253(h)(2)) is amended—

11 (1) by striking ‘‘or’’ at the end of subparagraph

12 (C);

13 (2) by striking the period at the end of sub14 paragraph (D) and inserting ‘‘; or’’; and

15 (3) by striking the final sentence and inserting

16 the following new subparagraph:

17 ‘‘(E) the alien has been convicted of a fel18 ony.’’; and

19 SEC. 106. EXTRATERRITORIAL APPEALS BY CRIMINAL

20 ALIENS.

21 Section 106 of the Immigration and Nationality Act

22 (8 U.S.C. 1105a) is amended by adding at the end the

23 following new subsection:

24 ‘‘(e)(1) In the case of any alien found to be deport25 able under section 242(a)(2), the Attorney General may
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1 not defer deportation of the alien and shall, after issuance

2 of the deportation order, take the alien into custody until

3 the alien is deported.

4 ‘‘(2) Any court of the United States shall have juris5 diction to review an order of deportation issued under

6 paragraph (1) in any case where the petitioner for review

7 is outside the United States. Any alien for whom an order

8 of deportation has been vacated under this paragraph

9 shall be issued a valid visa and admitted to the United

10 States to the status held by the alien before deportation.’’.

11 SEC. 107. COLLATERAL ATTACKS ON UNDERLYING DEPOR12 TATION ORDER.

13 Section 276 of the Immigration and Nationality Act

14 (8 U.S.C. 1326) is amended by adding at the end the fol15 lowing new subsection:

16 ‘‘(c) In any criminal proceeding under this section,

17 no alien may challenge the validity of the deportation

18 order described in subsection (a)(1) or subsection (b).’’.

19 SEC. 108. RESTRICTION ON ASYLUM FOR CRIMINAL ALIENS.

20 (a) IN GENERAL.—Section 208 of the Immigration

21 and Nationality Act (8 U.S.C. 1158) is amended by add22 ing at the end the following new subsections:

23 ‘‘(f) Notwithstanding subsection (a), an alien may

24 only be granted asylum under this section if the alien

25 claims asylum within 15 days of the alien’s entry into the
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1 United States, unless the alien establishes by clear and

2 convincing evidence that since the date of entry into the

3 United States circumstances have changed in the alien’s

4 country of nationality (or, in the case of a person having

5 no nationality, the country in which such alien last habit6 ually resided) such that, if the alien returned to the coun7 try, it is more likely than not that the alien would be ar8 rested or incarcerated or the alien’s life would be threat9 ened in such country on account of race, religion, national10 ity, membership in a particular social group, or political

11 opinion.

12 ‘‘(g) An alien is not eligible for asylum under this

13 section if the Attorney General determines that—

14 ‘‘(1) the alien ordered, incited, assisted, or oth15 erwise participated in the persecution of any person

16 on account of race, religion, nationality, membership

17 in a particular social group, or political opinion;

18 ‘‘(2) the alien, having been convicted by a final

19 judgment of a particularly serious crime, constitutes

20 a danger to the community of the United States;

21 ‘‘(3) there are serious reasons for believing that

22 the alien has committed a serious nonpolitical crime

23 outside the United States prior to the arrival of the

24 alien in the United States;
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1 ‘‘(4) there are reasonable grounds for regarding

2 the alien as a danger to the security of the United

3 States; or

4 ‘‘(5) a country willing to accept the alien has

5 been identified (other than the country described in

6 subsection (f)) to which the alien can be deported or

7 returned and the alien does not establish that it is

8 more likely than not that the alien would be arrested

9 or incarcerated or the alien’s life would be threat10 ened in such country on account of race, religion,

11 nationality, membership in a particular social group,

12 or political opinion.

13 For purposes of paragraph (2), an alien who has been con14 victed of a felony shall be considered to have committed

15 a particularly serious crime. The Attorney General shall

16 prescribe regulations that specify additional crimes that

17 will be considered to be a crime described in paragraph

18 (2) or (3).’’.

19 (b) CONFORMING AMENDMENT.—Section 208(a) of

20 such Act (8 U.S.C. 1158(a)) is amended by inserting ‘‘,

21 except as provided in subsection (g),’’ after ‘‘asylum,

22 and’’.
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1 SEC. 109. FEDERAL INCARCERATION.

2 Section 242(j)(1)(B) of the Immigration and Nation3 ality Act (8 U.S.C. 1252(j)) is amended by inserting ‘‘for

4 a determinate term of imprisonment’’ after ‘‘the alien’’.

5 SEC. 110. FORM OF DEPORTATION HEARINGS.

6 Section 242(b) of the Immigration and Nationality

7 Act (8 U.S.C. 1252(b)) is amended by inserting after the

8 second sentence the following new sentence: ‘‘Nothing in

9 the preceding sentence precludes the Attorney General

10 from authorizing proceedings by electronic or telephonic

11 media (with or without the consent of the alien) or, where

12 waived or agreed to by the parties, in the absence of the

13 alien.’’.

14 SEC. 111. CONSTRUCTION OF EXPEDITED DEPORTATION

15 REQUIREMENTS.

16 No amendment made by this Act may be construed

17 to create any substantive or procedural right or benefit

18 that is legally enforceable by any party against the United

19 States, its agencies or officers, or against any other per20 son.

21 TITLE II—LOCAL COOPERATION

22 WITH FEDERAL OFFICIALS

23 AND PROCEDURES

24 SEC. 201. FUNDING BASED ON COOPERATION.

25 (a) STATE AND LOCAL COOPERATION.—Notwith26 standing any law, ordinance, or regulation of any State
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1 or subdivision thereof to the contrary, officials of any

2 State or local government or agency, upon the request of

3 any duly authorized official of the Immigration and Natu4 ralization Service, shall provide information regarding the

5 identification, location, arrest, prosecution, detention, and

6 deportation of an alien or aliens who are not lawfully

7 present in the United States.

8 (b) REPORT.—Not later than 6 months after the date

9 of enactment of this Act, the Attorney General and the

10 Commissioner of Immigration and Naturalization shall

11 jointly report to the Congress and the President on the

12 extent to which State and local governments are not co13 operating with the Immigration and Naturalization Serv14 ice. This report shall identify any State or local govern15 ments that have adopted laws, policies, or practices of

16 noncooperation with the Immigration and Naturalization

17 Service, the specific nature of those laws, policies or prac18 tices, and their impact on the enforcement of the immigra19 tion laws.

20 (c) FUNDING BASED ON COOPERATION.—No State

21 or local government or agency which has been identified

22 in the Attorney General’s report required by subsection

23 (b), which has a policy or practice of refusing to cooperate

24 with the Immigration and Naturalization Service regard25 ing the identification, location, arrest, prosecution, deten-
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1 tion, or deportation of aliens who are not lawfully present

2 in the United States, shall be eligible for any Federal

3 funds from appropriations made pursuant to a provision

4 of the Violent Crime Control and Law Enforcement Act

5 of 1994 or of an amendment made by authorizing appro6 priations, as long as such policy or practice remains in

7 effect.

8 SEC. 202. PRODUCTION OF CRIMINAL RECORDS.

9 Section 503(a)(11) of the Omnibus Crime Control

10 and Safe Streets Act of 1968 (42 U.S.C. 3753(a)) is

11 amended by inserting ‘‘or any political subdivision there12 of’’ after ‘‘State’’ the second, third, and fourth occurrence

13 thereof.

14 TITLE III—MISCELLANEOUS

15 SEC. 301. DETENTION OF UNDOCUMENTED CRIMINAL

16 ALIENS AT MILITARY INSTALLATIONS TO BE

17 CLOSED.

18 (a) IN GENERAL.—(1) Notwithstanding any other

19 provision of law, the Secretary of Defense shall make

20 available to the Attorney General for the purpose referred

21 to in paragraph (2) any military installation of the De22 partment of Defense that—

23 (A) is approved for closure under a base closure

24 law; and
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1 (B) is jointly determined by the Secretary and

2 the Attorney General to be an appropriate facility

3 for the detention of undocumented aliens.

4 (2) The Attorney General shall use facilities made

5 available to the Attorney General under this paragraph for

6 the detention of undocumented criminal aliens.

7 (b) DEFINITIONS.—In this section:

8 (1) The term ‘‘approved for closure under a

9 base closure law’’, in the case of a military installa10 tion, means any installation whose closure under a

11 base closure law is recommended by the President

12 and not disapproved by Congress in accordance with

13 the provisions of such law.

14 (2) The term ‘‘base closure law’’ means the fol15 lowing:

16 (A) The Defense Base Closure and Re17 alignment Act of 1990 (part A of title XXIX of

18 Public Law 102–510; 10 U.S.C. 2687 note).

19 (B) Title II of the Defense Authorization

20 Amendments and Base Closure and Realign21 ment Act (Public Law 100–526; 10 U.S.C.

22 2687 note).

23 (3) The term ‘‘undocumented criminal alien’’

24 means an alien who—
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1 (A) has been convicted of a felony and sen2 tenced to a term of imprisonment, and

3 (B)(i) entered the United States without

4 inspection or at any time or place other than as

5 designated by the Attorney General, or

6 (ii) was the subject of exclusion or deporta7 tion proceedings at the time he or she was

8 taken into custody by the State.

9 SEC. 302. AUTHORIZING REGISTRATION OF ALIENS ON

10 CRIMINAL PROBATION OR CRIMINAL PA11 ROLE.

12 Section 263(a) of the Immigration and Nationality

13 Act (8 U.S.C. 1303(a)) is amended by striking ‘‘and (5)’’

14 and inserting ‘‘(5) aliens who are or have been on criminal

15 probation or criminal parole within the United States, and

16 (6)’’.

17 SEC. 303. ADMISSIBLE EVIDENCE BEFORE A SPECIAL IN18 QUIRY OFFICER.

19 In any proceeding under the Immigration and Na20 tionality Act before a special inquiry officer, such docu21 ments and records as are described in section 3.41 of title

22 8, Code of Federal Regulations, as in effect on the date

23 of enactment of this Act, may be admissible as evidence

24 of a criminal conviction.

Æ