II 

114TH CONGRESS 

2D SESSION S. 3546 

To provide provisional protected presence to qualified individuals who came 

to the United States as children. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 9, 2016 

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

to the Committee on the Judiciary 

A BILL 

To provide provisional protected presence to qualified 

individuals who came to the United States as children. 

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 ‘‘Securing Active and 

5 Fair Enforcement Act’’ or the ‘‘SAFE Act’’. 

6 SEC. 2. PROVISIONAL PROTECTED PRESENCE FOR YOUNG 

7 INDIVIDUALS. 

8 (a) IN GENERAL.—Chapter 4 of title II of the Immi9 gration and Nationality Act (8 U.S.C. 1221 et seq.) is 

10 amended by adding at the end the following: 


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1 ‘‘SEC. 244A. PROVISIONAL PROTECTED PRESENCE. 

2 ‘‘(a) DEFINITIONS.—In this section: 

3 ‘‘(1) DACA RECIPIENT.—The term ‘DACA re4 cipient’ means an alien who is in deferred action sta5 tus on the date of the enactment of this section pur6 suant to the Deferred Action for Childhood Arrivals 

7 (‘DACA’) Program announced on June 15, 2012. 

8 ‘‘(2) FELONY.—The term ‘felony’ means a Fed9 eral, State, or local criminal offense punishable by 

10 imprisonment for a term exceeding one year. 

11 ‘‘(3) MISDEMEANOR.—The term ‘misdemeanor’ 

12 means a Federal, State, or local criminal offense 

13 (excluding a significant misdemeanor) for which— 

14 ‘‘(A) the maximum term of imprisonment 

15 is greater than five days and not greater than 

16 one year; and 

17 ‘‘(B) the individual was sentenced to time 

18 in custody of 90 days or less. 

19 ‘‘(4) SECRETARY.—The term ‘Secretary’ means 

20 the Secretary of Homeland Security. 

21 ‘‘(5) SIGNIFICANT MISDEMEANOR.—The term 

22 ‘significant misdemeanor’ means a Federal, State, or 

23 local criminal offense for which the maximum term 

24 of imprisonment is greater than five days and not 

25 greater than one year that— 


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1 ‘‘(A) regardless of the sentence imposed, is 

2 an offense of domestic violence, sexual abuse or 

3 exploitation, burglary, unlawful possession or 

4 use of a firearm, drug distribution or traf5 ficking, or driving under the influence if the 

6 State law requires, as an element of the offense, 

7 a finding of impairment or a blood alcohol con8 tent of .08 or higher; or 

9 ‘‘(B) resulted in a sentence of time in cus10 tody of more than 90 days, excluding an offense 

11 for which the sentence was suspended. 

12 ‘‘(6) THREAT TO NATIONAL SECURITY.—An 

13 alien is a ‘threat to national security’ if the alien 

14 is— 

15 ‘‘(A) inadmissible under section 212(a)(3); 

16 or 

17 ‘‘(B) deportable under section 237(a)(4). 

18 ‘‘(7) THREAT TO PUBLIC SAFETY.—An alien is 

19 a ‘threat to public safety’ if the alien— 

20 ‘‘(A) has been convicted of an offense for 

21 which an element was participation in a crimi22 nal street gang (as defined in section 521(a) of 

23 title 18, United States Code); or 

24 ‘‘(B) has engaged in a continuing criminal 

25 enterprise (as defined in section 408(c) of the 


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1 Comprehensive Drug Abuse Prevention and 

2 Control Act of 1970 (21 U.S.C. 848(c))). 

3 ‘‘(b) AUTHORIZATION.—The Secretary— 

4 ‘‘(1) shall grant provisional protected presence 

5 to an alien who files an application demonstrating 

6 that he or she meets the eligibility criteria under 

7 subsection (c) and pays the appropriate application 

8 fee; 

9 ‘‘(2) may not remove such alien from the 

10 United States during the period in which such provi11 sional protected presence is in effect unless such sta12 tus is rescinded pursuant to subsection (g); and 

13 ‘‘(3) shall provide such alien with employment 

14 authorization. 

15 ‘‘(c) ELIGIBILITY CRITERIA.—An alien is eligible for 

16 provisional protected presence under this section and em17 ployment authorization if the alien— 

18 ‘‘(1) was born after June 15, 1981; 

19 ‘‘(2) entered the United States before attaining 

20 16 years of age; 

21 ‘‘(3) continuously resided in the United States 

22 between June 15, 2007, and the date on which the 

23 alien files an application under this section; 


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1 ‘‘(4) was physically present in the United 

2 States on June 15, 2012, and on the date on which 

3 the alien files an application under this section; 

4 ‘‘(5) was unlawfully present in the United 

5 States on June 15, 2012; 

6 ‘‘(6) on the date on which the alien files an ap7 plication for provisional protected presence— 

8 ‘‘(A) is enrolled in school or in an edu9 cation program assisting students in obtaining 

10 a regular high school diploma or its recognized 

11 equivalent under State law, or in passing a gen12 eral educational development exam or other 

13 State-authorized exam; 

14 ‘‘(B) has graduated or obtained a certifi15 cate of completion from high school; 

16 ‘‘(C) has obtained a general educational 

17 development certificate; or 

18 ‘‘(D) is an honorably discharged veteran of 

19 the Coast Guard or Armed Forces of the 

20 United States; 

21 ‘‘(7) has not been convicted of— 

22 ‘‘(A) a felony; 

23 ‘‘(B) a significant misdemeanor; or 

24 ‘‘(C) three or more misdemeanors not oc25 curring on the same date and not arising out of 


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1 the same act, omission, or scheme of mis2 conduct; and 

3 ‘‘(8) does not otherwise pose a threat to na4 tional security or a threat to public safety. 

5 ‘‘(d) DURATION OF PROVISIONAL PROTECTED PRES6 ENCE AND EMPLOYMENT AUTHORIZATION.—Provisional 

7 protected presence and the employment authorization pro8 vided under this section shall be effective until the date 

9 that is three years after the date of the enactment of this 

10 section. 

11 ‘‘(e) STATUS DURING PERIOD OF PROVISIONAL PRO12 TECTED PRESENCE.— 

13 ‘‘(1) IN GENERAL.—During the period de14 scribed in subsection (d), the alien granted provi15 sional protected presence is not considered to be un16 lawfully present in the United States. 

17 ‘‘(2) STATUS OUTSIDE PERIOD.—The granting 

18 of provisional protected presence under this section 

19 does not excuse previous or subsequent periods of 

20 unlawful presence. 

21 ‘‘(f) APPLICATION.— 

22 ‘‘(1) AGE REQUIREMENT.— 

23 ‘‘(A) IN GENERAL.—An alien who has 

24 never been in removal proceedings, or whose 

25 proceedings have been terminated before makVerDate Sep 11 2014 02:33 Dec 15, 2016 Jkt 069200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3546.IS S3546

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1 ing a request for provisional protected presence, 

2 shall be at least 15 years old on the date on 

3 which the alien submits an application under 

4 this section. 

5 ‘‘(B) EXCEPTION.—The age requirement 

6 set forth in subparagraph (A) shall not apply to 

7 an alien who, on the date on which the alien ap8 plies for provisional protected status, is in re9 moval proceedings, has a final removal order, or 

10 has a voluntary departure order, and who is not 

11 in immigration detention. 

12 ‘‘(2) APPLICATION FEE.— 

13 ‘‘(A) IN GENERAL.—The Secretary may re14 quire aliens applying for provisional protected 

15 presence under this section to pay a reasonable 

16 fee that is commensurate with the cost of proc17 essing the application. 

18 ‘‘(B) EXEMPTION.—An applicant may be 

19 exempted from paying the fee required under 

20 subparagraph (A) if the alien— 

21 ‘‘(i)(I) is younger than 18 years of 

22 age; 

23 ‘‘(II) received total income during the 

24 12-month period immediately preceding the 

25 date on which the alien files an application 


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1 under this section that is less than 150 

2 percent of the United States poverty level; 

3 and 

4 ‘‘(III) is in foster care or otherwise 

5 lacking any parental or other familial sup6 port; 

7 ‘‘(ii) is younger than 18 years of age 

8 and is homeless; 

9 ‘‘(iii)(I) cannot care for himself or 

10 herself because of a serious, chronic dis11 ability; and 

12 ‘‘(II) received total income during the 

13 12-month period immediately preceding the 

14 date on which the alien files an application 

15 under this section that is less than 150 

16 percent of the United States poverty level; 

17 or 

18 ‘‘(iv)(I) on the date on which the alien 

19 files an application under this section, has 

20 accumulated $10,000 or more in debt in 

21 the past 12 months as a result of unreim22 bursed medical expenses incurred by the 

23 alien or an immediate family member of 

24 the alien; and 


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1 ‘‘(II) received total income during the 

2 12-month period immediately preceding the 

3 date on which the alien files an application 

4 under this section that is less than 150 

5 percent of the United States poverty level. 

6 ‘‘(3) REMOVAL STAYED WHILE APPLICATION

7 PENDING.—The Secretary may not remove an alien 

8 from the United States who appears prima facie eli9 gible for provisional protected presence while the 

10 alien’s application for provisional protected presence 

11 is pending. 

12 ‘‘(4) SPECIAL CIRCUMSTANCES.—An alien who 

13 is in removal proceedings, has an unexpired final re14 moval order, or has an unexpired voluntary depar15 ture order may apply for provisional protected pres16 ence under this section if the alien— 

17 ‘‘(A) appears prima facie eligible for provi18 sional protected presence; and 

19 ‘‘(B) is not in immigration detention. 

20 ‘‘(5) ALIENS IN IMMIGRATION DETENTION.— 

21 The Secretary shall provide any alien in immigration 

22 detention who meets the eligibility criteria set forth 

23 in subsection (c), upon request, with a reasonable 

24 opportunity to apply for provisional protected pres25 ence under this section. 


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1 ‘‘(6) CONFIDENTIALITY.— 

2 ‘‘(A) IN GENERAL.—The Secretary shall 

3 protect information provided in applications for 

4 provisional protected presence under this sec5 tion and in requests for consideration of DACA 

6 from disclosure to U.S. Immigration and Cus7 toms Enforcement and U.S. Customs and Bor8 der Protection for the purpose of immigration 

9 enforcement proceedings. 

10 ‘‘(B) REFERRALS PROHIBITED.—The Sec11 retary may not refer individuals whose cases 

12 have been deferred pursuant to DACA or who 

13 have been granted provisional protected pres14 ence under this section to U.S. Immigration 

15 and Customs Enforcement. 

16 ‘‘(C) LIMITED EXCEPTION.—The informa17 tion submitted in applications for provisional 

18 protected presence under this section and in re19 quests for consideration of DACA may be 

20 shared with national security and law enforce21 ment agencies— 

22 ‘‘(i) for assistance in the consideration 

23 of the application for provisional protected 

24 presence; 


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1 ‘‘(ii) to identify or prevent fraudulent 

2 claims; 

3 ‘‘(iii) for national security purposes; 

4 and 

5 ‘‘(iv) for the investigation or prosecu6 tion of any felony not related to immigra7 tion status. 

8 ‘‘(g) RESCISSION OF PROVISIONAL PROTECTED

9 PRESENCE.—The Secretary may not rescind an alien’s 

10 provisional protected presence or employment authoriza11 tion granted under this section unless the Secretary deter12 mines that the alien— 

13 ‘‘(1) has been convicted of— 

14 ‘‘(A) a felony; 

15 ‘‘(B) a significant misdemeanor; or 

16 ‘‘(C) three or more misdemeanors not oc17 curring on the same date and not arising out of 

18 the same act, omission, or scheme of mis19 conduct; 

20 ‘‘(2) poses a threat to national security or a 

21 threat to public safety; 

22 ‘‘(3) has traveled outside of the United States 

23 without authorization from the Secretary; or 

24 ‘‘(4) ceased to continuously reside in the United 

25 States. 


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1 ‘‘(h) TREATMENT OF BRIEF, CASUAL, AND INNO2 CENT DEPARTURES AND CERTAIN OTHER ABSENCES.— 

3 For purposes of subsections (c)(3) and (g)(4), an alien 

4 shall not be considered to have failed to continuously re5 side in the United States due to— 

6 ‘‘(1) brief, casual, and innocent absences from 

7 the United States during the period beginning on 

8 June 15, 2007, and ending on August 14, 2012; or 

9 ‘‘(2) travel outside of the United States on or 

10 after August 15, 2012, if such travel was authorized 

11 by the Secretary. 

12 ‘‘(i) EFFECT OF DEFERRED ACTION UNDER DE13 FERRED ACTION FOR CHILDHOOD ARRIVALS PROGRAM.— 

14 ‘‘(1) PROVISIONAL PROTECTED PRESENCE.—A 

15 DACA recipient is deemed to have provisional pro16 tected presence under this section through the expi17 ration date of the alien’s deferred action status, as 

18 specified by the Secretary in conjunction with the 

19 approval of the alien’s DACA application. 

20 ‘‘(2) EMPLOYMENT AUTHORIZATION.—If a 

21 DACA recipient has been granted employment au22 thorization by the Secretary in addition to deferred 

23 action, the employment authorization shall continue 

24 through the expiration date of the alien’s deferred 

25 action status, as specified by the Secretary in conVerDate Sep 11 2014 02:33 Dec 15, 2016 Jkt 069200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3546.IS S3546

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1 junction with the approval of the alien’s DACA ap2 plication. 

3 ‘‘(3) EFFECT OF APPLICATION.—If a DACA re4 cipient files an application for provisional protected 

5 presence under this section not later than the expi6 ration date of the alien’s deferred action status, as 

7 specified by the Secretary in conjunction with the 

8 approval of the alien’s DACA application, the alien’s 

9 provisional protected presence, and any employment 

10 authorization, shall remain in effect pending the ad11 judication of such application.’’. 

12 (b) CLERICAL AMENDMENT.—The table of contents 

13 for the Immigration and Nationality Act (8 U.S.C. 1101 

14 note) is amended by inserting after the item relating to 

15 section 244 the following: 

‘‘Sec. 244A. Provisional protected presence.’’. 

16 SEC. 3. MANDATORY DETENTION AND PROMPT REMOVAL 

17 OF CERTAIN CRIMINAL ALIENS. 

18 (a) DETENTION.—Section 236(c) of the Immigration 

19 and Nationality Act (8 U.S.C. 1226(c)(1)) is amended— 

20 (1) in paragraph (1)— 

21 (A) in subparagraph (A), by striking the 

22 comma at the end and inserting a semicolon; 

23 (B) in subparagraph (B), by striking the 

24 comma at the end and inserting a semicolon; 


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1 (C) in subparagraph (C), by striking ‘‘, or’’ 

2 at the end and inserting a semicolon; 

3 (D) in subparagraph (D), by striking the 

4 comma at the end and inserting ‘‘; or’’; and 

5 (E) by inserting after subparagraph (D) 

6 the following: 

7 ‘‘(E)(i) is unlawfully present in the United 

8 States, as determined by the Secretary of 

9 Homeland Security; and 

10 ‘‘(ii) is arrested for any offense described 

11 in subparagraphs (A) through (D), the convic12 tion of which would render the alien inadmis13 sible under section 212(a) or deportable under 

14 section 237(a),’’; and 

15 (2) in paragraph (2)— 

16 (A) by striking ‘‘The Attorney General’’ 

17 and inserting the following: 

18 ‘‘(A) IN GENERAL.—Except as provided in 

19 subparagraph (C), the Secretary of Homeland 

20 Security’’; 

21 (B) by striking ‘‘Attorney General’’ each 

22 place such term appears and inserting ‘‘Sec23 retary’’; 

24 (C) by striking ‘‘Code, that release’’ and 

25 inserting the following: ‘‘Code, that— 


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1 ‘‘(i) release’’; 

2 (D) by striking ‘‘investigation, and the 

3 alien’’ and inserting the following: ‘‘investiga4 tion; and 

5 ‘‘(ii) the alien’’; 

6 (E) by striking ‘‘A decision relating to 

7 such release’’ and inserting the following: 

8 ‘‘(B) DECISION PROCEDURE.—A decision 

9 relating to a release under subparagraph (A)’’; 

10 and 

11 (F) by adding at the end the following: 

12 ‘‘(D) ALIENS WHO HAVE BEEN ARRESTED, 

13 BUT NOT CONVICTED.—The Secretary of Home14 land Security may release any alien held pursu15 ant to paragraph (1)(E) to the appropriate au16 thority for any proceedings subsequent to the 

17 arrest. The Secretary shall resume custody of 

18 such alien during any period pending the final 

19 disposition of any such proceedings when the 

20 alien is not in the custody of such appropriate 

21 authority. If the alien is not convicted of the of22 fense for which the alien was arrested, the Sec23 retary shall continue to detain the alien until 

24 removal proceedings are completed.’’. 


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1 (b) PROMPT REMOVAL.—Section 239(d) of the Immi2 gration and Nationality Act (8 U.S.C. 1229(d)) is amend3 ed by adding at the end the following: 

4 ‘‘(3) The Secretary of Homeland Security shall 

5 complete removal proceedings for any alien held pur6 suant to section 236(c)(1)(E) not later than 90 days 

7 after such alien is detained.’’. 

8 SEC. 4. EMERGENCY IMMIGRATION PERSONNEL. 

9 (a) GOAL.—It shall be the goal of the Attorney Gen10 eral, the Secretary of Homeland Security, and the Direc11 tor of the Executive Office for Immigration Review to use 

12 the amounts appropriated pursuant to subsection (d) to 

13 bring a prompt resolution to immigration cases pertaining 

14 to aliens who are inadmissible under section 212(a)(2) or 

15 237(a)(2) of the Immigration and Nationality Act (8 

16 U.S.C. 1182(a) and 1227(a)). 

17 (b) EMERGENCY IMMIGRATION JUDGES.— 

18 (1) DESIGNATION.—Not later than 14 days 

19 after the date of the enactment of this Act, the At20 torney General shall designate up to 100 temporary 

21 immigration judges, for renewable 6-month terms, 

22 including by hiring retired immigration judges, mag23 istrate judges, administrative law judges, or other 

24 qualified attorneys using the same criteria as applied 

25 to the hiring of permanent immigration judges. 


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1 (2) REQUIREMENT.—The Attorney General 

2 shall ensure that sufficient immigration judge re3 sources are dedicated to achieving the goal described 

4 in subsection (a). 

5 (c) IMMIGRATION LITIGATION ATTORNEYS.—The 

6 Secretary of Homeland Security shall hire 150 new immi7 gration litigation attorneys in the Field Legal Operations 

8 of U.S. Immigration and Customs Enforcement to ensure 

9 that the goal described in subsection (a) is achieved. 

10 (d) AUTHORIZATION OF APPROPRIATIONS.—There is 

11 authorized to be appropriated $100,000,000 to carry out 

12 this section. 

13 SEC. 5. REPORTING REQUIREMENTS. 

14 (a) REPORT REQUIRED.—Not later than 180 days 

15 after the date of the enactment of this Act, and annually 

16 thereafter, the Secretary of Homeland Security shall sub17 mit a report to the Committee on the Judiciary of the Sen18 ate and the Committee on the Judiciary of the House of 

19 Representatives that includes the information specified in 

20 subsection (b). 

21 (b) CONTENTS.—The report required under sub22 section (a) shall describe— 

23 (1) the number of aliens currently present in 

24 the United States who have ever been arrested for 

25 a criminal offense; 


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1 (2) the number of aliens currently present in 

2 the United States who have ever been convicted of 

3 a criminal offense; 

4 (3) the number of aliens with final orders of re5 moval who are currently present in the United 

6 States and of such aliens— 

7 (A) how many have ever been arrested for 

8 any criminal offense; and 

9 (B) how many have ever been convicted for 

10 any criminal offense; 

11 (4) the number of detainers that were issued by 

12 the Department of Homeland Security during the 

13 previous fiscal year and the number of such detain14 ers that were honored; and 

15 (5) during the previous fiscal year— 

16 (A) the number of aliens who were de17 ported not later than 90 days after being de18 tained by U.S. Immigration and Customs En19 forcement, as required under section 239(d)(3) 

20 of the Immigration and Nationality Act (8 

21 U.S.C. 1229(d)) and the criminal offenses of 

22 such aliens; 

23 (B) of the aliens who should have been de24 ported under such section and were not de25 ported within 90 days of detention— 


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1 (i) the reasons the aliens were not de2 ported; and 

3 (ii) the criminal offenses of such 

4 aliens; and 

5 (C) of the aliens who were released from 

6 the custody of U.S. Immigration and Customs 

7 Enforcement and not deported— 

8 (i) the number of such aliens; 

9 (ii) the criminal offenses committed 

10 by such aliens; 

11 (iii) the conditions of their release; 

12 (iv) the number of aliens who com13 mitted a crime after being released from 

14 custody; and 

15 (v) a list of crimes committed by such 

16 aliens. 

Æ 


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