Immigration Detainer Enforcement Act of 2021
Bill: S.60 | Sponsor: Sen. Tillis, Thomas (R-NC)
Policy area: Immigration

Summary:
Immigration Detainer Enforcement Act of 2021
This bill expands statutory provisions to authorize the Department of Homeland Security (DHS) to request a law enforcement agency to detain an individual who has been arrested for violating any law (if the individual is believed to be an unlawfully present alien), where current provisions only explicitly authorize detainer requests for individuals arrested for violating controlled substances laws. The bill also modifies other related provisions.
A law enforcement agency that has received a detainer request may hold the targeted individual for up to 48 hours. DHS may enter into agreements with law enforcement agencies to indemnify such agencies against claims for wrongful detention resulting from a detainer request.
No provision of federal, state, or local law may restrict any government entity from (1) providing DHS with access to databases with information relating to issued detainers, or (2) holding an individual subject to a detainer.
DHS shall periodically certify to Congress as to which state or local entities have not complied with a detainer request. Such entities shall be ineligible for compensation for costs related to honoring detainer requests.
State and local entities that comply with DHS detainer requests shall have prioritized access to (1) certain law enforcement-related grants, and (2) certain excess federal property.

To provide for the effective use of immigration detainers to enhance 
                             public safety.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Immigration 
Detainer Enforcement Act of 2021''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Sense of Congress.
Sec. 3. Purpose.
Sec. 4. Immigration detainer authorities of the Department of Homeland 
                            Security.
Sec. 5. Effective coordination with State, tribal, and local law 
                            enforcement agencies.
Sec. 6. Compensating States for detaining criminal aliens.
Sec. 7. Priority for distributing Federal funding and property to State 
                            and local law enforcement.

SEC. 2. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) the removal of criminal aliens promotes public safety, 
        national security, border security, and the integrity of the 
        immigration system;
            (2) detainers have proven to be a useful law enforcement 
        tool that serve to expedite and improve the efficiency of the 
        removal process by enabling the Department of Homeland Security 
        to assume custody in a timely manner of aliens in the custody 
        of Federal, State, tribal, or local law enforcement agencies; 
        and
            (3) several States and localities have limited their 
        cooperation with immigration detainers issued by the Department 
        of Homeland Security and limited the Department of Homeland 
        Security's access to information regarding the release of 
        criminal aliens in their custody, which has resulted in the 
        release of dangerous criminal aliens into local communities.

SEC. 3. PURPOSE.

    The purposes of this Act are--
            (1) to limit recidivist criminal activity through the 
        removal of criminal aliens released from Federal, State, 
        tribal, or local custody;
            (2) to facilitate cooperation between Federal, State, 
        tribal, and local law enforcement agencies with regard to 
        immigration enforcement and information sharing; and
            (3) to limit the burden on Federal, State, tribal, and 
        local law enforcement agencies that cooperate with the 
        Department of Homeland Security in its prioritized immigration 
        enforcement.

SEC. 4. IMMIGRATION DETAINER AUTHORITIES OF THE DEPARTMENT OF HOMELAND 
              SECURITY.

    Section 287 of the Immigration and Nationality Act (8 U.S.C. 1357) 
is amended--
            (1) in subsection (a)--
                    (A) in the matter preceding paragraph (1), by 
                striking ``the Service authorized under regulations 
                prescribed by the Attorney General'' and inserting 
                ``the Department of Homeland Security authorized under 
                regulations prescribed by the Secretary of Homeland 
                Security'';
                    (B) by inserting ``or her'' after ``his'' each 
                place such term appears;
                    (C) in paragraph (2), by striking ``and is likely 
                to escape before a warrant can be obtained for his 
                arrest''; and
                    (D) in the undesignated matter following paragraph 
                (5)--
                            (i) by striking ``Attorney General'' each 
                        place such term appears and inserting 
                        ``Secretary of Homeland Security''; and
                            (ii) by striking ``Service'' each place 
                        such term appears and inserting ``Department of 
                        Homeland Security''; and
            (2) by amending subsection (d) to read as follows:
    ``(d) Detainer of Criminal Aliens.--
            ``(1) In general.--If an individual is arrested by a 
        Federal, State, tribal, or local law enforcement official for a 
        violation of any criminal law, the Secretary of Homeland 
        Security (or his or her designee) may issue a detainer to the 
        arresting agency if there is reason to believe the individual 
        is an alien who may be removable from the United States. 
        Notwithstanding any other provision of law, no court shall have 
        jurisdiction to review the discretionary decision or action by 
        the Secretary of Homeland Security (or his or her designee) to 
        issue a detainer under this paragraph.
            ``(2) Transfer of custody.--Upon the issuance of a detainer 
        by the Secretary of Homeland Security (or his or her designee) 
        with respect to an alien described in paragraph (1), the 
        arresting Federal, State, tribal, or local law enforcement 
        agency is authorized to maintain custody of the alien for a 
        period not to exceed 48 hours in order to transfer custody of 
        the alien to the Department of Homeland Security.
            ``(3) Indemnification.--
                    ``(A) In general.--Under such regulations as the 
                Secretary of Homeland Security shall prescribe, the 
                Secretary (or his or her designee) may enter into 
                agreements with State, tribal, and local law 
                enforcement agencies to indemnify such agencies against 
                claims (including reasonable expenses of litigation or 
                settlement) by third parties for wrongful detention 
                resulting from detainers issued without reason to 
                believe that the individual is an alien who may be 
                removable from the United States.
                    ``(B) Limitation.--Indemnification under 
                subparagraph (A) does not extend to claims relating to 
                the negligence or willful misconduct of a Federal, 
                State, tribal, or local law enforcement agency or the 
                conditions of detention in the facility used by such 
                agency to detain the individual subject to the 
                detainer.
                    ``(C) Additional conditions.--Each indemnification 
                agreement entered into pursuant to subparagraph (A) 
                shall--
                            ``(i) require the State, tribal, or local 
                        law enforcement agency to notify the United 
                        States Government of any suit or claim against 
                        such agency for wrongful detention;
                            ``(ii) authorize the United States 
                        Government, at its elections, to control or 
                        assist in the defense of such suit or claim; 
                        and
                            ``(iii) limit the amount of indemnification 
                        to a sum certified by the Secretary (or his or 
                        her designee) that is just and reasonable.''.

SEC. 5. EFFECTIVE COORDINATION WITH STATE, TRIBAL, AND LOCAL LAW 
              ENFORCEMENT AGENCIES.

    (a) In General.--Section 642 of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is amended to read 
as follows:

``SEC. 642. COMMUNICATION AND COOPERATION BETWEEN GOVERNMENT AGENCIES 
              AND THE DEPARTMENT OF HOMELAND SECURITY.

    ``(a) In General.--Notwithstanding any other provision of Federal, 
State, tribal, or local law, a Federal, State, tribal, or local 
government entity or official may not prohibit, or restrict in any way, 
any government entity or official from sending to, or receiving from, 
the Department of Homeland Security information regarding the 
citizenship or immigration status (lawful or unlawful) of any 
individual.
    ``(b) Additional Authority of Government Entities.--Notwithstanding 
any other provision of Federal, State, tribal, or local law, no person 
or agency may prohibit, or restrict in any way, a Federal, State, 
tribal, or local government entity from--
            ``(1) sending information regarding the citizenship or 
        immigration status (lawful or unlawful) of any individual to, 
        or requesting or receiving such information from, the 
        Department of Homeland Security;
            ``(2) exchanging citizenship or immigration status 
        information described in paragraph (1) with any other Federal, 
        State, tribal, or local government entity;
            ``(3) providing the Department of Homeland Security with 
        access to information in Federal, State, tribal, or local 
        government databases regarding individuals with respect to whom 
        a detainer has been issued, including when such individuals 
        will be released from criminal custody; or
            ``(4) maintaining custody of an individual pursuant to 
        section 287(d)(2) of the Immigration and Nationality Act (8 
        U.S.C. 1357(d)(2)).
    ``(c) Obligation To Respond to Inquiries.--The Secretary of 
Homeland Security shall respond to an inquiry by a Federal, State, 
tribal, or local government agency that seeks to verify or ascertain 
the citizenship or immigration status of any individual within the 
jurisdiction of the agency for any purpose authorized by law, by 
providing the requested verification or status information.''.
    (b) Clerical Amendment.--The table of contents for the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 (division C 
of Public Law 104-208; 8 U.S.C. 1101 note) is amended by amending the 
item relating to 642 to read as follows:

``Sec. 642. Communication and cooperation between government agencies 
                            and the Department of Homeland Security.''.

SEC. 6. COMPENSATING STATES FOR DETAINING CRIMINAL ALIENS.

    Section 241(i) of the Immigration and Nationality Act (8 U.S.C. 
1231(i)) is amended to read as follows:
    ``(i) Incarceration or Detention.--
            ``(1) Defined term.--In this subsection, the term 
        `undocumented criminal alien' means an alien who--
                    ``(A) has been convicted of a felony or of two or 
                more misdemeanors; and
                    ``(B)(i) entered the United States without 
                inspection or at any time or place other than as 
                designated by the Secretary of Homeland Security;
                    ``(ii) was the subject of exclusion, deportation, 
                or removal proceedings at the time the alien was taken 
                into custody by the State or a political subdivision of 
                the State; or
                    ``(iii)(I) was admitted as a nonimmigrant; and
                    ``(II) at the time the alien was taken into custody 
                by the State or a political subdivision of the State--
                            ``(aa) failed to maintain the nonimmigrant 
                        status in which the alien was admitted or to 
                        which it was changed under section 248; or
                            ``(bb) failed to comply with the conditions 
                        of any such status.
            ``(2) In general.--If the governor of a State (or, if 
        appropriate, the chief executive officer of a political 
        subdivision of the State), exercising authority with respect to 
        the incarceration or detention of an undocumented criminal 
        alien, submits a written request to the Attorney General, the 
        Attorney General may--
                    ``(A) enter into a contractual arrangement 
                providing for compensation to the State or a political 
                subdivision of the State, as may be appropriate, with 
                respect to the incarceration or detention of the 
                undocumented criminal alien; or
                    ``(B) take the undocumented criminal alien into the 
                custody of the Federal Government and incarcerate or 
                detain the alien.
            ``(3) Detention security.--In carrying out paragraph (2), 
        the Attorney General shall--
                    ``(A) give priority to the Federal incarceration of 
                undocumented criminal aliens who have committed 
                aggravated felonies; and
                    ``(B) ensure that undocumented criminal aliens 
                incarcerated or detained in Federal facilities pursuant 
                to this subsection are held in facilities that provide 
                a level of security appropriate to the crimes for which 
                they were charged or convicted.
            ``(4) Amount of compensation.--
                    ``(A) In general.--Compensation provided for each 
                day an undocumented criminal alien is detained by a 
                State or a political subdivision of a State pursuant to 
                a contract under paragraph (2)(A) shall be equal to the 
                average daily cost of incarceration or detention of a 
                prisoner in the relevant State, as determined by the 
                Attorney General.
                    ``(B) Certification requirement.--
                            ``(i) In general.--The Secretary of 
                        Homeland Security shall--
                                    ``(I) promulgate regulations 
                                establishing detainer compliance 
                                criteria; and
                                    ``(II) periodically submit a 
                                certification to the Attorney General 
                                that identifies which States and 
                                political subdivisions of a State have 
                                not complied with detainer requests 
                                received from the Department of 
                                Homeland Security.
                            ``(ii) Funding limitation.--Funds may only 
                        be provided to States and political 
                        subdivisions of States under this subsection 
                        that--
                                    ``(I) are not identified in a 
                                certification described in clause 
                                (i)(II); and
                                    ``(II) are cooperating with the 
                                Secretary with respect to each detainer 
                                lodged against an individual in the 
                                custody of the State or political 
                                subdivision of the State in accordance 
                                with section 287(d) and the regulations 
                                promulgated pursuant to clause (i)(I).
                    ``(C) Effect of noncompliance.--Any State or 
                political subdivision of a State that fails to 
                substantially comply with detainers issued by the 
                Department of Homeland Security shall be ineligible for 
                any funding under this subsection during the fiscal 
                year in which such failure occurs.
            ``(5) Authorization of appropriations.--
                    ``(A) In general.--There are authorized to be 
                appropriated to carry out this subsection--
                            ``(i) $750,000,000 for fiscal year 2021;
                            ``(ii) $850,000,000 for fiscal year 2022; 
                        and
                            ``(iii) $950,000,000 for each of the fiscal 
                        years 2023 through 2027.
                    ``(B) Limitation.--Amounts appropriated pursuant to 
                subparagraph (A) that are distributed to a State or a 
                political subdivision of a State may only be used for 
                correctional purposes.''.

SEC. 7. PRIORITY FOR DISTRIBUTING FEDERAL FUNDING AND PROPERTY TO STATE 
              AND LOCAL LAW ENFORCEMENT.

    (a) Annual Certification.--The Secretary of Homeland Security shall 
annually submit a written certification to the Attorney General that 
identifies the States and units of local government that are not 
complying with detainers issued pursuant to section 287(d) of the 
Immigration and Nationality Act (8 U.S.C. 1357(d)).
    (b) Priority for Compliant Jurisdictions.--The Attorney General 
shall give priority to the jurisdictions that are not listed in the 
certification described in subsection (a) when selecting recipients 
of--
            (1) funding from the Edward Byrne Memorial Justice 
        Assistance Grant Program authorized under title I of the 
        Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 
        10151 et seq.);
            (2) excess Federal equipment purchased pursuant to section 
        281 of title 10, United States Code (commonly referred to as 
        the 1122 Program); and
            (3) excess Federal property transferred pursuant to section 
        2576a of title 10, United States Code (commonly referred to as 
        the 1033 Program).
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