Criminal Alien Gang Member Removal Act
Bill: S.1056 | Sponsor: Sen. Kennedy, John (R-LA)
Policy area: Immigration

Summary:
Criminal Alien Gang Member Removal Act
This bill makes aliens associated with criminal gangs inadmissible for entry into the United States and deportable and establishes procedures related to designating groups with criminal gang status.
An alien shall be inadmissible if a consular officer, the Department of Homeland Security (DHS), or the Department of Justice knows or has reason to believe that the individual is or was a criminal gang member or has participated or aided such a group's illegal activities. An alien who is or was a member of such a gang, or has participated or aided such a group's illegal activities, shall be deportable.
Such individuals shall be subject to mandatory detention, shall not be eligible for asylum, temporary protected status, or special immigrant juvenile visas, and shall not be eligible for parole unless they are assisting the government in a law enforcement matter.
The bill defines a criminal gang as a group of five or more persons (1) where one of its primary purposes is the commission of specified criminal offenses and the members of which engage or have engaged within the past five years in a continuing series of such offenses, or (2) that has been designated as a criminal gang by DHS.
The bill establishes procedures for DHS to designate a group as a criminal gang, including notification to Congress, publication in the Federal Register, and an opportunity for the group to petition for administrative and judicial review.


To amend the Immigration and Nationality Act with respect to aliens 
        associated with criminal gangs, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Criminal Alien Gang Member Removal 
Act''.

SEC. 2. GROUNDS OF INADMISSIBILITY AND DEPORTABILITY FOR ALIEN GANG 
              MEMBERS.

    (a) Definition of Gang Member.--Section 101(a) of the Immigration 
and Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the end 
the following:
    ``(53) The term `criminal gang' means an ongoing group, club, 
organization, or association of 5 or more persons that has, as 1 of its 
primary purposes, the commission of 1 or more of the following criminal 
offenses and the members of which engage, or have engaged within the 
past 5 years, in a continuing series of such offenses, or that has been 
designated as a criminal gang by the Secretary of Homeland Security, in 
consultation with the Attorney General, as meeting such criteria. The 
offenses described, whether in violation of Federal or State law or 
foreign law and regardless of whether the offenses occurred before, on, 
or after the date of the enactment of this paragraph, are the 
following:
            ``(A) A `felony drug offense' (as defined in section 102 of 
        the Controlled Substances Act (21 U.S.C. 802)).
            ``(B) An offense under section 274 (relating to bringing in 
        and harboring certain aliens), section 277 (relating to aiding 
        or assisting certain aliens to enter the United States), or 
        section 278 (relating to importation of alien for immoral 
        purpose).
            ``(C) A crime of violence (as defined in section 16 of 
        title 18, United States Code).
            ``(D) A crime involving obstruction of justice, tampering 
        with or retaliating against a witness, victim, or informant, or 
        burglary.
            ``(E) Any conduct punishable under sections 1028 and 1029 
        of title 18, United States Code (relating to fraud and related 
        activity in connection with identification documents or access 
        devices), sections 1581 through 1594 of such title (relating to 
        peonage, slavery, and trafficking in persons), section 1951 of 
        such title (relating to interference with commerce by threats 
        or violence), section 1952 of such title (relating to 
        interstate and foreign travel or transportation in aid of 
        racketeering enterprises), section 1956 of such title (relating 
        to the laundering of monetary instruments), section 1957 of 
        such title (relating to engaging in monetary transactions in 
        property derived from specified unlawful activity), or sections 
        2312 through 2315 of such title (relating to interstate 
        transportation of stolen motor vehicles or stolen property).
            ``(F) A conspiracy to commit any offense described in 
        subparagraphs (A) through (E).''.
    (b) Inadmissibility.--Section 212(a)(2) of such Act (8 U.S.C. 
1182(a)(2)) is amended by adding at the end the following:
                    ``(J) Aliens associated with criminal gangs.--Any 
                alien is inadmissible who a consular officer, the 
                Secretary of Homeland Security, or the Attorney General 
                knows or has reason to believe--
                            ``(i) to be or to have been a member of a 
                        criminal gang; or
                            ``(ii) to have participated in the 
                        activities of a criminal gang, knowing or 
                        having reason to know that such activities will 
                        promote, further, aid, or support the illegal 
                        activity of the criminal gang.''.
    (c) Deportability.--Section 237(a)(2) of the Immigration and 
Nationality Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end 
the following:
                    ``(G) Aliens associated with criminal gangs.--Any 
                alien is deportable who--
                            ``(i) is or has been a member of a criminal 
                        gang; or
                            ``(ii) has participated in the activities 
                        of a criminal gang, knowing or having reason to 
                        know that such activities will promote, 
                        further, aid, or support the illegal activity 
                        of the criminal gang.''.
    (d) Designation.--
            (1) In general.--Chapter 2 of title II of the Immigration 
        and Nationality Act (8 U.S.C. 1182) is amended by inserting 
        after section 219 the following:

``SEC. 220. DESIGNATION OF CRIMINAL GANG.

    ``(a) Designation.--
            ``(1) In general.--The Secretary of Homeland Security, in 
        consultation with the Attorney General, may designate a group, 
        club, organization, or association of 5 or more persons as a 
        criminal gang if the Secretary finds that their conduct is 
        described in section 101(a)(53).
            ``(2) Procedure.--
                    ``(A) Notification.--Not later than 7 days before 
                making a designation under this subsection, the 
                Secretary shall, by classified communication, notify 
                the Speaker and Minority Leader of the House of 
                Representatives, the President pro tempore, Majority 
                Leader, and Minority Leader of the Senate, and the 
                members of the relevant committees of the House of 
                Representatives and the Senate, in writing, of the 
                intent to designate a group, club, organization, or 
                association of 5 or more persons under this subsection 
                and the factual basis for such designation.
                    ``(B) Publication in the federal register.--The 
                Secretary shall publish the designation in the Federal 
                Register 7 days after providing the notification under 
                subparagraph (A).
            ``(3) Record.--
                    ``(A) In general.--In making a designation under 
                this subsection, the Secretary shall create an 
                administrative record.
                    ``(B) Classified information.--The Secretary may 
                consider classified information in making a designation 
                under this subsection. Classified information shall not 
                be subject to disclosure for such time as it remains 
                classified, except that such information may be 
                disclosed to a court ex parte and in camera for 
                purposes of judicial review under subsection (c).
            ``(4) Period of designation.--
                    ``(A) In general.--A designation under this 
                subsection shall be effective for all purposes until 
                revoked under paragraph (5) or (6) or set aside 
                pursuant to subsection (c).
                    ``(B) Review of designation upon petition.--
                            ``(i) In general.--The Secretary shall 
                        review the designation of a criminal gang under 
                        the procedures set forth in clauses (iii) and 
                        (iv) if the designated group, club, 
                        organization, or association of 5 or more 
                        persons files a petition for revocation within 
                        the petition period described in clause (ii).
                            ``(ii) Petition period.--For purposes of 
                        clause (i)--
                                    ``(I) if the designated group, 
                                club, organization, or association of 5 
                                or more persons has not previously 
                                filed a petition for revocation under 
                                this subparagraph, the petition period 
                                begins 2 years after the date on which 
                                the designation was made; or
                                    ``(II) if the designated group, 
                                club, organization, or association of 5 
                                or more persons has previously filed a 
                                petition for revocation under this 
                                subparagraph, the petition period 
                                begins 2 years after the date of the 
                                determination made under clause (iv) on 
                                that petition.
                            ``(iii) Procedures.--Any group, club, 
                        organization, or association of 5 or more 
                        persons that submits a petition for revocation 
                        under this subparagraph of its designation as a 
                        criminal gang must provide evidence in that 
                        petition that it is not described in section 
                        101(a)(53).
                            ``(iv) Determination.--
                                    ``(I) In general.--Not later than 
                                180 days after receiving a petition for 
                                revocation submitted under this 
                                subparagraph, the Secretary shall make 
                                a determination as to such revocation.
                                    ``(II) Classified information.--The 
                                Secretary may consider classified 
                                information in making a determination 
                                in response to a petition for 
                                revocation. Classified information 
                                shall not be subject to disclosure for 
                                such time as it remains classified, 
                                except that such information may be 
                                disclosed to a court ex parte and in 
                                camera for purposes of judicial review 
                                under subsection (c).
                                    ``(III) Publication of 
                                determination.--A determination made by 
                                the Secretary under this clause shall 
                                be published in the Federal Register.
                                    ``(IV) Procedures.--Any revocation 
                                by the Secretary shall be made in 
                                accordance with paragraph (6).
                    ``(C) Other review of designation.--
                            ``(i) In general.--If no review has taken 
                        place under subparagraph (B) in a 5-year 
                        period, the Secretary shall review the 
                        designation of the criminal gang in order to 
                        determine whether such designation should be 
                        revoked pursuant to paragraph (6).
                            ``(ii) Procedures.--If a review does not 
                        take place pursuant to subparagraph (B) in 
                        response to a petition for revocation that is 
                        filed in accordance with that subparagraph, 
                        then the review shall be conducted pursuant to 
                        procedures established by the Secretary. The 
                        results of such review and the applicable 
                        procedures shall not be reviewable in any 
                        court.
                            ``(iii) Publication of results of review.--
                        The Secretary shall publish any determination 
                        made pursuant to this subparagraph in the 
                        Federal Register.
            ``(5) Revocation by act of congress.--The Congress, by an 
        Act of Congress, may block or revoke a designation made under 
        paragraph (1).
            ``(6) Revocation based on change in circumstances.--
                    ``(A) In general.--The Secretary may revoke a 
                designation made under paragraph (1) at any time, and 
                shall revoke a designation upon completion of a review 
                conducted pursuant to subparagraphs (B) and (C) of 
                paragraph (4) if the Secretary finds that--
                            ``(i) the group, club, organization, or 
                        association of 5 or more persons that has been 
                        designated as a criminal gang is no longer 
                        described in section 101(a)(53); or
                            ``(ii) the national security or the law 
                        enforcement interests of the United States 
                        warrants a revocation.
                    ``(B) Procedure.--The procedural requirements of 
                paragraphs (2) and (3) shall apply to a revocation 
                under this paragraph. Any revocation shall take effect 
                on the date specified in the revocation or upon 
                publication in the Federal Register if no effective 
                date is specified.
            ``(7) Effect of revocation.--The revocation of a 
        designation under paragraph (5) or (6) shall not affect any 
        action or proceeding based on conduct committed prior to the 
        effective date of such revocation.
            ``(8) Use of designation in trial or hearing.--If a 
        designation under this subsection has become effective under 
        paragraph (2) an alien in a removal proceeding shall not be 
        permitted to raise any question concerning the validity of the 
        issuance of such designation as a defense or an objection.
    ``(b) Amendments to a Designation.--
            ``(1) In general.--The Secretary may amend a designation 
        under this subsection if the Secretary finds that the group, 
        club, organization, or association of 5 or more persons has 
        changed its name, adopted a new alias, dissolved and then 
        reconstituted itself under a different name or names, or merged 
        with another group, club, organization, or association of 5 or 
        more persons.
            ``(2) Procedure.--Amendments made to a designation in 
        accordance with paragraph (1) shall be effective upon 
        publication in the Federal Register. Paragraphs (2), (4), (5), 
        (6), (7), and (8) of subsection (a) shall apply to an amended 
        designation.
            ``(3) Administrative record.--The administrative record 
        shall be corrected to include the amendments and any additional 
        relevant information that supports those amendments.
            ``(4) Classified information.--The Secretary may consider 
        classified information in amending a designation in accordance 
        with this subsection. Classified information shall not be 
        subject to disclosure for such time as it remains classified, 
        except that such information may be disclosed to a court ex 
        parte and in camera for purposes of judicial review under 
        subsection (c).
    ``(c) Judicial Review of Designation.--
            ``(1) In general.--Not later than 30 days after publication 
        in the Federal Register of a designation, an amended 
        designation, or a determination in response to a petition for 
        revocation, the designated group, club, organization, or 
        association of 5 or more persons may seek judicial review in 
        the United States Court of Appeals for the District of Columbia 
        Circuit.
            ``(2) Basis of review.--Review under this subsection shall 
        be based solely upon the administrative record, except that the 
        Government may submit, for ex parte and in camera review, 
        classified information used in making the designation, amended 
        designation, or determination in response to a petition for 
        revocation.
            ``(3) Scope of review.--The Court shall hold unlawful and 
        set aside a designation, amended designation, or determination 
        in response to a petition for revocation the court finds to 
        be--
                    ``(A) arbitrary, capricious, an abuse of 
                discretion, or otherwise not in accordance with law;
                    ``(B) contrary to constitutional right, power, 
                privilege, or immunity;
                    ``(C) in excess of statutory jurisdiction, 
                authority, or limitation, or short of statutory right;
                    ``(D) lacking substantial support in the 
                administrative record taken as a whole or in classified 
                information submitted to the court under paragraph (2); 
                or
                    ``(E) not in accord with the procedures required by 
                law.
            ``(4) Judicial review invoked.--The pendency of an action 
        for judicial review of a designation, amended designation, or 
        determination in response to a petition for revocation shall 
        not affect the application of this section, unless the court 
        issues a final order setting aside the designation, amended 
        designation, or determination in response to a petition for 
        revocation.
    ``(d) Definitions.--In this section--
            ``(1) the term `classified information' has the meaning 
        given that term in section 1(a) of the Classified Information 
        Procedures Act (18 U.S.C. App.);
            ``(2) the term `national security' means the national 
        defense, foreign relations, or economic interests of the United 
        States;
            ``(3) the term `relevant committees' means--
                    ``(A) the Committee on the Judiciary of the Senate; 
                and
                    ``(B) the Committee on the Judiciary of the House 
                of Representatives; and
            ``(4) the term `Secretary' means the Secretary of Homeland 
        Security, in consultation with the Attorney General.''.
            (2) Clerical amendment.--The table of contents for the 
        Immigration and Nationality Act (8 U.S.C. 1101 note) is amended 
        by inserting after the item relating to section 219 the 
        following:

``Sec. 220. Designation of criminal gang.''.
    (e) Mandatory Detention of Criminal Gang Members.--
            (1) In general.--Section 236(c)(1) of the Immigration and 
        Nationality Act (8 U.S.C. 1226(c)(1)) is amended--
                    (A) in subparagraph (C), by striking ``, or'' and 
                inserting a semicolon;
                    (B) in subparagraph (D), by striking the comma at 
                the end and inserting ``; or''; and
                    (C) by inserting after subparagraph (D) the 
                following:
                    ``(E) is inadmissible under section 212(a)(2)(J) or 
                deportable under section 217(a)(2)(G),''.
            (2) Annual report.--Not later than March 1 of each year 
        (beginning 1 year after the date of the enactment of this Act), 
        the Secretary of Homeland Security, after consultation with the 
        appropriate Federal agencies, shall submit a report to the 
        Committee on the Judiciary of the Senate and the Committee on 
        the Judiciary of the House of Representatives regarding the 
        number of aliens detained as a result of the amendments made by 
        paragraph (1).
    (f) Asylum Claims Based on Gang Affiliation.--
            (1) Inapplicability of restriction on removal to certain 
        countries.--Section 241(b)(3)(B) of the Immigration and 
        Nationality Act (8 U.S.C. 1251(b)(3)(B)) is amended, in the 
        matter preceding clause (i), by inserting ``who is described in 
        section 212(a)(2)(J)(i) or section 237(a)(2)(G)(i) or who is'' 
        after ``to an alien''.
            (2) Ineligibility for asylum.--Section 208(b)(2)(A) of such 
        Act (8 U.S.C. 1158(b)(2)(A)) is amended--
                    (A) in clause (v), by striking ``or'' at the end;
                    (B) by redesignating clause (vi) as clause (vii); 
                and
                    (C) by inserting after clause (v) the following:
                            ``(vi) the alien is described in section 
                        212(a)(2)(J)(i) or section 237(a)(2)(G)(i); 
                        or''.
    (g) Temporary Protected Status.--Section 244 of the Immigration and 
Nationality Act (8 U.S.C. 1254a) is amended--
            (1) by striking ``Attorney General'' each place such term 
        appears and inserting ``Secretary of Homeland Security'';
            (2) in subsection (c)(2)(B)--
                    (A) in clause (i), by striking ``, or'' and 
                inserting a semicolon;
                    (B) in clause (ii), by striking the period at the 
                end and inserting ``; or''; and
                    (C) by adding at the end the following:
                            ``(iii) the alien is, or at any time has 
                        been, described in section 212(a)(2)(J) or 
                        237(a)(2)(G).''; and
            (3) in subsection (d)--
                    (A) by striking paragraph (3);
                    (B) by redesignating paragraph (4) as paragraph 
                (3); and
                    (C) in paragraph (3), as redesignated, by adding at 
                the end the following: ``The Secretary of Homeland 
                Security may detain an alien provided temporary 
                protected status under this section whenever 
                appropriate under any other provision of law.''.
    (h) Special Immigrant Juvenile Visas.--Section 101(a)(27)(J)(iii) 
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)(iii)) 
is amended--
            (1) in subclause (I), by striking ``and'' at the end;
            (2) in subclause (II), by adding ``and'' at the end; and
            (3) by adding at the end the following:
                                    ``(III) no alien who is, or at any 
                                time has been, described in section 
                                212(a)(2)(J) or 237(a)(2)(G) shall be 
                                eligible for any immigration benefit 
                                under this subparagraph;''.
    (i) Parole.--An alien described in section 212(a)(2)(J) of the 
Immigration and Nationality Act, as added by subsection (b), is not 
eligible for parole under section 212(d)(5)(A) of such Act unless--
            (1) the alien is assisting or has assisted the United 
        States Government in a law enforcement matter, including a 
        criminal investigation; and
            (2) the alien's presence in the United States is required 
        by the Government with respect to such assistance.
    (j) Effective Date.--The amendments made by this section shall take 
effect on the date of the enactment of this Act and shall apply to acts 
that occur before, on, or after the date of the enactment of this Act.
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