II 114th CONGRESS 2d Session S. 3546 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. Short title This Act may be cited as the Securing Active and Fair Enforcement Act or the SAFE Act . 2. Provisional protected presence for young individuals (a) In general Chapter 4 of title II of the Immigration and Nationality Act ( 8 U.S.C. 1221 et seq. ) is amended by adding at the end the following: 244A. Provisional protected presence (a) Definitions In this section: (1) DACA recipient The term DACA recipient means an alien who is in deferred action status on the date of the enactment of this section pursuant to the Deferred Action for Childhood Arrivals ( DACA ) Program announced on June 15, 2012. (2) Felony The term felony means a Federal, State, or local criminal offense punishable by imprisonment for a term exceeding one year. (3) Misdemeanor The term misdemeanor means a Federal, State, or local criminal offense (excluding a significant misdemeanor) for which— (A) the maximum term of imprisonment is greater than five days and not greater than one year; and (B) the individual was sentenced to time in custody of 90 days or less. (4) Secretary The term Secretary means the Secretary of Homeland Security. (5) Significant misdemeanor The term significant misdemeanor means a Federal, State, or local criminal offense for which the maximum term of imprisonment is greater than five days and not greater than one year that— (A) regardless of the sentence imposed, is an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence if the State law requires, as an element of the offense, a finding of impairment or a blood alcohol content of .08 or higher; or (B) resulted in a sentence of time in custody of more than 90 days, excluding an offense for which the sentence was suspended. (6) Threat to national security An alien is a threat to national security if the alien is— (A) inadmissible under section 212(a)(3); or (B) deportable under section 237(a)(4). (7) Threat to public safety An alien is a threat to public safety if the alien— (A) has been convicted of an offense for which an element was participation in a criminal street gang (as defined in section 521(a) of title 18, United States Code); or (B) has engaged in a continuing criminal enterprise (as defined in section 408(c) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 ( 21 U.S.C. 848(c) )). (b) Authorization The Secretary— (1) shall grant provisional protected presence to an alien who files an application demonstrating that he or she meets the eligibility criteria under subsection (c) and pays the appropriate application fee; (2) may not remove such alien from the United States during the period in which such provisional protected presence is in effect unless such status is rescinded pursuant to subsection (g); and (3) shall provide such alien with employment authorization. (c) Eligibility criteria An alien is eligible for provisional protected presence under this section and employment authorization if the alien— (1) was born after June 15, 1981; (2) entered the United States before attaining 16 years of age; (3) continuously resided in the United States between June 15, 2007, and the date on which the alien files an application under this section; (4) was physically present in the United States on June 15, 2012, and on the date on which the alien files an application under this section; (5) was unlawfully present in the United States on June 15, 2012; (6) on the date on which the alien files an application for provisional protected presence— (A) is enrolled in school or in an education program assisting students in obtaining a regular high school diploma or its recognized equivalent under State law, or in passing a general educational development exam or other State-authorized exam; (B) has graduated or obtained a certificate of completion from high school; (C) has obtained a general educational development certificate; or (D) is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; (7) has not been convicted of— (A) a felony; (B) a significant misdemeanor; or (C) three or more misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct; and (8) does not otherwise pose a threat to national security or a threat to public safety. (d) Duration of provisional protected presence and employment authorization Provisional protected presence and the employment authorization provided under this section shall be effective until the date that is three years after the date of the enactment of this section. (e) Status during period of provisional protected presence (1) In general During the period described in subsection (d), the alien granted provisional protected presence is not considered to be unlawfully present in the United States. (2) Status outside period The granting of provisional protected presence under this section does not excuse previous or subsequent periods of unlawful presence. (f) Application (1) Age requirement (A) In general An alien who has never been in removal proceedings, or whose proceedings have been terminated before making a request for provisional protected presence, shall be at least 15 years old on the date on which the alien submits an application under this section. (B) Exception The age requirement set forth in subparagraph (A) shall not apply to an alien who, on the date on which the alien applies for provisional protected status, is in removal proceedings, has a final removal order, or has a voluntary departure order, and who is not in immigration detention. (2) Application fee (A) In general The Secretary may require aliens applying for provisional protected presence under this section to pay a reasonable fee that is commensurate with the cost of processing the application. (B) Exemption An applicant may be exempted from paying the fee required under subparagraph (A) if the alien— (i) (I) is younger than 18 years of age; (II) received total income during the 12-month period immediately preceding the date on which the alien files an application under this section that is less than 150 percent of the United States poverty level; and (III) is in foster care or otherwise lacking any parental or other familial support; (ii) is younger than 18 years of age and is homeless; (iii) (I) cannot care for himself or herself because of a serious, chronic disability; and (II) received total income during the 12-month period immediately preceding the date on which the alien files an application under this section that is less than 150 percent of the United States poverty level; or (iv) (I) on the date on which the alien files an application under this section, has accumulated $10,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses incurred by the alien or an immediate family member of the alien; and (II) received total income during the 12-month period immediately preceding the date on which the alien files an application under this section that is less than 150 percent of the United States poverty level. (3) Removal stayed while application pending The Secretary may not remove an alien from the United States who appears prima facie eligible for provisional protected presence while the alien’s application for provisional protected presence is pending. (4) Special circumstances An alien who is in removal proceedings, has an unexpired final removal order, or has an unexpired voluntary departure order may apply for provisional protected presence under this section if the alien— (A) appears prima facie eligible for provisional protected presence; and (B) is not in immigration detention. (5) Aliens in immigration detention The Secretary shall provide any alien in immigration detention who meets the eligibility criteria set forth in subsection (c), upon request, with a reasonable opportunity to apply for provisional protected presence under this section. (6) Confidentiality (A) In general The Secretary shall protect information provided in applications for provisional protected presence under this section and in requests for consideration of DACA from disclosure to U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection for the purpose of immigration enforcement proceedings. (B) Referrals prohibited The Secretary may not refer individuals whose cases have been deferred pursuant to DACA or who have been granted provisional protected presence under this section to U.S. Immigration and Customs Enforcement. (C) Limited exception The information submitted in applications for provisional protected presence under this section and in requests for consideration of DACA may be shared with national security and law enforcement agencies— (i) for assistance in the consideration of the application for provisional protected presence; (ii) to identify or prevent fraudulent claims; (iii) for national security purposes; and (iv) for the investigation or prosecution of any felony not related to immigration status. (g) Rescission of provisional protected presence The Secretary may not rescind an alien’s provisional protected presence or employment authorization granted under this section unless the Secretary determines that the alien— (1) has been convicted of— (A) a felony; (B) a significant misdemeanor; or (C) three or more misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct; (2) poses a threat to national security or a threat to public safety; (3) has traveled outside of the United States without authorization from the Secretary; or (4) ceased to continuously reside in the United States. (h) Treatment of brief, casual, and innocent departures and certain other absences For purposes of subsections (c)(3) and (g)(4), an alien shall not be considered to have failed to continuously reside in the United States due to— (1) brief, casual, and innocent absences from the United States during the period beginning on June 15, 2007, and ending on August 14, 2012; or (2) travel outside of the United States on or after August 15, 2012, if such travel was authorized by the Secretary. (i) Effect of deferred action under Deferred Action for Childhood Arrivals Program (1) Provisional protected presence A DACA recipient is deemed to have provisional protected presence under this section through the expiration date of the alien’s deferred action status, as specified by the Secretary in conjunction with the approval of the alien’s DACA application. (2) Employment authorization If a DACA recipient has been granted employment authorization by the Secretary in addition to deferred action, the employment authorization shall continue through the expiration date of the alien’s deferred action status, as specified by the Secretary in conjunction with the approval of the alien’s DACA application. (3) Effect of application If a DACA recipient files an application for provisional protected presence under this section not later than the expiration date of the alien’s deferred action status, as specified by the Secretary in conjunction with the approval of the alien’s DACA application, the alien’s provisional protected presence, and any employment authorization, shall remain in effect pending the adjudication of such application. . (b) 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 244 the following: Sec. 244A. Provisional protected presence. . 3. Mandatory detention and prompt removal of certain criminal aliens (a) Detention Section 236(c) of the Immigration and Nationality Act ( 8 U.S.C. 1226(c)(1) ) is amended— (1) in paragraph (1)— (A) in subparagraph (A), by striking the comma at the end and inserting a semicolon; (B) in subparagraph (B), by striking the comma at the end and inserting a semicolon; (C) in subparagraph (C), by striking , or at the end and inserting a semicolon; (D) in subparagraph (D), by striking the comma at the end and inserting ; or ; and (E) by inserting after subparagraph (D) the following: (E) (i) is unlawfully present in the United States, as determined by the Secretary of Homeland Security; and (ii) is arrested for any offense described in subparagraphs (A) through (D), the conviction of which would render the alien inadmissible under section 212(a) or deportable under section 237(a), ; and (2) in paragraph (2)— (A) by striking The Attorney General and inserting the following: (A) In general Except as provided in subparagraph (C), the Secretary of Homeland Security ; (B) by striking Attorney General each place such term appears and inserting Secretary ; (C) by striking Code, that release and inserting the following: “Code, that— (i) release ; (D) by striking investigation, and the alien and inserting the following: “investigation; and (ii) the alien ; (E) by striking A decision relating to such release and inserting the following: (B) Decision procedure A decision relating to a release under subparagraph (A) ; and (F) by adding at the end the following: (D) Aliens who have been arrested, but not convicted The Secretary of Homeland Security may release any alien held pursuant to paragraph (1)(E) to the appropriate authority for any proceedings subsequent to the arrest. The Secretary shall resume custody of such alien during any period pending the final disposition of any such proceedings when the alien is not in the custody of such appropriate authority. If the alien is not convicted of the offense for which the alien was arrested, the Secretary shall continue to detain the alien until removal proceedings are completed. . (b) Prompt removal Section 239(d) of the Immigration and Nationality Act ( 8 U.S.C. 1229(d) ) is amended by adding at the end the following: (3) The Secretary of Homeland Security shall complete removal proceedings for any alien held pursuant to section 236(c)(1)(E) not later than 90 days after such alien is detained. . 4. Emergency immigration personnel (a) Goal It shall be the goal of the Attorney General, the Secretary of Homeland Security, and the Director of the Executive Office for Immigration Review to use the amounts appropriated pursuant to subsection (d) to bring a prompt resolution to immigration cases pertaining to aliens who are inadmissible under section 212(a)(2) or 237(a)(2) of the Immigration and Nationality Act ( 8 U.S.C. 1182(a) and 1227(a)). (b) Emergency immigration judges (1) Designation Not later than 14 days after the date of the enactment of this Act, the Attorney General shall designate up to 100 temporary immigration judges, for renewable 6-month terms, including by hiring retired immigration judges, magistrate judges, administrative law judges, or other qualified attorneys using the same criteria as applied to the hiring of permanent immigration judges. (2) Requirement The Attorney General shall ensure that sufficient immigration judge resources are dedicated to achieving the goal described in subsection (a). (c) Immigration litigation attorneys The Secretary of Homeland Security shall hire 150 new immigration litigation attorneys in the Field Legal Operations of U.S. Immigration and Customs Enforcement to ensure that the goal described in subsection (a) is achieved. (d) Authorization of appropriations There is authorized to be appropriated $100,000,000 to carry out this section. 5. Reporting requirements (a) Report required Not later than 180 days after the date of the enactment of this Act, and annually thereafter, the Secretary of Homeland Security shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that includes the information specified in subsection (b). (b) Contents The report required under subsection (a) shall describe— (1) the number of aliens currently present in the United States who have ever been arrested for a criminal offense; (2) the number of aliens currently present in the United States who have ever been convicted of a criminal offense; (3) the number of aliens with final orders of removal who are currently present in the United States and of such aliens— (A) how many have ever been arrested for any criminal offense; and (B) how many have ever been convicted for any criminal offense; (4) the number of detainers that were issued by the Department of Homeland Security during the previous fiscal year and the number of such detainers that were honored; and (5) during the previous fiscal year— (A) the number of aliens who were deported not later than 90 days after being detained by U.S. Immigration and Customs Enforcement, as required under section 239(d)(3) of the Immigration and Nationality Act ( 8 U.S.C. 1229(d) ) and the criminal offenses of such aliens; (B) of the aliens who should have been deported under such section and were not deported within 90 days of detention— (i) the reasons the aliens were not deported; and (ii) the criminal offenses of such aliens; and (C) of the aliens who were released from the custody of U.S. Immigration and Customs Enforcement and not deported— (i) the number of such aliens; (ii) the criminal offenses committed by such aliens; (iii) the conditions of their release; (iv) the number of aliens who committed a crime after being released from custody; and (v) a list of crimes committed by such aliens.