II Calendar No. 276 115th CONGRESS 1st Session S. 2199 IN THE SENATE OF THE UNITED STATES December 6, 2017 Mr. Flake introduced the following bill; which was read the first time December 7, 2017 Read the second time and placed on the calendar A BILL To authorize appropriations for border infrastructure construction, to provide conditional resident status to certain aliens, and to amend the Immigration and Nationality Act to include grounds of inadmissibility and deportability for alien members of criminal gangs and cartels, and for other purposes.

1. Short title This Act may be cited as the Border Security and Deferred Action Recipient Relief Act . 2. Definition of Secretary In this Act, the term Secretary means the Secretary of Homeland Security. 3. Border infrastructure construction (a) Border Security Trust Fund (1) Establishment There is established in the Treasury of the United States a trust fund, to be known as the Border Security Trust Fund (referred to in this section as the Trust Fund ), consisting of the amounts transferred from the general fund of the Treasury under paragraph (2). (2) Deposits Not later than the date that is the later of the date of enactment of this Act and September 30, 2020, the Secretary of the Treasury shall deposit in the Trust Fund, from the general fund of the Treasury, $1,571,239,000, to remain available until expended. (3) Repayment of costs (A) In general The Secretary of the Treasury shall use any Federal tax liability collected by the Secretary of the Treasury under section 244A(d)(6) of the Immigration and Nationality Act to recover the amount described in paragraph (2). (B) Surcharge authorized The Secretary may impose on any conditional permanent resident (as defined in section 244A(a) of the Immigration and Nationality Act) a surcharge in an amount determined by the Secretary to be the minimum proportional amount necessary to recover the amount equal to the difference between— (i) the amount described in paragraph (2); and (ii) the amount collected under subparagraph (A). (b) Border security expenditures Amounts in the Trust Fund shall be available without further appropriation for procurement, construction, and improvements as follows: (1) $784,000,000 for 32 miles of new border bollard fencing in the Rio Grande Valley in the State of Texas. (2) $498,000,000 for 28 miles of new bollard levee wall in the Rio Grande Valley in the State of Texas. (3) $251,000,000 for 14 miles of secondary fencing in San Diego, California. (4) $38,239,000 for planning activities relating to border wall construction. 4. Cancellation of removal of certain long-term residents who entered the United States as children (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. Cancellation of removal of certain long-term residents who entered the United States as children (a) Definitions In this section: (1) Active duty The term active duty has the meaning given the term in section 101 of title 10, United States Code. (2) Active service The term active service has the meaning given the term in section 101 of title 10, United States Code. (3) Active status The term active status has the meaning given the term in section 101 of title 10, United States Code. (4) Alien enlistee The term alien enlistee means a conditional permanent resident who seeks to maintain or extend conditional permanent resident status by means of satisfaction of the requirements of this section relating to enlistment and service in the Armed Forces. (5) Alien postsecondary student The term alien postsecondary student means a conditional permanent resident who seeks to maintain or extend such conditional permanent resident status by means of satisfaction of the requirements of this section relating to enrollment in, and graduation from, an institution of higher education. (6) Armed Forces The term Armed Forces has the meaning given the term armed forces in section 101 of title 10, United States Code. (7) Conditional permanent resident The term conditional permanent resident means an alien who is granted conditional permanent resident status under subsection (b)(1)(A). (8) Conviction (A) In general Subparagraph (B) of section 101(a)(48) shall not apply to the term conviction . (B) Exclusions The term conviction does not include— (i) an adjudication or judgment of guilt that has been dismissed, expunged, deferred, annulled, invalidated, withheld, or vacated; (ii) an order of probation without entry of judgment; or (iii) any similar disposition. (9) Institution of higher education (A) In general The term institution of higher education has the meaning given the term in section 102 of the Higher Education Act of 1965 ( 20 U.S.C. 1002 ). (B) Exclusion The term institution of higher education does not include an institution of higher education outside the United States. (10) Secretary The term Secretary means the Secretary of Homeland Security. (b) Cancellation of removal of certain long-term residents who entered the United States as children (1) Special rule for certain long-term residents who entered the United States as children (A) In general Notwithstanding any other provision of law and except as otherwise provided in this section, the Secretary may cancel the removal of, and grant conditional permanent resident status to, an alien who— (i) meets the qualifications described in subparagraph (B); and (ii) (I) is inadmissible under section 212(a) or deportable under section 237(a); or (II) is the child of an alien who is lawfully present in the United States pursuant to the status described in section 101(a)(15)(E)(ii). (B) Qualifications To qualify for cancellation of removal or conditional permanent resident status under subparagraph (A), an alien shall submit an application and supporting documentation that demonstrates by the preponderance of the evidence that— (i) the alien has been physically present in the United States for a continuous period since January 1, 2012; (ii) on the date on which the alien initially entered the United States, the alien was under 16 years of age; (iii) in the case of an alien who is 18 years of age or older on the date on which the alien submits an application under this subsection, the alien has— (I) earned— (aa) a high school diploma; or (bb) a commensurate alternative award from a public or private high school or secondary school; (II) obtained— (aa) a general education development certificate recognized under State law; or (bb) a high school equivalency diploma in the United States; (III) been admitted to an institution of higher education; or (IV) valid employment authorization; (iv) the alien has been a person of good moral character since the date on which the alien initially entered the United States; (v) subject to subparagraph (C)— (I) the alien is not inadmissible under paragraph (1), (2), (3), (4), (6)(E), (8), (10)(A), (10)(C), or (10)(D) of section 212(a); (II) the alien is not deportable under paragraph (1)(E), (1)(G), (2), (4), (5), or (6) of section 237(a); (III) the alien has not ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; and (IV) other than an offense under State or local law for which an essential element is the immigration status of the alien, a minor traffic offense, or a violation of this section, the alien has not been convicted of— (aa) any offense under Federal or State law punishable by a maximum term of imprisonment of more than 1 year; or (bb) any combination of offenses under Federal or State law, for which the alien was sentenced to imprisonment for a total of more than 1 year; and (vi) the alien has never been subject to a final administrative or judicial order of exclusion, deportation, or removal, except if the alien— (I) has remained in the United States under color of law after the date on which the order was issued; or (II) received the order before the date on which the alien attained the age of 18 years. (C) Waiver With respect to any benefit under this section, for humanitarian purposes, family unity, or for any other purpose for which a waiver would otherwise be in the public interest, the Secretary may waive— (i) subparagraph (B)(v)(IV); (ii) the grounds of inadmissibility under paragraphs (1), (4), and (6) of section 212(a); and (iii) the grounds of deportability under paragraph (1) of section 237(a). (D) Procedures The Secretary shall provide, by regulation, a procedure that allows eligible individuals to apply affirmatively for conditional permanent resident status under this paragraph without being placed in removal proceedings. (E) Submission of biometric and biographical data (i) In general The Secretary may not cancel the removal of an alien or grant conditional permanent resident status to an alien under this paragraph unless the alien submits to the Secretary biometric and biographical data, in accordance with procedures established by the Secretary. (ii) Alternative procedure The Secretary shall provide an alternative procedure for the submission of biometric and biographical data for any applicant for conditional permanent resident status who is unable to provide biometric or biographical data due to a physical impairment. (F) Background checks (i) Requirement for background checks The Secretary shall use biometric, biographical, and other data determined by the Secretary to be appropriate— (I) to conduct security and law enforcement background checks of any alien seeking cancellation of removal or conditional permanent resident status under this paragraph; and (II) to determine whether there is any criminal, national security, or other factor that would render the alien ineligible for cancellation of removal or conditional permanent resident status. (ii) Completion of background checks The security and law enforcement background checks under clause (i) shall be completed, to the satisfaction of the Secretary, before the date on which the Secretary cancels the removal of, or grants conditional resident status to, the alien under this paragraph. (G) Medical examination required (i) In general An alien who applies for cancellation of removal or conditional permanent resident status under this paragraph shall undergo a medical observation and examination in accordance with the policies and procedures prescribed under clause (ii). (ii) Procedures The Secretary, with the concurrence of the Secretary of Health and Human Services, shall prescribe policies and procedures for the nature and timing of medical observations and examinations for aliens applying for cancellation of removal or conditional permanent resident status under this paragraph. (H) Military selective service An alien subject to registration under the Military Selective Service Act ( 50 U.S.C. App. 451 et seq.) who applies for cancellation of removal or conditional permanent resident status under this paragraph shall provide to the Secretary evidence that the alien has registered that Act. (2) Termination of continuous period For purposes of this subsection, any period of continuous residence or continuous physical presence in the United States of an alien who applies for cancellation of removal or conditional permanent resident status under paragraph (1) shall not terminate on the date on which the alien is served a notice to appear under section 239(a). (3) Treatment of certain breaks in presence (A) In general For purposes of paragraph (1)(B)(i), an alien shall be considered to have failed to maintain continuous physical presence in the United States if the alien has remained outside the United States— (i) for any period of more than 90 days; or (ii) for 2 or more periods the total of which is more than 180 days. (B) Extension for exceptional circumstances The Secretary may extend a time period described in clause (i) or (ii) of subparagraph (A) by not more than 90 days if an alien demonstrates that the failure of the alien to timely return to the United States was due to exceptional circumstances, which shall be no less compelling than— (i) the serious illness of the alien; or (ii) the death or serious illness of a parent, grandparent, sibling, or child of the alien. (4) Regulations (A) Initial publication Not later than 180 days after the date of enactment of this section, the Secretary shall publish in the Federal Register interim regulations to implement this subsection. (B) Interim regulations Notwithstanding section 553 of title 5, United States Code, the interim regulations published under subparagraph (A)— (i) shall be effective, on an interim basis, immediately on the date on which the regulations are published; but (ii) may be subject to change and revision after public notice and a period of public comment. (C) Final regulations Within a reasonable period after the publication of the interim regulations under subparagraph (A), the Secretary shall publish final regulations to implement this subsection. (5) Removal of alien The Secretary may not remove any alien who— (A) has a pending application for conditional permanent resident status under this subsection; or (B) (i) establishes prima facie eligibility for cancellation of removal or conditional permanent resident status under paragraph (1); and (ii) is provided a reasonable opportunity to submit an application under that paragraph. (c) Conditional permanent resident status (1) Length of status Conditional permanent resident status granted under subsection (b)(1) shall be valid for an initial period of 5 years, subject to termination under paragraph (4). (2) Description of status A conditional permanent resident— (A) shall not be considered to be an alien who is unlawfully present in the United States for purposes of the immigration laws, including section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( 8 U.S.C. 1623 ); (B) shall be considered to be an alien lawfully admitted for permanent residence in the United States on a conditional basis; (C) shall be considered to have the intent to permanently reside in the United States; (D) shall not be required to have a foreign residence that the alien has no intention of abandoning; and (E) shall be considered to have been inspected and admitted for the purposes of section 245(a). (3) Terms of conditional permanent resident status (A) Employment A conditional permanent resident shall be authorized— (i) to be employed in the United States incident to conditional permanent resident status; and (ii) to enlist in the Armed Forces under section 504(b)(1)(D) of title 10, United States Code. (B) Travel A conditional permanent resident may— (i) travel outside the United States; and (ii) if otherwise admissible, be admitted on return to the United States without obtaining a visa if— (I) the conditional permanent resident is the bearer of valid, unexpired documentary evidence of conditional permanent resident status; and (II) (aa) the absence of the conditional permanent resident from the United States was for a period of not more than 180 days; or (bb) the conditional permanent resident was outside the United States due to active service in the Armed Forces. (4) Termination of status (A) In general The Secretary shall terminate the conditional permanent resident status of an alien if the Secretary determines that— (i) the alien is 18 years of age or older; and (ii) (I) in the case of— (aa) an alien postsecondary student, the alien has failed— (AA) to enroll in an accredited institution of higher education within 1 year after the date on which the alien was granted conditional permanent resident status; or (BB) to remain enrolled in an accredited institution of higher education as of the date that is 1 year after the date on which the alien was granted conditional permanent resident status; (bb) an alien described in subsection (b)(1)(B)(iii), during the 5-year period beginning on the date on which the alien was granted conditional permanent resident status, the alien has not been employed for a total period of not less than 4 years; or (cc) an alien enlistee, the alien— (AA) failed to enlist, and be accepted for enlistment, in the Armed Forces within 270 days after the date on which the alien was granted conditional permanent resident status; or (BB) has received a dishonorable or other than honorable discharge from the Armed Forces; (II) the alien ceases to meet the requirements of clause (iv) or (v) of subsection (b)(1)(B); or (III) the alien has become a public charge. (B) Return to previous immigration status An alien whose conditional permanent resident status is terminated under subparagraph (A) shall return to the immigration status of the alien on the day before the date on which the alien was granted conditional permanent resident status. (5) Extension of status (A) In general With respect to an alien granted conditional permanent resident status under subsection (b)(1), the Secretary shall extend the period of conditional permanent resident status of the alien for an additional period of 5 years if the alien meets each of the applicable requirements described in subparagraph (B). (B) Requirements (i) Good moral character The alien has demonstrated good moral character for the entire period during which the alien has been a conditional permanent resident. (ii) Compliance The alien meets the qualification described in subsection (b)(1)(B)(v). (iii) No abandonment of residence (I) In general The alien has not abandoned the residence of the alien in the United States. (II) Presumption (aa) In general For purposes of this clause, except as provided in item (bb), the Secretary shall presume that an alien has abandoned the residence of the alien in the United States if, during the period of conditional permanent resident status of the alien, the alien is absent from the United States for more than 365 days in the aggregate. (bb) Exception Notwithstanding an absence from the United States of more than 365 days in the aggregate during the period of conditional permanent resident status of an alien, the presumption described in item (aa) shall not apply if the alien demonstrates, to the satisfaction of the Secretary, that the alien has not abandoned the residence of the alien in the United States. (iv) Graduation In the case of an alien postsecondary student, the alien— (I) is 18 years of age or older; and (II) has graduated from an accredited institution of higher education. (v) Employment In the case of an alien described in subsection (b)(1)(B)(iii), during the 5-year period beginning on the date on which the alien was granted conditional permanent resident status, the alien has been employed for a total period of not less than 4 years. (vi) Enlistment In the case of an alien enlistee— (I) the alien has served as a member of a regular or reserve component of the Armed Forces in an active duty status for not less than 3 years; and (II) if the alien has been discharged, the alien received an honorable discharge. (d) Removal of conditional basis for permanent residence (1) Application to remove conditions (A) In general A conditional permanent resident may submit to the Secretary, in accordance with paragraph (3), an application— (i) to remove the conditional basis of permanent residency; and (ii) to have the status of the alien adjusted to that of an alien lawfully admitted for permanent residence. (B) Contents With respect to any application submitted under subparagraph (A), an alien shall include, under penalty of perjury, the facts and information necessary for the Secretary to make the determination described in paragraph (2)(A). (2) Adjudication of application for adjustment of status (A) In general With respect to an application submitted under paragraph (1) for an alien, the Secretary shall make a determination as to whether the alien meets the requirements described in paragraph (4). (B) Adjustment of status if favorable determination Notwithstanding any other provision of law, including paragraphs (2), (3), (4), and (8) of section 245(c), if the Secretary determines that an alien meets the requirements described in paragraph (4)(B), the Secretary shall— (i) approve the application; (ii) notify the alien of the determination; and (iii) adjust the status of the alien to the status of an alien lawfully admitted for permanent residence, which shall be effective as of the date of approval of the application. (C) Termination if adverse determination If the Secretary determines that the alien does not meet the requirements described in paragraph (4)(B), the Secretary shall— (i) deny the application; (ii) notify the alien of the determination; and (iii) terminate the conditional permanent resident status of the alien as of the date of the determination. (3) Time to file application (A) In general An alien shall submit an application for adjustment of status during the period beginning on the date on which the alien obtains an extension of status under subsection (c)(5) and ending on— (i) the date that is 10 years after the date on which the Secretary initially granted conditional permanent resident status to the alien; or (ii) the date on which the conditional permanent resident status of the alien, as extended by the Secretary under subsection (c)(5), expires. (B) Status during pendency During any period in which the application of an alien for adjustment of status under this subsection is pending, an alien shall be considered to be in conditional permanent resident status. (4) Contents of application (A) In general An application to remove conditions and adjust status under paragraph (1) shall contain information necessary for the Secretary to determine whether the alien meets each of the requirements described in subparagraph (B). (B) Requirements (i) Good moral character The alien has demonstrated good moral character for the entire period during which the alien has been a conditional permanent resident; (ii) Compliance The alien meets the requirements of subsection (b)(1)(B)(v); (iii) No abandonment of residence (I) In general The alien has not abandoned the residence of the alien in the United States. (II) Presumption (aa) In general For purposes of this subparagraph, except as provided in item (bb), the Secretary shall presume that an alien has abandoned the residence of the alien in the United States if, during the period of conditional permanent resident status, the alien is absent from the United States for more than 730 days in the aggregate. (bb) Exception Notwithstanding an absence from the United States of more than 730 days in the aggregate during the period of conditional permanent resident status of an alien, the presumption described in item (aa) shall not apply if the alien demonstrates, to the satisfaction of the Secretary, that the alien has not abandoned the residence of the alien in the United States. (III) Active service Any period during which an alien is absent from the United States due to active service in the Armed Forces shall not be counted toward the 730 days referred to in subclause (II)(aa). (5) Citizenship requirement (A) In general Except as provided in subparagraph (B), a conditional permanent resident shall not have the conditional basis for permanent residency removed or be adjusted to permanent resident status unless the alien demonstrates that the alien meets the requirements described in paragraphs (1) and (2) of section 312(a). (B) Exception Subparagraph (A) shall not apply to an alien who is unable to meet the requirements referred to in that subparagraph due to— (i) a physical or developmental disability; or (ii) a mental impairment. (6) Payment of Federal taxes (A) Definition of applicable Federal tax liability In this paragraph, the term applicable Federal tax liability means liability for Federal taxes imposed under the Internal Revenue Code of 1986, including any penalties and interest on taxes imposed under the Internal Revenue Code of 1986. (B) Payment required Not later than the date on which an alien submits an application for adjustment of status under paragraph (1), the alien shall satisfy any applicable Federal tax liability due and owing as of that date of submission. (7) Submission of biometric and biographical data (A) In general The Secretary may not adjust the status of an alien under this subsection unless the alien submits to the Secretary biometric and biographical data in accordance with procedures established by the Secretary. (B) Alternative procedure The Secretary shall provide an alternative procedure for the submission of biometric and biographical data for any applicant for adjustment of status who is unable to provide biometric or biographical data due to a physical impairment. (8) Background checks (A) Requirement for background checks The Secretary shall use biometric, biographical, and other data determined by the Secretary to be appropriate— (i) to conduct security and law enforcement background checks of any alien applying for adjustment of status under this subsection; and (ii) to determine whether there is any criminal, national security, or other factor that would render the alien ineligible for adjustment of status. (B) Completion of background checks The security and law enforcement background checks under subparagraph (A) shall be completed, to the satisfaction of the Secretary, before the date on which Secretary grants adjustment of status. (9) Exemption from numerical limitations Nothing in this subsection or in any other law applies a numerical limitation on the number of aliens who may be eligible for adjustment of status under this subsection. (10) Eligibility for naturalization (A) In general An alien whose status is adjusted under this subsection to that of an alien lawfully admitted for permanent residence may be naturalized in accordance with this Act if the alien meets the applicable requirements of the immigration laws. (B) Alien enlistees For purposes of section 316(a), an alien enlistee whose status is adjusted under this subsection— (i) shall be considered to have satisfied the requirements of paragraphs (1) and (2) of that section; and (ii) may apply for naturalization. (e) Treatment of aliens meeting requirements for extension of conditional permanent resident status (1) In general With respect to an alien, the Secretary may cancel removal and grant conditional permanent resident status under subsection (b)(1), and may extend conditional permanent resident status under subsection (c)(5), if, as of the date of enactment of this section, the alien has satisfied each requirement described in subsections (b)(1)(B) and (c)(5)(B). (2) Adjustment of status An alien may apply for adjustment of status under subsection (d)(1) if, during the entire period of conditional permanent resident status of the alien, the alien has met the requirements of subsection (c)(5)(B). (f) Exclusive jurisdiction (1) In general Except as provided in paragraph (2), the Secretary shall have exclusive jurisdiction to determine eligibility for relief under this section. (2) Exception In the case of an alien who has been placed in deportation, exclusion, or removal proceedings before or after the date on which the alien submits an application for cancellation of removal and conditional permanent resident status or adjustment of status under this section, the Attorney General— (A) shall have exclusive jurisdiction to determine eligibility for relief under this section; and (B) shall assume all powers and duties of the Secretary described in this section until the date on which— (i) deportation, exclusion, or removal proceedings are terminated; or (ii) a final order of deportation, exclusion, or removal is entered. (3) Effect of final order In the case of an alien for whom a final order of deportation, exclusion, or removal is entered, the Secretary shall resume all powers and duties delegated to the Secretary under this section. (4) Effect of grant of relief In the case of an alien with respect to whom a final order of deportation, exclusion, or removal has been entered, if the Secretary grants relief to the alien under this section, the Attorney General shall rescind the final order of deportation, exclusion, or removal. (g) Confidentiality of information (1) Prohibition Except as provided in paragraph (2), an officer or employee of the United States shall not— (A) use the information furnished by an individual in an application submitted to the Secretary under this section to initiate removal proceedings against any person identified in the application; (B) issue any publication in which the information furnished by any particular individual in an application under this section may be identified; or (C) permit any person (other than the Secretary, an officer or employee of the Federal Government, or the alien) to examine an application submitted under this section. (2) Required disclosure The Attorney General or the Secretary, as applicable, shall provide the information furnished by an individual in an application under this section, and any other information derived from the information, to— (A) a Federal, State, Tribal, or local law enforcement agency, intelligence agency, national security agency, component of the Department of Homeland Security, court, or grand jury in connection with a criminal investigation or prosecution, a background check conducted pursuant to the Brady Handgun Violence Protection Act ( Public Law 103–159 ; 107 Stat. 1536) (or an amendment made by that Act), or for homeland security or national security purposes, if— (i) the information is requested by the Federal, State, Tribal, or local law enforcement agency, intelligence agency, national security agency, component of the Department of Homeland Security, court, or grand jury; and (ii) the provision of the information is consistent with an information sharing agreement or mechanism; or (B) an official coroner for purposes of affirmatively identifying a deceased individual (whether or not the deceased individual is deceased as a result of a crime). (3) Fraud in application process or criminal conduct Notwithstanding any other provision of this subsection, information relating to whether an alien seeking cancellation of removal or conditional permanent resident status under this section has engaged in fraud in an application for relief or has, at any time, committed a crime may be used or released for immigration enforcement, law enforcement, or national security purposes. (4) Penalty Any person who knowingly uses or publishes information, or permits information to be examined, in violation of this subsection shall be fined not more than $10,000. (h) Treatment of conditional permanent residents for certain purposes (1) In general During the period in which an alien is in conditional permanent resident status, the alien shall be considered to be lawfully present for all purposes. (2) 5-year eligibility waiting period under PRWORA An alien who has met the requirements for adjustment of status from conditional permanent resident to lawful permanent resident under this section shall be considered to have completed the 5-year period described in section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ( 8 U.S.C. 1613 ) as of the date on which the adjustment of status is granted. (i) GAO report Not later than 7 years after the date of enactment of this section, the Comptroller General of the United States shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report that includes the number of aliens— (1) who were eligible for cancellation of removal or conditional permanent resident status under subsection (b)(1); (2) who applied for cancellation of removal or conditional permanent resident status under that subsection; (3) who were granted conditional permanent resident status under that subsection; and (4) whose status was adjusted to that of an alien lawfully admitted for permanent residence under subsection (d). (j) Naturalization of alien enlistees For purposes of sections 328 and 329, an alien enlistee shall be considered to have been lawfully admitted for permanent residence, without regard to the conditional status of that admission. . (b) Military enlistment Section 504(b)(1) of title 10, United States Code, is amended by adding at the end the following: (D) An alien who is a conditional permanent resident (as defined in section 244A(a) of the Immigration and Nationality Act). . (c) Conforming 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. Cancellation of removal of certain long-term residents who entered the United States as children. . 5. Grounds of inadmissibility and deportability for alien members of criminal gangs or cartels (a) Definition of criminal gang or cartel Section 101(a) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a) ) is amended— (1) by striking the subsection designation and all that follows through this Act— and inserting the following: (a) In general In this Act: ; and (2) by adding at the end the following: (53) Criminal gang or cartel The term criminal gang or cartel means an ongoing group, club, organization, or association comprised of 5 or more individuals— (A) (i) that has as a primary purpose the commission of 1 or more of the criminal offenses described in section 220(b)(2); and (ii) the members of which engage, or have engaged during the 5 years immediately preceding the most recent commission of an offense described in section 220(b)(2), in a continuing series of offenses described in section 220(b)(2); or (B) that has been designated as a criminal gang or cartel under section 220(b)(1). . (b) Inadmissibility Section 212(a)(2) of the Immigration and Nationality Act ( 8 U.S.C. 1182(a)(2) ) is amended by adding at the end the following: (J) Aliens associated with criminal gangs or cartels Any alien is inadmissible who a consular officer, the Secretary of Homeland Security, or the Attorney General knows or has reason to believe— (i) is or has been a member of a criminal gang or cartel; or (ii) has participated in any activity of a criminal gang or cartel, knowing or having reason to know that the activity would promote, further, aid, or support the illegal activity of the criminal gang or cartel. . (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 or cartels Any alien is deportable who— (i) is or has been a member of a criminal gang or cartel; or (ii) has participated in any activity of a criminal gang or cartel, knowing or having reason to know that the activity would promote, further, aid, or support the illegal activity of the criminal gang or cartel. . (d) Designation of a criminal gang or cartel (1) In general Chapter 2 of title II of the Immigration and Nationality Act ( 8 U.S.C. 1182 et seq.) is amended by inserting after section 219 the following: 220. Designation of a criminal gang or cartel (a) Definitions In this section: (1) Classified information The term classified information has the meaning given the term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.). (2) National security The term national security means the national defense, foreign relations, or economic interests of the United States. (3) Relevant committees 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) Secretary The term Secretary means the Secretary of Homeland Security, in consultation with the Attorney General. (b) Designation (1) In general The Secretary may designate as a criminal gang or cartel a group, club, organization, or association comprised of 5 or more individuals if the Secretary makes a determination that— (A) the group, club, organization, or association has as a primary purpose the commission of 1 or more criminal offenses described in paragraph (2); and (B) the members of the group, club, organization, or association engage, or, during the 5 years immediately preceding the most recent commission of an offense described in section 220(b)(2), have engaged in a continuing series of offenses described in paragraph (2). (2) Offenses The criminal offenses described in this paragraph, whether committed in violation of Federal, State, or foreign law and regardless of whether an offense occurred before, on, or after the date of enactment of this section, are the following: (A) Felony drug offense A felony drug offense (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 )). (B) Bringing in and harboring aliens An offense described in section 274 (relating to bringing in and harboring certain aliens). (C) Aiding or assisting entry An offense described in section 277 (relating to aiding or assisting certain aliens to enter the United States). (D) Importation for an immoral purpose An offense described in section 278 (relating to importation of an alien for an immoral purpose). (E) Crime of violence A crime of violence (as defined in section 16 of title 18, United States Code). (F) Crime involving obstruction, tampering, retaliation, or burglary A crime involving— (i) obstruction of justice; (ii) tampering with, or retaliating against, a witness, victim, or informant; or (iii) burglary. (G) Other crimes Any conduct punishable under— (i) sections 1028 or 1029 of title 18, United States Code (relating to fraud and related activity in connection with identification documents or access devices); (ii) sections 1581 through 1594 of that title (relating to peonage, slavery, and trafficking in persons); (iii) section 1951 of that title (relating to interference with commerce by threats or violence); (iv) section 1952 of that title (relating to interstate and foreign travel or transportation in aid of racketeering enterprises); (v) section 1956 of that title (relating to the laundering of monetary instruments); (vi) section 1957 of that title (relating to engaging in monetary transactions in property derived from specified unlawful activity); or (vii) sections 2312, 2313, 2314, or 2315 of that title (relating to interstate transportation of stolen motor vehicles or stolen property). (H) Conspiracy A conspiracy to commit an offense described in subparagraphs (A) through (G). (3) Procedure (A) Notification Not later than 7 days before the date on which the Secretary designates a criminal gang or cartel under this subsection, the Secretary shall submit to 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, by classified communication, a notice of intent to designate the criminal gang or cartel that describes the factual basis for the designation. (B) Publication in the Federal Register Not later than 7 days after the date described in subparagraph (A), the Secretary shall publish notice of the designation in the Federal Register. (4) Record (A) In general In making a designation under this subsection, the Secretary shall develop an administrative record. (B) Classified information (i) In general In making a designation under this subsection, the Secretary may consider classified information, which, except as provided in clause (ii), shall not be subject to disclosure for any period during which the classified information remains classified. (ii) Disclosure for judicial review For purposes of judicial review under subsection (d), classified information referred to in clause (i) may be disclosed to a court ex parte and in camera. (5) Period of designation A designation under this subsection shall be effective until the date on which the designation— (A) is revoked under paragraph (7); or (B) set aside under subsection (d). (6) Review of designation (A) Petition for review (i) In general The Secretary shall review the designation of a criminal gang or cartel under the procedures described in clauses (iii) and (iv) if the criminal gang or cartel submits to the Secretary a petition for review not later than— (I) in the case of a designated criminal gang or cartel that has not previously submitted a petition for review under this subparagraph, the date that is 2 years after the date on which the Secretary makes the designation; and (II) in the case of a designated criminal gang or cartel that has previously submitted a petition for review under this subparagraph, the date that is 2 years after the date on which the Secretary made a determination under clause (iv) on the most recent petition for review submitted by the criminal gang or cartel. (ii) Evidence Any group, club, organization, or association designated as criminal gang or cartel that submits a petition for review under this subparagraph shall include in the petition evidence that the group, club, organization, or association does not meet the criteria for designation as a criminal gang or cartel under paragraph (1). (iii) Determination (I) In general Not later than 180 days after the date on which the Secretary receives a petition for review under this subparagraph, the Secretary shall make a determination on the petition. (II) Classified information (aa) In general In making a determination on a petition for review under this subparagraph, the Secretary may consider classified information, which, except as provided in item (bb), shall not be subject to disclosure for any period during which the classified information remains classified. (bb) Disclosure for judicial review For purposes of judicial review under subsection (d), classified information referred to in item (aa) may be disclosed to a court ex parte and in camera. (III) Publication of determination Not later than 90 days after the date on which the Secretary makes a determination on a petition for review under this clause, the Secretary shall publish the determination in the Federal Register. (IV) Procedures A revocation of a designation by the Secretary in accordance with a determination under this subparagraph shall be made in accordance with paragraph (7). (B) Other review of designation (i) In general Not later than 5 years after the date on which the Secretary designates a criminal gang or cartel under paragraph (1), in the case of a criminal gang or cartel for which a review has not been carried out under subparagraph (A), the Secretary shall initiate a review of the designation to determine whether to revoke the designation under paragraph (7). (ii) Procedures (I) In general A review initiated by the Secretary under clause (i) shall be carried out in accordance with such procedures determined by the Secretary to be appropriate. (II) Judicial review A review under subclause (I) and the procedures established under that subclause shall not be subject to judicial review. (iii) Publication of results of review Not later than 90 days after the date on which the Secretary makes a determination based on a review under this subparagraph, the Secretary shall publish the determination in the Federal Register. (7) Revocation based on change in circumstances (A) In general With respect to a designation under paragraph (1), the Secretary— (i) may revoke the designation at any time; and (ii) shall revoke the designation if, on completion of a review carried out under paragraph (6), the Secretary determines that— (I) the criminal gang or cartel does not meet the criteria for designation as a criminal gang or cartel under paragraph (1); or (II) the national security or the law enforcement interests of the United States warrants a revocation. (B) Notification Not later than 7 days before revoking a designation under paragraph (A), the Secretary shall submit to 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, by classified communication, a notice of intent to revoke the designation describing the basis for the revocation. (C) Publication in the Federal Register Not later than 7 days after the date described in subparagraph (B), the Secretary shall publish a notice of revocation in the Federal Register. (D) Record (i) In general In revoking a designation under this paragraph, the Secretary shall develop an administrative record. (ii) Classified information (I) In general In revoking a designation under this paragraph, the Secretary may consider classified information, which, except as provided in subclause (II), shall not be subject to disclosure for any period during which the classified information remains classified. (II) Disclosure for judicial review For purposes of judicial review under subsection (d), classified information referred to in subclause (I) may be disclosed to a court ex parte and in camera. (E) Effective date A revocation under this paragraph shall take effect— (i) on the date specified in the notice of revocation published under subparagraph (C); or (ii) if a date is not specified in the notice of revocation, on the date on which the notice of revocation is published in the Federal Register. (8) Effect of revocation A revocation under paragraph (7) shall not affect any action or proceeding based on conduct that occurs before the effective date of the revocation. (9) Use of designation in removal proceedings The Attorney General shall not allow an alien in removal proceedings to raise, as a defense or an objection, a question relating to the validity of a designation under paragraph (1). (c) Modifications to a designation (1) In general With respect to a designation under subsection (b)(1), the Secretary may modify the designation if the Secretary determines that the criminal gang or cartel has— (A) changed name; (B) adopted a new alias; (C) dissolved and reestablished under 1 or more different names; or (D) merged with another criminal gang or cartel. (2) Procedure (A) Notification Not later than 7 days before the date on which the Secretary modifies the designation of a criminal gang or cartel under this subsection, the Secretary shall submit to 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, by classified communication, a notice of intent to modify the designation describing the factual basis for the modification. (B) Publication in the Federal Register Not later than 7 days after the date described in subparagraph (A), the Secretary shall publish notice of the modification in the Federal Register. (C) Classified information (i) In general In modifying a designation under this subsection, the Secretary may consider classified information, which, except as provided in clause (ii), shall not be subject to disclosure for any period during which the classified information remains classified. (ii) Disclosure for judicial review For purposes of judicial review under subsection (d), classified information referred to in clause (i) may be disclosed to a court ex parte and in camera. (D) Effective date Any modification under this subsection shall take effect on the date of publication of the modification under subparagraph (B). (3) Administrative record The administrative record developed under subsection (b)(4) shall be supplemented to include— (A) any modification under this subsection; and (B) any relevant information that supports the modification. (d) Judicial review of designation (1) In general Not later than 30 days after the date on which a designation under subsection (b)(1), a determination under subsection (b)(6)(A), or a modification under subsection (c) is published in the Federal Register, a criminal gang or cartel may seek judicial review of the designation, determination, or modification, as applicable, in the United States Court of Appeals for the District of Columbia Circuit (referred to in this subsection as the court ). (2) Basis of review (A) In general Except as provided in subparagraph (B), judicial review under this subsection shall be based only on the administrative record developed under subsection (b)(4). (B) Exception The Government may submit, for ex parte and in camera review, classified information used as a basis for— (i) a designation under subsection (b)(1); (ii) a determination under subsection (b)(6)(A); or (iii) a modification under subsection (c). (3) Scope of review The court shall hold unlawful, and set aside, any designation under subsection (b)(1), determination under subsection (b)(6)(A), or modification under subsection (c) that is, as determined by the court— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitation; (D) short of statutory right; (E) lacking substantial support— (i) in the administrative record, taken into consideration as a whole; or (ii) in classified information submitted to the court under paragraph (2)(B); or (F) not in accordance with a procedure required by law. (4) Judicial review invoked The pendency of an action for judicial review under this subsection shall not affect the application of this section to a criminal gang or cartel unless the court issues a final order setting aside the designation, determination, or modification. . (2) Conforming 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 a criminal gang or cartel. . (e) Mandatory detention of alien members of criminal gangs or cartels (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 (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 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) is inadmissible under section 212(a)(2)(J) or deportable under section 237(a)(2)(G), . (2) Annual report Not later than March 1 of each year (beginning 1 year after the date of enactment of this Act), the Secretary, 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 that includes the number of aliens detained under subparagraph (E) of section 236(c)(1) of the Immigration and Nationality Act ( 8 U.S.C. 1226(c)(1) ) during the preceding calendar year. (f) Relief 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. 1231(b)(3)(B) ) is amended— (A) by redesignating clauses (i) through (iv) as items (aa) through (dd), respectively, and indenting the items appropriately; (B) in the matter preceding item (aa) (as so redesignated), by striking apply to an alien deportable under section 237(a)(4)(D) or if the Attorney General decides that— and inserting the following: “apply— (i) to an alien— (I) described in section 212(a)(2)(J)(i); (II) described in section 237(a)(2)(G)(i); or (III) who is deportable under section 237(a)(4)(D); or (ii) if the Attorney General determines that— ; and (C) in the undesignated matter following item (dd) (as so redesignated)— (i) in the first sentence, by striking clause (ii) and inserting item (bb) ; and (ii) in the third sentence, by striking clause (iv) and inserting item (dd) . (2) Ineligibility for asylum Section 208(b)(2)(A) of the Immigration and Nationality Act ( 8 U.S.C. 1158(b)(2)(A) ) is amended— (A) in clause (v), by striking ; or and inserting a semicolon; (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 (1) In general Section 244 of the Immigration and Nationality Act ( 8 U.S.C. 1254a ) is amended— (A) by striking Attorney General each place it appears and inserting Secretary of Homeland Security ; (B) in subsection (c)(2)(B)— (i) in clause (i), by striking , or and inserting a semicolon; (ii) in clause (ii), by striking the period at the end and inserting ; or ; and (iii) by adding at the end the following: (iii) the alien is described in section 212(a)(2)(J) or section 237(a)(2)(G). ; and (C) in subsection (d)— (i) in paragraph (2)— (I) in the first sentence, by striking Subject to paragraph (3), such documentation and inserting The documentation referred to in paragraph (1) ; and (II) in the second sentence, by striking (under paragraph (3)) ; (ii) by striking paragraph (3); (iii) by redesignating paragraph (4) as paragraph (3); and (iv) in paragraph (3) (as so redesignated), by striking An alien provided and inserting the following: (A) In general Except as provided in subparagraph (B), the Secretary of Homeland Security may detain an alien provided temporary protected status under this section, as determined by the Secretary to be appropriate under the law. (B) Exception An alien provided . (2) Conforming amendment Section 244(b)(3)(B) of the Immigration and Nationality Act ( 8 U.S.C. 1254a(b)(3)(B) ) is amended in the second sentence by striking is effective in accordance with subsection (d)(3), but . (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 and inserting a semicolon; (2) in subclause (II), by striking the semicolon at the end and inserting ; and ; and (3) by adding at the end the following: (III) no alien described in section 212(a)(2)(J) or section 237(a)(2)(G) shall be eligible for any immigration benefit under this subparagraph; . (i) Parole Section 212(d)(5) of the Immigration and Nationality Act ( 8 U.S.C. 1182(d)(5) ) is amended— (1) by striking Attorney General each place it appears and inserting Secretary of Homeland Security ; (2) by striking the paragraph designation and all that follows through in his discretion in subparagraph (A) and inserting the following: (5) Parole (A) In general Except as provided in subparagraphs (B) and (C) and in section 214(f), the Secretary of Homeland Security may ; and (3) by adding at the end the following: (C) Aliens associated with criminal gangs or cartels (i) In general Except as provided in clause (ii), the Secretary of Homeland Security shall not parole into the United States an alien described in section 212(a)(2)(J). (ii) Exception The Secretary of Homeland Security may parole into the United States an alien described in section 212(a)(2)(J) if— (I) the alien is assisting or has assisted the Government in a law enforcement matter, including a criminal investigation; and (II) the presence of the alien in the United States is required by the Government for purposes of such assistance. . (j) Applicability The amendments made by this section shall apply to conduct that occurs before, on, or after the date of enactment of this Act. 6. Border access roads (a) Construction (1) In general The Secretary shall commence and complete the construction of roads along the southern border to facilitate safe and swift access for U.S. Customs and Border Protection personnel to access the border for purposes of patrol and apprehension. (2) Types of roads The roads constructed under paragraph (1) shall include— (A) access roads; (B) border roads; (C) patrol roads; and (D) Federal, State, local, and privately-owned roads. (b) Maintenance The Secretary, in partnership with local stakeholders, shall maintain roads used for purposes of patrol and apprehension. (c) Policy guidance The Secretary shall— (1) develop policies and guidance for documenting agreements with landowners relating to the construction of roads under subsection (a), as the Secretary determines to be necessary; (2) share the policies and guidance developed under paragraph (1) with each Border Patrol Sector of U.S. Customs and Border Protection; (3) document and communicate the process and criteria for prioritizing funding for operational roads not owned by the Federal Government; and (4) assess the feasibility of options for addressing the maintenance of non-Federal public roads, including any data needs relating to such maintenance.

December 7, 2017 Read the second time and placed on the calendar