Immigration Enforcement: Major Provisions in H.R. 2278, the Strengthen and Fortify Enforcement Act (SAFE Act)
Released: 2013-08-20T00:00:00

Introduction

There has been significant activity in the 113 th Congress concerning legislative proposals to reform the nation's immigration laws. In June, the Senate passed an omnibus immigration bill ( S. 744 ) that addresses a broad array of issues, including immigration enforcement and border security, verification of aliens' employment eligibility, the temporary and permanent admission of foreign nationals into the country, and the creation of mechanisms for some unauthorized aliens to acquire legal status. The House, in contrast, is considering a number of stand-alone bills that would reform specific aspects of immigration law. The House Judiciary Committee has ordered several of these bills to be reported. Some of these legislative proposals contain provisions that broadly correspond with provisions found in the Senate bill, whereas other House proposals take a markedly different approach.

H.R. 2278 , the Strengthen and Fortify Enforcement Act (SAFE Act), is aimed at increasing immigration control and enforcement, particularly within the interior of the United States. Many of the SAFE Act's provisions appear intended to address and override court decisions that have narrowly construed existing statutory authorities for immigration enforcement. The bill would heighten penalties associated with violations of federal immigration laws; clarify or establish rules intended to facilitate the detention and removal of aliens who lack authorization to remain in the United States, particularly when such aliens have been involved in criminal activity; impose additional requirements concerning security-related background checks and screening of aliens seeking admission, status, or benefits under immigration law; and encourage states and localities to play an increased role in immigration enforcement.

During Judiciary Committee hearings, several significant amendments were made to the bill, including provisions which would generally make unlawful presence by an alien a criminal offense, require the establishment of a biometric entry/exit system within two years of the bill's enactment, and generally constrain the exercise of prosecutorial discretion in the removal process.

While the SAFE Act contains a few provisions which resemble those found in S. 744 , there are notable differences in both the breadth of the bills' enforcement provisions and their approach to the unauthorized alien population. The SAFE Act generally imposes more significant penalties for immigration-related violations and more stringent requirements relating to the detention and removal of aliens than the Senate-passed bill. Perhaps most significantly, the SAFE Act would make an alien's knowing unauthorized presence a criminal offense, whereas the Senate bill would not make unlawful presence a crime. In fact, the Senate bill would establish procedures whereby some of the current unauthorized population could potentially acquire legal status, while neither the SAFE Act nor the other bills ordered to be reported by the House Judiciary Committee, to date, make similar provisions for legalization. Indeed, the SAFE Act's provisions much more closely resemble the last comprehensive immigration enforcement legislation passed by the House, H.R. 4437 , the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, though it differs from the earlier legislation on many specific matters.

This report describes and analyzes the SAFE Act, as ordered reported out of the House Judiciary Committee. The report's discussion of SAFE Act is arranged by issue area, and considers how the bill modifies current laws concerning immigration-related sanctions; the consideration and review of immigration-related applications and petitions; the detention and removal of aliens; visa issuance and security; naturalization reform; federal immigration enforcement operations; and state and local involvement in immigration enforcement. It will be updated as events require.

Immigration-Related Sanctions

In addition to establishing a comprehensive set of rules governing the admission, continued presence, and departure of foreign nationals, the Immigration and Nationality Act (INA) currently provides for an enforcement regime to deter violations of these rules. Some violations may be subject to criminal fines and imprisonment; others are subject to civil monetary penalties; and still others, if committed by an alien, may be grounds for denying the alien admission into the country or removing the alien from the United States.

The SAFE Act seeks to bolster this enforcement regime in various ways. It would expand the scope of many immigration-related criminal statutes, including by making unlawful presence a criminal offense. It would also expand the grounds for removability to cover additional types of criminal activity, and broaden the INA's definition of "aggravated felony" to include more criminal offenses. In addition, it would expand the immigration consequences of criminal activity and certain activities posing a danger to U.S. security (e.g., terrorist activity).

Immigration-Related Crimes

Congress has established criminal penalties for a variety of activities that undermine immigration rules and requirements (and convictions for some of these offenses, in turn, may have implications upon aliens' ability to remain in the United States). Some criminal offenses concern conduct taken by aliens in contravention of immigration rules which govern their admission and presence in the United States, whereas others may be applicable to both aliens and U.S. citizens who facilitate violations of federal immigration law. Several provisions of federal law, found either in the INA or in the U.S. Criminal Code, impose criminal penalties for various activities that undermine immigration rules and requirements, including entering the country unlawfully, forging or using falsely made documents to satisfy immigration requirements, and bringing in and harboring certain aliens. The SAFE Act would make changes to several existing immigration-related criminal offenses, typically by widening their scope and by heightening the available penalties.

Unlawful Entry, Presence, and Reentry

Currently, under the INA, an alien who unlawfully enters the United States not only is subject to removal, but also potentially faces criminal sanctions. INA Section 275 makes unlawful entry a criminal offense punishable as a misdemeanor in the case of a first violation, and punishable as a felony in the case of a subsequent conviction. INA Section 276 similarly makes it a felony for an alien to unlawfully reenter the United States in violation of an outstanding order of removal. However, unlawful presence by an alien is not a criminal offense, absent certain aggravating factors.

Section 315 of the SAFE Act would rewrite INA Section 275 and significantly expand its scope, making it a criminal offense for an alien to knowingly (1) violate the terms of admission or parole, or (2) be unlawfully present in the country. First time offenders would generally be subject to a fine and/or imprisonment for up to six months, but heightened penalties would be available if the alien had prior criminal convictions. A second or subsequent conviction for illegally entering or crossing the border of the United States would be subject to felony penalties, as would a second or subsequent offense for violating the terms of admission or parole into the country. However, a second or subsequent offense under the provision more generally criminalizing unlawful presence would remain a misdemeanor (absent prior criminal convictions).

For purposes of the amended statute, "unlawful presence" would be defined with reference to INA Section 212(a)(9)(B), and would also incorporate that provision's exceptions. Accordingly, unlawful presence would not cover any unauthorized period while the alien was a minor. Criminal liability would also generally not attach to unauthorized aliens with bona fide pending asylum applications, battered women or children, or victims of severe forms of trafficking.

Section 315 of the bill would also amend INA Section 275 to cover instances where an alien illegally "crosses the border." This provision responds to jurisprudence interpreting the current unlawful entry statute as not covering situations where an alien crosses the border while under the surveillance of law enforcement. Unlawful entry or presence would also be deemed to constitute continuing offenses until an alien was discovered by an immigration, customs, or agriculture officer, meaning that the statute of limitations for prosecuting such offenses would not begin until the alien had been detected by the designated federal authorities. Under current law, the crime of unlawful entry ends (and the statute of limitations for prosecution is triggered) once the entry is completed. The bill would also increase the criminal penalties associated with unlawful entry/border crossing offenses in certain situations.

In revising INA Section 275, the SAFE Act also eliminates certain provisions that currently impose criminal penalties upon persons who engage in marriage-based immigration fraud or establish a commercial enterprise for the purposes of evading immigration laws. It is unclear whether this omission was the result of a drafting error or due to a belief that such conduct could be punished under other provisions of current law.

Section 316 of the bill would amend INA Section 276, which generally makes it a felony for an alien who was previously removed from the United States to reenter the country while the order of removal remains in effect. The bill would expand the statute's scope to cover instances where a removed alien thereafter crossed the border without authorization, even if such conduct might not constitute "entry" into the country. It would also modify the available penalty enhancements for aliens convicted of a second or subsequent offense under INA Section 276, or who had been convicted of certain crimes prior to their removal. It would eliminate an existing provision in INA Section 276 which allows an alien charged with unlawful reentry, in limited circumstances, to challenge the validity of the removal order he is alleged to have violated. However, this provision may be in tension with the Supreme Court's ruling in United States v. Mendoza-Lopez , where the Court held that due process considerations required that "a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted[,] where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review."

Fraud-Related Crimes

Given that an estimated 11.1 million aliens are residing in the United States without legal authorization, it is reasonable to presume that many of these unauthorized aliens are committing some type of immigration-related document fraud, particularly those who are employed.

The SAFE Act would modify several existing criminal sanctions applicable to identify theft and immigration-related document fraud. Section 312 of the bill would amend the federal statutes concerning fraud involving identification documents and aggravated identity theft to cover instances where the offender uses a means of identification that is not his own, regardless of whether it belongs to another person.

Section 317 of the bill would rewrite Chapter 75 of the U.S. Criminal Code, which addresses immigration document and passport fraud. Notable changes made by the bill include increasing the maximum penalties available for some offenses; lowering the degree of mental culpability required for criminal liability to attach for certain offenses; specifying that attempts or conspiracies to commit an offense under the Chapter are punishable to the same degree as a completed offense; and making it a crime to defraud any person on a matter that is authorized by or arises under immigration laws. Section 409 of the bill would also amend Chapter 75 to add specific penalties for fraud committed by the owner or personnel of an education institution with respect to the institution's participation in the Student and Exchange Visitor Program (SEVP, discussed later in "Student Visas"). Additionally, Section 318 of the bill would amend the federal civil forfeiture statute to permit the seizure and forfeiture of any property or proceeds traceable to a violation of Chapter 75 of the U.S. Criminal Code.

Alien Smuggling

INA Section 274, commonly referred to as the alien smuggling and harboring statute, currently proscribes various activities that facilitate aliens entering and living in the United States without lawful status. Section 314 of the SAFE Act would rewrite and reorganize INA Section 274. As amended, the statute would, among other things, cover additional extraterritorial conduct which assists aliens seeking to unlawfully enter the United States; grant federal courts extraterritorial jurisdiction over proscribed conduct; expand the scope of property that may be subject to forfeiture on account of its relationship to a violation of INA Section 274; and impose heightened penalties (including minimum sentencing requirements) for many smuggling offenses. In rewriting the smuggling statute, the bill eliminates the provision in current law imposing criminal penalties upon persons that hire 10 or more aliens known to have been smuggled into the country.

Section 314 would also modify language in INA Section 274 concerning authority to make arrests for violations of the alien smuggling and harboring statute. Under current law, arrests may be made by designated immigration officers or any other officer "whose duty it is to enforce criminal laws"—a clause that has been interpreted to permit arrests by state and local police. As revised by Section 314, however, no person is authorized to arrest persons for violations of INA Section 274 except officers and employees designated by the Secretary of the Department of Homeland Security (DHS), or other "officers responsible for the enforcement of Federal criminal laws." It is possible that the amended language could be construed as barring state and local police from arresting persons suspected of violating INA Section 274, as the enforcement of federal criminal laws might not be considered the "responsibility" of sub-federal officers, notwithstanding their ability to make arrests for many federal criminal law violations as a matter of discretion. On the other hand, as discussed later, Section 102 of the SAFE Act generally authorizes state and local police to make arrests for violations of federal immigration law "to the same extent as Federal law enforcement personnel," and the amended Section 274 could potentially be construed in light of this provision.

The bill would also make persons who use firearms during the commission of certain violations of INA Section 274 subject to additional criminal penalties under the U.S. Criminal Code.

Other Modifications to Criminal Laws

Section 304 of the bill would amend the criminal statute barring the possession of guns or sale of guns to certain categories of aliens, so as to more broadly cover any alien not admitted for lawful permanent residence (with limited exceptions). Section 305 would establish a uniform, 10-year statute of limitations for the prosecution of federal crimes concerning peonage, human trafficking, document fraud, and several other immigration-related offenses currently found in the INA and the U.S. Criminal Code (many of these offenses are currently subject to a five-year statute of limitations). Section 313 would amend the federal money laundering statute to cover laundering in connection with offenses under INA Section 274(a) (alien smuggling and harboring) and 18 U.S.C. Section 1590 (trafficking with respect to peonage, slavery, involuntary servitude, or forced labor), and it would also make a few non-immigration specific alterations to the money laundering statute. Section 323 of the bill would amend INA Section 243(a), which establishes criminal penalties for aliens who fail to comply with an order of removal, to cover aliens described in either the grounds for deportation or inadmissibility who fail to comply with a removal order. Current law only covers the grounds for deportability.

Immigration Consequences of Criminal and Terrorist Activity

Both criminal activity and involvement in conduct posing a threat to U.S. security (including terrorist activity) currently may potentially bar an alien from entering or remaining in the United States, obtaining relief from removal (e.g., asylum), qualifying for immigration benefits or naturalization, or re-entering the country following departure. With respect to criminal activity, several specific criminal offenses or general categories of crimes constitute grounds for inadmissibility and deportability. The most significant immigration consequences typically attach to aliens convicted of any offense defined as an "aggravated felony" by the INA. The SAFE Act would include additional offenses within the definition of "aggravated felony," and expand the criminal grounds for removability. It would also limit criminal or terrorist aliens' eligibility for relief from removal.

Definition of Aggravated Felony

INA Section 101(a)(43) currently provides a list of crimes deemed to be aggravated felonies for immigration purposes; a list which Congress has repeatedly expanded over the years to cover additional crimes. The list includes many specific offenses (e.g., violations of particular federal tax statutes), as well as several broad categories of crimes (e.g., crimes of violence). Moreover, the definition is not limited to offenses that are punishable as felonies (i.e., offenses punishable by at least a year and a day imprisonment); certain misdemeanors are also defined as aggravated felonies for INA purposes. This term can potentially cover designated crimes regardless of whether they are violations of federal, state, or foreign law.

The SAFE Act would make several changes to the aggravated felony definition. Section 301 would add more crimes to the list of aggravated felonies (e.g., manslaughter, any offense of a sexual nature involving a person who is under 18 years of age); expand the scope of alien smuggling offenses and immigration-related document fraud offenses covered under the aggravated felony definition; and make a second conviction for driving while intoxicated an aggravated felony, regardless of whether such offense constituted a misdemeanor or felony under state law.

Section 301 would also provide that offenses under INA Section 275 (which, as amended, addresses both unlawful entry and presence by an alien) or INA Section 276 (unlawful reentry by a removed alien) constitute aggravated felonies, so long as the length of imprisonment for the offense is at least a year . Although the SAFE Act would amend INA Section 275 to criminally sanction both unlawful entry and unlawful presence, neither offense would normally constitute an aggravated felony in the case of a first offense. However, unlawful entry or unlawful presence could constitute aggravated felonies in other circumstances, including when the offender had previously been convicted of certain crimes.

In addition, although the existing definition of "aggravated felony" provides that attempts or conspiracies to commit listed offenses constitute aggravated felonies themselves, section 301 would expand this clause to cover the soliciting, aiding, abetting, counseling, commanding, inducing, or procuring of the commission of any offense listed as an aggravated felony. The bill would further specify that, in cases where length of imprisonment may determine whether or not an offense is an "aggravated felony," the term includes those offenses where the length of imprisonment was based on recidivism or other enhancements.

The modifications made to the "aggravated felony" definition generally would be retroactive in effect, applying to conduct and convictions occurring before, on, or after the bill's enactment. A second or subsequent conviction for drunk driving, however, would only constitute an aggravated felony if it occurred on or after the bill's enactment.

Grounds of Inadmissibility and Deportability

Currently, certain conduct by aliens may disqualify them from admission to the United States (grounds of inadmissibility) or, if they have been lawfully admitted, make them removable (grounds of deportability). There is considerable overlap between the grounds of inadmissibility and deportability, but they are not identical. Some grounds of inadmissibility and deportability are subject to waiver, whereas others are not. Aliens removable on certain grounds may also be statutorily barred from many forms of relief from removal, such as asylum.

The SAFE Act includes several provisions that would expand or otherwise modify the grounds for inadmissibility and deportability, particularly as they relate to criminal activity. Specifically, Section 302 of the bill would: (1) make an aggravated felony conviction (which is already a ground for deportability) an express ground for inadmissibility; (2) modify the grounds of inadmissibility to cover crimes of domestic violence, child abuse, stalking, and violation of protection orders (all of which are already grounds for deportability); (3) provide that certain firearms offenses would make an alien inadmissible; and (4) amend both the grounds for inadmissibility and deportability to cover additional fraud-based offenses (e.g., Social Security fraud, identification document fraud). These changes would apply to any conduct which occurs either prior to or after the bill's enactment, and to removal proceedings filed, pending, or reopened on or after such date.

Section 303 of the bill would also amend the ground of inadmissibility for aliens who seek to enter the United States with the intent to engage in specific activities threatening national security (e.g., espionage). The bill would amend the provision to expressly cover aliens who had previously engaged in proscribed conduct and thereafter seek admission, regardless of whether they also intend to engage in such conduct within the United States.

Section 311 of the bill would establish new grounds of inadmissibility and deportability based on membership in a criminal street gang or participation in its activities. Aliens removable on the basis of involvement with criminal street gangs would also be subject to mandatory detention throughout removal proceedings, and would be made ineligible for various forms of relief from removal, including asylum. The bill would amend the INA to define "criminal gang" to cover, for immigration purposes, (1) entities of five or more persons which have a primary purpose of, and engage or have in the past five years engaged in, the commission of one or more enumerated offenses; and (2) entities that have been designated by the Secretary of DHS, in consultation with the Attorney General, as meeting these criteria.

Other provisions in the SAFE Act would expand the grounds of inadmissibility and deportability to cover aliens who violate the federal requirements concerning the registration of sex offenders. These modifications would apply to acts or convictions occurring on, before, or after the bill's date of enactment. The bill would also bar U.S. citizens and lawful permanent residents (LPRs) convicted of sex-related offenses listed in the INA's definition of "aggravated felony" from sponsoring aliens for admission, unless the Secretary of DHS determines that the potential sponsor poses no risk to the alien being sponsored.

Section 602 would re-state the grounds of inadmissibility for aliens previously removed, so that they refer to aliens who seek "admission not later than" (i.e., before) a certain number of years after removal, as opposed to "admission within" a certain number of years of removal. Judging from the caption of the section, this change is apparently intended to deter aliens ordered removed from remaining in the United States unlawfully, although it is unclear that the amended language would necessarily be construed in a significantly different way than the current language has been.

The bill would also provide that, in cases where a conviction record does not conclusively establish whether the underlying conduct was a "crime of violence" (a category of crimes designated as aggravated felonies), immigration authorities may, in certain instances, consider evidence that is extrinsic to the conviction record that clearly establishes that the offense was a crime of violence. The bill would also permit the examination of evidence extrinsic to an alien's conviction record in certain instances to assess whether the conviction was based on conduct constituting a crime of moral turpitude or a domestic violence offense that would make the alien removable. These provisions appear to respond to certain federal courts' rejection of immigration authorities' consideration of evidence outside the record of conviction when assessing whether the alien's criminal conviction makes him or her removable. These modifications would apply to acts or convictions occurring on, before, or after the bill's enactment.

Ineligibility for Relief from Removal for Criminal Aliens

The INA currently provides that aliens who engage in certain types of criminal or other proscribed conduct are ineligible to receive various forms of relief from removal that are available to other aliens. Moreover, criminal aliens are often subject to more streamlined removal proceedings than other categories of aliens. Title III of the SAFE Act would modify the immigration consequences for some types of criminal activity, and broaden the category of criminal aliens potentially subject to streamlined proceedings.

Section 302 would amend INA Section 212(h), which authorizes the Secretary of DHS to waive many of the criminal grounds of inadmissibility if certain criteria are met. The bill would amend the provision to permit the exercise of waiver authority with respect to the newly added inadmissibility grounds concerning firearms, fraud, or domestic violence. It would also bar such waivers from being used with respect to any alien who had been convicted of an aggravated felony.

Section 309 would bar refugees or asylees who had committed an aggravated felony from having their status adjusted under INA Section 209. , Although INA Section 209(c) allows immigration authorities to waive application of many grounds of inadmissibility that might otherwise prevent adjustment by asylees and refugees, the bill would make aggravated felons ineligible to receive such a waiver.

Section 311 of the bill would make aliens who are described in the gang-related grounds for inadmissibility and deportability ineligible for asylum or withholding of removal. Alien members of criminal street gangs would also be ineligible to receive temporary protected status (TPS).

Limiting Relief for Removal on Security-Related Grounds

Aliens who engage in specified activities that pose a threat to U.S. security, including terrorist activity, are generally barred from admission and subject to removal. Over the years, these grounds have been expanded to expressly include a broader range of activities in support of terrorism or entities involved in terrorism, and covered persons have been made ineligible for a range of immigration benefits and forms of relief from removal (e.g., asylum). The SAFE Act would further broaden the categories of aliens ineligible for specified forms of relief.

Under current law, if aliens are described under specified terrorism-related grounds for inadmissibility or deportability, they are ineligible to receive asylum. Section 201 of the bill would expand the scope of this prohibition to cover aliens described in any of the terrorism-related grounds for inadmissibility. A limited waiver to this prohibition could be exercised with respect to persons described in the inadmissibility grounds covering members or representatives of terrorist organizations, or the spouses or children of persons who are inadmissible on terrorism-related grounds. The issuance of such a waiver would be contingent upon the Attorney General or Secretary of DHS determining "there are not reasonable grounds for regarding the alien as a danger to the security of the United States." Similar modifications would be made to the category of aliens who would be ineligible to receive withholding of removal under INA Section 241(b).

The bill would also provide that aliens who are "described" in certain security-related grounds for inadmissibility or deportability are ineligible both for cancellation of removal and adjustment of status under Section 240A, and for the granting of voluntary departure in lieu of removal under INA Section 240B. Currently, both provisions provide that an alien is ineligible for relief if he or she "is inadmissible ... [or] deportable" under specific security-related grounds. The phrasing in current law has been construed by the Board of Immigration Appeals (BIA), the highest administrative body responsible for interpreting and applying immigration laws, to mean that the alien actually had to have been charged and found removable on the listed ground in order to be ineligible for relief. The bill would clearly establish that aliens who engage in conduct described in the security-related grounds for deportability and inadmissibility would be ineligible for relief, even if those aliens were not ordered removed pursuant to those grounds.

Section 201 would also amend and reorganize INA Section 249 (which authorizes the granting of LPR status to certain long-term continuous alien residents), including by providing that aliens "described" in various criminal- and security-related grounds for inadmissibility are ineligible to have their status adjusted under INA Section 249.

Consideration and Review of Immigration-Related Applications and Petitions

The SAFE Act contains a number of provisions concerning the consideration or review of petitions and applications for various rights, benefits, and statuses under the INA. All applicants for immigration benefits are subject to criminal and national security background checks, and U.S. Citizenship and Immigration Services (USCIS) requires applicants (other than children under 12) for most immigration benefits to submit fingerprints. In 2007, the USCIS Ombudsman observed that Federal Bureau of Investigation (FBI) name checks did not clear on a timely basis and that this represented a "pervasive and serious" problem for USCIS. In response to such criticisms, USCIS negotiated with the FBI to more expeditiously process the background checks and issued policy guidance in 2008 instructing USCIS adjudicators to approve certain benefits if the FBI name checks had been pending for more than 180 days.

Section 206 would seek to overturn this guidance by generally barring the granting or adjudication of applications for specified immigration benefits and privileges (including naturalization applications and immigrant and non-immigrant petitions) until any background or security checks required by the Secretary of DHS have been completed or updated to the Secretary's satisfaction. Section 206 would also provide that immigration authorities are not required to grant or adjudicate applications for specified immigration benefits and privileges when fraudulent activity in relation to the application is suspected, until such time as the activity has been investigated and resolved to the Secretary's satisfaction (also see " Naturalization Reform ").

Section 206 would also add a new provision to the INA which would state that nothing in federal law requires the granting of any application, petition, status, benefit, or relief under immigration laws to either (1) persons deemed by DHS to be described under the terrorism- and security-related grounds of inadmissibility or deportability; or (2) aliens for whom a criminal or other proceeding or investigation is open or pending, when the result of such proceeding or investigation is material to the alien's eligibility for the status or benefit sought. During such time as immigration authorities are investigating whether a person falls under either of these two categories, they would be permitted to deny or withhold adjudication of the person's request for a benefit, status, or other privilege under immigration law, and no court would have jurisdiction to review such denials or withholding of adjudication.

Section 205 addresses the disclosure of information that was submitted by applicants for adjustment of status under the Immigration Reform and Control Act of 1986 (IRCA, P.L. 99-603 ). It would permit the Secretary of DHS to disclose, as a matter of discretion, information submitted by special agricultural workers for census or national security purposes, and information submitted by other applicants for legalization for national security purposes (disclosures for census purposes already being permitted).

In addition, Section 604 would clarify that an alien's adjustment to LPR status constitutes "admission," even if it occurs while the alien is present in the United States. This amendment would effectively codify BIA decisions which have found that adjustment of status within the United States constitutes "admission" under the INA, and overturn certain federal court decisions which found that aliens who adjust to LPR status within the United States are not subject to certain requirements for waivers of inadmissibility under Section 212(h) of the INA.

Detention and Removal of Aliens

The SAFE Act includes provisions that seek to facilitate the removal of criminal aliens, and clarify or augment immigration officials' authority to detain aliens during removal proceedings or following a final order of removal. Currently, immigration officials are generally required to detain "arriving aliens," as well as certain other aliens who have not been admitted or paroled into the United States and are subject to expedited removal; those who are inadmissible or deportable on certain criminal or security grounds; and aliens engaged in terrorist activity or "any other activity" endangering U.S. security. They also have authority to detain other aliens, although the general policy is to use detention resources to support enforcement policies, which prioritize the removal of aliens who pose a danger to national security or a risk to public safety; are recent illegal entrants; or are fugitives or otherwise obstruct immigration controls.

Detention of Aliens Pending Removal

Section 310 of the SAFE Act would make a number of significant changes to INA provisions governing the detention of aliens in removal proceedings and aliens ordered removed who are awaiting transfer to another country. The changes made by Section 310 primarily seek to clarify or augment immigration authorities' ability to detain aliens identified for removal until their removal may be effectuated. Some provisions seek to ensure that certain categories of aliens—particularly those involved in criminal activity or deemed to pose a threat to the community—remain detained throughout the removal process and until removed. Other provisions are more generally applicable to any alien placed in removal proceedings or ordered removed.

Many of these amendments appear intended to address and override court decisions that have construed existing detention authorities narrowly. Several courts have interpreted provisions of the INA requiring the mandatory detention of certain categories of aliens as having implicit temporal limitations. These interpretations have often been influenced by reviewing courts' desire to avoid definitively resolving constitutional questions that would be raised if the statutes were construed to permit the prolonged or indefinite detention of aliens, particularly as they involve weighing aliens' due process interests against Congress's sweeping authority over immigration matters. Section 310 includes a severability provision, specifying that if any of the section's provision or any amendment made by the section is held invalid for any reason, the application of the provisions and the amendments made by this section to any other person or circumstance shall not be affected.

Detention Following an Order of Removal

INA Section 241 generally provides that an alien subject to an administratively final order of removal shall be removed from the country within 90 days, with the alien usually required to remain in detention until removal is effectuated. However, in some cases, DHS is unable to effectuate the removal before this 90-day period elapses, and INA Section 241 authorizes the continued detention of certain categories of aliens beyond this 90-day period. In 2001, the Supreme Court concluded in Zadvydas v. Davis that, if the statute were construed to permit the indefinite detention of an LPR beyond the removal period, it would raise a "serious constitutional problem." Thus, the Court interpreted the statute as permitting the detention of aliens only so long as it is "reasonably necessary to bring about that alien's removal from the United States," and found that that the presumptively reasonable limit for detention following a final order of removal is six months. However, the Court also suggested that continued detention beyond the six-month period may be warranted when the policy is limited to especially dangerous individuals or the basis for the continued detention is based on terrorism or other special circumstances, and strong procedural protections are in place.

Section 310 of the SAFE Act would make several modifications to INA Section 241, including by amending the statute to provide that, if an alien is not in DHS custody when an order of removal becomes administratively final, the 90-day period begins once the alien is taken into DHS custody. The bill would also expand the circumstances in which the 90-day removal period would potentially be suspended, during which time the Secretary could, as a matter of discretion, continue to detain the alien. During any such extended period, aliens who are subject to mandatory detention during removal proceedings under INA Section 236 would be required to remain in detention (see " Detention During Removal Proceedings "). Aliens contesting their extended detention would be permitted to seek habeas review in federal court, but would not have a right to seek release on bond.

Section 310 would also authorize the continued detention of aliens ordered removed beyond the 90-day removal period when immigration authorities are unable to effectuate their removal. In general, the Secretary of DHS would be provided with discretionary authority to detain an alien ordered removed for an additional 90 days beyond the removal period. In some circumstances, the Secretary would be authorized to detain aliens beyond this period, including when such aliens are "expected to be removed in the reasonably foreseeable future." Aliens detained beyond the 90-day removal period would have no right to seek release on bond. However, the Secretary would be required to establish an administrative review process to determine whether aliens who are not subject to mandatory detention should continue to be detained pending removal or be released on conditions, provided that they have made reasonable efforts to comply with their removal orders and cooperate with DHS's efforts to facilitate their removal.

In specific circumstances, the Secretary would also be authorized to continue to detain certain categories of aliens, including those believed to pose a security threat, beyond this additional 90-day period, if the Secretary certifies that the alien falls under a listed category. Such certifications could be renewed every six months, with the detained alien provided the opportunity to request reconsideration of the certification. This provision in many ways resembles existing DHS regulations promulgated in the aftermath of the Supreme Court's decision in Zadvydas , which were premised on the Court's recognition that it might be constitutionally permissible to detain aliens ordered removed for an extended period when special circumstances exist. However, reviewing courts have taken conflicting views as to whether these regulations are based on a permissible construction of INA Section 241.

The bill would additionally provide the Secretary with discretionary authority to re-detain an alien subject to a final order of removal who had been released from custody if the alien's removal has become reasonably foreseeable, the alien has failed to comply with the conditions of his release, or the Secretary upon reconsideration determines that the alien can be detained pursuant to the certification process and related requirements described above. Other provisions would make clerical amendments to INA Section 241 to reflect the Secretary of DHS's responsibility for detaining aliens ordered removed, limit review of the Secretary's decisions by other agencies, and amend provisions concerning the supervised release of aliens ordered removed who cannot be removed during the 90-day removal period.

Detention During Removal Proceedings

Section 310 of the SAFE Act also addresses the detention of aliens during removal proceedings pursuant to INA Section 236. Under INA Section 236(a), individual aliens placed in removal proceedings are potentially subject to detention, but could also be released on conditional parole or bond. However, INA Section 236(c) generally requires the detention of aliens who are inadmissible or deportable on certain criminal or security-related grounds. Two years after the Supreme Court ruled in Zadvydas that "serious constitutional concerns" would be raised if lawfully admitted aliens were indefinitely detained after removal proceedings against them had been completed, the Court ruled in Demore v. Kim that the mandatory detention under INA Section 236(c) of certain aliens—including LPRs—was constitutionally permissible. The relationship between the Zadvydas and Demore rulings has been open to debate. Some have construed the rulings to mean that the standards for mandatory detention prior to a final order of removal differ from those after a final order is issued. However, several lower courts have suggested that mandatory detention pending a final order of removal may, if "prolonged," raise similar constitutional issues as those raised after a final order, and have construed the mandatory detention requirements of INA Section 236(c) as having implicit temporal limitations.

Section 310 would make a number of changes to INA Section 236. It would add language that seems intended to ensure that the statute will be construed by reviewing courts to authorize the detention of an alien until removal proceedings are completed. It also would provide that the period of time that an alien is detained under INA Section 236 has no affect upon his ability to be detained under INA Section 241 following the completion of removal proceedings.

In addition, Section 310 would add language to INA Section 236(c) concerning the Secretary of DHS's obligation to take certain criminal aliens into custody and detain them for the duration of removal proceedings. The new language would provide that this obligation applies at any time after the criminal alien has been released from law enforcement custody, and without regard to the reason why the alien was released from such custody.

Section 310 of the bill also includes a provision addressing the scope of an immigration judge's review of DHS's custody determinations under INA Section 236. Such review would be limited to assessing whether the alien should be detained, released on bond, or release with no bond. The bill identifies three categories of aliens as being subject to this review: aliens who are subject to mandatory detention under INA Section 236(c), aliens in exclusion proceedings, and aliens inadmissible or deportable on security-related grounds. The purpose of this provision is unclear, and similarly worded provisions in prior legislative proposals expressly exempted these categories of aliens from such review.

Section 310 would also specify that aliens who are not subject to mandatory detention may seek release on bond, and establish that no bond could be granted unless the alien established "by clear and convincing evidence that the alien is not a flight risk or a risk to another person or the community."

In addition to the changes made by Section 310 to INA Section 236, other provisions of the bill would make unlawfully present aliens convicted one or more times for driving while under the influence subject to mandatory detention during removal, along with aliens inadmissible or deportable on account of participation in a criminal street gang. Section 610 would also require the Government Accountability Office (GAO) to issue a report on detainee deaths.

Removal of Criminal Aliens

The INA contains several provisions intended to facilitate the removal of aliens involved in criminal activity, including through the availability of streamlined removal procedures for aliens convicted of certain crimes. Notably, INA Section 238(b) authorizes DHS to "administratively" order the removal of certain non-LPRs who have committed aggravated felonies in lieu of placing such aliens in removal proceedings before an immigration judge.

Section 319 of the SAFE Act would make several changes to INA Section 238(b) that would facilitate the expedited removal of a broader category of criminal aliens. Section 319 would provide the Secretary of DHS with discretionary authority to determine that an alien who has not been paroled or lawfully admitted into the United States is removable under the criminal grounds for inadmissibility, and order his removal pursuant to the procedures of INA Section 238(b). Such procedures could not be employed if the aliens have a credible fear of persecution if returned to their home country, or are eligible for a waiver of inadmissibility or relief from removal. Section 319 would also shorten the requisite period before an order of removal under INA Section 238(b) could be executed from 14 to 7 days. The changes made by Section 319 would take effect on the date of the bill's enactment, but would not apply to aliens who were in standard removal proceedings at the time of enactment.

Judicial Review of Voluntary Departure and Reinstated Removal Orders

Section 601 of the SAFE Act would provide additional statutory limitations upon judicial review of agency actions regarding the granting of voluntary departure. Under INA Section 240B and implementing regulations, immigration authorities are permitted to allow certain aliens to voluntarily depart the United States at their own expense (as opposed to pursuant to an order of removal) either prior to being placed in removal proceedings, prior to the completion of removal proceedings, or at the completion of removal proceedings. Currently, the voluntary departure statute generally bars courts from hearing appeals from denials of an alien's request for voluntary departure at the conclusion of removal proceedings, or from staying an alien's removal pending consideration of any claim with respect to voluntary departure. However, Section 601 of the bill would expressly provide that no court shall have jurisdiction to toll or otherwise affect the period allowed for voluntary departure. It would also make other amendments to the voluntary departure statute, including shortening the periods within which aliens must depart in the case of voluntary departure granted prior to the completion of proceedings and at the completion of proceedings; generally requiring that aliens post bond in all cases of voluntary departure prior to the completion of proceedings; and imposing the same terrorism-related bars upon grants of voluntary departure prior to the commencement or completion of removal proceedings as are currently imposed upon grants of voluntary departure at the completion of removal proceedings.

Like Section 601, Section 603 would also impose additional restrictions upon judicial review of reinstated removal orders against aliens who illegally reenter the United States after being removed (or departing under an order of removal). Currently, the INA provides that, when a removal order is reinstated against an alien who illegally re-entered, this order "is not subject to being reopened or reviewed." However, despite this language, courts have reviewed prior orders in certain cases. In particular, some courts have exercised jurisdiction pursuant to Section 242(a)(2)(D) of the INA, which provides that "[n]othing in [Sections 242(a)(2)(B) & (C) of the INA], or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." Section 603 would, among other things, effectively reverse these decisions by providing that the order is not subject to reopening "notwithstanding section 242(a)(2)(D)." Section 603 would also clarify that reinstatement applies regardless of the date of the original removal, effectively reversing court decisions holding that it does not apply to removals prior to April 1, 1997.

Visa Issuance and Security

Foreign nationals not already legally residing in the United States who wish to come to the country generally must obtain a visa to be admitted. Under current law, the Department of State (DOS) and the DHS each have roles in visa issuances. DOS's Bureau of Consular Affairs processes visa applications and issues visas. The Secretary of DHS promulgates regulations regarding visa policy. Although there was discussion of assigning all visa issuance responsibilities to DHS when the department was being created, the Homeland Security Act of 2002 (HSA, P.L. 107-296 ) opted not to do so. Rather, the HSA drew on compromise language stating that DHS issues regulations regarding visa issuances, and that DOS continues to issue visas.

The SAFE Act reflects some Members' continuing interest in visa issuances and security, including whether governing laws need to be strengthened, whether funding should be increased, and which agency should take the lead. Specific provisions in Title IV of the bill concerning the tracking of foreign students after they arrive in the United States address a specific and perennial visa security concern.

Visa Issuance

The visa issuance procedures delineated in the INA require applicants to submit their photographs, as well as their full name (and any other name used or by which they have been known), age, gender, and the date and place of birth. Depending on the visa category, certain documents must be certified by the proper government authorities (e.g., birth certificates, marriage licenses). All prospective LPRs must submit to physical and mental examinations, and prospective nonimmigrants may also be required to have physical and mental examinations. Consular officers use the Consular Consolidated Database (CCD) to store data on all visa applicants and screen them for admissibility. Records of all visa applications are now automated in the CCD, with some records dating back to the mid-1990s. Since February 2001, the CCD has stored photographs of all visa applicants in electronic form; since 2007, the CCD has stored 10-finger scans. Pursuant to INA Section 222(f), such data is deemed confidential and its dissemination or release (including to the visa applicant) is restricted. The provision specifies that collected data may be used for specific purposes regarding immigration law and other law enforcement purposes.

The INA requires an in-person consular interview of most applicants for nonimmigrant visas who are between the ages of 14 and 79. In addition to indicating the outcome of any prior visa application of the alien in the CCD and comments by consular officers, the system links with other databases to flag issues that may have an impact on the issuance of the visa. These reviews are intended to ensure that aliens are not ineligible for visas or admission under the grounds for inadmissibility spelled out in the INA.

Section 402 of the SAFE Act would amend current law restricting the sharing or release of certain data concerning visa applicants, so as to expressly cover information pertaining to the revocation of visas or entry permits. The bill would also broaden the exception to this confidentiality requirement relating to the sharing of information with foreign governments, including by allowing such sharing for purposes of "determining a person's deportability or eligibility for a visa, admission, or other immigration benefit,'' or any other instance when "the Secretary of State determines that it is in the national interest."

Section 403 would narrow DOS's authority to waive personal interviews for purposes related to the "facilitation of travel of foreign nationals to the United States, reduction of visa application processing times, or the allocation of consular resources." Section 403 would also add national security and "high risk of degradation of visa program integrity" as reasons for requiring a personal interview.

Section 404 of the legislation would also give consular officers the authority not to interview visa applicants if they are deemed to be ineligible for the visa they are seeking. Consular officers are currently required to conduct in-person interviews unless the interview is waived by the consular officer for certain classes of aliens (e.g., certain aliens seeking temporary admission as accredited diplomats, consular officers, or foreign government representatives to international organizations).

Section 405 would generally grant the Secretary of DHS exclusive authority to issue regulations, establish policy, and administer and enforce the provisions of the INA and all other immigration or nationality laws relating to the functions of consular officers of the United States in connection with the granting or refusal of a visa.

Visa Revocation and Review88

After a visa has been issued, the consular officer, as well as the Secretary of State, has discretion to revoke the visa at any time. Visa revocation is currently a ground for removal. The INA generally limits judicial review of visa revocations, except in the course of a removal proceeding where visa revocation constitutes the sole ground for removal. A recurring issue has been whether the Secretary of DHS should also have the authority to revoke visas and to immediately remove a foreign national whose visa has been revoked.

Section 405 of the SAFE Act would also give DHS the authority to refuse or revoke any visa to any alien or class of aliens if the Secretary, or designee, determines that such refusal or revocation is necessary or advisable in the security interests of the United States. Revocation would purportedly "take effect immediately." The legislation would also provide that "notwithstanding any other provision of law," no court shall have jurisdiction to review a decision by the Secretary of DHS to refuse or revoke a visa, and "no court shall have jurisdiction to hear any claim arising from, or any challenge to, such a refusal or revocation." This language appears intended to afford DHS decisions concerning visa refusals and revocations a similar degree of judicial non-reviewability as is accorded to consular officials' visa denials, though it is unclear whether reviewing courts would interpret Section 405 to limit judicial review of visa refusals or revocations in all cases, including when such action implicates the constitutional rights of U.S. citizens. Amendments made by Section 405 would apply to all visa refusals and revocations occurring before, or, or after the bill's date of enactment.

Visa Security Program

The Homeland Security Act (HSA) gave the Secretary of DHS the authority to assign DHS employees to diplomatic and consular posts. The duties of these DHS employees were described in HSA Section 428 as (1) providing expert advice and training to consular officers on specific security threats attending to the adjudication of individual visa applications or classes of applications; (2) reviewing such applications, either on the initiative of DHS or upon request by a consular officer or other person charged with adjudicating such applications; and (3) conducting investigations with respect to consular matters under the jurisdiction of the Secretary of DHS. This statutory language established what is currently known as the Visa Security Program (VSP). The absence of VSP at posts considered "high-risk" has been a matter of particular congressional concern.

The SAFE Act seeks to expand the VSP by several means. Section 407 would require DHS to conduct an on-site review of all visa applications and supporting documentation before adjudication at the top thirty visa-issuing posts designated jointly by the Secretaries of State and Homeland Security as high-risk posts. It would require DHS to assign personnel to the high-risk posts within one year of enactment. It would also authorize $60 million in appropriations in each of FY2014 and FY2015 to expedite the implementation of these provisions. Section 408 would call for expedited clearance and placement of DHS personnel at overseas embassies and consular posts.

Section 406 would modify existing authorizations of appropriations for consular services in support of enhanced border security, so as to expressly authorize crediting to the appropriated funding of the VSP a portion of the fees collected by DOS to process immigration visa applications, and make other changes.

Student Visas

Congress first mandated a foreign student and exchange visitor tracking system in 1996, and it expanded the system's requirements for an electronic tracking system after the September 11, 2001, terrorist attacks. This monitoring system is known as the Student and Exchange Visitor Information System (SEVIS). SEVIS became operational in 2003, and is administered by Immigration and Custom Enforcement's (ICE's) Student and Exchange Visitor Program (SEVP). In addition, SEVP certifies schools so that they are eligible to accept foreign students.

There have been reports of some lesser-known colleges and universities accepting foreign students, as a mechanism to circumvent U.S. immigration law, so that the foreign nationals can enter and work illegally in the United States rather than attend school. Such schools collect tuition from students but generally do not require them to attend classes, and continue to report to ICE that such students are enrolled in school. Several recent events have raised concerns about whether the oversight of SEVP approved schools is adequate to prevent student visa fraud.

The SAFE Act has several provisions dealing with the SEVP. The bill would change accreditation requirements for schools accepting foreign students on F visas, and for flight schools accepting foreign students. The bill would require accrediting agencies or associations to notify DHS about the denial, withdrawal, suspension, or termination of accreditation so that the school could be immediately withdrawn from SEVP and prohibited from accessing SEVIS, and by extension, enrolling foreign students. Additionally, within 180 days of enactment, DHS would be required to implement GAO's recommendations regarding SEVP and SEVIS, and report to Congress on the risk assessment strategy to prevent malfeasance in the student visa issuance system. Within two years after enactment DHS would be required to deploy both phases of the second generation SEVIS II.

Section 409 of the bill would also increase the criminal penalties for fraud and misuse of visa documents (18 U.S.C. §1546(a)) if the offense was committed by an owner, official, or employee of a SEVP certified school, and would allow the Secretary of DHS to impose fines on institutions that failed to comply with reporting requirements. The SAFE Act would also allow the Secretary of DHS to immediately withdraw an institution's SEVP certification if there is a reasonable suspicion that the owner or school official has committed fraud relating to any aspect of the SEVP. Any person convicted of such fraud would be ineligible to hold a position of authority or ownership interest at any institution that accepts F or M foreign students. The bill would also prohibit individuals from serving as a designated school official or being granted access to SEVIS unless the individual is a U.S. national or an LPR, and has undergone a background check during the past three years.

Naturalization Reform

The INA presently contains substantive requirements that an alien must typically satisfy in order to become a U.S. citizen, including being, for a requisite period prior to naturalization, "a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." Other generally applicable requirements for naturalization (some of which may be subject to limited waiver) include continuous residence for at least five years as an LPR; literacy in English; and knowledge of the history, principles, and government of the United States.

Although the INA does not affirmatively define "good moral character," it lists certain activities as barring an alien from being found to possess good moral character if committed during the period for which good moral character is required to be established. The commission of other specified conduct, including subversive activity, may also make an alien ineligible for naturalization. Moreover, the INA authorizes the government to revoke U.S. citizenship for a limited category of naturalized persons, typically on the grounds that the person acquired citizenship through fraud, concealment, or willful misrepresentation of material facts.

Limiting Naturalization Eligibility on Account of Criminal or Terrorist Activity

The SAFE Act includes provisions that would bar aliens involved in many terrorism or crime-related activities from acquiring U.S. citizenship (provisions in the SAFE Act concerning the immigration consequences of criminal or terrorist activity are discussed earlier in " Immigration Consequences of Criminal and Terrorist Activity "). Specifically, Section 202 would add further activities or crimes to the list of conduct that disqualifies an alien from being found to possess "good moral character." If an alien is determined by the Secretary of DHS or Attorney General to have been at any time described in the security-related grounds of inadmissibility or deportability, such alien could not be found to possess "good moral character" for immigration and naturalization purposes. The bill would also provide that an alien convicted of an aggravated felony at any time is disqualified from being found to possess good moral character, regardless of whether the crime was considered an aggravated felony under the INA at the time of conviction. The Attorney General or Secretary of DHS could waive this bar with respect to the commission of a single aggravated felony offense (other than murder, rape, manslaughter, homicide, rape, or any sex offense against a minor), if the alien's sentence was completed at least 10 years before the date when the alien applied for naturalization or some other status or benefit for which a good moral character finding is required. Section 202 would also clarify that the list of conduct identified in the INA as barring a finding of good moral character is not exhaustive, and that when considering whether an applicant possesses good moral character, immigration authorities may consider that applicant's conduct at any time.

Section 203 would bar the naturalization of any alien determined by the Secretary of DHS to have been at any time described in the security-related grounds of deportability or inadmissibility (including those grounds concerning terrorist activities).

Denaturalization Due to Terrorist Activity

Section 340 of the INA permits the denaturalization of persons whose acquisition of citizenship was either illegally procured or procured through the concealment of a material fact or misrepresentation. Section 204 of the SAFE Act would authorize the Attorney General to denaturalize persons who have engaged in specified conduct involving terrorism or support for terrorism; the receipt of military training from a terrorist organization; or activities committed with the purpose of overthrowing or opposing the U.S. government through violence or other unlawful means. The bill authorizes the Attorney General to find that the commission of any of these activities demonstrates that the naturalized person was "not attached to the principles of the Constitution of the United States and was not well disposed to the good order and happiness of the United States at the time of naturalization ... [and that the acquisition of citizenship had therefore] been obtained by concealment of a material fact or by willful misrepresentation."

It seems likely that the denaturalization provision added by Section 204 of the bill, if exercised, could be subject to legal challenge. Whereas denaturalization has historically involved a judicial proceeding, Section 204 appears to authorize the Attorney General to revoke naturalization by way of an administrative determination. The Supreme Court has repeatedly emphasized that citizenship is "a most precious right," and to ensure that a person is not erroneously stripped of citizenship, it has required that the government's allegations that citizenship was improperly conferred be supported by "clear, unequivocal and convincing evidence which does not leave the issue in doubt." The Court has also suggested that it would be especially "sensitive to the citizen's rights where the proceeding is nonjudicial because of the difference in security of judicial over administrative action.... " Accordingly, it seems likely that any attempts to revoke citizenship via a non-judicial, administrative determination could be subject to legal challenge, including on grounds that administrative denaturalization would not provide constitutionally sufficient protections against the mistaken or otherwise erroneous deprivation of citizenship.

Secondly, Section 204 appears to permit denaturalization based on conduct committed at any time, including after a person has obtained U.S. citizenship. While it is clear that the government has the power to revoke the citizenship of a person when it was wrongly procured (e.g., through fraud or willful concealment or misrepresentation of material facts), current jurisprudence "reject[s] the idea ... [that] Congress has any general power, express or implied, to take away an American citizen's citizenship without his assent." That is, a citizen's conduct can lead to loss of citizenship only if the citizen acts voluntarily with an intent to relinquish it. However, a limited exception to this general rule may exist when a naturalized person's subsequent conduct indicates that he had acquired citizenship through fraud or deceit. A century ago in Luria v. United States , the Supreme Court upheld a (since-rescinded) federal statute which provided that a naturalized person's establishment of a foreign residence within five years of naturalization provided rebuttable evidence that the person had not intended to continuously reside in the United States when he or she applied for citizenship, despite such intent being required for naturalization.

The construction of Section 204 seems to be informed by the exception recognized in Luria . The denaturalization provision expressly characterizes the commission of proscribed conduct by a naturalized person as indicating that the person "was not attached to the principles of the Constitution of the United States and was not well disposed to the good order and happiness of the United States at the time of naturalization." However, the statute at issue in Luria may be distinguishable. The statute in question established that post-naturalization conduct could provide rebuttable evidence that citizenship was fraudulently obtained, and the Court indicated that the evidentiary presumption conferred by the denaturalization was permissible because the relevant conduct occurred shortly after naturalization. The denaturalization ground established by Section 204, however, does not directly afford a person with the ability to rebut the alleged connection between the person's post-naturalization conduct and his or her mental state at the time of the application for citizenship, regardless of the period of time between naturalization and the commission of proscribed acts.

Other Naturalization Reforms

In addition to making certain aliens ineligible for citizenship, the SAFE Act would also effectuate more broadly applicable modifications to the naturalization process. Section 203 would provide that no petition for immigrant status or application for naturalization may be approved if there is any criminal or civil administrative or judicial proceeding pending that could result in the petitioner's denaturalization or loss of LPR status. It would also specify that an alien admitted as a conditional LPR (i.e., on account of being the spouse or child of an LPR) is only considered to be lawfully admitted to permanent residence, and to have the conditional period count for naturalization purposes, if the conditionality has been removed.

Section 203 would also amend the INA provision concerning judicial review of failures to grant or deny naturalization applications, allowing an applicant to seek a federal district court hearing on the matter if, within 180 days of the completion of all examinations and interviews, a final administrative decision on the naturalization application has not been rendered, and would specify that the court only has jurisdiction to review the basis for the delay and remand the matter to DHS.

Section 203 would also amend the INA provision concerning judicial review of the denial of a naturalization application after a hearing before an immigration officer, and establish a more deferential standard of review. It would delete the provision currently establishing a de novo standard of review, and require the petitioner to show that the Secretary of DHS's denial of the application was not supported by facially legitimate and bona fide reasons. It would also limit judicial review, except in a proceeding to revoke naturalization, of an administrative determination regarding aliens' good moral character; the alien's understanding of and attachment to the Constitution; or an alien's disposition to the good order and happiness of the United States for naturalization purposes.

Immigration Enforcement Operations130

There are an estimated 11.1 million unauthorized aliens in the United States. In 2012, ICE estimated that there were 1.9 million removable criminal aliens in the United States. According to ICE, they have the capacity to remove 400,000 aliens a year, and accordingly, DHS has developed a system to prioritize certain aliens for removal. As a result, there has been ongoing debate about the amount of resources that should be allotted to removal activities, and how ICE should prioritize the removal of removable aliens.

Title V of the SAFE Act would attempt to increase the government's capacity to remove aliens by increasing resources for removal, and authorizing a pilot program to reduce and expedite clerical tasks required by ICE during the removal process. In addition, the bill would modify immigration officers' authority to arrest aliens suspected of being removable, and mandate the creation of an Advisory Council whose purpose would be to advise Congress on needed resources and the effectiveness of enforcement priorities.

Immigration Enforcement Resources and Arrest Authority

Section 501 of the SAFE Act would potentially expand the categories of immigration officers permitted to engage in immigration enforcement activities, and also permit warrantless arrests of aliens suspected of being removable in a wider range of circumstances than under current law. Presently, the Secretary of DHS has discretion as to which officers and employees exercise certain enforcement powers conferred by Section 287(a) of the INA. The provision generally permits the interrogation of persons believed to be aliens about their right to be or remain in the United States and to carry firearms and execute and serve any order, warrant, subpoena, summons, or other process issued under the authority of the United States. Notable among the powers conferred by Section 287(a) is the power to make warrantless arrests under certain conditions.

Section 501 would require the Secretary of DHS to authorize all immigration enforcement agents and deportation officers who have successfully completed "basic immigration law enforcement training" to (1) make warrantless arrests for offenses against the United States committed in their presence and certain felonies cognizable under the laws of the United States; (2) make arrests for bringing in, transporting or harboring certain aliens, or inducing them to enter; (3) execute warrants of arrest for administrative immigration violations (i.e., removable offenses), or warrants of criminal arrest issued under the authority of the United States; and (4) carry firearms, under certain conditions.

Section 501 would also provide statutory authorization for immigration officers to make warrantless arrests of aliens found in the United States in a broader range of circumstances. Currently, warrantless arrests of aliens found in the United States and suspected of being removable are permitted when the alien "is likely to escape before a warrant can be obtained for his arrest." Section 501 would eliminate this language, and would apparently authorize warrantless arrests in situations where the arresting officer does not have reason to believe that the alien is likely to escape prior to the issuance of a warrant. Warrantless arrests in such circumstances might be subject to legal challenge, as constitutional jurisprudence generally recognizes the permissibility of warrantless arrests of persons in limited circumstances, such as when exigent circumstances exits.

Section 501 of the SAFE Act would also provide that all immigration enforcement agents (IEAs) shall be paid on the same scale and receive the same benefits as deportation officers within DHS's Immigration and Customs Enforcement Agency (ICE). Section 502 would authorize the Secretary of DHS to hire 2,500 additional detention enforcement officers, and would specify their duties. Section 506 would similarly require the Secretary of DHS, subject to appropriations, to increase the number of deportation officers by 5,000 and the full-time support staff by 700 above FY2013 appropriated levels, while Section 507 would require the Secretary to increase by 60 the number of ICE trial attorneys (a requirement not subject to appropriations). Section 503 would also require DHS to issue all deportation officers and IEAs body armor and reliable and effective weapons.

Section 504 would require the establishment of an ICE Advisory Council within three months of the bill's enactment. The council would be comprised of seven members, and would be tasked with advising the Congress and the Secretary of DHS on: the status of current immigration enforcement efforts; the effectiveness of cooperation between DHS and other law enforcement agencies; resources needed in the field; possible improvements to the organizational structure; and the effectiveness of specific enforcement policies and regulations and whether other enforcement priorities should be considered. The council would be required to provide quarterly reports to the Chairmen and Ranking Members of the House and Senate Judiciary Committees and the Secretary of DHS.

Section 505 would require the Secretary of DHS to establish a pilot program in at least five of the ten field offices with the largest removal caseloads to allow deportation officers and IEAs, while in the field, to electronically process and serve charging documents (e.g., notices to appear) and process and place detainers. The pilot program would be designed to replace, to the extent possible, the current paperwork and data-entry process for issuing such documents. The pilot program would have to be initiated within six months of the enactment of the bill, and 18 months after enactment GAO would be required to submit a report to the House and Senate Judiciary Committees on the effectiveness of the program and offer recommendation for improvements. The ICE Advisory Council (created by Section 504) would also be required to include recommendations on how the pilot program should work in its first quarterly report, and include assessments of the program and recommendations for its improvement in each subsequent report.

Prosecutorial or Enforcement Discretion

The Obama Administration has issued several documents which provide guidance regarding the exercise of prosecutorial discretion in immigration enforcement activities. In so doing, the Administration has emphasized that the exercise of discretion in individual cases helps "ensure that agency resources are focused on our enforcement priorities, including individuals who pose a threat to public safety, are recent border crossers, or repeatedly violate our immigration laws." The Administration has also claimed that the exercise of such discretion can promote humanitarian interests, as in the case of certain "young people who were brought to this country as children and know only this country as home." Others, however, have suggested that the Administration's prosecutorial discretion policies are tantamount to "amnesty," and that the Deferred Action for Childhood Arrivals (DACA) initiative, in particular, contravenes certain provisions of the INA.

Certain provisions of Title VI would respond to the Obama Administration initiatives, apparently with the intent of foreclosing certain exercises of prosecutorial discretion and promoting more vigorous enforcement of federal immigration law. Specifically, Section 605 would require DHS and the Department of Justice (DOJ) to report annually on exercises of prosecutorial discretion (e.g., number of notices to appear cancelled), as well as to identify the individual aliens who received favorable exercises of discretion. Section 608 would similarly prohibit DHS from finalizing, implementing, administering, or enforcing recent guidance regarding prosecutorial discretion, including DACA.

Access to Federal Lands for Immigration Enforcement Activities

The SAFE Act contains provisions concerning immigration enforcement activities along the U.S. border. Section 606 of the bill addresses immigration enforcement activities on federal lands within 100 miles of the U.S. land border. It would bar the Secretary of the Interior or the Secretary of Agriculture from restricting U.S. Custom and Border Protection (CBP) access to such lands either for the purpose of search and rescue operations, or for the prevention of unlawful entries into the United States, including through the construction of barriers, roads, and infrastructure. To effectuate the expeditious installation of fencing and other barriers on these lands, the bill would waive application of several laws, including a number of environmental and land management statutes, which might otherwise delay construction.

Biometric Entry-Exit System

Section 607 of the bill would establish new requirements for the implementation of a biometric entry-exit system. In 1996, Congress required the development of an automated entry-exit system, which would collect information from arriving and departing aliens to identify whether aliens temporarily authorized to enter the United States had overstayed their authorized term of admittance. Over the years, Congress has revised and expanded this entry-exit requirement, including by requiring it to include a biometric component, but the system has not been fully implemented. Section 607 would require the establishment of a biometric entry-exit system within two years of the bill's enactment, separate and apart from any existing requirements contained in current law. It further specifies that the biometric entry-exit system to be implemented at all U.S. ports of entry must contain the biometric features required by the Intelligence Reform and Terrorism Prevention Act of 2004.

State and Local Involvement in Enforcement

The role that states and localities play in enforcing federal immigration law has been a topic of significant interest in recent years. Some states and localities, concerned about what they perceive as inadequate federal enforcement of immigration law, have sought to independently enforce federal law, as well as to penalize conduct that may facilitate the presence of unauthorized aliens within their jurisdiction. Other states and localities, in contrast, have proscribed activities (e.g., sharing information, honoring federal requests to hold aliens) that could assist in federal immigration enforcement because they believe the federal government has been too aggressive in removing aliens who are not criminals and have ties to the community.

At least until 2012, there had been considerable legal debate concerning the power of state and local police to enforce federal immigration law without express federal statutory authorization, or to criminally sanction persons for activities that may facilitate unauthorized immigration. In Arizona v. United States , the Supreme Court found that existing federal law contemplates states and localities having a limited role in immigration enforcement. The Court held that states are generally preempted from arresting or detaining aliens on the basis of suspected removability under federal immigration law. Such action may be taken only when there is specific federal statutory authorization, or pursuant to "request, approval, or instruction from the Federal Government." The Arizona ruling also suggested that measures which impose criminal penalties under state law for violations of federal immigration law may be vulnerable to facial challenges on preemption grounds, even when these sanctions mirror those found in federal law. The Court did, however, find that state and local officers are not facially preempted from checking the immigration status of persons stopped for state and local offenses, at least so long as the inquiry does not unreasonably prolong the detention of the person in state or local custody.

Title I of the SAFE Act includes several provisions which seem intended to override aspects of the Supreme Court's ruling in Arizona, and to provide states and localities with express statutory authorization to engage in immigration enforcement activities. The SAFE Act also includes other provisions which would more broadly encourage states and localities to play a greater role in immigration enforcement, deter state and local governments from adopting policies that limit cooperation with federal immigration enforcement efforts, and require DHS to exercise existing authorities to facilitate greater cooperation with states and localities in immigration enforcement matters.

Express Authorization of State and Local Measures and Actions

Section 102 of the SAFE Act would effectively supersede the Supreme Court's ruling in Arizona , and provide express federal authorization for a significantly greater degree of immigration enforcement activities by states and localities than is permitted under current law. The bill would amend the INA to expressly permit states and localities to enact and enforce measures that make it a separate state or local crime to violate the criminal provisions of the INA, so long as the penalties are not greater than those that may be imposed under the corresponding federal statute. Similar measures imposing civil penalties for civil violations of the INA would also generally be permissible. States and localities, would, however, continue to be barred from imposing separate criminal or civil sanctions (other than through licensing or similar requirements) upon entities that hire or employ unauthorized aliens. Section 102 also does not purport to permit state and local measures that would impose criminal or civil sanctions on conduct that is not already penalized by the INA.

Section 102 would also generally permit state and local officers to enforce the INA (or state and local "immigration laws") by investigating, identifying, and apprehending aliens suspected of immigration violations, and thereafter transferring them to federal custody. Such enforcement would not necessarily be limited to inquiries into immigration status made in the course of enforcing state and local laws, as was the case with the immigration status checks upheld by the Supreme Court in Arizona v. United States . Rather, state and local officials would apparently be permitted to investigate, identify, apprehend, and transfer aliens separate and apart from their other duties.

Information Sharing Among Federal and State and Local Officials

Other provisions of Title I would promote immigration enforcement by requiring greater information-sharing by federal, state, and local authorities for immigration-related purposes. Such sharing is generally not required under existing federal law, although federal, state, and local governments and officials are generally barred from restricting the sending or receipt of information regarding citizenship or immigration status. In addition, several forms of information sharing currently operate under cooperative arrangements entered pursuant to INA §287(g) of the INA, as well as through the ICE's Secure Communities and Criminal Alien Programs (see "Federal-State Partnerships to Identify Removable Aliens").

Section 103 would require that the "Immigration Violators File" of the National Crime Information Center (NCIC) contain "all available" information regarding aliens who are subject to final orders of removal, have entered into voluntary departure agreements, overstayed their visas, or had their visas revoked. Section 104 would similarly require that states be given access to federal programs and technology "directed broadly" at identifying removable aliens. Currently, states and localities must generally rely upon federal authorities to supply them with information regarding individuals' citizenship or immigration status.

Section 105, on the other hand, requires states and localities to provide DHS with certain information about aliens apprehended within their jurisdiction who may be removable. Questions could be raised about whether a requirement to supply information impermissibly "commandeers" state and local resources, notwithstanding the fact that Section 105 would require DHS to reimburse "all reasonable costs" that states and localities incur.

Related provisions of Title I, which would condition certain funding for states and localities upon their cooperation in enforcing federal immigration law, would arguably not raise similar concerns, because imposing conditions upon the use of federal funds has been widely recognized as within Congress's spending power. Specifically, Section 106 would permit funds for the procurement of certain items that facilitate and are "directly related" to immigration enforcement to be given only to jurisdictions whose law enforcement officers are permitted to engage in immigration enforcement activities in the course of their routine duties. Relatedly, Section 106 would prohibit such funding to jurisdictions whose policies or practices prevent inquiries into suspects' immigration status.

Similarly, Section 114 would provide that jurisdictions whose statutes, policies, or practices prohibit state and local officers from assisting or cooperating with federal immigration law enforcement in the course of carrying out their routine duties would be ineligible for certain funds. It would also amend Section 642(b) of IIRIRA to prohibit states and localities from taking specified actions (in addition to restricting information-sharing with federal immigration authorities, which is currently prohibited) that may limit assistance with immigration enforcement efforts by the federal government. Among other things, states and localities would generally be barred from establishing restrictions on notifying the federal government of the presence of removable aliens and complying with immigration detainer requests from the federal government.

Holding Aliens for Transfer to Federal Custody

In addition to authorizing or encouraging greater involvement by states and localities in immigration enforcement, the Title I of the SAFE Act also contains provisions that seem intended to ensure that the federal government has adequate resources and authorities to take into custody those aliens who are apprehended by state and local law enforcement. For more on DHS's authorities to detain aliens, see " Detention and Removal of Aliens ."

Section 107 would require DHS to construct or acquire additional detention facilities for aliens in removal proceedings, with each facility required to have "a number of beds necessary to effectuate the purposes of ... Title [I]."

Section 108, in turn, would require that DHS consider assuming custody of removable aliens in state or local custody if requested to do so. Specifically, when such a request was made, DHS would be required to (1) take the alien into custody no later than 48 hours after a detainer has been issued, following the conclusion of the state or local charging or dismissal process (or within 48 hours after the alien is apprehended, if no such charging or dismissal process is required); and (2) request that the state or locality temporarily hold the alien for transfer to federal custody. This provision appears intended to make it more likely that federal immigration authorities will respond to a state or local request to take into custody an alien suspected of being removable.

Section 108 would also require that DOJ and DHS ensure that aliens arrested under Title I of the SAFE Act are held in custody, pending examination as to their removability, and would provide that a facility is adequate for such detention so long as it meets certain criteria, including satisfying the U.S. Marshals Service's standards for the housing, care, and security of detainees.

Federal-State Partnerships to Identify Removable Aliens

Congress has created several avenues for states and localities to assist in the enforcement of federal immigration law. One of the broadest grants of authority for state and local immigration enforcement activity stems from INA Section 287(g), which authorizes the Secretary of DHS to enter written agreements (commonly referred to as "287(g) agreements") which enable specially trained state or local officers to perform specific functions relative to the investigation, apprehension, or detention of aliens, during a predetermined time frame and under federal supervision. In recent years, DHS has decreased its reliance on the 287(g) program to identify and apprehend aliens in state or local custody, while increasing its use of programs like Secure Communities, which do not involve the delegation of immigration enforcement authority to states or localities. Title I of the SAFE Act contains several provisions which seek to ensure the continuation and expansion of cooperative arrangements with states or localities on immigration enforcement matters.

Section 112 seeks to expand the use of 287(g) agreements to assist in the identification and apprehension of removable aliens. Pursuant to the bill, DHS would generally be required to enter a 287(g) agreement whenever requested to do so by a state or local government agency. DHS would only be permitted to deny a request to enter a 287(g) agreement on the basis of "a compelling reason." DHS would also be required to accommodate requesting jurisdictions regarding the types of immigration enforcement functions that will be carried out pursuant to a 287(g) agreement. DHS would be prohibited from substituting a program or technology "directed broadly" at identifying removable aliens—apparently a references to the Secure Communities program—in lieu of entering or maintaining a 287(g) agreement. DHS would also be barred from terminating 287(g) agreements without compelling reason and without complying with certain procedures (e.g., providing written notice at least 180 days in advance). States and localities that believe their agreements have been improperly terminated would be entitled to administrative and judicial review. Currently, such agreements may be terminated "at any time;" the termination is effective "immediately upon receipt;" and states and localities appear to have no legal recourse.

Section 111 would require that DHS continue to operate a program (akin to the Criminal Alien Program) that identifies removable aliens in correctional facilities and arranges for their removal at the completion of their sentences; and extend the program to all states. Also, in an exercise of Congress's spending power, Section 111 would require any state which receives funding for the incarceration of "criminal aliens" pursuant to the State Criminal Alien Assistance Program (SCAAP) to provide assistance in the identification of criminal aliens within its prisons or jails.

Section 111 would further authorize states and localities to hold "criminal aliens" for up to 14 days after they have completed their sentences (or issue a detainer to hold such aliens) so that DHS can take custody of them. However, because such holds would arguably constitute warrantless seizures of the aliens' person, they could potentially be challenged on Fourth Amendment grounds.

In addition, Section 113 would amend Section 241(i) of the INA—which underlies the SCAAP program. Under current law, states may request reimbursement from DHS for costs associated with incarcerating an "undocumented criminal alien"—a term defined to cover unlawfully present aliens who have been convicted of a felony or two or more misdemeanors. Section 113 would modify this definition to also cover unlawfully present aliens who are charged with such offenses. The bill would further authorize appropriations necessary to carry out the program for FY2014 and each subsequent fiscal year.

Further, Section 115, captioned "Clarifying the Authority of ICE detainers," would generally require DHS to execute all lawful writs, processes, and orders issued under the authority of the United States, and command "all necessary assistance to execute the Secretary's duties." The purpose of this general statement is not immediately apparent. Arguably, it could be construed to mean that DHS is required to employ detainers, when necessary, in order to acquire custody of an alien believed to be removable who is in state or local custody.

Training and Immunity for State and Local Officials

In keeping with Title I's encouragement of state and local involvement in immigration enforcement, Section 109 would require that DHS create materials to assist state and local officers in enforcing immigration law, although immigration-related training would not be a "requirement or prerequisite" for doing so, as it currently is for state and local officers acting pursuant to "287(g) agreements," discussed previously. Section 110 would further provide that state and local officers, acting within the scope of their official duties, are immune "to the same extent as ... Federal law enforcement officer[s]," from personal liability arising from the performance of any "duty" described in Title I, including investigating, arresting, and detaining aliens. This provision would apparently clarify that immigration enforcement is within the scope of state and local officers' duties for immunity purposes, and could potentially be construed to grant state and local officers protection under the Federal Tort Claims Act for intentional torts. Currently, the INA expressly provides for immunity only for state and local officers acting pursuant to a "287(g) agreement."