Section 1 Short title
This Act may be cited as the “State Partnerships to Enhance Removal of Criminal Aliens Act”.
State Partnerships to Enhance Removal of Criminal Aliens Act
A BILL
To amend the Immigration and Nationality Act to provide for the performance of certain Department of Homeland Security counsel functions by State officers and employees, and for other purposes.
Sec. 2 Performance of certain Department of Homeland Security counsel functions by State officers and employees
Section 287 of the Immigration and Nationality Act (8 U.S.C. 1357) is amended—
by redesignating subsection (h) as subsection (i); and
by inserting the following after subsection (g):
“(h) Performance of certain Department of Homeland Security counsel functions by State officers and employees
“(1) Notwithstanding section 1342 of title 31, United States Code, the Secretary of Homeland Security, in coordination with the Attorney General, may enter into a written agreement with a State pursuant to which an officer or employee of the State, who is a licensed attorney and who is determined by the Secretary of Homeland Security to be qualified to perform the function of an Office of the Principal Legal Advisor attorney in representing the Department of Homeland Security in removal proceedings described in paragraph (9), may carry out such function at the expense of the State.
“(2) An agreement under this subsection shall—
“(A) require that an officer or employee of a State performing a function under the agreement have knowledge of, and adhere to, Federal law relating to the function;
“(B) contain a written certification that the officers or employees of a State performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws; and
“(C) state that an officer or employee of a State performing a function under the agreement has no independent prosecutorial or policymaking discretion.
“(3) In performing a function under this subsection, an officer or employee of a State shall be subject to the direction and supervision of the Secretary of Homeland Security.
“(4) In performing a function under this subsection, an officer or employee of a State may use Federal property or facilities, as provided in a written agreement between the Secretary and the State.
“(5) With respect to each officer or employee of a State who is authorized to perform a function under this subsection, the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Secretary of Homeland Security who is required to supervise and direct the individual, shall be set forth in a written agreement between the Secretary of Homeland Security and the State.
“(6) The Secretary of Homeland Security may not accept a service under this subsection if the service will be used to displace any Federal employee.
“(7) Except as provided in paragraph (8), an officer or employee of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of title 5 (relating to compensation for injury) and sections 2671 through 2680 of title 28, United States Code (relating to tort claims).
“(8) An officer or employee of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal, State, local, or tribal law.
“(9) The removal proceedings described in paragraph (1) are proceedings under—
“(A) section 238 if the alien is located in a Federal, State, or local correctional facility in the State with which the Secretary of Homeland Security has entered into a written agreement described in this section; or
“(B) section 240 if—
“(i) the alien is charged with a ground of inadmissibility under section 212(a) or a ground of deportability under section 237(a) that is based on a violation of State law, to the extent the Secretary of Homeland Security has entered into a written agreement described in this section with that State; or
“(ii) the alien’s eligibility for immigration relief may be affected by such a violation of State law, to the extent the Secretary of Homeland Security has entered into a written agreement described in this section with that State.”
Sec. 3 Aggravated felony
Definition— Paragraph (43) of section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended—
in subparagraph (A), by striking “minor” and inserting “minor, or an offense involving any of the preceding offenses”;
by amending subparagraph (B) to read as follows:
“(B) an offense involving—
“(i) illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code); or
“(ii) any other crime classified as a felony in the jurisdiction of conviction, or punishable by a maximum term of imprisonment of more than 1 year in the jurisdiction of conviction, involving—
“(I) in the case of an offense under State, local, or tribal law, a substance that is classified as a controlled substance under such law, as applicable, regardless of whether the substance is a controlled substance (as defined in section 102 of such Act); or
“(II) in the case of an offense under Federal law or foreign law, a controlled substance (as defined in section 102 of such Act);”
in subparagraph (C), by inserting “an offense involving” before “illicit trafficking in firearms”;
in subparagraph (E)—
in clause (ii), by striking “or” at the end;
by redesignating clause (iii) as clause (iv); and
by inserting after clause (ii) the following:
“(iii) sections 932 and 933 of title 18 (relating to straw purchasing of firearms and trafficking in firearms); or”
in subparagraph (I), by striking “or 2252” and inserting “2252, or 2252A”;
by amending subparagraph (F) to read as follows:
“(F) an offense that is—
“(i) a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment is at least one year;
“(ii) any crime, for which the term of imprisonment is at least one year, where evidence establishes the circumstances of the crime as actually committed by the alien involved the use, attempted use, or threatened use of physical force against the person or property of another;
“(iii) assault, battery, or robbery, as defined under the jurisdiction of conviction, for which the term of imprisonment is at least one year; or
“(iv) described in section 2119 of title 18, United States Code (relating to carjacking);”
by amending subparagraph (G) to read as follows:
“(G)
“(i) an offense involving burglary (regardless of whether a structure was involved) or theft (including theft by deceit, theft by fraud, embezzlement, or receipt, possession, or use of stolen property), regardless of whether any taking was temporary or permanent, for which the term of imprisonment is at least one year; or
“(ii) any crime, for which the term of imprisonment is at least one year, where evidence establishes the circumstances of the crime as actually committed by the alien was an offense involving burglary (regardless of whether a structure was involved) or theft (including theft by deceit, theft by fraud, embezzlement, or receipt, possession, or use of stolen property), regardless of whether any taking was temporary or permanent;”
in subparagraph (N)—
by striking “paragraph (1)(A) or (2) of”; and
by inserting a semicolon at the end;
in subparagraph (O), by striking “section 275(a) or 276 committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph” and inserting “section 275 or 276 for which the term of imprisonment is at least 1 year”;
in subparagraph (P)—
by striking “(i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18, United States Code, or is described in section 1546(a) of such title (relating to document fraud) and (ii)” and inserting “described in any section of chapter 75 of title 18, United States Code, and”; and
by striking “, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this Act”;
in subparagraph (T), by striking “and” at the end;
by striking subparagraph (U); and
by adding at the end the following:
“(U) an offense described in—
“(i) section 2441 of title 18, United States Code (relating to war crimes);
“(ii) section 2340A of title 18, United States Code (relating to torture);
“(iii) section 1091 of title 18, United States Code (relating to genocide); or
“(iv) section 2442 of title 18, United States Code (relating to use and recruitment of child soldiers);
“(V) any offense not otherwise listed in this paragraph that is—
“(i) defined as a felony by the jurisdiction of conviction; or
“(ii) punishable by a maximum term of imprisonment of more than 1 year; and
“(W) an offense, either classified in the jurisdiction of conviction as or consisting of, a conspiracy, attempt, or solicitation to commit an offense described in this paragraph, or aiding, abetting, counseling, procuring, commanding, or inducing the commission of such an offense.”
Inadmissibility— Section 212(a)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(A)(i)) is amended—
in subclause (I), by striking “or” at the end;
in subclause (II), by adding “or” at the end; and
by inserting after subclause (II) the following:
“(III) an aggravated felony,”
in section 208(b)(2)(B)(i), by adding after the period the following “An alien may be determined to have been convicted of a particularly serious crime even if the alien’s conviction does not constitute an aggravated felony.”;
in section 238(a)(1), by striking “for aliens convicted of any criminal offense covered in” and all that follows through “otherwise covered by section 241(a)(2)(A)(i)” and inserting “for aliens convicted of any criminal offense covered in section 237(a)(2)”;
in section 241(b)(3)(B), in the matter following clause (iv), by striking “For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.” and inserting “For purposes of clause (ii), an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime. The Attorney General and Secretary of Homeland Security may jointly designate, by regulation, offenses that will be considered to be a crime described in clause (ii) or (iii). An alien may be determined to have been convicted of a particularly serious crime without regard to whether the offense for which the alien was convicted is an aggravated felony or an offense designated under the previous sentence.”; and
in section 242(a)(2)(C), by striking “237(a)(2)(A)(iii)” and all that follows through the period at the end and inserting “section 237(a)(2)”.
Applicability— This section, and the amendments made by this section, shall apply with respect to the commission of an offense before, on, or after the date of enactment of this section, and with respect to removal proceedings commenced before, on, or after the date of enactment of this section.
Sec. 4 Severability
If any provision of this Act, or any amendment made by this Act, or the application of such provision to any person, entity, government, or circumstance, is held to be unconstitutional, the remainder of this Act, or any amendment made thereby, or the application of such provision to all other persons, entities, governments, or circumstances, shall not be affected thereby.