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Kate's Law


SWMissourian

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Senator Madison, for himself and with thanks to Representative Goodlatte and Senator Benson of Utah, introduced the following bill:

AN ACT
To amend section 276 of the Immigration and Nationality Act relating to reentry of removed aliens.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.

This Act may be cited as “Kate’s Law”.

SEC. 2. ILLEGAL REENTRY.

Section 276 of the Immigration and Nationality Act (8 U.S.C. 1326) is amended to read as follows:

“REENTRY OF REMOVED ALIEN

“Sec. 276. (a) Reentry After Removal.—Any alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 2 years, or both.

“(b) Reentry Of Criminal Offenders.—Notwithstanding the penalty provided in subsection (a), if an alien described in that subsection was convicted before such removal or departure—

“(1) for 3 or more misdemeanors or for a felony, the alien shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both;

“(2) for a felony for which the alien was sentenced to a term of imprisonment of not less than 30 months, the alien shall be fined under such title, imprisoned not more than 15 years, or both;

“(3) for a felony for which the alien was sentenced to a term of imprisonment of not less than 60 months, the alien shall be fined under such title, imprisoned not more than 20 years, or both; or

“(4) for murder, rape, kidnapping, or a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, or for 3 or more felonies of any kind, the alien shall be fined under such title, imprisoned not more than 25 years, or both.

“(c) Reentry After Repeated Removal.—Any alien who has been denied admission, excluded, deported, or removed 3 or more times and thereafter enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both.

“(d) Proof Of Prior Convictions.—The prior convictions described in subsection (b) are elements of the crimes described, and the penalties in that subsection shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are—

“(1) alleged in the indictment or information; and

“(2) proven beyond a reasonable doubt at trial or admitted by the defendant.

“(e) Affirmative Defenses.—It shall be an affirmative defense to a violation of this section that—

“(1) prior to the alleged violation, the alien had sought and received the express consent of the Secretary of Homeland Security to reapply for admission into the United States; or

“(2) with respect to an alien previously denied admission and removed, the alien—

“(A) was not required to obtain such advance consent under the Immigration and Nationality Act or any prior Act; and

“(B) had complied with all other laws and regulations governing the alien’s admission into the United States.

“(f) Limitation On Collateral Attack On Underlying Removal Order.—In a criminal proceeding under this section, an alien may not challenge the validity of any prior removal order concerning the alien.

“(g) Reentry Of Alien Removed Prior To Completion Of Term Of Imprisonment.—Any alien removed pursuant to section 241(a)(4) who enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in, the United States shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release unless the alien affirmatively demonstrates that the Secretary of Homeland Security has expressly consented to the alien’s reentry. Such alien shall be subject to such other penalties relating to the reentry of removed aliens as may be available under this section or any other provision of law.

“(h) Definitions.—For purposes of this section and section 275, the following definitions shall apply:

“(1) CROSSES THE BORDER TO THE UNITED STATES.—The term ‘crosses the border’ refers to the physical act of crossing the border, regardless of whether the alien is free from official restraint.

“(2) FELONY.—The term ‘felony’ means any criminal offense punishable by a term of imprisonment of more than 1 year under the laws of the United States, any State, or a foreign government.

“(3) MISDEMEANOR.—The term ‘misdemeanor’ means any criminal offense punishable by a term of imprisonment of not more than 1 year under the applicable laws of the United States, any State, or a foreign government.

“(4) REMOVAL.—The term ‘removal’ includes any denial of admission, exclusion, deportation, or removal, or any agreement by which an alien stipulates or agrees to exclusion, deportation, or removal.

“(5) STATE.—The term ‘State’ means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

(i) The provisions of 276(a) shall not apply if the subsequent entry attempt was pursuant to a valid entry visa issued subsequent to the latest removal or refused entry, so long as the previous exclusion attempt was disclosed during the application for the visa in question; or if said entry attempt was in response to a summons issued by a court of the United States, or one of the states therein with the permission of the Attorney General or his designee.

(j) In the event that a person who is neither a United States citizen nor a lawful permanent resident is arrested and charged with a crime where the maximum sentence is greater than 364 days in jail or prison, or where the maximum sentence would be over 364 days in jail or prison if charged under federal law, the police force carrying out the arrest shall inform the appropriate agency or agencies of the Department of Homeland Security and/or the Department of Justice.

(k) Prior to releasing any person held for a crime for which the maximum sentence is greater than 364 days in jail or prison, or where the maximum sentence would be over 364 days in jail or prison if charged under federal law, where such person is neither a United States citizen or a lawful permanent resident and where such person has been sentenced to not less than 30 days in jail or prison, the authority releasing said person shall inform the appropriate agency or agencies of the Department of Homeland Security and/or the Department of Justice not less than 21 days prior to their release of the intended or expected release.


(l) Upon being informed under either (j) or (k) of this Act, the relevant federal agencies may require that the individual(s) in question be retained in custody for not more than fourteen (14) days from informing the authority holding them to permit the initiation of a deportation proceeding.  During this time, the individual(s) in question shall not be assessed for any costs of being held in custody.  In the event that no proceeding is initiated, the federal government shall direct the authority in question to reimburse the individual(s) in question for any and all costs incurred during the hold and shall reimburse the agency in question for those expenses.


(m) Each police force or correctional authority shall designate one or more officials who shall be responsible for carrying out the transmission of information required in Sections (j) and (k) of this Act.  In the event that no designation is made, the head of the relevant police force or correctional authority shall be deemed to be the responsible official.


(n) The failure to carry out the requirements of Section (j) and/or (k) of this Act shall be a civil offense, and the responsible official(s) of the police force or correctional authority which fails to carry out the requirement(s) of those sections shall be subject to a civil fine of not greater than $1,000 per instance if either intentional on the part of the official(s) in question or due to negligence, or not greater than $10,000 if in compliance with an officially stated or unofficially implemented policy of non-compliance on the part of the agency or department in question.


(o) The Attorney General or their designee shall create and maintain a list of agencies within the Department of Homeland Security and the Department of Justice which shall be required to be informed under this Act, and shall ensure that a means shall exist for the timely conveyance of the information required under this Act.”.
PES: 

Quote

 

(Sec. 2) This bill amends the Immigration and Nationality Act to revise provisions relating to the reentry of removed aliens.

The bill provides that an alien who has been excluded, deported, removed, or denied admission, or who has departed the United States while under an outstanding order of exclusion, deportation, or removal, and who subsequently crosses or attempts to cross the border into the United States, shall be fined, imprisoned not more than two years, or both. ("Crosses the border" refers to the physical act of crossing the border, regardless of whether the alien is free from official restraint.)

The bill revises reentry of criminal offender provisions to provide that an alien who was convicted before such removal or departure of:

three or more misdemeanors or for a felony shall be fined, imprisoned up to 10 years, or both;
a felony for which the alien was sentenced to not less than 30 months in prison shall be fined, imprisoned up to 15 years, or both;
a felony for which the alien was sentenced to not less than 60 months shall be fined, imprisoned up to 20 years, or both; or
murder, rape, kidnapping, or a felony offense relating to peonage and slavery or terrorism, or of three or more felonies of any kind, shall be fined, imprisoned up to 25 years, or both.
An alien who has been excluded, deported, removed, or denied admission three or more times and thereafter enters, attempts to enter, or crosses or attempts to cross the border to, or is at any time found in, the United States shall be fined, imprisoned not more than 10 years, or both.

The bill states that it shall be an affirmative defense to a reentry violation (thus placing the burden of proof on the defendant) that: (1) prior to the alleged violation, the alien had received Department of Homeland Security (DHS) consent to reapply for U.S. admission; or (2) with respect to an alien previously denied admission and removed, the alien was not required to obtain such advance consent and had complied with all other applicable admissions laws and regulations.

In a criminal proceeding under this section, an alien may not challenge the validity of any prior removal order. (Currently, the validity of a prior deportation order may be challenged under certain grounds.)

A removed alien who enters, attempts to enter, or crosses or attempts to cross the border to, or is at any time found in, the United States shall be incarcerated for the remainder of the sentence that was pending at the time of deportation without any reduction for parole or supervised release unless the alien affirmatively demonstrates that DHS has consented to the alien's reentry. 

 

OOC: I also included the amendments we made last session to the best of my ability. I am not a lawyer, so if I put something in the wrong place or made some other error, I welcome corrections and will gladly make them. Here is the PES of the major amendments added in the 114th Congress: 

Quote

X.1 If someone is charged with a felony (or potentially a high-end misdemeanor) or a crime that would be such under federal law and they aren't a citizen or lawful permanent resident, the arresting authority has to inform the Federal government of the arrest.
X.2 If someone is being released after having been jailed for an offense that would be covered under X.1 with any sentence of over 30 days, the prison/jail in question has to inform the Federal government not less than 21 days before the intended release date (basically, enough time that ICE or whomever can draft up a deportation order before their release).
X.3 Lets the Federal government demand up to a two-week hold on the person in question to file a deportation order.  Bars any "pay to stay" costs from being assessed on them in the interim and requires reimbursement of any related expenses if no order is submitted (e.g. calls to their lawyer, canteen spending, etc.).  Ultimately requires that those expenses fall on the federal government as a disincentive to screw around with holds.  The 14-day rule is not cumulative with their sentence (e.g. if they're informed on day 3 then the 14-day period would expire on day 17, prior to their release on day 21) and is primarily to allow action to be taken for someone who is arrested and charged rather than who is pending release.
X.4/5 Police/sheriff's departments and jails/prisons have to designate someone (or several someones) to be responsible for implementing X.1 and X.2.  If they don't do so, whomever is in charge is deemed responsible.  Civil fines of up to $1,000 apply if they screw up either due to individual intent or due to negligence.  If there's a policy of non-compliance, the fine can be up to $10,000.  No fine applies if intent or negligence can't be shown (e.g. the release date coincides with something that legitimately overwhelms the agency or department in question, such as a disaster or riot).
X.6 Requires the AG to create and maintain a list of agencies that need to be informed under this Act and facilitate the information being passed about.  This will almost assuredly include ICE, but can be expanded to include other agencies on an as-needed basis.

No part of this amendment requires ICE to do anything, but it requires that they be informed in a timely manner so they have the option to do so.

 

Christopher Drake

Republican, NY-2

Speaker of the United States House of Representatives

Former Chief Administrator - Rounds 4 & 5, Evil Arch-Conservative, Frequent Republican Player

 

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