S333-118

1. Short title This Act may be cited as the Keep Our Communities Safe Act of 2023.

2. Sense of Congress It is the sense of Congress that— rights guaranteed by the Constitution of the United States should be upheld and protected; Congress intends to uphold the constitutional principle of due process of law; and due process of law is a right afforded to every person in the United States.

4. Aliens ordered removed Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) is amended— by striking Attorney General each place such term appears (except for the first place it appears in paragraph (4)(B)(i)) and inserting Secretary of Homeland Security; in paragraph (1)— by striking subparagraphs (B) and (C) and inserting the following: The removal period begins on the latest of— the date on which the order of removal becomes administratively final; the date on which the alien is taken into such custody if the alien is not in the custody of the Secretary on the date on which the order of removal becomes administratively final; and the date on which the alien is taken into the custody of the Secretary after the alien is released from detention or confinement if the alien is detained or confined (except for an immigration process) on the date on which the order of removal becomes administratively final. The removal period shall be extended beyond 90 days and the Secretary may, in the Secretary’s sole discretion, keep the alien in detention during such extended period, if— the alien fails or refuses to make all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal that is subject to an order of removal; a court, the Board of Immigration Appeals, or an immigration judge orders a stay of removal of an alien who is subject to an administratively final order of removal; the Secretary transfers custody of the alien pursuant to law to another Federal agency or a State or local government agency in connection with the official duties of such agency; or a court or the Board of Immigration Appeals orders a remand to an immigration judge or the Board of Immigration Appeals, during the time period when the case is pending a decision on remand (with the removal period beginning anew on the date that the alien is ordered removed on remand). If the removal period has been extended under clause (i), a new removal period shall be deemed to have begun on the date on which— the alien makes all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order; the stay of removal is no longer in effect; or the alien is returned to the custody of the Secretary. The Secretary shall keep an alien described in subparagraphs (A) through (D) of section 236(c)(1) in detention during the extended period described in clause (i). An alien may only seek relief from detention under this subparagraph by filing an application for a writ of habeas corpus in accordance with chapter 153 of title 28, United States Code. No alien whose period of detention is extended under this subparagraph shall have the right to seek release on bond. in paragraph (3)— in the matter preceding subparagraph (A), by inserting or is not detained pursuant to paragraph (6) after the removal period; and by amending subparagraph (D) to read as follows: to obey reasonable restrictions on the alien’s conduct or activities that the Secretary prescribes for the alien— to prevent the alien from absconding; for the protection of the community; or for other purposes related to the enforcement of Federal immigration laws. in paragraph (4)(A), by striking paragraph (2) and inserting subparagraph (B); and by amending paragraph (6) to read as follows: The Secretary of Homeland Security shall establish an administrative review process to determine whether an alien who is not otherwise subject to mandatory detention, who has made all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien’s departure, and who has not conspired or acted to prevent removal should be detained or released on conditions. The Secretary of Homeland Security shall make a determination whether to release an alien after the removal period in accordance with subparagraph (B), which— shall include consideration of any evidence submitted by the alien; and may include consideration of any other evidence, including— any information or assistance provided by the Secretary of State or other Federal official; and any other information available to the Secretary of Homeland Security pertaining to the ability to remove the alien. The Secretary of Homeland Security may continue to detain an alien for 90 days beyond the removal period (including any extension of the removal period under paragraph (1)(C)). An alien whose detention is extended under this subparagraph shall not have the right to seek release on bond. The Secretary of Homeland Security may continue to detain an alien beyond the 90 days authorized under clause (i)— until the alien is removed, if the Secretary determines that there is a significant likelihood that the alien— will be removed in the reasonably foreseeable future; would be removed in the reasonably foreseeable future; or would have been removed if the alien had not— failed or refused to make all reasonable efforts to comply with the removal order; failed or refused to cooperate fully with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien’s departure; or conspired or acted to prevent removal; until the alien is removed, if the Secretary of Homeland Security certifies in writing— in consultation with the Secretary of Health and Human Services, that the alien has a highly contagious disease that poses a threat to public safety; after receipt of a written recommendation from the Secretary of State, that release of the alien is likely to have serious adverse foreign policy consequences for the United States; based on information available to the Secretary of Homeland Security (including classified, sensitive, or national security information, and without regard to the grounds upon which the alien was ordered removed), that there is reason to believe that the release of the alien would threaten the national security of the United States; that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or of any person; the alien has been convicted of 1 or more aggravated felonies (as defined in section 101(a)(43)(A)) or of 1 or more crimes identified by the Secretary of Homeland Security by regulation, or of 1 or more attempts or conspiracies to commit any such aggravated felonies or such identified crimes, if the aggregate term of imprisonment for such attempts or conspiracies is at least 5 years; or the alien has committed 1 or more crimes of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) and, because of a mental condition or personality disorder and behavior associated with that condition or disorder, the alien is likely to engage in acts of violence in the future; or pending a certification under subclause (II), if the Secretary of Homeland Security has initiated the administrative review process not later than 30 days after the expiration of the removal period (including any extension of the removal period under paragraph (1)(C)). An alien whose detention is extended under this subparagraph shall not have a right to seek release on bond, including by reason of a certification under clause (ii)(II). The Secretary of Homeland Security may renew a certification under subparagraph (B)(ii)(II) every 6 months after providing an opportunity for the alien to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew a certification, the Secretary may not continue to detain the alien under subparagraph (B)(ii)(II). Notwithstanding section 103, the Secretary of Homeland Security may not delegate the authority to make or renew a certification described in item (bb), (cc), or (dd) of subparagraph (B)(ii)(II) below the level of the Assistant Secretary for Immigration and Customs Enforcement. The Secretary of Homeland Security may request that the Attorney General or the Attorney General’s designee provide for a hearing to make the determination described in subparagraph (B)(ii)(II)(dd)(BB). If it is determined that an alien should be released from detention by a Federal court, the Board of Immigration Appeals, or if an immigration judge orders a stay of removal, the Secretary of Homeland Security may impose conditions on release as provided under paragraph (3). The Secretary of Homeland Security, without any limitations other than those specified in this section, may detain any alien subject to a final removal order who is released from custody if— removal becomes likely in the reasonably foreseeable future; the alien fails to comply with the conditions of release or to continue to satisfy the conditions described in subparagraph (A); or upon reconsideration, the Secretary determines that the alien can be detained under subparagraph (B). This section shall apply to any alien returned to custody pursuant to this subparagraph as if the removal period terminated on the day of the redetention. A determination by the Secretary under this paragraph shall not be subject to review by any other agency. (B)Beginning of periodThe removal period begins on the latest of—(i)the date on which the order of removal becomes administratively final;(ii)the date on which the alien is taken into such custody if the alien is not in the custody of the Secretary on the date on which the order of removal becomes administratively final; and(iii)the date on which the alien is taken into the custody of the Secretary after the alien is released from detention or confinement if the alien is detained or confined (except for an immigration process) on the date on which the order of removal becomes administratively final.(C)Suspension of period(i)ExtensionThe removal period shall be extended beyond 90 days and the Secretary may, in the Secretary’s sole discretion, keep the alien in detention during such extended period, if—(I)the alien fails or refuses to make all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal that is subject to an order of removal;(II)a court, the Board of Immigration Appeals, or an immigration judge orders a stay of removal of an alien who is subject to an administratively final order of removal;(III)the Secretary transfers custody of the alien pursuant to law to another Federal agency or a State or local government agency in connection with the official duties of such agency; or(IV)a court or the Board of Immigration Appeals orders a remand to an immigration judge or the Board of Immigration Appeals, during the time period when the case is pending a decision on remand (with the removal period beginning anew on the date that the alien is ordered removed on remand).(ii)RenewalIf the removal period has been extended under clause (i), a new removal period shall be deemed to have begun on the date on which—(I)the alien makes all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order;(II)the stay of removal is no longer in effect; or(III)the alien is returned to the custody of the Secretary.(iii)Mandatory detention for certain aliensThe Secretary shall keep an alien described in subparagraphs (A) through (D) of section 236(c)(1) in detention during the extended period described in clause (i).(iv)Sole form of reliefAn alien may only seek relief from detention under this subparagraph by filing an application for a writ of habeas corpus in accordance with chapter 153 of title 28, United States Code. No alien whose period of detention is extended under this subparagraph shall have the right to seek release on bond.; (D)to obey reasonable restrictions on the alien’s conduct or activities that the Secretary prescribes for the alien—(i)to prevent the alien from absconding;(ii)for the protection of the community; or(iii)for other purposes related to the enforcement of Federal immigration laws.; (6)Additional rules for detention or release of certain aliens(A)Detention review process for cooperative aliens established(i)In generalThe Secretary of Homeland Security shall establish an administrative review process to determine whether an alien who is not otherwise subject to mandatory detention, who has made all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien’s departure, and who has not conspired or acted to prevent removal should be detained or released on conditions.(ii)DeterminationThe Secretary of Homeland Security shall make a determination whether to release an alien after the removal period in accordance with subparagraph (B), which—(I)shall include consideration of any evidence submitted by the alien; and(II)may include consideration of any other evidence, including—(aa)any information or assistance provided by the Secretary of State or other Federal official; and(bb)any other information available to the Secretary of Homeland Security pertaining to the ability to remove the alien.(B)Authority to detain beyond removal period(i)In generalThe Secretary of Homeland Security may continue to detain an alien for 90 days beyond the removal period (including any extension of the removal period under paragraph (1)(C)). An alien whose detention is extended under this subparagraph shall not have the right to seek release on bond.(ii)Specific circumstancesThe Secretary of Homeland Security may continue to detain an alien beyond the 90 days authorized under clause (i)—(I)until the alien is removed, if the Secretary determines that there is a significant likelihood that the alien—(aa)will be removed in the reasonably foreseeable future;(bb)would be removed in the reasonably foreseeable future; or(cc)would have been removed if the alien had not—(AA)failed or refused to make all reasonable efforts to comply with the removal order;(BB)failed or refused to cooperate fully with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien’s departure; or(CC)conspired or acted to prevent removal;(II)until the alien is removed, if the Secretary of Homeland Security certifies in writing—(aa)in consultation with the Secretary of Health and Human Services, that the alien has a highly contagious disease that poses a threat to public safety;(bb)after receipt of a written recommendation from the Secretary of State, that release of the alien is likely to have serious adverse foreign policy consequences for the United States;(cc)based on information available to the Secretary of Homeland Security (including classified, sensitive, or national security information, and without regard to the grounds upon which the alien was ordered removed), that there is reason to believe that the release of the alien would threaten the national security of the United States;(dd)that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or of any person; (ee)the alien has been convicted of 1 or more aggravated felonies (as defined in section 101(a)(43)(A)) or of 1 or more crimes identified by the Secretary of Homeland Security by regulation, or of 1 or more attempts or conspiracies to commit any such aggravated felonies or such identified crimes, if the aggregate term of imprisonment for such attempts or conspiracies is at least 5 years; or(ff)the alien has committed 1 or more crimes of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) and, because of a mental condition or personality disorder and behavior associated with that condition or disorder, the alien is likely to engage in acts of violence in the future; or(III)pending a certification under subclause (II), if the Secretary of Homeland Security has initiated the administrative review process not later than 30 days after the expiration of the removal period (including any extension of the removal period under paragraph (1)(C)).(iii)No right to bond hearingAn alien whose detention is extended under this subparagraph shall not have a right to seek release on bond, including by reason of a certification under clause (ii)(II).(C)Renewal and delegation of certification(i)RenewalThe Secretary of Homeland Security may renew a certification under subparagraph (B)(ii)(II) every 6 months after providing an opportunity for the alien to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew a certification, the Secretary may not continue to detain the alien under subparagraph (B)(ii)(II).(ii)DelegationNotwithstanding section 103, the Secretary of Homeland Security may not delegate the authority to make or renew a certification described in item (bb), (cc), or (dd) of subparagraph (B)(ii)(II) below the level of the Assistant Secretary for Immigration and Customs Enforcement.(iii)HearingThe Secretary of Homeland Security may request that the Attorney General or the Attorney General’s designee provide for a hearing to make the determination described in subparagraph (B)(ii)(II)(dd)(BB).(D)Release on conditionsIf it is determined that an alien should be released from detention by a Federal court, the Board of Immigration Appeals, or if an immigration judge orders a stay of removal, the Secretary of Homeland Security may impose conditions on release as provided under paragraph (3).(E)Redetention(i)In generalThe Secretary of Homeland Security, without any limitations other than those specified in this section, may detain any alien subject to a final removal order who is released from custody if—(I)removal becomes likely in the reasonably foreseeable future;(II)the alien fails to comply with the conditions of release or to continue to satisfy the conditions described in subparagraph (A); or(III)upon reconsideration, the Secretary determines that the alien can be detained under subparagraph (B).(ii)ApplicabilityThis section shall apply to any alien returned to custody pursuant to this subparagraph as if the removal period terminated on the day of the redetention.(F)Review of determinations by secretaryA determination by the Secretary under this paragraph shall not be subject to review by any other agency..

5. Crime of violence defined Section 16(b) of title 18, United States Code, is amended— by striking by its nature, involves and inserting based on the facts of the offense, involved; and by striking may be used and inserting may have been used.

6. Severability If any of the provisions of this Act, any amendment made by this Act, or the application of any such provision to any person or circumstance, is held to be invalid for any reason, the remainder of this Act, the amendments made by this Act, and the application of the provisions and amendments made by this Act to any other person or circumstance shall not be affected by such holding.

7. Effective dates The amendments made by section 3 shall take effect on the date of the enactment of this Act. Section 236 of the Immigration and Nationality Act, as amended by section 3, shall apply to any alien in detention under the provisions of such section on or after such date of enactment. The amendments made by section 4 shall take effect on the date of the enactment of this Act. Section 241 of the Immigration and Nationality Act, as amended by section 4, shall apply to— all aliens subject to a final administrative removal, deportation, or exclusion order that was issued before, on, or after the date of the enactment of this Act; and acts and conditions occurring or existing before, on, or after such date of enactment.