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Current version obtained 5/21/07. Click here for changelog showing updates from previous versions.

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SEC. 202. DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED.

(a) In General-

(1) AMENDMENTS- Section 241(a) (8 U.S.C. 1231(a)) is amended--

(A) by striking 'Attorney General' the first place it appears, except for the first reference in clause (a)(4)(B)(i), and inserting 'Secretary of Homeland Security';

(B) by striking 'Attorney General' any other place it appears and inserting 'Secretary';

(C) in paragraph (1)--

(i) in subparagraph (B), by amending clause

(ii) to read as follows:'(ii) If a court, the Board of Immigration Appeals, or an immigration judge orders a stay of the removal of the alien, the expiration date of the stay of removal.';

(ii) by amending subparagraph (C) to read asfollows: '(C) EXTENSION OF PERIOD- The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to--'(i) make all reasonable efforts to comply with the removal order; or '(ii) fully cooperate with the Secretary's efforts to establish the alien's identity and carry out the removal order, including failing to make timely application in good faith for travel or other documents necessary to the alien's departure, or conspiring or acting to prevent the alien's removal.'; and

(iii) by adding at the end the following: '(D) TOLLING OF PERIOD- If, at the time described in subparagraph (B), the alien is not in the custody of the Secretary under the authority of this Act, the removal period shall not begin until the alien is taken into such custody. If the Secretary lawfully transfers custody of the alien during the removal period to another Federal agency or to a State or local government agency in connection with the official duties of such agency, the removal period shall be tolled, and shall recommence on the date on which the alien is returned to the custody of the Secretary.';

(D) in paragraph (2), by adding at the end thefollowing: 'If a court, the Board of ImmigrationAppeals, or an immigration judge orders a stay ofremoval of an alien who is subject to anadministrative final order of removal, the Secretary,in the exercise of discretion, may detain the alienduring the pendency of such stay of removal.';

(E) in paragraph (3), by amending subparagraph (D) to read as follows:'(D) to obey reasonable restrictions on the alien'sconduct or activities, or to perform affirmative acts,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 the immigration laws.';

(F) in paragraph (6), by striking 'removal period and, if released,' and inserting 'removal period, in the discretion of the Secretary, without any limitations other than those specified in this section, until the alien is removed. If an alien is released, the alien';

(G) by redesignating paragraph (7) as paragraph (10); and

(H) by inserting after paragraph (6) the following: '(7) PAROLE- If an alien detained pursuant to paragraph

(6) is an applicant for admission, the Secretary of Homeland Security, in the Secretary's discretion, may parole the alien under section 212(d)(5) and may provide, notwithstanding section 212(d)(5), that the alien shall not be returned to custody unless either the alien violates the conditions of the alien's parole or the alien's removal becomes reasonably foreseeable, provided that in no circumstance shall such alien be considered admitted. '(8) ADDITIONAL RULES FOR DETENTION OR RELEASE OF ALIENS- The following procedures shall apply to an alien detained under this section:'(A) DETENTION REVIEW PROCESS FOR ALIENS WHO HAVE EFFECTED AN ENTRY AND FULLY COOPERATE WITH REMOVAL- The Secretary of Homeland Security shall establish an administrative review process to determine whether an alien described in subparagraph (B) should be detained or released after the removal period in accordance with this paragraph. '(B) ALIEN DESCRIBED- An alien is described in this subparagraph if the alien--'(i) has effected an entry into the United States; '(ii) has made all reasonable efforts to comply with the alien's removal order; '(iii) has cooperated fully with the Secretary's efforts to establish the alien's identity and to carry out the removal order, including making timely application in good faith for travel or other documents necessary for the alien's departure; and '(iv) has not conspired or acted to prevent removal.'(C) EVIDENCE- In making a determination undersubparagraph (A), the Secretary-- '(i) shall consider any evidence submitted by the alien; '(ii) may consider any other evidence, including--'(I) any information or assistance provided by the Department of State or other Federal agency; and '(II) any other information available to the Secretary pertaining to the ability to remove the alien.'(D) AUTHORITY TO DETAIN FOR 90 DAYS BEYOND REMOVAL PERIOD- The Secretary, in the exercise of the Secretary's discretion and without any limitations other than those specified in this section, may detain an alien for 90 days beyond the removal period (including any extension of the removal period under paragraph (1)(C)). '(E) AUTHORITY TO DETAIN FOR ADDITIONAL PERIOD- The Secretary, in the exercise of the Secretary's discretion and without any limitations other than those specified in this section, may detain an alien beyond the 90-day period authorized under subparagraph (D) until the alien is removed, if the Secretary--'(i) determines that there is a significant likelihood that the alien will be removed in the reasonably foreseeable future; or '(ii) certifies in writing--'(I) 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; '(II) after receipt of a written recommendation from the Secretary of State, that the release of the alien would likely have serious adverse foreign policy consequences for the United States; '(III) based on information available to the Secretary (including classified, sensitive, or national security information, and regardless of 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; '(IV) that--'(aa) the release of the alien would threaten the safety of the community or any person, and conditions of release cannot reasonably be expected to ensure the safety of the community or any person; and'(bb) the alien--'(AA) has been convicted of 1 or more aggravated felonies (as defined in section 101(a)(43)(A)), or of 1 or more attempts or conspiracies to commit any such aggravated felonies for an aggregate term of imprisonment of at least 5 years; or'(BB) has committed a crime 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, is likely to engage in acts of violence in the future; or'(V) that--'(aa) the release of the alien would threaten the safety of the community or any person, notwithstanding conditions of release designed to ensure the safety of the community or any person; and'(bb) the alien has been convicted of 1 or more aggravated felonies (as defined in section 101(a)(43)) for which the alien was sentenced to an aggregate term of imprisonment of not less than 1 year.'(F) ATTORNEY GENERAL REVIEW - If the Secretary authorizes an extension of detention under subparagraph (E), the alien may seek review of that determination before the Attorney General. If the Attorney General concludes that the alien should be released, then the Secretary shall release the alien pursuant to subparagraph (I). The Attorney General, in consultation with the Secretary, shall promulgate regulations governing review under this paragraph.'(G) ADMINISTRATIVE REVIEW PROCESS- The Secretary, without any limitations other than those specified in this section, may detain an alien pending a determination under subparagraph (E)(ii), if the Secretary has initiated the administrative review process identified in subparagraph (A) not later than 30 days after the expiration of the removal period (including any extension of the removal period under paragraph (1)(C)).'(H) RENEWAL AND DELEGATION OFCERTIFICATION-'(i) RENEWAL- The Secretary may renew a certification under subparagraph (E)(ii) every 6 months, without limitation, after providing the alien with an opportunity to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew such certification, the Secretary shall release the alien, pursuant to subparagraph (I). If the Secretary authorizes an extension of detention under paragraph (E), the alien may seek review of that determination before the Attorney General. If the Attorney General concludes that the alien should be released, then the Secretary shall release the alien pursuant to subparagraph (I). '(ii) DELEGATION- Notwithstanding any other provision of law, the Secretary may not delegate the authority to make or renew a certification described in subclause (II), (III), or (V) of subparagraph (E)(ii) below the level of the Assistant Secretary for Immigration and Customs Enforcement. '(iii) HEARING- The Secretary may request that the Attorney General, or a designee of the Attorney General, provide for a hearing to make the determination described in subparagraph (E)(ii)(IV)(bb)(BB).'(I) RELEASE ON CONDITIONS- If it is determined that an alien should be released from detention, the Secretary may, in the Secretary's discretion, impose conditions on release in accordance with the regulations prescribed pursuant to paragraph (3).'(J) REDETENTION- The Secretary, without any limitations other than those specified in this section, may detain any alien subject to a final removal order who has previously been released from custody if--'(i) the alien fails to comply with the conditions of release; '(ii) the alien fails to continue to satisfy the conditions described in subparagraph (B); or '(iii) upon reconsideration, the Secretary determines that the alien can be detained under subparagraph (E).'(K) APPLICABILITY- This paragraph and paragraphs

(6) and (7) shall apply to any alien returned to custody under subparagraph (I) as if the removal period terminated on the day of the redetention.'(L) DETENTION REVIEW PROCESS FOR ALIENS WHO HAVE EFFECTED AN ENTRY AND FAIL TO COOPERATE WITH REMOVAL- The Secretary shall detain an alien until the alien makes all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary's efforts, if thealien--'(i) has effected an entry into the United States; and '(ii)(I) and the alien faces a significant likelihood that the alien will be removed in the reasonably foreseeable future, or would have been removed if the alien had not--'(aa) failed or refused to make all reasonable efforts to comply with a removal order; '(bb) failed or refused to fully cooperate with the Secretary's efforts to establish the alien's identity and carry out the removal order, including the failure to make timely application in good faith for travel or other documents necessary to the alien's departure; or '(cc) conspired or acted to prevent removal; or'(II) the Secretary makes a certification as specified in subparagraph (E), or the renewal of a certification specified in subparagraph (H).'(M) DETENTION REVIEW PROCESS FOR ALIENS WHO HAVE NOT EFFECTED AN ENTRY- Except as otherwise provided in this subparagraph, the Secretary shall follow the guidelines established in section 241.4 of title 8, Code of Federal Regulations, when detaining aliens who have not effected an entry. The Secretary may decide to apply the review process outlined in this paragraph.'(9) JUDICIAL REVIEW- Judicial review of any action or decision made pursuant to paragraph (6), (7), or (8) shall be available exclusively in a habeas corpus proceeding brought in a United States district court and only if the alien has exhausted all administrative remedies (statutory and nonstatutory) available to the alien as of right.'.

(2) EFFECTIVE DATE- The amendments made by paragraph (1)--

(A) shall take effect on the date of the enactment of this Act; and

(B) shall apply to--

(i) any alien 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, unless (a) that order was issued and the alien was subsequently released or paroled before the enactment of this Act and (b) the alien has complied with and remains in compliance with the terms and conditions of that release or parole; and

(ii) any act or condition occurring or existing before, on, or after the date of the enactment of this Act.