H.R. 5713 — Expedited Removal of Criminal Aliens Act

This section revises the expedited removal provisions of the Immigration and Nationality Act (§238, 8 U.S.C. 1228)—previously limited to aliens convicted of aggravated felonies—by (1) changing the section heading to “Expedited removal of certain criminal aliens”; (2) expanding eligibility to any incarcerated alien convicted of an offense under INA §237(a)(2)(A)(iii) (certain drug offenses), (B) (controlled substances), (C) (firearms trafficking), or (D) (miscellaneous crimes), or under §237(a)(2)(A)(ii) (multiple crimes of moral turpitude) where both predicates qualify under §237(a)(2)(A)(i) regardless of date; or determined by the Secretary of Homeland Security to be inadmissible or deportable and either a member of a criminal gang or transnational criminal organization, a member of or material supporter of a foreign terrorist organization, or convicted of any felony, misdemeanor against a vulnerable group (i.e., under 16, pregnant, severely disabled, or over 65 years old), assault of a law enforcement officer, sexual offense, crime of domestic violence, stalking, crime against a child (including sex trafficking or abuse of a minor), activity related to sexual exploitation of a minor, or violation of a protection order; (3) throughout subsection (a), replacing “Attorney General” with “Secretary of Homeland Security,” “felon” with “alien,” and certain aggravated felony references with “described in paragraph (1)” while striking phrases limiting to the underlying aggravated felony; and (4) adding requirements that proceedings conform to INA §240 (except as provided), eliminate additional DHS detention, assure post-incarceration removal, and create no enforceable rights, plus definitions of “member of a vulnerable group” and “criminal gang” (i.e., group of 5+ engaging in specified offenses including controlled substances, firearms or body armor violations under 18 U.S.C. §931, human smuggling, violence, obstruction of justice, identity theft, or trafficking). (As background, expedited removal enables DHS to deport eligible aliens directly from correctional facilities with limited process.)

This section revises section 236(c) of the Immigration and Nationality Act to require mandatory detention without bond for additional categories of inadmissible or deportable aliens, specifically those who (1) are members of a criminal gang or transnational criminal organization (as defined in 21 U.S.C. 2341(5)); or (2) have been convicted of any felony, any misdemeanor against a vulnerable group, assault of a law enforcement officer, any sexual offense, any crime of domestic violence, any stalking offense, any crime against a child (including sex trafficking or sexual abuse of a minor), any activity relating to material involving the sexual exploitation of a minor, or any violation of a protection order. It further specifies that terms in the conviction list have the meanings given in the jurisdiction of conviction and makes conforming changes to definitions and subparagraph designations. (Thus, these aliens must be detained pending removal proceedings, with no discretion for release on bond.)

This section expands exceptions to the general prohibition on removing an alien ordered removed to a country where the alien's life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. (As background, INA §241(b)(3) (8 U.S.C. 1231(b)(3)) implements the nonrefoulement principle with specified exceptions primarily for certain criminal aliens.) Specifically, it adds a new exception (clause (v)) for any alien convicted of a criminal offense described in INA §238(a)(1)(A) or described in INA §238(a)(1)(B), regardless of incarceration or proceedings under INA §238.

This section adds a new bar to asylum eligibility under INA §208(b)(2)(A)(vii) for an alien convicted of any criminal offense described in subparagraph (A) of INA §238(a)(1) (i.e., certain criminal grounds of inadmissibility under INA §212(a)(2) or deportability under specified criminal provisions of INA §237(a)(2)) or described in subparagraph (B) of INA §238(a)(1), regardless of whether such alien is incarcerated or in proceedings under INA §238.

This section makes ineligible for any form of immigration relief (as defined in INA §101)—including under section 2242 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (and related regulations)—any alien convicted of a criminal offense listed in INA §238(a)(1)(A) (i.e., aggravated felonies; certain crimes involving moral turpitude, controlled substances, or multiple convictions; or high-speed flight from immigration checkpoints) or described in INA §238(a)(1)(B) (i.e., inadmissible for terrorist activities or a national security threat), regardless of incarceration status or whether expedited removal proceedings under INA §238 have commenced. (Thus, such aliens are barred from asylum, cancellation of removal, adjustment of status, or other discretionary relief.)

This section establishes a severability clause for the Act, directing courts to construe invalid or unenforceable provisions to give them maximum effect permitted by law and deeming utterly invalid provisions severable so as not to affect the remainder of the Act or their application to other persons or circumstances.