S. 3790 — Protect America Act

This section states congressional findings that conditions imposed by this subtitle on covered federal funds are unambiguous, directly related to federal interests in immigration enforcement and public safety, and voluntarily accepted by recipient jurisdictions. It specifies the purposes of the subtitle to prevent federal funds from subsidizing, facilitating, or incentivizing state or local policies that obstruct federal immigration law enforcement and to protect federal interests in immigration enforcement, national security, and public safety. It cites Congress's authority under Article I, Section 8 (taxing and spending, immigration regulation, and necessary and proper powers) and Article VI, Clause 2 (Supremacy Clause).

This section defines terms for purposes of this subtitle, including: (1) covered federal funds, as any grant, cooperative agreement, loan, contract, or other federal financial assistance administered by the Department of Justice, Department of Homeland Security, Department of Housing and Urban Development, or Department of Transportation; (2) covered jurisdiction, as any state, political subdivision of a state, or agency or instrumentality thereof; (3) immigration enforcement cooperation, as compliance with federal laws on information sharing, notification, and coordination with U.S. Immigration and Customs Enforcement (i.e., communicating citizenship or immigration status of individuals in custody, notifying ICE of detained noncitizens, and refraining from policies that prohibit, restrict, or impede such actions); (4) knowing or constructive noncompliance, as when officials of a covered jurisdiction knew or reasonably should have known it was maintaining a sanctuary policy in violation of this title; and (5) sanctuary policy, as any statute, ordinance, regulation, policy, or practice of a covered jurisdiction that prohibits, restricts, or materially impedes immigration enforcement cooperation.

This section requires a covered jurisdiction, as a condition of receiving covered Federal funds, to certify that (1) it does not have in effect any sanctuary policy and (2) it will not adopt, enforce, or maintain any sanctuary policy during the period for which such funds are obligated or expended. Acceptance of covered Federal funds constitutes a knowing and voluntary agreement to comply with these requirements, with no federal officer or employee permitted to waive, suspend, or exempt a jurisdiction from the certification; false certifications are material conditions of payment under the False Claims Act (31 U.S.C. §§3729-3733).

This section establishes a centralized process under which the Attorney General, in coordination with the Secretary of Homeland Security, must determine whether covered jurisdictions (i.e., states and certain local governments) are noncompliant with this subtitle or subtitle B by adopting or maintaining a sanctuary policy while covered federal funds are obligated or expended. It requires such determinations not later than 60 days after enactment and periodically thereafter, publication and maintenance of a public list of noncompliant jurisdictions, written notice to listed jurisdictions identifying the basis for the determination, and treats list inclusion as prima facie evidence of noncompliance for enforcement purposes.

This section establishes notice and cure procedures for a covered jurisdiction's noncompliance with restrictions on sanctuary policies. Upon such a determination, the administering federal agency must provide written notice describing the basis; the jurisdiction then has 30 days to repeal, suspend, or eliminate the policy to cure the violation. If not cured timely, the agency must recover covered federal funds obligated or expended (1) after the cure period expires and (2) during any prior period of knowing or constructive noncompliance (potentially dating back five years); curing within 30 days exempts the jurisdiction from penalties under section 106 for preceding periods.

This section establishes consequences for a covered jurisdiction's failure to cure a violation under section 105(c), including (1) ineligibility to receive covered Federal funds for any fiscal year during which noncompliance persists; (2) termination by the administering Federal agency of further obligations or expenditures of such funds that have been obligated or expended, plus recovery of all funds subject to recovery under section 105(b); (3) reallocation of recovered funds, to the extent practicable, to compliant covered jurisdictions; and (4) a limitation that such actions apply only to covered Federal funds and not to unrelated Federal assistance.

This section establishes rules of construction clarifying that nothing in this subtitle may be construed (1) to require a covered jurisdiction to enact or administer a federal regulatory program; (2) to limit the authority of the federal government to enforce federal immigration law; or (3) to require a state or political subdivision to enact or administer a federal regulatory program or to impose any obligation except as a condition on the voluntary receipt of federal funds.

This section provides a severability clause stating that if any provision of this subtitle, or its application to any person or circumstance, is held unconstitutional, the remaining provisions of the subtitle and their application to other persons or circumstances are not affected.

This section states a congressional finding that the requirements of this subtitle are neutral and generally applicable conditions on federal funding receipt that provide clear notice and express the federal interest in immigration enforcement and public safety. The section identifies the subtitle's purposes as ensuring federally funded detention facilities share timely immigration status information with federal authorities and preventing federal funds from obstructing immigration law enforcement; and asserts Congress's authority under Article I, Section 8, and the Supremacy Clause.

This section defines terms for purposes of the subtitle, including (1) covered detention facility as any state or local jail, prison, detention center, or other custodial facility (or agency or instrumentality thereof) that receives covered federal funds; (2) covered federal funds as any grant, cooperative agreement, loan, contract, or other federal financial assistance administered by the Department of Justice, Department of Homeland Security, Department of Housing and Urban Development, or Department of Transportation; (3) federal immigration enforcement authority as U.S. Immigration and Customs Enforcement or any successor component of the Department of Homeland Security; (4) immigration status information as any information relating to citizenship, nationality, immigration status, removability, identity, biographic data, biometric data, or custodial status; and (5) noncitizen as any individual who is not a citizen or national of the United States.

This section requires covered detention facilities, as a condition of receiving covered federal funds, to make a reasonable determination of the citizenship status of each detained individual and, upon determining an individual is a noncitizen, to notify a federal immigration enforcement authority within 24 hours with immigration status information regarding such individual. These duties apply regardless of the offense charged, stage of criminal proceedings, or anticipated release and do not require a final legal determination of removability.

This section requires covered detention facilities to provide federal immigration enforcement authorities with ongoing access to immigration status information for detained noncitizens, including updates on (1) transfers of custody, (2) changes in charges or custodial status, (3) bail, bond, or sentencing determinations, and (4) anticipated release eligibility. The section further requires such facilities to permit reasonable access to detained noncitizens for interviews, identification, record review, and lodging detainers and prohibits delaying, withholding, or conditioning such information or access based on local law, policy, or practice. (Thus, the provision overrides sanctuary jurisdiction policies restricting cooperation with federal immigration enforcement.)

This section requires covered detention facilities, as a condition of receiving covered federal funds, to honor lawfully issued detainers from federal immigration enforcement authorities by providing advance notice of an individual's scheduled release and coordinating a transfer of custody. It further classifies such compliance as a federal function carried out pursuant to federal authority.

This section prohibits a state, political subdivision, or covered detention facility from imposing or enforcing any law, policy, or practice that substantially burdens the provision of immigration status information, access, or coordination required under this subtitle. It defines a substantial burden as any such measure that directly or indirectly inhibits, delays, penalizes, or deters compliance with the subtitle. Exceptions are permitted only if the jurisdiction demonstrates that the burden (1) furthers a compelling governmental interest and (2) is the least restrictive means of furthering that interest.

This section requires each covered detention facility to retain records sufficient to document compliance with this subtitle—including (1) determinations of citizenship or immigration status, (2) communications with federal immigration authorities, (3) detainer requests and responses, and (4) custody transfer or release information—for at least five years and to make such records available upon request to the Department of Justice or Department of Homeland Security.

This section establishes enforcement for violations of this subtitle by covered detention facilities, deeming such violations a failure to comply with conditions on covered federal funds. Upon determining noncompliance, it requires the Attorney General or Secretary of Homeland Security to (1) suspend or terminate covered federal funds to the facility, (2) recover all such funds obligated or expended during the noncompliance period, and (3) seek declaratory or injunctive relief as appropriate.

This section provides rules of construction stating that nothing in this subtitle (1) requires a State or local government to enact or administer a Federal regulatory program; (2) limits the authority of the Federal Government to enforce Federal immigration law; or (3) requires a State or political subdivision of a State to enact or administer a Federal regulatory program, or imposes any obligation except as a condition on the voluntary receipt of Federal funds.

This section provides a severability clause stating that, if any provision of this subtitle (or its application to any person or circumstance) is held unconstitutional, the remaining provisions of the subtitle (and their application to other persons or circumstances) remain in effect.

This section declares the purposes of the subtitle, which are to provide a civil remedy to persons injured by serious violent crimes committed by removable aliens if a state or local government's sanctuary policy obstructed federal immigration enforcement and foreseeably contributed to the alien's continued presence at liberty. It further states Congress's authority to enact the subtitle under Article I, Section 8, of the Constitution (regulating immigration, providing for the general welfare, and making necessary and proper laws) and the Supremacy Clause (Article VI, clause 2).

This section defines seven terms for purposes of this subtitle: (1) constructive knowledge, as when officials of a covered jurisdiction knew or reasonably should have known that an individual was a removable alien and that a sanctuary policy prohibited, restricted, or materially impeded immigration enforcement cooperation with respect to the individual; (2) covered federal funds, as given in section 102; (3) covered jurisdiction, as any state, political subdivision thereof, or agency or instrumentality of such state or subdivision; (4) federal immigration enforcement authority, as U.S. Immigration and Customs Enforcement or any successor component of the Department of Homeland Security; (5) removable alien, as an alien (per INA section 101(a)(3)) who is unlawfully present in the United States or otherwise subject to removal under federal immigration law; (6) sanctuary policy, as any statute, ordinance, regulation, policy, practice, directive, guidance, or custom of a covered jurisdiction that prohibits, restricts, or materially impedes information sharing with federal immigration enforcement authorities or compliance with a lawful request or detainer; and (7) serious violent felony, as murder, voluntary manslaughter, rape, sexual assault, aggravated sexual abuse, child sexual abuse, kidnapping, human trafficking, armed robbery, carjacking, aggravated assault resulting in serious bodily injury, or any felony involving the use, attempted use, or threatened use of physical force against another person.

This section establishes a private right of action in federal district court, allowing individuals injured or killed—or their estates, survivors, or heirs—to sue a covered jurisdiction for personal injury or death resulting from a serious violent felony committed by a removable alien, if the plaintiff proves by a preponderance of the evidence that (1) the jurisdiction adopted, enforced, or maintained a sanctuary policy; (2) the jurisdiction had constructive knowledge of the alien's removability; (3) the policy was a substantial factor impeding federal immigration authorities from obtaining timely information, access, custody, or removal of the alien; and (4) the injury or death was a foreseeable and proximate result of that conduct. Inclusion on the list of sanctuary jurisdictions published under section 104 during the relevant period creates a rebuttable presumption of constructive knowledge; acting pursuant to state or local law is not a defense; and plaintiffs need not prove the alien's conviction if they establish commission of the felony by a preponderance of the evidence. Actions may be brought in the district where the injury occurred, the policy was adopted or enforced, or the jurisdiction is located.

This section authorizes prevailing plaintiffs in civil actions under section 143 to recover compensatory damages and requires courts to award them reasonable attorneys' fees and costs, including expert witness fees. The section further establishes joint and several liability for covered jurisdictions found liable under the subtitle for the full amount of damages awarded.

This section deems a covered jurisdiction to have waived sovereign immunity—including under the Eleventh Amendment—with respect to civil actions under this subtitle as a condition of receiving covered Federal funds or any Federal financial assistance administered by the Department of Justice or the Department of Homeland Security. The waiver applies only to claims arising from conduct during periods when such funds are accepted. This section does not require covered jurisdictions to accept such funds.

This section establishes rules regarding proof and causation for purposes of section 143(b). Specifically, it (1) defines a sanctuary policy as having “materially impeded” federal immigration enforcement, for purposes of section 143(b)(3), if the policy reasonably tended to delay, deter, or prevent a federal immigration enforcement authority from receiving timely information, obtaining timely access, or taking custody of the removable alien; (2) defines an injury as “foreseeable,” for purposes of section 143(b)(4), if a reasonable person would recognize that obstructing immigration enforcement cooperation with respect to a removable alien increases the risk that the alien will remain at liberty and commit a serious violent felony; (3) states that nothing in this subtitle imposes liability on a covered jurisdiction for the independent criminal acts of another absent the elements set forth in section 143(b); and (4) specifies that the elements listed in section 143(b) constitute the exclusive requirements for establishing liability in an action under this subtitle.

This section provides rules of construction clarifying that nothing in this subtitle (1) limits the authority of the United States to enforce federal immigration law or (2) creates liability for a covered jurisdiction solely because the jurisdiction received federal funds, absent the elements listed in section 143(b).

This section provides a severability clause stating that if any provision of this subtitle, or its application to any person or circumstance, is held invalid, the remainder of the subtitle and its application to other persons or circumstances remains unaffected.

This section prohibits the issuance of F-1 student visas (i.e., for academic study at colleges, universities, high schools, or language programs) or M-1 vocational student visas (i.e., for nonacademic institutions other than language programs), or the according of such status, to aliens seeking to attend an institution located in a sanctuary jurisdiction. It directs the Secretary of Homeland Security to identify sanctuary jurisdictions (i.e., states or local governments obstructing immigration enforcement such as by refusing ICE detainers, denying access to incarcerated aliens, or impeding information exchanges with federal immigration officers) annually; the prohibition does not apply for a fiscal year to a jurisdiction the Secretary determines is no longer a sanctuary jurisdiction upon submitting a report to that effect to Congress.

This section amends the federal anti-riot statute (18 U.S.C. § 231), which prohibits specified acts furthering civil disorders that obstruct commerce or federally protected functions (i.e., government activities essential to interstate commerce), by (1) adding as a new prohibited act any effort to obstruct, impede, inhibit, stymie, hinder, hamper, or interfere with persons described in 18 U.S.C. § 1114 (i.e., federal officers and employees such as judges, law enforcement personnel, and executive officials) while engaged in or on account of official duties or federally protected functions; and (2) defining "interfere with" to include creating loud noise that impedes, inhibits, stymies, hinders, or hampers operations or audible communications using a device such as a whistle, megaphone, or sound amplification device. (Thus, the new prohibition applies independently of any civil disorder.) All such violations remain punishable by fine or imprisonment for not more than five years, or both. The section includes a rule of construction clarifying that it does not prohibit the content or expressive aspects of speech or expressive conduct.

This section increases criminal penalties under 18 U.S.C. § 111 for forcibly assaulting, resisting, impeding, intimidating, or interfering with federal officers (i.e., persons designated in 18 U.S.C. § 1114, such as federal law enforcement officers) while engaged in or on account of official duties, or certain assaults on former officers, as follows: (1) for simple assault, to imprisonment of not more than 2 years (from not more than 1 year); (2) for assaults involving physical contact with the victim or intent to commit another felony, to imprisonment of not less than 2 years and not more than 16 years (from not more than 8 years); and (3) for assaults using a deadly or dangerous weapon or inflicting bodily injury, to imprisonment of not less than 5 years and not more than 40 years (from not more than 20 years). The section also establishes mandatory minimum sentences for violations under subsections (a) and (b), requiring courts to impose imprisonment for not less than the specified minimum terms notwithstanding any other law, with no suspension, probation, or reduction below such minimum.