Bill would require warrants or fast review for certain immigration arrests

DHS may arrest and detain a noncitizen after issuing the required agency warrant. This applies while officials decide whether the noncitizen will be removed from the United States. The warrant must accurately show individual probable cause that the person can be removed under the covered immigration rules. A DHS supervisor must sign it before officers use it. DHS must issue the warrant with, or base it on, a previously existing notice to appear in proceedings. At arrest, officers must serve the person with both the agency warrant and that notice. Unless a separate detention rule applies, DHS may release the person on a promise to return or set conditions to ensure attendance and protect the community. A reviewing judge or court may do the same. At each custody review, DHS must prove by clear and convincing evidence, a demanding proof standard, that the person is likely to miss future proceedings or endanger the community. A supervisor must sign the warrant at least 24 hours before officers use it. A detained person may seek custody review every 60 days.

Authorized DHS officers may make an interior arrest without a warrant when all required probable-cause findings are met. This authority covers noncitizens physically present in the United States who can be removed under the covered immigration rules. Officers must have probable cause that the person is a noncitizen who can be removed, poses an immediate community danger requiring arrest, and may escape before they can obtain a warrant. The arresting officer must give a supervisor a sworn written statement, under penalty of perjury, explaining the individual evidence for each required finding. An immigration judge or appropriate federal district court must consider the available evidence, including in-person testimony from the arrested person. It must order prompt release if DHS fails to establish the required probable cause and the person poses no immediate danger. The officer must submit the sworn statement no later than 12 hours after the arrest. A judge or court must review the arrest no later than 24 hours afterward.

DHS may cancel a noncitizen's release, rearrest the person, and detain them. This applies to a noncitizen whom DHS released under the proposed release provision. DHS must make an individual probable-cause finding that the person poses a danger to the community. Rearrest must use an agency warrant that shows individual probable cause for removal, has a DHS supervisor's advance signature, and is tied to a notice to appear. At rearrest, officers must serve both documents. DHS may take these steps at any time after making the required individual danger finding. A supervisor must sign the rearrest warrant at least 24 hours before officers use it.

Authorized DHS officers may arrest without a warrant when they personally witness certain unauthorized entries. Another warrantless-arrest provision would use a probable-cause standard. The observed-entry power covers a noncitizen seen entering or trying to enter at a time or place not designated by DHS or an immigration officer. The second standard applies to a separate warrantless-arrest power. The officer or employee making an observed-entry arrest must be authorized under rules set by the Secretary of Homeland Security.

The referenced admission-inspection rule would add border and parole limits. Several immigration provisions would replace “alien” with “noncitizen.” The inspection rule covers an applicant for admission at the border who is not, or was not, paroled.