109 HR 4497 IH: Bringing Overstay Numbers Down Act of 2005
U.S. House of Representatives
2005-12-08
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
1.This Act may be cited as the Bringing Overstay Numbers Down Act of 2005
or the BOND Act of 2005
.
2.
(a)For purposes of this section:
(1)The term bonding agent means any individual properly licensed, approved, and appointed by power of attorney issued by a qualified surety to execute or countersign surety bonds in connection with any matter governed by the Immigration and Nationality Act (8 U.S.C. 1101, et seq.), and who receives a premium for executing or countersigning such surety bonds.
(2)The term delivery bond means a written suretyship undertaking for the surrender of an individual against whom the Department of Homeland Security has issued an order to show cause or a notice to appear, the performance of which is guaranteed by an acceptable surety on Federal bonds.
(3)The term principal means an individual who is the subject of a delivery bond.
(4)The term Secretary
refers to the Secretary of Homeland Security.
(5)The term surety means an entity, as defined by, and that is in compliance with, sections 9304 through 9308 of title 31, United States Code, that agrees—
(A)to guarantee the performance, where appropriate, of the principal under a delivery bond;
(B)to perform the bond as required; and
(C)to pay the face amount of the bond as a penalty for failure to perform.
(6)The term suretyship undertaking means a written agreement, executed by a bonding agent on behalf of a surety, which binds all parties to its certain terms and conditions and which provides obligations for the principal and the surety while under the delivery bond and penalties for forfeiture to ensure the obligations of the principal and the surety under the agreement.
(b)Validity, agent not co-obligor, expiration, renewal, and cancellation of bonds
(1)A delivery bond, for purposes of surrendering an individual against whom the Department of Homeland Security has issued an order to show cause or a notice to appear, is valid if—
(A)the bond states the full, correct, and proper name of the alien principal;
(B)the bond states the amount of the bond;
(C)the bond is guaranteed by a surety and countersigned by an agent who is properly appointed;
(D)the bond documents are properly executed; and
(E)relevant bond documents are properly filed with the Secretary of Homeland Security.
(2)Bonding agent not co-obligor, party, or guarantor in individual capacity, and no refusal if acceptable suretySection 9304(b) of title 31, United States Code, is amended by adding at the end the following: Notwithstanding any other provision of law, no bonding agent of a corporate surety shall be required to execute surety bonds as a co-obligor, party, or guarantor in an individual capacity on bonds provided by the corporate surety, nor shall a corporate surety bond be refused, if the corporate surety appears on the current Treasury Department Circular 570 as a company holding a certificate of authority as an acceptable surety on Federal bonds and attached to the bond is a currently valid instrument showing the authority of the bonding agent of the surety company to execute the bond.
.
(3)A delivery bond shall expire at the earliest of—
(A)one year from the date of issue;
(B)at the cancellation of the bond or surrender of the principal; or
(C)immediately upon nonpayment of the renewal premium.The Secretary of Homeland Security shall cause all expired delivery bonds to be canceled.
(4)Delivery bonds may be renewed annually, with payment of proper premium to the surety, if there have been no breach of conditions, default, claim, or forfeiture of the bond. Notwithstanding any renewal, when the alien is surrendered to the Secretary for removal, the Secretary shall cause the bond to be canceled.
(5)Delivery bonds shall be canceled and the surety exonerated—
(A)for nonrenewal after the alien has been surrendered to the Department of Homeland Security for removal;
(B)if the surety or bonding agent provides reasonable evidence that there was misrepresentation or fraud in the application for the bond;
(C)upon the death or incarceration of the principal, or the inability of the surety to produce the principal for medical reasons;
(D)if the principal is detained by any law enforcement agency of any State, county, city, or any political subdivision thereof;
(E)if it can be established that the alien departed the United States for any reason without permission of the Secretary, the surety, or the bonding agent;
(F)if the foreign state of which the principal is a national is designated for temporary protected status pursuant to section 244 of the Immigration and Nationality Act (8 U.S.C. 1254a) after the bond is posted; or
(G)if the principal is surrendered to the Department of Homeland Security for removal by the surety or the bonding agent.
(6)Surrender of principal; forfeiture of bond premium
(A)At any time before a breach of any of the delivery bond conditions, if in the opinion of the surety or bonding agent the principal becomes a flight risk, the principal may be surrendered to the Department of Homeland Security for removal.
(B)Forfeiture of bond premiumA principal may be surrendered without the return of any delivery bond premium if the principal—
(i)changes address without notifying the surety, the bonding agent, and the Secretary in writing prior to such change;
(ii)hides or is concealed from a surety, a bonding agent, or the Secretary;
(iii)fails to report to the Secretary as required at least annually; or
(iv)violates the contract with the bonding agent or surety, commits any act that may lead to a breach of the bond, or otherwise violates any other obligation or condition of the bond established by the Secretary.
(7)Certified copy of bond and arrest warrant to accompany surrender
(A)A bonding agent or surety desiring to surrender the principal of a delivery bond—
(i)shall have the right to petition the Secretary or any Federal court, without having to pay any fees or court costs, for an arrest warrant for the arrest of the principal;
(ii)shall forthwith be provided two certified copies each of the arrest warrant and the bond, without having to pay any fees or courts costs; and
(iii)shall have the right to pursue, apprehend, detain, and surrender the principal, together with the certified copies of the arrest warrant and the bond, to any one of ten Department of Homeland Security designated turn-in
centers or any detention facility authorized to detain aliens ordered removed from the United States.
(B)Upon surrender of a principal under subparagraph (A)(iii)—
(i)the official to whom the principal is surrendered shall detain the principal in custody and issue a written certificate of surrender; and
(ii)based on the certificate of surrender the Secretary shall immediately exonerate the surety from any further liability on the bond.
(8)Delivery bonds shall in all cases state the information described in subsection (c) and be secured by a corporate surety that is certified as an acceptable surety on Federal bonds and whose name appears on the current Treasury Department Circular 570.
(c)Information on delivery bondsThe following shall be stated on each delivery bond:
(1)Breach of delivery bond; procedure, forfeiture, notice
(A)If a principal violates any conditions of the delivery bond, or the principal is or becomes subject to a final administrative order of deportation or removal, the Secretary of Homeland Security shall—
(i)immediately issue a warrant for the principal’s arrest and enter that arrest warrant into the National Crime Information Center (NCIC) computerized information database;
(ii)order the bonding agent and surety to take the principal into custody and surrender the principal to any one of ten designated Department of Homeland Security turn-in
centers located nationwide in the areas of greatest need, at any time of day during 15 months after mailing the arrest warrant and the order to the bonding agent and the surety as required by clause (iii), and immediately enter that order into the National Crime Information Center (NCIC) computerized information database; and
(iii)mail two certified copies each of the arrest warrant issued pursuant to clause (i) and two certified copies of the final administrative order of deportation and removal issued pursuant to clause (ii) only to the bonding agent and surety via certified mail return receipt to their last known addresses.
(B)Bonding agents and sureties shall immediately notify the Secretary of Homeland Security of their changes of address and of their changes of telephone numbers.
(C)The Secretary of Homeland Security shall establish, disseminate to bonding agents and sureties, and maintain on a current basis a secure nationwide toll-free list of telephone numbers of Department of Homeland Security officials, including the names of such officials, that bonding agents, sureties, and their employees may immediately contact at any time to discuss and resolve any issue regarding any principal or bond, to be known as Points of Contact
.
(D)A bonding agent or surety shall have full and complete access, free of charge, to any and all information, electronic or otherwise, in the care, custody, and control of the United States Government or any State or local government or any subsidiary or police agency thereof regarding the principal that may be helpful in complying with section 2 of the BOND Act of 2005 that the Secretary of Homeland Security, by regulations, determines may be helpful in locating or surrendering the principal. Beyond the principal, a bonding agent or surety shall not be required to disclose any information, including an arrest warrant and order, received from any governmental source, any person, firm, corporation, or other entity.
(E)If the principal is later arrested, detained, or otherwise located outside the United States and the outlying possessions of the United States (as defined in section 101(a) of the Immigration and Nationality Act), the Secretary of Homeland Security shall immediately order that the surety is completely exonerated, and the bond canceled. If the Secretary of Homeland Security has issued an order under subparagraph (A), the surety may request, by written, properly filed motion, reinstatement of the bond. This subparagraph shall not be construed to prevent the Secretary of Homeland Security from revoking or resetting a bond at a higher amount.
(F)The bonding agent or surety must—
(i)during the 15 months after the date of the arrest warrant and final administrative order of removal or deportation were mailed pursuant to subparagraph (A)(iii) surrender the principal one time; or
(ii)
(I)provide reasonable evidence that producing the principal was prevented—
(II)by the principal’s illness or death;
(III)because the principal is detained in custody in any city, State, country, or any political subdivision thereof;
(IV)because the principal has left the United States or its outlying possessions (as defined in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)); or
(V)because required notice was not given to the bonding agent or surety; and
(VI)establish by affidavit that the inability to produce the principal was not with the consent or connivance of the bonding agent or surety.
(G)If compliance with the surrender order occurs—
(i)more than 15 months but no more than 18 months after the mailing of the arrest warrant and the removal or deportation order to the bonding agent and the surety required under subparagraph (A)(iii), an amount equal to 25 percent of the face amount of the bond shall be assessed as a penalty against the surety;
(ii)more than 18 months but no more than 21 months after the mailing of the arrest warrant and the removal or deportation order to the bonding agent and the surety required under subparagraph (A)(iii), an amount equal to 50 percent of the face amount of the bond shall be assessed as a penalty against the surety;
(iii)more than 21 months but no more than 24 months after the mailing of the arrest warrant and the removal or deportation order to the bonding agent and the surety required under subparagraph (A)(iii), an amount equal to 75 percent of the face amount of the bond shall be assessed as a penalty against the surety; and
(iv)24 months or more after the mailing of the arrest warrant and the removal or deportation order to the bonding agent and the surety required under subparagraph (A)(iii), an amount equal to 100 percent of the face amount of the bond shall be assessed as a penalty against the surety.
(H)If any surety surrenders any principal to the Secretary of Homeland Security at any time and place after the period for compliance has passed, the Secretary of Homeland Security shall cause to be issued to that surety an amount equal to 50 percent of the face amount of the bond. If a surety owes any penalties on bonds to the United States Government, the amount that surety would otherwise receive shall be offset by and applied as a credit against the amount of penalties on bonds it owes the United States, and then that surety shall receive the remainder of the amount to which it is entitled under this subparagraph, if any.
(I)All penalties assessed against a surety on a bond, if any, shall be paid by the surety no more than 27 months after the mailing of the arrest warrant and order to the bonding agent and the surety required under subparagraph (A)(iii).
(2)The Secretary of Homeland Security may waive penalties or extend the period for payment or both, if—
(A)a written request is filed with the Secretary of Homeland Security; and
(B)the bonding agent or surety provides an affidavit that diligent efforts were made to effect compliance of the principal.
(3)Compliance; exoneration; limitation of liability
(A)A bonding agent or surety shall have the absolute right to locate, apprehend, arrest, detain, and surrender any principal, wherever the principal may be found, who violates any of the terms and conditions of the bond involved.
(B)Upon satisfying any of the requirements of the bond, the surety shall be completely exonerated.
(C)Notwithstanding any other provision of law, the total liability on any suretyship undertaking shall not exceed the face amount of the bond. .
(d)The provisions of this section shall take effect on the date of the enactment of this Act and shall apply to delivery bonds executed before, on, or after the date of the enactment of this Act.
3.Release of aliens in removal proceedings
(a)Section 236(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1226(a)(2)) is amended to read as follows:
(2)subject to such reasonable regulations as the Secretary of Homeland Security may prescribe, shall permit agents, servants, and employees of corporate sureties to visit in person with individuals detained by the Secretary and, subject to section 241(a)(8), may release the alien on a delivery bond of at least $10,000, with security approved by the Secretary, and containing conditions and procedures prescribed by section 2 of the BOND Act of 2005 and by the Secretary, but the Secretary shall not release the alien on or to the alien’s own recognizance unless an order of an immigration judge expressly finds and states in a signed order to release the alien to the alien’s own recognizance that the alien is not a flight risk and is not a threat to the United States; but.
(b)Breached bond/detention fundSection 286(r) of the Immigration and Nationality Act (8 U.S.C. 1356(r)) is amended in paragraph (2), by striking $8,000,000 and inserting $80,000,000.
(c)The amendment made by subsection (a) and (b) shall take effect on the date of the enactment of this Act.
4.Detention of aliens delivered by bondsmen
(a)Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) is amended by adding at the end the following:
(8)Effect of production of alien by bondsmanNotwithstanding any other provision of law, the Secretary of Homeland Security shall take into custody any alien subject to a final order of removal, and cancel any bond previously posted for the alien, if the alien is produced within the prescribed time limit by the obligor on the bond whether or not the Department of Homeland Security accepts custody of the alien. The obligor on the bond shall be deemed to have substantially performed all conditions imposed by the terms of the bond, and shall be released from liability on the bond, if the alien is produced within such time limit..
(b)The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to all immigration bonds posted before, on, or after such date.