[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1362 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                S. 1362

  To provide for enhanced Federal enforcement of, and State and local 
 assistance in the enforcement of, the immigration laws of the United 
                    States, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 30, 2005

  Mr. Sessions (for himself, Mr. Craig, Mr. Inhofe, and Mr. Isakson) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To provide for enhanced Federal enforcement of, and State and local 
 assistance in the enforcement of, the immigration laws of the United 
                    States, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Homeland Security Enhancement Act of 
2005''.

SEC. 2. STATE DEFINED.

    In this Act, the term ``State'' has the meaning given that term in 
section 101(a)(36) of the Immigration and Nationality Act (8 U.S.C. 
1101 (a)(36)).

SEC. 3. FEDERAL AFFIRMATION OF IMMIGRATION LAW ENFORCEMENT BY STATES 
              AND POLITICAL SUBDIVISIONS OF STATES.

    Notwithstanding any other provision of law and reaffirming the 
existing inherent authority of States, law enforcement personnel of a 
State or a political subdivision of a State have the inherent authority 
of a sovereign entity to investigate, identify, apprehend, arrest, 
detain, or transfer to Federal custody aliens in the United States 
(including the transportation of such aliens across State lines to 
detention centers), for the purpose of assisting in the enforcement of 
the immigration laws of the United States in the normal course of 
carrying out the law enforcement duties of such personnel. This State 
authority has never been displaced or preempted by a Federal law.

SEC. 4. STATE AND LOCAL LAW ENFORCEMENT PROVISION OF INFORMATION 
              REGARDING ALIENS.

    (a) Violations of Federal Law.--A statute, policy, or practice that 
prohibits a law enforcement officer of a State, or of a political 
subdivision of a State, from enforcing Federal immigration laws or from 
assisting or cooperating with Federal immigration law enforcement in 
the course of carrying out the law enforcement duties of the officer or 
from providing information to an official of the United States 
Government regarding the immigration status of an individual who is 
believed to be illegally present in the United States is in violation 
of section 642(a) of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (8 U.S.C. 1373(a)) and section 434 of the 
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 
(8 U.S.C. 1644).
    (b) Provision of Information Regarding Apprehended Illegal 
Aliens.--
            (1) In general.--In compliance with section 642(a) of the 
        Illegal Immigration Reform and Immigrant Responsibility Act of 
        1996 (8 U.S.C. 1373(a)) and section 434 of the Personal 
        Responsibility and Work Opportunity Reconciliation Act of 1996 
        (8 U.S.C. 1644), States and localities should provide to the 
        Secretary of Homeland Security the information listed in 
        subsection (c) on each alien apprehended or arrested in the 
        jurisdiction of the State or locality who is believed to be in 
        violation of an immigration law of the United States. Such 
        information should be provided regardless of the reason for the 
        apprehension or arrest of the alien.
            (2) Time limitation.--Not later than 10 days after an alien 
        described in paragraph (1) is apprehended, information 
        requested to be provided under paragraph (1) should be provided 
        in such form and in such manner as the Secretary of Homeland 
        Security may, by regulation or guideline, require.
    (c) Information Required.--The information listed in this 
subsection is as follows:
            (1) The name of the alien.
            (2) The address or place of residence of the alien.
            (3) A physical description of the alien.
            (4) The date, time, and location of the encounter with the 
        alien and reason for stopping, detaining, apprehending, or 
        arresting the alien.
            (5) If applicable, the driver's license number issued to 
        the alien and the State of issuance of such license.
            (6) If applicable, the type of any other identification 
        document issued to the alien, any designation number contained 
        on the identification document, and the issuing entity for the 
        identification document.
            (7) If applicable, the license plate number, make, and 
        model of any automobile registered to, or driven by, the alien.
            (8) A photo of the alien, if available or readily 
        obtainable.
            (9) The fingerprints of the alien, if available or readily 
        obtainable, including a full set of 10 rolled fingerprints if 
        available or readily obtainable.
    (d) Reimbursement.--The Secretary of Homeland Security shall 
reimburse States and localities for all reasonable costs, as determined 
by the Secretary of Homeland Security, incurred by that State or 
locality as a result of providing information required by this section.
    (e) Technical and Conforming Amendments.--
            (1) Illegal immigration reform and immigrant responsibility 
        act of 1996.--
                    (A) Technical amendment.--Section 642 of the 
                Illegal Immigration Reform and Immigrant Responsibility 
                Act of 1996 (8 U.S.C. 1373) is amended--
                            (i) in subsections (a), (b)(1), and (c) by 
                        striking ``Immigration and Naturalization 
                        Service'' and inserting ``Department of 
                        Homeland Security''; and
                            (ii) in the heading by striking 
                        ``immigration and naturalization service'' and 
                        inserting ``department of homeland security''.
                    (B) Conforming amendment.--Section 1(d) of the 
                Illegal Immigration Reform and Immigrant Responsibility 
                Act of 1996 (division C of Public Law 104-208; 110 
                Stat. 3009-546) is amended by striking the item related 
                to section 642 and inserting the following:

        ``Sec. 642. Communication between government agencies and the 
                            Department of Homeland Security.''.
            (2) Personal responsibility and work opportunity 
        reconciliation act of 1996.--
                    (A) In general.--Section 434 of the Personal 
                Responsibility and Work Opportunity Reconciliation Act 
                of 1996 (8 U.S.C. 1644) is amended--
                            (i) by striking ``Immigration and 
                        Naturalization Service'' and inserting 
                        ``Department of Homeland Security''; and
                            (ii) in the heading by striking 
                        ``immigration and naturalization service'' and 
                        inserting ``department of homeland security''.
                    (B) Conforming amendment.--Section 2 of the 
                Personal Responsibility and Work Opportunity 
                Reconciliation Act of 1996 (Public Law 104-193; 110 
                Stat. 2105) is amended by striking the item related to 
                section 434 and inserting the following:

        ``Sec. 434. Communication between State and local government 
                            agencies and the Department of Homeland 
                            Security.''.
    (f) Authorization of Appropriations.--There is authorized to be 
appropriated such sums as are necessary to provide the reimbursements 
required by subsection (d).

SEC. 5. CIVIL AND CRIMINAL PENALTIES AND FORFEITURE FOR ALIENS 
              UNLAWFULLY PRESENT IN THE UNITED STATES.

    (a) Aliens Unlawfully Present.--Title II of the Immigration and 
Nationality Act (8 U.S.C. 1151 et seq.) is amended by adding after 
section 275 the following:

    ``criminal penalties for unlawful presence in the united states

    ``Sec. 275A. (a) In General.--In addition to any other violation, 
an alien present in the United States in violation of this Act shall be 
guilty of a misdemeanor and shall be fined under title 18, United 
States Code, imprisoned not more than 1 year, or both. The assets of 
any alien present in the United States in violation of this Act shall 
be subject to forfeiture under title 19, United States Code.
    ``(b) Affirmative Defense.--It shall be an affirmative defense to a 
violation of subsection (a) that the alien overstayed the time allotted 
under the alien's visa due to an exceptional and extremely unusual 
hardship or physical illness that prevented the alien from leaving the 
United States by the required date.''.
    (b) Increase in Criminal Penalties for Illegal Entry.--Section 
275(a) of the Immigration and Nationality Act (8 U.S.C. 1325(a)) is 
amended by striking ``6 months,'' and inserting ``1 year,''.

SEC. 6. LISTING OF IMMIGRATION VIOLATORS IN THE NATIONAL CRIME 
              INFORMATION CENTER DATABASE.

    (a) Provision of Information to the NCIC.--
            (1) In general.--Not later than 180 days after the date of 
        enactment of this Act, the Under Secretary for Border and 
        Transportation Security of the Department of Homeland Security 
        shall provide the National Crime Information Center of the 
        Department of Justice with such information as the Director may 
        have related to--
                    (A) any alien against whom a final order of removal 
                has been issued;
                    (B) any alien who is subject to a voluntary 
                departure agreement;
                    (C) any alien who has remained in the United States 
                beyond the alien's authorized period of stay; and
                    (D) any alien whose visa has been revoked.
            (2) Requirement to provide and use information.--The 
        information described in paragraph (1) shall be provided to the 
        National Crime Information Center, and the Center shall enter 
        the information into the Immigration Violators File of the 
        National Crime Information Center database, regardless of 
        whether--
                    (A) the alien received notice of a final order of 
                removal;
                    (B) the alien has already been removed; or
                    (C) sufficient identifying information is available 
                for the alien, such as a physical description of the 
                alien.
    (b) Inclusion of Information in the NCIC Database.--Section 534(a) 
of title 28, United States Code, is amended--
            (1) in paragraph (3), by striking ``and'' at the end;
            (2) by redesignating paragraph (4) as paragraph (5); and
            (3) by inserting after paragraph (3) the following:
            ``(4) acquire, collect, classify, and preserve records of 
        violations of the immigration laws of the United States, 
        regardless of whether the alien has received notice of the 
        violation, sufficient identifying information is available for 
        the alien, or the alien has already been removed; and''.
    (c) Permission To Depart Voluntarily.--Section 240B of the 
Immigration and Nationality Act (8 U.S.C. 1229c) is amended--
            (1) by striking ``Attorney General'' each place that term 
        appears and inserting ``Secretary of Homeland Security''; and
            (2) in subsection (a)(2)(A), by striking ``120'' and 
        inserting ``30''.

SEC. 7. INCREASE OF FEDERAL DETENTION SPACE AND THE UTILIZATION OF 
              FACILITIES IDENTIFIED FOR CLOSURES AS A RESULT OF THE 
              DEFENSE BASE CLOSURE REALIGNMENT ACT OF 1990.

    (a) Construction or Acquisition of Detention Facilities.--
            (1) In general.--The Secretary of Homeland Security shall 
        construct or acquire, in addition to existing facilities for 
        the detention of aliens, 20 detention facilities in the United 
        States that have the capacity to detain a total of not less 
        than 10,000 individuals at any time for aliens detained pending 
        removal or a decision on removal of such alien from the United 
        States.
            (2) Determination of location.--The location of any 
        detention facility built or acquired in accordance with this 
        subsection shall be determined by the Deputy Assistant Director 
        of the Office of Detention and Removal Operations within the 
        Bureau of Immigration and Customs Enforcement.
            (3) Use of installations under base closure laws.--In 
        acquiring detention facilities under this subsection, the 
        Secretary of Homeland Security shall, to the maximum extent 
        practical, request the transfer of appropriate portions of 
        military installations approved for closure or realignment 
        under the Defense Base Closure and Realignment Act of 1990 
        (part A of title XXIX of Public Law 101-510; 10 U.S.C. 2687 
        note) for use in accordance with paragraph (1).
    (b) Technical and Conforming Amendment.--Section 241(g)(1) of the 
Immigration and Nationality Act (8 U.S.C. 1231(g)(1)) is amended by 
striking ``may expend'' and inserting ``shall expend''.
    (c) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as necessary to carry out this section.

SEC. 8. FEDERAL CUSTODY OF ILLEGAL ALIENS APPREHENDED BY STATE OR LOCAL 
              LAW ENFORCEMENT.

    (a) In General.--Title II of the Immigration and Nationality Act (8 
U.S.C. 1151 et seq.) is amended by adding after section 240C the 
following:

       ``transfer of illegal aliens from state to federal custody

    ``Sec. 240D. (a) In General.--If the head of a law enforcement 
entity of a State (or, if appropriate, a political subdivision of the 
State) exercising authority with respect to the apprehension or arrest 
of an illegal alien submits a request to the Secretary of Homeland 
Security that the alien be taken into Federal custody, the Secretary of 
Homeland Security--
            ``(1) shall--
                    ``(A) not later than 72 hours after the conclusion 
                of the State charging process or dismissal process, or 
                if no State charging or dismissal process is required, 
                not later than 72 hours after the illegal alien is 
                apprehended, take the illegal alien into the custody of 
                the Federal Government and incarcerate the alien; or
                    ``(B) request that the relevant State or local law 
                enforcement agency temporarily detain or transport the 
                illegal alien to a location for transfer to Federal 
                custody; and
            ``(2) shall designate at least one Federal, State, or local 
        prison or jail or a private contracted prison or detention 
        facility within each State as the central facility for that 
        State to transfer custody of criminal or illegal aliens to the 
        Department of Homeland Security.''.
    ``(b) Reimbursement.--
            ``(1) In general.--The Department of Homeland Security 
        shall reimburse a State or a political subdivision of a State 
        for all reasonable expenses, as determined by the Secretary of 
        Homeland Security, incurred by the State or political 
        subdivision in the detention and transportation of a criminal 
        or illegal alien as described in subparagraphs (A) and (B) of 
        subsection (a)(1).
            ``(2) Cost computation.--Compensation provided for costs 
        incurred under subparagraphs (A) and (B) of subsection (a)(1) 
        shall be--
                    ``(A) the product of--
                            ``(i) the average cost of incarceration of 
                        a prisoner in the relevant State, as determined 
                        by the chief executive officer of a State (or, 
                        as appropriate, a political subdivision of the 
                        State); multiplied by
                            ``(ii) the number of days that the alien 
                        was in the custody of the State or political 
                        subdivision; added to
                    ``(B) the cost of transporting the criminal or 
                illegal alien from the point of apprehension or arrest 
                to the location of detention, and if the location of 
                detention and of custody transfer are different, to the 
                custody transfer point.
    ``(c) Requirement for Appropriate Security.--The Secretary of 
Homeland Security shall ensure that illegal aliens incarcerated in 
Federal facilities pursuant to this subsection are held in facilities 
which provide an appropriate level of security.
    ``(d) Requirement for Schedule.--
            ``(1) In general.--In carrying out this section, the 
        Secretary of Homeland Security shall establish a regular 
        circuit and schedule for the prompt transfer of apprehended 
        illegal aliens from the custody of States and political 
        subdivisions of States to Federal custody.
            ``(2) Authority for contracts.--The Secretary of Homeland 
        Security may enter into contracts with appropriate State and 
        local law enforcement and detention officials to implement this 
        subsection.
    ``(e) Illegal Alien Defined.--For purposes of this section, the 
term `illegal alien' means an alien who--
            ``(1) entered the United States without inspection or at 
        any time or place other than that designated by the Secretary 
        of Homeland Security;
            ``(2) was admitted as a nonimmigrant and who, at the time 
        the alien was taken into custody by the State or a political 
        subdivision of the State, had failed to--
                    ``(A) maintain the nonimmigrant status in which the 
                alien was admitted or to which it was changed under 
                section 248; or
                    ``(B) comply with the conditions of any such 
                status;
            ``(3) was admitted as an immigrant and has subsequently 
        failed to comply with the requirements of that status; or
            ``(4) failed to depart the United States under a voluntary 
        departure agreement or under a final order of removal.''.
    (b) Authorization of Appropriations for the Detention and 
Transportation to Federal Custody of Aliens Not Lawfully Present.--
There is authorized to be appropriated $500,000,000 for the detention 
and removal of aliens not lawfully present in the United States under 
the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) for fiscal 
year 2006 and each subsequent fiscal year.

SEC. 9. IMMIGRATION LAW ENFORCEMENT TRAINING OF STATE AND LOCAL LAW 
              ENFORCEMENT PERSONNEL.

    (a) Training Manual and Pocket Guide.--
            (1) Establishment.--Not later than 180 days after the date 
        of enactment of this Act, the Secretary of Homeland Security 
        shall establish--
                    (A) a training manual for law enforcement personnel 
                of a State or political subdivision of a State to train 
                such personnel in the investigation, identification, 
                apprehension, arrest, detention, and transfer to 
                Federal custody of aliens in the United States 
                (including the transportation of such aliens across 
                State lines to detention centers and the identification 
                of fraudulent documents); and
                    (B) an immigration enforcement pocket guide for law 
                enforcement personnel of a State or political 
                subdivision of a State to provide a quick reference for 
                such personnel in the course of duty.
            (2) Availability.--The training manual and pocket guide 
        established in accordance with paragraph (1) shall be made 
        available to all State and local law enforcement personnel.
            (3) Applicability.--Nothing in this subsection shall be 
        construed to require State or local law enforcement personnel 
        to carry the training manual or pocket guide established in 
        accordance with paragraph (1) with them while on duty.
            (4) Costs.--The Secretary of Homeland Security shall be 
        responsible for any and all costs incurred in establishing the 
        training manual and pocket guide under this subsection.
    (b) Training Flexibility.--
            (1) In general.--The Secretary of Homeland Security shall 
        make training of State and local law enforcement officers 
        available through as many means as possible, including 
        residential training at the Center for Domestic Preparedness of 
        the Department of Homeland Security, onsite training held at 
        State or local police agencies or facilities, on-line training 
        courses by computer, teleconferencing, and videotape, or the 
        digital video display (DVD) of a training course or courses.
            (2) On-line training.--The head of the Distributed Learning 
        Program of the Federal Law Enforcement Training Center shall 
        make training available for State and local law enforcement 
        personnel via the Internet through a secure, encrypted 
        distributed learning system that has all its servers based in 
        the United States, is sealable, survivable, and is capable of 
        having a portal in place within 30 days.
            (3) Federal personnel training.--The training of State and 
        local law enforcement personnel under this section shall not 
        displace the training of Federal personnel.
    (c) Clarification.--Nothing in this Act or any other provision of 
law shall be construed as making any immigration-related training a 
requirement for, or prerequisite to, any State or local law enforcement 
officer exercising the inherent authority of the officer to 
investigate, identify, apprehend, arrest, detain, or transfer to 
Federal custody illegal aliens during the normal course of carrying out 
the law enforcement duties of the officer.
    (d) Training Limitation.--Section 287(g) of the Immigration and 
Nationality Act (8 U.S.C. 1357(g)) is amended--
            (1) by striking ``Attorney General'' each place that term 
        appears and inserting ``Secretary of Homeland Security''; and
            (2) in paragraph (2), by adding at the end the following: 
        ``Such training shall not exceed 14 days or 80 hours, whichever 
        is longer.''.

SEC. 10. IMMUNITY.

    (a) Personal Immunity.--Notwithstanding any other provision of law, 
a law enforcement officer of a State, or of a political subdivision of 
a State, shall be immune, to the same extent as a Federal law 
enforcement officer, from personal liability arising out of the 
enforcement of any immigration law. The immunity provided in this 
subsection shall only apply to an officer of a State, or of a political 
subdivision of a State, who is acting within the scope of such 
officer's official duties.
    (b) Agency Immunity.--Notwithstanding any other provision of law, a 
law enforcement agency of a State, or of a political subdivision of a 
State, shall be immune from any claim for money damages based on 
Federal, State, or local civil rights law for an incident arising out 
of the enforcement of any immigration law, except to the extent that 
the law enforcement officer of that agency, whose action the claim 
involves, committed a violation of Federal, State, or local criminal 
law in the course of enforcing such immigration law.

SEC. 11. PLACES OF DETENTION FOR ALIENS DETAINED PENDING EXAMINATION OR 
              DECISION ON REMOVAL.

    (a) In General.--Section 241(g) of the Immigration and Nationality 
Act (8 U.S.C. 1231(g)) is amended by adding at the end the following:
            ``(3) Policy on detention in state and local detention 
        facilities.--In carrying out paragraph (1), the Secretary of 
        Homeland Security shall ensure that an alien arrested under 
        section 287(a) is detained, pending the alien being taken for 
        the examination described in that section, in a State or local 
        prison, jail, detention center, or other comparable facility, 
        if--
                    ``(A) such a facility is the most suitably located 
                Federal, State, or local facility available for such 
                purpose under the circumstances;
                    ``(B) an appropriate arrangement for such use of 
                the facility can be made; and
                    ``(C) such facility satisfies the standards for the 
                housing, care, and security of persons held in custody 
                of a United States marshal.''.
    (b) Detention Facility Suitability.--Notwithstanding any other 
provision of law, a facility described in section 241(g)(3)(C) of the 
Immigration and Nationality Act, as added by subsection (a), is 
adequate for detention of persons being held for immigration related 
violations.
    (c) Technical and Conforming Amendment.--Section 241 of the 
Immigration and Nationality Act (8 U.S.C. 1231) is amended by striking 
``Attorney General'' each place that term appears and inserting 
``Secretary of Homeland Security''.

SEC. 12. INSTITUTIONAL REMOVAL PROGRAM.

    (a) Continuation.--
            (1) In general.--The Department of Homeland Security shall 
        continue to operate and implement the program known on the date 
        of the enactment of this Act as the Institutional Removal 
        Program which--
                    (A) identifies removable criminal aliens in Federal 
                and State correctional facilities;
                    (B) ensures such aliens are not released into the 
                community; and
                    (C) removes such aliens from the United States 
                after the completion of their sentences.
            (2) Expansion.--The Institutional Removal Program shall be 
        extended to all States. Any State that receives Federal funds 
        for the incarceration of criminal aliens shall--
                    (A) cooperate with Federal officials who carry out 
                the Institutional Removal Program;
                    (B) expeditiously and systematically identify 
                criminal aliens in its prison and jail populations; and
                    (C) promptly convey such information to the Federal 
                officials who carry out the Institutional Removal 
                Program as a condition for receiving such funds.
    (b) Authorization for Detention After Completion of State or Local 
Prison Sentence.--Law enforcement officers of a State or political 
subdivision of a State have the authority to--
            (1) hold an illegal alien for a period of up to 14 days 
        after the alien has completed the alien's State prison sentence 
        in order to effectuate the transfer of the alien to Federal 
        custody when the alien is removable or not lawfully present in 
        the United States; or
            (2) issue a detainer that would allow aliens who have 
        served a State prison sentence to be detained by the State 
        prison until personnel from the Bureau of Immigration and 
        Customs Enforcement can take the alien into custody.
    (c) Technology Usage.--Technology such as videoconferencing shall 
be used to the maximum extent possible in order to make the 
Institutional Removal Program available in remote locations. Mobile 
access to Federal databases of aliens, such as the IDENT database 
maintained by the Secretary of Homeland Security, and live scan 
technology shall be used to the maximum extent practicable in order to 
make these resources available to State and local law enforcement 
agencies in remote locations.
    (d) Authorization of Appropriations.--There is authorized to be 
appropriated to carry out the Institutional Removal Program--
            (1) $40,000,000 for fiscal year 2007;
            (2) $50,000,000 for fiscal year 2008;
            (3) $60,000,000 for fiscal year 2009;
            (4) $70,000,000 for fiscal year 2010;
            (5) $80,000,000 for fiscal year 2011; and
            (6) $80,000,000 for each fiscal year after fiscal year 
        2011.

SEC. 13. CONSTRUCTION.

    Nothing in this Act may be construed to require law enforcement 
personnel of a State or political subdivision of a State to--
            (1) report the identity of a victim of, or a witness to, a 
        criminal offense to the Secretary of Homeland Security for 
        immigration enforcement purposes;
            (2) arrest such victim or witness for a violation of the 
        immigration laws of the United States; or
            (3) enforce the immigration laws of the United States.

SEC. 14. SEVERABILITY.

    If any provision of this Act, including any amendment made by this 
Act, or the application of such provision to any person or 
circumstance, is held invalid, the remainder of this Act, and the 
application of such provision to other persons not similarly situated 
or to other circumstances, shall not be affected by such invalidation.
                                 <all>