[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2391 Introduced in Senate (IS)]








109th CONGRESS
  2d Session
                                S. 2391

  To improve the security of the United States borders and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 8, 2006

  Mr. Nelson of Florida introduced the following bill; which was read 
          twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To improve the security of the United States borders 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Border Operations 
Reform and Development of Electronic Remote Surveillance Act of 2006'' 
or as the ``BORDERS Act of 2006''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Definitions.
Sec. 4. Surveillance technologies programs.
Sec. 5. Secure communication.
Sec. 6. Expansion of detention capacity.
Sec. 7. Detention standards.
Sec. 8. Personnel of the Department of Homeland Security.
Sec. 9. Personnel of the Department of Justice and other attorneys.
Sec. 10. State Criminal Alien Assistance Program authorization of 
                            appropriations.
Sec. 11. Reimbursement of States for indirect costs relating to the 
                            incarceration of illegal aliens.
Sec. 12. Reimbursement of States for preconviction costs relating to 
                            the incarceration of illegal aliens.
Sec. 13. Criminal gang activity.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) The Government of the United States has the duty to 
        protect its citizens and to provide for homeland security by 
        securing its international borders.
            (2) The Government of the United States has failed to 
        adequately secure its international borders, which has 
        facilitated the illegal entry of millions of undocumented 
        aliens into the United States.
            (3) Illegal immigration poses national security concerns, 
        burdens all levels of Government with extra costs, including 
        imposing hundreds of millions of dollars on States and 
        localities in uncompensated expenses for law enforcement, 
        health care, and other essential services, allows some aliens 
        to gain access to the United States before other aliens who 
        have lawfully waited in line, creates an underclass of workers, 
        and facilitates human trafficking, smuggling, and document 
        fraud.
            (4) One critical aspect of comprehensive immigration reform 
        is to find aggressive, practical, and cost-effective methods to 
        quickly secure the international borders of the United States. 
        As the bipartisan National Commission on Terrorist Attacks Upon 
        the United States concluded, ``the United States must be able 
        to monitor and respond to entrances between our borders''.
            (5) The Government of the United States should make full 
        use of integrated and automated surveillance technology, 
        including the use of unmanned aerial vehicles, to create a 
        ``virtual fence'' around the Nation, which could be constructed 
        much more quickly than a physical fence. The Inspector General 
        of the Department recently suggested numerous ways to use 
        integrated surveillance technologies to achieve this critical 
        security goal.
            (6) The Government of the United States should also 
        increase detention facilities to detain aliens who are 
        apprehended sneaking into the United States, as opposed to 
        catching and releasing such aliens and trusting that they will 
        report for immigration proceedings.
            (7) In order to reduce costs of detention and to facilitate 
        the process of removing aliens from the United States fairly, 
        the Secretary should establish uniform detention standards and 
        rules.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Department.--Except as otherwise provided, the term 
        ``Department'' means the Department of Homeland Security.
            (2) Secretary.--Except as otherwise provided, the term 
        ``Secretary'' means the Secretary of Homeland Security.
            (3) State.--Except as otherwise provided, 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. 4. SURVEILLANCE TECHNOLOGIES PROGRAMS.

    (a) Aerial Surveillance Program.--
            (1) In general.--In conjunction with the border 
        surveillance plan developed under section 5201 of the 
        Intelligence Reform and Terrorism Prevention Act of 2004 
        (Public Law 108-458; 8 U.S.C. 1701 note), the Secretary, not 
        later than 90 days after the date of enactment of this Act, 
        shall develop and implement a program to fully integrate and 
        utilize aerial surveillance technologies, including unmanned 
        aerial vehicles, to enhance the security of the international 
        border between the United States and Canada and the 
        international border between the United States and Mexico. The 
        goal of the program shall be to ensure continuous monitoring of 
        each mile of each such border.
            (2) Assessment and consultation requirements.--In 
        developing the program under this subsection, the Secretary 
        shall--
                    (A) consider current and proposed aerial 
                surveillance technologies;
                    (B) assess the feasibility and advisability of 
                utilizing such technologies to address border threats, 
                including an assessment of the technologies considered 
                best suited to address respective threats;
                    (C) consult with the Secretary of Defense regarding 
                any technologies or equipment, which the Secretary may 
                deploy along an international border of the United 
                States; and
                    (D) consult with the Administrator of the Federal 
                Aviation Administration regarding safety, airspace 
                coordination and regulation, and any other issues 
                necessary for implementation of the program.
            (3) Additional requirements.--
                    (A) In general.--The program developed under this 
                subsection shall include the use of a variety of aerial 
                surveillance technologies in a variety of topographies 
                and areas, including populated and unpopulated areas 
                located on or near an international border of the 
                United States, in order to evaluate, for a range of 
                circumstances--
                            (i) the significance of previous 
                        experiences with such technologies in border 
                        security or critical infrastructure protection;
                            (ii) the cost and effectiveness of various 
                        technologies for border security, including 
                        varying levels of technical complexity; and
                            (iii) liability, safety, and privacy 
                        concerns relating to the utilization of such 
                        technologies for border security.
            (4) Continued use of aerial surveillance technologies.--The 
        Secretary may continue the operation of aerial surveillance 
        technologies while assessing the effectiveness of the 
        utilization of such technologies.
            (5) Report to congress.--Not later than 1 year after 
        implementing the program under this subsection, the Secretary 
        shall submit a report to Congress regarding the program 
        developed under this subsection. The Secretary shall include in 
        the report a description of the program together with such 
        recommendations as the Secretary finds appropriate for 
        enhancing the program.
            (6) Authorization of appropriations.--There are authorized 
        to be appropriated such sums as may be necessary to carry out 
        this subsection.
    (b) Integrated and Automated Surveillance Program.--
            (1) Requirement for program.--Subject to the availability 
        of appropriations, the Secretary shall establish a program to 
        procure additional unmanned aerial vehicles, cameras, poles, 
        sensors, satellites, radar coverage, and other technologies 
        necessary to achieve operational control of the international 
        borders of the United States and to establish a security 
        perimeter known as a ``virtual fence'' along such international 
        borders to provide a barrier to illegal immigration. Such 
        program shall be known as the Integrated and Automated 
        Surveillance Program.
            (2) Program components.--The Secretary shall ensure, to the 
        maximum extent feasible, the Integrated and Automated 
        Surveillance Program is carried out in a manner that--
                    (A) the technologies utilized in the Program are 
                integrated and function cohesively in an automated 
                fashion, including the integration of motion sensor 
                alerts and cameras, whereby a sensor alert 
                automatically activates a corresponding camera to pan 
                and tilt in the direction of the triggered sensor;
                    (B) cameras utilized in the Program do not have to 
                be manually operated;
                    (C) such camera views and positions are not fixed;
                    (D) surveillance video taken by such cameras can be 
                viewed at multiple designated communications centers;
                    (E) a standard process is used to collect, catalog, 
                and report intrusion and response data collected under 
                the Program;
                    (F) future remote surveillance technology 
                investments and upgrades for the Program can be 
                integrated with existing systems;
                    (G) performance measures are developed and applied 
                that can evaluate whether the Program is providing 
                desired results and increasing response effectiveness 
                in monitoring and detecting illegal intrusions along 
                the international borders of the United States;
                    (H) plans are developed under the Program to 
                streamline site selection, site validation, and 
                environmental assessment processes to minimize delays 
                of installing surveillance technology infrastructure;
                    (I) standards are developed under the Program to 
                expand the shared use of existing private and 
                governmental structures to install remote surveillance 
                technology infrastructure where possible; and
                    (J) standards are developed under the Program to 
                identify and deploy the use of nonpermanent or mobile 
                surveillance platforms that will increase the 
                Secretary's mobility and ability to identify illegal 
                border intrusions.
            (3) Report to congress.--Not later than 1 year after the 
        initial implementation of the Integrated and Automated 
        Surveillance Program, the Secretary shall submit to Congress a 
        report regarding the Program. The Secretary shall include in 
        the report a description of the Program together with any 
        recommendation that the Secretary finds appropriate for 
        enhancing the program.
            (4) Evaluation of contractors.--
                    (A)  Requirement for standards.--The Secretary 
                shall set develop appropriate standards to evaluate the 
                performance of any contractor providing goods or 
                services to carry out the Integrated and Automated 
                Surveillance Program.
                    (B) Review by the inspector general.--The Inspector 
                General of the Department shall timely review each new 
                contract related to the Program that has a value of 
                more than $5,000,000, to determine whether such 
                contract fully complies with applicable cost 
                requirements, performance objectives, program 
                milestones, and schedules. The Inspector General shall 
                report the findings of such review to the Secretary in 
                a timely manner. Not later than 30 days after the date 
                the Secretary receives a report of findings from the 
                Inspector General, the Secretary shall submit to the 
                Committee on Homeland Security and Governmental Affairs 
                of the Senate and the Committee on Homeland Security of 
                the House of Representatives a report of such findings 
                and a description of any the steps that the Secretary 
                has taken or plans to take in response to such 
                findings.
            (5) Authorization of appropriations.--There are authorized 
        to be appropriated such sums as may be necessary to carry out 
        this subsection.

SEC. 5. SECURE COMMUNICATION.

    The Secretary shall, as expeditiously as practicable, develop and 
implement a plan to ensure clear and secure 2-way communication 
capabilities, including the specific use of satellite communications--
            (1) among all Border Patrol agents conducting operations 
        between ports of entry;
            (2) between Border Patrol agents and their respective 
        Border Patrol stations; and
            (3) between all appropriate border security agencies of the 
        Department and State, local, and tribal law enforcement 
        agencies.

SEC. 6. EXPANSION OF DETENTION CAPACITY.

    (a) Increasing Detention Bed Space.--Section 5204(a) of the 
Intelligence Reform and Terrorism Protection Act of 2004 (Public Law 
108-458; 118 Stat. 3734) is amended by striking ``8,000'' and inserting 
``20,000''.
    (b) Construction of or Acquisition of Detention Facilities.--
            (1) Requirement to construct or acquire.--The Secretary 
        shall construct or acquire additional detention facilities in 
        the United States to accommodate the detention beds required by 
        section 5204(c) of the Intelligence Reform and Terrorism 
        Protection Act of 2004, as amended by subsection (a).
            (2) Use of alternate detention facilities.--Subject to the 
        availability of appropriations, the Secretary shall fully 
        utilize all possible options to cost effectively increase 
        available detention capacities, and shall utilize detention 
        facilities that are owned and operated by the Federal 
        Government if the use of such facilities is cost effective.
    (c) Secure Alternatives to Detention to Ensure Compliance With the 
Law.--The Secretary shall implement demonstration programs in each 
State located along the international border between the United States 
and Canada or along the international border between the United States 
and Mexico, and at select sites in the interior with significant 
numbers of alien detainees, to study the effectiveness of alternatives 
to the detention of aliens, including electronic monitoring devices, to 
ensure that such aliens appear in immigration court proceedings and 
comply with immigration appointments and removal orders.
    (d) Legal Representation.--No alien shall be detained by the 
Secretary in a location that limits the alien's reasonable access to 
visits and telephone calls by local legal counsel and necessary legal 
materials. Upon active or constructive notice that a detained alien is 
represented by an attorney, the Secretary shall ensure that the alien 
is not moved from the alien's detention facility without providing that 
alien and the alien's attorney reasonable notice in advance of such 
move.
    (e) Annual Report to Congress.--Not later than 1 year after the 
date of the enactment of this Act, and annually thereafter, in 
consultation with the heads of other appropriate Federal agencies, the 
Secretary shall submit to Congress an assessment of the additional 
detention facilities and bed space needed to detain unlawful aliens 
apprehended at the United States ports of entry or along the 
international land borders of the United States.
    (f) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this section.

SEC. 7. DETENTION STANDARDS.

    (a) Codification of Detention Operations.--In order to ensure 
uniformity in the safety and security of all facilities used or 
contracted by the Secretary to hold alien detainees and to ensure the 
fair treatment and access to counsel of all alien detainees, not later 
than 180 days after the date of the enactment of this Act, the 
Secretary shall issue the provisions of the Detention Operations Manual 
of the Department, including all amendments made to such Manual since 
it was issued in 2000, as regulations for the Department. Such 
regulations shall be subject to the notice and comment requirements of 
subchapter II of chapter 5 of title 5, United States Code (commonly 
referred to as the Administrative Procedure Act) and shall apply to all 
facilities used by the Secretary to hold detainees for more than 72 
hours.
    (b) Detention Standards for Nuclear Family Units and Certain Non-
Criminal Aliens.--For all facilities used or contracted by the 
Secretary to hold aliens, the regulations described in subsection (a) 
shall--
            (1) provide for sight and sound separation of alien 
        detainees without any criminal convictions from criminal 
        inmates and pretrial detainees facing criminal prosecution; and
            (2) establish specific standards for detaining nuclear 
        family units together and for detaining non-criminal applicants 
        for asylum, withholding of removal, or protection under the 
        Convention Against Torture and Other Cruel, Inhuman or 
        Degrading Treatment or Punishment, done at New York December 
        10, 1984, in civilian facilities cognizant of their special 
        needs.
    (c) Legal Orientation to Ensure Effective Removal Process.--All 
alien detainees shall receive legal orientation presentations from an 
independent non-profit agency as implemented by the Executive Office 
for Immigration Review of the Department of Justice in order to both 
maximize the efficiency and effectiveness of removal proceedings and to 
reduce detention costs.
    (d) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this section.

SEC. 8. PERSONNEL OF THE DEPARTMENT OF HOMELAND SECURITY.

    (a) Customs and Border Protection Officers.--During each of the 
fiscal years 2007 through 2011, the Secretary shall, subject to the 
availability of appropriations for such purpose, increase by not less 
than 1,500 the number of positions for full-time active duty officers 
of the Bureau of Customs and Border Protection of the Department for 
such fiscal year.
    (b) Border Patrol Agents.--During each of the fiscal years 2007 
through 2011, the Secretary shall, subject to the availability of 
appropriations for such purpose, increase by not less than 4,000 the 
number of border patrol agents for such fiscal year.
    (c) Immigration and Customs Enforcement Investigators.--Section 
5203 of the Intelligence Reform and Terrorism Prevention Act of 2004 
(Public Law 108-458; 118 Stat. 3734) is amended by striking ``800'' and 
inserting ``1600''.
    (d) Detention and Removal Officers.--During each of the fiscal 
years 2007 through 2011, the Secretary shall, subject to the 
availability of appropriations for such purposes, designate a Detention 
and Removal officer to be placed in each Department field office whose 
sole responsibility will be to ensure safety and security at a 
detention facility and that each detention facility compliance with the 
standards and regulations set forth in section 7.
    (e) Investigative Personnel.--In addition to the positions 
authorized under section 5203 of the Intelligence Reform and Terrorism 
Prevention Act of 2004, as amended by subsection (c), during each of 
the fiscal years 2007 through 2011, the Secretary shall, subject to the 
availability of appropriations for such purpose, increase by not less 
than 200 the number of positions for investigative personnel within the 
Department to investigate alien smuggling and immigration status 
violations for such fiscal year.
    (f) Legal Personnel.--During each of the fiscal years 2007 through 
2011, the Secretary shall, subject to the availability of 
appropriations for such purpose, increase by not less than 200 the 
number of positions for attorneys in the Office of General Counsel of 
the Department who represent the Department in immigration matters for 
such fiscal year.
    (g) Directorate of Policy.--The Secretary shall in consultation, 
with the Director of Policy of the Directorate of Policy, add at least 
3 additional positions at the Directorate of Policy that--
            (1) shall be a position at GS-15 of the General Schedule;
            (2) are solely responsible for formulating and executing 
        the policy and regulations pertaining to vulnerable detained 
        populations including unaccompanied alien children, victims of 
        torture, trafficking or other serious harms, the elderly, the 
        mentally disabled, and the infirm; and
            (3) require background and expertise working directly with 
        such vulnerable populations.
    (h) Training.--The Secretary shall provide appropriate training for 
the agents, officers, inspectors, and associated support staff of the 
Department on an ongoing basis to utilize new technologies and 
techniques, to identify and detect fraudulent travel documents, and to 
ensure that the proficiency levels of such personnel are acceptable to 
protect the international borders of the United States. Training to 
detect fraudulent travel documents shall be developed in consultation 
with the Forensic Document Laboratory of Immigration and Customs 
Enforcement.
    (i) Enhanced Protections for Vulnerable Unaccompanied Alien 
Children.--
            (1) Mandatory training.--The Secretary shall mandate the 
        training of all personnel who come into contact with 
        unaccompanied alien children in all relevant legal authorities, 
        policies, and procedures pertaining to this vulnerable 
        population in consultation with the head of the Office of 
        Refugee Resettlement of the Department of Health and Human 
        Services and independent child welfare experts.
            (2) Delegation to the office of refugee resettlement.--
        Notwithstanding any other provision of law, the Secretary shall 
        delegate the authority and responsibility granted to the 
        Secretary by the Homeland Security Act of 2002 (Public Law 107-
        296; 116 Stat. 2135) for transporting unaccompanied alien 
        children who will undergo removal proceedings from Department 
        custody to the custody and care of the Office of Refugee 
        Resettlement and provide sufficient reimbursement to the head 
        of such Office to undertake this critical function. The 
        Secretary shall immediately notify such Office of an 
        unaccompanied alien child in the custody of the Department and 
        ensure that the child is transferred to the custody of such 
        Office as soon as practicable, but not later than 72 hours 
        after the child is taken into the custody of the Department.
            (3) Other policies and procedures.--The Secretary shall 
        further adopt important policies and procedures--
                    (A) for reliable age-determinations of children 
                which exclude the use of fallible forensic testing of 
                children's bones and teeth in consultation with medical 
                and child welfare experts;
                    (B) to ensure the privacy and confidentiality of 
                unaccompanied alien children's records, including 
                psychological and medical reports, so that the 
                information is not used adversely against the child in 
                removal proceedings or for any other immigration 
                action; and
                    (C) in close consultation with the Secretary of 
                State and the head of the Office of Refugee 
                Resettlement, to ensure the safe and secure 
                repatriation of unaccompanied alien children to their 
                home countries including through arranging placements 
                of children with their families or other sponsoring 
                agencies and to utilize all legal authorities to defer 
                the child's removal if the child faces a clear risk of 
                life-threatening harm upon return.
    (j) Authorization of Appropriations.--There are authorized to be 
appropriated to the Secretary for each of fiscal years 2007 through 
2011, such sums as may be necessary to carry out this section, 
including the hiring of necessary support staff.

SEC. 9. PERSONNEL OF THE DEPARTMENT OF JUSTICE AND OTHER ATTORNEYS.

    (a) Litigation Attorneys.--During each of the fiscal years 2007 
through 2011, the Attorney General shall, subject to the availability 
of appropriations for such purpose, increase by not less than 50 the 
number of positions for attorneys in the Office of Immigration 
Litigation of the Department of Justice for such fiscal year.
    (b) United States Attorneys.--During each of the fiscal years 2007 
through 2011, the Attorney General shall, subject to the availability 
of appropriations for such purpose, increase by not less than 50 the 
number of United States Attorneys to litigate immigration cases in the 
Federal courts for such fiscal year.
    (c) United States Marshals.--During each of the fiscal years 2007 
through 2011, the Attorney General shall, subject to the availability 
of appropriations for such purpose, increase by not less than 200 the 
number of Deputy United States Marshals to investigate criminal 
immigration matters.
    (d) Immigration Judges.--During each of fiscal years 2007 through 
2011, the Attorney General shall, subject to the availability of 
appropriations for such purpose, increase by not less than 50 the 
number of immigration judges for such fiscal year.
    (e) Defense Attorneys.--During each of the fiscal years 2007 
through 2011, the Director of the Administrative Office of the United 
States Courts shall, subject to the availability of appropriations for 
such purpose, increase by not less than 200 the number of attorneys in 
the Federal Defenders Program for such fiscal year. The Attorney 
General shall also take all necessary and reasonable steps to ensure 
that alien detainees receive appropriate pro bono representation in 
immigration matters.
    (f) Authorization of Appropriations.--There are authorized to be 
appropriated to the Attorney General for each of fiscal years 2007 
through 2011 such sums as may be necessary to carry out this section, 
including the hiring of necessary support staff.

SEC. 10. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM AUTHORIZATION OF 
              APPROPRIATIONS.

    Section 241(i) of the Immigration and Nationality Act (8 U.S.C. 
1231(i)) is amended by striking paragraphs (5) and (6) and inserting 
the following:
            ``(5) Authorization of appropriations.--
                    ``(A) In general.--There are authorized to be 
                appropriated to carry out this subsection $950,000,000 
                for each of the fiscal years 2007 through 2011.
                    ``(B) Limitation on use of funds.--Amounts 
                appropriated pursuant to subparagraph (A) that are 
                distributed to a State or political subdivision of a 
                State, including a municipality, may be used only for 
                correctional purposes.''.

SEC. 11. REIMBURSEMENT OF STATES FOR INDIRECT COSTS RELATING TO THE 
              INCARCERATION OF ILLEGAL ALIENS.

    Section 501 of the Immigration Reform and Control Act of 1986 (8 
U.S.C. 1365) is amended--
            (1) in subsection (a)--
                    (A) by striking ``for the costs'' and inserting the 
                following: ``for--
            ``(1) the costs''; and
                    (B) by striking ``such State.'' and inserting the 
                following: ``such State; and
            ``(2) the indirect costs related to the imprisonment 
        described in paragraph (1).''; and
            (2) by striking subsections (d) through (e) and inserting 
        the following:
    ``(d) Manner of Allotment of Reimbursements.--Reimbursements under 
this section shall be allotted in a manner that gives special 
consideration for any State that--
            ``(1) shares a border with Mexico or Canada; or
            ``(2) includes within the State an area in which a large 
        number of undocumented aliens reside relative to the general 
        population of that area.
    ``(e) Definitions.--As used in this section:
            ``(1) Indirect costs.--The term `indirect costs' includes--
                    ``(A) court costs, county attorney costs, detention 
                costs, and criminal proceedings expenditures that do 
                not involve going to trial;
                    ``(B) indigent defense costs; and
                    ``(C) unsupervised probation costs.
            ``(2) State.--The term `State' has the meaning given such 
        term in section 101(a)(36) of the Immigration and Nationality 
        Act.
    ``(f) Authorization of Appropriations.--There are authorized to be 
appropriated $200,000,000 for each of the fiscal years 2007 through 
2011 to carry out this section.''.

SEC. 12. REIMBURSEMENT OF STATES FOR PRECONVICTION COSTS RELATING TO 
              THE INCARCERATION OF ILLEGAL ALIENS.

    Section 241(i)(3)(A) of the Immigration and Nationality Act (8 
U.S.C. 1231(i)(3)(a)) is amended by inserting ``charged with or'' 
before ``convicted.''

SEC. 13. CRIMINAL GANG ACTIVITY.

    Section 212(a)(2) of the Immigration and Nationality Act (8 U.S.C. 
1182(a)(2)) is amended by adding at the end the following:
                    ``(J) Criminal gang activity.--
                            ``(i) In general.--Any alien who a consular 
                        officer or the Attorney General knows, or has 
                        reasonable grounds to believe, seeks to enter 
                        the United States to engage, solely, 
                        principally, or incidentally in a criminal 
                        street gang located in the United States is 
                        inadmissible.
                            ``(ii) Definition.--In this subparagraph, 
                        the term `criminal street gang' means an 
                        ongoing group, club, organization, or 
                        association of 5 or more individuals that 
                        commits a violation of Federal or State law 
                        that is punishable by imprisonment of 1 year or 
                        more.''.
                                 <all>