II 109th CONGRESS 2d Session S. 2391 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.

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.

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.

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)).

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.

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.

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.

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.

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.

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.

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. .

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. .

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.

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. .