[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2463 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                S. 2463

   To amend the Immigration and Nationality Act and title 18, United 
    States Code, to combat the crime of alien smuggling and related 
                  activities, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 13, 2007

 Mr. Bayh (for himself and Mr. Graham) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend the Immigration and Nationality Act and title 18, United 
    States Code, to combat the crime of alien smuggling and related 
                  activities, 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 ``Alien Smuggling and Terrorism 
Prevention Act of 2007''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) Alien smuggling by land, air, and sea is a 
        transnational crime that--
                    (A) violates the integrity of United States 
                borders;
                    (B) compromises the sovereignty of the United 
                States;
                    (C) places our Nation at risk of terrorist 
                activity; and
                    (D) contravenes the rule of law.
            (2) Aggressive enforcement activity against alien smuggling 
        is needed to protect the borders of the United States and to 
        ensure our Nation's security. The border security and 
        antismuggling efforts of the men and women on the Nation's 
        front line of defense are commendable. Special recognition 
        should be given to the Border Patrol, the Coast Guard, United 
        States Customs and Border Protection, United States Immigration 
        and Customs Enforcement, and the Federal Bureau of 
        Investigation.
            (3) The law enforcement community must be given the 
        statutory tools necessary to address this security threat. The 
        United States Attorneys Offices and the Domestic Security 
        Section of the Criminal Division cannot prosecute these cases 
        successfully without effective alien smuggling statutes.
            (4) Alien smuggling has a destabilizing effect on border 
        communities. State and local law enforcement, medical 
        personnel, social service providers, and the faith community 
        play important roles in combating smuggling and responding to 
        its effects.
            (5) Existing penalties for alien smuggling are insufficient 
        to provide appropriate punishment for alien smugglers.
            (6) Existing alien smuggling laws often fail to reach the 
        conduct of alien smugglers, transporters, recruiters, guides, 
        and boat captains.
            (7) Existing laws concerning failure to heave to are 
        insufficient to appropriately punish boat operators and crew 
        who engage in the reckless transportation of aliens on the high 
        seas and seek to evade capture.
            (8) Much of the conduct in alien smuggling rings occurs 
        outside of the United States. Extraterritorial jurisdiction is 
        needed to ensure that smuggling rings can be brought to justice 
        for recruiting, sending, and facilitating the movement of those 
        who seek to enter the United States without lawful authority.
            (9) Alien smuggling can include unsafe or recklessly 
        dangerous conditions that expose individuals to particularly 
        high risk of injury or death.

SEC. 3. CHECKS AGAINST TERRORIST WATCH LIST.

    The Secretary of Homeland Security shall, to the extent 
practicable, check, against all available terrorist watch lists, alien 
smugglers and smuggled individuals who are interdicted at the land, 
air, and sea borders of the United States.

SEC. 4. STRENGTHENING PROSECUTION AND PUNISHMENT OF ALIEN SMUGGLERS.

    Section 274(a) of the Immigration and Nationality Act (8 U.S.C. 
1324(a)) is amended--
            (1) by amending the subsection heading to read as follows: 
        ``Bringing in, Harboring, and Smuggling of Unlawful and 
        Terrorist Aliens.--'';
            (2) by amending paragraph (1) to read as follows:
            ``(1)(A) A person shall be subject to the penalties 
        described in subparagraph (D) if the person, knowing or in 
        reckless disregard of the fact that an individual is an alien 
        who lacks lawful authority to come to, enter, or reside in the 
        United States, knowingly--
                    ``(i) brings that individual to the United States, 
                regardless of any future official action which may be 
                taken with respect to that individual;
                    ``(ii) recruits, encourages, or induces that 
                individual to come to, enter, or reside in the United 
                States;
                    ``(iii) transports or moves that individual in the 
                United States, in furtherance of that individual's 
                unlawful presence; or
                    ``(iv) harbors, conceals, or shields from detection 
                that individual in any place in the United States, 
                including any building or means of transportation.
            ``(B) A person shall be subject to the penalties described 
        in subparagraph (D) if the person, knowing that an individual 
        is an alien, brings that individual to the United States at a 
        place other than a designated port of entry or a place 
        designated by the Secretary of Homeland Security, regardless of 
        whether such alien has received prior official authorization to 
        come to, enter, or reside in the United States and regardless 
        of any future official action which may be taken with respect 
        to that individual.
            ``(C) A person who attempts or conspires to commit any 
        offense described subparagraph (A) or (B) shall be subject to 
        the same penalties as a person who completes the offense.
            ``(D) A person who commits any offense described in this 
        paragraph shall, for each individual in respect to whom such 
        offense occurs--
                    ``(i) be fined under title 18, United States Code, 
                imprisoned not more than 5 years, or both if the 
                offense is not described in any of clauses (ii) through 
                (vii);
                    ``(ii) be fined under such title, imprisoned not 
                more than 1 year, or both, if the offense involved the 
                transit of the defendant's spouse, child, sibling, 
                parent, grandparent, or niece or nephew and is not 
                described in any of clauses (iii) through (vi);
                    ``(iii) be fined under such title, imprisoned not 
                more than 10 years, or both if the violation is 
                described in clauses (ii), (iii), or (iv) of 
                subparagraph (A) or subparagraph (B) and was committed 
                for the purpose of profit, commercial advantage, or 
                private financial gain;
                    ``(iv) be fined under such title and imprisoned, in 
                the case of a first or second violation, for a term of 
                not fewer than 3 years and not more than 10 years, and 
                for any subsequent violation, for a term of not fewer 
                than 5 years and not more than 15 years, if the 
                offense--
                            ``(I) is described in subparagraph (A)(i) 
                        and was committed for the purpose of profit, 
                        commercial advantage, or private financial 
                        gain; or
                            ``(II) was committed with the intent or 
                        reason to believe that the individual 
                        unlawfully brought into the United States will 
                        commit an offense against the United States or 
                        any State that is punishable by imprisonment 
                        for more than 1 year;
                    ``(v) be fined under such title, imprisoned not 
                more than 20 years, or both if the offense--
                            ``(I) results in serious bodily injury (as 
                        defined in section 1365 of title 18, United 
                        States Code); or
                            ``(II) places in jeopardy the life of any 
                        person;
                    ``(vi) be fined under such title, imprisoned not 
                more than 30 years, or both if the offense involved an 
                individual who the person knew was engaged in or 
                intended to engage in terrorist activity (as defined in 
                section 212(a)(3)(B));
                    ``(vii) be fined under such title, imprisoned for 
                any term of years or for life, or both if the offense 
                involves kidnaping, an attempt to kidnap, conduct 
                required for aggravated sexual abuse (as defined in 
                section 2241 without regard to where it takes place), 
                an attempt to commit such abuse, or an attempt to kill; 
                and
                    ``(viii) fined under such title, punished by death 
                or imprisoned for any term of years or for life, or 
                both if the offense results in the death of any 
                person.''; and
            (3) by amending paragraph (2) to read as follows:
            ``(2)(A) There is extraterritorial jurisdiction over the 
        offenses described in paragraph (1).
            ``(B) In a prosecution for a violation of, or an attempt or 
        conspiracy to violate subparagraph (A)(i), (A)(ii), or (B) of 
        paragraph (1), that occurs on the high seas, no defense based 
        on necessity can be raised unless the defendant--
                    ``(i) reported to the Coast Guard, as soon as 
                practicable--
                            ``(I) the circumstances of the necessity; 
                        and
                            ``(II) if a rescue is claimed, the name, 
                        description, registry number, and location of 
                        the vessel engaging in the rescue; and
                    ``(ii) did not bring, attempt to bring, or in any 
                manner intentionally facilitate the entry of any alien 
                into the land territory of the United States without 
                lawful authority, unless exigent circumstances existed 
                that placed the life of that alien in danger, in which 
                case the reporting requirement under clause (i) is 
                satisfied by notifying the Coast Guard as soon as 
                practicable after delivering the alien to emergency 
                medical or law enforcement personnel ashore.
            ``(C) It is a defense to a violation of, or an attempt or 
        conspiracy to violate, clause (iii) or (iv) of paragraph (1)(A) 
        for a religious denomination having a bona fide nonprofit, 
        religious organization in the United States, or the agents or 
        officer of such denomination or organization, to encourage, 
        invite, call, allow, or enable an alien who is present in the 
        United States to perform the vocation of a minister or 
        missionary for the denomination or organization in the United 
        States as a volunteer who is not compensated as an employee, 
        notwithstanding the provision of room, board, travel, medical 
        assistance, and other basic living expenses, provided the 
        minister or missionary has been a member of the denomination 
        for at least 1 year.
            ``(D) In this paragraph and in paragraph (1)--
                    ``(i) the term `lawful authority'--
                            ``(I) means permission, authorization, or 
                        waiver that is expressly provided for in the 
                        immigration laws of the United States or the 
                        regulations prescribed under those laws; and
                            ``(II) does not include any such authority 
                        secured by fraud or otherwise obtained in 
                        violation of law or authority that has been 
                        sought but not approved.
                    ``(ii) the term `United States' means the several 
                States, the District of Columbia, the Commonwealth of 
                Puerto Rico, Guam, American Samoa, the United States 
                Virgin Islands, the Commonwealth of the Northern 
                Mariana Islands, and every other territory and 
                possession of the United States.''.

SEC. 5. MARITIME LAW ENFORCEMENT.

    (a) Penalties.--Section 2237(b) of title 18, United States Code, is 
amended to read as follows:
    ``(b)(1) Except as provided under paragraph (2), any person who 
intentionally violates this section shall, be fined under this title, 
imprisoned for not more than 5 years, or both.
    ``(2)(A) A person described in paragraph (1) shall be fined under 
this title, imprisoned for not more than 10 years, or both if the 
violation is committed in the course of a violation of--
            ``(i) section 274 of the Immigration and Nationality Act 
        (alien smuggling);
            ``(ii) chapter 77 (peonage, slavery, and trafficking in 
        persons), section 111 (shipping), 111A (interference with 
        vessels), 113 (stolen property), or 117 (transportation for 
        illegal sexual activity) of this title;
            ``(iii) chapter 705 (maritime drug law enforcement) of 
        title 46; or
            ``(iv) title II of the Act of June 15, 1917 (40 Stat. 220).
    ``(B) A person described in paragraph (1) shall be fined under this 
title, imprisoned not more than 15 years, or both if the violation 
results in serious bodily injury (as defined in section 1365) or 
transportation under inhumane conditions.
    ``(C) A person described in paragraph (1) shall be fined under this 
title, imprisoned for any term of years or for life, or both if the 
violation--
            ``(i) results in death; or
            ``(ii) involves kidnaping, an attempt to kidnap, the 
        conduct required for aggravated sexual abuse (as defined in 
        section 2241 without regard to where it takes place), an 
        attempt to commit such abuse, or an attempt to kill.''.
    (b) Limitation on Necessity Defense.--Section 2237(c) of title 18, 
United States Code, is amended--
            (1) by inserting ``(1)'' after ``(c)'';
            (2) by adding at the end the following:
    ``(2) In a prosecution for a violation of this section, no defense 
based on necessity can be raised unless the defendant--
            ``(A) as soon as practicable upon reaching shore, delivered 
        the person with respect to which the necessity arose to 
        emergency medical or law enforcement personnel;
            ``(B) as soon as practicable, reported to the Coast Guard 
        the circumstances of the necessity resulting giving rise to the 
        defense; and
            ``(C) did not bring, attempt to bring, or in intentionally 
        facilitate the entry of any alien (as defined in section 
        101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 
        1101(a)(3))) into the land territory of the United States 
        without lawful authority, unless exigent circumstances existed 
        that placed the life of that alien in danger, in which case the 
        reporting requirement under subparagraph (B) is satisfied by 
        notifying the Coast Guard as soon as practicable after 
        delivering that person to emergency medical or law enforcement 
        personnel ashore.''.
    (c) Definition.--Section 2237(e) of title 18, United States Code, 
is amended--
            (1) by redesignating paragraphs (3) and (4) as paragraphs 
        (4) and (5), respectively; and
            (2) by inserting after paragraph (2) the following:
            ``(3) the term `transportation under inhumane conditions' 
        means--
                    ``(A) transportation of persons in an engine 
                compartment, storage compartment, or other confined 
                space;
                    ``(B) transportation at an excessive speed;
                    ``(C) transportation of a number of persons in 
                excess of the rated capacity of the means of 
                transportation; or
                    ``(D) intentionally grounding a vessel in which 
                persons are being transported.''.

SEC. 6. AMENDMENT TO THE SENTENCING GUIDELINES.

    (a) In General.--Pursuant to its authority under section 994 of 
title 28, United States Code, and in accordance with this section, the 
United States Sentencing Commission shall review and, if appropriate, 
amend the sentencing guidelines and policy statements applicable to 
persons convicted of alien smuggling offenses and criminal failure to 
heave to or obstruction of boarding.
    (b) Considerations.--In carrying out this section, the Sentencing 
Commission, shall--
            (1) consider providing sentencing enhancements or 
        stiffening existing enhancements for those convicted of 
        offenses described in paragraph (1) that--
                    (A) involve a pattern of continued and flagrant 
                violations;
                    (B) are part of an ongoing commercial organization 
                or enterprise;
                    (C) involve aliens who were transported in groups 
                of 10 or more;
                    (D) involve the transportation or abandonment of 
                aliens in a manner that endangered their lives; or
                    (E) involve the facilitation of terrorist activity; 
                and
            (2) consider cross-references to the guidelines for 
        criminal sexual abuse and attempted murder.
    (c) Expedited Procedures.--The Commission may promulgate the 
guidelines or amendments under this section in accordance with the 
procedures set forth in section 21(a) of the Sentencing Act of 1987, as 
though the authority under that Act had not expired.
                                 <all>