[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1029 Engrossed in House (EH)]
111th CONGRESS
1st Session
H. R. 1029
_______________________________________________________________________
AN ACT
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 2009''.
SEC. 2. FINDINGS.
The Congress makes the following findings:
(1) Alien smuggling by land, air and sea is a transnational
crime that violates the integrity of United States borders,
compromises our Nation's sovereignty, places the country at
risk of terrorist activity, and contravenes the rule of law.
(2) Aggressive enforcement activity against alien smuggling
is needed to protect our borders and ensure the security of our
Nation. The border security and anti-smuggling efforts of the
men and women on the Nation's front line of defense are to be
commended. Special recognition is due the Department of
Homeland Security through the United States Border Patrol,
United States Coast Guard, Customs and Border Protection, and
Immigration and Customs Enforcement, and the Department of
Justice through the Federal Bureau of Investigation.
(3) The law enforcement community must be given the
statutory tools necessary to address this security threat. Only
through effective alien smuggling statutes can the Justice
Department, through the United States Attorneys' Offices and
the Domestic Security Section of the Criminal Division,
prosecute these cases successfully.
(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 WATCHLIST.
The Secretary of Homeland Security shall, to the extent
practicable, check against all available terrorist watchlists those
persons suspected of alien smuggling 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 paragraphs (1) through (2) to read as
follows:
``(1)(A) Whoever, 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 in any
manner whatsoever regardless of any future official action
which may be taken with respect to such 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 their unlawful presence; or
``(iv) harbors, conceals, or shields from detection the
individual in any place in the United States, including any
building or any means of transportation;
or attempts or conspires to do so, shall be punished as provided in
subparagraph (C).
``(B) Whoever, knowing that an individual is an alien, brings that
individual to the United States in any manner whatsoever at a place,
other than a designated port of entry or place designated by the
Secretary of Homeland Security, regardless of whether such individual
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 such individual, or attempts or conspires
to do so, shall be punished as provided in subparagraph (C).
``(C) Whoever commits an offense under this paragraph shall, for
each individual in respect to whom such a violation occurs--
``(i) if the offense results in the death of any person, be
fined under title 18, United States Code, and subject to the
penalty of death or imprisonment for any term of years or for
life;
``(ii) if the offense involves kidnapping, an attempt to
kidnap, the conduct required for aggravated sexual abuse (as
defined in section 2241 of title 18, United States Code,
without regard to where it takes place), or an attempt to
commit such abuse, or an attempt to kill, be fined under title
18, United States Code, or imprisoned for any term of years or
life, or both;
``(iii) if the offense involves an individual who the
defendant knew was engaged in or intended to engage in
terrorist activity (as defined in section 212(a)(3)(B)), be
fined under title 18, United States Code, or imprisoned not
more than 30 years, or both;
``(iv) if the offense results in serious bodily injury (as
defined in section 1365 of title 18, United States Code) or
places in jeopardy the life of any person, be fined under title
18, United States Code, or imprisoned not more than 20 years,
or both;
``(v) if the offense is a violation of paragraph (1)(A)(i)
and was committed for the purpose of profit, commercial
advantage, or private financial gain, or if the offense 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, be fined
under title 18, United States Code, and imprisoned, in the case
of a first or second violation, not less than 3 nor more than
10 years, and for any other violation, not less than 5 nor more
than 15 years;
``(vi) if the offense is a violation of paragraphs
(1)(A)(ii), (iii), or (iv), or paragraph (1)(B), and was
committed for the purpose of profit, commercial advantage, or
private financial gain, be fined under title 18, United States
Code, or imprisoned not more than 10 years, or both;
``(vii) if the offense involves the transit of the
defendant's spouse, child, sibling, parent, grandparent, or
niece or nephew, and the offense is not described in any of
clauses (i) through (vi), be fined under title 18, United
States Code, or imprisoned not more than 1 year, or both; and
``(viii) in any other case, be fined under title 18, United
States Code, or imprisoned not more than 5 years, or both.
``(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, subsection (a)(1)(A)(i), (a)(1)(A)(ii), or
(a)(1)(B), that occurs on the high seas, no defense based on necessity
can be raised unless the defendant--
``(i) as soon as practicable, reported to the Coast Guard
the circumstances of the necessity, and 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 set
forth in 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 not a violation of, or an attempt or conspiracy to
violate, clause (iii) or (iv) of paragraph (1)(A), or paragraph
(1)(A)(ii) (except if a person recruits, encourages, or induces an
alien to come to or enter the United States), 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 one year.
``(D) For purposes of this paragraph and paragraph (1)--
``(i) 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 any other
territory or possession of the United States; and
``(ii) the term `lawful authority' 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 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.''.
SEC. 5. MARITIME LAW ENFORCEMENT.
(a) Penalties.--Subsection (b) of section 2237 of title 18, United
States Code, is amended to read as follows:
``(b) Whoever intentionally violates this section shall--
``(1) if the offense results in death or involves
kidnapping, an attempt to kidnap, the conduct required for
aggravated sexual abuse (as defined in section 2241 without
regard to where it takes place), or an attempt to commit such
abuse, or an attempt to kill, be fined under such title or
imprisoned for any term of years or life, or both;
``(2) if the offense results in serious bodily injury (as
defined in section 1365 of this title) or transportation under
inhumane conditions, be fined under this title, imprisoned not
more than 15 years, or both;
``(3) if the offense is committed in the course of a
violation of section 274 of the Immigration and Nationality Act
(alien smuggling); 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;
chapter 705 (maritime drug law enforcement) of title 46, or
title II of the Act of June 15, 1917 (Chapter 30; 40 Stat.
220), be fined under this title or imprisoned for not more than
10 years, or both; and
``(4) in any other case, be fined under this title or
imprisoned for not more than 5 years, or both.''.
(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 any manner
intentionally facilitate the entry of any alien, as that term
is 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 of 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 striking ``and'' at the end of paragraph (3);
(2) by striking the period at the end of paragraph (4) and
inserting ``; and''; and
(3) by adding at the end the following:
``(5) the term `transportation under inhumane conditions'
means the transportation of persons in an engine compartment,
storage compartment, or other confined space, transportation at
an excessive speed, transportation of a number of persons in
excess of the rated capacity of the means of transportation, or
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 subsection (a) 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.
Passed the House of Representatives March 31, 2009.
Attest:
Clerk.
111th CONGRESS
1st Session
H. R. 1029
_______________________________________________________________________
AN ACT
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.