[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1029 Referred in Senate (RFS)]

111th CONGRESS
  1st Session
                                H. R. 1029


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 1, 2009

  Received; read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 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:

                                            LORRAINE C. MILLER,

                                                                 Clerk.