[Congressional Record Volume 149, Number 169 (Thursday, November 20, 2003)]
[Senate]
[Pages S15292-S15297]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SESSIONS (for himself and Mr. Miller):
  S. 1906. A bill to provide for enhanced Federal, State, and local 
enforcement of the immigration laws, and for other purposes; to the 
Committee on the Judiciary.
  Mr. SESSIONS. Mr. President, I rise today to introduce the Homeland 
Security Enhancement Act of 1003. Senator Miller and I have taken the 
lead in encouraging a culture of cooperation of all levels of 
immigration law enforcement--Federal, State, and local--and seek to 
build an immigration law enforcement system that uses unified

[[Page S15293]]

databases for information sharing from one level to another.
  The subject matter of the bill introduced today is one I care very 
deeply about--the ability of State and local law enforcement to 
voluntarily aid the Federal Government in the Enforcement of 
immigration law. Let me be clear, this bill is not about the 
commandeering of State and local police forces or about forcing them to 
dedicate resources toward immigration law enforcement, it is simply 
about their authority to participate in immigration law enforcement if 
they so choose.
  I am convinced that our ability to successfully enforce our 
immigration laws is a test of whether we will be a Nation governed by 
laws.
  Many of the immigration reforms enacted by this Congress since 9/11 
have been aimed at fixing the first half of our broken immigration 
system, the visa issuance process that allowed terrorists to enter our 
country under the guise of legality.
  It is now time to look at the second half of our broken immigration 
system--the half that allows people to remain here illegally for 
indefinite time periods, regardless of how they came here.
  We know that Americans strongly value our heritage as a Nation of 
immigrants. Americans openly welcome legal immigrants and new citizens 
with character, ability, decency, and a strong work ethic. However, it 
is also clear Americans do not feel the same way about illegal 
immigration. The fact is that a large majority of Americans feel that 
State and local governments should be aiding the Federal Government in 
stopping illegal immigration.
  A RoperASW poll published in March of this year titled ``Americans 
Talk About Illegal Immigration'' found that 88 percent of Americans 
agree, and 68 percent ``strongly'' agree, that Congress should require 
State and local government agencies to notify the INS, now ICE, and 
their local law enforcement when they determine that a person is here 
illegally or has presented fraudulent documentation. Additionally, 85 
percent of Americans agree, and 62 percent ``strongly'' agree that 
Congress should pass a law requiring State and local governments and 
law enforcement agencies, to apprehend and turn over to the INS, now 
ICE, illegal immigrants with whom they come in contact.
  Those numbers speak volumes about the desires of the American 
population. It is important to note that those numbers were collected 
on requiring state and local action. It is very likely that a poll on 
this bill, a bill that is about volunteer State and local action would 
yield even stronger support.
  America's strength is based on its commitment to the rule of law. 
Inscribed on the front of the Supreme Court Building just down the 
street are the words, ``Equal Justice Under Law.''
  In the world of immigration laws, a facade of enforcement that holds 
no real consequences for law breakers is both dangerous and 
irresponsible. If the only real consequence of coming to this country 
illegally is a social label, then our immigration laws are but a 
brightly painted sepulcher full of dead bones, for it is impossible to 
be a Nation governed by the rule of law, if our laws have no real 
effect on the lives of the people they govern.
  Our illegal alien population is at a record high. The lack of 
immigration enforcement in our country's interior has resulted in 8-10 
million illegal aliens living in the U.S. with another estimated 
800,000 illegal aliens joining them every year--that is on top of the 
more than 1 million that legally immigrate each year. These numbers 
make it easy for criminal aliens to disappear inside our borders.
  Of the 8-10 million illegal aliens present today, the Department of 
Homeland Security has estimated that 450,000 are ``alien absconders''--
people that have been issued final deportation orders but have not 
shown up for their hearings.
  An estimated 86,000 of them are criminal illegal aliens--people 
convicted of crimes they committed in the U.S. who should have been 
deported, but have slipped through the cracks and are still here.
  The next number is perhaps the most concerning--3,000 of the ``alien 
absconders'' within our borders are from one of the countries that the 
State Department has designated to be a ``state sponsor of terrorism.''
  The number of illegal aliens outweighs the number of federal agents 
whose job it is to find them within our borders by 5,000 to 1. The 
enforcement arm of the old INS, now called The Bureau of Immigration 
and Customs Enforcement (ICE) has a mere 2,000 interior agents inside 
the borders. Leaving the job of interior immigration enforcement solely 
to them will guarantee failure.
  State and local police, a force 650,000 strong, are the eyes and ears 
of our communities. They are sworn to uphold the law. They police our 
streets and neighborhoods every day. Their role is critical to the 
success of our immigration system.
  For that critical role to be effective, a few very important things 
need to happen: 1. State and local law enforcement need clear authority 
to voluntarily act; 2. the NCIC needs to contain critical immigration 
related information that can be accessed on the roadside; 3. Federal 
immigration officials have to take custody of illegal aliens 
apprehended by State officers, they can not continue to tell them to 
just let them go; 4. the Institutional Removal Program has to be 
expanded so that criminal aliens are detained after their State 
sentences until deportation, they can't be released back into the 
community just to be searched for by federal officials at a later date; 
and 5. critically needed federal bedspace has to be given to DHS for 
they can not guarantee effective removal without adequate detention 
space.
  The Homeland Security Enhancement Act that Senator Miller and I are 
introducing today will do all of those things.
  Let me tell you about a few of the problems in immigration 
enforcement that started my interest in this area and prompted me to 
author this bill.
  A few years ago, police chiefs and sheriffs in Alabama began to tell 
me that they had been shut out of the system and felt powerless to do 
anything about Alabama's growing illegal immigrant population.
  As I went to town hall meetings and conferences with police, I heard 
the same story--``we have given up calling the INS because INS tells us 
we have to have 15 or more illegal aliens in custody or they will not 
even come pick them up.''
  Even worse is that Alabama police were told that the aliens could not 
be detained until the INS could manage to send someone. They were told 
they had to just let them go! They were being told this, even though I 
thought the legal authority of State and local officers to voluntarily 
act on violations of immigration law was clear. If there is any doubt 
that State and local officers have this authority, Congress needs to 
fix that, which is what this bill will do.
  Only two circuits have expressly ruled on State and local law 
enforcement authority to make an arrest on an immigration law 
violation. In 1983, the Ninth Circuit, while not mentioning a 
preexisting general authority, held that nothing in federal law 
precludes the police from enforcing the criminal provisions of the 
Immigration and Naturalization Act. See Gonzales v. City of Peoria, 722 
F.2d 468 (9th Cir. 1983).
  The Tenth Circuit has reviewed this question on several occasions, 
concluding squarely that a ``State trooper has general investigatory 
authority to inquire into possible immigration violations.'' United 
States v. Salinas-Calderon, 728 f.2d 1298, 1301 n.3 (10th Cir. 1984).
  As the Tenth Circuit has described it, there is a ``preexisting 
general authority of State or local police officers to investigate and 
make arrests for violations of federal law, including immigration 
laws.,'' United States v. Vasquez-Alvares, 176 F.3d 1294, 1295 (10th 
Cir. 1999). And again, in 2001, the Tenth Circuit reiterated that 
``State and local police officers [have] implicit authority within 
their respective jurisdictions `to investigate and make arrests for 
violations of federal law, including immigration laws.' '' United 
States v. Santana-Garcia, 264 F.3d 1188, 1194 (citing United States v. 
Vasquez-Alvarez, 176 F.3d 1294, 1295).
  None of these Tenth Circuit holdings drew any distinction between 
criminal violations of the INA and civil provisions that render an 
alien deportable.

[[Page S15294]]

It appears that the Ninth Circuit started the confusion regarding the 
distinction between civil and criminal violations in Gonzales v. City 
of Peoria by asserting in dicta that the civil provisions of the INA 
are a persuasive regulatory scheme, and therefore only the federal 
government has the power to enforce civil violations. See Gonzales v. 
City of Peoria, 722 F.2d 468 (9th Cir. 1983).
  This confusion was, to some extent, fostered by an erroneous 1996 
opinion of the Office of Legal Counsel (OLC) of the department of 
Justice, the relevant part of which has since been withdrawn by OLC.
  Why was the Federal agency responsible for immigration enforcement 
telling my police chiefs in Alabama to just let illegal aliens go?
  To be fair, ICE probably does not have the manpower or detention 
space to take custody and detain all illegal aliens. With less than 
20,000 appropriated detention beds, ICE tells my office that they do 
not have the bed space to detain all the illegal aliens that they 
apprehend; instead, they have to give first priority to detaining the 
worst of the worst--individuals such as convicted felon aliens.
  It is shocking to me that even though we know that detention is a key 
element of effective removal, we do not even detail all illegal aliens 
that have been convicted of crimes, even convicted of felonies, before 
removal. Last February, in a report titled ``the Immigration and 
Naturalization Service's Removal of Aliens Issued Final Orders'' the 
Department of Justice Inspector General found that 87 percent of those 
not detained before removal never get deported. Even in high risk 
categories, the IG found that only fractions of non-detained violators 
are ever removed--35 percent of those with criminal records and 6 
percent of those from ``state sponsors of terrorism.''
  These percentages have not changed substantially since 1996, when the 
last IG report issued on the ability to remove aliens found that 89 
percent of aliens with final deportation orders that are not detained 
are never removed.
  But we cannot lay all the blame on DHS--they can only detain illegal 
aliens that they have space to detain. They are using all of the 
bedspace that they have and are releasing people that should be 
detained because there is no more room. The Homeland Security 
Enhancement Act would add the critical bedspace DHS needs to fulfill 
its mission of interior enforcement.
  The third problem that has been brought to my attention is the 
inadequate way we share immigration information with State and local 
police. We have databases full or information on criminal aliens and 
aliens with final deportation orders, but that information is not 
directly available to state and local police. They have to make a 
special second inquiry to the immigration center in Vermont just to see 
if an illegal alien is a wanted by DHS.
  Without easy access to immigration database information, and with ICE 
unwilling to come and identify every suspected illegal alien, State and 
local police cannot quickly and accurately identify who they have 
detained and who they will be releasing back into the community if they 
follow ICE's instruction to ``just let them go.''
  State and local police are accustomed to checking for criminal 
information in the NCIC (National Crime Information Center) database, 
which is maintained by the FBI. They can and routinely do access the 
NCIC on the roadside when they pull over a car or stop a suspect.
  An NCIC check, which takes just minutes, includes information about 
individuals with outstanding warrants. Even fugitives that use false 
identification can be identified on the roadside through use of the 
NCIC when, as is often the case, a police officer has access to an 
instant fingerprint scanner in his car.
  Separately, ICE operates the Law Enforcement Support Center, which 
makes immigration information available to State and local police, but 
requires a second additional check after NCIC that most State and local 
police either don't know about or don't have the time to perform.
  The Hart Rudman Report, ``America Still Unprepared--America Still In 
Danger,'' found that one problem America still confronts is ``650,000 
local and State police officials continue to operate in a virtual 
intelligence vacuum, without access to terrorist watchlists.'' The 
first recommendation of the report was to ``tap the eyes and ears of 
local and State law enforcement officers in preventing attacks.'' On 
page 19, the report specifically cited the burden of finding hundreds 
of thousands of fugitive aliens living among the population of more 
than 8.5 million illegal aliens living in the U.S. and suggested that 
the burden could and should be shared with 650,000 local, county, and 
State law enforcement officers if they could be brought out of the 
information void.
  If State and local police are not accessing the immigration 
information we have worked hard to make available, we must find a way 
to get the information to them, through systems that are used to using. 
Our bill will get information to them through the system that are 
already using--the NCIC.
  As part of its Alien Absconder Initiative, ICE tells us that it is in 
the process of entering information on the estimated 450,000 alien 
absconders into NCIC. As of October 31, only information on 15,200 
alien absconders had been entered into NCIC. That number is totally 
unacceptable and is shocking to me.
  This should only be the beginning. At the least, the NCIC should 
contain information on all illegal aliens who have received final 
orders of departure and all illegal aliens who have signed voluntary 
departure agreements. In truth, the NCIC should contain information on 
all violations of law.
  Our bill will ensure that when a NCIC roadside check is done on an 
individual pulled over for speeding, police will know immediately if 
the individual has already been ordered to leave the country, has 
signed a legal document promising to leave, or has overstayed their 
visa.
  Understanding the value of getting immigration information to State 
and local police comes from understanding that they are the ones who 
will come into contact with the dangerous illegal aliens on a day-to-
day basis.
  Three 9/11 hijackers were stopped by State and local police in the 
weeks proceeding 9/11. Hijacker Mohammad Atta, believed to have piloted 
American Airlines Flight 77 into the World Trade Center's north tower, 
was stopped twice by police in Florida, Hijacker Ziad S. Jarrah was 
stopped for speeding by Maryland State Police two days before 9/11. 
And, Hani Hanjour, who was on the flight that crashed into the 
Pentagon, was stopped for speeding by police in Arlington, VA. Local 
police can be our most powerful tool in the war against terrorism.
  The D.C. Snipers were caught because of the fingerprint collected by 
local police. John Lee Malvo was identified when the fingerprint 
collected from a magazine at the scene of the liquor store murder and 
robbery in Montgomery, Alabama matched with the fingerprints collected 
by INS agents in Washington State. Had both law enforcement entities 
not done their job by taking prints, it is possible that the identity 
of John Lee Malvo could have been a mystery for weeks longer.
  In February, a 42-year-old woman sitting on a park bench in New York 
with her boyfriend was dragged away and gang-raped by five deportable 
illegal immigrants. Although 4 of the 5 had State criminal convictions 
and 2 had served jail time, the INS claims they were never told about 
them--thus, they were not deported as the law requires.
  Fifty-six illegal aliens were caught by State and local police, and 
convicted of molestation and child abuse, long before ICE's ``Operation 
Predator'' found them a few weeks ago living in New York and Northern 
New Jersey after they should have been deported. Of the 56 arrested, 
one had raped his 10-year-old niece; another has sexually assaulted a 
6-year-old boy; one had raped his 7-year-old niece; and another has 
sexually assaulted a 2-year-old.
  The 9/11 hijacker cases, the D.C. sniper cases, and a multitude of 
criminal alien cases clearly illustrate that our State and local police 
are on the front lines in combating alien crime. To cut them out of the 
system, as we do now, whether intentionally or unintentionally, is to 
eliminate our most effective weapon against criminal and terrorist 
aliens.

  The opponents of this bill will say that we don't want immigrants to 
succeed and that we don't want people to

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come here. That is absolutely not true. We believe in the rule of law. 
We believe that people should come here to be citizens of this country 
under the color of law. We want people to come here and reach their 
fullest potential. But, we believe that a Nation has the right to set 
the standards by which it accepts people, and if it sets those 
standards it ought to create a legal system to enforce those standards. 
This bill will work to enforce the immigration standards our Nation has 
created.
  The opposition will say that State and local police can not 
adequately respect the civil rights of illegal aliens, and that 
enforcement will cost too much and will discourage the reporting of 
crimes. It is curious logic to say that we trust our police to enforce 
laws against citizens but not against non-citizens here illegally.
  I know that State and local police are trained to protect the civil 
rights of all types of suspects and defendants and that they do so 
every day in this country. In Alabama, State troopers receive annual 
training on racial profiling. In New York, the NYC Police Department 
operations order #11 strictly prohibits racial profiling in law 
enforcement actions. If Alabama and New York are consistent in how they 
instruct and train their State and local police with regards to racial 
profiling, it is safe to assume that the rest of the Nation does as 
well.
  Under this bill, State and local police will have to respect the 
civil rights of illegal aliens the same way they respect the civil 
rights of all people against whom they enforce the law. State and local 
police will continue to be held responsible for violations of civil 
rights; this bill does not change that fact.
  The opposition will say that this bill is expensive; that it costs 
too much. It is always expensive to enforce the law. I do not think 
this bill is overly expensive. We have made it as cost affordable as we 
can by electing to efficiently use resources already available to us. 
Law enforcement is not an area where it pays to pinch pennies. In 
immigration enforcement, I believe that it costs us too much not to 
enforce the law. I believe it is time that Congress take responsibility 
for providing DHS with the resources they need to do the job we have 
given them.
  When it comes to immigration enforcement in America, the rule of law 
is not prevailing. If we are serious about securing the homeland, we 
simply must get serious about immigration enforcement.
  It is time to talk about the big picture--time to be honest about 
what it will really take to fix our broken immigration system. In most 
cases, we don't need tougher immigration laws, we just need to utilize 
our existing resources and use some new resources to enforce the laws 
we already have.
  If State and local police are confused about their authority to 
enforce immigration laws, that authority needs to be clarified. This 
bill will do that. If State and local police can not access immigration 
background information on individuals quickly enough, we should change 
that. This bill makes that information more accessible. If DHS is not 
taking custody of the illegal aliens being apprehended by State and 
local police, we need to make it possible for them to do so. This bill 
will address the practice of ``catching and releasing'' illegal aliens. 
If we do not have enough detection space to hold people that break the 
law, then we need more detention space. This bill gives DHS 50 percent 
more bedspace to use in immigration enforcement. If illegal aliens are 
being released back into the community after their prison sentences 
instead of being deported, we need to fix the system that releases 
them. This bill will extend the Institutional Removal Program to ensure 
that custody is transferred from the state prison to federal officials 
at the end of the alien's prison sentence.
  Once again I would like to thank Senator Miller for joining with me 
to introduce this legislation. It is imperative that we take critical 
steps toward regaining control of our out-of-control immigration 
system. This bill is a critical step in the right direction. I 
encourage my colleagues to study this bill and to join Senator Miller 
and I as we work to pass the Homeland Security Act of 2003.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1906

       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 ``Homeland Security 
     Enhancement Act of 2003''.

    TITLE I--ENHANCING FEDERAL, STATE, AND LOCAL ENFORCEMENT OF THE 
                            IMMIGRATION LAWS

     SEC. 101. FEDERAL AFFIRMATION OF IMMIGRATION LAW ENFORCEMENT 
                   BY STATES AND POLITICAL SUBDIVISIONS OF STATES.

       Notwithstanding any other provision of law and reaffirming 
     the existing inherent authority of States, law enforcement 
     personnel of a State or a political subdivision of a State 
     have the inherent authority of a sovereign entity to 
     apprehend, arrest, detain, or transfer to Federal custody 
     aliens in the United States (including the transportation of 
     such aliens across State lines to detention centers), in the 
     enforcement of the immigration laws of the United States. 
     This State authority has never been displaced or preempted by 
     Congress.

     SEC. 102. STATE AUTHORIZATION FOR ENFORCEMENT OF FEDERAL 
                   IMMIGRATION LAWS ENCOURAGED.

       (a) In General.--Effective 2 years after the date of 
     enactment of this Act, a State (or political subdivision of a 
     State) that has in effect a statute, policy, or practice that 
     prohibits law enforcement officers of the State, or of a 
     political subdivision within the State, from enforcing 
     Federal immigration laws or from assisting or cooperating 
     with Federal immigration law enforcement in the course of 
     carrying out the officers' law enforcement duties shall not 
     receive any of the funds that would otherwise be allocated to 
     the State under section 241(i) of the Immigration and 
     Nationality Act (8 U.S.C. 1231(i)).
       (b) Reallocation of Funds.--Any funds that are not 
     allocated to a State due to the failure of the State to 
     comply with this section shall be reallocated to States that 
     comply with this section.

     SEC. 103. CIVIL AND CRIMINAL PENALTIES FOR ALIENS UNLAWFULLY 
                   PRESENT IN THE UNITED STATES.

       (a) Aliens Unlawfully Present.--Title II of the Immigration 
     and Nationality Act (8 U.S.C. 1151 et seq.) is amended by 
     adding after section 275 the following:


``criminal penalties and forfeiture for unlawful presence in the united 
                                 states

       ``Sec. 275A. (a) In addition to any other violation, an 
     alien present in the United States in violation of this Act 
     shall be guilty of a misdemeanor and shall be fined under 
     title 18, United States Code, imprisoned not more than 1 
     year, or both. The assets of any alien present in the United 
     States in violation of this Act shall be subject to 
     forfeiture under title 18, United States Code.
       ``(b) It shall be an affirmative defense to a violation of 
     subsection (a) that the alien overstayed the time allotted 
     under the visa due to an exceptional and extremely unusual 
     hardship or physical illness that prevented the alien from 
     leaving the United States by the required date.''.
       (b) Increase in Criminal Penalties for Illegal Entry.--
     Section 275(a) of the Immigration and Nationality Act (8 
     U.S.C. 1325(a)) is amended by striking ``6 months,'' and 
     inserting ``1 year,''.
       (c) Permission To Depart Voluntarily.--Section 240B of the 
     Immigration and Nationality Act (8 U.S.C. 1229c) is amended--
       (1) by striking ``Attorney General'' each place that term 
     appears and inserting ``Secretary of Homeland Security''; and
       (2) in subsection (a)(2)(A), by striking ``120'' and 
     inserting ``30''.

     SEC. 104. LISTING OF IMMIGRATION VIOLATORS IN THE NATIONAL 
                   CRIME INFORMATION CENTER DATABASE.

       (a) Provision of Information to the NCIC.--Not later than 
     180 days after the date of enactment of this Act, the Under 
     Secretary for Border and Transportation Security of the 
     Department of Homeland Security shall provide the National 
     Crime Information Center of the Department of Justice with 
     such information as the Director may have on any and all 
     aliens against whom a final order of removal has been issued, 
     any and all aliens who have signed a voluntary departure 
     agreement, and any and all aliens who have overstayed their 
     visa. Such information shall be provided to the National 
     Crime Information Center regardless of whether or not the 
     alien received notice of a final order of removal and even if 
     the alien has already been removed.
       (b) Inclusion of Information in the NCIC Database.--Section 
     534(a) of title 28, United States Code, is amended--
       (1) in paragraph (3), by striking ``and'' at the end;
       (2) by redesignating paragraph (4) as paragraph (5); and
       (3) by inserting after paragraph (3) the following:
       ``(4) acquire, collect, classify, and preserve records of 
     violations of the immigration laws of the United States, 
     regardless of whether or not the alien has received notice of 
     the violation and even if the alien has already been removed; 
     and''.

[[Page S15296]]

     SEC. 105. STATE AND LOCAL LAW ENFORCEMENT PROVISION OF 
                   INFORMATION ABOUT APPREHENDED ILLEGAL ALIENS.

       (a) Provision of Information.--
       (1) In general.--In order to receive funds under the State 
     Criminal Alien Assistance Program described in section 241(i) 
     of the Immigration and Nationality Act (8 U.S.C. 1231(i)), 
     States and localities shall provide to the Department of 
     Homeland Security the information listed in subsection (b) on 
     each alien apprehended in the jurisdiction of the State or 
     locality who is believed to be in violation of an immigration 
     law of the United States.
       (2) Time limitation.--Not later than 10 days after an alien 
     described in paragraph (1) is apprehended, information 
     required to be provided under paragraph (1) must be provided 
     in such form and in such manner as the Secretary of Homeland 
     Security may, by regulation or guideline, require.
       (b) Information Required.--The information listed in this 
     subsection is as follows:
       (1) The alien's name.
       (2) The alien's address or place of residence.
       (3) A physical description of the alien.
       (4) The date, time, and location of the encounter with the 
     alien and reason for stopping, detaining, apprehending, or 
     arresting the alien.
       (5) If applicable, the alien's driver's license number and 
     the State of issuance of such license.
       (6) If applicable, the type of any other identification 
     document issued to the alien, any designation number 
     contained on the identification document, and the issuing 
     entity for the identification document.
       (7) If applicable, the license plate number, make, and 
     model of any automobile registered to, or driven by, the 
     alien.
       (8) A photo of the alien, if available or readily 
     obtainable.
       (9) The alien's fingerprints, if available or readily 
     obtainable.
       (c) Reimbursement.--The Department of Homeland Security 
     shall reimburse States and localities for all reasonable 
     costs, as determined by the Secretary of Homeland Security, 
     incurred by that State or locality as a result of providing 
     information required by this section.
       (d) Authorization of Appropriations.--There is authorized 
     to be appropriated such sums as necessary to carry out this 
     Act.

     SEC. 106. INCREASED FEDERAL DETENTION SPACE.

       (a) Construction or Acquisition of Detention Facilities.--
       (1) In general.--The Secretary of Homeland Security shall 
     construct or acquire, in addition to existing facilities for 
     the detention of aliens, 20 detention facilities in the 
     United States, with 500 beds per facility, for aliens 
     detained pending removal or a decision on removal of such 
     alien from the United States.
       (2) Additional facilities.--Whenever the capacity of any 
     detention facility remains within a 1 percent range of full 
     capacity for longer than 1 year, the Secretary of Homeland 
     Security shall construct or acquire additional detention 
     facilities beyond the number authorized in paragraph (1) as 
     are appropriate to eliminate that condition.
       (3) Determinations.--The need for, or location of, any 
     detention facility built or acquired in accordance with this 
     subsection shall be determined by the detention trustee 
     within the Bureau of Immigration and Customs Enforcement.
       (4) Use of installations under base closure laws.--In 
     acquiring detention facilities under this subsection, the 
     Secretary of Homeland Security shall consider the transfer of 
     appropriate portions of military installations approved for 
     closure or realignment under the Defense Base Closure and 
     Realignment Act of 1990 (part A of title XXIX of Public Law 
     101-510; 10 U.S.C. 2687 note) for use in accordance with 
     subsection (a)(1).
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as necessary to carry out this 
     section.
       (c) Technical and Conforming Amendment.--Section 241(g)(1) 
     of the Immigration and Nationality Act (8 U.S.C. 1231(g)(1)) 
     shall be amended by striking ``may expend'' and inserting 
     ``shall expend''.

     SEC. 107. FEDERAL CUSTODY OF ILLEGAL ALIENS APPREHENDED BY 
                   STATE OR LOCAL LAW ENFORCEMENT.

       (a) In General.--Title II of the Immigration and 
     Nationality Act (8 U.S.C. 1151 et seq.) is amended by adding 
     after section 240C the following:


                      ``custody of illegal aliens

       ``Sec. 240D.
       ``(a) If the chief executive officer of a State (or, if 
     appropriate, a political subdivision of the State) exercising 
     authority with respect to the apprehension of an illegal 
     alien submits a request to the Secretary of Homeland Security 
     that the alien be taken into Federal custody, the Secretary 
     of Homeland Security--
       ``(1) shall--
       ``(A) not later than 48 hours after the conclusion of the 
     State charging process or dismissal process, or if no State 
     charging or dismissal process is required, not later than 48 
     hours after the illegal alien is apprehended, take the 
     illegal alien into the custody of the Federal Government and 
     incarcerate the alien; or
       ``(B) request that the relevant State or local law 
     enforcement agency temporarily incarcerate or transport the 
     illegal alien for transfer to Federal custody; and
       ``(2) shall designate a Federal, State, or local prison or 
     jail or a private contracted prison or detention facility 
     within each State as the central facility for that State to 
     transfer custody of the criminal or illegal aliens to the 
     Department of Homeland Security.''.
       ``(b) The Department of Homeland Security shall reimburse 
     States and localities for all reasonable expenses, as 
     determined by the Secretary of Homeland Security, incurred by 
     a State or locality in the incarceration and transportation 
     of an illegal alien as described in subparagraphs (A) and (B) 
     of subsection (a)(1). Compensation provided for costs 
     incurred under subparagraphs (A) and (B) of subsection (a)(1) 
     shall be the average cost of incarceration of a prisoner in 
     the relevant State, as determined by the chief executive 
     officer of a State (or, as appropriate, a political 
     subdivision of the State) plus the cost of transporting the 
     criminal or illegal alien from the point of apprehension, to 
     the place of detention, and to the custody transfer point if 
     the place of detention and place of custody are different.
       ``(c) The Secretary of Homeland Security shall ensure that 
     illegal aliens incarcerated in Federal facilities pursuant to 
     this subsection are held in facilities which provide an 
     appropriate level of security.
       ``(d)(1) In carrying out this section, the Secretary of 
     Homeland Security may establish a regular circuit and 
     schedule for the prompt transfer of apprehended illegal 
     aliens from the custody of States and political subdivisions 
     of States to Federal custody.
       ``(2) The Secretary of Homeland Security may enter into 
     contracts with appropriate State and local law enforcement 
     and detention officials to implement this subsection.
       ``(e) For purposes of this section, the term `illegal 
     alien' means an alien who--
       ``(1) entered the United States without inspection or at 
     any time or place other than that designated by the Secretary 
     of Homeland Security;
       ``(2) was admitted as a nonimmigrant and who, at the time 
     the alien was taken into custody by the State or a political 
     subdivision of the State, had failed to--
       ``(A) maintain the nonimmigrant status in which the alien 
     was admitted or to which it was changed under section 248; or
       ``(B) comply with the conditions of any such status;
       ``(3) was admitted as an immigrant and has subsequently 
     failed to comply with the requirements of that status; or
       ``(4) failed to depart the United States under a voluntary 
     departure agreement or under a final order of removal.''.
       (b) Authorization of Appropriations for the Detention and 
     Transportation to Federal Custody of Aliens Not Lawfully 
     Present.--There is authorized to be appropriated $500,000,000 
     for the detention and removal of aliens not lawfully present 
     in the United States under the Immigration and Nationality 
     Act (8 U.S.C. 1101 et seq.) for fiscal year 2004 and each 
     subsequent fiscal year.

     SEC. 108. TRAINING OF STATE AND LOCAL LAW ENFORCEMENT 
                   PERSONNEL RELATING TO THE ENFORCEMENT OF 
                   IMMIGRATION LAWS.

       (a) Training Manual and Pocket Guide.--
       (1) Establishment.--Not later than 180 days after the date 
     of enactment of this Act, the Secretary of Homeland Security 
     shall establish--
       (A) a training manual for law enforcement personnel of a 
     State or political subdivision of a State to train such 
     personnel in the investigation, identification, apprehension, 
     arrest, detention, and transfer to Federal custody of aliens 
     in the United States (including the transportation of such 
     aliens across State lines to detention centers and 
     identification of fraudulent documents); and
       (B) an immigration enforcement pocket guide for law 
     enforcement personnel of a State or political subdivision of 
     a State to provide a quick reference for such personnel in 
     the course of duty.
       (2) Availability.--The training manual and pocket guide 
     established in accordance with paragraph (1) shall be made 
     available to all State and local law enforcement personnel.
       (3) Applicability.--Nothing in this subsection shall be 
     construed to require State or local law enforcement personnel 
     to carry the training manual or pocket guide established in 
     accordance with paragraph (1) with them while on duty.
       (4) Costs.--The Department of Homeland Security shall be 
     responsible for any costs incurred in establishing the 
     training manual and pocket guide under this subsection.
       (b) Training Flexibility.--
       (1) In general.--The Department of Homeland Security shall 
     make training of State and local law enforcement officers 
     available through as many means as possible, including 
     residential training at Federal facilities, onsite training 
     held at State or local police agencies or facilities, online 
     training courses by computer, teleconferencing, and 
     videotape, or the digital video display (DVD) of a training 
     course or courses.
       (2) Federal personnel training.--The training of State and 
     local law enforcement personnel under this section shall not 
     displace or otherwise adversely affect the training of 
     Federal personnel.
       (c) Administration Fees.--The Secretary of Homeland 
     Security may charge a fee for training under subsection (b) 
     that shall be an amount equal to not more than half the 
     actual costs of providing such training.
       (d) Clarification.--Nothing in this Act or any other 
     provision of law shall be construed

[[Page S15297]]

     as making any immigration-related training a requirement for, 
     or prerequisite to, any State or local law enforcement 
     officer exercising that officer's inherent authority to 
     apprehend, arrest, detain, or transfer to Federal custody 
     illegal aliens during the normal course of carrying out their 
     law enforcement duties.
       (e) Training Limitation.--Section 287(g) of the Immigration 
     and Nationality Act (8 U.S.C. 1357(g)) is amended--
       (1) by striking ``Attorney General'' each place that term 
     appears and inserting ``Secretary of Homeland Security''; and
       (2) in paragraph (2), by adding at the end the following: 
     ``Such training shall not exceed 14 days or 80 hours, 
     whichever is longer.''.

     SEC. 109. IMMUNITY.

       (a) Personal Immunity.--Notwithstanding any other provision 
     of law, a law enforcement officer of a State or local law 
     enforcement agency shall be immune, to the same extent as a 
     Federal law enforcement officer, from personal liability 
     arising out of the enforcement of any immigration law, 
     provided the officer is acting within the scope of the 
     officer's official duties.
       (b) Agency Immunity.--Notwithstanding any other provision 
     of law, a State or local law enforcement agency shall be 
     immune from any claim for money damages based on Federal, 
     State, or local civil rights law for an incident arising out 
     of the enforcement of any immigration law, except to the 
     extent that the law enforcement officer of that agency, whose 
     action the claim involves, committed a violation of Federal, 
     State, or local criminal law in the course of enforcing such 
     immigration law.

     SEC. 110. PLACES OF DETENTION FOR ALIENS ARRESTED PENDING 
                   EXAMINATION AND DECISION ON REMOVAL.

       (a) In General.--Section 241(g) of the Immigration and 
     Nationality Act (8 U.S.C. 1231(g)) is amended by adding at 
     the end the following:
       ``(3) Policy on detention in state and local detention 
     facilities.--In carrying out paragraph (1), the Secretary of 
     Homeland Security shall ensure that an alien arrested under 
     section 287(a) is detained, pending the alien's being taken 
     for the examination described in that section, in a State or 
     local prison, jail, detention center, or other comparable 
     facility, if--
       ``(A) such a facility is the most suitably located Federal, 
     State, or local facility available for such purpose under the 
     circumstances;
       ``(B) an appropriate arrangement for such use of the 
     facility can be made; and
       ``(C) such facility satisfies the standards for the 
     housing, care, and security of persons held in custody of a 
     United States marshal.''.
       (b) Detention Facility Suitability.--Notwithstanding any 
     other provision of law, a facility described in section 
     241(g)(3)(C) of the Immigration and Nationality Act, as added 
     by subsection (a), is adequate for detention of persons being 
     held for immigration related violations.
       (c) Technical and Conforming Amendment.--Section 241 of the 
     Immigration and Nationality Act (8 U.S.C. 1231) is amended by 
     striking ``Attorney General'' each place that term appears 
     and inserting ``Secretary of Homeland Security''.

     SEC. 111. INSTITUTIONAL REMOVAL PROGRAM.

       (a) Continuation.--
       (1) In general.--The Department of Homeland Security shall 
     continue to operate and implement the program known as the 
     Institutional Removal Program (IRP) which--
       (A) identifies removable criminal aliens in Federal and 
     State correctional facilities;
       (B) ensures such aliens are not released into the 
     community; and
       (C) removes such aliens from the United States after the 
     completion of their sentences.
       (2) Expansion.--The Institutional Removal Program shall be 
     extended to all States. Any State that receives Federal funds 
     for the incarceration of criminal aliens shall--
       (A) cooperate with Federal Institutional Removal Program 
     officials;
       (B) expeditiously and systematically identify criminal 
     aliens in its prison and jail populations; and
       (C) promptly convey such information to Federal IRP 
     authorities as a condition for receiving such funds.
       (b) Authorization for Detention After Completion of State 
     or Local Prison Sentence.--Law enforcement officers of a 
     State or political subdivision of a State have the authority 
     to--
       (1) hold an illegal alien for a period of up to 14 days 
     after the alien has completed the alien's State prison 
     sentence in order to effectuate the transfer of the alien to 
     Federal custody when the alien is removable or not lawfully 
     present in the United States; or
       (2) issue a detainer that would allow aliens who have 
     served a State prison sentence to be detained by the State 
     prison until personnel from the Bureau of Immigration and 
     Customs Enforcement can take the alien into custody.
       (c) Technology Usage.--Technology such as videoconferencing 
     shall be used to the maximum extent possible in order to make 
     the Institutional Removal Program (IRP) available in remote 
     locations. Mobile access to Federal databases of aliens, such 
     as IDENT, and live scan technology shall be used to the 
     maximum extent practicable in order to make these resources 
     available to State and local law enforcement agencies in 
     remote locations.
       (d) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out the Institutional Removal 
     Program--
       (1) $10,000,000 for fiscal year 2004;
       (2) $20,000,000 for fiscal year 2005;
       (3) $30,000,000 for fiscal year 2006;
       (4) $40,000,000 for fiscal year 2007;
       (5) $50,000,000 for fiscal year 2008;
       (6) $60,000,000 for fiscal year 2009;
       (7) $70,000,000 for fiscal year 2010; and
       (8) $80,000,000 for fiscal year 2011.

TITLE II--ENHANCING ENFORCEMENT OF THE IMMIGRATION AND NATIONALITY ACT 
           IN THE INTERIOR THROUGH IMPROVED DOCUMENT SECURITY

     SEC. 201. DRIVERS LICENSES.

       (a) Expiration Date for Certain Aliens.--
       (1) In general.--Section 656 of the Illegal Immigration 
     Reform and Immigrant Responsibility Act of 1996 (5 U.S.C. 301 
     note) is amended by inserting after subsection (a) the 
     following:
       ``(b) State-Issued Driver's Licenses Expiration Date.--A 
     Federal agency may not accept for any identification-related 
     purpose a driver's license issued by a State unless, if the 
     driver's license is issued to an alien who is in lawful 
     status but who is not an alien lawfully admitted for 
     permanent residence, the period of validity of the license 
     expires on the date on which the alien's authorization to 
     remain in the United States expires.''.
       (2) Effective date.--The amendment made by paragraph (1) 
     shall take effect beginning on October 1, 2007, but shall 
     apply only to licenses issued to an individual for the first 
     time and to replacement or renewal licenses issued according 
     to State law.
       (b) Condition of Funds.--Section 402(b)(1) of title 23, 
     United States Code, is amended--
       (1) in subparagraph (C), by striking ``and'' at the end;
       (2) in subparagraph (D), by striking the period at the end 
     and inserting ``; and''; and
       (3) by adding at the end the following:
       ``(E) prohibit aliens who are not in lawful status, as 
     determined under the Immigration and Nationality Act (8 
     U.S.C. 1101 et seq.), from being issued a driver's license in 
     that State.''.

     SEC. 202. SECURE AND VERIFIABLE IDENTIFICATION REQUIRED FOR 
                   FEDERAL PUBLIC BENEFITS.

       (a) In General.--In the provision in the United States of a 
     Federal public benefit or service that requires the recipient 
     to produce identification, no Federal agency, commission, or 
     other entity within the executive, legislative, or judicial 
     branch of the Federal Government may accept, recognize, or 
     rely on (or authorize the acceptance or recognition of, or 
     the reliance on) any identification document, unless--
       (1) the document was issued by a United States Federal or 
     State authority and is subject to verification by a United 
     States Federal law enforcement, intelligence, or homeland 
     security agency; or
       (2) the recipient--
       (A) is lawfully present in the United States;
       (B) is in possession of a passport; and
       (C) is a citizen of a country for which the visa 
     requirement for entry into the United States is waived if the 
     alien possesses a passport from such country.
       (b) Immunity.--An elected or appointed official, employee, 
     or other contractor or agent of the Federal Government who 
     takes an action inconsistent with subsection (a) is deemed to 
     be acting beyond the scope of authority granted by law and 
     shall not be immune from liability for such action, unless 
     such immunity is conferred by the Constitution and cannot be 
     waived.
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