[Congressional Record Volume 150, Number 83 (Wednesday, June 16, 2004)]
[Senate]
[Pages S6889-S6894]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KENNEDY (for himself, Mr. Leahy, Mr. Durbin, Mr. Feingold, 
        and Mr. Corzine):
  S. 2528. A bill to restore civil liberties under the First Amendment, 
the Immigration and Nationality Act, and the Foreign Intelligence 
Surveillance Act, and for other purposes; to the Committee on the 
Judiciary.
  Mr. KENNEDY. Mr. President, it is a privilege to join my colleagues 
in introducing the Civil Liberties Restoration Act of 2004.
  The attacks of September 11 changed this nation forever. Much has 
been done since then to combat the threat of terrorism and make America 
safer. But not every measure or policy adopted after 9/11 has been 
effective, legal, or fair. The strengthening of security has sometimes 
meant the weakening of civil liberties. Often, the Bush Administration 
has misused the fear of terrorism as an excuse to ignore basic rights 
in our society.
  Immigrants, especially Arabs and Muslims, became targets as the 
Administration carried out roundups of individuals based on national 
origin and religion, rather than any specific assessment of danger. 
Abusive detention practices took place. Registration programs have made 
criminal suspects out of legal immigrants.
  These changes were implemented without Congressional consultation or 
approval. They have swept much too broadly and eliminated necessary 
checks and balances that prevent abuse. They have squandered our 
limited resources and have been more successful in alienating immigrant 
communities than in apprehending terrorists. We cannot allow fear to 
trump and trample the values upon which our country was founded. Our 
Nation can be both secure and free.
  The Civil Liberties Restoration Act of 2004 will provide basic civil 
liberties protections, and restore balance and fairness to our laws in 
the treatment of immigrants. It will preserve fundamental rights 
without endangering national security. It will restore the confidence 
of immigrant communities, especially those unfairly targeted by recent 
and current policies.
  It will place reasonable limitations on closed immigration hearings. 
On September 21, 2001, the Attorney General ordered immigration judges 
to close all hearings on individuals detained in the 9/11 
investigation. In a highly critical report issued by the Inspector 
General of the Justice Department in April 2003 we learned that many 
were arrested as a result of ``chance encounters or tenuous 
connections'' to the investigation, rather than ``any genuine 
indications of a possible connection with or possession of information 
about terrorist activity.''
  Nevertheless, over 600 immigration hearings were held in secret. 
Visitors, the press and even family members of the detainees were 
excluded. Consistent with the First Amendment, our legislation 
authorizes the closing of immigration hearings only when the government 
can demonstrate a compelling privacy or national security interest.
  The bill will restore other due process protections weakened after 9/
11. Before that, the INS was required to give notice to detained non-
citizens within 24 hours of arrest, informing them of the charges 
against them. On September 20, 2001, Attorney General Ashcroft issued a 
regulation extending that period to 48 hours or ``an additional 
reasonable period of time'' in ``emergency or other extraordinary 
circumstances.''
  This open-ended change led to serious abuses. As the Inspector 
General reported, some detainees were held for more than a month after 
their arrest, without being told of the charges against them. Often 
they were held in harsh and restrictive conditions and prevented from 
consulting with their attorneys.
  Our legislation will require a charging document to be served within 
48 hours of an arrest or detention. Non-citizens held for more than 48 
hours would have to be brought before an immigration judge within 72 
hours of their arrest or detention, with an exception for non-citizens 
who are certified by the Attorney General, based on reasonable grounds, 
as having engaged in espionage or a terrorist offense.
  After 9/11, the Bush Administration also adopted policies that deny 
bond to many immigrants with no individual assessment of their danger 
or flight risk. Two examples of this policy were the ``hold until 
cleared'' policy criticized by the Inspector General's report, and the 
Attorney General's precedent decision declaring that all Haitians 
arriving by sea were a national security threat and must be detained.
  Unilateral executive branch decisions mandating detention violate 
fundamental rights. Blanket detentions of persons who pose no flight 
risk or harm to the community waste valuable resources that should be 
used to apprehend criminals and terrorists.

[[Page S6890]]

  Our legislation will require the Secretary of Homeland Security to 
provide all detainees with individual assessments to determine whether 
they pose a flight risk or a threat to public safety, except those in 
categories specifically designated by Congress as posing a special 
threat. If the individual is eligible for release, the Secretary must 
set a reasonable bond or other conditions to guarantee the person's 
appearance at future proceedings, and this decision would be subject to 
review by an immigration judge.
  The authority of immigration judges was further weakened by an 
October 2001 regulation that authorizes the Attorney General to stay a 
decision by an immigration judge to release an individual if bond had 
originally been denied, or had been set at $10,000 or more. The current 
regulation goes too far. It allows the government's immigration 
attorneys to overrule a decision by an immigration judge that an 
individual does not pose a risk.
  The bill puts reasonable limitations on this automatic stay 
authority. The Board of Immigration Appeals could stay the immigration 
judge's bond decision for a limited time, only when the government is 
likely to prevail in appealing that decision and there is a risk of 
irreparable harm in the absence of a stay.
  In early 2002, Attorney General Ashcroft issued a series of 
``procedural reforms'' purportedly designed to eliminate the backlog of 
cases in the Board of Immigration Appeals. Altering its practices in 
accordance with the new mandates, the Board has issued thousands of 
single-member decisions affirming without written opinions the 
decisions of the immigration judges. Before the changes took effect, 1 
in 4 appeals was granted, now only 1 in 10 is granted. Instead of 
eliminating the backlog, however, the cases have shifted to the federal 
courts. The number of Board decisions being appealed to the federal 
courts has increased dramatically. The Ninth Circuit has received over 
4,200 immigration appeals, more than four times the usual number.
  These so-called reforms highlight the degree to which integrity and 
impartiality of the immigration courts have been compromised. To 
correct the problem, the bill establishes an independent regulatory 
agency within the Department of Justice to administer the immigration 
court system. Integrity would be restored by enabling Board Members and 
immigration judges to exercise independent judgment and discretion. The 
reforms will help ensure that individuals and families receive fair 
treatment in immigration decisions, which can have profound 
consequences for immigrants and refugees, such as permanent separation 
from loved ones, or deportation to countries where they may face 
persecution and even death.
  The Act will also end the infamous National Security Entry-Exit 
Registration System--the NSEERS program which was launched by Attorney 
General Ashcroft in August 2002 and which required men from 
predominately Muslim or Arab countries to be fingerprinted, 
photographed, and interrogated, based on the absurd notion that 
terrorists would present themselves for registration and be caught.
  As Vincent Cannistraro, former director of Counterterrorism 
Operations at the CIA, has said, policies like the NSEERS program 
caused fear and distrust and worked ``against intelligence-gathering by 
law enforcement, particularly the FBI.'' At a time when we needed vital 
intelligence information, members of these communities were unfairly 
stigmatized and discouraged from coming forward to help our law 
enforcement and counter-terrorism efforts.
  According to Department of Homeland Security officials, no one 
registered under the NSEERS program was ever charged with terrorism. 
Last December, significant parts of the NSEERS program were suspended. 
Our bill will terminate it completely, and it will also close removal 
proceedings for certain individuals targeted under it.
  A related issue is the exercise of prosecutorial discretion. More 
than 14,000 individuals who voluntarily complied with the NSEERS 
program were placed in removal proceedings for technical immigration 
violations, even though many of them had relief available to them or 
were in the process of applying for permanent residence. Immigration 
officers routinely refused to use their discretion not to arrest these 
individuals, or not to initiate removal proceedings against them, or 
not to release them from detention. The result was a massive diversion 
of resources away from investigations, prosecutions, and removals of 
criminals and terrorists.
  Our bill will codify an immigration memorandum which outlines the 
parameters for the responsible exercise of prosecutorial discretion. 
The legislation makes clear that such discretion is not an invitation 
to violate or ignore the law, but is intended to give the government 
the flexibility to maximize its allocation of resources. Exercise of 
such discretion is particularly appropriate in light of the complexity 
of the immigration laws, the harshness of the consequences of 
enforcement, and the importance of conserving limited enforcement 
resources so that they are available for use against individuals who 
threaten our safety and security.
  Given the problems inherent in the NSEERS program, the government 
should reconsider all pending NSEERS cases and determine whether a 
favorable exercise of discretion is warranted. Family ties, 
humanitarian concerns, and eligibility for relief are positive factors 
that should be considered in assessing such cases.
  Our bill also protects the integrity of the National Crime 
Information Center database. For decades, in maintaining the database, 
the Department of Justice was required to obey the Privacy Act, which 
requires each agency to maintain its records ``with such accuracy, 
relevance, timeliness, and completeness as is reasonably necessary to 
assure fairness to the individuals in the determination.'' In March 
2003, Attorney General Ashcroft issued a regulation stating that these 
requirements no longer applied to the NCIC database, and justified the 
exemption because ``in the collection of information for law 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely and complete.''
  Our legislation requires the Attorney General to comply with the 
Privacy Act in maintaining the database. Circumventing this statutory 
obligation poses significant risks not only for individuals whose files 
may be part of this data system, but also for communities that rely on 
law enforcement to employ effective, reliable methods for protecting 
public safety.
  This requirement is especially important today. The Attorney General 
announced last year that information on more than 400,000 persons with 
removal orders and an unknown number of alleged NSEERS violators would 
be included in the database. The error rate in immigration records has 
always been very high--a fact confirmed by numerous reports issued by 
the Inspector General. Requiring the Attorney General to comply with 
the Privacy Act will help prevent inaccurate and unreliable information 
from contaminating the database and harming individuals and 
communities.
  The bill also protects privacy by ensuring that constitutional 
limitations apply to secret surveillance. The Patriot Act amended the 
Foreign Intelligence Service Act to permit surveillance or searches 
when a ``significant purpose'', not just the ``primary purpose'', of 
the surveillance or search is foreign intelligence. Under current 
procedures, when such evidence is brought before a court, it is nearly 
impossible for a criminal defendant to contest its introduction, 
because the government's application for the search is kept secret. 
When such evidence is used in criminal cases, the court should disclose 
the application and related materials to the defendant, subject to the 
Classified Information Procedures Act, which offers a balanced and 
effective way to protect both national security information and the 
rights of defendants.
  In addition, the legislation provides that when such information from 
electronic surveillance and other sources is introduced in a criminal 
case, disclosure of the surveillance application, order, or other 
materials is permitted under the procedures in the Classified 
Information Procedures Act.
  Finally, the bill addresses the practice of data-mining. Through 
comprehensive data-mining, many records that people believe are private 
can be

[[Page S6891]]

collected by computer, fed into a database and used by the government 
without their knowledge. Law enforcement must have the necessary means 
to protect our safety, but the use of data-mining technology should not 
be allowed to threaten privacy and civil liberties.
  The legislation will require all federal agencies to report to 
Congress within 90 days and annually in future years on data-mining 
programs used to find patterns indicating terrorist or other criminal 
activity and the effect of these programs on civil liberties and 
privacy, so that Congress can exercise its oversight authority over 
federal agencies using this technology.
  We know that we can protect our nation's security and still respect 
the basic rights of both citizens and immigrants. The Civil Liberties 
Restoration Act is a needed effort to end the abuse that has become all 
too common in the past three years, and Congress has a responsibility 
to end them. It has been said that our laws are the wise restraints 
that make us free. The restraints have been weakened in recent years, 
and we need to make them stronger.
  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. 2528

       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 ``Civil Liberties Restoration 
     Act of 2004''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Fighting terrorism is a priority for our Nation.
       (2) As Federal, State, and local law enforcement work 
     tirelessly every day to prevent another terrorist attack, our 
     Nation must continue to work to ensure that law enforcement 
     have the legal tools and resources to do their job.
       (3) At the same time, steps that are taken to protect the 
     United States from terrorism should not undermine 
     constitutional rights and protections.
       (4) Some of the steps taken by the Administration since 
     September 11, 2001, however, have undermined constitutional 
     rights and protections.
       (5) Our nation must strive for both freedom and security.
       (6) This Act seeks to restore essential rights and 
     protections without compromising our Nation's safety.

               TITLE I--RESTORING FIRST AMENDMENT RIGHTS

     SEC. 101. LIMITATION ON CLOSED IMMIGRATION HEARINGS.

       (a) In General.--Section 240 of the Immigration and 
     Nationality Act (8 U.S.C. 1229a) is amended--
       (1) by redesignating subsection (e) as subsection (f); and
       (2) by inserting after subsection (d) the following new 
     subsection:
       ``(e) Standards for Closing Removal Hearings.--
       ``(1) In general.--Subject to paragraph (2), a removal 
     proceeding held pursuant to this section shall be open to the 
     public.
       ``(2) Exceptions.--Portions of a removal proceeding held 
     pursuant to this section may be closed to the public by an 
     immigration judge on a case by case basis, when necessary--
       ``(A) to preserve the confidentiality of applications for 
     asylum, withholding of removal, relief under the Convention 
     Against Torture and Other Cruel, Inhuman or Degrading 
     Treatment or Punishment, the Violence Against Women Act of 
     1994 (Public Law 103-322; 108 Stat. 1902), or the Victims of 
     Trafficking and Violence Prevention Act of 2000 (Public Law 
     106-386; 114 Stat. 1464), or other applications for relief 
     involving confidential personal information or where portions 
     of the removal hearing involve minors or issues relating to 
     domestic violence, all with the consent of the alien;
       ``(B) to prevent the disclosure of classified information 
     that threatens the national security of the United States and 
     the safety of the American people; or
       ``(C) to prevent the disclosure of the identity of a 
     confidential informant.
       ``(3) Compelling government interest.--In order for 
     portions of removal proceedings to be closed to the public in 
     accordance with this subsection, the government must show 
     that such closing of the proceedings is necessitated by a 
     compelling governmental interest and is narrowly tailored to 
     serve that interest.''.
       (b) Technical and Conforming Amendments.--Section 240(b) of 
     the Immigration and Nationality Act (8 U.S.C. 1229a(b)) is 
     amended--
       (1) in paragraph (5)(C)(i), by striking ``subsection 
     (e)(1)'' and inserting ``subsection (f)(1)''; and
       (2) in paragraph (7), by striking ``subsection (e)(1)'' and 
     inserting ``subsection (f)(1)''.

            TITLE II--PROVIDING DUE PROCESS FOR INDIVIDUALS

     SEC. 201. TIMELY SERVICE OF NOTICE.

       (a) In General.--Section 236 of the Immigration and 
     Nationality Act (8 U.S.C. 1226) is amended by adding at the 
     end the following:
       ``(f) Notice of Charges.--The Secretary of Homeland 
     Security shall serve a notice to appear on every alien 
     arrested or detained under this Act, except those certified 
     under section 236A(a)(3), within 48 hours of the arrest or 
     detention of such alien. Any alien, except those certified 
     under section 236A(a)(3), held for more than 48 hours shall 
     be brought before an immigration judge within 72 hours of the 
     arrest or detention of such alien. The Secretary of Homeland 
     Security shall--
       ``(1) document when a notice to appear is served on a 
     detainee in order to determine compliance by the Department 
     of Homeland Security with the 48-hour notice requirement; and
       ``(2) submit to the Committees on the Judiciary of the 
     Senate and the House of Representatives an annual report 
     concerning the Department of Homeland Security's compliance 
     with such notice requirement.''.
       (b) Applicability of Other Law.--Nothing in section 236(f) 
     of the Immigration and Nationality Act, as added by 
     subsection (a), shall be construed to repeal section 236A of 
     such Act (8 U.S.C. 1226a).

     SEC. 202. INDIVIDUALIZED BOND DETERMINATIONS.

       (a) In General.--Section 236(a) of the Immigration and 
     Nationality Act (8 U.S.C. 1226(a)) is amended--
       (1) by striking ``On a warrant'' and inserting the 
     following:
       ``(1) In general.--On a warrant'';
       (2) by striking ``Except as provided'' and all that follows 
     through the end and inserting the following: ``This 
     subsection shall apply to all aliens detained pending a 
     decision on their removal or admission, regardless of whether 
     or not they have been admitted to the United States, 
     including any alien found to have a credible fear of 
     persecution under section 235(b)(1)(B) or any alien admitted 
     or seeking admission under the visa waiver program pursuant 
     to section 217. Except as provided in subsection (c) and 
     pending such decision, the Secretary of Homeland Security 
     shall--
       ``(A) make an individualized determination as to whether 
     the alien should be released pending administrative and 
     judicial review, to include a determination of whether the 
     alien poses a danger to the safety of other persons or 
     property and is likely to appear for future scheduled 
     proceedings; and
       ``(B) grant the alien release pending administrative and 
     judicial review under reasonable bond or other conditions, 
     including conditional parole, that will reasonably assure the 
     presence of the alien at all future proceedings, unless the 
     Secretary of Homeland Security determines under subparagraph 
     (A) that the alien poses a danger to the safety of other 
     persons or property or is unlikely to appear for future 
     proceedings.
       ``(2) Individualized determinations.--An individualized 
     determination made by the Secretary of Homeland Security 
     pursuant to paragraph (1)(A) shall be reviewable at a hearing 
     held before an immigration judge pursuant to section 240. An 
     immigration judge who reviews an initial bond determination 
     by the Secretary of Homeland Security, or who makes a bond 
     determination prior to a decision by the Secretary of 
     Homeland Security, shall apply the same standards set forth 
     in subparagraphs (A) and (B) of paragraph (1).''.
       (b) Revocation of Bond or Parole.--Section 236(b) of the 
     Immigration and Nationality Act (8 U.S.C. 1226(b)) is amended 
     by striking ``The Attorney General'' and all that follows 
     through the period and inserting the following: ``The bond or 
     parole determination made pursuant to subsection (a)(1)(B) 
     may be revoked or modified only by an immigration judge in 
     proceedings held pursuant to section 240, and only if the 
     party seeking to revoke or modify the bond or parole 
     determination can establish a change in circumstances. The 
     administrative decision finding the alien removable does not, 
     in and of itself, constitute a change in circumstances. At 
     such a hearing, if changed circumstances are established, the 
     immigration judge shall make a new individualized 
     determination in the manner described in subsection (a).''.
       (c) Technical and Conforming Amendments.--Section 236 of 
     the Immigration and Nationality Act (8 U.S.C. 1226) is 
     amended--
       (1) by striking ``Attorney General'' each place that term 
     appears and inserting ``Secretary of Homeland Security''; and
       (2) in subsection (e), by striking ``Attorney General's'' 
     and inserting ``Secretary of Homeland Security's''.

     SEC. 203. LIMITATION ON STAY OF A BOND.

       Section 236 of the Immigration and Nationality Act (8 
     U.S.C. 1226), as amended by section 201, is further amended 
     by adding at the end the following:
       ``(g) Stay of a Bond Determination.--An order issued by an 
     immigration judge to release an alien may be stayed by the 
     Board of Immigration Review, for not more than 30 days, only 
     if the Government demonstrates--
       ``(1) the likelihood of success on the merits;
       ``(2) irreparable harm to the Government if a stay is not 
     granted;
       ``(3) that the potential harm to the Government outweighs 
     potential harm to alien; and
       ``(4) that the grant of a stay is in the interest of the 
     public.''.

[[Page S6892]]

     SEC. 204. IMMIGRATION REVIEW COMMISSION.

       (a) Establishment of Commission.--
       (1) In general.--There is established within the Department 
     of Justice an independent regulatory agency to be known as 
     the Immigration Review Commission (referred to in this 
     section as the ``Commission''). The Executive Office of 
     Immigration Review is hereby abolished and replaced with such 
     Commission.
       (2) Transfer of authority.--The Commission shall perform 
     all administrative, appellate, and adjudicatory functions 
     that were, prior to the date of enactment of this Act, the 
     functions of the Executive Office of Immigration Review or 
     were performed by any officer or employee of the Executive 
     Office of Immigration Review in the capacity of such officer 
     or employee. Such functions shall not include the policy-
     making, policy-implementation, investigatory, or 
     prosecutorial functions of the Department of Homeland 
     Security.
       (3) Organization.--The Commission shall consist of:
       (A) The Office of the Director.
       (B) The Board of Immigration Review.
       (C) The Office of the Chief Immigration Judge.
       (D) The Office of the Chief Administrative Hearing Officer.
       (b) Office of the Director.--
       (1) Appointment.--There shall be as the head of the 
     Commission, a Director who shall be appointed by the 
     President with the advice and consent of the Senate.
       (2) Transfer of offices.--The following officers shall be 
     transferred from the Executive Office for Immigration Review 
     to the Office of the Director for the Commission:
       (A) Deputy Director.
       (B) General Counsel.
       (C) Pro Bono Coordinator.
       (D) Public Affairs.
       (E) Assistant Director of Management Programs.
       (F) Equal Employment Opportunity.
       (3) Responsibilities.--
       (A) The Director shall oversee the administration of the 
     Commission, and the creation of rules and regulations 
     affecting the administration of the courts.
       (B) The Director shall appoint a Deputy Director to assist 
     with the duties of the Director and shall have the power to 
     appoint such administrative assistants, attorneys, clerks, 
     and other personnel as may be needed.
       (c) Board of Immigration Review.--
       (1) In general.--The Board of Immigration Review (referred 
     to in this section as the ``Board'') shall perform the 
     appellate functions of the Commission.
       (2) Appointment.--The Board shall be composed of a 
     Chairperson and not less than 14 other immigration appeals 
     judges, appointed by the President, in consultation with the 
     Director. The term of office of each member of the Board 
     shall be 6 years.
       (3) Current members.--Each individual who is serving as a 
     member of the Board on the date of enactment of this Act 
     shall be appointed to the Board utilizing a system of 
     staggered terms of appointment based on seniority.
       (4) Members.--The Chairperson and each other member of the 
     Board shall be an attorney in good standing of a bar of a 
     State or the District of Columbia and shall have at least 7 
     years of professional, legal expertise in immigration and 
     nationality law.
       (5) Chairperson duties.--The Chairperson shall--
       (A) be responsible, on behalf of the Board, for the 
     administrative operations of the Board and shall have the 
     power to appoint such administrative assistants, attorneys, 
     clerks, and other personnel as may be needed for that 
     purpose;
       (B) direct, supervise, and establish internal operating 
     procedures and policies of the Board; and
       (C) designate a member of the Board to act as Chairperson 
     in the Chairperson's absence or unavailability.
       (6) Board members duties.--In deciding the cases before the 
     Board, the Board shall exercise its independent judgment and 
     discretion and may take any action, consistent with its 
     authorities under this section and regulations established in 
     accordance with this section, that is appropriate and 
     necessary for the disposition of such cases.
       (7) Jurisdiction.--The Board shall have--
       (A) such jurisdiction as was, prior to the date of 
     enactment of this Act, provided by statute or regulation to 
     the Board of Immigration Appeals;
       (B) de novo review of any decision by an immigration judge, 
     and any final order of removal; and
       (C) retention of jurisdiction over any case of an alien 
     removed by the United States if the alien's case was pending 
     for consideration before the Board prior to removal of the 
     alien.
       (8) Acting in panels.--
       (A) In general.--All cases shall be subject to review by a 
     3 member panel. The Chairperson shall divide the Board into 3 
     member panels and designate a presiding member of each panel 
     such that--
       (i) a majority of the number of Board members authorized to 
     constitute a panel shall constitute a quorum for such panel; 
     and
       (ii) each panel may exercise the appropriate authority of 
     the Board that is necessary for the adjudication of cases 
     before it.
       (B) Final decision.--A final decision of a panel shall be 
     considered to be a final decision of the Board.
       (9) En banc process.--
       (A) In general.--The Board may on its own motion, by a 
     majority vote of the Board members, or by direction of the 
     Chairperson, consider any case as the full Board en banc, or 
     reconsider as the full Board en banc any case that has been 
     considered or decided by a 3-member panel or by a limited en 
     banc panel.
       (B) Quorum.--A majority of the Board members shall 
     constitute a quorum of the Board sitting en banc.
       (10) Decisions of the board.--
       (A) In general.--The decisions of the Board shall 
     constitute final agency action. The precedent decisions of 
     the Board shall be binding on the Department of Homeland 
     Security and the immigration judges.
       (B) Affirmance without opinion.--Upon individualized review 
     of a case, the Board may affirm the decision of an 
     immigration judge without opinion only if the decision of the 
     immigration judge resolved all issues in the case. An 
     affirmance without opinion signifies the Board's adoption of 
     the immigration judge's findings and conclusion in total.
       (C) Notice of appeal.--The decision by the Board shall 
     include notice to the alien of the alien's right to file a 
     petition for review in the court of appeals within 30 days of 
     the date of the decision.
       (d) Office of the Chief Immigration Judge.--
       (1) Establishment of office.--There is established within 
     the Commission an Office of the Chief Immigration Judge to 
     oversee all the immigration courts and their proceedings 
     throughout the United States. The head of the office shall be 
     the Chief Immigration Judge who shall be appointed by the 
     Director.
       (2) Duties of the chief immigration judge.--The Chief 
     Immigration Judge shall be responsible for the general 
     supervision, direction, and procurement of resources and 
     facilities, and for the coordination of the schedules of 
     immigration judges to enable the judges to conduct the 
     various programs assigned to them. The Chief Immigration 
     Judge may be assisted by a Deputy Chief Immigration Judge and 
     Assistant Chief Immigration Judge.
       (3) Appointment of immigration judges.--
       (A) In general.--Immigration judges shall be appointed by 
     the Director, in consultation with the Chief Immigration 
     Judge and the Chair of the Board of Immigration Review. The 
     term of each immigration judge shall be 12 years.
       (B) Qualifications.--Each immigration judge, including the 
     Chief Immigration Judge, shall be an attorney in good 
     standing of a bar of a State or the District of Columbia and 
     shall have at least 7 years of professional, legal expertise 
     in immigration and nationality law.
       (C) Current members.--Each individual who is serving as an 
     immigration judge on the date of enactment of this Act shall 
     be appointed as an immigration judge utilizing a system of 
     staggered terms of appointment based on seniority.
       (4) Duties of immigration judges.--In deciding the cases 
     before them, immigration judges shall exercise their 
     independent judgment and discretion and may take any action, 
     consistent with their authorities under this section and 
     regulations established in accordance with this section, that 
     is appropriate and necessary for the disposition of such 
     cases.
       (5) Jurisdiction and authority of immigration courts.--The 
     Immigration Courts shall have such jurisdiction as was, prior 
     to the date of enactment of this Act, provided by statute or 
     regulation to the Immigration Courts within the Executive 
     Office for Immigration Review.
       (6) Contempt authority.--The contempt authority provided to 
     immigration judges under section 240(b)(1) of the Immigration 
     and Nationality Act (8 U.S.C. 1229a(b)(1)) shall--
       (A) be implemented by regulation not later than 120 days 
     after the date of enactment of this Act;
       (B) provide that any contempt sanctions, including any 
     civil money penalty, shall be applicable to all parties 
     appearing before the immigration judge and shall be imposed 
     by a single process applicable to all parties.
       (e) Office of the Chief Administrative Hearing Officer.--
       (1) In general.--The Office of the Chief Administrative 
     Hearing Officer shall be headed by a Chief Administrative 
     Hearing Officer who shall be appointed by the Director.
       (2) Duties and responsibilities.--The duties and 
     responsibilities of the current Office of the Chief 
     Administrative Hearing Officer shall be transferred to the 
     Commission.
       (f) Removal and Review of Judges.--
       (1) In general.--Immigration judges and members of the 
     Board of Immigration Review may be removed from office only 
     for good cause--
       (A) by the Director, in consultation with the Chair of the 
     Board, in the case of the removal of a member of the Board; 
     or
       (B) by the Director, in consultation with the Chief 
     Immigration Judge, in the case of the removal of an 
     immigration judge.
       (2) Independent judgment.--No immigration judge or member 
     of the Board shall be removed or otherwise subject to 
     disciplinary or adverse action for their exercise of 
     independent judgment and discretion as prescribed by 
     subsections (c)(6) and (d)(4).
       (g) Regulations.--Not later than 180 days after the date of 
     enactment of this Act, the

[[Page S6893]]

     Director shall issue regulations to implement this section.

                  TITLE III--EFFECTIVE LAW ENFORCEMENT

     SEC. 301. TERMINATION OF THE NSEERS PROGRAM; ESTABLISHMENT OF 
                   REASONABLE PENALTIES FOR FAILURE TO REGISTER.

       (a) Termination of NSEERS.--
       (1) In General.--The National Security Entry-Exit 
     Registration System (NSEERS) program administered by the 
     Secretary of Homeland Security is hereby terminated.
       (2) Integrated entry and exit data system.--Nothing in this 
     section shall amend the Integrated Entry and Exit Data System 
     established in accordance with section 110 of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1365a).
       (3) Administrative closure of removal proceedings.--
       (A) In general.--All removal proceedings initiated against 
     any alien as a result of the NSEERS program shall be 
     administratively closed. This paragraph shall apply to all 
     aliens who were--
       (i) placed in removal proceedings solely for failure to 
     comply with the requirements of the NSEERS program; or
       (ii) placed in removal proceedings while complying with the 
     requirements of the NSEERS program and--

       (I) had a pending application before the Department of 
     Labor or the Department of Homeland Security for which there 
     is a visa available;
       (II) did not have a pending application before the 
     Department of Labor or the Department of Homeland Security 
     for which there is a visa available but were eligible for an 
     immigration benefit; or
       (III) were eligible to apply for other forms of relief from 
     removal.

       (B) Exceptions.--This paragraph shall not apply in cases in 
     which the aliens are removable under--
       (i) section 212(a)(3) of the Immigration and Nationality 
     Act (8 U.S.C. 1182(a)(3)); or
       (ii) paragraph (2) or (4) of section 237(a) of that Act (8 
     U.S.C. 1227(a)(2) or (4)).
       (4) Motions to reopen.--Notwithstanding any limitations 
     imposed by law on motions to reopen removal proceedings, any 
     alien who received a final order of removal as a result of 
     the NSEERS program shall be eligible to file a motion to 
     reopen the removal proceeding and apply for any relief from 
     removal that such alien may be eligible to receive.

     SEC. 302. EXERCISE OF PROSECUTORIAL DISCRETION.

       (a) Sense of Congress Regarding Prosecutorial Discretion.--
       (1) Findings.--Congress finds the following:
       (A) Exercising prosecutorial discretion is not an 
     invitation to violate or ignore the law, rather it is a means 
     by which the resources of the Secretary of Homeland Security 
     may be used to best accomplish the mission of the Department 
     of Homeland Security in administering and enforcing the 
     immigration laws of the United States.
       (B) Although a favorable exercise of discretion by any 
     office within the Department of Homeland Security should be 
     respected by other offices of such Department, unless the 
     facts and circumstances in a specific case have changed, the 
     exercise of prosecutorial discretion does not grant lawful 
     status under the immigration laws, and there is no legally 
     enforceable right to the exercise of prosecutorial 
     discretion.
       (2) Sense of Congress.--It is the sense of Congress that 
     the exercise of prosecutorial discretion does not lessen the 
     commitment of the Secretary of Homeland Security to enforce 
     the immigration laws to the best of the Secretary's ability.
       (b) Prosecutorial Discretion.--The Secretary of Homeland 
     Security shall exercise prosecutorial discretion in deciding 
     whether to exercise its enforcement powers against an alien. 
     This discretion includes--
       (1) focusing investigative resources on particular offenses 
     or conduct;
       (2) deciding whom to stop, question, and arrest;
       (3) deciding whether to detain certain aliens who are in 
     custody;
       (4) settling or dismissing a removal proceeding;
       (5) granting deferred action or staying a final removal 
     order;
       (6) agreeing to voluntary departure, permitting withdrawal 
     of an application for admission, or taking other action in 
     lieu of removing an alien;
       (7) pursuing an appeal; or
       (8) executing a removal order.
       (c) Factors for Consideration.--The factors that shall be 
     taken into account in deciding whether to exercise 
     prosecutorial discretion favorably toward an alien include--
       (1) the immigration status of the alien;
       (2) the length of residence in the United States of the 
     alien;
       (3) the criminal history of the alien;
       (4) humanitarian concerns;
       (5) the immigration history of the alien;
       (6) the likelihood of ultimately removing the alien;
       (7) the likelihood of achieving the enforcement goal by 
     other means;
       (8) whether the alien is eligible or is likely to become 
     eligible for other relief;
       (9) the effect of such action on the future admissibility 
     of the alien;
       (10) current or past cooperation by the alien with law 
     enforcement authorities;
       (11) honorable service by the alien in the United States 
     military;
       (12) community attention; and
       (13) resources available to the Department of Homeland 
     Security.

     SEC. 303. CIVIL PENALTIES FOR TECHNICAL VIOLATIONS OF 
                   REGISTRATION REQUIREMENTS.

       (a) Registration Penalties.--Section 266(a) of the 
     Immigration and Nationality Act (8 U.S.C. 1306(a)) is amended 
     by striking ``Any alien'' and all that follows through the 
     period and inserting the following: ``(1) A civil penalty 
     shall be imposed, in accordance with paragraph (2), on any 
     alien who is required to apply for registration and be 
     fingerprinted under section 262 or 263, who willfully fails 
     or refuses to make such application or be fingerprinted, and 
     any parent or legal guardian required to apply for the 
     registration of any alien who willfully fails or refuses to 
     file application for the registration of such alien as 
     required by such section.
       ``(2) The Secretary of Homeland Security may levy a civil 
     monetary penalty of up to--
       ``(A) $100 for a first violation of section 262 or 263;
       ``(B) $500 for a second violation of section 262 or 263; 
     and
       ``(C) $1,000 for each subsequent violation of section 262 
     or 263 after the second violation.
       (b) Other Penalties.--Section 266(b) of the Immigration and 
     Nationality Act (8 U.S.C. 1306(b)) is amended to read as 
     follows:
       ``(b)(1) A penalty shall be imposed, in accordance with 
     paragraph (2), on any alien or the parent or legal guardian 
     in the United States of any alien who fails to submit written 
     notice to the Secretary of Homeland Security as required by 
     section 265. No penalty shall be imposed with respect to a 
     failure to submit such notice if the alien establishes that 
     such failure was reasonably excusable or was not willful.
       ``(2) Except as provided in paragraphs (4) and (5), the 
     Secretary of Homeland Security shall levy a civil monetary 
     penalty of--
       ``(A) up to $100 against an alien who fails to submit 
     written notice in compliance with section 265;
       ``(B) up to $500 against an alien for a second violation of 
     section 265; and
       ``(C) up to $1,000 for each subsequent violation of section 
     265 after the second violation.
       ``(3) Notwithstanding any other provision of this Act, no 
     change of immigration status shall result from failure to 
     submit written notice as required by section 265.
       ``(4) During the transition period, a failure to comply 
     with section 265 shall not result in a penalty or a change in 
     immigration status. At the conclusion of the transition 
     period, the Secretary of Homeland Security shall collect and 
     maintain statistics concerning all enforcement actions 
     related to this subsection.
       ``(5) The penalties imposed under this subsection shall not 
     apply to an alien who previously failed to submit a change of 
     address prior to the date of enactment of the Civil Liberties 
     Restoration Act of 2004 or the end of the transition period 
     if the alien submits a change of address within 6 months 
     after the end of the transition period. A penalty shall be 
     imposed, in accordance with paragraph (2), on any alien who 
     fails to submit a change of address within the 6-month period 
     following the transition period.
       ``(6) In this subsection, the term `transition period' 
     means the period beginning on the date of enactment of the 
     Civil Liberties Restoration Act of 2004 and ending 1 year 
     after the date of enactment of such Act, at which time the 
     Secretary of Homeland Security shall implement a system to 
     record and preserve on a timely basis addresses provided 
     under section 265.''.

     SEC. 304. NCIC COMPLIANCE WITH THE PRIVACY ACT.

       Data entered into the National Crime Information Center 
     database must meet the accuracy requirements of section 552a 
     of title 5, United States Code (commonly referred to as the 
     ``Privacy Act'').

 TITLE IV--PROTECTING PRIVACY AND ENSURING DUE PROCESS FOR TARGETS OF 
                              SURVEILLANCE

     SEC. 401. MODIFICATION OF AUTHORITIES ON REVIEW OF MOTIONS TO 
                   DISCOVER MATERIALS UNDER FOREIGN INTELLIGENCE 
                   SURVEILLANCE ACT OF 1978.

       (a) Electronic Surveillance.--Section 106(f) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1806(f)) is 
     amended--
       (1) in the first sentence, by striking ``shall,'' and 
     inserting ``may,''; and
       (2) by striking the last sentence and inserting the 
     following new sentence: ``In making this determination, the 
     court shall disclose, if otherwise discoverable, to the 
     aggrieved person, the counsel of the aggrieved person, or 
     both, under the procedures and standards provided in the 
     Classified Information Procedures Act (18 U.S.C. App.), 
     portions of the application, order, or other materials 
     relating to the surveillance unless the court finds that such 
     disclosure would not assist in determining any legal or 
     factual issue pertinent to the case.''.
       (b) Physical Searches.--Section 305(g) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1825(g)) is 
     amended--
       (1) in the first sentence, by striking ``shall,'' and 
     inserting ``may,''; and
       (2) by striking the last sentence and inserting the 
     following new sentence: ``In making this determination, the 
     court shall disclose, if otherwise discoverable, to the 
     aggrieved person, the counsel of the aggrieved person,

[[Page S6894]]

     or both, under the procedures and standards provided in the 
     Classified Information Procedures Act (18 U.S.C. App.), 
     portions of the application, order, or other materials 
     relating to the physical search, or may require the Attorney 
     General to provide to the aggrieved person, the counsel of 
     the aggrieved person, or both a summary of such materials 
     unless the court finds that such disclosure would not assist 
     in determining any legal or factual issue pertinent to the 
     case.''.
       (c) Pen Registers and Trap and Trace Devices.--Section 
     405(f) of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1845(f)) is amended by striking paragraph (2) and 
     inserting the following:
       ``(2) Unless the court finds that such disclosure would not 
     assist in determining any legal or factual issue pertinent to 
     the case, the court shall disclose, if otherwise 
     discoverable, to the aggrieved person, the counsel of the 
     aggrieved person, or both, under the procedures and standards 
     provided in the Classified Information Procedures Act (18 
     U.S.C. App.), portions of the application, order, or other 
     materials relating to the use of the pen register or trap and 
     trace device, as the case may be, or evidence or information 
     obtained or derived from the use of a pen register or trap 
     and trace device, as the case may be.''.
       (d) Disclosure of Certain Business Records.--(1) Title V of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1861 et seq.) is amended--
       (A) by redesignating section 502 as section 503; and
       (B) by inserting after section 501 the following new 
     section:


  ``disclosure of certain business records and items governed by the 
                 classified information procedures act

       ``Sec. 502. Any disclosure of applications, information, or 
     items submitted or acquired pursuant to an order issued under 
     section 501, if such information is otherwise discoverable, 
     shall be conducted under the procedures and standards 
     provided in the Classified Information Procedures Act (18 
     U.S.C. App.).''.
       (2) The table of sections for that Act is amended by 
     striking the item relating to section 502 and inserting the 
     following new items:

``Sec. 502. Disclosure of certain business records and items governed 
              by the Classified Information Procedures Act.
``Sec. 503. Congressional oversight.''.

     SEC. 402. DATA-MINING REPORT.

       (a) Definitions.--In this section:
       (1) Data-mining.--The term ``data-mining'' means a query or 
     search or other analysis of 1 or more electronic databases, 
     where--
       (A) at least 1 of the databases was obtained from or 
     remains under the control of a non-Federal entity, or the 
     information was acquired initially by another department or 
     agency of the Federal Government for purposes other than 
     intelligence or law enforcement;
       (B) the search does not use a specific individual's 
     personal identifiers to acquire information concerning that 
     individual; and
       (C) a department or agency of the Federal Government is 
     conducting the query or search or other analysis to find a 
     pattern indicating terrorist or other criminal activity.
       (2) Database.--The term ``database'' does not include 
     telephone directories, information publicly available via the 
     Internet or available by any other means to any member of the 
     public without payment of a fee, or databases of judicial and 
     administrative opinions.
       (b) Reports on Data-Mining Activities.--
       (1) Requirement for report.--The head of each department or 
     agency of the Federal Government that is engaged in any 
     activity to use or develop data-mining technology shall each 
     submit a public report to Congress on all such activities of 
     the department or agency under the jurisdiction of that 
     official.
       (2) Content of report.--A report submitted under paragraph 
     (1) shall include, for each activity to use or develop data-
     mining technology that is required to be covered by the 
     report, the following information:
       (A) A thorough description of the data-mining technology 
     and the data that will be used.
       (B) A thorough discussion of the plans for the use of such 
     technology and the target dates for the deployment of the 
     data-mining technology.
       (C) An assessment of the likely efficacy of the data-mining 
     technology in providing accurate and valuable information 
     consistent with the stated plans for the use of the 
     technology.
       (D) An assessment of the likely impact of the 
     implementation of the data-mining technology on privacy and 
     civil liberties.
       (E) A list and analysis of the laws and regulations that 
     govern the information to be collected, reviewed, gathered, 
     and analyzed with the data-mining technology and a 
     description of any modifications of such laws that will be 
     required to use the information in the manner proposed under 
     such program.
       (F) A thorough discussion of the policies, procedures, and 
     guidelines that are to be developed and applied in the use of 
     such technology for data-mining in order to--
       (i) protect the privacy and due process rights of 
     individuals; and
       (ii) ensure that only accurate information is collected and 
     used.
       (G) A thorough discussion of the procedures allowing 
     individuals whose personal information will be used in the 
     data-mining technology to be informed of the use of their 
     personal information and what procedures are in place to 
     allow for individuals to opt out of the technology. If no 
     such procedures are in place, a thorough explanation as to 
     why not.
       (H) Any necessary classified information in an annex that 
     shall be available to the Committee on Governmental Affairs, 
     the Committee on the Judiciary, and the Committee on 
     Appropriations of the Senate and the Committee on Homeland 
     Security, the Committee on the Judiciary, and the Committee 
     on Appropriations of the House of Representatives.
       (3) Time for report.--Each report required under paragraph 
     (1) shall be--
       (A) submitted not later than 90 days after the date of 
     enactment of this Act; and
       (B) updated once a year and include any new data-mining 
     technologies.
                                 ______