[Congressional Record Volume 152, Number 62 (Thursday, May 18, 2006)]
[Senate]
[Pages S4808-S4811]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         CORRECTED TEXT OF AMENDMENT SUBMITTED ON MAY 17, 2006

  SA 4052. Mr. KYL submitted an amendment intended to be proposed by 
him to the bill S. 2611, to provide for comprehensive immigration 
reform and for other purposes; which was ordered to lie on the table; 
as follows:

       On page 345, strike line 10 and all that follows through 
     page 395, line 23, and insert the following:

      Subtitle A--Mandatory Departure and Reentry in Legal Status

     SEC. 601. MANDATORY DEPARTURE AND REENTRY IN LEGAL STATUS.

       (a) In General.--Title II (8 U.S.C. 1151 et seq.) is 
     amended by inserting after section 218C, as added by section 
     405, the following:

     ``SEC. 218D. MANDATORY DEPARTURE AND REENTRY.

       ``(a) In General.--The Secretary of Homeland Security may 
     grant Deferred Mandatory Departure status to aliens who are 
     in the United States illegally to allow such aliens time to 
     depart the United States and to seek admission as a 
     nonimmigrant or immigrant alien.
       ``(b) Requirements.--

[[Page S4809]]

       ``(1) Presence.--An alien shall establish that the alien--
       ``(A) was physically present in the United States on the 
     date that is 1 year before the date on which the 
     Comprehensive Immigration Reform Act of 2006 was introduced 
     in Congress; and
       ``(B) has been continuously in the United States since that 
     date; and
       ``(C) was not legally present in the United States under 
     any classification set forth in section 101(a)(15) on that 
     date.
       ``(2) Employment.--An alien must establish that the alien--
       ``(A) was employed in the United States before the date on 
     which the Comprehensive Immigration Reform Act of 2006 was 
     introduced in Congress; and
       ``(B) has been employed in the United States since that 
     date.
       ``(3) Admissibility.--
       ``(A) In general.--The alien must establish that the 
     alien--
       ``(i) is admissible to the United States (except as 
     provided in subparagraph (B)); and
       ``(ii) has not assisted in the persecution of any person or 
     persons on account of race, religion, nationality, membership 
     in a particular social group, or political opinion.
       ``(B) Grounds not applicable.--The provisions of paragraphs 
     (5), (6)(A), and (7) of section 212(a) shall not apply.
       ``(C) Waiver.--The Secretary of Homeland Security may waive 
     any other provision of section 212(a), or a ground of 
     ineligibility under paragraph (4), as applied to individual 
     aliens--
       ``(i) for humanitarian purposes;
       ``(ii) to assure family unity; or
       ``(iii) if such waiver is otherwise in the public interest.
       ``(4) Ineligible.--An alien is ineligible for Deferred 
     Mandatory Departure status if the alien--
       ``(A) has been ordered removed from the United States--(i) 
     for overstaying the period of authorized admission under 
     section 217; (ii) under section 235 or 238; or (iii) pursuant 
     to a final order of removal under section 240;
       ``(B) failed to depart the United States during the period 
     of a voluntary departure order under section 240B;
       ``(C) is subject to section 241(a)(5);
       ``(D) has been issued a notice to appear under section 239, 
     unless the sole acts of conduct alleged to be in violation of 
     the law are that the alien is removable under section 
     237(a)(1)(C) or inadmissible under section 212(a)(6)(A);
       ``(E) is a resident of a country for which the Secretary of 
     State has made a determination that the government of such 
     country has repeatedly provided support for acts of 
     international terrorism under section 6(j) of the Export 
     Administration Act of 1979 (50 U.S.C. App. 2405(j)) or under 
     section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 
     2371);
       ``(F) fails to comply with any request for information by 
     the Secretary of Homeland Security; or
       ``(G) the Secretary of Homeland Security determines that--
     (i) the alien, having been convicted by a final judgment of a 
     serious crime, constitutes a danger to the community of the 
     United States; (ii) there are reasonable grounds for 
     believing that the alien has committed a serious crime 
     outside the United States prior to the arrival of the alien 
     in the United States; or (iii) there are reasonable grounds 
     for regarding the alien as a danger to the security of the 
     United States; or
       ``(H) the alien has been convicted of a felony or 3 or more 
     misdemeanors.
       ``(I) Exception.--Notwithstanding subparagraphs (A) and 
     (B), an alien who has not been ordered removed from the 
     United States shall remain eligible for Deferred Mandatory 
     Departure status if the alien's ineligibility under 
     subparagraphs (A) and (B) is solely related to the alien's--
     (i) entry into the United States without inspection; (ii) 
     remaining in the United States beyond the period of 
     authorized admissions; or (iii) failure to maintain legal 
     status while in the United States.
       (J) Waiver.--The Secretary may, in the Secretary's sole and 
     unreviewable discretion, waive the application of 
     subparagraphs (A) and (B) if the alien was ordered removed on 
     the basis that the alien--(i) entered without inspection; 
     (ii) failed to maintain status, or (iii) was ordered removed 
     under 212(a)(6)(c)(i) prior to April 7, 2006, and--(i) 
     demonstrates that the alien did not receive notice of removal 
     proceedings in accordance with paragraph (1) or (2) of 
     section 239(a); or (ii) establishes that the alien's failure 
     to appear was due to exceptional circumstances beyond the 
     control of the alien; or (iii) the alien's departure from the 
     United States now would result in extreme hardship to the 
     alien's spouse, parent, or child who is a citizen of the 
     United States or an alien lawfully admitted for permanent 
     residence.
       ``(5) Medical examination.--The alien may be required, at 
     the alien's expense, to undergo an appropriate medical 
     examination (including a determination of immunization 
     status) that conforms to generally accepted professional 
     standards of medical practice.
       ``(6) Termination.--The Secretary of Homeland Security may 
     terminate an alien's Deferred Mandatory Departure status--
       ``(A) if the Secretary determines that the alien was not 
     eligible for such status; or
       ``(B) if the alien commits an act that makes the alien 
     removable from the United States.
       ``(7) Application content and waiver.--
       ``(A) Application form.--The Secretary of Homeland Security 
     shall create an application form that an alien shall be 
     required to complete as a condition of obtaining Deferred 
     Mandatory Departure status.
       ``(B) Content.--In addition to any other information that 
     the Secretary determines is required to determine an alien's 
     eligibility for Deferred Mandatory Departure, the Secretary 
     shall require an alien to answer questions concerning the 
     alien's physical and mental health, criminal history and gang 
     membership, immigration history, involvement with groups or 
     individuals that have engaged in terrorism, genocide, 
     persecution, or who seek the overthrow of the United States 
     government, voter registration history, claims to United 
     States citizenship, and tax history.
       ``(C) Waiver.--The Secretary of Homeland Security shall 
     require an alien to include with the application a waiver of 
     rights that explains to the alien that, in exchange for the 
     discretionary benefit of obtaining Deferred Mandatory 
     Departure status, the alien agrees to waive any right to 
     administrative or judicial review or appeal of an immigration 
     officer's determination as to the alien's eligibility, or to 
     contest any removal action, other than on the basis of an 
     application for asylum pursuant to the provisions contained 
     in section 208 or 241(b)(3), or under the Convention Against 
     Torture and Other Cruel, Inhuman or Degrading Treatment or 
     Punishment, done at New York December 10, 1984.
       ``(D) Knowledge.--The Secretary of Homeland Security shall 
     require an alien to include with the application a signed 
     certification in which the alien certifies that the alien has 
     read and understood all of the questions and statements on 
     the application form, and that the alien certifies under 
     penalty of perjury under the laws of the United States that 
     the application, and any evidence submitted with it, are all 
     true and correct, and that the applicant authorizes the 
     release of any information contained in the application and 
     any attached evidence for law enforcement purposes.
       ``(c) Implementation and Application Time Periods.--
       ``(1) In general.--The Secretary of Homeland Security shall 
     ensure that the application process is secure and 
     incorporates anti-fraud protection. The Secretary shall 
     interview an alien to determine eligibility for Deferred 
     Mandatory Departure status and shall utilize biometric 
     authentication at time of document issuance.
       ``(2) Initial receipt of applications.--The Secretary of 
     Homeland Security shall begin accepting applications for 
     Deferred Mandatory Departure status not later than 3 months 
     after the date of the enactment of the Comprehensive 
     Immigration Reform Act of 2006.
       ``(3) Application.--An alien shall submit an initial 
     application for Deferred Mandatory Departure status not later 
     than 6 months after the date of the enactment of the 
     Comprehensive Immigration Reform Act of 2006. An alien that 
     fails to comply with this requirement is ineligible for 
     Deferred Mandatory Departure status.
       ``(4) Completion of processing.--The Secretary of Homeland 
     Security shall ensure that all applications for Deferred 
     Mandatory Departure status are processed not later than 12 
     months after the date of the enactment of the Comprehensive 
     Immigration Reform Act of 2006.
       ``(d) Security and Law Enforcement Background Checks.--An 
     alien may not be granted Deferred Mandatory Departure status 
     unless the alien submits biometric data in accordance with 
     procedures established by the Secretary of Homeland Security. 
     The Secretary of Homeland Security may not grant Deferred 
     Mandatory Departure status until all appropriate background 
     checks are completed to the satisfaction of the Secretary of 
     Homeland Security.
       ``(e) Acknowledgment.--An alien who applies for Deferred 
     Mandatory Departure status shall submit to the Secretary of 
     Homeland Security--
       ``(1) an acknowledgment made in writing and under oath that 
     the alien--
       ``(A) is unlawfully present in the United States and 
     subject to removal or deportation, as appropriate, under this 
     Act; and
       ``(B) understands the terms of the terms of Deferred 
     Mandatory Departure;
       ``(2) any Social Security account number or card in the 
     possession of the alien or relied upon by the alien;
       ``(3) any false or fraudulent documents in the alien's 
     possession.
       ``(f) Mandatory Departure.--
       ``(1) In general.--The Secretary of Homeland Security may, 
     in the Secretary's sole and unreviewable discretion, grant 
     Deferred Mandatory Departure status to an alien for a period 
     not to exceed 5 years.
       ``(2) Registration at time of departure.--An alien granted 
     Deferred Mandatory Departure shall--
       ``(A) depart the United States before the expiration of the 
     period of Deferred Mandatory Departure status;
       ``(B) register with the Secretary of Homeland Security at 
     the time of departure; and
       ``(C) surrender any evidence of Deferred Mandatory 
     Departure status at time of departure.
       ``(3) Return in legal status.--An alien who complies with 
     the terms of Deferred Mandatory Departure status and departs 
     before the expiration of such status--
       ``(A) shall not be subject to section 212(a)(9)(B); and
       ``(B) may immediately seek admission as a nonimmigrant or 
     immigrant, if otherwise eligible.

[[Page S4810]]

       ``(4) Failure to depart.--An alien who fails to depart the 
     United States before the expiration of Deferred Mandatory 
     Departure status is not eligible and may not apply for or 
     receive any immigration relief or benefit under this Act or 
     any other law for a period of 10 years, except as provided 
     under section 208 or 241(b)(3) or the Convention Against 
     Torture and Other Cruel, Inhuman or Degrading Treatment or 
     Punishment, done at New York December 10, 1984, in the case 
     of an alien who indicates an intention to apply for asylum 
     under section 208 or a fear of persecution or torture.
       ``(5) Penalties for delayed departure.--An alien who fails 
     to immediately depart the United States shall be subject to--
       ``(A) no fine if the alien departs the United States not 
     later than 1 year after being granted Deferred Mandatory 
     Departure status;
       ``(B) a fine of $2,000 if the alien remains in the United 
     States for more than 1 year and not more than 2 years after 
     being granted Deferred Mandatory Departure status;
       ``(C) a fine of $3,000 if the alien remains in the United 
     States for more than 2 years and not more than 3 years after 
     being granted Deferred Mandatory Departure status;
       ``(D) a fine of $4,000 if the alien remains in the United 
     States for more than 3 years and not more than 4 years after 
     being granted Deferred Mandatory Departure status; and
       ``(E) a fine of $5,000 if the alien remains in the United 
     States for more than 4 years after being granted Deferred 
     Mandatory Departure status.
       ``(g) Evidence of Deferred Mandatory Departure Status.--
     Evidence of Deferred Mandatory Departure status shall be 
     machine-readable, tamper-resistant, and allow for biometric 
     authentication. The Secretary of Homeland Security is 
     authorized to incorporate integrated-circuit technology into 
     the document. The Secretary of Homeland Security shall 
     consult with the Forensic Document Laboratory in designing 
     the document. The document may serve as a travel, entry, and 
     work authorization document during the period of its 
     validity. The document may be accepted by an employer as 
     evidence of employment authorization and identity under 
     section 274A(b)(1)(B).
       ``(h) Terms of Status.--
       ``(1) Reporting.--During the period in which an alien is in 
     Deferred Mandatory Departure status, the alien shall comply 
     with all registration requirements under section 264.
       ``(2) Travel.--
       ``(A) An alien granted Deferred Mandatory Departure status 
     is not subject to section 212(a)(9) for any unlawful presence 
     that occurred before the Secretary of Homeland Security 
     granting such status to the alien.
       ``(B) Under regulations established by the Secretary of 
     Homeland Security, an alien granted Deferred Mandatory 
     Departure status--
       ``(i) may travel outside of the United States and may be 
     readmitted if the period of Deferred Mandatory Departure 
     status has not expired; and
       ``(ii) shall establish, at the time of application for 
     admission, that the alien is admissible under section 212.
       ``(C) Effect on period of authorized admission.--Time spent 
     outside the United States under subparagraph (B) shall not 
     extend the period of Deferred Mandatory Departure status.
       ``(3) Benefits.--During the period in which an alien is 
     granted Deferred Mandatory Departure status under this 
     section, the alien--
       ``(A) shall not be considered to be permanently residing in 
     the United States under the color of law and shall be treated 
     as a nonimmigrant admitted under section 214; and
       ``(B) may be deemed ineligible for public assistance by a 
     State or any political subdivision of a State that furnishes 
     such assistance.
       ``(i) Prohibition on Change of Status or Adjustment of 
     Status.--An alien granted Deferred Mandatory Departure status 
     may not apply to change status under section 248 or, unless 
     otherwise eligible under section 245(i), from applying for 
     adjustment of status to that of a permanent resident under 
     section 245.
       ``(j) Application Fee.--
       ``(1) In general.--An alien seeking a grant of Deferred 
     Mandatory Departure status shall submit, in addition to any 
     other fees authorized by law, an application fee of $1,000.
       ``(2) Use of fee.--The fees collected under paragraph (1) 
     shall be available for use by the Secretary of Homeland 
     Security for activities to identify, locate, or remove 
     illegal aliens.
       ``(k) Family Members.--
       ``(1) Family members.--
       ``(A) In general.--The spouse or child of an alien granted 
     Deferred Mandatory Departure status is subject to the same 
     terms and conditions as the principal alien, but is not 
     authorized to work in the United States.
       ``(B) Application fee.--
       ``(i) In general.--The spouse or child of an alien seeking 
     Deferred Mandatory Departure status shall submit, in addition 
     to any other fee authorized by law, an additional fee of 
     $500.
       ``(ii) Use of fee.--The fees collected under clause (i) 
     shall be available for use by the Secretary of Homeland 
     Security for activities to identify, locate, or remove aliens 
     who are removable under section 237.
       ``(l) Employment.--
       ``(1) In general.--An alien may be employed by any United 
     States employer authorized by the Secretary of Homeland 
     Security to hire aliens.
       ``(2) Continuous employment.--An alien granted Deferred 
     Mandatory Departure status shall be employed while the alien 
     is in the United States. An alien who fails to be employed 
     for 30 days may not be hired until the alien has departed the 
     United States and reentered. The Secretary of Homeland 
     Security may, in the Secretary's sole and unreviewable 
     discretion, reauthorize an alien for employment without 
     requiring the alien's departure from the United States.
       ``(m) Enumeration of Social Security Number.--The Secretary 
     of Homeland Security, in coordination with the Commissioner 
     of the Social Security System, shall implement a system to 
     allow for the enumeration of a Social Security number and 
     production of a Social Security card at the time the 
     Secretary of Homeland Security grants an alien Deferred 
     Mandatory Departure status.
       ``(n) Penalties for False Statements in Application for 
     Deferred Mandatory Departure.--
       ``(1) Criminal penalty.--
       ``(A) Violation.--It shall be unlawful for any person--
       ``(i) to file or assist in filing an application for 
     adjustment of status under this section and knowingly and 
     willfully falsify, misrepresent, conceal, or cover up a 
     material fact or make any false, fictitious, or fraudulent 
     statements or representations, or make or use any false 
     writing or document knowing the same to contain any false, 
     fictitious, or fraudulent statement or entry; or
       ``(ii) to create or supply a false writing or document for 
     use in making such an application.
       ``(B) Penalty.--Any person who violates subparagraph (A) 
     shall be fined in accordance with title 18, United States 
     Code, imprisoned not more than 5 years, or both.
       ``(2) Inadmissibility.--An alien who is convicted of a 
     crime under paragraph (1) shall be considered to be 
     inadmissible to the United States on the ground described in 
     section 212(a)(6)(C)(i).
       ``(o) Relation to Cancellation of Removal.--With respect to 
     an alien granted Deferred Mandatory Departure status under 
     this section, the period of such status shall not be counted 
     as a period of physical presence in the United States for 
     purposes of section 240A(a), unless the Secretary of Homeland 
     Security determines that extreme hardship exists.
       ``(p) Waiver of Rights.--An alien is not eligible for 
     Deferred Mandatory Departure status, unless the alien has 
     waived any right to contest, other than on the basis of an 
     application for asylum or protection under the Convention 
     Against Torture and Other Cruel, Inhuman or Degrading 
     Treatment or Punishment, done at New York December 10, 1984, 
     any action for deportation or removal of the alien that is 
     instituted against the alien subsequent to a grant of 
     Deferred Mandatory Departure status.
       ``(q) Denial of Discretionary Relief.--The determination of 
     whether an alien is eligible for a grant of Deferred 
     Mandatory Departure status is solely within the discretion of 
     the Secretary of Homeland Security. Notwithstanding any other 
     provision of law, no court shall have jurisdiction to 
     review--
       ``(1) any judgment regarding the granting of relief under 
     this section; or
       ``(2) any other decision or action of the Secretary of 
     Homeland Security the authority for which is specified under 
     this section to be in the discretion of the Secretary, other 
     than the granting of relief under section 1158(a).
       ``(r) Judicial Review.--
       ``(1) Limitations on relief.--Without regard to the nature 
     of the action or claim and without regard to the identity of 
     the party or parties bringing the action, no court may--
       ``(A) enter declaratory, injunctive, or other equitable 
     relief in any action pertaining to--
       ``(i) an order or notice denying an alien a grant of 
     Deferred Mandatory Departure status or any other benefit 
     arising from such status; or
       ``(ii) an order of removal, exclusion, or deportation 
     entered against an alien after a grant of Deferred Mandatory 
     Departure status; or
       ``(B) certify a class under Rule 23 of the Federal Rules of 
     Civil Procedure in any action for which judicial review is 
     authorized under a subsequent paragraph of this subsection.
       ``(2) Challenges to validity.--
       ``(A) In general.--Any right or benefit not otherwise 
     waived or limited pursuant this section is available in an 
     action instituted in the United States District Court for the 
     District of Columbia, but shall be limited to determinations 
     of--
       ``(i) whether such section, or any regulation issued to 
     implement such section, violates the Constitution of the 
     United States; or
       ``(ii) whether such a regulation, or a written policy 
     directive, written policy guideline, or written procedure 
     issued by or under the authority the Secretary of Homeland 
     Security to implement such section, is not consistent with 
     applicable provisions of this section or is otherwise in 
     violation of law.''.
       (b) Conforming Amendments.--
       (1) Clerical amendment.--The table of contents is amended 
     by inserting after the item relating to section 218C the 
     following:

``Sec. 218D. Mandatory departure and reentry.''.


[[Page S4811]]


       (2) Deportation.--Section 237(a)(2)(A)(i)(II) (8 U.S.C. 
     1227(a)(2)(A)(i)(II)) is amended by striking the period at 
     the end and inserting ``(or 6 months in the case of an alien 
     granted Deferred Mandatory Departure status under section 
     218D),''.

     SEC. 602. STATUTORY CONSTRUCTION.

       Nothing in this title, or any amendment made by this title, 
     shall be construed to create any substantive or procedural 
     right or benefit that is legally enforceable by any party 
     against the United States or its agencies or officers or any 
     other person.

     SEC. 603. EXCEPTIONS FOR HUMANITARIAN REASONS.

       Notwithstanding any other provision of law, an alien may be 
     exempt from Deferred Mandatory Departure status and may apply 
     for lawful permanent resident status during the 1-year period 
     beginning on the date of the enactment of this Act if the 
     alien--
       (1) is the spouse of a citizen of the United States at the 
     time of application for lawful permanent resident status;
       (2) is the parent of a child who is a citizen of the United 
     States;
       (3) is not younger than 65 years of age;
       (4) is not older than 16 years of age and is attending 
     school in the United States;
       (5) is younger than 5 years of age;
       (6) on removal from the United States, would suffer long-
     term endangerment to the life of the alien; or
       (7) owns a business or real property in the United States.

     SEC. 604. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated $1,000,000,000 for 
     facilities, personnel (including consular officers), 
     training, technology, and processing necessary to carry out 
     this title and the amendments made by this title.

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