[House Report 109-345]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 109-345, Part I
======================================================================
BORDER PROTECTION, ANTITERRORISM, AND ILLEGAL IMMIGRATION CONTROL ACT
OF 2005
_______
December 13, 2005.--Ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
ADDITIONAL AND DISSENTING VIEWS
[To accompany H.R. 4437]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 4437) to amend the Immigration and Nationality Act to
strengthen enforcement of the immigration laws, to enhance
border security, and for other purposes, having considered the
same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 44
Background and Need for the Legislation.......................... 45
Hearings......................................................... 46
Committee Consideration.......................................... 46
Vote of the Committee............................................ 46
Committee Oversight Findings..................................... 49
New Budget Authority and Tax Expenditures........................ 49
Congressional Budget Office Cost Estimate........................ 49
Performance Goals and Objectives................................. 57
Constitutional Authority Statement............................... 58
Section-by-Section Analysis and Discussion....................... 58
Changes in Existing Law Made by the Bill, as Reported............ 78
Committee Jurisdiction Letters................................... 141
Markup Transcript................................................ 146
Additional Views................................................. 457
Dissenting Views................................................. 459
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Border Protection,
Antiterrorism, and Illegal Immigration Control Act of 2005''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. State defined.
Sec. 3. Sense of Congress on setting a manageable level of immigration.
TITLE I--SECURING UNITED STATES BORDERS
Sec. 101. Achieving operational control on the border.
Sec. 102. National strategy for border security.
Sec. 103. Implementation of cross-border security agreements.
Sec. 104. Biometric data enhancements.
Sec. 105. One face at the border initiative.
Sec. 106. Secure communication.
Sec. 107. Port of entry inspection personnel.
Sec. 108. Canine detection teams.
Sec. 109. Secure border initiative financial accountability.
Sec. 110. Border patrol training capacity review.
Sec. 111. Airspace security mission impact review.
Sec. 112. Repair of private infrastructure on border.
Sec. 113. Border Patrol unit for Virgin Islands.
Sec. 114. Report on progress in tracking travel of Central American
gangs along international border.
Sec. 115. Collection of data.
Sec. 116. Deployment of radiation detection portal equipment at United
States ports of entry.
Sec. 117. Consultation with businesses and firms.
TITLE II--COMBATTING ALIEN SMUGGLING AND ILLEGAL ENTRY AND PRESENCE
Sec. 201. Definition of aggravated felony.
Sec. 202. Alien smuggling and related offenses.
Sec. 203. Improper entry by, or presence of, aliens.
Sec. 204. Reentry of removed aliens.
Sec. 205. Mandatory sentencing ranges for persons aiding or assisting
certain reentering aliens.
Sec. 206. Prohibiting carrying or using a firearm during and in
relation to an alien smuggling crime.
Sec. 207. Clarifying changes.
Sec. 208. Voluntary departure reform.
Sec. 209. Deterring aliens ordered removed from remaining in the United
States unlawfully and from unlawfully returning to the United States
after departing voluntarily.
Sec. 210. Establishment of a special task force for coordinating and
distributing information on fraudulent immigration documents.
TITLE III--BORDER SECURITY COOPERATION AND ENFORCEMENT
Sec. 301. Joint strategic plan for United States border surveillance
and support.
Sec. 302. Border security on protected land.
Sec. 303. Border security threat assessment and information sharing
test and evaluation exercise.
Sec. 304. Border Security Advisory Committee.
Sec. 305. Permitted use of Homeland Security grant funds for border
security activities.
Sec. 306. Center of excellence for border security.
Sec. 307. Sense of Congress regarding cooperation with Indian Nations.
TITLE IV--DETENTION AND REMOVAL
Sec. 401. Mandatory detention for aliens apprehended at or between
ports of entry.
Sec. 402. Expansion and effective management of detention facilities.
Sec. 403. Enhancing transportation capacity for unlawful aliens.
Sec. 404. Denial of admission to nationals of country denying or
delaying accepting alien.
Sec. 405. Report on financial burden of repatriation.
Sec. 406. Training program.
Sec. 407. Expedited removal.
Sec. 408. GAO study on deaths in custody.
TITLE V--EFFECTIVE ORGANIZATION OF BORDER SECURITY AGENCIES
Sec. 501. Enhanced border security coordination and management.
Sec. 502. Office of Air and Marine Operations.
Sec. 503. Shadow Wolves transfer.
TITLE VI--TERRORIST AND CRIMINAL ALIENS
Sec. 601. Removal of terrorist aliens.
Sec. 602. Detention of dangerous aliens.
Sec. 603. Increase in criminal penalties.
Sec. 604. Precluding admissibility of aggravated felons and other
criminals.
Sec. 605. Precluding refugee or asylee adjustment of status for
aggravated felonies.
Sec. 606. Removing drunk drivers.
Sec. 607. Designated county law enforcement assistance program.
Sec. 608. Rendering inadmissible and deportable aliens participating in
criminal street gangs; detention; ineligibility from protection from
removal and asylum.
Sec. 609. Naturalization reform.
Sec. 610. Expedited removal for aliens inadmissible on criminal or
security grounds.
Sec. 611. Technical correction for effective date in change in
inadmissibility for terrorists under REAL ID Act.
Sec. 612. Bar to good moral character.
Sec. 613. Strengthening definitions of ``aggravated felony'' and
``conviction''.
Sec. 614. Deportability for criminal offenses.
TITLE VII--EMPLOYMENT ELIGIBILITY VERIFICATION
Sec. 701. Employment eligibility verification system.
Sec. 702. Employment eligibility verification process.
Sec. 703. Expansion of employment eligibility verification system to
previously hired individuals and recruiting and referring.
Sec. 704. Basic pilot program.
Sec. 705. Hiring halls.
Sec. 706. Penalties.
Sec. 707. Report on Social Security card-based employment eligibility
verification.
Sec. 708. Effective date.
TITLE VIII--IMMIGRATION LITIGATION ABUSE REDUCTION
Sec. 801. Board of Immigration Appeals removal order authority.
Sec. 802. Judicial review of visa revocation.
Sec. 803. Reinstatement.
Sec. 804. Withholding of removal.
Sec. 805. Certificate of reviewability.
Sec. 806. Waiver of rights in nonimmigrant visa issuance.
SEC. 2. STATE DEFINED.
In titles I, III, IV, and V of this Act, the term ``State'' has the
meaning given it in section 2(14) of the Homeland Security Act of 2002
(6 U.S.C. 101(14)).
SEC. 3. SENSE OF CONGRESS ON SETTING A MANAGEABLE LEVEL OF IMMIGRATION.
It is the sense of Congress that the immigration and naturalization
policy shall be designed to enhance the economic, social and cultural
well-being of the United States of America.
TITLE I--SECURING UNITED STATES BORDERS
SEC. 101. ACHIEVING OPERATIONAL CONTROL ON THE BORDER.
(a) In General.--The Secretary of Homeland Security shall take all
actions the Secretary determines necessary and appropriate to achieve
and maintain operational control over the entire international land and
maritime borders of the United States, to include the following--
(1) systematic surveillance of the international land and
maritime borders of the United States through more effective
use of personnel and technology, such as unmanned aerial
vehicles, ground-based sensors, satellites, radar coverage, and
cameras;
(2) physical infrastructure enhancements to prevent
unlawful entry by aliens into the United States and facilitate
access to the international land and maritime borders by United
States Customs and Border Protection, such as additional
checkpoints, all weather access roads, and vehicle barriers;
(3) hiring and training as expeditiously as possible
additional Border Patrol agents authorized under section 5202
of the Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108-458); and
(4) increasing deployment of United States Customs and
Border Protection personnel to areas along the international
land and maritime borders of the United States where there are
high levels of unlawful entry by aliens and other areas likely
to be impacted by such increased deployment.
(b) Operational Control Defined.--In this section, the term
``operational control'' means the prevention of the entry into the
United States of terrorists, other unlawful aliens, instruments of
terrorism, narcotics, and other contraband.
SEC. 102. NATIONAL STRATEGY FOR BORDER SECURITY.
(a) Surveillance Plan.--Not later than six months after the date of
the enactment of this Act, the Secretary of Homeland Security shall
submit to the appropriate congressional committees a comprehensive plan
for the systematic surveillance of the international land and maritime
borders of the United States. The plan shall include the following:
(1) An assessment of existing technologies employed on such
borders.
(2) A description of whether and how new surveillance
technologies will be compatible with existing surveillance
technologies.
(3) A description of how the United States Customs and
Border Protection is working, or is expected to work, with the
Directorate of Science and Technology of the Department of
Homeland Security to identify and test surveillance technology.
(4) A description of the specific surveillance technology
to be deployed.
(5) The identification of any obstacles that may impede
full implementation of such deployment.
(6) A detailed estimate of all costs associated with the
implementation of such deployment and continued maintenance of
such technologies.
(7) A description of how the Department of Homeland
Security is working with the Federal Aviation Administration on
safety and airspace control issues associated with the use of
unmanned aerial vehicles in the National Airspace System.
(b) National Strategy for Border Security.--Not later than one year
after the date of the enactment of this Act, the Secretary of Homeland
Security, in consultation with the heads of other appropriate Federal
agencies, shall submit to the appropriate congressional committees a
National Strategy for Border Security to achieve operational control
over all ports of entry into the United States and the international
land and maritime borders of the United States. The Secretary shall
update the Strategy as needed and shall submit to the Committee on
Homeland Security of the House of Representatives, not later than 30
days after each such update, the updated Strategy. The National
Strategy for Border Security shall include the following:
(1) The implementation timeline for the surveillance plan
described in subsection (a).
(2) An assessment of the threat posed by terrorists and
terrorist groups that may try to infiltrate the United States
at points along the international land and maritime borders of
the United States.
(3) A risk assessment of all ports of entry to the United
States and all portions of the international land and maritime
borders of the United States with respect to--
(A) preventing the entry of terrorists, other
unlawful aliens, instruments of terrorism, narcotics,
and other contraband into the United States; and
(B) protecting critical infrastructure at or near
such ports of entry or borders.
(4) An assessment of the most appropriate, practical, and
cost-effective means of defending the international land and
maritime borders of the United States against threats to
security and illegal transit, including intelligence
capacities, technology, equipment, personnel, and training
needed to address security vulnerabilities.
(5) An assessment of staffing needs for all border security
functions, taking into account threat and vulnerability
information pertaining to the borders and the impact of new
security programs, policies, and technologies.
(6) A description of the border security roles and missions
of Federal, State, regional, local, and tribal authorities, and
recommendations with respect to how the Department of Homeland
Security can improve coordination with such authorities, to
enable border security enforcement to be carried out in an
efficient and effective manner.
(7) A prioritization of research and development objectives
to enhance the security of the international land and maritime
borders of the United States.
(8) A description of ways to ensure that the free flow of
legitimate travel and commerce of the United States is not
diminished by efforts, activities, and programs aimed at
securing the international land and maritime borders of the
United States.
(9) An assessment of additional detention facilities and
bed space needed to detain unlawful aliens apprehended at
United States ports of entry or along the international land
borders of the United States in accordance with the National
Strategy for Border Security required under this subsection and
the mandatory detention requirement described in section 401 of
this Act.
(10) A description of how the Secretary shall ensure
accountability and performance metrics within the appropriate
agencies of the Department of Homeland Security responsible for
implementing the border security measures determined necessary
upon completion of the National Strategy for Border Security.
(11) A timeline for the implementation of the additional
security measures determined necessary as part of the National
Strategy for Border Security, including a prioritization of
security measures, realistic deadlines for addressing the
security and enforcement needs, and resource estimates and
allocations.
(c) Consultation.--In creating the National Strategy for Border
Security described in subsection (b), the Secretary shall consult
with--
(1) State, local, and tribal authorities along the
international land and maritime borders of the United States;
and
(2) an appropriate cross-section of private sector and
nongovernmental organizations with relevant expertise.
(d) Priority of National Strategy.--The National Strategy for
Border Security described in subsection (b) shall be the controlling
document for security and enforcement efforts related to securing the
international land and maritime borders of the United States.
(e) Immediate Action.--Nothing in this section shall be construed
to relieve the Secretary of the responsibility to take all actions
necessary and appropriate to achieve and maintain operational control
over the entire international land and maritime borders of the United
States pursuant to section 101 of this Act or any other provision of
law.
(f) Reporting of Implementing Legislation.--After submittal of the
National Strategy for Border Security described in subsection (b) to
the Committee on Homeland Security of the House of Representatives,
such Committee shall promptly report to the House legislation
authorizing necessary security measures based on its evaluation of the
National Strategy for Border Security.
(g) Appropriate Congressional Committee.--For purposes of this
title, the term ``appropriate congressional committee'' has the meaning
given it in section 2(2) of the Homeland Security Act of 2002 (6 U.S.C.
101(2)).
SEC. 103. IMPLEMENTATION OF CROSS-BORDER SECURITY AGREEMENTS.
(a) In General.--Not later than six months after the date of the
enactment of this Act, the Secretary of Homeland Security shall submit
to the appropriate congressional committees (as defined in section
102(g)) a report on the implementation of the cross-border security
agreements signed by the United States with Mexico and Canada,
including recommendations on improving cooperation with such countries
to enhance border security.
(b) Updates.--The Secretary shall regularly update the Committee on
Homeland Security of the House of Representatives concerning such
implementation.
SEC. 104. BIOMETRIC DATA ENHANCEMENTS.
Not later than October 1, 2006, the Secretary of Homeland Security
shall--
(1) in consultation with the Attorney General, enhance
connectivity between the IDENT and IAFIS fingerprint databases
to ensure more expeditious data searches; and
(2) in consultation with the Secretary of State, collect
all fingerprints from each alien required to provide
fingerprints during the alien's initial enrollment in the
integrated entry and exit data system described in section 110
of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (8 U.S.C. 1221 note).
SEC. 105. ONE FACE AT THE BORDER INITIATIVE.
Not later than 90 days after the date of the enactment of this Act,
the Secretary of Homeland Security shall submit to Congress a report--
(1) describing the tangible and quantifiable benefits of
the One Face at the Border Initiative established by the
Department of Homeland Security;
(2) identifying goals for and challenges to increased
effectiveness of the One Face at the Border Initiative;
(3) providing a breakdown of the number of inspectors who
were--
(A) personnel of the United States Customs Service
before the date of the establishment of the Department
of Homeland Security;
(B) personnel of the Immigration and Naturalization
Service before the date of the establishment of the
Department;
(C) personnel of the Department of Agriculture
before the date of the establishment of the Department;
or
(D) hired after the date of the establishment of
the Department;
(4) describing the training time provided to each employee
on an annual basis for the various training components of the
One Face at the Border Initiative; and
(5) outlining the steps taken by the Department to ensure
that expertise is retained with respect to customs,
immigration, and agriculture inspection functions under the One
Face at the Border Initiative.
SEC. 106. SECURE COMMUNICATION.
The Secretary of Homeland Security shall, as expeditiously as
practicable, develop and implement a plan to ensure clear and secure
two-way communication capabilities--
(1) among all Border Patrol agents conducting operations
between ports of entry;
(2) between Border Patrol agents and their respective
Border Patrol stations;
(3) between Border Patrol agents and residents in remote
areas along the international land border who do not have
mobile communications, as the Secretary determines necessary;
and
(4) between all appropriate Department of Homeland Security
border security agencies and State, local, and tribal law
enforcement agencies.
SEC. 107. PORT OF ENTRY INSPECTION PERSONNEL.
In each of fiscal years 2007 through 2010, the Secretary of
Homeland Security shall, subject to the availability of appropriations,
increase by not less than 250 the number of positions for full-time
active duty port of entry inspectors. There are authorized to be
appropriated to the Secretary such sums as may be necessary for each
such fiscal year to hire, train, equip, and support such additional
inspectors under this section.
SEC. 108. CANINE DETECTION TEAMS.
In each of fiscal years 2007 through 2011, the Secretary of
Homeland Security shall, subject to the availability of appropriations,
increase by not less than 25 percent above the number of such positions
for which funds were allotted for the preceding fiscal year the number
of trained detection canines for use at United States ports of entry
and along the international land and maritime borders of the United
States.
SEC. 109. SECURE BORDER INITIATIVE FINANCIAL ACCOUNTABILITY.
(a) In General.--The Inspector General of the Department of
Homeland Security shall review each contract action related to the
Department's Secure Border Initiative having a value greater than
$20,000,000, to determine whether each such action fully complies with
applicable cost requirements, performance objectives, program
milestones, inclusion of small, minority, and women-owned business, and
timelines. The Inspector General shall complete a review under this
subsection with respect to a contract action--
(1) not later than 60 days after the date of the initiation
of the action; and
(2) upon the conclusion of the performance of the contract.
(b) Report by Inspector General.--Upon completion of each review
described in subsection (a), the Inspector General shall submit to the
Secretary of Homeland Security a report containing the findings of the
review, including findings regarding any cost overruns, significant
delays in contract execution, lack of rigorous departmental contract
management, insufficient departmental financial oversight, bundling
that limits the ability of small business to compete, or other high
risk business practices.
(c) Report by Secretary.--Not later than 30 days after the receipt
of each report required under subsection (b), the Secretary of Homeland
Security shall submit to the appropriate congressional committees (as
defined in section 102(g)) a report on the findings of the report by
the Inspector General and the steps the Secretary has taken, or plans
to take, to address the problems identified in such report.
(d) Authorization of Appropriations.--In addition to amounts that
are otherwise authorized to be appropriated to the Office of the
Inspector General, an additional amount equal to at least five percent
for fiscal year 2007, at least six percent for fiscal year 2008, and at
least seven percent for fiscal year 2009 of the overall budget of the
Office for each such fiscal year is authorized to be appropriated to
the Office to enable the Office to carry out this section.
SEC. 110. BORDER PATROL TRAINING CAPACITY REVIEW.
(a) In General.--The Comptroller General of the United States shall
conduct a review of the basic training provided to Border Patrol agents
by the Department of Homeland Security to ensure that such training is
provided as efficiently and cost-effectively as possible.
(b) Components of Review.--The review under subsection (a) shall
include the following components:
(1) An evaluation of the length and content of the basic
training curriculum provided to new Border Patrol agents by the
Federal Law Enforcement Training Center, including a
description of how the curriculum has changed since September
11, 2001.
(2) A review and a detailed breakdown of the costs incurred
by United States Customs and Border Protection and the Federal
Law Enforcement Training Center to train one new Border Patrol
agent.
(3) A comparison, based on the review and breakdown under
paragraph (2) of the costs, effectiveness, scope, and quality,
including geographic characteristics, with other similar law
enforcement training programs provided by State and local
agencies, non-profit organizations, universities, and the
private sector.
(4) An evaluation of whether and how utilizing comparable
non-Federal training programs, proficiency testing to
streamline training, and long-distance learning programs may
affect--
(A) the cost-effectiveness of increasing the number
of Border Patrol agents trained per year and reducing
the per agent costs of basic training; and
(B) the scope and quality of basic training needed
to fulfill the mission and duties of a Border Patrol
agent.
SEC. 111. AIRSPACE SECURITY MISSION IMPACT REVIEW.
Not later than 120 days after the date of the enactment of this
Act, the Secretary of Homeland Security shall submit to the Committee
on Homeland Security of the House of Representatives a report detailing
the impact the airspace security mission in the National Capital Region
(in this section referred to as the ``NCR'') will have on the ability
of the Department of Homeland Security to protect the international
land and maritime borders of the United States. Specifically, the
report shall address:
(1) The specific resources, including personnel, assets,
and facilities, devoted or planned to be devoted to the NCR
airspace security mission, and from where those resources were
obtained or are planned to be obtained.
(2) An assessment of the impact that diverting resources to
support the NCR mission has or is expected to have on the
traditional missions in and around the international land and
maritime borders of the United States.
SEC. 112. REPAIR OF PRIVATE INFRASTRUCTURE ON BORDER.
(a) In General.--Subject to the amount appropriated in subsection
(d) of this section, the Secretary of Homeland Security shall reimburse
property owners for costs associated with repairing damages to the
property owners' private infrastructure constructed on a United States
Government right-of-way delineating the international land border when
such damages are--
(1) the result of unlawful entry of aliens; and
(2) confirmed by the appropriate personnel of the
Department of Homeland Security and submitted to the Secretary
for reimbursement.
(b) Value of Reimbursements.--Reimbursements for submitted damages
as outlined in subsection (a) shall not exceed the value of the private
infrastructure prior to damage.
(c) Reports.--Not later than six months after the date of the
enactment of this Act and every subsequent six months until the amount
appropriated for this section is expended in its entirety, the
Secretary of Homeland Security shall submit to the Committee on
Homeland Security of the House of Representatives a report that details
the expenditures and circumstances in which those expenditures were
made pursuant to this section.
(d) Authorization of Appropriations.--There shall be authorized to
be appropriated an initial $50,000 for each fiscal year to carry out
this section.
SEC. 113. BORDER PATROL UNIT FOR VIRGIN ISLANDS.
Not later than September 30, 2006, the Secretary of Homeland
Security shall establish at least one Border Patrol unit for the Virgin
Islands of the United States.
SEC. 114. REPORT ON PROGRESS IN TRACKING TRAVEL OF CENTRAL AMERICAN
GANGS ALONG INTERNATIONAL BORDER.
Not later than one year after the date of the enactment of this
Act, the Secretary of Homeland Security shall report to the Committee
on Homeland Security of the House of Representatives on the progress of
the Department of Homeland Security in tracking the travel of Central
American gangs across the international land border of the United
States and Mexico.
SEC. 115. COLLECTION OF DATA.
Beginning on October 1, 2006, the Secretary of Homeland Security
shall annually compile data on the following categories of information:
(1) The number of unauthorized aliens who require medical
care taken into custody by Border Patrol officials.
(2) The number of unauthorized aliens with serious injuries
or medical conditions Border Patrol officials encounter, and
refer to local hospitals or other health facilities.
(3) The number of unauthorized aliens with serious injuries
or medical conditions who arrive at United States ports of
entry and subsequently are admitted into the United States for
emergency medical care, as reported by United States Customs
and Border Protection.
(4) The number of unauthorized aliens described in
paragraphs (2) and (3) who subsequently are taken into custody
by the Department of Homeland Security after receiving medical
treatment.
SEC. 116. DEPLOYMENT OF RADIATION DETECTION PORTAL EQUIPMENT AT UNITED
STATES PORTS OF ENTRY.
(a) Deployment.--Not later than one year after the date of the
enactment of this Act, the Secretary of Homeland Security shall deploy
radiation portal monitors at all United States ports of entry and
facilities as determined by the Secretary to facilitate the screening
of all inbound cargo for nuclear and radiological material.
(b) Report.--Not later than 180 days after the date of the
enactment of this Act, the Secretary shall submit to the Committee on
Homeland Security of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs of the Senate a report on
the Department's progress toward carrying out the deployment described
in subsection (a).
(c) Authorization of Appropriations.--There is authorized to be
appropriated to the Secretary to carry out subsection (a) such sums as
may be necessary for each of fiscal years 2006 and 2007.
SEC. 117. CONSULTATION WITH BUSINESSES AND FIRMS.
With respect to the Secure Border Initiative and for the purposes
of strengthening security along the international land and maritime
borders of the United States, the Secretary of Homeland Security shall
conduct outreach to and consult with members of the private sector,
including business councils, associations, and small, minority-owned,
women-owned, and disadvantaged businesses to--
(1) identify existing and emerging technologies, best
practices, and business processes;
(2) maximize economies of scale, cost-effectiveness,
systems integration, and resource allocation; and
(3) identify the most appropriate contract mechanisms to
enhance financial accountability and mission effectiveness of
border security programs.
TITLE II--COMBATTING ALIEN SMUGGLING AND ILLEGAL ENTRY AND PRESENCE
SEC. 201. DEFINITION OF AGGRAVATED FELONY.
(a) In General.--Section 101(a)(43) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(43)) is amended--
(1) in subparagraph (N), by striking ``paragraph (1)(A) or
(2) of section 274(a) (relating to alien smuggling)'' and
inserting ``section 274(a)'' and by adding a semicolon at the
end;
(2) in subparagraph (O), by striking ``section 275(a) or
276 committed by an alien who was previously deported on the
basis of a conviction for an offense described in another
subparagraph of this paragraph'', and inserting ``section 275
or section 276 for which the term of imprisonment was at least
one year'';
(3) in subparagraph (U), by inserting before ``an attempt''
the following: ``soliciting, aiding, abetting, counseling,
commanding, inducing, procuring or''; and
(4) by striking all that follows subparagraph (U) and
inserting the following:
``The term applies--
``(i) to an offense described in this paragraph
whether in violation of Federal or State law and
applies to such an offense in violation of the law of a
foreign country for which the term of imprisonment was
completed within the previous 15 years;
``(ii) even if the length of the term of
imprisonment is based on recidivist or other
enhancements;
``(iii) to an offense described in this paragraph
even if the statute setting forth the offense of
conviction sets forth other offenses not described in
this paragraph, unless the alien affirmatively shows,
by a preponderance of evidence and using public records
related to the conviction, including court records,
police records and presentence reports, that the
particular facts underlying the offense do not satisfy
the generic definition of that offense; and
``(iv) regardless of whether the conviction was
entered before, on, or after September 30, 1996, and
notwithstanding any other provision of law (including
any effective date).''.
(b) Effective Date.--The amendments made by subsection (a) shall
apply to offenses that occur before, on, or after the date of the
enactment of this Act.
SEC. 202. ALIEN SMUGGLING AND RELATED OFFENSES.
(a) In General.--Section 274 of the Immigration and Nationality Act
(8 U.S.C. 1324) is amended to read as follows:
``alien smuggling and related offenses
``Sec. 274. (a) Criminal Offenses and Penalties.--
``(1) Prohibited activities.--Whoever--
``(A) assists, encourages, directs, or induces a
person to come to or enter the United States, or to
attempt to come to or enter the United States, knowing
or in reckless disregard of the fact that such person
is an alien who lacks lawful authority to come to or
enter the United States;
``(B) assists, encourages, directs, or induces a
person to come to or enter the United States at a place
other than a designated port of entry or place other
than as designated by the Secretary of Homeland
Security, regardless of whether such person has
official permission or lawful authority to be in the
United States, knowing or in reckless disregard of the
fact that such person is an alien;
``(C) assists, encourages, directs, or induces a
person to reside in or remain in the United States, or
to attempt to reside in or remain in the United States,
knowing or in reckless disregard of the fact that such
person is an alien who lacks lawful authority to reside
in or remain in the United States;
``(D) transports or moves a person in the United
States, knowing or in reckless disregard of the fact
that such person is an alien who lacks lawful authority
to enter or be in the United States, where the
transportation or movement will aid or further in any
manner the person's illegal entry into or illegal
presence in the United States;
``(E) harbors, conceals, or shields from detection
a person in the United States knowing or in reckless
disregard of the fact that such person is an alien who
lacks lawful authority to be in the United States;
``(F) transports, moves, harbors, conceals, or
shields from detection a person outside of the United
States knowing or in reckless disregard of the fact
that such person is an alien in unlawful transit from
one country to another or on the high seas, under
circumstances in which the person is in fact seeking to
enter the United States without official permission or
lawful authority; or
``(G) conspires or attempts to commit any of the
preceding acts,
shall be punished as provided in paragraph (2), regardless of
any official action which may later be taken with respect to
such alien.
``(2) Criminal penalties.--A person who violates the
provisions of paragraph (1) shall--
``(A) except as provided in subparagraphs (D)
through (H), in the case where the offense was not
committed for commercial advantage, profit, or private
financial gain, be imprisoned for not more than 5
years, or fined under title 18, United States Code, or
both;
``(B) except as provided in subparagraphs (C)
through (H), where the offense was committed for
commercial advantage, profit, or private financial
gain--
``(i) in the case of a first violation of
this subparagraph, be imprisoned for not more
than 20 years, or fined under title 18, United
States Code, or both; and
``(ii) for any subsequent violation, be
imprisoned for not less than 3 years nor more
than 20 years, or fined under title 18, United
States Code, or both;
``(C) in the case where the offense was committed
for commercial advantage, profit, or private financial
gain and involved 2 or more aliens other than the
offender, be imprisoned for not less than 3 nor more
than 20 years, or fined under title 18, United States
Code, or both;
``(D) in the case where the offense furthers or
aids the commission of any other offense against the
United States or any State, which offense is punishable
by imprisonment for more than 1 year, be imprisoned for
not less than 5 nor more than 20 years, or fined under
title 18, United States Code, or both;
``(E) in the case where any participant in the
offense created a substantial risk of death or serious
bodily injury to another person, including--
``(i) transporting a person in an engine
compartment, storage compartment, or other
confined space;
``(ii) transporting a person at an
excessive speed or in excess of the rated
capacity of the means of transportation; or
``(iii) transporting or harboring a person
in a crowded, dangerous, or inhumane manner,
be imprisoned not less than 5 nor more than 20 years,
or fined under title 18, United States Code, or both;
``(F) in the case where the offense caused serious
bodily injury (as defined in section 1365 of title 18,
United States Code, including any conduct that would
violate sections 2241 or 2242 of title 18, United
States Code, if the conduct occurred in the special
maritime and territorial jurisdiction of the United
States) to any person, be imprisoned for not less than
7 nor more than 30 years, or fined under title 18,
United States Code, or both;
``(G) in the case where the offense involved an
alien who the offender knew or had reason to believe
was an alien--
``(i) engaged in terrorist activity (as
defined in section 212(a)(3)(B)); or
``(ii) intending to engage in such
terrorist activity,
be imprisoned for not less than 10 nor more than 30
years, or fined under title 18, United States Code, or
both; and
``(H) in the case where the offense caused or
resulted in the death of any person, be punished by
death or imprisoned for not less than 10 years, or any
term of years, or for life, or fined under title 18,
United States Code, or both.
``(3) Extraterritorial jurisdiction.--There is
extraterritorial Federal jurisdiction over the offenses
described in this subsection.
``(b) Employment of Unauthorized Aliens.--
``(1) In general.--Any person who, during any 12-month
period, knowingly hires for employment at least 10 individuals
with actual knowledge that the individuals are aliens described
in paragraph (2), shall be fined under title 18, United States
Code, imprisoned for not more than 5 years, or both.
``(2) Alien described.--A alien described in this paragraph
is an alien who--
``(A) is an unauthorized alien (as defined in
section 274A(h)(3)); and
``(B) has been brought into the United States in
violation of subsection (a).
``(c) Seizure and Forfeiture.--
``(1) In general.--Any property, real or personal, that has
been used to commit or facilitate the commission of a violation
of this section, the gross proceeds of such violation, and any
property traceable to such property or proceeds, shall be
subject to forfeiture.
``(2) Applicable procedures.--Seizures and forfeitures
under this subsection shall be governed by the provisions of
chapter 46 of title 18, United States Code, relating to civil
forfeitures, including section 981(d) of such title, except
that such duties as are imposed upon the Secretary of the
Treasury under the customs laws described in that section shall
be performed by such officers, agents, and other persons as may
be designated for that purpose by the Secretary of Homeland
Security.
``(d) Authority to Arrest.--No officer or person shall have
authority to make any arrests for a violation of any provision of this
section except officers and employees designated by the Secretary of
Homeland Security, either individually or as a member of a class, and
all other officers whose duty it is to enforce criminal laws.
``(e) Admissibility of Evidence.--
``(1) Prima facie evidence in determinations of
violations.--Notwithstanding any provision of the Federal Rules
of Evidence, in determining whether a violation of subsection
(a) has occurred, any of the following shall be prima facie
evidence that an alien involved in the violation lacks lawful
authority to come to, enter, reside, remain, or be in the
United States or that such alien had come to, entered, resided,
remained or been present in the United States in violation of
law:
``(A) Any order, finding, or determination
concerning the alien's status or lack thereof made by a
federal judge or administrative adjudicator (including
an immigration judge or an immigration officer) during
any judicial or administrative proceeding authorized
under the immigration laws or regulations prescribed
thereunder.
``(B) An official record of the Department of
Homeland Security, Department of Justice, or the
Department of State concerning the alien's status or
lack thereof.
``(C) Testimony by an immigration officer having
personal knowledge of the facts concerning the alien's
status or lack thereof.
``(2) Videotaped testimony.--Notwithstanding any provision
of the Federal Rules of Evidence, the videotaped (or otherwise
audiovisually preserved) deposition of a witness to a violation
of subsection (a) who has been deported or otherwise expelled
from the United States, or is otherwise unavailable to testify,
may be admitted into evidence in an action brought for that
violation if the witness was available for cross examination at
the deposition and the deposition otherwise complies with the
Federal Rules of Evidence.
``(f) Definitions.--For purposes of this section:
``(1) The term `lawful authority' means permission,
authorization, or license that is expressly provided for in the
immigration laws of the United States or the regulations
prescribed thereunder. Such term does not include any such
authority secured by fraud or otherwise obtained in violation
of law, nor does it include authority that has been sought but
not approved. No alien shall be deemed to have lawful authority
to come to, enter, reside, remain, or be in the United States
if such coming to, entry, residence, remaining, or presence
was, is, or would be in violation of law.
``(2) The term `unlawful transit' means travel, movement,
or temporary presence that violates the laws of any country in
which the alien is present, or any country from which or to
which the alien is traveling or moving.''.
(b) Clerical Amendment.--The item relating to section 274 in the
table of contents of such Act is amended to read as follows:
``Sec. 274. Alien smuggling and related offenses.''.
SEC. 203. IMPROPER ENTRY BY, OR PRESENCE OF, ALIENS.
Section 275 of the Immigration and Nationality Act (8 U.S.C. 1325)
is amended--
(1) in the section heading, by inserting ``unlawful
presence;'' after ``improper time or place;'';
(2) in subsection (a)--
(A) by striking ``Any alien'' and inserting
``Except as provided in subsection (b), any alien'';
(B) by striking ``or'' before (3);
(C) by inserting after ``concealment of a material
fact,'' the following: ``or (4) is otherwise present in
the United States in violation of the immigration laws
or the regulations prescribed thereunder,''; and
(D) by striking ``6 months'' and inserting ``one
year and a day'';
(3) in subsection (c)--
(A) by striking ``5 years'' and inserting ``10
years''; and
(B) by adding at the end the following: ``An
offense under this subsection continues until the
fraudulent nature of the marriage is discovered by an
immigration officer.'';
(4) in subsection (d)--
(A) by striking ``5 years'' and inserting ``10
years'';
(B) by adding at the end the following: ``An
offense under this subsection continues until the
fraudulent nature of the commercial enterprise is
discovered by an immigration officer.''; and
(5) by adding at the end the following new subsections:
``(e)(1) Any alien described in paragraph (2)--
``(A) shall be fined under title 18, United States Code,
imprisoned not more than 10 years, or both, if the offense
described in such paragraph was committed subsequent to a
conviction or convictions for commission of three or more
misdemeanors involving drugs, crimes against the person, or
both, or a felony (other than an aggravated felony); or
``(B) shall be fined under title 18, United States Code,
imprisoned not more than 20 years, or both, if such offense was
committed subsequent to a conviction for commission of an
aggravated felony.
``(2) An alien described in this paragraph is an alien who--
``(A) enters or attempts to enter the United States at any
time or place other than as designated by immigration officers;
``(B) eludes examination or inspection by immigration
officers;
``(C) attempts to enter or obtains entry to the United
States by a willfully false or misleading representation or the
willful concealment of a material fact; or
``(D) is otherwise present in the United States in
violation of the immigration laws or the regulations prescribed
thereunder.
``(3) The prior convictions in subparagraph (A) or (B) of paragraph
(1) are elements of those crimes and the penalties in those
subparagraphs shall apply only in cases in which the conviction (or
convictions) that form the basis for the additional penalty are alleged
in the indictment or information and are proven beyond a reasonable
doubt at trial or admitted by the defendant in pleading guilty. Any
admissible evidence may be used to show that the prior conviction is an
aggravated felony or other qualifying crime, and the criminal trial for
a violation of this section shall not be bifurcated.
``(4) An offense under subsection (a) or paragraph (1) of this
subsection continues until the alien is discovered within the United
States by immigration officers.
``(f) For purposes of this section, the term `attempts to enter'
refers to the general intent of the alien to enter the United States
and does not refer to the intent of the alien to violate the law.''.
SEC. 204. REENTRY OF REMOVED ALIENS.
Section 276 of the Immigration and Nationality Act (8 U.S.C. 1326)
is amended--
(1) in subsection (a)--
(A) in paragraph (2), by striking all that follows
``United States'' the first place it appears and
inserting a comma;
(B) in the matter following paragraph (2), by
striking ``imprisoned not more than 2 years,'' and
inserting ``imprisoned for a term of not less than 1
year and not more than 2 years,'';
(C) by adding at the end the following: ``It shall
be an affirmative defense to an offense under this
subsection that (A) prior to an alien's reembarkation
at a place outside the United States or an alien's
application for admission from foreign contiguous
territory, the Secretary of Homeland Security has
expressly consented to the alien's reapplying for
admission; or (B) with respect to an alien previously
denied admission and removed, such alien was not
required to obtain such advance consent under this Act
or any prior Act.'';
(2) in subsection (b)--
(A) in paragraph (1), by striking ``imprisoned not
more than 10 years,'' and insert ``imprisoned for a
term of not less than 5 years and not more than 10
years,'';
(B) in paragraph (2), by striking ``imprisoned not
more than 20 years,'' and insert ``imprisoned for a
term of not less than 10 years and not more than 20
years,'';
(C) in paragraph (3), by striking ``. or'' and
inserting ``; or'';
(D) in paragraph (4), by striking ``imprisoned for
not more than 10 years,'' and insert ``imprisoned for a
term of not less than 5 years and not more than 10
years,''; and
(E) by adding at the end the following: ``The prior
convictions in paragraphs (1) and (2) are elements of
enhanced crimes and the penalties under such paragraphs
shall apply only where the conviction (or convictions)
that form the basis for the additional penalty are
alleged in the indictment or information and are proven
beyond a reasonable doubt at trial or admitted by the
defendant in pleading guilty. Any admissible evidence
may be used to show that the prior conviction is a
qualifying crime and the criminal trial for a violation
of either such paragraph shall not be bifurcated.'';
(3) in subsections (b)(3), (b)(4), and (c), by striking
``Attorney General'' and inserting ``Secretary of Homeland
Security'' each place it appears;
(4) in subsection (c), by striking ``242(h)(2)'' and
inserting ``241(a)(4)''; and
(5) by adding at the end the following new subsection:
``(e) For purposes of this section, the term `attempts to enter'
refers to the general intent of the alien to enter the United States
and does not refer to the intent of the alien to violate the law.''.
SEC. 205. MANDATORY SENTENCING RANGES FOR PERSONS AIDING OR ASSISTING
CERTAIN REENTERING ALIENS.
Section 277 of the Immigration and Nationality Act (8 U.S.C. 1327)
is amended--
(1) by striking ``Any person'' and inserting ``(a) Subject
to subsection (b), any person''; and
(2) by adding at the end the following:
``(b)(1) Any person who knowingly aids or assists any alien
violating section 276(b) to reenter the United States, or who connives
or conspires with any person or persons to allow, procure, or permit
any such alien to reenter the United States, shall be fined under title
18, United States Code, imprisoned for a term imposed under paragraph
(2), or both.
``(2) The term of imprisonment imposed under paragraph (1) shall be
within the range to which the reentering alien is subject under section
276(b).''.
SEC. 206. PROHIBITING CARRYING OR USING A FIREARM DURING AND IN
RELATION TO AN ALIEN SMUGGLING CRIME.
Section 924(c) of title 18, United States Code, is amended--
(1) in paragraphs (1)(A) and (1)(D)(ii), by inserting ``,
alien smuggling crime,'' after ``crime of violence'' each place
it appears; and
(2) by adding at the end the following new paragraph:
``(6) For purposes of this subsection, the term `alien smuggling
crime' means any felony punishable under section 274(a), 277, or 278 of
the Immigration and Nationality Act (8 U.S.C. 1324(a), 1327, or
1328).''.
SEC. 207. CLARIFYING CHANGES.
(a) Exclusion Based on False Claim of Nationality.--
(1) In general.--Section 212(a)(6)(C)(ii) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(ii)) is
amended--
(A) in the heading, by inserting ``or nationality''
after ``citizenship''; and
(B) by inserting ``or national'' after ``citizen''
each place it appears.
(2) Effective date.--The amendments made by paragraph (1)
shall take effect on the date of the enactment of this Act and
shall apply to acts occurring before, on, or after such date.
(b) Sharing of Information.--Section 290(b) of such Act (8 U.S.C.
1360(b)) is amended--
(1) by inserting ``, or as to any person seeking any
benefit or privilege under the immigration laws,'' after
``United States'';
(2) by striking ``Service'' and inserting ``Secretary of
Homeland Security''; and
(3) by striking ``Attorney General'' and inserting
``Secretary''.
(c) Exceptions Authority.--Section 212(a)(3)(B)(ii) of such Act (8
U.S.C. 1182(a)(3)(B)(ii)) is amended by striking ``Subclause (VII)''
and inserting ``Subclause (IX)''.
SEC. 208. VOLUNTARY DEPARTURE REFORM.
(a) Encouraging Aliens to Depart Voluntarily.--
(1) Authority.--Subsection (a) of section 240B of the
Immigration and Nationality Act (8 U.S.C. 1229c) is amended--
(A) by amending paragraph (1) to read as follows:
``(1) In lieu of removal proceedings.--The Secretary of
Homeland Security may permit an alien voluntarily to depart the
United States at the alien's own expense under this subsection,
in lieu of being subject to proceedings under section 240, if
the alien is not described in section 237(a)(2)(A)(iii) or
section 237(a)(4).'';
(B) by striking paragraph (3);
(C) by redesignating paragraph (2) as paragraph
(3);
(D) by inserting after paragraph (1) the following
new paragraph:
``(2) Prior to the conclusion of removal proceedings.--
After removal proceedings under section 240 are initiated, the
Attorney General may permit an alien voluntarily to depart the
United States at the alien's own expense under this subsection,
prior to the conclusion of such proceedings before an
immigration judge, if the alien is not described in section
237(a)(2)(A)(iii) or section 237(a)(4).''; and
(E) in paragraph (4), by striking ``paragraph (1)''
and inserting ``paragraphs (1) and (2)''.
(2) Voluntary departure period.--Such section is further
amended--
(A) in subsection (a)(3), as redesignated by
paragraph (1)(C)--
(i) by amending subparagraph (A) to read as
follows:
``(A) In lieu of removal.--Subject to subparagraph
(C), permission to depart voluntarily under paragraph
(1) shall not be valid for a period exceeding 120 days.
The Secretary of Homeland Security may require an alien
permitted to depart voluntarily under paragraph (1) to
post a voluntary departure bond, to be surrendered upon
proof that the alien has departed the United States
within the time specified.'';
(ii) in subparagraph (B), by striking
``subparagraphs (C) and (D)(ii)'' and inserting
``subparagraphs (D) and (E)(ii)'';
(iii) in subparagraphs (C) and (D), by
striking ``subparagraph (B)'' and inserting
``subparagraph (C)'' each place it appears;
(iv) by redesignating subparagraphs (B),
(C), and (D) as subparagraphs (C), (D), and
(E), respectively; and
(v) by inserting after subparagraph (A) the
following new subparagraph:
``(B) Prior to the conclusion of removal
proceedings.--Permission to depart voluntarily under
paragraph (2) shall not be valid for a period exceeding
60 days, and may be granted only after a finding that
the alien has established that the alien has the means
to depart the United States and intends to do so. An
alien permitted to depart voluntarily under paragraph
(2) must post a voluntary departure bond, in an amount
necessary to ensure that the alien will depart, to be
surrendered upon proof that the alien has departed the
United States within the time specified. An immigration
judge may waive posting of a voluntary departure bond
in individual cases upon a finding that the alien has
presented compelling evidence that the posting of a
bond will be a serious financial hardship and the alien
has presented credible evidence that such a bond is
unnecessary to guarantee timely departure.''; and
(B) in subsection (b)(2), by striking ``60 days''
and inserting ``45 days''.
(3) Voluntary departure agreements.--Subsection (c) of such
section is amended to read as follows:
``(c) Conditions on Voluntary Departure.--
``(1) Voluntary departure agreement.--Voluntary departure
will be granted only as part of an affirmative agreement by the
alien. A voluntary departure agreement under subsection (b)
shall include a waiver of the right to any further motion,
appeal, application, petition, or petition for review relating
to removal or relief or protection from removal.
``(2) Concessions by the secretary.--In connection with the
alien's agreement to depart voluntarily under paragraph (1),
the Secretary of Homeland Security in the exercise of
discretion may agree to a reduction in the period of
inadmissibility under subparagraph (A) or (B)(i) of section
212(a)(9).
``(3) Failure to comply with agreement and effect of filing
timely appeal.--If an alien agrees to voluntary departure under
this section and fails to depart the United States within the
time allowed for voluntary departure or fails to comply with
any other terms of the agreement (including a failure to timely
post any required bond), the alien automatically becomes
ineligible for the benefits of the agreement, subject to the
penalties described in subsection (d), and subject to an
alternate order of removal if voluntary departure was granted
under subsection (a)(2) or (b). However, if an alien agrees to
voluntary departure but later files a timely appeal of the
immigration judge's decision granting voluntary departure, the
alien may pursue the appeal instead of the voluntary departure
agreement. Such appeal operates to void the alien's voluntary
departure agreement and the consequences thereof, but the alien
may not again be granted voluntary departure while the alien
remains in the United States.''.
(4) Eligibility.--Subsection (e) of such section is amended
to read as follows:
``(e) Eligibility.--
``(1) Prior grant of voluntary departure.--An alien shall
not be permitted to depart voluntarily under this section if
the Secretary of Homeland Security or the Attorney General
previously permitted the alien to depart voluntarily.
``(2) Additional limitations.--The Secretary of Homeland
Security may by regulation limit eligibility or impose
additional conditions for voluntary departure under subsection
(a)(1) for any class or classes of aliens. The Secretary or
Attorney General may by regulation limit eligibility or impose
additional conditions for voluntary departure under subsection
(a)(2) or (b) for any class or classes of aliens.
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, United
States Code, or any other habeas corpus provision, and section
1361 and 1651 of such title, no court may review any regulation
issued under this subsection.''.
(b) Avoiding Delays in Voluntary Departure.--
(1) Alien's obligation to depart within the time allowed.--
Subsection (c) of section 240B of the Immigration and
Nationality Act (8 U.S.C. 1229c), as amended by subsection (a),
is further amended by adding at the end the following new
paragraph:
``(4) Voluntary departure period not affected.--Except as
expressly agreed to by the Secretary of Homeland Security in
writing in the exercise of the Secretary's discretion before
the expiration of the period allowed for voluntary departure,
no motion, appeal, application, petition, or petition for
review shall affect, reinstate, enjoin, delay, stay, or toll
the alien's obligation to depart from the United States during
the period agreed to by the alien and the Secretary.''.
(2) No tolling.--Subsection (f) of such section is amended
by adding at the end the following new sentence:
``Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, United
States Code, or any other habeas corpus provision, and section
1361 and 1651 of such title, no court shall have jurisdiction
to affect, reinstate, enjoin, delay, stay, or toll the period
allowed for voluntary departure under this section.''.
(c) Penalties for Failure to Depart Voluntarily.--
(1) Penalties for failure to depart.--Subsection (d) of
section 240B of the Immigration and Nationality Act (8 U.S.C.
229c) is amended to read as follows:
``(d) Penalties for Failure to Depart.--If an alien is permitted to
depart voluntarily under this section and fails voluntarily to depart
from the United States within the time period specified or otherwise
violates the terms of a voluntary departure agreement, the following
provisions apply:
``(1) Civil penalty.--
``(A) In general.--The alien will be liable for a
civil penalty of $3,000.
``(B) Specification in order.--The order allowing
voluntary departure shall specify the amount of the
penalty, which shall be acknowledged by the alien on
the record.
``(C) Collection.--If the Secretary of Homeland
Security thereafter establishes that the alien failed
to depart voluntarily within the time allowed, no
further procedure will be necessary to establish the
amount of the penalty, and the Secretary may collect
the civil penalty at any time thereafter and by
whatever means provided by law.
``(D) Ineligibility for benefits.--An alien will be
ineligible for any benefits under this title until any
civil penalty under this subsection is paid.
``(2) Ineligibility for relief.--The alien will be
ineligible during the time the alien remains in the United
States and for a period of 10 years after the alien's departure
for any further relief under this section and sections 240A,
245, 248, and 249.
``(3) Reopening.--
``(A) In general.--Subject to subparagraph (B), the
alien will be ineligible to reopen a final order of
removal which took effect upon the alien's failure to
depart, or the alien's violation of the conditions for
voluntary departure, during the period described in
paragraph (2).
``(B) Exception.--Subparagraph (A) does not
preclude a motion to reopen to seek withholding of
removal under section 241(b)(3) or protection against
torture.
The order permitting the alien to depart voluntarily under this
section shall inform the alien of the penalties under this
subsection.''.
(2) Implementation of existing statutory penalties.--The
Secretary of Homeland Security shall implement regulations to
provide for the imposition and collection of penalties for
failure to depart under section 240B(d) of the Immigration and
Nationality Act, as amended by paragraph (1).
(d) Effective Dates.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by this section shall apply with respect to all
orders granting voluntary departure under section 240B of the
Immigration and Nationality Act (8 U.S.C. 1229c) made on or
after the date that is 180 days after the date of the enactment
of this Act.
(2) Exception.--The amendment made by subsection (b)(2)
shall take effect on the date of the enactment of this Act and
shall apply with respect to any petition for review which is
entered on or after such date.
SEC. 209. DETERRING ALIENS ORDERED REMOVED FROM REMAINING IN THE UNITED
STATES UNLAWFULLY AND FROM UNLAWFULLY RETURNING TO
THE UNITED STATES AFTER DEPARTING VOLUNTARILY.
(a) Inadmissible Aliens.--Paragraph (9) of section 212(a) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)) is amended--
(1) in subparagraph (A)(i), by striking ``within 5 years
of'' and inserting ``before, or within 5 years of,''; and
(2) in subparagraph (A)(ii) by striking ``within 10 years
of'' and inserting ``before, or within 10 years of,''.
(b) Failure to Depart, Apply for Travel Documents, or Appear for
Removal or Conspiracy to Prevent or Hamper Departure.--Section 274D of
such Act (8 U.S.C. 1324d) is amended--
(1) in subsection (a), by striking ``Commissioner'' and
inserting ``Secretary of Homeland Security''; and
(2) by adding at the end the following new subsection:
``(c) Ineligibility for Relief.--
``(1) In general.--Subject to paragraph (2), unless a
timely motion to reopen is granted under section 240(c)(6), an
alien described in subsection (a) shall be ineligible for any
discretionary relief from removal pursuant to a motion to
reopen during the time the alien remains in the United States
and for a period of 10 years after the alien's departure.
``(2) Exception.--Paragraph (1) does not preclude a motion
to reopen to seek withholding of removal under section
241(b)(3) or protection against torture.''.
(c) Deterring Aliens From Unlawfully Returning to the United States
After Departing Voluntarily.--Section 275(a) of such Act (8 U.S.C.
1325(a)) is amended by inserting ``or following an order of voluntary
departure'' after ``a subsequent commission of any such offense''.
(d) Effective Dates.--
(1) In general.--The amendments made by subsections (a) and
(b) shall take effect on the date of the enactment of this Act
with respect to aliens who are subject to a final order of
removal, whether the removal order was entered before, on, or
after such date.
(2) Voluntary departure.--The amendment made by subsection
(c) shall take effect on the date of the enactment of this Act
and shall apply with respect to conduct occurring on or after
such date.
SEC. 210. ESTABLISHMENT OF A SPECIAL TASK FORCE FOR COORDINATING AND
DISTRIBUTING INFORMATION ON FRAUDULENT IMMIGRATION
DOCUMENTS.
(a) In General.--The Secretary of Homeland Security shall establish
a task force (to be known as the Task Force on Fraudulent Immigration
Documents) to carry out the following:
(1) Collect information from Federal, State, and local law
enforcement agencies, and Foreign governments on the
production, sale, and distribution of fraudulent documents
intended to be used to enter or to remain in the United States
unlawfully.
(2) Maintain that information in a comprehensive database.
(3) Convert the information into reports that will provide
guidance for government officials on identifying fraudulent
documents being used to enter or to remain in the United States
unlawfully.
(4) Develop a system for distributing these reports on an
ongoing basis to appropriate Federal, State, and local law
enforcement agencies.
(b) Distribution of Information.--Distribute the reports to
appropriate Federal, State, and local law enforcement agencies on an
ongoing basis.
TITLE III--BORDER SECURITY COOPERATION AND ENFORCEMENT
SEC. 301. JOINT STRATEGIC PLAN FOR UNITED STATES BORDER SURVEILLANCE
AND SUPPORT.
(a) In General.--The Secretary of Homeland Security and the
Secretary of Defense shall develop a joint strategic plan to use the
authorities provided to the Secretary of Defense under chapter 18 of
title 10, United States Code, to increase the availability and use of
Department of Defense equipment, including unmanned aerial vehicles,
tethered aerostat radars, and other surveillance equipment, to assist
with the surveillance activities of the Department of Homeland Security
conducted at or near the international land and maritime borders of the
United States.
(b) Report.--Not later than six months after the date of the
enactment of this Act, the Secretary of Homeland Security and the
Secretary of Defense shall submit to Congress a report containing--
(1) a description of the use of Department of Defense
equipment to assist with the surveillance by the Department of
Homeland Security of the international land and maritime
borders of the United States;
(2) the joint strategic plan developed pursuant to
subsection (a);
(3) a description of the types of equipment and other
support to be provided by the Department of Defense under the
joint strategic plan during the one-year period beginning after
submission of the report under this subsection; and
(4) a description of how the Department of Homeland
Security and the Department of Defense are working with the
Department of Transportation on safety and airspace control
issues associated with the use of unmanned aerial vehicles in
the National Airspace System.
(c) Rule of Construction.--Nothing in this section shall be
construed as altering or amending the prohibition on the use of any
part of the Army or the Air Force as a posse comitatus under section
1385 of title 18, United States Code.
SEC. 302. BORDER SECURITY ON PROTECTED LAND.
(a) In General.--The Secretary of Homeland Security, in
consultation with the Secretary of the Interior, shall evaluate border
security vulnerabilities on land directly adjacent to the international
land border of the United States under the jurisdiction of the
Department of the Interior related to the prevention of the entry of
terrorists, other unlawful aliens, narcotics, and other contraband into
the United States.
(b) Support for Border Security Needs.--Based on the evaluation
conducted pursuant to subsection (a), the Secretary of Homeland
Security shall provide appropriate border security assistance on land
directly adjacent to the international land border of the United States
under the jurisdiction of the Department of the Interior, its bureaus,
and tribal entities.
SEC. 303. BORDER SECURITY THREAT ASSESSMENT AND INFORMATION SHARING
TEST AND EVALUATION EXERCISE.
Not later than one year after the date of the enactment of this
Act, the Secretary of Homeland Security shall design and carry out a
national border security exercise for the purposes of--
(1) involving officials from Federal, State, territorial,
local, tribal, and international governments and
representatives from the private sector;
(2) testing and evaluating the capacity of the United
States to anticipate, detect, and disrupt threats to the
integrity of United States borders; and
(3) testing and evaluating the information sharing
capability among Federal, State, territorial, local, tribal,
and international governments.
SEC. 304. BORDER SECURITY ADVISORY COMMITTEE.
(a) Establishment of Committee.--Not later than one year after the
date of the enactment of this Act, the Secretary of Homeland Security
shall establish an advisory committee to be known as the Border
Security Advisory Committee (in this section referred to as the
``Committee'').
(b) Duties.--The Committee shall advise the Secretary on issues
relating to border security and enforcement along the international
land and maritime border of the United States.
(c) Membership.--The Secretary shall appoint members to the
Committee from the following:
(1) State and local government representatives from States
located along the international land and maritime borders of
the United States.
(2) Community representatives from such States.
(3) Tribal authorities in such States.
SEC. 305. PERMITTED USE OF HOMELAND SECURITY GRANT FUNDS FOR BORDER
SECURITY ACTIVITIES.
(a) Reimbursement.--The Secretary of Homeland Security may allow
the recipient of amounts under a covered grant to use those amounts to
reimburse itself for costs it incurs in carrying out any activity
that--
(1) relates to the enforcement of Federal laws aimed at
preventing the unlawful entry of persons or things into the
United States, including activities such as detecting or
responding to such an unlawful entry or providing support to
another entity relating to preventing such an unlawful entry;
(2) is usually a Federal duty carried out by a Federal
agency; and
(3) is carried out under agreement with a Federal agency.
(b) Use of Prior Year Funds.--Subsection (a) shall apply to all
covered grant funds received by a State, local government, or Indian
tribe at any time on or after October 1, 2001.
(c) Covered Grants.--For purposes of subsection (a), the term
``covered grant'' means grants provided by the Department of Homeland
Security to States, local governments, or Indian tribes administered
under the following programs:
(1) State homeland security grant program.--The State
Homeland Security Grant Program of the Department, or any
successor to such grant program.
(2) Urban area security initiative.--The Urban Area
Security Initiative of the Department, or any successor to such
grant program.
(3) Law enforcement terrorism prevention program.--The Law
Enforcement Terrorism Prevention Program of the Department, or
any successor to such grant program.
SEC. 306. CENTER OF EXCELLENCE FOR BORDER SECURITY.
(a) Establishment.--The Secretary of Homeland Security shall
establish a university-based Center of Excellence for Border Security
following the merit-review processes and procedures and other
limitations that have been established for selecting and supporting
University Programs Centers of Excellence.
(b) Activities of the Center.--The Center shall prioritize its
activities on the basis of risk to address the most significant
threats, vulnerabilities, and consequences posed by United States
borders and border control systems. The activities shall include the
conduct of research, the examination of existing and emerging border
security technology and systems, and the provision of education,
technical, and analytical assistance for the Department of Homeland
Security to effectively secure the borders.
SEC. 307. SENSE OF CONGRESS REGARDING COOPERATION WITH INDIAN NATIONS.
It is the sense of Congress that--
(1) the Department of Homeland Security should strive to
include as part of a National Strategy for Border Security
recommendations on how to enhance Department cooperation with
sovereign Indian Nations on securing our borders and preventing
terrorist entry, including, specifically, the Department should
consider whether a Tribal Smart Border working group is
necessary and whether further expansion of cultural sensitivity
training, as exists in Arizona with the Tohono O'odham Nation,
should be expanded elsewhere; and
(2) as the Department of Homeland Security develops a
National Strategy for Border Security, it should take into
account the needs and missions of each agency that has a stake
in border security and strive to ensure that these agencies
work together cooperatively on issues involving Tribal lands.
TITLE IV--DETENTION AND REMOVAL
SEC. 401. MANDATORY DETENTION FOR ALIENS APPREHENDED AT OR BETWEEN
PORTS OF ENTRY.
(a) In General.--Beginning on October 1, 2006, an alien who is
attempting to illegally enter the United States and who is apprehended
at a United States port of entry or along the international land and
maritime border of the United States shall be detained until removed or
a final decision granting admission has been determined, unless the
alien--
(1) is permitted to withdraw an application for admission
under section 235(a)(4) of the Immigration and Nationality Act
(8 U.S.C. 1225(a)(4)) and immediately departs from the United
States pursuant to such section; or
(2) is paroled into the United States by the Secretary of
Homeland Security for urgent humanitarian reasons or
significant public benefit in accordance with section
212(d)(5)(A) of such Act (8 U.S.C. 1182(d)(5)(A)).
(b) Requirements During Interim Period.--Beginning 60 days after
the date of the enactment of this Act and before October 1, 2006, an
alien described in subsection (a) may be released with a notice to
appear only if--
(1) the Secretary of Homeland Security determines, after
conducting all appropriate background and security checks on
the alien, that the alien does not pose a national security
risk; and
(2) the alien provides a bond of not less than $5,000.
(c) Rules of Construction.--
(1) Asylum and removal.--Nothing in this section shall be
construed as limiting the right of an alien to apply for asylum
or for relief or deferral of removal based on a fear of
persecution.
(2) Treatment of certain aliens.--The mandatory detention
requirement in subsection (a) does not apply to any alien who
is a native or citizen of a country in the Western Hemisphere
with whose government the United States does not have full
diplomatic relations.
SEC. 402. EXPANSION AND EFFECTIVE MANAGEMENT OF DETENTION FACILITIES.
Subject to the availability of appropriations, the Secretary of
Homeland Security shall fully utilize--
(1) all available detention facilities operated or
contracted by the Department of Homeland Security; and
(2) all possible options to cost effectively increase
available detention capacities, including the use of temporary
detention facilities, the use of State and local correctional
facilities, private space, and secure alternatives to
detention.
SEC. 403. ENHANCING TRANSPORTATION CAPACITY FOR UNLAWFUL ALIENS.
(a) In General.--The Secretary of Homeland Security is authorized
to enter into contracts with private entities for the purpose of
providing secure domestic transport of aliens who are apprehended at or
along the international land or maritime borders from the custody of
United States Customs and Border Protection to detention facilities and
other locations as necessary.
(b) Criteria for Selection.--Notwithstanding any other provision of
law, to enter into a contract under paragraph (1), a private entity
shall submit an application to the Secretary at such time, in such
manner, and containing such information as the Secretary may require.
The Secretary shall select from such applications those entities which
offer, in the determination of the Secretary, the best combination of
service, cost, and security.
SEC. 404. DENIAL OF ADMISSION TO NATIONALS OF COUNTRY DENYING OR
DELAYING ACCEPTING ALIEN.
Section 243(d) of the Immigration and Nationality Act (8 U.S.C.
1253(d)) is amended to read as follows:
``(d) Denial of Admission to Nationals of Country Denying or
Delaying Accepting Alien.--Whenever the Secretary of Homeland Security
determines that the government of a foreign country has denied or
unreasonably delayed accepting an alien who is a citizen, subject,
national, or resident of that country after the alien has been ordered
removed, the Secretary, after consultation with the Secretary of State,
may deny admission to any citizen, subject, national, or resident of
that country until the country accepts the alien who was ordered
removed.''.
SEC. 405. REPORT ON FINANCIAL BURDEN OF REPATRIATION.
Not later than October 31 of each year, the Secretary of Homeland
Security shall submit to the Secretary of State and Congress a report
that details the cost to the Department of Homeland Security of
repatriation of unlawful aliens to their countries of nationality or
last habitual residence, including details relating to cost per
country. The Secretary shall include in each such report the
recommendations of the Secretary to more cost effectively repatriate
such aliens.
SEC. 406. TRAINING PROGRAM.
Not later than six months after the date of the enactment of this
Act, the Secretary of Homeland Security--
(1) review and evaluate the training provided to Border
Patrol agents and port of entry inspectors regarding the
inspection of aliens to determine whether an alien is referred
for an interview by an asylum officer for a determination of
credible fear;
(2) based on the review and evaluation described in
paragraph (1), take necessary and appropriate measures to
ensure consistency in referrals by Border Patrol agents and
port of entry inspectors to asylum officers for determinations
of credible fear.
SEC. 407. EXPEDITED REMOVAL.
(a) In General.--Section 235(b)(1)(A)(iii) of the Immigration and
Nationality Act (8 U.S.C. 1225(b)(1)(A)(iii)) is amended--
(1) in subclause (I), by striking ``Attorney General'' and
inserting ``Secretary of Homeland Security'' each place it
appears; and
(2) by adding at the end the following new subclause:
``(III) Exception.--Notwithstanding
subclauses (I) and (II), the Secretary
of Homeland Security shall apply
clauses (i) and (ii) of this
subparagraph to any alien (other than
an alien described in subparagraph (F))
who is not a national of a country
contiguous to the United States, who
has not been admitted or paroled into
the United States, and who is
apprehended within 100 miles of an
international land border of the United
States and within 14 days of entry.''.
(b) Exceptions.--Section 235(b)(1)(F) of the Immigration and
Nationality Act (8 U.S.C. 1225(b)(1)(F)) is amended by striking ``who
arrives by aircraft at a port of entry'' and inserting ``, and who
arrives by aircraft at a port of entry or who is present in the United
States and arrived in any manner at or between a port of entry''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act and shall apply to all
aliens apprehended on or after such date.
SEC. 408. GAO STUDY ON DEATHS IN CUSTODY.
The Comptroller General of the United States, within 6 months after
the date of the enactment of this Act, shall submit to Congress a
report on the deaths in custody of detainees held on immigration
violations by the Secretary of Homeland Security. The report shall
include the following information with respect to any such deaths and
in connection therewith:
(1) Whether any crimes were committed by personnel of the
Department of Homeland Security.
(2) Whether any such deaths were caused by negligence or
deliberate indifference by such personnel.
(3) Whether Department practice and procedures were
properly followed and obeyed.
(4) Whether such practice and procedures are sufficient to
protect the health and safety of such detainees.
(5) Whether reports of such deaths were made under the
Deaths in Custody Act.
TITLE V--EFFECTIVE ORGANIZATION OF BORDER SECURITY AGENCIES
SEC. 501. ENHANCED BORDER SECURITY COORDINATION AND MANAGEMENT.
The Secretary of Homeland Security shall ensure full coordination
of border security efforts among agencies within the Department of
Homeland Security, including United States Immigration and Customs
Enforcement, United States Customs and Border Protection, and United
States Citizenship and Immigration Services, and shall identify and
remedy any failure of coordination or integration in a prompt and
efficient manner. In particular, the Secretary of Homeland Security
shall--
(1) oversee and ensure the coordinated execution of border
security operations and policy;
(2) establish a mechanism for sharing and coordinating
intelligence information and analysis at the headquarters and
field office levels pertaining to counter-terrorism, border
enforcement, customs and trade, immigration, human smuggling,
human trafficking, and other issues of concern to both United
States Immigration and Customs Enforcement and United States
Customs and Border Protection;
(3) establish Department of Homeland Security task forces
(to include other Federal, State, Tribal and local law
enforcement agencies as appropriate) as necessary to better
coordinate border enforcement and the disruption and
dismantling of criminal organizations engaged in cross-border
smuggling, money laundering, and immigration violations;
(4) enhance coordination between the border security and
investigations missions within the Department by requiring
that, with respect to cases involving violations of the customs
and immigration laws of the United States, United States
Customs and Border Protection coordinate with and refer all
such cases to United States Immigration and Customs
Enforcement;
(5) examine comprehensively the proper allocation of the
Department's border security related resources, and analyze
budget issues on the basis of Department-wide border
enforcement goals, plans, and processes;
(6) establish measures and metrics for determining the
effectiveness of coordinated border enforcement efforts; and
(7) develop and implement a comprehensive plan to protect
the northern and southern land borders of the United States and
address the different challenges each border faces by--
(A) coordinating all Federal border security
activities;
(B) improving communications and data sharing
capabilities within the Department and with other
Federal, State, local, tribal, and foreign law
enforcement agencies on matters relating to border
security; and
(C) providing input to relevant bilateral
agreements to improve border functions, including
ensuring security and promoting trade and tourism.
SEC. 502. OFFICE OF AIR AND MARINE OPERATIONS.
(a) Establishment.--Subtitle C of title IV of the Homeland Security
Act of 2002 (6 U.S.C. 201 et seq.) is amended by adding at the end the
following new section:
``SEC. 431. OFFICE OF AIR AND MARINE OPERATIONS.
``(a) Establishment.--There is established in the Department an
Office of Air and Marine Operations (referred to in this section as the
`Office').
``(b) Assistant Secretary.--The Office shall be headed by an
Assistant Secretary for Air and Marine Operations who shall be
appointed by the President, by and with the advice and consent of the
Senate, and who shall report directly to the Secretary. The Assistant
Secretary shall be responsible for all functions and operations of the
Office.
``(c) Missions.--
``(1) Primary mission.--The primary mission of the Office
shall be the prevention of the entry of terrorists, other
unlawful aliens, instruments of terrorism, narcotics, and other
contraband into the United States.
``(2) Secondary mission.--The secondary mission of the
Office shall be to assist other agencies to prevent the entry
of terrorists, other unlawful aliens, instruments of terrorism,
narcotics, and other contraband into the United States.
``(d) Air and Marine Operations Center.--
``(1) In general.--The Office shall operate and maintain
the Air and Marine Operations Center in Riverside, California,
or at such other facility of the Office as is designated by the
Secretary.
``(2) Duties.--The Center shall provide comprehensive
radar, communications, and control services to the Office and
to eligible Federal, State, or local agencies (as determined by
the Assistant Secretary for Air and Marine Operations), in
order to identify, track, and support the interdiction and
apprehension of individuals attempting to enter United States
airspace or coastal waters for the purpose of narcotics
trafficking, trafficking of persons, or other terrorist or
criminal activity.
``(e) Access to Information.--The Office shall ensure that other
agencies within the Department of Homeland Security, the Department of
Defense, the Department of Justice, and such other Federal, State, or
local agencies, as may be determined by the Secretary, shall have
access to the information gathered and analyzed by the Center.
``(f) Requirement.--Beginning not later than 180 days after the
date of the enactment of this Act, the Secretary shall require that all
information concerning all aviation activities, including all airplane,
helicopter, or other aircraft flights, that are undertaken by the
either the Office, United States Immigration and Customs Enforcement,
United States Customs and Border Protection, or any subdivisions
thereof, be provided to the Air and Marine Operations Center. Such
information shall include the identifiable transponder, radar, and
electronic emissions and codes originating and resident aboard the
aircraft or similar asset used in the aviation activity.
``(g) Timing.--The Secretary shall require the information
described in subsection (f) to be provided to the Air and Marine
Operations Center in advance of the aviation activity whenever
practicable for the purpose of timely coordination and conflict
resolution of air missions by the Office, United States Immigration and
Customs Enforcement, and United States Customs and Border Protection.
``(h) Rule of Construction.--Nothing in this section shall be
construed to alter, impact, diminish, or in any way undermine the
authority of the Administrator of the Federal Aviation Administration
to oversee, regulate, and control the safe and efficient use of the
airspace of the United States.''.
(b) Technical and Conforming Amendments.--
(1) Additional assistant secretary.--Section 103(a)(9) of
the Homeland Security Act of 2002 (6 U.S.C. 113(a)(9)) is
amended by striking ``12'' and inserting ``13''.
(2) Clerical amendment.--The table of contents in section
1(b) of such Act (6 U.S.C. 101) is amended by inserting after
the item relating to section 430 the following new item:
``Sec. 431. Office of Air and Marine Operations.''.
SEC. 503. SHADOW WOLVES TRANSFER.
(a) Transfer of Existing Unit.--Not later that 90 days after the
date of the enactment of this Act, the Secretary of Homeland Security
shall transfer to United States Immigration and Customs Enforcement all
functions (including the personnel, assets, and liabilities
attributable to such functions) of the Customs Patrol Officers unit
operating on the Tohono O'odham Indian reservation (commonly known as
the ``Shadow Wolves'' unit).
(b) Establishment of New Units.--The Secretary is authorized to
establish within United States Immigration and Customs Enforcement
additional units of Customs Patrol Officers in accordance with this
section, as appropriate.
(c) Duties.--The Customs Patrol Officer unit transferred pursuant
to subsection (a), and additional units established pursuant to
subsection (b), shall operate on Indian lands by preventing the entry
of terrorists, other unlawful aliens, instruments of terrorism,
narcotics, and other contraband into the United States.
(d) Basic Pay for Journeyman Officers.--A Customs Patrol Officer in
a unit described in this section shall receive equivalent pay as a
special agent with similar competencies within United States
Immigration and Customs Enforcement pursuant to the Department of
Homeland Security's Human Resources Management System established under
section 841 of the Homeland Security Act (6 U.S.C. 411).
(e) Supervisors.--Each unit described in this section shall be
supervised by a Chief Customs Patrol Officer, who shall have the same
rank as a resident agent-in-charge of the Office of Investigations
within United States Immigration and Customs Enforcement.
TITLE VI--TERRORIST AND CRIMINAL ALIENS
SEC. 601. REMOVAL OF TERRORIST ALIENS.
(a) Expansion of Removal.--
(1) Section 241(b)(3) of the Immigration and Nationality
Act (8 U.S.C. 1231(b)(3)) is amended--
(A) in subparagraph (A)--
(i) by striking ``Attorney General may
not'' and inserting ``Secretary of Homeland
Security may not'';
(ii) by inserting ``or the Secretary''
after ``if the Attorney General''; and
(B) in subparagraph (B)--
(i) by inserting ``or the Secretary of
Homeland Security'' after ``if the Attorney
General'';
(ii) by striking ``or'' in clause (iii);
(iii) by striking the period at the end of
clause (iv) and inserting ``; or'';
(iv) by inserting after clause (iv) the
following new clause:
``(v) the alien is described in any
subclause of section 212(a)(3)(B)(i) or section
212(a)(3)(F), unless, in the case only of an
alien described in subclause (IV) or (IX) of
section 212(a)(3)(B)(i), the Secretary of
Homeland Security determines, in the
Secretary's discretion, that there are not
reasonable grounds for regarding the alien as a
danger to the security of the United States.'';
and
(v) in the third sentence, by inserting
``or the Secretary of Homeland Security'' after
``Attorney General''; and
(vi) by striking the last sentence.
(2) Section 208(b)(2)(A)(v) of such Act (8 U.S.C.
1158(b)(2)(A)(v)) is amended--
(A) by striking ``subclause (I), (II), (III), (IV),
or (VI)'' and inserting ``any subclause'';
(B) by striking ``237(a)(4)(B)'' and inserting
``212(a)(3)(F)''; and
(C) by inserting ``or (IX)'' after ``subclause
(IV)''.
(3) Section 240A(c)(4) of such Act (8 U.S.C. 1229b(c)(4))
is amended--
(A) by striking ``inadmissible under'' and
inserting ``described in''; and
(B) by striking ``deportable under'' and inserting
``described in''.
(4) Section 240B(b)(1)(C) of such Act (8 U.S.C.
1229c(b)(1)(C)) is amended by striking ``deportable under'' and
inserting ``described in''.
(5) Section 249 of such Act (8 U.S.C. 1259)) is amended--
(A) by striking ``inadmissible under'' and
inserting ``described in''; and
(B) in paragraph (d), by striking ``deportable
under'' and inserting ``described in''.
(b) Retroactive Application.--The amendments made by this section
shall take effect on the date of enactment of this Act and sections
208(b)(2)(A), 240A, 240B, 241(b)(3), and 249 of the Immigration and
Nationality Act, as so amended, shall apply to--
(1) all aliens in removal, deportation, or exclusion
proceedings;
(2) all applications pending on or filed after the date of
the enactment of this Act; and
(3) with respect to aliens and applications described in
paragraph (1) or (2), acts and conditions constituting a ground
for inadmissibility, excludability, deportation, or removal
occurring or existing before, on, or after the date of the
enactment of this Act.
SEC. 602. DETENTION OF DANGEROUS ALIENS.
(a) In General.--Section 241 of the Immigration and Nationality
Act (8 U.S.C. 1231) is amended--
(1) in subsection (a), by striking ``Attorney General'' and
inserting ``Secretary of Homeland Security'' each place it
appears;
(2) in subsection (a)(1)(B), by adding after and below
clause (iii) the following:
``If, at that time, the alien is not in the custody of
the Secretary (under the authority of this Act), the
Secretary shall take the alien into custody for
removal, and the removal period shall not begin until
the alien is taken into such custody. If the Secretary
transfers custody of the alien during the removal
period pursuant to law to another Federal agency or a
State or local government agency in connection with the
official duties of such agency, the removal period
shall be tolled, and shall begin anew on the date of
the alien's return to the custody of the Secretary.'';
(3) by amending clause (ii) of subsection (a)(1)(B) to read
as follows:
``(ii) If a court, the Board of Immigration
Appeals, or an immigration judge orders a stay
of the removal of the alien, the date the stay
of removal is no longer in effect.'';
(4) by amending subparagraph (C) of subsection (a)(1) to
read as follows:
``(C) Suspension of period.--The removal period
shall be extended beyond a period of 90 days and the
alien may remain in detention during such extended
period if the alien fails or refuses to make all
reasonable efforts to comply with the removal order, or
to fully cooperate with the Secretary's efforts to
establish the alien's identity and carry out the
removal order, including making timely application in
good faith for travel or other documents necessary to
the alien's departure, or conspires or acts to prevent
the alien's removal subject to an order of removal.'';
(5) in subsection (a)(2), by adding at the end the
following: ``If a court orders a stay of removal of an alien
who is subject to an administratively final order of removal,
the Secretary in the exercise of discretion may detain the
alien during the pendency of such stay of removal.'';
(6) in subsection (a)(3), by amending subparagraph (D) to
read as follows:
``(D) to obey reasonable restrictions on the
alien's conduct or activities, or perform affirmative
acts, that the Secretary prescribes for the alien, in
order to prevent the alien from absconding, or for the
protection of the community, or for other purposes
related to the enforcement of the immigration laws.'';
(7) in subsection (a)(6), by striking ``removal period and,
if released,'' and inserting ``removal period, in the
discretion of the Secretary, without any limitations other than
those specified in this section, until the alien is removed. If
an alien is released, the alien'';
(8) by redesignating paragraph (7) of subsection (a) as
paragraph (10) and inserting after paragraph (6) of such
subsection the following new paragraphs:
``(7) Parole.--If an alien detained pursuant to paragraph
(6) is an applicant for admission, the Secretary, in the
Secretary's discretion, may parole the alien under section
212(d)(5) of this Act and may provide, notwithstanding section
212(d)(5), that the alien shall not be returned to custody
unless either the alien violates the conditions of the alien's
parole or the alien's removal becomes reasonably foreseeable,
provided that in no circumstance shall such alien be considered
admitted.
``(8) Application of additional rules for detention or
release of certain aliens who have made an entry.--The
procedures described in subsection (j) shall only apply with
respect to an alien who--
``(A) was lawfully admitted the most recent time
the alien entered the United States or has otherwise
effected an entry into the United States, and
``(B) is not detained under paragraph (6).
``(9) Judicial review.--Without regard to the place of
confinement, judicial review of any action or decision pursuant
to paragraphs (6), (7), or (8) or subsection (j) shall be
available exclusively in habeas corpus proceedings instituted
in the United States District Court for the District of
Columbia, and only if the alien has exhausted all
administrative remedies (statutory and regulatory) available to
the alien as of right.''; and
(9) by adding at the end the following new subsection:
``(j) Additional Rules for Detention or Release of Certain Aliens
Who Have Made an Entry.--
``(1) Application.--The procedures described in this
subsection apply in the case of an alien described in
subsection (a)(8).
``(2) Establishment of a detention review process for
aliens who fully cooperate with removal.--
``(A) In general.--The Secretary shall establish an
administrative review process to determine whether the
aliens should be detained or released on conditions for
aliens who--
``(i) have made all reasonable efforts to
comply with their removal orders;
``(ii) have complied with the Secretary's
efforts to carry out the removal orders,
including making timely application in good
faith for travel or other documents necessary
to the alien's departure, and
``(iii) have not conspired or acted to
prevent removal.
``(B) Determination.--The Secretary shall make a
determination whether to release an alien after the
removal period in accordance with paragraphs (3) and
(4). The determination--
``(i) shall include consideration of any
evidence submitted by the alien and the history
of the alien's efforts to comply with the order
of removal, and
``(ii) may include any information or
assistance provided by the Department of State
or other Federal agency and any other
information available to the Secretary
pertaining to the ability to remove the alien.
``(3) Authority to detain beyond the removal period .--
``(A) Initial 90 day period.--The Secretary in the
exercise of discretion, without any limitations other
than those specified in this section, may continue to
detain an alien for 90 days beyond the removal period
(including any extension of the removal period as
provided in subsection (a)(1)(C)).
``(B) Extension.--
``(i) In general.--The Secretary in the
exercise of discretion, without any limitations
other than those specified in this section, may
continue to detain an alien beyond the 90 days
authorized in subparagraph (A) if the
conditions described in subparagraph (A), (B),
or (C) of paragraph (4) apply.
``(ii) Renewal.--The Secretary may renew a
certification under paragraph (4)(A) every six
months without limitation, after providing an
opportunity for the alien to request
reconsideration of the certification and to
submit documents or other evidence in support
of that request. If the Secretary does not
renew a certification, the Secretary may not
continue to detain the alien under such
paragraph.
``(iii) Delegation.--Notwithstanding
section 103, the Secretary may not delegate the
authority to make or renew a certification
described in clause (ii), (iii), or (v) of
paragraph (4)(B) below the level of the
Assistant Secretary for Immigration and Customs
Enforcement.
``(iv) Hearing.--The Secretary may request
that the Attorney General provide for a hearing
to make the determination described in clause
(iv)(II) of paragraph (4)(B).
``(4) Conditions for extension.--The conditions for
continuation of detention are any of the following:
``(A) The Secretary determines that there is a
significant likelihood that the alien--
``(i) will be removed in the reasonably
foreseeable future; or
``(ii) would be removed in the reasonably
foreseeable future, or would have been removed,
but for the alien's failure or refusal to make
all reasonable efforts to comply with the
removal order, or to fully cooperate with the
Secretary's efforts to establish the alien's
identity and carry out the removal order,
including making timely application in good
faith for travel or other documents necessary
to the alien's departure, or conspiracies or
acts to prevent removal.
``(B) The Secretary certifies in writing any of the
following:
``(i) In consultation with the Secretary of
Health and Human Services, the alien has a
highly contagious disease that poses a threat
to public safety.
``(ii) After receipt of a written
recommendation from the Secretary of State, the
release of the alien is likely to have serious
adverse foreign policy consequences for the
United States.
``(iii) Based on information available to
the Secretary (including available information
from the intelligence community, and without
regard to the grounds upon which the alien was
ordered removed), there is reason to believe
that the release of the alien would threaten
the national security of the United States.
``(iv) The release of the alien will
threaten the safety of the community or any
person, the conditions of release cannot
reasonably be expected to ensure the safety of
the community or any person, and--
``(I) the alien has been convicted
of one or more aggravated felonies
described in section 101(a)(43)(A) or
of one or more crimes identified by the
Secretary by regulation, or of one or
more attempts or conspiracies to commit
any such aggravated felonies or such
crimes, for an aggregate term of
imprisonment of at least five years; or
``(II) the alien has committed one
or more crimes of violence and, because
of a mental condition or personality
disorder and behavior associated with
that condition or disorder, the alien
is likely to engage in acts of violence
in the future.
``(v) The release of the alien will
threaten the safety of the community or any
person, conditions of release cannot reasonably
be expected to ensure the safety of the
community or any person, and the alien has been
convicted of at least one aggravated felony.
``(C) Pending a determination under subparagraph
(B), so long as the Secretary has initiated the
administrative review process no later than 30 days
after the expiration of the removal period (including
any extension of the removal period as provided in
subsection (a)(1)(C)).
``(5) Release on conditions.--If it is determined that an
alien should be released from detention, the Secretary in the
exercise of discretion may impose conditions on release as
provided in subsection (a)(3).
``(6) Redetention.--The Secretary in the exercise of
discretion, without any limitations other than those specified
in this section, may again detain any alien subject to a final
removal order who is released from custody if the alien fails
to comply with the conditions of release or to cooperate in the
alien's removal from the United States, or if, upon
reconsideration, the Secretary determines that the alien can be
detained under paragraph (1). Paragraphs (6) through (8) of
subsection (a) shall apply to any alien returned to custody
pursuant to this paragraph, as if the removal period terminated
on the day of the redetention.
``(7) Certain aliens who effected entry.--If an alien has
effected an entry into the United States but has neither been
lawfully admitted nor physically present in the United States
continuously for the 2-year period immediately prior to the
commencement of removal proceedings under this Act or
deportation proceedings against the alien, the Secretary in the
exercise of discretion may decide not to apply subsection
(a)(8) and this subsection and may detain the alien without any
limitations except those imposed by regulation.''.
(b) Effective Date.--The amendments made by subsection (a) shall
take effect upon the date of enactment of this Act, and section 241 of
the Immigration and Nationality Act, as amended, shall apply to--
(1) all aliens subject to a final administrative removal,
deportation, or exclusion order that was issued before, on, or
after the date of enactment of this Act; and
(2) acts and conditions occurring or existing before, on,
or after the date of enactment of this Act.
SEC. 603. INCREASE IN CRIMINAL PENALTIES.
Section 243 of the Immigration and Nationality Act (8 U.S.C. 1253)
is amended--
(1) in subsection (a)(1)--
(A) in the matter before subparagraph (A), by
inserting ``or 212(a)'' after ``section 237(a)''; and
(B) by striking ``imprisoned not more than four
years'' and inserting ``imprisoned for not less than
six months or more than five years''; and
(2) in subsection (b)--
(A) by striking ``not more than $1,000'' and
inserting ``under title 18, United States Code''; and
(B) by striking ``for not more than one year'' and
inserting ``for not less than six months or more than
five years (or 10 years if the alien is a member of any
class described in paragraph (1)(E), (2), (3), or (4)
of section 237(a)''.
SEC. 604. PRECLUDING ADMISSIBILITY OF AGGRAVATED FELONS AND OTHER
CRIMINALS.
(a) Exclusion Based on Fraudulent Documentation.--Section
212(a)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(2)(A)(i)) is amended--
(1) in subclause (I), by striking ``or'' at the end;
(2) in subclause (II), by adding ``or'' at the end; and
(3) by inserting after subclause (II) the following new
subclause:
``(III) a violation (or a
conspiracy or attempt to violate) an
offense described in section 208 of the
Social Security Act or section 1028 of
title 18, United States Code,''.
(b) Exclusion Based on Aggravated Felony, Unlawful Procurement of
Citizenship, and Crimes of Domestic Violence.--Section 212(a)(2) of
such Act (8 U.S.C. 1182(a)(2)) is amended by adding at the end the
following new subparagraphs:
``(J) Aggravated felony.--Any alien who is
convicted of an aggravated felony at any time is
inadmissible.
``(K) Unlawful procurement of citizenship.--Any
alien convicted of, or who admits having committed, or
who admits committing acts which constitute the
essential elements of, a violation of (or a conspiracy
or attempt to violate) subsection (a) or (b) of section
1425 of title 18, United States Code is inadmissible.
``(L) Crimes of domestic violence, stalking, or
violation of protection orders; crimes against
children.--
``(i) Domestic violence, stalking, or child
abuse.--
``(I) In general.--Subject to
subclause (II), any alien who at any
time is convicted of, or who admits
having committed, or who admits
committing acts which constitute the
essential elements of, a crime of
domestic violence, a crime of stalking,
or a crime of child abuse, child
neglect, or child abandonment is
inadmissible.
``(II) Waiver for victims of
domestic violence.--Subclause (I) shall
not apply to any alien described in
section 237(a)(7)(A).
``(III) Crime of domestic violence
defined.--For purposes of subclause
(I), the term `crime of domestic
violence' means any crime of violence
(as defined in section 16 of title 18,
United States Code) against a person
committed by a current or former spouse
of the person, by an individual with
whom the person shares a child in
common, by an individual who is
cohabiting with or has cohabited with
the person as a spouse, by an
individual similarly situated to a
spouse of the person under the domestic
or family violence laws of the
jurisdiction where the offense occurs,
or by any other individual against a
person who is protected from that
individual's acts under the domestic or
family violence laws of the United
States or any State, Indian tribal
government, or unit of local or foreign
government.
``(ii) Violators of protection orders.--
``(I) In general.--Any alien who at
any time is enjoined under a protection
order issued by a court and whom the
court determines has engaged in conduct
that violates the portion of a
protection order that involves
protection against credible threats of
violence, repeated harassment, or
bodily injury to the person or person
for whom the protection order was
issued is inadmissible.
``(II) Protection order defined.--
For purposes of subclause (I), the term
`protection order' means any injunction
issued for the purpose of preventing
violent or threatening acts of domestic
violence, including temporary or final
orders issued by civil or criminal
courts (other than support or child
custody orders or provisions) whether
obtained by filing an independent
action or as an independent order in
another proceeding.''.
(c) Waiver Authority.--Section 212(h) of such Act (8 U.S.C.
1182(h)) is amended--
(1) by striking ``The Attorney General may, in his
discretion, waive the application of subparagraphs (A)(i)(I),
(B), (D), and (E) of subsection (a)(2)'' and inserting ``The
Attorney General or the Secretary of Homeland Security may, in
the discretion of the Attorney General or such Secretary, waive
the application of subparagraph (A)(i)(I), (A)(i)(III), (B),
(D), (E), (K), and (L) of subsection (a)(2)'';
(2) in paragraphs (1)(A) and (1)(B) and the last sentence,
by inserting ``or the Secretary'' after ``Attorney General''
each place it appears;
(3) in paragraph (2), by striking ``Attorney General, in
his discretion,'' and inserting ``Attorney General or the
Secretary of Homeland Security, in the discretion of the
Attorney General or such Secretary,'';
(4) in paragraph (2), by striking ``as he'' and inserting
``as the Attorney General or the Secretary'';
(5) in the second sentence, by striking ``criminal acts
involving torture'' and inserting ``criminal acts involving
torture, or an aggravated felony''; and
(6) in the third sentence, by striking ``if either since
the date of such admission the alien has been convicted of an
aggravated felony or the alien'' and inserting ``if since the
date of such admission the alien''.
(d) Construction.--The amendments made by this section shall not be
construed to create eligibility for relief from removal under section
212(c) of the Immigration and Nationality Act, as in effect before its
repeal by section 304(b) of the Immigration Reform and Immigrant
Responsibility Act of 1996 (division C of Public Law 104-208), where
such eligibility did not exist before these amendments became
effective.
(e) Effective Date.--The amendments made by this section shall
apply to--
(1) any act that occurred before, on, or after the date of
the enactment of this Act; and
(2) to all aliens who are required to establish
admissibility on or after the such date, and in all removal,
deportation, or exclusion proceedings that are filed, pending,
or reopened, on or after such date.
SEC. 605. PRECLUDING REFUGEE OR ASYLEE ADJUSTMENT OF STATUS FOR
AGGRAVATED FELONIES.
(a) In General.--Section 209(c) of the Immigration and Nationality
Act (8 U.S.C. 1159(c)) is amended by adding at the end the following:
``However, an alien who is convicted of an aggravated felony is not
eligible for a waiver or for adjustment of status under this
section.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply--
(1) to any act that occurred before, on, or after the date
of the enactment of this Act; and
(2) to all aliens who are required to establish
admissibility on or after such date, and in all removal,
deportation, or exclusion proceedings that are filed, pending,
or reopened, on or after such date.
SEC. 606. REMOVING DRUNK DRIVERS.
(a) In General.--Section 101(a)(43)(F) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(43)(F)) is amended by inserting ``,
including a third drunk driving conviction, regardless of the States in
which the convictions occurred, and regardless of whether the offenses
are deemed to be misdemeanors or felonies under State or Federal law,''
after ``offense)''.
(b) Effective Date.--The amendment made by subsection (a) shall
take effect on the date of the enactment of this Act and shall apply to
convictions entered before, on, or after such date.
SEC. 607. DESIGNATED COUNTY LAW ENFORCEMENT ASSISTANCE PROGRAM.
(a) Designated Counties Adjacent to the Southern Border of the
United States Defined.--In this section, the term ``designated counties
adjacent to the southern international border of the United States''
includes a county any part of which is within 25 miles of the southern
international border of the United States.
(b) Authority.--
(1) In general.--Any Sheriff or coalition or group of
Sheriffs from designated counties adjacent to the southern
international border of the United States may transfer aliens
detained or in the custody of the Sheriff who are not lawfully
present in the United States to appropriate Federal law
enforcement officials, and shall be promptly paid for the costs
of performing such transfers by the Attorney General for any
local or State funds previously expended or proposed to be
spent by that Sheriff or coalition or group of Sheriffs.
(2) Payment of costs.--Payment of costs under paragraph (1)
shall include payment for costs of detaining, housing, and
transporting aliens who are not lawfully present in the United
States or who have unlawfully entered the United States at a
location other than a port of entry and who are taken into
custody by the Sheriff.
(3) Limitation to future costs.--In no case shall payment
be made under this section for costs incurred before the date
of the enactment of this Act.
(4) Advance payment of costs.--The Attorney General shall
make an advance payment under this section upon a certification
of anticipated costs for which payment may be made under this
section, but in no case shall such an advance payment cover a
period of costs of longer than 3 months.
(c) Designated County Law Enforcement Account.--
(1) Separate account.--Reimbursement or pre-payment under
subsection (b) shall be made promptly from funds deposited into
a separate account in the Treasury of the United States to be
entitled the ``Designated County Law Enforcement Account''.
(2) Availability of funds.--All deposits into the
Designated County Law Enforcement Account shall remain
available until expended to the Attorney General to carry out
the provisions of this section.
(3) Promptly defined.--For purposes of this section, the
term ``promptly'' means within 60 days.
(d) Funds for the Designated County Law Enforcement Account.--Only
funds designated, authorized, or appropriated by Congress may be
deposited or transferred to the Designated County Law Enforcement
Account. The Designated County Law Enforcement Account is authorized to
receive up to $100,000,000 per year.
(e) Use of Funds.--
(1) In general.--Funds provided under this section shall be
payable directly to participating Sheriff's offices and may be
used for the transfers described in subsection (b)(1),
including the costs of personnel (such as overtime pay and
costs for reserve deputies), costs of training of such
personnel, equipment, and, subject to paragraph (2), the
construction, maintenance, and operation of detention
facilities to detain aliens who are unlawfully present in the
United States. For purposes of this section, an alien who is
unlawfully present in the United States shall be deemed to be a
Federal prisoner beginning upon determination by Federal law
enforcement officials that such alien is unlawfully present in
the United States, and such alien shall, upon such
determination, be deemed to be in Federal custody. In order for
costs to be eligible for payment, the Sheriff making such
application shall personally certify under oath that all costs
submitted in the application for reimbursement or advance
payment meet the requirements of this section and are
reasonable and necessary, and such certification shall be
subject to all State and Federal laws governing statements made
under oath, including the penalties of perjury, removal from
office, and prosecution under State and Federal law.
(2) Limitation.--Not more than 20 percent of the amount of
funds provided under this section may be used for the
construction or renovation of detention or similar facilities.
(f) Disposition and Delivery of Detained Aliens.--All aliens
detained or taken into custody by a Sheriff under this section and with
respect to whom Federal law enforcement officials determine are
unlawfully present in the United States, shall be immediately delivered
to Federal law enforcement officials. In accordance with subsection
(e)(1), an alien who is in the custody of a Sheriff shall be deemed to
be a Federal prisoner and in Federal custody.
(g) Regulations.--The Attorney General shall issue, on an interim
final basis, regulations not later than 60 days after the date of the
enactment of this Act--
(1) governing the distribution of funds under this section
for all reasonable and necessary costs and other expenses
incurred or proposed to be incurred by a Sheriff or coalition
or group of Sheriffs under this section; and
(2) providing uniform standards that all other Federal law
enforcement officials shall follow to cooperate with such
Sheriffs and to otherwise implement the requirements of this
section.
(h) Effective Date.--The provisions of this section shall take
effect on its enactment. The promulgation of any regulations under
subsection (g) is not a necessary precondition to the immediate
deployment or work of Sheriffs personnel or corrections officers as
authorized by this section. Any reasonable and necessary expenses or
costs authorized by this section and incurred by such Sheriffs after
the date of the enactment of this Act but prior to the date of the
promulgation of such regulations are eligible for reimbursement under
the terms and conditions of this section.
(i) Audit.--All funds paid out under this section are subject to
audit by the Inspector General of the Department of Justice and abuse
or misuse of such funds shall be vigorously investigated and prosecuted
to the full extent of Federal law.
(j) Supplemental Funding.--All funds paid out under this section
must supplement, and may not supplant, State or local funds used for
the same or similar purposes.
SEC. 608. RENDERING INADMISSIBLE AND DEPORTABLE ALIENS PARTICIPATING IN
CRIMINAL STREET GANGS; DETENTION; INELIGIBILITY
FROM PROTECTION FROM REMOVAL AND ASYLUM.
(a) Inadmissible.--Section 212(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(2)), as amended by section 604(b), is
further amended by adding at the end the following:
``(M) Criminal street gang participation.--
``(i) In general.--Any alien is
inadmissible if the alien has been removed
under section 237(a)(2)(F), or if the consular
officer or the Secretary of Homeland Security
knows, or has reasonable ground to believe that
the alien--
``(I) is a member of a criminal
street gang and has committed,
conspired, or threatened to commit, or
seeks to enter the United States to
engage solely, principally, or
incidentally in, a gang crime or any
other unlawful activity; or
``(II) is a member of a criminal
street gang designated under section
219A.
``(ii) Criminal street gang defined.--For
purposes of this subparagraph, the term
`criminal street gang' means a formal or
informal group or association of 3 or more
individuals, who commit 2 or more gang crimes
(one of which is a crime of violence, as
defined in section 16 of title 18, United
States Code) in 2 or more separate criminal
episodes in relation to the group or
association.
``(iii) Gang crime defined.--For purposes
of this subparagraph, the term `gang crime'
means conduct constituting any Federal or State
crime, punishable by imprisonment for one year
or more, in any of the following categories:
``(I) A crime of violence (as
defined in section 16 of title 18,
United States Code).
``(II) A crime involving
obstruction of justice, tampering with
or retaliating against a witness,
victim, or informant, or burglary.
``(III) A crime involving the
manufacturing, importing, distributing,
possessing with intent to distribute,
or otherwise dealing in a controlled
substance or listed chemical (as those
terms are defined in section 102 of the
Controlled Substances Act (21 U.S.C.
802)).
``(IV) Any conduct punishable under
section 844 of title 18, United States
Code (relating to explosive materials),
subsection (d), (g)(1) (where the
underlying conviction is a violent
felony (as defined in section
924(e)(2)(B) of such title) or is a
serious drug offense (as defined in
section 924(e)(2)(A)), (i), (j), (k),
(o), (p), (q), (u), or (x) of section
922 of such title (relating to unlawful
acts), or subsection (b), (c), (g),
(h), (k), (l), (m), or (n) of section
924 of such title (relating to
penalties), section 930 of such title
(relating to possession of firearms and
dangerous weapons in Federal
facilities), section 931 of such title
(relating to purchase, ownership, or
possession of body armor by violent
felons), sections 1028 and 1029 of such
title (relating to fraud and related
activity in connection with
identification documents or access
devices), section 1952 of such title
(relating to interstate and foreign
travel or transportation in aid of
racketeering enterprises), section 1956
of such title (relating to the
laundering of monetary instruments),
section 1957 of such title (relating to
engaging in monetary transactions in
property derived from specified
unlawful activity), or sections 2312
through 2315 of such title (relating to
interstate transportation of stolen
motor vehicles or stolen property).
``(V) Any conduct punishable under
section 274 (relating to bringing in
and harboring certain aliens), section
277 (relating to aiding or assisting
certain aliens to enter the United
States), or section 278 (relating to
importation of alien for immoral
purpose) of this Act.''.
(b) Deportable.--Section 237(a)(2) of such Act (8 U.S.C.
1227(a)(2)) is amended by adding at the end the following:
``(F) Criminal street gang participation.--
``(i) In general.--Any alien is deportable
who--
``(I) is a member of a criminal
street gang and is convicted of
committing, or conspiring, threatening,
or attempting to commit, a gang crime;
or
``(II) is determined by the
Secretary of Homeland Security to be a
member of a criminal street gang
designated under section 219A.
``(ii) Definitions.--For purposes of this
subparagraph, the terms `criminal street gang'
and `gang crime' have the meaning given such
terms in section 212(a)(2)(M).''.
(c) Designation of Criminal Street Gangs.--
(1) In general.--Chapter 2 of title II of the Immigration
and Nationality Act (8 U.S.C. 1181 et seq.) is amended by
adding at the end the following:
``designation of criminal street gangs
``Sec. 219A. (a) Designation.--
``(1) In general.--The Attorney General is authorized to
designate a group or association as a criminal street gang in
accordance with this subsection if the Attorney General finds
that the group or association meets the criteria described in
section 212(a)(2)(M)(ii)(I).
``(2) Procedure.--
``(A) Notice.--
``(i) To congressional leaders.--Seven days
before making a designation under this
subsection, the Attorney General shall notify
the Speaker and Minority Leader of the House of
Representatives and the Majority Leader and
Minority Leader of the Senate, and the members
of the relevant committees of the House of
Representatives and the Senate, in writing, of
the intent to designate a group or association
under this subsection, together with the
findings made under paragraph (1) with respect
to that group or association, and the factual
basis therefor.
``(ii) Publication in federal register.--
The Attorney shall publish the designation in
the Federal Register seven days after providing
the notification under clause (i).
``(B) Effect of designation.--
``(i) A designation under this subsection
shall take effect upon publication under
subparagraph (A)(ii).
``(ii) Any designation under this
subsection shall cease to have effect upon an
Act of Congress disapproving such designation.
``(3) Record.--In making a designation under this
subsection, the Attorney General shall create an administrative
record.
``(4) Period of designation.--
``(A) In general.--A designation under this
subsection shall be effective for all purposes until
revoked under paragraph (5) or (6) or set aside
pursuant to subsection (b).
``(B) Review of designation upon petition.--
``(i) In general.--The Attorney General
shall review the designation of a criminal
street gang under the procedures set forth in
clauses (iii) and (iv) if the designated gang
or association files a petition for revocation
within the petition period described in clause
(ii).
``(ii) Petition period.--For purposes of
clause (i)--
``(I) if the designated gang or
association has not previously filed a
petition for revocation under this
subparagraph, the petition period
begins 2 years after the date on which
the designation was made; or
``(II) if the designated gang or
association has previously filed a
petition for revocation under this
subparagraph, the petition period
begins 2 years after the date of the
determination made under clause (iv) on
that petition.
``(iii) Procedures.--Any criminal street
gang that submits a petition for revocation
under this subparagraph must provide evidence
in that petition that the relevant
circumstances described in paragraph (1) are
sufficiently different from the circumstances
that were the basis for the designation such
that a revocation with respect to the gang is
warranted.
``(iv) Determination.--
``(I) In general.--Not later than
180 days after receiving a petition for
revocation submitted under this
subparagraph, the Attorney General
shall make a determination as to such
revocation.
``(II) Publication of
determination.--A determination made by
the Attorney General under this clause
shall be published in the Federal
Register.
``(III) Procedures.--Any revocation
by the Attorney General shall be made
in accordance with paragraph (6).
``(C) Other review of designation.--
``(i) In general.--If in a 5-year period no
review has taken place under subparagraph (B),
the Attorney General shall review the
designation of the criminal street gang in
order to determine whether such designation
should be revoked pursuant to paragraph (6).
``(ii) Procedures.--If a review does not
take place pursuant to subparagraph (B) in
response to a petition for revocation that is
filed in accordance with that subparagraph,
then the review shall be conducted pursuant to
procedures established by the Attorney General.
The results of such review and the applicable
procedures shall not be reviewable in any
court.
``(iii) Publication of results of review.--
The Attorney General shall publish any
determination made pursuant to this
subparagraph in the Federal Register.
``(5) Revocation by act of congress.--The Congress, by an
Act of Congress, may block or revoke a designation made under
paragraph (1).
``(6) Revocation based on change in circumstances.--
``(A) In general.--The Attorney General may revoke
a designation made under paragraph (1) at any time, and
shall revoke a designation upon completion of a review
conducted pursuant to subparagraphs (B) and (C) of
paragraph (4) if the Attorney General finds that the
circumstances that were the basis for the designation
have changed in such a manner as to warrant revocation.
``(B) Procedure.--The procedural requirements of
paragraphs (2) and (3) shall apply to a revocation
under this paragraph. Any revocation shall take effect
on the date specified in the revocation or upon
publication in the Federal Register if no effective
date is specified.
``(7) Effect of revocation.--The revocation of a
designation under paragraph (5) or (6) shall not affect any
action or proceeding based on conduct committed prior to the
effective date of such revocation.
``(8) Use of designation in hearing.--If a designation
under this subsection has become effective under paragraph
(2)(B) an alien in a removal proceeding shall not be permitted
to raise any question concerning the validity of the issuance
of such designation as a defense or an objection at any
hearing.
``(b) Judicial Review of Designation.--
``(1) In general.--Not later than 30 days after publication
of the designation in the Federal Register, a group or
association designated as a criminal street gang may seek
judicial review of the designation in the United States Court
of Appeals for the District of Columbia Circuit.
``(2) Basis of review.--Review under this subsection shall
be based solely upon the administrative record.
``(3) Scope of review.--The Court shall hold unlawful and
set aside a designation the court finds to be--
``(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
``(B) contrary to constitutional right, power,
privilege, or immunity;
``(C) in excess of statutory jurisdiction,
authority, or limitation, or short of statutory right;
``(D) lacking substantial support in the
administrative record taken as a whole; or
``(E) not in accord with the procedures required by
law.
``(4) Judicial review invoked.--The pendency of an action
for judicial review of a designation shall not affect the
application of this section, unless the court issues a final
order setting aside the designation.
``(c) Relevant Committee Defined.--As used in this section, the
term `relevant committees' means the Committees on the Judiciary of the
House of Representatives and of the Senate.''.
(2) Clerical amendment.--The table of contents of such Act
(8 U.S.C. 1101 et seq.) is amended by inserting after the item
relating to section 219 the following:
``Sec. 219A. Designation of criminal street gangs.''.
(d) Mandatory Detention of Criminal Street Gang Members.--
(1) In general.--Section 236(c)(1)(D) of the Immigration
and Nationality Act (8 U.S.C. 1226(c)(1)(D)) is amended--
(A) by inserting ``or 212(a)(2)(M)'' after
``212(a)(3)(B)''; and
(B) by inserting ``237(a)(2)(F) or'' before
``237(a)(4)(B)''.
(2) Annual report.--Not later than March 1 of each year
(beginning 1 year after the date of the enactment of this Act),
the Secretary of Homeland Security, after consultation with the
appropriate Federal agencies, shall submit a report to the
Committees on the Judiciary of the House of Representatives and
of the Senate on the number of aliens detained under the
amendments made by paragraph (1).
(3) Effective date.--This subsection and the amendments
made by this subsection are effective as of the date of
enactment of this Act and shall apply to aliens detained on or
after such date.
(e) Ineligibility of Alien Street Gang Members From Protection From
Removal and Asylum.--
(1) Inapplicability of restriction on removal to certain
countries.--Section 241(b)(3)(B) of the Immigration and
Nationality Act (8 U.S.C. 1251(b)(3)(B)) is amended, in the
matter preceding clause (i), by inserting ``who is described in
section 212(a)(2)(M)(i) or section 237(a)(2)(F)(i) or who is''
after ``to an alien''.
(2) Ineligibility for asylum.--Section 208(b)(2)(A) of such
Act (8 U.S.C. 1158(b)(2)(A)) is amended--
(A) in clause (v), by striking ``or'' at the end;
(B) by redesignating clause (vi) as clause (vii);
and
(C) by inserting after clause (v) the following:
``(vi) the alien is described in section
212(a)(2)(M)(i) or section 237(a)(2)(F)(i)
(relating to participation in criminal street
gangs); or''.
(3) Denial of review of determination of ineligibility for
temporary protected status.--Section 244(c)(2) of such Act (8
U.S.C. 1254(c)(2)) is amended by adding at the end the
following:
``(C) Limitation on judicial review.--There shall
be no judicial review of any finding under subparagraph
(B) that an alien is in described in section
208(b)(2)(A)(vi).''.
(4) Effective date.--The amendments made by this subsection
are effective on the date of enactment of this Act and shall
apply to all applications pending on or after such date.
(f) Effective Date.--Except as otherwise provided, the amendments
made by this section are effective as of the date of enactment and
shall apply to all pending cases in which no final administrative
action has been entered.
SEC. 609. NATURALIZATION REFORM.
(a) Barring Terrorists From Naturalization.--Section 316 of the
Immigration and Nationality Act (8 U.S.C. 1427) is amended by adding at
the end the following new subsection:
``(g) No person shall be naturalized who the Secretary of Homeland
Security determines, in the Secretary's discretion, to have been at any
time an alien described in section 212(a)(3) or 237(a)(4). Such
determination may be based upon any relevant information or evidence,
including classified, sensitive, or national security information, and
shall be binding upon, and unreviewable by, any court exercising
jurisdiction under the immigration laws over any application for
naturalization, regardless whether such jurisdiction to review a
decision or action of the Secretary is de novo or otherwise.''.
(b) Concurrent Naturalization and Removal Proceedings.--The last
sentence of section 318 of such Act (8 U.S.C. 1429) is amended--
(1) by striking ``shall be considered by the Attorney
General'' and inserting ``shall be considered by the Secretary
of Homeland Security or any court'';
(2) by striking ``pursuant to a warrant of arrest issued
under the provisions of this or any other Act:'' and inserting
``or other proceeding to determine the applicant's
inadmissibility or deportability, or to determine whether the
applicant's lawful permanent resident status should be
rescinded, regardless of when such proceeding was commenced:'';
and
(3) by striking ``upon the Attorney General'' and inserting
``upon the Secretary of Homeland Security''.
(c) Pending Denaturalization or Removal Proceedings.--Section
204(b) of such Act (8 U.S.C. 1154(b)) is amended by adding at the end
the following: ``No petition shall be approved pursuant to this section
if there is any administrative or judicial proceeding (whether civil or
criminal) pending against the petitioner that could (whether directly
or indirectly) result in the petitioner's denaturalization or the loss
of the petitioner's lawful permanent resident status.''.
(d) Conditional Permanent Residents.--Section 216(e) and section
216A(e) of such Act (8 U.S.C. 1186a(e), 1186b(e)) are each amended by
inserting before the period at the end the following: ``, if the alien
has had the conditional basis removed under this section''.
(e) District Court Jurisdiction.--Section 336(b) of such Act (8
U.S.C. 1447(b)) is amended to read as follows:
``(b) If there is a failure to render a final administrative
decision under section 335 before the end of the 180-day period after
the date on which the Secretary of Homeland Security completes all
examinations and interviews conducted under such section, as such terms
are defined by the Secretary pursuant to regulations, the applicant may
apply to the district court for the district in which the applicant
resides for a hearing on the matter. Such court shall only have
jurisdiction to review the basis for delay and remand the matter to the
Secretary for the Secretary's determination on the application.''.
(f) Conforming Amendments.--Section 310(c) of such Act (8 U.S.C.
1421(c)) is amended--
(1) by inserting ``, no later than the date that is 120
days after the Secretary's final determination'' before
``seek''; and
(2) by striking the second sentence and inserting the
following: ``The burden shall be upon the petitioner to show
that the Secretary's denial of the application was not
supported by facially legitimate and bona fide reasons. Except
in a proceeding under section 340, notwithstanding any other
provision of law (statutory or nonstatutory), including section
2241 of title 28, United States Code, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, no
court shall have jurisdiction to determine, or to review a
determination of the Secretary made at any time regarding, for
purposes of an application for naturalization, whether an alien
is a person of good moral character, whether an alien
understands and is attached to the principles of the
Constitution of the United States, or whether an alien is well
disposed to the good order and happiness of the United
States.''.
(g) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act, shall apply to any act
that occurred before, on, or after such date, and shall apply to any
application for naturalization or any other case or matter under the
immigration laws pending on, or filed on or after, such date.
SEC. 610. EXPEDITED REMOVAL FOR ALIENS INADMISSIBLE ON CRIMINAL OR
SECURITY GROUNDS.
(a) In General.--Section 238(b) of the Immigration and Nationality
Act (8 U.S.C. 1228(b)) is amended-
(1) in paragraph (1)--
(A) by striking ``Attorney General'' and inserting
``Secretary of Homeland Security in the exercise of
discretion''; and
(B) by striking ``set forth in this subsection or''
and inserting ``set forth in this subsection, in lieu
of removal proceedings under'';
(2) in paragraph (3), by striking ``paragraph (1) until 14
calendar days'' and inserting ``paragraph (1) or (3) until 7
calendar days'';
(3) by striking ``Attorney General'' each place it appears
in paragraphs (3) and (4) and inserting ``Secretary of Homeland
Security'';
(4) in paragraph (5)--
(A) by striking ``described in this section'' and
inserting ``described in paragraph (1) or (2)''; and
(B) by striking ``the Attorney General may grant in
the Attorney General's discretion'' and inserting ``the
Secretary of Homeland Security or the Attorney General
may grant, in the discretion of the Secretary or
Attorney General, in any proceeding'';
(5) by redesignating paragraphs (3), (4), and (5) as
paragraphs (4), (5), and (6), respectively; and
(6) by inserting after paragraph (2) the following new
paragraph:
``(3) The Secretary of Homeland Security in the exercise of
discretion may determine inadmissibility under section
212(a)(2) (relating to criminal offenses) and issue an order of
removal pursuant to the procedures set forth in this
subsection, in lieu of removal proceedings under section 240,
with respect to an alien who
``(A) has not been admitted or paroled;
``(B) has not been found to have a credible fear of
persecution pursuant to the procedures set forth in
section 235(b)(1)(B); and
``(C) is not eligible for a waiver of
inadmissibility or relief from removal.''.
(b) Effective Date.--The amendments made by subsection (a) shall
take effect on the date of the enactment of this Act but shall not
apply to aliens who are in removal proceedings under section 240 of the
Immigration and Nationality Act as of such date
SEC. 611. TECHNICAL CORRECTION FOR EFFECTIVE DATE IN CHANGE IN
INADMISSIBILITY FOR TERRORISTS UNDER REAL ID ACT.
Effective as if included in the enactment of Public Law 109-13,
section 103(d)(1) of the REAL ID Act of 2005 (division B of such Public
Law) is amended by inserting ``, deportation, and exclusion'' after
``removal''.
SEC. 612. BAR TO GOOD MORAL CHARACTER.
(a) In General.--Section 101(f) of the Immigration and Nationality
Act (8 U.S.C. 1101(f)) is amended--
(1) by inserting after paragraph (1) the following new
paragraph:
``(2) one who the Secretary of Homeland Security or the
Attorney General determines, in the unreviewable discretion of
the Secretary or the Attorney General, to have been at any time
an alien described in section 212(a)(3) or section 237(a)(4),
which determination may be based upon any relevant information
or evidence, including classified, sensitive, or national
security information, and which shall be binding upon any court
regardless of the applicable standard of review;'';
(2) in paragraph (8), by inserting ``, regardless whether
the crime was classified as an aggravated felony at the time of
conviction'' after ``(as defined in subsection (a)(43))''; and
(3) by striking the sentence following paragraph (9) and
inserting the following: ``The fact that any person is not
within any of the foregoing classes shall not preclude a
discretionary finding for other reasons that such a person is
or was not of good moral character. The Secretary and the
Attorney General shall not be limited to the applicant's
conduct during the period for which good moral character is
required, but may take into consideration as a basis for
determination the applicant's conduct and acts at any time.''.
(b) Aggravated Felony Effective Date.--Section 509(b) of the
Immigration Act of 1990 (Public Law 101-649), as amended by section
306(a)(7) of the Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991 (Public Law 102-232) is amended to
read as follows:
``(b) Effective Date.--The amendment made by subsection (a) shall
take effect on November 29, 1990, and shall apply to convictions
occurring before, on, or after such date.''.
(c) Technical Correction to the Intelligence Reform Act.--Effective
as if included in the enactment of the Intelligence Reform and
Terrorism Prevention Act of 2004 (Public Law 108-458), section 5504(2)
of such Act is amended by striking ``adding at the end'' and inserting
``inserting immediately after paragraph (8)''.
(d) Effective Dates.--The amendments made by subsections (a) and
(b) shall take effect on the date of the enactment of this Act, shall
apply to any act that occurred before, on, or after such date, and
shall apply to any application for naturalization or any other benefit
or relief or any other case or matter under the immigration laws
pending on, or filed on or after, such date.
SEC. 613. STRENGTHENING DEFINITIONS OF ``AGGRAVATED FELONY'' AND
``CONVICTION''.
(a) In General.--Section 101(a) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)) is amended--
(1) by amending subparagraph (A) of paragraph (43) to read
as follows:
``(A) murder, manslaughter, homicide, rape, or any
sexual abuse of a minor, whether or not the minority of
the victim is established by evidence contained in the
record of conviction or by evidence extrinsic to the
record of conviction;''; and
(2) in paragraph (48)(A), by inserting after and below
clause (ii) the following:
``Any reversal, vacatur, expungement, or modification to a conviction,
sentence, or conviction record that was granted to ameliorate the
consequences of the conviction, sentence, or conviction record, or was
granted for rehabilitative purposes, or for failure to advise the alien
of the immigration consequences of a guilty plea or a determination of
guilt, shall have no effect on the immigration consequences resulting
from the original conviction. The alien shall have the burden of
demonstrating that the reversal, vacatur, expungement, or modification
was not granted to ameliorate the consequences of the conviction,
sentence, or conviction record, for rehabilitative purposes, or for
failure to advise the alien of the immigration consequences of a guilty
plea or a determination of guilt.''.
(b) Effective Date.--The amendments made by subsection (a) shall
apply to any act that occurred before, on, or after the date of the
enactment of this Act and shall apply to any matter under the
immigration laws pending on, or filed on or after, such date.
SEC. 614. DEPORTABILITY FOR CRIMINAL OFFENSES.
(a) In General.--Section 237(a)(3)(B) of the Immigration and
Nationality Act (8 U.S.C. 1227(a)(3)(B)) is amended--
(1) in clause (ii), by striking ``or'' at the end;
(2) in clause (iii), by inserting ``or'' at the end; and
(3) by inserting after clause (iii) the following new
clause:
``(iv) of a violation of, or an attempt or
a conspiracy to violate, subsection (a) or (b)
of section 1425 of title 18, United States
Code,''.
(b) Deportability; Criminal Offenses.--Section 237(a)(2) of such
Act (8 U.S.C. 1227(a)(2)), as amended by section 608(b), is amended by
adding at the end the following new subparagraph:
``(G) Social security and identification fraud.--
Any alien who at any time after admission is convicted
of a violation of (or a conspiracy or attempt to
violate) an offense described in section 208 of the
Social Security Act or section 1028 of title 18, United
States Code is deportable.''.
(c) Effective Date.--The amendments made by this section shall
apply to any act that occurred before, on, or after the date of the
enactment of this Act, and to all aliens who are required to establish
admissibility on or after such date and in all removal, deportation, or
exclusion proceedings that are filed, pending, or reopened, on or after
such date.
TITLE VII--EMPLOYMENT ELIGIBILITY VERIFICATION
SEC. 701. EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.
(a) In General.--Section 274A(b) of the Immigration and Nationality
Act (8 U.S.C. 1324a(b)) is amended by adding at the end the following:
``(7) Employment eligibility verification system.--
``(A) In general.--The Secretary of Homeland
Security shall establish and administer a verification
system through which the Secretary (or a designee of
the Secretary, which may be a nongovernmental entity)--
``(i) responds to inquiries made by persons
at any time through a toll-free telephone line
and other toll-free electronic media concerning
an individual's identity and whether the
individual is authorized to be employed; and
``(ii) maintains records of the inquiries
that were made, of verifications provided (or
not provided), and of the codes provided to
inquirers as evidence of their compliance with
their obligations under this section.
``(B) Initial response.--The verification system
shall provide verification or a tentative
nonverification of an individual's identity and
employment eligibility within 3 working days of the
initial inquiry. If providing verification or tentative
nonverification, the verification system shall provide
an appropriate code indicating such verification or
such nonverification.
``(C) Secondary verification process in case of
tentative nonverification.--In cases of tentative
nonverification, the Secretary shall specify, in
consultation with the Commissioner of Social Security,
an available secondary verification process to confirm
the validity of information provided and to provide a
final verification or nonverification within 10 working
days after the date of the tentative nonverification.
When final verification or nonverification is provided,
the verification system shall provide an appropriate
code indicating such verification or nonverification.
``(D) Design and operation of system.--The
verification system shall be designed and operated--
``(i) to maximize its reliability and ease
of use by persons and other entities consistent
with insulating and protecting the privacy and
security of the underlying information;
``(ii) to respond to all inquiries made by
such persons and entities on whether
individuals are authorized to be employed and
to register all times when such inquiries are
not received;
``(iii) with appropriate administrative,
technical, and physical safeguards to prevent
unauthorized disclosure of personal
information; and
``(iv) to have reasonable safeguards
against the system's resulting in unlawful
discriminatory practices based on national
origin or citizenship status, including--
``(I) the selective or unauthorized
use of the system to verify
eligibility;
``(II) the use of the system prior
to an offer of employment; or
``(III) the exclusion of certain
individuals from consideration for
employment as a result of a perceived
likelihood that additional verification
will be required, beyond what is
required for most job applicants.
``(E) Responsibilities of the commissioner of
social security.--As part of the verification system,
the Commissioner of Social Security, in consultation
with the Secretary of Homeland Security (and any
designee of the Secretary selected to establish and
administer the verification system), shall establish a
reliable, secure method, which, within the time periods
specified under subparagraphs (B) and (C), compares the
name and social security account number provided in an
inquiry against such information maintained by the
Commissioner in order to validate (or not validate) the
information provided regarding an individual whose
identity and employment eligibility must be confirmed,
the correspondence of the name and number, and whether
the individual has presented a social security account
number that is not valid for employment. The
Commissioner shall not disclose or release social
security information (other than such verification or
nonverification) except as provided for in this section
or section 205(c)(2)(I) of the Social Security Act.
``(F) Responsibilities of the secretary of homeland
security.--(i) As part of the verification system, the
Secretary of Homeland Security (in consultation with
any designee of the Secretary selected to establish and
administer the verification system), shall establish a
reliable, secure method, which, within the time periods
specified under subparagraphs (B) and (C), compares the
name and alien identification or authorization number
which are provided in an inquiry against such
information maintained by the Secretary in order to
validate (or not validate) the information provided,
the correspondence of the name and number, and whether
the alien is authorized to be employed in the United
States.
``(ii) When a single employer has submitted to the
verification system pursuant to paragraph (3)(A) the
identical social security account number in more than
one instance, or when multiple employers have submitted
to the verification system pursuant to such paragraph
the identical social security account number, in a
manner which indicates the possible fraudulent use of
that number, the Secretary of Homeland Security shall
conduct an investigation, within the time periods
specified in subparagraphs (B) and (C), in order to
ensure that no fraudulent use of a social security
account number has taken place. If the Secretary has
selected a designee to establish and administer the
verification system, the designee shall notify the
Secretary when a single employer has submitted to the
verification system pursuant to paragraph (3)(A) the
identical social security account number in more than
one instance, or when multiple employers have submitted
to the verification system pursuant to such paragraph
the identical social security account number, in a
manner which indicates the possible fraudulent use of
that number. The designee shall also provide the
Secretary with all pertinent information, including the
name and address of the employer or employers who
submitted the relevant social security account number,
the relevant social security account number submitted
by the employer or employers, and the relevant name and
date of birth of the employee submitted by the employer
or employers.
``(G) Updating information.--The Commissioner of
Social Security and the Secretary of Homeland Security
shall update their information in a manner that
promotes the maximum accuracy and shall provide a
process for the prompt correction of erroneous
information, including instances in which it is brought
to their attention in the secondary verification
process described in subparagraph (C).
``(H) Limitation on use of the verification system
and any related systems.--
``(i) In general.--Notwithstanding any
other provision of law, nothing in this
paragraph shall be construed to permit or allow
any department, bureau, or other agency of the
United States Government to utilize any
information, data base, or other records
assembled under this paragraph for any other
purpose other than as provided for.
``(ii) No national identification card.--
Nothing in this paragraph shall be construed to
authorize, directly or indirectly, the issuance
or use of national identification cards or the
establishment of a national identification
card.
``(I) Federal tort claims act.--If an individual
alleges that the individual would not have been
dismissed from a job but for an error of the
verification mechanism, the individual may seek
compensation only through the mechanism of the Federal
Tort Claims Act, and injunctive relief to correct such
error. No class action may be brought under this
subparagraph.
``(J) Protection from liability for actions taken
on the basis of information.--No person or entity shall
be civilly or criminally liable for any action taken in
good faith reliance on information provided through the
employment eligibility verification mechanism
established under this paragraph.''.
(b) Repeal of Provision Relating to Evaluations and Changes in
Employment Verification.--Section 274A(d) (8 U.S.C. 1324a(d)) is
repealed.
SEC. 702. EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS.
Section 274A of the Immigration and Nationality Act (8 U.S.C.
1324a) is amended--
(1) in subsection (a)(3), by inserting ``(A)'' after
``Defense.--'', and by adding at the end the following:
``(B) Failure to seek and obtain verification.--In the case
of a person or entity in the United States that hires, or
continues to employ, an individual, or recruits or refers an
individual for employment, the following requirements apply:
``(i) Failure to seek verification.--
``(I) In general.--If the person or entity
has not made an inquiry, under the mechanism
established under subsection (b)(7), seeking
verification of the identity and work
eligibility of the individual, by not later
than the end of 3 working days (as specified by
the Secretary of Homeland Security) after the
date of the hiring, the date specified in
subsection (b)(8)(B) for previously hired
individuals, or before the recruiting or
referring commences, the defense under
subparagraph (A) shall not be considered to
apply with respect to any employment, except as
provided in subclause (II).
``(II) Special rule for failure of
verification mechanism.--If such a person or
entity in good faith attempts to make an
inquiry in order to qualify for the defense
under subparagraph (A) and the verification
mechanism has registered that not all inquiries
were responded to during the relevant time, the
person or entity can make an inquiry until the
end of the first subsequent working day in
which the verification mechanism registers no
nonresponses and qualify for such defense.
``(ii) Failure to obtain verification.--If the
person or entity has made the inquiry described in
clause (i)(I) but has not received an appropriate
verification of such identity and work eligibility
under such mechanism within the time period specified
under subsection (b)(7)(B) after the time the
verification inquiry was received, the defense under
subparagraph (A) shall not be considered to apply with
respect to any employment after the end of such time
period.'';
(2) by amending subparagraph (A) of subsection (b)(1) to
read as follows:
``(A) In general.--The person or entity must
attest, under penalty of perjury and on a form
designated or established by the Secretary by
regulation, that it has verified that the individual is
not an unauthorized alien by--
``(i) obtaining from the individual the
individual's social security account number and
recording the number on the form (if the
individual claims to have been issued such a
number), and, if the individual does not attest
to United States citizenship under paragraph
(2), obtaining such identification or
authorization number established by the
Department of Homeland Security for the alien
as the Secretary of Homeland Security may
specify, and recording such number on the form;
and
``(ii)(I) examining a document described in
subparagraph (B); or (II) examining a document
described in subparagraph (C) and a document
described in subparagraph (D).
A person or entity has complied with the requirement of
this paragraph with respect to examination of a
document if the document reasonably appears on its face
to be genuine, reasonably appears to pertain to the
individual whose identity and work eligibility is being
verified, and, if the document bears an expiration
date, that expiration date has not elapsed. If an
individual provides a document (or combination of
documents) that reasonably appears on its face to be
genuine, reasonably appears to pertain to the
individual whose identity and work eligibility is being
verified, and is sufficient to meet the first sentence
of this paragraph, nothing in this paragraph shall be
construed as requiring the person or entity to solicit
the production of any other document or as requiring
the individual to produce another document.'';
(3) in subsection (b)(1)(D)--
(A) in clause (i), by striking ``or such other
personal identification information relating to the
individual as the Attorney General finds, by
regulation, sufficient for purposes of this section'';
and
(B) in clause (ii), by inserting before the period
``and that contains a photograph of the individual'';
(4) in subsection (b)(2), by adding at the end the
following: ``The individual must also provide that individual's
social security account number (if the individual claims to
have been issued such a number), and, if the individual does
not attest to United States citizenship under this paragraph,
such identification or authorization number established by the
Department of Homeland Security for the alien as the Secretary
may specify.''; and
(5) by amending paragraph (3) of subsection (b) to read as
follows:
``(3) Retention of verification form and verification.--
``(A) In general.--After completion of such form in
accordance with paragraphs (1) and (2), the person or
entity must--
``(i) retain a paper, microfiche,
microfilm, or electronic version of the form
and make it available for inspection by
officers of the Department of Homeland
Security, the Special Counsel for Immigration-
Related Unfair Employment Practices, or the
Department of Labor during a period beginning
on the date of the hiring, recruiting, or
referral of the individual or the date of the
completion of verification of a previously
hired individual and ending--
``(I) in the case of the recruiting
or referral of an individual, three
years after the date of the recruiting
or referral;
``(II) in the case of the hiring of
an individual, the later of--
``(aa) three years after
the date of such hiring; or
``(bb) one year after the
date the individual's
employment is terminated; and
``(III) in the case of the
verification of a previously hired
individual, the later of--
``(aa) three years after
the date of the completion of
verification; or
``(bb) one year after the
date the individual's
employment is terminated;
``(ii) make an inquiry, as provided in
paragraph (7), using the verification system to
seek verification of the identity and
employment eligibility of an individual, by not
later than the end of 3 working days (as
specified by the Secretary of Homeland
Security) after the date of the hiring or in
the case of previously hired individuals, the
date specified in subsection (b)(8)(B), or
before the recruiting or referring commences;
and
``(iii) may not commence recruitment or
referral of the individual until the person or
entity receives verification under subparagraph
(B)(i) or (B)(iii).
``(B) Verification.--
``(i) Verification received.--If the person
or other entity receives an appropriate
verification of an individual's identity and
work eligibility under the verification system
within the time period specified, the person or
entity shall record on the form an appropriate
code that is provided under the system and that
indicates a final verification of such identity
and work eligibility of the individual.
``(ii) Tentative nonverification
received.--If the person or other entity
receives a tentative nonverification of an
individual's identity or work eligibility under
the verification system within the time period
specified, the person or entity shall so inform
the individual for whom the verification is
sought. If the individual does not contest the
nonverification within the time period
specified, the nonverification shall be
considered final. The person or entity shall
then record on the form an appropriate code
which has been provided under the system to
indicate a tentative nonverification. If the
individual does contest the nonverification,
the individual shall utilize the process for
secondary verification provided under paragraph
(7). The nonverification will remain tentative
until a final verification or nonverification
is provided by the verification system within
the time period specified. In no case shall an
employer terminate employment of an individual
because of a failure of the individual to have
identity and work eligibility confirmed under
this section until a nonverification becomes
final. Nothing in this clause shall apply to a
termination of employment for any reason other
than because of such a failure.
``(iii) Final verification or
nonverification received.--If a final
verification or nonverification is provided by
the verification system regarding an
individual, the person or entity shall record
on the form an appropriate code that is
provided under the system and that indicates a
verification or nonverification of identity and
work eligibility of the individual.
``(iv) Extension of time.--If the person or
other entity in good faith attempts to make an
inquiry during the time period specified and
the verification system has registered that not
all inquiries were received during such time,
the person or entity may make an inquiry in the
first subsequent working day in which the
verification system registers that it has
received all inquiries. If the verification
system cannot receive inquiries at all times
during a day, the person or entity merely has
to assert that the entity attempted to make the
inquiry on that day for the previous sentence
to apply to such an inquiry, and does not have
to provide any additional proof concerning such
inquiry.
``(v) Consequences of nonverification.--
``(I) Termination or notification
of continued employment.--If the person
or other entity has received a final
nonverification regarding an
individual, the person or entity may
terminate employment of the individual
(or decline to recruit or refer the
individual). If the person or entity
does not terminate employment of the
individual or proceeds to recruit or
refer the individual, the person or
entity shall notify the Secretary of
Homeland Security of such fact through
the verification system or in such
other manner as the Secretary may
specify.
``(II) Failure to notify.--If the
person or entity fails to provide
notice with respect to an individual as
required under subclause (I), the
failure is deemed to constitute a
violation of subsection (a)(1)(A) with
respect to that individual.
``(vi) Continued employment after final
nonverification.--If the person or other entity
continues to employ (or to recruit or refer) an
individual after receiving final
nonverification, a rebuttable presumption is
created that the person or entity has violated
subsection (a)(1)(A).''.
SEC. 703. EXPANSION OF EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM TO
PREVIOUSLY HIRED INDIVIDUALS AND RECRUITING AND
REFERRING.
(a) Application to Recruiting and Referring.--Section 274A of the
Immigration and Nationality Act (8 U.S.C. 1324a) is amended--
(1) in subsection (a)(1)(A), by striking ``for a fee'';
(2) in subsection (a)(1), by amending subparagraph (B) to
read as follows:
``(B) to hire, continue to employ, or to recruit or
refer for employment in the United States an individual
without complying with the requirements of subsection
(b).'';
(3) in subsection (a)(2) by striking ``after hiring an
alien for employment in accordance with paragraph (1),'' and
inserting ``after complying with paragraph (1),''; and
(4) in subsection (a)(3), as amended by section 702, is
further amended by striking ``hiring,'' and inserting ``hiring,
employing,'' each place it appears.
(b) Employment Eligibility Verification for Previously Hired
Individuals.--Section 274A(b) of such Act (8 U.S.C. 1324a(b)), as
amended by section 701(a), is amended by adding at the end the
following new paragraph:
``(8) Use of employment eligibility verification system for
previously hired individuals.--
``(A) On a voluntary basis.--Beginning on the date
that is 2 years after the date of the enactment of the
Border Protection, Antiterrorism, and Illegal
Immigration Control Act of 2005 and until the date
specified in subparagraph (B)(iii), a person or entity
may make an inquiry, as provided in paragraph (7),
using the verification system to seek verification of
the identity and employment eligibility of any
individual employed by the person or entity, as long as
it is done on a nondiscriminatory basis.
``(B) On a mandatory basis.--
``(i) A person or entity described in
clause (ii) must make an inquiry as provided in
paragraph (7), using the verification system to
seek verification of the identity and
employment eligibility of all individuals
employed by the person or entity who have not
been previously subject to an inquiry by the
person or entity by the date three years after
the date of enactment of the Border Protection,
Antiterrorism, and Illegal Immigration Control
Act of 2005.
``(ii) A person or entity is described in
this clause if it is a Federal, State, or local
governmental body (including the Armed Forces
of the United States), or if it employs
individuals working in a location that is a
Federal, State, or local government building, a
military base, a nuclear energy site, a weapon
site, an airport, or that contains critical
infrastructure (as defined in section 1016(e)
of the Critical Infrastructure Protection Act
of 2001 (42 U.S.C. 5195c(e))), but only to the
extent of such individuals.
``(iii) All persons and entities other than
those described in clause (ii) must make an
inquiry, as provided in paragraph (7), using
the verification system to seek verification of
the identity and employment eligibility of all
individuals employed by the person or entity
who have not been previously subject to an
inquiry by the person or entity by the date six
years after the date of enactment of the Border
Protection, Antiterrorism, and Illegal
Immigration Control Act of 2005.''.
SEC. 704. BASIC PILOT PROGRAM.
Section 401(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended by striking
``at the end of the 11-year period beginning on the first day the pilot
program is in effect'' and inserting ``two years after the enactment of
the Border Protection, Antiterrorism, and Illegal Immigration Control
Act of 2005''.
SEC. 705. HIRING HALLS.
Section 274A(h) of the Immigration and Nationality Act (8 U.S.C.
1324a(h)) is amended by adding at the end the following new paragraph:
``(4) Definition of recruit or refer.--As used in this
section, the term `refer' means the act of sending or directing
a person or transmitting documentation or information to
another, directly or indirectly, with the intent of obtaining
employment in the United States for such person. Generally,
only persons or entities referring for remuneration (whether on
a retainer or contingency basis) are included in the
definition. However, union hiring halls that refer union
members or nonunion individuals who pay union membership dues
are included in the definition whether or not they receive
remuneration, as are labor service agencies, whether public,
private, for-profit, or nonprofit, that refer, dispatch, or
otherwise facilitate the hiring of laborers for any period of
time by a third party. As used in this section the term
`recruit' means the act of soliciting a person, directly or
indirectly, and referring the person to another with the intent
of obtaining employment for that person. Generally, only
persons or entities recruiting for remunerations (whether on a
retainer or contingency basis) are included in the definition.
However, union hiring halls that refer union members or
nonunion individuals who pay union membership dues are included
in this definition whether or not they receive remuneration, as
are labor service agencies, whether public, private, for-
profit, or nonprofit that recruit, dispatch, or otherwise
facilitate the hiring of laborers for any period of time by a
third party.''.
SEC. 706. PENALTIES.
Section 274A of the Immigration and Nationality Act (8 U.S.C.
1324a) is amended--
(1) in subsection (e)(4)--
(A) in subparagraph (A), in the matter before
clause (i), by inserting ``, subject to paragraph
(10),'' after ``in an amount'';
(B) in subparagraph (A)(i), by striking ``not less
than $250 and not more than $2,000'' and inserting
``not less than $5,000'';
(C) in subparagraph (A)(ii), by striking ``not less
than $2,000 and not more than $5,000'' and inserting
``not less than $10,000'';
(D) in subparagraph (A)(iii), by striking ``not
less than $3,000 and not more than $10,000'' and
inserting ``not less than $25,000''; and
(E) by amending subparagraph (B) to read as
follows:
``(B) may require the person or entity to take such
other remedial action as is appropriate.'';
(2) in subsection (e)(5)--
(A) by inserting ``, subject to paragraph (10),''
after ``in an amount'';
(B) by striking ``$100'' and inserting ``$1,000'';
(C) by striking ``$1,000'' and inserting
``$25,000'';
(D) by striking ``the size of the business of the
employer being charged, the good faith of the
employer'' and inserting ``the good faith of the
employer being charged''; and
(E) by adding at the end the following sentence:
``Failure by a person or entity to utilize the
employment eligibility verification system as required
by law, or providing information to the system that the
person or entity knows or reasonably believes to be
false, shall be treated as a violation of subsection
(a)(1)(A).'';
(3) by adding at the end of subsection (e) the following
new paragraph:
``(10) Mitigation of civil money penalties for smaller
employers.--In the case of imposition of a civil penalty under
paragraph (4)(A) with respect to a violation of subsection
(a)(1)(A) or (a)(2) for hiring or continuation of employment by
an employer and in the case of imposition of a civil penalty
under paragraph (5) for a violation of subsection (a)(1)(B) for
hiring by an employer, the dollar amounts otherwise specified
in the respective paragraph shall be reduced as follows:
``(A) In the case of an employer with an average of
fewer than 26 full-time equivalent employees (as
defined by the Secretary of Homeland Security), the
amounts shall be reduced by 60 percent.
``(B) In the case of an employer with an average of
at least 26, but fewer than 101, full-time equivalent
employees (as so defined), the amounts shall be reduced
by 40 percent.
``(C) In the case of an employer with an average of
at least 101, but fewer than 251, full-time equivalent
employees (as so defined), the amounts shall be reduced
by 20 percent.
The last sentence of paragraph (4) shall apply under this
paragraph in the same manner as it applies under such
paragraph.''.
(4) by amending paragraph (1) of subsection (f) to read as
follows:
``(1) Criminal penalty.--Any person or entity which engages
in a pattern or practice of violations of subsection (a)(1) or
(2) shall be fined not more than $50,000 for each unauthorized
alien with respect to which such a violation occurs, imprisoned
for not less than one year, or both, notwithstanding the
provisions of any other Federal law relating to fine levels.'';
and
(5) in subsection (f)(2), by striking ``Attorney General''
each place it appears and inserting ``Secretary of Homeland
Security''.
SEC. 707. REPORT ON SOCIAL SECURITY CARD-BASED EMPLOYMENT ELIGIBILITY
VERIFICATION.
(a) Report.--
(1) In general.--Not later than than 9 months after the
date of the enactment of this Act, the Commissioner of Social
Security, in consultation with the Secretary of Treasury, the
Secretary of Homeland Security, and the Attorney General, shall
submit a report to Congress that includes an evaluation of the
following requirements and changes:
(A) A requirement that social security cards that
are made of a durable plastic or similar material and
that include an encrypted, machine-readable electronic
identification strip and a digital photograph of the
individual to whom the card is issued, be issued to
each individual (whether or not a United States
citizen) who--
(i) is authorized to be employed in the
United States;
(ii) is seeking employment in the United
States; and
(iii) files an application for such card,
whether as a replacement of an existing social
security card or as a card issued in connection
with the issuance of a new social security
account number.
(B) The creation of a unified database to be
maintained by the Department of Homeland Security and
comprised of data from the Social Security
Administration and the Department of Homeland Security
specifying the work authorization of individuals
(including both United States citizens and noncitizens)
for the purpose of conducting employment eligibility
verification.
(C) A requirement that all employers verify the
employment eligibility of all new hires using the
social security cards described in subparagraph (A) and
a phone, electronic card-reading, or other mechanism to
seek verification of employment eligibility through the
use of the unified database described in subparagraph
(B).
(2) Items included in report.--The report under paragraph
(1) shall include an evaluation of each of the following:
(A) Projected cost, including the cost to the
Federal government, State and local governments, and
the private sector.
(B) Administrability.
(C) Potential effects on--
(i) employers;
(ii) employees, including employees who are
United States citizens as well as those that
are not citizens;
(iii) tax revenue; and
(iv) privacy.
(D) The extent to which employer and employee
compliance with immigration laws would be expected to
improve.
(E) Any other relevant information.
(3) Alternatives.--The report under paragraph (1) also
shall examine any alternatives to achieve the same goals as the
requirements and changes described in paragraph (1) but that
involve lesser cost, lesser burden on those affected, or
greater ease of administration.
(b) Inspector General Review.--Not later than 3 months after the
report is submitted under subsection (a), the Inspector General of the
Social Security Administration, in consultation with the Inspectors
General of the Department of Treasury, the Department of Homeland
Security, and the Department of Justice, shall send to the Congress an
evaluation of the such report.
SEC. 708. EFFECTIVE DATE.
This title and the amendments made by this title shall take effect
on the date of enactment of this Act, except that the requirements of
persons and entities to comply with the employment eligibility
verification process takes effect on the date that is two years after
such date.
TITLE VIII--IMMIGRATION LITIGATION ABUSE REDUCTION
SEC. 801. BOARD OF IMMIGRATION APPEALS REMOVAL ORDER AUTHORITY.
(a) In General.--Section 101(a)(47) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(47)) is amended to read as follows:
``(47)(A) The term `order of removal' means the order of the
immigration judge, the Board of Immigration Appeals, or other
administrative officer to whom the Attorney General or the Secretary of
Homeland Security has delegated the responsibility for determining
whether an alien is removable, concluding that the alien is removable
or ordering removal.
``(B) The order described under subparagraph (A) shall become final
upon the earliest of--
``(i) a determination by the Board of Immigration Appeals
affirming such order;
``(ii) the entry by the Board of Immigration Appeals of
such order;
``(iii) the expiration of the period in which any party is
permitted to seek review of such order by the Board of
Immigration Appeals;
``(iv) the entry by an immigration judge of such order, if
appeal is waived by all parties; or
``(v) the entry by another administrative officer of such
order, at the conclusion of a process as authorized by law
other than under section 240.''.
(b) Effective Date.--The amendment made by subsection (a) shall
take effect on the date of the enactment of this Act and shall apply to
ordered entered before, on, or after such date.
SEC. 802. JUDICIAL REVIEW OF VISA REVOCATION.
(a) In General.--Section 221(i) of the Immigration and Nationality
Act (8 U.S.C. 1201(i)) is amended by amending the last sentence to read
as follows: ``Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, United States Code,
or any other habeas corpus provision, and sections 1361 and 1651 of
such title, a revocation under this subsection may not be reviewed by
any court, and no court shall have jurisdiction to hear any claim
arising from, or any challenge to, such a revocation.''.
(b) Effective Date.--The amendment made by subsection (a) shall
take effect on the date of the enactment of this Act and shall apply to
visa revocations effected before, on, or after such date.
SEC. 803. REINSTATEMENT.
(a) In General.--Section 241(a)(5) of the Immigration and
Nationality Act (8 U.S.C. 1231(a)(5)) is amended to read as follows:
``(5) Reinstatement of removal orders against aliens
illegally reentering.--If the Secretary of Homeland Security
finds that an alien has entered the United States illegally
after having been removed or having departed voluntarily, under
an order of removal, deportation, or exclusion, regardless of
the date of the original order or the date of the illegal
entry--
``(A) the order of removal, deportation, or
exclusion is reinstated from its original date and is
not subject to being reopened or reviewed;
``(B) the alien is not eligible and may not apply
for any relief under this Act, regardless of the date
that an application for such relief may have been
filed; and
``(C) the alien shall be removed under the order of
removal, deportation, or exclusion at any time after
the illegal entry.
Reinstatement under this paragraph shall not require
proceedings before an immigration judge under section 240 or
otherwise.''.
(b) Judicial Review.--Section 242 of the Immigration and
Nationality Act (8 U.S.C. 1252) is amended by adding at the end the
following new subsection:
``(h) Judicial Review of Reinstatement Under Section 241(a)(5).--
``(1) In general.--Notwithstanding any other provision of
law (statutory or nonstatutory), including section 2241 of
title 28, United States Code, or any other habeas corpus
provision, sections 1361 and 1651 of such title, or subsection
(a)(2)(D) of this section, no court shall have jurisdiction to
review any cause or claim arising from or relating to any
reinstatement under section 241(a)(5) (including any challenge
to the reinstated order), except as provided in paragraph (2)
or (3).
``(2) Challenges in court of appeals for district of
columbia to validity of the system, its implementation, and
related individual determinations.--
``(A) In general.--Judicial review of
determinations under section 241(a)(5) and its
implementation is available in an action instituted in
the United States Court of Appeals for the District of
Columbia Circuit, but shall be limited, except as
provided in subparagraph (B), to the following
determinations:
``(i) Whether such section, or any
regulation issued to implement such section, is
constitutional.
``(ii) Whether such a regulation, or a
written policy directive, written policy
guideline, or written procedure issued by or
under the authority of the Attorney General or
the Secretary of Homeland Security to implement
such section, is not consistent with applicable
provisions of this Act or is otherwise in
violation of a statute or the Constitution.
``(B) Related individual determinations.--If a
person raises an action under subparagraph (A), the
person may also raise in the same action the following
issues:
``(i) Whether the petitioner is an alien.
``(ii) Whether the petitioner was
previously ordered removed or deported, or
excluded.
``(iii) Whether the petitioner has since
illegally entered the United States.
``(C) Deadlines for bringing actions.--Any action
instituted under this paragraph must be filed no later
than 60 days after the date the challenged section,
regulation, directive, guideline, or procedure
described in clause (i) or (ii) of subparagraph (A) is
first implemented.
``(3) Individual determinations under section 242(a).--
Judicial review of determinations under section 241(a)(5) is
available in an action under subsection (a) of this section,
but shall be limited to determinations of--
``(A) whether the petitioner is an alien;
``(B) whether the petitioner was previously ordered
removed, deported, or excluded; and
``(C) whether the petitioner has since illegally
entered the United States.
``(4) Single action.--A person who files an action under
paragraph (2) may not file a separate action under paragraph
(3). A person who files an action under paragraph (3) may not
file an action under paragraph (2).''.
(c) Effective Date.--The amendments made by subsections (a) and (b)
shall take effect as if enacted on April 1, 1997, and shall apply to
all orders reinstated on or after that date by the Secretary of
Homeland Security (or by the Attorney General prior to March 1, 2003),
regardless of the date of the original order.
SEC. 804. WITHHOLDING OF REMOVAL.
(a) In General.--Section 241(b)(3) of the Immigration and
Nationality Act (8 U.S.C 1231(b)(3)) is amended--
(1) in subparagraph (A), by adding at the end the
following: ``The burden of proof is on the alien to establish
that the alien's life or freedom would be threatened in that
country, and that race, religion, nationality, membership in a
particular social group, or political opinion would be at least
one central reason for such threat.''; and
(2) in subparagraph (C), by striking ``In determining
whether an alien has demonstrated that the alien's life or
freedom would be threatened for a reason described in
subparagraph (A)'' and inserting ``For purposes of this
paragraph''.
(b) Effective Date.--The amendments made by subsection (a) shall
take effect as if included in the enactment of section 101(c) of the
REAL ID Act of 2005 (division B of Public Law 109-13).
SEC. 805. CERTIFICATE OF REVIEWABILITY.
(a) Alien's Brief.--Section 242(b)(3)(C) of the Immigration and
Nationality Act (8 U.S.C. 1252(b)(3)(C)) is amended to read as follows:
``(C) Alien's brief.--The alien shall serve and
file a brief in connection with a petition for judicial
review not later than 40 days after the date on which
the administrative record is available. The court may
not extend this deadline except upon motion for good
cause shown. If an alien fails to file a brief within
the time provided in this paragraph, the court shall
dismiss the appeal unless a manifest injustice would
result.''.
(b) Certificate of Reviewability.--Section 242(b)(3) of such Act (8
U.S.C. 1252 (b)(3)) is amended by adding at the end the following new
subparagraphs:
``(D) Certificate.--
``(i) After the alien has filed the alien's
brief, the petition for review shall be
assigned to a single court of appeals judge.
``(ii) Unless that court of appeals judge
or a circuit justice issues a certificate of
reviewability, the petition for review shall be
denied and the government shall not file a
brief.
``(iii) A certificate of reviewability may
issue under clause (ii) only if the alien has
made a substantial showing that the petition
for review is likely to be granted.
``(iv) The court of appeals judge or
circuit justice shall complete all action on
such certificate, including rendering judgment,
not later than 60 days after the date on which
the judge or circuit justice was assigned the
petition for review, unless an extension is
granted under clause (v).
``(v) The judge or circuit justice may
grant, on the judge's or justice's own motion
or on the motion of a party, an extension of
the 60-day period described in clause (iv) if--
``(I) all parties to the proceeding
agree to such extension; or
``(II) such extension is for good
cause shown or in the interests of
justice, and the judge or circuit
justice states the grounds for the
extension with specificity.
``(vi) If no certificate of reviewability
is issued before the end of the period
described in clause (iv), including any
extension under clause (v), the petition for
review shall be deemed denied, any stay or
injunction on petitioner's removal shall be
dissolved without further action by the court
or the government, and the alien may be
removed.
``(vii) If a certificate of reviewability
is issued under clause (ii), the Government
shall be afforded an opportunity to file a
brief in response to the alien's brief. The
alien may serve and file a reply brief not
later than 14 days after service of the
Government's brief, and the court may not
extend this deadline except upon motion for
good cause shown.
``(E) No further review of the court of appeals
judge's decision not to issue a certificate of
reviewability.--The single court of appeals judge's
decision not to issue a certificate of reviewability,
or the denial of a petition under subparagraph (D)(vi),
shall be the final decision for the court of appeals
and shall not be reconsidered, reviewed, or reversed by
the court of appeals through any mechanism or
procedure.''.
(c) Effective Date.--The amendments made by this section shall
apply to petitions filed on or after the date that is 60 days after the
date of the enactment of this Act.
SEC. 806. WAIVER OF RIGHTS IN NONIMMIGRANT VISA ISSUANCE.
(a) In General.--Section 221(a) of the Immigration and Nationality
Act (8 U.S.C. 1201(a)) is amended by adding at the end the following
new paragraph:
``(3) An alien may not be issued a nonimmigrant visa unless the
alien has waived any right--
``(A) to review or appeal under this Act of an immigration
officer's determination as to the inadmissibility of the alien
at the port of entry into the United States; or
``(B) to contest, other than on the basis of an application
for asylum, any action for removal of the alien.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply to visas issued on or after the date that is 90 days after the
date of the enactment of this Act.
Purpose and Summary
The purpose of H.R. 4437, the ``Border Protection,
Antiterrorism, and Illegal Immigration Control Act of 2005,''
is to ensure the proper enforcement of the current immigration
laws, create additional mechanisms to prevent illegal
immigration, assist in the prohibition of hiring illegal
immigrants, and to enhance border security.
Background and Need for the Legislation
The number of resident illegal aliens in the United States
is estimated to be about 11 million,\1\ and approximately
500,000 illegal aliens enter the country unlawfully each
year.\2\ The United States has experienced a drastic increase
in crime committed by illegal aliens, particularly by illegal
aliens that are members of criminal gangs. These criminal alien
gangs are becoming increasingly prevalent throughout the
country.\3\ This disturbing trend is evidenced by the growing
number of Federal inmates who are non-citizens, which is
rapidly approaching 25 percent of the prison population.\4\
---------------------------------------------------------------------------
\1\ See Steven Camarota, Immigrants at Mid-Decade: A Snapshot of
America's Foreign-Born Population in 2005, 2005 Center for Immigration
Studies 23 (nearly 11 million in March 2005); Jeffrey Passel, Estimates
of the Size and Characteristics of the Undocumented Population, 2005
Pew Hispanic Center 1 (10.3 million in March 2004, estimate of nearly
11 million in March 2005).
\2\ See Immigrants at Mid-Decade at 4 (the total resident illegal
alien population increased by about 2.5 to 2.7 million between March
2000 and March 2005; new illegal alien arrivals comprised 3.6 to 3.8
million persons).
\3\ See, e.g., Immigration and the Alien Gang Epidemic: Problems
and Solutions: Hearing Before the Subcomm. on Immigration, Border
Security and Claims of the House Comm. on the Judiciary, 109th Cong.
(2005); Heather MacDonald, The Immigrant Gang Plague, the City Journal,
Summer 2004; Heather MacDonald, The Illegal-Alien Crime Wave, The City
Journal, Winter 2004.
\4\ See Paige Harrison and Jennifer Karberg, Prison and Jail
Inmates at Midyear 2003, Bureau of Justice Statistics Bulletin at 5
(May 2004)(23.5 percent of all Federal inmates were noncitizens as of
June 30, 2003).
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Despite the enactment of the Immigration Reform and Control
Act of 1986,\5\ which made it unlawful for an employer to
knowingly employ illegal aliens and established an employment
eligibility verification system for new hires, illegal aliens
comprise a significant portion of the employed population.
Estimates of the number of illegal immigrants employed in
various industries include: 17 percent of workers in building
cleaning and maintenance occupations; 14 percent of private
household workers; 13 percent of accommodation industry
workers; 13 percent of food manufacturing industry workers; 12
percent of the workers in construction and extractive
occupations (and 10 percent of workers in the construction
industry); 11 percent of workers in food preparation and
serving occupations (and 10 percent of workers in the food
service industry); 8 percent of workers in production
occupations (and 6 percent of workers in the manufacturing
industry); and 4.3 percent of workers in the overall
workforce.\6\
---------------------------------------------------------------------------
\5\ Pub. L. No. 99-603.
\6\ See Jeffrey Passel, Unauthorized Migrants: Numbers and
Characteristics, 2005 Pew Hispanic Center 27, 29 (2004 figures).
---------------------------------------------------------------------------
The presence of large numbers of illegal aliens in the
United States demonstrates that America's immigration laws are
not being effectively enforced. A contributing factor to this
lack of enforcement has been deficient resources. Congress
responded to this inadequacy by including provisions in the
Intelligence Reform and Terrorism Prevention Act of 2004 \7\
that authorized over a 5-year period an additional 10,000
Border Patrol agents, an increase of 40,000 immigration
detention beds, and an additional 4,000 immigration
investigators. Another factor that has contributed to the large
number of illegal aliens within the United States is a lack of
strong enforcement priorities by current and past
administrations.\8\ In addition, the incoherent organizational
structure of immigration enforcement offices within the
Department of Homeland Security has played a role in the lack
of enforcement.\9\ Despite the great strides over the last
decade that resulted from the enactment of legislation such as
the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996,\10\ and the REAL ID Act of 2005,\11\ significant
changes to current immigration law are necessary to restore
accountability for those who violate immigration laws, ensure
the prevention of future illegal immigration, and to combat the
rising prevalence of criminal behavior by illegal aliens. The
``Border Protection, Antiterrorism, and Illegal Immigration
Control Act of 2005'' contains measures that address these
important concerns.
---------------------------------------------------------------------------
\7\ Pub. L. No. 108-458.
\8\ Enforcement of ``employer sanctions,'' while always spotty,
declined in the latter years of the Clinton Administration after a 1999
interior enforcement strategy delegated it to the lowest rung of
priority. Enforcement has since plummeted still further. The total
hours worked by investigators on employer sanctions cases fell from
almost 714,000 in 1997 to 135,000 in 2004, a drop of 81 percent. The
number of notices of intent to fine employers for violations fell from
1461 in 1992 to 3 in 2004, a drop of 99 percent. The number of arrests
of illegal alien employees fell from 17,552 in 1997 to 445 in 2003, a
drop of 97 percent. See Lack of Worksite Enforcement and Employer
Sanctions: Hearing Before the Subcomm. on Immigration, Border Security
and Claims of the House Comm. on the Judiciary, 109th Cong. (2005).
\9\ In the Homeland Security Act of 2002, Congress created a Bureau
of Border Security that was to carry out the five immigration
enforcement functions--the Border Patrol, detention and removal,
intelligence, investigations, and inspections at ports-of-entry--and
not suffer from the INS's mission overload. See sections 441 and 442 of
Pub. Law. No. 107-296. When the Department of Homeland Security was
created, however, immigration functions were split into border-related
functions to be carried out by the Bureau of Customs and Border
Protections and interior-related functions to be carried out by the
Bureau of Immigration and Customs Enforcement. In addition, each of
these two agencies was also burdened with carrying out customs law
enforcement and other responsibilities. The result has been devastating
for immigration enforcement. Most leadership positions, both in
Washington and in local offices, were given to legacy Customs Bureau
officials, and, not surprisingly, immigration enforcement has been
relegated to the lowest rung of priority and has been deprived of
requisite resources and organizational unity. Dedicated and experienced
immigration enforcement professionals have left in droves. See New
``Dual Missions'' of the Immigration Enforcement Agencies: Hearing
Before the Subcomm. on Immigration, Border Security and Claims of the
House Comm. on the Judiciary, 109th Cong. (2005).
\10\ Division C of title III of Pub. L. No. 104-208.
\11\ Division B of Pub. L. No. 109-13.
---------------------------------------------------------------------------
Hearings
The Committee on the Judiciary held no hearings on H.R.
4437.
Committee Consideration
On December 8, 2005, the Committee met in open session and
ordered favorably reported the bill H.R. 4437 with an amendment
by a recorded vote of 23-15, a quorum being present.
Vote of the Committee
In compliance with clause 3(b) of Rule XIII of the Rules of
the House of Representatives, the Committee sets forth the
following rollcall votes that occurred during the Committee's
consideration of H.R. 4437:
1. Rollcall number one was an amendment offered by Rep.
Scott (VA) to strike the mandatory minimum sentences contained
in the bill. This amendment was not agreed to by a rollcall
vote of 12 ayes to 20 nays.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz...........................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 12 20
----------------------------------------------------------------------------------------------------------------
2. Rollcall number two was an amendment offered by Rep.
Berman to create an H-5A ``essential worker'' temporary work
visa program, to create an H-5B temporary work visa program for
aliens unlawfully present and employed in the United States on
the date of enactment, and to provide for the adjustment of
status to permanent residence for such aliens upon the meeting
of certain conditions. This amendment was not agreed to by a
rollcall vote of 13 ayes to 22 nays and one member voting
present.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz...........................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 13 22 1
----------------------------------------------------------------------------------------------------------------
3. Rollcall number three was a vote on final passage of the
bill as amended. The bill was reported favorably, as amended,
by a rollcall vote of 23 ayes to 15 nays.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 23 15
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of Rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of Rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of Rule XIII of the Rules of the House of
Representatives is inapplicable because the provisions of this
legislation within the jurisdiction of the Judiciary Committee
do not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of Rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 4437, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, December 13, 2005.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
completed the enclosed cost estimate for H.R. 4437, the Border
Protection, Antiterrorism, and Illegal Immigration Control Act
of 2005.
The CBO staff contact for this estimate is Mark Grabowicz,
who can be reached at 226-2860.
Sincerely,
Douglas Holtz-Eakin.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 4437--Border Protection, Antiterrorism, and Illegal Immigration
Control Act of 2005.
SUMMARY
H.R. 4437 would direct the Department of Homeland Security
(DHS) and the Social Security Administration (SSA) to extend
and expand a system to verify the eligibility of certain people
for employment in the United States. The bill also would
require DHS to reimburse counties along the southern U.S.
border for costs relating to the detention of illegal aliens,
increase the number of border inspection personnel, deploy
radiation portal monitors at ports of entry, and establish an
Office of Air and Marine Operations within DHS. The bill would
establish mandatory minimum prison sentences for a number of
offenses relating to illegal entry into the United States and
would establish civil and criminal penalties for such crimes.
Finally, H.R. 4437 would make many other amendments to current
law and changes to existing DHS procedures that aim to increase
the security of U.S. borders.
CBO estimates that implementing H.R. 4437 would cost about
$1.9 billion over the 2006-2010 period, assuming appropriation
of the necessary amounts. Such costs would continue and grow
significantly after 2010 as additional requirements of the bill
would be implemented. Enacting the bill could affect direct
spending and revenues, but we estimate that any such effects
would not be significant.
H.R. 4437 would impose intergovernmental and private-sector
mandates, as defined in the Unfunded Mandates Reform Act
(UMRA), on employers and other entities that hire, recruit, or
refer individuals for employment. CBO expects that the
aggregate direct costs to comply with those mandates would
exceed the annual threshold for both intergovernmental and
private-sector mandates ($62 million for intergovernmental
mandates in 2005 and $123 million for private-sector mandates
in 2005, adjusted annually for inflation) in at least one of
the first five years the bill is in effect.
Other provisions of the bill contain no intergovernmental
or private-sector mandates; some would benefit local
governments.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 4437 is shown in the
following table. The cost of this legislation falls within
budget functions 650 (Social Security) and 750 (administration
of justice).
BASIS OF ESTIMATE
For this estimate, CBO assumes that the bill will be
enacted near the start of calendar year 2006 and that the
amounts necessary to implement the bill will be appropriated
for each year. CBO estimates that implementing H.R. 4437 would
cost about $1.9 billion over the 2006-2010 period, assuming
appropriation of the necessary funds. Enacting the bill also
could affect direct spending and revenues, but we estimate that
any such effects would not be significant.
Spending Subject to Appropriation
We assume that the necessary amounts will be appropriated
by the start of each fiscal year after 2006, that supplemental
appropriations will be provided early in calendar year 2006 for
initial program needs, and that spending will follow the
historical spending patterns for these or similar activities.
Employment Eligibility Verification System. H.R. 4437 would
direct DHS, within two years of the bill's enactment, to extend
and expand a system to verify the eligibility of persons for
employment in the United States. CBO estimates that this would
cost about $405 million over the 2006-2010 period, including
$185 million for DHS, $200 million for SSA, and $20 million for
other Federal agencies.
Requirements of H.R. 4437. DHS and SSA currently operate an
employment eligibility verification system known as the basic
pilot. This system is available to employers nationwide, but
its use is voluntary and is restricted to checking the status
of new hires. All inquiries to that system are handled through
the Internet, and the pilot program expires in late 2008. H.R.
4437 would require DHS to set up a toll-free telephone line or
other toll-free electronic media to respond within three
working days to inquiries from employers seeking verification
of employment eligibility and would require the department to
maintain records of all inquiries and responses.
The bill would require all employers to use the new system
for newly hired employees upon its establishment. Within three
years of the bill's enactment (in 2009), Federal, State, and
local governments, as well as certain other private employers,
would have to use the system to check the eligibility of all of
their employees (i.e., both new hires and the existing
workforce). Within six years of enactment (in 2012), all other
employers would have to do so for all of their workforces.
Number of Inquiries Expected. According to the Bureau of
Labor Statistics (BLS), new hires at nonfarm establishments
average about 4.6 million each month, or about 50 million to 55
million at an annual rate. (That does not mean that 50 million
people change jobs every year because some people change jobs
several times in a year. Nevertheless, each new hire would--
after mid-2008--go through the employment verification system
proposed in H.R. 4437.) The annual volume of new hires will
equal about 55 million to 60 million in 2008 through 2015, CBO
assumes. Employees of Federal, State, and local governments and
certain other sectors--chiefly, nongovernment employees who
work at Government installations, airports, nuclear power
facilities, and ``critical infrastructure'' facilities--would
become subject to verification in 2009; CBO estimates that
would be about 25 million people. Finally, all other employees
would become subject to verification under the bill in 2012,
six years after enactment. CBO estimates that about 120 million
employees would need to have their eligibility to work in the
U.S. verified by 2012, although many of those people would have
been newly hired after 2008 and would thus represent repeat
cases. Those figures represent lower-bound estimates of the
total volume of verifications because the BLS data on which
they are based omit agricultural employment.
Costs to DHS. Under the bill, DHS would have primary
responsibility for establishing and maintaining the system.
Based on information from DHS, CBO estimates that it would cost
the department about $100 million over the 2006-2008 period for
upgrades to the basic pilot system to handle the huge increase
in inquiries that would result from H.R. 4437. This one-time
cost would include enhancements of software, hardware,
databases, and other technological components of the new
employment eligibility system.
In addition, DHS would have to hire personnel to respond to
inquiries within three working days (as required by the bill),
staff the toll-free telephone line, and maintain records of the
inquiries and responses. Based on information from DHS, CBO
expects that staff would be hired during 2008 and costs would
reach $35 million annually, beginning in fiscal year 2009.
Under the bill, the agency's cost to process employment
verification inquiries would increase substantially after 2010
when all private employers would be required to check the
eligibility of their entire workforce by 2012.
Costs to SSA. The SSA's responsibilities under the bill
would include providing DHS with continued, secure access to
its database of Social Security numbers and handling phone
inquiries, personal visits, and requests for replacement cards
from people seeking to clear a ``nonverified'' response to
their current or prospective employer. Based on information
from the agency, CBO estimates SSA's costs at $9 million in
2006, about $200 million over the 2006-2010 period, and about
$640 million over the 2006-2015 period. Under the bill, the
agency's cost to process employment verification inquiries
would increase substantially after 2010 when all private
employers would be required to check the eligibility of their
entire workforce by 2012.
Costs to Other Federal Agencies. Finally, Federal agencies
themselves would be among the employers required to verify the
legal status of their workforce in 2009, three years after the
bill's enactment. There are slightly over 4 million Federal
Government employees, including military personnel on active
duty. CBO assumes that it would cost agencies an average of $4
per employee to comply with the verification requirement. (The
requirement would apply even if agencies had previously
performed a security clearance or other exhaustive check.) That
cost, incurred by agencies' personnel offices, consists of
assembling the data for initial submission and following up the
relatively few, but labor-intensive, cases that the automated
system would initially fail to match. CBO estimates that
Federal agencies would spend approximately $18 million in 2009
to submit their employees' basic data to the DHS system and to
reconcile the new cases that would be returned as
``nonverifiable.'' The Federal Government would also spend an
estimated $1 million annually to verify its new hires through
the automated system.
Payments to Counties Along Southern U.S. Border. H.R. 4437
would direct DHS to reimburse counties within 25 miles of the
southern U.S. border for the costs of detaining, housing, and
transporting illegal aliens. The bill would authorize funding
of up to $100 million annually for such reimbursements. Based
on the costs reported by these counties in recent years for the
detention and housing of illegal aliens, CBO estimates that
implementing this provision would cost $100 million for each of
fiscal years 2007 through 2010.
Federal Prison System. H.R. 4437 would establish mandatory
minimum prison sentences for a wide range of offenses involving
illegal entry into the United States. The U.S. Sentencing
Commission analyzed the bill's impact on the Federal prison
population. Based on this analysis, CBO estimates that the
longer sentences required under the bill would increase the
prison population by about 7,000 person-years over the 2006-
2010 period. According to the Bureau of Prisons, for an
increase in the Federal prison population of this magnitude, it
would spend about $24,000 a year (at 2005 prices) to house each
additional prisoner. CBO estimates that the cost to support
those additional prisoners would total $170 million over the
2006-2010 period.
In addition, according to the Bureau of Prisons,
construction of a new prison would be required when the annual
increase in the prison population exceeds 1,150. Based on the
anticipated increase in the cumulative prison population over
the 2006-2010 period, we estimate that this annual threshold
would be exceeded in 2008 and 2010. Thus, CBO expects two new
prisons would need to be built to accommodate the additional
prisoners resulting from enactment of H.R. 4437. We estimate
that each facility would cost $115 million, construction would
begin in 2008, and some spending would occur after 2010.
Additional Port-of-Entry Inspectors and Canine Detection
Teams. H.R. 4437 would direct DHS to increase the number of
port-of-entry inspectors by 250 in each of fiscal years 2007
through 2010. Currently, there are about 19,000 inspectors, so
this would represent an increase of just over 1 percent
annually. In addition, for each of fiscal years 2007 through
2011, the bill would require DHS to increase the number of
canine detection teams by at least 25 percent over the number
of such positions for the preceding year. (Currently, there are
a total of 647 canine detection teams, each consisting of one
officer and one dog.)
Based on information from DHS, CBO estimates that it costs
about $100,000 a year to hire an additional inspector and
$130,000 a year for each new canine detection team, including
salaries, benefits, training, and support costs. Assuming that
each annual cohort required by the bill would be hired over the
course of a year, we estimate that implementing this provision
would cost $400 million over the 2007-2010 period, with
spending split evenly between the inspectors and the canine
detection teams.
Radiation Portal Monitors at Ports of Entry. H.R. 4437
would direct DHS, within one year of the bill's enactment, to
deploy radiation portal monitors at U.S. ports of entry
selected by the agency to facilitate the screening of inbound
cargo for concealed nuclear and radiological material. Based on
information from DHS, we expect that the agency would implement
the bill by deploying such monitors at all U.S. ports.
According to DHS, there are 613 radiation portal monitors
currently deployed at 110 points of entry in 85 U.S. ports,
leaving a total of 270 points of entry that lack these devices.
Because the unmonitored ports generally experience lesser
volumes of inbound cargo, CBO assumes that remaining points of
entry would need, on average, four monitors. The radiation
portal monitors that are currently used cost $280,000 each, but
a more effective device is now available at a cost of $470,000
per unit.
Assuming that the roughly 1,000 additional monitors
required to implement H.R. 4437 would include approximately
equal numbers of monitors of each type ($280,000 and $470,000
models), the costs to deploy the monitors at the remaining
ports would be about $400 million. However, because $125
million has already been appropriated for fiscal year 2006 for
monitors, we estimate that implementing H.R. 4437 would cost
about $280 million over the 2006-2007 period.
In addition, we expect that there would be some maintenance
and replacement costs for those monitors in subsequent years.
CBO estimates that such costs would probably be no more than 10
percent of the initial cost of the new monitors, or about $20
million annually.
Office of Air and Marine Operations. H.R. 4437 would
establish an Office of Air and Marine Operations within DHS
that would be headed by an Assistant Secretary who would report
directly to the Secretary of Homeland Security. We expect that
this office would consist of about 1,200 personnel currently in
the Bureau of Customs and Border Protection who direct and
carry out aviation and marine operations.
As a new agency within DHS, the Office of Air and Marine
Operations would need its own human resources, legal, finance,
technical support, and other administrative offices. Based on
the number of support personnel at other Federal agencies that
employ between 1,000 and 2,000 persons, CBO estimates that it
would cost about $16 million annually for these functions,
beginning in fiscal year 2007. This estimated annual cost
represents about 10 percent of current spending for the
transferred personnel and assumes that some existing
administrative staff would be transferred to the new office. In
addition, we estimate that there would be one-time costs of
about $4 million to relocate personnel and carry out other
activities necessary to establish a new agency within DHS.
Additional Funding for Inspector General. H.R. 4437 would
authorize the appropriation of sums necessary to increase
funding above the current level for the DHS Office of the
Inspector General (IG) by 5 percent for fiscal year 2007, 6
percent for 2008, and 7 percent for 2009. For fiscal year 2006,
$83 million was appropriated for the IG. We estimate that
implementing this provision for increases in IG funding would
cost $4 million in 2007, $5 million in 2008, and $6 million in
2009.
Other Programs. H.R. 4437 would direct DHS to establish a
university-based Center of Excellence for Border Security.
Based on spending for similar university programs already
established by DHS, we estimate that implementing this
provision would require funding of about $5 million annually,
beginning in fiscal year 2007.
In addition, the bill would require DHS and the Government
Accountability Office to prepare various reports relating to
improving border security. The bill would also direct SSA to
study possible enhancements to Social Security cards, such as
making them of durable plastic and adding a machine-readable
identification strip and a digital photograph of the holder.
(An earlier SSA study, published in 1997, estimated total costs
of $5 billion to $10 billion, depending on the features chosen,
for replacing the 277 million cards then in circulation.) CBO
estimates that the costs to prepare these reports would total
about $2 million.
Border Patrol in Virgin Islands. H.R. 4312 would direct
DHS, by September 30, 2006, to establish at least one border
patrol unit for the U.S. Virgin Islands. However, the
Department of Homeland Security Appropriations Act, 2006
(Public Law 109-90) already directs DHS to determine whether or
not a border patrol unit in the Virgin Islands is necessary
and, if deemed necessary, to establish such a unit by March 1,
2006. CBO cannot predict whether this unit will be established
under Public Law 109-90. Based on information from DHS,
however, CBO expects that a unit in the Virgin Islands would
probably cost no more than $1 million annually.
Direct Spending and Receipts
H.R. 4437 would establish new and increased civil and
criminal penalties for various crimes involving illegal
immigration. Thus, the Federal Government might collect
additional fines if the bill is enacted. Collections of civil
fines are recorded in the budget as revenues. Criminal fines
are recorded as revenues, then deposited in the Crime Victims
Fund and later spent. CBO expects that any additional revenues
and direct spending would not be significant.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
H.R. 4437 would impose intergovernmental and private-sector
mandates, as defined in UMRA, on employers and other entities
that hire, recruit, or refer individuals for employment. CBO
expects that the aggregate direct costs to comply with those
mandates would exceed the annual threshold for both
intergovernmental and private-sector mandates ($62 million for
intergovernmental mandates in 2005 and $123 million for
private-sector mandates in 2005, adjusted annually for
inflation) in at least one of the first five years the bill is
in effect.
Verification When Hiring, Recruiting, or Referring Individuals
The bill would require State and local governments,
private-sector employers, and other entities that recruit or
refer employees, to submit names, Social Security numbers, and
other identifying information of the individuals they hire,
recruit, or refer to the employee verification system
administered by DHS. Verification information would have to be
submitted by the end of three working days after the date of
hire or before recruiting or referring a potential employee.
Such employers and entities also would be required to maintain
a record of the verification for a specific amount of time in a
form that would be available for Government inspection. The
bill would require that the mandatory inquiry about employment
eligibility and recordkeeping for new employees begin two years
after the date of enactment of this bill.
Verification of Previously Hired Employees
All Government employers, certain private employers that
are part of the critical infrastructure of the United States,
and entities that employ persons in Government buildings, would
be required within three years after the date of enactment to
verify the identity and employment eligibility of all
individuals employed by that entity who have not been
previously subject to such an inquiry. Other private-sector
employers would be required within six years after enactment to
verify the identity and employment eligibility of all
individuals employed by the entity who have not been previously
subject to such an inquiry. A record of the verification for
those previously hired employees also would have to be
maintained by the employers for a specific amount of time in a
form that would be available for Government inspection.
Current law requires employers to attest that they have
verified that the individual they are hiring, recruiting, or
referring for employment in the United States is not an
unauthorized alien by examining certain documents. Some
employers voluntarily use the employment verification system to
confirm the name and Social Security number of individuals.
Requiring all employers and other entities to do such inquiries
would impose new intergovernmental and private-sector mandates
on employers. The direct cost of the mandates would be the
incremental cost to prepare and verify the employment
eligibility of an individual through a toll-free telephone
number or Web-based system and to maintain records.
Based on information from State and local employers and
representatives from personnel offices, the requirement to
verify previously hired employees would be costly. Some
employers with modern personnel systems would need to purchase
software patches to enable their computer systems to compile
and transmit the data. Smaller employers would need to manually
submit the data through a toll-free phone number or Web-based
system. Because of the large number of entities that would be
required to prepare and submit information on previously hired
individuals, however, CBO expects that the aggregate direct
costs to comply with those mandates would exceed the annual
threshold for both intergovernmental and private-sector
mandates in at least one of the first five years the bill is in
effect.
This bill would create a new program to reimburse the costs
incurred by some county sheriffs' offices to detain and
transport aliens who are not lawfully present in the United
States. Those governments would benefit from up to $100 million
annually for this program and any costs would be incurred
voluntarily as conditions of receiving Federal assistance.
PREVIOUS CBO ESTIMATE
On December 6, 2005, CBO transmitted a cost estimate for
H.R. 4312, the ``Border Security and Terrorism Prevention Act
of 2005,'' as ordered reported by the House Committee on
Homeland Security on November 17, 2005. We estimated that
implementing that bill would cost $870 million over the 2006-
2010 period, assuming appropriation of the necessary amounts.
Several of the provisions in H.R. 4437 are identical to
provisions in H.R. 4312, and CBO's estimates for those
provisions are unchanged.
ESTIMATE PREPARED BY:
Federal Costs:
DHS and Federal Prisons--Mark Grabowicz (226-2860)
Social Security Administration--Kathy Ruffing (226-2820)
Impact on State, Local, and Tribal Governments: Melissa Merrell
(225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2960)
ESTIMATE APPROVED BY:
Peter H. Fontaine
Deputy Assistant Director for Budget Analysis
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
Rule XIII of the Rules of the House of Representatives, H.R.
4437 will strengthen enforcement of the immigration laws and
enhance border security.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in art. 1, Sec. 8, cl. 4 of the Constitution.
Section-by-Section Analysis and Discussion
The following section-by-section analysis contains a
description of principal provisions contained in H.R. 4437 as
reported within the jurisdiction of the Committee on the
Judiciary. H.R. 4437 incorporates the border security
provisions contained in H.R. 4312, which was reported from the
Committee on Homeland Security on December 6, 2005. For a
discussion of these border security provisions, please see H.R.
Rept. 109-329, Part I.
Section 3. Sense of Congress on setting a manageable level of
immigration.
Section 3 provides a sense of Congress that the Nation's
immigration policy shall be designed to enhance the economic,
social and cultural well-being of the United States.
TITLE I--SECURING UNITED STATES BORDERS
Section 104. Biometric data enhancements.
This section requires that by October 1, 2006, the
Secretary of the Department of Homeland Security (DHS) enhance
the connectivity between the Automated Biometric Identification
System (ABIS) and Integrated Automated Fingerprint
Identification System (IAFIS) biometric databases and collect
ten fingerprints from individuals through the United States
Visitor and Immigrant Status Indicator Technology (US-VISIT)
program during their initial enrollment.
TITLE II--COMBATTING ALIEN SMUGGLING AND
ILLEGAL ENTRY AND PRESENCE
Section 201. Definition of aggravated felony.
This section amends the definition of aggravated felony
contained in the Immigration and Nationality Act (INA) to
include all smuggling offenses, illegal entry, and reentry
crimes with a sentence of a year or more. It also makes the
aggravated felony definition consistent with Federal criminal
law by expanding it to include solicitation and assistance in
specified offenses.
This section is necessary to combat alien smuggling and
criminal aliens illegally reentering the United States. The INA
broadly defines the term ``aggravated felony'' in over 20 sub-
paragraphs. If an alien has been convicted of such an offense,
the alien will be ineligible for most forms of relief and for
release from detention. Illegal reentry after such an offense
will also subject the alien to serious criminal penalties. The
aggravated felony definition does not effectively deter,
however, many dangerous aliens from repeatedly reentering the
United States illegally. Specifically, the definition only
includes illegal entry and illegal reentry violations of the
INA in circumstances in which the alien was previously deported
for having committed another aggravated felony. The current
definition is unduly restrictive in several respects. First,
this definition does not reach aliens who previously committed
various other felonies, even though those felonies may have
been serious crimes. Second, it does not reach aggravated felon
aliens who were previously deported, but who were not deported
on the basis of their aggravated felony convictions. Section
201 would address this problem by including within the
definition of aggravated felony a felony illegal entry or
reentry offense under section 275(a) or section 276 of the INA,
without regard to whether the alien had been previously
deported subsequent to conviction of an aggravated felony.
Given their prior felony immigration convictions, such criminal
aliens are well aware of the immigration laws. Their decision
to reenter the United States should warrant the same
immigration restrictions and a sentence at least equal to those
who commit non-immigration felony offenses.
In addition to these changes, section 201 will also make
all smuggling convictions aggravated felonies with the
exception of smuggling related to an alien's immediate family.
Recent experience shows that alien smuggling is flourishing, is
increasingly violent, and highly profitable.\12\ Alien
smuggling operations also present terrorist and criminal
organizations with opportunities to smuggle their members into
the United States practically at will. This section will impose
the most serious sanctions under the immigration laws upon
aliens who engage in alien smuggling.
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\12\ See The Deadly Consequences of Illegal Alien Smuggling:
Hearing of the Subcomm. on Immigration, Border Security and Claims of
the House Comm. on the Judiciary, 108th Cong. (2003).
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Finally, this section makes clear that the definition of
aggravated felony includes ``soliciting, aiding, abetting,
counseling, commanding, inducing, procuring'' or a conspiracy
to commit any of the offenses listed in section 101(a)(43) of
the INA, by incorporating the aiding and abetting language from
Federal law. This change is needed to reverse a Ninth Circuit
precedent that has had the effect of requiring Federal
prosecutors in criminal cases seeking sentencing enhancements
to prove that prior convictions were not based on aiding and
abetting.\13\ This is often impossible to prove, because in
Federal court, and in almost every State jurisdiction, a
defendant can be convicted of aiding and abetting a substantive
offense, even if aiding and abetting is not specifically
charged in the indictment.
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\13\ See U.S. v. Corona-Sanchez , 291 F. 3d 1208 (9th Cir. 2002)(en
banc).
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Section 202. Alien smuggling and related offenses.
This section amends the alien smuggling provisions of the
INA to include offenses in circumstances in which the offender
acts in reckless disregard of the fact that the smuggled person
is an alien not allowed to enter the United States, places
mandatory minimum sentences on smuggling convictions, and
facilitates DHS efforts to seize smugglers' property.
In recent years, more and more illegal aliens are utilizing
the services of alien smugglers and the cost of their services
has increased dramatically. Alien smuggling not only
facilitates illegal immigration, but subjects smuggled aliens
to inhumane treatment. Migrants are frequently abused or
exploited, both during their journey and upon reaching the
United States. There are many recent examples--aliens abandoned
by their smugglers in the desert, without food or water, and
aliens who have died or suffered serious injuries when locked
by smugglers into trucks and cargo containers. Consequently,
aliens smuggled into the United States are at significant risk
of physical injury, abuse, and death. In addition, smuggled
aliens must often pay back their debts through long periods of
indentured servitude in sweatshop conditions in places like New
York City's Chinatown, and smugglers often coerce indebted
aliens into drug trafficking, prostitution, and other illegal
activities. Aliens who fail to cooperate with smugglers suffer
severe penalties. The Committee believes that it is vital to
establish clear penalties to deter and prevent the cruel and
inhumane trafficking of human beings. Smuggling also poses a
national security risk, as terrorists and criminals can utilize
the same smugglers that economic migrants use.
However, under current law, individuals convicted of alien
smuggling crimes often receive lenient sentences, which have
contributed to the upsurge in alien smuggling. Organized crime
syndicates realize that the risk of punishment for smuggling
aliens is far less than the risk for smuggling drugs or
committing other serious crimes. In addition, lenient sentences
and the lack of serious penalties in current criminal law
toward alien smuggling may act to dissuade U.S. Attorneys from
bringing cases.
Under existing law, the offenses and penalties for
unlawfully bringing aliens into the United States are set forth
in two separate provisions, sections 274(a)(1) and 274(a)(2) of
the INA. For historical reasons, those provisions were
implemented and developed separately. As a result, the two
provisions contain inconsistent mens rea elements, and provide
disparate sentences for identical or substantially similar
conduct. Accordingly, the successful prosecution of virtually
identical conduct can lead to different results under current
law, depending upon whether a violation of section
274(a)(1)(A)(i) or (a)(2) is charged. Section 202 creates a
uniform mens rea standard for alien smuggling and related
offenses, and sets uniform sentences for violations of those
offenses.
Unlike current law, the penalties for those charged will be
based on the factual circumstances of the offense and the
danger that the smuggling posed to the alien and to the
community rather than on the code section charged. As a result,
offenses that were committed for commercial profit will be
punished more severely than offenses that are not. Offenses
that are committed to further other criminal acts are subject
to even more serious mandatory sentences, as are offenses that
result in injury or death. Consistent with existing law,
offenses in which death results will be eligible for the death
penalty. This section will increase the criminal penalties for
certain alien smuggling offenses and establish mandatory
minimum sentences for serious and repeat offenders. In
addition, it increases penalties where the smuggling posed a
risk to individuals or the Nation.
This section also expands the scope of the alien smuggling
statute to reach conduct that is not covered by existing law.
The section reaches conduct relating to facilitating the
smuggling of aliens to the United States by persons who
willfully participate in alien smuggling ventures, but where
the Government cannot demonstrate beyond a reasonable doubt
that the smugglers knew the aliens were en route to the United
States. Rather than forming centralized, tightly controlled
hierarchies, alien smugglers often favor loose, short- or long-
term associations. These global networks often match smugglers
who specialize in illegally transporting particular nationals
or have special knowledge of specific routes. Under existing
law, however, smugglers who play an integral role in
facilitating the illegal movement of aliens to the United
States cannot be prosecuted unless the Government can prove
that the smuggler knew or recklessly disregarded the fact that
the aliens intended to travel to the United States. This
section eliminates this loophole.
This section will also help to reduce the profits derived
from alien smuggling. Under existing law, civil forfeiture is
limited to any conveyance used in smuggling. Section 202 will
permit civil forfeiture of any property, real or personal, used
to commit or facilitate the commission of a violation of
amended subsection (a)(1), the gross proceeds of such
violation, and property traceable to such property or proceeds.
This amendment is necessary to deprive smugglers of the
property they use to coordinate and undertake their smuggling
operations and to deny them the financial gains they have
obtained through smuggling.
Section 203. Improper entry by, or presence of, aliens.
This section makes illegal presence in the United States a
Federal crime, and expands the penalties for aliens who
illegally enter the U.S., are present illegally, or are present
illegally and have been convicted of certain crimes. It also
expands the penalties for marriage and immigration-related
entrepreneurship fraud.
Section 203 is intended to bring section 275 of the INA,
which criminalizes illegal entry into the United States, into
harmony with section 276, which prohibits illegal entry after
removal. Section 276 makes it a crime to be ``found in'' the
United States after removal. Section 203 of the bill amends
section 275 to state that it is a crime for an alien to be
``present in the United States in violation of the immigration
laws or regulations prescribed thereunder.'' This section
establishes consistency between section 275 and section 276.
Section 203 also removes incentives for aliens, having
entered legally, to remain in the United States in violation of
the terms of their visa or entry. Currently, ``visa overstay''
is not a criminal offense, and, as a practical matter, there
are often not negative consequences associated with visa
overstay. This is likely one of the reasons that the overstay
problem is significant. According to the 2000 Statistical
Yearbook of the Immigration and Naturalization Service, ``About
2.1 million, or 41 percent, of the total undocumented
population in 1996 [were] non-immigrant overstays. That is,
they entered legally on a temporary basis and failed to
depart.'' Because overstaying a visa is not currently a
criminal offense, in many cases an alien is no worse off for
having remained in the United States past the expiration of an
authorized stay than they would have been had they departed on
time. On the contrary, in some cases aliens have sought relief
based on factors that develop during the time they were out of
status. In making overstaying a visa a Federal crime, section
203 will encourage aliens to depart at the end of their
authorized stay. This penalty will increase respect for the
immigration system by deterring aliens who remain in the United
States out of the mistaken belief that their visa overstay is
merely a technical violation. It will also ensure that illegal
aliens do not labor under the impression that simply eluding
authorities for long enough will provide relief from
deportation based on acquired equities.
Section 203 also contains sentence enhancements for illegal
alien criminal offenders who remain in the United States after
conviction. This will protect the American people by
encouraging serious criminal illegal aliens to leave the United
States after imprisonment. Such self-deportation is more
effective, and cost-effective, than removal by the Government.
Finally, this section increases the penalties for marriage
and immigration-related entrepreneurship fraud. Enhanced
penalties are necessary to deter an increasing level of
immigration fraud, particularly by criminal organizations that
utilize, promote, or derive financial benefit from immigration
fraud. Increasing the maximum sentences under these subsections
will serve to deter and punish organizations and individuals
who engage in these crimes.
Section 204. Reentry of removed aliens.
This section, based on Representative Darrell Issa's
``Criminal Alien Accountability Act'' (H.R. 3150), sets
mandatory minimum sentences for aliens convicted of reentry
after removal. Section 276 of the INA criminalizes attempted or
successful entry into the United States by illegal aliens who
have been previously excluded, deported, removed, or denied
admission. Unfortunately, this provision has proven ineffective
at deterring the reentry of aliens after removal from the
United States. As a result of this frequent abuse, United
States Attorneys Offices have set thresholds for the number of
reentries aliens must commit before they will be prosecuted.
This problem is particularly troublesome given the examples of
those illegal aliens who go on to commit serious crimes.
For example, Rafael Resendez-Ramirez, the so-called
``Railway Killer'' who killed at least eight people over a 3-
year period in the late 1990s, had an extensive criminal record
in the United States beginning in 1976, including convictions
for burglary and aggravated assault. He also had an extensive
immigration record, having been arrested for illegal entry on
seven occasions in 1998 alone. As the Department of Justice's
Inspector General (IG) found, however: ``[B]ecause Resendez had
not reached the threshold number of prior apprehensions for
prosecution established in each of the stations where he was
apprehended, he was not detained for prosecution,'' \14\ but
instead was returned to Mexico. The IG found that ``after each
return to Mexico, he reentered the United States illegally and
continued his criminal activities,'' including the December
1998 murder of Dr. Claudia Benton in Houston. Section 204 will
shut the revolving door that allows criminal aliens to reenter
the United States to prey on residents of the United States. By
setting mandatory minimum sentences for these offenses, we will
both deter alien criminals from reentering illegally and
encourage their effective prosecution when they do.
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\14\ Office of the Inspector General, U.S. Department of Justice,
Special Report--the Rafael Resendez-Ramirez Case: A Review of the INS's
Actions and Operation of Its IDENT Automated Fingerprint System (2000).
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This section also resolves an issue that has arisen in
numerous prosecutions under section 276 of the INA. At present,
to prove a violation of section 276, the Government is required
to show that the Secretary of Homeland Security did not consent
to the alien applying for readmission to the United States or
that the alien is not required to obtain such consent. Thus, in
order to convict an alien of reentering the United States after
removal, the Government must prove a negative, i.e., that the
Attorney has not ``expressly consented to such alien's
reapplying for admission.'' Each case therefore requires the
Government to perform an intensive search of its records, and
to then issue a certificate of nonexistence to certify that the
search was done and no application from the specific alien-
defendant was found. Despite the fact that aliens rarely apply
for the Secretary's consent, DHS must nevertheless make an
exhaustive search in each case. Section 204 converts permission
to reenter into an affirmative defense to an illegal reentry
charge. Because few aliens apply for the consent of the
Secretary of DHS, and the defendant-alien is in the best
position to know whether he applied for such permission, this
change will properly apportion the burden with respect to
consent to reenter and eliminate the need for the Government to
prove that the Secretary did not consent in its case-in-chief.
Section 205. Mandatory sentencing ranges for persons aiding or
assisting certain reentering aliens.
Also based on the ``Criminal Alien Accountability Act,''
this section seeks to deter the smuggling of removed aliens by
imposing on smugglers the same sentences that the aliens they
have smuggled would receive.
Section 206. Prohibiting carrying or using a firearm during and in
relation to an alien smuggling crime.
18 U.S.C. Sec. 924(c) criminalizes the carrying or use of
firearms in the commission of violent or drug trafficking
crimes. Presently, current law does not address alien smugglers
who use firearms to further their crimes. Increasing numbers of
alien smugglers are utilizing firearms to facilitate their
smuggling, and a greater number are expected to arm themselves
as their livelihood is disrupted by U.S. agents patrolling
America's borders. The willingness of smugglers to use and
carry firearms endangers the lives of Border Patrol agents, the
aliens who are being smuggled, and innocent bystanders. The use
of weapons also aids smugglers and aliens in escaping
apprehension, as it allows them to forcibly resist border
patrol officers. Given these facts, stronger punishment of
smugglers who use weapons in the commission of their crimes is
warranted. Section 206 will provide for such punishment by
subjecting alien smugglers to the same penalties faced by
criminals who carry firearms when they traffic in narcotics and
commit Federal crimes of violence.
Section 207. Clarifying changes.
This section clarifies that the provision barring entry to
aliens who have made false claims to U.S. citizenship also
applies to aliens who have made false claims to U.S.
nationality. It also provides that DHS shall have access to any
information kept by any Federal agency with regard to any
person seeking a benefit or privilege under the immigration
law.
Section 208. Voluntary departure reform.
``Voluntary departure'' is a benefit in removal proceedings
that allows deportable aliens to agree to leave the United
States within a specified time period of their own volition
rather than facing a formal order of removal, while avoiding
the adverse legal consequences of a final order of removal.
Ideally, the Government should also benefit from this practice,
as it is spared the expense of initiating removal proceedings,
extensively litigating the aliens' cases, and, ultimately,
removing the aliens. The Government may not realize such
benefits in practice, however, because few aliens granted
voluntary departure actually depart from the country
expeditiously. In all too many cases, a grant of voluntary
departure is merely a prelude to years of further litigation in
which the alien continues to benefit from delay of removal.
Under current law, an alien who receives voluntary departure
may appeal his immigration case first to the Board of
Immigration Appeals, and then to the Court of Appeals. Many
circuit courts will toll the voluntary departure period pending
review. At the end of this process, perhaps years after the
original voluntary departure grant, and after denial of every
appeal, the alien can then leave the United States in
accordance with the original voluntary departure grant.
Section 208 changes this process to encourage aliens to
depart under the terms of the voluntary departure order. The
section amends the INA to offer clear advantages for aliens who
agree to voluntary departure and then actually depart. It also
forecloses future litigation in the alien's case. Under this
section, an alien may only be granted voluntary departure
pursuant to an agreement in which the alien agrees to waive
appeal. This will not preclude the alien opting to take an
appeal in lieu of voluntary departure, however, such an action
would void any voluntary departure agreement. Section 208 also
contains penalties in the event that the alien fails to depart
in accordance with the voluntary departure agreement. Failure
to depart will subject the alien to a $3,000 fine, and the
alien will be barred from certain forms of relief for as long
as the alien remains in the country and for 10 years
thereafter. An alien who violates a voluntary departure
agreement by failing to depart may not reopen his removal
proceedings, except to apply for withholding of removal or
protection under the Convention Against Torture. Taken
together, these provisions will ensure the effective use of the
Government's limited judicial, litigation, and removal
resources. They will also provide the alien with incentives to
depart the United States as agreed. In addition, the maximum
period of voluntary departure before the end of proceedings is
reduced from 120 to 60 days, and aliens receiving such benefit
must post bond or show that such a bond would create a hardship
or is unnecessary.
Section 209. Deterring aliens ordered removed from remaining in the
United States unlawfully and from unlawfully returning to the
United States after departing voluntarily.
DHS estimates that some 480,000 absconders--aliens who are
under final orders of removal but have evaded apprehension and
removal by DHS--are currently present in the United States, and
that approximately 40,000 new absconders are added to these
ranks each year. In 2003, the Department of Justice Inspector
General issued a report that found that the former INS had
successfully carried out removal orders with respect to only 13
percent of non-detained aliens who were subject to final
removal orders--and was able to remove only 3 percent of non-
detained aliens who had unsuccessfully sought asylum.\15\ A
major barrier to effective removal of alien absconders is the
fact that there are currently few effective administrative
sanctions available under the law against absconders who have
been apprehended beyond the mere execution of the same removal
order that they had been successfully evaded for months or
years. Even if such absconding aliens are unsuccessful in
obtaining the reopening of their previous final order, they may
simply launch a new round of litigation before the Board of
Immigration Appeals (BIA) and the courts. Section 209 provides
more effective administrative tools to deter absconders from
remaining in this country illegally and to prevent them from
obtaining any further advantages after flouting their removal
orders. This section improves the bars on reentry by aliens
ordered removed by closing a loophole allowing aliens to avoid
these penalties by unlawfully remaining in the United States.
Under section 209, the bars on admissibility will apply once
the alien is ordered removed--even if that alien has not yet
departed. Similarly, the section bars aliens from future
discretionary relief if they have absconded after receiving a
final order of removal until they have left the United States
and for 10 years thereafter. It also bars the granting of
motions to reopen to aliens who have flouted their legal duty
to depart from the United States under the final order of
removal. Taken together, these changes will diminish the
likelihood that aliens will remain in the United States
unlawfully with the hope of becoming eligible for some other
form of relief in the future. By foreclosing future relief for
aliens who fail to depart, the changes in section 209 will
increase the incentive for aliens to seek and to comply with
removal orders.
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\15\ See U.S. Department of Justice Office of the Inspector
General, Evaluation and Inspections Division, The Immigration and
Naturalization Services Removal of Aliens Issued Final Orders (I-2003-
004) at i, ii (2003).
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Section 210. Establishment of a special task force for coordinating and
distributing information on fraudulent immigration documents.
This section requires the Secretary of Homeland Security to
establish a task force to collect information on the
production, sale, and distribution of fraudulent documents to
be used to enter or remain in the U.S. unlawfully, to maintain
that information in a database, to convert the information into
reports to provide guidance to Government officials, and to
develop a system for distributing these reports to appropriate
law enforcement agencies.
TITLE IV--DETENTION AND REMOVAL
Section 401. Mandatory detention for aliens apprehended at or between
ports of entry.
This section requires the Department of Homeland Security
by October 1, 2006, to detain all aliens apprehended at ports
of entry or along the international land and maritime borders
of the United States until they are removed from the United
States or a final decision granting their admission has been
determined. The only exceptions to mandatory detention are if
the alien departs immediately, such as Mexican nationals who
are voluntarily returned across the border, and those paroled
due to urgent humanitarian reasons or significant public
benefit.
This will end the present ``revolving door'' whereby
illegal aliens from countries other than Mexico are caught
trying to illegally enter the U.S. and promptly released
(because of a lack of detention space) with the hope that they
will appear for their immigration court hearing months hence.
As noted earlier, the Department of Justice's Office of the
Inspector General found that the INS was only able to remove 13
percent of nondetained aliens with final orders of removal. In
2004, 120,000 of the 160,000 ``other-than-Mexicans''
apprehended along the border were released.
Section 402. Expansion and effective management of detention
facilities.
This section requires the Secretary of Homeland Security to
fully utilize all bed space owned and operated by the
Department and to utilize all other possible options to cost-
effectively increase detention capacity, including temporary
facilities, contracting with State and local jails, and
establishing secure alternatives to detention.
Section 403. Enhancing transportation capacity for unlawful aliens.
This section authorizes the Secretary of DHS to enter into
contracts with private entities to provide secure domestic
transportation of aliens apprehended at or between ports of
entry from the custody of the Border Patrol to a detention
facility.
Section 404. Denial of admission to nationals of country denying or
delaying accepting alien.
Current law requires the Secretary of State to discontinue
granting visas to nationals of countries that deny or
unreasonably delay accepting the return of their nationals
subject to deportation by the U.S. Because this punishment is
so draconian--barring all nationals of a country from receiving
visas--it is almost never used, despite the fact that a number
of countries continue to refuse to accept the return of their
nationals. This section would add a more measured punishment
that is more likely to be used--authorizing the Secretary of
Homeland Security to deny admission to any national of a
country that declines to accept the prompt repatriation of its
nationals.
Section 405. Report on financial burden of repatriation.
This section requires the Secretary of DHS to submit an
annual report to the Secretary of State and the Committee on
Homeland Security that details the costs to the Department of
Homeland Security for repatriating aliens and provides
recommendations to more cost effectively repatriate such
aliens.
Section 407. Expedited removal
By the mid-1990's, tens of thousands of aliens were
arriving at U.S. airports each year without valid documents and
making meritless asylum claims, knowing that they would be
released into the community pending asylum hearings because of
a lack of detention space. Few were ever heard from again. In
response, the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) created the mechanism of
``expedited removal.'' \16\ Under expedited removal, a DHS
officer at a port-of-entry can immediately return an alien
lacking proper documents to his or her country of origin unless
the alien asks for asylum and can establish a ``credible fear''
of persecution. By fiscal year 2003, the INS was making over
43,000 expedited removals per year and our airports were no
longer being deluged.
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\16\ See INA section 235(b).
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IIRIRA provided the Administration with the authority to
utilize expedited removal in the case of any alien who had
entered the U.S. illegally and had not been present here for 2
years.\17\ Until recently, the INS and DHS never made use of
this power. Recently, the administration has begun using
expedited removal along the southern border because of the
large numbers of non-Mexican aliens who have been caught by the
Border Patrol and then released into the United States because
of a lack of detention space. Under the discretionary authority
provided by IIRIRA, the administration has been utilizing
expedited removal against non-Mexican aliens who are
apprehended within 100 miles of the border and 14 days of
unauthorized entry. Section 407 would mandate the use of
expedited removal in these instances.
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\17\ See INA section 235(b)(1)(A)(iii).
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Section 408. GAO Study on deaths in custody.
This section requires the Government Accountability Office
(GAO) to submit within 6 months of enactment a report to
Congress on the deaths in custody of detainees held on
immigration violations by the Department of Homeland Security.
TITLE VI--TERRORIST AND CRIMINAL ALIENS
Section 601. Removal of terrorist aliens.
Withholding of removal is a form of protection that, while
similar to asylum, differs in two important respects: (1) it is
nondiscretionary; and (2) to receive this benefit, the alien
must meet a higher standard of proof than asylum. Although
aliens who pose a danger to the national security generally are
barred from withholding of removal, aliens deportable on
terrorist grounds are not expressly barred from such relief.
This section bars aliens deportable on terrorist grounds from
receiving withholding of removal.
As the 9/11 Commission's staff report on terrorist travel
makes clear, terrorist aliens have abused our humanitarian
benefits to remain in the United States.\18\ First World Trade
Center bomber Ramzi Yousef, the Blind Sheikh, and Mir Kansi,
who killed two in front of headquarters of the CIA, all made
claims to asylum to remain in the United States. Congress has
barred terrorist aliens from receiving asylum, but the bars to
terrorist aliens receiving withholding of removal, are less
clear. Under the INA, aliens are currently only barred from
withholding if there are reasonable grounds to believe that
they are a danger to the security of the United States. While
the INA states that aliens, who are described in the provision
that renders aliens deportable who have engaged in any
terrorist activity, ``shall be considered to be . . . alien[s]
with respect to whom there are reasonable grounds for regarding
as a danger to the security of the United States,'' aliens with
terrorist ties have made claims that they are not a danger to
the security of the U.S., and thus eligible for withholding.
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\18\ See 9-11 and Terrorist Travel: Staff Report of the National
Commission on Terrorist Attacks Upon the United States at pgs. 47, 99
(2004).
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Section 601 bars all aliens described in the terrorist
grounds of inadmissibility from eligibility for withholding of
removal, with two exceptions. The exceptions give DHS the sole
discretion to determine that representatives of terrorist
groups, and the spouses and children of aliens who would
themselves be barred on terrorist grounds, are not a danger to
the national security and are not barred from such relief. The
terrorist representative exception provision is already
contained in the asylum provision, and the spouse or child
exception was added at the request of DHS. The amendments to
section 601 will ensure that the same standards apply in
assessing whether aliens are eligible for the two primary forms
of humanitarian relief, asylum and withholding of removal.
Section 602. Detention of dangerous aliens.
In the 2001 decision of Zadvydas v. Davis,\19\ the Supreme
Court ruled that under current law, aliens who had been
admitted to the U.S. and then ordered removed could not be
detained for more than 6 months if for some reason they could
not be removed. Then, in Clark v. Martinez,\20\ the Court dealt
with two Cubans who came to the U.S. during the Mariel boatlift
and later committed crimes including assault with a deadly
weapon, attempted sexual assault, and armed robbery. The Court
expanded its decision in Zadvydas to apply to such non-admitted
aliens. Based on these two decisions, the Justice Department
and the Department of Homeland Security have had no choice but
to release back onto the streets many hundreds of criminal
aliens. Jonathan Cohn, Deputy Assistant Attorney General, has
testified that ``the Government is [now] required to release
numerous rapists, child molesters, murderers, and other
dangerous illegal aliens into our streets. . . . [V]icious
criminal aliens are now being set free within the U.S.'' \21\
Cohn referenced the release of aliens including murderers, a
schizophrenic sex offender and pedophiles. Many of these aliens
were Mariel Cubans released from Cuban jails or aliens who have
received relief from removal pursuant to the Convention Against
Torture (CAT), which prohibits the return of an alien to a
country where there are substantial grounds for believing that
he or she would be in danger of being tortured. Almost 900
criminal aliens ordered removed have received CAT relief and
have subsequently been released into our communities pursuant
to these decisions. This includes at least one alien who was
implicated in a mob-related quintuple homicide in
Uzbekistan.\22\ Also, one alien removable on terrorism grounds
has been released after receiving CAT protection. One of the
aliens released has subsequently been arrested for shooting a
New York State trooper in the head.
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\19\ 533 U.S. 678 (2001).
\20\ 543 U.S. 371 (2005).
\21\ Strengthening Immigration Enforcement, Hearing Before the
Subcomm. on Immigration, Border Security and Citizenship and the
Subcomm. on Terrorism, Technology and Homeland Security of the Senate
Comm. on the Judiciary, 109th Cong. (2005).
\22\ See Immigration Relief Under the Convention Against Torture
for Serious Criminals and Human Rights Violators: Hearing Before the
Subcomm. on Immigration, Border Security and Claims of the House Comm.
on the Judiciary, 108th Cong. (2003).
---------------------------------------------------------------------------
Section 602 allows DHS to detain specified dangerous aliens
under orders of removal who cannot be removed. The section
would authorize DHS to detain aliens who are stopped at the
border beyond 6 months. The section would also authorize DHS to
detain aliens who effected an entry beyond 6 months, but only
if: (1) the alien will be removed in the reasonably foreseeable
future; (2) the alien would have been removed but for the
alien's refusal to make all reasonable efforts to comply and
cooperate with the Secretary of DHS' efforts to remove him; (3)
the alien has a highly contagious disease; (4) release would
have serious adverse foreign policy consequences; (5) release
would threaten national security; or (6) release would threaten
the safety of the community and the alien either is an
aggravated felon or is mentally ill and has committed a crime
of violence. Such aliens may be detained for periods of 6
months at a time, and the period of detention may be renewed.
This section also provides for judicial review of detention
decisions in the United States District Court for the District
of Columbia.
Section 603. Increase in criminal penalties.
This section increases penalties and sets mandatory minimum
sentences for aliens who fail to depart when ordered removed or
obstruct their removal, or who fail to comply with the terms of
release pending removal.
Section 604. Precluding admissibility of aggravated felons and other
criminals.
In the Immigration and Nationality Act, the most serious
criminal offenses are deemed aggravated felonies. A conviction
for an aggravated felony can have significant consequences for
an alien. Such an offense requires the removal of an admitted
alien and bars him from most forms of relief, and also subjects
an alien to an increased sentence for certain crimes. However,
under current law a conviction for an aggravated felony is not,
per se, a ground of inadmissibility. For this reason, an
aggravated felony conviction will not render an alien
inadmissible under section 212(a)(2) of the INA unless the
conviction also falls within one of the existing criminal
grounds of inadmissibility, such as a crime involving moral
turpitude, or a controlled substance or money laundering
offense. Section 604 bars aggravated felons from admission and
from receiving discretionary waivers of inadmissibility under
section 212(h) of the INA. This corrects an anomaly under
current law by which aliens with aggravated felony convictions
who are present illegally may receive waivers under that
provision, while lawful permanent resident aliens may not.
Section 604 also applies the domestic violence ground of
deportability to inadmissibility. This will prevent aliens who
have been convicted of crimes of domestic violence, stalking,
child abuse and child neglect from entering and remaining in
the United States. Finally, section 604 amends the
inadmissibility grounds to bar the admission of aliens who have
committed or been convicted of crimes relating to Social
Security fraud or the unlawful procurement of citizenship.
Section 605. Precluding refugee or asylee adjustment of status for
aggravated felonies.
In various statutory enactments since 1988, Congress has
attached a series of stringent restrictions upon the
eligibility of aliens to obtain almost all forms of
discretionary immigration relief after they have been convicted
of an aggravated felony. In particular, under the asylum
provisions, an alien convicted of an aggravated felony is
conclusively barred from being granted asylum, and a grant of
asylum may be terminated if it is determined that the alien has
become subject to one of the mandatory bars to asylum,
including an asylee being convicted of an aggravated felony.
However, the provision governing asylee and refugee adjustment
to permanent resident status does not expressly bar an
applicant from obtaining adjustment where the alien has been
convicted of an aggravated felony after obtaining refugee or
asylee status. Not only is this inconsistent with statutory
bars on almost all discretionary immigration relief for
aggravated felons, it is also inconsistent with the treatment
that the asylee or refugee would be accorded after adjustment.
Specifically, an alien who has been granted refugee or asylee
adjustment is barred from obtaining cancellation of removal, a
waiver under section 212(h) of the INA, or section 212(c)
relief from removal if the alien is convicted of an aggravated
felony after attaining such status. Section 605 corrects this
discrepancy by barring asylees and refugees convicted of
aggravated felonies from adjustment.
Section 606. Removing drunk drivers.
Recent news reports have underscored the tragic cost
inflicted by aliens who have taken lives while driving under
the influence of alcohol. Two cases from North Carolina
underscore this problem. In each, the alien driver has been
charged with drinking and killing another driver. Authorities
have alleged that a Gaston County teacher was killed in July by
an illegal Mexican national with five previous charges of
Driving While Intoxicated (DWI). That alien has been charged
with DWI and second degree murder. The police have also
reported that a University of North Carolina-Charlotte student
was killed in November by an illegal Mexican national who
reportedly had two prior impaired-driving arrests and had drunk
six beers before the accident. That alien, who had previously
been sent back to Mexico 17 times, was also charged with
second-degree murder. Despite the risks posed by drunk drivers,
this offense is not currently a ground of removal. This section
renders aliens convicted of three or more drunk driving
offenses deportable.
Section 607. Designated county law enforcement assistance program.
Section 607, based on Representative Culberson's ``Border
Law Enforcement Act of 2005,'' (H.R. 4360) authorizes local
sheriffs in the 29 counties along the southern border to
transfer illegal aliens they have arrested to Federal custody.
It also specifically reimburses those sheriffs for costs
associated with detaining illegal aliens they arrest until they
are able to hand them over to Federal authorities. The section
deems aliens in sheriffs' custody to be in Federal custody once
determined to be unlawfully present.
Section 608. Rendering inadmissible and deportable aliens participating
in criminal street gangs; detention; ineligibility from
protection from removal and asylum.
Crime by alien members of criminal street gangs is
drastically increasing. Former ICE Assistant Secretary Mike
Garcia has stated: ``In the last decade, the United States has
experienced a dramatic increase in the number and size of
transnational street gangs. . . . These gangs have a
significant, often a majority, foreign-born membership. . . .''
\23\ He also stated, ``[E]ntire neighborhoods and sometimes
whole communities are held hostage by and subjected to the
violence of street gangs.'' Currently, however, aliens who are
members of criminal street gangs are not deportable or
inadmissible, and can receive asylum and temporary protected
status (TPS), until they are convicted of a specific criminal
act. Many of the members in the United States of these gangs
are present in the U.S. under TPS.\24\ One of the most violent
and fastest-growing gangs, Mara Salvatrucha-13 (MS-13), was
formed by Salvadorans who entered the U.S. during the civil war
in El Salvador in the 1980's. There are an estimated 8,000 to
10,000 members in 31 States. The gang is estimated to have as
many as 50,000 members internationally. There have been 18 MS-
13-related killings in North Carolina, 11 in Northern Virginia,
and at least eight in Los Angeles in the past 2 years.
---------------------------------------------------------------------------
\23\ Immigration and the Alien Gang Epidemic: Problems and
Solutions: Hearing Before the Subcomm. on Immigration, Border Security
and Claims of the House Comm. on the Judiciary, 109th Cong. (2005).
\24\ Id. (Of 5,000 gang members in a database that ICE compiled for
Operation Community Shield, 291 El Salvadoran nationals, 43 Hondurans,
and one Nicaraguan had been granted TPS, 6.7 percent of the total).
---------------------------------------------------------------------------
Section 608, based on Representative Forbes's ``Alien Gang
Removal Act of 2005,'' (H.R. 2933) renders alien gang members
deportable and inadmissible, mandates their detention, and bars
them from receiving asylum or TPS. This section adopts
procedures similar to those used by the State Department to
designate foreign terrorist organizations to enable the
Attorney General to designate criminal street gangs for
purposes of the immigration laws. ``Criminal street gangs'' are
defined as ``a formal or informal group or association of three
or more individuals, who commit two or more gang crimes (one of
which is a crime of violence . . .) in two or more separate
criminal episodes, in relation to the group or association.''
``Gang crime'' is defined in that subsection as ``conduct
constituting any Federal or State crime, punishable by
imprisonment for 1 year or more'' in various categories,
including crimes of violence, obstruction of justice, witness
tampering, burglary, and drug trafficking.
Section 609. Naturalization reform.
Alien terrorists are deportable and are also barred from
admission and most other forms of immigration relief. However,
there are no express bars for terrorists from being
naturalized, the most significant benefit that the United
States can bestow on an alien. Section 609 would close this
loophole and bar alien terrorists from naturalization.
Section 609 would also correct other discrepancies in the
naturalization provisions. When INS was given authority to
grant naturalization, INS was precluded from granting that
benefit as long the applicant was in removal proceedings. That
preclusion did not, however, apply to district courts, which
retained part of their historic authority over naturalization.
Section 609 corrects this incongruity by barring district court
consideration of naturalization applications while the
applicant is in removal proceedings. Section 609 also holds in
abeyance petitions to grant status for relatives filed by
individuals who are, themselves, facing denaturalization or
removal. Needless to say, if these individuals are in jeopardy
of losing the status that makes their relatives eligible for
benefits, it makes no sense to grant those benefits until the
petitioner's status is clarified.
Currently, aliens can go to district court if their
naturalization applications have been pending with DHS for more
than 120 days. Section 209 gives DHS 180 days to adjudicate
these applications, and limits District Court relief to remand
for adjudication by DHS, making the provision more in line with
traditional mandamus actions. Finally, the section limits court
review of DHS's findings with respect to whether a
naturalization applicant has good moral character, whether the
alien understands and is attached to the principles of the
Constitution, and is well disposed to the good order and
happiness of the United States. These findings are similar to
other discretionary determinations that are precluded from
judicial review.
Section 610. Expedited removal for aliens inadmissible on criminal or
security grounds.
This section will allow DHS to use the same expedited
procedures that are available for the removal of aggravated
felons to remove other inadmissible criminal aliens who entered
illegally and who are otherwise ineligible for relief. At the
present time, these aliens must be placed in removal
proceedings before an immigration judge despite the fact that
they are not eligible for any relief. Those proceedings can be
rescheduled multiple times and take several weeks before the
alien is eventually deported.
Section 611. Technical correction for effective date in change in
inadmissibility for terrorists under REAL ID Act.
Section 103 of the REAL ID Act was designed to ensure the
removal of aliens tied to terrorist organizations. However,
aliens currently in deportation proceedings initiated before
the effective date of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 have claimed that the REAL
ID Act does not apply to them. Section 611 clarifies that the
amendments in the terrorist grounds of removal in the REAL ID
Act are to be applied to aliens in all removal, deportation,
and exclusion cases, regardless of when those cases were
initiated.
Section 612. Bar to good moral character.
Applicants for certain immigration benefits, including
naturalization, voluntary departure, and cancellation of
removal, must demonstrate ``good moral character,'' as defined
in the INA. At present, although the definition excludes (among
others) ``habitual drunkards'' and gamblers, it does not
expressly exclude aliens who are terrorists or those who aid or
support terrorism. Section 612 corrects this discrepancy by
barring terrorist aliens from showing good moral character. In
addition, because the definition of ``good moral character'' in
the INA does not, and could never, cover all situations in
which applicants could be shown not to have good moral
character, this provision gives the Secretary of Homeland
Security and the Attorney General discretionary authority to
make a good moral character determination in situations not
specifically set forth by the definition. The section clarifies
that the aggravated felony bar to good moral character applies
regardless of when the crime was classified as an aggravated
felony and clarifies the discretionary authority of DHS to find
an alien not to be of good moral character may be based upon
actions that did not occur within the requisite period of time
for which good moral character must be established.
Section 613. Strengthening definitions of ``aggravated felony'' and
``conviction.''
The ``aggravated felony'' definition in the INA covers both
murder and crimes of violence for which the term of
imprisonment is at least a year, but significantly, it does not
specifically include manslaughter and homicide. Many aliens
accused of murder, however, will plead to these lesser
offenses. Section 613 will ensure that all aliens who have
taken the life of another are covered by the ``aggravated
felony'' definition. In addition, while the sexual abuse of a
minor is an aggravated felony, proof in such cases can be
limited where the victim was a minor, but the offense does not
list the alien's minority as an element. Section 613 allows
extrinsic evidence to be offered to establish the minority of
the victim in a sexual abuse case. The section also prevents
State courts from interfering in Federal immigration law by
reversing or vacating convictions after they have been entered
in order to forestall removal. Some State courts have granted
requests by criminal aliens to revise their sentences and
convictions to allow them to avoid the immigration consequences
of their acts, and have even granted these requests after
aliens have served their sentences. Section 613 makes it clear
that immigration consequences will continue to attach to
convictions that have been the subject of post-judicial
amendment unless that amendment occurred because the alien was
not guilty of the offense.
Section 614. Deportability for criminal offenses.
This section renders removable aliens who have unlawfully
procured citizenship as well as aliens convicted of offenses
relating to misuse of Social Security numbers and cards and
fraud in connection with identification documents.
Sections 701-708. Employment Eligibility Verification
The Immigration Reform and Control Act of 1986 (IRCA) made
it unlawful for employers to knowingly hire or employ aliens
not eligible to work and required employers to check the
identity and work eligibility documents of all new employees.
The Act was designed to end the ``job magnet'' that draws the
vast majority of illegal aliens to the United States. Under
IRCA, if the documents provided by an employee reasonably
appear on their face to be genuine, an employer has met its
document review obligation. Unfortunately, the easy
availability of counterfeit documents has made a mockery of
IRCA. Fake documents are produced by the millions and can be
obtained cheaply. Thus, the current system both benefits
unscrupulous employers who do not mind hiring illegal aliens
but want to show that they have met legal requirements and
harms employers who do not want to hire illegal aliens but have
no choice but to accept documents they know have a good
likelihood of being counterfeit.
In the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Congress responded to the
deficiencies of IRCA by establishing three employment
eligibility verification pilot programs for volunteer employers
in selected States. Under the basic pilot program, the Social
Security numbers and alien identification numbers of new hires
are checked against Social Security Administration and
Department of Homeland Security records in order to identify
fraudulent numbers and thus to ensure that new hires are
genuinely eligible to work. A 2001 report on the basic pilot
program found that ``an overwhelming majority of employers
participating found the basic pilot program to be an effective
and reliable tool for employment verification'' \25\--96
percent of employers found it to be an effective tool for
employment verification; and 94 percent of employers believed
it to be more reliable than the IRCA-required document
check.\26\ In 2003, Congress extended the basic pilot program
for another 5 years and made it available to employers
Nationwide.\27\
---------------------------------------------------------------------------
\25\ Institute for Survey Research & Westat, INS Basic Pilot
Summary Report at v.
\26\ See id. at 16.
\27\ Pub. L. No. 108-156.
---------------------------------------------------------------------------
A basic description of the basic pilot works is detailed
below.
LAn employer has 3 days from the date of hire
to make an inquiry by phone or other electronic means
to the confirmation office. If the new hire claims to
be a citizen, the employer will transmit his or her
name and Social Security number. If the new hire claims
to be a non-citizen, the employer will transmit his or
her name, alien identification number and Social
Security number.
LThe confirmation office will compare the name
and Social Security number provided against information
contained in Social Security Administration records
and, if necessary, will compare the name and DHS-issued
number provided against information contained in DHS
records.
LIf in checking the records, the confirmation
office ascertains that the new hire is eligible to
work, the operator will within 3 days so inform the
employer. If the confirmation office cannot confirm the
work eligibility of the new hire, it will within 3 days
so inform the employer of a tentative nonconfirmation.
LIf a new hire does not contest the tentative
nonconfirmation, it shall be considered a final
nonconfirmation. If a new hire wishes to contest the
tentative nonconfirmation, secondary verification will
be undertaken. Secondary verification is an expedited
procedure set up to confirm the validity of information
contained in the Government records and provided by the
new hire. Under this process, the new hire will
typically contact or visit the Social Security
Administration and/or DHS to see why the Government
records disagree with the information he or she has
provided. If the new hire requests secondary
verification, he or she cannot be fired on the basis of
the tentative nonconfirmation.
LIf the discrepancy can be reconciled within
10 days, then confirmation of work eligibility will be
given to the employer by the end of this period. If the
discrepancy cannot be reconciled within 10 days, final
denial of confirmation will be given by the end of this
period. The employer then has two options. It can
dismiss the new hire as being ineligible to work in the
United States or it can continue to employ the new
hire. If the employer continues to employ the new hire,
it must notify DHS of this decision or be subject to
penalty. If legal action is brought by the Government
subsequent to such notification, the employer is then
subject to a rebuttable presumption that it has
knowingly hired an illegal alien.
Title VII will make participation in the basic pilot
program mandatory for all employers within 2 years of
enactment. It will also expand the system to provide for
verification of previously-hired employees. Employers will be
able to use the system to verify previously-hired employees on
a voluntary basis (as long as they do not do so in a
discriminatory manner) 2 years after enactment. By 3 years
after enactment, Federal, State, and local governments and the
military must verify the employment eligibility of all workers
who have not been previously subject to verification under the
system, as must other employers for those employees working at
Federal, State or local Government buildings, military bases,
nuclear energy sites, weapons sites, airports, and critical
infrastructure sites. By 6 years after enactment, all employers
must verify the employment eligibility of all workers who have
not been previously subject to verification under the system.
The title requires DHS to investigate situations in which a
Social Security number is submitted more than once by the same
employer, or where a Social Security number is submitted by
multiple employers, in a manner that suggests fraud. The title
exempts employers from liability who rely in good faith on
information provided by the verification system. The title also
applies employment eligibility verification requirements to day
labor sites and other hiring halls.
The title establishes civil penalties for failure to comply
with the employment eligibility verification requirements and
increases civil penalties for knowingly hiring or employing
aliens ineligible to work or for failing to comply with the I-9
process.
The title requires the Social Security Administration (SSA)
to conduct a study on the cost and administrability of the
elements of Representative David Dreier's ``Illegal Immigration
Enforcement and Social Security Protection Act of 2005'' (H.R.
98). This proposal requires: hardened, secure Social Security
cards with an electronic strip and digital photograph; the
creation of a unified database between SSA and DHS for
employment eligibility verification; and a requirement that
employers verify employment eligibility verification of new
hires by swiping the secure Social Security card through an
electronic card-reader.
Section 801. Board of Immigration Appeals removal order authority.
The Ninth Circuit has given aliens additional opportunities
to needlessly hinder their removal by requiring the Board of
Immigration Appeals (BIA) to remand cases in which it has
reversed an immigration judge decision granting an alien relief
back to the immigration judge for entry of the order of
removal. Section 801 expressly provides the BIA authority to
reverse an immigration judge decision and enter an order of
removal without remanding to the immigration judge.
Section 802. Judicial review of visa revocation.
The INA allows consular officers to revoke visas after they
have been issued. However, prior to enactment of the
Intelligence Reform and Terrorism Prevention Act of 2004, if a
visa was revoked after an alien entered the United States, the
alien was allowed to remain in the United States under the
terms of admission since there existed no ground of removal for
visa revocation. Section 5304 of the Intelligence Reform Act
created a ground of removal for aliens whose visas were revoked
after entry. This was spurred by a Government Accountability
Office (GAO) investigation that revealed that the absence of
such a ground of removal posed a risk to the American people.
In October 2002, GAO reported that the State Department had
revoked 105 visas that had been erroneously issued to aliens,
about whom there were questions about possible terror ties,
before their background checks had been completed.\28\ GAO
found that immigration agents did not attempt to track down
those aliens whose visas had been revoked because of the
difficulty in removing those aliens from the United States.
DHS' inability to remove aliens after their visas were revoked
was especially problematic in terrorism cases, because
information linking an alien to terrorism is often classified,
but classified information cannot be used to prove
deportability. The House acted to close this loophole in the
Intelligence Reform Act by adding a provision to make visa
revocation a freestanding ground of removal. However, in
conference a modification was added stating that visa
revocation decisions would be judicially reviewable if
revocation was the sole basis for the order of removal under
review. This change has rendered the revocation ground of
removal worthless as a removal tool. Not only could such review
disclose the sensitive information that the revocation ground
of removal is intended to protect, but it would also undermine
the consular nonreviewability doctrine, and allow courts to
second-guess all visa denial decisions. Accordingly, section
802 removes the judicial review provision added in the
conference.
---------------------------------------------------------------------------
\28\ See U.S. General Accounting Office, Border Security--New
Policies and Procedures Are Needed to Fill Gaps in the Visa Revocation
Process at 12, GAO-03-798 (2003).
---------------------------------------------------------------------------
Section 803. Reinstatement.
Section 241 of the INA provides that the Government may
remove an alien who has reentered the country illegally after
being removed, pursuant to the prior order of removal. This
provision is meant to preserve judicial resources, and to close
the revolving door of illegal reentry by allowing DHS to
summarily deport aliens who have reentered after removal,
without having to obtain a new removal order from an
immigration judge. In accordance with section 241, DHS has
promulgated a regulation that permits reinstatement of removal
orders by DHS officers. However, the Ninth Circuit has recently
invalidated DHS's regulation and held that aliens are entitled
to have their reinstatement cases adjudicated by immigration
judges.\29\ In fiscal year 2004, prior to the Ninth Circuit's
decision, DHS removed 42,886 aliens in that circuit through
reinstatement. Under the Ninth Circuit's decision, immigration
judges now must hear tens of thousands of additional cases
annually from aliens ineligible for relief. This is a waste of
extremely limited resources. Section 803 overrules the Ninth
Circuit decision, validates DHS's regulation, and allows the
department to deport an alien who reentered illegally after
being removed without having to place the alien in removal
proceedings again.
---------------------------------------------------------------------------
\29\ See Morales-Izquierdo v. Ashcroft, 388 F. 3d 1299 (9th Cir.
2004).
---------------------------------------------------------------------------
Section 804. Withholding of removal.
Section 101(a)(3) of the REAL ID Act requires an asylum
applicant to show that one of the five protected
characteristics--race, religion, political opinion,
nationality, or membership in a particular social group--``was
or will be at least one central reason'' why the alien was
persecuted or fears persecution and thereby is eligible for
asylum. Section 804 clarifies that the REAL ID motivation
standard for asylum applies to withholding of removal. Unless
this clarification is made, applicants for withholding, who
have traditionally borne a higher burden than applicants for
asylum, now will be found to have a lesser burden.
Section 805. Certificate of reviewability.
There has been a drastic increase in the number of
petitions for review filed in the courts of appeals from
immigration decisions in the past few years. In fiscal year
2001, there were 1,654 such petitions filed. By 2004, 10,681
immigration petitions for review were filed. The vast majority
of these petitions, once reviewed, are denied. In 2004, for
example, the Board of Immigration Appeals' determinations were
sustained by the courts in over 90 percent of the cases
decided, a rate that has actually increased since the Board
adopted its ``streamlining'' reforms in 2002. Section 805
responds to the filing of meritless appeals of removal orders
by establishing a screening process for aliens' appeals of BIA
decisions. Under this provision, appeals will be referred to a
single circuit court judge for initial review. If that judge
decides that the alien has made a substantial showing that the
alien's petition for review is likely to be granted, the judge
will issue a ``certificate of reviewability'' allowing the case
to proceed to a three-judge panel. The provision focuses
limited judicial resources on those petitions for review with
the greatest likelihood of proving meritorious.
Section 806. Waiver of rights in nonimmigrant visa issuance.
Currently, aliens seeking to enter the United States under
the visa waiver program must waive access to the Immigration
Court to challenge removal by any means other than asylum. No
similar restriction is placed on the other nonimmigrants who
are admitted annually. Section 806 would impose the same review
conditions on all nonimmigrant visas that now apply only to
visa waiver admissions, and require aliens seeking to enter
temporarily to waive their ability to contest, other than
through asylum, any action to deny them admission or remove
them.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of Rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TABLE OF CONTENTS
* * * * * * *
Title II--Immigration
* * * * * * *
chapter 2--qualifications for admission of aliens; travel control of
citizens and aliens
* * * * * * *
Sec. 219A. Designation of criminal street gangs.
* * * * * * *
chapter 8--general penalty provisions
* * * * * * *
[Sec. 274. Bringing in and harboring certain aliens.]
Sec. 274. Alien smuggling and related offenses.
* * * * * * *
TITLE I--GENERAL
definitions
Section 101. (a) As used in this Act--
(1) * * *
* * * * * * *
(43) The term ``aggravated felony'' means--
[(A) murder, rape, or sexual abuse of a
minor;]
(A) murder, manslaughter, homicide, rape,
or any sexual abuse of a minor, whether or not
the minority of the victim is established by
evidence contained in the record of conviction
or by evidence extrinsic to the record of
conviction;
* * * * * * *
(F) a crime of violence (as defined in
section 16 of title 18, United States Code, but
not including a purely political offense,
including a third drunk driving conviction,
regardless of the States in which the
convictions occurred, and regardless of whether
the offenses are deemed to be misdemeanors or
felonies under State or Federal law,) for which
the term of imprisonment at least one year;
* * * * * * *
(N) an offense described in [paragraph
(1)(A) or (2) of section 274(a) (relating to
alien smuggling)] section 274(a), except in the
case of a first offense for which the alien has
affirmatively shown that the alien committed
the offense for the purpose of assisting,
abetting, or aiding only the alien's spouse,
child, or parent (and no other individual) to
violate a provision of this Act;
(O) an offense described in [section 275(a)
or 276 committed by an alien who was previously
deported on the basis of a conviction for an
offense described in another subparagraph of
this paragraph] section 275 or section 276 for
which the term of imprisonment was at least one
year;
* * * * * * *
(U) soliciting, aiding, abetting,
counseling, commanding, inducing, procuring or
an attempt or conspiracy to commit an offense
described in this paragraph.
[The term applies to an offense described in this
paragraph whether in violation of Federal or State law
and applies to such an offense in violation of the law
of a foreign country for which the term of imprisonment
was completed within the previous 15 years.
Notwithstanding any other provision of law (including
any effective date), the term applies regardless of
whether the conviction was entered before, on, or after
the date of enactment of this paragraph.] The term
applies--
(i) to an offense described in this
paragraph whether in violation of Federal or
State law and applies to such an offense in
violation of the law of a foreign country for
which the term of imprisonment was completed
within the previous 15 years;
(ii) even if the length of the term of
imprisonment is based on recidivist or other
enhancements;
(iii) to an offense described in this
paragraph even if the statute setting forth the
offense of conviction sets forth other offenses
not described in this paragraph, unless the
alien affirmatively shows, by a preponderance
of evidence and using public records related to
the conviction, including court records, police
records and presentence reports, that the
particular facts underlying the offense do not
satisfy the generic definition of that offense;
and
(iv) regardless of whether the conviction
was entered before, on, or after September 30,
1996, and notwithstanding any other provision
of law (including any effective date).
* * * * * * *
[(47)(A) The term ``order of deportation'' means the order
of the special inquiry officer, or other such administrative
officer to whom the Attorney General has delegated the
responsibility for determining whether an alien is deportable,
concluding that the alien is deportable or ordering
deportation.
[(B) The order described under subparagraph (A) shall
become final upon the earlier of--
[(i) a determination by the Board of Immigration
Appeals affirming such order; or
[(ii) the expiration of the period in which the
alien is permitted to seek review of such order by the
Board of Immigration Appeals.]
(47)(A) The term ``order of removal'' means the order of
the immigration judge, the Board of Immigration Appeals, or
other administrative officer to whom the Attorney General or
the Secretary of Homeland Security has delegated the
responsibility for determining whether an alien is removable,
concluding that the alien is removable or ordering removal.
(B) The order described under subparagraph (A) shall become
final upon the earliest of--
(i) a determination by the Board of Immigration
Appeals affirming such order;
(ii) the entry by the Board of Immigration Appeals
of such order;
(iii) the expiration of the period in which any
party is permitted to seek review of such order by the
Board of Immigration Appeals;
(iv) the entry by an immigration judge of such
order, if appeal is waived by all parties; or
(v) the entry by another administrative officer of
such order, at the conclusion of a process as
authorized by law other than under section 240.
(48)(A) The term ``conviction'' means, with respect to an
alien, a formal judgment of guilt of the alien entered by a
court or, if adjudication of guilt has been withheld, where--
(i) * * *
* * * * * * *
Any reversal, vacatur, expungement, or modification to a
conviction, sentence, or conviction record that was granted to
ameliorate the consequences of the conviction, sentence, or
conviction record, or was granted for rehabilitative purposes,
or for failure to advise the alien of the immigration
consequences of a guilty plea or a determination of guilt,
shall have no effect on the immigration consequences resulting
from the original conviction. The alien shall have the burden
of demonstrating that the reversal, vacatur, expungement, or
modification was not granted to ameliorate the consequences of
the conviction, sentence, or conviction record, for
rehabilitative purposes, or for failure to advise the alien of
the immigration consequences of a guilty plea or a
determination of guilt.
* * * * * * *
(f) For the purposes of this Act--
No person shall be regarded as, or found to be, a person of
good moral character who, during the period for which good
moral character is required to be established, is, or was--
(1) * * *
(2) one who the Secretary of Homeland Security or
the Attorney General determines, in the unreviewable
discretion of the Secretary or the Attorney General, to
have been at any time an alien described in section
212(a)(3) or section 237(a)(4), which determination may
be based upon any relevant information or evidence,
including classified, sensitive, or national security
information, and which shall be binding upon any court
regardless of the applicable standard of review;
* * * * * * *
(8) one who at any time has been convicted of an
aggravated felony (as defined in subsection (a)(43)),
regardless whether the crime was classified as an
aggravated felony at the time of conviction; or
* * * * * * *
[The fact that any person is not within any of the
foregoing classes shall not preclude a finding that for other
reasons such person is or was not of good moral character.] The
fact that any person is not within any of the foregoing classes
shall not preclude a discretionary finding for other reasons
that such a person is or was not of good moral character. The
Secretary and the Attorney General shall not be limited to the
applicant's conduct during the period for which good moral
character is required, but may take into consideration as a
basis for determination the applicant's conduct and acts at any
time. In the case of an alien who makes a false statement or
claim of citizenship, or who registers to vote or votes in a
Federal, State, or local election (including an initiative,
recall, or referendum) in violation of a lawful restriction of
such registration or voting to citizens, if each natural parent
of the alien (or, in the case of an adopted alien, each
adoptive parent of the alien) is or was a citizen (whether by
birth or naturalization), the alien permanently resided in the
United States prior to attaining the age of 16, and the alien
reasonably believed at the time of such statement, claim, or
violation that he or she was a citizen, no finding that the
alien is, or was, not of good moral character may be made based
on it.
* * * * * * *
TITLE II--IMMIGRATION
Chapter 1--Selection System
* * * * * * *
procedure for granting immigrant status
Sec. 204. (a) * * *
(b) After an investigation of the facts in each case, and
after consultation with the Secretary of Labor with respect to
petitions to accord a status under section 203(b)(2) or
203(b)(3), the Attorney General shall, if he determines that
the facts stated in the petition are true and that the alien in
behalf of whom the petition is made is an immediate relative
specified in section 201(b) or is eligible for preference under
subsection (a) or (b) of section 203, approve the petition and
forward one copy thereof to the Department of State. The
Secretary of State shall then authorize the consular officer
concerned to grant the preference status. No petition shall be
approved pursuant to this section if there is any
administrative or judicial proceeding (whether civil or
criminal) pending against the petitioner that could (whether
directly or indirectly) result in the petitioner's
denaturalization or the loss of the petitioner's lawful
permanent resident status.
* * * * * * *
ASYLUM
Sec. 208. (a) * * *
(b) Conditions for Granting Asylum.--
(1) * * *
(2) Exceptions.--
(A) In general.--Paragraph (1) shall not
apply to an alien if the Attorney General
determines that--
(i) * * *
* * * * * * *
(v) the alien is described in
[subclause (I), (II), (III), (IV), or
(VI)] any subclause of section
212(a)(3)(B)(i) or section
[237(a)(4)(B)] 212(a)(3)(F) (relating
to terrorist activity), unless, in the
case only of an alien inadmissible
under subclause (IV) or (IX) of section
212(a)(3)(B)(i), the Attorney General
determines, in the Attorney General's
discretion, that there are not
reasonable grounds for regarding the
alien as a danger to the security of
the United States; [or]
(vi) the alien is described in
section 212(a)(2)(M)(i) or section
237(a)(2)(F)(i) (relating to
participation in criminal street
gangs); or
[(vi)] (vii) the alien was firmly
resettled in another country prior to
arriving in the United States.
* * * * * * *
adjustment of status of refugees
Sec. 209. (a) * * *
* * * * * * *
(c) The provisions of paragraphs (4), (5), and (7)(A) of
section 212(a) shall not be applicable to any alien seeking
adjustment of status under this section, and the Secretary of
Homeland Security or the Attorney General may waive any other
provision of such section (other than paragraph (2)(C) or
subparagraph (A), (B), (C), or (E) of paragraph (3)) with
respect to such an alien for humanitarian purposes, to assure
family unity, or when it is otherwise in the public interest.
However, an alien who is convicted of an aggravated felony is
not eligible for a waiver or for adjustment of status under
this section.
* * * * * * *
Chapter 2--Qualifications for Admission of Aliens; Travel Control of
Citizens and Aliens
* * * * * * *
GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE
FOR ADMISSION; WAIVERS OF INADMISSIBILITY
Sec. 212. (a) Classes of Aliens Ineligible for Visas or
Admission.--Except as otherwise provided in this Act, aliens
who are inadmissible under the following paragraphs are
ineligible to receive visas and ineligible to be admitted to
the United States:
(1) * * *
(2) Criminal and related grounds.--
(A) Conviction of certain crimes.--
(i) In general.--Except as provided
in clause (ii), any alien convicted of,
or who admits having committed, or who
admits committing acts which constitute
the essential elements of--
(I) a crime involving moral
turpitude (other than a purely
political offense) or an
attempt or conspiracy to commit
such a crime, [or]
(II) a violation of (or a
conspiracy or attempt to
violate) any law or regulation
of a State, the United States,
or a foreign country relating
to a controlled substance (as
defined in section 102 of the
Controlled Substances Act (21
U.S.C. 802)), or
(III) a violation (or a
conspiracy or attempt to
violate) an offense described
in section 208 of the Social
Security Act or section 1028 of
title 18, United States Code,
* * * * * * *
(J) Aggravated felony.--Any alien who is
convicted of an aggravated felony at any time
is inadmissible.
(K) Unlawful procurement of citizenship.--
Any alien convicted of, or who admits having
committed, or who admits committing acts which
constitute the essential elements of, a
violation of (or a conspiracy or attempt to
violate) subsection (a) or (b) of section 1425
of title 18, United States Code is
inadmissible.
(L) Crimes of domestic violence, stalking,
or violation of protection orders; crimes
against children.--
(i) Domestic violence, stalking, or
child abuse.--
(I) In general.--Subject to
subclause (II), any alien who
at any time is convicted of, or
who admits having committed, or
who admits committing acts
which constitute the essential
elements of, a crime of
domestic violence, a crime of
stalking, or a crime of child
abuse, child neglect, or child
abandonment is inadmissible.
(II) Waiver for victims of
domestic violence.--Subclause
(I) shall not apply to any
alien described in section
237(a)(7)(A).
(III) Crime of domestic
violence defined.--For purposes
of subclause (I), the term
``crime of domestic violence''
means any crime of violence (as
defined in section 16 of title
18, United States Code) against
a person committed by a current
or former spouse of the person,
by an individual with whom the
person shares a child in
common, by an individual who is
cohabiting with or has
cohabited with the person as a
spouse, by an individual
similarly situated to a spouse
of the person under the
domestic or family violence
laws of the jurisdiction where
the offense occurs, or by any
other individual against a
person who is protected from
that individual's acts under
the domestic or family violence
laws of the United States or
any State, Indian tribal
government, or unit of local or
foreign government.
(ii) Violators of protection
orders.--
(I) In general.--Any alien
who at any time is enjoined
under a protection order issued
by a court and whom the court
determines has engaged in
conduct that violates the
portion of a protection order
that involves protection
against credible threats of
violence, repeated harassment,
or bodily injury to the person
or person for whom the
protection order was issued is
inadmissible.
(II) Protection order
defined.--For purposes of
subclause (I), the term
``protection order'' means any
injunction issued for the
purpose of preventing violent
or threatening acts of domestic
violence, including temporary
or final orders issued by civil
or criminal courts (other than
support or child custody orders
or provisions) whether obtained
by filing an independent action
or as an independent order in
another proceeding.
(M) Criminal street gang participation.--
(i) In general.--Any alien is
inadmissible if the alien has been
removed under section 237(a)(2)(F), or
if the consular officer or the
Secretary of Homeland Security knows,
or has reasonable ground to believe
that the alien--
(I) is a member of a
criminal street gang and has
committed, conspired, or
threatened to commit, or seeks
to enter the United States to
engage solely, principally, or
incidentally in, a gang crime
or any other unlawful activity;
or
(II) is a member of a
criminal street gang designated
under section 219A.
(ii) Criminal street gang
defined.--For purposes of this
subparagraph, the term ``criminal
street gang'' means a formal or
informal group or association of 3 or
more individuals, who commit 2 or more
gang crimes (one of which is a crime of
violence, as defined in section 16 of
title 18, United States Code) in 2 or
more separate criminal episodes in
relation to the group or association.
(iii) Gang crime defined.--For
purposes of this subparagraph, the term
``gang crime'' means conduct
constituting any Federal or State
crime, punishable by imprisonment for
one year or more, in any of the
following categories:
(I) A crime of violence (as
defined in section 16 of title
18, United States Code).
(II) A crime involving
obstruction of justice,
tampering with or retaliating
against a witness, victim, or
informant, or burglary.
(III) A crime involving the
manufacturing, importing,
distributing, possessing with
intent to distribute, or
otherwise dealing in a
controlled substance or listed
chemical (as those terms are
defined in section 102 of the
Controlled Substances Act (21
U.S.C. 802)).
(IV) Any conduct punishable
under section 844 of title 18,
United States Code (relating to
explosive materials),
subsection (d), (g)(1) (where
the underlying conviction is a
violent felony (as defined in
section 924(e)(2)(B) of such
title) or is a serious drug
offense (as defined in section
924(e)(2)(A)), (i), (j), (k),
(o), (p), (q), (u), or (x) of
section 922 of such title
(relating to unlawful acts), or
subsection (b), (c), (g), (h),
(k), (l), (m), or (n) of
section 924 of such title
(relating to penalties),
section 930 of such title
(relating to possession of
firearms and dangerous weapons
in Federal facilities), section
931 of such title (relating to
purchase, ownership, or
possession of body armor by
violent felons), sections 1028
and 1029 of such title
(relating to fraud and related
activity in connection with
identification documents or
access devices), section 1952
of such title (relating to
interstate and foreign travel
or transportation in aid of
racketeering enterprises),
section 1956 of such title
(relating to the laundering of
monetary instruments), section
1957 of such title (relating to
engaging in monetary
transactions in property
derived from specified unlawful
activity), or sections 2312
through 2315 of such title
(relating to interstate
transportation of stolen motor
vehicles or stolen property).
(V) Any conduct punishable
under section 274 (relating to
bringing in and harboring
certain aliens), section 277
(relating to aiding or
assisting certain aliens to
enter the United States), or
section 278 (relating to
importation of alien for
immoral purpose) of this Act.
(3) Security and related grounds.--
(A) * * *
(B) Terrorist activities.--
(i) * * *
(ii) Exception.--[Subclause (VII)]
Subclause (IX) of clause (i) does not
apply to a spouse or child--
(I) * * *
* * * * * * *
(6) Illegal entrants and immigration violators.--
(A) * * *
* * * * * * *
(C) Misrepresentation.--
(i) * * *
(ii) Falsely claiming citizenship
or nationality.--
(I) In general.--Any alien
who falsely represents, or has
falsely represented, himself or
herself to be a citizen or
national of the United States
for any purpose or benefit
under this Act (including
section 274A) or any other
Federal or State law is
inadmissible.
(II) Exception.--In the
case of an alien making a
representation described in
subclause (I), if each natural
parent of the alien (or, in the
case of an adopted alien, each
adoptive parent of the alien)
is or was a citizen or national
(whether by birth or
naturalization), the alien
permanently resided in the
United States prior to
attaining the age of 16, and
the alien reasonably believed
at the time of making such
representation that he or she
was a citizen or national, the
alien shall not be considered
to be inadmissible under any
provision of this subsection
based on such representation.
* * * * * * *
(9) Aliens previously removed.--
(A) Certain aliens previously removed.--
(i) Arriving aliens.--Any alien who
has been ordered removed under section
235(b)(1) or at the end of proceedings
under section 240 initiated upon the
alien's arrival in the United States
and who again seeks admission [within 5
years of] before, or within 5 years of,
the date of such removal (or within 20
years in the case of a second or
subsequent removal or at any time in
the case of an alien convicted of an
aggravated felony) is inadmissible.
(ii) Other aliens.--Any alien not
described in clause (i) who--
(I) has been ordered
removed under section 240 or
any other provision of law, or
(II) departed the United
States while an order of
removal was outstanding,
and who seeks admission [within 10
years of] before, or within 10 years
of, the date of such alien's departure
or removal (or within 20 years of such
date in the case of a second or
subsequent removal or at any time in
the case of an alien convicted of an
aggravated felony) is inadmissible.
* * * * * * *
(h) [The Attorney General may, in his discretion, waive
the application of subparagraphs (A)(i)(I), (B), (D), and (E)
of subsection (a)(2)] The Attorney General or the Secretary of
Homeland Security may, in the discretion of the Attorney
General or such Secretary, waive the application of
subparagraph (A)(i)(I), (A)(i)(III), (B), (D), (E), (K), and
(L) of subsection (a)(2) and subparagraph (A)(i)(II) of such
subsection insofar as it relates to a single offense of simple
possession of 30 grams or less of marijuana if--
(1)(A) in the case of any immigrant it is
established to the satisfaction of the Attorney General
or the Secretary that--
(i) * * *
* * * * * * *
(B) in the case of an immigrant who is the spouse,
parent, son, or daughter of a citizen of the United
States or an alien lawfully admitted for permanent
residence if it is established to the satisfaction of
the Attorney General or the Secretary that the alien's
denial of admission would result in extreme hardship to
the United States citizen or lawfully resident spouse,
parent, son, or daughter of such alien; or
* * * * * * *
(2) the [Attorney General, in his discretion,]
Attorney General or the Secretary of Homeland Security,
in the discretion of the Attorney General or such
Secretary, and pursuant to such terms, conditions and
procedures [as he] as the Attorney General or the
Secretary may by regulations prescribe, has consented
to the alien's applying or reapplying for a visa, for
admission to the United States, or adjustment of
status.
No waiver shall be provided under this subsection in the case
of an alien who has been convicted of (or who has admitted
committing acts that constitute) murder or [criminal acts
involving torture] criminal acts involving torture, or an
aggravated felony, or an attempt or conspiracy to commit murder
or a criminal act involving torture. No waiver shall be granted
under this subsection in the case of an alien who has
previously been admitted to the United States as an alien
lawfully admitted for permanent residence [if either since the
date of such admission the alien has been convicted of an
aggravated felony or the alien] if since the date of such
admission the alien has not lawfully resided continuously in
the United States for a period of not less than 7 years
immediately preceding the date of initiation of proceedings to
remove the alien from the United States. No court shall have
jurisdiction to review a decision of the Attorney General or
the Secretary to grant or deny a waiver under this subsection.
* * * * * * *
conditional permanent resident status for certain alien spouses and
sons and daughters
Sec. 216. (a) * * *
* * * * * * *
(e) Treatment of Period for Purposes of Naturalization.--
For purposes of title III, in the case of an alien who is in
the United States as a lawful permanent resident on a
conditional basis under this section, the alien shall be
considered to have been admitted as an alien lawfully admitted
for permanent residence and to be in the United States as an
alien lawfully admitted to the United States for permanent
residence, if the alien has had the conditional basis removed
under this section.
* * * * * * *
conditional permanent resident status for certain alien entrepreneurs,
spouses, and children
Sec. 216A. (a) * * *
* * * * * * *
(e) Treatment of Period for Purposes of Naturalization.--
For purposes of title III, in the case of an alien who is in
the United States as a lawful permanent resident on a
conditional basis under this section, the alien shall be
considered to have been admitted as an alien lawfully admitted
for permanent residence and to be in the United States as an
alien lawfully admitted to the United States for permanent
residence, if the alien has had the conditional basis removed
under this section.
* * * * * * *
DESIGNATION OF CRIMINAL STREET GANGS
Sec. 219A. (a) Designation.--
(1) In general.--The Attorney General is authorized
to designate a group or association as a criminal
street gang in accordance with this subsection if the
Attorney General finds that the group or association
meets the criteria described in section
212(a)(2)(M)(ii)(I).
(2) Procedure.--
(A) Notice.--
(i) To congressional leaders.--
Seven days before making a designation
under this subsection, the Attorney
General shall notify the Speaker and
Minority Leader of the House of
Representatives and the Majority Leader
and Minority Leader of the Senate, and
the members of the relevant committees
of the House of Representatives and the
Senate, in writing, of the intent to
designate a group or association under
this subsection, together with the
findings made under paragraph (1) with
respect to that group or association,
and the factual basis therefor.
(ii) Publication in federal
register.--The Attorney shall publish
the designation in the Federal Register
seven days after providing the
notification under clause (i).
(B) Effect of designation.--
(i) A designation under this
subsection shall take effect upon
publication under subparagraph (A)(ii).
(ii) Any designation under this
subsection shall cease to have effect
upon an Act of Congress disapproving
such designation.
(3) Record.--In making a designation under this
subsection, the Attorney General shall create an
administrative record.
(4) Period of designation.--
(A) In general.--A designation under this
subsection shall be effective for all purposes
until revoked under paragraph (5) or (6) or set
aside pursuant to subsection (b).
(B) Review of designation upon petition.--
(i) In general.--The Attorney
General shall review the designation of
a criminal street gang under the
procedures set forth in clauses (iii)
and (iv) if the designated gang or
association files a petition for
revocation within the petition period
described in clause (ii).
(ii) Petition period.--For purposes
of clause (i)--
(I) if the designated gang
or association has not
previously filed a petition for
revocation under this
subparagraph, the petition
period begins 2 years after the
date on which the designation
was made; or
(II) if the designated gang
or association has previously
filed a petition for revocation
under this subparagraph, the
petition period begins 2 years
after the date of the
determination made under clause
(iv) on that petition.
(iii) Procedures.--Any criminal
street gang that submits a petition for
revocation under this subparagraph must
provide evidence in that petition that
the relevant circumstances described in
paragraph (1) are sufficiently
different from the circumstances that
were the basis for the designation such
that a revocation with respect to the
gang is warranted.
(iv) Determination.--
(I) In general.--Not later
than 180 days after receiving a
petition for revocation
submitted under this
subparagraph, the Attorney
General shall make a
determination as to such
revocation.
(II) Publication of
determination.--A determination
made by the Attorney General
under this clause shall be
published in the Federal
Register.
(III) Procedures.--Any
revocation by the Attorney
General shall be made in
accordance with paragraph (6).
(C) Other review of designation.--
(i) In general.--If in a 5-year
period no review has taken place under
subparagraph (B), the Attorney General
shall review the designation of the
criminal street gang in order to
determine whether such designation
should be revoked pursuant to paragraph
(6).
(ii) Procedures.--If a review does
not take place pursuant to subparagraph
(B) in response to a petition for
revocation that is filed in accordance
with that subparagraph, then the review
shall be conducted pursuant to
procedures established by the Attorney
General. The results of such review and
the applicable procedures shall not be
reviewable in any court.
(iii) Publication of results of
review.--The Attorney General shall
publish any determination made pursuant
to this subparagraph in the Federal
Register.
(5) Revocation by act of congress.--The Congress,
by an Act of Congress, may block or revoke a
designation made under paragraph (1).
(6) Revocation based on change in circumstances.--
(A) In general.--The Attorney General may
revoke a designation made under paragraph (1)
at any time, and shall revoke a designation
upon completion of a review conducted pursuant
to subparagraphs (B) and (C) of paragraph (4)
if the Attorney General finds that the
circumstances that were the basis for the
designation have changed in such a manner as to
warrant revocation.
(B) Procedure.--The procedural requirements
of paragraphs (2) and (3) shall apply to a
revocation under this paragraph. Any revocation
shall take effect on the date specified in the
revocation or upon publication in the Federal
Register if no effective date is specified.
(7) Effect of revocation.--The revocation of a
designation under paragraph (5) or (6) shall not affect
any action or proceeding based on conduct committed
prior to the effective date of such revocation.
(8) Use of designation in hearing.--If a
designation under this subsection has become effective
under paragraph (2)(B) an alien in a removal proceeding
shall not be permitted to raise any question concerning
the validity of the issuance of such designation as a
defense or an objection at any hearing.
(b) Judicial Review of Designation.--
(1) In general.--Not later than 30 days after
publication of the designation in the Federal Register,
a group or association designated as a criminal street
gang may seek judicial review of the designation in the
United States Court of Appeals for the District of
Columbia Circuit.
(2) Basis of review.--Review under this subsection
shall be based solely upon the administrative record.
(3) Scope of review.--The Court shall hold unlawful
and set aside a designation the court finds to be--
(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with
law;
(B) contrary to constitutional right,
power, privilege, or immunity;
(C) in excess of statutory jurisdiction,
authority, or limitation, or short of statutory
right;
(D) lacking substantial support in the
administrative record taken as a whole; or
(E) not in accord with the procedures
required by law.
(4) Judicial review invoked.--The pendency of an
action for judicial review of a designation shall not
affect the application of this section, unless the
court issues a final order setting aside the
designation.
(c) Relevant Committee Defined.--As used in this section,
the term ``relevant committees'' means the Committees on the
Judiciary of the House of Representatives and of the Senate.
* * * * * * *
Chapter 3--Issuance of Entry Documents
issuance of visas
Sec. 221. (a)(1) * * *
* * * * * * *
(3) An alien may not be issued a nonimmigrant visa unless
the alien has waived any right--
(A) to review or appeal under this Act of an
immigration officer's determination as to the
inadmissibility of the alien at the port of entry into
the United States; or
(B) to contest, other than on the basis of an
application for asylum, any action for removal of the
alien.
* * * * * * *
(i) After the issuance of a visa or other documentation to
any alien, the consular officer or the Secretary of State may
at any time, in his discretion, revoke such visa or other
documentation. Notice of such revocation shall be communicated
to the Attorney General, and such revocation shall invalidate
the visa or other documentation from the date of issuance:
Provided, That carriers or transportation companies, and
masters, commanding officers, agents, owners, charterers, or
consignees, shall not be penalized under section 273(b) for
action taken in reliance on such visas or other documentation,
unless they received due notice of such revocation prior to the
alien's embarkation. [There shall be no means of judicial
review (including review pursuant to section 2241 of title 28,
United States Code, or any other habeas corpus provision, and
sections 1361 and 1651 of such title) of a revocation under
this subsection, except in the context of a removal proceeding
if such revocation provides the sole ground for removal under
section 237(a)(1)(B).] Notwithstanding any other provision of
law (statutory or nonstatutory), including section 2241 of
title 28, United States Code, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, a
revocation under this subsection may not be reviewed by any
court, and no court shall have jurisdiction to hear any claim
arising from, or any challenge to, such a revocation.
* * * * * * *
Chapter 4--Inspection, Apprehension, Examination, Exclusion, and
Removal
* * * * * * *
INSPECTION BY IMMIGRATION OFFICERS; EXPEDITED REMOVAL OF INADMISSIBLE
ARRIVING ALIENS; REFERRAL FOR HEARING
Sec. 235. (a) * * *
(b) Inspection of Applicants for Admission.--
(1) Inspection of aliens arriving in the united
states and certain other aliens who have not been
admitted or paroled.--
(A) Screening.--
(i) * * *
* * * * * * *
(iii) Application to certain other
aliens.--
(I) In general.--The
[Attorney General] Secretary of
Homeland Security may apply
clauses (i) and (ii) of this
subparagraph to any or all
aliens described in subclause
(II) as designated by the
[Attorney General] Secretary of
Homeland Security. Such
designation shall be in the
sole and unreviewable
discretion of the [Attorney
General] Secretary of Homeland
Security and may be modified at
any time.
* * * * * * *
(III) Exception.--
Notwithstanding subclauses (I)
and (II), the Secretary of
Homeland Security shall apply
clauses (i) and (ii) of this
subparagraph to any alien
(other than an alien described
in subparagraph (F)) who is not
a national of a country
contiguous to the United
States, who has not been
admitted or paroled into the
United States, and who is
apprehended within 100 miles of
an international land border of
the United States and within 14
days of entry.
* * * * * * *
(F) Exception.--Subparagraph (A) shall not
apply to an alien who is a native or citizen of
a country in the Western Hemisphere with whose
government the United States does not have full
diplomatic relations and [who arrives by
aircraft at a port of entry], and who arrives
by aircraft at a port of entry or who is
present in the United States and arrived in any
manner at or between a port of entry.
* * * * * * *
APPREHENSION AND DETENTION OF ALIENS
Sec. 236. (a) * * *
* * * * * * *
(c) Detention of Criminal Aliens.--
(1) Custody.--The Attorney General shall take into
custody any alien who--
(A) * * *
* * * * * * *
(D) is inadmissible under section
212(a)(3)(B) or 212(a)(2)(M) or deportable
under section 237(a)(2)(F) or 237(a)(4)(B),
* * * * * * *
GENERAL CLASSES OF DEPORTABLE ALIENS
Sec. 237. (a) Classes of Deportable Aliens.--Any alien
(including an alien crewman) in and admitted to the United
States shall, upon the order of the Attorney General, be
removed if the alien is within one or more of the following
classes of deportable aliens:
(1) * * *
(2) Criminal offenses.--
(A) * * *
* * * * * * *
(F) Criminal street gang participation.--
(i) In general.--Any alien is
deportable who--
(I) is a member of a
criminal street gang and is
convicted of committing, or
conspiring, threatening, or
attempting to commit, a gang
crime; or
(II) is determined by the
Secretary of Homeland Security
to be a member of a criminal
street gang designated under
section 219A.
(ii) Definitions.--For purposes of
this subparagraph, the terms ``criminal
street gang'' and ``gang crime'' have
the meaning given such terms in section
212(a)(2)(M).
(G) Social security and identification
fraud.--Any alien who at any time after
admission is convicted of a violation of (or a
conspiracy or attempt to violate) an offense
described in section 208 of the Social Security
Act or section 1028 of title 18, United States
Code is deportable.
(3) Failure to register and falsification of
documents.--
(A) * * *
(B) Failure to register or falsification of
documents.--Any alien who at any time has been
convicted--
(i) * * *
(ii) of a violation of, or an
attempt or a conspiracy to violate, any
provision of the Foreign Agents
Registration Act of 1938 (22 U.S.C. 611
et seq.), [or]
(iii) of a violation of, or an
attempt or a conspiracy to violate,
section 1546 of title 18, United States
Code (relating to fraud and misuse of
visas, permits, and other entry
documents), or
(iv) of a violation of, or an
attempt or a conspiracy to violate,
subsection (a) or (b) of section 1425
of title 18, United States Code,
* * * * * * *
EXPEDITED REMOVAL OF ALIENS CONVICTED OF COMMITTING AGGRAVATED FELONIES
Sec. 238. (a) * * *
(b) Removal of Aliens Who Are Not Permanent Residents.--
(1) The [Attorney General] Secretary of Homeland
Security in the exercise of discretion may, in the case
of an alien described in paragraph (2), determine the
deportability of such alien under section
237(a)(2)(A)(iii) (relating to conviction of an
aggravated felony) and issue an order of removal
pursuant to the procedures [set forth in this
subsection or] set forth in this subsection, in lieu of
removal proceedings under section 240.
* * * * * * *
(3) The Secretary of Homeland Security in the
exercise of discretion may determine inadmissibility
under section 212(a)(2) (relating to criminal offenses)
and issue an order of removal pursuant to the
procedures set forth in this subsection, in lieu of
removal proceedings under section 240, with respect to
an alien who
(A) has not been admitted or paroled;
(B) has not been found to have a credible
fear of persecution pursuant to the procedures
set forth in section 235(b)(1)(B); and
(C) is not eligible for a waiver of
inadmissibility or relief from removal.
[(3)] (4) The [Attorney General] Secretary of
Homeland Security may not execute any order described
in [paragraph (1) until 14 calendar days] paragraph (1)
or (3) until 7 calendar days have passed from the date
that such order was issued, unless waived by the alien,
in order that the alien has an opportunity to apply for
judicial review under section 242.
[(4)] (5) Proceedings before the [Attorney General]
Secretary of Homeland Security under this subsection
shall be in accordance with such regulations as the
[Attorney General] Secretary of Homeland Security shall
prescribe. The [Attorney General] Secretary of Homeland
Security shall provide that--
(A) * * *
* * * * * * *
[(5)] (6) No alien [described in this section]
described in paragraph (1) or (2) shall be eligible for
any relief from removal that [the Attorney General may
grant in the Attorney General's discretion] the
Secretary of Homeland Security or the Attorney General
may grant, in the discretion of the Secretary or
Attorney General, in any proceeding.
* * * * * * *
CANCELLATION OF REMOVAL; ADJUSTMENT OF STATUS
Sec. 240A. (a) * * *
* * * * * * *
(c) Aliens Ineligible for Relief.--The provisions of
subsections (a) and (b)(1) shall not apply to any of the
following aliens:
(1) * * *
* * * * * * *
(4) An alien who is [inadmissible under] described
in section 212(a)(3) or [deportable under] described in
section 237(a)(4).
* * * * * * *
VOLUNTARY DEPARTURE
Sec. 240B. (a) Certain Conditions.--
[(1) In general.--The Attorney General may permit
an alien voluntarily to depart the United States at the
alien's own expense under this subsection, in lieu of
being subject to proceedings under section 240 or prior
to the completion of such proceedings, if the alien is
not deportable under section 237(a)(2)(A)(iii) or
section 237(a)(4)(B).]
(1) In lieu of removal proceedings.--The Secretary
of Homeland Security may permit an alien voluntarily to
depart the United States at the alien's own expense
under this subsection, in lieu of being subject to
proceedings under section 240, if the alien is not
described in section 237(a)(2)(A)(iii) or section
237(a)(4).
(2) Prior to the conclusion of removal
proceedings.--After removal proceedings under section
240 are initiated, the Attorney General may permit an
alien voluntarily to depart the United States at the
alien's own expense under this subsection, prior to the
conclusion of such proceedings before an immigration
judge, if the alien is not described in section
237(a)(2)(A)(iii) or section 237(a)(4).
[(2)] (3) Period.--
[(A) In general.--Subject to subparagraph
(B), permission to depart voluntarily under
this subsection shall not be valid for a period
exceeding 120 days.]
(A) In lieu of removal.--Subject to
subparagraph (C), permission to depart
voluntarily under paragraph (1) shall not be
valid for a period exceeding 120 days. The
Secretary of Homeland Security may require an
alien permitted to depart voluntarily under
paragraph (1) to post a voluntary departure
bond, to be surrendered upon proof that the
alien has departed the United States within the
time specified.
(B) Prior to the conclusion of removal
proceedings.--Permission to depart voluntarily
under paragraph (2) shall not be valid for a
period exceeding 60 days, and may be granted
only after a finding that the alien has
established that the alien has the means to
depart the United States and intends to do so.
An alien permitted to depart voluntarily under
paragraph (2) must post a voluntary departure
bond, in an amount necessary to ensure that the
alien will depart, to be surrendered upon proof
that the alien has departed the United States
within the time specified. An immigration judge
may waive posting of a voluntary departure bond
in individual cases upon a finding that the
alien has presented compelling evidence that
the posting of a bond will be a serious
financial hardship and the alien has presented
credible evidence that such a bond is
unnecessary to guarantee timely departure.
[(B)] (C) Three year pilot program
waiver.--During the period October 1, 2000,
through September 30, 2003, and subject to
[subparagraphs (C) and (D)(ii)] subparagraphs
(D) and (E)(ii), the Attorney General may, in
the discretion of the Attorney General for
humanitarian purposes, waive application of
subparagraph (A) in the case of an alien--
(i) * * *
* * * * * * *
[(C)] (D) Waiver limitations.--
(i) Waivers under [subparagraph
(B)] subparagraph (C) may be granted
only upon a request submitted by a
Service district office to Service
headquarters.
(ii) Not more than 300 waivers may
be granted for any fiscal year for a
principal alien under [subparagraph
(B)] subparagraph (C)(i).
(iii)(I) Except as provided in
subclause (II), in the case of each
principal alien described in
[subparagraph (B)] subparagraph (C)(i)
not more than one adult may be granted
a waiver under [subparagraph (B)]
subparagraph (C)(ii).
(II) Not more than two adults may
be granted a waiver under [subparagraph
(B)] subparagraph (C)(ii) in a case in
which--
(aa) the principal alien
described in [subparagraph (B)]
subparagraph (C)(i) is a
dependent under the age of 18;
or
(bb) one such adult is age
55 or older or is physically
handicapped.
[(D)] (E) Report to congress; suspension of
waiver authority.--
(i) Not later than March 30 of each
year, the Commissioner shall submit to
the Congress an annual report regarding
all waivers granted under [subparagraph
(B)] subparagraph (C) during the
preceding fiscal year.
(ii) Notwithstanding any other
provision of law, the authority of the
Attorney General under [subparagraph
(B)] subparagraph (C) shall be
suspended during any period in which an
annual report under clause (i) is past
due and has not been submitted.
[(3) Bond.--The Attorney General may require an
alien permitted to depart voluntarily under this
subsection to post a voluntary departure bond, to be
surrendered upon proof that the alien has departed the
United States within the time specified.]
(4) Treatment of aliens arriving in the united
states.--In the case of an alien who is arriving in the
United States and with respect to whom proceedings
under section 240 are (or would otherwise be) initiated
at the time of such alien's arrival, [paragraph (1)]
paragraphs (1) and (2) shall not apply. Nothing in this
paragraph shall be construed as preventing such an
alien from withdrawing the application for admission in
accordance with section 235(a)(4).
(b) At Conclusion of Proceedings.--
(1) In general.--The Attorney General may permit an
alien voluntarily to depart the United States at the
alien's own expense if, at the conclusion of a
proceeding under section 240, the immigration judge
enters an order granting voluntary departure in lieu of
removal and finds that--
(A) * * *
* * * * * * *
(C) the alien is not [deportable under]
described in section 237(a)(2)(A)(iii) or
section 237(a)(4); and
* * * * * * *
(2) Period.--Permission to depart voluntarily under
this subsection shall not be valid for a period
exceeding [60] 45 days.
* * * * * * *
[(c) Aliens Not Eligible.--The Attorney General shall not
permit an alien to depart voluntarily under this section if the
alien was previously permitted to so depart after having been
found inadmissible under section 212(a)(6)(A).]
(c) Conditions on Voluntary Departure.--
(1) Voluntary departure agreement.--Voluntary
departure will be granted only as part of an
affirmative agreement by the alien. A voluntary
departure agreement under subsection (b) shall include
a waiver of the right to any further motion, appeal,
application, petition, or petition for review relating
to removal or relief or protection from removal.
(2) Concessions by the secretary.--In connection
with the alien's agreement to depart voluntarily under
paragraph (1), the Secretary of Homeland Security in
the exercise of discretion may agree to a reduction in
the period of inadmissibility under subparagraph (A) or
(B)(i) of section 212(a)(9).
(3) Failure to comply with agreement and effect of
filing timely appeal.--If an alien agrees to voluntary
departure under this section and fails to depart the
United States within the time allowed for voluntary
departure or fails to comply with any other terms of
the agreement (including a failure to timely post any
required bond), the alien automatically becomes
ineligible for the benefits of the agreement, subject
to the penalties described in subsection (d), and
subject to an alternate order of removal if voluntary
departure was granted under subsection (a)(2) or (b).
However, if an alien agrees to voluntary departure but
later files a timely appeal of the immigration judge's
decision granting voluntary departure, the alien may
pursue the appeal instead of the voluntary departure
agreement. Such appeal operates to void the alien's
voluntary departure agreement and the consequences
thereof, but the alien may not again be granted
voluntary departure while the alien remains in the
United States.
(4) Voluntary departure period not affected.--
Except as expressly agreed to by the Secretary of
Homeland Security in writing in the exercise of the
Secretary's discretion before the expiration of the
period allowed for voluntary departure, no motion,
appeal, application, petition, or petition for review
shall affect, reinstate, enjoin, delay, stay, or toll
the alien's obligation to depart from the United States
during the period agreed to by the alien and the
Secretary.
[(d) Civil Penalty for Failure to Depart.--If an alien is
permitted to depart voluntarily under this section and fails
voluntarily to depart the United States within the time period
specified, the alien shall be subject to a civil penalty of not
less than $1,000 and not more than $5,000, and be ineligible
for a period of 10 years for any further relief under this
section and sections 240A, 245, 248, and 249. The order
permitting the alien to depart voluntarily shall inform the
alien of the penalties under this subsection.
[(e) Additional Conditions.--The Attorney General may by
regulation limit eligibility for voluntary departure under this
section for any class or classes of aliens. No court may review
any regulation issued under this subsection.]
(d) Penalties for Failure to Depart.--If an alien is
permitted to depart voluntarily under this section and fails
voluntarily to depart from the United States within the time
period specified or otherwise violates the terms of a voluntary
departure agreement, the following provisions apply:
(1) Civil penalty.--
(A) In general.--The alien will be liable
for a civil penalty of $3,000.
(B) Specification in order.--The order
allowing voluntary departure shall specify the
amount of the penalty, which shall be
acknowledged by the alien on the record.
(C) Collection.--If the Secretary of
Homeland Security thereafter establishes that
the alien failed to depart voluntarily within
the time allowed, no further procedure will be
necessary to establish the amount of the
penalty, and the Secretary may collect the
civil penalty at any time thereafter and by
whatever means provided by law.
(D) Ineligibility for benefits.--An alien
will be ineligible for any benefits under this
title until any civil penalty under this
subsection is paid.
(2) Ineligibility for relief.--The alien will be
ineligible during the time the alien remains in the
United States and for a period of 10 years after the
alien's departure for any further relief under this
section and sections 240A, 245, 248, and 249.
(3) Reopening.--
(A) In general.--Subject to subparagraph
(B), the alien will be ineligible to reopen a
final order of removal which took effect upon
the alien's failure to depart, or the alien's
violation of the conditions for voluntary
departure, during the period described in
paragraph (2).
(B) Exception.--Subparagraph (A) does not
preclude a motion to reopen to seek withholding
of removal under section 241(b)(3) or
protection against torture.
The order permitting the alien to depart voluntarily
under this section shall inform the alien of the
penalties under this subsection.
(e) Eligibility.--
(1) Prior grant of voluntary departure.--An alien
shall not be permitted to depart voluntarily under this
section if the Secretary of Homeland Security or the
Attorney General previously permitted the alien to
depart voluntarily.
(2) Additional limitations.--The Secretary of
Homeland Security may by regulation limit eligibility
or impose additional conditions for voluntary departure
under subsection (a)(1) for any class or classes of
aliens. The Secretary or Attorney General may by
regulation limit eligibility or impose additional
conditions for voluntary departure under subsection
(a)(2) or (b) for any class or classes of aliens.
Notwithstanding any other provision of law (statutory
or nonstatutory), including section 2241 of title 28,
United States Code, or any other habeas corpus
provision, and section 1361 and 1651 of such title, no
court may review any regulation issued under this
subsection.
(f) Judicial Review.--No court shall have jurisdiction over
an appeal from denial of a request for an order of voluntary
departure under subsection (b), nor shall any court order a
stay of an alien's removal pending consideration of any claim
with respect to voluntary departure. Notwithstanding any other
provision of law (statutory or nonstatutory), including section
2241 of title 28, United States Code, or any other habeas
corpus provision, and section 1361 and 1651 of such title, no
court shall have jurisdiction to affect, reinstate, enjoin,
delay, stay, or toll the period allowed for voluntary departure
under this section.
DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED
Sec. 241. (a) Detention, Release, and Removal of Aliens
Ordered Removed.--
(1) Removal period.--
(A) In general.--Except as otherwise
provided in this section, when an alien is
ordered removed, the [Attorney General]
Secretary of Homeland Security shall remove the
alien from the United States within a period of
90 days (in this section referred to as the
``removal period'').
(B) Beginning of period.--The removal
period begins on the latest of the following:
(i) * * *
[(ii) If the removal order is
judicially reviewed and if a court
orders a stay of the removal of the
alien, the date of the court's final
order.]
(ii) If a court, the Board of
Immigration Appeals, or an immigration
judge orders a stay of the removal of
the alien, the date the stay of removal
is no longer in effect.
* * * * * * *
If, at that time, the alien is not in the
custody of the Secretary (under the authority
of this Act), the Secretary shall take the
alien into custody for removal, and the removal
period shall not begin until the alien is taken
into such custody. If the Secretary transfers
custody of the alien during the removal period
pursuant to law to another Federal agency or a
State or local government agency in connection
with the official duties of such agency, the
removal period shall be tolled, and shall begin
anew on the date of the alien's return to the
custody of the Secretary.
[(C) Suspension of period.--The removal
period shall be extended beyond a period of 90
days and the alien may remain in detention
during such extended period if the alien fails
or refuses to make timely application in good
faith for travel or other documents necessary
to the alien's departure or conspires or acts
to prevent the alien's removal subject to an
order of removal.]
(C) Suspension of period.--The removal
period shall be extended beyond a period of 90
days and the alien may remain in detention
during such extended period if the alien fails
or refuses to make all reasonable efforts to
comply with the removal order, or to fully
cooperate with the Secretary's efforts to
establish the alien's identity and carry out
the removal order, including making timely
application in good faith for travel or other
documents necessary to the alien's departure,
or conspires or acts to prevent the alien's
removal subject to an order of removal.
(2) Detention.--During the removal period, the
[Attorney General] Secretary of Homeland Security shall
detain the alien. Under no circumstance during the
removal period shall the [Attorney General] Secretary
of Homeland Security release an alien who has been
found inadmissible under section 212(a)(2) or
212(a)(3)(B) or deportable under section 237(a)(2) or
237(a)(4)(B). If a court orders a stay of removal of an
alien who is subject to an administratively final order
of removal, the Secretary in the exercise of discretion
may detain the alien during the pendency of such stay
of removal.
(3) Supervision after 90-day period.--If the alien
does not leave or is not removed within the removal
period, the alien, pending removal, shall be subject to
supervision under regulations prescribed by the
[Attorney General] Secretary of Homeland Security. The
regulations shall include provisions requiring the
alien--
(A) * * *
* * * * * * *
(C) to give information under oath about
the alien's nationality, circumstances, habits,
associations, and activities, and other
information the [Attorney General] Secretary of
Homeland Security considers appropriate; and
[(D) to obey reasonable written
restrictions on the alien's conduct or
activities that the Attorney General prescribes
for the alien.]
(D) to obey reasonable restrictions on the
alien's conduct or activities, or perform
affirmative acts, that the Secretary prescribes
for the alien, in order to prevent the alien
from absconding, or for the protection of the
community, or for other purposes related to the
enforcement of the immigration laws.
(4) Aliens imprisoned, arrested, or on parole,
supervised release, or probation.--
(A) In general.--Except as provided in
section 343(a) of the Public Health Service Act
(42 U.S.C. 259(a)) and paragraph (2), the
[Attorney General] Secretary of Homeland
Security may not remove an alien who is
sentenced to imprisonment until the alien is
released from imprisonment. Parole, supervised
release, probation, or possibility of arrest or
further imprisonment is not a reason to defer
removal.
(B) Exception for removal of nonviolent
offenders prior to completion of sentence of
imprisonment.--The [Attorney General] Secretary
of Homeland Security is authorized to remove an
alien in accordance with applicable procedures
under this Act before the alien has completed a
sentence of imprisonment--
(i) in the case of an alien in the
custody of the [Attorney General]
Secretary of Homeland Security, if the
[Attorney General] Secretary of
Homeland Security determines that (I)
the alien is confined pursuant to a
final conviction for a nonviolent
offense (other than an offense related
to smuggling or harboring of aliens or
an offense described in section
101(a)(43)(B), (C), (E), (I), or (L)
and (II) the removal of the alien is
appropriate and in the best interest of
the United States; or
(ii) in the case of an alien in the
custody of a State (or a political
subdivision of a State), if the chief
State official exercising authority
with respect to the incarceration of
the alien determines that (I) the alien
is confined pursuant to a final
conviction for a nonviolent offense
(other than an offense described in
section 101(a)(43)(C) or (E)), (II) the
removal is appropriate and in the best
interest of the State, and (III)
submits a written request to the
[Attorney General] Secretary of
Homeland Security that such alien be so
removed.
* * * * * * *
[(5) Reinstatement of removal orders against aliens
illegally reentering.--If the Attorney General finds
that an alien has reentered the United States illegally
after having been removed or having departed
voluntarily, under an order of removal, the prior order
of removal is reinstated from its original date and is
not subject to being reopened or reviewed, the alien is
not eligible and may not apply for any relief under
this Act, and the alien shall be removed under the
prior order at any time after the reentry.]
(5) Reinstatement of removal orders against aliens
illegally reentering.--If the Secretary of Homeland
Security finds that an alien has entered the United
States illegally after having been removed or having
departed voluntarily, under an order of removal,
deportation, or exclusion, regardless of the date of
the original order or the date of the illegal entry--
(A) the order of removal, deportation, or
exclusion is reinstated from its original date
and is not subject to being reopened or
reviewed;
(B) the alien is not eligible and may not
apply for any relief under this Act, regardless
of the date that an application for such relief
may have been filed; and
(C) the alien shall be removed under the
order of removal, deportation, or exclusion at
any time after the illegal entry.
Reinstatement under this paragraph shall not require
proceedings before an immigration judge under section
240 or otherwise.
(6) Inadmissible or criminal aliens.--An alien
ordered removed who is inadmissible under section 212,
removable under section 237(a)(1)(C), 237(a)(2), or
237(a)(4) or who has been determined by the [Attorney
General] Secretary of Homeland Security to be a risk to
the community or unlikely to comply with the order of
removal, may be detained beyond the [removal period
and, if released,] removal period, in the discretion of
the Secretary, without any limitations other than those
specified in this section, until the alien is removed.
If an alien is released, the alien shall be subject to
the terms of supervision in paragraph (3).
(7) Parole.--If an alien detained pursuant to
paragraph (6) is an applicant for admission, the
Secretary, in the Secretary's discretion, may parole
the alien under section 212(d)(5) of this Act and may
provide, notwithstanding section 212(d)(5), that the
alien shall not be returned to custody unless either
the alien violates the conditions of the alien's parole
or the alien's removal becomes reasonably foreseeable,
provided that in no circumstance shall such alien be
considered admitted.
(8) Application of additional rules for detention
or release of certain aliens who have made an entry.--
The procedures described in subsection (j) shall only
apply with respect to an alien who--
(A) was lawfully admitted the most recent
time the alien entered the United States or has
otherwise effected an entry into the United
States, and
(B) is not detained under paragraph (6).
(9) Judicial review.--Without regard to the place
of confinement, judicial review of any action or
decision pursuant to paragraphs (6), (7), or (8) or
subsection (j) shall be available exclusively in habeas
corpus proceedings instituted in the United States
District Court for the District of Columbia, and only
if the alien has exhausted all administrative remedies
(statutory and regulatory) available to the alien as of
right.
[(7)] (10) Employment authorization.--No alien
ordered removed shall be eligible to receive
authorization to be employed in the United States
unless the [Attorney General] Secretary of Homeland
Security makes a specific finding that--
(A) * * *
* * * * * * *
(b) Countries to Which Aliens May Be Removed.--
(1) * * *
* * * * * * *
(3) Restriction on removal to a country where
alien's life or freedom would be threatened.--
(A) In general.--Notwithstanding paragraphs
(1) and (2), the [Attorney General] Secretary
of Homeland Security may not remove an alien to
a country if the Attorney General or the
Secretary decides that the alien's life or
freedom would be threatened in that country
because of the alien's race, religion,
nationality, membership in a particular social
group, or political opinion. The burden of
proof is on the alien to establish that the
alien's life or freedom would be threatened in
that country, and that race, religion,
nationality, membership in a particular social
group, or political opinion would be at least
one central reason for such threat.
(B) Exception.--Subparagraph (A) does not
apply to an alien who is described in section
212(a)(2)(M)(i) or section 237(a)(2)(F)(i) or
who is deportable under section 237(a)(4)(D) or
if the Attorney General or the Secretary of
Homeland Security decides that--
(i) * * *
* * * * * * *
(iii) there are serious reasons to
believe that the alien committed a
serious nonpolitical crime outside the
United States before the alien arrived
in the United States; [or]
(iv) there are reasonable grounds
to believe that the alien is a danger
to the security of the United
States[.]; or
(v) the alien is described in any
subclause of section 212(a)(3)(B)(i) or
section 212(a)(3)(F), unless, in the
case only of an alien described in
subclause (IV) or (IX) of section
212(a)(3)(B)(i), the Secretary of
Homeland Security determines, in the
Secretary's discretion, that there are
not reasonable grounds for regarding
the alien as a danger to the security
of the United States.
For purposes of clause (ii), an alien who has
been convicted of an aggravated felony (or
felonies) for which the alien has been
sentenced to an aggregate term of imprisonment
of at least 5 years shall be considered to have
committed a particularly serious crime. The
previous sentence shall not preclude the
Attorney General or the Secretary of Homeland
Security from determining that, notwithstanding
the length of sentence imposed, an alien has
been convicted of a particularly serious crime.
[For purposes of clause (iv), an alien who is
described in section 237(a)(4)(B) shall be
considered to be an alien with respect to whom
there are reasonable grounds for regarding as a
danger to the security of the United States.]
(C) Sustaining burden of proof; credibility
determinations.--[In determining whether an
alien has demonstrated that the alien's life or
freedom would be threatened for a reason
described in subparagraph (A)] For purposes of
this paragraph, the trier of fact shall
determine whether the alien has sustained the
alien's burden of proof, and shall make
credibility determinations, in the manner
described in clauses (ii) and (iii) of section
208(b)(1)(B).
* * * * * * *
(j) Additional Rules for Detention or Release of Certain
Aliens Who Have Made an Entry.--
(1) Application.--The procedures described in this
subsection apply in the case of an alien described in
subsection (a)(8).
(2) Establishment of a detention review process for
aliens who fully cooperate with removal.--
(A) In general.--The Secretary shall
establish an administrative review process to
determine whether the aliens should be detained
or released on conditions for aliens who--
(i) have made all reasonable
efforts to comply with their removal
orders;
(ii) have complied with the
Secretary's efforts to carry out the
removal orders, including making timely
application in good faith for travel or
other documents necessary to the
alien's departure, and
(iii) have not conspired or acted
to prevent removal.
(B) Determination.--The Secretary shall
make a determination whether to release an
alien after the removal period in accordance
with paragraphs (3) and (4). The
determination--
(i) shall include consideration of
any evidence submitted by the alien and
the history of the alien's efforts to
comply with the order of removal, and
(ii) may include any information or
assistance provided by the Department
of State or other Federal agency and
any other information available to the
Secretary pertaining to the ability to
remove the alien.
(3) Authority to detain beyond the removal period
.--
(A) Initial 90 day period.--The Secretary
in the exercise of discretion, without any
limitations other than those specified in this
section, may continue to detain an alien for 90
days beyond the removal period (including any
extension of the removal period as provided in
subsection (a)(1)(C)).
(B) Extension.--
(i) In general.--The Secretary in
the exercise of discretion, without any
limitations other than those specified
in this section, may continue to detain
an alien beyond the 90 days authorized
in subparagraph (A) if the conditions
described in subparagraph (A), (B), or
(C) of paragraph (4) apply.
(ii) Renewal.--The Secretary may
renew a certification under paragraph
(4)(A) every six months without
limitation, after providing an
opportunity for the alien to request
reconsideration of the certification
and to submit documents or other
evidence in support of that request. If
the Secretary does not renew a
certification, the Secretary may not
continue to detain the alien under such
paragraph.
(iii) Delegation.--Notwithstanding
section 103, the Secretary may not
delegate the authority to make or renew
a certification described in clause
(ii), (iii), or (v) of paragraph (4)(B)
below the level of the Assistant
Secretary for Immigration and Customs
Enforcement.
(iv) Hearing.--The Secretary may
request that the Attorney General
provide for a hearing to make the
determination described in clause
(iv)(II) of paragraph (4)(B).
(4) Conditions for extension.--The conditions for
continuation of detention are any of the following:
(A) The Secretary determines that there is
a significant likelihood that the alien--
(i) will be removed in the
reasonably foreseeable future; or
(ii) would be removed in the
reasonably foreseeable future, or would
have been removed, but for the alien's
failure or refusal to make all
reasonable efforts to comply with the
removal order, or to fully cooperate
with the Secretary's efforts to
establish the alien's identity and
carry out the removal order, including
making timely application in good faith
for travel or other documents necessary
to the alien's departure, or
conspiracies or acts to prevent
removal.
(B) The Secretary certifies in writing any
of the following:
(i) In consultation with the
Secretary of Health and Human Services,
the alien has a highly contagious
disease that poses a threat to public
safety.
(ii) After receipt of a written
recommendation from the Secretary of
State, the release of the alien is
likely to have serious adverse foreign
policy consequences for the United
States.
(iii) Based on information
available to the Secretary (including
available information from the
intelligence community, and without
regard to the grounds upon which the
alien was ordered removed), there is
reason to believe that the release of
the alien would threaten the national
security of the United States.
(iv) The release of the alien will
threaten the safety of the community or
any person, the conditions of release
cannot reasonably be expected to ensure
the safety of the community or any
person, and--
(I) the alien has been
convicted of one or more
aggravated felonies described
in section 101(a)(43)(A) or of
one or more crimes identified
by the Secretary by regulation,
or of one or more attempts or
conspiracies to commit any such
aggravated felonies or such
crimes, for an aggregate term
of imprisonment of at least
five years; or
(II) the alien has
committed one or more crimes of
violence and, because of a
mental condition or personality
disorder and behavior
associated with that condition
or disorder, the alien is
likely to engage in acts of
violence in the future.
(v) The release of the alien will
threaten the safety of the community or
any person, conditions of release
cannot reasonably be expected to ensure
the safety of the community or any
person, and the alien has been
convicted of at least one aggravated
felony.
(C) Pending a determination under
subparagraph (B), so long as the Secretary has
initiated the administrative review process no
later than 30 days after the expiration of the
removal period (including any extension of the
removal period as provided in subsection
(a)(1)(C)).
(5) Release on conditions.--If it is determined
that an alien should be released from detention, the
Secretary in the exercise of discretion may impose
conditions on release as provided in subsection (a)(3).
(6) Redetention.--The Secretary in the exercise of
discretion, without any limitations other than those
specified in this section, may again detain any alien
subject to a final removal order who is released from
custody if the alien fails to comply with the
conditions of release or to cooperate in the alien's
removal from the United States, or if, upon
reconsideration, the Secretary determines that the
alien can be detained under paragraph (1). Paragraphs
(6) through (8) of subsection (a) shall apply to any
alien returned to custody pursuant to this paragraph,
as if the removal period terminated on the day of the
redetention.
(7) Certain aliens who effected entry.--If an alien
has effected an entry into the United States but has
neither been lawfully admitted nor physically present
in the United States continuously for the 2-year period
immediately prior to the commencement of removal
proceedings under this Act or deportation proceedings
against the alien, the Secretary in the exercise of
discretion may decide not to apply subsection (a)(8)
and this subsection and may detain the alien without
any limitations except those imposed by regulation.
JUDICIAL REVIEW OF ORDERS OF REMOVAL
Sec. 242. (a) * * *
* * * * * * *
(b) Requirements for Review of Orders of Removal.--With
respect to review of an order of removal under subsection
(a)(1), the following requirements apply:
(1) * * *
* * * * * * *
(3) Service.--
(A) * * *
* * * * * * *
[(C) Alien's brief.--The alien shall serve
and file a brief in connection with a petition
for judicial review not later than 40 days
after the date on which the administrative
record is available, and may serve and file a
reply brief not later than 14 days after
service of the brief of the Attorney General,
and the court may not extend these deadlines
except upon motion for good cause shown. If an
alien fails to file a brief within the time
provided in this paragraph, the court shall
dismiss the appeal unless a manifest injustice
would result.]
(C) Alien's brief.--The alien shall serve
and file a brief in connection with a petition
for judicial review not later than 40 days
after the date on which the administrative
record is available. The court may not extend
this deadline except upon motion for good cause
shown. If an alien fails to file a brief within
the time provided in this paragraph, the court
shall dismiss the appeal unless a manifest
injustice would result.
(D) Certificate.--
(i) After the alien has filed the
alien's brief, the petition for review
shall be assigned to a single court of
appeals judge.
(ii) Unless that court of appeals
judge or a circuit justice issues a
certificate of reviewability, the
petition for review shall be denied and
the government shall not file a brief.
(iii) A certificate of
reviewability may issue under clause
(ii) only if the alien has made a
substantial showing that the petition
for review is likely to be granted.
(iv) The court of appeals judge or
circuit justice shall complete all
action on such certificate, including
rendering judgment, not later than 60
days after the date on which the judge
or circuit justice was assigned the
petition for review, unless an
extension is granted under clause (v).
(v) The judge or circuit justice
may grant, on the judge's or justice's
own motion or on the motion of a party,
an extension of the 60-day period
described in clause (iv) if--
(I) all parties to the
proceeding agree to such
extension; or
(II) such extension is for
good cause shown or in the
interests of justice, and the
judge or circuit justice states
the grounds for the extension
with specificity.
(vi) If no certificate of
reviewability is issued before the end
of the period described in clause (iv),
including any extension under clause
(v), the petition for review shall be
deemed denied, any stay or injunction
on petitioner's removal shall be
dissolved without further action by the
court or the government, and the alien
may be removed.
(vii) If a certificate of
reviewability is issued under clause
(ii), the Government shall be afforded
an opportunity to file a brief in
response to the alien's brief. The
alien may serve and file a reply brief
not later than 14 days after service of
the Government's brief, and the court
may not extend this deadline except
upon motion for good cause shown.
(E) No further review of the court of
appeals judge's decision not to issue a
certificate of reviewability.--The single court
of appeals judge's decision not to issue a
certificate of reviewability, or the denial of
a petition under subparagraph (D)(vi), shall be
the final decision for the court of appeals and
shall not be reconsidered, reviewed, or
reversed by the court of appeals through any
mechanism or procedure.
* * * * * * *
(h) Judicial Review of Reinstatement Under Section
241(a)(5).--
(1) In general.--Notwithstanding any other
provision of law (statutory or nonstatutory), including
section 2241 of title 28, United States Code, or any
other habeas corpus provision, sections 1361 and 1651
of such title, or subsection (a)(2)(D) of this section,
no court shall have jurisdiction to review any cause or
claim arising from or relating to any reinstatement
under section 241(a)(5) (including any challenge to the
reinstated order), except as provided in paragraph (2)
or (3).
(2) Challenges in court of appeals for district of
columbia to validity of the system, its implementation,
and related individual determinations.--
(A) In general.--Judicial review of
determinations under section 241(a)(5) and its
implementation is available in an action
instituted in the United States Court of
Appeals for the District of Columbia Circuit,
but shall be limited, except as provided in
subparagraph (B), to the following
determinations:
(i) Whether such section, or any
regulation issued to implement such
section, is constitutional.
(ii) Whether such a regulation, or
a written policy directive, written
policy guideline, or written procedure
issued by or under the authority of the
Attorney General or the Secretary of
Homeland Security to implement such
section, is not consistent with
applicable provisions of this Act or is
otherwise in violation of a statute or
the Constitution.
(B) Related individual determinations.--If
a person raises an action under subparagraph
(A), the person may also raise in the same
action the following issues:
(i) Whether the petitioner is an
alien.
(ii) Whether the petitioner was
previously ordered removed or deported,
or excluded.
(iii) Whether the petitioner has
since illegally entered the United
States.
(C) Deadlines for bringing actions.--Any
action instituted under this paragraph must be
filed no later than 60 days after the date the
challenged section, regulation, directive,
guideline, or procedure described in clause (i)
or (ii) of subparagraph (A) is first
implemented.
(3) Individual determinations under section
242(a).--Judicial review of determinations under
section 241(a)(5) is available in an action under
subsection (a) of this section, but shall be limited to
determinations of--
(A) whether the petitioner is an alien;
(B) whether the petitioner was previously
ordered removed, deported, or excluded; and
(C) whether the petitioner has since
illegally entered the United States.
(4) Single action.--A person who files an action
under paragraph (2) may not file a separate action
under paragraph (3). A person who files an action under
paragraph (3) may not file an action under paragraph
(2).
PENALTIES RELATED TO REMOVAL
Sec. 243. (a) Penalty for Failure To Depart.--
(1) In general.--Any alien against whom a final
order of removal is outstanding by reason of being a
member of any of the classes described in section
237(a) or 212(a), who--
(A) * * *
* * * * * * *
shall be fined under title 18, United States Code, or
[imprisoned not more than four years] imprisoned for
not less than six months or more than five years (or 10
years if the alien is a member of any of the classes
described in paragraph (1)(E), (2), (3), or (4) of
section 237(a)), or both.
* * * * * * *
(b) Willful Failure To Comply with Terms of Release Under
Supervision.--An alien who shall willfully fail to comply with
regulations or requirements issued pursuant to section
241(a)(3) or knowingly give false information in response to an
inquiry under such section shall be fined [not more than
$1,000] under title 18, United States Code or imprisoned [for
not more than one year] for not less than six months or more
than five years (or 10 years if the alien is a member of any
class described in paragraph (1)(E), (2), (3), or (4) of
section 237(a), or both.
* * * * * * *
[(d) Discontinuing Granting Visas to Nationals of Country
Denying or Delaying Accepting Alien.--On being notified by the
Attorney General that the government of a foreign country
denies or unreasonably delays accepting an alien who is a
citizen, subject, national, or resident of that country after
the Attorney General asks whether the government will accept
the alien under this section, the Secretary of State shall
order consular officers in that foreign country to discontinue
granting immigrant visas or nonimmigrant visas, or both, to
citizens, subjects, nationals, and residents of that country
until the Attorney General notifies the Secretary that the
country has accepted the alien.]
(d) Denial of Admission to Nationals of Country Denying or
Delaying Accepting Alien.--Whenever the Secretary of Homeland
Security determines that the government of a foreign country
has denied or unreasonably delayed accepting an alien who is a
citizen, subject, national, or resident of that country after
the alien has been ordered removed, the Secretary, after
consultation with the Secretary of State, may deny admission to
any citizen, subject, national, or resident of that country
until the country accepts the alien who was ordered removed.
temporary protected status
Sec. 244. (a) * * *
* * * * * * *
(c) Aliens Eligible for Temporary Protected Status.--
(1) * * *
(2) Eligibility standards.--
(A) * * *
* * * * * * *
(C) Limitation on judicial review.--There
shall be no judicial review of any finding
under subparagraph (B) that an alien is in
described in section 208(b)(2)(A)(vi).
* * * * * * *
record of admission for permanent residence in the case of certain
aliens who entered the united states prior to july 1, 1924 or january
1, 1972
Sec. 249. A record of lawful admission for permanent
residence may, in the discretion of the Attorney General and
under such regulations as he may prescribe, be made in the case
of any alien, as of the date of the approval of his application
or, if entry occurred prior to July 1, 1924, as of the date of
such entry, if no such record is otherwise available and such
alien shall satisfy the Attorney General that he is not
[inadmissible under] described in section 212(a)(3)(E) or under
section 212(a) insofar as it relates to criminals, procurers
and other immoral persons, subversives, violators of the
narcotic laws or smugglers of aliens, and he establishes that
he--
(a) * * *
* * * * * * *
(d) is not ineligible to citizenship and is not
[deportable under] described in section 237(a)(4)(B).
* * * * * * *
[bringing in and harboring certain aliens
[Sec. 274. (a) Criminal Penalties.--(1)(A) Any person who--
[(i) knowing that a person is an alien, brings to
or attempts to bring to the United States in any manner
whatsoever such person at a place other than a
designated port of entry or place other than as
designated by the Commissioner, regardless of whether
such alien has received prior official authorization to
come to, enter, or reside in the United States and
regardless of any future official action which may be
taken with respect to such alien;
[(ii) knowing or in reckless disregard of the fact
that an alien has come to, entered, or remains in the
United States in violation of law, transports, or moves
or attempts to transport or move such alien within the
United States by means of transportation or otherwise,
in furtherance of such violation of law;
[(iii) knowing or in reckless disregard of the fact
that an alien has come to, entered, or remains in the
United States in violation of law, conceals, harbors,
or shields from detection, or attempts to conceal,
harbor, or shield from detection, such alien in any
place, including any building or any means of
transportation;
[(iv) encourages or induces an alien to come to,
enter, or reside in the United States, knowing or in
reckless disregard of the fact that such coming to,
entry, or residence is or will be in violation of law;
or
[(v)(I) engages in any conspiracy to commit any of
the preceding acts, or
[(II) aids or abets the commission of any of the
preceding acts,
shall be punished as provided in subparagraph (B).
[(B) A person who violates subparagraph (A) shall, for each
alien in respect to whom such a violation occurs--
[(i) in the case of a violation of subparagraph
(A)(i) or (v)(I) or in the case of a violation of
subparagraph (A)(ii), (iii), or (iv) in which the
offense was done for the purpose of commercial
advantage or private financial gain, be fined under
title 18, United States Code, imprisoned not more than
10 years, or both;
[(ii) in the case of a violation of subparagraph
(A) (ii), (iii), (iv), or (v)(II) be fined under title
18, United States Code, imprisoned not more than 5
years, or both;
[(iii) in the case of a violation of subparagraph
(A) (i), (ii), (iii), (iv), or (v) during and in
relation to which the person causes serious bodily
injury (as defined in section 1365 of title 18, United
States Code) to, or places in jeopardy the life of, any
person, be fined under title 18, United States Code,
imprisoned not more than 20 years, or both; and
[(iv) in the case of a violation of subparagraph
(A) (i), (ii), (iii), (iv), or (v) resulting in the
death of any person, be punished by death or imprisoned
for any term of years or for life, fined under title
18, United States Code, or both.
[(2) Any person who, knowing or in reckless disregard of
the fact that an alien has not received prior official
authorization to come to, enter, or reside in the United
States, brings to or attempts to bring to the United States in
any manner whatsoever, such alien, regardless of any official
action which may later be taken with respect to such alien
shall, for each alien in respect to whom a violation of this
paragraph occurs--
[(A) be fined in accordance with title 18, United
States Code, or imprisoned not more than one year, or
both; or
[(B) in the case of--
[(i) an offense committed with the intent
or with reason to believe that the alien
unlawfully brought into the United States will
commit an offense against the United States or
any State punishable by imprisonment for more
than 1 year,
[(ii) an offense done for the purpose of
commercial advantage or private financial gain,
or
[(iii) an offense in which the alien is not
upon arrival immediately brought and presented
to an appropriate immigration officer at a
designated port of entry,
be fined under title 18, United States Code, and shall
be imprisoned, in the case of a first or second
violation of subparagraph (B)(iii), not more than 10
years, in the case of a first or second violation of
subparagraph (B)(i) or (B)(ii), not less than 3 nor
more than 10 years, and for any other violation, not
less than 5 nor more than 15 years.
[(3)(A) Any person who, during any 12-month period,
knowingly hires for employment at least 10 individuals with
actual knowledge that the individuals are aliens described in
subparagraph (B) shall be fined under title 18, United States
Code, or imprisoned for not more than 5 years, or both.
[(B) An alien described in this subparagraph is an alien
who--
[(i) is an unauthorized alien (as defined in
section 274A(h)(3)), and
[(ii) has been brought into the United States in
violation of this subsection.
[(4) In the case of a person who has brought aliens into
the United States in violation of this subsection, the sentence
otherwise provided for may be increased by up to 10 years if--
[(A) the offense was part of an ongoing commercial
organization or enterprise;
[(B) aliens were transported in groups of 10 or
more; and
[(C)(i) aliens were transported in a manner that
endangered their lives; or
[(ii) the aliens presented a life-threatening
health risk to people in the United States.
[(b) Seizure and Forfeiture.--
[(1) In general.--Any conveyance, including any
vessel, vehicle, or aircraft, that has been or is being
used in the commission of a violation of subsection
(a), the gross proceeds of such violation, and any
property traceable to such conveyance or proceeds,
shall be seized and subject to forfeiture.
[(2) Applicable procedures.--Seizures and
forfeitures under this subsection shall be governed by
the provisions of chapter 46 of title 18, United States
Code, relating to civil forfeitures, including section
981(d) of such title, except that such duties as are
imposed upon the Secretary of the Treasury under the
customs laws described in that section shall be
performed by such officers, agents, and other persons
as may be designated for that purpose by the Attorney
General.
[(3) Prima facie evidence in determinations of
violations.--In determining whether a violation of
subsection (a) has occurred, any of the following shall
be prima facie evidence that an alien involved in the
alleged violation had not received prior official
authorization to come to, enter, or reside in the
United States or that such alien had come to, entered,
or remained in the United States in violation of law:
[(A) Records of any judicial or
administrative proceeding in which that alien's
status was an issue and in which it was
determined that the alien had not received
prior official authorization to come to, enter,
or reside in the United States or that such
alien had come to, entered, or remained in the
United States in violation of law.
[(B) Official records of the Service or of
the Department of State showing that the alien
had not received prior official authorization
to come to, enter, or reside in the United
States or that such alien had come to, entered,
or remained in the United States in violation
of law.
[(C) Testimony, by an immigration officer
having personal knowledge of the facts
concerning that alien's status, that the alien
had not received prior official authorization
to come to, enter, or reside in the United
States or that such alien had come to, entered,
or remained in the United States in violation
of law.
[(c) No officer or person shall have authority to make any
arrest for a violation of any provision of this section except
officers and employees of the Service designated by the
Attorney General, either individually or as a member of a
class, and all other officers whose duty it is to enforce
criminal laws.
[(d) Notwithstanding any provision of the Federal Rules of
Evidence, the videotaped (or otherwise audiovisually preserved)
deposition of a witness to a violation of subsection (a) who
has been deported or otherwise expelled from the United States,
or is otherwise unable to testify, may be admitted into
evidence in an action brought for that violation if the witness
was available for cross examination and the deposition
otherwise complies with the Federal Rules of Evidence.
[(e) Outreach Program.--The Secretary of Homeland Security,
in consultation with the Attorney General and the Secretary of
State, as appropriate, shall develop and implement an outreach
program to educate the public in the United States and abroad
about the penalties for bringing in and harboring aliens in
violation of this section.]
ALIEN SMUGGLING AND RELATED OFFENSES
Sec. 274. (a) Criminal Offenses and Penalties.--
(1) Prohibited activities.--Whoever--
(A) assists, encourages, directs, or
induces a person to come to or enter the United
States, or to attempt to come to or enter the
United States, knowing or in reckless disregard
of the fact that such person is an alien who
lacks lawful authority to come to or enter the
United States;
(B) assists, encourages, directs, or
induces a person to come to or enter the United
States at a place other than a designated port
of entry or place other than as designated by
the Secretary of Homeland Security, regardless
of whether such person has official permission
or lawful authority to be in the United States,
knowing or in reckless disregard of the fact
that such person is an alien;
(C) assists, encourages, directs, or
induces a person to reside in or remain in the
United States, or to attempt to reside in or
remain in the United States, knowing or in
reckless disregard of the fact that such person
is an alien who lacks lawful authority to
reside in or remain in the United States;
(D) transports or moves a person in the
United States, knowing or in reckless disregard
of the fact that such person is an alien who
lacks lawful authority to enter or be in the
United States, where the transportation or
movement will aid or further in any manner the
person's illegal entry into or illegal presence
in the United States;
(E) harbors, conceals, or shields from
detection a person in the United States knowing
or in reckless disregard of the fact that such
person is an alien who lacks lawful authority
to be in the United States;
(F) transports, moves, harbors, conceals,
or shields from detection a person outside of
the United States knowing or in reckless
disregard of the fact that such person is an
alien in unlawful transit from one country to
another or on the high seas, under
circumstances in which the person is in fact
seeking to enter the United States without
official permission or lawful authority; or
(G) conspires or attempts to commit any of
the preceding acts,
shall be punished as provided in paragraph (2),
regardless of any official action which may later be
taken with respect to such alien.
(2) Criminal penalties.--A person who violates the
provisions of paragraph (1) shall--
(A) except as provided in subparagraphs (D)
through (H), in the case where the offense was
not committed for commercial advantage, profit,
or private financial gain, be imprisoned for
not more than 5 years, or fined under title 18,
United States Code, or both;
(B) except as provided in subparagraphs (C)
through (H), where the offense was committed
for commercial advantage, profit, or private
financial gain--
(i) in the case of a first
violation of this subparagraph, be
imprisoned for not more than 20 years,
or fined under title 18, United States
Code, or both; and
(ii) for any subsequent violation,
be imprisoned for not less than 3 years
nor more than 20 years, or fined under
title 18, United States Code, or both;
(C) in the case where the offense was
committed for commercial advantage, profit, or
private financial gain and involved 2 or more
aliens other than the offender, be imprisoned
for not less than 3 nor more than 20 years, or
fined under title 18, United States Code, or
both;
(D) in the case where the offense furthers
or aids the commission of any other offense
against the United States or any State, which
offense is punishable by imprisonment for more
than 1 year, be imprisoned for not less than 5
nor more than 20 years, or fined under title
18, United States Code, or both;
(E) in the case where any participant in
the offense created a substantial risk of death
or serious bodily injury to another person,
including--
(i) transporting a person in an
engine compartment, storage
compartment, or other confined space;
(ii) transporting a person at an
excessive speed or in excess of the
rated capacity of the means of
transportation; or
(iii) transporting or harboring a
person in a crowded, dangerous, or
inhumane manner,
be imprisoned not less than 5 nor more than 20
years, or fined under title 18, United States
Code, or both;
(F) in the case where the offense caused
serious bodily injury (as defined in section
1365 of title 18, United States Code, including
any conduct that would violate sections 2241 or
2242 of title 18, United States Code, if the
conduct occurred in the special maritime and
territorial jurisdiction of the United States)
to any person, be imprisoned for not less than
7 nor more than 30 years, or fined under title
18, United States Code, or both;
(G) in the case where the offense involved
an alien who the offender knew or had reason to
believe was an alien--
(i) engaged in terrorist activity
(as defined in section 212(a)(3)(B));
or
(ii) intending to engage in such
terrorist activity,
be imprisoned for not less than 10 nor more
than 30 years, or fined under title 18, United
States Code, or both; and
(H) in the case where the offense caused or
resulted in the death of any person, be
punished by death or imprisoned for not less
than 10 years, or any term of years, or for
life, or fined under title 18, United States
Code, or both.
(3) Extraterritorial jurisdiction.--There is
extraterritorial Federal jurisdiction over the offenses
described in this subsection.
(b) Employment of Unauthorized Aliens.--
(1) In general.--Any person who, during any 12-
month period, knowingly hires for employment at least
10 individuals with actual knowledge that the
individuals are aliens described in paragraph (2),
shall be fined under title 18, United States Code,
imprisoned for not more than 5 years, or both.
(2) Alien described.--A alien described in this
paragraph is an alien who--
(A) is an unauthorized alien (as defined in
section 274A(h)(3)); and
(B) has been brought into the United States
in violation of subsection (a).
(c) Seizure and Forfeiture.--
(1) In general.--Any property, real or personal,
that has been used to commit or facilitate the
commission of a violation of this section, the gross
proceeds of such violation, and any property traceable
to such property or proceeds, shall be subject to
forfeiture.
(2) Applicable procedures.--Seizures and
forfeitures under this subsection shall be governed by
the provisions of chapter 46 of title 18, United States
Code, relating to civil forfeitures, including section
981(d) of such title, except that such duties as are
imposed upon the Secretary of the Treasury under the
customs laws described in that section shall be
performed by such officers, agents, and other persons
as may be designated for that purpose by the Secretary
of Homeland Security.
(d) Authority to Arrest.--No officer or person shall have
authority to make any arrests for a violation of any provision
of this section except officers and employees designated by the
Secretary of Homeland Security, either individually or as a
member of a class, and all other officers whose duty it is to
enforce criminal laws.
(e) Admissibility of Evidence.--
(1) Prima facie evidence in determinations of
violations.--Notwithstanding any provision of the
Federal Rules of Evidence, in determining whether a
violation of subsection (a) has occurred, any of the
following shall be prima facie evidence that an alien
involved in the violation lacks lawful authority to
come to, enter, reside, remain, or be in the United
States or that such alien had come to, entered,
resided, remained or been present in the United States
in violation of law:
(A) Any order, finding, or determination
concerning the alien's status or lack thereof
made by a federal judge or administrative
adjudicator (including an immigration judge or
an immigration officer) during any judicial or
administrative proceeding authorized under the
immigration laws or regulations prescribed
thereunder.
(B) An official record of the Department of
Homeland Security, Department of Justice, or
the Department of State concerning the alien's
status or lack thereof.
(C) Testimony by an immigration officer
having personal knowledge of the facts
concerning the alien's status or lack thereof.
(2) Videotaped testimony.--Notwithstanding any
provision of the Federal Rules of Evidence, the
videotaped (or otherwise audiovisually preserved)
deposition of a witness to a violation of subsection
(a) who has been deported or otherwise expelled from
the United States, or is otherwise unavailable to
testify, may be admitted into evidence in an action
brought for that violation if the witness was available
for cross examination at the deposition and the
deposition otherwise complies with the Federal Rules of
Evidence.
(f) Definitions.--For purposes of this section:
(1) The term ``lawful authority'' means permission,
authorization, or license that is expressly provided
for in the immigration laws of the United States or the
regulations prescribed thereunder. Such term does not
include any such authority secured by fraud or
otherwise obtained in violation of law, nor does it
include authority that has been sought but not
approved. No alien shall be deemed to have lawful
authority to come to, enter, reside, remain, or be in
the United States if such coming to, entry, residence,
remaining, or presence was, is, or would be in
violation of law.
(2) The term ``unlawful transit'' means travel,
movement, or temporary presence that violates the laws
of any country in which the alien is present, or any
country from which or to which the alien is traveling
or moving.
unlawful employment of aliens
Sec. 274A. (a) Making Employment of Unauthorized Aliens
Unlawful.--
(1) In general.--It is unlawful for a person or
other entity--
(A) to hire, or to recruit or refer [for a
fee], for employment in the United States an
alien knowing the alien is an unauthorized
alien (as defined in subsection (h)(3)) with
respect to such employment, or
[(B)(i) to hire for employment in the
United States an individual without complying
with the requirements of subsection (b) or (ii)
if the person or entity is an agricultural
association, agricultural employer, or farm
labor contractor (as defined in section 3 of
the Migrant and Seasonal Agricultural Worker
Protection Act), to hire, or to recruit or
refer for a fee, for employment in the United
States an individual without complying with the
requirements of subsection (b).]
(B) to hire, continue to employ, or to
recruit or refer for employment in the United
States an individual without complying with the
requirements of subsection (b).
(2) Continuing employment.--It is unlawful for a
person or other entity, [after hiring an alien for
employment in accordance with paragraph (1),] after
complying with paragraph (1), to continue to employ the
alien in the United States knowing the alien is (or has
become) an unauthorized alien with respect to such
employment.
(3) Defense.--(A) A person or entity that
establishes that it has complied in good faith with the
requirements of subsection (b) with respect to the
[hiring,] hiring, employing, recruiting, or referral
for employment of an alien in the United States has
established an affirmative defense that the person or
entity has not violated paragraph (1)(A) with respect
to such [hiring,] hiring, employing, recruiting, or
referral.
(B) Failure to seek and obtain verification.--In
the case of a person or entity in the United States
that hires, or continues to employ, an individual, or
recruits or refers an individual for employment, the
following requirements apply:
(i) Failure to seek verification.--
(I) In general.--If the person or
entity has not made an inquiry, under
the mechanism established under
subsection (b)(7), seeking verification
of the identity and work eligibility of
the individual, by not later than the
end of 3 working days (as specified by
the Secretary of Homeland Security)
after the date of the hiring,
employing, the date specified in
subsection (b)(8)(B) for previously
hired individuals, or before the
recruiting or referring commences, the
defense under subparagraph (A) shall
not be considered to apply with respect
to any employment, except as provided
in subclause (II).
(II) Special rule for failure of
verification mechanism.--If such a
person or entity in good faith attempts
to make an inquiry in order to qualify
for the defense under subparagraph (A)
and the verification mechanism has
registered that not all inquiries were
responded to during the relevant time,
the person or entity can make an
inquiry until the end of the first
subsequent working day in which the
verification mechanism registers no
nonresponses and qualify for such
defense.
(ii) Failure to obtain verification.--If
the person or entity has made the inquiry
described in clause (i)(I) but has not received
an appropriate verification of such identity
and work eligibility under such mechanism
within the time period specified under
subsection (b)(7)(B) after the time the
verification inquiry was received, the defense
under subparagraph (A) shall not be considered
to apply with respect to any employment after
the end of such time period.
(b) Employment Verification System.--The requirements
referred to in paragraphs (1)(B) and (3) of subsection (a) are,
in the case of a person or other entity hiring, recruiting, or
referring an individual for employment in the United States,
the requirements specified in the following three paragraphs:
(1) Attestation after examination of
documentation.--
[(A) In general.--The person or entity must
attest, under penalty of perjury and on a form
designated or established by the Attorney
General by regulation, that it has verified
that the individual is not an unauthorized
alien by examining--
[(i) a document described in
subparagraph (B), or
[(ii) a document described in
subparagraph (C) and a document
described in subparagraph (D).
A person or entity has complied with the
requirement of this paragraph with respect to
examination of a document if the document
reasonably appears on its face to be genuine.
If an individual provides a document or
combination of documents that reasonably
appears on its face to be genuine and that is
sufficient to meet the requirements of the
first sentence of this paragraph, nothing in
this paragraph shall be construed as requiring
the person or entity to solicit the production
of any other document or as requiring the
individual to produce such another document.]
(A) In general.--The person or entity must
attest, under penalty of perjury and on a form
designated or established by the Secretary by
regulation, that it has verified that the
individual is not an unauthorized alien by--
(i) obtaining from the individual
the individual's social security
account number and recording the number
on the form (if the individual claims
to have been issued such a number),
and, if the individual does not attest
to United States citizenship under
paragraph (2), obtaining such
identification or authorization number
established by the Department of
Homeland Security for the alien as the
Secretary of Homeland Security may
specify, and recording such number on
the form; and
(ii)(I) examining a document
described in subparagraph (B); or (II)
examining a document described in
subparagraph (C) and a document
described in subparagraph (D).
A person or entity has complied with the
requirement of this paragraph with respect to
examination of a document if the document
reasonably appears on its face to be genuine,
reasonably appears to pertain to the individual
whose identity and work eligibility is being
verified, and, if the document bears an
expiration date, that expiration date has not
elapsed. If an individual provides a document
(or combination of documents) that reasonably
appears on its face to be genuine, reasonably
appears to pertain to the individual whose
identity and work eligibility is being
verified, and is sufficient to meet the first
sentence of this paragraph, nothing in this
paragraph shall be construed as requiring the
person or entity to solicit the production of
any other document or as requiring the
individual to produce another document.
* * * * * * *
(D) Documents establishing identity of
individual.--A document described in this
subparagraph is an individual's--
(i) driver's license or similar
document issued for the purpose of
identification by a State, if it
contains a photograph of the individual
[or such other personal identifying
information relating to the individual
as the Attorney General finds, by
regulation, sufficient for purposes of
this section]; or
(ii) in the case of individuals
under 16 years of age or in a State
which does not provide for issuance of
an identification document (other than
a driver's license) referred to in
clause (i), documentation of personal
identity of such other type as the
Attorney General finds, by regulation,
provides a reliable means of
identification and that contains a
photograph of the individual.
* * * * * * *
(2) Individual attestation of employment
authorization.--The individual must attest, under
penalty of perjury on the form designated or
established for purposes of paragraph (1), that the
individual is a citizen or national of the United
States, an alien lawfully admitted for permanent
residence, or an alien who is authorized under this Act
or by the Attorney General to be hired, recruited, or
referred for such employment. The individual must also
provide that individual's social security account
number (if the individual claims to have been issued
such a number), and, if the individual does not attest
to United States citizenship under this paragraph, such
identification or authorization number established by
the Department of Homeland Security for the alien as
the Secretary may specify.
[(3) Retention of verification form.--After
completion of such form in accordance with paragraphs
(1) and (2), the person or entity must retain the form
and make it available for inspection by officers of the
Service, the Special Counsel for Immigration-Related
Unfair Employment Practices, or the Department of Labor
during a period beginning on the date of the hiring,
recruiting, or referral of the individual and ending--
[(A) in the case of the recruiting or
referral for a fee (without hiring) of an
individual, three years after the date of the
recruiting or referral, and
[(B) in the case of the hiring of an
individual--
[(i) three years after the date of
such hiring, or
[(ii) one year after the date the
individual's employment is terminated,
whichever is later.]
(3) Retention of verification form and
verification.--
(A) In general.--After completion of such
form in accordance with paragraphs (1) and (2),
the person or entity must--
(i) retain a paper, microfiche,
microfilm, or electronic version of the
form and make it available for
inspection by officers of the
Department of Homeland Security, the
Special Counsel for Immigration-Related
Unfair Employment Practices, or the
Department of Labor during a period
beginning on the date of the hiring,
recruiting, or referral of the
individual or the date of the
completion of verification of a
previously hired individual and
ending--
(I) in the case of the
recruiting or referral of an
individual, three years after
the date of the recruiting or
referral;
(II) in the case of the
hiring of an individual, the
later of--
(aa) three years
after the date of such
hiring; or
(bb) one year after
the date the
individual's employment
is terminated; and
(III) in the case of the
verification of a previously
hired individual, the later
of--
(aa) three years
after the date of the
completion of
verification; or
(bb) one year after
the date the
individual's employment
is terminated;
(ii) make an inquiry, as provided
in paragraph (7), using the
verification system to seek
verification of the identity and
employment eligibility of an
individual, by not later than the end
of 3 working days (as specified by the
Secretary of Homeland Security) after
the date of the hiring or in the case
of previously hired individuals, the
date specified in subsection (b)(8)(B),
or before the recruiting or referring
commences; and
(iii) may not commence recruitment
or referral of the individual until the
person or entity receives verification
under subparagraph (B)(i) or (B)(iii).
(B) Verification.--
(i) Verification received.--If the
person or other entity receives an
appropriate verification of an
individual's identity and work
eligibility under the verification
system within the time period
specified, the person or entity shall
record on the form an appropriate code
that is provided under the system and
that indicates a final verification of
such identity and work eligibility of
the individual.
(ii) Tentative nonverification
received.--If the person or other
entity receives a tentative
nonverification of an individual's
identity or work eligibility under the
verification system within the time
period specified, the person or entity
shall so inform the individual for whom
the verification is sought. If the
individual does not contest the
nonverification within the time period
specified, the nonverification shall be
considered final. The person or entity
shall then record on the form an
appropriate code which has been
provided under the system to indicate a
tentative nonverification. If the
individual does contest the
nonverification, the individual shall
utilize the process for secondary
verification provided under paragraph
(7). The nonverification will remain
tentative until a final verification or
nonverification is provided by the
verification system within the time
period specified. In no case shall an
employer terminate employment of an
individual because of a failure of the
individual to have identity and work
eligibility confirmed under this
section until a nonverification becomes
final. Nothing in this clause shall
apply to a termination of employment
for any reason other than because of
such a failure.
(iii) Final verification or
nonverification received.--If a final
verification or nonverification is
provided by the verification system
regarding an individual, the person or
entity shall record on the form an
appropriate code that is provided under
the system and that indicates a
verification or nonverification of
identity and work eligibility of the
individual.
(iv) Extension of time.--If the
person or other entity in good faith
attempts to make an inquiry during the
time period specified and the
verification system has registered that
not all inquiries were received during
such time, the person or entity may
make an inquiry in the first subsequent
working day in which the verification
system registers that it has received
all inquiries. If the verification
system cannot receive inquiries at all
times during a day, the person or
entity merely has to assert that the
entity attempted to make the inquiry on
that day for the previous sentence to
apply to such an inquiry, and does not
have to provide any additional proof
concerning such inquiry.
(v) Consequences of
nonverification.--
(I) Termination or
notification of continued
employment.--If the person or
other entity has received a
final nonverification regarding
an individual, the person or
entity may terminate employment
of the individual (or decline
to recruit or refer the
individual). If the person or
entity does not terminate
employment of the individual or
proceeds to recruit or refer
the individual, the person or
entity shall notify the
Secretary of Homeland Security
of such fact through the
verification system or in such
other manner as the Secretary
may specify.
(II) Failure to notify.--If
the person or entity fails to
provide notice with respect to
an individual as required under
subclause (I), the failure is
deemed to constitute a
violation of subsection
(a)(1)(A) with respect to that
individual.
(vi) Continued employment after
final nonverification.--If the person
or other entity continues to employ (or
to recruit or refer) an individual
after receiving final nonverification,
a rebuttable presumption is created
that the person or entity has violated
subsection (a)(1)(A).
* * * * * * *
(7) Employment eligibility verification system.--
(A) In general.--The Secretary of Homeland
Security shall establish and administer a
verification system through which the Secretary
(or a designee of the Secretary, which may be a
nongovernmental entity)--
(i) responds to inquiries made by
persons at any time through a toll-free
telephone line and other toll-free
electronic media concerning an
individual's identity and whether the
individual is authorized to be
employed; and
(ii) maintains records of the
inquiries that were made, of
verifications provided (or not
provided), and of the codes provided to
inquirers as evidence of their
compliance with their obligations under
this section.
(B) Initial response.--The verification
system shall provide verification or a
tentative nonverification of an individual's
identity and employment eligibility within 3
working days of the initial inquiry. If
providing verification or tentative
nonverification, the verification system shall
provide an appropriate code indicating such
verification or such nonverification.
(C) Secondary verification process in case
of tentative nonverification.--In cases of
tentative nonverification, the Secretary shall
specify, in consultation with the Commissioner
of Social Security, an available secondary
verification process to confirm the validity of
information provided and to provide a final
verification or nonverification within 10
working days after the date of the tentative
nonverification. When final verification or
nonverification is provided, the verification
system shall provide an appropriate code
indicating such verification or
nonverification.
(D) Design and operation of system.--The
verification system shall be designed and
operated--
(i) to maximize its reliability and
ease of use by persons and other
entities consistent with insulating and
protecting the privacy and security of
the underlying information;
(ii) to respond to all inquiries
made by such persons and entities on
whether individuals are authorized to
be employed and to register all times
when such inquiries are not received;
(iii) with appropriate
administrative, technical, and physical
safeguards to prevent unauthorized
disclosure of personal information; and
(iv) to have reasonable safeguards
against the system's resulting in
unlawful discriminatory practices based
on national origin or citizenship
status, including--
(I) the selective or
unauthorized use of the system
to verify eligibility;
(II) the use of the system
prior to an offer of
employment; or
(III) the exclusion of
certain individuals from
consideration for employment as
a result of a perceived
likelihood that additional
verification will be required,
beyond what is required for
most job applicants.
(E) Responsibilities of the commissioner of
social security.--As part of the verification
system, the Commissioner of Social Security, in
consultation with the Secretary of Homeland
Security (and any designee of the Secretary
selected to establish and administer the
verification system), shall establish a
reliable, secure method, which, within the time
periods specified under subparagraphs (B) and
(C), compares the name and social security
account number provided in an inquiry against
such information maintained by the Commissioner
in order to validate (or not validate) the
information provided regarding an individual
whose identity and employment eligibility must
be confirmed, the correspondence of the name
and number, and whether the individual has
presented a social security account number that
is not valid for employment. The Commissioner
shall not disclose or release social security
information (other than such verification or
nonverification) except as provided for in this
section or section 205(c)(2)(I) of the Social
Security Act.
(F) Responsibilities of the secretary of
homeland security.--(i) As part of the
verification system, the Secretary of Homeland
Security (in consultation with any designee of
the Secretary selected to establish and
administer the verification system), shall
establish a reliable, secure method, which,
within the time periods specified under
subparagraphs (B) and (C), compares the name
and alien identification or authorization
number which are provided in an inquiry against
such information maintained by the Secretary in
order to validate (or not validate) the
information provided, the correspondence of the
name and number, and whether the alien is
authorized to be employed in the United States.
(ii) When a single employer has submitted
to the verification system pursuant to
paragraph (3)(A) the identical social security
account number in more than one instance, or
when multiple employers have submitted to the
verification system pursuant to such paragraph
the identical social security account number,
in a manner which indicates the possible
fraudulent use of that number, the Secretary of
Homeland Security shall conduct an
investigation, within the time periods
specified in subparagraphs (B) and (C), in
order to ensure that no fraudulent use of a
social security account number has taken place.
If the Secretary has selected a designee to
establish and administer the verification
system, the designee shall notify the Secretary
when a single employer has submitted to the
verification system pursuant to paragraph
(3)(A) the identical social security account
number in more than one instance, or when
multiple employers have submitted to the
verification system pursuant to such paragraph
the identical social security account number,
in a manner which indicates the possible
fraudulent use of that number. The designee
shall also provide the Secretary with all
pertinent information, including the name and
address of the employer or employers who
submitted the relevant social security account
number, the relevant social security account
number submitted by the employer or employers,
and the relevant name and date of birth of the
employee submitted by the employer or
employers.
(G) Updating information.--The Commissioner
of Social Security and the Secretary of
Homeland Security shall update their
information in a manner that promotes the
maximum accuracy and shall provide a process
for the prompt correction of erroneous
information, including instances in which it is
brought to their attention in the secondary
verification process described in subparagraph
(C).
(H) Limitation on use of the verification
system and any related systems.--
(i) In general.--Notwithstanding
any other provision of law, nothing in
this paragraph shall be construed to
permit or allow any department, bureau,
or other agency of the United States
Government to utilize any information,
data base, or other records assembled
under this paragraph for any other
purpose other than as provided for.
(ii) No national identification
card.--Nothing in this paragraph shall
be construed to authorize, directly or
indirectly, the issuance or use of
national identification cards or the
establishment of a national
identification card.
(I) Federal tort claims act.--If an
individual alleges that the individual would
not have been dismissed from a job but for an
error of the verification mechanism, the
individual may seek compensation only through
the mechanism of the Federal Tort Claims Act,
and injunctive relief to correct such error. No
class action may be brought under this
subparagraph.
(J) Protection from liability for actions
taken on the basis of information.--No person
or entity shall be civilly or criminally liable
for any action taken in good faith reliance on
information provided through the employment
eligibility verification mechanism established
under this paragraph.
(8) Use of employment eligibility verification
system for previously hired individuals.--
(A) On a voluntary basis.--Beginning on the
date that is 2 years after the date of the
enactment of the Border Protection,
Antiterrorism, and Illegal Immigration Control
Act of 2005 and until the date specified in
subparagraph (B)(iii), a person or entity may
make an inquiry, as provided in paragraph (7),
using the verification system to seek
verification of the identity and employment
eligibility of any individual employed by the
person or entity, as long as it is done on a
nondiscriminatory basis.
(B) On a mandatory basis.--
(i) A person or entity described in
clause (ii) must make an inquiry as
provided in paragraph (7), using the
verification system to seek
verification of the identity and
employment eligibility of all
individuals employed by the person or
entity who have not been previously
subject to an inquiry by the person or
entity by the date three years after
the date of enactment of the Border
Protection, Antiterrorism, and Illegal
Immigration Control Act of 2005.
(ii) A person or entity is
described in this clause if it is a
Federal, State, or local governmental
body (including the Armed Forces of the
United States), or if it employs
individuals working in a location that
is a Federal, State, or local
government building, a military base, a
nuclear energy site, a weapon site, an
airport, or that contains critical
infrastructure (as defined in section
1016(e) of the Critical Infrastructure
Protection Act of 2001 (42 U.S.C.
5195c(e))), but only to the extent of
such individuals.
(iii) All persons and entities
other than those described in clause
(ii) must make an inquiry, as provided
in paragraph (7), using the
verification system to seek
verification of the identity and
employment eligibility of all
individuals employed by the person or
entity who have not been previously
subject to an inquiry by the person or
entity by the date six years after the
date of enactment of the Border
Protection, Antiterrorism, and Illegal
Immigration Control Act of 2005.
* * * * * * *
[(d) Evaluation and Changes in Employment Verification
System.--
[(1) Presidential monitoring and improvements in
system.--
[(A) Monitoring.--The President shall
provide for the monitoring and evaluation of
the degree to which the employment verification
system established under subsection (b)
provides a secure system to determine
employment eligibility in the United States and
shall examine the suitability of existing
Federal and State identification systems for
use for this purpose.
[(B) Improvements to establish secure
system.--To the extent that the system
established under subsection (b) is found not
to be a secure system to determine employment
eligibility in the United States, the President
shall, subject to paragraph (3) and taking into
account the results of any demonstration
projects conducted under paragraph (4),
implement such changes in (including additions
to) the requirements of subsection (b) as may
be necessary to establish a secure system to
determine employment eligibility in the United
States. Such changes in the system may be
implemented only if the changes conform to the
requirements of paragraph (2).
[(2) Restrictions on changes in system.--Any change
the President proposes to implement under paragraph (1)
in the verification system must be designed in a manner
so the verification system, as so changed, meets the
following requirements:
[(A) Reliable determination of identity.--
The system must be capable of reliably
determining whether--
[(i) a person with the identity
claimed by an employee or prospective
employee is eligible to work, and
[(ii) the employee or prospective
employee is claiming the identity of
another individual.
[(B) Using of counterfeit-resistant
documents.--If the system requires that a
document be presented to or examined by an
employer, the document must be in a form which
is resistant to counterfeiting and tampering.
[(C) Limited use of system.--Any personal
information utilized by the system may not be
made available to Government agencies,
employers, and other persons except to the
extent necessary to verify that an individual
is not an unauthorized alien.
[(D) Privacy of information.--The system
must protect the privacy and security of
personal information and identifiers utilized
in the system.
[(E) Limited denial of verification.--A
verification that an employee or prospective
employee is eligible to be employed in the
United States may not be withheld or revoked
under the system for any reason other than that
the employee or prospective employee is an
unauthorized alien.
[(F) Limited use for law enforcement
purposes.--The system may not be used for law
enforcement purposes, other than for
enforcement of this Act or sections 1001, 1028,
1546, and 1621 of title 18, United States Code.
[(G) Restriction on use of new documents.--
If the system requires individuals to present a
new card or other document (designed
specifically for use for this purpose) at the
time of hiring, recruitment, or referral, then
such document may not be required to be
presented for any purpose other than under this
Act (or enforcement of sections 1001, 1028,
1546, and 1621 of title 18, United States Code)
nor to be carried on one's person.
[(3) Notice to congress before implementing
changes.--
[(A) In general.--The President may not
implement any change under paragraph (1) unless
at least--
[(i) 60 days,
[(ii) one year, in the case of a
major change described in subparagraph
(D)(iii), or
[(iii) two years, in the case of a
major change described in clause (i) or
(ii) of subparagraph (D),
before the date of implementation of the
change, the President has prepared and
transmitted to the Committee on the Judiciary
of the House of Representatives and to the
Committee on the Judiciary of the Senate a
written report setting forth the proposed
change. If the President proposes to make any
change regarding social security account number
cards, the President shall transmit to the
Committee on Ways and Means of the House of
Representatives and to the Committee on Finance
of the Senate a written report setting forth
the proposed change. The President promptly
shall cause to have printed in the Federal
Register the substance of any major change
(described in subparagraph (D)) proposed and
reported to Congress.
[(B) Contents of report.--In any report
under subparagraph (A) the President shall
include recommendations for the establishment
of civil and criminal sanctions for
unauthorized use or disclosure of the
information or identifiers contained in such
system.
[(C) Congressional review of major
changes.--
[(i) Hearings and review.--The
Committees on the Judiciary of the
House of Representatives and of the
Senate shall cause to have printed in
the Congressional Record the substance
of any major change described in
subparagraph (D), shall hold hearings
respecting the feasibility and
desirability of implementing such a
change, and, within the two year period
before implementation, shall report to
their respective Houses findings on
whether or not such a change should be
implemented.
[(ii) Congressional action.--No
major change may be implemented unless
the Congress specifically provides, in
an appropriations or other Act, for
funds for implementation of the change.
[(D) Major changes defined.--As used in
this paragraph, the term ``major change'' means
a change which would--
[(i) require an individual to
present a new card or other document
(designed specifically for use for this
purpose) at the time of hiring,
recruitment, or referral,
[(ii) provide for a telephone
verification system under which an
employer, recruiter, or referrer must
transmit to a Federal official
information concerning the immigration
status of prospective employees and the
official transmits to the person, and
the person must record, a verification
code, or
[(iii) require any change in any
card used for accounting purposes under
the Social Security Act, including any
change requiring that the only social
security account number cards which may
be presented in order to comply with
subsection (b)(1)(C)(i) are such cards
as are in a counterfeit-resistant form
consistent with the second sentence of
section 205(c)(2)(D) of the Social
Security Act.
[(E) General revenue funding of social
security card changes.--Any costs incurred in
developing and implementing any change
described in subparagraph (D)(iii) for purposes
of this subsection shall not be paid for out of
any trust fund established under the Social
Security Act.
[(4) Demonstration projects.--
[(A) Authority.--The President may
undertake demonstration projects (consistent
with paragraph (2)) of different changes in the
requirements of subsection (b). No such project
may extend over a period of longer than five
years.
[(B) Reports on projects.--The President
shall report to the Congress on the results of
demonstration projects conducted under this
paragraph.]
(e) Compliance.--
(1) * * *
* * * * * * *
(4) Cease and desist order with civil money penalty
for hiring, recruiting, and referral violations.--With
respect to a violation of subsection (a)(1)(A) or
(a)(2), the order under this subsection--
(A) shall require the person or entity to
cease and desist from such violations and to
pay a civil penalty in an amount, subject to
paragraph (10), of--
(i) [not less than $250 and not
more than $2,000] not less than $5,000
for each unauthorized alien with
respect to whom a violation of either
such subsection occurred,
(ii) [not less than $2,000 and not
more than $5,000] not less than $10,000
for each such alien in the case of a
person or entity previously subject to
one order under this paragraph, or
(iii) [not less than $3,000 and not
more than $10,000] not less than
$25,000 for each such alien in the case
of a person or entity previously
subject to more than one order under
this paragraph; and
[(B) may require the person or entity--
[(i) to comply with the
requirements of subsection (b) (or
subsection (d) if applicable) with
respect to individuals hired (or
recruited or referred for employment
for a fee) during a period of up to
three years, and
[(ii) to take such other remedial
action as is appropriate.]
(B) may require the person or entity to
take such other remedial action as is
appropriate.
* * * * * * *
(5) Order for civil money penalty for paperwork
violations.--With respect to a violation of subsection
(a)(1)(B), the order under this subsection shall
require the person or entity to pay a civil penalty in
an amount, subject to paragraph (10), of not less than
[$100] $1,000 and not more than [$1,000] $25,000 for
each individual with respect to whom such violation
occurred. In determining the amount of the penalty, due
consideration shall be given to [the size of the
business of the employer being charged, the good faith
of the employer] the good faith of the employer being
charged, the seriousness of the violation, whether or
not the individual was an unauthorized alien, and the
history of previous violations. Failure by a person or
entity to utilize the employment eligibility
verification system as required by law, or providing
information to the system that the person or entity
knows or reasonably believes to be false, shall be
treated as a violation of subsection (a)(1)(A).
* * * * * * *
(10) Mitigation of civil money penalties for
smaller employers.--In the case of imposition of a
civil penalty under paragraph (4)(A) with respect to a
violation of subsection (a)(1)(A) or (a)(2) for hiring
or continuation of employment by an employer and in the
case of imposition of a civil penalty under paragraph
(5) for a violation of subsection (a)(1)(B) for hiring
by an employer, the dollar amounts otherwise specified
in the respective paragraph shall be reduced as
follows:
(A) In the case of an employer with an
average of fewer than 26 full-time equivalent
employees (as defined by the Secretary of
Homeland Security), the amounts shall be
reduced by 60 percent.
(B) In the case of an employer with an
average of at least 26, but fewer than 101,
full-time equivalent employees (as so defined),
the amounts shall be reduced by 40 percent.
(C) In the case of an employer with an
average of at least 101, but fewer than 251,
full-time equivalent employees (as so defined),
the amounts shall be reduced by 20 percent.
The last sentence of paragraph (4) shall apply under
this paragraph in the same manner as it applies under
such paragraph.
(f) Criminal Penalties and Injunctions for Pattern or
Practice Violations.--
[(1) Criminal penalty.--Any person or entity which
engages in a pattern or practice of violations of
subsection (a)(1)(A) or (a)(2) shall be fined not more
than $3,000 for each unauthorized alien with respect to
whom such a violation occurs, imprisoned for not more
than six months for the entire pattern or practice, or
both, notwithstanding the provisions of any other
Federal law relating to fine levels.]
(1) Criminal penalty.--Any person or entity which
engages in a pattern or practice of violations of
subsection (a)(1) or (2) shall be fined not more than
$50,000 for each unauthorized alien with respect to
which such a violation occurs, imprisoned for not less
than one year, or both, notwithstanding the provisions
of any other Federal law relating to fine levels.
(2) Enjoining of pattern or practice violations.--
Whenever the [Attorney General] Secretary of Homeland
Security has reasonable cause to believe that a person
or entity is engaged in a pattern or practice of
employment, recruitment, or referral in violation of
paragraph (1)(A) or (2) of subsection (a), the
[Attorney General] Secretary of Homeland Security may
bring a civil action in the appropriate district court
of the United States requesting such relief, including
a permanent or temporary injunction, restraining order,
or other order against the person or entity, as the
[Attorney General] Secretary of Homeland Security deems
necessary.
* * * * * * *
(h) Miscellaneous Provisions.--
(1) * * *
* * * * * * *
(4) Definition of recruit or refer.--As used in
this section, the term ``refer'' means the act of
sending or directing a person or transmitting
documentation or information to another, directly or
indirectly, with the intent of obtaining employment in
the United States for such person. Generally, only
persons or entities referring for remuneration (whether
on a retainer or contingency basis) are included in the
definition. However, union hiring halls that refer
union members or nonunion individuals who pay union
membership dues are included in the definition whether
or not they receive remuneration, as are labor service
agencies, whether public, private, for-profit, or
nonprofit, that refer, dispatch, or otherwise
facilitate the hiring of laborers for any period of
time by a third party. As used in this section the term
``recruit'' means the act of soliciting a person,
directly or indirectly, and referring the person to
another with the intent of obtaining employment for
that person. Generally, only persons or entities
recruiting for remunerations (whether on a retainer or
contingency basis) are included in the definition.
However, union hiring halls that refer union members or
nonunion individuals who pay union membership dues are
included in this definition whether or not they receive
remuneration, as are labor service agencies, whether
public, private, for-profit, or nonprofit that recruit,
dispatch, or otherwise facilitate the hiring of
laborers for any period of time by a third party.
* * * * * * *
CIVIL PENALTIES FOR FAILURE TO DEPART
Sec. 274D. (a) In General.--Any alien subject to a final
order of removal who--
(1) * * *
* * * * * * *
shall pay a civil penalty of not more than $500 to the
[Commissioner] Secretary of Homeland Security for each day the
alien is in violation of this section.
* * * * * * *
(c) Ineligibility for Relief.--
(1) In general.--Subject to paragraph (2), unless a
timely motion to reopen is granted under section
240(c)(6), an alien described in subsection (a) shall
be ineligible for any discretionary relief from removal
pursuant to a motion to reopen during the time the
alien remains in the United States and for a period of
10 years after the alien's departure.
(2) Exception.--Paragraph (1) does not preclude a
motion to reopen to seek withholding of removal under
section 241(b)(3) or protection against torture.
* * * * * * *
entry of alien at improper time or place; unlawful presence;
misrepresentation and concealment of facts
Sec. 275. (a) [Any alien] Except as provided in subsection
(b), any alien who (1) enters or attempts to enter the United
States at any time or place other than as designated by
immigration officers, or (2) eludes examination or inspection
by immigration officers, [or] (3) attempts to enter or obtains
entry to the United States by a willfully false or misleading
representation or the willful concealment of a material fact,
or (4) is otherwise present in the United States in violation
of the immigration laws or the regulations prescribed
thereunder, shall, for the first commission of any such
offense, be fined under title 18, United States Code, or
imprisoned not more than [6 months] one year and a day, or
both, and, for a subsequent commission of any such offense or
following an order of voluntary departure, be fined under title
18, United States Code, or imprisoned not more than 2 years, or
both.
* * * * * * *
(c) An individual who knowingly enters into a marriage for
the purpose of evading any provision of the immigration laws
shall be imprisoned for not more than [5] 10 years, or fined
not more than $250,000, or both. An offense under this
subsection continues until the fraudulent nature of the
marriage is discovered by an immigration officer.
(d) Any individual who knowingly establishes a commercial
enterprise for the purpose of evading any provision of the
immigration laws shall be imprisoned for not more than [5] 10
years, fined in accordance with title 18, United States Code,
or both. An offense under this subsection continues until the
fraudulent nature of the commercial enterprise is discovered by
an immigration officer.
(e)(1) Any alien described in paragraph (2)--
(A) shall be fined under title 18, United States
Code, imprisoned not more than 10 years, or both, if
the offense described in such paragraph was committed
subsequent to a conviction or convictions for
commission of three or more misdemeanors involving
drugs, crimes against the person, or both, or a felony
(other than an aggravated felony); or
(B) shall be fined under title 18, United States
Code, imprisoned not more than 20 years, or both, if
such offense was committed subsequent to a conviction
for commission of an aggravated felony.
(2) An alien described in this paragraph is an alien who--
(A) enters or attempts to enter the United States
at any time or place other than as designated by
immigration officers;
(B) eludes examination or inspection by immigration
officers;
(C) attempts to enter or obtains entry to the
United States by a willfully false or misleading
representation or the willful concealment of a material
fact; or
(D) is otherwise present in the United States in
violation of the immigration laws or the regulations
prescribed thereunder.
(3) The prior convictions in subparagraph (A) or (B) of
paragraph (1) are elements of those crimes and the penalties in
those subparagraphs shall apply only in cases in which the
conviction (or convictions) that form the basis for the
additional penalty are alleged in the indictment or information
and are proven beyond a reasonable doubt at trial or admitted
by the defendant in pleading guilty. Any admissible evidence
may be used to show that the prior conviction is an aggravated
felony or other qualifying crime, and the criminal trial for a
violation of this section shall not be bifurcated.
(4) An offense under subsection (a) or paragraph (1) of
this subsection continues until the alien is discovered within
the United States by immigration officers.
(f) For purposes of this section, the term ``attempts to
enter'' refers to the general intent of the alien to enter the
United States and does not refer to the intent of the alien to
violate the law.
reentry of removed alien
Sec. 276. (a) Subject to subsection (b), any alien who--
(1) * * *
(2) enters, attempts to enter, or is at any time
found in, the United States[, unless (A) prior to his
reembarkation at a place outside the United States or
his application for admission from foreign contiguous
territory, the Attorney General has expressly consented
to such alien's reapplying for admission; or (B) with
respect to an alien previously denied admission and
removed, unless such alien shall establish that he was
not required to obtain such advance consent under this
or any prior Act,],
shall be fined under title 18, United States Code, or
[imprisoned not more than 2 years,] imprisoned for a term of
not less than 1 year and not more than 2 years, or both. It
shall be an affirmative defense to an offense under this
subsection that (A) prior to an alien's reembarkation at a
place outside the United States or an alien's application for
admission from foreign contiguous territory, the Secretary of
Homeland Security has expressly consented to the alien's
reapplying for admission; or (B) with respect to an alien
previously denied admission and removed, such alien was not
required to obtain such advance consent under this Act or any
prior Act.
(b) Notwithstanding subsection (a), in the case of any
alien described in such subsection--
(1) whose removal was subsequent to a conviction
for commission of three or more misdemeanors involving
drugs, crimes against the person, or both, or a felony
(other than an aggravated felony), such alien shall be
fined under title 18, United States Code, [imprisoned
not more than 10 years,] imprisoned for a term of not
less than 5 years and not more than 10 years, or both;
(2) whose removal was subsequent to a conviction
for commission of an aggravated felony, such alien
shall be fined under such title, [imprisoned not more
than 20 years,] imprisoned for a term of not less than
10 years and not more than 20 years, or both;
(3) who has been excluded from the United States
pursuant to section 235(c) because the alien was
excludable under section 212(a)(3)(B) or who has been
removed from the United States pursuant to the
provisions of title V, and who thereafter, without the
permission of the [Attorney General] Secretary of
Homeland Security, enters the United States, or
attempts to do so, shall be fined under title 18,
United States Code, and imprisoned for a period of 10
years, which sentence shall not run concurrently with
any other sentence[. or]; or
(4) who was removed from the United States pursuant
to section 241(a)(4)(B) who thereafter, without the
permission of the [Attorney General] Secretary of
Homeland Security, enters, attempts to enter, or is at
any time found in, the United States (unless the
[Attorney General] Secretary of Homeland Security has
expressly consented to such alien's reentry) shall be
fined under title 18, United States Code, [imprisoned
for not more than 10 years,] imprisoned for a term of
not less than 5 years and not more than 10 years, or
both.
For the purposes of this subsection, the term ``removal''
includes any agreement in which an alien stipulates to removal
during (or not during) a criminal trial under either Federal or
State law. The prior convictions in paragraphs (1) and (2) are
elements of enhanced crimes and the penalties under such
paragraphs shall apply only where the conviction (or
convictions) that form the basis for the additional penalty are
alleged in the indictment or information and are proven beyond
a reasonable doubt at trial or admitted by the defendant in
pleading guilty. Any admissible evidence may be used to show
that the prior conviction is a qualifying crime and the
criminal trial for a violation of either such paragraph shall
not be bifurcated.
(c) Any alien deported pursuant to section [242(h)(2)]
241(a)(4) who enters, attempts to enter, or is at any time
found in, the United States (unless the [Attorney General]
Secretary of Homeland Security has expressly consented to such
alien's reentry) shall be incarcerated for the remainder of the
sentence of imprisonment which was pending at the time of
deportation without any reduction for parole or supervised
release. Such alien shall be subject to such other penalties
relating to the reentry of deported aliens as may be available
under this section or any other provision of law.
* * * * * * *
(e) For purposes of this section, the term ``attempts to
enter'' refers to the general intent of the alien to enter the
United States and does not refer to the intent of the alien to
violate the law.
aiding or assisting certain aliens to enter the united states
Sec. 277. [Any person] (a) Subject to subsection (b), any
person who knowingly aids or assists any alien inadmissible
under section 212(a)(2) (insofar as an alien inadmissible under
such section has been convicted of an aggravated felony) or
212(a)(3) (other than subparagraph (E) thereof) to enter the
United States, or who connives or conspires with any person or
persons to allow, procure, or permit any such alien to enter
the United States, shall be fined under title 18, United States
Code, or imprisoned not more than 10 years, or both.
(b)(1) Any person who knowingly aids or assists any alien
violating section 276(b) to reenter the United States, or who
connives or conspires with any person or persons to allow,
procure, or permit any such alien to reenter the United States,
shall be fined under title 18, United States Code, imprisoned
for a term imposed under paragraph (2), or both.
(2) The term of imprisonment imposed under paragraph (1)
shall be within the range to which the reentering alien is
subject under section 276(b).
* * * * * * *
central file; information from other departments and agencies
Sec. 290. (a) * * *
(b) Any information in any records kept by any department
or agency of the Government as to the identity and location of
aliens in the United States, or as to any person seeking any
benefit or privilege under the immigration laws, shall be made
available to the [Service] Secretary of Homeland Security upon
request made by the [Attorney General] Secretary to the head of
any such department or agency.
* * * * * * *
TITLE III--NATIONALITY AND NATURALIZATION
* * * * * * *
Chapter 2--Nationality Through Naturalization
* * * * * * *
naturalization authority
Sec. 310. (a) * * *
* * * * * * *
(c) Judicial Review.--A person whose application for
naturalization under this title is denied, after a hearing
before an immigration officer under section 336(a), may, no
later than the date that is 120 days after the Secretary's
final determination seek review of such denial before the
United States district court for the district in which such
person resides in accordance with chapter 7 of title 5, United
States Code. [Such review shall be de novo, and the court shall
make its own findings of fact and conclusions of law and shall,
at the request of the petitioner, conduct a hearing de novo on
the application.] The burden shall be upon the petitioner to
show that the Secretary's denial of the application was not
supported by facially legitimate and bona fide reasons. Except
in a proceeding under section 340, notwithstanding any other
provision of law (statutory or nonstatutory), including section
2241 of title 28, United States Code, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, no
court shall have jurisdiction to determine, or to review a
determination of the Secretary made at any time regarding, for
purposes of an application for naturalization, whether an alien
is a person of good moral character, whether an alien
understands and is attached to the principles of the
Constitution of the United States, or whether an alien is well
disposed to the good order and happiness of the United States.
* * * * * * *
requirements as to residence, good moral character, attachment to the
principles of the constitution, and favorable disposition to the united
states
Sec. 316. (a) * * *
* * * * * * *
(g) No person shall be naturalized who the Secretary of
Homeland Security determines, in the Secretary's discretion, to
have been at any time an alien described in section 212(a)(3)
or 237(a)(4). Such determination may be based upon any relevant
information or evidence, including classified, sensitive, or
national security information, and shall be binding upon, and
unreviewable by, any court exercising jurisdiction under the
immigration laws over any application for naturalization,
regardless whether such jurisdiction to review a decision or
action of the Secretary is de novo or otherwise.
* * * * * * *
prerequisite to naturalization; burden of proof
Sec. 318. Except as otherwise provided in this title, no
person shall be naturalized unless he has been lawfully
admitted to the United States for permanent residence in
accordance with all applicable provisions of this Act. The
burden of proof shall be upon such person to show that he
entered the United States lawfully, and the time, place, and
manner of such entry into the United States, but in presenting
such proof he shall be entitled to the production of his
immigrant visa, if any, or of other entry document, if any, and
of any other documents and records, not considered by the
Attorney General to be confidential, pertaining to such entry,
in the custody of the Service. Notwithstanding the provisions
of section 405(b), and except as provided in sections 328 and
329 no person shall be naturalized against whom there is
outstanding a final finding of deportability pursuant to a
warrant of arrest issued under the provisions of this or any
other Act; and no application for naturalization [shall be
considered by the Attorney General] shall be considered by the
Secretary of Homeland Security or any court if there is pending
against the applicant a removal proceeding [pursuant to a
warrant of arrest issued under the provisions of this or any
other Act:] or other proceeding to determine the applicant's
inadmissibility or deportability, or to determine whether the
applicant's lawful permanent resident status should be
rescinded, regardless of when such proceeding was commenced:
Provided, That the findings of the Attorney General in
terminating removal proceedings or in canceling the removal of
an alien pursuant to the provisions of this Act, shall not be
deemed binding in any way [upon the Attorney General] upon the
Secretary of Homeland Security with respect to the question of
whether such person has established his eligibility for
naturalization as required by this title.
* * * * * * *
hearings on denials of applications for naturalization
Sec. 336. (a) * * *
[(b) If there is a failure to make a determination under
section 335 before the end of the 120-day period after the date
on which the examination is conducted under such section, the
applicant may apply to the United States district court for the
district in which the applicant resides for a hearing on the
matter. Such court has jurisdiction over the matter and may
either determine the matter or remand the matter, with
appropriate instructions, to the Service to determine the
matter.]
(b) If there is a failure to render a final administrative
decision under section 335 before the end of the 180-day period
after the date on which the Secretary of Homeland Security
completes all examinations and interviews conducted under such
section, as such terms are defined by the Secretary pursuant to
regulations, the applicant may apply to the district court for
the district in which the applicant resides for a hearing on
the matter. Such court shall only have jurisdiction to review
the basis for delay and remand the matter to the Secretary for
the Secretary's determination on the application.
* * * * * * *
----------
SECTION 924 OF TITLE 18, UNITED STATES CODE
Sec. 924. Penalties
(a) * * *
* * * * * * *
(c)(1)(A) Except to the extent that a greater minimum
sentence is otherwise provided by this subsection or by any
other provision of law, any person who, during and in relation
to any crime of violence, alien smuggling crime, or drug
trafficking crime (including a crime of violence, alien
smuggling crime, or drug trafficking crime that provides for an
enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be
prosecuted in a court of the United States, uses or carries a
firearm, or who, in furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment provided for such
crime of violence, alien smuggling crime, or drug trafficking
crime--
(i) * * *
* * * * * * *
(D) Notwithstanding any other provision of law--
(i) * * *
(ii) no term of imprisonment imposed on a person
under this subsection shall run concurrently with any
other term of imprisonment imposed on the person,
including any term of imprisonment imposed for the
crime of violence, alien smuggling crime, or drug
trafficking crime during which the firearm was used,
carried, or possessed.
* * * * * * *
(6) For purposes of this subsection, the term ``alien
smuggling crime'' means any felony punishable under section
274(a), 277, or 278 of the Immigration and Nationality Act (8
U.S.C. 1324(a), 1327, or 1328).
* * * * * * *
----------
HOMELAND SECURITY ACT OF 2002
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) * * *
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
* * * * * * *
TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY
* * * * * * *
Subtitle C--Miscellaneous Provisions
Sec. 421. Transfer of certain agricultural inspection functions of the
Department of Agriculture.
* * * * * * *
Sec. 431. Office of Air and Marine Operations.
* * * * * * *
TITLE I--DEPARTMENT OF HOMELAND SECURITY
* * * * * * *
SEC. 103. OTHER OFFICERS.
(a) Deputy Secretary; Under Secretaries.--There are the
following officers, appointed by the President, by and with the
advice and consent of the Senate:
(1) * * *
* * * * * * *
(9) Not more than [12] 13 Assistant Secretaries.
* * * * * * *
TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY
* * * * * * *
Subtitle C--Miscellaneous Provisions
* * * * * * *
SEC. 431. OFFICE OF AIR AND MARINE OPERATIONS.
(a) Establishment.--There is established in the Department
an Office of Air and Marine Operations (referred to in this
section as the ``Office'').
(b) Assistant Secretary.--The Office shall be headed by an
Assistant Secretary for Air and Marine Operations who shall be
appointed by the President, by and with the advice and consent
of the Senate, and who shall report directly to the Secretary.
The Assistant Secretary shall be responsible for all functions
and operations of the Office.
(c) Missions.--
(1) Primary mission.--The primary mission of the
Office shall be the prevention of the entry of
terrorists, other unlawful aliens, instruments of
terrorism, narcotics, and other contraband into the
United States.
(2) Secondary mission.--The secondary mission of
the Office shall be to assist other agencies to prevent
the entry of terrorists, other unlawful aliens,
instruments of terrorism, narcotics, and other
contraband into the United States.
(d) Air and Marine Operations Center.--
(1) In general.--The Office shall operate and
maintain the Air and Marine Operations Center in
Riverside, California, or at such other facility of the
Office as is designated by the Secretary.
(2) Duties.--The Center shall provide comprehensive
radar, communications, and control services to the
Office and to eligible Federal, State, or local
agencies (as determined by the Assistant Secretary for
Air and Marine Operations), in order to identify,
track, and support the interdiction and apprehension of
individuals attempting to enter United States airspace
or coastal waters for the purpose of narcotics
trafficking, trafficking of persons, or other terrorist
or criminal activity.
(e) Access to Information.--The Office shall ensure that
other agencies within the Department of Homeland Security, the
Department of Defense, the Department of Justice, and such
other Federal, State, or local agencies, as may be determined
by the Secretary, shall have access to the information gathered
and analyzed by the Center.
(f) Requirement.--Beginning not later than 180 days after
the date of the enactment of this Act, the Secretary shall
require that all information concerning all aviation
activities, including all airplane, helicopter, or other
aircraft flights, that are undertaken by the either the Office,
United States Immigration and Customs Enforcement, United
States Customs and Border Protection, or any subdivisions
thereof, be provided to the Air and Marine Operations Center.
Such information shall include the identifiable transponder,
radar, and electronic emissions and codes originating and
resident aboard the aircraft or similar asset used in the
aviation activity.
(g) Timing.--The Secretary shall require the information
described in subsection (f) to be provided to the Air and
Marine Operations Center in advance of the aviation activity
whenever practicable for the purpose of timely coordination and
conflict resolution of air missions by the Office, United
States Immigration and Customs Enforcement, and United States
Customs and Border Protection.
(h) Rule of Construction.--Nothing in this section shall be
construed to alter, impact, diminish, or in any way undermine
the authority of the Administrator of the Federal Aviation
Administration to oversee, regulate, and control the safe and
efficient use of the airspace of the United States.
* * * * * * *
----------
SECTION 103 OF THE REAL ID Act of 2005
(Division B of Public Law 109-13)
SEC. 103. INADMISSIBILITY DUE TO TERRORIST AND TERRORIST-RELATED
ACTIVITIES.
(a) * * *
* * * * * * *
(d) Effective Date.--The amendments made by this section
shall take effect on the date of the enactment of this
division, and these amendments, and section 212(a)(3)(B) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)), as
amended by this section, shall apply to--
(1) removal, deportation, and exclusion proceedings
instituted before, on, or after the date of the
enactment of this division; and
* * * * * * *
----------
SECTION 509 OF THE IMMIGRATION ACT OF 1990
SEC. 509. GOOD MORAL CHARACTER DEFINITION.
(a) * * *
[(b) Effective Date.--The amendment made by subsection
(a) shall take effect on the date of the enactment of this Act
and shall apply to convictions occurring on or after such date,
except with respect to conviction for murder which shall be
considered a bar to good moral character regardless of the date
of the conviction.]
(b) Effective Date.--The amendment made by subsection (a)
shall take effect on November 29, 1990, and shall apply to
convictions occurring before, on, or after such date.
----------
SECTION 5504 OF THE INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF
2004
SEC. 5504. BAR TO GOOD MORAL CHARACTER FOR ALIENS WHO HAVE COMMITTED
ACTS OF TORTURE, EXTRAJUDICIAL KILLINGS, OR SEVERE
VIOLATIONS OF RELIGIOUS FREEDOM.
Section 101(f) of the Immigration and Nationality Act (8
U.S.C. 1101(f)) is amended--
(1) * * *
(2) by [adding at the end] inserting immediately
after paragraph (8) the following:
``(9) one who at any time has engaged in conduct
described in section 212(a)(3)(E) (relating to
assistance in Nazi persecution, participation in
genocide, or commission of acts of torture or
extrajudicial killings) or 212(a)(2)(G) (relating to
severe violations of religious freedom).''.
----------
SECTION 401 OF THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT
RESPONSIBILITY ACT OF 1996
SEC. 401. ESTABLISHMENT OF PROGRAMS.
(a) * * *
(b) Implementation Deadline; Termination.--The Secretary of
Homeland Security shall implement the pilot programs in a
manner that permits persons and other entities to have
elections under section 402 of this division made and in effect
no later than 1 year after the date of the enactment of this
Act. Unless the Congress otherwise provides, the Secretary of
Homeland Security shall terminate a pilot program [at the end
of the 11-year period beginning on the first day the pilot
program is in effect] two years after the enactment of the
Border Protection, Antiterrorism, and Illegal Immigration
Control Act of 2005.
* * * * * * *
Committee Jurisdiction Letters
Markup Transcript
BUSINESS MEETING
THURSDAY, DECEMBER 8, 2005
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:04 a.m., in
Room 2141, Rayburn House Office Building, the Honorable F.
James Sensenbrenner, Jr. (Chairman of the Committee),
presiding.
Chairman Sensenbrenner. The Committee will be in order. A
working quorum is present.
[Intervening business.]
Chairman Sensenbrenner. Now, pursuant to notice, I call up
the bill, H.R. 4437, the ``Border Protection, Antiterrorism and
Illegal Immigration Control Act of 2005'' for purposes of
markup and move its favorable recommendation to the House.
Without objection, the bill will be considered open for
amendment by title, then each title will be considered as read.
[The bill, H.R. 4337, follows:]
Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes to----
Mr. Scott. Mr. Chairman, parliamentary inquiry. Did I
understand you to say that each section would be considered for
amendment as read?
Chairman Sensenbrenner. Each title will be considered for
amendment as read--title, not section.
Mr. Scott. I would ask unanimous consent, if an amendment
is relevant to one section but covers other sections, that the
amendment could be in order.
I have an amendment that strikes all the mandatory minimums
in the bill, and rather than having section by section, it
would make more sense to have one amendment.
Chairman Sensenbrenner. The Chair would recommend that you
redraft your amendment because everybody else would then ask
the same thing and we would be jumping all around the bill on
disjointed questions.
Let me redraft the unanimous consent request. I would ask
unanimous consent that the bill be considered open for
amendment by title, each title be considered as read, but that
an amendment would be in order that deals with several
different titles as long as it is offered to the last title of
the bill to which it relates. With that understanding, without
objection, so ordered.
The Chair now recognizes himself for 5 minutes to explain
the bill.
America has lost control of its borders and is experiencing
an unprecedented rise in illegal immigration. Border insecurity
and lax enforcement of our Nation's immigration laws poses a
security threat to the American people and rewards those who
violate the law.
Large majorities of Americans support efforts to restore
integrity to our Nation's borders and to stem the tide of
illegal entry into the United States. America is a nation of
immigrants but it is also a nation of laws. These concepts are
not mutually exclusive and the legislation we consider at
today's markup reflects this recognition.
Earlier this week, Homeland Security Chairman King and I
introduced legislation to regain control of our borders and
demagnetize the lure of higher-wage employment that drives
illegal entry into this country. H.R. 4437 will help restore
the integrity of our Nation's borders and reestablish respect
for our laws by holding violators accountable, including human
traffickers, employers who hire illegal aliens, and alien gang
members who terrorize communities throughout the country.
This legislation incorporates vital border security
protection provisions contained in H.R. 4312, reported by the
Committee on Homeland Security earlier this month.
I will briefly outline some of the most important
provisions of this legislation within this Committee's
jurisdiction. First, the bill will fulfill the unkept promise
of the Immigration Reform and Control Act of 1986 by providing
all employers with a reliable method of determining whether
employees are eligible to work. The bill institutes an employer
eligibility verification system in which all employers will
confirm or deny the authenticity of Social Security numbers
offered by job applicants. This mechanism will identify
fraudulent submissions and ensure that employees are not
working in the U.S. illegally.
The bill expands on the promise of Representative Calvert's
H.R. 19 to build upon a successful pilot program that currently
enables employers to verify the employment eligibility of their
workers. Currently, employer participation in this program is
on a voluntary basis. This legislation requires that all
employers will check new hires against this database within 2
years.
The bill also increases penalties for alien smuggling.
Under current law, individuals convicted of smuggling crimes
often receive lenient sentences. The GAO has found that
convicted smugglers, including those responsible for death or
serious injury, receive an average sentence of only 10 months.
Weak penalties fuel a trade in illegal alien smuggling because
the risk of punishment for illegally transmitting aliens is far
less than transmitting illegal drugs or committing other
serious crimes.
Those who suffer the most are often the most vulnerable and
desperate, entering our country in perilous conditions that
sometimes result in either injury or death. Moreover, the debts
owed to alien smugglers by those transported in the country
illegally often create a form of indentured servitude that
enriches criminal syndicates. The legislation establishes
strong penalties to deter this trade in human traffic.
The legislation also cracks down on alien members of
violent street gangs that have become a threat to communities
across the country. It incorporates the Alien Gang Removal Act
which was authored by Congressman Forbes, which passed this
Committee. The bill also increases penalties for previously
deported aliens who illegally reenter the United States. These
provisions were incorporated from H.R. 3150 introduced by
Congressman Issa.
A crucial provision of the legislation remedies the current
situation in which the U.S. is required to release dangerous
alien criminals onto our streets. Department of Homeland
Security is currently not permitted to detain for more than a
short time dangerous aliens who cannot be deported. This has
compelled the release of thousands of criminal aliens,
including murders and rapists. One of those released
subsequently murdered a New York State trooper. The legislation
allows for the detention of such illegal aliens.
The bill also bars aliens who are terrorists or security
risks from becoming naturalized U.S. citizens, makes aggravated
felons inadmissible to the U.S., and facilitates the
deportation of aliens who sexually abuse minors.
Many of the provisions in the bill were requested by the
Justice Department and the Department of Homeland Security.
This legislative effort will not only help regain control of
our borders and prevent illegal immigration, but will help
strengthen and promote our compassionate and welcoming legal
immigration system.
At this point, I wish to provide the following reminder to
Committee Members. Rule XVI(7) of the House requires that
Committee amendments be germane to the Rule X jurisdiction of
the Committee considering the amendment. The legislation we
consider today incorporates several border security provisions
reported by the Committee on Homeland Security. Rule X provides
the Committee on Homeland Security with jurisdiction over the
administrative aspects of the Department of Homeland Security
as well as border and port security, except immigration policy
and nonborder enforcement. As a result, amendments offered at
today's markup exclusively within the Rule X jurisdiction of
the Committee on Homeland Security will be considered
nongermane for purposes of this markup, and I urge my
colleagues to support the bill and recognize the gentleman from
Michigan.
Mr. Conyers. Thank you, Mr. Chairman and Members.
This is a sad moment as we close out the first year of the
109th session of Congress because this bill is mostly not about
border security; the bill includes some provisions, but uses
them to bootstrap on anti-immigrant legislation, a set of
legislation that has nothing to do with security at the border.
And yet again the Republicans are using the fears of terrorism
that Americans have in this uncertain post-September 11th world
to piggyback its anti-immigrant agenda on a border security
proposal, and I am deeply troubled by the procedure that has
been used.
Instead of reforming our immigration system to improve
border security and effectively and realistically address
undocumented immigration, this bill further destroys the
system. It is so heinous and extreme that the Democrats on this
Committee agree that this bill cannot be fixed. It is a
nonstarter.
And while we are eager to tell the American people why this
bill is so dangerous, we will not spin our wheels on an
impossible task in this partisan environment. With few
exceptions, we will not even seek to amend this atrocious,
irreparable bill that I think does no honor--brings no honor to
this Committee in bringing it forward under these
circumstances.
Repeatedly, over the last decade the Republican-controlled
House has passed one immigration bill or border enforcement
bill after another, yet the tide of unlawful immigrants
entering this country continues to rise and then disappear into
a shadowy, unknown society. Republicans will pass a policy that
pretends to be tough on security and enforcement and then
refuse to fund the policies year after year. We know the drill.
Everybody is on to the game.
We do not sanction employers who hire unauthorized
immigrant workers, and yet only three employers in the entire
country were sanctioned last year for using unlawful labor. We
are unable to detain or deport everyone here lawfully. We don't
know who has come or who has gone or who is dangerous. We have
done nothing to bring the 11 million unlawfully present
immigrants out of the shadows.
And so it is with a heavy heart that we begin the task that
is before us on a bill that is not worthy to be brought before
the Committee at this time.
And I return the balance of my time, Mr. Chairman.
Chairman Sensenbrenner. Without objection, all Members'
opening statements may be included in the record at this point.
Mr. Berman. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from California seek recognition?
Mr. Berman. Do we have an opportunity at this point, moving
to strike the last word, to discuss the proposal that is in
front of us?
Chairman Sensenbrenner. If the gentleman desires, he can
move to strike the word.
Mr. Berman. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Berman. Mr. Chairman, perhaps because I am going to
make some harsh comments, I want to state at the outset that I
have great respect for the Chairman's intelligence and his
fairness in conducting this Committee. This is one of the most
polarized Committees on the House of Representatives. We have
many, many ideological differences, and while I feel--and will
explain why I feel--so strongly about what is going on here
today, I wanted to put it in the context of those comments.
The majority's decision to bring forth, as our Ranking
Member said, on the week before we are about to leave, the
Border and Immigration Enforcement Act of 2005, to my way of
thinking can only be attributed to one of three things:
stupidity, political panic, or venality.
I want to say that a--before--I will elaborate on why I
feel that way, but I want to give some views about where I
think most Democrats are coming from on this issue.
We believe illegal immigration is wrong. We think we have a
national crisis respecting illegal immigration, and we think we
should do whatever we can do to effectively stop it.
We think that a fundamental attribute of national
sovereignty is substantial control of who comes into this
country and how they come in and that the consequences of that
lack of control--and we do have to a great extent a lack of
control--causes incredibly serious problems: massive
disruptions and impacts on public services, health care,
education, law enforcement, humanitarian tragedies of
tremendous proportions, exploitation of people, unsafe working
conditions, disregard of labor laws; and particularly, as we
know since 9/11, it becomes a vehicle by which terrorists and
gang members and drug pushers can penetrate our country,
threaten our security, and threaten our well-being.
Democrats support expending the resources and making the
changes necessary to try and fix this problem. Democrats are
willing to push and support tough border enforcement. At least
a number of Democrats--I am one of them--are willing to support
a meaningful verification system to correct the fundamental
flaw of the 1986 bill so that employers are required to
determine whether or not the people applying for jobs with them
are authorized to work in the United States and that that
corrects a big part of this problem.
But we also know that just doing those two things alone
will do nothing; and that is where I get to the point that
putting this proposal before us in the form it is in now--not
so much because of the provisions that are in this bill,
although a number of them I would suggest changes--but because
of what is not in this bill demonstrates a reckless foolishness
or some kind of political panic that is motivating the majority
to act, notwithstanding the fact that what they are proposing
will not solve their problem, or a certain kind of venality in
a political context.
The stupidity of this bill is that everyone knows this
won't work. The Chairman himself, I have read four separate
times in the last week, says without a guest worker program--we
need to have a guest worker program, but that won't come in
this bill. The President of the United States, George Bush, on
a number of occasions has said the only approach to dealing
with this issue is on a comprehensive basis.
We have 11 million people in this country here illegally.
Without dealing with that fact, we are not going to solve the
problem no matter how loud we shout about how tough we are.
Senators Cornyn and Kyl and McCain on the Republican side of
the aisle in the Senate recognize--they have different ways of
approaching it, but recognize the need for a comprehensive
approach. There are people on this Committee who I have talked
to who know that without dealing with the issue of the 11
million undocumented----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Berman. I would ask unanimous consent for 2 additional
minutes.
Chairman Sensenbrenner. Without objection.
Mr. Berman. There are people on the other aisle of this
Committee that know full well that this bill, one, will never
pass the U.S. Senate; and secondly, if it were to become law,
would never deal with the problem unless we deal with the
problem of the people in this country now on illegal status,
unauthorized status, and deal with the issue of future worker
and worker needs for American businesses.
So for those reasons this is a foolish approach.
So then I come to the conclusion perhaps, since surely the
majority would not do something that cannot work intentionally,
they must have a different motivation. And perhaps it is the
fear of being Dreierized or Campbellized that certain kinds of
demagogues on talk radio and the very understandable anger of
the American people about our failure to fix this problem make
them want to go for the quick-fix, easy solution that is no
solution, and that this is fear at a time of plunging polls and
scandals and demonstrations of executive incompetence and
politicization of the disaster relief process. This becomes an
issue to try and get a hold of in order to position oneself for
the next elections.
Or maybe there is venality here. Maybe this is Ross Barnett
of the 21st century. We are going to out-set whoever runs
against us by demagoguing this issue. And these are harsh
comments, but I can only understand what is happening here in
the context of these ideas because you know, you know----
Chairman Sensenbrenner. The gentleman's time has once again
expired.
Mr. Berman. My last sentence is, this isn't about--we can
have an interesting and philosophical debate about birthright,
citizenship or what kind of enforcement--interior enforcement
to have, or specific measures; but the notion it's not what is
in this bill, that means this bill is destined not to solve the
problem, and for that reason, I don't believe that this
Committee should pass this bill out of here.
Chairman Sensenbrenner. The Clerk will designate title I.
The Clerk. Securing United States borders----
Chairman Sensenbrenner. Are there any amendments to title
I?
Mr. King. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Iowa, Mr. King,
for what purpose do you seek recognition?
Mr. King. I have an amendment at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
Mr. King. Eighty-nine.
The Clerk. Amendment to H.R. 4437, offered by Mr. King of
Iowa: Insert after Section 2 the following new section, Section
3, sense of Congress on setting a manageable level of
immigration. It is the sense of Congress that the immigration
and naturalization policy shall be designed to enhance the
economic, social, and cultural well-being of the United States
of America.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from Iowa is
recognized for 5 minutes.
Mr. King. Thank you, Mr. Chairman.
I offer this amendment today to include a sense of Congress
about the future direction of our immigration policy. I wholly
support immigration policy that is designed to enhance the
economic, social and cultural well-being of the United States
of America. Immigrants have made and will continue to make
valuable contributions to our Nation. To benefit both
immigrants and the United States, we must develop an
immigration policy that aids the assimilation of newcomers by
assuring our Nation does not admit more immigrants than it can
reasonably accommodate.
Assimilation is valuable to immigrants who benefit from our
shared American culture of personal responsibility, freedom and
patriotism. The values shared by our civilization founded on
the heritage of Western civilization, religious freedom and
free enterprise capitalism serve immigrants and native born
alike.
I am concerned that the recent rise in immigration levels
in this country will make it difficult for newcomers to
assimilate and find jobs. We must be careful to admit only as
many newcomers as we can accommodate so our society will not be
burden by unemployed immigrants. Cultural continuity must be
assured by drafting policy that allows new immigrants to thrive
and benefit the United States, not depend on the Federal
Government for survival.
As Americans, we should promote a naturalization process
that promotes American values, the responsibilities of
citizenship and our constitutional principles. Candidates for
naturalization should be proficient in English. Not only will
English proficiency help newcomers attain better-paying jobs,
it also provides a means of communication and unity for all
Americans.
Finally, as a sovereign Nation, in a time of war
controlling our borders is paramount. We must ensure terrorists
do not infiltrate the United States. We must tighten and
strengthen border control efforts so illegal aliens do not
enter our country.
We must always remember the ultimate goal should be
promotion of the well-being of the United States of America,
not the benefit of a neighboring country. Setting a manageable
legal of immigration is a reasonable request to achieve this
objective. I ask for your support on this amendment.
Thank you, Mr. Chairman.
Chairman Sensenbrenner. Does the gentleman yield back his
time?
Mr. King. I yield back.
Mr. Nadler. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from New York, for
what purpose do you seek recognition?
Mr. Nadler. To speak on the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you, Mr. Speaker.
This amendment, I heard what Mr. King thinks he means by
it, but if you read the amendment, it is meaningless. It is the
sense of Congress that the immigration and naturalization
policy should be designed to enhance the economic, social and
cultural well-being of the United States of America.
Well, I think everybody will agree with that sentiment.
Certainly our laws, all our laws, should be designed to enhance
the economic, social and cultural well-being of the United
States of America. Of course, on this Committee we may have 36
different ideas of what bills, laws, amendments would do that.
We may have different ideas of what advances the economic,
social and cultural well-being of the United States of America.
I will stipulate that I will support this amendment because
who could not, who could be against enhancing the economic,
social and cultural well-being of the United States, although
my interpretation of what would do that may be very different
than Mr. King's interpretation, may in fact be diametrically
opposed to what he thinks this amendment will do. So because
this amendment states well-meaning goals, it is totally
meaningless, I urge everyone to vote for it.
Chairman Sensenbrenner. Does the gentleman want to yield
back?
Mr. Nadler. I do not want to yield back.
Second, I want to second what Mr. Berman said. It is an
outrage this bill is before us today, not just for the reasons
that he said, but because this is a 169-page bill which makes
fundamental changes, some technical, some very complicated,
with far-reaching effects in many different aspects of the law;
and the Democrats didn't see this 169-page bill until the day
before yesterday. We have not had an opportunity to analyze it.
I guarantee that the public at large, the professors, lawyers,
immigration bar have not had an opportunity to analyze it or
give comments.
There is no pressing necessity. When we passed the PATRIOT
Act bill, unread, 4 years ago--not talking about this year, but
originally 4 years ago--no one had a chance to read that. We
were told well, we can't wait a week, there will be blood on
our hands.
Why can't we wait a week, or 2, or 6? Nothing is happening.
This problem is a long-standing problem, it is going to be
long-standing. We should deal with it as Mr. Berman said. But
to deal with it by passing what may not be a one-House bill--or
even worse, not a one-House bill--without proper analysis, with
no opportunity to really look into it, is a disgrace and a
travesty on the legislative record.
I am going to use the remaining time to discuss one
provision of this bill which I just glanced at, haven't had a
chance to really go into it, but is something that deserves
extensive discussion in this Committee.
The expedited removal provision in title IV. This bill
would require the Border Patrol to pick up and deport without
even an administrative hearing, to deport without even an
administrative hearing anyone within 100 miles of the border
that an agent thinks is an undocumented immigrant who has been
present less than 14 days.
It expands on the controversial policy of expedited
removal, which grants extraordinary and unprecedented power to
low-level immigration officers to remove individuals without
review and without a fair hearing. ``expedite removal''
currently is applied to noncitizens arriving at airports with
apparently improper documents, to noncitizens arriving by sea
and a few other categories of noncitizens. Even as currently
applied, expedited removal results in terrible mistakes
including its wrongful application to genuine refugees and even
to U.S. citizens.
In 2001, 4 years ago, the Senate heard harrowing testimony
from refugees wrongly subjected to expedited removal, including
in one instance an Algerian refugee who faced persecution from
Islamic extremists for his refusal--refusal to participate in a
plot to murder his employer, the former Algerian president.
Because of expedited removal, he was shackled when he said he
would be sent back without review despite his claims of
political asylum.
A Tibetan Buddhist monk also testified before the Senate, a
monk whose comrades, two monks and a nun, were wrongly sent
back to China and no one has heard from them since.
The Senate also heard the case of Sharon McKnight, an
American citizen of Jamaican descent who suffers a mental
disability and was wrongly put into expedited removal and sent
to Jamaica because an inspector mistakenly thought her passport
was fake and she didn't have the mental competence to persuade
him otherwise.
Expedited removal, Mr. Chairman, should be fixed, not
expanded. Because there is no check on expedited removal,
expanding it to any person a Government official thinks is a
recently arrived illegal immigrant within 100 miles of the
border will inevitably result in the wrongful arrest and even
deportation of perfectly legal residents, and even of U.S.
citizens who may be of Mexican America heritage or look foreign
to a Border Patrol officer, because there is no appeal for
that, no hearing or administrative proceeding, never mind an
immigration judge.
Expanding this policy to persons----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Nadler. I will ask unanimous consent for 2 additional
minutes.
Chairman Sensenbrenner. Without objection.
Mr. Nadler. Thank you.
Expanding the policy of expedited removal to include
persons already within the United States poses grave
constitutional problems. In the case of Zadvydas v. Davis the
U.S. Supreme Court ruled in 2001 once an alien enters the
country, the legal circumstances change, for the due process
clause applies to all persons within the United States,
including aliens, whether their presence here is lawful,
unlawful, temporary or permanent, end quote from the Supreme
Court.
So to have an expedited removal for someone within the
United States not caught at the border without any kind of due
process is clearly unconstitutional. In Shaughnessy v. United
States ex rel. Miezi, also decided by the Supreme Court,
although this is an older case, aliens who have once passed
through our gates, even illegally, may be expelled only after
proceedings conforming to traditional standards of fairness
encompassed in due process.
So here we have a provision in this bill which we don't
have time to really go into, don't have time to examine, and
don't have time to fix because maybe its aims are okay. But we
don't have time to fix it because we have got to rush this bill
through, and yet it is clearly unconstitutional, as applied, in
many cases. It will clearly result in U.S. citizens, legally
admitted aliens, being deported improperly; and it will result
in people with good claims of political asylum, people whom we
want in this country, who may have fled here because they
oppose the Taliban or opposed the tyrants that we are opposing,
we will send them back to be murdered, raped or punished for
their nerve in standing up for American values and for freedom.
This is really something that is not a good idea. I yield
back.
Chairman Sensenbrenner. The question is----
Mr. Delahunt. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Delahunt.
Mr. Delahunt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Delahunt. I won't take the 5 minutes.
I would encourage support for the amendment for the reasons
articulated by my colleague from New York, Mr. Nadler.
My good friend from Iowa, Mr. King, speaks about a number,
a number which I would pose to him that I am not sure of, but a
number that he believes that this Nation could deal with in
terms of assimilation; and I wonder if he would share with us
that particular number of immigrants.
I yield to my friend from Iowa.
Mr. King. Thank the gentleman from Massachusetts.
And I have spoken openly about this on the floor, as Mr.
Delahunt may recall, and I said that I will support a
consistent level of immigration that is in the 450 to 500,000 a
year number, kind of the legal number that we have.
I think if anybody is going to have an opinion on
immigration, the first thing they ought to answer is, is there
such a thing as too much immigration, and the next question is
how much is too much. If you don't have an opinion on that,
then you ought not engage in this debate.
I thank you and yield back.
Mr. Delahunt. I yield back.
Ms. Lofgren. Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Lofgren.
Ms. Lofgren. I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. The amendment itself, as pointed out by our
colleague from New York, Mr. Nadler, basically is meaningless,
and therefore, we can vote whichever way we want; it doesn't
accomplish anything. But I do think it is important to note
some of the severe problems in the base bill.
One of the things that has not yet been fully discussed is
that approval and enactment of this bill into law would
preclude President Bush's proposal to have some kind of orderly
progress to allow those who are temporarily working to have
legal status even for a temporary period, because the bill
turns people who are undocumented into aggravated felons.
I think it is worth pointing out that among the several
million people who are here without documents and whom we need
to deal with include at least a million and a half children
who, under the bill, would become aggravated felons. To think
that this would solve the problem that besets the country, I
think is a mistake.
I want to note something else, and it is a small issue
perhaps, but it is a big issue to those who are fleeing
communism, and it is an issue that I raised in the Homeland
Security markup, and we were advised that we lacked
jurisdiction in the Homeland Security Committee, so obviously
we have jurisdiction in this Committee; and that deals with
Section 404, the denial of admission to nationals of countries
denying or delaying accepting an alien.
It is a problem when the United States decides to deport
someone; if the country of origin refuses to repatriate that
person, it causes a problem. The answer to that is diplomacy.
Recently, although it has caused problems in some communities,
the United States did negotiate an agreement with the country
of Cambodia to accept people who are permanent residents of the
United States who are not deportable back to Cambodia.
The problem that I see with this provision is that it
punishes the victim of communism rather than actually dealing
with the Communist government that is at fault, and let me give
you an example. I have a large number of Vietnamese Americans
in my district. I will guarantee you this, the Communist
government in Vietnam does not care about the civil rights of
their citizens. As a matter of fact, as some Members of the
Committee know, they are actively engaged in oppressing
religious freedom, political freedom, freedom of the press. I
mean they have been cited by our State Department as a country
of particular concern.
Under the provisions of this act, if someone escapes from
the Communists in Vietnam because they have been oppressed by
that authoritarian Communist government, they would not be
admitted to the United States because their government refuses
to repatriate deportees.
Now, how is that a sensible provision? It is not.
I would like to point out that in addition to Vietnamese
who are fleeing communism, the other big country that refuses
to repatriate is China. Now, we have an economic relationship
with China, but I have not been impressed that the Chinese
government is particularly concerned about the civil rights,
civil liberties and religious freedom of the people of China.
In fact, many Members of Congress have outlined various abuses
that have occurred by the Chinese government towards their
citizens, including forced abortions, oppression of religious
freedom and the like.
Why should we oppress further those people who have fled
from China, presented themselves to the United States having
fled from that oppressive Communist regime? Why should we turn
those victims of communism away to punish the Communist
government? This is completely nonsensical. It is only one of
many bad provisions in this bill, but it is something that
ought to be thoroughly rejected. It will not accomplish its
goal, and it really is playing into the hands of authoritarian
Communist regimes, especially in Asia, and deserves our
repudiation and----
Ms. Waters. Will the gentlelady yield?
Ms. Lofgren. I will be happy to yield to the gentlelady.
Ms. Waters. Since you have taken a look at that section, do
you understand this section basically dictates that if they
refuse to take a person back, we close down our borders to the
country forever?
Ms. Lofgren. It would include not just refugees but, for
example, if a person born in China married my son.
Chairman Sensenbrenner. The gentlewoman's time has expired.
Ms. Lofgren. I would ask 1 additional minute.
Mr. Issa. I object. Not speaking to the amendment.
Chairman Sensenbrenner. Objection is heard.
The question is on agreeing to the amendment offered by the
gentleman from Virginia, Mr. Scott.
Mr. Scott. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. I yield to the gentlelady from California.
Ms. Lofgren. Thank you. I would just, in response to my
colleague from California, Ms. Waters, point out that this is a
comprehensive bar and it would include those who are married to
American citizens.
If my son falls in love and marries a gal from China, I
mean she would be excluded. It would include Nobel Prize
winners who want to come over and become part of the American
economy and bring their patent portfolio with them, in addition
to those who would be asylees.
So I think this is really a way to not only punish victims
of communism but also to punish Americans for no good reason.
And I note that my colleague from Texas wished time so I
would further yield to the gentlelady.
Mr. Scott. I yield.
Ms. Jackson Lee. I thank--is the gentleman yielding?
Mr. Scott. I yield to you.
Ms. Jackson Lee. I thank very much the distinguished
gentleman and distinguished gentlelady from California.
Let me just--as the time wanes, just simply say that as we
look at the provisions that you have spoken about, it adds to
my angst and concern that this legislation creates gridlock for
the immigration system of America. It is not a practical
approach, though there are many aspects that I believe we could
have collaborated on in a very bipartisan way; evidence the
border security bill out of Homeland Security. H.R. 4044 that I
had offered spoke to the question of enhancing Border Patrol
agents' training, scholarship, equipment and detention beds.
As I look at the legislation that we have now, we will
effectively shut down the Nation's resort communities, hotels,
restaurants. Again, we go back to employer sanctions which were
ineffective in 1996, and I don't know how they can be effective
now. You give no out and no relief for existing undocumented
individuals who are tax-paying on homes or children who are in
school. There is no relief whatsoever.
You close the door to a guest worker program and you close
the door to an earned access to legalization, fair responses to
the 11 million undocumented aliens in this country. When we
leave this place today we will have done nothing to address
that question.
My concern on Mr. King's amendment is that it is benign in
and of itself, and I wish that he would have an amendment that
says that we want to address the undocumented problem in this
country. And when I say ``problem,'' I am suggesting that we
cannot look away from hard-working, tax-paying individuals.
Again, we take judicial review to the next level, and though we
are a nation of due process and the Bill of Rights, we suggest
that a revocation of a visa is not appealable.
I support the alien smuggling provisions, enhanced
provisions to avoid the loss of life, those being smuggled
across the border. It is reasonable. But certainly I think the
process of due process is reputable and adds to the democracy
and the image of the United States.
We know that this Nation is a nation of laws, it is a
nation of immigrants. We also recognize that this country is
better because we interact with people from around the world.
It helps us when students from the Mideast come and are
educated in the Nation's schools. In many instances, they may
help us create jobs.
This bill does not open the door to a fix of the
immigration system; it dampens asylum, it rushes for expedited
removal without due process, and in fact, in the detention it
seems to me that rather than focusing on the OTMs, which many
of us have suggested are the gateway for terrorists, we are
suggesting that we are going to detain everyone.
Even in H.R. 4044 I was bold enough to suggest that we
needed 100,000 beds. You will never get the number of beds
necessary in order to provide the security that this bill is
offering.
Lastly, let me say when we begin to open the doors, as many
of my good friends have advocated for local officials who are
clamoring to be immigration officers, we are going down the
pathway of no return and doom. Local law enforcement are to get
the cops and robbers in their own community. And believe me,
they are over their heads in that, to add the immigration issue
so that the least little person driving their vehicle down
someone's highway is intimidated by a local sheriff; and I do
believe they have good intentions.
The bill also adds to the enhanced responsibility of the
Department of Defense, and I clearly believe you are crossing
the line of demarcation of making this country a militarized
nation by insisting that the Department of Defense has an
active role on the border.
Chairman Sensenbrenner. The time of the gentleman from
Virginia has expired.
Ms. Jackson Lee. I would suggest that this bill needs
collaborative effort, Mr. Chairman, and I hope we can take it
back and work with the Democrats. I yield back.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentleman from Iowa, Mr. King. Those
in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it and the
amendment is agreed to. Are there further amendments to title
I?
Mr. Nadler. Mr. Chairman.
Chairman Sensenbrenner. For what purposes does the
gentleman from New York seek recognition?
Mr. Nadler. Strike the last word on the bill.
Chairman Sensenbrenner. The gentleman, I believe, has
already been recognized.
Mr. Nadler. I was recognized on the amendment, not on the
bill.
Chairman Sensenbrenner. Are there further amendments to
title I?
Mr. Nadler. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from New York is
recognized for 5 minutes.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, since we have not had proper time to analyze
this bill or to go into detail, I just want to take this time
to analyze one and, if I have time, two other provisions of
this bill that deserve extensive analysis and discussion.
Also, in title VIII, I think it is title VIII, is the
criminalization of immigrants, including asylum seekers and
others with valid claims for relief.
Immigration laws and regulations include both civil and
criminal penalties. Removal is normally a civil process that
determines whether a noncitizen is present legally and whether
any relief, such as asylum or humanitarian relief, is available
under the law. Some knowing violations of immigration law--
immigrant smuggling, entry without inspection, failing to
register when required--are criminal. Section 203 of this bill
would create a new Federal crime of illegal presence defined
broadly as any violation, even technical, of an immigration law
or regulation, even without any intent to violate the
immigration laws.
In essence, it makes every immigration violation, however
minor, into a Federal crime. In fact, it makes actions which
are unavoidable into Federal crimes. For example--and here are
some consequences that I don't think have been anticipated or
thought through--penalizing immigrants with valid asylum claims
or other valid claims for relief come out from this provision.
The bill would turn into criminals noncitizens whose claims
for immigration benefits have not yet been decided.
Persons fleeing persecution or on a temporary visa may have
their visa expire before their asylum claim is adjudicated.
Under the bill, they would become criminals subject to
imprisonment for a term of years even if they are subsequently
granted asylum. They would be subject--they would be criminals
and subject to imprisonment for being here illegally because
the Government delayed in granting them their valid asylum
claim.
Other forms of relief, like temporary protective status
granted by countries that suffer natural disaster, give
temporary relief from deportation. The Government's decision to
grant asylum or temporary protective status or other forms of
relief would not necessarily wipe away the consequences of even
a technical period of illegal presence, which would be
criminal, despite the fact the immigrant never intended to
violate any law and applied for relief in the correct manner.
Another consequence is that the overbroad definition of
``smuggling'' in section 202 could criminalize the work of
churches or other refugee organizations acting in good faith.
Harboring anyone who is illegally present is a crime, even with
no intent of financial gain, even if that person has a valid
asylum claim ultimately judged valid. An asylum seeker with a
valid claim may be illegally present for some period, which
would make it criminal for churches or refugee organizations to
try to help them, treating such organizations the same as
smuggling organizations.
I don't think, Mr. Chairman, that this is what the authors
of the bill intended. I hope it is not. I don't think so ill of
them that I think they would intend this.
I think this bill has not been properly thought through in
this provision as among others, and I would hope that this bill
would be withdrawn from consideration today until it can get
proper venting, proper changes by its sponsors when they agree
with the people who comment, proper debate when they don't
agree; and so we don't rush through a very, very important 169-
page bill which has----
Ms. Lofgren. Will the gentleman yield?
I just want to point out another provision that really
snuck in there, and that is in section 613. There is a U.S.
Supreme Court case that basically recognizes that there are a
lot of reasons why individuals could plead guilty to a criminal
act.
[11:00 a.m.]
Ms. Lofgren. I will give you an example. You are 20 years
old. You have been arrested for possession of marijuana. You
are a kid. Your defense lawyer recommends that you plead guilty
because you don't have the money and you are not going to serve
in any time in jail, and so you do that. Thirty years later, it
becomes a problem immigration-wise.
The Supreme Court said that unless you understood the
immigration implications at the time you made the plea, you
could not use that provision in the immigration proceedings.
There needs to be notice so that the plea is actually made
intentionally.
This section basically says that State courts no longer
have jurisdiction to run their own business. That is
unprecedented that the Federal Government would step in to the
State courts and start telling judges that they cannot modify
sentences based on what they have found in their own courts
based on their own records.
Chairman Sensenbrenner. The time of the gentlewoman has
expired.
Ms. Waters. Mr. Chairman----
Chairman Sensenbrenner. The Chair will announce that the
Members of the majority are committed to stay here as long as
it takes to get this bill done and put Members of the minority
on notice that we will be here until there is a final vote.
For what purpose does the gentlewoman from California seek
recognition?
Ms. Waters. I seek recognition to strike the last word.
Chairman Sensenbrenner. Gentlewoman is recognized for 5
minutes.
Ms. Waters. Mr. Chairman, as I have said to you, I think,
on more than one occasion, I am prepared to support a
reasonable bill to deal with the immigration problem that we
have in this country.
I was impressed upon first learning about the bill, because
you had taken a giant step in dealing with the employers and
stepped out willing to provide some sanctions. I thought that
that was courageous on your part, given that many of the
employers would like to have it both ways. However, being the
fine legal mind that you are, Mr. Chairman, I am a bit
surprised at some of what I am finding in the bill.
First of all, you know that there are many of us who have
problems with continuing to bog down the legal system with
mandatory minimum sentencing, and here you have created--in one
bill--more mandatory minimum sentences than perhaps we created
in all of the last 2 years. In section 202 alone, you have
created eight mandatory minimum sentencing, that is in title
II, and it goes on and on and on in some of the other sections.
I know, also, not only are you a great legal mind but you
are a bit of a fiscal conservative. Where does the money come
from to expand our court system to deal with all of the
mandatory minimums and other things that you have put into this
bill? I don't know if you gave that consideration.
But I guess you did, because you want to take some money
from first responders. Now you know that your President is in
this war on terrorism, and you know that he set up homeland
security. And one of the most important aspects of that is to
be able to fund first responders in our cities so that our
firemen and our police officers and others will be trained and
prepared and have the equipment that they need to deal with
terrorism.
What is going to happen when we have one of these alerts
where everybody is put on notice and they have to move, they
have to do certain things? Surely, Mr. Chairman, you did not
intend to rob our cities of money for first responders in this
tremendous fight on terrorism that we are engaged in in order
to deal with the immigration problem in the way that you are
trying to do.
In addition to that, there are some other issues in the
bill that I think you could give better consideration to. Now,
I know, as my colleague from California was discussing, the
fact that we have some countries that would not allow reentry
of removed aliens. But you go a bit far and you imply in this
bill that if they do not take a person back that we are trying
to send back that we are going to close our borders forever to
that country and not allow any persons from that country in
under any circumstances.
Surely you don't mean that; and I think perhaps, in your
haste to do something good, you have overlooked the fact that,
first of all, whatever we do has got to be constitutional.
Second----
Ms. Lofgren. Would the gentlelady yield?
Ms. Waters. I would yield to the gentlelady.
Ms. Lofgren. I would turn back to the St. Cyr case, the
U.S. Supreme Court case, because I think that decision is based
on due process in the Constitution, is not going to be
overturned statutorily, number one. But I think it is important
to note that it is not about undocumented or illegal aliens, it
is about legal residents, people who have gone through all the
hoops, who have obtained their legal residency and who have
been caught up either when they are trying to reenter the
United States after a trip or they have applied for U.S.
citizenship and got caught up on this. So this has no place in
a bill about undocumented aliens, and it also clearly fails to
meet the due process provisions in the constitution.
It purports to overturn the St. Cyr case. I don't think it
can. But it is also very unfair to Americans who are married to
these legal residents who really need an opportunity to have
their situations reviewed by a State court judge.
Ms. Waters. I think you is absolutely correct, and I think
it is just an oversight on Mr. Sensenbrenner's part.
Now this mandatory detention for all illegal entrants until
they are removed, where are you going to put them? I don't see
where.
Chairman Sensenbrenner. Gentlewoman's time has expired.
Chair asks unanimous consent that the remainder of the bill
be considered as read and open for amendment at any point. And
is there any objection?
Hearing none, so ordered.
Ms. Wasserman Schultz. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Florida seek recognition?
Ms. Wasserman Schultz. I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
Mr. Chairman, all of us here today on both sides of the
aisle clearly recognize and know that immigration reform is
necessary. Hundreds of thousands of illegal aliens cross our
borders each year. Just using my own street as an example, four
of the seven families that live on my own street are recent
legal immigrants to this country.
Although these men and women come to America in search of a
better life for themselves and their families, they obviously
place a great burden on Federal, State and local governments.
The Republican leadership has said many times that Congress
should take up comprehensive immigration reforms that address
not only enforcement but also allow for an adjustment of status
for current undocumented immigrants.
This legislation does no such thing. In fact, this bill's
primary focus is on border security and interior enforcement.
We need a bill, if we are going to really address this problem,
that is much broader in scope, one that offers real solutions
and not another simplistic approach to a complex problem.
I commend to you comments last year from my Governor, my
State's Governor, Florida's Governor Jeb Bush, with whom I
rarely agree on anything, but I did agree with him on this. He
said about illegal immigration last year, he said, we shouldn't
allow them to come into the country to begin with, but once
they are here, what do you do? Do you basically say they are
lepers to society, that they don't exist? He said a policy that
ignores them is a policy of denial.
Next year is an election year. We all know the stakes that
are riding on this election. However, the Nation's immigration
laws are too far reaching to simply rush through the
legislation so that we can say we did something on immigration.
Mr. Chairman, as a Nation, we must address this complex
problem, but we need to do this right. We must take an approach
that addresses the Nation's illegal immigration problem more
thoroughly, including guest worker provisions, programs to
increase legal immigration, and policies that recognize that
undocumented immigrants are here. They are here. There is no
question that they are here, and then address some of the
issues that result from their presence.
Until we can take a systematic approach and not take a
simplistic approach to this very complex problem, then I cannot
support this legislation.
Thank you, and I yield back the balance of my time.
Chairman Sensenbrenner. Are there further amendments to the
bill?
Mr. Cannon. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Cannon. It is amendment Cannon .054.
[The amendment follows:]
Mr. Cannon. This is a technical amendment. Mr. Chairman, if
I might just begin to explain this while it is being passed
out.
Chairman Sensenbrenner. A point of order is reserved by the
gentleman from California. The gentleman is recognized for 5
minutes.
Mr. Cannon. This is a technical amendment. Last year, the
House and the Senate passed H.R. 4306, which allows for
electronic storage of I9 forms by voice vote and was signed
into law. This amendment merely reinserts the language that an
employer may keep I9s in electronic format.
This legislation enhances security and provides greater
privacy protection for employees by electronic computer storage
with a backup system. It is far more secure than paper-based
systems in which paper documents can be lost, damaged, misfiled
or accessed by unauthorized individuals.
This language is inadvertently, I believe, dropped from the
bill; and I am adding back what is already existing law so as
not to cause any confusion about the intent of Congress. I urge
the support of this amendment by my colleagues and yield back
the balance of my time.
Chairman Sensenbrenner. Does the gentleman from California
insist on his point of order.
Mr. Berman. No.
Chairman Sensenbrenner. The gentleman from New York, for
what purpose do you seek recognition?
Mr. Nadler. Strike the last word on the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you, Mr. Chairman.
I think that as far as I can judge, in not having had a
chance to read the bill, this is a fine amendment. But it does
give me the opportunity to comment on another provision of this
bill, on the court-stripping provisions, which otherwise might
not see the light of day in our rather abbreviated
consideration of this bill. Again, these are provisions that
ought to be looked at in detail and not in a 20-minute period
or even a 5-minute period in a Committee meeting.
Because of court-stripping legislation passed 10 years ago
and again earlier this year, current law severely restricts
access to the courts for many kinds of immigration claims,
including class actions and even ordinary review for many
individual claims. As a result, immigrants who allege the
Government acted illegally in the removal process have only one
shot at review directly in the Circuit Court of Appeals, many
under very narrow scope of review in current law.
In 2002, Attorney General Ashcroft worsened this problem by
severely limiting administrative review by the Board of
Immigration Appeals, leading to a truncated, one-judge review
for most appeals, a review that does not satisfy elementary due
process. This bill would worsen that trend by bringing second
class review into the last avenue of relief, the Court of
Appeals, and by manipulating the system to ensure no review at
all--no review at all--for many immigrants. No review at all
for temporary residents. Legal nonimmigrants--students, guest
workers, et cetera, are effectively deprived of any review from
a deportation order because they must sign a waiver of their
right to an administrative hearing or judicial review to obtain
a visa.
Under this bill, to get a visa, you have to waive your
rights. Under current law, such waivers apply only to tourists
and other short-term visitors who qualify for travel under the
visa waiver program. Revoking the visas were made unreviewable
even by habeas corpus with only a systemic challenge to the
statute available before the Court of Appeals in the District
of Columbia Circuit, even if you are in Texas or California or
somewhere else.
For those who still have a right to go into Federal court,
a single appeals court judge is required within 60 days to
issue a court certificate of your ability or the case is
automatically dismissed. A similar one-judge system for the
Bureau of Immigration Appeals has led to numerous mistakes and
a string of reversals.
Expedited removal without a lawyer or a hearing, which the
bill mandates, would apply to all noncitizens within 100 miles
of the border and also forbids any review by a Federal Court.
Finally, many decisions, even decisions made with secret
evidence, are made unreviewable, even by habeas corpus. The
bill makes a number of decisions expressly unreviewable. For
example, the Government's decision using secret evidence that
an applicant for naturalization is involved in a terrorist
group or has endorsed or espoused terrorism cannot be reviewed
by a court, cannot be reviewed by the Bureau of Immigration
Appeals. The bureaucrat's decision is final. And as we saw in
that case in Florida, the jury disagreed.
One thing the authors of this bill should know by now is
that not every bureaucrat is right 100 percent of the time. I
would have thought the Republicans would know that. But this
bill says every bureaucrat is always right and never needs to
be reviewed.
Many decisions regarding voluntary departure agreements,
deportation under existing deportation orders--even where
Government's record keeping mistakes led to its entry--are
unreviewable.
Mr. Chairman, it is a fundamental denial of the basic
liberty concepts of this country, of the basic due process
concepts of the country, to allow bureaucrats to deport people,
to violate their rights with no review in court, with no review
even by an immigration judge. It is simply beyond the pale--or
it ought to be beyond the pale--and this ought not to be in
this bill.
Just one more example of what an ill-considered bill this
is and why we should not be considering this 169-page bill on
less than 2 days notice at this time.
I am not terribly hopeful that anything we say here makes
any difference, because this is all a political ploy, as we
know. But, nonetheless, it would be nice if this Committee made
a semblance of acting with some responsibility of actually
considering these points on their merits. But I suppose that is
too much to ask.
I yield back.
Ms. Jackson Lee. Mr. Chairman----
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Texas seek recognition?
Ms. Jackson Lee. I seek to strike the last word.
Chairman Sensenbrenner. Gentlewoman is recognized 5
minutes.
Ms. Jackson Lee. I thank the Chairman very much.
Because Mr. Cannon took the opportunity to share with us
how enhanced technology could be an effective tool in the
collective efforts that all of us are trying to achieve, and
that is a fair and just and comprehensive immigration system, I
wanted to make note of my considered, I guess, consternation
and frustration with ignoring of the front-liners, if you will,
in this bill and even though there may be some representation
that the issue is a question of germaneness, but that is of the
Border Patrol agency and agents.
There are any number of us who have walked the line, if you
will, and that is--of the southern border and the northern
border, but in particular the southern border--and have seen
the Border Patrol agents day after day and night after night
suffer with the half staffing, if you will, of the necessary
equipment they need, the technology that they need to be able
to perform their jobs.
Interestingly enough, the Republican efforts both in
Homeland Security and, frankly, here clearly have ignored I
think key elements of answering the question of the massive
illegal immigration that many are concerned about and much of
what we know is economic.
But no one seems to wants to sit down and analyze what do
the Border Patrol agents need? They do want to analyze let's
see how the Department of Defense can violate the seam between
civilian and defense and engage in the issue of immigration.
They do want to break the bank of local law enforcement and
take them away from protecting school children and finding
sexual predators and making sure that the banks are operating
than put them on the border.
It is to me inconsistent to have strong enforcement and you
don't have provisions for recruitment, scholarships for the
recruitment of Border Patrol agents. You don't have enhanced
certifying of their positions, advancing them at a civil
service level, pension relief. You don't have helicopter and
power boats added to their arsenal, if you will, motor vehicles
where they suffer a severe shortage and have to share the
vehicles that are down at the border, portable computers which
are mostly in every local law enforcement. Now you will see
local law enforcement with hand-carrying or car-carrying
computers, radio communication, that does not exist, handheld
global positioning system and, most of all, simplistically,
night vision equipment.
If any of you have stood at the borders as I have done in
the night watching Border Patrol agents, they are doing their
best at a disadvantage. Body armor that, frankly, they probably
have to buy for themselves. Simplistic responses to ensuring
that the front-liners of immigration, regulation and control
are well-trained, well-skilled and well-equipped.
I don't know what we are doing if we ignore that component
of the work that we have to do. H.R. 4044 would offer that. I
had hoped that we would be able to merge in a bipartisan manner
to look at these issues.
But if we are talking about rapidly responding to the
crisis and we overlook the Border Patrol agents and we focus on
the Department of Defense to give us the strategy, might I say
that they are, I would hope, filling up their days with a
strategy on Iraq that is crying out for some reasonable
response which at this time we are looking for.
But I don't see how adding another major component--
something as large as the Department of Defense--to engage in
this process, when we have been begging and crying for
comprehensive reform.
I would hope, again, that in the waning hours of this
session that we will have an opportunity to take this bill into
a room and truly address the comprehensive needs of immigration
in America. But I am disappointed that we can't find some way
to give the necessary tools to an agency that has been
maligned--not of their own doing but because they have not been
given both the staffing, the detention facilities--reasonable
detention. Not as it has been crafted in this bill. And they
have certainly have not been given the equipment and I would
also say the opportunities of recruitment and professional
training to add to the excellent job that they are attempting
to do. And I have seen them do some good work.
So I am glad that Mr. Cannon has added technology in a
small way, but I was certainly disappointed----
Chairman Sensenbrenner. The time of the gentlewoman has
expired.
Questions on the amendment offered by the gentleman from
Utah, Mr. Cannon. Those in favor will say aye. Aye. Opposed no.
No.
The ayes appear to have it. The ayes have it. The amendment
is agreed to.
Are there further amendments?
Mr. Cannon. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from Utah seek recognition?
Mr. Cannon. I have two amendments. I would like unanimous
consent to offer them en block. Those are amendments Cannon 055
and 056.
Chairman Sensenbrenner. Clerk will report the amendment.
The Clerk. Amendment to H.R. 4437 offered by Mr. Cannon of
Utah.
Page 149, beginning line 17, strike clause 3.
Amendment to H.R. 4437 offered by Mr. Cannon of Utah.
Page 152, strike lines 20 through 25 and redesignate
subsequent paragraphs accordingly.
Chairman Sensenbrenner. Without objection, the amendments
will be considered as en bloc. Hearing none, so ordered.
[The amendments follow:]
Chairman Sensenbrenner. The gentleman from Utah is
recognized for 5 minutes.
Mr. Berman. Mr. Chairman, I do have a reservation.
Chairman Sensenbrenner. Gentleman from California reserves
a point of order.
Gentleman from Utah is recognized for 5 minutes.
Mr. Cannon. Thank you, Mr. Chairman.
The first amendment would strike the mandatory verification
on existing employees.
I want to just start off by saying how much I appreciate
the Chairman's incredible work on this issue over a long period
of time and that in an environment where there has been a great
deal of other activity, including the Patriot Act which has
taken, I think, an obscene amount of time; and so I appreciate
his work on both efforts. But in the case of the basic pilot
program the new national employment verification system is a
good concept. I support that, and I hope it will work.
I can support the prospective use of the program, but I
have concerns about a national mandate applying a program that
has been questioned by the agencies to at least 8 million
employers and 140 million employees. The burden that is created
by mandating that every employer in the country use the
employment verification to reverify the work authorization of
some 140 million workers is more than extremely unfair to the
vast majority of law-abiding employers. It would place a
significant burden on businesses of every size because there
are too many unanswered questions about this program.
The GAO studies on this subject earlier this year in August
and June 2005 indicated that if the basic pilot program is
expanded, several weaknesses in the program, including its
inability to detect fraud and DHS delays in entering data into
their databases, could become more significant and adversely
affect a greater number of employees and employers.
DHS responded to the GAO study by saying the testing of
alternative of pilots is important; and USCIS believes it is
important to test and evaluate alternative employment
verification systems before we go about creating a new,
expensive mandatory national employment verification system.
CIS officials told GAO that the current basic pilot program
may not be able to complete timely verifications of work
eligibility if the numbers of employers using the program were
to significantly increase. We have about 3,600 employers using
the system now, as opposed to 8 million.
There are some fundamental problems inherent in the basic
pilot that are not yet worked out. The basic pilot cannot
detect identity fraud. If an unauthorized worker presents valid
documentation that belongs to another person authorized to
work, the program would likely find that person authorized to
work.
Most importantly, we have existing laws on the books that
penalize employers who are hiring unauthorized workers. IRCA
provided sanctions against employers who do not follow the I9
employment verification process.
Under current law, employers are required to reverify the
employment eligibility of individuals whose work authorization
has expired to determine whether the are authorized to continue
to work. Employers who fail to properly complete, retain or
present for inspection their I9s face civil fines ranging from
a $1,000 to $20,000 for violation, and employers who knowingly
hire or continue to employ unauthorized aliens also face
increased fines. Employers who engage in a pattern of knowingly
hiring illegal aliens are subject to criminal penalties,
including imprisonment.
The Social Security Administration reports no match letters
to the IRS, which then investigates and imposes fines for
returns filed to the IRS that contain a missing or incorrect
taxpayer identification number.
If the existing laws and fines are not being adequately
enforced, then let's have a debate about that before we step up
a whole new program of possible unintended consequences for the
burdens it places on business and employers.
On the second amendment that I submitted en bloc, this
section would eliminate the dramatic increase in penalties for
what are pure paperwork violations. The current penalties range
from $100 to $1,000. In H.R. 4437, these penalties would
increase substantially from a thousand minimum to $25,000
maximum for not checking the appropriate box or signing the
form.
We are here today to discuss immigration reform and not
impose paperwork penalties on every American. The question is,
why we are increasing penalties 2,500 percent for simple
paperwork mistakes that may or may not have any connection to
immigration problems? This penalty is not for those who are
here intentionally or intentionally hire illegal workers or
those who recruit illegal workers.
My amendment keeps the language and protects against
fraudulent uses. If someone is gaming the paperwork, they can
be prosecuted under the fraud and conspiracy laws which carry
criminal penalties.
I understand that the bill contains a good-faith compliance
exception before the imposition of this penalty would occur.
But that exception does not take into account that this section
is overbroad and really doesn't work with our task at hand,
which is to reform our immigration system.
We are adding huge civil penalties to all businesses simply
for clerical errors. You can be penalized for failing to check
the right box or you can be penalized for failing to sign the
form.
I urge my colleagues to support both of these amendments
and vote for them en bloc. And with that, I yield back, Mr.
Chairman.
Chairman Sensenbrenner. The time of the gentleman is
expired.
The Chair recognizes himself for 5 minutes in opposition to
the amendments en bloc. These amendments strike the guts of the
bill and it has this bill and our country go down the slippery
slope of the mistake that was made in 1986 in the Simpson-
Mazzoli bill, and that was lack of adequate verification of the
eligibility to work for people who applied for jobs in the
United States.
The reason Simpson-Mazzoli failed--and we have more
undocumented aliens in the United States today than we ever had
in the early 1980's--is because there was not a way for
employers to check whether somebody who was asking for a job
was legally in the country and eligible to work.
The first amendment that the gentleman from Utah has
offered strikes the necessity to check the employment
eligibility of already existing workers.
Now the result of his amendment, if it becomes the law, is
going to create an indentured servant program for undocumented
aliens. Because if they are working for an existing employer
and they are undocumented, they can't get a new job because
their Social Security number would be caught up in the employer
verification system. That is not the way we should go about
dealing with this issue.
The second one, relative to paperwork violations of--the
gentleman from Utah seems to think that these violations are
trivial in nature. They really are not. Because it does
require--the current immigration law does require employers to
examine the work authorization documents in each new hire and
attest on the I9 form that the new employee is not an
unauthorized alien, and the problem is that the fines don't act
as a sufficient deterrent for them to do the job right.
Now, in 1996, we recognized that employees should not be
penalized for mere technical violations or mistakes, and there
is a good-faith compliance issue. What we are dealing with with
these penalties is not the people who are attempting to comply
in good faith but the bad actors. Now the bad actors who hire
scores or maybe even hundreds of undocumented aliens in effect
are the 21st century slave masters. I don't have any soft spot
in my heart for them, because the 21st century slave masters
are operating in just as immoral a manner as the 19th century
slave masters were.
I would ask that the Members vote against the Cannon
amendments en bloc and yield back the balance of my time.
Mr. Berman. Would the gentleman yield?
Chairman Sensenbrenner. Gentleman from California, Mr.
Berman.
Mr. Berman. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. Gentleman is recognized for 5
minutes.
Mr. Berman. I hate opposing an amendment by my friend who I
have worked on these issues with so much over the past few
years, the gentleman from Utah. But my comments are
particularly directed to the gentleman from California, Mr.
Lungren. Think back to 1986 and that slippery slope the
Chairman made reference to, where the problem in this bill
isn't the idea of verification. It is the absence of an earned
adjustment program, a guest worker program, the kinds of
provisions that are in Kolbe-Flake and Cornyn-Kyl and Kennedy-
McCain and that are being promoted by President Bush. It is the
absence of those provisions.
What you do with this amendment is you go back to the 86
formulation of we criminalize the presence of these people in
this country. We make it a new crime in the bill, but the
employer can continue to employ these criminals as long as he
wants, no burdens on the employer, if he has somebody employed.
By the way, every grower who hires--in an industry which is
predominantly filled with undocumented workers, every grower,
every time it is a peak season, is rehiring somebody, so this
amendment doesn't even protect that particular employer.
Don't fundamentally because of the--the way to correct this
bill isn't to give the employers more free passes. It is to
deal with the presence of 11,000,000 people in this country who
are not authorized to work at the present time, to correct that
problem and to provide future courses of workers with adequate
wage protections so they don't displace the jobs of U.S.
workers where you have temporary shortages in the future. That
is where the amendment should be coming to, not destroying the
verification process which is part of a strategy of dealing
with the problem of illegal immigration. We made that mistake
in 1986. We are about to do it again.
Ms. Lofgren. Would the gentleman yield, Mr. Berman?
I just want to support your suggestion of opposing the
amendment in a slight variation of my thinking on yours that
really this whole section needs a more comprehensive approach
than can be accomplished in this amendment, and I have reached
the same conclusion as you that we cannot support it.
I thank the gentleman.
Mr. Berman. Just to reclaim my time. The verification
provisions aren't adequate as they are now. There needs to be
walls protected to make sure the information is not misused,
that the privacy of citizens is not violated. There are a
number of mistakes in the verification process, how it gets
phased in, how it gets implemented. These are important
questions which couldn't possibly have been dealt. We haven't
had the kind of hearings and advice from Homeland Security and
the Social Security Administration on how this will be done.
But to carve a loophole out for existing employees and say
the employer doesn't have to verify them is essentially just
going back to taking the burden off of the employers,
criminalizing the aliens and inducing employers to keep on
doing the same old thing all over again.
Mr. Cannon. Would the gentleman yield? I want to make a
couple of comments.
I think the rationale behind what we would be doing here is
that people who are here illegally can't get another job
because of the nature of the verification program. So I don't
think of that in terms of indentured servitude but rather an
opportunity to get straight with the law or leave. And, at the
same time, it puts an incredible burden on the employer.
I don't think that--there are some bad actors. Without any
question. I want to agree with the Chairman. There are some bad
actors out there. But most employers just want to get their
product out the door, and they want to be able to do it in a
way that they can make a profit. And that is not bad. In fact,
the free market system is the basis for what we do in America.
So I would urge the--pardon me----
Mr. Berman. Let me reclaim my time--because it is going to
expire in a second--to say then offer an amendment that
provides some kind of earned adjustment and guest worker
status. We can debate whether you have to leave the country or
not. We can have a good discussion about that. Do something to
correct the problem. Don't fall back to the 1986 trap of
attempting.
Mr. Cannon. The '86 was a trap where we had penalties that
were too great to be enforced.
Mr. Berman. The penalties were unenforceable because we
said the employers----
Chairman Sensenbrenner. Time of the gentleman from
California is expired.
Does the gentleman from California insist on his point of
order.
Mr. Berman. No, I don't.
Chairman Sensenbrenner. The gentleman--other gentleman from
California, Mr. Lungren, is recognized for 5 minutes.
Mr. Lungren. Thank you, Mr. Chairman. I move to strike the
last word, and I rise in opposition to the amendment.
As I listen to the Chairman's reference to the 1986 Act as
well as my friend from California's, I am reminded of the old
saying that victory has many fathers, while failure is an
orphan. I guess I am the only one around here who would admit
to voting for the law back in 1986.
Mr. Berman. I voted for it, too.
Mr. Lungren. I am glad to hear that. Although you are
probably hurting me with my point with my friends on this side
by saying that.
Look, we thought we had reached a balance in 1986. We
thought we were doing something with the phenomenon that
existed of those who were in this country illegally at this
time and also attempting to try and enforce the law going
forward. A critical part of that was employer sanctions.
It is not a partisan failure. It is a bipartisan failure.
Democratic and Republican administrations have failed to
enforce the employer sanctions, in part because the will of the
people wasn't there. I think the will of the people is now
there, and I think we also have to create a system that works.
Back in 1986, Sam Hall, the Democratic Congressman from
Texas, offered an amendment to actually establish such a
verification system. I voted against it at that time because I
didn't think it was practical, that is, you can actually do it.
I think it can be done now. I think the pilot project has
proven that it can work; and if it does--if it has proven its
ability to work, then I think we ought to enforce it.
I agree with the gentleman very much on the fact that we
will ultimately need a guest worker program--whatever you want
to call it. It is a program of foreign workers that will
actually be a regulated system that the United States
determines the parameters of, which is far better than having
the illegal system that we have now. And I think, in fact, the
employer community will demand that. They will accept, I
believe, sanctions of this type, if they have that kind of
program that meets particular needs.
Mr. Berman. Will the gentleman yield just on that point?
Mr. Lungren. No, I won't. I don't have enough time right
now.
On that point, I also realize the political realities, that
sometimes you have to do certain things that not all people
agree with, but you can get a consensus for a step. So I am not
hiding the fact that I believe that, ultimately, in order to
have all of this come together, you are going to need some sort
of system. It can't be an amnesty. It can't be something like
that. It has to be something different. And I think we have to
have an ongoing system.
But with respect to this bill, which goes to the question
of border security and getting some control over the situation
that exists now, I think the components parts that are in there
are, in fact, reasonable. If you look at the phase-in of the
mandatory nature of this section of the bill, it is over a
number of years; and there is certainly adequate time for us to
be able to ensure the other parts come together.
I just would say that, as one who was there at the
beginning, in 1986, of our attempt to try and reach a balanced
program, employer sanctions were integral to our attempt. They
have not worked for a number of reasons. They would be made
impossible to work I think if we adopted the gentleman from
Utah's amendments here, not that he intends that they not work.
And I understand that he believes, as you do, we do need to
have some sort of verified foreign worker program.
But, please, we are serious about the problem that
confronts us right now with illegal immigration. If we are
truly serious about it, employer sanctions have got to be a
component. We have major parts of our problem. One is the
magnet of employment that pulls people here. No doubt about it.
We have to do something about it.
The other half I think is the question of birthright
citizenship. We are not going to deal with that at this time. I
may offer an amendment to that and then withdraw it for
purposes of discussion. But that is one half of the problem, I
believe.
At least let us be honest. American people really do
believe, Democrats, Republicans, Independents, no matter what
their stripe, we ought to do something about the issue. If
anybody can tell me how we deal with the magnet of employment
without having an employer sanctioned program that actually is
capable of work, I would like to hear it; and I yield to the
gentleman from Utah if he can tell me that.
Mr. Cannon. Thank you.
I think you have said there is a political will. I think
that the penalties are high enough if we apply the penalties.
So raising penalties, especially in areas where its paperwork
is difficult, but doesn't the gentleman also feel that over
time, if you are verifying new employment, we can do it do
without shaking down American businesses to get to identify for
us every person that is here illegally?
Mr. Lungren. I will be happy to reclaim my time.
I don't view it as shaking down American business. This is
analogous to a situation I faced when I was trying to enforce
Proposition 65 in California. I had the wine industry come to
me to beg me to sue the entire industry over the question of
the presence of lead as a result of the caps they used to put
on wine bottles, and the reason they asked for me to sue them
is they thought that if they had an overall comprehensive
approach as a result of a settlement----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Lungren. One additional minute?
Chairman Sensenbrenner. Without objection.
Mr. Lungren. And the point was, as long as they all felt
they were covered by the same laws, they were all free to do
what they wanted to do, which was to change the way they put
caps on their wine bottles and get rid of the lead that leached
in wine bottles.
When I talk to most employers, they say to me, look, if you
have a law that works, I will follow it. But they all tell me
it is a joke right now. They say, you give me these documents.
You tell me I can't discriminate again people for other
indicia, so I don't. And the document may, in fact, be phony. I
am not an expert on that. But you haven't given me anything to
rely on. If you would give me something to rely on, I would do
it.
I think most employers are scrupulous and want to follow
the law. So I think it is----
Chairman Sensenbrenner. The time of the gentleman has once
again expired.
Ms. Jackson Lee. Mr. Chairman.
Chairman Sensenbrenner. Gentleman from California, Mr.
Schiff.
Mr. Schiff. Thank you, Mr. Chairman.
As you can see, the discussion has gone on so long I have
already moved up in seniority during the hearing. I would like
to yield to my colleague from California, Mr. Berman.
Mr. Berman. I thank the gentleman for yielding.
I just want to contest one point in the otherwise very
lucid and coherent explanation by the gentleman from
California.
Dan, you are wrong. If the employers can devastate the
verification program, they won't be clamoring for a guest
worker program because they will keep employing undocumented
workers, illegal immigrants, whatever it is.
The only reason they are clamoring for a guest worker
program or for some kind of adjustment program is because they
are getting nervous about their ability to rely on their
existing workforce. The moment this amendment passes, they will
be quite happy--this amendment and a few other refined
amendments.
But let me also make one other point, if the gentleman will
continue to yield.
Make no mistake about it. If this bill were to become law
without an adjustment program, without a guest worker program,
perishable fruits and vegetables in the United States
disappear. The tourism and hospitality industries, massive
disruptions. Home construction in many parts of this country,
we know who is doing that. Don't kid yourself.
When you say, well, sometime down the road we should do a
guest worker program, you put in tough border enforcements and
real verification, without that, and you are kissing away huge
amounts of U.S. industries. And you know it.
You haven't given us a coherent reason why you aren't doing
a comprehensive approach like the President wants, like the
Chairman has suggested in the end needs to be done, like you
have acknowledged needs to be done. Why aren't you doing it at
the same time so we don't go through that fundamentally massive
disruption in our economy.
Mr. Lungren. Would the gentleman yield?
Mr. Schiff. I would be glad to yield.
Mr. Lungren. In response to my friend, I would say I do
support that; and you know, in 1986, I will agree we didn't
create a perfect bill. If the gentleman had joined me in 1986
in having a guest worker bill, we wouldn't be in the problem we
are in today.
Mr. Schiff. Reclaiming my time, I would be happy to yield
to my colleague from California.
Mr. Berman. I joined the gentleman in a good adjustment
program for seasonal agriculture workers. The gentleman wanted
a new, brassier program.
Mr. Lungren. No, the guest worker program.
Mr. Cannon. Would the gentleman yield? Mr. Schiff, would
the gentleman yield?
Mr. Schiff. Yes, I would be delighted to yield.
Mr. Cannon. The benefit of having time in our parliamentary
system.
Let me make the point again. This is about reducing one
penalty, the penalty that relates to paperwork violations,
which is going from $100 to $25,000.
The second point--the second piece of the en bloc amendment
is eliminating the requirement that employers who have already
gone through the legal processes to identify their employees
not be required to go through that--a new process, which, by
the way, is not clear that it is going to work. And it is going
to put them in the blocks, not DHS, whoever is creating the
system.
So I would, again, urge my colleagues to think about these
amendments. These are amendments that will allow business to
continue to operate thoughtfully and profitably without being
jerked around by a system that is a little bit harsher than I
think we actually would want, on reflection.
Thank you. I yield back to you.
Mr. Schiff. Reclaiming the balance of my time, I just
wanted to state briefly that I concur with the sentiments
expressed by my colleague from the San Fernando Valley. I think
this issue ought to be addressed in a comprehensive immigration
reform bill that addresses all the issues that Mr. Berman
enumerated. I have no illusions about this bill in this form
being passed into law, will be back at the same place next
year. But I don't think this has been a productive exercise,
and I yield back to the Chair.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman.
Ms. Jackson Lee. Mr. Chairman.
Chairman Sensenbrenner. Does the gentlewoman from Texas
wish to speak on the amendment?
Ms. Jackson Lee. Yes, Mr. Chairman.
Chairman Sensenbrenner. Then the gentlewoman is recognized
for 5 minutes.
Ms. Jackson Lee. Thank you, Mr. Chairman.
I give credit to Mr. Cannon for making a valiant effort to
unshackle businesses and relieve them of extraordinary
requirements, $25,000 and paperwork. But, in doing so, I think
that, again, I would have hoped our good friend would have
joined us in the comprehensive approach and, I add, an
additional aspect to the issue of the guest worker.
My unreadiness and discomfort is that, even as we speak to
the issue of the guest worker, it is not secure as it makes it
way to the Senate. Because the guest worker program to be
proposed in the Senate may be more of the Cornyn-Kyl approach,
which is that individuals must leave the country first before
they can ascertain their status or develop an opportunity to be
a citizen.
The issue of the gentleman from Utah is to unburden
employers and unshackle the business community, because I am
sure that they are in horror as they watch this particular bill
pass through the process.
But no one is responding to the question that, whether it
be the efforts Mr. Cannon is making, they don't address the
comprehensive need that I think needs both an earned access
component and a guest worker and that we should be sensitive to
any guest worker program that may ultimately turn into the
leaving of the country. Because rooted families with homes and
children in school will not be eager and will not participate
in that aspect of a guest worker program.
So I would rather have us join together with guest worker,
earned access to legalization, if you will, with a recognition
that it is not a reality to expect 11 million people to take a
bus either to the north or the south or wherever they might
have come to.
Your amendment, Mr. Cannon, does well to try to relieve the
business community of severe both pressures and enforcement, if
we actually even enforce it, but it really doesn't go to the
question of what you do with the people they are dealing with.
That is why I think it has frailties and failures, and I would
hope that maybe you would join us in looking at it in a more
comprehensive manner.
With that, I yield back.
Chairman Sensenbrenner. The question is on the amendments
en bloc offered by the gentleman from Utah, Mr. Cannon. All
those in favor, signify by saying aye. Aye. Opposed, no. No.
The noes appear to have it.
Mr. Cannon. Mr. Chairman, rather than asking for rollcall
vote, it sounded to me like there were two ayes, only mine and
Mr. Chabot's, in that voice vote.
Chairman Sensenbrenner. The Chair's hearing is not that
particular. The noes have it, and the amendment is not agreed
to.
Are there further amendments? Are there further amendments?
Gentleman from Virginia has an amendment. The Clerk will
report his amendment.
Mr. Scott. Mr. Chairman, I have an amendment, Scott VA 062.
Chairman Sensenbrenner. Clerk will report the amendment.
The Clerk. Amendment to H.R. 4437 offered by Mr. Scott of
Virginia.
Add at the end of title VI the following new section:
Section 408. GAO study----
Mr. Scott. Mr. Chairman, I ask unanimous consent----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment follows:]
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Scott. I yield.
Chairman Sensenbrenner. This amendment looks like a very
constructive one, and the Chair is prepared to support it.
Mr. Scott. I yield.
Chairman Sensenbrenner. The gentleman yields back the
balance of his time.
The question is on the amendment offered by the gentleman
from Virginia, Mr. Scott. Those in favor will say Aye. Aye.
Opposed, no.
The ayes appear to have it. The ayes have it. The amendment
is agreed to.
Are there further amendments? Are there further amendments?
Gentleman from Virginia, Mr. Scott.
Mr. Scott. I have an amendment at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
Mr. Scott. Scott VA 061.
Chairman Sensenbrenner. The clerk will report Scott VA 061.
The Clerk. Amendment to H.R. 4437 offered by Mr. Scott of
Virginia.
Page 28, line 12, strike ``less than 3 years nor''.
Page 28, line 19, strike, ``less than 3 nor''.
Page 29, beginning----
Mr. Scott. I ask unanimous consent that the amendment be
considered as read.
Chairman Sensenbrenner. Without objection so ordered.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, just for the public interest, the last
amendment created a GAO study to--in response to a report on
National Public Radio questioning health care in our detention
centers, and that study was adopted.
Mr. Chairman, this amendment has to do with mandatory
minimums, and it goes through and picks and chooses each of the
new mandatory minimums in this bill. The reason we waived the
reading of the bill is that the number of new mandatory
minimums in the bill took more than a full page of striking
this and that. So, Mr. Chairman, this removes in one fell swoop
all of the mandatory minimums in the bill. It keeps the
increased maximums in all of the bills, but by increasing the
maximums we signal to the sentencing commission that they
should consider increasing the guideline sentences. And when we
do that, Mr. Chairman, the sentencing commission generally
complies and adjusts the guidelines.
The difference between a sentencing guideline floor and a
statutory mandatory minimum is that other guideline
considerations can be brought into account under the guidelines
to allow appropriate sentencing for each individual case by the
commission and the courts, rather than sentencing in the blind
by Congress without the benefit of the facts and circumstances
of the individual case or the individual sentence.
Mr. Chairman, mandatory minimums have been studied
extensively and have been found to disrupt the underlying
sentencing scheme, to discriminate against minorities and waste
the taxpayers' money when compared to traditional sentencing
where the individual roles and culpabilities can be taken into
account. It does nothing to those who deserve to be sentenced
to longer sentences, but it unfairly penalizes those who
deserve lesser sentences.
The Judicial Conference has written Congress over a dozen
times to point out, Mr. Chairman, that mandatory minimum
sentencing violates common sense.
Mr. Chairman, I want to repeat that.
The Judicial Conference has written Congress over a dozen
times to point out that mandatory minimum sentencing violates
common sense.
Mr. Chairman, the purpose of this bill is to strengthen
enforcement of immigration laws and enhance border security.
But it is hard to see how placing a mandatory minimum sentence
on some cases after the people have been removed will do
anything more than just clog up our overcrowded prisons with
people whose crime may be nothing worse than trying to reunite
with their families.
Mr. Chairman, the passage of this amendment will do nothing
to eliminate punishment. It will, however, provide that the
punishment will be consistent with common sense. So I urge my
colleagues to support the amendment.
I yield back.
Chairman Sensenbrenner. Chair recognizes himself briefly.
This goes to the debate on mandatory minimum sentences that
the Committee has had repeatedly for almost as long as I have
been on the Committee, which is longer than anybody but my
friend from Michigan who is seated to my immediate left.
Let me just say that one of the more egregious mandatory
minimums that the gentleman's amendment strikes is in the case
where the offense involved an alien where the offender knew, or
had reason to believe, that the alien was engaged in terrorist
activity or intending to engage in terrorist activity. There is
a mandatory minimum of 10 years there.
I think everybody knows what their philosophical bent is on
mandatory minimums. Mr. Scott is against them. I am in favor of
them. I urge the rejection of Mr. Scott's amendment and yield
back the balance of my time.
Questions on Mr. Scott's amendment?
All those in favor, signify by saying aye. Aye. Opposed,
no. No.
The noes appear to have it. A rollcall will be ordered.
Those in favor of the Scott amendment, when your name is
called, answer aye; those opposed will answer no. And clerk
will call the roll.
The Clerk. Mr. Hyde.
[No response.]
The Clerk. Mr. Coble.
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith.
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly.
[No response.]
The Clerk. Mr. Goodlatte.
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Mr. Chabot.
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Lungren.
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Mr. Jenkins.
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Cannon.
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus.
[no response.]
The Clerk. Mr. Inglis.
Mr. Inglis. No.
The Clerk. Mr. Inglis, no.
Mr. Hostettler.
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Green.
[no response.]
The Clerk. Mr. Keller.
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Mr. Issa.
[no response.]
The Clerk. Mr. Flake.
[no response.]
The Clerk. Mr. Pence.
Mr. Pence. No.
The Clerk. Mr. Pence, no.
Mr. Forbes.
[no response.]
The Clerk. Mr. King.
Mr. King. No.
The Clerk. Mr. King, no.
Mr. Feeney.
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Mr. Franks.
Mr. Franks. No.
The Clerk. Mr. Franks, no.
Mr. Gohmert.
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no.
Mr. Conyers.
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Berman.
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye.
Mr. Boucher.
[no response.]
The Clerk. Mr. Nadler.
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye.
Mr. Scott.
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt.
[no response.]
The Clerk. Ms. Lofgren.
[no response.]
The Clerk. Ms. Jackson Lee.
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Ms. Waters.
[no response.]
The Clerk. Mr. Meehan.
[no response.]
The Clerk. Mr. Delahunt.
[no response.]
The Clerk. Mr. Wexler.
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Mr. Weiner.
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff.
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Ms. Sanchez.
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye.
Mr. Van Hollen.
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye.
Ms. Wasserman Schultz.
[no response.]
The Clerk. Mr. Chairman.
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Further Members in the Chamber wish
to cast their votes?
Gentleman from California, Mr. Gallegly.
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Chairman Sensenbrenner. Gentleman from Wisconsin, Mr.
Green.
Mr. Green. No.
The Clerk. Mr. Green, no.
Chairman Sensenbrenner. Gentleman from California, Mr.
Issa.
Mr. Issa. No.
The Clerk. Mr. Issa, No.
Chairman Sensenbrenner. Gentleman from Massachusetts, Mr.
Meehan.
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye.
Chairman Sensenbrenner. Gentleman from Arizona, Mr. Flake.
Mr. Flake. No.
The Clerk. Mr. Flake, no.
Chairman Sensenbrenner. Further Members in the Chamber wish
to cast or change their votes?
If not, the clerk will report.
Gentleman from North Carolina, Mr. Watt.
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye.
Chairman Sensenbrenner. Clerk will try again to report.
The Clerk. Mr. Chairman, there are 12 ayes and 20 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
The gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I have
an amendment at the desk.
Chairman Sensenbrenner. Clerk will report the amendment.
Ms. Jackson Lee. 100.
The Clerk. Amendment to H.R. 4437 offered by Ms. Jackson
Lee of Texas.
At the end of title II, insert the following:
Section 210. Establishment of a special task force for
coordinating and distributing information on fraudulent
immigration documents.
Ms. Jackson Lee. Mr. Chairman, I ask that the amendment be
considered as read.
Chairman Sensenbrenner. Without objection.
[The amendment follows:]
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. I thank you very much, Mr. Chairman.
Chairman Sensenbrenner. Will the gentlewoman yield?
Ms. Jackson Lee. I will yield.
Chairman Sensenbrenner. The Chair is happy to accept this
amendment. It is a constructive addition to the bill. And I
thank the gentlewoman for yielding.
Ms. Jackson Lee. I thank the gentleman.
It addresses the question of fraudulent documents and
provides a singular database and as well as provides assessment
of trends. And, with that, I yield back.
Chairman Sensenbrenner. The question is on agreement of the
amendment offered by the gentleman woman of Texas.
All those in favor, signify by saying aye. Aye. Opposed,
no. No.
The ayes appear to have it. The ayes have it. The amendment
is agreed to.
Are there further amendments?
The gentleman from Indiana, Mr. Hostettler.
Mr. Hostettler. Mr. Chairman, I have an amendment at the
desk designated number 44.
Chairman Sensenbrenner. Clerk will report the amendment.
The Clerk. Amendment to H.R. 4437 offered by Mr. Hostettler
of Indiana.
At the end of title VII, add the following new section:
Section 709. Sense of Congress.
It is the sense of Congress that there is little----
Mr. Hostettler. Mr. Chairman, I ask unanimous consent that
the amendment be considered as read.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Hostettler. Mr. Chairman, my amendment would add an
important sense of Congress to this legislation.
In a hearing that the Subcommittee on Immigration, Border
Security, and Claims held on May 4th earlier this year, we
learned that there are no jobs that Americans will not do and
that immigration--especially illegal immigration--has had a
tremendous impact on the ability of many Americans to find work
or improve their families' economic status.
Steven Camarota, a researcher with the Center for
Immigration Studies, found that, quote, by significantly
increasing the supply of unskilled workers during the recession
between 2000, 2004, immigration may be making it more difficult
for similar American workers to improve their situation end
quote.
Paul Harrington is the Associate Director of the Center for
Labor Market Studies and Professor of Economics and Education
at Northeastern University in Boston. Professor Harrington
testified at that same hearing that, quote, there is little
empirical evidence to support the notion that new immigrants
are taking large numbers of jobs that Americans do not want to
do. End quote.
On the contrary, Mr. Harrington's recent study on the
impact of immigration on the American job market concludes
that, quote, given large job losses among the Nation's teens,
20- to 24-year-olds with no 4-year degree, black males and
poorly educated native-born men, it is clear that native-born
workers have been displaced in recent years. End quote.
Before creating the guest worker program that we are
considering maybe later next year, it is imperative that we
remember that there are large numbers of unemployed Americans
who do want jobs. The argument that there are jobs Americans
just won't do is a false statement.
For example, in job categories such as construction labor,
building maintenance and food preparation, immigration added
1.1 million adult workers between 2000 and 2004. But there were
nearly 2 million unemployed adult natives in these very same
occupations in 2004. About two-thirds of the new immigrant
workers in these occupations are illegal aliens.
In the area of construction specifically, for example, 24
percent of the workers are immigrants, while there is a 12.7
percent native unemployment rate.
In the food preparation sector, 23 percent of workers are
immigrants, while there is a 9.3 percent native unemployment
rate.
In farming, fishing and forestry, 36 percent of these
occupations are comprised by immigrants, while there is an
almost 12 percent native unemployment rate.
Mr. Chairman, let's not forget these facts and figures as
we contemplate the legislation before us and that we will
consider later.
I urge my colleagues to support this amendment and yield
back the balance of my time.
[12:00 p.m.]
Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes to strike the last word.
Let me say that this is an interesting issue to debate. I
believe that many people have strong views on the subject and
there are many variations of those views on the subject of the
impact of illegal immigration on the job market and on the
unemployment rate, particularly amongst American workers. I
think that as this debate goes forward, we ought to get more
opinions and more empirical evidence on this.
I would suggest to the gentleman from Indiana that his
amendment is premature. I can give him a commitment that we
will be looking into this issue in a little bit greater detail
as time goes on and suggest that he withdraw the amendment at
the present time. And I yield to the gentleman from Indiana.
Mr. Hostettler. Mr. Chairman, I ask unanimous consent that
the amendment be withdrawn at this time.
Chairman Sensenbrenner. Without objection, so ordered. Are
there further amendments?
Mr. Berman. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from California, Mr.
Berman.
Mr. Berman. I seek recognition for purposes of seeking an
advisory opinion.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes, although he might not get an answer.
Mr. Berman. There is an interesting proposal that has been
introduced by a distinguished Member of this Committee, Mr.
Flake, along with Mr. Kolbe and Mr. Guiterrez, that provides a
comprehensive approach to this issue. If one were to take--if
one were to offer as an amendment the adjustment of the new H-
5B U.S. immigration visa program for people now in the U.S. and
the guest worker titles of that provision and offer it as an
amendment, would it in the eyes of the Chair be germane to this
bill?
Chairman Sensenbrenner. Probably not.
Mr. Berman. Why not? This is a bill that covers a lot of
different issues. Why isn't the whole INA open?
Chairman Sensenbrenner. This is a bill that deals with
border security. I have stated that we will be dealing with
issues such as employment and guest workers at a later time. I
think that we need to work a lot more on refining how we deal
with this, and I can say that I think it is probably not
germane but it definitely is not ripe. There is going to be a
lot of discussion that will be had on the whole issue of the
employment base in this country. I think, however, the border
security issue is the one that is of top priority, as well as
fixing the holes in the employment verification system
developed following the passage of the Simpson-Mazzoli Act 19
years ago.
Mr. Berman. Mr. Chairman, if I may just continue this
academic discussion a little longer. I understand if this were
simply a bill on border security; but when you--as you
indicate, this bill is about border security and holes in
employer verification from the 86 bill, there were adjustment
programs in the 86 bill, there were guest worker program
changes in the 86 bill. Once you move beyond border security to
verification, what is the basis for ruling--I don't want you to
think I accept your argument that it would not be ripe, because
one thing I feel very certain about is it would be ripe to
offer it, but whether it would be germane I think is debatable.
Why doesn't this cover so many other issues now that the whole
INA would be open?
Chairman Sensenbrenner. Well, the Chair can only rule on a
specific amendment that is offered. The Chair has also stated
that he supports a properly framed guest worker program. I
think that we have got to make sure it is properly framed lest
we go down the road of the mistakes made in the 1986 bill. I
have not ruled out philosophically a guest worker program later
on in the consideration of the entire issue of the immigration
system and how it needs to be fixed. I am just saying that I
don't think the time is ripe to be able to do it in the context
of a border security bill.
Mr. Berman. Well, but it is not just a border security
bill, it is a verification bill. The consequences of
legislating a mandatory verification system without dealing
with the 11 million people in this country and future temporary
worker needs in this country has devastating consequences. One
thing I cannot understand is how one can accept that it is
needed but it isn't needed, both at the same time.
Chairman Sensenbrenner. Well, if the gentleman will yield
further, the 11 million people who are undocumented are in this
country illegally. We have to deal with that issue and figure
out how to work through it.
Mr. Berman. I agree, and that is exactly right. The border
security issue for the most part is not about the 11 million
people now in this country except insofar as it is an
inducement for other members of their family to try to join
them. It is about if we get a verification system that ends up
disqualifying millions and millions of people now in the
workforce, what is the alternative and how are we going to deal
with the consequences of that? The two are inextricably
related.
Chairman Sensenbrenner. If the gentleman will yield
further, I don't believe that they are as inextricably related
as Siamese twins are joined, and that is why I am a believer of
the philosophy that the camel's back can only have so many
straws, and if we deal with this in one package, it will be
much more difficult to get 218 votes to pass it.
And the gentleman's time has expired. Does the gentleman
wish additional time?
Mr. Berman. No.
Chairman Sensenbrenner. Are there further amendments? Does
the gentlewoman from Texas have an amendment?
Ms. Jackson Lee. Yes. It is amendment number 186. I intend
to offer and withdraw.
The Clerk. Amendment to H.R. 4437 offered by Ms. Jackson
Lee of Texas:
Amend section 402 to read as follows: Section 402,
expansion and effective management of detention facilities. In
general, subject to the ability of appropriations----
Chairman Sensenbrenner. The gentleman from Texas reserves a
point of order. Without objection, the amendment is considered
as read and the gentlewoman from Texas is recognized for 5
minutes.
[The amendment follows:]
Ms. Jackson Lee. Thank you, Mr. Chairman. Thank you for
your kindness. As I indicated, I intend to offer and withdraw
and hope my colleagues will consider this as we move toward the
floor. The underlying bill has sections dealing with
alternative utilization of facilities for detention beds. In
that, we open the jailhouse doors, which may be a portion of a
solution for those now new detainees, including more than OTM,
and the raging numbers that will come and, of course, we
indicate that the detention is mandatory, with little
opportunity for release.
This amendment is straightforward. It provides instructions
to the Secretary of Homeland Security to design a program in
consultation with nongovernmental organizations and academic
experts in both the immigration and criminal justice fields in
order to give some criteria and guidelines for the kind of
facilities that we will be using.
Those facilities will be holding the elderly, women,
children, individuals who may be ill, maybe sexual predators.
And to be able to utilize any form of a detention facility with
no protections, no guidelines, no firewalls between those who
would prey upon those victims or those subject to being
victims, any of you who have gone to some of the commercial
centers where detainees are, you will note that they are in are
large open rooms, open bunk beds, and certainly those
facilities are under the Federal jurisdiction.
Who knows what will come up to be utilized in this new
legislation? They will not be controlled by Border Patrol or
Federal resources, they will be controlled by local authorities
or private entities.
And so, my friends, I think that if we are going to talk
about massive detaining of this wave of undocumented
individuals, then I think minimally you need criteria, you need
instructions, you need guidelines for the safety and care of
those who will be detained.
At this time, Mr. Chairman, I ask respectfully that this
amendment be withdrawn and I hope that as we move toward the
floor and this bill includes a provision of earned access or
documentation of our undocumented individuals in this country
and we look to comprehensive immigration form, a provision such
as providing guidance to the new holders of immigrants
undocumented, if that is the case, if that happens, that we be
respectful of the fact they must be safely secured, children
safely secured, women must be safely secured, the elderly and
the frail, because that would not be the approach that
Americans would want to take. With that I yield back and ask--
--
Chairman Sensenbrenner. Without objection the amendment is
withdrawn. Are there further amendments?
Ms. Sanchez. Mr. Chairman.
Chairman Sensenbrenner. Does the gentlewoman from
California have an amendment?
Ms. Sanchez. No, but I would like to strike the last word
on the underlying bill.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Sanchez. Thank you, Mr. Chairman.
I came to this hearing with every intention to mark up your
border enforcement and immigration reform bill, the Border
Protection, Antiterrorism and Illegal Immigration Control Act
of 2005, but to my surprise this bill really has nothing to do
with border enforcement or immigration reform. On the contrary,
this bill will jeopardize our national security by implementing
the worst provisions of the CLEAR Act.
Mr. Chairman, with all due respect, if your intention was
to pass the CLEAR Act, why didn't you just call this the CLEAR
Act? As we all know, efforts to pass the CLEAR Act last session
were derailed because many national security experts, law
enforcement agencies and associations, local governments,
faith-based institutions and community groups opposed it. And
why did they oppose the CLEAR Act? Because they recognized that
making police enforce immigration laws would have a detrimental
effect on community policing and public safety.
Clearly this bill uses the pretext of national security to
bootstrap unimmigrant and, quite frankly, unAmerican policies
into this bill. It merely perpetuates our failed immigration
policies. Twenty years of shortsighted enforcement on
immigration legislation has created the largest illegal
population in our Nation's history, and unfortunately H.R. 4437
is just more of the same.
Since 1996 the Government has consistently taken an
enforcement-only approach that includes many of the same flawed
policies that H.R. 4437 would expand. These include using ever
more sophisticated military-style surveillance equipment,
physical barriers, including walls, fences and highways
doubling as border barriers, and dramatically increasing the
number of Border Patrol agents.
Enforcement alone does not work. As we know, throwing more
money at our broken immigration system and putting more agents
at the border hasn't led to fewer undocumented immigrants, it
has increased that number. Enforcement only doesn't work.
From 1993 to 2004, the number of Border Patrol agents
tripled from about 4,000 to 11,000 and the amount of spending
has gone up five times, from 740 million to 3.8 billion, yet
the number of undocumented immigrants doubled from 4.5 million
to 9.3 million. Enforcement only doesn't work.
More of the same old poise will not solve our immigration
problems, it will however continue to erode the basic civil
liberties and human rights not only of migrants but of legal
immigrants and citizens as well.
Let me highlight three of the most troubling provisions of
this bill that are from the CLEAR Act. First, this bill makes
unlawful presence a crime as well as an aggravated felony under
section 203. Since State and local police can assist in the
enforcement of Federal criminal laws, this bill could lead to
an open season on anyone in this country who appears to be
foreign, and that is left up to the discretion of the enforcing
officer.
Immigrants will no longer know if it is safe to call local
police or not, because law enforcement officials could possibly
question their status. As we know, local police departments do
not want to become immigration enforcers because it silences
immigrant crime victims and witnesses to helping them solve
crimes. According to the California Police Chief's Association,
the result of this provision will set back years of community
policing efforts and attempts by law enforcement agencies to
build goodwill in the community.
This provision will make communities less safe, not more
safe. And it gets worse. There is a provision in this bill that
would permit State and local agents to use homeland security
grants for immigration enforcement activities pursuant to an
agreement with the Federal Government. This provision basically
robs Peter to pay Paul. First responders receiving homeland
security funds need every dime to prevent and respond to
emergencies. This provision raids their covers to encourage
State and local police to be immigration agents.
Congress has already cut first responder funding. The State
Homeland Security Grant Program has been cut in half, from 1.1
billion to $550 million, and the Urban Area Security Initiative
has been cut by another $120 million. For the sake of national
security, our State and local governments cannot afford further
dilution of these critical funds. This bill is far from being
pro-security and pro-enforcement. The three CLEAR Act
provisions I mentioned in this bill actually undermine
enforcement and security.
Basically we need to ask ourselves on this Committee this
question: What kind of America do we want? Do we want an
America where we have mass deportations? Do we want an America
where police officers can randomly ask people who look
``other'' to produce identification to prove their legal
status? Do we want an America where people can be detained for
life when their home country is unwilling to take them back? Do
we want an America where Americans will have to carry national
identification cards to travel, work, or just walk down the
street? I sincerely hope not. But all the things I just
mentioned are possible if we pass H.R. 4437, and for this
reason I urge my colleagues to oppose this bill.
Chairman Sensenbrenner. The time of the gentlewoman has
expired.
Ms. Sanchez. I would ask for unanimous consent for an
additional minute.
Chairman Sensenbrenner. Without objection.
Ms. Sanchez. It is in the Book of Matthew that Jesus tells
us, ``For whatsoever you do to the lowest of my brethren, you
do unto me.'' I think this is a very sad day and that America
can do better.
With my concluding comments, I would just ask for unanimous
consent to include letters from the Congressional Hispanic
Caucus, the American Jewish Committee, the Human Rights Watch,
National Council of LaRaza, who all oppose this bill, and of
150 State and local law enforcement agencies, associations and
governments who are opposed to the CLEAR Act, into the record.
I yield back my time.
[The material referred to follows:]
Mr. Gohmert. Move to strike the last word.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Gohmert, is recognized for 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman. I appreciate the
question, what kind of America do we want? Let me tell you, as
a former judge, some of the things that we dealt with and some
of the things that law enforcement dealt with. For one thing,
when you have a man that comes to your court who has been
arrested time and time and time again for driving while
intoxicated and he has never been deported because they don't
have adequate agents to do that kind of thing, one in the
entire area of East Texas, and it is made clear by the Federal
Government that local law enforcement are not allowed to take
immigration actions, it gets pretty frustrating to local law
enforcement; and the people would like a safe America, so the
people that were hit by this gentleman who is illegally in the
United States, not only harmed them, he gave my Hispanic
friends, people cast a giant shadow over all of a particular
group just because he happens to have a similar appearance, and
it is grossly unfair. But people deserve a safe America.
So when I sent the man to prison because he had harmed
people while intoxicated for the umpteenth time, and then see
him back in my court in just a matter of months, because as
soon as he got to prison finally the Federal authorities
decided to take action and they deported him, but they didn't
wait long enough at the border to watch him come back across
and come to our county so that he could hit other citizens
while intoxicated.
I said if they are going to pull him out of prison, let us
send him to treatment so maybe there be less chance. He made it
through a few months of treatment before INS picked him up and
deported him, so heaven knows who all he may have harmed after
that.
This kind of law will allow local law enforcement to assist
the Federal law enforcement in making America safer. Hispanics,
people who have come over from Mexico, they deserve not to have
illegal people who do wrong acts cast a pall over them. We have
hardworking friends and Americans who deserve to be protected,
of every race, creed, color, national origin, gender, and that
is what this bill is trying to do. When it comes to what kind
of America we want, it ought to be safer for every race, creed,
national origin or gender, and I am proud that we are actually
trying to take action to do that. I yield back.
Chairman Sensenbrenner. Are there further amendments?
Ms. Lofgren. Mr. Chairman.
Chairman Sensenbrenner. Do you have an amendment?
Ms. Lofgren. I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. I think we are winding down, it appears to me,
but there are a couple of other items in the underlying bill
that I really feel need to be discussed and brought to the
attention of Members and the public generally. And I am going
to mention two of them: section 407, the expansion of the
expedited removal provision; as well as section 805 which is, I
think, a completely unworkable proposal relative to reviews of
BIA decisions.
First, on the expedited removal provision, I think it is
important to note that expedited removal is an abbreviated
process that basically is no process it all. It is an officer
who is playing an immigration function who essentially acts as
prosecutor, judge, jury, the entire decision maker. There is no
review, there is no due process whatsoever.
Now, an argument can be made that that is an appropriate
process at the border and we could have a discussion about
that. If you are in the middle of the desert and a group of
people is walking across, certain assumptions can be made about
that when people do not present themselves at a port of entry
without documentation. But what the bill proposes to do is to
treat that border process, to expand it 100 miles from the
border.
Now, I am from California, northern California, which is
more than 100 miles from the southern land border, but in the
Homeland Security Committee we had a substantial discussion
about what in California is 100 miles from the border, and it
includes Disneyland. Disneyland is not the border; it is not
the border, and the issue. And my colleague Mr. Lungren and I
engaged in a dialogue about what our concern was about the due
process of illegal aliens. I think it is important to note we
are concerned about the due process of rights of American
citizens, American citizens and legal residents of the United
States; because there is no process to protect the rights of
Americans who could be perceived by an individual as not
lawfully present.
And so I guarantee you if this becomes law, and I don't
think it will, ultimately we will deport Americans and there
will be no recourse for those Americans. We will deport legal
residents and it will have a deleterious impact on our country
and it certainly does not mete what we have come to know as
fortunate people who are Americans the due process that is
required in the American Constitution.
Now to section 805. This is truly an extraordinary
provision. This section sets up a new system in which a single
court of appeals judge must prereview the case to certify
whether it should be reviewed in Federal court under the
standard of, quote, ``substantial showing that the petition for
review is likely to be granted,'' unquote. If the prereview
judge fails to issue a certificate of reviewability, the
petition for review is deemed denied. No explanation is
required. The decision is completely unreviewable.
Now, we know and we have had discussions about the Ninth
Circuit and how overwhelmed they are. I have met with the
justices of the Ninth Circuit and they have explained to me and
other members of the California delegation that part of the
problem they are dealing with is the massive inflow of
immigration appeals. And the reason why those appeals are
coming is that the Administration basically destroyed the
Bureau of Immigration Appeals. And we have immigration law
judges that are issuing one-sentence decisions. They are not
being appropriately reviewed. We have got BIA judges doing one-
sentence decisions, and the process has broken down; but those
cases don't go away, they simply show up in the court of
appeals which has jurisdiction.
I think that to think, even with our limited habeas
provisions in here, that we will avoid burdening the Federal
courts by section 805 is a big mistake. There is a habeas, and
I think it is unfortunate that all habeas jurisdiction would be
lodged in the District of Columbia, no matter where the case
arises, but I can guarantee you that that will be where these
cases flow to. And if we have got a sludge of cases in the
Ninth Circuit, we are going to see that same thing occur in the
District of Columbia.
Chairman Sensenbrenner. The time of the gentlewoman has
expired. Are there further amendments?
Mr. Berman. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from California seek recognition?
Mr. Berman. I have an amendment at the desk, Mr. Chairman.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment to H.R. 4437 offered by Mr. Berman:
At the end, insert the following and make technical and
conforming changes, including changing title and section
numbers, as necessary.
Title III----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read and the gentleman from California will be
recognized for 5 minutes.
[The amendment follows:]
Mr. Berman. Yes, Mr. Chairman. This is the Kolbe-Flake--two
titles of the Kolbe-Flake legislation, H.R. 2330 dealing with
Titles III and VII. Title III is the essential worker visa
program which provides for the admission of essential workers
based on market-based numerical limitations with provisions for
employer obligations with respect to these workers, protection
of workers, pot righting for their adjustment to lawful
permanent resident status, and creating a willing worker/
willing employer electronic job registry.
Title VII creates the H-5B nonimmigrants visa program
dealing with U.S.--workers in the U.S. not now in status, to
give them a process to adjust status, both come forward,
provide their true identities, be fingerprinted, have
background checks, and then allow them temporary visas to work
and condition their status on their continuing to work; and if
at such time as they complete their obligations with respect to
payment of fines and their obligations to work, makes them
eligible for adjustment to permanent resident status.
This amendment fills the glaring hole and the fundamental
deficiency in the bill before us by truly making what is an
unworkable program into a meaningful and comprehensive solution
with some very tough border enforcement provisions, a mandatory
verification provision, and a provision by which the 11 million
people in this country whose presence keeps the bill, without
this provision, from having any positive impacts. It provides
that which President Bush has spoken about, which a number of
key Senators have, and which I think almost every objective
observer of the crisis we are in thinks is essential to its
conclusion. I ask for the Committee's adoption of Mr. Flake's
negotiated language.
Mr. Flake. Mr. Chairman.
Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes in opposition to the amendment.
The Chair knew that the gentleman from California couldn't
resist his impulses to offer this amendment. The Chair tried to
advise the gentleman from California in our earlier colloquy
that it was a bad idea to offer this amendment because it is
premature and things need to be worked out.
This amendment should be rejected if only for one reason.
Section 306 grants amnesty to 11 million illegal aliens. The
amendment turns a border security enforcement and employer
verification bill into a mass amnesty bill. Amnesty did not
work in the Simpson-Mazzoli Act in 1986, it won't work again in
this bill. Amnesty only encourages more people to come to the
United States illegally, whether it is illegal entry under the
fence, or a legal entry, and then overstaying a visa.
I think that the gentleman offering this amendment, if he
persists in it, is going to set back the efforts to get a
reasonable guest worker program that is politically acceptable
to the Congress and the American public a huge amount. I would
urge a strong ``no'' vote against this amendment and yield back
the balance of my time.
Mr. Berman. Would the gentleman yield?
Chairman Sensenbrenner. Of course.
Mr. Berman. The word ``amnesty'' is an interesting one. It
is used to oppose things that people don't like. I am curious,
since the gentleman is on record as envisioning a context in
which at some point in the future we will need a guest worker
program, to the extent that such a program allowed people who
entered this country illegally to participate in the program.
Is that program that the gentleman envisions--and understanding
he hasn't worked out the specifics yet--is that an amnesty
program?
Chairman Sensenbrenner. The devil is in the details.
Mr. Berman. Yes.
Chairman Sensenbrenner. You have got the details in this
one, and it is an amnesty program. It is called adjustment of
status. But adjustment of status for people who are illegally
in the United States is amnesty. And if it quacks like amnesty,
it adjusts like amnesty, it is amnesty.
Mr. Berman. If the gentleman would continue to yield. I
would like to tell him a conversation I had with the gentleman
from Colorado, Mr. Tancredo, a couple of years ago.
Chairman Sensenbrenner. If the gentleman will yield back,
that should have been enlightening. So tell us.
Mr. Berman. The gentleman from Colorado liked to use the
term ``amnesty.'' So I did it in the context of a piece of
legislation Mr. Cannon knows well, worked with me on, called Ag
Jobs. And he was saying that is amnesty. John Cornyn of Texas
has proposed an amnesty, everybody is proposing amnesty,
according to Mr. Tancredo.
I said in the context of Ag Jobs, Tom, if you had a choice,
you had entered the country illegally, and you were told you
had a choice of two different kinds of punishment, 30 days in
county jail or working for 360 days in agriculture, harvesting
crops, which one would you take? Because Mr. Tancredo is an
honest and direct person, he said I would take 30 days in
county jail over 360 days picking crops in agriculture.
I suggest to you anything which is conditioned on future
work, that requires fines to pay off because of the original
illegal entry and creates a series of conditions, including
ensuring that you had committed no other illegal acts while you
were in this country, that you are checked through on any watch
list that exists, that you come out, that you become
fingerprinted, you give your true identity, I would suggest
that is not within my concept of amnesty; that is a conditional
adjustment based on not simply what has happened in the past,
but things you have to do in the future in order to make the
conditions of that adjustment of status.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Issa. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa.
Mr. Issa. Thank you, Mr. Chairman, and I too rise in strong
opposition to this amendment. And I would like to clarify two
things. First of all, President Bush has made it clear that he
does not want an amnesty, and this falls well within the
definition of amnesty by President Bush.
Having said that, I would like to respond to my colleague
from California by saying that we can define very clearly for
you what is amnesty, and it is fairly straightforward. Whether
or not we have a guest worker program that uses existing
workers in this country who are here out of status illegally,
or we bring them in, if we are going to bring them in and tell
them you can get a green card and become a citizen, then it is
not a guest worker program. The definition of a guest worker
program must be one in which you are a temporary guest and you
go home. If you take a guest worker program and convert it to
an immigration program, then by definition it is no longer just
a guest worker program.
So I would say to the gentleman, no matter where the source
of those workers, if you want to call something a guest worker
program, you genuinely have to recognize that it cannot mix and
match immigration.
Just one more thing.
Mr. Berman. Will the gentleman yield?
Mr. Issa. One more thing before I yield. I am not somebody
who believes in pure democracy. I have often said people of my
district send me here to use my best judgment. However, in my
district I did a poll of 8,788 people, so it was a very
comprehensive survey, and I did this with the Government money
just to find out some important points of where people stood.
And on the question of supporting requiring employers to
use the employment eligibility verification system, I had 81.5
percent of those 8,000 or so respondents who said yes, they
have to do it. So that, as one of the underlying underpinnings
of this bill, is clearly something that crosses party lines,
crosses economic lines. I probably had illegals who said they
should be doing it, it is so many people.
Additionally, the question of amnesty is opposed by 65
percent. And when asked would you support an adjustment, yes, I
had 42 percent, but only for--on the question asked as though
it was an adjustment to work here, not to immigrate.
I would ask unanimous consent that the survey be allowed to
be placed in the record and I would yield to the gentleman
without objection.
Chairman Sensenbrenner. Without objection.
[The material referred to follows:]
Mr. Berman. I thank the gentleman for yielding. So in the
gentleman's very interesting and flexible definition of
amnesty, if you have entered this country illegally and worked
in a legal status, and then you go home and apply for the guest
worker program and come into this country, that is okay.
Mr. Issa. Reclaiming my time. To answer the gentleman's
question, the amendment that we are faced with that I am
speaking on is not just a guest worker program but, in fact, an
adjustment of status to permanent residents--hold on--allowing
for citizenship. That is what is clearly the definition of
amnesty. That is clearly what the voters in my district and,
for that matter, the voters in your district oppose. We can
have a civilized discussion on a guest worker program. I look
forward to that, I will support that. However, today what we
are doing is taking a broken system both at the border and
interior and trying to fix it. This is not only not germane but
it is clearly an amnesty, and I would yield to the gentleman.
Mr. Berman. There is nothing in any dictionary definition
that describes amnesty as if it leads to permanent citizenship;
it is okay. Amnesty is about forgiving people for their illegal
acts.
Mr. Issa. Reclaiming my time. The gentleman from California
did a good job of explaining Mr. Tancredo's position that
everything is amnesty. This Committee, I believe on a
bipartisan basis, is willing to set aside one strict definition
and find a way to fix a broken--or absence of a sufficient
guest worker program. However, clearly the amendment offered
here today has fatal flaws at a Presidential level, at a House
level, at a Senate level, and certainly with the Committee
Chairman, and that is the reason I am urging people to strongly
oppose this. And I yield back.
Chairman Sensenbrenner. The gentleman from New York, Mr.
Weiner.
Mr. Weiner. Let me be sure I understand the opposition to
the Flake bill, which is what we are discussing here. This is
the Republican Flake approach to this problem. It apparently is
amnesty. You apparently believe the Flake approach represents
amnesty and it should be rejected, and you just articulated
that this is a position that has been redacted by this House. I
am not sure the gentleman from Arizona would agree with that,
but let us assume for a moment that we accept that premise.
I imagine next we will able to consider the McCain
approach. Would that be amnesty? Would that be something that
has universally been rejected? Well, I have heard President
Bush say positive things about the McCain approach. Perhaps
there is an Issa approach, perhaps a Sensenbrenner approach. We
are having a markup now of immigration legislation which has
been described as solving the problems of immigration laws.
Let's go at it. If you believe that the Flake Republican
approach, which we are considering now, is not the correct
approach----
Mr. Issa. Would the gentleman yield?
Mr. Weiner. Certainly.
Mr. Issa. I apologize, but we are not really having an
immigration markup.
Mr. Weiner. I reclaim my time. You have finally struck upon
a chord of truth. We are not having an immigration markup
today. I am glad somebody has conceded that on that side of the
aisle. We are trying. It has been explained that we were, so we
are going to try now. And now you have the Republican Flake
amendment in front of you, his bill that we are going to have a
chance now--Mr. Flake was out of the room, so let me--I don't
know if you heard it. This may comes as news to you, but it has
been described, Flake, as dead on arrival; doesn't represent
the view of the House, the view of the President, the view of
the country, because it is amnesty.
Here it is. We believe that the Flake amendment should be
debated and we are doing it now. We have also--we also perhaps
have heard that the President doesn't support the Flake
approach. I have read the President, who doesn't have a bill,
by the way, prefers the McCain Republican approach to this
problem. We have heard Mr. Issa say he opposes the Tancredo
Republican approach to this problem. Maybe it is about time we
decide what the Republican governing position is on this
matter. We have a moment here to do it. We have the Flake
amendment before us. If you think it should be amended and
voted down, I happen to agree with you. If you think it should
be amended and voted down, bring it on ``Chicky,'' let's do it.
If you think the McCain, which I think we will offer next,
should be amended and voted down, that is fine. But you are
running out of the various approaches that the Republicans call
their immigration policy.
Mr. Issa. Would the gentleman yield? Since you have invoked
my name ``Chicky,'' I just wanted to quickly respond. When I
said----
Chairman Sensenbrenner. The Members will conduct their
debate in a parliamentarily decorous manner.
Mr. Issa. Yes, Mr. Chairman.
To respond to your statement, it is to amend the
Immigration Nationality Act to strengthen enforcement of
immigration laws and enhance border security, and that is the
reason I am saying it is not about immigration. Hopefully I am
consistent.
Mr. Weiner. Let me reclaim my time. You can walk backwards
out of a gaffe as long as you want, but I want to talk about
what we are doing here. What we are doing here is trying to
sort out what the Republican policy is on immigration. Now,
obviously, there is a widespread schizophrenia problem going on
even between you and the gentleman to your right. You have
described Mr. Flake's bill as essentially not representing the
House, not representing the President. Well, let's find that
out. The only way is by marking it up and voting on it.
And so right there--we are in a strange position. We are
waiting to see what the governing party wants to do on this
very important issue that now six people have referred to as we
desperately need to revisit at some point. Let's do it.
Mr. Berman. Will the gentleman yield?
Mr. Weiner. Certainly I would.
Mr. Berman. Isn't this the party that keeps telling the
minority party, what is your proposal, where is your
alternative? They are the majority party. They know that the
bill they are passing can never become law because of the
devastating impacts on the economy. At least half of them have
already acknowledged here we need a guest worker program. But
do they have one in this bill? No.
Mr. Weiner. If I could just reclaim my time. But at least
maybe we can sort out at least in that little corner of the
lower row of the Republican Party here, exactly what the view
is; and a good way is let's have a vote. Let's resoundingly
reject, as Mr. Issa said, the Flake approach.
Mr. Issa. Will the gentleman further yield?
Mr. Weiner. I have now yielded twice and gotten nothing
fruitful from it.
Mr. Issa. I was going to give you something fruitful. I
look forward to working with Mr. Tancredo and Mr. Flake and
myself to find compromises.
Chairman Sensenbrenner. The time of the gentleman from New
York has expired.
Mr. Weiner. Request unanimous consent for 1 additional
minute.
Chairman Sensenbrenner. Without objection.
Mr. Weiner. I am pleased to hear, and I am sure the Nation
breathes a sigh of relief to know you are willing to work out
the Republican agenda on immigration. We are here at the House
Judiciary Committee dealing with legislation on immigration.
What time better than now? The gentleman whose amendment is
being considered right now is just right now right next to you.
You can even introduce yourself to him.
You have characterized his legislation in the most derisive
way: it is amnesty. It is not the policy of this country and
never will be. The President doesn't support it.
Here it is. We are having a markup, we have a chance. We
are going to, by hook or crook, determine what the Republican
view is on immigration reform. You say you want to do it, let's
go ahead and do it.
Chairman Sensenbrenner. The gentleman's time has once again
expired.
Mr. Flake. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Arizona has come
to life. For what purpose--the gentleman is recognized for 5
minutes.
Mr. Flake. I appreciate the Chairman giving me this chance
to talk about my amendment, my bill. Let me just say that when
I was elected 5 years ago, the first thing I said while I was
campaigning and said consistently since I have been here, if we
want to secure the border, we have to have a legal channel for
workers to come and then return home. I believed that then, I
believe that now.
I am not in favor of amnesty, I have never proposed
amnesty. I agree with Mr. Berman's definition. An amnesty is an
unconditional pardon for a breach of law. I am not offering
that. Under our legislation, if you are here illegally and wish
to stay on a temporary basis, you pay a fine of $1,000 and you
go to the back of the line. And amnesty is what we did in 1986
when we said, if you can prove you have been here for 5 years,
you have got a shortcut to a green card.
That is not what we are proposing here. I would submit
those who are so quick to call our bill amnesty and to say that
anything less than enforcing the current law is amnesty might
want to consider that the current law means that we ought to
round everybody up, ship them home, and subject them to either
a 3- or 10-year bar. Unless you are willing to offer that
legislation and the funding to do it, you are offering amnesty.
That is the bottom line.
So when these terms are thrown around like that, think of
what you are saying. The current law calls for removal,
deportation, and a bar from reentry. For those who say, well,
let's just pretend that they are not here, let's keep them in
the shadows, that is more of an amnesty than anything in my
view. To pretend they are not here and let's say I will count
to 100 and if you go back to your home country and apply from
there, then we are not going to give you amnesty, that is
simply wrong and we shouldn't be engaging in that charade.
I am committed to our approach. I think that if we want a
secure border, you have to have a legal channel for workers to
come and go and to recognize the best thing we can do for
national security, for the economy, and for humanitarian
reasons is to bring those who are in the shadows out and not
pretend that they don't exist.
But now I also believe, as Ecclesiastes said in the Bible,
there's a time and a place under everything under heaven. Now
is not the time, unfortunately, for our bill to be debated in
the Judiciary Committee. I would love to see it pass, and I
believe that we will. We are committed to having a guest worker
plan. I don't often say this, but thank goodness for the
Senate. I don't think I have ever said that.
Mr. Weiner. Will the gentleman yield?
Mr. Chabot. Take those words down.
Mr. Flake. I would encourage the gentleman from
California----
Chairman Sensenbrenner. Was that a serious demand that the
gentleman's words be taken down?
Mr. Chabot. I will withdraw.
Mr. Flake. I would urge the gentleman from California if he
cares about moving the ball ahead, I would love to do it
comprehensively. I am not in favor of doing this now. I would
rather see the whole thing done, but that is not where it is
done. I am smart enough to count votes. And I would like to see
the ball move ahead and finally to address the immigration
problem that we have.
With that, I would encourage the Member to withdraw his
amendment.
Mr. Berman. May I respond?
Chairman Sensenbrenner. The gentleman from Arizona will
have to yield.
Mr. Flake. I will yield 30 seconds to the gentleman from
California.
Mr. Berman. Thirty? Sixty. I am not going to withdraw it
and here's why. Because the speaker has said, a number of
people here have said, we have to have this. I started out the
comments in this entire discussion by talking about stupid. I
would be embarrassed to say I know this bill is missing
something, but we are not going to go through the effort to try
and resolve and fill in what is missing in the hopes that the
Senate would do the right thing.
If I thought bringing this to a vote now would hurt what
your ultimate goal is, I wouldn't bring it to a vote. It won't.
It will just show the vacuous nature of what the majority in
the House is trying to do. People who know this is a wrong
approach shouldn't be voting for this bill. People who want the
tough border enforcement and the verification and the
adjustment and guest worker features as part of a comprehensive
approach, like the President has said, like Senator Cornyn has
said, like Senator McCain has said, Senator Kyl has said, they
should not be voting for this----
Chairman Sensenbrenner. The time of the gentleman from
Arizona has expired.
Mr. Delahunt. Mr. Chairman. Mr. Delahunt from
Massachusetts.
Chairman Sensenbrenner. Oh, yes. The gentleman is
recognized for 5 minutes.
Mr. Delahunt. You will be happy to know, Mr. Chairman, that
I am going to yield my time to the gentleman from New York, Mr.
Weiner.
Mr. Weiner. I thank the gentleman from Massachusetts and I
thank the gentleman from Arizona for making that fervent appeal
to his colleague from California. Unfortunately, the one he
made the appeal to was the wrong gentleman from California.
You did a very good job of rebutting what Mr. Issa had to
say. You gave an articulate explanation about the importance of
the issue that you believe in. I have got news for you, Mr.
Flake; you don't have the votes there by any stretch. You
probably don't have a lot of votes here, but at least we want
to have a debate about this issue. But if you believe for a
moment, for a moment, that this issue is going to somehow
become more appealing to the leadership of this Committee or
the leadership of the House as it gets closer to the election,
or as months go by, you are wrong. This is it. This is our
moment that we have in this Committee to deal with these
important matters, and it is also a moment that you have to
persuade your colleagues to do it.
This notion that somehow things will get better if we do
the political thing, the partisan thing now, or the easy thing
or the thing that sells the best on TV now, and we will do the
difficult complex things later on, it is myth.
The President's bill--have you seen the President's bill?
There is no President's bill. He has been talking about it for
some time. He recently gave a round of speeches to perhaps try
to divert from other subjects. He has no bill. I think you
deserve credit for stepping up and saying I have some ideas,
ideas that maybe I don't like, but let's do it and let's do it
now.
The way that your bill is being dismissed out of hand as
not even worthy of consideration because it has amnesty all
over it, I think that deserves to be debated as well. You had a
completely different explanation of your view of amnesty than
Mr. Issa's view of amnesty.
If not now, when? I think it is important to know that this
is in your control. The Republicans control the House, they
control the Senate, they control the White House, they control
the judiciary. This is the moment. Do you think it is going to
get better in years to come? This is a moment of national
attention. The President deserves credit for bringing that
attention. This is a moment that this Committee has said,
before we break, let's do something about immigration reform.
Now you have a chance to persuade people to vote for your
amendment, let's get to it. Let's talk about the things that we
need to do to deal with this economy, to deal with this ongoing
complex problem.
You are going to look back, I fear, I say to the gentleman
from Arizona, look back and say, boy, that was it, that was the
Judiciary Committee of the House of Representatives considering
the tough issues of immigration that plague the people of
Arizona, that plague this economy, and, frankly, weigh on us as
a moral matter in this country. And you are going to realize
that day in early December, that was your last crack at it?
Well, I think we have another choice. The other choice is
to take your amendment, consider it, figure out ways we can
reach consensus. I daresay there are very strong views held by
your side, there are others over here as well, and let's have
something good come out of this.
If you don't like Flake, I say to Mr. Issa, go ahead, bring
something else up. If you want to amend Flake, if you want to
take out the part about amnesty, let's have a debate. But this
is the burden of leadership. You guys run the House of
Representatives, you run the Congress, your President has stood
up and said do something about the vexing issues of immigration
in this country. Well, this is the moment. The Judiciary
Committee in whose jurisdiction this piece of legislation that
has been ruled previously in this debate to be germane, let's
go ahead and do it. And we have the foremost spokesman in the
House, Mr. Flake's amendment before us. You don't want this
withdrawn, Mr. Flake; you want this passed. You don't want your
bill withdrawn, you want us to vote yes on it. You are on TV,
writing articles, debating every single day. You want a ``yes''
vote.
I want Mr. Flake to stand up and say I want a ``yes'' vote
on Mr. Flake. I can't even get Mr. Flake to say he wants a yes.
Mr. Issa said no, Mr. Sensenbrenner says he wants a ``no'' vote
on Flake. You don't want Flake withdrawn, you want the
Republican bill on the immigration voted yes, don't you? Isn't
that why you are here? Isn't that why your constituents sent
you here, to get a ``yes'' vote on Flake bills and amendments?
This is your moment. You have a Flake bill, a Flake
amendment right now in front of us at this moment. Now you want
to withdraw Flake. You don't. You want ``yes'' on Flake. And I
don't understand; if we can't get Flake to ask for a ``yes'' on
Flake, who can we ask?
So we have already heard Mr. Issa say ``no'' on Flake. We
have heard Sensenbrenner say ``no'' on Flake. We have heard
Berman say, ``You are going to have a vote on Flake.'' I hope
at least Flake votes ``yes'' on Flake, because you may be the
only one left here that will. And I yield back.
Mr. Gohmert. Will the gentleman yield? Just for clarity,
when you use the words ``Flake bill,'' are you using ``Flake''
as an adjective or a proper noun?
Chairman Sensenbrenner. And with that, the time of the
gentleman has now expired. The question is on the Berman
amendment. Those in favor will say aye.
Opposed to the Berman amendment will say no.
The noes appear to have to have it.
Mr. Berman. Mr. Chairman, on that we would like a rollcall
vote.
Chairman Sensenbrenner. rollcall will be ordered. Those in
favor of the Berman amendment--and that is not the Flake
amendment, but the Berman amendment--those in favor will
signify by saying aye, those opposed, no; and the clerk will
call the roll.
The Clerk. Mr. Hyde.
Mr. Hyde. No.
The Clerk. Mr. Hyde, no.
Mr. Coble.
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith.
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly.
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Mr. Goodlatte.
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Mr. Chabot.
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Lungren.
Mr. Lungren. No on Berman, yes on Flake.
The Clerk. Mr. Lungren, no.
Mr. Jenkins.
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Cannon.
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus.
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Mr. Inglis.
Mr. Inglis. No.
The Clerk. Mr. Inglis, no.
Mr. Hostettler.
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Green.
Mr. Green. No.
The Clerk. Mr. Green, no.
Mr. Keller.
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Mr. Issa.
Mr. Issa. I am with Flake. No on Berman.
The Clerk. Mr. Issa, no.
Mr. Flake.
Mr. Flake. Present.
The Clerk. Mr. Flake, present.
Mr. Pence.
Mr. Pence. No.
The Clerk. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no.
Mr. Forbes.
Mr. Forbes. No.
The Clerk. Mr. Forbes, no.
Mr. King.
Mr. King. No.
The Clerk. Mr. King, no.
Mr. Feeney.
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Mr. Franks.
Mr. Franks. No.
The Clerk. Mr. Franks, no.
Mr. Gohmert.
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no.
Mr. Conyers.
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Berman.
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye.
Mr. Boucher.
[No response.]
The Clerk. Mr. Nadler.
[No response.]
The Clerk. Mr. Scott.
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt.
[No response.]
The Clerk. Ms. Lofgren.
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye.
Ms. Jackson Lee.
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Ms. Waters.
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan.
[No response.]
The Clerk. Mr. Delahunt.
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye.
Mr. Wexler.
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Mr. Weiner.
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff.
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Ms. Sanchez.
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye.
Mr. Van Hollen.
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye.
Ms. Wasserman Schultz.
[No response.]
Mr. Chairman.
Chairman Sensenbrenner. No.
Further Members who wish to cast or change their votes?
The gentleman from New York, Mr. Nadler.
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes?
If not, the clerk will report.
The Clerk. Mr. Chairman, there are 13 ayes, 22 nays and one
present.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments.
Does the gentleman from Maryland have an amendment?
Mr. Van Hollen. I do not, but I move to strike the last
word.
Chairman Sensenbrenner. Gentleman is recognized for 5
minutes.
Mr. Van Hollen. I thank you, Mr. Chairman. As I take it we
are wrapping up, I just want to say a few words having attended
this entire markup.
First, I would like to say I think all of us agree we need
to address the border security problems. I think you can find
bipartisan support for that issue. We have a porous border; we
need to do more about it, and I think there are actually many
provisions in this bill that address those issues.
There are also--as my colleagues have pointed out; I am not
going to go in detail--many provisions in this bill that I
think take us very much in the wrong direction. And, frankly,
having just received this bill about 48 hours ago, I don't
think there is--there are very few Members of this Committee
who have had a chance to read this entire thing. And I think it
is inappropriate to be moving forward so rapidly on a bill that
we have had no opportunity to review.
Contrast that to Mr. Flake's bill, which has been before
this body for a long time.
I think all of us had an opportunity to review Mr. Flake's
proposal and other proposals, and the glaring hole in this
whole debate in this Committee is the fact that we are not
dealing with this in a comprehensive manner.
Mr. Flake mentioned the fact that sometimes he wished, you
know, God bless the Senate from time to time. And
unfortunately, from my perspective, that is not only true on
this issue but on many other issues. But it is very true on
this issue.
Because you know, Mr. Flake--and I have great respect for
you and your approach to issue--you know that this body over
here is just taking up this particular piece of it because
there is not a consensus on your side of the aisle to address
this other very important piece.
And you have also stated and the President has stated, if
we don't deal comprehensively with this issue, we are not going
to be able to address the issue of immigration problems
generally.
This train is leaving the station in the House. And I think
it is a sad day when the House and everybody on this Committee,
the great House Judiciary Committee, decides to abdicate its
responsibility on a different issue and punt it over to the
Senate and hope one day we are going to go to conference with
the Senate that does its job, and we will have only dealt with
half of the problem over here.
I think the American people should be ashamed of the fact
that we have refused to address this issue over here in the way
all us know it should be addressed.
And finally, to the extent people are proposing this is
some kind of issue that deals with homeland security, yes, of
course, there is a homeland security component to the border.
But the 9/11 Commission just issued its final report. They
issued a series of Ds and Fs with respect to this Congress'
follow-through and their recommendations.
None of those Ds and Fs related to any provision in this
bill that we are dealing with today. They dealt with a whole
range of other issues that are much more urgent on the national
security agenda. And, again, not one of the Ds and Fs related
to something that is being addressed in this bill.
To present this to the American people as if this addresses
our national security and homeland security issues, when the
Commission, on a bipartisan basis, that was set up to look at
this issue, has not even put this on their report card as
something that should be addressed, I think is a scandal and
misleads the American public.
This is a very important issue. It should be dealt with as
you, Mr. Flake, and others have tried to deal with it in a
thoughtful manner. This was our opportunity today to address it
in a thoughtful manner, and it is unfortunate that we are not
doing so. And for that reason I am going to be voting ``no'' on
final passage.
Chairman Sensenbrenner. The Chair will remind Members that
they can only be recognized once on a single question. The
question is on the underlying base bill, and Members who have
been recognized on that question heretofore must ask unanimous
consent to speak a second time.
Ms. Jackson Lee. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Ms. Jackson Lee. It is offered and withdrawn.
The Clerk. Mr. Chairman, I have two amendments.
Ms. Jackson Lee. It is amendment No. 189.
[The amendment follows:]
Chairman Sensenbrenner. Clerk will report the amendment.
The Clerk. Amendment to H.R. 4377, offered by Ms. Jackson-
Lee of Texas. In section 401(c) add at the end of the following
new paragraph: (3), Unaccompanied alien child--The mandatory
detention requirements in subsection----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentlewoman will be recognized for 5
minutes.
Ms. Jackson Lee. I thank the distinguished gentleman very
much.
The previous discussion, I felt fully comfortable in
embracing Mr. Berman/Mr. Flake's amendment because frankly it,
in essence, put at the very pinnacle of this discussion the
reality of what we have to confront.
And I guess my question to Mr. Flake, as I discussed my
amendment, is, no matter how we move through this process, and
whether we move to the Senate, we will have to confront the
issue of the Republicans redefining ``amnesty.'' And to Mr.
Issa's poll, if you malign, stigmatize and demonize a structure
that will allow the regularity or making more regular the
immigration system, you are going to get polling of 100
percent, a poll to any form of regulation.
And so I would ask Mr. Flake, what is his intent to even
convince the Senate? Because he well knows my good friend and
esteemed Senator in Texas and his Senator in Arizona intend to
put forward a guest worker program that sends 11 million people
back to their respective countries. Very unrealistic.
And so this debate should have occurred not only today, but
it should have occurred in regular order in the Subcommittee on
Immigration, and it did not occur.
Also, it did not address, if you will, the pulling of
migrant workers to the United States because of their negative
economic posture in the country where they come from. It has no
provisions to prevent the 11 million migrant workers who are in
the shadows of this immigration system to come out of the
shadow.
What is Mr. Flake's position on arguing that amnesty has
been demonized? In fact, ``amnesty'' now has been equated to
``terror.'' You will never get anything passed in the Senate
because unless you break the shackles of the definition of what
``amnesty'' means--and I would ask Mr. Flake whether he intends
to do that.
I have had legislation, as many others have had, H.R. 2092,
and I intend respectively to offer those amendments on the
floor that realistically look at earned access to legalization,
which should be a real partner to the guest worker program.
Because what it addresses is the question of putting criteria
on undocumented individuals, no criminal background, community
service, to get them in line. That speaks to security. That is
what the 9/11 Commission was speaking about, that we are not
secure; we don't know who is in this country.
The amendment that is before us speaks to, I think
unfortunately, an indictment in this bill. For the first time
in history, we will have mandatory detainment for children. My
amendment attempted to correct that.
I hope my colleagues will look at this amendment when we go
to the floor. Because I asked the question before, what is the
criteria for all of the alternative detainment centers that we
expect to use on this bill? Will we be using barns? Will we be
using people's homes? Will there be any legitimate criteria to
protect the most vulnerable? And because we are detaining
children mandatorily under this bill, it seems to me we have
great concern.
And so, Mr. Flake, I wish you had taken the opportunity to
defend this concept of earned access to legalization. In your
instance, it is the guest worker program. And I wish you had
defended, if you will, the reality of your provisions, because
you tell me whether or not you expect to deport 11 million.
And might I say that we have utilized the basic premise of
the debate on immigrants coming from the southern border. There
are South Asian immigrants. There are immigrants from the
Mideast. There are immigrants from Ireland, from Poland. Poland
is outraged that they have been one of our strongest allies in
the war on terror and we won't open up the doors on the visa
waiver program.
I will be happy to yield in just a moment, Mr. Flake.
Mr. Flake. Thank you.
Ms. Jackson Lee. The real question of this debate today is
one we should have premised and started in the Subcommittee of
jurisdiction.
Secondarily, I don't know how we leave this room speaking
only of border security and labeling any form of regularizing
the nondocumented individuals, not putting them in front of the
legal line individuals, but recognizing their presence here,
their ownership of property, and we demonize it by either
suggesting ``amnesty'' equals to ``terror'' or amnesty is
unacceptable.
Then, Mr. Flake, your bill will not pass in the Senate,
either. I yield to you for a moment.
Mr. Flake. Thank you for yielding the last 15 seconds, I
think.
Ms. Jackson Lee. Just about. And I reclaim the 10.
Mr. Flake. I mentioned that we need a comprehensive
approach. But part of the problem with the approach that was
just offered by Mr. Berman is that it only offers two sections
of our bill. There are other sections of our bill that need to
be offered, debated and passed. And I would argue to pass the
whole thing.
The problem is, part of the reason there isn't an amnesty
to do what we are doing is because we say, if you are going
through the legal, orderly process in your home country----
Ms. Jackson Lee. I ask for an additional minute.
Chairman Sensenbrenner. Without objection.
Mr. Flake. If you are going through the legal, orderly
process in your home country, you won't be placed in line in
back of these who are here illegally now. So another section of
our bill deals with backlog reduction, for example.
That is why you need a comprehensive approach, not just the
two sections that were offered.
There was a clever way to do it, and I am glad the debate
was had. And I am grateful to Mr. Berman for speaking up.
Mr. Berman. Would you like me to offer the bill?
Ms. Jackson Lee. Let me just say to you, I think you would
have had a friendly response if you had offered to amend Mr.
Berman's----
Chairman Sensenbrenner. The time of the gentlewoman has
once again expired.
Ms. Jackson Lee. My amendment----
Chairman Sensenbrenner. The time of the gentlewoman has
expired.
Ms. Jackson Lee. I ask to withdraw my amendment, Mr.
Chairman.
Chairman Sensenbrenner. Without objection, the amendment is
withdrawn.
Are there further amendments?
Mr. King. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from Iowa seek recognition?
Mr. King. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 4437 offered by Mr. King of
Iowa. In section 247--excuse me, 274A(b)(7)(F)(ii), of the
Immigration and Nationality Act, as added by section 701(a) of
the bill, insert [page 133, line 15] ``within the time period
specified in subparagraphs (B) and (C),'' after
``investigation.''
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Smith, reserves a point of order.
The gentleman from Iowa is recognized for 5 minutes.
Mr. King. Thank you Mr. Chairman.
My amendment addresses, I will say, a hole that is created
by the bill. The bill requires the employers to use the
employment verification system.
Chairman Sensenbrenner. Will the gentleman from Iowa yield?
Mr. King. I would, Mr. Chairman.
Chairman Sensenbrenner. My understanding is that this
requires suspicious--or investigation within 10 days of
suspicious use of Social Security numbers in the basic pilot
program. I think it is an improvement to the bill. And I am
prepared to accept it.
Mr. King. I would thank the Chairman and conclude my
opening remarks and yield back the balance of my time.
Chairman Sensenbrenner. Gentleman's time is yielded back.
The question is on adoption of the amendment offered by the
gentleman from Iowa, Mr. King.
All those in favor, signify by saying aye.
Opposed, no.
The ayes appear to have it. The ayes have it. The amendment
is agreed to.
Are there further amendments? If there are no further
amendments, a reporting quorum is present. The question occurs
on the motion to report the bill, H.R. 4437, favorably as
amended.
All those in favor will say aye.
Opposed, no.
The ayes appear to have it.
Two Members are requesting a rollcall. Those in favor of
reporting the bill as amended favorably will, as your name is,
called answer aye. Those opposed, no. And the clerk will call
the roll.
The Clerk. Mr. Hyde.
Mr. Hyde. Aye.
The Clerk. Mr. Hyde, aye.
Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye.
Mr. Smith.
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye.
Mr. Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Mr. Goodlatte.
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Mr. Chabot.
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye.
Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye.
Mr. Jenkins.
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye.
Mr. Cannon.
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye.
Mr. Bachus.
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye.
Mr. Inglis.
Mr. Inglis. Aye.
The Clerk. Mr. Inglis, aye.
Mr. Hostettler.
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye.
Mr. Green.
Mr. Green. Aye.
The Clerk. Mr. Green, aye.
Mr. Keller.
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye.
Mr. Issa.
[No response.]
The Clerk. Mr. Flake.
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye.
Mr. Pence.
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye.
Mr. Forbes.
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye.
Mr. King.
Mr. King. Aye.
The Clerk. Mr. King, aye.
Mr. Feeney.
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye.
Mr. Franks.
Mr. Franks. Aye.
The Clerk. Mr. Franks, aye.
Mr. Gohmert.
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert, aye.
Mr. Conyers.
Mr. Conyers. No.
The Clerk. Mr. Conyers, no.
Mr. Berman.
Mr. Berman. No.
The Clerk. Mr. Berman, no.
Mr. Boucher.
[No response.]
The Clerk. Mr. Nadler.
Mr. Nadler. No.
The Clerk. Mr. Nadler, no.
Mr. Scott.
Mr. Scott. No.
The Clerk. Mr. Scott, no.
Mr. Watt.
Mr. Watt. No.
The Clerk. Mr. Watt, no.
Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no.
Ms. Jackson Lee.
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no.
Ms. Waters.
[No response.]
The Clerk. Mr. Meehan.
[No response.]
The Clerk. Mr. Delahunt.
Mr. Delahunt. No.
The Clerk. Mr. Delahunt, no.
Mr. Wexler.
Mr. Wexler. No.
The Clerk. Mr. Wexler, no.
Mr. Weiner.
Mr. Weiner. Yes on Flake. No on this.
The Clerk. Mr. Weiner, no.
Mr. Schiff.
Mr. Schiff. No.
The Clerk. Mr. Schiff, no.
Ms. Sanchez.
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no.
Mr. Van Hollen.
Mr. Van Hollen. No.
The Clerk. Mr. Van Hollen, no.
Ms. Wasserman Schultz.
Ms. Wasserman Schultz. No.
The Clerk. Ms. Wasserman Schultz, no.
Mr. Chairman.
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Further Members in the Chamber wish to cast or change their
votes?
Gentleman from California, Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes?
If not, the clerk will report.
Gentlelady from California, Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no.
Mr. Chairman, there are 23 ayes and 15 noes.
Chairman Sensenbrenner. And the motion to report the bill
favorably as amended is agreed to. Without objection, the bill
will be reported favorably to the House in the form of a single
amendment in the nature of a substitute incorporating the
amendments adopted here today.
Without objection, the staff is directed to make any
technical and conforming changes, and all Members will be given
2 days, as provided by the rules, in which to submit additional
dissenting supplemental or minority views.
This concludes the business of the meeting as noticed. And
without objection, the Committee stands adjourned.
[Whereupon, at 1:15 p.m., the Committee was adjourned.]
Additional Views
If circumstances would have allowed me to have been
recognized today in the Committee, I would have made the point
that I agree that our immigration process is sorely in need of
overhaul, from the top to the bottom.
I have spent the last 60 days on an immigration tour
throughout the Fourth District examining the impact of our
current immigration policy on health care, education,
construction, manufacturing, farms and government agencies. All
total, we visited more than a dozen stops and hosted six town
meetings. The results are clear that we need comprehensive and
effective immigration laws. At every stop, we saw the effects
of laws that are not enforced or not enforceable; are not
working or are inadequately supported by personnel or
infrastructure.
This leads to my first concern with this bill. It is not a
comprehensive solution. I can appreciate the need for tougher
penalties and better deterrents for those that violate
immigration laws, but penalties must be supported by additional
enforcement mechanisms to ensure the penalties can be
implemented.
This proposal also strengthens one critically weak area of
the current system by requiring employers to verify the
eligibility status of prospective employees, and thankfully,
technology makes this easier than ever.
It is my hope that the Senate will add a provision for a
guest worker program--one that does not include amnesty, but
offers a way that those who have entered our country illegally
can pay restitution, leave the country to adjust status, even
carry out community service or pay some other penalty in order
to earn the privilege of being restored as legal residents.
Other areas of concern I had with the bill are the
provisions for mandatory minimum sentences. Mandatory minimums
do a disservice to the judicial decision-making process, which
is already guided by sentencing guidelines. I would hope that
these mandatory minimum sentences will be addressed during
conference with the Senate, which is less prone to rely upon
mandatory-minimum sentences.
I eagerly look forward to working with the Committee
leadership on future issues.
Bob Inglis.
Dissenting Views
We believe that a strong border security policy is an
absolute and immediate necessity for this Nation. However,
without bipartisan comprehensive immigration reform to bring
eleven million people out of the shadows with a path to legal
immigration status and full integration in our society, the
gaping hole in our border security will continue to grow
unabated.
The Nation has an immediate crisis along the Southern
border as evidenced by the recent declarations of emergency by
the governors of those states. The Homeland Security Committee
passed a border security bill to concerning these issues. On
the way to our Committee, however, the legislation was made far
worse and less effective by anti-immigrant provisions which
have been hastily added to this legislation and have no bearing
on security on the border.\1\ This pursuit of short-term
political gain will ultimately prove counter-productive, since
the legislation will distract the Department of Homeland
Security and divert it limited resources from the core mission
of protecting this Nation against terrorism. Indeed, the
bipartisan 9/11 Commission has not identified any of the
excessive provisions that the Majority have included in this
bill as necessary for homeland security. We recognize that
Americans deserve real border security rather than the false
sense of security offered by this bill. This is particularly
true at a time when the present Administration is bringing but
a handful of employer sanction cases per year. For all of the
reasons set forth below in further detail, we respectfully
dissent from H.R. 4437.
---------------------------------------------------------------------------
\1\ At the outset, we must object that Majority leadership provided
Committee members with a copy of the 169-page bill only two days prior
to the Committee hearing which necessarily limited both Republicans'
and Democrats' ability to thoroughly review and debate the bill on its
merits at the Committee hearing. Given the importance of the matters at
hand, we believe that the Committee should have been given an
opportunity for a full consideration and the opportunity to craft
comprehensive legislation.
---------------------------------------------------------------------------
OVERVIEW
With this legislation, the Majority increases mandatory
detention, expedited removal and criminal penalties for civil
immigration violations for all aliens, including innocent
undocumented children, who will now automatically be subject to
being locked up behind bars without the right to see an
immigration judge. Of the bill's most pernicious provisions, an
alien's ``unlawful presence'' would become a federal felony
punishable by over one year in jail time and an ``aggravated
felony'' for immigration purposes which would permanently bar a
person from securing lawful immigration status in the United
States.
Ironically, or perhaps intentionally, the 11 million
undocumented people in the United States would be excluded from
a guest-worker program which President Bush and other Members
of the Majority reportedly embrace. If history is any lesson,
these get-tough policies have not proven effective in deterring
violations under the Immigration and Nationality Act (INA).
Over the last two decades, Congress has enacted 17 pieces of
legislation to crack down on immigration violators. Instead,
the undocumented population has swelled to a record level.
There is a clear consensus within the mainstream American
public that the INA needs to be fundamentally overhauled to
recognize the reality of the American economy and American
employer's real labor shortages and needs for foreign-born
workers. Often compared to the Internal Revenue Service tax
code given its arcane complexity, the INA is torturous for
United States businesses, citizens and American families to
navigate and secure status for employees and loved ones.
We also oppose the bill because it eviscerates due process
protections fundamental to our legal system and the
Constitution through the expanded use of expedited removal,
limitations on judicial review and refugee protection. These
provisions cannot be predicated on the belief that low-level
bureaucrats are somehow infallible in their decision-making and
thereby should not be subject to any further review of their
decisions. This belief is fundamentally mistaken given the
dismal track record of the Department of Homeland Security and
the Executive Office for Immigration Review in administering
justice in individual cases.
The lack of administrative and judicial review is
particularly worrisome since even United States citizens and
lawful permanent residents inevitably will become wrongfully
ensnared by expedited removal and wrongfully deported to
foreign countries by virtue of their ethnicity, appearance or
not carrying and presenting their proper identification to
border patrol agents. In virtually every other area of law,
review of an administrative agency's decision is guaranteed.
Instead of correcting the lack of justice in the underlying
administrative system, the Majority instead seeks to immunize
the system from any transparency, accountability and scrutiny.
Additionally, we believe that certain provisions in the
bill are an insulting rebuke to the Supreme Court of the United
States and the American public which trusts the Court to
interpret the United States Constitution. One provision
discussed below effectively reverses Supreme Court precedent
prohibiting the Department's indefinite detention of aliens to
now sanction the Department's indefinite detention of aliens.
Another provision discussed below effectively reverses Supreme
Court precedent protective of the due process rights of aliens
when they accept pleas in state courts of law and are
unapprised that their pleas will result in their removal by
immigration authorities. Under this bill, corrective state
court orders will be given no effect for immigration purposes
despite Article IV to the United States Constitution which
requires the Federal Government to give full, faith and credit
to state court judgments.
In our opinion, the bill is so extreme that it is beyond
repair. Instead of reforming our immigration system to improve
border security and effectively and realistically address
undocumented immigration, this legislation destroys the system
and creates untenable expectations for the Department of
Homeland Security to successfully enforce every provision of
this misguided bill. The Department of Homeland Security does
not have and will never be appropriated the detention capacity
necessary to detain and deport all aliens subject to mandatory
detention and expedited removal, thereby undermining their
ability or willingness to arrest as many aliens as possible.
The Department of Justice further will not be appropriated the
resources necessary to prosecute and incarcerate all 11 million
undocumented aliens, their American families and employers. As
written, the bill betrays real border security as well as the
moral values, economic priorities and the promise of America.
I. JURISDICTIONAL CONSIDERATIONS PRECLUDED OUR REVIEW OF FOUR
PROBLEMATICAL SECTIONS OF THIS BILL THAT ELEVATE POLITICAL MESSAGING
OVER SERIOUS REFORM.
The provisions of Titles I, III, IV, and V of H.R. 4437
were originally Titles I, II, III, and IV, respectively, of the
House Homeland Security Committee-reported version of H.R.
4312, the ``Border Security and Terrorism Prevention Act of
2005.'' Unfortunately, Chairman Sensenbrenner announced at the
beginning of the Judiciary Committee's markup of H.R. 4437 that
most of these provisions were outside of the scope of the
Judiciary Committee and that, accordingly, amendments to most
of these provisions in the Judiciary Committee would be ruled
nongermane. This precluded the Minority from offering
amendments to improve these important provisions of the bill.
We must still, however, express our concern about several
aspects of these provisions.
First, we are disappointed by the timidity of the Homeland
Security Committee-reported provisions in addressing our
problems on the United States border with Mexico and Canada, as
is embodied by these provisions. The four titles contain
several important provisions that we support and several that
we oppose. However, on the whole, they repeat a well-worn
pattern that has emerged over the last five years, wherein the
President declines to ask Congress for the resources necessary
to secure our border, the Majority, declines to authorize
specific amounts of funding for those resources, and the
Majority fails to appropriate adequate resources for those
purposes.
We note that the Minority on the House Committee on
Homeland Security offered a substitute for H.R. 4312 that would
have more effectively addressed our Nation's border security
needs. We believe that amendment was worthy of support, and we
are disappointed that the Committee rejected it on a party-line
vote. We wish to associate ourselves with the dissenting views
presented by our colleagues on the House Committee on Homeland
Security in H. Rept. 109-317, part 1, which expressed their
view that their Substitute to H.R. 4312 would have ``better
secure[d] the border by taking steps in three main areas
insufficiently addressed in the base bill: (1) stronger
planning and coordination; (2) more accountability for
struggling efforts to screen travelers and speed up commerce
and travel; and (3) genuine commitments to provide the
resources, training, and incentives needed by the people
working everyday to secure the border.''
We associate ourselves, as well, with the dissenting views
expressed by our colleagues on the Homeland Security Committee
that:
``The Democratic substitute provides for stronger
border security planning and coordination by requiring
the development and implementation of a national border
security strategy that includes specific information on
the personnel, infrastructure, technology and other
resources needed to secure the border, including
surveillance equipment necessary to monitor the entire
northern and southern borders. The substitute also
strengthens planning and coordination by establishing
an Office of Tribal Security to help the Department
coordinate with tribes along the border who are
overwhelmed by illegal border crossings. It also
creates northern and southern border coordinators who
can be held accountable for the security of the border
in their respective geographic areas.
``The Democratic substitute strengthens accountability
for programs designed to screen travelers and speed
commerce and travel by requiring regular reports on
Smart Border accords with Mexico; expanding expedited
land border traveler programs by putting their
enrollment systems in more locations and reducing fees,
creating a North American travel card usable by certain
low-risk American, Canadian, and Mexican travelers;
creating a pilot of a system for prescreening of U.S.-
bound passengers before they get on a plane; developing
a new tool to replace the Department's antiquated
method for checking names against terrorist databases;
requiring on-site verification of the security measures
taken by entities participating in the Customs-Trade
Partnership Against Terrorism (C-TPAT) program and the
Free and Secure Trade (FAST) program; and requiring
annual reporting on the implementation of the ``One
Face at the Border'' initiative.
``Finally, the Democratic substitute makes genuine
commitments to provide the tools and authority needed
to better secure the border . . .''
Second, we are disappointed that several provisions that
had been adopted by the Committee on Homeland Security in H.R.
4312, as it was reported to the House of Representatives, were
left out of H.R. 4437. These include:
LSection 302 of H.R. 4312, as reported by the
Homeland Security Committee, which would have
authorized funding to carry out section 5204 of the
Intelligence Reform and Terrorism Prevention Act of
2004, directing the Secretary of Homeland Security to
increase detention bed space by 8,000 beds per year
during that time.
LAn amendment by Ranking Democrat Bennie
Thompson, agreed to during the House Committee on
Homeland Security markup of H.R. 4312, that would have
established within the Department of Homeland Security
an Office of Tribal Security.
The failure of the Majority to include these provisions that
were in H.R. 4312 in the version of H.R. 4437 is emblematic of
a longstanding pattern that the Majority is more interested in
protecting the priorities of the current Administration than in
protecting our borders.
Third, we are concerned that several provisions contained
in the four titles that were originally reported by the House
Committee on Homeland Security are actually counterproductive
and could be more harmful than helpful in helping to combat
illegal immigration. Among these are:
A. Use of Homeland Security Grants for Immigration Enforcement.\2\
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\2\ Section 305 of H.R. 4437 would permit States to use State
Homeland Security Committee grants, Urban Area Security Initiative
grants, or Law Enforcement Terrorism Prevention Program grant funds for
preventing or responding to the unlawful entry of an alien or providing
support to another entity relating to preventing such an entity.
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We are deeply concerned about section 305 for two reasons.
First, it would permit states to divert their homeland security
grant funds to pay for border security functions that would
normally be carried out by federal agencies. While we share the
concern that an increasing amount of local government funds in
border states are having to be spent to deal with the
consequences of illegal immigration, we do not support forcing
states and local governments to forgo funding they need to meet
their traditional law enforcement and first responder missions.
We note that the Administration already has cut the State
Homeland Security Grant program, one of the grants affected by
section 305, in half, from $1.1 billion in FY 2005 to $550
million in FY 2006. Spreading thin the remaining dollars in
this program will only weaken state and local government first
responder and homeland security preparedness. We note that the
International Association of Fire Fighters opposed section 305
in a letter stating: ``If money is needed for immigration
enforcement, then Congress should provide funding to the
appropriate programs. Diverting funds from fire departments is
not the solution.''
We also oppose the Majority's unrelenting push to force
states to enforce civil immigration law. Many State and local
law enforcement agencies around the country have expressed
grave concerns about undertaking a role in enforcing civil
immigration law, contending that it would undermine the
relationships they need to have with their communities and make
their communities less safe. We agree with their views on this
question.
B. Mandatory Detention.\3\
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\3\ Section 401 of H.R. 4437 would require the mandatory detention
of an alien ``who is attempting to enter the United States illegally
and who is apprehended at a United States port of entry or along the
international land and maritime border of the United States'' until he
or she is removed from the United States or until a final decision has
been rendered granting the alien admission to the United States. During
an interim period between the date of enactment of the bill and one
year after the date of enactment, the provision would permit such
aliens to be released, but only if they pay a minimum $5,000 bond and
meet certain other conditions.
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Section 401 is an overreaction to a flawed Administration
policy of ``catch and release'' of aliens who it should have
detained. While detention of aliens who are a danger to the
community, a national security risk, or are in danger of
absconding is a vital part of any strategy to secure our
borders, expanding mandatory detention indiscriminately on such
a broad scale as would occur under section 401 would be more
harmful than helpful. Rather than enact section 401 into law,
the Administration should seek and Congress should provide
additional detention resources, better guidance on detention,
and a more rational policy on who is detained and who is
released.
Section 401, adopts a one-size-fits-all attitude that fails
to prioritize scare detention resources. Coming on top of the
failure of the Majority to provide adequate detention
resources, it is a prescription for continued disaster. We do
not have the physical capacity--even with greatly increased
numbers of beds and facilities--to hold all illegal entrants
for months or years. The logical solution to this problem is to
focus on expediting the judicial process for captured aliens
and detaining those who are a threat to our communities or at
risk of flight.\4\
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\4\ We note that Representative Lofgren, Representative Jackson
Lee, and Representative Meek offered numerous amendments during the
House Committee on Homeland Security markup of H.R. 4312 that would
have enacted a more rational policy than that contained in section 401.
Among them were amendments that would have sped the judicial process by
requiring the Department to make a determination of whether an
individual should be detained within seven days of arrest; put into
place better controls to ensure that an alien released will appear at
future proceedings; mandated a legal orientation program for aliens in
removal proceedings to increase the efficiency and effectiveness of
removal proceedings; and exempted vulnerable populations, such as the
elderly, unaccompanied alien children, pregnant women, and the
critically ill from the mandates of section 401. Unfortunately, these
amendments were either defeated or ruled nongermane.
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C. Denial of Entry to Citizens of Countries that Deny Admission of U.S.
Deportees.\5\
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\5\ Section 404 of H.R. 4437 would repeal current law, which
requires the Secretary of State to deny visas to nationals of countries
that deny or delay accepting their citizens, nationals, or residents
whom the United States wishes to deport. It would insert in its place a
provision that would authorize the Secretary of Homeland Security,
after consultation with the Secretary of State, to deny the admission
of nationals of countries that deny or delay accepting their citizens,
nationals, or residents whom the United States wishes to deport.
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We have serious concerns about the impact this section
could have on citizens from certain countries who will be
completely unresponsive to the pressure on their citizens that
this new requirement might exert. To address this problem,
Representative Lofgren introduced an amendment during the House
Committee on Homeland Security markup requiring the Secretary
of Homeland Security to deny admission not to average citizens,
but rather to government officials traveling to the United
States on official government business. This amendment would
put the pressure on the government officials causing the
problem, rather than on innocent foreign nationals merely
wanting to come to the U.S. for travel, trade and family
visits. This amendment was found non-germane in the Homeland
Security Committee, and the opening announcement by Chairman
Sensenbrenner about his view of germaneness implied that any
amendment to deal with this unfortunate section would have been
ruled nongermane in the Judiciary Committee, as well.
D. Training Program on Credible Fear.\6\
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\6\ Section 406 of H.R. 4437 would require that, not later than six
months after the date of enactment, the Secretary of Homeland Security
review and evaluate the training provided Border Patrol agents and port
of entry inspectors in the exercise of their duties with respect to
referring aliens to asylum officers for credible fear determinations.
The section would, further, require the Secretary to ``take necessary
and appropriate measures'' to ensure consistency in their referrals of
aliens to asylum officers for determinations of credible fear.
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We are concerned about the impact of this provision on
those seeking asylum. Current law requires persons to be
referred for a credible fear determination if they indicate a
fear of persecution. We would hope that the Administration will
not interpret this provision as a signal that there should be
fewer referrals of aliens for credible fear determinations.
E. Expansion of Expedited Removal.\7\
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\7\ Section 501 of H.R. 4437 would make the use of expedited
removal mandatory against aliens suspected of having entered the United
States without inspection who are neither Mexican nor Canadian, who are
apprehended within 100 miles of the U.S. international border, and have
been in the United States for 14 days or fewer.
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We are deeply concerned by the implications of Section 501.
Current law already gives the Administration flexibility to
expand or contract expedited removal as it sees fit in order to
fit circumstances that it confronts at any given time.
Expanding expedited removal statutorily in this manner would
permanently tie the Administration's hands and force it to use
the procedure, even when it might deem it unwise, and when it
believes that the use of expedited removal would pose more of a
burden than it is worth.
Moreover, once amended by this section, expedited removal
would give the Secretary the power to remove from the country,
without hearing, any immigrant thought to be illegally in the
United States caught within 100 miles of the border and within
2 weeks of the person crossing into the United States. Imposing
expedited removal on all aliens apprehended at or between all
land borders and within 100 miles of that border will apply
expedited removal to thousands of people who are currently
subject to regular immigration proceedings. Suddenly, thousands
of people will go from having rights to appeal removal orders,
rights of release from detention by immigration judges, and
other due process rights in regular immigration proceedings to
no appeal option and no opportunity for counsel. The only
proceeding these individuals will receive is an on-the-spot
decision by a Border Patrol Agent as to whether they should be
removed. Furthermore, these individuals will face 5-year bars
on reentering, all based on a very quick decision by a Border
Patrol agent.
We also feel strongly that the rule of law must be
paramount in our practices, and expedited removal should be a
method of last resort. It is far more preferable to hold a
hearing to ascertain the status and intentions of a detained
alien than to remove the person without trial for two reasons.
First, security may be threatened by expedited removal as it
may lead to the removal of an alien who, if detained for a
longer period or subjected to a judicial hearing, may be
discovered to be a terrorist. Second, removing individuals
without at least some sort of hearing undermines the perception
that the United States is a Nation that believes in a fair
judicial process governed by the rule of law. At a time when we
are engaged in a War on Terror where our respect for fairness
and the law is one of the most important principles we can
export abroad, we should not take steps to eliminate these
principles in our immigration enforcement process--even for
those caught here illegally.
II. H.R. 4437 WILL FUTHER EXPAND THE MANDATORY DEPORTATION PROVISIONS
IN CURRENT LAW TO INCLUDE CATEGORIES OF MINOR OFFENSES FOR WHICH NO
EXTENUATING CIRCUMSTANCES MAY BE CONSIDERED.
Instead of enacting long-needed reforms of the Nation's
deportation laws to give immigrants facing deportation a chance
to show why their deportation would be unfair and contrary to
the Nation's interests, H.R. 4437 increases the unfairness and
harshness of the current immigration laws relating to non-
citizens accused of past violations of the law. We are aware of
the serious immigration consequences of a conviction for an
aggravated felony are: mandatory detention and deportation, as
well as permanent bars to immigration relief and future legal
entry. Taken together, we are deeply concerned that Sections
203 and 201 of H.R. 4437 make criminals of the 11 million
individuals living in this country without legal status,
including 1.6 million children.\8\ The overwhelming majority of
these people are not here to commit crimes, but rather to work
and provide for their families. Turning them all into felons
with the stroke of a pen is counterproductive.\9\
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\8\ Section 203 of H.R. 4437 modifies section 275 of the
Immigration and Nationality Act to make ``unlawful presence'' in the
United States a misdemeanor. Section 201 makes a conviction for this
new crime an ``aggravated felony'' for immigration purposes.
\9\ Making criminals out of undocumented people makes them
vulnerable to state and local police arrest. The inclusion of section
203 in this legislation is a sly attempt by the bill's authors to enact
the CLEAR Act (H.R. 3137) without calling it such. We reject the bills'
premise that all undocumented immigrants are criminals that should be
rounded up by state and local police agents. State and local law
enforcement have many more serious concerns on their hands, including
protecting our communities from violent criminals and keeping our
streets safe. If this provision passes as part of H.R. 4437,
undocumented immigrants and their families will no longer know whether
contacting the local police will be a help or a hurt. In addition,
police officers attempting to implement this provision will no doubt
use dubious strategies to determine who to question and detain. Racial
profiling is an inevitable outcome, as police will focus greater
scrutiny on people who look or sound ``foreign.'' Such a policy would
most certainly lead to civil rights violations and expensive lawsuits
when police question and detain legal residents and citizens who happen
to be of Latin American, Asian, or other descent.
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Significantly, Sections 201 and 203 would also criminalize
millions of legal non-immigrants and immigrants, including
lawful permanent residents and non-immigrants who accrue
technical violations of immigration regulations. Section 203
makes being ``present in the United States in violation of the
immigration laws or the regulations prescribed thereunder'' a
federal crime punishable by a prison sentence of one year and
one day. But such violations would include lawful permanent
residents who fail to report a change of address to the
Department of Homeland Security (DHS) within ten days, as well
as university students on an F-1 visa who drop below a full
course load or H-1B workers who lose their jobs and take too
long to find another job. Section 201 would make such
``crimes'' an ``aggravated felony,'' subject to mandatory
detention and virtually no relief from deportation.''
We consider it ironic that many of the lead authors of H.R.
4437 recently announced their support for a temporary worker
program.\10\ Their legislation here, however, will make
undocumented immigrants who are convicted of the new crime of
unlawful presence ineligible for any type of temporary program,
legalization, or future immigration status. The question we
raised during Committee consideration of H.R. 4437 remains--
does the Majority wish to find a solution for the 11 million
undocumented immigrants living among us? If so, can they agree
on what it is? Is it making them all criminals and organizing
mass deportations, or is it a registration and vetting process
along the lines proposed in H.R. 2330 by Representatives Jim
Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL) ? We
support earned legalization, not criminalization and mass
deportation.
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\10\ President Bush has also indicated that he envisions such a
program to facilitate legal immigration based on employment to reduce
undocumented migration. He would extend this program to the current 7
million undocumented workers making up 5% of the Nation's labor force,
in addition to future workers.
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III. OVERBROAD SMUGGLING PROVISIONS IN SECTION 202 COULD SEVERELY
PENALIZE INNOCENT ACTS
This section goes well beyond the traditional scope of
alien smuggling and has the great potential to implicate many
Americans under the broadened definition of smuggling.\11\ We
believe that the ``assists, encourages, directs, or induces''
standard is so broad that the Government could prosecute almost
any American who has regular contact with undocumented
immigrants.
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\11\ Section 202 amends Section 274 of the INA in a manner that
greatly expands the scope of criminal smuggling, harboring, and
transporting aliens to ``whoever assists, encourages, directs, or
induces a person to come to or enter the U.S., or to attempt to come to
or enter the U.S., knowing or in reckless disregard of the fact that
such person is an alien who lacks authority to come to or enter the
United States.'' H.R. 4437 also goes beyond the current language of
Section 274 to include ``whoever assists, encourages, directs, or
induces a person to reside in or remain in the United States, or to
attempt to reside in or remain in the United States'' H.R. 4437 further
expands the transporting provisions as well to include the clause
``where the transportation or movement will aid or further in any
manner the person's illegal entry into or illegal presence in the
United States.''
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With 11 million undocumented immigrants currently residing
and working in the this country, millions of American have
direct and casual contact with undocumented immigrants. For
example, a church group that provides food aid, shelter, or
other assistance to members of its community could be penalized
for ``assisting or encouraging.'' The aid worker who finds an
illegal entrant suffering from dehydration in the desert and
drives that person to a hospital could be penalized for
``transporting.'' Even driving an undocumented worker to work
could be interpreted to ``aid or further in any manner the
person's illegal presence in the U.S.'' And any U.S. citizen
living with an undocumented spouse could be considered to be
``assisting or encouraging'' a spouse's presence.
Certainly alien smuggling and trafficking for profit are
activities that need to be sanctioned, and existing law already
provides for harsh penalties. However, H.R. 4437 goes far
beyond increasing penalties for these heinous activities and
jeopardizes the well-being of millions of Americans--neighbors,
family members, faith institutions, and others--who live and
work with undocumented immigrants.
IV. TITLE VI OF H.R. 4437 WOULD BAR A GRANT OF LAWFUL RESIDENT STATUS
TO MILLIONS OF IMMIGRANTS CURRENTLY WORKING IN THE U.S., INCLUDING MANY
IMMIGRANTS WITH U.S. CITIZEN SPOUSES OR CHILDREN OR FLEEING PERSECUTION
ABROAD.
The Federal Government has an obligation to protect the
freedoms enshrined in the Constitution at the same time we
protect the security of our borders. America's democratic
principles of fairness are essential to our way of life. We
must, therefore, oppose many provisions in Title VI because
they undermine these principles. Instead of getting tough on
dangerous individuals and terrorists as the disingenuous titles
of the sections imply, provisions in Title VI targets those
hardworking families who want to be part of American society
and refugees who fled persecution for hope and opportunity in
America.
We believe that Section 601 has the potential to deny
individuals who face death, torture or abuse in their home
countries from obtaining relief under withholding of removal.
This is inconsistent with America's obligations under
international law and the plain meaning of the Immigration and
Nationality Act.\12\
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\12\ Withholding of removal is a form of protection given to
immigrants whose life or freedom would be threatened because of the
alien's race, religion, nationality, membership in a social group, or
political opinion. Similarly, immigrants who would face torture in
their home countries can apply for withholding of removal protection
through the Convention Against Torture. The applicant for withholding
must show a clear probability of persecution or that it is more likely
than not that her or she would be persecuted if removed to his home
country. Unlike asylum, withholding of removal is ``mandatory,'' which
means that a judge is required to grant relief to individuals who meet
the statutory requirements.
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We are also alarmed by the sweeping nature of Section 602,
disingenuously titled as ``Detention of Dangerous Aliens''
because it expands the Government's authority to jail people
for an infinite period of time. Two recent Supreme Court
decisions expressly found that the Government cannot
indefinitely detain of individuals who have final removal
orders, but cannot be returned to their home country, due to no
fault of their own. The question raised in these cases, and by
this section, is a simple one: is it lawful for an executive
branch employee, essentially the warden in these cases, to give
a person a life sentence merely because the Government is
unable to remove the person? The answer was a resounding
no.\13\
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\13\ In Zadvydas v. Davis, et al., 121 S. Ct. 2491 (June 28, 2001)
the Court found, ``The post-removal-period detention statute, read in
light of the Constitution's demands, implicitly limits an alien's
detention to a period reasonably necessary to bring about that alien's
removal from the United States, and does not permit indefinite
detention.
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A statute permitting indefinite detention would raise
serious constitutional questions. Freedom from imprisonment
lies at the heart of the liberty protected by the Due Process
Clause.'' This bill's attempt to exclude ``inadmissible''
aliens entirely from a review process contradicts Clark v.
Martinez, which extended the protections outlined in Zadvydas
to ``inadmissible aliens'' from Cuba whose deportation was not
``foreseeable.'' The Court held, ``Even if the statutory
purpose and constitutional concerns influencing the Zadvydas
construction are not present for inadmissible aliens, that
cannot justify giving the same statutory text a different
meaning depending on the characteristics of the aliens
involved.'' \14\ Even asylum seekers and individuals with no
criminal convictions have been, and could be, subject to
indefinite detention under this section.\15\ Similarly, we are
concerned about the fact that the removal period can be
``tolled'' for immigrants who are transferred to another
Federal, state or local agency--his appears to be a stalling
tactic to prevent individuals from having their detentions
reviewed in the statutory allotted 90 days.
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\14\ Clark v. Martinez, 125 S.Ct. 716 (Jan 12, 2005), the Court
held that the prohibition in Zadvydas against indefinite detention of
removable aliens also applied to inadmissible aliens given canons of
statutory construction requiring that the removal statute be construed
consistently for both classes.
\15\ For example, an individual who arrives from China, fails to
attend a removal proceeding because he never got notice of the hearing
and thus has a final order of removal, could be become a ``lifer'' and
detained indefinitely if his home country is unwilling to issue travel
documents.
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We also oppose Section 603 because it increases penalties
and sets mandatory minimum sentence with respect to aliens who
fail to depart when ordered removed or obstruct their removal,
or who fail to comply with the terms of release while under
supervision. The premise underlying this section is that tough
mandatory minimum sentences will solve the problems associated
with removal. We believe, however, that current law already
contains sufficient penalties for individuals who fail to
depart or comply with the terms of their release. Moreover,
empirical evidence does not support this premise. The Judicial
Conference of the United States and the U.S. Sentencing
Commission have found that mandatory minimums distort the
sentencing process and have the ``opposite of their intended
effect.'' \16\ Mandatory minimums ``destroy honesty in
sentencing by encouraging charge and fact plea bargains.''
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\16\ See U.S. Sentencing Commission, Special Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System
(August 1991).
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Further, mandatory minimums result in unwarranted
sentencing disparity. That is, ``mandatory minimums . . . treat
dissimilar offenders in a similar manner, although those
offenders can be quite different with respect to the
seriousness of their conduct or their danger to society . . .''
and . . . ``require the sentencing court to impose the same
sentence on offenders when sound policy and common sense call
for reasonable differences in punishment.'' \17\ The Majority
has failed to demonstrate any rationale purpose for mandatory
sentences in this legislation--only an unwanted increase in
detention time, space and money. Finally, we do not believe the
punishment fits the crime when the Government is forced to
detain someone for offenses without looking at the individual
circumstances of the person's case.
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\17\ Id.
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Section 604 creates a new ground of inadmissibility for
individuals who are in violation of fraud related offenses
connected with Social Security cards and other identification
documents. We are particularly disturbed by the fact that
Section 604 strips the right to waivers to inadmissibility for
certain individuals. This section will harshly penalize
newcomers who are not criminals and come to the United States
to contribute to the US work force. Because there are not legal
channels for most of these necessary workers to enter the
country or obtain work permits, many rely on false documents to
contribute to our economy and feed their families.
This section inappropriately removes the discretion of
officers and judges to weigh favorable equities and individual
circumstances when determining whether a bar to admission
should be ``waived'' for humanitarian or related reasons. Under
this section, individuals can be forever barred from this
country for this conduct that occurred 20 years ago, regardless
of their potential to be an outstanding member of society.
Countless individuals would be denied admission without regard
to family and employment ties, and other discretionary factors.
Barring such waivers is an insult to judges whose exercise of
discretion is fundamental to their role.
We must also take issue Sections 605 and 606 due to the
wide and retroactive net cast by these aggravated felony
provisions. As we noted above, the aggravated felony provisions
of this bill border on the ridiculous by including a wide net
of minor offenses, including ones that are misdemeanors and not
violent or aggravated. It is unreasonably harsh to attach a bar
to adjustment for some individuals who fall under these
provisions, when discretion in the review process can produce a
more just and reasonable outcome.
Similarly, we take issue with Section 608 because it
creates new grounds of inadmissibility and deportability for
people who may have not have engaged in any wrongdoing at
all.\18\ We believe it may be unconstitutional to create a
``guilt by association'' regime whereby individuals who have
never actually engaged in gang related activities but who are
merely associated with them can be found deportable or
inadmissible.\19\ Further, we believe the designation scheme is
likely unconstitutional because it provides no notice to the
group or association being designated. Lastly, we believe the
bars to asylum and TPS undermine our obligations to protect
people who are victims of persecution or torture.
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\18\ Section 608 applies to individuals who are 1) members of a
criminal street gang and has committed, conspired or threatened to
commit or seeks to enter the United States to engage solely,
principally, or incidentally in, a gang crime or any other unlawful
activity or 2) is a member of a criminal street gang as designated by
the Attorney General. The bill sets up a designation process whereby
the Attorney General can without notice designate a group or
association as a ``gang.'' This proposal is based on the ``Alien Gang
Removal Act of 2005,'' H.R. 2933.
\19\ We echo the remarks by Georgetown University Law Center
Professor David Cole: ``It is already a deportable offense for a gang
member, or indeed any other foreign national who is convicted of an
aggravated felony, a very broad term that as this Committee no doubt
knows, includes misdemeanors, misdemeanors, includes shoplifting crimes
and the like. What this bill does is make people deportable who have
never committed a crime in their life, who are not suspected of
committing a crime, who are merely deemed by the Department of Homeland
Security to be a member of a group which is deemed by the Attorney
General to be a bad group. Bad groups have bad people in them. They
also have good people in them. This bill makes no distinction between
the two. It deports anyone who is found to be a member of any group
which has been blacklisted by the Attorney General. That's guilt by
association. If you took the McCarthy era laws that this Congress
repealed in 1990, and you just substitute ''criminal street gang'' for
''communist,'' that's what this bill would be. It essentially takes
that approach where we punished people not for their own individual
culpable conduct, but for their association with groups that we didn't
like, and rendered them deportable. That's what this bill does, and it
violates the first amendment right of association, and violates the
fifth amendment right of an individual to be treated as an individual
and not treated as culpable based on your associations.'' http://
judiciary.house.gov/media/pdfs/printers/109th/22187.pdf
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As a general matter, we are disturbed by attempts in this
bill to slow down and limit the naturalization process.\20\ In
combination, Sections 609 and 612 represent an unprecedented
attack on lawful permanent residents who are applying for
naturalization. Section 609 unreasonably extends the time DHS
has to adjudicate naturalizations applications from 120 days to
180 days and limits the ability of an individual seek relief
from District Courts if the DHS fails to make a timely decision
a naturalization application. The bill removes the ability of
the District Court to adjudicate delayed applications and
instead only allows the court the ability to review the cause
for the delay and remand the case back to DHS where there is no
guarantee of prompt processing. Given President Bush's repeated
pledge to speed up DHS application process, it is unjustifiable
to award DHS additional time to complete naturalization
applications and then further penalize the individual whose
application is not adjudicated in a timely manner by denying
him the ability to seek relief in court.\21\
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\20\ In addition to the constitutional issues raised by retroactive
application of the provisions of Section 6, we are also concerned that
section 610 may be unconstitutional because it expands the ability for
DHS (a non-neutral agency) to summarily deport a broad class of
immigrants without judicial or administrative review. See also Section
613, modifying the already problematic definition of conviction to
include any reversal, expungement, or modification of a conviction
record.
\21\ See also, remarks from Robert Gibbs, ``This approach is
particularly troubling given our experience here in Seattle, where we
won a state-wide class action settlement with CIS agreeing that they
had been making GMC determinations incorrectly for the past several
years, causing at least 500 bad denials. Our experience demonstrates
the need for judicial review.'' See, Lee v. Gonzalez.
609 limits scope of judicial review of denial to whether the DHS denial
was supported by a ``facially legitimate and bona fide reasons'' as
opposed to the current de novo review. BIEA 609(c) also precludes
adjudication of a natz application if ICE commences removal
proceedings, so even if you get to court on a denial, they can shut
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down your court case by filing an NTA.
609: Besides the improper denials, there is a huge problem with delayed
adjudications. There are 900 citizenship cases in this district that
are held up beyond normal processing times because the FBI is
overwhelmed with background check requests. There are many thousands
more nationally. There is nothing negative on the applicants, just an
inability of FBI to complete the searches that they want to do. We have
numerous of these cases, some waiting over three years after their
interview, where they passed all the history and English tests. Many
are Iraqi refugees from Gulf War I, who escaped Saddam Hussein's
prisons and who cleared CIS background checks when they entered and
then when they got permanent resident status. Some have been offered
jobs by the US Army to go back to Iraq and interpret for our troops,
but they cannot get hired because their citizenship application is
stuck, and CIS can give no explanation of the problem.
Under the current law, 8 USC 1447(b), if the citizenship interview has
happened, and 120 days have passed without a decision, the applicant
can ask a federal court judge to decide your case, who can grant the
application, or send it back to CIS for further action. [Prior to 1990,
the statute provided that the courts would decide naturalization
applications, after you applied to INS for a recommendation. In 1990,
Congress decided to make it more administrative, and shifted to INS the
power to decide the application as an initial matter, but left an
option to go to court for a decision if INS did not do so in 120 days
after interview].
BIEA 609 would effectively eliminate the right under 8 USC 1447(b) to
get a decision in delayed citizenship cases. While it appears to just
shift the wait time from 120 to 180 days, in reality the clock would
never start, as BIEA 609 also allows the DHS to define by regulation an
``interview'' or ``examination'' to be continuing. This is a tack they
tried successfully in a court in Virginia with a pro se petitioner, but
other courts have rejected this as vitiating the 120 day rule
completely. As if this were not enough, even if the case gets to court,
the only power the court s is to send it back to CIS.
Section 612 similarly limits the naturalization process by
making it more difficult to achieve a finding of good moral
character.\22\ We believe that current standards, allowing the
Government to determine good moral character based on conduct
outside the five year time period provides sufficient
flexibility and has more meaning because of the five year
limitation. Under this section, such flexibility is subject to
more abuse because it is coupled with language that allows an
aggravated felony conviction at any time to be a bar on good
moral character, sending the impression that dated offenses and
acts can fit this definition.\23\
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\22\ Applicants for certain immigration benefits, including
naturalization and cancellation of removal must demonstrate ``good
moral character''. When a person attempts to show good moral character
for naturalize, s/he must generally show ``good moral character'' for
the past five years. This section would extend that review period from
five years to indefinitely for aggravated felonies, regardless of
whether the crime was classified as an aggravated felony at the time of
conviction. The bill also adds a clause that Government ``shall not be
limited to the applicant's conduct during the period for which good
moral character is required, but may take into considerations as a
basis determination the applicant's conduct and acts at any time.''
\23\ Notes from Robert Gibbs: BIEA 612 would give CIS even more
power to make incorrect good moral character decisions in a couple of
ways. First, the bill effectively increases the good moral character
eligibility requirement from five years to lifetime. Sec. 609(a)(3). It
tries to overturn a recent en banc 9th Cir decision in Hovsepian, 422
F.3d 883 (9th Cir 2005) which held that since citizenship required good
moral character for only the past five years, if the applicant showed
he met that requirement, the CIS could not deny based on an offense
prior to the five year period. This is a recipe for more delays,
endless investigations into errors in the distant past. As the Ninth
Circuit stated in Hovsepian, ``To hold otherwise would sanction a
denial of citizenship where the applicant's misconduct . . . was many
years in the past, and where a former bad record has been followed by
many years of exemplary conduct with every evidence of reformation and
subsequent good moral character. Such a conclusion would require a
holding that Congress had enacted a legislative doctrine of
predestination and eternal damnation, whereas the statutes contemplate
rehabilitation.'' Hovsepian, supra.
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V. THE PROPOSED EMPLOYMENT VERIFICATION SYSTEM ENACTS AN UNWORKABLE,
COSTLY GOVERNMENT PERMISSION-TO-WORK SYSTEM THAT WILL NOT RESOLVE THE
FLOW OF UNDOCUMENTED WORKERS INTO AMERICAN SEEKING WORK
Title VII of H.R. 4437 creates a new Government program,
the Employment Eligibility Verification System (EEVS) by vastly
expanding the existing Basic Pilot Verification System and
requiring, for the first time, all employers to seek Government
consent to retain each and every worker they employ. We do not
believe that the Majority has thought through costs and legal
implication of the implementation of such a system, making its
implementation unwise without further investigation.
At base, this country simply cannot afford to enact the
proposed system. Building the type of electronic, employment
verification system envisioned by this bill that will not delay
employers and employees unduly will cost at least $11.7 billion
per year according to the GAO, and that cost will be born
mostly by employers.\24\ Further, enacting the system will
mandate the construction of a national ID system, whereby the
Federal Government will collect and store in Government
databases every American's most-sensitive, personally-
identifiable information. Recent GAO reports estimate that
requiring the issuance of a hardened Social Security Card like
the one necessary for this program to all Americans and lawful
permanent residents will cost at least $4 billion.
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\24\ The GAO cited a study by the Temple University Institute for
Survey Research and stated that a ``mandatory dial-up version of the
pilot program for all employers would cost the Federal Government,
employers, and employees about $11.7 billion total per year, with
employers bearing most of the costs.'' GAO Report at 29 (emphasis
added).
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The challenge of implementing the massive new system
envisioned by the Majority would be daunting at best: screening
the approximately 54 million new hires per year and 146 million
person workforce. However, there is no guarantee that the
system will ever work due to the technological hurdles. The
difficulties posed by the proposed system are well-documented
by the current Basic Pilot. For example, the entire system
would be based on databases that are known to contain an
unacceptable number of errors and that would therefore likely
yield millions of false determinations.\25\ Workers with
erroneous information would face layoffs and would be unable to
work for any lawful business for the weeks or months it would
take for Government agencies to resolve the problem. Lawful
employees should not have to fight the Government just to keep
working. Businesses should not lose experienced employees while
Government data glitches are resolved.
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\25\ As an example of DHS's current incapacity to manage its
databases, just last month DHS Citizenship and Immigration Services
(CIS) sent out letters recalling more than 60,000 green cards because a
computer glitch miscalculated immigrants' residency start dates. Many
of those letters were incorrect and CIS has announced it will send out
new letters advising all individuals who received the initial letter in
error, informing them that their green card was correct and that there
was no need to return it.
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The difficultlies mount for employment-authorized non-
citizens. The records of employment-authorized non-citizens are
even more inaccurate than those of citizens, so employers would
be required to spend much more time and money to resolve their
problems. SSA's databases only automatically verify the status
of less than 50% of work-authorized non-citizens.\26\ The SSA
automated approval failure rate is more than 50 times higher
for work-authorized non-citizens than for citizens.\27\ The
work-authorized non-citizens whose status cannot be confirmed
by SSA must be referred to CIS for confirmation. Of these, CIS
has to verify about 17% manually--a step which substantially
delays eligibility confirmation.\28\ The EEVS also requires
employers to collect more data from non-citizens than for
others.
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\26\ USCIS, Report to Congress on the Basic Pilot Program
(Washington, DC 2004)
\27\ Ibid.
\28\ Ibid.
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Because of this added average expense and burden for non-
citizens, we are concerned that employers, recruiters, or
referrers are likely to shy away from employing or assisting
anyone who looks or sounds foreign. Even worse, the burdensome
new system would likely be the last straw for many of these
businesses, potentially sending hundreds of thousands of them
into the cash economy, completely out of the bounds of
Government oversight and regulations. Ironically, this would
likely increase undocumented immigration by creating a hidden
new employment channel. This potential for exploitation and
discrimination would be particularly acute for referrers and
recruiters, who are required to verify employment eligibility
before taking action.
The employer sanction system has frequently been abused by
bad-apple employers who want to intimidate workers who complain
about job conditions or exercise their workplace rights. Title
VII exacerbates this problem by allowing employers to
voluntarily and selectively reverify current workers starting
two years after enactment so long as they cannot be shown to
have done so on a discriminatory basis.
H.R. 4437 includes no procedures, funds or safeguards for
correcting or updating inaccurate records, other than the
simple requirement that it be done. Based on the error rate in
the current pilot program, we could conservatively expect at
least 3 million initial false negatives (a determination that
the worker was not employment eligible) among the current
workforce, many of which would require weeks or months to
correct during which time it would be illegal to hire the
worker. As a practical matter, we believe that records should
be updated before the system goes into effect, for example, by
setting accuracy standards as triggers before it becomes
mandatory. This bill does not do that. In fact, it would
severely limit legal recourse by workers who suffer injuries
due to systematic agency errors. Under the bill, each wronged
worker would be limited to individual claims for compensation
under the Federal Tort Claims Act.
Of additional concern are the privacy implications raised
by such a system. To be capable of confirming work-eligibility
these databases will contain substantial amounts of personally
identifiable information regarding every citizen and every visa
holder. The information needed will include name, age, Social
Security Number and/or another unique identifier, citizenship
status, period of work-eligibility for non-citizens, address
(to stamp out ID fraud), and a list of the queries from
employers, their locations and the dates of those inquiries.
Further, to resolve data errors, reduce identity fraud and
distinguish between people with common names, additional
information distinguishing individuals with the same names may
be required, which likely necessitates the inclusion in the
database of a date of birth and, perhaps, other biometric or
personally identifiable information for every person residing
in the United States.
Thus, the database to support such a system will, for the
first time, list every citizen and every visa holder residing
in the United States, and, by necessity those who are non-
eligible, but lawfully residing in this country. And, it will
track their employment history. This is the very essence of a
National ID system. The establishment of such a system is an
anathema to rights to privacy under the Fourth Amendment to the
United States Constitution.\29\ One searches in vain in Title
VII for provisions that could potentially mitigate these
serious concerns--such as adequate privacy and civil rights
safeguards, or protections or recourse for persons who suffer
termination due to agency error.
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\29\ Further, the database itself will be a threat to privacy
because it will be a prime target of identity thieves. Such an enormous
database will be impossible to secure, thus any undocumented immigrant
seeking work will be able to pay hackers to steal work-eligible
Americans identities. The most obvious targets will be those who are
work-eligible but who do not work. Moreover, as current events have
indicated, data breaches and spills are inevitable. Thus, we should
anticipate significant losses of millions of Americans most sensitive
information.
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Finally, we are again concerned that this proposal is not
accompanied by comprehensive immigration reform, which would
provide channels for immigrants to live and work in the U.S.
legally. Implementation of an employment verification system
without such reform would invite severe unintended consequences
such as expansion of the underground economy and increased
identity theft, fraud, bribery and corruption.
VI. SECTION 8 OF THE BILL WOULD STRIP FEDERAL COURTS OF JURISDICTION
OVER IMMIGRATION CASES AND COMPOUND THE INJUSTICES ALREADY PRESENT IN
THE CURRENT SYSTEM
Legal immigrants face the risk of mandatory detention and
automatic deportation for run-ins with the law that are
considered minor in the case of U.S. citizens, and are
subjected to judicial proceedings in which speed is valued far
more than accuracy or fairness. Evidence of the abysmal
treatment that legal immigrants often face in the judicial
system can be found in the scathing criticisms emanating even
from conservative federal courts as they consider appeals of
the decisions handed down by immigration courts.\30\ Phrases
like ``ignored the evidence,'' ``riven with error,''
``astounding lapse in logic,'' and ``woefully inadequate'' have
begun to pepper a growing number of these critiques by Federal
courts. The Majority's solution to these injustices is to strip
Federal courts of their already limited ability to identify and
rectify mistakes made by immigration judges.
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\30\ The 7th Circuit court of appeals recently noted that it had to
reverse 40% of these BIA orders in the past year--a vastly higher
percentage than in other cases where the U.S. Government was the
appellee (in those cases the reversal rate was 18%).
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Section 802 seeks to restrict judicial review of a decision
by DHS to revoke an individual's visa.\31\ The Majority argues
that consular decisions are non-reviewable, so revocations
should likewise be non-reviewable. That argument misses the
mark. To revoke someone's visa after they have traveled to the
United States and acted in reliance on the validity of that
issuance (e.g. moving to the U.S. and beginning employment) is
very different from denying someone authority to enter the
country from the outset. We believe that basic principles of
fairness militate in favor of providing an opportunity to
challenge the Government's arbitrary reversal of significant
decision upon which an individual justifiably relied.
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\31\ This section would amend INA Sec. 221(i) to eliminate judicial
review over claims or challenges arising from the revocation of a visa
after the holder of the visa has entered the U.S., thereby removing any
judicial oversight over consular decisions. (As background, the House,
in last year's Intelligence Reform Bill made visa revocation a ground
of removal, but in conference the Senate added a clause allowing aliens
facing removal to seek judicial review of their visa revocations.) This
section would gut the Senate's attempt to inject a measure of due
process into the revocation process.
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Section 803 attempts to negate 9th Circuit precedent that
prohibits reinstatement of removal without a hearing. It would
amend INA Sec. 241(a)(5) to state that reinstatement shall not
require proceedings before an immigration judge under INA
section 240 or otherwise. Section 803 also would amend INA
Sec. 242 to restrict any judicial review on the issue of
reinstatement to the United States Court of Appeals for the
District of Columbia Circuit and would only allow a challenge
to the constitutionality of the law or regulations.
Section 804 is another assault on those who fear
persecution. ``Withholding of removal'' is a form of protection
that, while similar to asylum, differs in two important
respects: (1) it is nondiscretionary and (2) to receive this
benefit, the alien must meet a higher standard of proof than
asylum. In the REAL ID Act, Congress amended the asylum
motivation standard to require an asylum applicant to show that
one of the five protected characteristics would be ``at least
one central reason'' for harm in order to receive asylum.
Section 804 would import the REAL ID Act's ``one central
reason'' requirement into the withholding statute by amending
INA Sec. 241(b)(3) to preclude a grant of withholding of
removal unless the alien can establish that his or her life or
freedom would be threatened in the country in question, and
that race, religion, nationality, membership in a particular
social group, or political opinion would be at least one
central reason for such threat. The provision would be
effective retroactive to the date of the REAL ID Act's passage
into law (May 11, 2005).
We remain concerned about this standard because it could
mean that a woman who is raped because she is a woman and
because she is of a minority religion could apply for
withholding of removal only if she could prove that the
persecution based on religion was a central reason, but not if
it was only one non-central reason while the main reason was
due to her sex. Sex is not one of the protected categories.
Proving this ``central reason'' is often difficult in these
situations considering the many mixed motives for rape of
minority women.
Section 805 would severely weaken the right to federal
court review of erroneous Board of Immigration Review opinions.
Specifically, section 805 would amend INA Sec. 242(b)(3) to
implement a process whereby an alien's petition for review
would be assigned to a single court of appeals judge upon the
filing of the alien's brief. If the judge issues a
``certificate of reviewability,'' the case would proceed
through the normal appellate process. Such certificate,
however, would issue only if the alien had ``made a substantial
showing that the petition for review is likely to be granted.''
If the alien fails to make such a showing, the single judge
would deny the petition for review and that decision would be
unreviewable. In addition, if the judge fails to issue such a
certificate within 60 days (with certain limited extensions
available), the petition for review would be deemed denied. If
no certificate of reviewability is issued, any stay of removal
would dissolve automatically, the Government would not be
required to file its brief, and the petitioner could be removed
without further recourse.
We strongly object to this proposal. Only months after the
Majority revamped the statute as part of REAL ID, insisting
that the circuit courts were the appropriate place for judicial
review, the bill now seeks to restrict and virtually eliminate
it altogether. In essence, section 805 unnecessarily initiates
an unprecedented certiorari process for Article III court
appeals, at a time when the circuit courts have become
increasingly critical of the quality of agency decision making.
The number of cases being reversed and remanded, and the
percentages cited by the courts themselves, indicates that
petitions for review being filed today are far from
``meritless,'' as the Majority contends. Although circuit
courts have experienced an increase in volume of immigration
cases (resulting in large part from irresponsible streamlining
regulations issued by the Department of Justice), they also
have initiated measures to address the caseflow that are far
less drastic than those the bill would impose. Given the
significant role being played by the judiciary in insuring that
removal decisions comport with due process, we believe the
degree of interference that the bill requires would undermine
the court's role in ensuring fairness and providing needed
oversight. There are far better mechanisms than those the bill
proposes, which are already in place and working, to address
the wave of immigration appeals in a way that balances the
interests of all concerned.\32\
---------------------------------------------------------------------------
\32\ For example, the 2nd Circuit has established a mediation
program for blocks of cases where appropriate. Other courts such as the
3rd Circuit have established pro bono referral programs to ensure
competent representation of aliens in their petitions for review.
---------------------------------------------------------------------------
Congress has contemplated ``court stripping'' legislation
numerous times including around the issue of desegregation that
occurred in the 1960s at the height of the modern civil rights
era. Those proposals were seen for what they were--an attack on
judges who enforce the Constitution and protect the rights of
individuals--and were defeated. Likewise opponents of women's
right to reproductive choice and to separation of church and
state have tried to strip the courts of their jurisdiction over
abortion and school prayer cases. In each instance, civil
rights, civil liberties and women's right communities mobilized
against the proposed laws, educating the public that taking
away the court's power to enforce rights is tantamount to
taking away the rights themselves. When the targets are the
most vulnerable in our society: immigrants, prisoners and the
poor, there is less public awareness or opposition but all the
greater need to defend these constitutional protections of
fairness.
Section 806 would prohibit the issuance of a non-immigrant
visa unless the applicant first waives his or her right to any
review or appeal of an immigration officer's decision at the
port of entry as to the alien's admissibility, as well as his
or her right to contest, other than on the basis of an
application for asylum, any action for removal of the alien. In
the Majority's explanation of the bill, they analogize this
required waiver of due process rights to the existing
requirement under the Visa Waiver Program.
This analogy is disingenuous at best, as the class of
individuals affected under this amendment would include H-1B
and L-1 visa holders, students, exchange visitors, journalists,
diplomats, treaty traders, fiances, spouses of United States
citizens entering on K visas, athletes, entertainers, certain
aliens with extraordinary ability, cultural exchange visitors,
religious workers, witnesses, and victims of trafficking. We
maintain that the entry of these individuals is not analogous
to that of tourists who, in exchange for being admitted visa-
free for a period of 90 days, agree to waive their right to a
removal hearing.
VII. H.R. 4437 VIOLATES U.S. OBLIGATIONS TO ASYLUM SEEKERS AND REFUGEES
UNDER INTERNATIONAL LAW
People seeking asylum in the United States from persecution
in their home countries would be particularly affected by this
legislation. Asylum seekers detained upon arrival in the United
States are already subject to being treated like criminals and
detained under jail-like conditions for indeterminate periods
of time. This bill would increase the prolonged detention of
this vulnerable population, would redefine asylum seekers who
were simply here out of status as felons under the law, and
would subject an overwhelming proportion of asylum seekers
inside the United States to removal without a hearing.
For those whose cases were decided through the immigration
court process, the bill would aim to diminish their access to
judicial review, by subjecting their cases to summary dismissal
if a single judge of the court of appeals failed to issue them
a ``certificate of reviewability'' within a 60 day time limit.
Finally, by attempting to undo the Supreme Court's rulings
prohibiting the indefinite detention of non-citizens who cannot
be removed from the United States, the bill would allow asylum
seekers and refugees who were ordered removed but could not be
returned to their countries--a situation which historically has
applied to persons who fled countries ranging from Cambodia to
Vietnam to Cuba--to be jailed indefinitely, subject to very
limited administrative and still more limited judicial review.
Section 203 of the bill would make it a crime to be in the
U.S. in violation of immigration laws. The radical nature of
this change to our immigration laws, as applied to non-citizens
generally, has been noted earlier. As applied to asylum
seekers, it would also violate U.S. obligations under Article
31 of the Refugee Convention, which prohibits the penalization
of asylum seekers for the irregular manner of their entry into
or presence in the territory of their country of refuge. The
bill contains no exception for asylum seekers. Nor does it
contain an exception for other vulnerable populations: victims
of trafficking, children, young people whose lack of status in
the U.S. is due to their having been brought here at a young
age by their parents, battered women, and others whose
irregular presence in the United States is due to forces beyond
their control including war or natural disaster in their home
countries.\33\
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\33\ For example, under this provision, a person who entered the
U.S. legally and found herself unable to return to, for example, El
Salvador, Liberia, Honduras, Burundi, based on circumstances beyond her
control like civil war or natural disaster, could find herself
prosecuted, jailed for up to 366 days, and then--as a result of this--
ineligible for TPS if that protection later became available to people
in her situation.
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Other sections of the bill that aim to subject an
increasing proportion of non-citizens to summary removal
without a hearing also pose particular concerns for refugee
protection. Section 806 would prohibit the issuance of a non-
immigrant visa to anyone unless the person waives his right,
not only to review or appeal the decision of a BCBP officer at
the port of entry that he is inadmissible, but also ``to
contest, other than on the basis of an application for asylum,
any action for the removal of the alien.''
The extreme nature of this proposal as applied to non-
citizens in general has been noted earlier, and despite its
provision of an exception for asylum claims, it also threatens
asylum seekers' access to the adjudication process. Persons
apprehended and deported for overstaying their period of
authorized admission under the Visa Waiver Program (VWP) are
not subject even to the limited protections available to asylum
seekers placed in expedited removal under section 235. The
extension of these same summary-removal provisions currently
applicable to VWP entrants to all non-immigrants greatly
increases the risk of asylum seekers who entered the U.S.
legally being returned to their countries of persecution
without ever having an opportunity to make their claims.
In addition, this provision would appear to prevent those
who entered on non-immigrant visas and are coming forward
spontaneously to claim asylum from making an affirmative
application for asylum before the Asylum Office, in that people
not eligible for hearings under section 240 are currently
removed from the Asylum Office's jurisdiction. While being
inefficient (in forcing the adjudication of all these cases by
the immigration courts, a much slower, more cumbersome, and
more expensive process), this provision also has the perverse
effect of penalizing asylum seekers who entered the United
States through legal channels for the legality of their
original entry. And asylum is the only exception this provision
recognizes, leaving other categories of vulnerable people to be
deported with no process whatsoever, including children,
trafficking victims, and persons eligible for relief under
VAWA, cancellation of removal, or Temporary Protected Status.
The vast expansion by statute of expedited removal under
section 401 of this bill, to anyone (other than Mexicans,
Canadians, and Cubans) present in the U.S. without admission or
parole and apprehended within 100 miles of an international
land border of the U.S. and within 14 days of entry, is also of
serious concern. Although persons seeking asylum would still be
eligible to be referred for a credible fear interview, the
expansion of these summary procedures, which place enormous
unreviewable power into the hands of Border Patrol officers,
would pose a very serious challenge of training and supervision
to ensure that refugees are not returned to persecution in
violation of the United States' obligations under the Refugee
Convention. Moreover, aside from asylum seekers, this section
makes no other exceptions for other vulnerable groups who have
a claim to protection under our laws, including victims of
trafficking.
Additionally, for arriving asylum seekers, Section 401,
would result in increased prolonged detention.\34\ Under the
permanent regime, however, the person's detention would be
mandatory until admitted or removed, unless he/she were
permitted to withdraw his/her application for admission and
immediately depart the U.S., or were paroled. DHS's use of its
discretionary parole authority for arriving asylum seekers thus
far has been erratic--leading, for example, to the
unaccountable decision last year to detain the Rev. Joseph N.
Dantica, an 81-year-old Baptist minister from Haiti who arrived
in the United States on a valid passport and visa and whom DHS
had the power to release immediately pending his asylum claim,
but who instead died in DHS custody a few days later.
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\34\ The provision sets up an interim regime, which would go into
effect 60 days after enactment of this legislation, and a permanent
regime, which would go into effect on October 1, 2006. Under the
interim regime, a person attempting to enter the U.S. illegally and
apprehended at a U.S. port of entry or along a land or maritime border
could not be released pending proceedings unless the DHS secretary
determined (``after conducting all appropriate background and security
checks on the alien'') that the alien ``does not pose a national
security risk'' and the alien posted bond of at least $5,000.
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This bill's overwhelming focus on detention and on filling
available bed space without providing adequate safeguards sets
the stage for further tragedies of this sort as automatic
detention, rather than a reasoned consideration of individual
circumstances, becomes a reflex.\35\ The Committee in fact
recognized the problem of substandard, inhumane conditions and
treatment of immigration detainees through adopting an
amendment offered by Mr. Scott of Viginia which will require
the Comptroller General of the United States to report to
Congress on the deaths in custody of detainees held on
immigration violations.\36\
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\35\ In this regard, we recognize the importance of Congressman
Meek's amendment to the House's Border Security and Terrorism
Prevention Act of 2005 (H.R. 4312) entitled ``The Security Immigration
Coordination and Oversight Act'' which provided simple protections for
immigrant detainees. For example, the amendment called for families to
be detained together and not separated, as current policy dictates. The
amendment also included language mandating access to medical care for
these vulnerable detainees, many of whom have experienced rape, torture
and other human rights abuses. It also sought to increase the
effectiveness of the Department of Homeland Security's Policy
Directorate, codify detention standards and provide for a high level
officer in charge of monitoring detention conditions. Had the measure
passed, it would have directed DHS to create enforceable regulations on
the treatment of immigrants, asylum-seekers, refugees and other
vulnerable groups that promote a balance between law enforcement and
humanitarian considerations.
\36\ Mr. Scott's amendment was timely considering the shocking,
gut-wrenching expose entitled ``The Death of Richard Rust'' which aired
on National Public Radio's All Things Considered on December 5, 2005,
available http://www.npr.org/templates/story/story.php?storyI. In this
expose, Daniel Zwerdling examines how Richard Rust, a 34-year-old
Jamaican detainee in Louisiana's Oakdale Federal Detention Center,
collapsed and died after Government employees apparently disregarded
national medical standards by neglecting to give him basic emergency
care. Prison employees subsequently put dozens of immigrants at Oakdale
in near-solitary confinement after they protested what had happened.
The Department of Homeland Security refused to be interview for the
report.
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For persons, including asylum seekers and refugees, whose
cases were ultimately denied but who could not be returned to
their countries of origin, Section 602, as described in more
detail in earlier sections of this document, would allow them
to be jailed indefinitely subject to very limited review. This
section could subject large numbers of asylum seekers,
refugees, and nationals of countries like Cuba to prolonged
indefinite detention for reasons beyond their control and
subject to inadequate review.
CONCLUSION
There is an urgent need and desire for real solutions that
could truly address our immigration problems. H.R. 4437 does
not deliver, and represents yet another failed opportunity. As
it stands, this bill is just another in a long line of get-
tough immigration bills that have only succeeded in
exacerbating our problems. Since 1995, Congress has enacted an
average of nearly one such bill every year. Enactment of H.R.
4437 would represent the third time in just the last 12 months
that we would have done so. Last December we passed
intelligence reform, which included significant immigration
enforcement provisions, and then in May we passed the REAL ID
Act which was supposed to bring our immigration situation under
control. No sooner do we enact such legislation than it is
forgotten--except by those charged with implementing failed
concepts that sounded good in a press release--and calls begin
for yet another get-tough bill.
After numerous such bills in the last decade of GOP
control, net illegal immigration is at its highest level ever,
and there are an estimated 11 million undocumented immigrants
in the U.S. We believe that it is well past time to re-consider
our approach. As Members on both sides of the aisle now
recognize, our immigration enforcement mechanisms will not work
until we reform the system they are intended to enforce. It is
time to enact comprehensive legislation that resolves the
status of undocumented immigrants who work and pay taxes in our
country, accommodates the future flows that will be necessary
for our economy, and prevents the needless separation of
families.
John Conyers, Jr.
Howard L. Berman.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Martin T. Meehan.
William D. Delahunt.
Robert Wexler.
Linda T. Sanchez.
Chris Van Hollen.
Debbie Wasserman Schultz.