[House Report 113-678]
[From the U.S. Government Publishing Office]
113th Congress Rept. 113-678
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
STRENGTHEN AND FORTIFY ENFORCEMENT ACT
_______
December 16, 2014.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2278]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2278) to amend the Immigration and Nationality Act
to improve immigration law enforcement within the interior of
the United States, 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.............................................. 48
Background and Need for the Legislation.......................... 48
Hearings......................................................... 103
Committee Consideration.......................................... 103
Committee Votes.................................................. 103
Committee Oversight Findings..................................... 115
New Budget Authority and Tax Expenditures........................ 116
Congressional Budget Office Cost Estimate........................ 116
Duplication of Federal Programs.................................. 123
Disclosure of Directed Rule Makings.............................. 123
Performance Goals and Objectives................................. 123
Advisory on Earmarks............................................. 123
Section-by-Section Analysis...................................... 123
Changes in Existing Law Made by the Bill, as Reported............ 139
Dissenting Views................................................. 229
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Strengthen and Fortify Enforcement
Act'' or the ``SAFE Act''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--IMMIGRATION LAW ENFORCEMENT BY STATES AND LOCALITIES
Sec. 101. Definitions and severability.
Sec. 102. Immigration law enforcement by States and localities.
Sec. 103. Listing of immigration violators in the national crime
information center database.
Sec. 104. Technology access.
Sec. 105. State and local law enforcement provision of information
about apprehended aliens.
Sec. 106. Financial assistance to State and local police agencies that
assist in the enforcement of immigration laws.
Sec. 107. Increased Federal detention space.
Sec. 108. Federal custody of inadmissible and deportable aliens in the
United States apprehended by State or local law enforcement.
Sec. 109. Training of State and local law enforcement personnel
relating to the enforcement of immigration laws.
Sec. 110. Immunity.
Sec. 111. Criminal alien identification program.
Sec. 112. Clarification of congressional intent.
Sec. 113. State criminal alien assistance program (SCAAP).
Sec. 114. State violations of enforcement of immigration laws.
Sec. 115. Clarifying the authority of ICE detainers.
TITLE II--NATIONAL SECURITY
Sec. 201. Removal of, and denial of benefits to, terrorist aliens.
Sec. 202. Terrorist bar to good moral character.
Sec. 203. Terrorist bar to naturalization.
Sec. 204. Denaturalization for terrorists.
Sec. 205. Use of 1986 IRCA legalization information for national
security purposes.
Sec. 206. Background and security checks.
Sec. 207. Technical amendments relating to the Intelligence Reform and
Terrorism Prevention Act of 2004.
TITLE III--REMOVAL OF CRIMINAL ALIENS
Sec. 301. Definition of aggravated felony.
Sec. 302. Precluding admissibility of aliens convicted of aggravated
felonies or other serious offenses.
Sec. 303. Espionage clarification.
Sec. 304. Prohibition of the sale of firearms to, or the possession of
firearms by, certain aliens.
Sec. 305. Uniform statute of limitations for certain immigration,
naturalization, and peonage offenses.
Sec. 306. Conforming amendment to the definition of racketeering
activity.
Sec. 307. Conforming amendments for the aggravated felony definition.
Sec. 308. Precluding refugee or asylee adjustment of status for
aggravated felons.
Sec. 309. Inadmissibility, deportability, an detention of drunk
drivers.
Sec. 310. Detention of dangerous aliens.
Sec. 311. Grounds of inadmissibility and deportability for alien gang
members.
Sec. 312. Extension of identity theft offenses.
Sec. 313. Laundering of monetary instruments.
Sec. 314. Increased criminal penalties relating to alien smuggling and
related offenses.
Sec. 315. Penalties for illegal entry or presence.
Sec. 316. Illegal reentry.
Sec. 317. Reform of passport, visa, and immigration fraud offenses.
Sec. 318. Forfeiture.
Sec. 319. Expedited removal for aliens inadmissible on criminal or
security grounds.
Sec. 320. Increased penalties barring the admission of convicted sex
offenders failing to register and requiring deportation of sex
offenders failing to register.
Sec. 321. Protecting immigrants from convicted sex offenders.
Sec. 322. Clarification to crimes of violence and crimes involving
moral turpitude.
Sec. 323. Penalties for failure to obey removal orders.
Sec. 324. Pardons.
TITLE IV--VISA SECURITY
Sec. 401. Cancellation of additional visas.
Sec. 402. Visa information sharing.
Sec. 403. Restricting waiver of visa interviews.
Sec. 404. Authorizing the Department of State to not interview certain
ineligible visa applicants.
Sec. 405. Visa refusal and revocation.
Sec. 406. Funding for the visa security program.
Sec. 407. Expeditious expansion of visa security program to high-risk
posts.
Sec. 408. Expedited clearance and placement of Department of Homeland
Security personnel at overseas embassies and consular posts.
Sec. 409. Accreditation requirements.
Sec. 410. Visa fraud.
Sec. 411. Background checks.
Sec. 412. Number of designated school officials.
Sec. 413. Reporting requirement.
Sec. 414. Flight schools not certified by FAA.
Sec. 415. Revocation of accreditation.
Sec. 416. Report on risk assessment.
Sec. 417. Implementation of GAO recommendations.
Sec. 418. Implementation of SEVIS II.
Sec. 419. Definitions.
TITLE V--AID TO U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT OFFICERS
Sec. 501. ICE immigration enforcement agents.
Sec. 502. ICE detention enforcement officers.
Sec. 503. Ensuring the safety of ICE officers and agents.
Sec. 504. ICE Advisory Council.
Sec. 505. Pilot program for electronic field processing.
Sec. 506. Additional ICE deportation officers and support staff.
Sec. 507. Additional ICE prosecutors.
TITLE VI--MISCELLANEOUS ENFORCEMENT PROVISIONS
Sec. 601. Encouraging aliens to depart voluntarily.
Sec. 602. Deterring aliens ordered removed from remaining in the United
States unlawfully.
Sec. 603. Reinstatement of removal orders.
Sec. 604. Clarification with respect to definition of admission.
Sec. 605. Reports to Congress on the exercise and abuse of
prosecutorial discretion.
Sec. 606. Waiver of Federal laws with respect to border security
actions on Department of the Interior and Department of Agriculture
lands.
Sec. 607. Biometric entry and exit data system.
Sec. 608. Certain activities restricted.
Sec. 609. Border Patrol mobile and rapid response teams.
Sec. 610. GAO study on deaths in custody.
TITLE I--IMMIGRATION LAW ENFORCEMENT BY STATES AND LOCALITIES
SEC. 101. DEFINITIONS AND SEVERABILITY.
(a) State Defined.--For the purposes of this title, the term
``State'' has the meaning given to such term in section 101(a)(36) of
the Immigration and Nationality Act (8 U.S.C. 1101(a)(36)).
(b) Secretary Defined.--For the purpose of this title, the term
``Secretary'' means the Secretary of Homeland Security.
(c) Severability.--If any provision of this title, or the application
of such provision to any person or circumstance, is held invalid, the
remainder of this title, and the application of such provision to other
persons not similarly situated or to other circumstances, shall not be
affected by such invalidation.
SEC. 102. IMMIGRATION LAW ENFORCEMENT BY STATES AND LOCALITIES.
(a) In General.--Subject to section 274A(h)(2) of the Immigration and
Nationality Act (8 U.S.C. 1324a(h)(2)), States, or political
subdivisions of States, may enact, implement and enforce criminal
penalties that penalize the same conduct that is prohibited in the
criminal provisions of immigration laws (as defined in section
101(a)(17) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(17))), as long as the criminal penalties do not exceed the
relevant Federal criminal penalties (without regard to ancillary issues
such as the availability of probation or pardon). States, or political
subdivisions of States, may enact, implement and enforce civil
penalties that penalize the same conduct that is prohibited in the
civil provisions of immigration laws (as defined in such section
101(a)(17)), as long as the civil penalties do not exceed the relevant
Federal civil penalties.
(b) Law Enforcement Personnel.--Law enforcement personnel of a State,
or of a political subdivision of a State, may investigate, identify,
apprehend, arrest, detain, or transfer to Federal custody aliens for
the purposes of enforcing the immigration laws of the United States to
the same extent as Federal law enforcement personnel. Law enforcement
personnel of a State, or of a political subdivision of a State, may
also investigate, identify, apprehend, arrest, or detain aliens for the
purposes of enforcing the immigration laws of a State or of a political
subdivision of State, as long as those immigration laws are permissible
under this section. Law enforcement personnel of a State, or of a
political subdivision of a State, may not remove aliens from the United
States.
SEC. 103. LISTING OF IMMIGRATION VIOLATORS IN THE NATIONAL CRIME
INFORMATION CENTER DATABASE.
(a) Provision of Information to the NCIC.--Not later than 180 days
after the date of the enactment of this Act and periodically thereafter
as updates may require, the Secretary shall provide the National Crime
Information Center of the Department of Justice with all information
that the Secretary may possess regarding any alien against whom a final
order of removal has been issued, any alien who has entered into a
voluntary departure agreement, any alien who has overstayed their
authorized period of stay, and any alien whose visa has been revoked.
The National Crime Information Center shall enter such information into
the Immigration Violators File of the National Crime Information Center
database, regardless of whether--
(1) the alien received notice of a final order of removal;
(2) the alien has already been removed; or
(3) sufficient identifying information is available with
respect to the alien.
(b) Inclusion of Information in the NCIC Database.--
(1) In general.--Section 534(a) of title 28, United States
Code, is amended--
(A) in paragraph (3), by striking ``and'' at the end;
(B) by redesignating paragraph (4) as paragraph (5);
and
(C) by inserting after paragraph (3) the following:
``(4) acquire, collect, classify, and preserve records of
violations by aliens of the immigration laws of the United
States, regardless of whether any such alien has received
notice of the violation or whether sufficient identifying
information is available with respect to any such alien or
whether any such alien has already been removed from the United
States; and''.
(2) Effective date.--The Attorney General and the Secretary
shall ensure that the amendment made by paragraph (1) is
implemented by not later than 6 months after the date of the
enactment of this Act.
SEC. 104. TECHNOLOGY ACCESS.
States shall have access to Federal programs or technology directed
broadly at identifying inadmissible or deportable aliens.
SEC. 105. STATE AND LOCAL LAW ENFORCEMENT PROVISION OF INFORMATION
ABOUT APPREHENDED ALIENS.
(a) Provision of Information.--In compliance with section 642(a) of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1373) and section 434 of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (8 U.S.C. 1644), each State, and
each political subdivision of a State, shall provide the Secretary of
Homeland Security in a timely manner with the information specified in
subsection (b) with respect to each alien apprehended in the
jurisdiction of the State, or in the political subdivision of the
State, who is believed to be inadmissible or deportable.
(b) Information Required.--The information referred to in subsection
(a) is as follows:
(1) The alien's name.
(2) The alien's address or place of residence.
(3) A physical description of the alien.
(4) The date, time, and location of the encounter with the
alien and reason for stopping, detaining, apprehending, or
arresting the alien.
(5) If applicable, the alien's driver's license number and
the State of issuance of such license.
(6) If applicable, the type of any other identification
document issued to the alien, any designation number contained
on the identification document, and the issuing entity for the
identification document.
(7) If applicable, the license plate number, make, and model
of any automobile registered to, or driven by, the alien.
(8) A photo of the alien, if available or readily obtainable.
(9) The alien's fingerprints, if available or readily
obtainable.
(c) Annual Report on Reporting.--The Secretary shall maintain and
annually submit to the Congress a detailed report listing the States,
or the political subdivisions of States, that have provided information
under subsection (a) in the preceding year.
(d) Reimbursement.--The Secretary shall reimburse States, and
political subdivisions of a State, for all reasonable costs, as
determined by the Secretary, incurred by the State, or the political
subdivision of a State, as a result of providing information under
subsection (a).
(e) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary to carry out this section.
(f) Construction.--Nothing in this section shall require law
enforcement officials of a State, or of a political subdivision of a
State, to provide the Secretary with information related to a victim of
a crime or witness to a criminal offense.
(g) Effective Date.--This section shall take effect on the date that
is 120 days after the date of the enactment of this Act and shall apply
with respect to aliens apprehended on or after such date.
SEC. 106. FINANCIAL ASSISTANCE TO STATE AND LOCAL POLICE AGENCIES THAT
ASSIST IN THE ENFORCEMENT OF IMMIGRATION LAWS.
(a) Grants for Special Equipment for Housing and Processing Certain
Aliens.--From amounts made available to make grants under this section,
the Secretary shall make grants to States, and to political
subdivisions of States, for procurement of equipment, technology,
facilities, and other products that facilitate and are directly related
to investigating, apprehending, arresting, detaining, or transporting
aliens who are inadmissible or deportable, including additional
administrative costs incurred under this title.
(b) Eligibility.--To be eligible to receive a grant under this
section, a State, or a political subdivision of a State, must have the
authority to, and shall have a written policy and a practice to, assist
in the enforcement of the immigration laws of the United States in the
course of carrying out the routine law enforcement duties of such State
or political subdivision of a State. Entities covered under this
section may not have any policy or practice that prevents local law
enforcement from inquiring about a suspect's immigration status.
(c) Funding.--There is authorized to be appropriated for grants under
this section such sums as may be necessary for fiscal year 2014 and
each subsequent fiscal year.
(d) GAO Audit.--Not later than 3 years after the date of the
enactment of this Act, the Comptroller General of the United States
shall conduct an audit of funds distributed to States, and to political
subdivisions of a State, under subsection (a).
SEC. 107. INCREASED FEDERAL DETENTION SPACE.
(a) Construction or Acquisition of Detention Facilities.--
(1) In general.--The Secretary shall construct or acquire, in
addition to existing facilities for the detention of aliens,
detention facilities in the United States, for aliens detained
pending removal from the United States or a decision regarding
such removal. Each facility shall have a number of beds
necessary to effectuate the purposes of this title.
(2) Determinations.--The location of any detention facility
built or acquired in accordance with this subsection shall be
determined by the Secretary.
(b) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary to carry out this section.
(c) Technical and Conforming Amendment.--Section 241(g)(1) of the
Immigration and Nationality Act (8 U.S.C. 1231(g)(1)) is amended by
striking ``may expend'' and inserting ``shall expend''.
SEC. 108. FEDERAL CUSTODY OF INADMISSIBLE AND DEPORTABLE ALIENS IN THE
UNITED STATES APPREHENDED BY STATE OR LOCAL LAW
ENFORCEMENT.
(a) State Apprehension.--
(1) In general.--Title II of the Immigration and Nationality
Act (8 U.S.C. 1151 et seq.) is amended by inserting after
section 240C the following:
``custody of inadmissible and deportable aliens present in the united
states
``Sec. 240D. (a) Transfer of Custody by State and Local Officials.--
If a State, or a political subdivision of the State, exercising
authority with respect to the apprehension or arrest of an inadmissible
or deportable alien submits to the Secretary of Homeland Security a
request that the alien be taken into Federal custody, notwithstanding
any other provision of law, regulation, or policy the Secretary--
``(1) shall take the alien into custody not later than 48
hours after the detainer has been issued following the
conclusion of the State or local charging process or dismissal
process, or if no State or local charging or dismissal process
is required, the Secretary should issue a detainer and take the
alien into custody not later than 48 hours after the alien is
apprehended, in order to determine whether the alien should be
detained, placed in removal proceedings, released, or removed;
and
``(2) shall request that the relevant State or local law
enforcement agency temporarily hold the alien in their custody
or transport the alien for transfer to Federal custody.
``(b) Policy on Detention in Federal, Contract, State, or Local
Detention Facilities.--In carrying out section 241(g)(1), the Attorney
General or Secretary of Homeland Security shall ensure that an alien
arrested under this title shall be held in custody, pending the alien's
examination under this section, in a Federal, contract, State, or local
prison, jail, detention center, or other comparable facility.
Notwithstanding any other provision of law, regulation or policy, such
facility is adequate for detention, if--
``(1) such a facility is the most suitably located Federal,
contract, State, or local facility available for such purpose
under the circumstances;
``(2) an appropriate arrangement for such use of the facility
can be made; and
``(3) the facility satisfies the standards for the housing,
care, and security of persons held in custody by a United
States Marshal.
``(c) Reimbursement.--The Secretary of Homeland Security shall
reimburse a State, and a political subdivision of a State, for all
reasonable expenses, as determined by the Secretary, incurred by the
State, or political subdivision, as a result of the incarceration and
transportation of an alien who is inadmissible or deportable as
described in subsections (a) and (b). Compensation provided for costs
incurred under such subsections shall be the average cost of
incarceration of a prisoner in the relevant State, as determined by the
chief executive officer of a State, or of a political subdivision of a
State, plus the cost of transporting the alien from the point of
apprehension to the place of detention, and to the custody transfer
point if the place of detention and place of custody are different.
``(d) Secure Facilities.--The Secretary of Homeland Security shall
ensure that aliens incarcerated pursuant to this title are held in
facilities that provide an appropriate level of security.
``(e) Transfer.--
``(1) In general.--In carrying out this section, the
Secretary of Homeland Security shall establish a regular
circuit and schedule for the prompt transfer of apprehended
aliens from the custody of States, and political subdivisions
of a State, to Federal custody.
``(2) Contracts.--The Secretary may enter into contracts,
including appropriate private contracts, to implement this
subsection.''.
(2) Clerical amendment.--The table of contents of such Act is
amended by inserting after the item relating to section 240C
the following new item:
``Sec. 240D. Custody of inadmissible and deportable aliens present in
the United States.''.
(b) GAO Audit.--Not later than 3 years after the date of the
enactment of this Act, the Comptroller General of the United States
shall conduct an audit of compensation to States, and to political
subdivisions of a State, for the incarceration of inadmissible or
deportable aliens under section 240D(a) of the Immigration and
Nationality Act (as added by subsection (a)(1)).
(c) Effective Date.--Section 240D of the Immigration and Nationality
Act, as added by subsection (a), shall take effect on the date of the
enactment of this Act, except that subsection (e) of such section shall
take effect on the date that is 120 day after the date of the enactment
of this Act.
SEC. 109. TRAINING OF STATE AND LOCAL LAW ENFORCEMENT PERSONNEL
RELATING TO THE ENFORCEMENT OF IMMIGRATION LAWS.
(a) Establishment of Training Manual and Pocket Guide.--Not later
than 180 days after the date of the enactment of this Act, the
Secretary shall establish--
(1) a training manual for law enforcement personnel of a
State, or of a political subdivision of a State, to train such
personnel in the investigation, identification, apprehension,
arrest, detention, and transfer to Federal custody of
inadmissible and deportable aliens in the United States
(including the transportation of such aliens across State lines
to detention centers and the identification of fraudulent
documents); and
(2) an immigration enforcement pocket guide for law
enforcement personnel of a State, or of a political subdivision
of a State, to provide a quick reference for such personnel in
the course of duty.
(b) Availability.--The training manual and pocket guide established
in accordance with subsection (a) shall be made available to all State
and local law enforcement personnel.
(c) Applicability.--Nothing in this section shall be construed to
require State or local law enforcement personnel to carry the training
manual or pocket guide with them while on duty.
(d) Costs.--The Secretary shall be responsible for any costs incurred
in establishing the training manual and pocket guide.
(e) Training Flexibility.--
(1) In general.--The Secretary shall make training of State
and local law enforcement officers available through as many
means as possible, including through residential training at
the Center for Domestic Preparedness, onsite training held at
State or local police agencies or facilities, online training
courses by computer, teleconferencing, and videotape, or the
digital video display (DVD) of a training course or courses. E-
learning through a secure, encrypted distributed learning
system that has all its servers based in the United States, is
scalable, survivable, and can have a portal in place not later
than 30 days after the date of the enactment of this Act, shall
be made available by the Federal Law Enforcement Training
Center Distributed Learning Program for State and local law
enforcement personnel.
(2) Federal personnel training.--The training of State and
local law enforcement personnel under this section shall not
displace the training of Federal personnel.
(3) Clarification.--Nothing in this title or any other
provision of law shall be construed as making any immigration-
related training a requirement for, or prerequisite to, any
State or local law enforcement officer to assist in the
enforcement of Federal immigration laws.
(4) Priority.--In carrying out this subsection, priority
funding shall be given for existing web-based immigration
enforcement training systems.
SEC. 110. IMMUNITY.
Notwithstanding any other provision of law, a law enforcement officer
of a State or local law enforcement agency who is acting within the
scope of the officer's official duties shall be immune, to the same
extent as a Federal law enforcement officer, from personal liability
arising out of the performance of any duty described in this title,
including the authorities to investigate, identify, apprehend, arrest,
detain, or transfer to Federal custody, an alien for the purposes of
enforcing the immigration laws of the United States (as defined in
section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(17)) or the immigration laws of a State or a political
subdivision of a State.
SEC. 111. CRIMINAL ALIEN IDENTIFICATION PROGRAM.
(a) Continuation and Expansion.--
(1) In general.--The Secretary shall continue to operate and
implement a program that--
(A) identifies removable criminal aliens in Federal
and State correctional facilities;
(B) ensures such aliens are not released into the
community; and
(C) removes such aliens from the United States after
the completion of their sentences.
(2) Expansion.--The program shall be extended to all States.
Any State that receives Federal funds for the incarceration of
criminal aliens (pursuant to the State Criminal Alien
Assistance Program authorized under section 241(i) of the
Immigration and Nationality Act (8 U.S.C. 1231(i)) or other
similar program) shall--
(A) cooperate with officials of the program;
(B) expeditiously and systematically identify
criminal aliens in its prison and jail populations; and
(C) promptly convey such information to officials of
such program as a condition of receiving such funds.
(b) Authorization for Detention After Completion of State or Local
Prison Sentence.--Law enforcement officers of a State, or of a
political subdivision of a State, are authorized to--
(1) hold a criminal alien for a period of up to 14 days after
the alien has completed the alien's sentence under State or
local law in order to effectuate the transfer of the alien to
Federal custody when the alien is inadmissible or deportable;
or
(2) issue a detainer that would allow aliens who have served
a prison sentence under State or local law to be detained by
the State or local prison or jail until the Secretary can take
the alien into custody.
(c) Technology Usage.--Technology, such as video conferencing, shall
be used to the maximum extent practicable in order to make the program
available in remote locations. Mobile access to Federal databases of
aliens and live scan technology shall be used to the maximum extent
practicable in order to make these resources available to State and
local law enforcement agencies in remote locations.
(d) Effective Date.--This section shall take effect of the date of
the enactment of this Act, except that subsection (a)(2) shall take
effect on the date that is 180 days after such date.
SEC. 112. CLARIFICATION OF CONGRESSIONAL INTENT.
Section 287(g) of the Immigration and Nationality Act (8 U.S.C.
1357(g)) is amended--
(1) in paragraph (1) by striking ``may enter'' and all that
follows through the period at the end and inserting the
following: ``shall enter into a written agreement with a State,
or any political subdivision of a State, upon request of the
State or political subdivision, pursuant to which an officer or
employee of the State or subdivision, who is determined by the
Secretary to be qualified to perform a function of an
immigration officer in relation to the investigation,
apprehension, or detention of aliens in the United States
(including the transportation of such aliens across State lines
to detention centers), may carry out such function at the
expense of the State or political subdivision and to extent
consistent with State and local law. No request from a bona
fide State or political subdivision or bona fide law
enforcement agency shall be denied absent a compelling reason.
No limit on the number of agreements under this subsection may
be imposed. The Secretary shall process requests for such
agreements with all due haste, and in no case shall take not
more than 90 days from the date the request is made until the
agreement is consummated.'';
(2) by redesignating paragraph (2) as paragraph (5) and
paragraphs (3) through (10) as paragraphs (7) through (14),
respectively;
(3) by inserting after paragraph (1) the following:
``(2) An agreement under this subsection shall accommodate a
requesting State or political subdivision with respect to the
enforcement model or combination of models, and shall accommodate a
patrol model, task force model, jail model, any combination thereof, or
any other reasonable model the State or political subdivision believes
is best suited to the immigration enforcement needs of its
jurisdiction.
``(3) No Federal program or technology directed broadly at
identifying inadmissible or deportable aliens shall substitute for such
agreements, including those establishing a jail model, and shall
operate in addition to any agreement under this subsection.
``(4)(A) No agreement under this subsection shall be terminated
absent a compelling reason.
``(B)(i) The Secretary shall provide a State or political subdivision
written notice of intent to terminate at least 180 days prior to date
of intended termination, and the notice shall fully explain the grounds
for termination, along with providing evidence substantiating the
Secretary's allegations.
``(ii) The State or political subdivision shall have the right to a
hearing before an administrative law judge and, if the ruling is
against the State or political subdivision, to appeal the ruling to the
Federal Circuit Court of Appeals and, if the ruling is against the
State or political subdivision, to the Supreme Court.
``(C) The agreement shall remain in full effect during the course of
any and all legal proceedings.''; and
(4) by inserting after paragraph (5) (as redesignated) the
following:
``(6) The Secretary of Homeland Security shall make training of State
and local law enforcement officers available through as many means as
possible, including through residential training at the Center for
Domestic Preparedness and the Federal Law Enforcement Training Center,
onsite training held at State or local police agencies or facilities,
online training courses by computer, teleconferencing, and videotape,
or the digital video display (DVD) of a training course or courses.
Distance learning through a secure, encrypted distributed learning
system that has all its servers based in the United States, is
scalable, survivable, and can have a portal in place not later than 30
days after the date of the enactment of this Act, shall be made
available by the COPS Office of the Department of Justice and the
Federal Law Enforcement Training Center Distributed Learning Program
for State and local law enforcement personnel. Preference shall be
given to private sector-based web-based immigration enforcement
training programs for which the Federal Government has already provided
support to develop.''.
SEC. 113. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM (SCAAP).
Section 241(i) of the Immigration and Nationality Act (8 U.S.C.
1231(i)) is amended--
(1) by striking ``Attorney General'' the first place such
term appears and inserting ``Secretary of Homeland Security'';
(2) by striking ``Attorney General'' each place such term
appears thereafter and inserting ``Secretary'';
(3) in paragraph (3)(A), by inserting ``charged with or''
before ``convicted''; and
(4) by amending paragraph (5) to read as follows:
``(5) There are authorized to be appropriated to carry out
this subsection such sums as may be necessary for fiscal year
2014 and each subsequent fiscal year.''.
SEC. 114. STATE VIOLATIONS OF ENFORCEMENT OF IMMIGRATION LAWS.
(a) In General.--Section 642 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is amended--
(1) by striking ``Immigration and Naturalization Service''
each place it appears and inserting ``Department of Homeland
Security'';
(2) in subsection (a), by striking ``may'' and inserting
``shall'';
(3) in subsection (b)--
(A) by striking ``no person or agency may'' and
inserting ``a person or agency shall not'';
(B) by striking ``doing any of the following with
respect to information'' and inserting ``undertaking
any of the following law enforcement activities''; and
(C) by striking paragraphs (1) through (3) and
inserting the following:
``(1) Notifying the Federal Government regarding the presence
of inadmissible and deportable aliens who are encountered by
law enforcement personnel of a State or political subdivision
of a State.
``(2) Complying with requests for information from Federal
law enforcement.
``(3) Complying with detainers issued by the Department of
Homeland Security.
``(4) Issuing policies in the form of a resolutions,
ordinances, administrative actions, general or special orders,
or departmental policies that violate Federal law or restrict a
State or political subdivision of a State from complying with
Federal law or coordinating with Federal law enforcement.'';
and
(4) by adding at the end the following:
``(d) Compliance.--
``(1) In general.--A State, or a political subdivision of a
State, that has in effect a statute, policy, or practice that
prohibits law enforcement officers of the State, or of a
political subdivision of the State, from assisting or
cooperating with Federal immigration law enforcement in the
course of carrying out the officers' routine law enforcement
duties shall not be eligible to receive--
``(A) any of the funds that would otherwise be
allocated to the State or political subdivision under
section 241(i) of the Immigration and Nationality Act
(8 U.S.C. 1231(i)) or the `Cops on the Beat' program
under part Q of title I of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3796dd et
seq.); or
``(B) any other law enforcement or Department of
Homeland Security grant.
``(2) Annual determination.--The Secretary shall determine
annually which State or political subdivision of a State are
not in compliance with this section and shall report such
determinations to Congress on March 1 of each year.
``(3) Reports.--The Attorney General shall issue a report
concerning the compliance of any particular State or political
subdivision at the request of the House or Senate Judiciary
Committee. Any jurisdiction that is found to be out of
compliance shall be ineligible to receive Federal financial
assistance as provided in paragraph (1) for a minimum period of
1 year, and shall only become eligible again after the Attorney
General certifies that the jurisdiction is in compliance.
``(4) Reallocation.--Any funds that are not allocated to a
State or to a political subdivision of a State, due to the
failure of the State, or of the political subdivision of the
State, to comply with subsection (c) shall be reallocated to
States, or to political subdivisions of States, that comply
with such subsection.
``(e) Construction.--Nothing in this section shall require law
enforcement officials from States, or from political subdivisions of
States, to report or arrest victims or witnesses of a criminal
offense.''.
(b) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act, except that subsection
(d) of section 642 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1373), as added by this section,
shall take effect beginning one year after the date of the enactment of
this Act.
SEC. 115. CLARIFYING THE AUTHORITY OF ICE DETAINERS.
Except as otherwise provided by Federal law or rule of procedure, the
Secretary of Homeland Security shall execute all lawful writs, process,
and orders issued under the authority of the United States, and shall
command all necessary assistance to execute the Secretary's duties.
TITLE II--NATIONAL SECURITY
SEC. 201. REMOVAL OF, AND DENIAL OF BENEFITS TO, TERRORIST ALIENS.
(a) Asylum.--Section 208(b)(2)(A) of the Immigration and Nationality
Act (8 U.S.C. 1158(b)(2)(A)) is amended--
(1) by inserting ``or the Secretary of Homeland Security''
after ``if the Attorney General''; and
(2) by amending clause (v) to read as follows:
``(v) the alien is described in subparagraph
(B)(i) or (F) of section 212(a)(3), unless, in
the case of an alien described in subparagraph
(IV), (V), or (IX) of section 212(a)(3)(B)(i),
the Secretary of Homeland Security or the
Attorney General determines, in the discretion
of the Secretary or the Attorney General, that
there are not reasonable grounds for regarding
the alien as a danger to the security of the
United States; or''.
(b) Cancellation of Removal.--Section 240A(c)(4) of such Act (8
U.S.C. 1229b(c)(4)) is amended--
(1) by striking ``inadmissible under'' and inserting
``described in''; and
(2) by striking ``deportable under'' and inserting
``described in''.
(c) Voluntary Departure.--Section 240B(b)(1)(C) of such Act (8 U.S.C.
1229c(b)(1)(C)) is amended by striking ``deportable under section
237(a)(2)(A)(iii) or section 237(a)(4);'' and inserting ``described in
paragraph (2)(A)(iii) or (4) of section 237(a);''.
(d) Restriction on Removal.--Section 241(b)(3)(B) of such Act (8
U.S.C. 1231(b)(3)(B)) is amended--
(1) by inserting ``or the Secretary of Homeland Security''
after ``Attorney General'' each place it appears;
(2) in clause (iii), by striking ``or'' at the end;
(3) in clause (iv), by striking the period at the end and
inserting ``; or'';
(4) by inserting after clause (iv) the following:
``(v) the alien is described in subparagraph
(B)(i) or (F) of section 212(a)(3), unless, in
the case of an alien described in subparagraph
(IV), (V), or (IX) of section 212(a)(3)(B)(i),
the Secretary of Homeland Security or the
Attorney General determines, in discretion of
the Secretary or the Attorney General, that
there are not reasonable grounds for regarding
the alien as a danger to the security of the
United States.''; and
(5) by striking the final sentence.
(e) Record of Admission.--
(1) In general.--Section 249 of such Act (8 U.S.C. 1259) is
amended to read as follows:
``record of admission for permanent residence in the case of certain
aliens who entered the united states prior to january 1, 1972
``Sec. 249. The Secretary of Homeland Security, in the discretion of
the Secretary and under such regulations as the Secretary may
prescribe, may enter a record of lawful admission for permanent
residence in the case of any alien, if no such record is otherwise
available and the alien--
``(1) entered the United States before January 1, 1972;
``(2) has continuously resided in the United States since
such entry;
``(3) has been a person of good moral character since such
entry;
``(4) is not ineligible for citizenship;
``(5) is not described in paragraph (1)(A)(iv), (2), (3),
(6)(C), (6)(E), or (8) of section 212(a); and
``(6) did not, at any time, without reasonable cause fail or
refuse to attend or remain in attendance at a proceeding to
determine the alien's inadmissibility or deportability.
Such recordation shall be effective as of the date of approval of the
application or as of the date of entry if such entry occurred prior to
July 1, 1924.''.
(2) Clerical amendment.--The table of contents for such Act
is amended by amending the item relating to section 249 to read
as follows:
``Sec. 249. Record of admission for permanent residence in the case of
certain aliens who entered the United States prior to January 1,
1972.''.
(f) Effective Date.--The amendments made by this section shall take
effect on the date of enactment of this Act and sections 208(b)(2)(A),
212(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) of this subsection, acts and conditions
constituting a ground for exclusion, deportation, or removal
occurring or existing before, on, or after the date of the
enactment of this Act.
SEC. 202. TERRORIST BAR TO GOOD MORAL CHARACTER.
(a) Definition of Good Moral Character.--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:
``(2) one who the Secretary of Homeland Security or Attorney
General determines to have been at any time an alien described
in section 212(a)(3) or 237(a)(4), which determination may be
based upon any relevant information or evidence, including
classified, sensitive, or national security information;'';
(2) in paragraph (8), by inserting ``, regardless whether the
crime was classified as an aggravated felony at the time of
conviction, except that the Secretary of Homeland Security or
Attorney General may, in the unreviewable discretion of the
Secretary or Attorney General, determine that this paragraph
shall not apply in the case of a single aggravated felony
conviction (other than murder, manslaughter, homicide, rape, or
any sex offense when the victim of such sex offense was a
minor) for which completion of the term of imprisonment or the
sentence (whichever is later) occurred 10 or more years prior
to the date of application'' after ``(as defined in subsection
(a)(43))''; and
(3) in the matter following paragraph (9), by striking the
first sentence 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 or
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 Felons.--Section 509(b) of the Immigration Act of 1990
(8 U.S.C. 1101 note) 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.--Section
5504(2) of the Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108-458) is amended by striking ``adding at the end'' and
inserting ``inserting after paragraph (8)''.
(d) Effective Date.--The amendments made by subsections (a) and (b)
shall take effect on the date of 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
after such date. The amendments made by subsection (c) shall take
effect as if enacted in the Intelligence Reform and Terrorism
Prevention Act of 2004 (Public Law 108-458).
SEC. 203. TERRORIST BAR TO NATURALIZATION.
(a) Naturalization of Persons Endangering the National Security.--
Section 316 of the Immigration and Nationality Act (8 U.S.C. 1426) is
amended by adding at the end the following:
``(g) Persons Endangering the National Security.--No person shall be
naturalized who the Secretary of Homeland Security determines 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.''.
(b) Concurrent Naturalization and Removal Proceedings.--Section 318
of the Immigration and Nationality Act (8 U.S.C. 1429) is amended by
striking ``other Act;'' and inserting ``other Act; and no application
for naturalization shall be considered by the Secretary of Homeland
Security or any court if there is pending against the applicant any
removal proceeding 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 Secretary of
Homeland Security with respect to the question of whether such person
has established his eligibility for naturalization as required by this
title;''.
(c) Pending Denaturalization or Removal Proceedings.--Section 204(b)
of the Immigration and Nationality 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.--Sections 216(e) and section
216A(e) of the Immigration and Nationality Act (8 U.S.C. 1186a(e) and
1186b(e)) are each amended by striking the period at the end and
inserting ``, if the alien has had the conditional basis removed
pursuant to this section.''.
(e) District Court Jurisdiction.--Subsection 336(b) of the
Immigration and Nationality 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 of Homeland Security 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 of Homeland Security for the Secretary's determination
on the application.''.
(f) Conforming Amendment.--Section 310(c) of the Immigration and
Nationality Act (8 U.S.C. 1421(c)) is amended--
(1) by inserting ``, not later than the date that is 120 days
after the Secretary of Homeland Security's final
determination,'' after ``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,
whether, for purposes of an application for naturalization, an
alien is a person of good moral character, whether the 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 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 after, such date.
SEC. 204. DENATURALIZATION FOR TERRORISTS.
(a) In General.--Section 340 of the Immigration and Nationality Act
is amended--
(1) by redesignating subsections (f) through (h) as
subsections (g) through (i), respectively; and
(2) by inserting after subsection (e) the following:
``(f)(1) If a person who has been naturalized participates in any act
described in paragraph (2), the Attorney General is authorized to find
that, as of the date of such naturalization, such person was not
attached to the principles of the Constitution of the United States and
was not well disposed to the good order and happiness of the United
States at the time of naturalization, and upon such finding shall set
aside the order admitting such person to citizenship and cancel the
certificate of naturalization as having been obtained by concealment of
a material fact or by willful misrepresentation, and such revocation
and setting aside of the order admitting such person to citizenship and
such canceling of certificate of naturalization shall be effective as
of the original date of the order and certificate, respectively.
``(2) The acts described in this paragraph are the following:
``(A) Any activity a purpose of which is the opposition to,
or the control or overthrow of, the Government of the United
States by force, violence, or other unlawful means.
``(B) Engaging in a terrorist activity (as defined in clauses
(iii) and (iv) of section 212(a)(3)(B)).
``(C) Incitement of terrorist activity under circumstances
indicating an intention to cause death or serious bodily harm.
``(D) Receiving military-type training (as defined in section
2339D(c)(1) of title 18, United States Code) from or on behalf
of any organization that, at the time the training was
received, was a terrorist organization (as defined in section
212(a)(3)(B)(vi)).''.
(b) Effective Date.--The amendments made by subsection (a) shall take
effect on the date of the enactment of this Act and shall apply to acts
that occur on or after such date.
SEC. 205. USE OF 1986 IRCA LEGALIZATION INFORMATION FOR NATIONAL
SECURITY PURPOSES.
(a) Special Agricultural Workers.--Section 210(b)(6) of the
Immigration and Nationality Act (8 U.S.C. 1160(b)(6)) is amended--
(1) by striking ``Attorney General'' each place such term
appears and inserting ``Secretary of Homeland Security'';
(2) in subparagraph (A), by striking ``Department of
Justice,'' and inserting ``Department of Homeland Security,'';
(3) by redesignating subparagraphs (C) and (D) as
subparagraphs (D) and (E), respectively;
(4) by inserting after subparagraph (B) the following:
``(C) Authorized disclosures.--
``(i) Census purpose.--The Secretary of
Homeland Security may provide, in his
discretion, for the furnishing of information
furnished under this section in the same manner
and circumstances as census information may be
disclosed under section 8 of title 13, United
States Code.
``(ii) National security purpose.--The
Secretary of Homeland Security may provide, in
his discretion, for the furnishing, use,
publication, or release of information
furnished under this section in any
investigation, case, or matter, or for any
purpose, relating to terrorism, national
intelligence or the national security.''; and
(5) in subparagraph (D), as redesignated, by striking
``Service'' and inserting ``Department of Homeland Security''.
(b) Adjustment of Status Under the Immigration Reform and Control Act
of 1986.--Section 245A(c)(5) of the Immigration and Nationality Act (8
U.S.C. 1255a(c)(5)), is amended--
(1) by striking ``Attorney General'' each place such term
appears and inserting ``Secretary of Homeland Security'';
(2) in subparagraph (A), by striking ``Department of
Justice,'' and inserting ``Department of Homeland Security,'';
(3) by amending subparagraph (C) to read as follows:
``(C) Authorized disclosures.--
``(i) Census purpose.--The Secretary of
Homeland Security may provide, in his
discretion, for the furnishing of information
furnished under this section in the same manner
and circumstances as census information may be
disclosed under section 8 of title 13, United
States Code.
``(ii) National security purpose.--The
Secretary of Homeland Security may provide, in
his discretion, for the furnishing, use,
publication, or release of information
furnished under this section in any
investigation, case, or matter, or for any
purpose, relating to terrorism, national
intelligence or the national security.''; and
(4) in subparagraph (D)(i), striking ``Service'' and
inserting ``Department of Homeland Security''.
SEC. 206. BACKGROUND AND SECURITY CHECKS.
(a) Requirement To Complete Background and Security Checks.--Section
103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended
by adding at the end the following:
``(h) Notwithstanding any other provision of law (statutory or
nonstatutory), including but not limited to section 309 of Public Law
107-173, sections 1361 and 1651 of title 28, United States Code, and
section 706(1) of title 5, United States Code, neither the Secretary of
Homeland Security, the Attorney General, nor any court may--
``(1) grant, or order the grant of or adjudication of an
application for adjustment of status to that of an alien
lawfully admitted for permanent residence;
``(2) grant, or order the grant of or adjudication of an
application for United States citizenship or any other status,
relief, protection from removal, employment authorization, or
other benefit under the immigration laws;
``(3) grant, or order the grant of or adjudication of, any
immigrant or nonimmigrant petition; or
``(4) issue or order the issuance of any documentation
evidencing or related to any such grant, until such background
and security checks as the Secretary may in his discretion
require have been completed or updated to the satisfaction of
the Secretary.
``(i) Notwithstanding any other provision of law (statutory or
nonstatutory), including but not limited to section 309 of Public Law
107-173, sections 1361 and 1651 of title 28, United States Code, and
section 706(1) of title 5, United States Code, neither the Secretary of
Homeland Security nor the Attorney General may be required to--
``(1) grant, or order the grant of or adjudication of an
application for adjustment of status to that of an alien
lawfully admitted for permanent residence,
``(2) grant, or order the grant of or adjudication of an
application for United States citizenship or any other status,
relief, protection from removal, employment authorization, or
other benefit under the immigration laws,
``(3) grant, or order the grant of or adjudication of, any
immigrant or nonimmigrant petition, or
``(4) issue or order the issuance of any documentation
evidencing or related to any such grant, until any suspected or
alleged materially false information, material
misrepresentation or omission, concealment of a material fact,
fraud or forgery, counterfeiting, or alteration, or
falsification of a document, as determined by the Secretary,
relating to the adjudication of an application or petition for
any status (including the granting of adjustment of status),
relief, protection from removal, or other benefit under this
subsection has been investigated and resolved to the
Secretary's satisfaction.
``(j) Notwithstanding any other provision of law (statutory or
nonstatutory), including section 309 of the Enhanced Border Security
and Visa Entry Reform Act (8 U.S.C. 1738), sections 1361 and 1651 of
title 28, United States Code, and section 706(1) of title 5, United
States Code, no court shall have jurisdiction to require any of the
acts in subsection (h) or (i) to be completed by a certain time or
award any relief for failure to complete or delay in completing such
acts.''.
(b) Construction.--
(1) In general.--Chapter 4 of title III of the Immigration
and Nationality Act (8 U.S.C. 1501 et seq.) is amended by
adding at the end the following:
``construction
``Sec. 362. (a) In General.--Nothing in this Act or any other law,
except as provided in subsection (d), shall be construed to require the
Secretary of Homeland Security, the Attorney General, the Secretary of
State, the Secretary of Labor, or a consular officer to grant any
application, approve any petition, or grant or continue any relief,
protection from removal, employment authorization, or any other status
or benefit under the immigration laws by, to, or on behalf of--
``(1) any alien deemed by the Secretary to be described in
section 212(a)(3) or section 237(a)(4); or
``(2) any alien with respect to whom a criminal or other
proceeding or investigation is open or pending (including, but
not limited to, issuance of an arrest warrant, detainer, or
indictment), where such proceeding or investigation is deemed
by the official described in subsection (a) to be material to
the alien's eligibility for the status or benefit sought.
``(b) Denial or Withholding of Adjudication.--An official described
in subsection (a) may, in the discretion of the official, deny (with
respect to an alien described in paragraph (1) or (2) of subsection
(a)) or withhold adjudication of pending resolution of the
investigation or case (with respect to an alien described in subsection
(a)(2) of this section) any application, petition, relief, protection
from removal, employment authorization, status or benefit.
``(c) Jurisdiction.--Notwithstanding any other provision of law
(statutory or nonstatutory), including section 309 of the Enhanced
Border Security and Visa Entry Reform Act (8 U.S.C. 1738), sections
1361 and 1651 of title 28, United States Code, and section 706(1) of
title 5, United States Code, no court shall have jurisdiction to review
a decision to deny or withhold adjudication pursuant to subsection (b)
of this section.
``(d) Withholding of Removal and Torture Convention.--This section
does not limit or modify the applicability of section 241(b)(3) or the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, subject to any reservations,
understandings, declarations and provisos contained in the United
States Senate resolution of ratification of the Convention, as
implemented by section 2242 of the Foreign Affairs Reform and
Restructuring Act of 1998 (Public Law 105-277) with respect to an alien
otherwise eligible for protection under such provisions.''.
(2) Clerical amendment.--The table of contents for such Act
is amended by inserting after the item relating to section 361
the following:
``Sec. 362. Construction.''.
(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
applications for immigration benefits pending on or after such date.
SEC. 207. TECHNICAL AMENDMENTS RELATING TO THE INTELLIGENCE REFORM AND
TERRORISM PREVENTION ACT OF 2004.
(a) Transit Without Visa Program.--Section 7209(d) of the
Intelligence Reform and Terrorism Prevention Act of 2004 (8 U.S.C. 1185
note) is amended by striking ``the Secretary, in conjunction with the
Secretary of Homeland Security,'' and inserting ``the Secretary of
Homeland Security, in consultation with the Secretary of State,''.
(b) Technology Acquisition and Dissemination Plan.--Section
7201(c)(1) of such Act is amended by inserting ``and the Department of
State'' after ``used by the Department of Homeland Security''.
TITLE III--REMOVAL OF CRIMINAL ALIENS
SEC. 301. DEFINITION OF AGGRAVATED FELONY.
(a) Definition of Aggravated Felony.--Section 101(a)(43) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended--
(1) by striking ``The term `aggravated felony' means--'' and
inserting ``Notwithstanding any other provision of law, the
term `aggravated felony' applies to an offense described in
this paragraph, whether in violation of Federal or State law,
or in violation of the law of a foreign country for which the
term of imprisonment was completed within the previous 15
years, even if the length of the term of imprisonment for the
offense is based on recidivist or other enhancements and
regardless of whether the conviction was entered before, on, or
after September 30, 1996, and means--'';
(2) in subparagraph (A), by striking ``murder, rape, or
sexual abuse of a minor;'' and inserting ``murder,
manslaughter, homicide, rape (whether the victim was conscious
or unconscious), or any offense of a sexual nature involving a
victim under the age of 18 years;'';
(3) in subparagraph (I), by striking ``or 2252'' and
inserting ``2252, or 2252A''.
(4) in subparagraph (F), by striking ``at least one year;''
and inserting ``is at least one year, except that if the
conviction records do not conclusively establish whether a
crime constitutes a crime of violence, the Attorney General may
consider other evidence related to the conviction that clearly
establishes that the conduct for which the alien was engaged
constitutes a crime of violence;''
(5) in subparagraph (N)--
(A) by striking ``paragraph (1)(A) or (2) of''; and
(B) by inserting a semicolon at the end;
(6) 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
276 for which the term of imprisonment is at least 1 year'';
(7) in subparagraph (U), by striking ``an attempt or
conspiracy to commit an offense described in this paragraph''
and inserting ``attempting or conspiring to commit an offense
described in this paragraph, or aiding, abetting, counseling,
procuring, commanding, inducing, or soliciting the commission
of such an offense''; and
(8) by striking the undesignated matter following
subparagraph (U).
(b) Effective Date; Application of Amendments.--
(1) In general.--The amendments made by subsection (a)--
(A) shall take effect on the date of the enactment of
this Act; and
(B) shall apply to any act or conviction that
occurred before, on, or after such date.
(2) Application of iirira amendments.--The amendments to
section 101(a)(43) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(43)) made by section 321 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(division C of Public Law 104-208; 110 Stat. 3009-627) shall
continue to apply, whether the conviction was entered before,
on, or after September 30, 1996.
SEC. 302. PRECLUDING ADMISSIBILITY OF ALIENS CONVICTED OF AGGRAVATED
FELONIES OR OTHER SERIOUS OFFENSES.
(a) Inadmissibility on Criminal and Related Grounds; Waivers.--
Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is
amended--
(1) in subsection (a)(2)(A)(i)--
(A) in subclause (I), by striking ``or'' at the end;
(B) in subclause (II), by adding ``or'' at the end;
and
(C) by inserting after subclause (II) the following:
``(III) a violation of (or a
conspiracy or attempt to violate) an
offense described in section 408 of
title 42, United States Code (relating
to social security account numbers or
social security cards) or section 1028
of title 18, United States Code
(relating to fraud and related activity
in connection with identification
documents, authentication features, and
information),''.
(2) by adding at the end of subsection (a)(2) the following:
``(J) Procurement of citizenship or naturalization
unlawfully.--Any alien convicted of, or who admits
having committed, or who admits committing acts which
constitute the essential elements 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 (relating to the procurement of citizenship or
naturalization unlawfully) is inadmissible.
``(K) Certain firearm offenses.--Any alien who at any
time has been convicted under any law of, or who admits
having committed or admits committing acts which
constitute the essential elements of, purchasing,
selling, offering for sale, exchanging, using, owning,
possessing, or carrying, or of attempting or conspiring
to purchase, sell, offer for sale, exchange, use, own,
possess, or carry, any weapon, part, or accessory which
is a firearm or destructive device (as defined in
section 921(a) of title 18, United States Code) in
violation of any law is inadmissible.
``(L) Aggravated felons.--Any alien who has been
convicted of an aggravated felony at any time is
inadmissible.
``(M) Crimes of domestic violence, stalking, or
violation of protection orders, crimes against
children.--
``(i) Domestic violence, stalking, and child
abuse.--Any alien who at any time is convicted
of, or who admits having committed or 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. For purposes of this clause, 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.--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 persons for whom the
protection order was issued is inadmissible.
For purposes of this clause, 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
a independent order in another proceeding.
``(iii) Waiver authorized.--The waiver
authority available under section 237(a)(7)
with respect to section 237(a)(2)(E)(i) shall
be available on a comparable basis with respect
to this subparagraph.
``(iv) Clarification.--If the conviction
records do not conclusively establish whether a
crime of domestic violence constitutes a crime
of violence (as defined in section 16 of title
18, United States Code), the Attorney General
may consider other evidence related to the
conviction that clearly establishes that the
conduct for which the alien was engaged
constitutes a crime of violence.''; and
(3) in subsection (h)--
(A) 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 the Secretary, waive the
application of subparagraphs (A)(i)(I), (III), (B),
(D), (E), (K), and (M) of subsection (a)(2)'';
(B) by striking ``a criminal act involving torture.''
and inserting ``a criminal act involving torture, or
has been convicted of an aggravated felony.'';
(C) 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''; and
(D) by inserting ``or Secretary of Homeland
Security'' after ``the Attorney General'' each place it
appears.
(b) Deportability; Criminal Offenses.--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:
``(iv) of a violation of, or an attempt or a
conspiracy to violate, section 1425(a) or (b)
of title 18 (relating to the procurement of
citizenship or naturalization unlawfully),''.
(c) Deportability; Criminal Offenses.--Section 237(a)(2) of the
Immigration and Nationality Act (8 U.S.C. 1227(a)(2)) is amended by
adding at the end the following:
``(G) Fraud and related activity associated with
social security act benefits and identification
documents.--Any alien who at any time after admission
has been convicted of a violation of (or a conspiracy
or attempt to violate) section 208 of the Social
Security Act (42 U.S.C. 408) (relating to social
security account numbers or social security cards) or
section 1028 of title 18, United States Code (relating
to fraud and related activity in connection with
identification) is deportable.''.
(d) Effective Date.--The amendments made by this section 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.
(e) Construction.--The amendments made by subsection (a) shall not be
construed to create eligibility for relief from removal under former
section 212(c) of the Immigration and Nationality Act where such
eligibility did not exist before these amendments became effective.
SEC. 303. ESPIONAGE CLARIFICATION.
Section 212(a)(3)(A) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(A)), is amended to read as follows:
``(A) In general.--Any alien who a consular officer,
the Attorney General, or the Secretary of Homeland
Security knows, or has reasonable ground to believe,
seeks to enter the United States to engage solely,
principally, or incidentally in, or who is engaged in,
or with respect to clauses (i) and (iii) of this
subparagraph has engaged in--
``(i) any activity--
``(I) to violate any law of the
United States relating to espionage or
sabotage; or
``(II) to violate or evade any law
prohibiting the export from the United
States of goods, technology, or
sensitive information;
``(ii) any other unlawful activity; or
``(iii) any activity a purpose of which is
the opposition to, or the control or overthrow
of, the Government of the United States by
force, violence, or other unlawful means;
is inadmissible.''.
SEC. 304. PROHIBITION OF THE SALE OF FIREARMS TO, OR THE POSSESSION OF
FIREARMS BY, CERTAIN ALIENS.
Section 922 of title 18, United States Code, is amended--
(1) in subsection (d)(5), in subparagraph (B), by striking
``(y)(2)'' and all that follows and inserting ``(y), is in the
United States not as an alien lawfully admitted for permanent
residence;'';
(2) in subsection (g)(5), in subparagraph (B), by striking
``(y)(2)'' and all that follows and inserting ``(y), is in the
United States not as an alien lawfully admitted for permanent
residence;''; and
(3) in subsection (y)--
(A) in the header, by striking ``Admitted Under
Nonimmigrant Visas.--'' and inserting ``Not Lawfully
Admitted for Permanent Residence.--'';
(B) in paragraph (1), by amending subparagraph (B) to
read as follows:
``(B) the term `lawfully admitted for permanent
residence' has the same meaning as in section
101(a)(20) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(20)).''.
(C) in paragraph (2), by striking ``under a
nonimmigrant visa'' and inserting ``but not lawfully
admitted for permanent residence''; and
(D) in paragraph (3)(A), by striking ``admitted to
the United States under a nonimmigrant visa'' and
inserting ``lawfully admitted to the United States but
not as an alien lawfully admitted for permanent
residence''.
SEC. 305. UNIFORM STATUTE OF LIMITATIONS FOR CERTAIN IMMIGRATION,
NATURALIZATION, AND PEONAGE OFFENSES.
Section 3291 of title 18, United States Code, is amended by striking
``No person'' and all that follows through the period at the end and
inserting the following: ``No person shall be prosecuted, tried, or
punished for a violation of any section of chapters 69 (relating to
nationality and citizenship offenses) and 75 (relating to passport,
visa, and immigration offenses), or for a violation of any criminal
provision of sections 243, 266, 274, 275, 276, 277, or 278 of the
Immigration and Nationality Act, or for an attempt or conspiracy to
violate any such section, unless the indictment is returned or the
information is filed within ten years after the commission of the
offense.''.
SEC. 306. CONFORMING AMENDMENT TO THE DEFINITION OF RACKETEERING
ACTIVITY.
Section 1961(1) of title 18, United States Code, is amended by
striking ``section 1542'' through ``section 1546 (relating to fraud and
misuse of visas, permits, and other documents)'' and inserting
``sections 1541-1548 (relating to passports and visas)''.
SEC. 307. CONFORMING AMENDMENTS FOR THE AGGRAVATED FELONY DEFINITION.
(a) In General.--Subparagraph (P) of section 101(a)(43) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended--
(1) by striking ``(i) which either is falsely making,
forging, counterfeiting, mutilating, or altering a passport or
instrument in violation of section 1543 of title 18, United
States Code, or is described in section 1546(a) of such title
(relating to document fraud) and (ii)'' and inserting ``which
is described in any section of chapter 75 of title 18, United
States Code,''; and
(2) by inserting after ``first offense'' the following: ``(i)
that is not described in section 1548 of such title (relating
to increased penalties), and (ii)''.
(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 acts
that occur before, on, or after the date of the enactment of this Act.
SEC. 308. PRECLUDING REFUGEE OR ASYLEE ADJUSTMENT OF STATUS FOR
AGGRAVATED FELONS.
(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 thereof 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. 309. INADMISSIBILITY, DEPORTABILITY, AND DETENTION OF DRUNK
DRIVERS.
(a) In General.--Section 101(a)(43) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(43)) (as amended by this Act) is
further amended--
(1) in subparagraph (T), by striking ``and'';
(2) in subparagraph (U), by striking the period at the end
and inserting ``; and''; and
(3) by inserting after subparagraph (U) the following:
``(V) a second or subsequent conviction for driving while
intoxicated (including a conviction for driving while under the
influence of or impaired by alcohol or drugs) without regard to
whether the conviction is classified as a misdemeanor or felony
under State law.''.
(b) Detention.--Section 236(c)(1) of the Immigration and Nationality
Act (8 U.S.C. 1226(c)(1)) is amended--
(1) in subparagraph (C), by striking ``or'' at the end;
(2) in subparagraph (D), by adding ``or'' at the end; and
(3) by inserting after subparagraph (D) the following:
``(E) is unlawfully present in the United States and
has been convicted one or multiple times for driving
while intoxicated (including a conviction for driving
while under the influence or impaired by alcohol or
drugs) without regard to whether the conviction is
classified as a misdemeanor or felony under State
law,''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act and apply to
convictions entered on or after such date.
SEC. 310. DETENTION OF DANGEROUS ALIENS.
(a) In General.--Section 241(a) of the Immigration and Nationality
Act (8 U.S.C. 1231(a)) is amended--
(1) by striking ``Attorney General'' each place it appears,
except for the first reference in paragraph (4)(B)(i), and
inserting ``Secretary of Homeland Security'';
(2) in paragraph (1), by amending subparagraph (B) to read as
follows:
``(B) Beginning of period.--The removal period begins
on the latest of the following:
``(i) The date the order of removal becomes
administratively final.
``(ii) If the alien is not in the custody of
the Secretary on the date the order of removal
becomes administratively final, the date the
alien is taken into such custody.
``(iii) If the alien is detained or confined
(except under an immigration process) on the
date the order of removal becomes
administratively final, the date the alien is
taken into the custody of the Secretary, after
the alien is released from such detention or
confinement.'';
(3) in paragraph (1), by amending subparagraph (C) to read as
follows:
``(C) Suspension of period.--
``(i) Extension.--The removal period shall be
extended beyond a period of 90 days and the
Secretary may, in the Secretary's sole
discretion, keep the alien in detention during
such extended period if--
``(I) 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
that is subject to an order of removal;
``(II) a court, the Board of
Immigration Appeals, or an immigration
judge orders a stay of removal of an
alien who is subject to an
administratively final order of
removal;
``(III) the Secretary transfers
custody of the alien pursuant to law to
another Federal agency or a State or
local government agency in connection
with the official duties of such
agency; or
``(IV) a court or the Board of
Immigration Appeals orders a remand to
an immigration judge or the Board of
Immigration Appeals, during the time
period when the case is pending a
decision on remand (with the removal
period beginning anew on the date that
the alien is ordered removed on
remand).
``(ii) Renewal.--If the removal period has
been extended under clause (C)(i), a new
removal period shall be deemed to have begun on
the date--
``(I) the alien makes 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;
``(II) the stay of removal is no
longer in effect; or
``(III) the alien is returned to the
custody of the Secretary.
``(iii) Mandatory detention for certain
aliens.--In the case of an alien described in
subparagraphs (A) through (D) of section
236(c)(1), the Secretary shall keep that alien
in detention during the extended period
described in clause (i).
``(iv) Sole form of relief.--An alien may
seek relief from detention under this
subparagraph only by filing an application for
a writ of habeas corpus in accordance with
chapter 153 of title 28, United States Code. No
alien whose period of detention is extended
under this subparagraph shall have the right to
seek release on bond.'';
(4) in paragraph (3)--
(A) by adding after ``If the alien does not leave or
is not removed within the removal period'' the
following: ``or is not detained pursuant to paragraph
(6) of this subsection''; and
(B) by striking subparagraph (D) and inserting the
following:
``(D) to obey reasonable restrictions on the alien's
conduct or activities that the Secretary prescribes for
the alien, in order to prevent the alien from
absconding, for the protection of the community, or for
other purposes related to the enforcement of the
immigration laws.'';
(5) in paragraph (4)(A), by striking ``paragraph (2)'' and
inserting ``subparagraph (B)''; and
(6) by striking paragraph (6) and inserting the following:
``(6) Additional rules for detention or release of certain
aliens.--
``(A) Detention review process for cooperative aliens
established.--For an alien who is not otherwise subject
to mandatory detention, who has made all reasonable
efforts to comply with a removal order and to cooperate
fully with the Secretary of Homeland Security'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, and who has not conspired or
acted to prevent removal, the Secretary shall establish
an administrative review process to determine whether
the alien should be detained or released on conditions.
The Secretary shall make a determination whether to
release an alien after the removal period in accordance
with subparagraph (B). The determination shall include
consideration of any evidence submitted by the alien,
and may include consideration of any other evidence,
including any information or assistance provided by the
Secretary of State or other Federal official and any
other information available to the Secretary of
Homeland Security pertaining to the ability to remove
the alien.
``(B) Authority to detain beyond removal period.--
``(i) In general.--The Secretary of Homeland
Security, in the exercise of the Secretary's
sole discretion, may continue to detain an
alien for 90 days beyond the removal period
(including any extension of the removal period
as provided in paragraph (1)(C)). An alien
whose detention is extended under this
subparagraph shall have no right to seek
release on bond.
``(ii) Specific circumstances.--The Secretary
of Homeland Security, in the exercise of the
Secretary's sole discretion, may continue to
detain an alien beyond the 90 days authorized
in clause (i)--
``(I) until the alien is removed, if
the Secretary, in the Secretary's sole
discretion, determines that there is a
significant likelihood that the alien--
``(aa) will be removed in the
reasonably foreseeable future;
or
``(bb) 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
cooperate fully 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 removal;
``(II) until the alien is removed, if
the Secretary of Homeland Security
certifies in writing--
``(aa) in consultation with
the Secretary of Health and
Human Services, that the alien
has a highly contagious disease
that poses a threat to public
safety;
``(bb) after receipt of a
written recommendation from the
Secretary of State, that
release of the alien is likely
to have serious adverse foreign
policy consequences for the
United States;
``(cc) based on information
available to the Secretary of
Homeland Security (including
classified, sensitive, or
national security information,
and without regard to the
grounds upon which the alien
was ordered removed), that
there is reason to believe that
the release of the alien would
threaten the national security
of the United States; or
``(dd) that 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
either (AA) the alien has been
convicted of one or more
aggravated felonies (as defined
in section 101(a)(43)(A)) or of
one or more crimes identified
by the Secretary of Homeland
Security by regulation, or of
one or more attempts or
conspiracies to commit any such
aggravated felonies or such
identified crimes, if the
aggregate term of imprisonment
for such attempts or
conspiracies is at least 5
years; or (BB) the alien has
committed one or more crimes of
violence (as defined in section
16 of title 18, United States
Code, but not including a
purely political offense) 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;
or
``(III) pending a certification under
subclause (II), so long as the
Secretary of Homeland Security has
initiated the administrative review
process not later than 30 days after
the expiration of the removal period
(including any extension of the removal
period, as provided in paragraph
(1)(C)).
``(iii) No right to bond hearing.--An alien
whose detention is extended under this
subparagraph shall have no right to seek
release on bond, including by reason of a
certification under clause (ii)(II).
``(C) Renewal and delegation of certification.--
``(i) Renewal.--The Secretary of Homeland
Security may renew a certification under
subparagraph (B)(ii)(II) every 6 months, 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
subparagraph (B)(ii)(II).
``(ii) Delegation.--Notwithstanding section
103, the Secretary of Homeland Security may not
delegate the authority to make or renew a
certification described in item (bb), (cc), or
(dd) of subparagraph (B)(ii)(II) below the
level of the Assistant Secretary for
Immigration and Customs Enforcement.
``(iii) Hearing.--The Secretary of Homeland
Security may request that the Attorney General
or the Attorney General's designee provide for
a hearing to make the determination described
in item (dd)(BB) of subparagraph (B)(ii)(II).
``(D) Release on conditions.--If it is determined
that an alien should be released from detention by a
Federal court, the Board of Immigration Appeals, or if
an immigration judge orders a stay of removal, the
Secretary of Homeland Security, in the exercise of the
Secretary's discretion, may impose conditions on
release as provided in paragraph (3).
``(E) Redetention.--The Secretary of Homeland
Security, in the exercise of the Secretary's
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 removal becomes likely in the reasonably
foreseeable future, the alien fails to comply with the
conditions of release, or to continue to satisfy the
conditions described in subparagraph (A), or if, upon
reconsideration, the Secretary, in the Secretary's sole
discretion, determines that the alien can be detained
under subparagraph (B). This section shall apply to any
alien returned to custody pursuant to this
subparagraph, as if the removal period terminated on
the day of the redetention.
``(F) Review of determinations by secretary.--A
determination by the Secretary under this paragraph
shall not be subject to review by any other agency.''.
(b) Detention of Aliens During Removal Proceedings.--
(1) Clerical amendment.--(A) Section 236 of the Immigration
and Nationality Act (8 U.S.C. 1226) is amended by striking
``Attorney General'' each place it appears (except in the
second place that term appears in section 236(a)) and inserting
``Secretary of Homeland Security''.
(B) Section 236(a) of such Act (8 U.S.C. 1226(a)) is amended
by inserting ``the Secretary of Homeland Security or'' before
``the Attorney General--''.
(C) Section 236(e) of such Act (8 U.S.C. 1226(e)) is amended
by striking ``Attorney General's'' and inserting ``Secretary of
Homeland Security's''.
(2) Length of detention.--Section 236 of such Act (8 U.S.C.
1226) is amended by adding at the end the following:
``(f) Length of Detention.--
``(1) In general.--Notwithstanding any other provision of
this section, an alien may be detained under this section for
any period, without limitation, except as provided in
subsection (h), until the alien is subject to a final order of
removal.
``(2) Construction.--The length of detention under this
section shall not affect detention under section 241.''.
(3) Detention of criminal aliens.--Section 236(c)(1) of the
Immigration and Nationality Act (8 U.S.C. 1226(c)(1)) (as added
by section 309(b)(3)) is further amended, in the matter
following subparagraph (E) to read as follows:
``any time after the alien is released, without regard to
whether an alien is released related to any activity, offense,
or conviction described in this paragraph; to whether the alien
is released on parole, supervised release, or probation; or to
whether the alien may be arrested or imprisoned again for the
same offense. If the activity described in this paragraph does
not result in the alien being taken into custody by any person
other than the Secretary, then when the alien is brought to the
attention of the Secretary or when the Secretary determines it
is practical to take such alien into custody, the Secretary
shall take such alien into custody.''.
(4) Administrative review.--Section 236 of the Immigration
and Nationality Act (8 U.S.C. 1226), as amended by paragraph
(2), is further amended by adding at the end the following:
``(g) Administrative Review.--
``(1) In general.--The Attorney General's review of the
Secretary's custody determinations under subsection (a) for the
following classes of aliens shall be limited to whether the
alien may be detained, released on bond (of at least $1,500
with security approved by the Secretary), or released with no
bond:
``(A) Aliens in exclusion proceedings.
``(B) Aliens described in section 212(a)(3) or
237(a)(4).
``(C) Aliens described in subsection (c).
``(2) Special rule.--The Attorney General's review of the
Secretary's custody determinations under subsection (a) for
aliens in deportation proceedings subject to section 242(a)(2)
of the Act (as in effect prior to April 1, 1997, and as amended
by section 440(c) of Public Law 104-132) shall be limited to a
determination of whether the alien is properly included in such
category.
``(h) Release on Bond.--
``(1) In general.--An alien detained under subsection (a) may
seek release on bond. No bond may be granted except to an alien
who establishes by clear and convincing evidence that the alien
is not a flight risk or a risk to another person or the
community.
``(2) Certain aliens ineligible.--No alien detained under
subsection (c) may seek release on bond.''.
(5) Clerical amendments.--(A) Section 236(a)(2)(B) of the
Immigration and Nationality Act (8 U.S.C. 1226(a)(2)(B)) is
amended by striking ``conditional parole'' and inserting
``recognizance''.
(B) Section 236(b) of such Act (8 U.S.C. 1226(b)) is amended
by striking ``parole'' and inserting ``recognizance''.
(c) Severability.--If any of the provisions of this section or any
amendment by this section, or the application of any such provision to
any person or circumstance, is held to be invalid for any reason, the
remainder of this section and of amendments made by this section, and
the application of the provisions and of the amendments made by this
section to any other person or circumstance shall not be affected by
such holding.
(d) Effective Dates.--
(1) 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 so amended, shall in
addition apply to--
(A) all aliens subject to a final administrative
removal, deportation, or exclusion order that was
issued before, on, or after the date of the enactment
of this Act; and
(B) acts and conditions occurring or existing before,
on, or after such date.
(2) The amendments made by subsection (b) shall take effect
upon the date of the enactment of this Act, and section 236 of
the Immigration and Nationality Act, as so amended, shall in
addition apply to any alien in detention under provisions of
such section on or after such date.
SEC. 311. GROUNDS OF INADMISSIBILITY AND DEPORTABILITY FOR ALIEN GANG
MEMBERS.
(a) Definition of Gang Member.--Section 101(a) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the end the
following:
``(53)(A) The term `criminal gang' means an ongoing group, club,
organization, or association of 5 or more persons that has as one of
its primary purposes the commission of 1 or more of the following
criminal offenses and the members of which engage, or have engaged
within the past 5 years, in a continuing series of such offenses, or
that has been designated as a criminal gang by the Secretary of
Homeland Security, in consultation with the Attorney General, as
meeting these criteria. The offenses described, whether in violation of
Federal or State law or foreign law and regardless of whether the
offenses occurred before, on, or after the date of the enactment of
this paragraph, are the following:
``(i) A `felony drug offense' (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802)).
``(ii) An offense 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).
``(iii) A crime of violence (as defined in section 16 of
title 18, United States Code).
``(iv) A crime involving obstruction of justice, tampering
with or retaliating against a witness, victim, or informant, or
burglary.
``(v) Any conduct punishable under sections 1028 and 1029 of
title 18, United States Code (relating to fraud and related
activity in connection with identification documents or access
devices), sections 1581 through 1594 of such title (relating to
peonage, slavery and trafficking in persons), 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).
``(vi) A conspiracy to commit an offense described in clauses
(i) through (v).
``(B) Notwithstanding any other provision of law (including any
effective date), the term applies regardless of whether the conduct
occurred before, on, or after the date of the enactment of this
paragraph.''.
(b) Inadmissibility.--Section 212(a)(2) of such Act (8 U.S.C.
1182(a)(2)), as amended by section 302(a)(2) of this Act, is further
amended by adding at the end the following:
``(N) Aliens associated with criminal gangs.--Any
alien is inadmissible who a consular officer, the
Secretary of Homeland Security, or the Attorney General
knows or has reason to believe--
``(i) to be or to have been a member of a
criminal gang (as defined in section
101(a)(53)); or
``(ii) to have participated in the activities
of a criminal gang (as defined in section
101(a)(53)), knowing or having reason to know
that such activities will promote, further,
aid, or support the illegal activity of the
criminal gang.''.
(c) Deportability.--Section 237(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1227(a)(2)), as amended by section 302(c) of
this Act, is further amended by adding at the end the following:
``(H) Aliens associated with criminal gangs.--Any
alien is deportable who the Secretary of Homeland
Security or the Attorney General knows or has reason to
believe--
``(i) is or has been a member of a criminal
gang (as defined in section 101(a)(53)); or
``(ii) has participated in the activities of
a criminal gang (as so defined), knowing or
having reason to know that such activities will
promote, further, aid, or support the illegal
activity of the criminal gang.''.
(d) Designation.--
(1) In general.--Chapter 2 of title II of the Immigration and
Nationality Act (8 U.S.C. 1182) is amended by inserting after
section 219 the following:
``designation
``Sec. 220. (a) In General.--The Secretary of Homeland Security, in
consultation with the Attorney General, and the Secretary of State may
designate a group or association as a criminal street gang if their
conduct is described in section 101(a)(53) or if the group or
association conduct poses a significant risk that threatens the
security and the public safety of United States nationals or the
national security, homeland security, foreign policy, or economy of the
United States.
``(b) Effective Date.--Designations under subsection (a) shall remain
in effect until the designation is revoked after consultation between
the Secretary of Homeland Security, the Attorney General, and the
Secretary of State or is terminated in accordance with Federal law.''.
(2) Clerical amendment.--The table of contents for such Act
is amended by inserting after the item relating to section 219
the following:
``220. Designation.''.
(e) 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)(N)'' after
``212(a)(3)(B)''; and
(B) by inserting ``237(a)(2)(H) 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).
(f) Asylum Claims Based on Gang Affiliation.--
(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)(N)(i) or section 237(a)(2)(H)(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)) (as amended by this Act) is
further 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)(N)(i) or section 237(a)(2)(H)(i)
(relating to participation in criminal street
gangs); or''.
(g) Temporary Protected Status.--Section 244 of such Act (8 U.S.C.
1254a) is amended--
(1) by striking ``Attorney General'' each place it appears
and inserting ``Secretary of Homeland Security'';
(2) in subparagraph (c)(2)(B)--
(A) in clause (i), by striking ``or'' at the end;
(B) in clause (ii), by striking the period and
inserting ``; or''; and
(C) by adding at the end the following:
``(iii) the alien is, or at any time after
admission has been, a member of a criminal gang
(as defined in section 101(a)(53)).''; and
(3) in subsection (d)--
(A) by striking paragraph (3); and
(B) in paragraph (4), by adding at the end the
following: ``The Secretary of Homeland Security may
detain an alien provided temporary protected status
under this section whenever appropriate under any other
provision of law.''.
(h) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act and shall apply to acts
that occur before, on, or after the date of the enactment of this Act.
SEC. 312. EXTENSION OF IDENTITY THEFT OFFENSES.
(a) Fraud and Related Activities Relating to Identification
Documents.--Section 1028 of title 18, United States Code, is amended in
subsection (a)(7), by striking ``of another person'' and inserting
``that is not his or her own''.
(b) Aggravated Identity Theft.--Section 1028A(a) of title 18, United
States Code, is amended by striking ``of another person'' both places
it appears and inserting ``that is not his or her own''.
SEC. 313. LAUNDERING OF MONETARY INSTRUMENTS.
(a) Additional Predicate Offenses.--Section 1956(c)(7)(D) of title
18, United States Code, is amended--
(1) by inserting ``section 1590 (relating to trafficking with
respect to peonage, slavery, involuntary servitude, or forced
labor),'' after ``section 1363 (relating to destruction of
property within the special maritime and territorial
jurisdiction),''; and
(2) by inserting ``section 274(a) of the Immigration and
Nationality Act (8 U.S.C.1324(a)) (relating to bringing in and
harboring certain aliens),'' after ``section 590 of the Tariff
Act of 1930 (19 U.S.C. 1590) (relating to aviation
smuggling),''.
(b) Intent To Conceal or Disguise.--Section 1956(a) of title 18,
United States Code, is amended--
(1) in paragraph (1) so that subparagraph (B) reads as
follows:
``(B) knowing that the transaction--
``(i) conceals or disguises, or is intended to
conceal or disguise, the nature, source, location,
ownership, or control of the proceeds of some form of
unlawful activity; or
``(ii) avoids, or is intended to avoid, a transaction
reporting requirement under State or Federal law,'';
and
(2) in paragraph (2) so that subparagraph (B) reads as
follows:
``(B) knowing that the monetary instrument or funds involved
in the transportation, transmission, or transfer represent the
proceeds of some form of unlawful activity, and knowing that
such transportation, transmission, or transfer--
``(i) conceals or disguises, or is intended to
conceal or disguise, the nature, source, location,
ownership, or control of the proceeds of some form of
unlawful activity; or
``(ii) avoids, or is intended to avoid, a transaction
reporting requirement under State or Federal law,''.
SEC. 314. INCREASED CRIMINAL PENALTIES RELATING TO 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:
``SEC. 274. ALIEN SMUGGLING AND RELATED OFFENSES.
``(a) Criminal Offenses and Penalties.--
``(1) Prohibited activities.--Except as provided in paragraph
(3), a person shall be punished as provided under paragraph
(2), if the person--
``(A) facilitates, encourages, directs, or induces a
person to come to or enter the United States, or to
cross the border to the United States, knowing or in
reckless disregard of the fact that such person is an
alien who lacks lawful authority to come to, enter, or
cross the border to the United States;
``(B) facilitates, encourages, directs, or induces a
person to come to or enter the United States, or to
cross the border to 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,
knowing or in reckless disregard of the fact that such
person is an alien and regardless of whether such alien
has official permission or lawful authority to be in
the United States;
``(C) 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 alien is seeking to enter
the United States without official permission or lawful
authority;
``(D) encourages or induces a person to reside 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 the United States;
``(E) 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, if the
transportation or movement will further the alien's
illegal entry into or illegal presence in the United
States;
``(F) 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; or
``(G) conspires or attempts to commit any of the acts
described in subparagraphs (A) through (F).
``(2) Criminal penalties.--A person who violates any
provision under paragraph (1) shall, for each alien in respect
to whom a violation of paragraph (1) occurs--
``(A) except as provided in subparagraphs (C) through
(G), if the violation was not committed for commercial
advantage, profit, or private financial gain, be fined
under title 18, United States Code, imprisoned for not
more than 5 years, or both;
``(B) except as provided in subparagraphs (C) through
(G), if the violation was committed for commercial
advantage, profit, or private financial gain--
``(i) be fined under such title, imprisoned
for not more than 20 years, or both, if the
violation is the offender's first violation
under this subparagraph; or
``(ii) be fined under such title, imprisoned
for not less than 3 years or more than 20
years, or both, if the violation is the
offender's second or subsequent violation of
this subparagraph;
``(C) if the violation furthered or aided the
commission of any other offense against the United
States or any State that is punishable by imprisonment
for more than 1 year, be fined under such title,
imprisoned for not less than 5 years or more than 20
years, or both;
``(D) be fined under such title, imprisoned not less
than 5 years or more than 20 years, or both, if the
violation created a substantial and foreseeable risk of
death, a substantial and foreseeable risk of serious
bodily injury (as defined in section 2119(2) of title
18, United States Code), or inhumane conditions to
another person, including--
``(i) transporting the person in an engine
compartment, storage compartment, or other
confined space;
``(ii) transporting the person at an
excessive speed or in excess of the rated
capacity of the means of transportation; or
``(iii) transporting the person in, harboring
the person in, or otherwise subjecting the
person to crowded or dangerous conditions;
``(E) if the violation caused serious bodily injury
(as defined in section 2119(2) of title 18, United
States Code) to any person, be fined under such title,
imprisoned for not less than 7 years or more than 30
years, or both;
``(F) be fined under such title and imprisoned for
not less than 10 years or more than 30 years if the
violation involved an alien who the offender knew or
had reason to believe was--
``(i) engaged in terrorist activity (as
defined in section 212(a)(3)(B)); or
``(ii) intending to engage in terrorist
activity; or
``(G) if the violation caused or resulted in the
death of any person, be punished by death or imprisoned
for a term of years not less than 10 years and up to
life, and fined under title 18, United States Code.
``(3) Limitation.--It is not a violation of subparagraph (D),
(E), or (F) of paragraph (1) for a religious denomination
having a bona fide nonprofit, religious organization in the
United States, or the agents or officers of such denomination
or organization, to encourage, invite, call, allow, or enable
an alien who is present in the United States to perform the
vocation of a minister or missionary for the denomination or
organization in the United States as a volunteer who is not
compensated as an employee, notwithstanding the provision of
room, board, travel, medical assistance, and other basic living
expenses, provided the minister or missionary has been a member
of the denomination for at least 1 year.
``(4) Extraterritorial jurisdiction.--There is
extraterritorial Federal jurisdiction over the offenses
described in this subsection.
``(b) Seizure and Forfeiture.--
``(1) In general.--Any real or personal property 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, except that such duties as are imposed upon the
Secretary of the Treasury under the customs laws described in
section 981(d) shall be performed by such officers, agents, and
other persons as may be designated for that purpose by the
Secretary of Homeland Security.
``(3) Prima facie evidence in determinations of violations.--
In determining whether a violation of subsection (a) has
occurred, prima facie evidence that an alien involved in the
alleged violation lacks lawful authority to come to, enter,
reside in, remain in, or be in the United States or that such
alien had come to, entered, resided in, remained in, or been
present in the United States in violation of law may include:
``(A) any order, finding, or determination concerning
the alien's status or lack of status made by a Federal
judge or administrative adjudicator (including an
immigration judge or immigration officer) during any
judicial or administrative proceeding authorized under
Federal immigration law;
``(B) official records of the Department of Homeland
Security, the Department of Justice, or the Department
of State concerning the alien's status or lack of
status; and
``(C) testimony by an immigration officer having
personal knowledge of the facts concerning the alien's
status or lack of status.
``(c) Authority To Arrest.--No officer or person shall have authority
to make any arrests for a violation of any provision of this section
except:
``(1) officers and employees designated by the Secretary of
Homeland Security, either individually or as a member of a
class; and
``(2) other officers responsible for the enforcement of
Federal criminal laws.
``(d) Admissibility of Videotaped Witness 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:
``(1) the witness was available for cross examination at the
deposition by the party, if any, opposing admission of the
testimony; and
``(2) the deposition otherwise complies with the Federal
Rules of Evidence.
``(e) Definitions.--In this section:
``(1) Cross the border to the united states.--The term `cross
the border' refers to the physical act of crossing the border,
regardless of whether the alien is free from official
restraint.
``(2) Lawful authority.--The term `lawful authority' means
permission, authorization, or license that is expressly
provided for in the immigration laws of the United States or
accompanying regulations. The term does not include any such
authority secured by fraud or otherwise obtained in violation
of law or authority sought, but not approved. No alien shall be
deemed to have lawful authority to come to, enter, reside in,
remain in, or be in the United States if such coming to, entry,
residence, remaining, or presence was, is, or would be in
violation of law.
``(3) Proceeds.--The term `proceeds' includes any property or
interest in property obtained or retained as a consequence of
an act or omission in violation of this section.
``(4) Unlawful transit.--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 table of contents for the Immigration
and Nationality Act is amended by striking the item relating to section
274 and inserting the following:
``Sec. 274. Alien smuggling and related offenses.''.
(c) 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 paragraph (1)--
(A) in subparagraph (A)----
(i) by inserting ``, alien smuggling crime,''
after ``any crime of violence''; and
(ii) by inserting ``, alien smuggling
crime,'' after ``such crime of violence''; and
(B) in subparagraph (D)(ii), by inserting ``, alien
smuggling crime,'' after ``crime of violence''; and
(2) by adding at the end the following:
``(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, and
1328).''.
SEC. 315. PENALTIES FOR ILLEGAL ENTRY OR PRESENCE.
(a) In General.--Section 275 of the Immigration and Nationality Act
(8 U.S.C. 1325) is amended to read as follows:
``illegal entry or presence
``Sec. 275. (a) In General.--
``(1) Illegal entry.--An alien shall be subject to the
penalties set forth in paragraph (2) if the alien:
``(A) knowingly enters or crosses the border into the
United States at any time or place other than as
designated by the Secretary of Homeland Security;
``(B) knowingly eludes, at any time or place,
examination or inspection by an authorized immigration,
customs, or agriculture officer (including by failing
to stop at the command of such officer);
``(C) knowingly enters or crosses the border to the
United States and, upon examination or inspection,
knowingly makes a false or misleading representation or
the knowing concealment of a material fact (including
such representation or concealment in the context of
arrival, reporting, entry, or clearance requirements of
the customs laws, immigration laws, agriculture laws,
or shipping laws);
``(D) knowingly violates the terms or conditions of
the alien's admission or parole into the United States;
or
``(E) knowingly is unlawfully present in the United
States (as defined in section 212(a)(9)(B)(ii) subject
to the exceptions set for in section
212(a)(9)(B)(iii)).
``(2) Criminal penalties.--Any alien who violates any
provision under paragraph (1):
``(A) shall, for the first violation, be fined under
title 18, United States Code, imprisoned not more than
6 months, or both;
``(B) shall, for a second or subsequent violation, or
following an order of voluntary departure, be fined
under such title, imprisoned not more than 2 years (or
not more than 6 months in the case of a second or
subsequent violation of paragraph (1)(E)), or both;
``(C) if the violation occurred after the alien had
been convicted of 3 or more misdemeanors or for a
felony, shall be fined under such title, imprisoned not
more than 10 years, or both;
``(D) if the violation occurred after the alien had
been convicted of a felony for which the alien received
a term of imprisonment of not less than 30 months,
shall be fined under such title, imprisoned not more
than 15 years, or both; and
``(E) if the violation occurred after the alien had
been convicted of a felony for which the alien received
a term of imprisonment of not less than 60 months, such
alien shall be fined under such title, imprisoned not
more than 20 years, or both.
``(3) Prior convictions.--The prior convictions described in
subparagraphs (C) through (E) of paragraph (2) are elements of
the offenses described and the penalties in such subparagraphs
shall apply only in cases in which the conviction or
convictions that form the basis for the additional penalty
are--
``(A) alleged in the indictment or information; and
``(B) proven beyond a reasonable doubt at trial or
admitted by the defendant.
``(4) Duration of offense.--An offense under this subsection
continues until the alien is discovered within the United
States by an immigration, customs, or agriculture officer.
``(5) Attempt.--Whoever attempts to commit any offense under
this section shall be punished in the same manner as for a
completion of such offense.
``(b) Improper Time or Place; Civil Penalties.--Any alien who is
apprehended while entering, attempting to enter, or knowingly crossing
or attempting to cross the border to the United States at a time or
place other than as designated by immigration officers shall be subject
to a civil penalty, in addition to any criminal or other civil
penalties that may be imposed under any other provision of law, in an
amount equal to--
``(1) not less than $50 or more than $250 for each such
entry, crossing, attempted entry, or attempted crossing; or
``(2) twice the amount specified in paragraph (1) if the
alien had previously been subject to a civil penalty under this
subsection.''.
(b) Clerical Amendment.--The table of contents for the Immigration
and Nationality Act is amended by striking the item relating to section
275 and inserting the following:
``Sec. 275. Illegal entry or presence.''.
SEC. 316. ILLEGAL REENTRY.
Section 276 of the Immigration and Nationality Act (8 U.S.C. 1326) is
amended to read as follows:
``reentry of removed alien
``Sec. 276. (a) Reentry After Removal.--Any alien who has been
denied admission, excluded, deported, or removed, or who has departed
the United States while an order of exclusion, deportation, or removal
is outstanding, and subsequently enters, attempts to enter, crosses the
border to, attempts to cross the border to, or is at any time found in
the United States, shall be fined under title 18, United States Code,
imprisoned not more than 2 years, or both.
``(b) Reentry of Criminal Offenders.--Notwithstanding the penalty
provided in subsection (a), if an alien described in that subsection
was convicted before such removal or departure--
``(1) for 3 or more misdemeanors or for a felony, the alien
shall be fined under title 18, United States Code, imprisoned
not more than 10 years, or both;
``(2) for a felony for which the alien was sentenced to a
term of imprisonment of not less than 30 months, the alien
shall be fined under such title, imprisoned not less than 2
years and not more than 15 years, or both;
``(3) for a felony for which the alien was sentenced to a
term of imprisonment of not less than 60 months, the alien
shall be fined under such title, imprisoned not less than 4
years and not more than 20 years, or both; or
``(4) for murder, rape, kidnapping, or a felony offense
described in chapter 77 (relating to peonage and slavery) or
113B (relating to terrorism) of such title, or for 3 or more
felonies of any kind, the alien shall be fined under such
title, imprisoned not less than 5 years and not more than 25
years, or both.
``(c) Reentry After Repeated Removal.--Any alien who has been denied
admission, excluded, deported, or removed 3 or more times and
thereafter enters, attempts to enter, crosses the border to, attempts
to cross the border to, or is at any time found in the United States,
shall be fined under title 18, United States Code, imprisoned not more
than 10 years, or both.
``(d) Proof of Prior Convictions.--The prior convictions described in
subsection (b) are elements of the crimes described, and the penalties
in that subsection shall apply only in cases in which the conviction or
convictions that form the basis for the additional penalty are--
``(1) alleged in the indictment or information; and
``(2) proven beyond a reasonable doubt at trial or admitted
by the defendant.
``(e) Affirmative Defenses.--It shall be an affirmative defense to a
violation of this section that--
``(1) prior to the alleged violation, the alien had sought
and received the express consent of the Secretary of Homeland
Security to reapply for admission into the United States; or
``(2) with respect to an alien previously denied admission
and removed, the alien--
``(A) was not required to obtain such advance consent
under the Immigration and Nationality Act or any prior
Act; and
``(B) had complied with all other laws and
regulations governing the alien's admission into the
United States.
``(f) Limitation on Collateral Attack on Underlying Removal Order.--
In a criminal proceeding under this section, an alien may not challenge
the validity of any prior removal order concerning the alien.
``(g) Reentry of Alien Removed Prior to Completion of Term of
Imprisonment.--Any alien removed pursuant to section 241(a)(4) who
enters, attempts to enter, crosses the border to, attempts to cross the
border to, or is at any time found in, the United States 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 unless the alien affirmatively demonstrates that
the Secretary of Homeland Security has expressly consented to the
alien's reentry. Such alien shall be subject to such other penalties
relating to the reentry of removed aliens as may be available under
this section or any other provision of law.
``(h) Definitions.--For purposes of this section and section 275, the
following definitions shall apply:
``(1) Crosses the border to the united states.--The term
`crosses the border' refers to the physical act of crossing the
border, regardless of whether the alien is free from official
restraint.
``(2) Felony.--The term `felony' means any criminal offense
punishable by a term of imprisonment of more than 1 year under
the laws of the United States, any State, or a foreign
government.
``(3) Misdemeanor.--The term `misdemeanor' means any criminal
offense punishable by a term of imprisonment of not more than 1
year under the applicable laws of the United States, any State,
or a foreign government.
``(4) Removal.--The term `removal' includes any denial of
admission, exclusion, deportation, or removal, or any agreement
by which an alien stipulates or agrees to exclusion,
deportation, or removal.
``(5) State.--The term `State' means a State of the United
States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.''.
SEC. 317. REFORM OF PASSPORT, VISA, AND IMMIGRATION FRAUD OFFENSES.
Chapter 75 of title 18, United States Code, is amended to read as
follows:
``CHAPTER 75--PASSPORTS AND VISAS
``Sec.
``1541. Issuance without authority.
``1542. False statement in application and use of passport.
``1543. Forgery or false use of passport.
``1544. Misuse of a passport.
``1545. Schemes to defraud aliens.
``1546. Immigration and visa fraud.
``1547. Attempts and conspiracies.
``1548. Alternative penalties for certain offenses.
``1549. Definitions.
``Sec. 1541. Issuance without authority
``(a) In General.--Whoever--
``(1) acting or claiming to act in any office or capacity
under the United States, or a State, without lawful authority
grants, issues, or verifies any passport or other instrument in
the nature of a passport to or for any person; or
``(2) being a consular officer authorized to grant, issue, or
verify passports, knowingly grants, issues, or verifies any
such passport to or for any person not owing allegiance, to the
United States, whether a citizen or not;
shall be fined under this title or imprisoned not more than 15 years,
or both.
``(b) Definition.--In this section, the term `State' means a State of
the United States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.
``Sec. 1542. False statement in application and use of passport
``Whoever knowingly--
``(1) makes any false statement in an application for
passport with intent to induce or secure the issuance of a
passport under the authority of the United States, either for
his own use or the use of another, contrary to the laws
regulating the issuance of passports or the rules prescribed
pursuant to such laws; or
``(2) uses or attempts to use, or furnishes to another for
use any passport the issue of which was secured in any way by
reason of any false statement;
shall be fined under this title or imprisoned not more than 15 years,
or both.
``Sec. 1543. Forgery or false use of passport
``Whoever--
``(1) falsely makes, forges, counterfeits, mutilates, or
alters any passport or instrument purporting to be a passport,
with intent that the same may be used; or
``(2) knowingly uses, or attempts to use, or furnishes to
another for use any such false, forged, counterfeited,
mutilated, or altered passport or instrument purporting to be a
passport, or any passport validly issued which has become void
by the occurrence of any condition therein prescribed
invalidating the same;
shall be fined under this title or imprisoned not more than 15 years,
or both.
``Sec. 1544. Misuse of a passport
``Whoever knowingly--
``(1) uses any passport issued or designed for the use of
another;
``(2) uses any passport in violation of the conditions or
restrictions therein contained, or in violation of the laws,
regulations, or rules governing the issuance and use of the
passport;
``(3) secures, possesses, uses, receives, buys, sells, or
distributes any passport knowing it to be forged,
counterfeited, altered, falsely made, procured by fraud,
stolen, or produced or issued without lawful authority; or
``(4) violates the terms and conditions of any safe conduct
duly obtained and issued under the authority of the United
States;
shall be fined under this title, imprisoned not more than 15 years, or
both.
``Sec. 1545. Schemes to defraud aliens
``Whoever inside the United States, or in or affecting interstate or
foreign commerce, in connection with any matter that is authorized by
or arises under the immigration laws of the United States or any matter
the offender claims or represents is authorized by or arises under the
immigration laws of the United States, knowingly executes a scheme or
artifice--
``(1) to defraud any person, or
``(2) to obtain or receive money or anything else of value
from any person by means of false or fraudulent pretenses,
representations, or promises;
shall be fined under this title, imprisoned not more than 15 years, or
both.
``Sec. 1546. Immigration and visa fraud
``Whoever knowingly--
``(1) uses any immigration document issued or designed for
the use of another;
``(2) forges, counterfeits, alters, or falsely makes any
immigration document;
``(3) mails, prepares, presents, or signs any immigration
document knowing it to contain any materially false statement
or representation;
``(4) secures, possesses, uses, transfers, receives, buys,
sells, or distributes any immigration document knowing it to be
forged, counterfeited, altered, falsely made, stolen, procured
by fraud, or produced or issued without lawful authority;
``(5) adopts or uses a false or fictitious name to evade or
to attempt to evade the immigration laws;
``(6) transfers or furnishes, without lawful authority, an
immigration document to another person for use by a person
other than the person for whom the immigration document was
issued or designed; or
``(7) produces, issues, authorizes, or verifies, without
lawful authority, an immigration document;
shall be fined under this title, imprisoned not more than 15 years, or
both.
``Sec. 1547. Attempts and conspiracies
``Whoever attempts or conspires to violate this chapter shall be
punished in the same manner as a person who completes that violation.
``Sec. 1548. Alternative penalties for certain offenses
``(a) Terrorism.--Whoever violates any section in this chapter to
facilitate an act of international terrorism or domestic terrorism (as
such terms are defined in section 2331), shall be fined under this
title or imprisoned not more than 25 years, or both.
``(b) Drug Trafficking Offenses.--Whoever violates any section in
this chapter to facilitate a drug trafficking crime (as defined in
section 929(a)) shall be fined under this title or imprisoned not more
than 20 years, or both.
``Sec. 1549. Definitions
``In this chapter:
``(1) An `application for a United States passport' includes
any document, photograph, or other piece of evidence attached
to or submitted in support of the application.
``(2) The term `immigration document' means any instrument on
which is recorded, by means of letters, figures, or marks,
matters which may be used to fulfill any requirement of the
Immigration and Nationality Act.''.
SEC. 318. FORFEITURE.
Section 981(a)(1) of title 18, United States Code, is amended by
adding at the end the following:
``(I) Any property, real or personal, that has been used to
commit or facilitate the commission of a violation of chapter
75, the gross proceeds of such violation, and any property
traceable to any such property or proceeds.''.
SEC. 319. 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. 320. INCREASED PENALTIES BARRING THE ADMISSION OF CONVICTED SEX
OFFENDERS FAILING TO REGISTER AND REQUIRING
DEPORTATION OF SEX OFFENDERS FAILING TO REGISTER.
(a) Inadmissibility.--Section 212(a)(2)(A)(i) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(2)(A)(i)), as amended by section
302(a) of this Act, is further amended--
(1) in subclause (II), by striking ``or'' at the end;
(2) in subclause (III), by adding ``or'' at the end; and
(3) by inserting after subclause (III) the following:
``(IV) a violation of section 2250 of
title 18, United States Code (relating
to failure to register as a sex
offender),''.
(b) Deportability.--Section 237(a)(2) of such Act (8 U.S.C.
1227(a)(2)), as amended by sections 302(c) and 311(c) of this Act, is
further amended--
(1) in subparagraph (A), by striking clause (v); and
(2) by adding at the end the following:
``(I) Failure to register as a sex offender.--Any
alien convicted of, or who admits having committed, or
who admits committing acts which constitute the
essential elements of a violation of section 2250 of
title 18, United States Code (relating to failure to
register as a sex offender) is deportable.''.
(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 acts
that occur before, on, or after the date of the enactment of this Act.
SEC. 321. PROTECTING IMMIGRANTS FROM CONVICTED SEX OFFENDERS.
(a) Immigrants.--Section 204(a)(1) of the Immigration and Nationality
Act (8 U.S.C. 1154(a)(1)), is amended--
(1) in subparagraph (A), by amending clause (viii) to read as
follows:
``(viii) Clause (i) shall not apply to a citizen of the United States
who has been convicted of an offense described in subparagraph (A),
(I), or (K) of section 101(a)(43), unless the Secretary of Homeland
Security, in the Secretary's sole and unreviewable discretion,
determines that the citizen poses no risk to the alien with respect to
whom a petition described in clause (i) is filed.''; and
(2) in subparagraph (B)(i)--
(A) by redesignating the second subclause (I) as
subclause (II); and
(B) by amending such subclause (II) to read as
follows:
``(II) Subclause (I) shall not apply in the case of an alien admitted
for permanent residence who has been convicted of an offense described
in subparagraph (A), (I), or (K) of section 101(a)(43), unless the
Secretary of Homeland Security, in the Secretary's sole and
unreviewable discretion, determines that the alien lawfully admitted
for permanent residence poses no risk to the alien with respect to whom
a petition described in subclause (I) is filed.''.
(b) Nonimmigrants.--Section 101(a)(15)(K) of such Act (8 U.S.C.
1101(a)(15)(K)), is amended by striking ``204(a)(1)(A)(viii)(I))'' each
place such term appears and inserting ``204(a)(1)(A)(viii))''.
(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
petitions filed on or after such date.
SEC. 322. CLARIFICATION TO CRIMES OF VIOLENCE AND CRIMES INVOLVING
MORAL TURPITUDE.
(a) Inadmissible Aliens.--Section 212(a)(2)(A) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(2)(A)) is amended by adding at the
end the following:
``(iii) Clarification.--If the conviction
records do not conclusively establish whether a
crime constitutes a crime involving moral
turpitude, the Attorney General may consider
other evidence related to the conviction that
clearly establishes that the conduct for which
the alien was engaged constitutes a crime
involving moral turpitude.''.
(b) Deportable Aliens.--
(1) General crimes.--Section 237(a)(2)(A) of such Act (8
U.S.C. 1227(a)(2)(A)), as amended by section 320(b) of this
Act, is further amended by inserting after clause (iv) the
following:
``(v) Crimes involving moral turpitude.--If
the conviction records do not conclusively
establish whether a crime constitutes a crime
involving moral turpitude, the Attorney General
may consider other evidence related to the
conviction that clearly establishes that the
conduct for which the alien was engaged
constitutes a crime involving moral
turpitude.''.
(2) Domestic violence.--Section 237(a)(2)(E) of such Act (8
U.S.C. 1227(a)(2)(E)) is amended by adding at the end the
following:
``(iii) Crimes of violence.--If the
conviction records do not conclusively
establish whether a crime of domestic violence
constitutes a crime of violence (as defined in
section 16 of title 18, United States Code),
the Attorney General may consider other
evidence related to the conviction that clearly
establishes that the conduct for which the
alien was engaged constitutes a crime of
violence.''.
(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 acts
that occur before, on, or after the date of the enactment of this Act.
SEC. 323. PENALTIES FOR FAILURE TO OBEY REMOVAL ORDERS.
(a) In General.--Section 243(a) of the Immigration and Nationality
Act (8 U.S.C. 1253(a)) is amended--
(1) in the matter preceding subparagraph (A) of paragraph
(1), by inserting ``212(a) or'' before ``237(a),'' ; and
(2) by striking paragraph (3).
(b) Effective Date.--The amendments made by subsection (a) shall take
effect on the date of the enactment of this Act and shall apply to acts
that are described in subparagraphs (A) through (D) of section
243(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1253(a)(1))
that occur on or after the date of the enactment of this Act.
SEC. 324. PARDONS.
(a) Definition.--Section 101(a) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)), as amended by section 311(a) of this Act, is
further amended by adding at the end the following:
``(54) The term `pardon' means a full and unconditional pardon
granted by the President of the United States, Governor of any of the
several States or constitutionally recognized body.''.
(b) Deportability.--Section 237(a) of such Act (8 U.S.C. 1227(a)) is
amended--
(1) in paragraph (2)(A), by striking clause (vi); and
(2) by adding at the end the following:
``(8) Pardons.--In the case of an alien who has been
convicted of a crime and is subject to removal due to that
conviction, if the alien, subsequent to receiving the criminal
conviction, is granted a pardon, the alien shall not be
deportable by reason of that criminal conviction.''.
(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 a
pardon granted before, on, or after such date.
TITLE IV--VISA SECURITY
SEC. 401. CANCELLATION OF ADDITIONAL VISAS.
(a) In General.--Section 222(g) of the Immigration and Nationality
Act (8 U.S.C. 1202(g)) is amended--
(1) in paragraph (1)--
(A) by striking ``Attorney General'' and inserting
``Secretary''; and
(B) by inserting ``and any other nonimmigrant visa
issued by the United States that is in the possession
of the alien'' after ``such visa''; and
(2) in paragraph (2)(A), by striking ``(other than the visa
described in paragraph (1)) issued in a consular office located
in the country of the alien's nationality'' and inserting
``(other than a visa described in paragraph (1)) issued in a
consular office located in the country of the alien's
nationality or foreign residence''.
(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 a
visa issued before, on, or after such date.
SEC. 402. VISA INFORMATION SHARING.
(a) In General.--Section 222(f) of the Immigration and Nationality
Act (8 U.S.C. 1202(f)(2)) is amended--
(1) by striking ``issuance or refusal'' and inserting
``issuance, refusal, or revocation'';
(2) in paragraph (2), in the matter preceding subparagraph
(A), by striking ``and on the basis of reciprocity'';
(3) in paragraph (2)(A)--
(A) by inserting ``(i)'' after ``for the purpose
of''; and
(B) by striking ``illicit weapons; or'' and inserting
``illicit weapons, or (ii) determining a person's
deportability or eligibility for a visa, admission, or
other immigration benefit;'';
(4) in paragraph (2)(B)--
(A) by striking ``for the purposes'' and inserting
``for one of the purposes''; and
(B) by striking ``or to deny visas to persons who
would be inadmissible to the United States.'' and
inserting ``; or''; and
(5) in paragraph (2), by adding at the end the following:
``(C) with regard to any or all aliens in the
database specified data elements from each record, if
the Secretary of State determines that it is in the
national interest to provide such information to a
foreign government.''.
(b) Effective Date.--The amendments made by subsection (a) shall take
effect 60 days after the date of the enactment of the Act.
SEC. 403. RESTRICTING WAIVER OF VISA INTERVIEWS.
Section 222(h) of the Immigration and Nationality Act (8 U.S.C.
1202(h)(1)(B)) is amended--
(1) in paragraph (1)(C), by inserting ``, in consultation
with the Secretary of Homeland Security,'' after ``if the
Secretary'';
(2) in paragraph (1)(C)(i), by inserting ``, where such
national interest shall not include facilitation of travel of
foreign nationals to the United States, reduction of visa
application processing times, or the allocation of consular
resources'' before the semicolon at the end;
(3) in paragraph (2)--
(A) by striking ``or'' at the end of subparagraph
(E);
(B) by striking the period at the end of subparagraph
(F) and inserting ``; or''; and
(C) by adding at the end the following:
``(G) is an individual--
``(i) determined to be in a class of aliens
determined by the Secretary of Homeland
Security to be threats to national security;
``(ii) identified by the Secretary of
Homeland Security as a person of concern; or
``(iii) applying for a visa in a visa
category with respect to which the Secretary of
Homeland Security has determined that a waiver
of the visa interview would create a high risk
of degradation of visa program integrity.''.
SEC. 404. AUTHORIZING THE DEPARTMENT OF STATE TO NOT INTERVIEW CERTAIN
INELIGIBLE VISA APPLICANTS.
(a) In General.--Section 222(h)(1) of the Immigration and Nationality
Act (8 U.S.C. 1202(h)(1)) is amended by inserting ``the alien is
determined by the Secretary of State to be ineligible for a visa based
upon review of the application or'' after ``unless''.
(b) Guidance.--Not later than 90 days after the date of the enactment
of this Act, the Secretary of State shall issue guidance to consular
officers on the standards and processes for implementing the authority
to deny visa applications without interview in cases where the alien is
determined by the Secretary of State to be ineligible for a visa based
upon review of the application.
(c) Reports.--Not less frequently than once each quarter, the
Secretary of State shall submit to the Congress a report on the denial
of visa applications without interview, including--
(1) the number of such denials; and
(2) a post-by-post breakdown of such denials.
SEC. 405. VISA REFUSAL AND REVOCATION.
(a) Authority of the Secretary of Homeland Security and the Secretary
of State.--
(1) In general.--Section 428 of the Homeland Security Act of
2002 (6 U.S.C. 236) is amended by striking subsections (b) and
(c) and inserting the following:
``(b) Authority of the Secretary of Homeland Security.--
``(1) In general.--Notwithstanding section 104(a) of the
Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other
provision of law, and except as provided in subsection (c) and
except for the authority of the Secretary of State under
subparagraphs (A) and (G) of section 101(a)(15) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), the
Secretary--
``(A) shall have exclusive authority to issue
regulations, establish policy, and administer and
enforce the provisions of the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.) and all other
immigration or nationality laws relating to the
functions of consular officers of the United States in
connection with the granting and refusal of a visa; and
``(B) may refuse or revoke any visa to any alien or
class of aliens if the Secretary, or designee,
determines that such refusal or revocation is necessary
or advisable in the security interests of the United
States.
``(2) Effect of revocation.--The revocation of any visa under
paragraph (1)(B)--
``(A) shall take effect immediately; and
``(B) shall automatically cancel any other valid visa
that is in the alien's possession.
``(3) Judicial review.--Notwithstanding any other provision
of law, 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 review
a decision by the Secretary of Homeland Security to refuse or
revoke a visa, and no court shall have jurisdiction to hear any
claim arising from, or any challenge to, such a refusal or
revocation.
``(c) Authority of the Secretary of State.--
``(1) In general.--The Secretary of State may direct a
consular officer to refuse a visa requested by an alien if the
Secretary of State determines such refusal to be necessary or
advisable in the interests of the United States.
``(2) Limitation.--No decision by the Secretary of State to
approve a visa may override a decision by the Secretary of
Homeland Security under subsection (b).''.
(2) Conforming amendment.--Section 237(a)(1)(B) of the
Immigration and Nationality Act (8 U.S.C. 1227(a)(1)(B)) is
amended by striking ``under section 221(i)''.
(3) Effective date.--The amendment made by paragraph (1)
shall take effect on the date of the enactment of this Act and
shall apply to visa refusals and revocations occurring before,
on, or after such date.
(b) Technical Corrections to the Homeland Security Act.--Section
428(a) of the Homeland Security Act of 2002 (6 U.S.C. 236(a)) is
amended by--
(1) striking ``subsection'' and inserting ``section''; and
(2) striking ``consular office'' and inserting ``consular
officer''.
SEC. 406. FUNDING FOR THE VISA SECURITY PROGRAM.
(a) In General.--The Department of State and Related Agency
Appropriations Act, 2005 (title IV of division B of Public Law 108-447)
is amended, in the fourth paragraph under the heading ``Diplomatic and
Consular Programs'', by striking ``Beginning'' and all that follows
through the period at the end and inserting the following: ``Beginning
in fiscal year 2005 and thereafter, the Secretary of State is
authorized to charge surcharges related to consular services in support
of enhanced border security that are in addition to the immigrant visa
fees in effect on January 1, 2004: Provided, That funds collected
pursuant to this authority shall be credited to the appropriation for
U.S. Immigration and Customs Enforcement for the fiscal year in which
the fees were collected, and shall be available until expended for the
funding of the Visa Security Program established by the Secretary of
Homeland Security under section 428(e) of the Homeland Security Act of
2002 (Public Law 107-296): Provided further, That such surcharges shall
be 10 percent of the fee assessed on immigrant visa applications.''.
(b) Repayment of Appropriated Funds.--Twenty percent of the funds
collected each fiscal year under the heading ``Diplomatic and Consular
Programs'' in the Department of State and Related Agency Appropriations
Act, 2005 (title IV of division B of Public Law 108-447), as amended by
subsection (a), shall be deposited into the general fund of the
Treasury as repayment of funds appropriated pursuant to section 407(c)
of this Act until the entire appropriated sum has been repaid.
SEC. 407. EXPEDITIOUS EXPANSION OF VISA SECURITY PROGRAM TO HIGH-RISK
POSTS.
(a) In General.--Section 428(i) of the Homeland Security Act of 2002
(6 U.S.C. 236(i)) is amended to read as follows:
``(i) Visa Issuance at Designated High-Risk Posts.--Notwithstanding
any other provision of law, the Secretary of Homeland Security shall
conduct an on-site review of all visa applications and supporting
documentation before adjudication at the top 30 visa-issuing posts
designated jointly by the Secretaries of State and Homeland Security as
high-risk posts.''.
(b) Assignment of Personnel.--Not later than one year after the date
of enactment of this section, the Secretary of Homeland Security shall
assign personnel to the visa-issuing posts referenced in section 428(i)
of the Homeland Security Act of 2002 (6 U.S.C. 236(i)), as amended by
this section, and communicate such assignments to the Secretary of
State.
(c) Appropriations.--There is authorized to be appropriated
$60,000,000 for each of the fiscal years 2014 and 2015, which shall be
used to expedite the implementation of section 428(i) of the Homeland
Security Act, as amended by this section.
SEC. 408. EXPEDITED CLEARANCE AND PLACEMENT OF DEPARTMENT OF HOMELAND
SECURITY PERSONNEL AT OVERSEAS EMBASSIES AND
CONSULAR POSTS.
Section 428 of the Homeland Security Act of 2002 (6 U.S.C. 236) is
amended by adding at the end the following:
``(j) Expedited Clearance and Placement of Department of Homeland
Security Personnel at Overseas Embassies and Consular Posts.--
Notwithstanding any other provision of law, and the processes set forth
in National Security Defense Directive 38 (dated June 2, 1982) or any
successor Directive, the Chief of Mission of a post to which the
Secretary of Homeland Security has assigned personnel under subsection
(e) or (i) shall ensure, not later than one year after the date on
which the Secretary of Homeland Security communicates such assignment
to the Secretary of State, that such personnel have been stationed and
accommodated at post and are able to carry out their duties.''.
SEC. 409. ACCREDITATION REQUIREMENTS.
(a) Colleges, Universities, and Language Training Programs.--Section
101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is
amended--
(1) in paragraph (15)(F)(i)--
(A) by striking ``section 214(l) at an established
college, university, seminary, conservatory, academic
high school, elementary school, or other academic
institution or in an accredited language training
program in the United States'' and inserting ``section
214(m) at an accredited college, university, or
language training program, or at an established
seminary, conservatory, academic high school,
elementary school, or other academic institution in the
United States'';
(B) by striking ``Attorney General'' each place such
term appears and inserting ``Secretary of Homeland
Security''; and
(C) by striking ``and if any such institution of
learning or place of study fails to make reports
promptly the approval shall be withdrawn,'' and
inserting ``and if any such institution of learning of
place of study fails to make reports promptly or fails
to comply with any accreditation requirement (including
deadlines for submitting accreditation applications or
obtaining accreditation) the approval shall be
withdrawn,''; and
(2) by amending paragraph (52) to read as follows:
``(52) Except as provided in section 214(m)(4), the term `accredited
college, university, or language training program' means a college,
university, or language training program that is accredited by an
accrediting agency recognized by the Secretary of Education.''.
(b) Other Academic Institutions.--Section 214(m) of the Immigration
and Nationality Act (8 U.S.C. 1184(m)) is amended by adding at the end
the following:
``(3) The Secretary of Homeland Security shall require accreditation
of an academic institution (except for seminaries or other religious
institutions) for purposes of section 101(a)(15)(F) if--
``(A) that institution is not already required to be
accredited under section 101(a)(15)(F)(i); and
``(B) an appropriate accrediting agency recognized by the
Secretary of Education is able to provide such accreditation.
``(4) The Secretary of Homeland Security, in the Secretary's
discretion, may waive the accreditation requirement in paragraph (3) or
section 101(a)(15)(F)(i) with respect to an institution if such
institution--
``(A) is otherwise in compliance with the requirements of
section 101(a)(15)(F)(i); and
``(B) has been a candidate for accreditation for at least 1
year and continues to progress toward accreditation by an
accrediting agency recognized by the Secretary of Education.''.
(c) Effective Date.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by this section shall--
(A) take effect on the date that is 180 days after
the date of enactment of this Act; and
(B) apply with respect to applications for
nonimmigrant visas that are filed on or after the
effective date described in subparagraph (A).
(2) Temporary exception.--During the 3-year period beginning
on the effective date described in paragraph (1)(A), an
institution that is newly required to be accredited under this
section may continue to participate in the Student and Exchange
Visitor Program notwithstanding the institution's lack of
accreditation if the institution--
(A) was certified under the Student and Exchange
Visitor Program on such date;
(B) submitted an application for accreditation to an
accrediting agency recognized by the Secretary of
Education during the 6-month period ending on such
date; and
(C) continues to progress toward accreditation by
such accrediting agency.
SEC. 410. VISA FRAUD.
(a) Temporary Suspension of SEVIS Access.--Section 641(d) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8
U.S.C. 1372(d)) is amended--
(1) in paragraph (1)(A), by striking ``institution,,'' and
inserting ``institution,''; and
(2) by adding at the end the following:
``(3) Effect of reasonable suspicion of fraud.--If the
Secretary of Homeland Security has reasonable suspicion that an
owner of, or a designated school official at, an approved
institution of higher education, an other approved educational
institution, or a designated exchange visitor program has
committed fraud or attempted to commit fraud relating to any
aspect of the Student and Exchange Visitor Program, the
Secretary may immediately suspend, without notice, such
official's or such school's access to the Student and Exchange
Visitor Information System (SEVIS), including the ability to
issue Form I-20s, pending a final determination by the
Secretary with respect to the institution's certification under
the Student and Exchange Visitor Program.''.
(b) Effect of Conviction for Visa Fraud.--Such section 641(d), as
amended by subsection (a)(2), is further amended by adding at the end
the following:
``(4) Permanent disqualification for fraud.--A designated
school official at, or an owner of, an approved institution of
higher education, an other approved educational institution, or
a designated exchange visitor program who is convicted for
fraud relating to any aspect of the Student and Exchange
Visitor Program shall be permanently disqualified from filing
future petitions and from having an ownership interest or a
management role, including serving as a principal, owner,
officer, board member, general partner, designated school
official, or any other position of substantive authority for
the operations or management of the institution, in any United
States educational institution that enrolls nonimmigrant alien
students described in subparagraph (F) or (M) of section
101(a)(15) the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)).''.
SEC. 411. BACKGROUND CHECKS.
(a) In General.--Section 641(d) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1372(d)), as amended by
section 411(b) of this Act, is further amended by adding at the end the
following:
``(5) Background check requirement.--
``(A) In general.--An individual may not serve as a
designated school official or be granted access to
SEVIS unless the individual is a national of the United
States or an alien lawfully admitted for permanent
residence and during the most recent 3-year period--
``(i) the Secretary of Homeland Security
has--
``(I) conducted a thorough background
check on the individual, including a
review of the individual's criminal and
sex offender history and the
verification of the individual's
immigration status; and
``(II) determined that the individual
has not been convicted of any violation
of United States immigration law and is
not a risk to national security of the
United States; and
``(ii) the individual has successfully
completed an on-line training course on SEVP
and SEVIS, which has been developed by the
Secretary.
``(B) Interim designated school official.--
``(i) In general.--An individual may serve as
an interim designated school official during
the period that the Secretary is conducting the
background check required by subparagraph
(A)(i)(I).
``(ii) Reviews by the secretary.--If an
individual serving as an interim designated
school official under clause (i) does not
successfully complete the background check
required by subparagraph (A)(i)(I), the
Secretary shall review each Form I-20 issued by
such interim designated school official.
``(6) Fee.--The Secretary is authorized to collect a fee from
an approved school for each background check conducted under
paragraph (6)(A)(i). The amount of such fee shall be equal to
the average amount expended by the Secretary to conduct such
background checks.''.
(b) Effective Date.--The amendment made by subsection (a) shall take
effect on the date that is 1 year after the date of the enactment of
this Act.
SEC. 412. NUMBER OF DESIGNATED SCHOOL OFFICIALS.
Section 641(d) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1372(d)), as amended by section
412(a) of this Act, is further amended by adding at the end the
following:
``(7) Number of designated school officials.--School
officials may nominate as many Designated School Officials
(DSOs) in addition to the school's Principal Designated School
Official (PDSO) as they determine necessary to adequately
provide recommendations to students enrolled at the school
regarding maintenance of nonimmigrant status under subparagraph
(F) or (M) of section 101(a)(15) and to support timely and
complete recordkeeping and reporting to the Secretary of
Homeland Security, as required by this section, except that a
school may not have less than one DSO per every 200 students
who have nonimmigrant status pursuant to subparagraph (F), (J),
or (M) of such section. School officials shall not permit a DSO
or PDSO nominee access to SEVIS until the Secretary approves
the nomination.''.
SEC. 413. REPORTING REQUIREMENT.
Section 442(a) of the Homeland Security Act of 2002 (6 U.S.C. 252(a))
is amended--
(1) by redesignating paragraph (5) as paragraph (6); and
(2) by inserting after paragraph (4) the following:
``(5) Student and exchange visitor program.--In administering
the program under paragraph (4), the Secretary shall, not later
than one year after the date of the enactment of this
paragraph, prescribe regulations to require an institution or
exchange visitor program sponsor participating in the Student
Exchange Visitor Program to ensure that each student or
exchange visitor who has nonimmigrant status pursuant to
subparagraph (F), (J), or (M) of section 101(a)(15) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) enrolled
at the institution or attending the exchange visitor program is
reported to the Department within 10 days of--
``(A) transferring to another institution or program;
``(B) changing academic majors; or
``(C) any other changes to information required to be
maintained in the system described in paragraph (4).''.
SEC. 414. FLIGHT SCHOOLS NOT CERTIFIED BY FAA.
(a) In General.--Except as provided in subsection (b), the Secretary
of Homeland Security shall prohibit any flight school in the United
States from accessing SEVIS or issuing a Form I-20 to an alien seeking
a student visa pursuant to subparagraph (F)(i) or (M)(i) of section
101(a)(15) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)) if the flight school has not been certified to the
satisfaction of the Secretary and by the Federal Aviation
Administration pursuant to part 141 or part 142 of title 14, Code of
Federal Regulations (or similar successor regulations).
(b) Temporary Exception.--During the 5-year period beginning on the
date of the enactment of this Act, the Secretary may waive the
requirement under subsection (a) that a flight school be certified by
the Federal Aviation Administration if such flight school--
(1) was certified under the Student and Exchange Visitor
Program on the date of the enactment of this Act;
(2) submitted an application for certification with the
Federal Aviation Administration during the 1-year period
beginning on such date; and
(3) continues to progress toward certification by the Federal
Aviation Administration.
SEC. 415. REVOCATION OF ACCREDITATION.
At the time an accrediting agency or association is required to
notify the Secretary of Education and the appropriate State licensing
or authorizing agency of the final denial, withdrawal, suspension, or
termination of accreditation of an institution pursuant to section 496
of the Higher Education Act of 1965 (20 U.S.C. 1099b), such accrediting
agency or association shall notify the Secretary of Homeland Security
of such determination and the Secretary of Homeland Security shall
immediately withdraw the school from the SEVP and prohibit the school
from accessing SEVIS.
SEC. 416. REPORT ON RISK ASSESSMENT.
Not later than 180 days after the date of the enactment of this Act,
the Secretary of Homeland Security shall submit to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary of the House
of Representatives a report that contains the risk assessment strategy
that will be employed by the Secretary to identify, investigate, and
take appropriate action against schools and school officials that are
facilitating the issuance of Form I-20 and the maintenance of student
visa status in violation of the immigration laws of the United States.
SEC. 417. IMPLEMENTATION OF GAO RECOMMENDATIONS.
Not later than 180 days after the date of the enactment of this act,
the Secretary of Homeland Security shall submit to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary of the House
of Representatives a report that describes--
(1) the process in place to identify and assess risks in the
SEVP;
(2) a risk assessment process to allocate SEVP's resources
based on risk;
(3) the procedures in place for consistently ensuring a
school's eligibility, including consistently verifying in lieu
of letters;
(4) how SEVP identified and addressed missing school case
files;
(5) a plan to develop and implement a process to monitor
state licensing and accreditation status of all SEVP-certified
schools;
(6) whether all flight schools that have not been certified
to the satisfaction of the Secretary and by the Federal
Aviation Administration have been removed from the program and
have been restricted from accessing SEVIS;
(7) the standard operating procedures that govern
coordination among SEVP, Counterterrorism and Criminal
Exploitation Unit, and U.S. Immigration and Customs Enforcement
field offices; and
(8) the established criteria for referring cases of a
potentially criminal nature from SEVP to the counterterrorism
and intelligence community.
SEC. 418. IMPLEMENTATION OF SEVIS II.
Not later than 2 years after the date of the enactment of this Act,
the Secretary of Homeland Security shall complete the deployment of
both phases of the 2nd generation Student and Exchange Visitor
Information System (commonly known as ``SEVIS II'').
SEC. 419. DEFINITIONS.
(a) Definitions.--For purposes of this title:
(1) SEVIS.--The term ``SEVIS'' means the Student and Exchange
Visitor Information System of the Department of Homeland
Security.
(2) SEVP.--The term ``SEVP'' means the Student and Exchange
Visitor Program of the Department of Homeland Security.
TITLE V--AID TO U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT OFFICERS
SEC. 501. ICE IMMIGRATION ENFORCEMENT AGENTS.
(a) In General.--The Secretary of Homeland Security shall authorize
all immigration enforcement agents and deportation officers of the
Department of Homeland Security who have successfully completed basic
immigration law enforcement training to exercise the powers conferred
by--
(1) section 287(a)(5)(A) of the Immigration and Nationality
Act to arrest for any offense against the United States;
(2) section 287(a)(5)(B) of such Act to arrest for any
felony;
(3) section 274(a) of such Act to arrest for bringing in,
transporting, or harboring certain aliens, or inducing them to
enter;
(4) section 287(a) of such Act to execute warrants of arrest
for administrative immigration violations issued under section
236 of the Act or to execute warrants of criminal arrest issued
under the authority of the United States; and
(5) section 287(a) of such Act to carry firearms, provided
that they are individually qualified by training and experience
to handle and safely operate the firearms they are permitted to
carry, maintain proficiency in the use of such firearms, and
adhere to the provisions of the enforcement standard governing
the use of force.
(b) Arrest Powers.--Section 287(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1357(a)(2)) is amended by striking
``regulation and is likely to escape before a warrant can be obtained
for his arrest,'' and inserting ``regulation,''.
(c) Pay.--Immigration enforcement agents shall be paid on the same
scale as Immigration and Customs Enforcement deportation officers and
shall receive the same benefits.
SEC. 502. ICE DETENTION ENFORCEMENT OFFICERS.
(a) Authorization.--The Secretary of Homeland Security is authorized
to hire 2,500 Immigration and Customs Enforcement detention enforcement
officers.
(b) Duties.--Immigration and Customs Enforcement detention
enforcement officers who have successfully completed detention
enforcement officers' basic training shall be responsible for--
(1) taking and maintaining custody of any person who has been
arrested by an immigration officer;
(2) transporting and guarding immigration detainees;
(3) securing Department of Homeland Security detention
facilities; and
(4) assisting in the processing of detainees.
SEC. 503. ENSURING THE SAFETY OF ICE OFFICERS AND AGENTS.
(a) Body Armor.--The Secretary of Homeland Security shall ensure that
every Immigration and Customs Enforcement deportation officer and
immigration enforcement agent on duty is issued high-quality body armor
that is appropriate for the climate and risks faced by the agent.
Enough body armor must be purchased to cover every agent in the field.
(b) Weapons.--Such Secretary shall ensure that Immigration and
Customs Enforcement deportation officers and immigration enforcement
agents are equipped with weapons that are reliable and effective to
protect themselves, their fellow agents, and innocent third parties
from the threats posed by armed criminals. Such weapons shall include,
at a minimum, standard-issue handguns, M-4 (or equivalent) rifles, and
Tasers.
(c) Effective Date.--This section shall take effect 90 days after the
date of the enactment of this Act.
SEC. 504. ICE ADVISORY COUNCIL.
(a) Establishment.--An ICE Advisory Council shall be established not
later than 3 months after the date of the enactment of this Act.
(b) Membership.--The ICE Advisor Council shall be comprised of 7
members.
(c) Appointment.--Members shall to be appointed in the following
manner:
(1) One member shall be appointed by the President;
(2) One member shall be appointed by the Chairman of the
Judiciary Committee of the House of Representatives;
(3) One member shall be appointed by the Chairman of the
Judiciary Committee of the Senate;
(4) One member shall be appointed by the Local 511, the ICE
prosecutor's union; and
(5) Three members shall be appointed by the National
Immigration and Customs Enforcement Council.
(d) Term.--Members shall serve renewable, 2-year terms.
(e) Voluntary.--Membership shall be voluntary and non-remunerated,
except that members will receive reimbursement from the Secretary of
Homeland Security for travel and other related expenses.
(f) Retaliation Protection.--Members who are employed by the
Secretary of Homeland Security shall be protected from retaliation by
their supervisors, managers, and other Department of Homeland Security
employees for their participation on the Council.
(g) Purpose.--The purpose of the Council is to advise the Congress
and the Secretary of Homeland Security on issues including the
following:
(1) The current status of immigration enforcement efforts,
including prosecutions and removals, the effectiveness of such
efforts, and how enforcement could be improved;
(2) The effectiveness of cooperative efforts between the
Secretary of Homeland Security and other law enforcement
agencies, including additional types of enforcement activities
that the Secretary should be engaged in, such as State and
local criminal task forces;
(3) Personnel, equipment, and other resource needs of field
personnel;
(4) Improvements that should be made to the organizational
structure of the Department of Homeland Security, including
whether the position of immigration enforcement agent should be
merged into the deportation officer position; and
(5) The effectiveness of specific enforcement policies and
regulations promulgated by the Secretary of Homeland Security,
and whether other enforcement priorities should be considered.
(h) Reports.--The Council shall provide quarterly reports to the
Chairmen and Ranking Members of the Judiciary Committees of the Senate
and the House of Representatives and to the Secretary of Homeland
Security. The Council members shall meet directly with the Chairmen and
Ranking Members (or their designated representatives) and with the
Secretary to discuss their reports every 6 months.
SEC. 505. PILOT PROGRAM FOR ELECTRONIC FIELD PROCESSING.
(a) In General.--The Secretary of Homeland Security shall establish a
pilot program in at least five of the 10 Immigration and Customs
Enforcement field offices with the largest removal caseloads to allow
Immigration and Customs deportation officers and immigration
enforcement agents to--
(1) electronically process and serve charging documents,
including Notices to Appear, while in the field; and
(2) electronically process and place detainers while in the
field.
(b) Duties.--The pilot program described in subsection (a) shall be
designed to allow deportation officers and immigration enforcement
agents to use handheld or vehicle-mounted computers to--
(1) enter any required data, including personal information
about the alien subject and the reason for issuing the
document;
(2) apply the electronic signature of the issuing officer or
agent;
(3) set the date the alien is required to appear before an
immigration judge, in the case of Notices to Appear;
(4) print any documents the alien subject may be required to
sign, along with additional copies of documents to be served on
the alien; and
(5) interface with the ENFORCE database so that all data is
stored and retrievable.
(c) Construction.--The pilot program described in subsection (a)
shall be designed to replace, to the extent possible, the current
paperwork and data-entry process used for issuing such charging
documents and detainers.
(d) Deadline.--The Secretary shall initiate the pilot program
described in subsection (a) within 6 months of the date of enactment of
this Act.
(e) Report.--The Government Accountability Office shall report to the
Judiciary Committee of the Senate and the House of Representatives no
later than 18 months after the date of enactment of this Act on the
effectiveness of the pilot program and provide recommendations for
improving it.
(f) Advisory Council.--The ICE Advisory Council established by
section 504 shall include an recommendations on how the pilot program
should work in the first quarterly report of the Council, and shall
include assessments of the program and recommendations for improvement
in each subsequent report.
(g) Effective Date.--This section shall take effect 180 days after
the date of the enactment of this Act.
SEC. 506. ADDITIONAL ICE DEPORTATION OFFICERS AND SUPPORT STAFF.
(a) In General.--The Secretary of Homeland Security shall, subject to
the availability of appropriations for such purpose, increase the
number of positions for full-time active-duty Immigration and Customs
Enforcement deportation officers by 5,000 above the number of full-time
positions for which funds were appropriated for fiscal year 2013. The
Secretary will determine the rate at which the additional officers will
be added with due regard to filling the positions as expeditiously as
possible without making any compromises in the selection or the
training of the additional officers.
(b) Support Staff.--The Secretary shall, subject to the availability
of appropriations for such purpose, increase the number of positions
for full-time support staff for Immigration and Customs Enforcement
deportation officers by 700 above the number of full-time positions for
which funds were appropriated for fiscal year 2013.
SEC. 507. ADDITIONAL ICE PROSECUTORS.
The Secretary of Homeland Security shall increase by 60 the number of
full-time trial attorneys working for the Immigration and Customs
Enforcement Office of the Principal Legal Advisor.
TITLE VI--MISCELLANEOUS ENFORCEMENT PROVISIONS
SEC. 601. ENCOURAGING ALIENS TO DEPART VOLUNTARILY.
(a) In General.--Section 240B of the Immigration and Nationality Act
(8 U.S.C. 1229c) is amended--
(1) in subsection (a)--
(A) by amending paragraph (1) to read as follows:
``(1) Instead of removal proceedings.--If an alien is not
described in paragraph (2)(A)(iii) or (4) of section 237(a),
the Secretary of Homeland Security may permit the alien to
voluntarily depart the United States at the alien's own expense
under this subsection instead of being subject to proceedings
under section 240.'';
(B) by striking paragraph (3);
(C) by redesignating paragraph (2) as paragraph (3);
(D) by adding after paragraph (1) the following:
``(2) Before the conclusion of removal proceedings.--If an
alien is not described in paragraph (2)(A)(iii) or (4) of
section 237(a), the Attorney General may permit the alien to
voluntarily depart the United States at the alien's own expense
under this subsection after the initiation of removal
proceedings under section 240 and before the conclusion of such
proceedings before an immigration judge.'';
(E) in paragraph (3), as redesignated--
(i) by amending subparagraph (A) to read as
follows:
``(A) Instead of removal.--Subject to subparagraph
(C), permission to voluntarily depart under paragraph
(1) shall not be valid for any period in excess of 120
days. The Secretary may require an alien permitted to
voluntarily depart 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) by redesignating subparagraphs (B), (C),
and (D) as subparagraphs (C), (D), and (E),
respectively;
(iii) by adding after subparagraph (A) the
following:
``(B) Before the conclusion of removal proceedings.--
Permission to voluntarily depart under paragraph (2)
shall not be valid for any period in excess of 60 days,
and may be granted only after a finding that the alien
has the means to depart the United States and intends
to do so. An alien permitted to voluntarily depart
under paragraph (2) shall 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 the
requirement to post a voluntary departure bond in
individual cases upon a finding that the alien has
presented compelling evidence that the posting of a
bond will pose a serious financial hardship and the
alien has presented credible evidence that such a bond
is unnecessary to guarantee timely departure.'';
(iv) in subparagraph (C), as redesignated, by
striking ``subparagraphs (C) and (D)(ii)'' and
inserting ``subparagraphs (D) and (E)(ii)'';
(v) in subparagraph (D), as redesignated, by
striking ``subparagraph (B)'' each place that
term appears and inserting ``subparagraph
(C)''; and
(vi) in subparagraph (E), as redesignated, by
striking ``subparagraph (B)'' each place that
term appears and inserting ``subparagraph
(C)''; and
(F) in paragraph (4), by striking ``paragraph (1)''
and inserting ``paragraphs (1) and (2)'';
(2) in subsection (b)(2), by striking ``a period exceeding 60
days'' and inserting ``any period in excess of 45 days'';
(3) by amending subsection (c) to read as follows:
``(c) Conditions on Voluntary Departure.--
``(1) Voluntary departure agreement.--Voluntary departure may
only be granted 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 may agree to a reduction in
the period of inadmissibility under subparagraph (A) or (B)(i)
of section 212(a)(9).
``(3) Advisals.--Agreements relating to voluntary departure
granted during removal proceedings under section 240, or at the
conclusion of such proceedings, shall be presented on the
record before the immigration judge. The immigration judge
shall advise the alien of the consequences of a voluntary
departure agreement before accepting such agreement.
``(4) Failure to comply with agreement.--
``(A) In general.--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 failure to timely post any
required bond), the alien is--
``(i) ineligible for the benefits of the
agreement;
``(ii) subject to the penalties described in
subsection (d); and
``(iii) subject to an alternate order of
removal if voluntary departure was granted
under subsection (a)(2) or (b).
``(B) Effect of filing timely appeal.--If, after
agreeing to voluntary departure, the alien 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 of such
agreement, but precludes the alien from another grant
of voluntary departure while the alien remains in the
United States.
``(5) Voluntary departure period not affected.--Except as
expressly agreed to by the Secretary 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.'';
(4) by amending subsection (d) to read as follows:
``(d) Penalties for Failure To Depart.--If an alien is permitted to
voluntarily depart under this section and fails to voluntarily depart
from the United States within the time period specified or otherwise
violates the terms of a voluntary departure agreement, the alien will
be subject to the following penalties:
``(1) Civil penalty.--The alien shall be liable for a civil
penalty of $3,000. The order allowing voluntary departure shall
specify this amount, which shall be acknowledged by the alien
on the record. If the Secretary 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. An
alien will be ineligible for any benefits under this chapter
until this civil penalty is paid.
``(2) Ineligibility for relief.--The alien shall 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. The order permitting the alien to depart
voluntarily shall inform the alien of the penalties under this
subsection.
``(3) Reopening.--The alien shall be ineligible to reopen the
final order of removal that took effect upon the alien's
failure to depart, or upon the alien's other violations of the
conditions for voluntary departure, during the period described
in paragraph (2). This paragraph does not preclude a motion to
reopen to seek withholding of removal under section 241(b)(3)
or protection against torture, if the motion--
``(A) presents material evidence of changed country
conditions arising after the date of the order granting
voluntary departure in the country to which the alien
would be removed; and
``(B) makes a sufficient showing to the satisfaction
of the Attorney General that the alien is otherwise
eligible for such protection.'';
(5) by amending subsection (e) to read as follows:
``(e) Eligibility.--
``(1) Prior grant of voluntary departure.--An alien shall not
be permitted to voluntarily depart under this section if the
Secretary of Homeland Security or the Attorney General
previously permitted the alien to depart voluntarily.
``(2) Rulemaking.--The Secretary may promulgate regulations
to limit eligibility or impose additional conditions for
voluntary departure under subsection (a)(1) for any class of
aliens. The Secretary or Attorney General may by regulation
limit eligibility or impose additional conditions for voluntary
departure under subsections (a)(2) or (b) of this section for
any class or classes of aliens.''; and
(6) in subsection (f), by adding at the end the following:
``Notwithstanding section 242(a)(2)(D) of this Act, sections
1361, 1651, and 2241 of title 28, United States Code, any other
habeas corpus provision, and any other provision of law
(statutory or nonstatutory), no court shall have jurisdiction
to affect, reinstate, enjoin, delay, stay, or toll the period
allowed for voluntary departure under this section.''.
(b) Rulemaking.--The Secretary shall within one year of the date of
enactment of this Act promulgate regulations to provide for the
imposition and collection of penalties for failure to depart under
section 240B(d) of the Immigration and Nationality Act (8 U.S.C.
1229c(d)).
(c) 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 enactment of this
Act.
(2) Exception.--The amendment made by subsection (a)(6) shall
take effect on the date of the enactment of this Act and shall
apply with respect to any petition for review which is filed on
or after such date.
SEC. 602. DETERRING ALIENS ORDERED REMOVED FROM REMAINING IN THE UNITED
STATES UNLAWFULLY.
(a) Inadmissible Aliens.--Section 212(a)(9)(A) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(9)(A)) is amended--
(1) in clause (i), by striking ``seeks admission within 5
years of the date of such removal (or within 20 years'' and
inserting ``seeks admission not later than 5 years after the
date of the alien's removal (or not later than 20 years after
the alien's removal''; and
(2) in clause (ii), by striking ``seeks admission within 10
years of the date of such alien's departure or removal (or
within 20 years of'' and inserting ``seeks admission not later
than 10 years after the date of the alien's departure or
removal (or not later than 20 years after''.
(b) Bar on Discretionary Relief.--Section 274D of such Act (8 U.S.C.
324d) is amended--
(1) in subsection (a), by striking ``Commissioner'' and
inserting ``Secretary of Homeland Security''; and
(2) by adding at the end the following:
``(c) Ineligibility for Relief.--
``(1) In general.--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 (including cancellation of removal and adjustment
of status) during the time the alien remains in the United
States and for a period of 10 years after the alien's departure
from the United States.
``(2) Savings provision.--Nothing in paragraph (1) shall
preclude a motion to reopen to seek withholding of removal
under section 241(b)(3) or protection against torture, if the
motion--
``(A) presents material evidence of changed country
conditions arising after the date of the final order of
removal in the country to which the alien would be
removed; and
``(B) makes a sufficient showing to the satisfaction
of the Attorney General that the alien is otherwise
eligible for such protection.''.
(c) Effective Dates.--The amendments made by this section 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 entered before, on, or
after such date.
SEC. 603. REINSTATEMENT OF REMOVAL ORDERS.
(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, deported, or excluded 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 notwithstanding section
242(a)(2)(D);
``(B) the alien is not eligible and may not apply for
any relief under this Act, regardless of the date that
an application or request for such relief may have been
filed or made; 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 under section 240 or other proceedings before an
immigration judge.''.
(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:
``(h) Judicial Review of Reinstatement Under Section 241(a)(5).--
``(1) Review of reinstatement.--Judicial review of
determinations under section 241(a)(5) is available in an
action under subsection (a).
``(2) No review of original order.--Notwithstanding any other
provision of law (statutory or nonstatutory), including section
2241 of title 28, United States Code, any other habeas corpus
provision, or sections 1361 and 1651 of such title, no court
shall have jurisdiction to review any cause or claim, arising
from, or relating to, any challenge to the original order.''.
(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 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. 604. CLARIFICATION WITH RESPECT TO DEFINITION OF ADMISSION.
Section 101(a)(13)(A) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(13)(A)) is amended by adding at the end the following:
``An alien's adjustment of status to that of lawful permanent resident
status under any provision of this Act, or under any other provision of
law, shall be considered an `admission' for any purpose under this Act,
even if the adjustment of status occurred while the alien was present
in the United States.''.
SEC. 605. REPORTS TO CONGRESS ON THE EXERCISE AND ABUSE OF
PROSECUTORIAL DISCRETION.
(a) In General.--Not later than 180 days after the end of each fiscal
year, the Secretary of Homeland Security and the Attorney General shall
each provide to the Committees on the Judiciary of the House of
Representatives and of the Senate a report on the following:
(1) Aliens apprehended or arrested by State or local law
enforcement agencies who were identified by the Department of
Homeland Security in the previous fiscal year and for whom the
Department of Homeland Security did not issue detainers and did
not take into custody despite the Department of Homeland
Security's findings that the aliens were inadmissible or
deportable.
(2) Aliens who were applicants for admission in the previous
fiscal year but not clearly and beyond a doubt entitled to be
admitted by an immigration officer and who were not detained as
required pursuant to section 235(b)(2)(A) of the Immigration
and Nationality Act (8 U.S.C. 1225(b)(2)(A)).
(3) Aliens who in the previous fiscal year were found by
Department of Homeland Security officials performing duties
related to the adjudication of applications for immigration
benefits or the enforcement of the immigration laws to be
inadmissible or deportable who were not issued notices to
appear pursuant to section 239 of such Act (8 U.S.C. 1229) or
placed into removal proceedings pursuant to section 240 (8
U.S.C. 1229a), unless the aliens were placed into expedited
removal proceedings pursuant to section 235(b)(1)(A)(i) (8
U.S.C. 1225(b)(1)(A)(5)) or section 238 (8 U.S.C. 1228), were
granted voluntary departure pursuant to section 240B, were
granted relief from removal pursuant to statute, were granted
legal nonimmigrant or immigrant status pursuant to statute, or
were determined not to be inadmissible or deportable.
(4) Aliens issued notices to appear that were cancelled in
the previous fiscal year despite the Department of Homeland
Security's findings that the aliens were inadmissible or
deportable, unless the aliens were granted relief from removal
pursuant to statute, were granted voluntary departure pursuant
to section 240B of such Act (8 U.S.C. 1229c), or were granted
legal nonimmigrant or immigrant status pursuant to statute.
(5) Aliens who were placed into removal proceedings, whose
removal proceedings were terminated in the previous fiscal year
prior to their conclusion, unless the aliens were granted
relief from removal pursuant to statute, were granted voluntary
departure pursuant to section 240B, were granted legal
nonimmigrant or immigrant status pursuant to statute, or were
determined not to be inadmissible or deportable.
(6) Aliens granted parole pursuant to section 212(d)(5)(A) of
such Act (8 U.S.C. 1182(d)(5)(A)).
(7) Aliens granted deferred action, extended voluntary
departure or any other type of relief from removal not
specified in the Immigration and Nationality Act or where
determined not to be inadmissible or deportable.
(b) Contents of Report.--The report shall include a listing of each
alien described in each paragraph of subsection (a), including when in
the possession of the Department of Homeland Security their names,
fingerprint identification numbers, alien registration numbers, and
reason why each was granted the type of prosecutorial discretion
received. The report shall also include current criminal histories on
each alien from the Federal Bureau of Investigation.
SEC. 606. WAIVER OF FEDERAL LAWS WITH RESPECT TO BORDER SECURITY
ACTIONS ON DEPARTMENT OF THE INTERIOR AND
DEPARTMENT OF AGRICULTURE LANDS.
(a) Prohibition on Secretaries of the Interior and Agriculture.--The
Secretary of the Interior or the Secretary of Agriculture shall not
impede, prohibit, or restrict activities of U.S. Customs and Border
Protection on Federal land located within 100 miles of an international
land border that is under the jurisdiction of the Secretary of the
Interior or the Secretary of Agriculture, to execute search and rescue
operations and to prevent all unlawful entries into the United States,
including entries by terrorists, other unlawful aliens, instruments of
terrorism, narcotics, and other contraband through the international
land borders of the United States.
(b) Authorized Activities of U.S. Customs and Border Protection.--
U.S. Customs and Border Protection shall have immediate access to
Federal land within 100 miles of the international land border under
the jurisdiction of the Secretary of the Interior or the Secretary of
Agriculture for purposes of conducting the following activities on such
land that prevent all unlawful entries into the United States,
including entries by terrorists, other unlawful aliens, instruments of
terrorism, narcotics, and other contraband through the international
land borders of the United States:
(1) Construction and maintenance of roads.
(2) Construction and maintenance of barriers.
(3) Use of vehicles to patrol, apprehend, or rescue.
(4) Installation, maintenance, and operation of
communications and surveillance equipment and sensors.
(5) Deployment of temporary tactical infrastructure.
(c) Clarification Relating to Waiver Authority.--
(1) In general.--Notwithstanding any other provision of law
(including any termination date relating to the waiver referred
to in this subsection), the waiver by the Secretary of Homeland
Security on April 1, 2008, under section 102(c)(1) of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (8 U.S.C. 1103 note; Public Law 104-208) of the laws
described in paragraph (2) with respect to certain sections of
the international border between the United States and Mexico
and between the United States and Canada shall be considered to
apply to all Federal land under the jurisdiction of the
Secretary of the Interior or the Secretary of Agriculture
within 100 miles of the international land borders of the
United States for the activities of U.S. Customs and Border
Protection described in subsection (c).
(2) Description of laws waived.--The laws referred to in
paragraph (1) are limited to the Wilderness Act (16 U.S.C. 1131
et seq.), the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.), the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.), the National Historic Preservation Act
(16 U.S.C. 470 et seq.), Public Law 86-523 (16 U.S.C. 469 et
seq.), the Act of June 8, 1906 (commonly known as the
``Antiquities Act of 1906''; 16 U.S.C. 431 et seq.), the Wild
and Scenic Rivers Act (16 U.S.C. 1271 et seq.), the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1701 et
seq.), the National Wildlife Refuge System Administration Act
of 1966 (16 U.S.C. 668dd et seq.), the Fish and Wildlife Act of
1956 (16 U.S.C. 742a et seq.), the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.), subchapter II of
chapter 5, and chapter 7, of title 5, United States Code
(commonly known as the ``Administrative Procedure Act''), the
National Park Service Organic Act (16 U.S.C. 1 et seq.), the
General Authorities Act of 1970 (Public Law 91-383) (16 U.S.C.
1a-1 et seq.), sections 401(7), 403, and 404 of the National
Parks and Recreation Act of 1978 (Public Law 95-625, 92 Stat.
3467), and the Arizona Desert Wilderness Act of 1990 (16 U.S.C.
1132 note; Public Law 101-628).
(d) Protection of Legal Uses.--This section shall not be construed to
provide--
(1) authority to restrict legal uses, such as grazing,
hunting, mining, or public-use recreational and backcountry
airstrips on land under the jurisdiction of the Secretary of
the Interior or the Secretary of Agriculture; or
(2) any additional authority to restrict legal access to such
land.
(e) Effect on State and Private Land.--This Act shall--
(1) have no force or effect on State or private lands; and
(2) not provide authority on or access to State or private
lands.
(f) Tribal Sovereignty.--Nothing in this section supersedes,
replaces, negates, or diminishes treaties or other agreements between
the United States and Indian tribes.
(g) Report.--Not later than 1 year after the date of the enactment of
this Act, and annually thereafter, the Secretary of Homeland Security
shall submit to the appropriate committees of Congress a report
describing the extent to which implementation of this section has
affected the operations of U.S. Customs and Border Protection in the
year preceding the report.
SEC. 607. BIOMETRIC ENTRY AND EXIT DATA SYSTEM.
(a) In General.--Not later than two years after the date of the
enactment of this Act, the Secretary of Homeland Security shall
establish the biometric entry and exit data system required by section
7208 of the Intelligence Reform and Terrorism Prevention Act of 2004 (8
U.S.C. 1365b).
(b) Requirements.--In addition to the features required by such
section 7208, the Secretary shall ensure that the biometric entry and
exit data system is established and in operation at each port of entry
to the United States.
SEC. 608. CERTAIN ACTIVITIES RESTRICTED.
(a) In General.--The Secretary of Homeland Security may not finalize,
implement, administer, or enforce the documents described in subsection
(b).
(b) Documents Described.--For purposes of this section, the documents
described in this subsection are the following:
(1) Policy Number 10072.1, published on March 2, 2011.
(2) Policy Number 10075.1, published on June 17, 2011.
(3) Policy Number 10076,1, published on June 17, 2011.
(4) The Memorandum of November 17, 2011, from the Principal
Legal Advisor of United States Immigration and Customs
Enforcement pertaining to ``Case-by-Case Review of Incoming and
Certain Pending Cases''.
(5) The Memorandum of June 15, 2012, from the Secretary of
Homeland Security pertaining to ``Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United
States as Children''.
(6) The Memorandum of December 21, 2012, from the Director of
United States Immigration and Customs Enforcement pertaining to
``Civil Immigration Enforcement: Guidance on the Use of
Detainers in the Federal, State, Local, and Tribal Criminal
Justice Systems''.
(7) The Memorandum of June 15, 2012, from the Director of
United States Immigration and Customs Enforcement pertaining to
``Secretary Napolitano's Memorandum Concerning the Exercise of
Prosecutorial Discretion for Certain Removable Individuals Who
Entered the United States as a Child''.
SEC. 609. BORDER PATROL MOBILE AND RAPID RESPONSE TEAMS.
(a) Findings.--The Congress finds as follows:
(1) It is possible for agents of U.S. Immigration and Customs
Enforcement to use mobile rapid response teams.
(2) If such agents are in the field near the border and
encounter trouble, they should be able to call a mobile
response team if they cannot get help quickly enough by other
means.
(b) Plan.--Not later than 90 days after the date of the enactment of
this Act, the Secretary of Homeland Security shall submit to the
appropriate congressional committees a plan for developing and
deploying mobile rapid response teams to achieve the following
objectives, and submit progress reports on the program every 90 days
after it has been implemented:
(1) Expand the Border Control Tactical Team program to make
emergency assistance available to law enforcement officers in
border areas along the Mexican border that are not designated
as high traffic locations, including officers who operate on
Tribal land.
(2) Provide helicopters and other military transports to
ensure that the teams can deploy quickly to where they are
needed.
(3) Maintain airborne patrols of these units to facilitate
quick deployment when they are called.
(4) Provide a similar airborne force of regular border patrol
officers who will provide the same emergency response service
for ranchers, farmers, and other people who live or work in
these border areas.
(c) Implementation.--The Secretary of Homeland Security shall
implement the plan described in subsection (a) not later than 120 days
after the date on which the plan is submitted.
SEC. 610. GAO STUDY ON DEATHS IN CUSTODY.
The Comptroller General of the United States shall submit to Congress
within 6 months after the date of the enactment of this Act, a report
on the deaths in custody of detainees held by the Department of
Homeland Security. The report shall include the following information
with respect to any such deaths and in connection therewith:
(1) Whether any such deaths could have been prevented by the
delivery of medical treatment administered while the detainee
is in the custody of the Department of Homeland Security.
(2) Whether Department practice and procedures were properly
followed and obeyed.
(3) Whether such practice and procedures are sufficient to
protect the health and safety of such detainees.
(4) Whether reports of such deaths were made to the Deaths in
Custody Reporting Program.
Purpose and Summary
To improve and ensure enforcement of U.S. immigration laws
within the interior of the United States.
Background and Need for the Legislation
THE STRENGTHEN AND FORTIFY ENFORCEMENT ACT (THE SAFE ACT)
On June 6, 2013, Immigration and Border Security
Subcommittee Chairman Trey Gowdy introduced a bill to improve
the interior enforcement of our immigration laws and strengthen
national security. The Strengthen and Fortify Enforcement Act
(H.R. 2278), also known as the SAFE Act, grants states and
localities the authority to enforce Federal immigration laws
and their own immigration laws, makes it more difficult for
foreign nationals who pose a national security risk to enter
and remain in the U.S., improves visa security, protects
American communities from dangerous criminal aliens,
strengthens border security, and equips our immigration
enforcement officers to better do their jobs. H.R. 2278 is
designed to end the current state of affairs in which the
nation's immigration laws go largely unenforced because the
President has directed his administration to simply not enforce
them. The bill responds to the Supreme Court's decision in
Arizona v. U.S.\1\ by granting States and localities specific
Congressional authorization to enact and enforce criminal and
civil penalties that penalize conduct prohibited by criminal
and civil provisions of Federal immigration law, as long as the
criminal penalties do not exceed the relevant Federal penalties
and Federal law does not otherwise prohibit such laws.\2\ In
addition, law enforcement personnel of states and localities
may investigate, identify, apprehend, detain, or transfer to
Federal custody aliens in the United States for the purposes of
enforcing the immigration laws of the United States.\3\ The
bill includes provisions to facilitate assistance of State and
local enforcement of immigration laws while penalizing
sanctuary jurisdictions that are already acting in violation of
Federal law.\4\
---------------------------------------------------------------------------
\1\132 S. Ct. 2492 (2012).
\2\See H.R. 2278, sec. 102.
\3\See id.
\4\See id. at Title I.
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Second, the bill makes it more difficult for foreign
terrorists and other foreign nationals who pose national
security concerns to enter and remain in the United States.\5\
Of note, the bill bars foreign terrorists and other immigrants
who threaten national security from receiving immigration
benefits, such as naturalization and discretionary relief from
removal.\6\ The bill also requires that no immigration benefits
can be provided to immigrants until all required background and
security checks are completed.\7\
---------------------------------------------------------------------------
\5\See id. at Title II.
\6\See id.
\7\See id.
---------------------------------------------------------------------------
Next, the bill protects American communities from dangerous
aliens.\8\ The bill facilitates and expedites the removal of
criminal aliens and the removal of sex offenders, drunk drivers
and alien members of criminal gangs.\9\ When a dangerous
criminal alien cannot be removed from the U.S., the bill allows
the Department of Homeland Security (DHS) to detain them. The
bill strengthens Federal criminal provisions regarding those
who defraud aliens seeking immigration benefits, and regarding
immigration and visa fraud, alien smuggling and illegal
entry.\10\ The bill clarifies existing law so persons who use
false identification documents can be prosecuted under identity
theft statutes, regardless of whether they knew the documents
belonged to another person. The bill also clarifies the Federal
money laundering provisions.\11\
---------------------------------------------------------------------------
\8\See id. at Title III.
\9\See id.
\10\See id.
\11\See id.
---------------------------------------------------------------------------
Under current law, illegal entry into the United States is
a misdemeanor, while no criminal violations attach to an alien
who is illegally present, i.e. enters legally but violates the
terms of their visa and overstays. This bill makes illegal
presence in the U.S. a Federal misdemeanor, just as is illegal
entry.\12\
---------------------------------------------------------------------------
\12\See id.
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The bill improves visa security by strengthening our
nation's first line of defense, the visa issuance process. The
bill expands the Visa Security Program to additional high risk
posts, strengthens the integrity of the student visa program,
and authorizes the Department of Homeland Security and State
Department to revoke visas to foreign nationals if in the
security or foreign policy interests of the U.S.\13\
---------------------------------------------------------------------------
\13\See id. at Title IV.
---------------------------------------------------------------------------
The bill helps U.S. Immigration and Customs Enforcement
(ICE) officers to better accomplish their jobs of enforcing
Federal immigration laws by ensuring they have the tools needed
to do so. The bill also ensures the safety of these agents by
allowing them to carry firearms and provides them body
armor.\14\
---------------------------------------------------------------------------
\14\See id. at Title V.
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Finally, the bill strengthens border security by
prohibiting the Departments of Interior and Agriculture from
denying Border Patrol agents access to Federal lands within 100
miles of the border. This will better enable Border Patrol
agents to secure our border and prevent illegal activity, such
as illegal immigration, smuggling, and drug trafficking. It
also prohibits these agencies from interfering with Border
Patrol activities such as construction and maintenance of roads
and barriers, use of patrol vehicles and deployment of tactical
infrastructure.\15\
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\15\See id. at Title VI.
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THE NEED FOR STRENGTHENED INTERIOR IMMIGRATION ENFORCEMENT
Administrative Legalization
A. Prosecutorial Discretion
Under the current administration, ICE, whose job it is to
enforce Federal immigration laws in the interior of the
country, focuses its resources for removals on those removable
aliens who are considered ``high priority.'' To advise agents,
attorneys, and field personnel on which removals are high
priority, ICE and the former U.S. Immigration and
Naturalization Service (INS) have issued a series of internal
memoranda. These memoranda explain the ICE view of
``prosecutorial discretion,'' which is the inherent authority
of an agency charged with enforcing a law to decide whether to
devote resources to enforce the law in particular instances.
In 2000, Clinton Administration INS Commissioner Doris
Meissner issued a memo on exercising prosecutorial discretion
in which she wrote that:
``Prosecutorial discretion'' is the authority of an
agency charged with enforcing a law to decide whether
to enforce, or not to enforce, the law against someone.
The INS, like other law enforcement agencies, has
prosecutorial discretion and exercises it every day. In
the immigration context, the term applies not only to
the decision to issue, serve, or file a Notice to
Appear (NTA), but also to a broad range of other
discretionary enforcement decisions, including among
others: focusing investigative resources on particular
offenses or conduct; deciding whom to stop, question,
and arrest; maintaining an alien in custody; seeking
expedited removal or other forms of removal by means
other than a removal proceeding; settling or dismissing
a proceeding; granting deferred action or staying a
final order; agreeing to voluntary departure,
withdrawal of an application for admission, or other
action in lieu of removing the alien; pursuing an
appeal; and executing a removal order. . . . The
``favorable exercise of prosecutorial discretion''
means a discretionary decision not to assert the full
scope of the INS's enforcement authority as permitted
under the law.\16\
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\16\Memo from Doris Meissner to Regional Directors, District
Directors, Chief Patrol Agents, and Regional and District Counsel at 2
(Nov. 7, 2000).
However, Commissioner Meissner was careful to point out
that prosecutorial discretion ``is a powerful tool that must be
used responsibly'' and that ``exercising prosecutorial
discretion does not lessen the INS's commitment to enforce the
immigration laws to the best of our ability. It is not an
invitation to violate or ignore the law.''\17\ Former
Commissioner Meissner has reiterated that ``[p]rosecutorial
discretion should be exercised on a case-by-case basis, and
should not be used to immunize entire categories of noncitizens
from immigration enforcement.''\18\
---------------------------------------------------------------------------
\17\Id. at 3-4.
\18\Donald Kerwin, Doris Meissner & Margie McHugh, Executive Action
on Immigration: Six Ways to Make the System Work Better, 2011 Migration
Policy Institute at 15.
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In 2010, top U.S. Citizenship and Immigration Services
(USCIS) political and career agency officials wrote a draft
memo to the Director of USCIS.\19\ The memo suggested that DHS
take steps to legalize millions of illegal immigrants through
its administrative powers. For instance, the memo indicated
that DHS could ``grant deferred action to an unrestricted
number of unlawfully present individuals'' and suggested that
it grant deferred action to illegal immigrants ``who would be
eligible for relief under the DREAM Act'' (those aliens brought
to the U.S. illegally by their parents while they were minors)
or those who have lived in the U.S. since some particular date.
---------------------------------------------------------------------------
\19\See Memo from Denise Vanison, Policy and Strategy, Roxana
Bacon, Office of the Chief Counsel, Debra Rogers, Field Operations, and
Donald Neufeld, Service Center Operations, to Alejandro Mayorkas,
Director (undated).
---------------------------------------------------------------------------
According to ICE, ``deferred action'' is ``not a specific
form of relief but rather a term used to describe the decision-
making authority of ICE to allocate resources in the best
possible manner to focus on high priority cases, potentially
deferring action on [removal] cases with a lower priority,''
``such as [by] not placing an individual in removal
proceedings.''\20\
---------------------------------------------------------------------------
\20\ICE, DHS, Toolkit for Prosecutors at 4 (2011) and ICE, DHS,
Continued Presence: Temporary Immigration Status for Victims of Human
Trafficking (2010).
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However, USCIS can grant work authorization to unlawful and
removable aliens who have received deferred action--making it
in essence a grant of administrative legalization.\21\ In
addition, DHS has determined that aliens do not accrue
``unlawful presence'' (which can result in their becoming
inadmissible in the future) beginning on the date they are
granted deferred action and ending when it is terminated.\22\
Deferred action is not based on any specific statutory
authority.\23\
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\21\See 8 C.F.R. sec. 274a.12(c)(14).
\22\See memo from Donald Neufeld, Acting Associate Director,
Domestic Operations Directorate, USCIS, Lori Scialabba, Associate
Director, Refugee, Asylum and International Operations Directorate,
USCIS & Pearl Chang, Acing Chief, Office of Policy and Strategy, USCIS,
DHS, at 42 (May 6, 2009).
\23\See Toolkit for Prosecutors at 4.
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The 2010 USCIS memo also suggested that parole (which
allows aliens to enter the U.S. without being formally admitted
or subject to grounds of inadmissibility, or, if already in the
U.S., to be ``paroled-in-place'') be used to legalize unlawful
aliens ``who entered the U.S. as minors without inspection'' or
who have ``lived for many years in the U.S.'' But in the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Congress limited the administration's parole authority to
use ``only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit.''\24\ The House Report
stated that this limitation was ``intended to end the use of
parole authority to create an ad hoc immigration policy or to
supplement current immigration categories without Congressional
approval.''\25\
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\24\See sec. 602 of division C of title IV of Pub. L. No. 104-208
(sec. 212(d)(5)(A) of the INA).
\25\See H. Rept. No. 104-469, part 1, at 175 (1996).
---------------------------------------------------------------------------
In 2010, USCIS told Committee staff that it had rejected
many of the suggestions in the memo. Subsequently, however, a
seemingly authentic draft DHS memo was disseminated. It
proposed the grant of deferred action to ``the entire potential
legalization population''--and if that was not possible, then
to DREAM Act-eligible aliens or to unlawful aliens who claim to
have worked in agriculture. In addition, the memo proposed to
use parole authority to allow the over three million immigrants
on extended family immigrant visa waiting lists to enter the
United States.
These memos were drafted in the context of great political
pressure on the Obama Administration to legalize illegal
immigrants through administrative action.\26\
---------------------------------------------------------------------------
\26\See, e.g., letter from Senator Harry Reid and 21 other senators
to President Obama (April 13, 2011) (The letter asked that DHS grant
deferred action to all unlawful aliens who would qualify for amnesty
under the DREAM Act.).
---------------------------------------------------------------------------
On June 30, 2010, ICE Director John Morton issued a memo
entitled ``Civil Immigration Enforcement: Priorities for the
Apprehension, Detention, and Removal of Aliens,'' which set
forth new enforcement prioritization objectives. The memo
outlines civil immigration enforcement priorities as they
relate to the apprehension, detention, and removal of
immigrants. The memo sets forth a three-tiered priority system:
Priority 1: Non-citizens who pose a danger to national
security or a risk to public safety, including those suspected
of terrorism, convicted of violent crimes, and gang members.
Within Priority 1, these crimes are further ranked as Level 1,
2, or 3, with Level 1 being the most serious crimes. Level 1
and 2 offenders are of the greatest priority:
LLevel 1 offenders: aliens convicted of
``aggravated felonies,'' as defined in section
101(a)(43) of the Immigration and Nationality Act, or
two or more crimes each punishable by more than 1
year's incarceration, commonly referred to as
``felonies.'' (ICE notes that the definition of
aggravated felony includes serious, violent offenses as
well as less serious, non-violent offenses, and that
ICE personnel should prioritize the former within Level
1 offenses.)
LLevel 2 offenders: aliens convicted of any
felony or three or more crimes each punishable by less
than 1 year's incarceration, commonly referred to as
``misdemeanors;'' and
LLevel 3 offenders: aliens convicted of crimes
punishable by less than 1 year's incarceration.
A footnote states that ``some misdemeanors are relatively
minor and do not warrant the same degree of focus as others.
ICE agents and officers should exercise particular discretion
when dealing with minor traffic offenses such as driving
without a license.''
Priority 2: Non-citizens who recently crossed the border or
a port of entry illegally, or through the knowing abuse of a
visa or the visa waiver program.
Priority 3: Noncitizens who are subject to a final order of
removal and abscond, fail to depart, or intentionally obstruct
immigration controls.
On June 17, 2011, Director Morton issued two memos laying
out the scope of DHS's prosecutorial discretion. These memos
were explicit expressions of DHS policy.
Director Morton's memo entitled ``Exercising Prosecutorial
Discretion Consistent with the Civil Immigration Enforcement
Priorities of the Agency for the Apprehension, Detention, and
Removal of Aliens'' gives instructions to ICE agents in the
field, telling agency officials how to exercise prosecutorial
discretion by actions such as granting deferred action,
``deciding whom to stop, question, or arrest'', deciding ``whom
to detain'', and ``dismissing'' a removal proceeding.\27\
According to the memo, ``[w]hen weighing whether an exercise of
prosecutorial discretion may be warranted for a given alien,
ICE officers, agents and attorneys should consider all relevant
factors,'' such as:
---------------------------------------------------------------------------
\27\See memo from John Morton, Director, ICE, DHS, to all Field
Office Directors, all Special Agents in Charge, and all Chief Counsels,
Exercising Prosecutorial Discretion Consistent with the Civil
Immigration Enforcement Priorities of the Agency for the Apprehension,
Detention, and Removal of Aliens at 2-3 (June 17, 2011).
LICE's ``immigration enforcement priorities''
(ICE has expressed little interest in deporting
unlawful aliens who have not yet been convicted of
``serious'' crimes.\28\);
---------------------------------------------------------------------------
\28\See memo from John Morton, Director, ICE, DHS, to all ICE
employees (March 2, 2011).
Lthe person's ``pursuit of education in the
---------------------------------------------------------------------------
United States;''
L``[w]hether the person has a U.S. citizen or
permanent resident spouse, child or parent. . . . ;''
L``[w]hether the person or the person's spouse
is pregnant . . . ;''
Lthe person's length of presence in the U.S.;
Lwhether the person is a long-time lawful
permanent resident; and
Lwhether the person has a serious health
condition.\29\
---------------------------------------------------------------------------
\29\See Exercising Prosecutorial Discretion Consistent with the
Civil Immigration Enforcement Priorities of the Agency for the
Apprehension, Detention, and Removal of Aliens at 4-5.
The second memo issued by Director Morton that day,
``Prosecutorial Discretion: Certain Victims, Witnesses, and
Plaintiffs,'' urges the exercise of prosecutorial discretion in
the case of unlawful aliens who are plaintiffs in civil rights
lawsuits or who have disputes ``with an employer, landlord, or
contractor.''
Following the release of these memos, DHS announced it
would initiate a ``case-by-case review'' of about 300,000 cases
of aliens already in removal proceedings and ensure that
``appropriate discretionary consideration'' be given to
``compelling cases with final orders of removal.''\30\
According to information provided by DHS to the Judiciary
Committee, the purpose of these changes was to limit cases
initiated for removal in the future. Specifically, DHS
indicated to the Committee that one of its main reasons for the
new procedures is to ``tweak who we are putting in the removal
process in the first place.''
---------------------------------------------------------------------------
\30\Letter from DHS Secretary Janet Napolitano to Senator Harry
Reid (August 19, 2011).
---------------------------------------------------------------------------
The memo allows for administrative closure for cases in
proceedings. Like deferred action, administrative closure was
never meant to be used for the mass abandonment of viable
cases. Specifically, the Board of Immigration Appeals (BIA) has
encouraged DHS to administratively close cases in appropriate
circumstances where there is a pending visa petition that is
prima facie approvable--when an alien is eligible for statutory
immigration relief.\31\ For instance, DHS previously utilized
administrative closure where the respondent was prima facie
eligible for temporary protected status.\32\ This new policy
fails to take into account the large appellate body that is
available to determine whether an alien is correctly in removal
proceedings. The BIA has nationwide jurisdiction to review
decisions of Immigration Judges.\33\ Furthermore, pursuant to
section 242 of the Immigration and Nationality Act, aliens can
appeal adverse decisions to a Federal appeals court. From
October 1, 2011 to September 30, 2012, ICE attorneys reviewed
for prosecutorial discretion a total of 407,329 cases which
were pending before Immigration Judges and the BIA.\34\ As of
October 1, 2012, ICE had filed motions to administratively
close or dismiss 10,082 cases, and declined to file 568 Notices
to Appear.\35\
---------------------------------------------------------------------------
\31\See Matter of Rajah, 25 I&N Dec. 127 (BIA 2009).
\32\See Memo, Carpenter, Deputy Gen. Co. HQCOU 120/12.2 (Feb. 7,
2002), reported in 79 Interpreter Releases 524, 530-38.
\33\See 8 C.F.R. sec. 1003.1.
\34\Information provided by ICE.
\35\See id.
---------------------------------------------------------------------------
Unfortunately, ICE stopped tracking prosecutorial
discretion statistics on October 1, 2012, although, ``ICE
attorneys continue to exercise prosecutorial discretion with
each and every case.''\36\ Countless others may have received
prosecutorial discretion and not been placed in removal
proceedings from the onset.\37\
---------------------------------------------------------------------------
\36\Id.
\37\See id.
---------------------------------------------------------------------------
B. Deferred Action for Childhood Arrivals
On June 15, 2012, Secretary Napolitano issued a memo
providing, and the President announced, that beginning on
August 15, 2012, DHS would grant deferred action to unlawful
aliens who:\38\
---------------------------------------------------------------------------
\38\See Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children (2012).
Lcame to the United States under the age of
---------------------------------------------------------------------------
sixteen;
Lhave continuously resided in the United
States for a least 5 years preceding June 15, 2012, and
were present in the United States on that date;
Lare currently in school, have graduated from
high school, have obtained a general education
development certificate, or are honorably discharged
veterans of the Coast Guard or Armed Forces of the
United States;
Lhave not been convicted of a felony offense,
a significant misdemeanor offense, multiple misdemeanor
offenses, or otherwise do not pose a threat to national
security or public safety; and
Lare not above the age of thirty.
USCIS first granted DACA benefits in September 2012. Since
the DACA term is 2 years, the first grants began expiring in
September 2014. In May 2014, USCIS announced renewal procedures
for initial DACA recipients.
The policy, which became known as Deferred Action for
Childhood Arrivals (DACA), was put in place despite the prior
assurances that the USCIS memos outlining such a policy had
been rejected, and despite President Obama's own March 28,
2011, admission that:
With respect to the notion that I can just suspend
deportations through executive order, that's just not
the case, because there are laws on the books that
Congress has passed. . . . The executive branch's job
is to enforce and implement those laws. . . . There are
enough laws on the books by Congress that are very
clear in terms of how we have to enforce our
immigration system that for me to simply through
executive order ignore those congressional mandates
would not conform with my appropriate role as
President.
DHS officials told Committee staff that DHS received a
legal opinion from the U.S. Department of Justice affirming the
legality of DACA.\39\ Committee staff requested a copy of that
opinion, but DHS refused to provide it. In any event, at a
hearing of the Subcommittee on Immigration Policy and
Enforcement in October 2011, former Justice Department official
David Rivkin testified that:
---------------------------------------------------------------------------
\39\Briefing for House Judiciary Committee Staff by John Sandweg,
Counselor to the Secretary of DHS, July 13, 2012.
[When] the President has, in effect, suspended
operation of [immigration] laws with regard to a very
large identifiable class of offenders. . . . it clearly
exceeds his constitutional authority and sets an
---------------------------------------------------------------------------
extremely unfortunate record.
Now we have heard a lot about enforcement priorities;
and, of course, we all recognize that Federal agencies
do . . . exercise prosecutorial discretion and the
President can properly inform the exercise of such
discretion. But that authority is not boundless.
. . . .
The President is entitled to establish enforcement
priorities, but his ultimate goal must be the
implementation of a law enacted by Congress. If a
President disagrees with this law, his sole recourse is
to convince Congress to change it.\40\
---------------------------------------------------------------------------
\40\U.S. Immigration and Customs Enforcement: Priorities and the
Rule of Law: Hearing Before the Subcomm. on Immigration Policy and
Enforcement of the House Comm. on the Judiciary, 112th Cong. 58-59
(2011).
In his testimony, Mr. Rivkin referenced the 1838 decision
in Kendall v. U.S., in which the Supreme Court stated that
``[t]o contend that the obligation imposed on the President to
see the laws faithfully executed, implies a power to forbid
their execution, is a novel construction of the Constitution,
and entirely inadmissible.''\41\
---------------------------------------------------------------------------
\41\37 U.S. 524, 613 (1838). See U.S. Const. art. II, sec. 3 & H.R
Rep. No. 113-377, at 3-7 (2014).
---------------------------------------------------------------------------
After the Napolitano announcement, it became clear that
there was little if any planning in place regarding the actual
implementation of DACA and processing of DACA applications. On
the morning of June 15, 2012, DHS released Secretary
Napolitano's memo regarding the administrative order. Later
that morning, President Obama announced the new policy. The
following Monday, USCIS Director Ali Mayorkas, ICE Director
John Morton and U.S. Customs and Border Protection (CBP)
Commissioner David Aguilar held a ``stakeholder'' conference
call which Mayorkas began by stating that the three of them
were ``not in the position to answer many questions about the
process.''
And even a month later at a July 13, 2012, briefing by John
Sandweg, Counselor to the Secretary of DHS, Sandweg told
Committee staff that there were ``a lot of questions for which
we are not going to be able to give detailed answers today.''
Sandweg indicated that the Committee would be informed of the
specifics of the implementation plan well in advance of August
15 (the date on which USCIS was supposed to start accepting
applications)--which did not turn out to be the case.
To apply for DACA, an unlawful alien must complete three
USCIS forms--the I-821D (DACA consideration), the I-765
(application for employment authorization) and the I-765WS
(worksheet to determine DACA applicants' economic need for
employment authorization). The alien must submit the completed
forms along with a fee of $465 ($380 for the work authorization
and $85 for the fingerprint submission fee), and evidence of
the following: 1) identity, 2) entry to the U.S. prior to age
16, 3) immigration status (if ever possessed), 4) presence in
the U.S. prior to June 15, 2012, 5) continuous presence in the
U.S. since June 15, 2007, 6) student status (if applicable),
and 7) honorable discharge from the U.S. military (if
applicable).\42\
---------------------------------------------------------------------------
\42\See USCIS website, ``Consideration of Deferred Action for
Childhood Arrivals Process,'' http://www.uscis.gov/portal/site/uscis/
menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid
=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310
VgnVCM10
0000082ca60aRCRD.
---------------------------------------------------------------------------
As of July 31, 2014, USCIS had approved 591,555 DACA
applications. As of August 31, 2014, USCIS had rejected 42,906
DACA applications (A rejection does not represent a denial. An
application is rejected because it was not properly completed
by the applicant). As of July 31, 2014, USCIS had denied 26,130
DACA applications.\43\
---------------------------------------------------------------------------
\43\Information provided by USCIS.
---------------------------------------------------------------------------
Strong fraud concerns exist regarding DACA. USCIS lists the
types of documents that will be accepted as proof of each of
the requirements a DACA applicant must meet. For instance, as
proof of identity, USCIS will accept (among other things) a
passport, national identity document from the applicant's home
country, birth certificate with photo identification, school or
military ID with photo or any U.S. government immigration
document with a name and photo. And as evidence that a DACA
applicant came to the U.S. prior to their 16th birthday, USCIS
will accept (among other things) a school record from a U.S.
school, travel records or medical records.\44\
---------------------------------------------------------------------------
\44\See USCIS website, ``Consideration of Deferred Action for
Childhood Arrivals Process,'' http://www.uscis.gov/portal/site/uscis/
menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid
=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310
VgnVCM10
0000082ca60aRCRD.
---------------------------------------------------------------------------
Unfortunately, many of the accepted documents can be easily
forged. In addition, DHS does not have the resources to check
with foreign countries to determine whether a ``national
identity document for the country of origin'' is authentic.
Fraud in legalization processing is nothing new. Professor
Philip Martin of the University of California at Davis
estimated that up to two-thirds of the applications for amnesty
for unlawful alien farmworkers under the 1986 Special
Agricultural Worker (SAW) legalization program were
fraudulent.\45\ The Commission on Agricultural Workers found
that ``[w]ith some luck, eventual U.S. permanent resident
status could be gained through the purchase of a single
fraudulent affidavit and the ability to maintain one's
composure in an interview.''\46\ The Commission noted that
``the Government was sorely taxed by its burden of disproving
the evidence presented in each application.''\47\ Two
commentators have also noted that:
---------------------------------------------------------------------------
\45\See Philip Martin, Harvest of Confusion: Immigration Reform and
California Agriculture, 24 Inter. Migration Rev. 69, 83 (1990).
\46\Commission on Agricultural Workers, Report of the Commission on
Agricultural Workers 63 (1992).
\47\Id. at 64.
[T]he documentation required in the application process
for SAWs was substantially less rigorous than it was
for general legalization applicants. . . . The
extremely large number of SAW applicants surprised
Congress, the INS (who processed the applications), and
almost all observers of farm labor in the United
States. To explain the large number, most persons
involved in the legalization process assume high rates
of fraud in the SAW program.\48\
---------------------------------------------------------------------------
\48\Monica Heppel & Sandra Amendola, Immigration Reform and
Perishable Crop Agriculture: Compliance or Circumvention? 20-24 (1992).
The type of adjudicatory steps that USCIS indicates it
takes for DACA application processing include many of the same
adjudicatory steps that were required to process applications
for SAW. For instance, DHS must determine continuous presence
as of a certain date, lack of criminal convictions and proof of
a certain activity (for SAW it was farmwork and for deferred
action it is school attendance).
DHS has indicated that no in-person interviews of DACA
applicants will be conducted. In addition, according to DHS,
the documents required as evidence of eligibility for
immigration relief must be ``independently verifiable.''
However, this process must be ``cost neutral'', so fraud
prevention and detection actions that are expensive or time
consuming, or that ``unduly'' impact USCIS's other
responsibilities, may not be utilized.\49\
---------------------------------------------------------------------------
\49\Briefing for House Judiciary Committee Staff by John Sandweg,
Counselor to the Secretary of DHS, July 13, 2012.
---------------------------------------------------------------------------
If individuals are caught committing fraud in the
application process, DHS retains the ``flexibility'' to decide
whether or not to prosecute them for fraud. Requests to DHS for
statistics about the fraud found in DACA applications have gone
unanswered.
Perhaps most concerning, however, is that with its updated
DACA Frequently Asked Questions (``FAQs''), issued on May 15,
2014, USCIS essentially broadcast its intention not to check
the validity of documents submitted in support of a DACA
application. Specifically the question and answer to FAQ 21
states:\50\
---------------------------------------------------------------------------
\50\USCIS Frequently Asked Questions, updated June 5, 2014, http://
www.uscis.gov/humani
tarian/consideration-deferred-action-childhood-arrivals-process/
frequently-asked-questions#
DACA%20process.
Q21: Will USCIS verify documents or statements that I
---------------------------------------------------------------------------
provide in support of a request for DACA?
A21: USCIS has the authority to verify documents,
facts, and statements that are provided in support of
requests for DACA. USCIS may contact education
institutions, other government agencies, employers, or
other entities in order to verify information.
Another concern is that the DACA application fee of $465 is
not enough to cover the cost of DACA processing. It is no more
than what USCIS already charges to adjudicate an application
for work authorization and a biometric submission (both of
which are done for DACA applicants). Thus, it is clear that
there is no fee charged to actually cover the cost of
adjudicating the DACA application itself.
USCIS continues to process SAW applications with the form
I-687. And the current required fee to file an I-687 is $1,130.
Clearly, USCIS charges nothing to process a deferred action
application that has substantially the same adjudicatory
requirements as a SAW application.
Historically, the refusal of USCIS to charge enough in
application/processing fees to cover the actual costs of
processing those applications resulted in an enormous backlog
of legal immigration benefits applications and in very long
processing wait times for legal immigrants and aspiring U.S.
citizens. Per USICS request, Congress provided funds to USCIS
specifically to hire personnel to reduce that backlog. USCIS's
decision not to charge a fee for form I-821D processing did in
fact result in enormous backlogs for processing of immediate
relatives petition for lawful permanent residence. In fact, the
New York Times has reported that:
Many thousands of Americans seeking green cards for
foreign spouses or other immediate relatives have been
separated from them for a year or more because of
swelling bureaucratic delays at a Federal immigration
agency in recent months. The long waits came when
[USCIS] shifted attention and resources to a program
President Obama started in 2012 to give deportation
deferrals to young undocumented immigrants, according
to administration officials and official data.\51\
---------------------------------------------------------------------------
\51\Julie Preston, Program Benefiting Some Immigrants Extends Visa
Waits for Others, New York Times, Feb. 8, 2014.
The issue of a ``fee exemption'' is also a concern. In July
2012, Secretary Napolitano testified that fee waivers would
only be granted for ``very deserving cases.''\52\ USCIS
materials note that ``fee exemptions are available in very
limited circumstances.''\53\ Unfortunately, USCIS declines to
tell Committee staff how many fee exemptions have been granted.
---------------------------------------------------------------------------
\52\Oversight of the Department of Homeland Security: Hearing
Before the House Comm. on the Judiciary, 112th Cong. 69 (2012).
\53\USCIS website, ``Consideration of Deferred Action for Childhood
Arrivals Process,'' http://www.uscis.gov/portal/site/uscis/
menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f
19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM1
0000008
2ca60aRCRD.
---------------------------------------------------------------------------
The Administration claims that DACA provides no path to
citizenship. However, Secretary Napolitano testified that there
may be cases in which advance parole is granted.\54\ Advance
parole is permission to foreign nationals to allow them to re-
enter the United States after temporarily traveling abroad.
Once granted advance parole, a DACA recipient can adjust
immigration status to lawful permanent residence status (if
otherwise eligible) either through a family or employment-based
petition, and would not be subject to the 3- and 10-year bars
to admissibility for unlawful presence.\55\
---------------------------------------------------------------------------
\54\See Oversight of the Department of Homeland Security: Hearing
Before the House Comm. on the Judiciary at 25.
\55\See INA sec. 212(a)(9)(B)(i).
---------------------------------------------------------------------------
ICE agents and prosecutors and CBP officers have been
forced to modify the carrying out of their enforcement duties
under the DACA program. In most cases, when CBP officers
encounter an unlawful alien who claims to qualify for DACA at a
CBP checkpoint, the CBP officer cannot take the individual into
custody and must give them a letter outlining DACA and stating
that the individual should contact USCIS to apply for relief.
In most cases, if an ICE agent in the field encounters an
unlawful alien who claims to qualify for DACA, the ICE agent is
prohibited from taking the individual into custody and must
notify the individual either verbally or in writing that the
individual should contact USCIS to apply for relief. And ICE
prosecutors have been required to comb their pending case files
for unlawful aliens who could qualify for DACA. If they find
someone who may be eligible, they must notify the unlawful
alien that they are DACA eligible.
Also of concern is the weakening of standards for DACA
eligibility. One way an individual can satisfy the education-
related DACA requirement is by being ``currently in school. . .
.''\56\ FAQ33 addresses what is considered ``currently in
school'' and the updated procedures STATE that the individual
can be ``enrolled in'' an ``alternative program.''\57\ There is
no definition of what ``alternative program'' means and
internal USCIS sources indicate that this was discussed as a
way to specifically ensure that more individuals would meet the
education requirement. Committee staff repeatedly requested the
definition of ``alternative program'' and was told that a
definition existed and that it would be provided to the
Committee, but USCIS has not as of yet provided it.
---------------------------------------------------------------------------
\56\USCIS Frequently Asked Questions, updated June 5, 2014.
\57\Id. at FAQ 33.
---------------------------------------------------------------------------
Finally, unlawful aliens found to be ineligible for DACA
will not be placed in removal proceedings unless they meet
ICE's enforcement priorities.
C. Parole-in-Place
Section 212(d)(5)(A) of the Immigration and Nationality Act
allows the Secretary of DHS in his or her discretion to
``parole into the United States temporarily under such
conditions as he may prescribe only on a case-by-case basis for
urgent humanitarian reasons or significant public benefit any
alien applying for admission to the United States. . . .''
However, the section makes clear that the parole is temporary,
stating ``such parole of such alien shall not be regarded as an
admission of the alien and when the purposes of such parole
shall, in the opinion of the Secretary, have been served the
alien shall forthwith return or be returned to the custody from
which he was paroled. . . .'' This limitation on use only on a
case-by-case basis for urgent humanitarian reasons or
significant public benefit was added by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996.\58\ The House
Report stated that this limitation was ``intended to end the
use of parole authority to create an ad hoc immigration policy
or to supplement current immigration categories without
Congressional approval.''\59\
---------------------------------------------------------------------------
\58\See sec. 602 of division C of title IV of Pub. L. No. 104-208.
\59\See H.R. Rep. No. 104-469, part 1, at 175 (1996).
---------------------------------------------------------------------------
On November 15, 2013, then USCIS Director Ali Mayorkas
issued a memo regarding the grant of parole to unlawful alien
spouses, children and parents of active duty and former Armed
Services and Ready Reserve service members.\60\ Specifically,
the memo provided that these relatives of anyone who has ever
served in the U.S. Armed Forces for any period of time (and
without regard to whether discharge was honorable or
dishonorable) are eligible to receive parole on a categorical
basis.\61\
---------------------------------------------------------------------------
\60\See USCIS Policy Memorandum, PM-602-009, Nov. 15, 2013.
\61\See id.
---------------------------------------------------------------------------
The memo also provides that despite entering the United
States without inspection, these relatives of individuals who
have served in the Armed Forces or Ready Reserve are allowed to
adjust status to that of lawful permanent residence should they
otherwise qualify for an immigrant visa. These individuals
would not have to follow the normal statutory procedures for
such adjustment of traveling abroad for consular processing,
and would not be subject to the 3- and 10-year bars to
admissibility for unlawful presence.\62\
---------------------------------------------------------------------------
\62\See INA sec. 212(a)(9)(B)(i).
---------------------------------------------------------------------------
D. ICE Agents in the Field
Following the release of the first round of ICE
prosecutorial discretion memos in 2010, the ICE union issued a
press release stating that:
On June 11, 2010, ICE Union leaders around the nation
issued a unanimous no confidence vote in ICE Director
John Morton on behalf of ICE officers, agents and
employees nationwide citing gross mismanagement within
the Agency as well as efforts within ICE to create
backdoor amnesty through agency policy. ICE Union
leaders say that since the no confidence vote was
released problems within the Agency have increased,
citing the Director's latest Discretionary Memo as just
one example.
On July 26, 2011, ICE Union head Chris Crane testified
before the Immigration Policy and Enforcement Subcommittee.\63\
Mr. Crane not only represents ICE agents, but is also an ICE
immigration enforcement agent and has worked as part of the
Criminal Alien Program and the fugitive operations team. He
reiterated the union's no-confidence vote in Director Morton,
based upon membership's beliefs that ``ICE is broken'' and that
``politics are the priority at ICE'' under the current
Director's leadership. Mr. Crane went on to describe a culture
where ICE agents and officers are excluded from pre-decisional
policy development while immigrant advocacy groups are
routinely brought in to help write security and law enforcement
protocols.
---------------------------------------------------------------------------
\63\See Hinder the Administration's Legalization Temptation Act:
Hearing Before the Immigration Policy and Enforcement Subcomm. of the
House Judiciary Comm., 111th Congress 17 (2011).
---------------------------------------------------------------------------
Furthermore, Mr. Crane stated that ``[t]he prosecutorial
discretion memorandum issued by ICE Director John Morton on
June 17th, 2011 cannot be effectively applied in the field and
has the potential to either completely overwhelm ICE's limited
manpower resources or result in the indiscriminate and large
scale release of aliens encountered in all ICE law enforcement
operations, not just the ICE Secure Communities Program.''
According to Mr. Crane and other agents who communicated
with Committee staff, ICE Headquarters (HQ) refused to put many
directives in writing to supervisors, agents, and officers in
the field in order to prevent them from becoming known to the
general public. In conversations with agents, they have been
able to provide three emails that can be summarized as such:
Email 1:
This is an email from a local manager to his officers
describing comments by ICE HQ Leadership during a
teleconference regarding Operation Crosscheck. One Deputy
Associate Director (DAD) is reported to have said ``[t]his is
not a fugitive operation. This is an operation targeting
criminal aliens. If the aliens you encounter are not criminal,
they will not be arrested. . . . Am I telling you to walk away
from a non-criminal fugitive or a non-criminal reinstate?
Yes!'' Another DAD is reported to have said ``Only targets will
be arrested. There will be no collateral arrests of any kind
with this op. . . . no enforcement activities, including
surveillance will take place near sensitive locations. . . .''
Email 2:
This email is from local managers to their subordinate
managers and emphasizes only criminal arrests. ``[A]s of right
now, they only want targets arrested unless you come across a
collateral that is a confirmed convicted criminal alien. . . .
[I]f you see your target, you should arrest your target and
leave the scene w/o anyone else being interviewed. . . . I will
not be able to enter any information in the database if it
relates to a non-convicted, non-criminal alien.''
Email 3:
This email string begins with a manager giving officers
direction on a related matter, but one officer begins to
question other orders not to arrest aliens subject to
reinstatements of removal orders. The officer is told that only
reinstatements with other criminal convictions may be arrested.
The officer is told that officers in the field are to ``walk
away . . . with no one'' if the target is not located.
A number of ICE deportation officers and immigration
enforcement agents and the state of Mississippi filed a Federal
lawsuit challenging the constitutional and statutory validity
of the memo issued by ICE Director Morton on June 17, 2011, on
prosecutorial discretion and the directive issued by DHS
Secretary Napolitano on June 15, 2012 as to DACA.\64\ They
``challenge the portions of the Directive and Morton Memorandum
that require ICE officers to exercise prosecutorial discretion
and defer action against aliens who satisfy the Directive's
critieria'' and ``the portion of the Directive that permits
USCIS to issue employment authorization to Directive-eligible
aliens during the period of deferred action.''\65\ Allegedly,
the ICE agent plaintiffs' ``supervisors have instructed them
that an alien only needs to claim he is covered by the
Directive to be released and offered the benefits of the
Directive'' and they are ``prohibited from demanding proof that
an alien meets the Directive's criteria.''\66\
---------------------------------------------------------------------------
\64\See Crane v. Napolitano, 920 F. Supp.2d 724, 731 (N.D. Texas
2013) (memorandum opinion and order).
\65\Id.
\66\Id.
---------------------------------------------------------------------------
The basis of the lawsuit is the ICE agent plaintiffs'
contention ``that the Directive commands ICE officers to
violate Federal law and to violate their oaths to uphold and
support Federal law'' and that ``they believe they will be
disciplined or suffer other adverse employment consequences if
they arrest or issue a Notice to Appear in removal proceedings
. . . to an alien who satisfies the factors for deferred action
set out in the Directive.''\67\ As the court stated:
---------------------------------------------------------------------------
\67\Id. (footnotes omitted).
The ICE Agent Plaintiffs allege that compliance with
the Directive and Morton Memorandum would require them
to violate their statutory obligations under the
Immigration and Nationality Act. . . . The [Act]
provides that ``[a]n alien present in the United States
who has not been admitted . . . shall be deemed for
purposes of this chapter an applicant for admission.''
. . . All applicants for admission ``shall be inspected
by immigration officers.'' . . . ``[I]f the examining
immigration officer determines that an alien seeking
admission is not clearly and beyond a doubt entitled to
be admitted, the alien shall be detained for a
proceeding. . . .'' The ICE Agent Plaintiffs assert
that these statutory provisions require them to arrest
or issue a[ Notice to Appear] to illegal aliens
whenever those aliens ``are not clearly and beyond a
doubt entitled to be admitted'' to the United States. .
. . Because Directive-eligible aliens may not be
``clearly and beyond a doubt entitled to be admitted,''
Plaintiffs allege that Federal law requires them to
arrest those aliens or issue a [Notice to Appear].\68\
---------------------------------------------------------------------------
\68\Id. at 738 (citations omitted).
DHS asked the court to dismiss the lawsuit on a number of
bases, including that the plaintiffs did not have standing to
sue. The court ruled that the ICE agents, though not the state
of Mississippi, did have standing to sue on a number of their
causes of action.\69\ On April 23, 2013, the judge denied the
Government's motion for summary judgment but deferred ruling on
Plaintiffs' Application for Preliminary Injunction until the
parties have provided the Court with additional briefing on
certain legal issues.\70\ Importantly, the court ruled that the
Immigration and Nationality Act ``imposes a mandatory duty on
immigration officers to initiate removal proceedings'' in the
circumstances set forth above and that ``DHS does not have
discretion to refuse to initiate removal proceedings when the
requirements [of the INA set forth above] are satisfied.''\71\
On July 31, 2013, the lawsuit was dismissed, but only because
the court had no subject matter jurisdiction because the judge
found that the agents' only remedy was pursuant to the scheme
provided by the Civil Service Reform Act.\72\ The judge still
believed that the agents were ``likely to succeed on the merits
of their claim challenging the Directive and Morton Memorandum
as contrary to the provisions of the Immigration and
Nationality Act. . . .''\73\
---------------------------------------------------------------------------
\69\See id. at 741.
\70\See Crane v. Napolitano, Civil Action No. 3:12-cv-03247-O, 2013
WL 1744422 (N.D. Texas April 23, 2013).
\71\Id. at 11, 13.
\72\See Crane v. Napolitano, Civil Action No. 3:12-cv-03247-O (N.D.
Texas July 31, 2013) (order).
\73\Id., slip op. at 6.
---------------------------------------------------------------------------
E. ICE Removal Numbers
Over the past few years, ICE had been claiming to have
removed record numbers of unlawful or otherwise removable
aliens from the United States--389,834 in fiscal year 2009,
392,862 in fiscal year 2010, 396,906 in fiscal year 2011, and
409,849 in fiscal year 2012. However, ICE has since admitted to
a 10% drop in removals in fiscal year 2013 (to 368,644), and
the Center for Immigration Studies (CIS) has reported that
internal ICE documents indicate that the number will fall to
little more than 300,000 in fiscal year 2014.\74\
---------------------------------------------------------------------------
\74\See Jessica Vaughan, ICE Enforcement Collapses Further in 2014,
2014 Center for Immigration Studies at 1.
---------------------------------------------------------------------------
Of course, to the extent these numbers are reflective of
actual removals, they indicate the vast increase in enforcement
resources provided by Congress in recent years. ICE's budget
has increased from approximately $3 billion in fiscal year 2005
to over $5.6 billion in fiscal year 2014.\75\ However, in
reality, ICE's supposed removal numbers are not reflective of
actual removals.
---------------------------------------------------------------------------
\75\See DHS and ICE budget documents.
---------------------------------------------------------------------------
The Judiciary Committee learned that beginning in fiscal
year 2011, ICE started to include the Alien Transfer Exit
Program (ATEP) in its removal numbers. ATEP is a joint effort
by ICE and CBP that transfers unlawful aliens apprehended at
the U.S.-Mexico border to another point along the Southwest
border for removal.\76\ It is not appropriate to count aliens
apprehended by the Border Patrol along the border as ICE
removals. These are not removals of aliens who were actually
residing in the U.S. (the primary responsibility of ICE, as
opposed to CBP), and removal orders are not always placed
against the aliens. In such cases, there are no penalties or
bars attached when they are sent back across the border. They
can simply attempt reentry without being subject to the
criminal penalties that apply to aliens who reenter after being
officially removed. If the ATEP removals of 36,587 in 2011 and
85,550 in 2012 are removed from the ICE removal totals, ICE
removals for 2011 fall to 360,319 and removals for 2012 fall to
324,299.\77\ This represents a drop in ICE removals of 17% from
2010.
---------------------------------------------------------------------------
\76\In May 2013, ICE suspended operation of ATEP due to the high
costs of the program. However, in June 2013, the Administration
reinstated limited routes via busing. The ATEP program had involved
detaining aliens encountered at one port of entry and flying them to
another port of entry in order to remove them. Both the detention and
flights were costly to maintain, particularly where similarly situated
aliens were previously bused back across the border.
\77\Information obtained by the Judiciary Committee.
---------------------------------------------------------------------------
However, it has become apparent that ICE's counting of
aliens apprehended by the Border Patrol along the border as ICE
removals has been far more extensive than even indicated above.
CIS obtained ICE data contained in two editions of the ``Weekly
Departures and Detention Report'' prepared by ICE's Enforcement
and Removal Operations and data that was made available as part
of the discovery process in the lawsuit against DHS by ICE
deportation officers and immigration enforcement agents and the
state of Mississippi.\78\ The data reveals that more than half
of the removals claimed by ICE originate as aliens apprehended
by the Border Patrol along the border or by CBP at ports-of-
entry--in fiscal year 2012, of 409,849 claimed ICE removals,
228,879 (or 56%) originated along the border while the number
of true ICE removals from the interior was only 180,970.\79\
Following the release of this data by CIS, ICE itself began to
report the relevant information.\80\ ICE's report indicates
that the situation deteriorated even further in 2013, when
almost two-thirds of all removals claimed by ICE (235,093 out
of 368,644) involved aliens apprehended by the Border Patrol
along the border or intercepted by inspectors at ports-of-
entry.\81\ These aliens were not actually residing in the
U.S.--unlawfully working or committing crimes--and cannot be
legitimately counted as ICE removals. As mentioned above,
removal orders have not been placed against all these aliens.
The number of true ICE removals of aliens apprehended in the
interior has fallen 43% from fiscal year 2008 to fiscal year
2013--from 234,770 to 133,551.\82\ CIS has reported that
internal ICE documents indicate that the number will fall to
little more than 100,000 in fiscal year 2014.\83\
---------------------------------------------------------------------------
\78\See Jessica Vaughan, Deportation Numbers Unwrapped: Raw
Statistics Reveal the Real Story of ICE Enforcement in Decline, 2013
Center for Immigration Studies.
\79\See id. at 6 (table 3).
\80\See ICE, DHS, FY 2013 ICE Immigration Removals.
\81\See id. at 1, 3.
\82\See id. at 3; and information provided by ICE.
\83\See ICE Enforcement Collapses Further in 2014 at 7 (figure 5).
---------------------------------------------------------------------------
Even worse, the number of removals attributable to ICE's
Homeland Security Investigations fell from 41,494 in 2009 to
7,584 in 2012; the Center for Immigration Studies notes that
``this is the division of ICE that is responsible for work site
enforcement, combatting transnational gangs, overstay
enforcement, anti-smuggling and trafficking activities, and
busting document and identity theft rings. . . .''\84\
---------------------------------------------------------------------------
\84\Deportation Numbers Unwrapped at 6.
---------------------------------------------------------------------------
President Obama may have been referring to these
manipulations when he stated that ICE's removal numbers were
``deceptive'':
President Obama said statistics that show his
administration is on track to deport more illegal
immigrants than the Bush administration are misleading.
``The statistics are a little deceptive,'' he said
Wednesday. . . . Obama explained that enhanced border
security has led to Border Patrol agents arresting more
people as they cross into the country illegally. Those
people are quickly sent back to their countries, but
are counted as deported illegal immigrants.\85\
---------------------------------------------------------------------------
\85\Brendan Sasso, Obama: Deportation Statistics ``Deceptive,'' the
Hill, Sept. 28, 2011.
Furthermore, according to a study conducted by
Transactional Records Access Clearinghouse (TRAC) at Syracuse
University, data obtained under the Freedom of Information Act
from ICE shows that the immigration ``detainers'' issued by the
agency are declining.\86\ Detainers are notices issued by ICE
and other DHS units that ask local, State and Federal law
enforcement agencies not to release suspected removable aliens
held at their facilities in order to give ICE an opportunity to
take them into its custody. Detainers, often called
``immigration holds,'' are a primary tool that ICE uses to
apprehend the suspects it is seeking.
---------------------------------------------------------------------------
\86\See Transactional Records Access Clearinghouse, Number of ICE
Detainers Drops by 19 Percent, July 25, 2013.
---------------------------------------------------------------------------
The ICE data covering the first 4 months of fiscal year
2013 indicate that the agency issued an average of 18,427
detainers each month in this recent period--down 19% from the
average monthly number of 22,832 during 2012.\87\ Corroborating
TRAC, ICE data uncovered by CIS indicates the agency issued
176,901 detainers during the first 10 months of fiscal year
2013--down 25% from the same period in fiscal year 2012 (about
236,087).\88\ CIS later indicated that internal ICE reports
project that the number of detainer issued will fall by an
additional 24% from fiscal year 2013 to 2014.\89\ This shows
that ICE is attempting to remove fewer and fewer of the
removable aliens that it encounters. Additionally, according to
agency sources, ICE officers are simply not issuing detainers
to aliens who they know will subsequently be released under
ICE's new enforcement ``priorities.''
---------------------------------------------------------------------------
\87\See id.
\88\See Deportation Numbers Unwrapped at 8 (table 4).
\89\See ICE Enforcement Collapses Further in 2014 at 3.
---------------------------------------------------------------------------
Additionally, the data uncovered by CIS indicates that the
number of charging documents issued by ICE to removable aliens
declined from 208,728 in the first 10 months of fiscal year
2012 to 162,610 in the same time period in 2013--a drop of
22%.\90\ In this period in 2013, ICE issued charging documents
to only 27% of the removable aliens it encountered--down from
35% in the same period in 2012.\91\ CIS later indicated that
internal ICE reports project that the number of charging
documents issued will decline by 25% from fiscal year 2013 to
2014.\92\
---------------------------------------------------------------------------
\90\See id.
\91\See id. at 8.
\92\See ICE Enforcement Collapses Further in 2014 at 3.
---------------------------------------------------------------------------
F. Conclusion
President Obama has sought to rewrite immigration laws
passed by Congress by taking administrative action via policy
memoranda. And he plans to go much further. In the spring of
2014, he asked Secretary of Homeland Security Jeh Johnson to
perform an ``inventory'' of the Department of Homeland
Security's current immigration enforcement practices ``to see
how it can conduct enforcement more humanely within the
confines of the law.'' The Administration has since announced
administrative amnesty and work authorization for millions of
unlawful aliens in the U.S.
In our constitutional system, however, it is Congress that
has plenary constitutional authority to establish U.S.
immigration policy.\93\ Fundamental reform requires legislative
action. The President cannot simply change immigration laws on
his own, and the Administration's effort to do so, by
announcing that it will essentially seek deportation only for
unlawful aliens who have committed ``serious'' crimes in the
United States, violates the rule of law.
---------------------------------------------------------------------------
\93\See U.S. Const. art. I, sec. 8, cl. 4 (Congress shall have
power to ``establish an uniform Rule of Naturalization.''). The Supreme
Court has long found that this provision of the Constitution grants
Congress plenary power over immigration policy. As the Court found in
Galvan v. Press, 347 U.S. 522, 531 (1954), ``that the formulation of
policies [pertaining to the entry of aliens and their right to remain
here] is entrusted exclusively to Congress has become about as firmly
imbedded in the legislative and judicial tissues of our body politic as
any aspect of our government.'' And, as the Court found in Kleindienst
v. Mandel, 408 U.S. 753, 766 (1972) (quoting Boutilier v. INS, 387 U.S.
118, 123 (1967)), ``[t]he Court without exception has sustained
Congress' `plenary power to make rules for the admission of aliens and
to exclude those who possess those characteristics which Congress has
forbidden.'''
---------------------------------------------------------------------------
It is unlikely that any President could expel each and
every unlawful alien in the United States--perhaps more than 11
million individuals. Resources to identify, apprehend, process,
and promptly deport millions of unlawful aliens have been
lacking for years and, arguably, so has been the political will
to do so. But President Obama's current policy is fundamentally
different from the flawed immigration enforcement records of
previous presidents. The Administration has stated that
deportation efforts will be focused almost solely on aliens
with ``serious'' criminal records and enforcement action will
rarely be taken on other types of cases. Aliens who have
avoided apprehension at the border and not been convicted of a
serious enough offense since arriving to the United States will
no longer face any prospect of deportation, the most basic
means of immigration enforcement.
Far from simply prioritizing the use of limited resources,
the administration's policy effectively rewrites the law. It
means that the vast majority of illegal immigrants and ``low-
level'' criminal aliens need no longer fear any immigration law
enforcement. Limiting the possibility of deportation in this
manner eliminates entirely any deterrent effect the immigration
laws have, and also states plainly that those laws can be
ignored with impunity. The President has, in effect, suspended
operation of those laws with respect to a very large and
identifiable class of offenders. This clearly exceeds his
authority.
As the Committee has recently stated:
Although the President can, for example, legitimately
decide that, in the post-9/11 environment, most of the
Federal Bureau of Investigation's resources should be
dedicated to the investigation and prosecution of
terrorism cases, he cannot decree that no enforcement
assets whatsoever will be allocated to securities fraud
or counterfeiting cases. Because the Constitution gives
the Executive Branch the exclusive power to enforce
Federal laws, this would effectively decriminalize
securities fraud and counterfeiting, derogating from
the Federal statutes that prescribed such
activities.\94\
---------------------------------------------------------------------------
\94\See H.R. Rep. 113-377 at 8.
Removals are down so dramatically because the Obama
Administration is twisting the concept of ``prosecutorial
discretion'' beyond all recognition--all in an unprecedented
effort to create immigration enforcement-free zones. Removal is
discouraged, if not outright prohibited, for millions of
unlawful and criminal aliens not considered ``priorities.''
As George Washington University Law School Professor
Jonathan Turley has told the House Judiciary Committee, in so
abusing the concept of prosecutorial discretion:
President Obama [is] nullifying part of a law that he
simply disagree[s] with. . . . It is difficult to
discern any definition of the faithful execution of the
laws that would include the blanket suspension or
nullification of key provisions. . . . If a president
can claim sweeping discretion to suspend key Federal
laws, the entire legislative process becomes little
more than a pretense.\95\
---------------------------------------------------------------------------
\95\The President's Constitutional Duty to Faithfully Execute the
Laws: Hearing Before the House Comm. on the Judiciary, 113th Cong.
(2013).
The Identification of Immigrant Criminals
Enforcement and Removal Operations (ERO) within ICE
identifies and apprehends removable aliens, detains these
individuals when necessary and removes aliens ordered removed
from the U.S.
A. The Criminal Alien Program (CAP)
ICE's criminal alien program within ERO identifies,
processes and removes immigrant criminals serving their
criminal sentences in federal, State and local prisons and
jails throughout the U.S. The program was created to prevent
immigrant criminals from being released after serving their
sentences. The goal of the program is to secure a final removal
order prior to the termination of immigrant criminals'
sentences whenever possible.\96\ ERO officers and agents
assigned to the CAP program in federal, State and local prisons
and jails screen inmates and place detainers on immigrant
criminals to process them for removal before they are released
to the general public. After the screening process and
interviews, ERO initiates proceedings to remove the immigrant
criminals from the United States.\97\
---------------------------------------------------------------------------
\96\See ICE Website, http://www.ice.gov/criminal-alien-program.
\97\See id.
---------------------------------------------------------------------------
B. Secure Communities
Through the Secure Communities strategy, ICE leverages an
existing information sharing capability between DHS and the
Department of Justice (DOJ) to quickly and accurately identify
aliens who are arrested for a crime and booked into local law
enforcement custody. With this capability, the fingerprints of
everyone arrested and booked are checked against FBI criminal
history records and are also checked against DHS immigration
records. If fingerprints match DHS records, ICE determines if
immigration enforcement action is appropriate.\98\
---------------------------------------------------------------------------
\98\See ICE website, http://www.ice.gov/secure_communities.
---------------------------------------------------------------------------
Congress created Secure Communities in 2008 as a pilot
program to establish the capability to identify all immigrant
criminals or potential immigrant criminals at the time of
arrest. Since the program was activated, it has led to the
removal of more than 135,000 convicted criminals.\99\
Unfortunately, the Administration has since announced that it
is ending the Secure Communities program.
---------------------------------------------------------------------------
\99\ICE Website (accessed March 8, 2013).
---------------------------------------------------------------------------
Once an alien is brought to the attention of DHS by Secure
Communities, ICE may issue a ``detainer'' to a local jail or
correctional facility when it seeks to take custody of an
individual in that facility.\100\ Generally, an immigration
detainer is a request to a local law enforcement agency to
detain a named individual for up to 48 hours after that person
would otherwise be released (excluding Saturdays, Sundays, and
holidays), in order to provide ICE an opportunity to assume
custody of that individual. The 48-hour period begins to run
when the named individual is no longer subject to detention by
the local law enforcement agency--that is, after the individual
has posted bond or completed a jail or prison sentence.\101\
---------------------------------------------------------------------------
\100\See ICE website, available at http://www.ice.gov/
secure_communities/.
\101\See id.
---------------------------------------------------------------------------
If a detainer is placed pretrial against an individual and
they post bail, ICE must assume custody of him or her within 48
hours.\102\ If ICE fails to assume custody of the individual
during the 48-hour period, the individual may be released. The
local jail or correctional facility no longer has the authority
to detain an individual once the detainer has expired.
---------------------------------------------------------------------------
\102\See id.
---------------------------------------------------------------------------
Despite the ramping up of Secure Communities in 2013, the
data uncovered by the Center for Immigration Studies reveals
that the number of removals originating with Secure Communities
has fallen from 83,815 in fiscal year 2012 to a projected
69,189 in 2013--a decrease of 17%--and that the overall number
of alien convicted criminals arrested by ICE declined from
143,598 in the first 10 months of 2012 to 128,441 in the same
period in 2013.\103\
---------------------------------------------------------------------------
\103\See Deportation Numbers Unwrapped: Raw Statistics Reveal the
Real Story of ICE Enforcement in Decline at 10-11 (tables 6 and 7).
---------------------------------------------------------------------------
Secure Communities has sparked controversy amongst
immigrants' rights advocates. In 2011, advocates persuaded the
governors of Massachusetts, Illinois and New York, along with
municipal leaders in Los Angeles, San Francisco, and Boston, to
``opt out.'' Boston Mayor Thomas Menino declared that contrary
to its stated goal, Secure Communities ``is negatively
impacting public safety'' complaining that numerous immigrants
have been deported after committing only minor traffic
violations. Furthermore, he has claimed that the program is
hurting community policing efforts.\104\
---------------------------------------------------------------------------
\104\Julia Preston, Resistance Widens to Obama Initiative on
Criminal Immigrants, The New York Times, August 13, 2011.
---------------------------------------------------------------------------
In June 2011, in response to criticisms regarding the
enforcement actions taken under Secure Communities, the
administration established a Task Force on Secure Communities.
The task force was comprised of leaders from State and local
government, first responder agencies, the private sector, and
academia.\105\ The task force was specifically charged with
making recommendations on how ICE could improve the Secure
Communities program and address concerns about its impact on
community policing and unlawful aliens arrested or convicted of
``minor crimes.'' The task force membership was more heavily
made up of advocacy groups rather than law enforcement
officials and had no advocates for immigration law enforcement.
It issued a report making several recommendations. The ICE
union was originally a part of the task force but removed
itself after deciding that its views were being ignored. The
report, which was submitted to ICE for review, was not
unanimously agreed to by its members. Some refused to sign the
report because it failed to urge suspension or termination of
the program, while others objected because it recommended major
changes that would weaken the program's enforcement value.
---------------------------------------------------------------------------
\105\See Task Force on Secure Communities Findings and
Recommendations (2011), http://www.dhs.gov/xlibrary/assets/hsac-task-
force-on-secure-communities-findings-and-recommendations-report.pdf.
---------------------------------------------------------------------------
The task force report included many recommendations.
Specifically, it asked for ICE to clarify the goals and
objectives of the Secure Communities program, as well as the
parameters and functioning of the program, and accurately relay
this information to participating jurisdictions, future
participating jurisdictions, and the communities they serve.
The report also recommended improving the transparency of the
program and implementing systematic mechanisms to ensure that
Secure Communities adheres to its stated enforcement objective
of prioritizing those who pose a risk to public safety or
national security.\106\
---------------------------------------------------------------------------
\106\Id.
---------------------------------------------------------------------------
On April 27, 2011, ICE Director John Morton issued a
response to the task force recommendations. He commended the
task force for its work and indicated that ICE had already
begun to implement changes in response to the findings and
recommendations included in the report. ICE agreed with all of
the recommendation made by the task force save one. ICE
disagreed with the need to establishing a pilot initiative in a
selected jurisdiction, where an independent, multi-disciplinary
panel would review specific cases.\107\
---------------------------------------------------------------------------
\107\See ICE, DHS, ICE Response to the Task Force on Secure
Communities Findings and
Recommendations (April 27, 2011), http://www.ice.gov/doclib/secure-
communities/pdf/hsac-sc-taskforce-report.pdf.
---------------------------------------------------------------------------
Prior to the task force's issuance of recommendations, on
August 5, 2011, ICE Director John Morton announced that ICE had
decided to terminate all existing Memoranda of Agreement (MOA)
that it had entered into with the states regarding the
operation of Secure Communities. In his letter to Governors,
Director Morton stated that the MOAs had resulted in
``substantial confusion'' regarding whether a State was
required to enter into such an agreement in order for Secure
Communities to operate in that state. In his letter, Morton
revealed that ICE had determined that an MOA is not required to
activate or operate Secure Communities in any jurisdiction.
Once a State or local law enforcement agency voluntarily
submits fingerprint data to the Federal Government (normally to
the FBI for a criminal history record check), no agreement with
the state is legally necessary for one part of the Federal
Government to share it with another part.\108\
---------------------------------------------------------------------------
\108\See letter from John Morton, Director, ICE, DHS, to State
governors (August 5, 2011).
---------------------------------------------------------------------------
A number of local law enforcement agencies have refused to
recognize ICE detainers.\109\ Commissioners in Cook County,
Illinois, adopted a law that orders the sheriff to decline all
Federal requests to detain immigrants after they complete their
sentences or post bail unless there is a written agreement with
the Federal Government that all of Cook County's costs were to
be reimbursed.\110\ Other jurisdictions have taken similar
steps, but Cook County's ordinance was the first to forbid a
sheriff from holding suspected felons as well as those accused
of misdemeanors.\111\
---------------------------------------------------------------------------
\109\Federal courts have come to different conclusions as to
whether the current detainer regulation is a mandatory demand or simply
a request to keep an alien in custody. The Third Circuit Court of
Appeals has construed the detainer regulation as a request, arguing
that if a detainer was ``a command to detain an individual on behalf of
the Federal Government, [this] would violate the anti-commandeering
doctrine of the Tenth Amendment. Galarza v. Szalczyk, 745 F.3d 634, 644
(3rd Cir. 2014). However, the dissent noted that ``the United States
has not been heard on [this] seminal issue in this appeal, an issue
that goes to the heart of the enforcement of our nation's immigration
laws.'' Id. at 645-46 (dissenting opinion).
\110\See Don Babwin, Cook County Defies Government On Immigration
Detainers, Huffington Post, October 4, 2011, http://
www.huffingtonpost.com/2011/10/05/cook-county-defies-govern
_0_n_995869.html.
\111\Id.
---------------------------------------------------------------------------
Also in October 2011, it was announced that District of
Columbia police would not enforce ICE detainers or warrant
issued against aliens who has not committed another crime.\112\
In addition, for ``less-serious'' crimes, such as violating the
city's open alcohol container law, the District will no longer
collects fingerprints, inhibiting the Federal Government's
ability to determine immigration status.\113\
---------------------------------------------------------------------------
\112\See Tim Craig, D.C. Won't Cooperate with Federal Immigration
Enforcement, Washington Post, October 19, 2011.
\113\See id.
---------------------------------------------------------------------------
Last year, California Governor Jerry Brown signed the TRUST
Act into law. ``Under the so-called Trust Act, immigrants in
this country illegally would have to be charged with or
convicted of a serious offense to be eligible for a 48-hour
hold and transfer to U.S. immigration authorities for possible
deportation.''\114\
---------------------------------------------------------------------------
\114\See Patrick McGreevy, Signing TRUST Act is another illegal-
immigration milestone for Brown, Los Angeles Times, Oct. 5, 2013.
---------------------------------------------------------------------------
A Federal district court has ruled that if an ICE detainer
does not demonstrate probable cause to hold an alien, the
jurisdiction honoring the detainer, deemed by the court to be
merely a request, is liable for damages for an unreasonable
seizure under the Fourth Amendment.\115\ This was based on the
fact that the detainer stated only ``that an investigation `has
been initiated' to determine whether [the alien] was subject to
removal from the United States.''\116\ Detainers no longer
include such a statement. They now state that DHS has
``[d]etermined that there is reason to believe the individual
is an alien subject to removal from the United States.'' The
threat of lawsuits has convinced some jurisdictions to no
longer honor ICE detainers.\117\
---------------------------------------------------------------------------
\115\See Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-
ST, slip op. at 11 (D. Or., April 11, 2014).
\116\Id. See also Morales v. Chadbourne, 996 F.Supp.2d 19 (D. R.I.
2014).
\117\See, e.g., Lee Hermiston, The Immigrant Experience: Debate on
ICE Holds Continues, the Gazette, Sept. 21, 2014 (Twenty-five Iowa
county sheriffs will no longer honor detainers after the American Civil
Liberties Union sent them a letter saying ``complying with [detainers]
could set up the counties for additional lawsuits.'' Id.).
---------------------------------------------------------------------------
In June 2011, Dennis McCann of Chicago was killed in a hit-
and-run incident by an unlawful alien and habitual drunk driver
who was driving without a license.\118\ Mr. McCann was hit as
he was crossing the street but the driver of the vehicle
refused to stop. Instead, he sped up, dragging Mr. McCann's
body down the road. Saul Chavez, the driver, had been
previously convicted of an aggravated drunk driving offense and
had just finished a sentence of 2 years' probation. He also had
five prior drunk driving arrests.
---------------------------------------------------------------------------
\118\See The Scott Gardner Act, HR, 3808, Hearing Before the
Subcomm. on Immigration Policy and Enforcement of the House Judiciary
Committee 112th Cong. (testimony of Brian McCann).
---------------------------------------------------------------------------
Chavez was arrested at the scene of the crime and ICE
issued a detainer. However, Cook County, a sanctuary
jurisdiction, ignored the detainer because of the County's law
requiring the police to ignore detainers, barring ICE from
using County facilities for immigration enforcement, and
banning County personnel from responding to inquiries from ICE.
Chavez was released on bail before he could be tried for Dennis
McCann's death and was never tried.
Chavez had a prior criminal record, which rendered him
deportable even under current law. Under the SAFE Act, he would
have been detained after his first offense because section 309
the bill provides for mandatory detention of unlawful aliens
convicted of DUI.
At a House Committee on Homeland Security, Subcommittee on
Border and Maritime Security hearing on July 10, 2012, ICE
Director John Morton testified that:
With regard to Illinois, as you note, it is a little
more of a difficult situation there. Cook County, which
is the largest county and has one of the largest
detention systems in the country, has adopted an
ordinance that essentially prohibits all cooperation
with ICE, even with regard to very serious and violent
offenders. I have written a number of public letters to
the county. I am very much opposed to their approach. I
think it is the wrong way to approach public safety in
Cook County. I am quite confident that their approach
is ultimately going to lead to additional crimes in
Cook County that would have been prevented had we been
able to enforce the law as the law is presently
written.
Just to give you some sense of it, in very large
jurisdictions in the United States, the rate of
recidivism for criminal offenders can be as high as 50
percent or more. When ICE can come in and remove
offenders from a given community so that they can't re-
offend, well, guess what, we take that recidivism rate
to zero. So, for example, if you have 100 criminal
offenders and we are able to root them, that is 50
crimes that will not happen over the next 3 years as a
result of our enforcement efforts. That is ultimately
the power of Secure Communities. It is a direct way to
support public safety in a very thoughtful manner.
What are we trying to do to resolve the situation in
Illinois? We have been working with the county to see
if there isn't some solution. I won't sugarcoat it. I
don't think that that approach is going to work in
full. We are going to need the help of others. We have
been exploring, as the Secretary has said, our options
under Federal law with the Department of Justice. We
will see where that goes. Then with regard to the
annual request by Cook County to be reimbursed for the
costs of detaining individuals who are here unlawfully
and have committed crimes, obviously I find that
position to be completely inconsistent with [them] not
allowing us access to and removing those very same
individuals, and we will be taking a very hard look at
their SCAAP request. That is the part of the law that
allows the Federal Government to reimburse for those
costs this year. My own position is going to be that if
we do not have access to those individuals, we will not
be able to verify their request for the year. . . .
. . . .
I would say that we are going to give it a very good
effort to try to resolve the situation directly with
Cook County and with Illinois and with the Department
of Justice. If we can't do that, I think we would be
happy to come back and explore further options with the
committee. From our perspective, Federal law is very
clear on the question of cooperation with Federal
authorities in immigration. We do think that the
ordinance is inconsistent with the terms of Federal
law. Ultimately, I think we share the same aims, I
would assume, with the authorities in Cook County, and
that is public safety for the people that live there.
It just does not make sense to release to the streets
serious criminal offenders who shouldn't be in the
country in the first place given the rate of
recidivism. . . .
. . . .
So we are in discussions with the Department of
Justice to see what we can do on many fronts to come to
a better resolution in Secure Communities in Cook
County, because I think we all agree that the present
approach is not a good one. I don't know if you heard
my answer before, but that both the question of can we
work with the Department of Justice to look at any
legal options we may have to get to a better place with
the county, but also to look at the county's annual
request for reimbursement under the Federal SCAAP
program for the individuals that they detain that are
there unlawfully. . . .\119\
---------------------------------------------------------------------------
\119\Building A Secure Community: How Can DHS Better Leverage State
and Local Partnerships? Hearing Before the Subcomm. on Border and
Maritime Security of the House Comm. on Homeland Security, 112th Cong.
14, 15, 22 (2012) (testimony of John Morton).
In an effort to appease the opponents of Secure
Communities, on December 21, 2012, ICE Director John Morton
issued a new detainer policy.\120\ Under the new policy, where
ICE has been notified that an unlawful alien has been
encountered by local law enforcement and there is a hit on the
Secure Communities database, detainers may only be issued when:
---------------------------------------------------------------------------
\120\See memo re: Civil Immigration Enforcement: Guidance on the
use of detainers in the Federal, State, Local, and Tribal Criminal
Justice Systems (December 21, 2012), https://www.ice.gov/doclib/
detention-reform/pdf/detainer-policy.pdf.
LThe individual has a prior felony conviction
---------------------------------------------------------------------------
or had been charged with a felony offense;
LThe individual has three or more prior
misdemeanors;
LThe individual has a prior misdemeanor
conviction or has been charged with a misdemeanor
offense if the misdemeanor conviction or pending charge
involves--
Lviolence, threats, or assault;
Lsexual abuse or exploitation;
Ldriving under the influence of alcohol or a
controlled substance;
Lunlawful flight from the scene of an
accident;
Lunlawful possession or use of a firearm or
other deadly weapon;
Lthe distribution or trafficking of a
controlled substance; or other significant threat to
public safety;
LThe individual has been convicted of illegal
entry pursuant to 8 U.S.C. Sec. 1325;
LThe individual has illegally re-entered the
country after a previous removal or return;
LThe individual has an outstanding order of
removal;
LThe individual has been found by an
immigration officer or an immigration judge to have
knowingly committed immigration fraud; or
LThe individual otherwise poses a significant
risk to national security, border security, or public
safety.\121\
---------------------------------------------------------------------------
\121\See id.
The memo states the goal of the guidance is to ensure that
the issuance of detainers is consistent with the
Administration's enforcement priorities.\122\
---------------------------------------------------------------------------
\122\See id.
---------------------------------------------------------------------------
C. Committee Subpoena Relating to Secure Communities
On August 22, 2011, Chairman Lamar Smith made a formal
request of DHS for information about removable immigrants and
immigrant criminals who were brought to the attention of ICE
via Secure Communities or other means but whom ICE did not take
custody of and declined to remove. It was necessary for the
Immigration Policy and Enforcement Subcommittee to issue a
subpoena on November 4, 2011, for the Committee to receive the
information.
In December 2011, DHS produced documents to the Committee
that were in compliance with the Immigration Subcommittee's
subpoena. The Congressional Research Service (CRS) then
crosschecked the subpoenaed data to determine if the unlawful
and criminal aliens released by ICE had gone on to commit more
crimes. Of note, CRS found the following facts in its research:
LThe data provided to the House Judiciary
Committee by DHS includes 276,412 records of charges
against unlawful and criminal aliens identified by
Secure Communities between October 27, 2008 and July
31, 2011. There were 159,286 unique individuals in the
database and 205,101 unique arrest incidents.
LOf those released, CRS found that about 17%
of unlawful and criminal aliens, or 26,412, were
rearrested on criminal charges within 3 years of
release. These recidivists accounted for a total of
42,827 arrests and 57,763 alleged violations.
LThe categories of crimes charged include
nearly 8,500 DUI (14.6%), over 6,000 drug violations
(10.9%), more than 4,000 major criminal offenses
(7.1%), which includes murder, assault, battery, rape,
and kidnapping, nearly 3,000 thefts (4.9%), and over
1,000 other violent crimes (2.1%), which includes
carjacking, child cruelty, child molestation, domestic
abuse, lynching, stalking, and torture.
LThe crimes committed by both unlawful and
legal aliens include 59 murders, 21 attempted murders,
and 542 sex crimes.
LOf those rearrested, nearly 30%, or 7,283,
were unlawful aliens. Since 46,734 unlawful aliens were
released, indicating a recidivism rate of 16%.
LThe crimes charged against unlawful aliens
included nearly 2,000 DUIs (11.9%), over 1,400 drug
violations (8.8%), and more than 1,000 major criminal
offenses and violent crimes (6.9%), including murder,
assault, battery, rape, kidnapping, child molestation,
domestic abuse, lynching, stalking, and torture.
LThe crimes committed by unlawful aliens
included 19 murders, 3 attempted murders, and 142 sex
crimes.
LIn researching one of the identified murder
cases, the Judiciary Committee found one case where an
unlawful alien was flagged by Secure Communities under
the Obama Administration's watch--for vehicle theft in
June 2010--and was arrested again for an attempt to
commit grand theft just 5 months later. After this
unlawful alien was released by DHS, he and another
unlawful alien were arrested on suspicion of killing a
man who was chasing individuals who had robbed his 68-
year-old grandfather.
D. Release of Detainees
DHS under the Obama Administration has opposed the
inclusion of statutory language mandating ICE to maintain a
level of not less than 34,000 detention beds. DHS claimed that
this language obstructs ICE' s ability to satisfy its stated
enforcement priorities and accomplish detention reform.\123\
---------------------------------------------------------------------------
\123\See H.R. Rep. No. 112-091 (2011), H.R. Rep. No. 112-492
(2012).
---------------------------------------------------------------------------
According to the Administration, mandating a pre-set number
of detention beds is contrary to the government's interest in
reforming the detention system and targeting its use for only
those individuals who it deems to require detention.\124\ The
Administration says that in an environment of fiscal restraint,
Congress should not be telling a Federal agency that it is not
permitted to spend less than a certain amount if the same
objective can be achieved at a savings to the taxpayer.\125\
Current DHS Secretary Jeh Johnson shares these views, stating
that a level of 34,000 beds is too high and ``not the best and
highest use of our resources, given our current estimates of
who we need to detain, who we regard as public safety, national
security, border security threats.''\126\
---------------------------------------------------------------------------
\124\See id.
\125\See id.
\126\Department of Homeland Security Budget for Fiscal Year 2015:
Hearing Before the Subcomm. on Homeland Security of the House
Appropriations Comm., 113th Cong (2014).
---------------------------------------------------------------------------
However, the Center for Immigration Studies has found,
based on ICE data, that there are now 882,943 non-detained
aliens with final orders of removal who have not been
removed.\127\ ``The vast majority of [these aliens] have simply
absconded. . . .''\128\ 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.\129\
---------------------------------------------------------------------------
\127\See ICE Enforcement Collapses Further in 2014 at 3.
\128\See Deportation Numbers Unwrapped at 12-13 (table 8).
\129\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).
---------------------------------------------------------------------------
On March 14, 2013, ICE Director Morton testified before the
House Appropriations Committee, Homeland Security
Subcommittee.\130\ Director Morton stated that:
---------------------------------------------------------------------------
\130\Hearing on Immigration Enforcement.
As the Committee knows, we are coming to the end of a
Continuing Resolution (CR). This CR funded ICE to
maintain a yearly average daily population of
approximately 34,000 individuals. In early February,
ICE was maintaining an average daily population in
excess of 35,000 individuals, including many who did
not require detention by law.
These detention levels exceeded Congressional
appropriations, and with the strong possibility of
sequestration, ICE officials managed the detention
population in order to ensure that ICE could operate
within the appropriations provided by Congress.
Notably, these budget constraints are now further
compounded by the reductions required by sequestration,
which represents a nearly $300 million cut to our
budget that we must absorb over the remaining 7 months
of the fiscal year.
In reducing detention levels, we took careful steps
to ensure that national security and public safety were
not compromised by the releases. All release decisions
were made by career law enforcement officials following
a careful examination of the individual's criminal and
immigration history ensuring that the focus remains on
detaining serious criminal offenders and others who
pose a threat to the national security or public
safety. Every individual released was placed on an
alternative form of ICE's supervision, and all released
individuals remain in removal proceedings.
During oral testimony, Director Morton disclosed that the
agency had released 2,228 detainees from detention. Of these,
629 were convicted criminals and 1,599 had been charged with
crimes.
Director Morton testified before House Judiciary Committee
on March 19, 2013.\131\ The hearing reflected the concerns the
Committee had with the release of criminal aliens by DHS, and
the impact of the release on public safety. Some of the
information provided to the Committee during testimony was
inconsistent with statements made by the Director during the
House Appropriations Committee's Subcommittee on Homeland
Security's hearing just a few days earlier. At that hearing,
Director Morton testified that out of 2,228 released unlawful
and criminal alien detainees, ten Level 1 offenders (the most
serious criminals as defined in a March 2, 2011, memo on ICE
priorities) had been released. However, during the Committee's
hearing less than 1 week later on March 19, Director Morton
testified, under oath, that only eight Level 1 offenders had
been released after a ``review'' of the cases. Director Morton
also stated some of these offenders had been ``reclassified.''
Additionally, a transmittal from ICE to the Judiciary Committee
on March 14, 2013, entitled ``Detention Releases Solely for
Budget Reasons by Field Office'' states that ten level 1
offenders were released.
---------------------------------------------------------------------------
\131\The Release of Criminal Detainees by U.S. Immigrations and
Customs Enforcement: Policy or Politics?
---------------------------------------------------------------------------
On May 6, 2013, Senators Levin and McCain were provided
with information contrary to what information provided the
Judiciary Committee and the Appropriations Committee.\132\ ICE
informed the Senators that there were 32 level 1 offenders, not
ten or eight. The Committee was also told that there were 629
criminal aliens released, but the Senators were informed that
there were 622 criminal aliens released. Additionally, ICE
indicated that there were 159 Level 2 detainees. In the letter
ICE provided to the Senators, it indicated that there were 80
Level 2 offenders. Furthermore, ICE informed the Senators it
had to re-apprehend 58 released detainees. At the time of the
Judiciary Committee hearing, there were barely a handful of re-
apprehensions.
---------------------------------------------------------------------------
\132\See Senators McCain And Levin: New Information Regarding Ice
Detainee Release (May 16, 2013), available at http://
www.mccain.senate.gov/public/index.cfm?FuseAction=PressOffice.
PressReleases&ContentRecord_id=ade7dd17-dd54-d5e7-aa20-270a8c91410d.
---------------------------------------------------------------------------
The Senators were informed that among the 32 detainees,
ICE's Phoenix District Office released a detainee who had a
felony second degree robbery prior conviction and countless
convictions for prostitution and solicitation for lewd conduct.
The Phoenix office releases also included an individual who had
been convicted of DUI and harassment and having caused criminal
damage to property, as well as a detainee who had prior
convictions for carrying a loaded firearm, DUI with a
controlled substance, felony possession of drugs, second degree
burglary, vandalism, and trespassing. The San Francisco Field
Office released an alien with a prior felony conviction for
manufacturing fake identification documents as well as an alien
with two DUIs and two stalking convictions. The Houston office
deemed a person convicted of felony possession of marijuana of
up to 2,000 pounds acceptable for release.
Sanctuary Cities
On December 19, 2002, a 42-year-old mother of two was
abducted and forced by her assailants into a hideout near some
railroad tracks in Queens, New York. She was brutally assaulted
before being rescued by a New York Police Department unit. The
NYPD arrested five immigrants in connection with that assault.
According to records that the Judiciary Committee received from
the INS, four of those immigrants entered the United States
illegally. Three of them had extensive arrest histories in New
York City. The fifth immigrant, a lawful permanent resident,
also had a criminal history prior to the December 2002 attack.
Despite the criminal histories of the four immigrants, however,
it did not appear from the records that the Committee received
that the NYPD told the INS about these immigrants until after
the December attack.
These crimes prompted extensive public discussion of
whether New York City police were barred from disclosing
immigration information to the INS, a policy that may have
prevented the removal of these aliens prior to the December 19
attack. Some suggested that the only reason that the three
illegal immigrants were in the United States, despite their
extensive arrest histories, was because the NYPD officers who
arrested these aliens previously were barred by a ''sanctuary''
policy from contacting the INS. That policy prevented NYPD
officers from contacting the INS when they arrested an unlawful
alien. New York City's Executive Order 124 barred line officers
from communicating directly with the INS about criminal aliens.
That executive order was issued by Mayor Ed Koch in 1989.
In June 2008, Tony Bologna and his two sons were murdered
by an unlawful alien who had previously committed felony
attempted robbery and assault, but who was not deported because
of San Francisco's sanctuary policy.
Sanctuary policies are in direct violation of Federal law.
Section 642 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) provides that no federal,
State, or local government entity or official may prohibit, or
in any way restrict, any government entity or official from
sending to, or receiving from, DHS information regarding the
citizenship or immigration status, lawful or unlawful, of any
individual.
By some estimates, there are over 100 U.S. states and
localities that have sanctuary policies in place. In some
cases, victims of crimes committed by unlawful aliens have
filed claims against the cities. For instance, in 2008, Tony
Bologna's widow filed a claim against San Francisco, asserting
that the city's sanctuary policy was a ``substantial factor''
in the death of her husband and two sons since the policy kept
the unlawful alien from being deported. She later filed a
wrongful death lawsuit against the city (which was later
dismissed).\133\ Margaret Rains and Haley Tepe sued the city
Denver after they were injured by an unlawful alien who drove
his car into an ice cream shop in September 2008 (and who had a
long history of arrests but was never reported, or turned over,
to ICE).\134\
---------------------------------------------------------------------------
\133\See Jaxon Van Derbeken, Family Blames Sanctuary Policy in 3
Slayings, San Francisco Chronicle, Aug. 23, 2008.
\134\See Valerie Richardson, Lawsuits Challenge, Sanctuary
Policies, The Washington Times, Feb. 25, 2009.
---------------------------------------------------------------------------
In order to deal with the problems created by sanctuary
cities, the SAFE Act requires information sharing between
States and localities and the Federal Government regarding
removable aliens, provides grants to local law enforcement
agencies that assist in immigration law enforcement, requires
that State and local law enforcement agencies honor Federal
detainers for removable aliens so that Federal agents can
assume custody of the aliens and withholds State Criminal Alien
Assistance Program grants, law enforcement grants, and DHS
grants from States and localities that violate Federal
immigration law by being sanctuary jurisdictions.\135\
---------------------------------------------------------------------------
\135\See HR. 2278, secs. 105, 106, 113, 114, and 115.
---------------------------------------------------------------------------
Illegal Immigrant Drunk Drivers
There have been many other tragic incidents involving drunk
drivers in addition to the death of Dennis McCann. On November
24, 2010, ICE issued a report on Carlos Martinelly
Montano.\136\ This report provided the results of the inquiry
into the case of Montano, an unlawful alien, who was charged in
Prince William County, Virginia, with involuntary manslaughter
after the death of a nun in a drunk driving accident.
---------------------------------------------------------------------------
\136\See ICE, DHS, Carlos Martnelly Montano Inquiry (2010).
---------------------------------------------------------------------------
According to the report, Montano was first arrested on
December 7, 2007, by Prince William police and convicted of
drunk driving. He was sentenced to serve 30 days. A judge
suspended his sentence. Law enforcement officials did not check
his immigration status at that time. Thereafter, Montano was
charged in October 4, 2008, with another DUI in Prince William
County. This time local authorities determined that Montano was
in the country illegally and ICE lodged an immigration detainer
against him and placed him in removal proceedings. ICE later
decided that Montano was a candidate for alternatives to
detention. He was released and his whereabouts were monitored
with a GPS system. In March 2009, while he was in deportation
proceedings, Montano was charged in Fairfax County with
misdemeanor failure to appear related to driving without a
license. Local officials dismissed those charges. On April
2010, Montano was cited in Manassas Park with misdemeanor
reckless driving. There is no record that Manassas Park police
contacted ICE or booked and fingerprinted Montano, the report
showed.
The report found that Montano's youth, family ties, letters
from family and others and the fact that he had completed an
alcohol rehabilitation program contributed to his release by
ICE. The report claims that Montano would have been detained
under subsequent ICE guidelines because he was a repeat
offender and he demonstrated himself to be a danger to public
safety.
On June 16, 2013, Father's Day, an illegal alien driving
drunk crashed into a car driven by Jorge DeLeon with his two
small children.\137\ Jorge was killed instantly, while his two
children were seriously injured. His 4-year-old daughter
subsequently died of her injuries.\138\
---------------------------------------------------------------------------
\137\See Illegal alien charged with killing man and his 4-year-old
daughter in NJ, Examiner, http://www.examiner.com/article/illegal-
alien-charged-with-killing-man-and-his-4-year-old-daughter-nj (June 22,
2013).
\138\Id.
---------------------------------------------------------------------------
The driver of the other car, Manuel Vazquez, was in the
country illegally and has never possessed a U.S. driver's
license. He was arrested for drunk driving in Texas just a few
weeks earlier. When he hit Jorge and his children, Vasquez was
driving on the wrong side of the road and collided with them
head on.
On May 19, 2013, police in Houston arrested Andres Munos-
Munos, age 23, after he ran a red light, crashing into a pickup
truck driven by Harris County Deputy Sheriff Dwayne Polk.\139\
Deputy Polk died at the scene. Polk had been with the Sheriff's
office for 16 years, reaching the rank of sergeant.
---------------------------------------------------------------------------
\139\See Houston-area sheriff's deputy killed in crash with DWI
suspect, KENS Channel 5 San Antonio, May 20, 2013.
---------------------------------------------------------------------------
The unlawful alien charged with his death has a serious
criminal record. He was arrested on June 10, 2012, for driving
while intoxicated. He also was charged with the unlawful
carrying of a weapon.
On the same day that Deputy Polk was killed, Officer Daryl
Raetz was struck at sobriety check point in Phoenix, AZ. The
driver of the vehicle fled the scene. Later, police officers
stopped an SUV matching the description of the vehicle that
struck the officer. Phoenix filed manslaughter charges against
Jesus Cabrera Molina, who was already in custody on drug and
immigration violations.\140\
---------------------------------------------------------------------------
\140\See Phoenix Cop Daryl Raetz's Alleged Killer Admits Being
Drunk, High on Cocaine on Night of Crash, the Phoenix New Times (June
4, 2013).
---------------------------------------------------------------------------
Molina, who was 24, has admitted he was drunk and high on
cocaine the night his SUV struck and killed Officer Daryl
Raetz, but he denies he was behind the wheel. When he was
arrested, Cabrera Molina had a small bag of cocaine in his
pocket. Federal immigration officials also issued a detainer to
take custody of Cabrera Molina because he was in the country
illegally. He absconded after being released when he posted a
$5,000 bond.
In IIRIRA, Congress mandated that the Federal Government
detain aliens who are deportable on the basis of having
committed aggravated felonies.\141\ The INA provides that a
crime of violence for which the term of imprisonment is at
least 1 year is considered an aggravated felony.\142\ However,
the Supreme Court ruled in 2004 that a criminal conviction for
driving under the influence of alcohol absent a malicious
mental state is not a crime of violence for immigration
purposes.\143\ Thus, current law does not require ICE to detain
unlawful aliens who have committed drunk driving offenses.
However, there is nothing preventing ICE from detaining such
unlawful aliens in its discretionary authority.
---------------------------------------------------------------------------
\141\See section 236(c)(1)(B) of the INA.
\142\See section 101(a)(43)(F) of the INA.
\143\See Leocal v. Ashcroft, 543 U.S. 1 (2004).
---------------------------------------------------------------------------
The National Highway Traffic Safety Administration has
found that on average someone dies in the U.S. in a motor
vehicle crash involving an alcohol-impaired driver every 45
minutes--amounting to 11,773 deaths in 2008.\144\ The annual
cost to the nation of alcohol-related crashes totals more than
$51 billion.\145\ As the BIA realized, there is
``incontrovertible evidence that drunk driving is an inherently
reckless act, which exacts a high societal toll in the forms of
death, injury, and property damage.''\146\ In addition, drunk
driving involves a high degree of recidivism.
---------------------------------------------------------------------------
\144\See National Highway Traffic Safety Administration, Traffic
Safety Facts 2008 Data: Alcohol-Impaired Driving 1.
\145\See Centers for Disease Control and Prevention Impaired
Driving Fact Sheet.
\146\In re Carlos Istalin Magallanes-Garcia, 22 I. & N. Dec. 1 (BIA
1998).
---------------------------------------------------------------------------
Chairman Smith wrote a letter to Secretary Napolitano
urging that ``ICE launch removal proceedings against all
illegal immigrants it comes in contact with who have had prior
convictions for drunk driving--and that ICE detain all such
aliens during their removal proceedings.''\147\ DHS did not
honor his request.\148\
---------------------------------------------------------------------------
\147\Letter from Lamar Smith to Janet Napolitano, Secretary, DHS
(August 9, 2010).
\148\See letter from John Morton, Director, ICE, DHS, to Lamar
Smith (September 10, 2010).
---------------------------------------------------------------------------
In order to deal with the problem of immigrant drunk
drivers and ensure deportation of the those who violate our
immigration laws, H.R. 2278 makes two or more convictions of
driving drunk an aggravated felony and requires the detention
of unlawful aliens who have been convicted for driving while
intoxicated.\149\
---------------------------------------------------------------------------
\149\See H.R. 2278, sec. 309.
---------------------------------------------------------------------------
Immigrant Gangs
The threat posed by immigrant criminal gangs is becoming
more and more severe. ICE has stated that ``[i]n the last
decade, the United States has experienced a dramatic increase
in the number and size of transnational street gangs''\150\ and
that these gangs ``have grown to become a serious threat in
American communities across the nation--not only in cities, but
increasingly in suburban and even rural areas.''\151\
---------------------------------------------------------------------------
\150\MS-13 and Counting: Gang Activity in Northern Virginia:
Hearing Before the Comm. on Government Reform, 109th Cong. (2006)
(statement of James Spero, Acting Assistant Special Agent in Charge,
Washington, D.C., ICE).
\151\ICE, DHS, ICE Fiscal Year 2008 Annual Report 18 (2009).
---------------------------------------------------------------------------
As ICE has found, ``[e]ntire neighborhoods and sometimes
whole communities are held hostage by and subjected to the
violence of street gangs.''\152\ An example is Mara
Salvatrucha-13, which was formed by Salvadorans who entered the
U.S. during the civil war in El Salvador in the 1980's. ICE
believes that MS-13 is ``one of the most violent and rapidly
growing transnational street gangs.''\153\ The National Gang
Intelligence Center estimates that there are about 8-10,000
members of MS-13 in the United States (and 30-50,000
worldwide).\154\ The Center for Immigration Studies reports
that members have been convicted of such crimes as ``murder,
murder for hire, assault, extortion, kidnapping, theft, retail
drug dealing, prostitution, rape, home invasion, robbery,
burglary, and numerous other crimes.''\155\
---------------------------------------------------------------------------
\152\MS-13 and Counting (statement of James Spero).
\153\DHS, Office of Investigations, Operation Community Shield Fact
Sheet (2008).
\154\See National Gang Intelligence Center, National Gang Threat
Assessment 2009 26 (2009).
\155\Jon Feere & Jessica Vaughan, Taking Back the Streets: ICE and
Local Law Enforcement Target Immigrant Gangs, 2008 Center for
Immigration Studies.
---------------------------------------------------------------------------
ICE has found that ``membership of these violent
transnational gangs [is] comprised largely of foreign-born
nationals.''\156\ The most effective mechanism to protect
Americans from these gangs is to deport their members. ICE can
currently deport alien gang members who are unlawful aliens
without having to wait for them to be convicted of crimes.
However, it cannot do so for legally present gang members. In
addition, those unlawful aliens who have received asylum or
temporary protected status cannot be deported until conviction.
Unfortunately, many members of transnational gangs in the U.S.
have received temporary protected status. ICE revealed in an
Immigration Subcommittee hearing in 2005 that of 5,000 gang
members in an ICE database, 291 El Salvadoran nationals, 43
Hondurans, and one Nicaraguan had been granted TPS.\157\ This
is problematic for two reasons. First, prosecution of alien
gang members is difficult because witnesses and victims of gang
crime have proven reluctant to testify for fear of retaliation.
Thus, many gang members have never been convicted of the crimes
they have committed. Second, this presupposes waiting until an
alien gang member has committed a deportable crime. Why not
deport them before they have had a chance to victimize innocent
Americans?
---------------------------------------------------------------------------
\156\ICE, DHS, ICE Fiscal Year 2007 Annual Report 18 (2008).
\157\See 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. 29 (2005)
(statement of Michael Garcia, Assistant Secretary for Immigration and
Customs Enforcement, DHS).
---------------------------------------------------------------------------
In order to deal with this problem, the SAFE Act contains
provisions designed to make alien criminal gang members
deportable and inadmissible.\158\
---------------------------------------------------------------------------
\158\See H.R. 2278, sec. 311.
---------------------------------------------------------------------------
The Enforcement of Immigration Laws by States and Localities
About 5,000 ICE agents have the duty of enforcing our
nation's immigration laws. These agents have to deal with at
least 11 million unlawful aliens in the United States and many
thousands of aliens, both legal and illegal, who have committed
deportable crimes. This number is clearly insufficient if we
ever hope to enforce our immigration laws. It pales in
comparison to the New York City police department, which has
over 34,000 officers.
There are over 730,000 State and local law enforcement
officers in the United States. If State and local law
enforcement agencies could assist ICE in enforcing immigration
laws--on a totally voluntary basis--this would represent a
significant force multiplier for ICE.
Consider the case of the 9/11 hijackers. Four of them were
pulled over for traffic infractions during the months before
September 2001. Unfortunately, police officers did not check
their immigration status. They all had violated Federal
immigration laws and could have been detained by State or local
officers.\159\ Tragedy on a massive scale could have been
averted if local law enforcement in these instances had
cooperated in the enforcement of Federal immigration laws.
---------------------------------------------------------------------------
\159\See Kris Kobach, The Quintessential Force Multiplier: The
Inherent Authority of Local Police to Make Immigration Arrests, 69
Albany Law Review at 183 (2006).
---------------------------------------------------------------------------
If we can trust local law enforcement to enforce laws
against homicide, drugs, and robbery, we can trust them to
enforce immigration laws.
A. The Section 287(g) Program
Section 287(g) of the INA provides express statutory
authority for DHS to enter into agreements with States and
localities under which State and local law enforcement officers
who have been trained by DHS can assist in the investigation,
apprehension and detention of removable aliens.
At one point ICE had 68 working agreements. It trained more
than 1,474 State and local officers to help enforce immigration
law, and more than 309,283 unlawful aliens have been identified
for possible deportation since 2006.\160\
---------------------------------------------------------------------------
\160\Information provided by ICE.
---------------------------------------------------------------------------
The statute grants significant discretion to ICE in setting
up and managing the program. ICE had organized the program in
two primary formats, a jail model and a task force model:
LJail Model: This option allows for
correctional officers to screen those arrested or
convicted of crimes by accessing Federal databases to
determine a person's immigration status. When a
removable alien is detected, officers have the
authority to issue an immigration detainer and notify
ICE to arrange transportation to a Federal detention
facility prior to deportation.
LTask Force Model: This option allows law
enforcement officers participating in criminal task
forces, such as drug or gang task forces, to screen
arrested individuals using Federal databases to assess
their immigration status. Most jurisdictions applying
this model allow 287(g)-designated officers to check
immigration status when they encounter someone through
their normal duties and they have reasonable suspicion
that person may be a removable alien.
ICE officials have recognized the value of the 287(g)
program with statements such as, ``each law enforcement agency
that signs on to the 287(g) program represents a force
multiplier to help combat crime in local communities,''\161\
Until recently, ICE touted the success of 287(g) on their
website with figures showing the number of unlawful aliens who
have been identified for possible removal through the program,
and it even had a web page entitled ``287(g) Success
Stories.''\162\
---------------------------------------------------------------------------
\161\ICE News Release, 26 Law Enforcement Officers Trained by ICE
to Enforce Immigration Law (2012), http://www.ice.gov/news/releases/
1007/100723charleston.htm.
\162\ICE Website, 287(g) Success Stories, http://www.ice.gov/287g/
success-stories.htm.
---------------------------------------------------------------------------
Also, according to ICE, ``since January 2006, the 287(g)
program is credited with identifying more than 185,000
individuals . . . who are suspected of being in the country
illegally.''\163\ A Human Events article by Jessica Vaughan and
Jim Edwards stated, ``[a]ccording to ICE documents we obtained
through the Freedom of Information Act . . . 287(g) arrests
represented about one-fifth of all ICE criminal alien arrests
in 2008. All of the removable aliens were identified by trained
officers in the regular course of their duties in corrections,
highway patrol, or criminal investigations. They include
murderers, rapists, gangsters, drunk drivers, and even a few
suspected terrorists.''\164\
---------------------------------------------------------------------------
\163\Id.
\164\Enforcement Pays, Human Events, March 19, 2009.
---------------------------------------------------------------------------
Some argue that this program should only be used to detain
and remove criminals who commit ``serious'' crimes. However the
statute says nothing to this effect, and it is beneficial to
remove immigrant criminals who commit ``minor'' offenses before
they can commit more serious crimes.
Opponents of 287(g) generally also argue that the program
promotes ethnic profiling and abuses of power. However,
Government Accountability Office official Rich Stana stated
during a House Homeland Security Committee hearing on March 4,
2009, that, ``[w]e didn't see any complaints in the files of
any jurisdiction or in the OPR about any jurisdiction. . . .
And I don't quite know how to reconcile that with media reports
about problems with these programs in certain
jurisdictions.''\165\
---------------------------------------------------------------------------
\165\Examining 287(g): The Role of State and Local Law Enforcement
in Immigration Law: Hearing Before the House Comm. on Homeland
Security, 111th Cong. (2009).
---------------------------------------------------------------------------
The Obama Administration decided to ``reform'' the 287(g)
program in 2009, responding to criticism of the program from
groups opposed to state and local law enforcement officials
helping to enforce Federal immigration laws. The administration
has virtually wiped out the task force model of 287(g).
According to ICE, the reforms included:
LImplementing comprehensive guidelines for ICE
field offices that supervise 287(g) partnerships,
prioritizing the arrest and detention of immigrant
criminals;
LRequiring 287(g) officers to maintain
comprehensive alien arrest, detention, and removal data
in order to ensure operations focused on immigrant
criminals;
LStrengthening the 287(g) basic training
course and creating a refresher training course,
providing detailed instruction on the terms of the new
MOA and the responsibilities of a 287(g) officer;
LDeploying additional supervisors to the field
to ensure greater oversight over 287(g) operations; and
LEstablishing an Internal Advisory Committee,
which includes DOJ's Office of Civil Rights and Civil
Liberties, to review and assess ICE field office
recommendations about pending 287(g) applications.
And according to ICE, the revised 287(g) MOA:
LRequires local law enforcement agencies to
pursue all criminal charges that originally caused the
offender to be taken into custody;
LRequires all 287(g) officer candidates be
confirmed as eligible and qualified before gaining
access to ICE databases;
LRequires participating agencies to inform ICE
of all complaints regarding their 287(g) officers, as
well as the outcome of those complaints; and
LProvides flexibility to address issues of
local concern, such as state and local laws or other
specific needs of a particular agency.\166\
---------------------------------------------------------------------------
\166\ICE, DHS, Updated Facts on ICE's 287(g) Program, http://
www.ice.gov/pi/news/factsheets/section287_g-reform.htm.
---------------------------------------------------------------------------
According to the Center for Immigration Studies:
In general, the new MOA tries to constrict local
officers' use of the immigration enforcement authority
for investigative purposes to situations that the ICE
supervisors can monitor more easily, a move clearly
intended to discourage use of the authority for
``random street stops'' (which were non-existent
anyway). It asks jurisdictions to align their use of
287(g) authority with ICE's priorities for the removal
of illegal aliens, which give priority to the most
serious offenders. It spells out more specifically the
level of ICE supervision expected for each local
program. It requires local agencies to pick up some of
the technology and equipment costs for database access,
which could turn out to be a hardship for some
agencies, especially the smaller ones ICE would like to
discourage. It requires local agencies to track the
nature of the offenses committed by aliens arrested,
but forbids them from disclosing this information to
the public unless ICE approves. The release of all
information related to 287(g) programs will be
controlled by ICE. This last provision has been
particularly controversial, as some states have strict
open records laws, and many participating agencies have
invited public scrutiny of their programs to help
defuse criticism from opponents.\167\
---------------------------------------------------------------------------
\167\Jessica Vaughn and Jim Edwards, The 287(g) Program: Protecting
Home Towns and Homeland, 2009 Center for Immigration Studies.
There have been no MOAs signed since August 2010, and that
was the only one signed in 2010. There were only five signed in
2009.
Currently, ICE only has 287(g) agreements with 36 law
enforcement agencies in 19 states.\168\ As discussed below,
despite that success and the accolades from ICE officials, on
June 25, 2012, ICE suspended the seven 287(g) agreements it had
with Arizona law enforcement agencies.\169\ ICE stated that it
did so ``in light of the Supreme Court's decision to uphold''
the provision of Arizona law that required State and local law
enforcement officers to make a reasonable attempt to determine
the immigration status of an individual encountered in certain
circumstances. ICE went on to say, ``ICE has determined that
287(g) Task Force agreements are not useful in States that have
adopted immigration enforcement laws like SB1070.''\170\
---------------------------------------------------------------------------
\168\Id.
\169\See ICE Congressional Relations Notice, ICE 287(g) Task Force
Agreements With Arizona State and Local Law Enforcement Agencies, Jun.,
25, 2012.
\170\Id.
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B. Arizona Immigration Enforcement Law
Background
On April 23, 2010, Arizona Governor Jan Brewer signed into
law SB1070, the ``Support Our Law Enforcement and Safe
Neighborhoods Act.'' On July 6, 2010, the Obama Administration
filed a complaint in the U.S. District Court for the District
of Arizona, challenging SB1070's constitutionality
(specifically, that SB1070 violated the Supremacy Clause on the
grounds that it was preempted by the INA and that it violated
the Commerce Clause, and requesting that the court enjoin the
State from enforcing the law until the court makes a final
determination as to constitutionality).\171\ On July 28, 2011,
the district court enjoined SB1070's provisions:\172\
---------------------------------------------------------------------------
\171\See U.S. v. State of Arizona, 703 F. Supp. 2d 980, 986-987 (D.
Ariz. 2010).
\172\Id.
Lrequiring that a State or local law
enforcement officer make a reasonable attempt to
determine the immigration status of a person stopped,
detained or arrested if there is a reasonable suspicion
that the person is unlawfully present in the United
---------------------------------------------------------------------------
States;
Lrequiring verification of the immigration
status of any person arrested prior to releasing that
person;
Lcreating a crime for the failure to apply for
or carry alien registration papers;
Lcreating a crime for an unauthorized alien to
solicit, apply for, or perform work; and
Lauthorizing the warrantless arrest of a
person where there is probable cause to believe the
person has committed an offense that makes the person
removable from the United States.
Arizona appealed to the Ninth Circuit, arguing that the
enjoined sections were not preempted by Federal law. On April
11, 2011, the Ninth Circuit affirmed the District Court's
ruling.\173\
---------------------------------------------------------------------------
\173\See U.S. v. State of Arizona, 641 F.3d 339 (9th Cir. 2011).
---------------------------------------------------------------------------
The Supreme Court Decision
In August 2011, the State of Arizona filed a writ of
certiorari with the U.S. Supreme Court. The Supreme Court
granted certiorari and issued its decision on June 25,
2012.\174\ In its decision, the Supreme Court described the
three ways in which Federal law may preempt state and local law
pursuant to the Supremacy Clause of the U.S. Constitution.
First, ``[t]here is no doubt that Congress may withdraw
specified powers from the States by enacting a statute
containing an express preemption provision.''\175\ In addition,
``the States are precluded from regulating conduct in a field
that Congress, acting within its proper authority, has
determined must be regulated by its exclusive
governance.''\176\ This is called ``field preemption.'' Lastly,
``state laws are preempted when they conflict with Federal law.
This includes cases where `compliance with both Federal and
state regulations is a physical impossibility,' . . . and those
instances where the challenged state law `stands as an obstacle
to the accomplishment and execution of the full purposes and
objectives of Congress[.]'''\177\ This is called ``conflict
preemption.''
---------------------------------------------------------------------------
\174\See Arizona v. United States, 132 S.Ct. at 2492.
\175\Id. at 2500-01.
\176\Id. at 2501.
\177\Id. (internal citations omitted).
---------------------------------------------------------------------------
The Supreme Court struck down three provisions of the
Arizona law. The first was a state misdemeanor that forbid
``willful failure to complete or carry an alien registration
document . . . in violation of 8 United States Code section
1304(e) or 1306(a).''\178\ As the Court found ``[i]n effect,
[this provision] add[ed] a state-law penalty for conduct
proscribed by Federal law.''\179\ The Court ruled that:
---------------------------------------------------------------------------
\178\Ariz. Rev. Stat. Ann. Sec. 11-150(A) (West Supp. 2011).
\179\Arizona v. United States, 132 S.Ct. at 2501.
Where Congress occupies an entire field, as it has in
the field of alien registration, even complementary
state regulation is impermissible. Field preemption
reflects a congressional decision to foreclose any
state regulation in the area, even if it is parallel to
Federal standards. . . . [T]he Court now concludes
that, with respect to the subject of alien
registration, Congress intended to preclude States from
``complement[ing] the Federal law, or enfor[cing]
additional or auxiliary regulations.''\180\
---------------------------------------------------------------------------
\180\Id. at 2502-03 (citations omitted).
H.R. 2278 provides the explicit Congressional authorization
that the Supreme Court requires for State and local laws that
penalize conduct proscribed by Federal immigration law. Section
102 of the bill states that ``States, or political subdivisions
of States, may enact, implement and enforce criminal [and
civil] penalties that penalize the same conduct that is
prohibited in the criminal [and civil] provisions of
immigration laws . . . as long as the criminal [and civil]
penalties do not exceed the relevant Federal criminal [and
civil] penalties.'' In these instances, the bill clearly and
without question indicates that Congress intends to allow
States and localities to complement Federal immigration law
with their own laws and enforce the provisions of their laws.
Thus, under H.R. 2278, the registration provision of Arizona
law would be a permissible and constitutional exercise of state
power. The ruling by the Supreme Court that it is preempted by
Federal law is no longer valid, because of the bill's provision
of explicit congressional authorization.
The second provision of Arizona law struck down by the
Supreme Court made it a state misdemeanor for ``an unauthorized
alien to knowingly apply for work, solicit work in a public
place or perform work as an employee or independent
contractor.''\181\ In this case, there is no similar Federal
law. In fact, as the Supreme Court noted, Federal immigration
law ``does not impose Federal criminal sanctions'' on
unauthorized aliens who work--and ``Congress made a deliberate
choice not to impose criminal penalties on aliens who . . .
engage in . . . unauthorized employment.''\182\ The Supreme
Court ruled that the Arizona law was preempted under the
doctrine of conflict preemption. This Arizona law would still
be preempted under H.R. 2278, as the Arizona law is not
reflective of Federal law.
---------------------------------------------------------------------------
\181\Ariz. Rev. Stat. Ann. Sec. 13-2928 (C) (West Supp. 2011).
\182\Arizona v, United States, 132 S.Ct. at 2503-04.
---------------------------------------------------------------------------
The third provision of Arizona law struck down by the
Supreme Court provided that a state officer ``without a
warrant, may arrest a person if the officer has probable cause
to believe . . . [the person] has committed any public offense
that makes [him] removable from the United States.''\183\ The
Supreme Court ruled that the law was preempted under the
doctrine of conflict preemption because:
---------------------------------------------------------------------------
\183\Ariz. Rev. Stat. Ann. Sec. 13-3883 (A)(5) (West Supp. 2011).
Congress has put in place a system in which state
officers may not make warrantless arrests of aliens
based on possible removability except in specific,
limited circumstances [such as pursuant to ``287(g)''
agreements between their law enforcement agencies and
DHS]. By nonetheless authorizing state and local
officers to engage in these enforcement activities as a
general matter, [the provision] creates an obstacle to
the full purposes and objectives of Congress.\184\
---------------------------------------------------------------------------
\184\Arizona v. United States, 132 S.Ct. at 2507.
Section 102 of H.R. 2278 provides that ``[l]aw enforcement
personnel of a State, or of a political subdivision of a State,
may investigate, identify, apprehend, arrest, detain, or
transfer to Federal custody aliens for the purposes of
enforcing the immigration laws of the United States to the same
extent as Federal law enforcement personnel.'' The section
clearly and without question indicates that Congress intends to
allow State and local law enforcement to engage in these
activities, and with absolutely no need for State and local law
enforcement to have ``any input from the Federal Government
about whether an arrest is warranted in a particular case'',
which input the Supreme Court considered necessary under
current law because of perceived congressional intent. The
Supreme Court believed that such authorization would allow a
State to ``achieve its own immigration policy.''\185\ To the
contrary, such authorization--as provided by H.R. 2278--allows
States to further the overarching congressional goal that the
Federal immigration laws be enforced, regardless of the
policies of immigration law non-enforcement of any particular
administration. As Justice Scalia remarked in dissent, the
government's complaint that state officials might not heed
Federal ``priorities'' is a good thing:
---------------------------------------------------------------------------
\185\Id. at 2506.
Indeed they might not, particularly if those priorities
include willful blindness or deliberate inattention to
the presence of removable aliens in Arizona. . . . What
I do fear--and what Arizona and the States that support
it fear--is that ``federal policies'' of nonenforcement
will leave the States helpless before those evil
effects of illegal immigration that the Court's opinion
dutifully recites in its prologue.\186\
---------------------------------------------------------------------------
\186\Id. at 2517-19 (Scalia, J., dissenting).
H.R. 2278 would make the Arizona warrantless arrest
provision as written a permissible and constitutional exercise
of state power. The Supreme Court had noted that this provision
``provide[d] state officers even greater authority to arrest
aliens on the basis of possible removability than Congress has
given to . . . Federal immigration officers.''\187\ It came to
this conclusion because under Federal law, where no warrant has
been issued, Federal officers ``may arrest an alien for being
`in violation of any [immigration] law or regulation,' . . .
only where the alien `is likely to escape before a warrant can
be obtained.'''\188\ However, section 501 of H.R. 2278 allows
Federal officers to make such arrests without the alien having
to be likely to escape. The Arizona provision would be a
permissible and constitutional exercise of state power pursuant
to H.R. 2278, because state officers would have no more arrest
authority than do Federal immigration officers.
---------------------------------------------------------------------------
\187\Id. at 2506.
\188\Id.
---------------------------------------------------------------------------
The Supreme Court did not strike down a fourth provision of
Arizona law that requires State officers to make a
```reasonable attempt . . . to determine the immigration
status' of any person they stop, detain, or arrest on some
other legitimate basis if `reasonable suspicion exists that the
person is an alien and is unlawfully present in the United
States.'''\189\ The Supreme Court ruled that:
---------------------------------------------------------------------------
\189\Id. at 2507.
There is a basic uncertainty about what the law means
and how it will be enforced. At this stage, without the
benefit of a definitive interpretation from the state
courts, it would be inappropriate to assume [the
provision] will be construed in a way that creates a
conflict with Federal law. . . .\190\
---------------------------------------------------------------------------
\190\Id. at 2510.
The Court noted that while ``[d]etaining individuals solely
to verify their immigration status would raise constitutional
concerns . . . [, the provision] could be read to avoid those
concerns.''\191\
---------------------------------------------------------------------------
\191\Id. at 2509.
---------------------------------------------------------------------------
The Court stated that:
[I]t would disrupt the Federal framework to put state
officers in the position of holding aliens in custody
for possible unlawful presence without Federal
direction and supervision. . . . The program put in
place by Congress does not allow state or local
officers to adopt this enforcement mechanism. But [the
provision] could be read to avoid these concerns.
. . . .
[If the provision] only requires state officers to
conduct a status check during the course of an
authorized, lawful detention or after a detainee has
been released, the provision likely would survive
preemption--at least absent some showing that it has
other consequences that are adverse to Federal law and
its objectives. There is no need in this case to
address whether reasonable suspicion of illegal entry
or another immigration crime would be a legitimate
basis for prolonging a detention, or whether this too
would be preempted by Federal law.
. . . .
[I]t would be inappropriate to assume [that the
provision] will be construed in a way that creates a
conflict with Federal law. . . . As a result, the
United States cannot prevail in its current challenge.
. . . This opinion does not foreclose other preemption
and constitutional challenges to the law as interpreted
and applied after it goes into effect.\192\
---------------------------------------------------------------------------
\192\Id. at 2509-10 (citations omitted).
However, it is the clear congressional intent of H.R. 2278
that it would most decidedly not disrupt the Federal framework
to put state officers in the position of holding aliens in
custody for possible unlawful presence without Federal
direction and supervision. Thus, after enactment of H.R. 2278,
the Arizona provision would be a permissible and constitutional
exercise of state power if in practice it put state officers in
the position of holding aliens in custody for possible unlawful
presence without Federal direction and supervision. Again, the
congressional intent embodied in H.R. 2278 is to allow States
to further the overarching congressional goal that the Federal
immigration laws be enforced, regardless of the policies of
immigration law non-enforcement of any particular
administration. Of course, after enactment of H.R. 2278, this
provision of Arizona law would have to be implemented in a
fashion that did not violate relevant constitutional
provisions, such as the bar against unreasonable searches and
seizures under the Fourth Amendment.
The Administration's Response
As discussed in the prior section on 287(g) agreements, ICE
responded to the Supreme Court's decision partially upholding
Arizona's law by rescinding its 287(g) agreements with Arizona
law enforcement agencies. ICE cited the Supreme Court's
decision to uphold the provision of Arizona law that requires a
reasonable attempt to be made when practicable to determine the
immigration status of a person during any lawful stop,
detention or arrest.
Specifically, 287(g) Task Force agreements were rescinded
with the Arizona Department of Public Safety, the City of Mesa
Police Department, the Florence Police Department, the Pima
County Sheriff's Office, the Pinal County Sheriff's Office, the
Yavapai County Sheriff's Office and the Phoenix Police
Department.\193\
---------------------------------------------------------------------------
\193\Information provided by ICE.
---------------------------------------------------------------------------
Section 112 of H.R. 2278 requires that DHS accept a request
for 287(g) applications absent a compelling reason not to. No
limit on the number of agreements can be imposed. The Secretary
shall process requests for such agreements with all due haste,
and in no case shall take more than 90 days from the date the
request is made until the agreement is consummated. Any such
agreement under this section shall accommodate a requesting
State or political subdivision with respect to the enforcement
model of their choosing. Furthermore, no agreement can be
terminated absent a compelling reason to do so. DHS shall
provide a State or political subdivision written notice of
intent to terminate at least 180 days prior to date of intended
termination.
C. The SAFE Act
President Reagan signed the Immigration Reform and Control
Act, or IRCA, into law on November 6, 1986.\194\ The bill
provided for three main reforms: legalizing many of the
millions of unlawful aliens already in the country, increasing
border enforcement, and instituting penalties for employers who
hired unauthorized workers and requiring that they check the
identity and work authorization documents of new hires in order
to stop the flow of new unlawful aliens. These reforms were
based on the realization that if Congress passed only a
legalization program, it would simply be encouraging future
illegal immigration. The Select Commission on Immigration had
warned just a few years earlier that ``[w]ithout more effective
enforcement than the United States has had in the past,
legalization could serve as a stimulus to further illegal
entry.''\195\ Unfortunately, IRCA's enforcement measures were
never adequately enforced and the Commission's fears were
realized. Border security barely improved. Employer penalties
weren't enforced. Now, 28 years later, immigration reform
efforts are haunted by the legacy of IRCA's failure.
---------------------------------------------------------------------------
\194\Pub. L. No. 99-603.
\195\Select Commission on Immigration and Refugee Policy, U.S.
Immigration Policy and the National Interest 82 (1981).
---------------------------------------------------------------------------
The primary reason why our immigration system is broken
today is because the present and past administrations have
largely ignored the enforcement of our immigration laws. Any
enforcement provisions Congress passes are now subject to
implementation by the Obama Administration, which fails to
enforce the laws already on the books. DHS has released
thousands of unlawful and criminal alien detainees. DHS is
forbidding ICE officers from enforcing the laws they are bound
to uphold. One Federal judge has already ruled DHS's actions
are likely in violation of Federal law. DHS is placing whole
classes of unlawful aliens in enforcement free zones. DHS has
claimed to be removing more aliens than any other
administration, but has to generate misleading numbers in order
to do so. If we want to avoid the mistakes of the past, we
cannot allow the President to continue shutting down Federal
immigration enforcement efforts unilaterally. Real immigration
reform needs to have mechanisms to ensure that the President
cannot simply turn off the switch on immigration enforcement.
The SAFE Act is designed to end the current state of
affairs in which the nation's immigration laws go largely
unenforced because the President has directed his
administration to simply not enforce them. As indicated, it
grants States and localities the specific congressional
authorization the Supreme Court requires to enact and enforce
their own immigration laws as long as they are consistent with
Federal law and to play a role in the enforcement of Federal
law.
However, a decision by the U.S. District Court for the
District of Arizona imperils the reforms contained in the bill.
On May 24, 2013, the court enjoined Maricopa County, Arizona,
from engaging in a number of immigration enforcement
efforts.\196\ In its opinion, the court ruled that Maricopa
County law enforcement officers can no longer detain persons
who they believe to be unlawful aliens. The court noted that
unlawful presence is not in itself a Federal crime, and ruled
that the county policy's ``focus on removable alien as opposed
to aliens who have committed criminal offenses violates the
strictures against unreasonable seizures set forth in the
Fourth Amendment.''\197\ Additionally, the court ruled that
when Maricopa County ``detains a vehicle's occupant(s) because
a deputy believes that the occupants are not legally present in
the country, but has no probable cause to detain them for any
other reason, the deputy violates the Fourth Amendment rights
of the occupants.''\198\
---------------------------------------------------------------------------
\196\See Melendres v. Arpaio, (D. Ariz.) (2013 WL 2297173).
\197\Id. at 63 (footnote omitted).
\198\Id.
---------------------------------------------------------------------------
Courts that adopt this analysis will bar State and local
law enforcement officers from detaining unlawful aliens even if
the congressional authorization provisions become law. The
courts will claim that the provisions are unconstitutional and
therefore prevent the immigration laws from being enforced by
States and localities that want to enforce them.
There is a simple way to shut these courts down and to
allow States and localities to assist in the enforcement of our
immigration laws. Illegal entry to the U.S. is already a
Federal misdemeanor offense for a first offense (with maximum
imprisonment of 6 months) and a felony for a subsequent offence
(with maximum imprisonment of 2 years).\199\ Section 315 of the
bill simply provides that illegal presence in the U.S. will be
a Federal misdemeanor, making State and local law enforcement
actions against aliens who are unlawfully present consistent
with the Fourth Amendment under the analysis of the U.S.
District Court for the District of Arizona. The majority of
unlawfully present aliens in the U.S. entered the U.S.
illegally or have committed document fraud and therefore have
already violated Federal criminal law. Aliens who have abused
our hospitality and overstayed their visas in order to work
illegally are just as culpable as aliens who enter the U.S.
illegally.
---------------------------------------------------------------------------
\199\See INA sec. 275. Former Secretary of Homeland Security Janet
Napolitano testified before the Senate that ``Operation Streamline, a
DHS partnership with the Department of Justice, is a geographically
focused operation that aims to increase the consequences for illegally
crossing the border by criminally prosecuting illegal border-crossers.
In the twelve months from April 1, 2010 to March 31, 2011, there were
more than 30,000 prosecutions under Operation Streamline. . . .''
Securing the Border: Progress at the Federal Level: Hearing Before the
Senate Comm. On Homeland Security and Governmental Affairs, 112th Cong.
(2011).
---------------------------------------------------------------------------
Law professors Gabriel Chin and Marc Miller argue that
States cannot constitutionally ``enact and enforce criminal
immigration laws that are based on Federal statutes''--even if
explicitly authorized by Congress.\200\ They posit that:
---------------------------------------------------------------------------
\200\Gabriel Chin & Marc Miller, The Unconstitutionality of State
Regulation of Immigration through Criminal Law, 61 Duke L.J. 251
(2011).
[S]tate enforcement would be unconstitutional even if
it were explicitly authorized by Congress. First, the
Federal immigration power is exclusive and
nondelegable. Second, criminal prosecution and
immigration enforcement are executive powers that
Congress cannot remove from the president and share
with non-executive-branch officials. Finally, the
Supreme Court has held that states cannot prosecute
crimes that affect only the sovereign interests of the
United States. Accordingly, state immigration
---------------------------------------------------------------------------
prosecutions are irremediably unconstitutional.
. . . .
Congress has no power to delegate regulatory authority
in areas within its exclusive jurisdiction. Further,
Congress has no power to delegate the president's duty
to carry out the laws to state officers who are wholly
outside of presidential control. Accordingly, even if
Congress invited the states to legislate in the
immigration sphere, the resulting state laws would
still be unconstitutional.\201\
---------------------------------------------------------------------------
\201\Id. at 252, 261.
At the outset, it should be noted that States (and
localities) cannot constitutionally take over the role of
admitting, excluding, or removing aliens. Courts have made this
clear over many decades. As the Supreme Court of Arizona has
stated, ``[t]he Federal power over aliens is exclusive and
supreme in matters of their deportation and entry into the
United States.\202\ And the Supreme Court has found that:
---------------------------------------------------------------------------
\202\State v. Camargo, 537 P.2d 920, 922 (Ariz. 1975).
The Federal Government has broad constitutional powers
in determining what aliens shall be admitted to the
United States, the period they may remain, regulation
of their conduct before naturalization, and the terms
and conditions of their naturalization. . . . Under the
Constitution the states are granted no such powers;
they can neither add to nor take from the conditions
lawfully imposed by Congress upon admission,
naturalization and residence of aliens in the United
States or the several states. State laws which impose
discriminatory burdens upon the entrance or residence
of aliens lawfully within the United States conflict
with this constitutionally derived Federal power to
regulate immigration, and have accordingly been held
invalid.\203\
---------------------------------------------------------------------------
\203\Takahashi v. Fish and Game Commission, 334 U.S. 410, 419
(1948) (citation and footnote omitted).
Chin and Miller thus argue that ``only Congress can create
crimes involving the admission, exclusion, and removal of
noncitizens.''\204\ However, the SAFE Act does no such thing.
In fact, section 102(b) of the Act provides that ``[l]aw
enforcement personnel of a State, or of a political subdivision
of a State, may not remove aliens from the United States.''
---------------------------------------------------------------------------
\204\The Unconstitutionality of State Regulation of Immigration
through Criminal Law at 305.
---------------------------------------------------------------------------
However, the professors' main argument seems entirely at
odds with the district court and Supreme Court decisions in
Arizona v. U.S. The Arizona statute at issue instituted a
number of new State crimes based on Federal crimes in the
immigration sphere. The United States District Court for the
District of Arizona ruled constitutional that portion of the
Arizona law:
which makes it illegal for a person who is in violation
of a criminal offense to: (1) transport or move or
attempt to transport or move an alien in Arizona in
furtherance of the alien's unlawful presence in the
United States; (2) conceal, harbor, or shield or
attempt to conceal, harbor, or shield an alien from
detection in Arizona; and (3) encourage or induce an
alien to come to or live in Arizona.\205\
---------------------------------------------------------------------------
\205\U.S. v. Arizona, 703 F. Supp.2d 980, 1002 (D. Ariz. 2010).
This language is derived from Federal criminal law.\206\
---------------------------------------------------------------------------
\206\See section 274 of the Immigration and Nationality Act.
---------------------------------------------------------------------------
The district court found that the Arizona provision ``does
not attempt to regulate who should or should not be admitted
into the United States, and it does not regulate the conditions
under which legal entrants may remain in the United States. . .
. Therefore, the Court concludes that the United States is not
likely to succeed on its claim that [the provision] is an
impermissible regulation of immigration.''\207\ In fact, the
court specifically stated that the provision ``does not attempt
to prohibit entry into Arizona, but rather criminalizes
specific conduct already prohibited by Federal law.''\208\
Thus, the district court found nothing unconstitutional in a
State criminal law regarding immigration mirroring Federal
criminal law. The United States chose not to even appeal this
matter to the 9th Circuit.\209\ Professors Chin and Miller even
admit that ``[t]o some extent . . . the district court's
decision can be read as an affirmation of the mirror-image
theory [that State criminal law can ``mirror'' Federal criminal
immigration law] because of the parts of the Arizona law it did
not enjoin.''\210\
---------------------------------------------------------------------------
\207\703 F. Supp.2d at 1003.
\208\Id. at 1003 n.19.
\209\See U.S. v. Arizona, 641 F. 3d 339, 344 (9th Cir. 2011)
(``[T]he United States did not cross-appeal the partial denial of
injunctive relief.'').
\210\The Unconstitutionality of State Regulation of Immigration
through Criminal Law at 257.
---------------------------------------------------------------------------
The 9th Circuit later ruled in the context of a request for
a preliminary injunction against this statutory provision by
private plaintiffs that the statute was likely
unconstitutional--but on completely separate grounds (void for
vagueness and preempted by Federal law).\211\ The court nowhere
mentions Professor Chin and Miller's theory that Federal
immigration power is ``exclusive and nondelegable.''
---------------------------------------------------------------------------
\211\See Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th
Cir. 2013).
---------------------------------------------------------------------------
The Supreme Court ruling found portions of the Arizona law
constitutional and portions unconstitutional. Strikingly, the
Court ruled solely on preemption grounds, even when considering
the constitutionality of a provision of Arizona law mirroring a
Federal criminal statute requiring aliens to carry registration
documents.\212\
---------------------------------------------------------------------------
\212\See U.S. v. Arizona, 132 S.Ct. at 2503.
---------------------------------------------------------------------------
If Professor Chin and Miller's theory that Federal
immigration power is ``exclusive and nondelegable'' were
plausible, it would be exceedingly odd for the Supreme Court to
not even mention it when declaring unconstitutional a provision
of Arizona criminal law mirroring Federal criminal immigration
law.
The Supreme Court has of course acknowledged many times
that ``[p]ower to regulate immigration is unquestionably
exclusively a Federal power.''\213\ But, at the same time, in
DeCanas v. Bica in 1976, the Court ruled in the case of a state
statute criminalizing the knowing employment of an unlawful
alien (if such employment would have an adverse effect on
lawful resident workers)\214\ that:
---------------------------------------------------------------------------
\213\DeCanas v. Bica, 96 S.Ct. 933, 936 (1976) (citations omitted).
\214\See DeCanas v. Bica, 40 Cal.App.3d. 976, 978 (Cal. Ct. App.
1974).
[T]he Court has never held that every state enactment
which in any way deals with aliens is a regulation of
immigration and thus per se pre-empted by this
constitutional power, whether latent or exercised. . .
. [S]tanding alone, the fact that aliens are the
subject of a state statute does not render it a
regulation of immigration, which is essentially a
determination of who should or should not be admitted
into the country, and the conditions under which a
legal entrant may remain. Indeed, there would have been
no need, in cases such as Graham, Takahashi, or Hines
v. Davidowitz . . . , even to discuss the relevant
congressional enactments in finding pre-emption of
state regulation if all state regulation of aliens was
ipso facto regulation of immigration, for the existence
vel non of Federal regulation is wholly irrelevant if
the Constitution of its own force requires pre-emption
of such state regulation. In this case, California has
sought to strengthen its economy by adopting Federal
standards in imposing criminal sanctions against state
employers who knowingly employ aliens who have no
Federal right to employment within the country; even if
such local regulation has some purely speculative and
indirect impact on immigration, it does not thereby
become a constitutionally proscribed regulation of
immigration that Congress itself would be powerless to
authorize or approve. Thus, absent congressional
action, S 2805 would not be an invalid state incursion
on Federal power.\215\
---------------------------------------------------------------------------
\215\DeCanas v. Bica, 96 S.Ct at 936.
DeCanas v. Bica also seems quite inconsistent with the
thrust of Chin and Miller's argument. The Supreme Court upheld
as constitutional a State criminal statute explicitly dealing
with illegal immigration (of course, not in the context of
their deportation and entry into the United States).
And, in Plyler v. Doe, in a case not dealing with a State
criminal statute but with the ability of a State to deny public
education to unlawful alien children, the Court stated that:
As we recognized in DeCanas v. Bica. . . . the States
do have some authority to act with respect to illegal
aliens, at least where such action mirrors Federal
objectives and furthers a legitimate state goal. In
DeCanas, the State's program reflected Congress'
intention to bar from employment all aliens except
those possessing a grant of permission to work in this
country. . . .
. . . .
Although the State has no direct interest in
controlling entry into this country, that interest
being one reserved by the Constitution to the Federal
Government, unchecked unlawful migration might impair
the State's economy generally, or the State's ability
to provide some important service. Despite the
exclusive Federal control of this Nation's borders, we
cannot conclude that the States are without any power
to deter the influx of persons entering the United
States against Federal law, and whose numbers might
have a discernible impact on traditional state
concerns.\216\
---------------------------------------------------------------------------
\216\102 S.Ct. 2382, 2399, 2400 n.23 (1982) (citation omitted).
In fact, the Court in Arizona v. U.S. actually emphasized
the legitimate and traditional state interests and concerns
---------------------------------------------------------------------------
implicated by illegal immigration:
The pervasiveness of Federal regulation does not
diminish the importance of immigration policy to the
States. Arizona bears many of the consequences of
unlawful immigration. Hundreds of thousands of
deportable aliens are apprehended in Arizona each year.
. . . Unauthorized aliens who remain in the State
comprise, by one estimate, almost 6 percent of the
population. . . . And in the State's most populous
county, these aliens are reported to be responsible for
a disproportionate share of serious crime. . . .
[citing a report] (estimating that unauthorized aliens
comprise 8.9% of the population and are responsible for
21.8% of the felonies in Maricopa County, which
includes Phoenix).
Statistics alone do not capture the full extent of
Arizona's concerns. Accounts in the record suggest
there is an ``epidemic of crime, safety risks, serious
property damage, and environmental problems''
associated with the influx of illegal migration across
private land near the Mexican border. . . . Phoenix is
a major city of the United States, yet signs along an
interstate highway 30 miles to the south warn the
public to stay away. One reads, ``DANGER--PUBLIC
WARNING--TRAVEL NOT RECOMMENDED/Active Drug and Human
Smuggling Area/Visitors May Encounter Armed Criminals
and Smuggling Vehicles Traveling at High Rates of
Speed.'' . . . The problems posed to the State by
illegal immigration must not be underestimated.\217\
---------------------------------------------------------------------------
\217\132 S.Ct. at 2500 (citations omitted).
Thus, recent Supreme Court precedent is wholly consistent
with section 102(a) of the SAFE Act. States have legitimate and
traditional state interests and concerns implicated by illegal
immigration, and thus can enact and enforce State criminal
legislation mirroring Federal criminal immigration statutes (of
course, not in the context of the entry into the U.S. or
deportation of aliens).
D. Community Policing
Many advocacy groups claim that community policing would be
undermined if local law enforcement authorities were permitted
to enforce Federal immigration laws or their own immigration
laws. Community policing is based on trust and collaborative
partnerships between local law enforcement and the individuals
and organizations they serve. The SAFE Act maintains standards
of community policing by providing local law enforcement with
the tools they need to implement consistent law enforcement and
foster safe communities, as well as leaving communication
channels open between law enforcement and those that they
serve.
As a general matter, local communities tend to trust local
law enforcement more than they trust unknown Federal
authorities. Hence, community policing would be enhanced under
the SAFE Act. Community trust of law enforcement is eroded when
police willfully ignore entire areas of law-breaking (such as
unlicensed driving, identity theft, drunk driving, gang
membership, ``low level'' crimes, immigration violations) or
pick and choose which laws to enforce.
Additionally, trust can be built by conveying the message
that victims and witnesses are not targets for immigration law
enforcement. In fact, they are eligible for immigration
benefits such as T visas for trafficking victims and U visas
for crime victims.\218\ Advocacy groups can work with immigrant
communities and ethnic media to advance reliable information
about Federal immigration policies and the resources that may
be available to assist aliens, even those that are unlawful,
with respect to law enforcement investigations. Sheriff Page
has conveyed this message to immigrant communities in
Rockingham, NC.\219\ He has engaged in frequent interviews with
Spanish language media outlets as well as jail ministry
programs.\220\ This has allowed him to forge connections with
faith leaders who help him communicate with the immigrant
community to explain his activities and how law enforcement
protects law-abiding residents of the county.\221\ He has even
gone so far as to meet with the Mexican consul. Creating
relationships and effective communication with the immigrant
community fosters trust in local and Federal law
enforcement.\222\
---------------------------------------------------------------------------
\218\See INA sec. 101(a)(15)(T), (U).
\219\See Jessica Vaughan, Sheriffs Skeptical of ``Chilling Effect''
from Secure Communities, Center for Immigration Studies blog (July 11,
2012).
\220\Id.
\221\Id.
\222\Id.
---------------------------------------------------------------------------
Members of immigrant communities are the primary victims of
alien criminals and are equally as interested in getting
criminals off the streets and creating safe communities as
anyone else. The SAFE Act will provide for safer communities
and could inspire increased collaboration between local law
enforcement and immigrant populations.
The idea of the ``chilling effect'' holds that if local
agencies become involved in immigration enforcement, immigrants
in their jurisdictions will be so intimidated and fearful of
the local authorities that they will not report crimes or
assist in investigations. The origins of this theory are
unclear and hard evidence is non-existent.
Data does not support that a chilling effect exists.
National crime statistics show no pattern of difference in
crime reporting rates by ethnicity, and the most reliable
academic research available, based on surveys of immigrants,
have found that when immigrants do not report crimes, they say
it is because of language and cultural factors, not because of
fear of immigration law enforcement.\223\ There is little
evidence that cooperation between Federal and local law
enforcement will cause immigrants, even unlawful aliens, to
stop reporting crimes.\224\
---------------------------------------------------------------------------
\223\See U.S. Department of Justice, Criminal Victimization
Statistics, http://www.ojp.usdoj.gov/bjs/abstract/cv05.htm.
\224\Robert Davis & Edna Erez, Immigrant Populations as Victims:
Toward a Multicultural Criminal Justice System, National Institute of
Justice: Research in Brief, May 1998, and Robert Davis, Edna Erez &
Nancy Avitable, Access to Justice for Immigrants Who Are Victimized:
The Perspective of Police and Prosecutors, Criminal Justice Policy
Review 12:3, September 2001.
---------------------------------------------------------------------------
According to the Bureau of Justice Statistics' Annual
Criminal Victimization Study, only about 50% of all crimes are
ever reported to police and these rates have remained unchanged
over the last decade. Additionally, there are no significant
differences in crime reporting rates by males across ethnic
groups.\225\ For females, Hispanic females are slightly more
likely than whites and blacks to report violent crime; and they
are less likely to report property crime.\226\ The report is
consistent with academic research findings that Hispanic
females to be more trusting of police.
---------------------------------------------------------------------------
\225\See Criminal Victimization Statistics.
\226\Id.
---------------------------------------------------------------------------
According to a survey on ``why immigrants don't report
crime'', 47% cited language barrier, 22% cited cultural
differences, 15% cited a lack of understanding of the US
criminal justice system, and 3% cited a belief that the
authorities would do nothing.\227\ Only 10% cited fear of
authorities based on their home country experience or
deportation, while only 3% cited fear of retaliation.\228\
---------------------------------------------------------------------------
\227\Id.
\228\Id.
---------------------------------------------------------------------------
Academic studies on attitudes and trust among immigrants
find that it is impossible to generalize because of differences
according to nationality. Others find that the most important
factor is socioeconomic status and feelings of empowerment
within the community. Neither of which would be at all
negatively affected by the SAFE Act.
Two studies of local law enforcement agencies, one in
Prince William County, Virginia, conducted by the University of
Virginia and one in Collier County, Florida, are instructive.
After Prince William County implemented mandatory screening and
entered the 287(g) program, there was no significant change in
calls for service among Hispanics. There was also no
significant difference between Hispanics and non-Hispanic after
the implementation of their immigration enforcement
initiatives.\229\ In Collier County, again, no difference was
found between immigrant and native communities after 287(g) was
implemented.\230\ There were also no substantiated cases of
crime victims being removed after reporting a crime, unless the
victim was also a criminal. Even though Collier County consists
of several diverse jurisdictions, some with largely native-born
populations and some with largely immigrant populations, calls
for service between immigrant and native communities showed no
difference after the program was launched.
---------------------------------------------------------------------------
\229\Thomas M. Guterbock et al., Evaluation Study of Prince William
County Police Illegal Immigration Enforcement Policy: Interim Report
2009, Center for Survey Research, University of Virginia and Police
Executive Research Forum, August 2009, at 51-52, http://www.pwcgov.org/
docLibrary/PDF/10636.pdf.
\230\See Michael J. Williams, Commander, Legal Affairs, Collier
County, Florida Sheriff's Department, Local Enforcement of Federal
Immigration Law and 287(g), Law Enforcement and Public Safety TV
(LEAPS-TV) broadcast on July 28, 2009.
---------------------------------------------------------------------------
Lt. Wes Lynch, of Whitfield County, Georgia, found that
``[s]ince starting the 287(g) program at our jail, we have had
more communication with the immigrant community, not
less.''\231\ The Sheriff has included the Mexican consulate and
advocates for the immigrant community in discussing the
program.\232\ Lynch says that immigrants now approach officers
at the jail much more regularly and have assisted in locating
criminals.\233\
---------------------------------------------------------------------------
\231\Id.
\232\See id.
\233\See id.
---------------------------------------------------------------------------
For example, one individual suspected of being an unlawful
alien came to the jail to report the return to the community of
a drug dealer who had already been removed once before as an
aggravated felon, enabling his prosecution for illegal re-
entry.\234\ Another community member, a naturalized citizen,
came forward after the 287(g) program was launched to report a
case of immigration-related marriage fraud. Through its
partnership between Federal and local law enforcement, the SAFE
Act is likely to have a similar outcome in the area of
immigration enforcement.
---------------------------------------------------------------------------
\234\See id.
---------------------------------------------------------------------------
Immigrants coming forward to report crimes is one of the
main ways local law enforcement agencies and ICE are able to
launch investigations against criminal aliens. Victims and
witnesses to crimes are not targets for immigration law
enforcement, and this is repeatedly emphasized by ICE and local
law enforcement in outreach to immigrant communities.
Training by Federal authorities as mandated under the SAFE
Act increases local officers' awareness of when they should
consider the immigration status of crime victims--not for the
purpose of removal, but to access the various special
protections available to victims, witnesses, and informants
under immigration law. For example, an illegal alien who is a
victim of a crime might be needed to testify or otherwise
assist in the prosecution of the perpetrator. The local agency
can work with Federal authorities to arrange special status
until the case is resolved.\235\ These tools have proven to be
a much more powerful way to encourage cooperation from the
immigrant community than non-cooperation or sanctuary policies.
---------------------------------------------------------------------------
\235\See INA sec. 101(a)(15)(T), (U).
---------------------------------------------------------------------------
The Detention of Dangerous Aliens
H.R. 2278 allows for the continued detention of dangerous
aliens who cannot be removed and strengthens the Department of
Homeland Security's ability to detain criminal aliens in
removal proceedings.\236\ The Supreme Court's decisions in
Zadvydas v. Davis\237\ and Clark v. Martinez\238\ have
interpreted current immigration law to limit the length of
detention of aliens who have received orders of removal but who
cannot be removed. As a result of these decisions, each year
the Department of Homeland Security must release thousands of
criminal aliens into communities in the United States. The
relevant provisions of H.R. 2278 are similar to the provisions
contained in H.R. 1932, which was reported by the Judiciary
Committee in the 112th Congress. For a full explanation of the
Committee's rationale for these earlier provisions (and an
explanation of the provisions in the SAFE Act to the extent
they are similar), the Committee Report for H.R. 1932 should be
considered incorporated into this report.\239\
---------------------------------------------------------------------------
\236\See H.R. 2278, sec. 310.
\237\See 533 U.S. 678 (2001).
\238\See 543 U.S. 371 (2005).
\239\See H.R. Rep. No 112-255 (2011).
---------------------------------------------------------------------------
VISA INTEGRITY
Background
H.R. 2278 helps ensure security of the visa issuance
process through the establishment of Visa Security Units (VSUs)
at all high risk consular posts and ensures that national
security threats are not able to enter and remain in the United
States.
The 9/11 hijackers demonstrated the relative ease of
obtaining a U.S. visa and gaining admission to the United
States.\240\ The 19 hijackers applied for 23 visas and obtained
22. They began the process of obtaining visas almost two and
half years before the attack. At the time, consular officers
were unaware of the potential indications of a security threat
posed by these visa applicants who were in reality terrorists,
had no information about fraudulent travel stamps that are
associated with Al Qaeda, and were not trained in terrorist
travel tactics generally.\241\
---------------------------------------------------------------------------
\240\See generally, 9/11 and Terrorist Travel, Staff Report on the
National Commission on Terrorist Attacks upon the United States (2004).
\241\Id. at 2.
---------------------------------------------------------------------------
Most of the operatives selected were Saudis, who had little
difficulty obtaining visas. The mastermind of the operation,
Khalid Sheikh Mohammed, used a travel facilitator to acquire a
visa on July 23, 2001, in Jeddah, Saudi Arabia, using an alias.
Thereafter, other terrorists including the Christmas Day
Bomber have attempted to enter this country by legal means.
The State Department (DOS) receives applications for entry
into the United States by aliens and issues visas for those
approved to emigrate or visit. Before traveling to the United
States, a citizen of a foreign country who seeks to enter the
U.S. generally must first obtain a U.S. visa, which is placed
in the traveler's passport. A citizen of a foreign country must
generally obtain a nonimmigrant visa for temporary stay (unless
the country participates in the visa waiver program) or an
immigrant visa for permanent residence. The type of visa needed
depends on the purpose of the travel.
Having a U.S visa allows an alien to travel to a port of
entry, airport or land border crossing, and request permission
of a CBP inspector to enter the U.S. While having a visa does
not guarantee entry to the U.S., it does indicate that a
consular officer at a U.S. embassy or consulate abroad has
determined that an alien is eligible to seek entry for a
specific purpose. CBP inspectors, guardians of the nation's
borders, are responsible for admission of travelers to the
U.S., for a specified status and period of time.
Following the 9/11 attacks, Congress gave serious
consideration to removing the visa issuance function from DOS
and placing it under the authority of the newly established
DHS. Such an arrangement would have placed this immigration-
related function in the agency with primary authority over
immigration matters, and it would have addressed the many
serious concerns (which pre-dated 9/11) about DOS's penchant
for treating the consular visa-issuance function more as a
public diplomacy and foreign relations tool than as a function
fundamentally about law enforcement and immigration compliance.
As a result of a compromise reached in the 2002 Homeland
Security Act, DOS retained its consular visa-issuance function,
while Section 428 of the Act gave DHS authority to ``to issue
regulations with respect to, administer, and enforce the
provisions of such Act, and of all other immigration and
nationality laws, relating to the functions of consular
officers of the United States in connection with the granting
or refusal of visas, and shall have the authority to refuse
visas in accordance with law.''\242\
---------------------------------------------------------------------------
\242\Pub. L. No. 107-296.
---------------------------------------------------------------------------
The Visa Security Program (VSP) created by section 428
authorizes DHS ``to assign employees of the Department to each
diplomatic and consular post at which visas are issued, unless
the Secretary determines that such an assignment at a
particular post would not promote homeland security.''
In practice, however, ICE must obtain the approval not only
from DHS headquarters to establish new overseas presences, but
also from the chief of mission at each diplomatic post and DOS
headquarters. One of the major obstacles has often been the
local embassy leadership, who may see ICE presence as an
invasion of the jurisdiction that traditionally belonged to
Consular Affairs or to DOS's Regional Security Officer who is
tasked with reviewing visa applications and screening
applicants to prevent fraud and to avoid issuance of visas to
criminals or terrorists. For example, DHS wanted to expand the
VSP to Turkey but DOS denied the request.
With an average office size of two employees, VSP units,
also known as Visa Security Units, screen all visa applicants
submitted at the Consular Office through DHS databases and
conduct targeted reviews of those applicants considered high-
risk. According to information provided by ICE, it costs
approximately $2.2 million to open a new VSP unit, covering two
to three employees, technology, and vehicles.
To date, DHS has established VSP posts at only 19 locations
with a presence in 15 countries. However, there is a list of
over 50 designated ``high-risk'' posts. The opposition from DOS
is particularly objectionable, since the Homeland Security Act
does not give it any power to veto or resist DHS's choice of
posts at which VSP officers would ``promote homeland
security.''
Opposition from DOS or from parochial interests in
individual embassies has not been the only obstacle to
implementation of VSP. In fact, DHS has left VSU requests
pending for several months in the past. For instance, a request
from ICE in September 2008 was sent to the Secretary of
Homeland Security for approval to create a VSP office in Yemen,
but that request was not approved by Secretary Napolitano until
January 15, 2010, and finally on February 16, 2010, by the
Secretary of State. And it was approved only when it came to
light that the Christmas Day bomber had ties to Yemen.
Additionally, on February 10, 2010, DOS notified ICE that
its request for a VSU in Jerusalem was denied due to ``the
principles of rightsizing,'' and explained that DOS believed
its personnel onsite could perform the visa-screening
function.\243\ Congress was notified of this decision on
February 16, 2010, and 2 days later a revised cable from the
American Consulate in Jerusalem was delivered reversing the
decision and approving the conditional establishment of the
VSU.
---------------------------------------------------------------------------
\243\See American Consulate in Jerusalem unclassified cable to
Secretary of State, February 10, 2010.
---------------------------------------------------------------------------
The existing memorandum of understanding between DOS and
DHS states that a consular officer will not issue a visa over
the objection of the VSP unit until the objection has been
resolved.\244\ Thus, the Secretary of Homeland Security does
have the authority to prevent a Consular Office from issuing a
visa if an objection cannot be resolved. According to ICE, the
Secretary has only used this authority once--in 2005.
---------------------------------------------------------------------------
\244\See Memorandum of Understanding Among U.S. Immigration and
Customs Enforcement of the Department of Homeland Security and the
Bureau of Consular Affairs and Diplomatic Security of the Department of
State on Roles, Responsibilities, and Collaboration at Visa Security
Units Abroad (January 11, 2011).
---------------------------------------------------------------------------
Section 405 of the SAFE Act clarifies that both the
Secretary of Homeland Security and the Secretary of State can
refuse or revoke visas to aliens if in the security interests
of the United States. Sections 406 and 407 of the SAFE Act also
provide for funding and the expeditious expansion of visa
security units.
Visa Revocation
After a visa has been issued, a consular officer has the
discretionary authority to revoke a visa at any time. In fact,
in his January 20, 2010, testimony before the Senate Judiciary
Committee, Department of State Undersecretary for Management
Patrick Kennedy stated, ``since 2001 we have revoked over
51,000 visas . . . including over 1,700 for suspected ties to
terrorism.''\245\
---------------------------------------------------------------------------
\245\Securing America's Safety: Improving the Effectiveness of
Anti-Terrorism Tools and Inter-Agency Communication, Hearing Before the
Senate Judiciary Comm. 111th Cong (2010) (statement of Patrick F.
Kennedy).
---------------------------------------------------------------------------
Under DOS procedures, when derogatory information about an
individual comes to light after a visa is issued, consideration
is given to whether it would be prudent to revoke the visa. DOS
officials sometimes prudentially revoke visas, i.e., they
revoke a visa as a safety precaution to ensure that all
relevant or potentially relevant facts about the applicant are
thoroughly explored. Prudential revocations are precautionary
actions that can be taken when the alien's admissibility is
deemed to raise national security concerns. Although DOS has
previously testified to Congress about this being a ``low
threshold,'' they have recently indicated they would not
prudentially revoke a visa for security reasons unless there
was an ``immediate threat.''\246\
---------------------------------------------------------------------------
\246\Visa Issuance, Information Sharing and Enforcement in a Post-
9/11 Environment: Are We Ready Yet?: Hearing Before the Senate Comm. on
the Judiciary's Subcomm. on Immigration, Border Security and
Citizenship 103rd Cong (2003) (testimony of Janice L. Jacobs, Deputy
Assistant Secretary of State for Visa Services).
---------------------------------------------------------------------------
While DHS has clear authority over the policies to grant or
deny visas, its statutory role in the visa revocation process
is unclear. The law specifically provides that after a visa has
been issued, a consular officer has the discretionary authority
to revoke a visa at any time.\247\ The statute makes no mention
of DHS, and there is no explicit grant of authority DHS in
section 428 of the Homeland Security Act to revoke a visa.
---------------------------------------------------------------------------
\247\See INA sec. 221(i)
---------------------------------------------------------------------------
Nonetheless, it could be argued that DHS, through the broad
language of section 428, is granted the ability to revoke as it
is a matter ``relating to the functions of consular officers of
the United States in connection with the granting or refusal of
visas.'' Furthermore, the MOU between DOS and DHS on the
implementation of section 428 provides that ``if the Secretary
of Homeland Security decides to exercise the authority to
refuse a visa in accordance with law, or to revoke a visa, the
Secretary of Homeland Security shall request the Secretary of
State to instruct the relevant consular officer to refuse or
revoke the visa.''\248\ This language appears to acknowledge
the authority of the Secretary of Homeland Security to revoke a
visa; however, it also seems to indicate that the Secretary of
State has final say over the revocation.
---------------------------------------------------------------------------
\248\Memorandum of Understanding Between the Secretaries of State
and Homeland Security Concerning Implementation of Section 428 of the
Homeland Security Act of 2002, Sept. 26, 2003, at 8 (emphasis added).
---------------------------------------------------------------------------
The MOU also bars the Secretary of Homeland Security from
delegating the visa refusal or revocation decision outside DHS
headquarters, effectively making it impossible for the
Secretary to pass this responsibility to the Assistant
Secretary for ICE, who has direct authority for the DHS program
that monitors visa issuance and identifies security or fraud
threats. Section 405 of the SAFE Act specifically authorizes
the Secretary of Homeland Security or a designee to refuse or
revoke visas to aliens if in the security or foreign policy
interests of the United States.
Removal Predicated on Visa Revocation Decisions
The then-Government Accounting Office (GAO) issued a report
in 2003 finding that ``30 individuals whose visas were revoked
on terrorism grounds entered the United States either before or
after revocation and may still remain in the country'' and that
``INS and the FBI were not routinely taking actions to
investigate, locate, or resolve the cases of individuals who
remained in the United States after their visas were
revoked.''\249\ It found that this was because of the
difficulty of removing such aliens. GAO expressed concern that
``there is heightened risk that suspected terrorists could
enter the country with revoked visas or be allowed to remain
after their visas are revoked without undergoing investigation
or monitoring.''\250\
---------------------------------------------------------------------------
\249\U.S. General Accounting Office, Border Security: New Policies
and Procedures Are Needed to Fill Gaps in the Visa Revocation Process
(GAO-03-798) 4 (2003) (footnotes omitted).
\250\Id. at 27.
---------------------------------------------------------------------------
There were two underlying factors which contributed to this
state of affairs. First, DOS revocation certificates state that
in the case of aliens present in the United States, revocation
are not effective until after the aliens' departure from the
United States.\251\ Second, it is unclear as to whether the
fact of revocation in and of itself is a ground for removing an
alien who had been admitted to the U.S.--``A visa revocation by
itself [was] not a stated grounds for removal under the
Immigration and Nationality Act''\252\ and INS investigators
``believed that under the INA, the visa revocation itself does
not affect the alien's legal status in the United
States.''\253\ The GAO found that ``[the] issue of whether a
visa revocation, after an alien is admitted on that visa, has
the effect of rendering the individual out-of-status is
unresolved legally. . . .''\254\
---------------------------------------------------------------------------
\251\Id. at 25.
\252\Id. at 5 (footnote omitted)
\253\Id. at 25.
\254\Id.
---------------------------------------------------------------------------
While the INS could have initiated deportation proceedings
against an alien on the basis of other grounds of removal--such
as terrorist activity, this was problematic. The burden of
proof is on the government in deportation proceedings against
admitted aliens. Compounding this fact:
INS officials stated that the State Department provides
very little information or evidence relating to the
terrorist activities when it sends the revocation
notice to INS. Without sufficient evidence linking the
alien to any terrorist-related activities, INS cannot
institute removal proceedings on the basis of that
charge. [E]ven if there is evidence, INS officials
said, sometimes the agency that is the source of the
information will not authorize the release of that
information because it could jeopardize ongoing
investigations or reveal sources and methods. . . . INS
officials state that sometimes the evidence that is
used to support a discretionary revocation from the
Secretary of State is not sufficient to support a
charge of removing an alien in immigration proceedings
before an immigration judge. [State Department
officials] said that most of the time, the information
on which these revocations is based is classified.
. . . .
At some point in the proceedings . . . in establishing
that the alien is removable . . . the government could
be called on to disclose any classified or law
enforcement sensitive information that serves as the
basis of the charges against the alien. According to
INS attorneys, this can be challenging since many times
the law enforcement or intelligence agencies that are
the source of the information may not authorize the
release of that information because it could jeopardize
ongoing investigations or reveal sources and
methods.\255\
---------------------------------------------------------------------------
\255\Id. at 25, 35.
After the GAO report was issued, DHS and DOS entered into
an agreement whereby DOS agreed to revoke visas retroactive to
the time of issuance on a case-by-case basis if requested by
DHS.\256\ DOS, however, had concerns regarding ``the litigation
risks involved in removing aliens based on visa revocations'',
wanting to ``avoid steps that will weaken our ability to use
revocations flexibly and aggressively to protect homeland
security'' and to avoid ``a situation in which courts start
second-guessing our revocation decisions.''\257\
---------------------------------------------------------------------------
\256\See Hearing before the House Comm. on Government Reform's
Subcomm. on National Security, Emerging Threats, and International
Relations, 108th Cong. (2004) (statement of Tony Edson, Managing
Director (Acting), Office of Visa Services, U.S. Department of State).
\257\Id.
---------------------------------------------------------------------------
The House of Representatives included in the legislation to
implement the recommendations of the 9/11 Commission a
provision explicitly making revocation of a nonimmigrant visa a
grounds for removal. The only factor an immigration judge could
consider in a deportation proceeding was whether in fact DOS
had revoked the visa. In addition, the House provided that
there would be no means of judicial review of a visa revocation
or a deportation action based on the revocation.\258\
---------------------------------------------------------------------------
\258\See section 3009 of S. 2845 (engrossed amendment as agreed to
by House) (108th Congress, 2004).
---------------------------------------------------------------------------
However, in the conference committee, the Senate inserted a
modification providing that a removal based on visa revocation
was judicially reviewable if revocation was the sole basis for
the order of removal.\259\ The Senate language has made the use
of the visa revocation section problematic. Judicial review
could force the release to the alien and the public of the
sensitive information that the revocation ground of removal was
intended to protect. It could also undermine the consular non-
reviewability doctrine and open the door to judicial second-
guessing of all visa denial decisions.
---------------------------------------------------------------------------
\259\``There shall be no means of judicial review . . . of a
revocation [of a visa or other documentation] under this subsection,
except in the context of a removal proceeding if such revocation
provides the sole ground for removal under section 1227(a)(1)(B) of
this title.'' See section 5304 of Pub. L. No. 108-458.
---------------------------------------------------------------------------
Section 405 of the SAFE Act ensures that there shall be no
judicial review of any visa revocation decision in order to
safeguard national security. The SAFE Act ``will prevent an
alien whose visa has been revoked [from being able] to
challenge the underlying revocation in court, where the
government might again be placed in a position of either
exposing its sources or permitting potentially dangerous alien
to remain in the U.S.''\260\
---------------------------------------------------------------------------
\260\H.R. Rep. No. 108-724, part V, at 189 (2004).
---------------------------------------------------------------------------
Hearings
The Committee on the Judiciary's Subcommittee on
Immigration and Border Security held 1 day of hearings on H.R.
2278 on June 13, 2013. Testimony was received from Sheriff Paul
Babeu, Pinal County, AZ; Chris Crane, President of the National
Immigration and Customs Enforcement Council 118; Sherriff Sam
Page, Rockingham County, NC; Jamiel Shaw, The Committee to Pass
Jamiel's Law; The Honorable Randy Krantz, Commonwealth's
Attorney, Bedford County, VA; Sabine Durden, mother of Dominic
Durden; Karen Tumlin, National Immigration Law Center; Clarissa
Martinez De Castro, Director of Civic Engagement and
Immigration, National Council of La Raza.
Committee Consideration
On June 18, 2013, the Committee met in open session and
ordered the bill H.R. 2278 favorably reported, with an
amendment, by a vote of 20 to 15, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 2278.
1) A second-degree amendment to the Manager's Amendment
offered by Mr. Bachus that delayed the effective date of the
illegal entry and unlawful presence penalties for 1 year.
Defeated 10-24.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC)................................. X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)...............................
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 10 24
------------------------------------------------------------------------
2) A Manager's amendment offered by Mr. Goodlatte to
strengthen the enforcement of immigration laws by amending
various provisions in the bill. Passed 21-16.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC)................................. X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 21 16
------------------------------------------------------------------------
3) An amendment offered by Mr. Bachus to clarify that the
bill does not modify DHS's existing authority not to pursue
removal of an alien after a detainer is issued. Passed 17-7.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC)................................. X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................
Mr. Jeffries (NY)..............................
------------------------
Total...................................... 17 7
------------------------------------------------------------------------
4) An amendment offered by Mr. Conyers to strike Title I
(allowing for immigration law enforcement by States and
localities, among other things). Defeated 12-18.
ROLLCALL NO. 4
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC)................................. X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN).................................
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY)..............................
------------------------
Total...................................... 12 18
------------------------------------------------------------------------
5) An amendment offered by Mr. King to prohibit the
implementation of certain DHS memos regarding DHS's
prosecutorial discretion/administrative legalization policies
including Deferred Action for Childhood Arrivals. Passed 19-17.
ROLLCALL NO. 5
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC)................................. X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)...............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 19 17
------------------------------------------------------------------------
6) An amendment offered by Ms. Lofgren to strike section
102 of the bill (allowing State and localities to enforce
Federal, State and local immigration laws). Defeated 13-21.
ROLLCALL NO. 6
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC)................................. X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN).................................
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 13 21
------------------------------------------------------------------------
7) An amendment offered by Ms. Chu to eliminate the 287(g)
program and bar racial profiling. Defeated 16-20.
ROLLCALL NO. 7
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC).................................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC).................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 16 20
------------------------------------------------------------------------
8) An amendment offered by Mr. Watt to bar racial profiling
in the 287(g) program. Defeated 16-19.
ROLLCALL NO. 8
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC).................................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC).................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 16 19
------------------------------------------------------------------------
9) An amendment offered by Ms. Jackson Lee to strike
section 307 (amending the aggravated felony definition).
Defeated 16-20.
ROLLCALL NO. 9
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC).................................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 16 20
------------------------------------------------------------------------
10) An amendment offered by Mr. Richmond to eliminate
penalties for aliens smuggling not committed for profit.
Defeated 16-20.
ROLLCALL NO. 10
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC).................................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 16 20
------------------------------------------------------------------------
11) An amendment offered by Ms. Jackson Lee to strike
section 601 (amending the voluntary return statute). Defeated
15-19.
ROLLCALL NO. 11
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC).................................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 15 19
------------------------------------------------------------------------
12) A vote on final passage of H.R. 2278. Reported
favorably out of Committee 20-15.
ROLLCALL NO. 12
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC).................................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Amodei (NV)................................ X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
------------------------
Total...................................... 20 15
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises 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 this legislation does
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. 2278, 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 5, 2013.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2278, the
Strengthen and Fortify Enforcement Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 2278--Strengthen and Fortify Enforcement Act.
As ordered reported by the House Committee on the Judiciary
on June 18, 2013.
SUMMARY
H.R. 2278 would authorize the appropriation of funds for:
additional personnel and equipment for the Department of
Homeland Security (DHS); grants to state and local governments
to cover costs relating to inadmissible aliens; certain
activities of the Department of State; and other programs to
improve enforcement of U.S. immigration laws. The bill also
would increase penalties and fines for certain violations of
immigration law.
Assuming appropriation of the necessary amounts, CBO
estimates that implementing H.R. 2278 would cost $22.9 billion
over the 2014-2018 period. CBO estimates that enacting the bill
would increase direct spending by $8 million and increase
revenues by $17 million over the 2014-2023 period, thereby
decreasing the deficit through those changes by $9 million.
Because the legislation would affect direct spending and
revenues, pay-as-you-go procedures apply.
H.R. 2278 would impose intergovernmental and private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
on educational institutions by requiring background checks and
training under some circumstances. In addition, the bill would
impose intergovernmental mandates on state and local
governments by requiring information sharing. The bill would
impose other mandates on entities in the private sector that
include flight schools, educational accrediting associations,
foreign students, and other individuals. CBO estimates that the
aggregate costs of the mandates would fall below the annual
thresholds for intergovernmental and private-sector mandates
established in UMRA ($75 million and $150 million in 2013,
respectively, adjusted annually for inflation).
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 2278 is shown in the
following table. The costs of this legislation fall within
budget functions 150 (international affairs) and 750
(administration of justice).
BASIS OF ESTIMATE
For this estimate, CBO assumes that the bill will be
enacted near the end of 2013, that the necessary amounts will
be provided each year, and that spending will follow historical
spending patterns for activities related to the enforcement of
immigration laws.
Spending Subject to Appropriation
Additional DHS Personnel, Equipment, and Compensation. H.R.
2278 would direct Immigration and Customs Enforcement (ICE) in
DHS to hire the following additional personnel:
L5,000 deportation officers;
L700 support staff; and
L60 trial attorneys in the Office of the
Principal Legal Advisor.
The legislation would require ICE to provide handguns,
rifles, and tasers for its deportation officers and immigration
enforcement agents. The bill also would increase salaries and
benefits for immigration enforcement agents to match those paid
to deportation officers. Based on information from DHS about
the costs of equipment and additional personnel, including
salaries, benefits, training, and support activities, CBO
estimates that implementing those provisions would cost about
$5.4 billion (primarily for salaries) over the 2014-2018
period.
Grants to State and Local Governments. CBO estimates that
the grants to state and local governments authorized by H.R.
2278 would require additional appropriations of about $3.6
billion for the remainder of fiscal year 2014 and about $4.2
billion annually thereafter. We estimate that spending of those
appropriations would sum to $14.4 billion over the 2014-2018
period.
State Criminal Alien Assistance Program (SCAAP) Grants.
H.R. 2278 would authorize the appropriation of the necessary
amounts for fiscal year 2014 and subsequent years for the SCAAP
program, which makes grants to state and local governments to
cover the portion of salaries of state and local correctional
officers related to the incarceration of undocumented aliens
convicted of certain crimes. The legislation also would
transfer the program from the Department of Justice (DOJ) to
DHS and would expand it to cover costs of detaining aliens
charged with certain crimes.
In recent years, the amounts appropriated for SCAAP have
fallen far short of the amounts requested by states. In fiscal
year 2013, $250 million was appropriated for SCAAP although DOJ
anticipates that state and local governments will request about
$1.4 billion for costs incurred that year. Based on that
expected request, CBO estimates that appropriations of $1.2
billion would be needed for the remainder of fiscal year 2014
and around $1.6 billion annually thereafter would be required
to extend and expand the program as provided by H.R. 2278.
Grants for Incarceration and Transportation Costs. The bill
would permit states and localities to seek reimbursement from
DHS for any costs relating to the incarceration and
transportation of inadmissible or deportable aliens. The SCAAP
program currently covers only the costs of state and local
correctional officers, and we estimate that DHS would need
additional appropriations of $1.9 billion for the remainder of
fiscal year 2014 and $2.5 billion annually thereafter to
reimburse state and local governments for all incarceration and
transportation expenses. This estimate is based on a 2004 DOJ
study on the costs of operating state detention facilities
(including personnel, food, supplies, health care, and
utilities) that indicates that expenses for correctional
officers represent roughly 40 percent of total detention costs.
Grants for Equipment, Technology, Facilities, and Other
Costs. In addition, H.R. 2278 would authorize DHS to make
grants to certain state and local governments to procure
equipment, technology, facilities, and other items related to
investigating, arresting, detaining, and transporting
inadmissible or deportable aliens. Based on the costs of
similar programs that award grants for multiple purposes to
jurisdictions across the country (such as DOJ's Byrne program),
we estimate that DHS would require funding of $500 million in
2014 and $100 million annually thereafter to make grants to
hundreds of state and local entities that would be eligible for
such assistance under the bill's provisions. This estimate
assumes that most procurement costs would be initiated in 2014.
Department of State. H.R. 2278 would amend current law
authorizing the Department of State to collect and retain
surcharges on passports and immigrant visas to cover the costs
of certain border security functions. Under the bill, the
department would no longer have the authority to collect or
retain surcharges on passports, and the surcharge on immigrant
visas would instead be retained by ICE and spent on the Visa
Security Program.
Based on information from the Department of State, CBO
estimates that the department would be unable to raise other
consular fees to compensate for the lost collections under the
bill and the department would require additional appropriations
of $432 million in 2014. After adjusting for anticipated
inflation, CBO estimates that the department would spend about
$2.9 billion over the 2014-2018 period on border security
functions that are currently offset by fee collections,
assuming appropriation of the necessary amounts.
Expand Visa Security Program. H.R. 2278 would specifically
authorize the appropriation of $60 million for each of fiscal
years 2014 and 2015 for DHS to review visa applications at
designated overseas locations. We estimate that implementing
this provision would cost $120 million over the 2014-2016
period.
Other Programs. H.R. 2278 would direct DHS to carry out
several other activities, including a pilot program to test
electronic processing of deportation documents and an effort to
increase states' access to Federal program information to
identify inadmissible aliens. Based on the cost of similar
activities, CBO estimates that it would cost about $5 million
over the 2014-2015 period to carry out those provisions.
Direct Spending
H.R. 2278 would establish new criminal penalties for being
unlawfully present in the United States. Any collections of
criminal fines under this provision (which are recorded in the
budget as revenues and discussed below) would later be spent
from the Crime Victims Fund by DOJ. CBO estimates that spending
from the fund would increase by $9 million over the 2014-2023
period (about $1 million each year).
Revenues
CBO estimates that enacting H.R. 2278 would increase
collections of criminal and civil fines by $17 million over the
2014-2023 period. About half of the additional revenue would
result from changes made to the process for imposing civil
penalties for violations of voluntary departure orders. The
remainder would result from new criminal penalties imposed on
individuals who knowingly are unlawfully present in the United
States. Collections of criminal fines are recorded in the
budget as revenues, deposited in the Crime Victims Fund, and
subsequently spent without further appropriation (discussed
above under Direct Spending).
PAY-AS-YOU-GO CONSIDERATIONS
The Statutory Pay-As-You-Go Act of 2010 establishes budget-
reporting and enforcement procedures for legislation affecting
direct spending or revenues. The net changes in outlays and
revenues that are subject to those pay-as-you-go procedures are
shown in the following table.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
H.R. 2278 would impose intergovernmental and private-sector
mandates as defined in UMRA. CBO estimates that the aggregate
costs of the mandates would fall below the annual thresholds
for intergovernmental and private-sector mandates established
in UMRA ($75 million and $150 million in 2013, respectively,
adjusted annually for inflation).
Mandates that Apply to Both Public and Private Entities
The bill would require educational institutions that
participate in the Student and Exchange Visitor Program (SEVP)
to conduct background checks and training for individuals
serving as designated school officials and others who have been
granted access to the Student and Exchange Visitor Information
System (SEVIS). Information from the Department of Homeland
Security indicates that approximately 35,000 individuals would
be required to complete background checks in the first year of
implementation at a cost of $100 to $250 per background check.
Based on that information, CBO estimates that the cost for both
public and private entities to comply with this mandate would
total between $3.5 million and $8.8 million in the first year.
The cost in the following years would depend on the turnover of
designated school officials. Based on information from DHS, CBO
estimates that the cost for the online SEVP training would be
small.
In addition, educational institutions would be required to
report any changes to specific information about those foreign
students to SEVIS within 10 days and to have at least one
designated school official for every 200 students who have
nonimmigrant status. Currently, institutions have 21 days to
report any such change or modification and most schools meet
the requirement for the number of school officials. CBO
estimates that the cost to comply with those mandates would be
minimal.
Mandates that Apply to Public Entities Only
The bill would require state and local governments to
provide DHS information about apprehended individuals whom law
enforcement officials believe are inadmissible or deportable.
Governments would have to provide DHS the individual's name and
address, a physical description, details of apprehension,
identification documents and vehicle information (if
applicable), and a photo and fingerprints (if readily
available). Based on information from public entities, CBO
expects that the number of individuals about whom information
would need to be sent would be small. We also expect that
states would collect the required information during the normal
apprehension process and that the cost to transmit the data
would be minimal. The bill would require DHS to reimburse state
and local governments for the cost of providing the
information.
Mandates that Apply to Private Entities Only
Flight Schools. The bill would require flight schools in
the United States to be certified by the Federal Aviation
Administration (FAA) in order to participate in the SEVP
program and enroll foreign students. Foreign students
interested in studying in the United States must first be
admitted to a school or university before applying for a visa
at a U.S. embassy or consulate overseas. According to
information from the FAA and DHS, most flight schools
interested in participating in SEVP either already have an FAA
certification or are in the process of obtaining one.
Therefore, CBO expects that the cost to comply with this
mandate would be minimal.
Educational Accrediting Associations. In addition, the bill
would require an agency or association that accredits certain
higher-education institutions to notify DHS if an educational
institution is denied accreditation or if accreditation is
suspended, withdrawn, or terminated. CBO estimates that the
cost to comply with this notification requirement would be
small.
Individuals. The bill would impose additional mandates on
foreign students and other individuals in the private sector,
including the following:
LCertain students with F-visas who are
currently in the United States would be required to
attend accredited institutions;
LForeign-born individuals in the United States
would be prohibited from seeking judicial review if
their visa is revoked, which would eliminate an
existing right of action;
LIndividuals in the United States who have
been convicted of certain sex offenses would be
prohibited from petitioning for relatives to be granted
a U.S. visa.
On the basis of information from DHS, the Department of
State, and representatives of an education association about
the limited costs of complying with each of those mandates, CBO
expects that the total cost of compliance would be small.
Other Impacts
Assuming appropriation of the authorized and estimated
amounts, state and local governments would receive about $35
billion over the 2014-2023 period for costs related to
investigating, detaining, transporting, and incarcerating
inadmissible or deportable aliens.
ESTIMATE PREPARED BY:
Federal Costs: Mark Grabowicz (DHS)
Sunita D'Monte (Department of State)
Mark Booth (Revenues)
Impact on State, Local, and Tribal Governments: Melissa Merrell
Impact on the Private Sector: Paige Piper/Bach
ESTIMATE APPROVED BY:
Theresa Gullo
Deputy Assistant Director for Budget Analysis
Duplication of Federal Programs
No provision of H.R. 2278 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 2278 specifically directs
to be completed one specific rule making within the meaning of
5 U.S.C. 551.
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.
2278 improves and ensures enforcement of U.S. immigration law
enforcement within the interior of the United States.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2278 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title. Section 1 sets forth the short title
of the bill as the ``Strengthen and Fortify Enforcement Act''
or the ``SAFE Act.''
Sec. 2. Table of Contents. This section sets forth the
table of contents of the bill.
Title 1. Immigration Law Enforcement by States and Localities
Sec. 101. Definitions and Severability. Provides
definitions and severability should any portion of this Act be
held unconstitutional.
Sec. 102. Immigration Law Enforcement by States and
Localities. This section grants States and localities specific
Congressional authorization to enact and enforce their own
immigration laws as long as they are consistent with Federal
law. This section grants States and localities specific
Congressional authorization to assist in the enforcement of
Federal immigration law.
Sec. 103. Listing of Immigration Violators in the National
Crime Information Center database. This section mandates
inclusion of immigration status information in the NCIC
database.
Sec. 104. Technology Access. This section ensures that
States have access to Federal programs or technology directed
broadly at identifying inadmissible and deportable aliens.
Sec. 105. State and Local Law Enforcement Provision of
Information about Apprehended Aliens. This section mandates
that States and localities provide DHS in a timely manner with
information on each alien they apprehend who is believed to be
in violation of the immigration laws of the United States. The
section mandates an annual report by DHS on the information it
received from States and includes a provision for reimbursement
for reasonable costs States incur with respect to providing
such information.
Sec. 106. Financial Assistance to State and Local Police
Agencies that Assist in the Enforcement of Immigration Laws.
This section provides grants to States and local police
agencies for procurement of equipment, technology, facilities,
and other products that facilitate and are directly related to
investigating, apprehending, arresting, detaining, or
transporting aliens who have violated the immigration law of
the United States. Within 3 years, GAO shall conduct audits of
funds distributed to States and localities.
Sec. 107. Increased Federal Detention Space. This section
mandates the Federal Government to construct or acquire, in
addition to existing detention facilities for aliens, new
detention facilities for aliens detained pending removal or a
decision regarding such removal.
Sec. 108. Federal Custody of Inadmissible and Deportable
Aliens in the United States Apprehended by State or Local Law
Enforcement. Under this section, if a State or a locality
requests the Secretary of Homeland Security to take an alien
into Federal custody, the Secretary must take the alien in
custody not later than 48 hours after the detainer has been
issued following the conclusion of the State or locality
charging process or dismissal process, or if no state or
locality charging or dismissal process is required, the
Secretary must issue a detainer and take the alien into custody
not later than 48 hours after the alien is apprehended, to
determine whether the alien should be detained, placed into
removal proceedings, released, or removed (and also request
that the relevant State or local law enforcement agency
temporarily hold the alien in their custody or transport the
alien for transfer to Federal custody and provide reimbursement
accordingly).
Sec. 109. Training of State and Local Law Enforcement
Personnel Relating to the Enforcement of Immigration Laws. This
section requires DHS to create training manuals and guides for
the training of State and local officials in immigration laws
and procedures. DHS would be responsible for any costs
incurred.
Sec. 110. Immunity. This section provides that a law
enforcement officer of a State or local law enforcement agency
that is acting within the scope of the officer's official
duties shall be immune, to the same extent as a Federal law
enforcement officer, from personal liability arising out of
their assistance in the enforcement of the immigration laws.
Sec. 111. Criminal Alien Identification Program. This
section mandates DHS to continue to operate and implement a
program which: 1) identifies removable criminal aliens in
Federal and State correctional facilities; 2) ensures such
aliens are not released into the community; and 3) removes such
aliens from the United States after the completion of their
sentences. Additionally, this program is extended to all States
and requires participation by States that accept Federal funds
for the incarceration of aliens.
Section 111(b) allows detainers to be issued by State and
local law enforcement after a convicted criminal alien has
served their sentence. This provision simply allows State and
local law enforcement to issue post-sentence detainers for
criminal aliens and allows State and local law enforcement to
hold criminal aliens for a limited amount of time (14 days)
until they can be transferred to Federal law enforcement.
Sec. 112. Clarification of Congressional Intent. This
section amends section 287(g) of the Immigration and
Nationality Act (which allows DHS to enter into cooperative
agreements with States and localities to assist in the
enforcement of the immigration laws). It requires DHS to accept
a request from a State or locality to enter into a 287(g)
agreement absent a compelling reason not to. No limit on the
number of agreements under this subsection can be imposed. The
Secretary shall process requests for such agreements with all
due haste, and in no case shall take more than 90 days from the
date the request is made until the agreement is consummated.
Any such agreement under this section shall accommodate a
requesting State or political subdivision with respect to the
enforcement model of their choosing. This section clarifies
that no Federal program or technology directed broadly at
identifying unlawful and criminal aliens in jail substitutes
for such agreements, including those establishing a jail model,
and shall operate in addition to any agreement under this
section.
No agreement can be terminated absent a compelling reason
to do so. DHS shall provide a state or political subdivision
written notice of intent to terminate at least 180 days prior
to date of intended termination, and the notice shall fully
explain the grounds for termination, along with providing
evidence substantiating the Secretary's allegations and the
State or locality shall have the right to a hearing before an
administrative law judge. The agreement shall remain in full
effect during the course of any and all legal proceedings.
States may seek judicial relief if DHS terminates an agreement.
Sec. 113. State Criminal Alien Assistance Program (SCAAP).
This section provides reimbursements to states that house in
their jails unlawful aliens who are charged with or convicted
of criminal offenses. Additionally, this program moves the
SCAAP program to DHS as that is the agency charged with
identifying, detaining, and removing unlawful and criminal
aliens.
Sec. 114. State Violations of the Enforcement of
Immigration Laws. This section bars sanctuary cities, States
and localities from receiving SCAAP, law enforcement, and DHS
grants.
Sec. 115. Clarifying the Authority of ICE Detainers. This
section clarifies that States and localities must honor Federal
detainers. ICE detainers (requests to local law enforcement
agencies to detain named individuals for up to 48 hours after
they would otherwise be released in order to provide ICE an
opportunity to assume custody) have sometimes been interpreted
to not be binding on local authorities who receive the
detainers.
Title II. National Security
Sec. 201. Removal of, and Denial of Benefits to, Terrorist
Aliens. This section expands the class of aliens ineligible for
certain forms of relief (cancellation of removal, voluntary
departure) if they are aliens described in the INA's security-
related and/or terrorist grounds of removal. This section
extends the grounds that trigger a statutory bar to asylum and
withholding of removal based on terrorist activities. The
section also provides that a person convicted of an aggravated
felony is ineligible for voluntary departure.
As the Committee has previously found:
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.\261\ First World Trade Center bomber Ramzi
Yousef, the Blind Sheikh, and Mir Kansi, who killed two
in front of the 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.\262\
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\261\See 9-11 and Terrorist Travel: Staff Report of the National
Commission on Terrorist Attacks Upon the United States at 47, 99
(2004).
\262\H.R. Rep. No. 109-345, part I, at 67-68 (2005).
Sec. 202. Terrorist 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
Immigration and Nationality Act. At present, although the
definition excludes (among others) ``habitual drunkards'' and
gamblers, the definition does not expressly exclude aliens who
are terrorists or aiders or supporters of terrorism. This
section accordingly makes a number of changes to the good moral
character provision to exclude any alien who has at the time
been described in the terrorism and national security related
grounds of removal. The bill also clarifies that the good moral
character bar applies regardless of when a crime was classified
as an aggravated felony; clarifies that a finding on good moral
character is a discretionary finding and that an adverse
finding can be applied even if an express statutory bar does
not apply.
Sec. 203. Terrorist Bar to Naturalization. This provision
expressly bars the naturalization of terrorists and other
aliens described in the national security grounds of removal,
clarifies that a Federal district court nor the Secretary of
Homeland Security may consider a naturalization application
while any proceeding to determine inadmissibility,
deportability, or eligibility for lawful permanent residence
(i.e., revocation) is pending, clarifies that conditional
lawful permanent residents must have the condition removed
before applying for naturalization, establishes that review of
denied applications for naturalization must reflect the
required judicial deference to national security determinations
of the Secretary and certain other determinations related to
good moral character, and clarifies the availability of Federal
district court review for pending naturalization applications.
Sec. 204 Denaturalization for Terrorists. This provision
authorizes the Secretary of Homeland Security to revoke the
naturalization of terrorists.
Sec. 205. Use of 1986 IRCA Legalization Information for
National Security Purposes. This section amends the Immigration
Reform and Control Act of 1986's IRCA's legalization provisions
relating to the confidentiality of information provided by
applicants for the Special Agricultural Worker SAW program, and
applicants for adjustment of status. These provisions do not
currently authorize the use of information provided in the
legalization applications for terrorism or national security
cases or investigations, even if relevant to such cases.
Sec. 206 Background and Security Checks. This section
ensures that all necessary background and security checks be
completed before any benefit under the immigration laws is
provided to any person, whether by DHS, the Executive Office
for Immigration Review or judicially. The provision clarifies
that courts may not order the grant of benefits to any person
until the necessary checks have been completed. It also
provides for the investigation of suspected fraud before any
benefit is required to be granted.
Sec. 207 Technical Amendments to the Intelligence Reform
and Terrorism Prevention Act of 2004. Section 7209(d) of the
Intelligence Reform and Terrorism Prevention Act of 2004 (P.L.
108-454) assigns the Secretary of State responsibility for
securing transit passage areas at ports of entry within the
United States. This function more appropriately resides with
the Secretary of Homeland Security, who is generally
responsible for security at ports of entry within the United
States. This section amends section 7209(d) to assign this
function to the Secretary of Homeland Security. Additionally,
the section provides that systems deployed pursuant to the plan
to detect fraudulent documents must be compatible with those of
both DHS and DOS.
Title III. Removal of Criminal Aliens
Sec. 301. The Definition of Aggravated Felony. This section
modifies the definition of the term ``aggravated felony'' to
clarify that the term applies to offenses whether in violation
of Federal or State law and to offenses in foreign countries if
the term of imprisonment was completed within the last 15
years.
This section also adds manslaughter, certain harboring of
aliens crimes, felony convictions for marriage fraud, and
immigration-related entrepreneurship fraud, in addition to
offenses for improper entry and reentry where the alien was
sentenced to 1 year or more of incarceration, as aggravated
felonies. Further, it includes the acts of soliciting, aiding,
abetting, counseling, commanding, inducing, or procuring
another to commit one of the crimes listed already in the
definition, and clarifies that extrinsic evidence can be used
to establish the minority of a victim in cases of sexual abuse
of a minor.
As the Committee has previously found:
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.\263\ 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.\264\
---------------------------------------------------------------------------
\263\See U.S. v. Corona-Sanchez, 291 F. 3d 1208 (9th Cir. 2002) (en
banc).
\264\H.R. Rep. No. 109-345, part I, at 59.
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Sec. 302. Precluding Admissibility of Aliens Convicted of
Aggravated Felonies or Other Serious Offenses. Aggravated
felony conviction only renders an alien who was admitted to the
United States deportable. Therefore, an aggravated felony
conviction does not render an alien who entered without
inspection inadmissible under the law unless the conviction
also falls within one of the existing specified criminal
grounds of inadmissibility, such as a crime involving moral
turpitude, or a controlled substance or money laundering
offense. Certain additional grounds of deportability, such as
serious firearms offenses and crimes of domestic violence, are
not currently grounds of inadmissibility. This section
clarifies that conviction of an aggravated felony is an
independent ground of inadmissibility for those who entered
without inspection. It also adds inadmissibility grounds for
certain offenses that are currently only grounds of
deportability (e.g., certain firearms offenses and crimes of
domestic violence), making both positions consistent. Further,
this section amends the inadmissibility and deportability
grounds to allow for the removal of aliens who have committed
or been convicted of crimes relating to Social Security fraud
or the unlawful procurement of citizenship. The section also
clarifies that an alien convicted of an aggravated felony is
ineligible for a discretionary waiver of certain criminal
inadmissibility grounds.
Section 303. Espionage Clarification. Currently, the
inadmissibility provision governing espionage, sabotage,
unlawful exportation of technology and sensitive information,
and wishing to overthrow the United States Government, refers
only to future activities, not past activities. This section
modifies the provision to include both past and future
espionage and related activities.
Sec. 304. Prohibition of the Sale of Firearms to, or the
Possession of Firearms By, Certain Aliens. This section
clarifies existing criminal law provisions which bar sales and
transfers of firearms and munitions to unlawful aliens and
temporary visa holders so that there is consistency with
provisions in the INA.
Section 305. Uniform Statute of Limitations for Certain
Immigration, Naturalization, and Peonage Offenses. This section
provides a statute of limitations of 10 years for most
immigration crimes under the INA and title 18.
Sec. 306. Conforming Amendment to the Definition of
Racketeering Activity. This section is a conforming amendment
that makes all passport and visa fraud a racketeering activity
for purposes of Federal criminal law.
Sec. 307 Conforming Amendments for the Aggravated Felony
Definition. This section amends the definition of ``aggravated
felony'' so that it covers all penalties for passport, visa,
and immigration fraud under chapter 75 of title 18.
Sec. 308. Precluding Refugee or Asylee Adjustment of Status
for Aggravated Felons.
As the Committee has previously found:
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.\265\
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\265\Id. at 70.
Section 605 ends this discrepancy by barring asylees and
refugees convicted of aggravated felonies from adjustming
status to permanent residence.
Sec. 309. Inadmissibility, Deportability and Detention of
Drunk Drivers. This section makes a second or subsequent
conviction for driving while intoxicated grounds an aggravated
felony and requires the detention of unlaw aliens who have been
convicted of driving while intoxicated.
Sec. 310. Detention of Dangerous Aliens. This section
provides a statutory basis for DHS to detain as long as
necessary specified dangerous immigrants under orders of
removal who cannot be removed. It authorizes DHS to detain non-
removable aliens beyond 6 months, if the alien will be removed
in the reasonably foreseeable future; the alien would have been
removed but for the alien's refusal to make all reasonable
efforts to comply and cooperate with the Homeland Security
Secretary's efforts to remove them; the alien has a highly
contagious disease; release would have serious adverse foreign
policy consequences; release would threaten national security;
or release would threaten the safety of the community and the
alien either is an aggravated felon or has committed certain
other crimes. These aliens may be detained for periods of 6
months at a time, and the period of detention may be renewed.
Sec. 311. Grounds of Inadmissibility and Deportability for
Alien Gang Members. This section is designed to make alien
criminal gang members deportable from the United States and
inadmissible to the United States. The section includes a
definition of the term ``criminal gang''. An alien who is, or
was, a member of a criminal gang is inadmissible and
deportable. An alien who is, or was, a criminal gang member is
ineligible for asylum and temporary protected status.
Additionally, the relevant agencies can designate specified
gangs, membership in which would render an alien inadmissable/
deportable.
Sec. 312. Extension of Identity Theft Amendments. This
section clarifies the existing identify theft statute so that a
person who fraudulently uses identification documents can be
prosecuted, as long as they knew the documents were not their
own.
Sec. 313. Laundering of Monetary Instruments. Pursuant to
case law, current laundering statutes required proof that
transportation of laundered funds was ``designed in whole or in
part to conceal or disguise the nature, the location, the
source, the ownership, or the control'' of the funds. This
provision clarifies current law so the Government is not
required to prove that a defendant knew the purpose and plan
behind the transportation and closes the loophole allowing
transport of ill-gotten gains with impunity. Additionally, this
section adds 18 U.S.C. sec. 1590 (relating to trafficking with
respect to peonage, slavery, involuntary servitude, or forced
labor) and section 274(a) of the INA (relating to bringing in
and harboring certain aliens) as specified unlawful activity
under 18 U.S.C. sec. 1956(c)(7)(D).
Sec. 314. Increased Criminal Penalties Relating to Alien
Smuggling and Related Offenses. This section clarifies the
definition of alien smuggling crimes and creates new charges
for transporting or harboring aliens en route to illegally
entering the United States. The proposal dispenses with the
current penalty scheme for alien smuggling and provides
increasing penalties depending on whether the offense was
committed for profit and, if so, based upon the number of prior
convictions for alien smuggling, and the level of risk or harm
to victims. The section also provides for criminal penalties
for possession of firearms during or in relation to an alien
smuggling crime.
Sec. 315. Penalties for Illegal Entry or Presence. The
section makes illegal presence a Federal misdemeanor.
Sec. 316. Illegal Re-entry. This section provides
strengthened penalties for aliens convicted of illegal reentry
who have a serious criminal record. In addition, this section
makes a narrow affirmative defense available to aliens
previously denied admission and removed who have nevertheless
complied with the governing laws and regulations relating to
admission.
Sec. 317. Reform of Passport, Visa, and Immigration Fraud
Offenses. This section revises chapter 75 of title 18 of the
United States Code to clarify and improve the existing criminal
provisions governing passport, visa, and immigration fraud.
LIssuance without authority: The section
revises section 1541 of title 18 of the United States
Code to clarify the existing criminal provisions
governing passport issuance and related fraud. The
section sets a 15-year maximum penalty for any such
conviction.
LFalse statement in an application for a
passport: The section revises section 1542 of title 18
of the United States Code to clarify the existing
criminal provisions governing false statements in
passport and related fraud. This section sets a 15-year
maximum penalty for any such conviction.
LForgery and unlawful production of a
passport: The section revises section 1543 of title 18
of the United States Code to clarify the existing
criminal provisions governing false statements in
passport and related fraud. This section sets a 15-year
maximum penalty for any such conviction.
LMisuse of a passport: The section revises
section 1544 of title 18 of the United States Code to
clarify the existing criminal provisions governing
false statements in passport and related fraud. This
section sets a 15-year maximum penalty for any such.
LSchemes to defraud aliens: The section makes
it a Federal crime to pursue immigration schemes
designed to defraud aliens. Under existing law, it is
difficult for Federal prosecutors to bring charges
against those who defraud immigrants in connection with
Federal immigration benefits but who do not actually
file applications or petitions with Federal immigration
authorities. The provision rectifies this problem by
making it a Federal crime--punishable up to 15 years--
to defraud an alien in connection with an immigration
benefit, regardless of whether any benefit is actually
sought or received.
LImmigration and visa fraud: The section
simplifies and strengthens the existing penalties
governing immigration and visa fraud. The revised
provision (1) expands the kinds of immigration fraud
subject to prosecution, (2) raises the maximum sentence
for base offenses to 15 years, and (3) adds a new
offense prohibiting trafficking in immigration
documents that is punishable by a mandatory minimum
sentence of 2 years.
LAttempts and conspiracies: The section
clarifies that any attempt or conspiracy to violate any
offense within chapter 75 (passport and visa offenses)
is also an offense subject to equal punishment.
LAlternative penalties for certain offenses:
The section provides a sentencing enhancement for
offenses under chapter 75 that facilitate international
terrorism or the commission of other felonies and
heightens maximum penalties.
Sec. 318. Forfeiture. The section provides for civil
forfeiture regarding chapter 75 crimes.
Sec. 319. Expedited Removal for Aliens Inadmissible on
Criminal or Security Grounds.
The section authorizes the Secretary to use expedited
removal proceedings with respect to an alien inadmissible on
criminal grounds who: (1) has not been admitted or paroled; (2)
has not been found to have a credible fear of persecution; and
(3) is not eligible for a waiver of inadmissibility or relief
from removal.
Sec. 320. Increased Penalties Barring the Admission of
Convicted Sex Offenders Failing to Register and Requiring
Deportation of Sex Offenders Failing to Register. The section
renders an alien inadmissable or deportable where the alien is
a convicted sex offender who has failed to register as required
by law.
Sec. 321. Protecting Immigrants from Convicted Sex
Offenders. The section bars convicted sex offenders from
petitioning for relatives for permanent residency status under
Section 245(a) of the INA unless DHS determines the petitioner
poses no risk to the alien with respect to whom a petition is
filed. The provision also applies to fiancee visa applicants.
Sec. 322. Clarification to Crimes of Violence and Crimes
Involving Moral Turpitude. The section clarifies that
Immigration Judges may consider extrinsic evidence in
determining whether a crime is a crime or violence or a crime
involving moral turpitude.
Sec. 323. Penalties for Failure to Obey Removal Orders. The
section extends to inadmissible aliens ordered removed the
criminal penalties for deportable aliens ordered removed who
fail to deport.
Sec. 324 Pardons. Under the INA, when aliens are pardoned
for some crimes, the immigration consequences are removed, but
not for other crimes. This provision provides consistent
treatment of all pardons, removing the immigration consequences
of the crimes.
Title IV. Visa Security
Sec. 401. Cancellation of Additional Visas. This section
amends the INA to clarify that all visas held by an alien are
void if that alien has overstayed any such visas by remaining
in the U.S. beyond the period of authorized stay, or otherwise
violated any of the terms of the nonimmigrant classification in
which the alien was admitted.
Sec. 402. Visa Information Sharing. This section amends the
INA to provide the Federal Government with additional
flexibility to release certain data in visa records, such as
biographic information, to foreign governments. Current law
provides that visa records relating to the issuance or refusal
of visas to enter the United States must be considered
confidential and may be used only for specified purposes--
namely, the formulation, amendment, administration or
enforcement of the immigration, nationality, and other laws of
the United States--with certain limited exceptions. The section
would clarify that DOS may share visa records with a foreign
government on a case-by-case basis for the purpose of
determining removability or eligibility for a visa, admission,
or other immigration benefits or when the sharing is in the
U.S. national interest. In addition, the section ensures that
visa revocation records can be disclosed pursuant to the same
standards as records concerning visa issuance and refusal.
Sec. 403. Restricting Waiver of Visa Interviews. The
section ensures that the ``national interest'' waiver authority
for required visa interviews (i) can be exercised only in
consultation with the Secretary of Homeland Security; (2)
cannot be used to waive interviews for persons of national
security concern or where such waiver would create a high risk
of degradation of visa program integrity; and (3) cannot be
based on mere travel facilitation or reducing the workload of
consular officers.
Sec. 404. Authorizing the Department of State to Not
Interview Certain Ineligible Visa Applicants. Currently, the
State Department must conduct in-person interviews of
nonimmigrant visa applicants even if it is evident to the
consular officer, based solely on the content of the
individual's application, that the applicant is ineligible for
a visa. In order to avoid wasting limited consular resources
and making a clearly ineligible visa applicant travel a
potentially long distance to the consulate, this provisions
clarifies that DOS does not have to conduct interviews of visa
applicants in these instances.
Sec. 405. Visa Refusal and Revocation. This section
authorizes the Secretary of Homeland Security and the Secretary
of State to refuse or revoke visas to aliens if in the security
interests of the United States and provides that there is no
judicial review of visa revocations (including of admitted
aliens).
Sec. 406. Funding for the Visa Security Program. This
section requires DOS to impose surcharges on immigrant use fees
to support enhanced border security through funding of the VSP
and repay funds appropriated for this purpose.
Sec. 407. Expeditious Expansion of Visa Security Program to
High-Risk Posts. This section provides for the expansion of the
VSP to the top 30 high-risk posts.
Sec. 408. Expedited Clearance and Placement of the
Department of Homeland Security Personnel at Overseas Embassies
and Consular Posts. The section provides expedited clearance
and placement of DOS personnel at overseas embassies and
consular posts.
Sec. 409. Accreditation Requirements. This section requires
that colleges and universities be accredited in order to host
foreign students seeking to study in the U.S. It also expands
the current definition of ``accredited language training
program,'' requiring that all such institutions be accredited
by an accrediting agency recognized by the Secretary of
Education. And it gives the Secretary of Homeland Security the
discretion to require accreditation of other academic
institutions (except for seminaries or other religious
institutions) if 1) the institution is not already required to
be accredited and 2) an appropriate accrediting agency
recognized by the Secretary of Education is able to provide
such accreditation. The Secretary of Homeland Security can
waive the accreditation requirement if a college, university or
language training program is otherwise in compliance with the
requirements of the INA and is making a good faith effort to
satisfy the accreditation requirement. It provides that during
the 3-year period beginning on the date of enactment, foreign
students can continue to receive student visas to attend an
unaccredited college or university so long as such institution
(1) is certified by the Student and Exchange Visitor Program
(SEVP--the DHS program that manages schools and foreign
students), (2) submits an application for accreditation within
6 months after the date of enactment and (3) continues to
comply with the applicable accrediting requirements of the
accrediting agency.
Sec. 410. Visa Fraud. This section allows the Secretary of
Homeland Security to suspend SEVP access and participation if
the Secretary has reasonable suspicion that the owner or SEVP
designee at an educational institution has committed or
attempted to commit fraud relating to SEVP. This section
prohibits a person convicted of a fraud offense relating to
SEVP from ever being able to have an ownership or managerial
role in an educational institution that enrolls foreign
students holding F or M visas.
Sec. 411. Background Checks. This section requires that an
educational institution's individuals designated to access
SEVIS (the foreign student tracking system) to be U.S. citizens
or lawful permanent residents and within 3 years have undergone
a background check and successfully complete SEVIS training.
This section also authorizes the Secretary of Homeland Security
to collect a fee to cover the cost of the background check.
Sec. 412. Number of Designated School Officials. This
section allows a school the flexibility to permit as many
Designated School Officials (DSO) to place information into the
SEVIS system as necessary, in addition to the required
Principal Designated School Official. However the school must
not have fewer DSOs than one for every 200 student visa
holders.
Sec. 413. Reporting Requirement. This section requires
schools to report in SEVIS any changes in required information
regarding foreign students within 10 days. Currently, a school
has 21 days to report any such change or modification.
Sec. 414. Flight Schools Not Certified by FAA. This section
requires that in order to sponsor students for F or M visas,
flight schools in the U.S. must be certified by the Federal
Aviation Administration. The section also allows a waiver of
this requirement for 5 years in order to give flight schools
time to become certified as long as a flight school is SEVP
certified, submits a certification application within 1 year of
enactment and continues to progress toward certification.
Sec. 415. Revocation of Accreditation. This section
requires that an accrediting agency or association notify the
Secretary of Homeland Security if an educational institution is
denied accreditation or if accreditation is suspended withdrawn
or terminated. The Secretary shall immediately terminate SEVIS
access.
Sec. 416. Report on Risk Assessment. This section requires
the Secretary of Homeland Security to submit to Congress a
report on a risk assessment strategy to be deployed by the
Secretary to identify, investigate and take action against
schools and school officials committing or facilitating student
visa fraud.
Sec. 417. Implementation of GAO Recommendations. This
section requires the Secretary of Homeland Security to submit
to Congress a plan for implementation of several fraud and
misuse-related recommendations by GAO.
Sec. 418. Implementation of SEVIS II. This section requires
the Secretary of Homeland Security to implement SEVIS II, the
updated foreign student-tracking database, within 2 years of
the date of enactment.
Sec. 419. Definitions.
Title V. Aid to U.S. Immigration and Customs Enforcement Officers
Sec. 501. ICE Immigration Enforcement Agents. The section
authorizes all ICE immigration enforcement agents and
deportation officers while they are enforcing Federal
immigration laws to make arrests for immigration violations,
Federal felonies, Federal criminal offenses for bringing in and
harboring aliens, and offenses against the U.S., and to carry
firearms.
Sec. 502. ICE Detention Enforcement Officers. The section
provides for additional ICE detention officers.
Sec. 503. Ensuring Safety of ICE Officers and Agents. The
section requires that ICE immigration enforcement agents and
deportation officers be issued body armor and weapons.
Sec. 504. ICE Advisory Council. The section establishes an
ICE Advisory Council, including members appointed by the ICE
officers' and prosecutors' unions, to advise Congress and ICE
on improving immigration enforcement efforts, the resource
needs of ICE personnel, and the effectiveness of ICE
enforcement policies.
Sec. 505. Pilot Program for Electronic Field Processing.
This provision establishes a pilot program allowing ICE agents
to electronically process and serve charging documents and
detainers.
Sec. 506. Additional ICE Deportation Officers and Support
Staff. This provision authorizes the hiring of additional ICE
agents.
Sec. 507. Additional ICE Prosecutors. The provision
authorizes the hiring of additional ICE prosecutors.
Title VI. Miscellaneous Enforcement Provisions
Sec. 601. Encouraging Aliens to Depart Voluntarily.
As the Committee has previously found:
``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.\266\
---------------------------------------------------------------------------
\266\Id. at 64.
This section strengthens the requirements for voluntary
departure in lieu of formal removal. It adds violators of
security and related grounds of removal to the class of aliens
ineligible for voluntary departure and clarifies the
ineligibility category by including all those ``described in''
(rather than ``deportable under'') all prohibited categories.
The section also allows for less time to complete departure
following a grant of voluntary departure at the conclusion of
removal proceedings. The section requires a bond to ensure
departure. The current penalties for an alien's failure to
timely depart after agreeing to voluntary departure are
inadequate to ensure the alien's departure. This section
strengthens the penalties an alien will be subject to for
failing to timely depart the United States. This section
restricts the ability of an alien to reopen their case or
receive a future immigration benefit if the alien fails to
timely depart.
Sec. 602. Deterring Aliens Ordered Removed from Remaining
in the United States Unlawfully.
As the Committee has previously found:
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.\267\
---------------------------------------------------------------------------
\267\Id. at 65.
Section 602 ``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.''\268\ The section amends the
bar on admissibility for aliens removed from the United States
to ``not later than'' 5 years (or 10, or 20, depending on the
circumstance) after the date of removal, in contrast to the
current law which bars aliens seeking admission ``within'' 5
years (or 10, or 20) of the date of removal. This closes a
loophole allowing removed aliens to avoid the bar on reentry by
unlawfully remaining in the United States. The language also
renders any alien who absconds after receiving a final order of
removal ineligible for future discretionary immigration relief
until 10 years after the alien leaves the United States (except
in narrow circumstances).
---------------------------------------------------------------------------
\268\Id.
---------------------------------------------------------------------------
603. Reinstatement of Removal Orders. As the Committee has
previously found:
[T]he Ninth Circuit has . . . held that aliens are
entitled to have their reinstatement cases adjudicated
by immigration judges.\269\ 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. . . .\270\
---------------------------------------------------------------------------
\269\See Morales-Izquierdo v. Ashcroft, 388 F. 3d 1299 (9th Cir.
2004).
\270\H.R. Rep. No. 109-345, part I, at 77.
---------------------------------------------------------------------------
This section ``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.''\271\ It provides that if aliens with a
prior removal order against them have subsequently illegally
reentered the United States, the prior removal order is
reinstated without the need for proceedings before an
Immigration Judge. Judicial review of the reinstatement is
limited, and the court does not have jurisdiction to review the
original order of removal.
---------------------------------------------------------------------------
\271\Id.
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Sec. 604. Clarification with Respect to Definition of
Admission. This provision clarifies that adjustment of status
to legal permanent residency is an admission under the INA.
Sec. 605. Reports to Congress on the Exercise and Abuse of
Prosecutorial Discretion. The section requires that a report be
made to Congress each year on the number of inadmissible and
removable aliens encountered and not processed for removal or
granted immigration benefits under ``prosecutorial
discretion.'' Criminal histories of all such aliens must be
provided.
Sec. 606. Waiver of Federal Laws with Respect to Border
Security Actions on Department of the Interior and Department
of Agriculture Lands. This section prohibits the Department of
Interior and Department of Agriculture from denying CBP agents
access to certain Federal lands within 100 miles of an
international land border, for purposes of search and rescue
operations and preventing drug and human smuggling and illegal
border crossings.
Sec. 607. Biometric Entry and Exit Data System.
Various laws requiring exit controls have been implemented
by Congress since 1996. Section 110 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 required the
Attorney General (now the DHS Secretary) to create, within 2
years of the date of enactment, an automated system to track
the entry and exit of all travelers to and from the United
States. In 2000, two separate laws were passed, one that
reaffirmed an exit system and one that tied it to the Visa
Waiver Program. In 2001, the USA Patriot Act again required an
exit system, as did legislation in 2002. In 2003, DHS initiated
the US-VISIT program to develop a comprehensive entry system to
collect biometric data from aliens traveling through United
States ports of entry. In 2004, US-VISIT initiated the first
step of this program by collecting biometric data on aliens
entering the United States at 115 airports and 14
seaports.\272\ The Intelligence Reform and Terrorism Prevention
Act of 2004 required the Secretary of Homeland Security to
develop a plan to accelerate full implementation of an
automated biometric entry and exit data system that matches
available information provided by foreign nationals upon their
arrival in and departure from the United States.\273\ Beginning
in 2004, and until 2007, pilot programs for exit were
undertaken at the demand of Congress.\274\ But to date, an exit
system has never been implemented.
---------------------------------------------------------------------------
\272\See Government Accountability Office, GAO-13-683, Additional
Actions Needed to Assess DHS's Data and Improve Planning for a
Biometric Air Exit Program at 10-11 (2013).
\273\Id.
\274\See Janice Kephart, Biometric Exit Tracking: A Feasible and
Cost-Effective Solution for Foreign Visitors Traveling by Air and Sea,
2013 Center for Immigration Studies at 4.
---------------------------------------------------------------------------
While many people who are illegally present in the U.S.
entered the country in violation of law, roughly 40 percent
first arrived in the U.S. lawfully--with, say a tourist visa or
a student visa, or in a situation where no visa was required--
and then overstayed their welcome. An effective exit tracking
program would help identify all of those who arrived lawfully
but remain in the U.S. in violation of the law.
To compound matters, terrorist overstays are also a
significant issue which under the current system can be tracked
down only through difficult, tedious, and time-consuming
investigations. Recent terrorist overstays include Hosan Smadi,
a Jordanian national who plotted to blow up a Dallas skyscraper
in 2009, and Amine El Khalifi, a Moroccan whose visa expired in
1999, who was arrested in an attempt to bomb the U.S. Capitol
in 2012.
Little has changed on progress to implement an exit program
since the 9/11 Commission's staff found in its ``9/11 and
Terrorist Travel'' monograph:
On August 23, 2001, the CIA provided biographical
identification information about two of the hijackers
to border and law enforcement authorities. The CIA and
FBI considered the case important, but there was no way
of knowing whether either hijacker was still in the
country, because a border exit system Congress
authorized in 1996 was never implemented.\275\
---------------------------------------------------------------------------
\275\National Commission on Terrorist Attacks Upon the United
States, 9/11 and Terrorist Travel 4 (2004).
Not having an exit system in place led the 9/11
commissioners to conclude in 2011 that our border system must
include data about who is leaving and when, with the following
---------------------------------------------------------------------------
recommendation:
The Department of Homeland Security, properly supported
by the Congress, 0should complete, as quickly as
possible, a biometric entry-exit screening system. As
important as it is to know when foreign nationals
arrive, it is also important to know when they leave.
Full deployment of the biometric exit should be a high
priority. Such a capability would have assisted law
enforcement and intelligence officials in August and
September 2001 in conducting a search for two of the 9/
11 hijackers that were in the United States on expired
visas.\276\
---------------------------------------------------------------------------
\276\Lee Hamilton & Thomas Kean, Tenth Anniversary Report Card: The
Status of the 9/11 Commission Recommendations, 2011 Bipartisan Policy
Center.
More recent experiences with terrorist threats and attempts
reiterates the commissioners' point. In the wake of the
Christmas Bomb Plot and the near-getaway by would-be Times
Square bomber Faisal Shahzad (who had already boarded a flight
to leave the United States when he was arrested), we are once
again reminded that a biometric exit system would be useful to
prevent a terrorist from fooling the system and getting away.
Instant, verified overstay data would give CBP and DOS
better information to determine who should be allowed to visit
the United States again, and ICE better information about who
has illegally overstayed. Exit data would also support all
current customers of US-VISIT biometric data, and may even give
Joint Terrorism Task Forces the ability to curtail terrorist
absconders who slip out of the United States unnoticed based on
verified watch list hits. For instance, the Times Square bomber
was on the jetway when he was apprehended, having bypassed TSA
security.
There have been discussions, policy platforms, even pilot
programs, but to this day, despite statutory mandates, we do
not have a functioning exit system. There aren't even any
operating pilot programs. Conversely, US-VISIT's entry program
was able to get up and running within a few years after 9/11.
Thirteen years after the attack on September 11, one of the
few unfilled recommendations of the 9/11 Commission is the
failure of DHS to establish a biometric exit system. This
section requires that no later than 2 years after the date of
enactment, DHS shall establish the biometric entry and exit
system at each port of entry in the United States as required
by the Intelligence Reform and Terrorism Prevention Act of
2004.
Sec. 608. Certain Activities Restricted. This section
rescinds internal memoranda issued by DHS on prosecutorial
discretion and Deferred Action for Childhood Arrivals.
Sec. 609 Border Patrol Mobile and Rapid Response Teams.
This section requires the deployment of ICE mobile rapid
response teams to achieve the objectives of making emergency
assistance available, ensuring and facilitating quick
deployment as needed, and providing emergency assistance to
those who reside and work close to the border.
610. GAO Study on Deaths in Custody. This section requires
a report on the causes of death of individuals who die while in
ICE custody.
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):
SECTION 534 OF TITLE 28, UNITED STATES CODE
Sec. 534. Acquisition, preservation, and exchange of identification
records and information; appointment of officials
(a) The Attorney General shall--
(1) * * *
* * * * * * *
(3) acquire, collect, classify, and preserve any
information which would assist in the location of any
missing person (including an unemancipated person as
defined by the laws of the place of residence of such
person) and provide confirmation as to any entry for
such a person to the parent, legal guardian, or next of
kin of that person (and the Attorney General may
acquire, collect, classify, and preserve such
information from such parent, guardian, or next of
kin); [and]
(4) acquire, collect, classify, and preserve
records of violations by aliens of the immigration laws
of the United States, regardless of whether any such
alien has received notice of the violation or whether
sufficient identifying information is available with
respect to any such alien or whether any such alien has
already been removed from the United States; and
[(4)] (5) exchange such records and information
with, and for the official use of, authorized officials
of the Federal Government, including the United States
Sentencing Commission, the States, including State
sentencing commissions, Indian tribes, cities, and
penal and other institutions.
----------
IMMIGRATION AND NATIONALITY ACT
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act, divided into titles, chapters, and sections according to
the following table of contents, may be cited as the
``Immigration and Nationality Act''.
TABLE OF CONTENTS
* * * * * * *
Title II--Immigration
* * * * * * *
chapter 2--qualifications for admission of aliens; travel control of
citizens and aliens
* * * * * * *
220. Designation.
* * * * * * *
chapter 4--inspection, apprehension, examination, exclusion, and removal
* * * * * * *
Sec. 240D. Custody of inadmissible and deportable aliens present in the
United States.
* * * * * * *
chapter 5--adjustment and change of status
* * * * * * *
[Sec. 249. Record of admission for permanent residence in the case of
certain aliens who entered prior to July 1, 1924, or January
1, 1972.]
Sec. 249. Record of admission for permanent residence in the case of
certain aliens who entered the United States prior to January
1, 1972.
* * * * * * *
chapter 8--general penalty provisions
* * * * * * *
[Sec. 274. Bringing in and harboring certain aliens.]
Sec. 274. Alien smuggling and related offenses.
* * * * * * *
[Sec. 275. Entry of alien at improper time or place; misrepresentation
and concealment of facts.]
Sec. 275. Illegal entry or presence.
* * * * * * *
Title III--Nationality and Naturalization
* * * * * * *
chapter 4--miscellaneous
* * * * * * *
Sec. 362. Construction.
TITLE I--GENERAL
definitions
Section 101. (a) As used in this Act--
(1) * * *
* * * * * * *
(13)(A) The terms ``admission'' and ``admitted'' mean, with
respect to an alien, the lawful entry of the alien into the
United States after inspection and authorization by an
immigration officer. An alien's adjustment of status to that of
lawful permanent resident status under any provision of this
Act, or under any other provision of law, shall be considered
an ``admission'' for any purpose under this Act, even if the
adjustment of status occurred while the alien was present in
the United States.
* * * * * * *
(15) The term ``immigrant'' means every alien except an
alien who is within one of the following classes of
nonimmigrant aliens--
(A) * * *
* * * * * * *
(F)(i) an alien having a residence in a foreign
country which he has no intention of abandoning, who is
a bona fide student qualified to pursue a full course
of study and who seeks to enter the United States
temporarily and solely for the purpose of pursuing such
a course of study consistent with [section 214(l) at an
established college, university, seminary,
conservatory, academic high school, elementary school,
or other academic institution or in an accredited
language training program in the United States] section
214(m) at an accredited college, university, or
language training program, or at an established
seminary, conservatory, academic high school,
elementary school, or other academic institution in the
United States, particularly designated by him and
approved by the [Attorney General] Secretary of
Homeland Security after consultation with the Secretary
of Education, which institution or place of study shall
have agreed to report to the [Attorney General]
Secretary of Homeland Security the termination of
attendance of each nonimmigrant student, [and if any
such institution of learning or place of study fails to
make reports promptly the approval shall be withdrawn,]
and if any such institution of learning of place of
study fails to make reports promptly or fails to comply
with any accreditation requirement (including deadlines
for submitting accreditation applications or obtaining
accreditation) the approval shall be withdrawn, (ii)
the alien spouse and minor children of any alien
described in clause (i) if accompanying or following to
join such an alien, and (iii) an alien who is a
national of Canada or Mexico, who maintains actual
residence and place of abode in the country of
nationality, who is described in clause (i) except that
the alien's qualifications for and actual course of
study may be full or part-time, and who commutes to the
United States institution or place of study from Canada
or Mexico;
* * * * * * *
(K) subject to subsections (d) and (p) of section
214, an alien who--
(i) is the fiancee or fiance of a citizen
of the United States (other than a citizen
described in section [204(a)(1)(A)(viii)(I))]
204(a)(1)(A)(viii)) and who seeks to enter the
United States solely to conclude a valid
marriage with the petitioner within ninety days
after admission;
(ii) has concluded a valid marriage with a
citizen of the United States (other than a
citizen described in section
[204(a)(1)(A)(viii)(I))] 204(a)(1)(A)(viii))
who is the petitioner, is the beneficiary of a
petition to accord a status under section
201(b)(2)(A)(i) that was filed under section
204 by the petitioner, and seeks to enter the
United States to await the approval of such
petition and the availability to the alien of
an immigrant visa; or
* * * * * * *
(43) [The term ``aggravated felony'' means--]
Notwithstanding any other provision of law, the term
``aggravated felony'' applies to an offense described in this
paragraph, whether in violation of Federal or State law, or in
violation of the law of a foreign country for which the term of
imprisonment was completed within the previous 15 years, even
if the length of the term of imprisonment for the offense is
based on recidivist or other enhancements and regardless of
whether the conviction was entered before, on, or after
September 30, 1996, and means--
(A) [murder, rape, or sexual abuse of a minor;]
murder, manslaughter, homicide, rape (whether the
victim was conscious or unconscious), or any offense of
a sexual nature involving a victim under the age of 18
years;
* * * * * * *
(F) a crime of violence (as defined in section 16
of title 18, United States Code, but not including a
purely political offense) for which the term of
imprisonment [at least one year;] is at least one year,
except that if the conviction records do not
conclusively establish whether a crime constitutes a
crime of violence, the Attorney General may consider
other evidence related to the conviction that clearly
establishes that the conduct for which the alien was
engaged constitutes a crime of violence;
* * * * * * *
(I) an offense described in section 2251, 2251A,
[or 2252] 2252, or 2252A of title 18, United States
Code (relating to child pornography);
* * * * * * *
(N) an offense described in [paragraph (1)(A) or
(2) of] section 274(a) (relating to alien smuggling),
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
276 for which the term of imprisonment is at least 1
year;
(P) an offense [(i) which either is falsely making,
forging, counterfeiting, mutilating, or altering a
passport or instrument in violation of section 1543 of
title 18, United States Code, or is described in
section 1546(a) of such title (relating to document
fraud) and (ii)] which is described in any section of
chapter 75 of title 18, United States Code, for which
the term of imprisonment imposed (regardless of any
suspension of such imprisonment) is at least 12 months,
except in the case of a first offense (i) that is not
described in section 1548 of such title (relating to
increased penalties), and (ii) 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;
* * * * * * *
(T) an offense relating to a failure to appear
before a court pursuant to a court order to answer to
or dispose of a charge of a felony for which a sentence
of 2 years' imprisonment or more may be imposed; [and]
(U) [an attempt or conspiracy to commit an offense
described in this paragraph.] attempting or conspiring
to commit an offense described in this paragraph, or
aiding, abetting, counseling, procuring, commanding,
inducing, or soliciting the commission of such an
offense; and
(V) a second or subsequent conviction for driving
while intoxicated (including a conviction for driving
while under the influence of or impaired by alcohol or
drugs) without regard to whether the conviction is
classified as a misdemeanor or felony under State law.
[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.]
* * * * * * *
[(52) The term ``accredited language training program''
means a language training program that is accredited by an
accrediting agency recognized by the Secretary of Education.]
(52) Except as provided in section 214(m)(4), the term
``accredited college, university, or language training
program'' means a college, university, or language training
program that is accredited by an accrediting agency recognized
by the Secretary of Education.
(53)(A) The term ``criminal gang'' means an ongoing group,
club, organization, or association of 5 or more persons that
has as one of its primary purposes the commission of 1 or more
of the following criminal offenses and the members of which
engage, or have engaged within the past 5 years, in a
continuing series of such offenses, or that has been designated
as a criminal gang by the Secretary of Homeland Security, in
consultation with the Attorney General, as meeting these
criteria. The offenses described, whether in violation of
Federal or State law or foreign law and regardless of whether
the offenses occurred before, on, or after the date of the
enactment of this paragraph, are the following:
(i) A ``felony drug offense'' (as defined in
section 102 of the Controlled Substances Act (21 U.S.C.
802)).
(ii) An offense 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).
(iii) A crime of violence (as defined in section 16
of title 18, United States Code).
(iv) A crime involving obstruction of justice,
tampering with or retaliating against a witness,
victim, or informant, or burglary.
(v) Any conduct punishable under sections 1028 and
1029 of title 18, United States Code (relating to fraud
and related activity in connection with identification
documents or access devices), sections 1581 through
1594 of such title (relating to peonage, slavery and
trafficking in persons), 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).
(vi) A conspiracy to commit an offense described in
clauses (i) through (v).
(B) Notwithstanding any other provision of law (including
any effective date), the term applies regardless of whether the
conduct occurred before, on, or after the date of the enactment
of this paragraph.
(54) The term ``pardon'' means a full and unconditional
pardon granted by the President of the United States, Governor
of any of the several States or constitutionally recognized
body.
* * * * * * *
(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
Attorney General determines to have been at any time an
alien described in section 212(a)(3) or 237(a)(4),
which determination may be based upon any relevant
information or evidence, including classified,
sensitive, or national security information;
* * * * * * *
(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, except
that the Secretary of Homeland Security or Attorney
General may, in the unreviewable discretion of the
Secretary or Attorney General, determine that this
paragraph shall not apply in the case of a single
aggravated felony conviction (other than murder,
manslaughter, homicide, rape, or any sex offense when
the victim of such sex offense was a minor) for which
completion of the term of imprisonment or the sentence
(whichever is later) occurred 10 or more years prior to
the date of application; or
(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).
[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 or 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.
* * * * * * *
powers and duties of the secretary, the under secretary, and the
attorney general
Sec. 103. (a) * * *
* * * * * * *
(h) Notwithstanding any other provision of law (statutory
or nonstatutory), including but not limited to section 309 of
Public Law 107-173, sections 1361 and 1651 of title 28, United
States Code, and section 706(1) of title 5, United States Code,
neither the Secretary of Homeland Security, the Attorney
General, nor any court may--
(1) grant, or order the grant of or adjudication of
an application for adjustment of status to that of an
alien lawfully admitted for permanent residence;
(2) grant, or order the grant of or adjudication of
an application for United States citizenship or any
other status, relief, protection from removal,
employment authorization, or other benefit under the
immigration laws;
(3) grant, or order the grant of or adjudication
of, any immigrant or nonimmigrant petition; or
(4) issue or order the issuance of any
documentation evidencing or related to any such grant,
until such background and security checks as the
Secretary may in his discretion require have been
completed or updated to the satisfaction of the
Secretary.
(i) Notwithstanding any other provision of law (statutory
or nonstatutory), including but not limited to section 309 of
Public Law 107-173, sections 1361 and 1651 of title 28, United
States Code, and section 706(1) of title 5, United States Code,
neither the Secretary of Homeland Security nor the Attorney
General may be required to--
(1) grant, or order the grant of or adjudication of
an application for adjustment of status to that of an
alien lawfully admitted for permanent residence,
(2) grant, or order the grant of or adjudication of
an application for United States citizenship or any
other status, relief, protection from removal,
employment authorization, or other benefit under the
immigration laws,
(3) grant, or order the grant of or adjudication
of, any immigrant or nonimmigrant petition, or
(4) issue or order the issuance of any
documentation evidencing or related to any such grant,
until any suspected or alleged materially false
information, material misrepresentation or omission,
concealment of a material fact, fraud or forgery,
counterfeiting, or alteration, or falsification of a
document, as determined by the Secretary, relating to
the adjudication of an application or petition for any
status (including the granting of adjustment of
status), relief, protection from removal, or other
benefit under this subsection has been investigated and
resolved to the Secretary's satisfaction.
(j) Notwithstanding any other provision of law (statutory
or nonstatutory), including section 309 of the Enhanced Border
Security and Visa Entry Reform Act (8 U.S.C. 1738), sections
1361 and 1651 of title 28, United States Code, and section
706(1) of title 5, United States Code, no court shall have
jurisdiction to require any of the acts in subsection (h) or
(i) to be completed by a certain time or award any relief for
failure to complete or delay in completing such acts.
* * * * * * *
TITLE II--IMMIGRATION
Chapter 1--Selection System
* * * * * * *
procedure for granting immigrant status
Sec. 204. (a)(1)(A)(i) * * *
* * * * * * *
[(viii)(I) Clause (i) shall not
apply to a citizen of the United States
who has been convicted of a specified
offense against a minor, unless the
Secretary of Homeland Security, in the
Secretary's sole and unreviewable
discretion, determines that the citizen
poses no risk to the alien with respect
to whom a petition described in clause
(i) is filed.
[(II) For purposes of subclause
(I), the term ``specified offense
against a minor'' is defined as in
section 111 of the Adam Walsh Child
Protection and Safety Act of 2006.]
(viii) Clause (i) shall not apply to a citizen of the
United States who has been convicted of an offense described in
subparagraph (A), (I), or (K) of section 101(a)(43), unless the
Secretary of Homeland Security, in the Secretary's sole and
unreviewable discretion, determines that the citizen poses no
risk to the alien with respect to whom a petition described in
clause (i) is filed.
(B)(i)(I) * * *
[(I) Subclause (I) shall not apply
in the case of an alien lawfully
admitted for permanent residence who
has been convicted of a specified
offense against a minor (as defined in
subparagraph (A)(viii)(II)), unless the
Secretary of Homeland Security, in the
Secretary's sole and unreviewable
discretion, determines that such person
poses no risk to the alien with respect
to whom a petition described in
subclause (I) is filed.]
(II) Subclause (I) shall not apply in the case of an alien
admitted for permanent residence who has been convicted of an
offense described in subparagraph (A), (I), or (K) of section
101(a)(43), unless the Secretary of Homeland Security, in the
Secretary's sole and unreviewable discretion, determines that
the alien lawfully admitted for permanent residence poses no
risk to the alien with respect to whom a petition described in
subclause (I) is filed.
* * * * * * *
(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 or
the Secretary of Homeland Security determines
that--
(i) * * *
* * * * * * *
[(v) the alien is described in
subclause (I), (II), (III), (IV), or
(VI) of section 212(a)(3)(B)(i) or
section 237(a)(4)(B) (relating to
terrorist activity), unless, in the
case only of an alien inadmissible
under subclause (IV) 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]
(v) the alien is described in
subparagraph (B)(i) or (F) of section
212(a)(3), unless, in the case of an
alien described in subparagraph (IV),
(V), or (IX) of section
212(a)(3)(B)(i), the Secretary of
Homeland Security or the Attorney
General determines, in the discretion
of the Secretary or the Attorney
General, that there are not reasonable
grounds for regarding the alien as a
danger to the security of the United
States;
(vi) the alien is described in
section 212(a)(2)(N)(i) or section
237(a)(2)(H)(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.
special agricultural workers
Sec. 210. (a) * * *
(b) Applications for Adjustment of Status.--
(1) * * *
* * * * * * *
(6) Confidentiality of information.--
(A) In general.--Except as provided in this
paragraph, neither the [Attorney General]
Secretary of Homeland Security, nor any other
official or employee of the [Department of
Justice,] Department of Homeland Security, or
bureau or agency thereof, may--
(i) * * *
* * * * * * *
(B) Required disclosures.--The [Attorney
General] Secretary of Homeland Security shall
provide information furnished under this
section, and any other information derived from
such furnished information, to a duly
recognized law enforcement entity in connection
with a criminal investigation or prosecution,
when such information is requested in writing
by such entity, or to an official coroner for
purposes of affirmatively identifying a
deceased individual (whether or not such
individual is deceased as a result of a crime).
(C) Authorized disclosures.--
(i) Census purpose.--The Secretary
of Homeland Security may provide, in
his discretion, for the furnishing of
information furnished under this
section in the same manner and
circumstances as census information may
be disclosed under section 8 of title
13, United States Code.
(ii) National security purpose.--
The Secretary of Homeland Security may
provide, in his discretion, for the
furnishing, use, publication, or
release of information furnished under
this section in any investigation,
case, or matter, or for any purpose,
relating to terrorism, national
intelligence or the national security.
[(C)] (D) Construction.--
(i) In general.--Nothing in this
paragraph shall be construed to limit
the use, or release, for immigration
enforcement purposes or law enforcement
purposes of information contained in
files or records of the [Service]
Department of Homeland Security
pertaining to an application filed
under this section, other than
information furnished by an applicant
pursuant to the application, or any
other information derived from the
application, that is not available from
any other source.
* * * * * * *
[(D)] (E) Crime.--Whoever knowingly uses,
publishes, or permits information to be
examined in violation of this paragraph shall
be fined not more than $10,000.
* * * * * * *
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)),
(III) a violation of (or a
conspiracy or attempt to
violate) an offense described
in section 408 of title 42,
United States Code (relating to
social security account numbers
or social security cards) or
section 1028 of title 18,
United States Code (relating to
fraud and related activity in
connection with identification
documents, authentication
features, and information), or
(IV) a violation of section
2250 of title 18, United States
Code (relating to failure to
register as a sex offender),
is inadmissible.
* * * * * * *
(iii) Clarification.--If the
conviction records do not conclusively
establish whether a crime constitutes a
crime involving moral turpitude, the
Attorney General may consider other
evidence related to the conviction that
clearly establishes that the conduct
for which the alien was engaged
constitutes a crime involving moral
turpitude.
* * * * * * *
(J) Procurement of citizenship or
naturalization unlawfully.--Any alien convicted
of, or who admits having committed, or who
admits committing acts which constitute the
essential elements 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 (relating to the procurement of
citizenship or naturalization unlawfully) is
inadmissible.
(K) Certain firearm offenses.--Any alien
who at any time has been convicted under any
law of, or who admits having committed or
admits committing acts which constitute the
essential elements of, purchasing, selling,
offering for sale, exchanging, using, owning,
possessing, or carrying, or of attempting or
conspiring to purchase, sell, offer for sale,
exchange, use, own, possess, or carry, any
weapon, part, or accessory which is a firearm
or destructive device (as defined in section
921(a) of title 18, United States Code) in
violation of any law is inadmissible.
(L) Aggravated felons.--Any alien who has
been convicted of an aggravated felony at any
time is inadmissible.
(M) Crimes of domestic violence, stalking,
or violation of protection orders, crimes
against children.--
(i) Domestic violence, stalking,
and child abuse.--Any alien who at any
time is convicted of, or who admits
having committed or 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. For
purposes of this clause, 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.--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 persons for whom the
protection order was issued is
inadmissible. For purposes of this
clause, 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 a
independent order in another
proceeding.
(iii) Waiver authorized.--The
waiver authority available under
section 237(a)(7) with respect to
section 237(a)(2)(E)(i) shall be
available on a comparable basis with
respect to this subparagraph.
(iv) Clarification.--If the
conviction records do not conclusively
establish whether a crime of domestic
violence constitutes a crime of
violence (as defined in section 16 of
title 18, United States Code), the
Attorney General may consider other
evidence related to the conviction that
clearly establishes that the conduct
for which the alien was engaged
constitutes a crime of violence.
(N) Aliens associated with criminal
gangs.--Any alien is inadmissible who a
consular officer, the Secretary of Homeland
Security, or the Attorney General knows or has
reason to believe--
(i) to be or to have been a member
of a criminal gang (as defined in
section 101(a)(53)); or
(ii) to have participated in the
activities of a criminal gang (as
defined in section 101(a)(53)), knowing
or having reason to know that such
activities will promote, further, aid,
or support the illegal activity of the
criminal gang.
(3) Security and related grounds.--
[(A) In general.--Any alien who a consular
officer or the Attorney General knows, or has
reasonable ground to believe, seeks to enter
the United States to engage solely,
principally, or incidentally in--
[(i) any activity (I) to violate
any law of the United States relating
to espionage or sabotage or (II) to
violate or evade any law prohibiting
the export from the United States of
goods, technology, or sensitive
information,
[(ii) any other unlawful activity,
or
[(iii) any activity a purpose of
which is the opposition to, or the
control or overthrow of, the Government
of the United States by force,
violence, or other unlawful means,
is inadmissible.]
(A) In general.--Any alien who a consular
officer, the Attorney General, or the Secretary
of Homeland Security knows, or has reasonable
ground to believe, seeks to enter the United
States to engage solely, principally, or
incidentally in, or who is engaged in, or with
respect to clauses (i) and (iii) of this
subparagraph has engaged in--
(i) any activity--
(I) to violate any law of
the United States relating to
espionage or sabotage; or
(II) to violate or evade
any law prohibiting the export
from the United States of
goods, technology, or sensitive
information;
(ii) any other unlawful activity;
or
(iii) any activity a purpose of
which is the opposition to, or the
control or overthrow of, the Government
of the United States by force,
violence, or other unlawful means;
is inadmissible.
* * * * * * *
(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 the date of such removal (or
within 20 years] seeks admission not
later than 5 years after the date of
the alien's removal (or not later than
20 years after the alien's removal 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) * * *
* * * * * * *
and who [seeks admission within 10
years of the date of such alien's
departure or removal (or within 20
years of] seeks admission not later
than 10 years after the date of the
alien's departure or removal (or not
later than 20 years after 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 the Secretary, waive the application of
subparagraphs (A)(i)(I), (III), (B), (D), (E), (K), and (M) 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 Secretary of Homeland Security that--
(i) the alien is inadmissible only under
subparagraph (D)(i) or (D)(ii) of such
subsection or the activities for which the
alien is inadmissible occurred more than 15
years before the date of the alien's
application for a visa, admission, or
adjustment of status,
(ii) the admission to the United States of
such alien would not be contrary to the
national welfare, safety, or security of the
United States, and
(iii) the alien has been rehabilitated; or
(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 Secretary of Homeland Security
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
(C) the alien is a VAWA self-petitioner;
and
(2) the Attorney General or Secretary of Homeland
Security, in his discretion, and pursuant to such
terms, conditions and procedures as he 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, or an attempt or conspiracy to commit murder
or [a criminal act involving torture.] a criminal act involving
torture, or has been convicted of an aggravated felony. 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
Secretary of Homeland Security to grant or deny a waiver under
this subsection.
* * * * * * *
admission of nonimmigrants
Sec. 214. (a) * * *
* * * * * * *
(m)(1) * * *
* * * * * * *
(3) The Secretary of Homeland Security shall require
accreditation of an academic institution (except for seminaries
or other religious institutions) for purposes of section
101(a)(15)(F) if--
(A) that institution is not already required to be
accredited under section 101(a)(15)(F)(i); and
(B) an appropriate accrediting agency recognized by
the Secretary of Education is able to provide such
accreditation.
(4) The Secretary of Homeland Security, in the Secretary's
discretion, may waive the accreditation requirement in
paragraph (3) or section 101(a)(15)(F)(i) with respect to an
institution if such institution--
(A) is otherwise in compliance with the
requirements of section 101(a)(15)(F)(i); and
(B) has been a candidate for accreditation for at
least 1 year and continues to progress toward
accreditation by an accrediting agency recognized by
the Secretary of Education.
* * * * * * *
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 pursuant to 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 pursuant to this section.
* * * * * * *
DESIGNATION
Sec. 220. (a) In General.--The Secretary of Homeland
Security, in consultation with the Attorney General, and the
Secretary of State may designate a group or association as a
criminal street gang if their conduct is described in section
101(a)(53) or if the group or association conduct poses a
significant risk that threatens the security and the public
safety of United States nationals or the national security,
homeland security, foreign policy, or economy of the United
States.
(b) Effective Date.--Designations under subsection (a)
shall remain in effect until the designation is revoked after
consultation between the Secretary of Homeland Security, the
Attorney General, and the Secretary of State or is terminated
in accordance with Federal law.
Chapter 3--Issuance of Entry Documents
* * * * * * *
applications for visas
Sec. 222. (a) * * *
* * * * * * *
(f) The records of the Department of State and of
diplomatic and consular offices of the United States pertaining
to the [issuance or refusal] issuance, refusal, or revocation
of visas or permits to enter the United States shall be
considered confidential and shall be used only for the
formulation, amendment, administration, or enforcement of the
immigration, nationality, and other laws of the United States,
except that--
(1) * * *
(2) the Secretary of State, in the Secretary's
discretion [and on the basis of reciprocity], may
provide to a foreign government information in the
Department of State's computerized visa lookout
database and, when necessary and appropriate, other
records covered by this section related to information
in the database--
(A) with regard to individual aliens, at
any time on a case-by-case basis for the
purpose of (i) preventing, investigating, or
punishing acts that would constitute a crime in
the United States, including, but not limited
to, terrorism or trafficking in controlled
substances, persons, or [illicit weapons; or]
illicit weapons, or (ii) determining a person's
deportability or eligibility for a visa,
admission, or other immigration benefit;
(B) with regard to any or all aliens in the
database, pursuant to such conditions as the
Secretary of State shall establish in an
agreement with the foreign government in which
that government agrees to use such information
and records [for the purposes] for one of the
purposes described in subparagraph (A) [or to
deny visas to persons who would be inadmissible
to the United States.]; or
(C) with regard to any or all aliens in the
database specified data elements from each
record, if the Secretary of State determines
that it is in the national interest to provide
such information to a foreign government.
(g)(1) In the case of an alien who has been admitted on the
basis of a nonimmigrant visa and remained in the United States
beyond the period of stay authorized by the [Attorney General]
Secretary, such visa and any other nonimmigrant visa issued by
the United States that is in the possession of the alien shall
be void beginning after the conclusion of such period of stay.
(2) An alien described in paragraph (1) shall be ineligible
to be readmitted to the United States as a nonimmigrant,
except--
(A) on the basis of a visa [(other than the visa
described in paragraph (1)) issued in a consular office
located in the country of the alien's nationality]
(other than a visa described in paragraph (1)) issued
in a consular office located in the country of the
alien's nationality or foreign residence (or, if there
is no office in such country, in such other consular
office as the Secretary of State shall specify); or
* * * * * * *
(h) Notwithstanding any other provision of this Act, the
Secretary of State shall require every alien applying for a
nonimmigrant visa--
(1) who is at least 14 years of age and not more
than 79 years of age to submit to an in person
interview with a consular officer unless the alien is
determined by the Secretary of State to be ineligible
for a visa based upon review of the application or the
requirement for such interview is waived--
(A) * * *
* * * * * * *
(C) by the Secretary of State if the
Secretary, in consultation with the Secretary
of Homeland Security, determines that such
waiver is--
(i) in the national interest of the
United States, where such national
interest shall not include facilitation
of travel of foreign nationals to the
United States, reduction of visa
application processing times, or the
allocation of consular resources; or
* * * * * * *
(2) notwithstanding paragraph (1), to submit to an
in person interview with a consular officer if such
alien--
(A) * * *
* * * * * * *
(E) requires a security advisory opinion or
other Department of State clearance, unless
such alien is--
(i) * * *
* * * * * * *
(iv) an alien who qualifies for a
diplomatic or official visa, or its
equivalent; [or]
(F) is identified as a member of a group or
sector that the Secretary of State determines--
(i) * * *
* * * * * * *
(iii) poses a security threat to
the United States[.]; or
(G) is an individual--
(i) determined to be in a class of
aliens determined by the Secretary of
Homeland Security to be threats to
national security;
(ii) identified by the Secretary of
Homeland Security as a person of
concern; or
(iii) applying for a visa in a visa
category with respect to which the
Secretary of Homeland Security has
determined that a waiver of the visa
interview would create a high risk of
degradation of visa program integrity.
* * * * * * *
Chapter 4--Inspection, Apprehension, Examination, Exclusion, and
Removal
* * * * * * *
apprehension and detention of aliens
Sec. 236. (a) Arrest, Detention, and Release.--On a warrant
issued by the [Attorney General] Secretary of Homeland
Security, an alien may be arrested and detained pending a
decision on whether the alien is to be removed from the United
States. Except as provided in subsection (c) and pending such
decision, the Secretary of Homeland Security or the Attorney
General--
(1) * * *
(2) may release the alien on--
(A) bond of at least $1,500 with security
approved by, and containing conditions
prescribed by, the [Attorney General] Secretary
of Homeland Security; or
(B) [conditional parole] recognizance; but
* * * * * * *
(b) Revocation of Bond or Parole.--The [Attorney General]
Secretary of Homeland Security at any time may revoke a bond or
[parole] recognizance authorized under subsection (a), rearrest
the alien under the original warrant, and detain the alien.
(c) Detention of Criminal Aliens.--
(1) Custody.--The [Attorney General] Secretary of
Homeland Security shall take into custody any alien
who--
(A) * * *
* * * * * * *
(C) is deportable under section
237(a)(2)(A)(i) on the basis of an offense for
which the alien has been sentence to a term of
imprisonment of at least 1 year, [or]
(D) is inadmissible under section
212(a)(3)(B) or 212(a)(2)(N) or deportable
under section 237(a)(2)(H) or 237(a)(4)(B), or
(E) is unlawfully present in the United
States and has been convicted one or multiple
times for driving while intoxicated (including
a conviction for driving while under the
influence or impaired by alcohol or drugs)
without regard to whether the conviction is
classified as a misdemeanor or felony under
State law,
[when the alien is released, without regard to whether
the alien is released on parole, supervised release, or
probation, and without regard to whether the alien may
be arrested or imprisoned again for the same offense.]
any time after the alien is released, without regard to
whether an alien is released related to any activity,
offense, or conviction described in this paragraph; to
whether the alien is released on parole, supervised
release, or probation; or to whether the alien may be
arrested or imprisoned again for the same offense. If
the activity described in this paragraph does not
result in the alien being taken into custody by any
person other than the Secretary, then when the alien is
brought to the attention of the Secretary or when the
Secretary determines it is practical to take such alien
into custody, the Secretary shall take such alien into
custody.
(2) Release.--The [Attorney General] Secretary of
Homeland Security may release an alien described in
paragraph (1) only if the [Attorney General] Secretary
of Homeland Security decides pursuant to section 3521
of title 18, United States Code, that release of the
alien from custody is necessary to provide protection
to a witness, a potential witness, a person cooperating
with an investigation into major criminal activity, or
an immediate family member or close associate of a
witness, potential witness, or person cooperating with
such an investigation, and the alien satisfies the
[Attorney General] Secretary of Homeland Security that
the alien will not pose a danger to the safety of other
persons or of property and is likely to appear for any
scheduled proceeding. A decision relating to such
release shall take place in accordance with a procedure
that considers the severity of the offense committed by
the alien.
(d) Identification of Criminal Aliens.--(1) The [Attorney
General] Secretary of Homeland Security shall devise and
implement a system--
(A) * * *
* * * * * * *
(e) Judicial Review.--The [Attorney General's] Secretary of
Homeland Security's discretionary judgment regarding the
application of this section shall not be subject to review. No
court may set aside any action or decision by the [Attorney
General] Secretary of Homeland Security under this section
regarding the detention or release of any alien or the grant,
revocation, or denial of bond or parole.
(f) Length of Detention.--
(1) In general.--Notwithstanding any other
provision of this section, an alien may be detained
under this section for any period, without limitation,
except as provided in subsection (h), until the alien
is subject to a final order of removal.
(2) Construction.--The length of detention under
this section shall not affect detention under section
241.
(g) Administrative Review.--
(1) In general.--The Attorney General's review of
the Secretary's custody determinations under subsection
(a) for the following classes of aliens shall be
limited to whether the alien may be detained, released
on bond (of at least $1,500 with security approved by
the Secretary), or released with no bond:
(A) Aliens in exclusion proceedings.
(B) Aliens described in section 212(a)(3)
or 237(a)(4).
(C) Aliens described in subsection (c).
(2) Special rule.--The Attorney General's review of
the Secretary's custody determinations under subsection
(a) for aliens in deportation proceedings subject to
section 242(a)(2) of the Act (as in effect prior to
April 1, 1997, and as amended by section 440(c) of
Public Law 104-132) shall be limited to a determination
of whether the alien is properly included in such
category.
(h) Release on Bond.--
(1) In general.--An alien detained under subsection
(a) may seek release on bond. No bond may be granted
except to an alien who establishes by clear and
convincing evidence that the alien is not a flight risk
or a risk to another person or the community.
(2) Certain aliens ineligible.--No alien detained
under subsection (c) may seek release on bond.
* * * * * * *
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) Inadmissible at time of entry or of adjustment
of status or violates status.--
(A) * * *
(B) Present in violation of law.--Any alien
who is present in the United States in
violation of this Act or any other law of the
United States, or whose nonimmigrant visa (or
other documentation authorizing admission into
the United States as a nonimmigrant) has been
revoked [under section 221(i)], is deportable.
* * * * * * *
(2) Criminal offenses.--
(A) General crimes.--
(i) * * *
* * * * * * *
[(v) Failure to register as a sex
offender.--Any alien who is convicted
under section 2250 of title 18, United
States Code, is deportable.
[(vi) Waiver authorized.--Clauses
(i), (ii), and (iii) shall not apply in
the case of an alien with respect to a
criminal conviction if the alien
subsequent to the criminal conviction
has been granted a full and
unconditional pardon by the President
of the United States or by the Governor
of any of the several States.]
(v) Crimes involving moral
turpitude.--If the conviction records
do not conclusively establish whether a
crime constitutes a crime involving
moral turpitude, the Attorney General
may consider other evidence related to
the conviction that clearly establishes
that the conduct for which the alien
was engaged constitutes a crime
involving moral turpitude.
* * * * * * *
(E) Crimes of domestic violence, stalking,
or violation of protection order, crimes
against children and .--
(i) * * *
* * * * * * *
(iii) Crimes of violence.--If the
conviction records do not conclusively
establish whether a crime of domestic
violence constitutes a crime of
violence (as defined in section 16 of
title 18, United States Code), the
Attorney General may consider other
evidence related to the conviction that
clearly establishes that the conduct
for which the alien was engaged
constitutes a crime of violence.
* * * * * * *
(G) Fraud and related activity associated
with social security act benefits and
identification documents.--Any alien who at any
time after admission has been convicted of a
violation of (or a conspiracy or attempt to
violate) section 208 of the Social Security Act
(42 U.S.C. 408) (relating to social security
account numbers or social security cards) or
section 1028 of title 18, United States Code
(relating to fraud and related activity in
connection with identification) is deportable.
(H) Aliens associated with criminal
gangs.--Any alien is deportable who the
Secretary of Homeland Security or the Attorney
General knows or has reason to believe--
(i) is or has been a member of a
criminal gang (as defined in section
101(a)(53)); or
(ii) has participated in the
activities of a criminal gang (as so
defined), knowing or having reason to
know that such activities will promote,
further, aid, or support the illegal
activity of the criminal gang.
(I) Failure to register as a sex
offender.--Any alien convicted of, or who
admits having committed, or who admits
committing acts which constitute the essential
elements of a violation of section 2250 of
title 18, United States Code (relating to
failure to register as a sex offender) 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,
section 1425(a) or (b) of title 18
(relating to the procurement of
citizenship or naturalization
unlawfully),
is deportable.
* * * * * * *
(8) Pardons.--In the case of an alien who has been
convicted of a crime and is subject to removal due to
that conviction, if the alien, subsequent to receiving
the criminal conviction, is granted a pardon, the alien
shall not be deportable by reason of that criminal
conviction.
* * * * * * *
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) Instead of removal proceedings.--If an alien is
not described in paragraph (2)(A)(iii) or (4) of
section 237(a), the Secretary of Homeland Security may
permit the alien to voluntarily depart the United
States at the alien's own expense under this subsection
instead of being subject to proceedings under section
240.
(2) Before the conclusion of removal proceedings.--
If an alien is not described in paragraph (2)(A)(iii)
or (4) of section 237(a), the Attorney General may
permit the alien to voluntarily depart the United
States at the alien's own expense under this subsection
after the initiation of removal proceedings under
section 240 and before the conclusion of such
proceedings before an immigration judge.
[(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) Instead of removal.--Subject to
subparagraph (C), permission to voluntarily
depart under paragraph (1) shall not be valid
for any period in excess of 120 days. The
Secretary may require an alien permitted to
voluntarily depart 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) Before the conclusion of removal
proceedings.--Permission to voluntarily depart
under paragraph (2) shall not be valid for any
period in excess of 60 days, and may be granted
only after a finding that the alien has the
means to depart the United States and intends
to do so. An alien permitted to voluntarily
depart under paragraph (2) shall 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 the
requirement to post a voluntary departure bond
in individual cases upon a finding that the
alien has presented compelling evidence that
the posting of a bond will pose 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)] (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)] (C)(i).
(iii)(I) Except as provided in
subclause (II), in the case of each
principal alien described in
subparagraph [(B)] (C)(i) not more than
one adult may be granted a waiver under
subparagraph [(B)] (C)(ii).
(II) Not more than two adults may
be granted a waiver under subparagraph
[(B)] (C)(ii) in a case in which--
(aa) the principal alien
described in subparagraph [(B)]
(C)(i) is a dependent under the
age of 18; or
* * * * * * *
[(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
section 237(a)(2)(A)(iii) or section
237(a)(4);] described in paragraph (2)(A)(iii)
or (4) of section 237(a); and
* * * * * * *
(2) Period.--Permission to depart voluntarily under
this subsection shall not be valid for [a period
exceeding 60 days] any period in excess of 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).
[(d) Civil Penalty for Failure To Depart.--
[(1) In general.--Subject to paragraph (2), if an
alien is permitted to depart voluntarily under this
section and voluntarily fails to depart the United
States within the time period specified, the alien--
[(A) shall be subject to a civil penalty of
not less than $1,000 and not more than $5,000;
and
[(B) shall be ineligible, for a period of
10 years, to receive any further relief under
this section and sections 240A, 245, 248, and
249.
[(2) Application of vawa protections.--The
restrictions on relief under paragraph (1) shall not
apply to relief under section 240A or 245 on the basis
of a petition filed by a VAWA self-petitioner, or a
petition filed under section 240A(b)(2), or under
section 244(a)(3) (as in effect prior to March 31,
1997), if the extreme cruelty or battery was at least
one central reason for the alien's overstaying the
grant of voluntary departure.
[(3) Notice of penalties.--The order permitting an
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.]
(c) Conditions on Voluntary Departure.--
(1) Voluntary departure agreement.--Voluntary
departure may only be granted 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 may
agree to a reduction in the period of inadmissibility
under subparagraph (A) or (B)(i) of section 212(a)(9).
(3) Advisals.--Agreements relating to voluntary
departure granted during removal proceedings under
section 240, or at the conclusion of such proceedings,
shall be presented on the record before the immigration
judge. The immigration judge shall advise the alien of
the consequences of a voluntary departure agreement
before accepting such agreement.
(4) Failure to comply with agreement.--
(A) In general.--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 failure to timely post any required
bond), the alien is--
(i) ineligible for the benefits of
the agreement;
(ii) subject to the penalties
described in subsection (d); and
(iii) subject to an alternate order
of removal if voluntary departure was
granted under subsection (a)(2) or (b).
(B) Effect of filing timely Appeal.--If,
after agreeing to voluntary departure, the
alien 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 of
such agreement, but precludes the alien from
another grant of voluntary departure while the
alien remains in the United States.
(5) Voluntary departure period not affected.--
Except as expressly agreed to by the Secretary 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) Penalties for Failure To Depart.--If an alien is
permitted to voluntarily depart under this section and fails to
voluntarily depart from the United States within the time
period specified or otherwise violates the terms of a voluntary
departure agreement, the alien will be subject to the following
penalties:
(1) Civil penalty.--The alien shall be liable for a
civil penalty of $3,000. The order allowing voluntary
departure shall specify this amount, which shall be
acknowledged by the alien on the record. If the
Secretary 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. An alien will be
ineligible for any benefits under this chapter until
this civil penalty is paid.
(2) Ineligibility for relief.--The alien shall 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. The order
permitting the alien to depart voluntarily shall inform
the alien of the penalties under this subsection.
(3) Reopening.--The alien shall be ineligible to
reopen the final order of removal that took effect upon
the alien's failure to depart, or upon the alien's
other violations of the conditions for voluntary
departure, during the period described in paragraph
(2). This paragraph does not preclude a motion to
reopen to seek withholding of removal under section
241(b)(3) or protection against torture, if the
motion--
(A) presents material evidence of changed
country conditions arising after the date of
the order granting voluntary departure in the
country to which the alien would be removed;
and
(B) makes a sufficient showing to the
satisfaction of the Attorney General that the
alien is otherwise eligible for such
protection.
(e) Eligibility.--
(1) Prior grant of voluntary departure.--An alien
shall not be permitted to voluntarily depart under this
section if the Secretary of Homeland Security or the
Attorney General previously permitted the alien to
depart voluntarily.
(2) Rulemaking.--The Secretary may promulgate
regulations to limit eligibility or impose additional
conditions for voluntary departure under subsection
(a)(1) for any class of aliens. The Secretary or
Attorney General may by regulation limit eligibility or
impose additional conditions for voluntary departure
under subsections (a)(2) or (b) of this section for any
class or classes of aliens.
(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 section
242(a)(2)(D) of this Act, sections 1361, 1651, and 2241 of
title 28, United States Code, any other habeas corpus
provision, and any other provision of law (statutory or
nonstatutory), no court shall have jurisdiction to affect,
reinstate, enjoin, delay, stay, or toll the period allowed for
voluntary departure under this section.
* * * * * * *
CUSTODY OF INADMISSIBLE AND DEPORTABLE ALIENS PRESENT IN THE UNITED
STATES
Sec. 240D. (a) Transfer of Custody by State and Local
Officials.--If a State, or a political subdivision of the
State, exercising authority with respect to the apprehension or
arrest of an inadmissible or deportable alien submits to the
Secretary of Homeland Security a request that the alien be
taken into Federal custody, notwithstanding any other provision
of law, regulation, or policy the Secretary--
(1) shall take the alien into custody not later
than 48 hours after the detainer has been issued
following the conclusion of the State or local charging
process or dismissal process, or if no State or local
charging or dismissal process is required, the
Secretary should issue a detainer and take the alien
into custody not later than 48 hours after the alien is
apprehended, in order to determine whether the alien
should be detained, placed in removal proceedings,
released, or removed; and
(2) shall request that the relevant State or local
law enforcement agency temporarily hold the alien in
their custody or transport the alien for transfer to
Federal custody.
(b) Policy on Detention in Federal, Contract, State, or
Local Detention Facilities.--In carrying out section 241(g)(1),
the Attorney General or Secretary of Homeland Security shall
ensure that an alien arrested under this title shall be held in
custody, pending the alien's examination under this section, in
a Federal, contract, State, or local prison, jail, detention
center, or other comparable facility. Notwithstanding any other
provision of law, regulation or policy, such facility is
adequate for detention, if--
(1) such a facility is the most suitably located
Federal, contract, State, or local facility available
for such purpose under the circumstances;
(2) an appropriate arrangement for such use of the
facility can be made; and
(3) the facility satisfies the standards for the
housing, care, and security of persons held in custody
by a United States Marshal.
(c) Reimbursement.--The Secretary of Homeland Security
shall reimburse a State, and a political subdivision of a
State, for all reasonable expenses, as determined by the
Secretary, incurred by the State, or political subdivision, as
a result of the incarceration and transportation of an alien
who is inadmissible or deportable as described in subsections
(a) and (b). Compensation provided for costs incurred under
such subsections shall be the average cost of incarceration of
a prisoner in the relevant State, as determined by the chief
executive officer of a State, or of a political subdivision of
a State, plus the cost of transporting the alien from the point
of apprehension to the place of detention, and to the custody
transfer point if the place of detention and place of custody
are different.
(d) Secure Facilities.--The Secretary of Homeland Security
shall ensure that aliens incarcerated pursuant to this title
are held in facilities that provide an appropriate level of
security.
(e) Transfer.--
(1) In general.--In carrying out this section, the
Secretary of Homeland Security shall establish a
regular circuit and schedule for the prompt transfer of
apprehended aliens from the custody of States, and
political subdivisions of a State, to Federal custody.
(2) Contracts.--The Secretary may enter into
contracts, including appropriate private contracts, to
implement this subsection.
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) The date the order of removal
becomes administratively final.
[(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.
[(iii) If the alien is detained or
confined (except under an immigration
process), the date the alien is
released from detention or confinement.
[(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.]
(B) Beginning of period.--The removal
period begins on the latest of the following:
(i) The date the order of removal
becomes administratively final.
(ii) If the alien is not in the
custody of the Secretary on the date
the order of removal becomes
administratively final, the date the
alien is taken into such custody.
(iii) If the alien is detained or
confined (except under an immigration
process) on the date the order of
removal becomes administratively final,
the date the alien is taken into the
custody of the Secretary, after the
alien is released from such detention
or confinement.
(C) Suspension of period.--
(i) Extension.--The removal period
shall be extended beyond a period of 90
days and the Secretary may, in the
Secretary's sole discretion, keep the
alien in detention during such extended
period if--
(I) 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 that is subject to an
order of removal;
(II) a court, the Board of
Immigration Appeals, or an
immigration judge orders a stay
of removal of an alien who is
subject to an administratively
final order of removal;
(III) the Secretary
transfers custody of the alien
pursuant to law to another
Federal agency or a State or
local government agency in
connection with the official
duties of such agency; or
(IV) a court or the Board
of Immigration Appeals orders a
remand to an immigration judge
or the Board of Immigration
Appeals, during the time period
when the case is pending a
decision on remand (with the
removal period beginning anew
on the date that the alien is
ordered removed on remand).
(ii) Renewal.--If the removal
period has been extended under clause
(C)(i), a new removal period shall be
deemed to have begun on the date--
(I) the alien makes 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;
(II) the stay of removal is
no longer in effect; or
(III) the alien is returned
to the custody of the
Secretary.
(iii) Mandatory detention for
certain aliens.--In the case of an
alien described in subparagraphs (A)
through (D) of section 236(c)(1), the
Secretary shall keep that alien in
detention during the extended period
described in clause (i).
(iv) Sole form of relief.--An alien
may seek relief from detention under
this subparagraph only by filing an
application for a writ of habeas corpus
in accordance with chapter 153 of title
28, United States Code. No alien whose
period of detention is extended under
this subparagraph shall have the right
to seek release on bond.
(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).
(3) Supervision after 90-day period.--If the alien
does not leave or is not removed within the removal
period or is not detained pursuant to paragraph (6) of
this subsection, 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 that the
Secretary prescribes for the alien, in order to
prevent the alien from absconding, 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)]
subparagraph (B), 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, 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.
[(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 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, shall be
subject to the terms of supervision in paragraph (3).]
(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, deported,
or excluded 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 notwithstanding section 242(a)(2)(D);
(B) the alien is not eligible and may not
apply for any relief under this Act, regardless
of the date that an application or request for
such relief may have been filed or made; 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 under section 240 or other proceedings
before an immigration judge.
(6) Additional rules for detention or release of
certain aliens.--
(A) Detention review process for
cooperative aliens established.--For an alien
who is not otherwise subject to mandatory
detention, who has made all reasonable efforts
to comply with a removal order and to cooperate
fully with the Secretary of Homeland Security'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, and who has not conspired or acted
to prevent removal, the Secretary shall
establish an administrative review process to
determine whether the alien should be detained
or released on conditions. The Secretary shall
make a determination whether to release an
alien after the removal period in accordance
with subparagraph (B). The determination shall
include consideration of any evidence submitted
by the alien, and may include consideration of
any other evidence, including any information
or assistance provided by the Secretary of
State or other Federal official and any other
information available to the Secretary of
Homeland Security pertaining to the ability to
remove the alien.
(B) Authority to detain beyond removal
period.--
(i) In general.--The Secretary of
Homeland Security, in the exercise of
the Secretary's sole discretion, may
continue to detain an alien for 90 days
beyond the removal period (including
any extension of the removal period as
provided in paragraph (1)(C)). An alien
whose detention is extended under this
subparagraph shall have no right to
seek release on bond.
(ii) Specific circumstances.--The
Secretary of Homeland Security, in the
exercise of the Secretary's sole
discretion, may continue to detain an
alien beyond the 90 days authorized in
clause (i)--
(I) until the alien is
removed, if the Secretary, in
the Secretary's sole
discretion, determines that
there is a significant
likelihood that the alien--
(aa) will be
removed in the
reasonably foreseeable
future; or
(bb) 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 cooperate
fully 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 removal;
(II) until the alien is
removed, if the Secretary of
Homeland Security certifies in
writing--
(aa) in
consultation with the
Secretary of Health and
Human Services, that
the alien has a highly
contagious disease that
poses a threat to
public safety;
(bb) after receipt
of a written
recommendation from the
Secretary of State,
that release of the
alien is likely to have
serious adverse foreign
policy consequences for
the United States;
(cc) based on
information available
to the Secretary of
Homeland Security
(including classified,
sensitive, or national
security information,
and without regard to
the grounds upon which
the alien was ordered
removed), that there is
reason to believe that
the release of the
alien would threaten
the national security
of the United States;
or
(dd) that 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
either (AA) the alien
has been convicted of
one or more aggravated
felonies (as defined in
section 101(a)(43)(A))
or of one or more
crimes identified by
the Secretary of
Homeland Security by
regulation, or of one
or more attempts or
conspiracies to commit
any such aggravated
felonies or such
identified crimes, if
the aggregate term of
imprisonment for such
attempts or
conspiracies is at
least 5 years; or (BB)
the alien has committed
one or more crimes of
violence (as defined in
section 16 of title 18,
United States Code, but
not including a purely
political offense) 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; or
(III) pending a
certification under subclause
(II), so long as the Secretary
of Homeland Security has
initiated the administrative
review process not later than
30 days after the expiration of
the removal period (including
any extension of the removal
period, as provided in
paragraph (1)(C)).
(iii) No right to bond hearing.--An
alien whose detention is extended under
this subparagraph shall have no right
to seek release on bond, including by
reason of a certification under clause
(ii)(II).
(C) Renewal and delegation of
certification.--
(i) Renewal.--The Secretary of
Homeland Security may renew a
certification under subparagraph
(B)(ii)(II) every 6 months, 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 subparagraph (B)(ii)(II).
(ii) Delegation.--Notwithstanding
section 103, the Secretary of Homeland
Security may not delegate the authority
to make or renew a certification
described in item (bb), (cc), or (dd)
of subparagraph (B)(ii)(II) below the
level of the Assistant Secretary for
Immigration and Customs Enforcement.
(iii) Hearing.--The Secretary of
Homeland Security may request that the
Attorney General or the Attorney
General's designee provide for a
hearing to make the determination
described in item (dd)(BB) of
subparagraph (B)(ii)(II).
(D) Release on conditions.--If it is
determined that an alien should be released
from detention by a Federal court, the Board of
Immigration Appeals, or if an immigration judge
orders a stay of removal, the Secretary of
Homeland Security, in the exercise of the
Secretary's discretion, may impose conditions
on release as provided in paragraph (3).
(E) Redetention.--The Secretary of Homeland
Security, in the exercise of the Secretary's
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 removal
becomes likely in the reasonably foreseeable
future, the alien fails to comply with the
conditions of release, or to continue to
satisfy the conditions described in
subparagraph (A), or if, upon reconsideration,
the Secretary, in the Secretary's sole
discretion, determines that the alien can be
detained under subparagraph (B). This section
shall apply to any alien returned to custody
pursuant to this subparagraph, as if the
removal period terminated on the day of the
redetention.
(F) Review of determinations by
Secretary.--A determination by the Secretary
under this paragraph shall not be subject to
review by any other agency.
(7) 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) * * *
(B) Exception.--Subparagraph (A) does not
apply to an alien who is described in section
212(a)(2)(N)(i) or section 237(a)(2)(H)(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
subparagraph (B)(i) or (F) of section
212(a)(3), unless, in the case of an
alien described in subparagraph (IV),
(V), or (IX) of section
212(a)(3)(B)(i), the Secretary of
Homeland Security or the Attorney
General determines, in discretion of
the Secretary or the Attorney General,
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.]
* * * * * * *
(g) Places of Detention.--
(1) In general.--The Attorney General shall arrange
for appropriate places of detention for aliens detained
pending removal or a decision on removal. When United
States Government facilities are unavailable or
facilities adapted or suitably located for detention
are unavailable for rental, the Attorney General [may
expend] shall expend from the appropriation
``Immigration and Naturalization Service--Salaries and
Expenses'', without regard to section 3709 of the
Revised Statutes (41 U.S.C. 5), amounts necessary to
acquire land and to acquire, build, remodel, repair,
and operate facilities (including living quarters for
immigration officers if not otherwise available)
necessary for detention.
* * * * * * *
(i) Incarceration.--
(1) If the chief executive officer of a State (or,
if appropriate, a political subdivision of the State)
exercising authority with respect to the incarceration
of an undocumented criminal alien submits a written
request to the [Attorney General] Secretary of Homeland
Security, the [Attorney General] Secretary shall, as
determined by the [Attorney General] Secretary--
(A) * * *
* * * * * * *
(2) Compensation under paragraph (1)(A) shall be
the average cost of incarceration of a prisoner in the
relevant State as determined by the [Attorney General]
Secretary.
(3) For purposes of this subsection, the term
``undocumented criminal alien'' means an alien who--
(A) has been charged with or convicted of a
felony or two or more misdemeanors; and
(B)(i) entered the United States without
inspection or at any time or place other than
as designated by the [Attorney General]
Secretary;
* * * * * * *
(4)(A) In carrying out paragraph (1), the [Attorney
General] Secretary shall give priority to the Federal
incarceration of undocumented criminal aliens who have
committed aggravated felonies.
(B) The [Attorney General] Secretary shall ensure
that undocumented criminal aliens incarcerated in
Federal facilities pursuant to this subsection are held
in facilities which provide a level of security
appropriate to the crimes for which they were
convicted.
[(5) There are authorized to be appropriated to
carry out this subsection--
[(A) $750,000,000 for fiscal year 2006;
[(B) $850,000,000 for fiscal year 2007; and
[(C) $950,000,000 for each of the fiscal
years 2008 through 2011.]
(5) There are authorized to be appropriated to
carry out this subsection such sums as may be necessary
for fiscal year 2014 and each subsequent fiscal year.
* * * * * * *
judicial review of orders of removal
Sec. 242. (a) * * *
* * * * * * *
(h) Judicial Review of Reinstatement Under Section
241(a)(5).--
(1) Review of reinstatement.--Judicial review of
determinations under section 241(a)(5) is available in
an action under subsection (a).
(2) No review of original order.--Notwithstanding
any other provision of law (statutory or nonstatutory),
including section 2241 of title 28, United States Code,
any other habeas corpus provision, or sections 1361 and
1651 of such title, no court shall have jurisdiction to
review any cause or claim, arising from, or relating
to, any challenge to the original order.
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
212(a) or 237(a), who--
(A) * * *
* * * * * * *
[(3) Suspension.--The court may for good cause
suspend the sentence of an alien under this subsection
and order the alien's release under such conditions as
the court may prescribe. In determining whether good
cause has been shown to justify releasing the alien,
the court shall take into account such factors as--
[(A) the age, health, and period of
detention of the alien;
[(B) the effect of the alien's release upon
the national security and public peace or
safety;
[(C) the likelihood of the alien's resuming
or following a course of conduct which made or
would make the alien deportable;
[(D) the character of the efforts made by
such alien himself and by representatives of
the country or countries to which the alien's
removal is directed to expedite the alien's
departure from the United States;
[(E) the reason for the inability of the
Government of the United States to secure
passports, other travel documents, or removal
facilities from the country or countries to
which the alien has been ordered removed; and
[(F) the eligibility of the alien for
discretionary relief under the immigration
laws.]
* * * * * * *
temporary protected status
Sec. 244. (a) Granting of Status.--
(1) In general.--In the case of an alien who is a
national of a foreign state designated under subsection
(b) (or in the case of an alien having no nationality,
is a person who last habitually resided in such
designated state) and who meets the requirements of
subsection (c), the [Attorney General] Secretary of
Homeland Security, in accordance with this section--
(A) * * *
* * * * * * *
(3) Notice.--
(A) Upon the granting of temporary
protected status under this section, the
[Attorney General] Secretary of Homeland
Security shall provide the alien with
information concerning such status under this
section.
(B) If, at the time of initiation of a
removal proceeding against an alien, the
foreign state (of which the alien is a
national) is designated under subsection (b),
the [Attorney General] Secretary of Homeland
Security shall promptly notify the alien of the
temporary protected status that may be
available under this section.
(C) If, at the time of designation of a
foreign state under subsection (b), an alien
(who is a national of such state) is in a
removal proceeding under this title, the
[Attorney General] Secretary of Homeland
Security shall promptly notify the alien of the
temporary protected status that may be
available under this section.
* * * * * * *
(4) Temporary treatment for eligible aliens.--
(A) In the case of an alien who can
establish a prima facie case of eligibility for
benefits under paragraph (1), but for the fact
that the period of registration under
subsection (c)(1)(A)(iv) has not begun, until
the alien has had a reasonable opportunity to
register during the first 30 days of such
period, the [Attorney General] Secretary of
Homeland Security shall provide for the
benefits of paragraph (1).
* * * * * * *
(5) Clarification.--Nothing in this section shall
be construed as authorizing the [Attorney General]
Secretary of Homeland Security to deny temporary
protected status to an alien based on the alien's
immigration status or to require any alien, as a
condition of being granted such status, either to
relinquish nonimmigrant or other status the alien may
have or to execute any waiver of other rights under
this Act. The granting of temporary protected status
under this section shall not be considered to be
inconsistent with the granting of nonimmigrant status
under this Act.
(b) Designations.--
(1) In General.--The [Attorney General] Secretary
of Homeland Security, after consultation with
appropriate agencies of the Government, may designate
any foreign state (or any part of such foreign state)
under this subsection only if--
(A) the [Attorney General] Secretary of
Homeland Security finds that there is an
ongoing armed conflict within the state and,
due to such conflict, requiring the return of
aliens who are nationals of that state to that
state (or to the part of the state) would pose
a serious threat to their personal safety;
(B) the [Attorney General] Secretary of
Homeland Security finds that--
(i) * * *
* * * * * * *
(C) the [Attorney General] Secretary of
Homeland Security finds that there exist
extraordinary and temporary conditions in the
foreign state that prevent aliens who are
nationals of the state from returning to the
state in safety, unless the [Attorney General]
Secretary of Homeland Security finds that
permitting the aliens to remain temporarily in
the United States is contrary to the national
interest of the United States.
A designation of a foreign state (or part of such
foreign state) under this paragraph shall not become
effective unless notice of the designation (including a
statement of the findings under this paragraph and the
effective date of the designation) is published in the
Federal Register. In such notice, the [Attorney
General] Secretary of Homeland Security shall also
state an estimate of the number of nationals of the
foreign state designated who are (or within the
effective period of the designation are likely to
become) eligible for temporary protected status under
this section and their immigration status in the United
States.
(2) Effective period of designation for foreign
states.--The designation of a foreign state (or part of
such foreign state) under paragraph (1) shall--
(A) take effect upon the date of
publication of the designation under such
paragraph, or such later date as the [Attorney
General] Secretary of Homeland Security may
specify in the notice published under such
paragraph, and
* * * * * * *
For purposes of this section, the initial period of
designation of a foreign state (or part thereof) under
paragraph (1) is the period, specified by the [Attorney
General] Secretary of Homeland Security, of not less
than 6 months and not more than 18 months.
(3) Periodic review, terminations, and extensions
of designations.--
(A) Periodic review.--At least 60 days
before end of the initial period of
designation, and any extended period of
designation, of a foreign state (or part
thereof) under this section the [Attorney
General] Secretary of Homeland Security, after
consultation with appropriate agencies of the
Government, shall review the conditions in the
foreign state (or part of such foreign state)
for which a designation is in effect under this
subsection and shall determine whether the
conditions for such designation under this
subsection continue to be met. The [Attorney
General] Secretary of Homeland Security shall
provide on a timely basis for the publication
of notice of each such determination (including
the basis for the determination, and, in the
case of an affirmative determination, the
period of extension of designation under
subparagraph (C)) in the Federal Register.
(B) Termination of designation.--If the
[Attorney General] Secretary of Homeland
Security determines under subparagraph (A) that
a foreign state (or part of such foreign state)
no longer continues to meet the conditions for
designation under paragraph (1), the [Attorney
General] Secretary of Homeland Security shall
terminate the designation by publishing notice
in the Federal Register of the determination
under this subparagraph (including the basis
for the determination). Such termination is
effective in accordance with subsection (d)(3),
but shall not be effective earlier than 60 days
after the date the notice is published or, if
later, the expiration of the most recent
previous extension under subparagraph (C).
(C) Extension of designation.--If the
[Attorney General] Secretary of Homeland
Security does not determine under subparagraph
(A) that a foreign state (or part of such
foreign state) no longer meets the conditions
for designation under paragraph (1), the period
of designation of the foreign state is extended
for an additional period of 6 months (or, in
the discretion of the [Attorney General]
Secretary of Homeland Security, a period of 12
or 18 months).
(4) Information concerning protected status at time
of designations.--At the time of a designation of a
foreign state under this subsection, the [Attorney
General] Secretary of Homeland Security shall make
available information respecting the temporary
protected status made available to aliens who are
nationals of such designated foreign state.
(5) Review.--
(A) Designations.--There is no judicial
review of any determination of the [Attorney
General] Secretary of Homeland Security with
respect to the designation, or termination or
extension of a designation, of a foreign state
under this subsection.
(B) Application to individuals.--The
[Attorney General] Secretary of Homeland
Security shall establish an administrative
procedure for the review of the denial of
benefits to aliens under this subsection. Such
procedure shall not prevent an alien from
asserting protection under this section in
removal proceedings if the alien demonstrates
that the alien is a national of a state
designated under paragraph (1).
(c) Aliens Eligible for Temporary Protected Status.--
(1) In general.--
(A) Nationals of designated foreign
states.--Subject to paragraph (3), an alien,
who is a national of a state designated under
subsection (b)(1) (or in the case of an alien
having no nationality, is a person who last
habitually resided in such designated state),
meets the requirements of this paragraph only
if--
(i) * * *
(ii) the alien has continuously
resided in the United States since such
date as the [Attorney General]
Secretary of Homeland Security may
designate;
* * * * * * *
(iv) to the extent and in a manner
which the [Attorney General] Secretary
of Homeland Security establishes, the
alien registers for the temporary
protected status under this section
during a registration period of not
less than 180 days.
(B) Registration fee.--The [Attorney
General] Secretary of Homeland Security may
require payment of a reasonable fee as a
condition of registering an alien under
subparagraph (A)(iv) (including providing an
alien with an ``employment authorized''
endorsement or other appropriate work permit
under this section). The amount of any such fee
shall not exceed $50. In the case of aliens
registered pursuant to a designation under this
section made after July 17, 1991, the [Attorney
General] Secretary of Homeland Security may
impose a separate, additional fee for providing
an alien with documentation of work
authorization. Notwithstanding section 3302 of
title 31, United States Code, all fees
collected under this subparagraph shall be
credited to the appropriation to be used in
carrying out this section.
(2) Eligibility standards.--
(A) Waiver of certain grounds for
inadmissibility.--In the determination of an
alien's admissibility for purposes of
subparagraph (A)(iii) of paragraph (1)--
(i) * * *
(ii) except as provided in clause
(iii), the [Attorney General] Secretary
of Homeland Security may waive any
other provision of section 212(a) in
the case of individual aliens for
humanitarian purposes, to assure family
unity, or when it is otherwise in the
public interest; but
(iii) the [Attorney General]
Secretary of Homeland Security may not
waive--
(I) * * *
* * * * * * *
(B) Aliens ineligible.--An alien shall not
be eligible for temporary protected status
under this section if the [Attorney General]
Secretary of Homeland Security finds that--
(i) the alien has been convicted of
any felony or 2 or more misdemeanors
committed in the United States, [or]
(ii) the alien is described in
section 208(b)(2)(A)[.]; or
(iii) the alien is, or at any time
after admission has been, a member of a
criminal gang (as defined in section
101(a)(53)).
(3) Withdrawal of temporary protected status.--The
[Attorney General] Secretary of Homeland Security shall
withdraw temporary protected status granted to an alien
under this section if--
(A) the [Attorney General] Secretary of
Homeland Security finds that the alien was not
in fact eligible for such status under this
section,
* * * * * * *
(C) the alien fails, without good cause, to
register with the [Attorney General] Secretary
of Homeland Security annually, at the end of
each 12-month period after the granting of such
status, in a form and manner specified by the
[Attorney General] Secretary of Homeland
Security.
(4) Treatment of brief, casual, and innocent
departures and certain other absences.--
(A) For purposes of paragraphs (1)(A)(i)
and (3)(B), an alien shall not be considered to
have failed to maintain continuous physical
presence in the United States by virtue of
brief, casual, and innocent absences from the
United States, without regard to whether such
absences were authorized by the [Attorney
General] Secretary of Homeland Security.
* * * * * * *
(6) Confidentiality of information.--The [Attorney
General] Secretary of Homeland Security shall establish
procedures to protect the confidentiality of
information provided by aliens under this section.
(d) Documentation.--
(1) Initial issuance.--Upon the granting of
temporary protected status to an alien under this
section, the [Attorney General] Secretary of Homeland
Security shall provide for the issuance of such
temporary documentation and authorization as may be
necessary to carry out the purposes of this section.
(2) Period of validity.--Subject to paragraph (3),
such documentation shall be valid during the initial
period of designation of the foreign state (or part
thereof) involved and any extension of such period. The
[Attorney General] Secretary of Homeland Security may
stagger the periods of validity of the documentation
and authorization in order to provide for an orderly
renewal of such documentation and authorization and for
an orderly transition (under paragraph (3)) upon the
termination of a designation of a foreign state (or any
part of such foreign state).
[(3) Effective date of terminations.--If the
Attorney General terminates the designation of a
foreign state (or part of such foreign state) under
subsection (b)(3)(B), such termination shall only apply
to documentation and authorization issued or renewed
after the effective date of the publication of notice
of the determination under that subsection (or, at the
Attorney General's option, after such period after the
effective date of the determination as the Attorney
General determines to be appropriate in order to
provide for an orderly transition).]
(4) Detention of the alien.--An alien provided
temporary protected status under this section shall not
be detained by the [Attorney General] Secretary of
Homeland Security on the basis of the alien's
immigration status in the United States. The Secretary
of Homeland Security may detain an alien provided
temporary protected status under this section whenever
appropriate under any other provision of law.
(e) Relation of Period of Temporary Protected Status to
Cancellation of Removal.--With respect to an alien granted
temporary protected status under this section, the period of
such status shall not be counted as a period of physical
presence in the United States for purposes of section 240A(a),
unless the [Attorney General] Secretary of Homeland Security
determines that extreme hardship exists. Such period shall not
cause a break in the continuity of residence of the period
before and after such period for purposes of such section.
(f) Benefits and Status During Period of Temporary
Protected Status.--During a period in which an alien is granted
temporary protected status under this section--
(1) * * *
* * * * * * *
(3) the alien may travel abroad with the prior
consent of the [Attorney General] Secretary of Homeland
Security; and
* * * * * * *
(g) Exclusive Remedy.--Except as otherwise specifically
provided, this section shall constitute the exclusive authority
of the [Attorney General] Secretary of Homeland Security under
law to permit aliens who are or may become otherwise deportable
or have been paroled into the United States to remain in the
United States temporarily because of their particular
nationality or region of foreign state of nationality.
* * * * * * *
(i) Annual Report and Review.--
(1) Annual report.--Not later than March 1 of each
year (beginning with 1992), the [Attorney General]
Secretary of Homeland Security, after consultation with
the appropriate agencies of the Government, shall
submit a report to the Committees on the Judiciary of
the House of Representatives and of the Senate on the
operation of this section during the previous year.
Each report shall include--
(A) * * *
* * * * * * *
Chapter 5--Adjustment and Change of Status
* * * * * * *
ADJUSTMENT OF STATUS OF CERTAIN ENTRANTS BEFORE JANUARY 1, 1982, TO
THAT OF PERSON ADMITTED FOR LAWFUL RESIDENCE
Sec. 245A. (a) * * *
* * * * * * *
(c) Applications for Adjustment of Status.--
(1) * * *
* * * * * * *
(5) Confidentiality of information.--
(A) In general.--Except as provided in this
paragraph, neither the [Attorney General]
Secretary of Homeland Security, nor any other
official or employee of the [Department of
Justice,] Department of Homeland Security, or
bureau or agency thereof, may--
(i) * * *
* * * * * * *
(B) Required disclosures.--The [Attorney
General] Secretary of Homeland Security shall
provide the information furnished under this
section, and any other information derived from
such furnished information, to a duly
recognized law enforcement entity in connection
with a criminal investigation or prosecution,
when such information is requested in writing
by such entity, or to an official coroner for
purposes of affirmatively identifying a
deceased individual (whether or not such
individual is deceased as a result of a crime).
[(C) Authorized disclosures.--The Attorney
General may provide, in the Attorney General's
discretion, for the furnishing of information
furnished under this section in the same manner
and circumstances as census information may be
disclosed by the Secretary of Commerce under
section 8 of title 13, United States Code.]
(C) Authorized disclosures.--
(i) Census purpose.--The Secretary
of Homeland Security may provide, in
his discretion, for the furnishing of
information furnished under this
section in the same manner and
circumstances as census information may
be disclosed under section 8 of title
13, United States Code.
(ii) National security purpose.--
The Secretary of Homeland Security may
provide, in his discretion, for the
furnishing, use, publication, or
release of information furnished under
this section in any investigation,
case, or matter, or for any purpose,
relating to terrorism, national
intelligence or the national security.
(D) Construction.--
(i) In general.--Nothing in this
paragraph shall be construed to limit
the use, or release, for immigration
enforcement purposes or law enforcement
purposes of information contained in
files or records of the [Service]
Department of Homeland Security
pertaining to an application filed
under this section, other than
information furnished by an applicant
pursuant to the application, or any
other information derived from the
application, that is not available from
any other source.
* * * * * * *
[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 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) entered the United States prior to January 1,
1972;
[(b) has had his residence in the United States
continuously since such entry;
[(c) is a person of good moral character; and
[(d) is not ineligible to citizenship and is not
deportable under section 237(a)(4)(B).]
RECORD OF ADMISSION FOR PERMANENT RESIDENCE IN THE CASE OF CERTAIN
ALIENS WHO ENTERED THE UNITED STATES PRIOR TO JANUARY 1, 1972
Sec. 249. The Secretary of Homeland Security, in the
discretion of the Secretary and under such regulations as the
Secretary may prescribe, may enter a record of lawful admission
for permanent residence in the case of any alien, if no such
record is otherwise available and the alien--
(1) entered the United States before January 1,
1972;
(2) has continuously resided in the United States
since such entry;
(3) has been a person of good moral character since
such entry;
(4) is not ineligible for citizenship;
(5) is not described in paragraph (1)(A)(iv), (2),
(3), (6)(C), (6)(E), or (8) of section 212(a); and
(6) did not, at any time, without reasonable cause
fail or refuse to attend or remain in attendance at a
proceeding to determine the alien's inadmissibility or
deportability.
Such recordation shall be effective as of the date of approval
of the application or as of the date of entry if such entry
occurred prior to July 1, 1924.
* * * * * * *
Chapter 8--General Penalty Provisions
* * * * * * *
[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.
[(C) It is not a violation of clauses (ii)
or (iii) of subparagraph (A), or of clause (iv)
of subparagraph (A) except where a person
encourages or induces an alien to come to or
enter the United States, for a religious
denomination having a bona fide nonprofit,
religious organization in the United States, or
the agents or officers of such denomination or
organization, to encourage, invite, call,
allow, or enable an alien who is present in the
United States to perform the vocation of a
minister or missionary for the denomination or
organization in the United States as a
volunteer who is not compensated as an
employee, notwithstanding the provision of
room, board, travel, medical assistance, and
other basic living expenses, provided the
minister or missionary has been a member of the
denomination for at least one year.
[(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.sections 274A to 285; footnotes 206-
227; 1/15/95 & 2/16 #216a; 3/14/95: notes on Sec. 283..]
SEC. 274. ALIEN SMUGGLING AND RELATED OFFENSES.
(a) Criminal Offenses and Penalties.--
(1) Prohibited activities.--Except as provided in
paragraph (3), a person shall be punished as provided
under paragraph (2), if the person--
(A) facilitates, encourages, directs, or
induces a person to come to or enter the United
States, or to cross the border to the United
States, knowing or in reckless disregard of the
fact that such person is an alien who lacks
lawful authority to come to, enter, or cross
the border to the United States;
(B) facilitates, encourages, directs, or
induces a person to come to or enter the United
States, or to cross the border to 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, knowing or
in reckless disregard of the fact that such
person is an alien and regardless of whether
such alien has official permission or lawful
authority to be in the United States;
(C) 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 alien is seeking to
enter the United States without official
permission or lawful authority;
(D) encourages or induces a person to
reside 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 the United States;
(E) 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, if the transportation or
movement will further the alien's illegal entry
into or illegal presence in the United States;
(F) 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; or
(G) conspires or attempts to commit any of
the acts described in subparagraphs (A) through
(F).
(2) Criminal penalties.--A person who violates any
provision under paragraph (1) shall, for each alien in
respect to whom a violation of paragraph (1) occurs--
(A) except as provided in subparagraphs (C)
through (G), if the violation was not committed
for commercial advantage, profit, or private
financial gain, be fined under title 18, United
States Code, imprisoned for not more than 5
years, or both;
(B) except as provided in subparagraphs (C)
through (G), if the violation was committed for
commercial advantage, profit, or private
financial gain--
(i) be fined under such title,
imprisoned for not more than 20 years,
or both, if the violation is the
offender's first violation under this
subparagraph; or
(ii) be fined under such title,
imprisoned for not less than 3 years or
more than 20 years, or both, if the
violation is the offender's second or
subsequent violation of this
subparagraph;
(C) if the violation furthered or aided the
commission of any other offense against the
United States or any State that is punishable
by imprisonment for more than 1 year, be fined
under such title, imprisoned for not less than
5 years or more than 20 years, or both;
(D) be fined under such title, imprisoned
not less than 5 years or more than 20 years, or
both, if the violation created a substantial
and foreseeable risk of death, a substantial
and foreseeable risk of serious bodily injury
(as defined in section 2119(2) of title 18,
United States Code), or inhumane conditions to
another person, including--
(i) transporting the person in an
engine compartment, storage
compartment, or other confined space;
(ii) transporting the person at an
excessive speed or in excess of the
rated capacity of the means of
transportation; or
(iii) transporting the person in,
harboring the person in, or otherwise
subjecting the person to crowded or
dangerous conditions;
(E) if the violation caused serious bodily
injury (as defined in section 2119(2) of title
18, United States Code) to any person, be fined
under such title, imprisoned for not less than
7 years or more than 30 years, or both;
(F) be fined under such title and
imprisoned for not less than 10 years or more
than 30 years if the violation involved an
alien who the offender knew or had reason to
believe was--
(i) engaged in terrorist activity
(as defined in section 212(a)(3)(B));
or
(ii) intending to engage in
terrorist activity; or
(G) if the violation caused or resulted in
the death of any person, be punished by death
or imprisoned for a term of years not less than
10 years and up to life, and fined under title
18, United States Code.
(3) Limitation.--It is not a violation of
subparagraph (D), (E), or (F) of paragraph (1) for a
religious denomination having a bona fide nonprofit,
religious organization in the United States, or the
agents or officers of such denomination or
organization, to encourage, invite, call, allow, or
enable an alien who is present in the United States to
perform the vocation of a minister or missionary for
the denomination or organization in the United States
as a volunteer who is not compensated as an employee,
notwithstanding the provision of room, board, travel,
medical assistance, and other basic living expenses,
provided the minister or missionary has been a member
of the denomination for at least 1 year.
(4) Extraterritorial jurisdiction.--There is
extraterritorial Federal jurisdiction over the offenses
described in this subsection.
(b) Seizure and Forfeiture.--
(1) In general.--Any real or personal property 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, except that such
duties as are imposed upon the Secretary of the
Treasury under the customs laws described in section
981(d) shall be performed by such officers, agents, and
other persons as may be designated for that purpose by
the Secretary of Homeland Security.
(3) Prima facie evidence in determinations of
violations.--In determining whether a violation of
subsection (a) has occurred, prima facie evidence that
an alien involved in the alleged violation lacks lawful
authority to come to, enter, reside in, remain in, or
be in the United States or that such alien had come to,
entered, resided in, remained in, or been present in
the United States in violation of law may include:
(A) any order, finding, or determination
concerning the alien's status or lack of status
made by a Federal judge or administrative
adjudicator (including an immigration judge or
immigration officer) during any judicial or
administrative proceeding authorized under
Federal immigration law;
(B) official records of the Department of
Homeland Security, the Department of Justice,
or the Department of State concerning the
alien's status or lack of status; and
(C) testimony by an immigration officer
having personal knowledge of the facts
concerning the alien's status or lack of
status.
(c) Authority To Arrest.--No officer or person shall have
authority to make any arrests for a violation of any provision
of this section except:
(1) officers and employees designated by the
Secretary of Homeland Security, either individually or
as a member of a class; and
(2) other officers responsible for the enforcement
of Federal criminal laws.
(d) Admissibility of Videotaped Witness 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:
(1) the witness was available for cross examination
at the deposition by the party, if any, opposing
admission of the testimony; and
(2) the deposition otherwise complies with the
Federal Rules of Evidence.
(e) Definitions.--In this section:
(1) Cross the border to the united states.--The
term ``cross the border'' refers to the physical act of
crossing the border, regardless of whether the alien is
free from official restraint.
(2) Lawful authority.--The term ``lawful
authority'' means permission, authorization, or license
that is expressly provided for in the immigration laws
of the United States or accompanying regulations. The
term does not include any such authority secured by
fraud or otherwise obtained in violation of law or
authority sought, but not approved. No alien shall be
deemed to have lawful authority to come to, enter,
reside in, remain in, or be in the United States if
such coming to, entry, residence, remaining, or
presence was, is, or would be in violation of law.
(3) Proceeds.--The term ``proceeds'' includes any
property or interest in property obtained or retained
as a consequence of an act or omission in violation of
this section.
(4) Unlawful transit.--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.
* * * * * * *
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.--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 (including
cancellation of removal and adjustment of status)
during the time the alien remains in the United States
and for a period of 10 years after the alien's
departure from the United States.
(2) Savings provision.--Nothing in paragraph (1)
shall preclude a motion to reopen to seek withholding
of removal under section 241(b)(3) or protection
against torture, if the motion--
(A) presents material evidence of changed
country conditions arising after the date of
the final order of removal in the country to
which the alien would be removed; and
(B) makes a sufficient showing to the
satisfaction of the Attorney General that the
alien is otherwise eligible for such
protection.
[entry of alien at improper time or place; misrepresentation and
concealment of facts
[Sec. 275. (a) 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, shall, for the first commission of any such
offense, be fined under title 18, United States Code, or
imprisoned not more than 6 months, or both, and, for a
subsequent commission of any such offense, be fined under title
18, United States Code, or imprisoned not more than 2 years, or
both.
[(b) Any alien who is apprehended while entering (or
attempting to enter) the United States at a time or place other
than as designated by immigration officers shall be subject to
a civil penalty of--
[(1) at least $50 and not more than $250 for each
such entry (or attempted entry); or
[(2) twice the amount specified in paragraph (1) in
the case of an alien who has been previously subject to
a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and
not in lieu of, any criminal or other civil penalties that may
be imposed.
[(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 years, or fined not
more than $250,000, or both.
[(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 years,
fined in accordance with title 18, United States Code, or both.
[reentry of removed alien
[Sec. 276. (a) Subject to subsection (b), any alien who--
[(1) has been denied admission, excluded, deported,
or removed or has departed the United States while an
order of exclusion, deportation, or removal is
outstanding, and thereafter
[(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, or both.
[(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, 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, 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, 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
[(4) who was removed from the United States
pursuant to section 241(a)(4)(B) who thereafter,
without the permission of the Attorney General, enters,
attempts to enter, or is at any time found in, the
United States (unless the Attorney General has
expressly consented to such alien's reentry) shall be
fined under title 18, United States Code, imprisoned
for 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.
[(c) Any alien deported pursuant to section 242(h)(2) who
enters, attempts to enter, or is at any time found in, the
United States (unless the Attorney General 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.
[(d) In a criminal proceeding under this section, an alien
may not challenge the validity of the deportation order
described in subsection (a)(1) or subsection (b) unless the
alien demonstrates that--
[(1) the alien exhausted any administrative
remedies that may have been available to seek relief
against the order;
[(2) the deportation proceedings at which the order
was issued improperly deprived the alien of the
opportunity for judicial review; and
[(3) the entry of the order was fundamentally
unfair.]
ILLEGAL ENTRY OR PRESENCE
Sec. 275. (a) In General.--
(1) Illegal entry.--An alien shall be subject to
the penalties set forth in paragraph (2) if the alien:
(A) knowingly enters or crosses the border
into the United States at any time or place
other than as designated by the Secretary of
Homeland Security;
(B) knowingly eludes, at any time or place,
examination or inspection by an authorized
immigration, customs, or agriculture officer
(including by failing to stop at the command of
such officer);
(C) knowingly enters or crosses the border
to the United States and, upon examination or
inspection, knowingly makes a false or
misleading representation or the knowing
concealment of a material fact (including such
representation or concealment in the context of
arrival, reporting, entry, or clearance
requirements of the customs laws, immigration
laws, agriculture laws, or shipping laws);
(D) knowingly violates the terms or
conditions of the alien's admission or parole
into the United States; or
(E) knowingly is unlawfully present in the
United States (as defined in section
212(a)(9)(B)(ii) subject to the exceptions set
for in section 212(a)(9)(B)(iii)).
(2) Criminal penalties.--Any alien who violates any
provision under paragraph (1):
(A) shall, for the first violation, be
fined under title 18, United States Code,
imprisoned not more than 6 months, or both;
(B) shall, for a second or subsequent
violation, or following an order of voluntary
departure, be fined under such title,
imprisoned not more than 2 years (or not more
than 6 months in the case of a second or
subsequent violation of paragraph (1)(E)), or
both;
(C) if the violation occurred after the
alien had been convicted of 3 or more
misdemeanors or for a felony, shall be fined
under such title, imprisoned not more than 10
years, or both;
(D) if the violation occurred after the
alien had been convicted of a felony for which
the alien received a term of imprisonment of
not less than 30 months, shall be fined under
such title, imprisoned not more than 15 years,
or both; and
(E) if the violation occurred after the
alien had been convicted of a felony for which
the alien received a term of imprisonment of
not less than 60 months, such alien shall be
fined under such title, imprisoned not more
than 20 years, or both.
(3) Prior convictions.--The prior convictions
described in subparagraphs (C) through (E) of paragraph
(2) are elements of the offenses described and the
penalties in such subparagraphs shall apply only in
cases in which the conviction or convictions that form
the basis for the additional penalty are--
(A) alleged in the indictment or
information; and
(B) proven beyond a reasonable doubt at
trial or admitted by the defendant.
(4) Duration of offense.--An offense under this
subsection continues until the alien is discovered
within the United States by an immigration, customs, or
agriculture officer.
(5) Attempt.--Whoever attempts to commit any
offense under this section shall be punished in the
same manner as for a completion of such offense.
(b) Improper Time or Place; Civil Penalties.--Any alien who
is apprehended while entering, attempting to enter, or
knowingly crossing or attempting to cross the border to the
United States at a time or place other than as designated by
immigration officers shall be subject to a civil penalty, in
addition to any criminal or other civil penalties that may be
imposed under any other provision of law, in an amount equal
to--
(1) not less than $50 or more than $250 for each
such entry, crossing, attempted entry, or attempted
crossing; or
(2) twice the amount specified in paragraph (1) if
the alien had previously been subject to a civil
penalty under this subsection.
REENTRY OF REMOVED ALIEN
Sec. 276. (a) Reentry after Removal.--Any alien who has
been denied admission, excluded, deported, or removed, or who
has departed the United States while an order of exclusion,
deportation, or removal is outstanding, and subsequently
enters, attempts to enter, crosses the border to, attempts to
cross the border to, or is at any time found in the United
States, shall be fined under title 18, United States Code,
imprisoned not more than 2 years, or both.
(b) Reentry of Criminal Offenders.--Notwithstanding the
penalty provided in subsection (a), if an alien described in
that subsection was convicted before such removal or
departure--
(1) for 3 or more misdemeanors or for a felony, the
alien shall be fined under title 18, United States
Code, imprisoned not more than 10 years, or both;
(2) for a felony for which the alien was sentenced
to a term of imprisonment of not less than 30 months,
the alien shall be fined under such title, imprisoned
not less than 2 years and not more than 15 years, or
both;
(3) for a felony for which the alien was sentenced
to a term of imprisonment of not less than 60 months,
the alien shall be fined under such title, imprisoned
not less than 4 years and not more than 20 years, or
both; or
(4) for murder, rape, kidnapping, or a felony
offense described in chapter 77 (relating to peonage
and slavery) or 113B (relating to terrorism) of such
title, or for 3 or more felonies of any kind, the alien
shall be fined under such title, imprisoned not less
than 5 years and not more than 25 years, or both.
(c) Reentry after Repeated Removal.--Any alien who has been
denied admission, excluded, deported, or removed 3 or more
times and thereafter enters, attempts to enter, crosses the
border to, attempts to cross the border to, or is at any time
found in the United States, shall be fined under title 18,
United States Code, imprisoned not more than 10 years, or both.
(d) Proof of Prior Convictions.--The prior convictions
described in subsection (b) are elements of the crimes
described, and the penalties in that subsection shall apply
only in cases in which the conviction or convictions that form
the basis for the additional penalty are--
(1) alleged in the indictment or information; and
(2) proven beyond a reasonable doubt at trial or
admitted by the defendant.
(e) Affirmative Defenses.--It shall be an affirmative
defense to a violation of this section that--
(1) prior to the alleged violation, the alien had
sought and received the express consent of the
Secretary of Homeland Security to reapply for admission
into the United States; or
(2) with respect to an alien previously denied
admission and removed, the alien--
(A) was not required to obtain such advance
consent under the Immigration and Nationality
Act or any prior Act; and
(B) had complied with all other laws and
regulations governing the alien's admission
into the United States.
(f) Limitation on Collateral Attack on Underlying Removal
Order.--In a criminal proceeding under this section, an alien
may not challenge the validity of any prior removal order
concerning the alien.
(g) Reentry of Alien Removed Prior to Completion of Term of
Imprisonment.--Any alien removed pursuant to section 241(a)(4)
who enters, attempts to enter, crosses the border to, attempts
to cross the border to, or is at any time found in, the United
States 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 unless
the alien affirmatively demonstrates that the Secretary of
Homeland Security has expressly consented to the alien's
reentry. Such alien shall be subject to such other penalties
relating to the reentry of removed aliens as may be available
under this section or any other provision of law.
(h) Definitions.--For purposes of this section and section
275, the following definitions shall apply:
(1) Crosses the border to the United States.--The
term ``crosses the border'' refers to the physical act
of crossing the border, regardless of whether the alien
is free from official restraint.
(2) Felony.--The term ``felony'' means any criminal
offense punishable by a term of imprisonment of more
than 1 year under the laws of the United States, any
State, or a foreign government.
(3) Misdemeanor.--The term ``misdemeanor'' means
any criminal offense punishable by a term of
imprisonment of not more than 1 year under the
applicable laws of the United States, any State, or a
foreign government.
(4) Removal.--The term ``removal'' includes any
denial of admission, exclusion, deportation, or
removal, or any agreement by which an alien stipulates
or agrees to exclusion, deportation, or removal.
(5) State.--The term ``State'' means a State of the
United States, the District of Columbia, and any
commonwealth, territory, or possession of the United
States.
* * * * * * *
Chapter 9--Miscellaneous
* * * * * * *
powers of immigration officers and employees
Sec. 287. (a) Any officer or employee of the Service
authorized under regulations prescribed by the Attorney General
shall have power without warrant--
(1) * * *
(2) to arrest any alien who in his presence or view
is entering or attempting to enter the United States in
violation of any law or regulation made in pursuance of
law regulating the admission, exclusion, expulsion or
removal of aliens, or to arrest any alien in the United
States, if he has reason to believe that the alien so
arrested is in the United States in violation of any
such law or [regulation and is likely to escape before
a warrant can be obtained for his arrest,] regulation,
but the alien arrested shall be taken without
unnecessary delay for examination before an officer of
the Service having authority to examine aliens as to
their right to enter or remain in the United States;
* * * * * * *
(g)(1) Notwithstanding section 1342 of title 31, United
States Code, the Attorney General [may enter into a written
agreement with a State, or any political subdivision of a
State, pursuant to which an officer or employee of the State or
subdivision, who is determined by the Attorney General to be
qualified to perform a function of an immigration officer in
relation to the investigation, apprehension, or detention of
aliens in the United States (including the transportation of
such aliens across State lines to detention centers), may carry
out such function at the expense of the State or political
subdivision and to the extent consistent with State and local
law.] shall enter into a written agreement with a State, or any
political subdivision of a State, upon request of the State or
political subdivision, pursuant to which an officer or employee
of the State or subdivision, who is determined by the Secretary
to be qualified to perform a function of an immigration officer
in relation to the investigation, apprehension, or detention of
aliens in the United States (including the transportation of
such aliens across State lines to detention centers), may carry
out such function at the expense of the State or political
subdivision and to extent consistent with State and local law.
No request from a bona fide State or political subdivision or
bona fide law enforcement agency shall be denied absent a
compelling reason. No limit on the number of agreements under
this subsection may be imposed. The Secretary shall process
requests for such agreements with all due haste, and in no case
shall take not more than 90 days from the date the request is
made until the agreement is consummated.
(2) An agreement under this subsection shall accommodate a
requesting State or political subdivision with respect to the
enforcement model or combination of models, and shall
accommodate a patrol model, task force model, jail model, any
combination thereof, or any other reasonable model the State or
political subdivision believes is best suited to the
immigration enforcement needs of its jurisdiction.
(3) No Federal program or technology directed broadly at
identifying inadmissible or deportable aliens shall substitute
for such agreements, including those establishing a jail model,
and shall operate in addition to any agreement under this
subsection.
(4)(A) No agreement under this subsection shall be
terminated absent a compelling reason.
(B)(i) The Secretary shall provide a State or political
subdivision written notice of intent to terminate at least 180
days prior to date of intended termination, and the notice
shall fully explain the grounds for termination, along with
providing evidence substantiating the Secretary's allegations.
(ii) The State or political subdivision shall have the
right to a hearing before an administrative law judge and, if
the ruling is against the State or political subdivision, to
appeal the ruling to the Federal Circuit Court of Appeals and,
if the ruling is against the State or political subdivision, to
the Supreme Court.
(C) The agreement shall remain in full effect during the
course of any and all legal proceedings.
[(2)] (5) An agreement under this subsection shall require
that an officer or employee of a State or political subdivision
of a State performing a function under the agreement shall have
knowledge of, and adhere to, Federal law relating to the
function, and shall contain a written certification that the
officers or employees performing the function under the
agreement have received adequate training regarding the
enforcement of relevant Federal immigration laws.
(6) The Secretary of Homeland Security shall make training
of State and local law enforcement officers available through
as many means as possible, including through residential
training at the Center for Domestic Preparedness and the
Federal Law Enforcement Training Center, onsite training held
at State or local police agencies or facilities, online
training courses by computer, teleconferencing, and videotape,
or the digital video display (DVD) of a training course or
courses. Distance learning through a secure, encrypted
distributed learning system that has all its servers based in
the United States, is scalable, survivable, and can have a
portal in place not later than 30 days after the date of the
enactment of this Act, shall be made available by the COPS
Office of the Department of Justice and the Federal Law
Enforcement Training Center Distributed Learning Program for
State and local law enforcement personnel. Preference shall be
given to private sector-based web-based immigration enforcement
training programs for which the Federal Government has already
provided support to develop.
[(3)] (7) In performing a function under this subsection,
an officer or employee of a State or political subdivision of a
State shall be subject to the direction and supervision of the
Attorney General.
[(4)] (8) In performing a function under this subsection,
an officer or employee of a State or political subdivision of a
State may use Federal property or facilities, as provided in a
written agreement between the Attorney General and the State or
subdivision.
[(5)] (9) With respect to each officer or employee of a
State or political subdivision who is authorized to perform a
function under this subsection, the specific powers and duties
that may be, or are required to be, exercised or performed by
the individual, the duration of the authority of the
individual, and the position of the agency of the Attorney
General who is required to supervise and direct the individual,
shall be set forth in a written agreement between the Attorney
General and the State or political subdivision.
[(6)] (10) The Attorney General may not accept a service
under this subsection if the service will be used to displace
any Federal employee.
[(7)] (11) Except as provided in paragraph (8), an officer
or employee of a State or political subdivision of a State
performing functions under this subsection shall not be treated
as a Federal employee for any purpose other than for purposes
of chapter 81 of title 5, United States Code (relating to
compensation for injury), and sections 2671 through 2680 of
title 28, United States Code (relating to tort claims).
[(8)] (12) An officer or employee of a State or political
subdivision of a State acting under color of authority under
this subsection, or any agreement entered into under this
subsection, shall be considered to be acting under color of
Federal authority for purposes of determining the liability,
and immunity from suit, of the officer or employee in a civil
action brought under Federal or State law.
[(9)] (13) Nothing in this subsection shall be construed to
require any State or political subdivision of a State to enter
into an agreement with the Attorney General under this
subsection.
[(10)] (14) Nothing in this subsection shall be construed
to require an agreement under this subsection in order for any
officer or employee of a State or political subdivision of a
State--
(A) * * *
* * * * * * *
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 seek,
not later than the date that is 120 days after the Secretary of
Homeland Security's final determination, 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, whether, for purposes of an
application for naturalization, an alien is a person of good
moral character, whether the 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) Persons Endangering the National Security.--No person
shall be naturalized who the Secretary of Homeland Security
determines 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.
* * * * * * *
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;] other Act; and no application for naturalization
shall be considered by the Secretary of Homeland Security or
any court if there is pending against the applicant any removal
proceeding 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 Secretary of Homeland
Security with respect to the question of whether such person
has established his eligibility for naturalization as required
by this title; and no application for naturalization shall be
considered by the Attorney General 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:
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 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 of Homeland
Security 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 of Homeland Security for the
Secretary's determination on the application.
* * * * * * *
revocation of naturalization
Sec. 340. (a) * * *
* * * * * * *
(f)(1) If a person who has been naturalized participates in
any act described in paragraph (2), the Attorney General is
authorized to find that, as of the date of such naturalization,
such person was not attached to the principles of the
Constitution of the United States and was not well disposed to
the good order and happiness of the United States at the time
of naturalization, and upon such finding shall set aside the
order admitting such person to citizenship and cancel the
certificate of naturalization as having been obtained by
concealment of a material fact or by willful misrepresentation,
and such revocation and setting aside of the order admitting
such person to citizenship and such canceling of certificate of
naturalization shall be effective as of the original date of
the order and certificate, respectively.
(2) The acts described in this paragraph are the following:
(A) Any activity a purpose of which is the
opposition to, or the control or overthrow of, the
Government of the United States by force, violence, or
other unlawful means.
(B) Engaging in a terrorist activity (as defined in
clauses (iii) and (iv) of section 212(a)(3)(B)).
(C) Incitement of terrorist activity under
circumstances indicating an intention to cause death or
serious bodily harm.
(D) Receiving military-type training (as defined in
section 2339D(c)(1) of title 18, United States Code)
from or on behalf of any organization that, at the time
the training was received, was a terrorist organization
(as defined in section 212(a)(3)(B)(vi)).
[(f)] (g) Whenever an order admitting an alien to
citizenship shall be revoked and set aside or a certificate of
naturalization shall be canceled, or both, as provided in this
section, the court in which such judgment or decree is rendered
shall make an order canceling such certificate and shall send a
certified copy of such order to the Attorney General. The clerk
of court shall transmit a copy of such order and judgment to
the Attorney General. A person holding a certificate of
naturalization or citizenship which has been canceled as
provided by this section shall upon notice by the court by
which the decree of cancellation was made, or by the Attorney
General, surrender the same to the Attorney General.
[(g)] (h) The provisions of this section shall apply not
only to any naturalization granted and to certificates of
naturalization and citizenship issued under the provisions of
this title, but to any naturalization heretofore granted by any
court, and to all certificates of naturalization and
citizenship which may have been issued heretofore by any court
or by the Commissioner based upon naturalization granted by any
court, or by a designated representative of the Commissioner
under the provisions of section 702 of the Nationality Act of
1940, as amended, or by such designated representative under
any other Act.
[(h)] (i) Nothing contained in this section shall be
regarded as limiting, denying, or restricting the power of the
Attorney General to correct, reopen, alter, modify, or vacate
an order naturalizing the person.
* * * * * * *
Chapter 4--Miscellaneous
* * * * * * *
CONSTRUCTION
Sec. 362. (a) In General.--Nothing in this Act or any other
law, except as provided in subsection (d), shall be construed
to require the Secretary of Homeland Security, the Attorney
General, the Secretary of State, the Secretary of Labor, or a
consular officer to grant any application, approve any
petition, or grant or continue any relief, protection from
removal, employment authorization, or any other status or
benefit under the immigration laws by, to, or on behalf of--
(1) any alien deemed by the Secretary to be
described in section 212(a)(3) or section 237(a)(4); or
(2) any alien with respect to whom a criminal or
other proceeding or investigation is open or pending
(including, but not limited to, issuance of an arrest
warrant, detainer, or indictment), where such
proceeding or investigation is deemed by the official
described in subsection (a) to be material to the
alien's eligibility for the status or benefit sought.
(b) Denial or Withholding of Adjudication.--An official
described in subsection (a) may, in the discretion of the
official, deny (with respect to an alien described in paragraph
(1) or (2) of subsection (a)) or withhold adjudication of
pending resolution of the investigation or case (with respect
to an alien described in subsection (a)(2) of this section) any
application, petition, relief, protection from removal,
employment authorization, status or benefit.
(c) Jurisdiction.--Notwithstanding any other provision of
law (statutory or nonstatutory), including section 309 of the
Enhanced Border Security and Visa Entry Reform Act (8 U.S.C.
1738), sections 1361 and 1651 of title 28, United States Code,
and section 706(1) of title 5, United States Code, no court
shall have jurisdiction to review a decision to deny or
withhold adjudication pursuant to subsection (b) of this
section.
(d) Withholding of Removal and Torture Convention.--This
section does not limit or modify the applicability of section
241(b)(3) or the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment,
subject to any reservations, understandings, declarations and
provisos contained in the United States Senate resolution of
ratification of the Convention, as implemented by section 2242
of the Foreign Affairs Reform and Restructuring Act of 1998
(Public Law 105-277) with respect to an alien otherwise
eligible for protection under such provisions.
* * * * * * *
----------
ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
SEC. 641. PROGRAM TO COLLECT INFORMATION RELATING TO NONIMMIGRANT
FOREIGN STUDENTS AND OTHER EXCHANGE PROGRAM
PARTICIPANTS.
(a) * * *
* * * * * * *
(d) Participation by Institutions of Higher Education and
Exchange Visitor Programs.--
(1) Condition.--The information described in
subsection (c) shall be provided by institutions of
higher education, other approved educational
institutions, or exchange visitor programs as a
condition of--
(A) in the case of an approved institution
of higher education, or other approved
educational [institution,,] institution, the
continued approval of the institution under
subparagraph (F) or (M) of section 101(a)(15)
of the Immigration and Nationality Act; and
* * * * * * *
(3) Effect of reasonable suspicion of fraud.--If
the Secretary of Homeland Security has reasonable
suspicion that an owner of, or a designated school
official at, an approved institution of higher
education, an other approved educational institution,
or a designated exchange visitor program has committed
fraud or attempted to commit fraud relating to any
aspect of the Student and Exchange Visitor Program, the
Secretary may immediately suspend, without notice, such
official's or such school's access to the Student and
Exchange Visitor Information System (SEVIS), including
the ability to issue Form I-20s, pending a final
determination by the Secretary with respect to the
institution's certification under the Student and
Exchange Visitor Program.
(4) Permanent disqualification for fraud.--A
designated school official at, or an owner of, an
approved institution of higher education, an other
approved educational institution, or a designated
exchange visitor program who is convicted for fraud
relating to any aspect of the Student and Exchange
Visitor Program shall be permanently disqualified from
filing future petitions and from having an ownership
interest or a management role, including serving as a
principal, owner, officer, board member, general
partner, designated school official, or any other
position of substantive authority for the operations or
management of the institution, in any United States
educational institution that enrolls nonimmigrant alien
students described in subparagraph (F) or (M) of
section 101(a)(15) the Immigration and Nationality Act
(8 U.S.C. 1101(a)(15)).
(5) Background check requirement.--
(A) In general.--An individual may not
serve as a designated school official or be
granted access to SEVIS unless the individual
is a national of the United States or an alien
lawfully admitted for permanent residence and
during the most recent 3-year period--
(i) the Secretary of Homeland
Security has--
(I) conducted a thorough
background check on the
individual, including a review
of the individual's criminal
and sex offender history and
the verification of the
individual's immigration
status; and
(II) determined that the
individual has not been
convicted of any violation of
United States immigration law
and is not a risk to national
security of the United States;
and
(ii) the individual has
successfully completed an on-line
training course on SEVP and SEVIS,
which has been developed by the
Secretary.
(B) Interim designated school official.--
(i) In general.--An individual may
serve as an interim designated school
official during the period that the
Secretary is conducting the background
check required by subparagraph
(A)(i)(I).
(ii) Reviews by the secretary.--If
an individual serving as an interim
designated school official under clause
(i) does not successfully complete the
background check required by
subparagraph (A)(i)(I), the Secretary
shall review each Form I-20 issued by
such interim designated school
official.
(6) Fee.--The Secretary is authorized to collect a
fee from an approved school for each background check
conducted under paragraph (6)(A)(i). The amount of such
fee shall be equal to the average amount expended by
the Secretary to conduct such background checks.
(7) Number of designated school officials.--School
officials may nominate as many Designated School
Officials (DSOs) in addition to the school's Principal
Designated School Official (PDSO) as they determine
necessary to adequately provide recommendations to
students enrolled at the school regarding maintenance
of nonimmigrant status under subparagraph (F) or (M) of
section 101(a)(15) and to support timely and complete
recordkeeping and reporting to the Secretary of
Homeland Security, as required by this section, except
that a school may not have less than one DSO per every
200 students who have nonimmigrant status pursuant to
subparagraph (F), (J), or (M) of such section. School
officials shall not permit a DSO or PDSO nominee access
to SEVIS until the Secretary approves the nomination.
* * * * * * *
SEC. 642. COMMUNICATION BETWEEN GOVERNMENT AGENCIES AND THE IMMIGRATION
AND NATURALIZATION SERVICE
(a) In general.-- Notwithstanding any other provision of
Federal, State, or local law, a Federal, State, or local
government entity or official [may] shall not prohibit, or in
any way restrict, any government entity or official from
sending to, or receiving from, the [Immigration and
Naturalization Service] Department of Homeland Security
information regarding the citizenship or immigration status,
lawful or unlawful, of any individual.
(b) Additional authority of government entities.--
Notwithstanding any other provision of Federal, State, or local
law, [no person or agency may] a person or agency shall not
prohibit, or in any way restrict, a Federal, State, or local
government entity from [doing any of the following with respect
to information ] undertaking any of the following law
enforcement activities regarding the immigration status, lawful
or unlawful, of any individual:
[(1) Sending such information to, or requesting or
receiving such information from, the Immigration and
Naturalization Service.
[(2) Maintaining such information.
[(3) Exchanging such information with any other
Federal, State, or local government entity.]
(1) Notifying the Federal Government regarding the
presence of inadmissible and deportable aliens who are
encountered by law enforcement personnel of a State or
political subdivision of a State.
(2) Complying with requests for information from
Federal law enforcement.
(3) Complying with detainers issued by the
Department of Homeland Security.
(4) Issuing policies in the form of a resolutions,
ordinances, administrative actions, general or special
orders, or departmental policies that violate Federal
law or restrict a State or political subdivision of a
State from complying with Federal law or coordinating
with Federal law enforcement.
(c) Obligation to respond to inquiries.--The [Immigration
and Naturalization Service] Department of Homeland Security
shall respond to an inquiry by a Federal, State, or local
government agency, seeking to verify or ascertain the
citizenship or immigration status of any individual within the
jurisdiction of the agency for any purpose authorized by law,
by providing the requested verification or status information.
(d) Compliance.--
(1) In general.--A State, or a political
subdivision of a State, that has in effect a statute,
policy, or practice that prohibits law enforcement
officers of the State, or of a political subdivision of
the State, from assisting or cooperating with Federal
immigration law enforcement in the course of carrying
out the officers' routine law enforcement duties shall
not be eligible to receive--
(A) any of the funds that would otherwise
be allocated to the State or political
subdivision under section 241(i) of the
Immigration and Nationality Act (8 U.S.C.
1231(i)) or the ``Cops on the Beat'' program
under part Q of title I of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C.
3796dd et seq.); or
(B) any other law enforcement or Department
of Homeland Security grant.
(2) Annual determination.--The Secretary shall
determine annually which State or political subdivision
of a State are not in compliance with this section and
shall report such determinations to Congress on March 1
of each year.
(3) Reports.--The Attorney General shall issue a
report concerning the compliance of any particular
State or political subdivision at the request of the
House or Senate Judiciary Committee. Any jurisdiction
that is found to be out of compliance shall be
ineligible to receive Federal financial assistance as
provided in paragraph (1) for a minimum period of 1
year, and shall only become eligible again after the
Attorney General certifies that the jurisdiction is in
compliance.
(4) Reallocation.--Any funds that are not allocated
to a State or to a political subdivision of a State,
due to the failure of the State, or of the political
subdivision of the State, to comply with subsection (c)
shall be reallocated to States, or to political
subdivisions of States, that comply with such
subsection.
(e) Construction Nothing in this section shall require law
enforcement officials from States, or from political
subdivisions of States, to report or arrest victims or
witnesses of a criminal offense.
* * * * * * *
----------
IMMIGRATION ACT OF 1990
* * * * * * *
TITLE V--ENFORCEMENT
Subtitle A--Criminal Aliens
* * * * * * *
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.
* * * * * * *
----------
INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004
* * * * * * *
TITLE V--BORDER PROTECTION, IMMIGRATION, AND VISA MATTERS
Subtitle E--Treatment of Aliens Who Commit Acts of Torture,
Extrajudicial Killings, or Other Atrocities Abroad
* * * * * * *
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) by striking the period at the end of paragraph
(8) and inserting ``; or''; and
(2) by [adding at the end] inserting 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).''.
* * * * * * *
TITLE VII--IMPLEMENTATION OF 9/11 COMMISSION RECOMMENDATIONS
* * * * * * *
Subtitle B--Terrorist Travel and Effective Screening
SEC. 7201. COUNTERTERRORIST TRAVEL INTELLIGENCE.
(a) * * *
* * * * * * *
(c) Frontline Counterterrorist Travel Technology and
Training.--
(1) Technology acquisition and dissemination
plan.--Not later than 180 days after the date of
enactment of this Act, the Secretary of Homeland
Security, in conjunction with the Secretary of State,
shall submit to Congress a plan describing how the
Department of Homeland Security and the Department of
State can acquire and deploy, to the maximum extent
feasible, to all consulates, ports of entry, and
immigration benefits offices, technologies that
facilitate document authentication and the detection of
potential terrorist indicators on travel documents. To
the extent possible, technologies acquired and deployed
under this plan shall be compatible with systems used
by the Department of Homeland Security and the
Department of State to detect fraudulent documents and
identify genuine documents.
* * * * * * *
SEC. 7209. TRAVEL DOCUMENTS.
(a) * * *
* * * * * * *
(d) Transit Without Visa Program.--The Secretary of State
shall not use any authorities granted under section
212(d)(4)(C) of such Act until [the Secretary, in conjunction
with the Secretary of Homeland Security,] the Secretary of
Homeland Security, in consultation with the Secretary of State,
completely implements a security plan to fully ensure secure
transit passage areas to prevent aliens proceeding in immediate
and continuous transit through the United States from illegally
entering the United States.
* * * * * * *
----------
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 44--FIREARMS
* * * * * * *
Sec. 922. Unlawful acts
(a) * * *
* * * * * * *
(d) It shall be unlawful for any person to sell or
otherwise dispose of any firearm or ammunition to any person
knowing or having reasonable cause to believe that such
person--
(1) * * *
* * * * * * *
(5) who, being an alien--
(A) * * *
(B) except as provided in subsection
[(y)(2), has been admitted to the United States
under a nonimmigrant visa (as that term is
defined in section 101(a)(26) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(26)));] (y), is in the United States
not as an alien lawfully admitted for permanent
residence;
* * * * * * *
(g) It shall be unlawful for any person--
(1) * * *
* * * * * * *
(5) who, being an alien--
(A) * * *
(B) except as provided in subsection
[(y)(2), has been admitted to the United States
under a nonimmigrant visa (as that term is
defined in section 101(a)(26) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(26)));] (y), is in the United States
not as an alien lawfully admitted for permanent
residence;
* * * * * * *
(y) Provisions Relating to Aliens [Admitted Under
Nonimmigrant Visas.--] Not Lawfully Admitted for Permanent
Residence.--
(1) Definitions.--In this subsection--
(A) * * *
[(B) the term ``nonimmigrant visa'' has the
same meaning as in section 101(a)(26) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(26)).]
(B) the term ``lawfully admitted for
permanent residence'' has the same meaning as
in section 101(a)(20) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(20)).
(2) Exceptions.--Subsections (d)(5)(B), (g)(5)(B),
and (s)(3)(B)(v)(II) do not apply to any alien who has
been lawfully admitted to the United States [under a
nonimmigrant visa] but not lawfully admitted for
permanent residence, if that alien is--
(A) * * *
* * * * * * *
(3) Waiver.--
(A) Conditions for waiver.--Any individual
who has been [admitted to the United States
under a nonimmigrant visa] lawfully admitted to
the United States but not as an alien lawfully
admitted for permanent residence may receive a
waiver from the requirements of subsection
(g)(5), if--
(i) * * *
* * * * * * *
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 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, and 1328).
* * * * * * *
CHAPTER 46--FORFEITURE
Sec. 981. Civil forfeiture
(a)(1) The following property is subject to forfeiture to
the United States:
(A) * * *
* * * * * * *
(I) Any property, real or personal, that has been
used to commit or facilitate the commission of a
violation of chapter 75, the gross proceeds of such
violation, and any property traceable to any such
property or proceeds.
* * * * * * *
CHAPTER 47--FRAUD AND FALSE STATEMENTS
* * * * * * *
Sec. 1028. Fraud and related activity in connection with identification
documents, authentication features, and information
(a) Whoever, in a circumstance described in subsection (c)
of this section--
(1) * * *
* * * * * * *
(7) knowingly transfers, posseses, or uses, without
lawful authority, a means of identification [of another
person] that is not his or her own with the intent to
commit, or to aid or abet, or in connection with, any
unlawful activity that constitutes a violation of
Federal law, or that constitutes a felony under any
applicable State or local law; or
* * * * * * *
Sec. 1028A. Aggravated identity theft
(a) Offenses.--
(1) In general.--Whoever, during and in relation to
any felony violation enumerated in subsection (c),
knowingly transfers, possesses, or uses, without lawful
authority, a means of identification [of another
person] that is not his or her own shall, in addition
to the punishment provided for such felony, be
sentenced to a term of imprisonment of 2 years.
(2) Terrorism offense.--Whoever, during and in
relation to any felony violation enumerated in section
2332b(g)(5)(B), knowingly transfers, possesses, or
uses, without lawful authority, a means of
identification [of another person] that is not his or
her own or a false identification document shall, in
addition to the punishment provided for such felony, be
sentenced to a term of imprisonment of 5 years.
* * * * * * *
[CHAPTER 75--PASSPORTS AND VISAS
[Sec.
[1541. Issuance without authority.
[1542. False statement in application and use of passport.
[1543. Forgery or false use of passport.
[1544. Misuse of passport.
[1545. Safe conduct violation.
[1546. Fraud and misuse of visas, permits, and other documents.
[1547. Alternative imprisonment maximum for certain offenses.
[Sec. 1541. Issuance without authority
[Whoever, acting or claiming to act in any office or
capacity under the United States, or a State, without lawful
authority grants, issues, or verifies any passport or other
instrument in the nature of a passport to or for any person
whomsoever; or
[Whoever, being a consular officer authorized to grant,
issue, or verify passports, knowingly and willfully grants,
issues, or verifies any such passport to or for any person not
owing allegiance, to the United States, whether a citizen or
not--
[Shall be fined under this title, imprisoned not more than
25 years (if the offense was committed to facilitate an act of
international terrorism (as defined in section 2331 of this
title)), 20 years (if the offense was committed to facilitate a
drug trafficking crime (as defined in section 929(a) of this
title)), 10 years (in the case of the first or second such
offense, if the offense was not committed to facilitate such an
act of international terrorism or a drug trafficking crime), or
15 years (in the case of any other offense), or both.
[For purposes of this section, the term ``State'' means a
State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States.
[Sec. 1542. False statement in application and use of passport
[Whoever willfully and knowingly makes any false statement
in an application for passport with intent to induce or secure
the issuance of a passport under the authority of the United
States, either for his own use or the use of another, contrary
to the laws regulating the issuance of passports or the rules
prescribed pursuant to such laws; or
[Whoever willfully and knowingly uses or attempts to use,
or furnishes to another for use any passport the issue of which
was secured in any way by reason of any false statement--
[Shall be fined under this title, imprisoned not more than
25 years (if the offense was committed to facilitate an act of
international terrorism (as defined in section 2331 of this
title)), 20 years (if the offense was committed to facilitate a
drug trafficking crime (as defined in section 929(a) of this
title)), 10 years (in the case of the first or second such
offense, if the offense was not committed to facilitate such an
act of international terrorism or a drug trafficking crime), or
15 years (in the case of any other offense), or both.
[Sec. 1543. Forgery or false use of passport
[Whoever falsely makes, forges, counterfeits, mutilates, or
alters any passport or instrument purporting to be a passport,
with intent that the same may be used; or
[Whoever willfully and knowingly uses, or attempts to use,
or furnishes to another for use any such false, forged,
counterfeited, mutilated, or altered passport or instrument
purporting to be a passport, or any passport validly issued
which has become void by the occurrence of any condition
therein prescribed invalidating the same--
[Shall be fined under this title, imprisoned not more than
25 years (if the offense was committed to facilitate an act of
international terrorism (as defined in section 2331 of this
title)), 20 years (if the offense was committed to facilitate a
drug trafficking crime (as defined in section 929(a) of this
title)), 10 years (in the case of the first or second such
offense, if the offense was not committed to facilitate such an
act of international terrorism or a drug trafficking crime), or
15 years (in the case of any other offense), or both.
[Sec. 1544. Misuse of passport
[Whoever willfully and knowingly uses, or attempts to use,
any passport issued or designed for the use of another; or
[Whoever willfully and knowingly uses or attempts to use
any passport in violation of the conditions or restrictions
therein contained, or of the rules prescribed pursuant to the
laws regulating the issuance of passports; or
[Whoever willfully and knowingly furnishes, disposes of, or
delivers a passport to any person, for use by another than the
person for whose use it was originally issued and designed--
[Shall be fined under this title, imprisoned not more than
25 years (if the offense was committed to facilitate an act of
international terrorism (as defined in section 2331 of this
title)), 20 years (if the offense was committed to facilitate a
drug trafficking crime (as defined in section 929(a) of this
title)), 10 years (in the case of the first or second such
offense, if the offense was not committed to facilitate such an
act of international terrorism or a drug trafficking crime), or
15 years (in the case of any other offense), or both.
[Sec. 1545. Safe conduct violation
[Whoever violates any safe conduct or passport duly
obtained and issued under authority of the United States shall
be fined under this title, imprisoned not more than 10 years,
or both.
[Sec. 1546. Fraud and misuse of visas, permits, and other documents
[(a) Whoever knowingly forges, counterfeits, alters, or
falsely makes any immigrant or nonimmigrant visa, permit,
border crossing card, alien registration receipt card, or other
document prescribed by statute or regulation for entry into or
as evidence of authorized stay or employment in the United
States, or utters, uses, attempts to use, possesses, obtains,
accepts, or receives any such visa, permit, border crossing
card, alien registration receipt card, or other document
prescribed by statute or regulation for entry into or as
evidence of authorized stay or employment in the United States,
knowing it to be forged, counterfeited, altered, or falsely
made, or to have been procured by means of any false claim or
statement, or to have been otherwise procured by fraud or
unlawfully obtained; or
[Whoever, except under direction of the Attorney General or
the Commissioner of the Immigration and Naturalization Service,
or other proper officer, knowingly possesses any blank permit,
or engraves, sells, brings into the United States, or has in
his control or possession any plate in the likeness of a plate
designed for the printing of permits, or makes any print,
photograph, or impression in the likeness of any immigrant or
nonimmigrant visa, permit or other document required for entry
into the United States, or has in his possession a distinctive
paper which has been adopted by the Attorney General or the
Commissioner of the Immigration and Naturalization Service for
the printing of such visas, permits, or documents; or
[Whoever, when applying for an immigrant or nonimmigrant
visa, permit, or other document required for entry into the
United States, or for admission to the United States personates
another, or falsely appears in the name of a deceased
individual, or evades or attempts to evade the immigration laws
by appearing under an assumed or fictitious name without
disclosing his true identity, or sells or otherwise disposes
of, or offers to sell or otherwise dispose of, or utters, such
visa, permit, or other document, to any person not authorized
by law to receive such document; or
[Whoever knowingly makes under oath, or as permitted under
penalty of perjury under section 1746 of title 28, United
States Code, knowingly subscribes as true, any false statement
with respect to a material fact in any application, affidavit,
or other document required by the immigration laws or
regulations prescribed thereunder, or knowingly presents any
such application, affidavit, or other document which contains
any such false statement or which fails to contain any
reasonable basis in law or fact--
[Shall be fined under this title or imprisoned not more
than 25 years (if the offense was committed to facilitate an
act of international terrorism (as defined in section 2331 of
this title)), 20 years (if the offense was committed to
facilitate a drug trafficking crime (as defined in section
929(a) of this title)), 10 years (in the case of the first or
second such offense, if the offense was not committed to
facilitate such an act of international terrorism or a drug
trafficking crime), or 15 years (in the case of any other
offense), or both.
[(b) Whoever uses--
[(1) an identification document, knowing (or having
reason to know) that the document was not issued
lawfully for the use of the possessor,
[(2) an identification document knowing (or having
reason to know) that the document is false, or
[(3) a false attestation,
for the purpose of satisfying a requirement of section 274A(b)
of the Immigration and Nationality Act, shall be fined under
this title, imprisoned not more than 5 years, or both.
[(c) This section does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of a law
enforcement agency of the United States, a State, or a
subdivision of a State, or of an intelligence agency of the
United States, or any activity authorized under title V of the
Organized Crime Control Act of 1970 (18 U.S.C. note prec.
3481). For purposes of this section, the term ``State'' means a
State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States.
[Sec. 1547. Alternative imprisonment maximum for certain offenses
[Notwithstanding any other provision of this title, the
maximum term of imprisonment that may be imposed for an offense
under this chapter (other than an offense under section 1545)--
[(1) if committed to facilitate a drug trafficking
crime (as defined in 929(a)) is 15 years; and
[(2) if committed to facilitate an act of
international terrorism (as defined in section 2331) is
20 years.]
CHAPTER 75--PASSPORTS AND VISAS
Sec.
1541. Issuance without authority.
1542. False statement in application and use of passport.
1543. Forgery or false use of passport.
1544. Misuse of a passport.
1545. Schemes to defraud aliens.
1546. Immigration and visa fraud.
1547. Attempts and conspiracies.
1548. Alternative penalties for certain offenses.
1549. Definitions.
Sec. 1541. Issuance without authority
(a) In General.--Whoever--
(1) acting or claiming to act in any office or
capacity under the United States, or a State, without
lawful authority grants, issues, or verifies any
passport or other instrument in the nature of a
passport to or for any person; or
(2) being a consular officer authorized to grant,
issue, or verify passports, knowingly grants, issues,
or verifies any such passport to or for any person not
owing allegiance, to the United States, whether a
citizen or not;
shall be fined under this title or imprisoned not more than 15
years, or both.
(b) Definition.--In this section, the term ``State'' means
a State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States.
Sec. 1542. False statement in application and use of passport
Whoever knowingly--
(1) makes any false statement in an application for
passport with intent to induce or secure the issuance
of a passport under the authority of the United States,
either for his own use or the use of another, contrary
to the laws regulating the issuance of passports or the
rules prescribed pursuant to such laws; or
(2) uses or attempts to use, or furnishes to
another for use any passport the issue of which was
secured in any way by reason of any false statement;
shall be fined under this title or imprisoned not more than 15
years, or both.
Sec. 1543. Forgery or false use of passport
Whoever--
(1) falsely makes, forges, counterfeits, mutilates,
or alters any passport or instrument purporting to be a
passport, with intent that the same may be used; or
(2) knowingly uses, or attempts to use, or
furnishes to another for use any such false, forged,
counterfeited, mutilated, or altered passport or
instrument purporting to be a passport, or any passport
validly issued which has become void by the occurrence
of any condition therein prescribed invalidating the
same;
shall be fined under this title or imprisoned not more than 15
years, or both.
Sec. 1544. Misuse of a passport
Whoever knowingly--
(1) uses any passport issued or designed for the
use of another;
(2) uses any passport in violation of the
conditions or restrictions therein contained, or in
violation of the laws, regulations, or rules governing
the issuance and use of the passport;
(3) secures, possesses, uses, receives, buys,
sells, or distributes any passport knowing it to be
forged, counterfeited, altered, falsely made, procured
by fraud, stolen, or produced or issued without lawful
authority; or
(4) violates the terms and conditions of any safe
conduct duly obtained and issued under the authority of
the United States;
shall be fined under this title, imprisoned not more than 15
years, or both.
Sec. 1545. Schemes to defraud aliens
Whoever inside the United States, or in or affecting
interstate or foreign commerce, in connection with any matter
that is authorized by or arises under the immigration laws of
the United States or any matter the offender claims or
represents is authorized by or arises under the immigration
laws of the United States, knowingly executes a scheme or
artifice--
(1) to defraud any person, or
(2) to obtain or receive money or anything else of
value from any person by means of false or fraudulent
pretenses, representations, or promises;
shall be fined under this title, imprisoned not more than 15
years, or both.
Sec. 1546. Immigration and visa fraud
Whoever knowingly--
(1) uses any immigration document issued or
designed for the use of another;
(2) forges, counterfeits, alters, or falsely makes
any immigration document;
(3) mails, prepares, presents, or signs any
immigration document knowing it to contain any
materially false statement or representation;
(4) secures, possesses, uses, transfers, receives,
buys, sells, or distributes any immigration document
knowing it to be forged, counterfeited, altered,
falsely made, stolen, procured by fraud, or produced or
issued without lawful authority;
(5) adopts or uses a false or fictitious name to
evade or to attempt to evade the immigration laws;
(6) transfers or furnishes, without lawful
authority, an immigration document to another person
for use by a person other than the person for whom the
immigration document was issued or designed; or
(7) produces, issues, authorizes, or verifies,
without lawful authority, an immigration document;
shall be fined under this title, imprisoned not more than 15
years, or both.
Sec. 1547. Attempts and conspiracies
Whoever attempts or conspires to violate this chapter shall
be punished in the same manner as a person who completes that
violation.
Sec. 1548. Alternative penalties for certain offenses
(a) Terrorism.--Whoever violates any section in this
chapter to facilitate an act of international terrorism or
domestic terrorism (as such terms are defined in section 2331),
shall be fined under this title or imprisoned not more than 25
years, or both.
(b) Drug Trafficking Offenses.--Whoever violates any
section in this chapter to facilitate a drug trafficking crime
(as defined in section 929(a)) shall be fined under this title
or imprisoned not more than 20 years, or both.
Sec. 1549. Definitions
In this chapter:
(1) An ``application for a United States passport''
includes any document, photograph, or other piece of
evidence attached to or submitted in support of the
application.
(2) The term ``immigration document'' means any
instrument on which is recorded, by means of letters,
figures, or marks, matters which may be used to fulfill
any requirement of the Immigration and Nationality Act.
* * * * * * *
CHAPTER 95--RACKETEERING
* * * * * * *
Sec. 1956. Laundering of monetary instruments
(a)(1) Whoever, knowing that the property involved in a
financial transaction represents the proceeds of some form of
unlawful activity, conducts or attempts to conduct such a
financial transaction which in fact involves the proceeds of
specified unlawful activity--
(A) * * *
[(B) knowing that the transaction is designed in
whole or in part--
[(i) to conceal or disguise the nature, the
location, the source, the ownership, or the
control of the proceeds of specified unlawful
activity; or
[(ii) to avoid a transaction reporting
requirement under State or Federal law,]
(B) knowing that the transaction--
(i) conceals or disguises, or is intended
to conceal or disguise, the nature, source,
location, ownership, or control of the proceeds
of some form of unlawful activity; or
(ii) avoids, or is intended to avoid, a
transaction reporting requirement under State
or Federal law,
shall be sentenced to a fine of not more than $500,000 or twice
the value of the property involved in the transaction,
whichever is greater, or imprisonment for not more than twenty
years, or both. For purposes of this paragraph, a financial
transaction shall be considered to be one involving the
proceeds of specified unlawful activity if it is part of a set
of parallel or dependent transactions, any one of which
involves the proceeds of specified unlawful activity, and all
of which are part of a single plan or arrangement.
(2) Whoever transports, transmits, or transfers, or
attempts to transport, transmit, or transfer a monetary
instrument or funds from a place in the United States to or
through a place outside the United States or to a place in the
United States from or through a place outside the United
States--
(A) * * *
[(B) knowing that the monetary instrument or funds
involved in the transportation, transmission, or
transfer represent the proceeds of some form of
unlawful activity and knowing that such transportation,
transmission, or transfer is designed in whole or in
part--
[(i) to conceal or disguise the nature, the
location, the source, the ownership, or the
control of the proceeds of specified unlawful
activity; or
[(ii) to avoid a transaction reporting
requirement under State or Federal law,]
(B) knowing that the monetary instrument or funds
involved in the transportation, transmission, or
transfer represent the proceeds of some form of
unlawful activity, and knowing that such
transportation, transmission, or transfer--
(i) conceals or disguises, or is intended
to conceal or disguise, the nature, source,
location, ownership, or control of the proceeds
of some form of unlawful activity; or
(ii) avoids, or is intended to avoid, a
transaction reporting requirement under State
or Federal law,
shall be sentenced to a fine of not more than $500,000 or twice
the value of the monetary instrument or funds involved in the
transportation, transmission, or transfer, whichever is
greater, or imprisonment for not more than twenty years, or
both. For the purpose of the offense described in subparagraph
(B), the defendant's knowledge may be established by proof that
a law enforcement officer represented the matter specified in
subparagraph (B) as true, and the defendant's subsequent
statements or actions indicate that the defendant believed such
representations to be true.
* * * * * * *
(c) As used in this section--
(1) * * *
* * * * * * *
(7) the term ``specified unlawful activity''
means--
(A) * * *
* * * * * * *
(D) an offense under section 32 (relating
to the destruction of aircraft), section 37
(relating to violence at international
airports), section 115 (relating to
influencing, impeding, or retaliating against a
Federal official by threatening or injuring a
family member), section 152 (relating to
concealment of assets; false oaths and claims;
bribery), section 175c (relating to the variola
virus), section 215 (relating to commissions or
gifts for procuring loans), section 351
(relating to congressional or Cabinet officer
assassination), any of sections 500 through 503
(relating to certain counterfeiting offenses),
section 513 (relating to securities of States
and private entities), section 541 (relating to
goods falsely classified), section 542 relating
to entry of goods by means of false
statements), section 545 (relating to smuggling
goods into the United States), section 549
(relating to removing goods from Customs
custody), section 554 (relating to smuggling
goods from the United States), section 555
(relating to border tunnels), section 641
(relating to public money, property, or
records), section 656 (relating to theft,
embezzlement, or misapplication by bank officer
or employee), section 657 (relating to lending,
credit, and insurance institutions), section
658 (relating to property mortgaged or pledged
to farm credit agencies), section 666 (relating
to theft or bribery concerning programs
receiving Federal funds), section 793, 794, or
798 (relating to espionage), section 831
(relating to prohibited transactions involving
nuclear materials), section 844 (f) or (i)
(relating to destruction by explosives or fire
of Government property or property affecting
interstate or foreign commerce), section 875
(relating to interstate communications),
section 922(1) (relating to the unlawful
importation of firearms), section 924(n)
(relating to firearms trafficking), section 956
(relating to conspiracy to kill, kidnap, maim,
or injure certain property in a foreign
country), section 1005 (relating to fraudulent
bank entries), 1006(relating to fraudulent
Federal credit institution entries),
1007(relating to Federal Deposit Insurance
transactions), 1014(relating to fraudulent loan
or credit applications), section 1030 (relating
to computer fraud and abuse), 1032(relating to
concealment of assets from conservator,
receiver, or liquidating agent of financial
institution), section 1111 (relating to
murder), section 1114 (relating to murder of
United States law enforcement officials),
section 1116 (relating to murder of foreign
officials, official guests, or internationally
protected persons), section 1201 (relating to
kidnaping), section 1203 (relating to hostage
taking), section 1361 (relating to willful
injury of Government property), section 1363
(relating to destruction of property within the
special maritime and territorial jurisdiction),
section 1590 (relating to trafficking with
respect to peonage, slavery, involuntary
servitude, or forced labor), section 1708
(theft from the mail), section 1751 (relating
to Presidential assassination), section 2113 or
2114 (relating to bank and postal robbery and
theft), section 2252A (relating to child
pornography) where the child pornography
contains a visual depiction of an actual minor
engaging in sexually explicit conduct, section
2260 (production of certain child pornography
for importation into the United States),
section 2280 (relating to violence against
maritime navigation), section 2281 (relating to
violence against maritime fixed platforms),
section 2319 (relating to copyright
infringement), section 2320 (relating to
trafficking in counterfeit goods and services),
section 2332 (relating to terrorist acts abroad
against United States nationals), section 2332a
(relating to use of weapons of mass
destruction), section 2332b (relating to
international terrorist acts transcending
national boundaries), section 2332g (relating
to missile systems designed to destroy
aircraft), section 2332h (relating to
radiological dispersal devices), section 2339A
or 2339B (relating to providing material
support to terrorists), section 2339C (relating
to financing of terrorism), or section 2339D
(relating to receiving military-type training
from a foreign terrorist organization) of this
title, section 46502 of title 49, United States
Code, a felony violation of the Chemical
Diversion and Trafficking Act of 1988 (relating
to precursor and essential chemicals), section
590 of the Tariff Act of 1930 (19 U.S.C. 1590)
(relating to aviation smuggling), section
274(a) of the Immigration and Nationality Act
(8 U.S.C.1324(a)) (relating to bringing in and
harboring certain aliens), section 422 of the
Controlled Substances Act (relating to
transportation of drug paraphernalia), section
38(c) (relating to criminal violations) of the
Arms Export Control Act, section 11 (relating
to violations) of the Export Administration Act
of 1979, section 206 (relating to penalties) of
the International Emergency Economic Powers
Act, section 16 (relating to offenses and
punishment) of the Trading with the Enemy Act,
any felony violation of section 15 of the Food
and Nutrition Act of 2008 (relating to
supplemental nutrition assistance program
benefits fraud) involving a quantity of
benefits having a value of not less than
$5,000, any violation of section 543(a)(1) of
the Housing Act of 1949 (relating to equity
skimming), any felony violation of the Foreign
Agents Registration Act of 1938, any felony
violation of the Foreign Corrupt Practices Act,
or section 92 of the Atomic Energy Act of 1954
(42 U.S.C. 2122) (relating to prohibitions
governing atomic weapons)
* * * * * * *
CHAPTER 96--RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
Sec. 1961. Definitions
As used in this chapter--
(1) ``racketeering activity'' means (A) any act or
threat involving murder, kidnapping, gambling, arson,
robbery, bribery, extortion, dealing in obscene matter,
or dealing in a controlled substance or listed chemical
(as defined in section 102 of the Controlled Substances
Act), which is chargeable under State law and
punishable by imprisonment for more than one year; (B)
any act which is indictable under any of the following
provisions of title 18, United States Code: Section 201
(relating to bribery), section 224 (relating to sports
bribery), sections 471, 472, and 473 (relating to
counterfeiting), section 659 (relating to theft from
interstate shipment) if the act indictable under
section 659 is felonious, section 664 (relating to
embezzlement from pension and welfare funds), sections
891-894 (relating to extortionate credit transactions),
section 1028 (relating to fraud and related activity in
connection with identification documents), section 1029
(relating to fraud and related activity in connection
with access devices), section 1084 (relating to the
transmission of gambling information), section 1341
(relating to mail fraud), section 1343 (relating to
wire fraud), section 1344 (relating to financial
institution fraud), section 1351 (relating to fraud in
foreign labor contracting), section 1425 (relating to
the procurement of citizenship or nationalization
unlawfully), section 1426 (relating to the reproduction
of naturalization or citizenship papers), section 1427
(relating to the sale of naturalization or citizenship
papers), sections 1461-1465 (relating to obscene
matter), section 1503 (relating to obstruction of
justice), section 1510 (relating to obstruction of
criminal investigations), section 1511 (relating to the
obstruction of State or local law enforcement), section
1512 (relating to tampering with a witness, victim, or
an informant), section 1513 (relating to retaliating
against a witness, victim, or an informant), [section
1542 (relating to false statement in application and
use of passport), section 1543 (relating to forgery or
false use of passport), section 1544 (relating to
misuse of passport), section 1546 (relating to fraud
and misuse of visas, permits, and other documents)]
sections 1541-1548 (relating to passports and visas),
sections 1581-1592 (relating to peonage, slavery, and
trafficking in persons)., section 1951 (relating to
interference with commerce, robbery, or extortion),
section 1952 (relating to racketeering), section 1953
(relating to interstate transportation of wagering
paraphernalia), section 1954 (relating to unlawful
welfare fund payments), section 1955 (relating to the
prohibition of illegal gambling businesses), section
1956 (relating to the laundering of monetary
instruments), section 1957 (relating to engaging in
monetary transactions in property derived from
specified unlawful activity), section 1958 (relating to
use of interstate commerce facilities in the commission
of murder-for-hire), section 1960 (relating to illegal
money transmitters), sections 2251, 2251A, 2252, and
2260 (relating to sexual exploitation of children),
sections 2312 and 2313 (relating to interstate
transportation of stolen motor vehicles), sections 2314
and 2315 (relating to interstate transportation of
stolen property), section 2318 (relating to trafficking
in counterfeit labels for phonorecords, computer
programs or computer program documentation or packaging
and copies of motion pictures or other audiovisual
works), section 2319 (relating to criminal infringement
of a copyright), section 2319A (relating to
unauthorized fixation of and trafficking in sound
recordings and music videos of live musical
performances), section 2320 (relating to trafficking in
goods or services bearing counterfeit marks), section
2321 (relating to trafficking in certain motor vehicles
or motor vehicle parts), sections 2341-2346 (relating
to trafficking in contraband cigarettes), sections
2421-24 (relating to white slave traffic), sections
175-178 (relating to biological weapons), sections 229-
F (relating to chemical weapons), section 831 (relating
to nuclear materials),(C) any act which is indictable
under title 29, United States Code, section 186
(dealing with restrictions on payments and loans to
labor organizations) or section 501(c) (relating to
embezzlement from union funds), (D) any offense
involving fraud connected with a case under title 11
(except a case under section 157 of this title), fraud
in the sale of securities, or the felonious
manufacture, importation, receiving, concealment,
buying, selling, or otherwise dealing in a controlled
substance or listed chemical (as defined in section 102
of the Controlled Substances Act), punishable under any
law of the United States, (E) any act which is
indictable under the Currency and Foreign Transactions
Reporting Act, (F) any act which is indictable under
the Immigration and Nationality Act, 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)
if the act indictable under such section of such Act
was committed for the purpose of financial gain, or (G)
any act that is indictable under any provision listed
in section 2332b(g)(5)(B);
* * * * * * *
PART II--CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 213--LIMITATIONS
* * * * * * *
Sec. 3291. Nationality, citizenship and passports
[No person shall be prosecuted, tried, or punished for
violation of any provision of sections 1423 to 1428, inclusive,
of chapter 69 and sections 1541 to 1544, inclusive, of chapter
75 of title 18 of the United States Code, or for conspiracy to
violate any of such sections, unless the indictment is found or
the information is instituted within ten years after the
commission of the offense.] No person shall be prosecuted,
tried, or punished for a violation of any section of chapters
69 (relating to nationality and citizenship offenses) and 75
(relating to passport, visa, and immigration offenses), or for
a violation of any criminal provision of sections 243, 266,
274, 275, 276, 277, or 278 of the Immigration and Nationality
Act, or for an attempt or conspiracy to violate any such
section, unless the indictment is returned or the information
is filed within ten years after the commission of the offense.
* * * * * * *
----------
HOMELAND SECURITY ACT OF 2002
* * * * * * *
TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY
* * * * * * *
Subtitle C--Miscellaneous Provisions
* * * * * * *
SEC. 428. VISA ISSUANCE.
(a) Definition.--In this [subsection] section, the term
``[consular office] consular officer'' has the meaning given
that term under section 101(a)(9) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(9)).
[(b) In General.--Notwithstanding section 104(a) of the
Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other
provision of law, and except as provided in subsection (c) of
this section, the Secretary--
[(1) shall be vested exclusively with all
authorities to issue regulations with respect to,
administer, and enforce the provisions of such Act, and
of all other immigration and nationality laws, relating
to the functions of consular officers of the United
States in connection with the granting or refusal of
visas, and shall have the authority to refuse visas in
accordance with law and to develop programs of homeland
security training for consular officers (in addition to
consular training provided by the Secretary of State),
which authorities shall be exercised through the
Secretary of State, except that the Secretary shall not
have authority to alter or reverse the decision of a
consular officer to refuse a visa to an alien; and
[(2) shall have authority to confer or impose upon
any officer or employee of the United States, with the
consent of the head of the executive agency under whose
jurisdiction such officer or employee is serving, any
of the functions specified in paragraph (1).
[(c) Authority of the Secretary of State.--
[(1) In general.--Notwithstanding subsection (b),
the Secretary of State may direct a consular officer to
refuse a visa to an alien if the Secretary of State
deems such refusal necessary or advisable in the
foreign policy or security interests of the United
States.
[(2) Construction regarding authority.--Nothing in
this section, consistent with the Secretary of Homeland
Security's authority to refuse visas in accordance with
law, shall be construed as affecting the authorities of
the Secretary of State under the following provisions
of law:
[(A) Section 101(a)(15)(A) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(A)).
[(B) Section 204(d)(2) of the Immigration
and Nationality Act (8 U.S.C. 1154) (as it will
take effect upon the entry into force of the
Convention on Protection of Children and
Cooperation in Respect to Inter-Country
adoption).
[(C) Section 212(a)(3)(B)(i)(IV)(bb) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)(i)(IV)(bb)).
[(D) Section 212(a)(3)(B)(i)(VI) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)(i)(VI)).
[(E) Section 212(a)(3)(B)(vi)(II) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)(vi)(II)).
[(F) Section 212(a)(3)(C) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(C)).
[(G) Section 212(a)(10)(C) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(10)(C)).
[(H) Section 212(f) of the Immigration and
Nationality Act (8 U.S.C. 1182(f)).
[(I) Section 219(a) of the Immigration and
Nationality Act (8 U.S.C. 1189(a)).
[(J) Section 237(a)(4)(C) of the
Immigration and Nationality Act (8 U.S.C.
1227(a)(4)(C)).
[(K) Section 401 of the Cuban Liberty and
Democratic Solidarity (LIBERTAD) Act of 1996
(22 U.S.C. 6034; Public Law 104-114).
[(L) Section 613 of the Departments of
Commerce, Justice, and State, the Judiciary and
Related Agencies Appropriations Act, 1999 (as
contained in section 101(b) of division A of
Public Law 105-277) (Omnibus Consolidated and
Emergency Supplemental Appropriations Act,
1999); 112 Stat. 2681; H.R. 4328 (originally
H.R. 4276) as amended by section 617 of Public
Law 106-553.
[(M) Section 103(f) of the Chemical Weapon
Convention Implementation Act of 1998 (112
Stat. 2681-865).
[(N) Section 801 of H.R. 3427, the Admiral
James W. Nance and Meg Donovan Foreign
Relations Authorization Act, Fiscal Years 2000
and 2001, as enacted by reference in Public Law
106-113.
[(O) Section 568 of the Foreign Operations,
Export Financing, and Related Programs
Appropriations Act, 2002 (Public Law 107-115).
[(P) Section 51 of the State Department
Basic Authorities Act of 1956 (22 U.S.C.
2723).]
(b) Authority of the Secretary of Homeland Security.--
(1) In general.--Notwithstanding section 104(a) of
the Immigration and Nationality Act (8 U.S.C. 1104(a))
or any other provision of law, and except as provided
in subsection (c) and except for the authority of the
Secretary of State under subparagraphs (A) and (G) of
section 101(a)(15) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(15)), the Secretary--
(A) shall have exclusive authority to issue
regulations, establish policy, and administer
and enforce the provisions of the Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) and
all other immigration or nationality laws
relating to the functions of consular officers
of the United States in connection with the
granting and refusal of a visa; and
(B) may refuse or revoke any visa to any
alien or class of aliens if the Secretary, or
designee, determines that such refusal or
revocation is necessary or advisable in the
security interests of the United States.
(2) Effect of revocation.--The revocation of any
visa under paragraph (1)(B)--
(A) shall take effect immediately; and
(B) shall automatically cancel any other
valid visa that is in the alien's possession.
(3) Judicial review.--Notwithstanding any other
provision of law, 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 review a decision by
the Secretary of Homeland Security to refuse or revoke
a visa, and no court shall have jurisdiction to hear
any claim arising from, or any challenge to, such a
refusal or revocation.
(c) Authority of the Secretary of State.--
(1) In general.--The Secretary of State may direct
a consular officer to refuse a visa requested by an
alien if the Secretary of State determines such refusal
to be necessary or advisable in the interests of the
United States.
(2) Limitation.--No decision by the Secretary of
State to approve a visa may override a decision by the
Secretary of Homeland Security under subsection (b).
* * * * * * *
[(i) Visa Issuance Program for Saudi Arabia.--
Notwithstanding any other provision of law, after the date of
the enactment of this Act all third party screening programs in
Saudi Arabia shall be terminated. On-site personnel of the
Department of Homeland Security shall review all visa
applications prior to adjudication.]
(i) Visa Issuance at Designated High-Risk Posts.--
Notwithstanding any other provision of law, the Secretary of
Homeland Security shall conduct an on-site review of all visa
applications and supporting documentation before adjudication
at the top 30 visa-issuing posts designated jointly by the
Secretaries of State and Homeland Security as high-risk posts.
(j) Expedited Clearance and Placement of Department of
Homeland Security Personnel at Overseas Embassies and Consular
Posts.--Notwithstanding any other provision of law, and the
processes set forth in National Security Defense Directive 38
(dated June 2, 1982) or any successor Directive, the Chief of
Mission of a post to which the Secretary of Homeland Security
has assigned personnel under subsection (e) or (i) shall
ensure, not later than one year after the date on which the
Secretary of Homeland Security communicates such assignment to
the Secretary of State, that such personnel have been stationed
and accommodated at post and are able to carry out their
duties.
* * * * * * *
Subtitle D--Immigration Enforcement Functions
* * * * * * *
SEC. 442. ESTABLISHMENT OF BUREAU OF BORDER SECURITY.
(a) Establishment of Bureau.--
(1) * * *
* * * * * * *
(5) Student and exchange visitor program.--In
administering the program under paragraph (4), the
Secretary shall, not later than one year after the date
of the enactment of this paragraph, prescribe
regulations to require an institution or exchange
visitor program sponsor participating in the Student
Exchange Visitor Program to ensure that each student or
exchange visitor who has nonimmigrant status pursuant
to subparagraph (F), (J), or (M) of section 101(a)(15)
of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)) enrolled at the institution or attending
the exchange visitor program is reported to the
Department within 10 days of--
(A) transferring to another institution or
program;
(B) changing academic majors; or
(C) any other changes to information
required to be maintained in the system
described in paragraph (4).
[(5)] (6) Managerial rotation program.--
(A) * * *
* * * * * * *
----------
DEPARTMENT OF STATE AND RELATED AGENCY APPROPRIATIONS ACT, 2005
(Title IV of division B of Public Law 108-447)
* * * * * * *
DIVISION B--DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY,
AND RELATED AGENCIES APPROPRIATIONS ACT, 2005
* * * * * * *
TITLE IV--DEPARTMENT OF STATE AND RELATED AGENCY
DEPARTMENT OF STATE
* * * * * * *
Administration of Foreign Affairs
DIPLOMATIC AND CONSULAR PROGRAMS
For necessary expenses of the Department of State and the
Foreign Service not otherwise provided for, including
employment, without regard to civil service and classification
laws, of persons on a temporary basis (not to exceed $700,000
of this appropriation), as authorized by section 801 of the
United States Information and Educational Exchange Act of 1948;
representation to certain international organizations in which
the United States participates pursuant to treaties ratified
pursuant to the advice and consent of the Senate or specific
Acts of Congress; arms control, nonproliferation and
disarmament activities as authorized; acquisition by exchange
or purchase of passenger motor vehicles as authorized by law;
and for expenses of general administration, $3,570,000,000:
Provided, That not to exceed 71 permanent positions shall be
for the Bureau of Legislative Affairs: Provided further, That
none of the funds made available under this heading may be used
to transfer any full-time equivalent employees into or out of
the Bureau of Legislative Affairs: Provided further, That, of
the amount made available under this heading, not to exceed
$4,000,000 may be transferred to, and merged with, funds in the
``Emergencies in the Diplomatic and Consular Service''
appropriations account, to be available only for emergency
evacuations and terrorism rewards: Provided further, That, of
the amount made available under this heading, $319,994,000
shall be available only for public diplomacy international
information programs: Provided further, That of the amount made
available under this heading, $3,000,000 shall be available
only for the operations of the Office on Right-Sizing the
United States Government Overseas Presence: Provided further,
That funds available under this heading may be available for a
United States Government interagency task force to examine,
coordinate and oversee United States participation in the
United Nations headquarters renovation project: Provided
further, That no funds may be obligated or expended for
processing licenses for the export of satellites of United
States origin (including commercial satellites and satellite
components) to the People's Republic of China unless, at least
15 days in advance, the Committees on Appropriations of the
House of Representatives and the Senate are notified of such
proposed action: Provided further, That of the amount made
available under this heading, $185,128,000 is for Near Eastern
Affairs, $80,234,000 is for South Asian Affairs, and
$251,706,000 is for African Affairs: Provided further, That, of
the amount made available under this heading, $2,000,000 shall
be available for a grant to conduct an international conference
on the human rights situation in North Korea: Provided further,
That of the amount made available under this heading, $200,000
is for a grant to the Center for the Study of the Presidency
and $1,900,000 is for a grant to Shared Hope International to
combat international sex tourism: Provided further, That the
Intellectual Property Division shall be elevated to office-
level status and shall be renamed the Office of International
Intellectual Property Enforcement within 60 days of enactment
of this Act.
In addition, not to exceed $1,426,000 shall be derived from
fees collected from other executive agencies for lease or use
of facilities located at the International Center in accordance
with section 4 of the International Center Act; in addition, as
authorized by section 5 of such Act, $490,000, to be derived
from the reserve authorized by that section, to be used for the
purposes set out in that section; in addition, as authorized by
section 810 of the United States Information and Educational
Exchange Act, not to exceed $6,000,000, to remain available
until expended, may be credited to this appropriation from fees
or other payments received from English teaching, library,
motion pictures, and publication programs and from fees from
educational advising and counseling and exchange visitor
programs; and, in addition, not to exceed $15,000, which shall
be derived from reimbursements, surcharges, and fees for use of
Blair House facilities.
In addition, for the costs of worldwide security upgrades,
$658,702,000, to remain available until expended: Provided,
That of the amounts made available under this paragraph,
$5,000,000 is for the Center for Antiterrorism and Security
Training.
[Beginning in fiscal year 2005 and thereafter, the
Secretary of State is authorized to charge surcharges related
to consular services in support of enhanced border security
that are in addition to the passport and immigrant visa fees in
effect on January 1, 2004: Provided, That funds collected
pursuant to this authority shall be credited to this account,
and shall be available until expended for the purposes of such
account: Provided further, That such surcharges shall be $12 on
passport fees, and $45 on immigrant visa fees.] Beginning in
fiscal year 2005 and thereafter, the Secretary of State is
authorized to charge surcharges related to consular services in
support of enhanced border security that are in addition to the
immigrant visa fees in effect on January 1, 2004: Provided,
That funds collected pursuant to this authority shall be
credited to the appropriation for U.S. Immigration and Customs
Enforcement for the fiscal year in which the fees were
collected, and shall be available until expended for the
funding of the Visa Security Program established by the
Secretary of Homeland Security under section 428(e) of the
Homeland Security Act of 2002 (Public Law 107-296): Provided
further, That such surcharges shall be 10 percent of the fee
assessed on immigrant visa applications.
* * * * * * *
Dissenting Views
H.R. 2278, the ``Strengthen and Fortify Enforcement Act''
or the ``SAFE Act,'' takes a dangerous approach to a
complicated problem and will harm communities across the United
States. Like other enforcement-only immigration bills that we
have seen over the years, the SAFE Act does nothing to fix our
broken immigration system and will have far reaching negative
consequences. Overnight, the bill would turn millions of
undocumented immigrants into criminals and would delegate to
all state and local law enforcement officers complete authority
to enforce Federal immigration laws. The bill additionally
authorizes all states and localities to enact their own
immigration laws, imposing civil and criminal penalties that
are harsher than penalties provided under Federal law.
Together, these and other provisions in the bill would result
in widespread discrimination based on race, ethnicity, and
national origin, decreased public safety in communities around
the country, and unconstitutional denials of due process to
persons subjected to enforcement actions, including prolonged
and indefinite detention.
Pursuing this misguided strategy comes at a tremendous
cost. According to an estimate prepared by the nonpartisan
Congressional Budget Office, implementing the SAFE Act would
cost $22.9 billion over the first 5 years.\1\ The bill
additionally squanders limited immigration enforcement
resources by letting individual state and local law enforcement
personnel decide where Federal enforcement resources will be
spent and affirmatively preventing Federal authorities from
setting sensible immigration enforcement priorities that focus
on the timely apprehension and removal of people who pose a
danger to the public.
---------------------------------------------------------------------------
\1\Congressional Budget Office, Cost Estimate, H.R. 2278 (Dec. 5,
2013), available at http://www.cbo.gov/sites/default/files/cbofiles/
attachments/hr2278.pdf.
---------------------------------------------------------------------------
At a time when the country is demanding a commonsense
approach to fixing our broken immigration system, H.R. 2278
takes us in the wrong direction. The SAFE Act is opposed by a
broad cross-section of constituencies. The Major Cities Chiefs
Association (``MCCA''), the Police Executive Research Forum,
the National Organization of Black Law Enforcement Executives,
as well as police chiefs, sheriffs, and district attorneys
across the country warn that the bill will make communities
less safe and undermine community policing efforts.\2\ Faith
leaders, including the National Association of Evangelicals,
the U.S. Conference of Catholic Bishops, and the Episcopal
Church oppose the bill because it will harm people fleeing
persecution, expand the prolonged or indefinite detention of
stateless persons, criminalize religious leaders and houses of
worship that provide humanitarian assistance without regard for
lawful immigration status, and lead to increased racial
profiling and discrimination.\3\ Civil liberties groups,
including the American Civil Liberties Union, the Leadership
Conference for Civil and Human Rights, and the National
Hispanic Leadership Agenda all strongly oppose the bill for its
promotion of unnecessary and ineffective immigration
enforcement efforts, including the expansion of mandatory,
prolonged, or indefinite detention, and its significant attacks
on due process.\4\ Finally, the bill is opposed by advocates
for top-to-bottom reform of our immigration laws, including the
AFL-CIO, the American Immigration Lawyers Association, United
We Dream, the National Immigration Forum, the National
Immigration Law Center, and others.\5\
---------------------------------------------------------------------------
\2\See, e.g., Richard S. Biehl, Police Chief of Dayton, Ohio,
Here's How Not to Jump-Start Immigration Reform in House, Roll Call,
Jan. 24, 2014, available at http://www.rollcall.com/news/
heres_how_not_to_jump_start_immigration_reform_in_house_commentary-
230343-1.html; Letter from Law Enforcement Associations, Chiefs of
Police, and Sheriffs, to Hon. John Boehner, Speaker, and Hon. Nancy
Pelosi, Minority Leader (Oct. 1, 2013) (on file with the H. Comm. on
the Judiciary, Democratic Staff); Remarks of Riverside Police Chief
Sergio Diaz, June 17, 2013, CAMBIO Press Conference on SAFE Act,
www.nilc.org/document.html?id=938; Major Cities Chiefs Police
Association, Police Chiefs From Nation's Major Cities Object to
Legislative Proposals Requiring Local Police to Enforce Federal
Immigration Law, June 2013, http://nilc.org/document.html?id=934;
Statement of Tucson Police Chief Roberto Villasenor, Congress Should
Drop Unfunded Mandates on Law Enforcement, June 26, 2013, at http://
www.nilc.org/nr062613.html; Statement of San Francisco District
Attorney George Gascon, Police Officers Already Overburdened, June 20,
2013, at http://www.nilc.org/nr062013.html; Statement of Salt Lake City
Police Chief Chris Burbank, Law Enforcement Leaders Speak Out Against
House and Senate Anti-Immigrant Proposals, June 18, 2013 (on file with
the H. Comm. on the Judiciary, Democratic Staff); Statement of Austin
Police Chief Art Acevedo, Congress Should Consider Good Policy, Not
Politics, When Dealing with Immigration, June 25, 2013, at http://
www.nilc.org/nr062513_a.html.
\3\Letter from National, State, Regional, and Local Faith
Organizations and Leaders to Hon. John Boehner, Speaker (Aug. 21, 2013)
(on file with the H. Comm. on the Judiciary, Democratic Staff); Letter
from Jose H. Gomez, Archbishop of Los Angeles, Chairman of the U.S.
Conference of Catholic Bishops Committee on Migration, to Members of
Congress (June 18, 2013) (on file with the H. Comm. on the Judiciary,
Democratic Staff); Strengthen and Fortify Enforcement (SAFE) Act:
Hearing Before the H. Comm. on the Judiciary, 113th Cong. (June 13,
2013) [hereinafter ``SAFE Act Hrg.''] (statement of Church World
Service, The Episcopal Church, Hebrew Immigrant Aid Society, Lutheran
Immigration and Refugee Services, National Association of Evangelicals,
Organization for Refuge, Asylum, and Migration, U.S. Conference of
Catholic Bishops, and World Relief) (on file with the H. Comm. on the
Judiciary, Democratic Staff); SAFE Act Hrg. at 117 (statement of the
Lutheran Immigration and Refugee Service); SAFE Act Hrg. at 116
(statement of NETWORK).
\4\Letter from Thomas A. Saenz, President and General Counsel,
MALDEF, National Hispanic Leadership Agenda (NHLA) Immigration
Committee Co-Chair, and Jose Calderon, President, Hispanic Foundation,
NHLA Immigration Committee Co-Chair, to United States House of
Representatives (Jan. 7, 2014) (on file with the H. Comm. on the
Judiciary, Democratic Staff); Letter from 104 National, Regional,
State, and Local Organizations in the Campaign for an Accountable,
Moral, and Balanced Immigration Overhaul, to Hon. John Boehner,
Speaker, and Hon. Nancy Pelosi, Minority Leader (Oct. 9, 2013) (on file
with the H. Comm. on the Judiciary, Democratic Staff); SAFE Act Hrg. at
85 (statement of the American Civil Liberties Union); Letter from Wade
Henderson, President & CEO, and Nancy Zirkin, Executive Vice President,
The Leadership Conference on Civil and Human Rights, to Members of
Congress (Aug. 20, 2013) (on file with the H. Comm. on the Judiciary,
Democratic Staff); SAFE Act Hrg. at 65 (statement of Clarissa Martinez-
De-Castro, Director, Immigration and Civic Engagement, National Council
of La Raza).
\5\Letter from William Samuel, Director, Government Affairs, AFL-
CIO, to Hon. Robert Goodlatte, Chairman, and Hon. John Conyers, Jr.
(June 18, 2013) (on file with the H. Comm. on the Judiciary, Democratic
Staff); Letter from Laura Lichter, President, and Crystal Williams,
Executive Director, American Immigration Lawyers Association, to Hon.
John Boehner, Speaker, and Hon. Nancy Pelosi, Minority Leader (June 17,
2013) (on file with the H. Comm. on the Judiciary, Democratic Staff);
SAFE Act Hrg. at 111 (statement of the National Immigration Forum);
SAFE Act Hrg. at 53 (testimony of Karen C. Tumlin, Managing Attorney,
National Immigration Law Center); Letter from Warren David, President,
American-Arab Anti Discrimination Committee, to Hon. John Conyers, Jr.
(June 17, 2013) (on file with the H. Comm. on the Judiciary, Democratic
Staff); SAFE Act Hrg. at 105 (Statement of Angelica Salas, Executive
Director, Coalition for Humane Immigrant Rights of Los Angeles); SAFE
Act Hrg. at 114 (statement of the Immigrant Justice Network); SAFE Act
Hrg. at 107 (statement of Mary Meg McCarthy, Executive Director,
National Immigrant Justice Center).
---------------------------------------------------------------------------
For these reasons, as well as those discussed below, we
respectfully dissent and urge our colleagues to reject this
short-sighted and dangerous legislation.
DESCRIPTION AND BACKGROUND
H.R. 2278 is a comprehensive immigration enforcement-only
bill that would turn millions of undocumented immigrants into
criminals overnight and delegate unchecked authority to state
and local law enforcement officers to enforce Federal
immigration laws. The bill additionally authorizes states and
localities to enact and enforce their own immigration laws,
expands the mandatory, prolonged, and indefinite detention of
persons who are in removal proceedings or are attempting
unsuccessfully to cooperate in their own removal. The bill
rewrites various criminal provisions in immigration law to
expand the number of persons subject to mandatory minimum terms
of imprisonment and to penalize family members who merely drive
their undocumented loved ones to work or to the doctor. The
bill additionally strips deferred action from approximately
610,000 young people brought to the country as children, making
them once more vulnerable to deportation from the country that
they have long called home. The Committee voted to report the
bill to the full House by a party-line vote of 20-15. A brief
summary of the most troubling sections of the bill follows.
SECTION-BY-SECTION ANALYSIS
Sec. 102. IMMIGRATION LAW ENFORCEMENT BY STATES AND LOCALITIES.
Sec. 102(a)--In General. Subsection (a) allows states and
localities to enact civil or criminal immigration violations
that mirror provisions in the Immigration and Nationality Act
(INA). This provision would overturn portions of the Supreme
Court's decision in Arizona v. United States, 132 S. Ct. 2492
(2012), which invalidated the provisions in an Arizona law (SB
1070) creating a state alien registration criminal penalty
scheme and imposing criminal penalties for work or attempts to
work by undocumented immigrants. As amended during markup,
subsection (a) now allows states and localities to impose
criminal penalties that exceed those provided under Federal
law.
Sec. 102(b)--Law Enforcement Personnel. Subsection (b)
gives state and local law enforcement officers the ability to
investigate, apprehend, arrest, and detain individuals for
violations of any Federal immigration law or any state or local
mirroring law. It also authorizes state and local officers to
transfer individuals arrested on any of these immigration
violations to Federal immigration officials. This is an
unprecedented delegation of authority to state and local
personnel to enforce Federal immigration laws. Under current
law, outside of very limited circumstances such officers have
the ability to arrest for only certain violations of Federal
criminal immigration law. The breadth of this provision is made
clear by the fact that the only limitation imposed by the text
on the authority of local officers pertains to the actual
removal of persons from the country.
Sec. 103. LISTING OF IMMIGRATION VIOLATORS IN THE NATIONAL CRIME
INFORMATION CENTER DATABASE
Requires that non-criminal information pertaining to non-
citizens who have overstayed visas, had their visas revoked, or
received voluntary departure or final orders of removal (even
if those orders are on appeal) be added to the National Crime
Information Center (NCIC) database.
Sec. 104. TECHNOLOGY ACCESS.
Grants states access without any limitation on its use to
any ``Federal programs or technology directed broadly at
identifying inadmissible or deportable aliens.'' This means
that states could have access to Federal databases regarding
immigration status information to serve any purpose--including
enforcing bans on private landlords renting housing to
undocumented immigrants or for the purpose of branding
undocumented immigrants who are detained and appear in state
court with a scarlet letter by posting their identifying
information online.
Sec. 108. FEDERAL CUSTODY OF INADMISSIBLE AND DEPORTABLE ALIENS IN THE
UNITED STATES APPREHENDED BY STATE OR LOCAL LAW ENFORCEMENT.
Requires the Federal Government to assume custody of any
person following a request by a state or local law enforcement
officer who believes the individual to be inadmissible or
deportable. Such individuals must then be held in a detention
facility (i.e., a Federal, contract, state or local prison or
jail) that meets the standards of custody established by the
United States Marshals Service. Nothing in the text limits the
amount of time the individual may spend in Federal custody or
gives the Federal Government the ability not to assume custody
in the first place. The language referencing standards of
custody established by the United States Marshals Service
essentially overrides efforts in recent years to develop and
enforce Performance-Based National Detention Standards for
immigration detention that are appropriate for a civil (i.e.,
non-criminal) population.
Sec. 111. CRIMINAL ALIEN IDENTIFICATION PROGRAM.
Permits state and local law enforcement officials to hold a
person who has finished a prison or jail sentence and who the
official believes to be inadmissible or deportable for an
additional 14 days in order to effectuate transfer to Federal
immigration officials. Section 111 contains an even more
expansive detention authorization allowing states and
localities to issue their own detainers to hold individuals,
without any specified time limit, until the Federal Government
assumes custody. This second provision does not even require
the local law enforcement officers to make a determination that
the individual is inadmissible or deportable.
Sec. 112. CLARIFICATION OF CONGRESSIONAL INTENT.
Section 287(g) of the INA authorizes Federal officials to
enter into cooperative agreements with state and local law
enforcement agencies, whereby state and local officials are
essentially deputized to perform immigration enforcement
functions. Section 112 requires the Federal Government to enter
such an agreement based upon a request by any state or local
entity unless there is a ``compelling reason'' not to do so and
allows the local jurisdiction, not the Federal Government, to
decide on the type of agreement given--whether the authority
granted under the 287(g) agreement is limited to jailhouse
application or whether the locality also has authority to form
task forces or go on roving patrols to enforce immigration laws
at checkpoints and out in the community. This provision also
requires the Federal Government to establish ``a compelling
reason'' for canceling a 287(g) agreement and grants the local
jurisdiction the right to a hearing on the cancellation as well
as appeal rights in the Federal circuit courts and to the U.S.
Supreme Court. During any of these appeals, the 287(g)
agreement must remain in place. Under current law, either party
to the 287(g) agreement has the right to cancel the agreement
at any time.
Sec. 114. STATE VIOLATIONS OF IMMIGRATION ENFORCEMENT LAWS.
Prohibits states and localities from taking any actions
that interfere with compliance with detainer requests issued by
Federal immigration officials or from issuing any policies that
restrict a state or locality from coordinating with Federal law
enforcement in any way. Section 114 makes the granting of
Federal law enforcement funds or any Department of Homeland
Security (DHS) grant, including funds under the ``Cops on the
Beat'' program to enhance public safety by facilitating
community policing, contingent on localities not having any
policies limiting cooperation with Federal immigration law
enforcement during the course of carrying out the officers'
routine duties.
Sec. 115. CLARIFYING THE AUTHORITY OF ICE DETAINERS.
Requires the Secretary of Homeland Security to execute all
lawful writs, process, and orders issued under the authority of
the United States and to command all necessary assistance to
execute the Secretary's duties. The bill's supporters in
Committee described this provision as clarifying that detainers
issued by ICE to state and local law enforcement agencies are
mandatory and must be honored by such agencies. But because
section 115 requires the Secretary and not state and local law
enforcement agencies to take certain actions it is unclear how
the language achieves that goal. It is important to note that a
statute commanding states and localities to honor Federal
detainers would almost certainly run afoul of the anti-
commandeering principles of the Tenth Amendment to the United
States Constitution.\6\
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\6\Cf. Printz v. United States, 521 U.S. 898 (1996).
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Sec. 202. TERRORIST BAR TO GOOD MORAL CHARACTER.
Bars all persons determined to have ever been inadmissible
or deportable on security-related grounds from a finding of
good moral character. Because the definition of ``terrorist
activity'' in the INA and the government's interpretation of
``material support'' are overly broad,\7\ thousands of bona
fide refugees and asylum seekers in recent years have been
inappropriately deemed inadmissible on security grounds. This
includes persons who have acted under duress, medical
professionals who have provided medical care pursuant to the
Hippocratic Oath, and persons who have engaged in routine
commercial transactions with a terrorist, as in the actual case
of a florist who was deemed inadmissible on account of the
material support bar. Under section 202, such refugees--even if
they have lived in the United States for decades as lawful
permanent residents and even if they were previously granted an
exemption from such an inadmissibility ground--could be
prevented from establishing good moral character and would be
unable to ever naturalize.
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\7\Cf. INA Sec. 212(a)(3)(B), 8 U.S.C. Sec. 1182(a)(3)(B). As
prominent faith groups point out in a statement opposing the SAFE Act,
the current interpretation of the law means that ``even survivors of
the Warsaw Ghetto uprising are considered `terrorists,' as are Iraqis
who rose up against Saddam Hussein and fought alongside Coalition
forces, Afghan groups that fought the Soviet invasion of Afghanistan
with U.S. support, democratic opposition parties in Sudan and the South
Sudanese opposition movement (that is now the ruling party of South
Sudan), nearly all Ethiopian and Eritrean political parties and
movements, religious and other minority groups that fought the ruling
military junta in Burma, and any group that has used armed force
against the regime in Iran since the 1979 revolution.'' SAFE Act Hrg.
(statement of Church World Service, The Episcopal Church, Hebrew
Immigrant Aid Society, Lutheran Immigration and Refugee Services,
National Association of Evangelicals, Organization for Refuge, Asylum,
and Migration, U.S. Conference of Catholic Bishops, and World Relief)
(on file with the H. Comm. on the Judiciary, Democratic Staff).
---------------------------------------------------------------------------
Sec. 310. DETENTION OF DANGEROUS ALIENS.
Section 310(a)--In General. Authorizes the indefinite, and
possibly permanent, detention of persons who have been ordered
removed and have cooperated with efforts to remove them with no
meaningful due process. This provision is specifically designed
to overturn the Supreme Court's decision in Zadvydas v. Davis,
33 U.S. 678 (2001), where the Court held that indefinite
detention of a noncitizen who has been ordered removed, but
whose removal is not significantly likely to occur in the
reasonably foreseeable future, would raise serious
constitutional concerns and that preventive detention is only
justified when an individual is especially dangerous and there
are strong procedural protections accompanying any such
determination.
Section 310(b)--Detention of Aliens During Removal
Proceedings. For persons who remain in removal proceedings,
section 310(b) denies bond hearings for persons subject to
mandatory detention, no matter how long they have been
detained. It further imposes a nearly insurmountable burden for
getting bond hearings for noncitizens in removal proceedings
who are not subject to mandatory detention. Such persons can be
released on bond only if they establish ``by clear and
convincing evidence'' that they are ``not a flight risk or a
risk to another person or the community.''
While section 310 purports to be about the ``Detention of
Dangerous Aliens,'' the bill authorizes indefinite detention
for persons who have been convicted of a single aggravated
felony, which can include minor, nonviolent offenses, and
prolonged detention for persons with no criminal histories who
pose no danger to the public whatsoever. And, rather than
providing the strong procedural protections that the Supreme
Court requires for prolonged, preventive detention, the bill
requires nothing more than a discretionary certification of
dangerousness by the Secretary of Homeland Security accompanied
by periodic administrative review.
Sec. 311. GROUNDS OF INADMISSIBILITY AND DEPORTABILITY FOR ALIEN GANG
MEMBERS.
Establishes new grounds of inadmissibility and
deportability for persons who are, or once were, members of a
criminal gang. Such persons also are subject to mandatory
detention, barred from receiving asylum or Temporary Protected
Status, and allowed to be deported even if the Secretary of
Homeland Security determines that such person's life or freedom
would be threatened in her home country on account of her race,
religion, political opinion, nationality, or membership in a
particular social group. These provisions apply regardless of
whether there is a finding that the person is currently in a
criminal gang or that the person poses any danger to the
community; past association alone would be sufficient even if
the person never participated in any criminal activities as a
part of the gang and never was convicted of any criminal
offense.
Sec. 312. EXTENSION OF IDENTITY THEFT OFFENSES.
Applies the crimes of identity theft and aggravated
identity theft to persons who use an identification document
that is not his or her own, even if the document belongs to no
one else and was not stolen. The change would subject such
persons convicted of aggravated identity theft to 2-year
mandatory minimum sentences in prison and would further
criminalize undocumented immigrants working to support their
families.
Sec. 314. INCREASED CRIMINAL PENALTIES RELATING TO ALIEN SMUGGLING AND
RELATED OFFENSES.
Expands current law to criminalize persons who transport
undocumented immigrants inside of the United States without the
specific intent of furthering the person's unlawful presence.
As drafted, the provision would criminalize a U.S. citizen
driving her undocumented mother or husband to the doctor and a
member of the clergy providing undocumented immigrants with
transportation to and from religious services so long as that
transportation somehow furthered the person's ability to remain
in the country without authorization.
Sec. 315. PENALTIES FOR ILLEGAL ENTRY OR PRESENCE.
Makes, for the first time, unlawful presence in the country
a misdemeanor or felony offense. Section 315 achieves this
result most directly by making it a crime to knowingly be
unlawfully present in the United States even for 1 day. This
section additionally makes it a crime for a person to overstay
a visa for even a single day. Finally, this section rewrites
Section 274 of the INA, which defines the criminal offense of
illegal entry, to make all offenses continuing offenses until
the day an individual is discovered by Federal immigration
officers within the country. Together, these changes in the law
would mean that a person who originally entered the United
States on a visitor visa 20 years ago, but overstayed that
visa, could be criminally prosecuted twice--once for
overstaying a visa and once for being unlawfully present in the
country. Similarly, a mother who entered the United States
without inspection 25 years ago and raised a family here could
be subject to criminal prosecution for that initial entry if
she is detected by immigration officers while on her way home
from a church service. She could additionally be prosecuted
under Federal law (or under any state or local mirroring
statute) for being unlawfully present in the country.
Although a simple violation of the new criminal provision
would be a misdemeanor, a second or subsequent violation could
lead to a 2-year term of imprisonment. For a person with a
previous criminal history, even a single conviction for
unlawful presence could result in a term of imprisonment as
high as 20 years.
Sec. 405. VISA REFUSAL AND REVOCATION.
Allows a person living in the United States on a visa to be
deported based on the discretionary decision to revoke that
visa without allowing any judicial review of the revocation
decision. Under current law, judicial review is available when
revocation of a visa is the sole basis for removal from the
country. INA Sec. 221(i), 8 U.S.C. Sec. 1201(i). This section
reverses this limited judicial review available in instances of
visa revocation.
Sec. 605. REPORTS TO CONGRESS ON THE EXERCISE AND ABUSE OF
PROSECUTORIAL DISCRETION.
Requires the Secretary to file annual reports on the use of
prosecutorial discretion that include identifying information
(e.g., names, fingerprint identification numbers, alien
registration numbers) for any individual for whom prosecutorial
discretion has been exercised.
Sec. 608. CERTAIN ACTIVITIES RESTRICTED.
Eliminates the Deferred Action for Childhood Arrivals
program initiated in June 2012 to provide temporary protection
from removal to certain noncitizens brought here as children.
Additionally bars the Secretary from enforcing a set of
policies that established sensible civil immigration
enforcement priorities, provided guidance on the proper use of
prosecutorial discretion, and directed ICE personnel to use
immigration detainers only where appropriate.
CONCERNS WITH H.R. 2278
As a comprehensive enforcement-only bill, H.R. 2278 raises
many more concerns than can be addressed in these dissenting
views. Below are some of the most significant concerns raised
by the bill.
I. H.R. 2278 WOULD TURN MILLIONS OF UNDOCUMENTED IMMIGRANTS INTO
CRIMINALS OVERNIGHT
The SAFE Act would turn millions of undocumented immigrants
into criminals overnight. The bill accomplishes this first by
making it a crime for a person to be unlawfully present in the
United States. This provision was added to the bill as part of
the manager's amendment offered by Judiciary Committee Chairman
Bob Goodlatte (R-VA). The manager's amendment also expanded
another criminal provision embedded in the underlying bill by
making it a Federal crime to overstay a visa by even a single
day. The manager's amendment was adopted on a party-line vote
with 21 Republicans voting in favor of the amendment and 16
Democrats voting against.\8\
---------------------------------------------------------------------------
\8\Tr. of Markup of H.R. 2278, the Strengthen and Fortify
Enforcement Act, by the H. Comm. on Judiciary, 113th Cong. 80 (2013)
[hereinafter Markup Tr.], available at http://
judiciary.house.gov/hearings/Markups%202013/mark_06182013/
061813%20Markup%20Trans
cript%20HR2278.pdf.
---------------------------------------------------------------------------
The SAFE Act further criminalizes the undocumented by
turning all of the offenses in Section 274 of the INA into
continuing offenses. Under the bill, if a person illegally
entered the country or overstayed a visa 15 years ago, every
day that person remains in the U.S. undetected by immigration
officials is a day that the person continues to commit the
offense of illegal entry or overstaying a visa.
During the markup, Representative Spencer Bachus (R-AL)
offered a second-degree amendment to the manager's amendment to
delay implementation of the bill's provisions criminalizing the
undocumented until January 1, 2015. Representative Bachus
argued that by that date, Congress would likely have enacted a
reform of our immigration laws permitting a large number of
undocumented immigrants to begin the process of earning
permanent legal status in the country. Although the amendment
was well-intentioned, Democratic Members opposed the measure
because it was based on pure speculation that a legalization
plan would be enacted into law before the criminal provisions
took effect. Moreover, as Representative Zoe Lofgren (D-CA)
explained, ``being alive and breathing in the country hasn't
been a crime before, and I don't think it should become a
crime.''\9\ The second-degree amendment to the manager's
amendment failed by a vote of 10-24.\10\
---------------------------------------------------------------------------
\9\Id. at 38.
\10\Id. at 74.
---------------------------------------------------------------------------
Representative Joe Garcia (D-FL) offered a similar
amendment to delay implementation of various provisions in the
bill, including the provisions criminalizing undocumented
immigrants, until the Secretary of Homeland Security certifies
that there are sufficient lawful methods for undocumented
immigrants in the country on the date of enactment to adjust
their status to lawful permanent residence. The amendment
failed by voice vote.\11\
---------------------------------------------------------------------------
\11\Id. at 374.
---------------------------------------------------------------------------
Finally, Representative Luis Gutierrez (D-IL) offered an
amendment exempting certain categories of people from the
provisions in the bill that expand existing criminal provisions
or create new crimes related to unlawful presence or
overstaying a visa. The amendment would have created exceptions
for the spouses, parents, and children of U.S. citizens and
lawful permanent residents; young people who were brought to
the country at 15 years of age or younger; people who have
resided continuously in the country for 10 years or longer;
people who serve as the primary caretaker of a child or an
elderly or disabled relative; parents of Dreamers; people
fleeing persecution; and victims of domestic violence. The
purpose of the amendment was to highlight the fact that the
vast majority of people who would be turned into criminals in
this bill fall into one of these categories. After Members
discussed the issue and the point was made, Representative
Gutierrez withdrew the amendment.\12\
---------------------------------------------------------------------------
\12\Id. at 308-15.
---------------------------------------------------------------------------
The country recognizes that our immigration system is
broken and that it needs to be fixed. The country has also
considered and rejected enforcement-only approaches that rely
upon mass deportation or fantasies about self-deportation. But
while the American people have turned the corner and support in
poll after poll the idea that undocumented immigrants should be
permitted to come out of the shadows and earn permanent legal
status, the SAFE Act doubles down on the failed enforcement-
only approach by criminalizing these working parents and other
immigrants simply for being in the country without papers.
While nearly everyone accepts that it would be impossible,
unjust, and financially disastrous to deport 11 million people,
the solution presented by the SAFE Act is that before we deport
such people we should first arrest them, imprison them, and
then detain them for prolonged periods of time. It makes no
sense.
This is not the first time we have seen House Republicans
support a bill that would turn undocumented immigrants into
criminals. In 2005, the House passed H.R. 4437, the ``Border
Protection, Antiterrorism, and Illegal Immigration Control Act
of 2005,'' which similarly made unlawful presence in the
country a criminal offense. Months later, the Senate passed by
a vote of 62-36 the bipartisan S. 2611, the ``Comprehensive
Immigration Reform Act.'' While House Republicans stood by
their enforcement-only approach, millions of people took to the
streets in peaceful protests around the country.\13\ On March
10, 2006, 100,000 people in Chicago demonstrated against H.R.
4437.\14\ Two weeks later, more than 500,000 people turned out
in Los Angeles to march against the bill and in support of
comprehensive immigration reform.\15\ These protests coincided
with an effort led by Cardinal Roger Mahony of the Roman
Catholic Archdiocese of Los Angeles, who stated that if H.R.
4437 became law he would urge priests and parishioners to defy
the provisions of the law that could make it a crime to assist
undocumented immigrants through volunteer work in a soup
kitchen or by driving a friend to a bus stop.\16\
---------------------------------------------------------------------------
\13\See Kevin R. Johnson & Bill Ong Hing, The Immigrant Rights
Marches of 2006 and the Prospects for a New Civil Rights Movement,
Harv. Civ. Rights-Civ. Liberties Law Rev. 42 (2007), available at
http://www.law.harvard.edu/students/orgs/crcl/vol42_1/johnhing.pdf.
\14\Oscar Avila & Antonio Olivo, A Show of Strength, Chicago
Tribune, Mar. 11, 2006, available at http://
articles.chicagotribune.com/2006-03-11/news/0603110130_1_immigration-
debate-pro-
immigrant-illegal-immigrants.
\15\Teresa Watanabe & Hector Becerra, 500,000 Pack Streets to
Protest Immigration Bills, Los Angeles Times, Mar. 26, 2006, available
at http://articles.latimes.com/2006/mar/26/local/
me-immig26.
\16\The Gospel vs. H.R. 4437, N.Y. Times, Mar. 3, 2006, available
at http://www.nytimes.com/2006/03/03/opinion/03fri1.html?_r=0/.
---------------------------------------------------------------------------
These marches did not occur in isolation but rather were
accompanied by school walkouts and work stoppages. On March 24,
2006, tens of thousands of workers in Georgia opposed to H.R.
4437 did not show up to their jobs.\17\ Three days later,
nearly 40,000 students across Southern California staged
walkouts to protest H.R. 4437.\18\ Months of public protests
around the country reached a peak on May 1st when demonstrators
staged ``A Day Without Immigrants.''\19\ On that 1 day,
marches, work stoppages, and school walkouts occurred in cities
across the nation, including New York, Washington, Las Vegas,
Miami, Chicago, Los Angeles, San Francisco, Atlanta, Denver,
Phoenix, New Orleans and Milwaukee.\20\
---------------------------------------------------------------------------
\17\Associated Press, 20,000 in Phoenix Rally for Immigrant Rights,
N.Y. Times, Mar. 25, 2006, available at http://www.nytimes.com/2006/03/
25/politics/25protest.html?_r=0.
\18\Cynthia H. Cho & Anna Gorman, Massive Student Walkout Spreads
Across Southland, L.A. Times, Mar. 28, 2006, available at http://
articles.latimes.com/2006/mar/28/local/me-protests28.
\19\Thousands March for Immigrant Rights, CNN.com, May 1, 2006,
http://www.cnn.com/2006/US/05/01/immigrant.day/.
\20\Id.
---------------------------------------------------------------------------
By rejecting sensible, bipartisan legislation to reform our
broken immigration system and pursuing an enforcement-only
approach that turns undocumented immigrants into criminals, the
SAFE Act repeats the mistakes made in H.R. 4437 and dares
millions of American citizens and immigrants to return to the
streets once more.
II. THE BILL GRANTS STATES AND LOCALITIES UNFETTERED AUTHORITY TO
CREATE, IMPLEMENT, AND ENFORCE THEIR OWN CRIMINAL AND CIVIL PENALTIES
FOR IMMIGRATION LAW VIOLATIONS
Over the past few years, states and localities have enacted
a wave of statutes attempting to create their own civil and
criminal immigration penalties. Virtually all of these laws
have been blocked by Federal courts because they are preempted
by Federal law.\21\ Section 102(a) of the SAFE Act would
legislatively overturn these decisions, including the Supreme
Court's 2012 ruling invalidating Arizona's effort in SB 1070 to
create its own state alien registration and solicitation of
work criminal penalties.\22\
---------------------------------------------------------------------------
\21\Melissa S. Keaney and Alvaro Huerta, Restrictionist States
Rebuked: How Arizona v. United States Reigns States in on Immigration,
Wake Forest Journal of Law & Policy, Vol. 3:2 (2013).
\22\Arizona v. United States, 132 S. Ct. 2492 (2012).
---------------------------------------------------------------------------
The devolution of authority in H.R. 2278 would not result
in a patchwork of 50 different state immigration schemes, but
rather thousands of different schemes as each locality in a
state would be permitted to create its own laws. This is a
recipe for chaos. Such a fractured immigration scheme would
undermine the ability of the nation to speak with one voice on
immigration, which would adversely impact our nation's
relations with other countries. As the Supreme Court reminded
us in the Arizona decision, ``It is fundamental that foreign
countries concerned about the status, safety, and security of
their nationals in the United States must be able to confer and
communicate on this subject with one national sovereign, not
the 50 separate States.''\23\
---------------------------------------------------------------------------
\23\Id. at 2498.
---------------------------------------------------------------------------
Giving this authority to states and localities would also
result in widely varying interpretations of the kind of
immigration conduct that can be punished, and could result in
enforcement decisions by local actors that stand in opposition
to our shared ideals. For example, Arizona's human smuggling
statute has been interpreted by state courts to permit the
prosecution of persons who smuggled themselves.\24\ In fact, 75
percent of the individuals charged for smuggling under the
Arizona statute have been charged with conspiracy to smuggle
themselves--a charge that is not cognizable under Federal
immigration law.\25\ Enforcement of that criminal statute by
Maricopa County was enjoined last year by a Federal court.\26\
---------------------------------------------------------------------------
\24\Arizona County Forced to Halt Smuggling Prosecutions,
Associated Press, Oct. 1, 2013, http://www.foxnews.com/us/2013/10/01/
arizona-county-forced-to-halt-smuggling-prosecutions.
\25\Jacques Billeaud, Suit Targets Human Smuggling-Law
Prosecutions, Associated Press, Nov. 24, 2012, http://
www.azcentral.com/news/politics/free/20121124arizona-human-smuggling-
law-lawsuit.html.
\26\Arizona County Forced to Halt Smuggling Prosecutions, supra
note 24.
---------------------------------------------------------------------------
Similarly, when Georgia passed a law attempting to
criminalize the harboring and transporting of undocumented
immigrants, the state initially professed that the law was only
meant to mirror Federal law, but later argued in court that the
law could be used to charge a U.S. citizen teenage child for
driving his undocumented mother to the grocery store.\27\ The
provision was preliminarily enjoined as preempted by Federal
law by the district court and the Eleventh Circuit Court of
Appeals and was struck down last year.\28\
---------------------------------------------------------------------------
\27\Tr. of Preliminary Injunction Hearing at 29-30, Georgia Latino
Alliance for Human Rights v. Nathan Deal, et., al., 2011 WL 6002751
(N.D. G.A. 2007); Dave Williams, Federal Judge Questions Ga.
Immigration Law, Atlanta Business Chronicle, June 20, 2011, http://
www.bizjournals.com/atlanta/news/2011/06/20/federal-judge-questions-
ga.html?page=all.
\28\Kate Brumback, Judge Strikes Down Part of Ga. Law on Harboring,
Transporting, Illegal Immigrants, Associated Press, Mar. 20, 2013,
http://chronicle.augusta.com/news/metro/2013-03-20/judge-strikes-down-
part-ga-law-harboring-transporting-illegal-immigrants.
---------------------------------------------------------------------------
One of the major reasons that the public came out in such
strong opposition to H.R. 4437 was that it put good Samaritans
and religious organizations in danger of criminal charges for
alien smuggling. According to an editorial in the New York
Times, Cardinal Roger Mahony of the Roman Catholic Archdiocese
of Los Angeles said that if H.R. 4437 became law and people
could be criminally prosecuted for volunteering at a soup
kitchen, offering emergency assistance, or giving a friend or
loved one a ride, he would he would ``instruct his priests--and
faithful lay Catholics--to defy the law.''\29\
---------------------------------------------------------------------------
\29\The Gospel vs. H.R. 4437, N.Y. Times, Mar. 3, 2006, http://
www.nytimes.com/2006/03/03/opinion/03fri1.html?_r=0.
---------------------------------------------------------------------------
Section 314 of the SAFE Act raises this concern once more
by making it a Federal crime to transport a person in the
United States, knowing or in reckless disregard of the fact
that the person is unlawfully present, if such transportation
furthers the person's unlawful presence in the country. Current
law only criminalizes such transportation when it is undertaken
with the specific intent of furthering the person's unlawful
presence in the country. Combined with the delegation of
authority to states and localities to enact their own
immigration statutes, this provision significantly increases
the likelihood that husbands will be prosecuted for driving
their wives to work, children will be prosecuted for driving
their parents to the doctor, and people of faith will be
prosecuted for driving undocumented immigrants to religious
services. As dozens of national, state, regional, and local
faith organizations and leaders wrote to Speaker Boehner in
August 2013, ``People of faith commonly accept into their
congregations and communities all newcomers and those in need
without checking immigration paperwork. Providing
transportation in particular would criminalize ordinary acts of
kindness and would even criminalize members of mixed status
families traveling together.''\30\
---------------------------------------------------------------------------
\30\Letter from National, State, Regional, and Local Faith
Organizations and Leaders to Hon. John Boehner, Speaker, 1 (Aug. 21,
2013), supra note 3.
---------------------------------------------------------------------------
In order to ameliorate this concern, Representative Cedric
Richmond (D-LA) offered an amendment to focus the SAFE Act's
provisions criminalizing alien smuggling on persons who act for
commercial advantage or profit. In the debate that followed,
Republican Members who spoke in opposition to the amendment
spoke only about the role that transnational criminal
organizations play in smuggling persons across our borders and
the use of violence by such persons when confronted by Border
Patrol agents.\31\ Because such organizations unquestionably
engage in this practice for profit and the use of violence
against Border Patrol agents is already prohibited by numerous
criminal laws, the amendment would have done nothing to prevent
us from prosecuting such organizations for smuggling and
related offenses. Nevertheless, the amendment failed on a
party-line vote of 16-20.\32\
---------------------------------------------------------------------------
\31\Markup Tr. at 329-30, 335-39
\32\Id. at 349.
---------------------------------------------------------------------------
III. RATHER THAN MAKING COMMUNITIES SAFER, THE ``SAFE ACT'' WILL
DECREASE PUBLIC SAFETY
A. LTurning State and Local Police into Immigration Agents will Damage
Community Policing Efforts
Notwithstanding the short title of the bill, the ``SAFE
Act'' will actually make communities less safe by undermining
trust in law enforcement and damaging community policing
efforts. Local law enforcement leaders have spoken out
forcefully and repeatedly against proposals like that contained
in section 102(b) to turn police officers into immigration
agents. As Sergio Diaz, the Police Chief for Riverside,
California said, ``You might have noticed that these kinds of
laws, like [H.R.] 2278 and Arizona's 1070, don't originate with
police chiefs. We're not asking for this kind of direction from
legislators. We know that these laws will make crime worse and
not better.''\33\
---------------------------------------------------------------------------
\33\Remarks of Riverside Police Chief Sergio Diaz, June 17, 2013,
CAMBIO Press Conference on SAFE Act, www.nilc.org/document.html?id=938.
---------------------------------------------------------------------------
Local law enforcement leaders know that directing their
agents to enforce immigration laws will only alienate them from
the very communities they have sworn to protect and defend.
Recent research shows that 28 percent of U.S.-born Latinos
reported that they would not provide information to local
police about crimes they witnessed out of fear that it could
lead to questioning of their family's immigration status.\34\
The figure jumps to 70 percent among Latinos who are in the
country without status.\35\ Speaking out in opposition to the
SAFE Act, Chief Diaz explained:
---------------------------------------------------------------------------
\34\Nik Theodore, Insecure Communities: Latino Perceptions of
Police Involvement in Immigrant Enforcement, Department of Urban
Planning and Policy, University of Illinois at Chicago (2013).
\35\Id.
[W]hen law enforcement officers are perceived to be an
arm of immigration, there are people in the immigrant
community who would avoid contact with the police and
anybody else in the criminal justice system. They don't
report crimes, they don't identify criminals, and they
don't give testimony to the police nor do they do so in
court. This is an advantage only for criminals.\36\
---------------------------------------------------------------------------
\36\Remarks of Chief Diaz, supra note 33.
According to Richard Biehl, the Police Chief for Dayton, Ohio,
since the city's police department instructed its officers not
to check the immigration status of witnesses and victims or to
question immigration status during minor traffic stops, ``our
crime rates have significantly declined. In the past 3 years,
serious violent crime has dropped nearly 22 percent while
serious property crime has gone down almost 15 percent.''\37\
In the long term, Chief Diaz continued, ``placing police in the
role of immigration enforcers ensures that the children of
immigrants, and many of these children are American citizens,
will grow up fearing and distrusting the police.''\38\
---------------------------------------------------------------------------
\37\Here's How Not to Jump-Start Immigration Reform in House, supra
note 2.
\38\Remarks of Chief Diaz, supra note 33.
---------------------------------------------------------------------------
Similarly, following this Committee's markup of the SAFE
Act, the MCCA noted its strong opposition to the legislation
because it ``would undermine the trust and cooperation between
police officers and immigrant communities, which are essential
elements of community policing.''\39\ The MCCA went on to state
that proposals like the SAFE Act ``would result in fear and
distrust of local police, damaging our efforts to prevent crime
and weakening our ability to apprehend those who prey upon the
public. Moreover, they would divert scarce and critical
resources away from the core mission of local police--to create
safer communities.''\40\ This concern was echoed by Roberto
Villasenor, Chief of Police for Tucson, Arizona, who explained
in opposition to the SAFE Act that ``[l]egislation that would
take laws like SB 1070 and make them law in communities across
the nation are not just misguided, they could make all our
communities less safe by requiring local law enforcement to
assume a responsibility they are not able to meet, and that is
inconsistent with their primary mission.''\41\
---------------------------------------------------------------------------
\39\Major Cities Chiefs Police Association, Police Chiefs From
Nation's Major Cities Object to Legislative Proposals Requiring Local
Police to Enforce Federal Immigration Law, June 2013, http://nilc.org/
document.html?id=934.
\40\Id.
\41\Statement of Tucson Police Chief Roberto Villasenor, Congress
Should Drop Unfunded Mandates on Law Enforcement, June 26, 2013, at
http://www.nilc.org/nr062613.html.
---------------------------------------------------------------------------
Not only would the SAFE Act decrease public safety by
diminishing trust in the police, it would also obstruct the
ability of law enforcement agencies to focus on crimes that
pose an actual danger to the community. San Francisco's
District Attorney, George Gascon, who was formerly the Chief of
Police for Mesa, Arizona and San Francisco, California,
explained that the SAFE Act would ``add to an already
overburdened police officer's to-do list, potentially limiting
his or her ability to investigate or prevent crime.''\42\
---------------------------------------------------------------------------
\42\Statement of San Francisco District Attorney George Gascon,
Police Officers Already Overburdened, June 20, 2013, at http://
www.nilc.org/nr062013.html.
---------------------------------------------------------------------------
Art Acevedo, the Chief of Police for Austin, Texis, also
has come out against the SAFE Act. Chief Acevedo stated that
although proposals like the SAFE Act ``are being billed as law
enforcement measures, . . . what they will actually do is
create fear instead of trust. Victims and witnesses do not come
to the police for help and protection when they fear it will
result in deportation. The public we serve should expect
protection from their police--not deportation.''\43\ Instead,
Chief Acevedo believes that:
---------------------------------------------------------------------------
\43\Statement of Austin Police Chief Art Acevedo, Congress Should
Consider Good Policy, Not Politics, When Dealing with Immigration, June
25, 2013, at http://www.nilc.org/nr062513_a.html.
[i]mmigration enforcement must remain solely a Federal
responsibility because immigrants will never help their
local police to fight crime once they fear we have
become immigration officers. For these reasons, I and
my colleagues on the Major Cities Chiefs Association
oppose the so-called SAFE Act now pending in the House
of Representatives as well as similar provisions
proposed in the Senate. These measures would force
local cops to investigate and detain persons based upon
their immigration status and impose many burdensome new
requirements that are inappropriate. It's no surprise
that this legislation is opposed by every major city
police agency in the nation.\44\
---------------------------------------------------------------------------
\44\Id.
Local law enforcement opposition to the idea that their
officers should be required to enforce civil immigration laws
is nothing new. Given the damage this does to their ability to
achieve their central mission--protecting communities against
crime--such agencies have long opposed being vested with
Federal immigration responsibilities. For example, when
Arizona's SB 1070 was challenged in the Supreme Court, 18
current or former police chiefs and sheriffs as well as three
police associations joined an amicus curiae brief arguing that
local law enforcement should not be in the business of
enforcing Federal immigration law.\45\ Their opposition to the
law was based on their concern that it makes communities
distrustful of the police, diverts valuable law enforcement
resources, and ultimately makes it more difficult for police to
keep their communities safe.
---------------------------------------------------------------------------
\45\Brief of State and Local Law Enforcement Officials as Amici
Curiae, Arizona v. United States, March 2012, http://www.nilc.org/
document.html?id=647.
---------------------------------------------------------------------------
B. LFlooding the NCIC Database with Civil Immigration Records Will
Endanger Police Officers and Make it Harder for Them to Do
Their Jobs
Section 103 of the bill would require millions of non-
criminal immigration records to be added to the NCIC database.
As Representative Robert C. ``Bobby'' Scott (D-VA) explained in
support of his amendment to strike this section from the bill,
``local police rely on NCIC to determine whether or not an
individual they pulled over and detained has a warrant or has
serious criminal charges by another jurisdiction. . . . [W]e do
not want to open up the floodgates for new information, which
would make it more difficult to get the information that you
actually need.''\46\
---------------------------------------------------------------------------
\46\Markup Tr. at 302.
---------------------------------------------------------------------------
Speaking in opposition to the amendment, Chairman Goodlatte
explained that ``[i]ncluding this information in NCIC is
crucial in allowing State and local law enforcement officers to
assist in the enforcement of our immigration laws. This
information is crucial to inform local law enforcement that
they have encountered aliens who have violated our immigration
laws.''\47\ Importantly, not only do law enforcement
associations and leaders generally reject efforts by state and
Federal governments to foist immigration enforcement duties
onto them, they have spoken out specifically against Section
103 of this bill. District Attorney Gascon explains that the:
---------------------------------------------------------------------------
\47\Id. at 304-05.
proposal to add extraneous civil immigration
information to the NCIC database doesn't just add
unnecessary clutter, it could make a police officer's
job more dangerous. The NCIC is a valuable tool that
can tell an officer whether the person the officer has
stopped is a threat to the community or to the officer
himself. The value of NCIC is lost when we throw in
thousands of civil immigration records that local
police are not trained or equipped to analyze. We
shouldn't force an officer to wade through civil
immigration information during these potentially
dangerous moments in an officer's day.\48\
---------------------------------------------------------------------------
\48\Statement of San Francisco District Attorney George Gascon,
supra note 42.
Chris Burbank, the Police Chief for Salt Lake City, Utah,
---------------------------------------------------------------------------
similarly opposes this provision, explaining that:
An NCIC check can inform law enforcement officers
within minutes whether the person he or she has
detained is a threat to the officer or the community.
Adding complicated, and unnecessary, immigration
information will only hinder an officer's ability to do
his job effectively and will lead to unconstitutionally
extended detentions of individuals.\49\
---------------------------------------------------------------------------
\49\Statement of Salt Lake City Policy Chief Chris Burbank, Law
Enforcement Leaders Speak Out Against House and Senate Anti-Immigrant
Proposals, June 18, 2013 (on file with the H. Comm. on the Judiciary,
Democratic Staff).
Over the strong opposition of these law enforcement leaders,
the amendment offered by Representative Scott failed by voice
vote.\50\
---------------------------------------------------------------------------
\50\Markup Tr. at 306.
---------------------------------------------------------------------------
IV. THE SAFE ACT WILL DIRECTLY LEAD TO UNLAWFUL DETENTIONS
A. LAuthorizing States and Localities to Detain Persons for Weeks or
Longer without Due Process and Based on Suspicions of
Inadmissibility or Deportability is Unlawful and Unamerican
One of the most breathtaking overreaches in the SAFE Act is
a provision that purports to allow state and local law
enforcement personnel to detain a person, beyond the time
allowed by any underlying state or local criminal charge, for
14 days or longer without any due process. As written, section
111 of the bill allows a state or local law enforcement officer
to hold such a person for 14 days in order to facilitate the
person's transfer to DHS custody based merely on suspicion that
the person is inadmissible or deportable. Separately, section
111 permits a state or local law enforcement officer to issue
an immigration detainer against such a person seemingly without
even requiring the officer to make the determination that the
person is inadmissible or deportable. Once such a detainer has
been lodged, the bill appears to authorize further detention
without any limit in time. Under current law, DHS is permitted
to issue detainer requests to states and localities under
certain circumstances. Jurisdictions participating in 287(g)
programs may be authorized to issue detainers, but they do so
pursuant to a written agreement with the Federal Government,
only after receiving training on the enforcement of Federal
immigration laws, and only under the direction and supervision
of DHS.
Local law enforcement officers are not adequately trained
in the complexities of immigration law to accurately determine
who is inadmissible or deportable. Immigration status is fluid
and individuals who lack status today may nevertheless become
or already be entitled to immigration relief to remain in the
country. Conversely those who currently have status may violate
the terms of their admission, jeopardizing that status. In
addition, the types of criminal offenses that render a person
deportable are often difficult to determine, and cannot be
fully assessed without looking at detailed information on the
statute a person was charged under. As a result, section 111
will undoubtedly lead to the unjustified and prolonged
detention of U.S. citizens and lawful permanent residents and
such detentions will disproportionately affect foreign-born
persons and those who may appear ``foreign.'' Notably, the bill
places no limits on the use of this state detention authority
such as requiring that officers have probable cause to extend
the detention of an individual otherwise slated for release.
There is also no requirement that a judicial officer review the
state or local officer's decision to detain the person.
During markup, Representative Hank Johnson (D-GA) offered
an amendment to strike this unprecedented and unwise grant of
authority to state and local personnel. The amendment sparked a
lively discussion in the Committee, as Representative Bachus
questioned whether there was sufficient justification to hold
persons for 14 days based only upon the state or local law
enforcement officer's belief that the person might be
inadmissible or deportable and without any due process. After
speaking about mistakes that can happen in immigration
proceedings--including the detention and removal of persons who
are, in fact, U.S. citizens--Representative Bachus explained
that under this bill, state or local law enforcement officers
would ``hold them 14 days before they even determine whether or
not it is reasonable to even hold them for 1 day.''\51\ In
response, Chairman Goodlatte stated that ``I would argue that
they are inadmissible or deportable. The amount of time does
not matter.''\52\ The Fifth Amendment to the U.S. Constitution,
which guarantees due process to all ``persons'' within the
United States, would beg to differ.\53\ In response to an offer
from the Chairman to work with Committee staff to resolve the
concern the amendment was withdrawn.\54\
---------------------------------------------------------------------------
\51\Markup Tr. at 204.
\52\Id.
\53\U.S. Const. amend. V. Cf. Zadvydas v. Davis, 33 U.S. 678, 693,
690 (2001) (noting that ``the Due Process Clause applies to all
`persons' within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent,'' and that
``[f]reedom from imprisonment--from government custody, detention or
other forms of physical restraint--lies at the heart of the liberty
that Clause protects.'').
\54\Markup Tr. at 219.
B. LH.R. 2278 Would Unconstitutionally Authorize Indefinite Detention
of Broad Categories of Immigrants with Virtually No Procedural
Protections
The Supreme Court has stated clearly that preventive
detention is constitutional only where limited to special
circumstances and only when accompanied by strong procedural
protections. The indefinite detention provisions of the SAFE
Act are unconstitutional because they fall far short of both of
those requirements.
Specifically, section 310 of the bill authorizes the
indefinite, and possibly permanent, detention of persons who
have been ordered removed and who have cooperated with efforts
to remove them. In Zadvydas v. Davis, the Supreme Court held
that indefinite detention of a non-citizen who has been ordered
removed, but whose removal is not significantly likely to occur
in the reasonably foreseeable future, would raise serious
constitutional concerns.\55\ The Court noted that ``the Due
Process Clause applies to all `persons' within the United
States, including aliens, whether their presence here is
lawful, unlawful, temporary, or permanent,'' and that
``[f]reedom from imprisonment--from government custody,
detention or other forms of physical restraint--lies at the
heart of the liberty that Clause protects.''\56\
---------------------------------------------------------------------------
\55\Zadvydas v. Davis, 33 U.S. 678 (2001).
\56\Id. at 693, 690.
---------------------------------------------------------------------------
The Supreme Court has ``upheld preventive detention based
on dangerousness only when limited to specially dangerous
individuals and subject to strong procedural protections.''\57\
In United States v. Salerno, the Supreme Court approved
preventive detention of pre-trial criminal detainees under the
Bail Reform Act because it involved stringent time limits, was
reserved for the most serious of crimes, and required the
government to prove dangerousness by clear and convincing
evidence at a hearing before a Federal district court
judge.\58\ Moreover, where preventive detention based on
dangerousness may be indefinite in duration, the Court has
required more than just special dangerousness; the Court has
required proof of an additional factor, such as mental illness
that makes it difficult, or impossible, for the person to
control his dangerous behavior.\59\
---------------------------------------------------------------------------
\57\Id. at 691.
\58\United States v. Salerno, 481 U.S. 739, 747 (1987). In Foucha
v. Louisiana, the Court invalidated a civil commitment statute placing
the burden on the detainee to prove nondangerousness at a hearing.
Foucha v. Louisiana, 504 U.S. 71, 81-82 (1992).
\59\Kansas v. Hendricks, 521 U.S. 346, 358-60 (1997).
---------------------------------------------------------------------------
Section 310 is unconstitutional because it authorizes
indefinite detention for a broad set of persons without regard
for special dangerousness. The bill permits DHS to indefinitely
detain a person convicted of a single ``aggravated felony.'' As
defined in the INA, a crime can be an aggravated felony even if
it was neither aggravated, nor a felony.\60\ Nearly any drug
offense (including most drug possession) is an aggravated
felony, and the term can include petty offenses, such as
passing a bad check as well as shoplifting, with a prior
conviction. Although indefinite detention on such a ground also
requires the Secretary of Homeland Security to certify that
release will ``threaten the safety of the community or any
person'' and that ``conditions of release cannot reasonably be
expected to ensure the safety of the community or any person,''
the language is so broadly written that it could
unconstitutionally authorize the detention of persons who are
not ``specially dangerous.'' Moreover, the language does not
require that any additional factor, such as mental illness, be
present, notwithstanding the fact that such detention may be
indefinite in duration.
---------------------------------------------------------------------------
\60\See INA Sec. 101(a)(43).
---------------------------------------------------------------------------
The bill also falls woefully short of the constitutional
requirements for ``strong procedural protections.''\61\ Under
H.R. 2278, a person could be held indefinitely based upon a
mere certification by a government official. The person is not
entitled to a hearing before an Immigration Judge or even a
personal interview. And although approximately 84 percent of
immigration detainees are unrepresented in removal
proceedings,\62\ there is no requirement of appointment of
counsel in connection with this preventive detention decision.
---------------------------------------------------------------------------
\61\Zadvydas, 533 U.S. at 691.
\62\The Executive Office for Immigration Review: Hearing Before the
H. Subcomm. on Immigration, Citizenship, Refugees, Border Security and
International Law of the H. Comm. on the Judiciary, 111th Cong. 36
(June 17, 2010) (statement of Karen T. Grisez, Chair, Commission on
Immigration, American Bar Association).
---------------------------------------------------------------------------
Importantly, while H.R. 2278 contains no procedural
protections whatsoever, current Federal law offers
comparatively robust procedural protections for persons
suffering from mental illness who may be involuntarily
hospitalized at the end of their Federal prison sentences on
the ground that they present a danger to the public that cannot
be mitigated.\63\ The law provides for the appointment of
counsel, requires the government to prove its case by clear and
convincing evidence before a Federal district court judge, and
mandates treatment if detention is warranted. Similarly, states
have procedures for civil commitment and involuntary
hospitalization and those procedures generally are available
for persons being released from immigration detention. Finally,
existing immigration regulations provide for further detention
in these limited circumstances, but they require ICE to
demonstrate to an Immigration Judge by clear and convincing
evidence the appropriateness of further detention.\64\ The
total absence of procedural safeguards contained in this bill
is without precedent.
---------------------------------------------------------------------------
\63\18 U.S.C. Sec. 4246.
\64\8 C.F.R. Sec. 241.14.
---------------------------------------------------------------------------
V. THE SAFE ACT WILL LEAD TO INCREASED RACIAL PROFILING AND
UNCONSTITUTIONAL DISCRIMINATION
H.R. 2278 turns state and local law enforcement officers
into immigration agents in two important and largely
overlapping ways. First, section 102(b) grants such officers
the ability to investigate, apprehend, arrest, and detain
individuals for violations of any Federal immigration law.
Second, section 112 requires that any locality requesting a
287(g) agreement with the Federal Government be awarded one
except in very limited circumstances. As 287(g) agreements
essentially deputize state and local officers to perform
immigration enforcement functions--a power directly granted to
such officials in section 102(b)--it is not altogether clear
what additional purpose section 112 serves.
A. LTurning State and Local Law Enforcement Officers into Immigration
Police will Lead to Serious Abuses
Granting local law enforcement officers the ability to
arrest and detain based on mere suspicion of unlawful presence
raises serious constitutional concerns about racial profiling
and prolonged detentions. We know that this delegation of
authority will result in pretextual and unlawful stops
targeting people on the basis of race, ethnicity, and national
origin because of the mounting evidence from jurisdictions that
have been delegated this authority under the 287(g) program and
from the handful of states that have attempted to seize this
authority by passing and implementing their own immigration
laws. As Police Chief Chris Burbank explained when speaking out
against the SAFE Act, ``There is no way we can do immigration
enforcement without interjecting bias. . . . No one is going to
ask me as a white male in Salt Lake City, `Am I documented, and
do I have the proper paperwork to show it?' But individuals who
encounter anyone of color who looks differently, who acts or
speaks differently, is going to be asked.''\65\ The pattern is
clear: turning local law enforcement officers into immigration
agents leads to patterns of unlawful detentions and increased
racial profiling against Latinos and others who appear
``foreign.''\66\
---------------------------------------------------------------------------
\65\Lee Davidson, SLC Police Chief Burbank Blasts Alternative
Immigration Bill, The Salt Lake Tribune, Oct. 1, 2013, http://
www.sltrib.com/sltrib/politics/56945828-90/act-alternative-bill-
burbank.html.csp.
\66\Immigration Policy Center, The 287(g) Agreement: A Flawed and
Obsolete Method of Immigration Enforcement, Nov. 29, 2012, http://
immigrationpolicy.org/just-facts/2878g-program-flawed-and-obsolete-
method-immigration-enforcement.
---------------------------------------------------------------------------
Last year, a Federal district court in Arizona issued a
stinging 142-page opinion finding unequivocally that the
Maricopa County Sheriff's Office (MCSO) under Joe Arpaio, the
self-styled ``toughest sheriff in America,'' has engaged in a
pattern of racial profiling, unjustified detentions, and
discriminatory police practices during its attempts to enforce
immigration laws.\67\ After analyzing years of Maricopa County
arrest records, the Court found that the MCSO engaged in a
pattern of racially profiling Latinos under the guise of
implementing immigration law. The court analyzed arrest records
and found that ``71% of all persons arrested, had Hispanic
surnames.''\68\ As the Court noted, this high ``arrest rate
occurred in a county where between 30 and 32% of the population
is Hispanic, and where, as the MCSO's expert report
acknowledges, the rates of Hispanic stops by the MCSO are
normally slightly less than the percentage of the population
that they comprise.''\69\ The court found even more stark
patterns of racial profiling when considering the arrests of
Latino passengers.\70\ The court found that between 81 and 95
percent of passengers arrested had Latino surnames.\71\
---------------------------------------------------------------------------
\67\Ortega-Melendres, et al. v. Arpaio. No. PHX-CV-07-02513-GMS,
2013 WL 2297173 (May 24, 2013).
\68\Id. at 73.
\69\Id.
\70\Id.
\71\Id.
---------------------------------------------------------------------------
Remarkably, it was in response to the Arizona court's
findings against Maricopa County that Chairman Goodlatte
decided in his manager's amendment to create a new Federal
crime of being unlawfully present in the country. Ignoring the
court's highly-detailed factual findings of racial profiling
and unlawful discrimination, Chairman Goodlatte criticized the
court for enjoining Maricopa County's immigration enforcement
efforts and explained that creating the crime of unlawful
presence would be ``a simple way to shut these courts down and
to allow States and localities to assist in the enforcement of
our immigration laws.''\72\
---------------------------------------------------------------------------
\72\Markup Tr. at 27-29.
---------------------------------------------------------------------------
Importantly, Maricopa County is not an outlier when it
comes to jurisdictions where systematic profiling and the
unconstitutional detention of Latinos has been documented under
the guise of immigration enforcement. The Department of
Homeland Security terminated its 287(g) agreement with Alamance
County, North Carolina after the Department of Justice (DOJ)
found that the county's Sheriff's Office engaged in a pattern
of racial profiling, arrests without probable cause, and
unconstitutional detentions of Latinos.\73\ DOJ concluded that
Alamance County deputies regularly arrested Latino drivers for
minor infractions while issuing only citations or warnings to
non-Latinos, and that the Sheriff's Office leadership
explicitly instructed deputies to target Latinos for
discriminatory enforcement, including the targeted use of jail
booking and detention practices. A lawsuit filed by the Justice
Department is pending in Federal court.
---------------------------------------------------------------------------
\73\Department of Justice, Justice Department Releases
Investigative Findings on the Alamance County, N.C., Sheriff's Office,
Sept. 18, 2012, http://www.justice.gov/opa/pr/2012/September/12-crt-
1125.html.
---------------------------------------------------------------------------
Similarly, following the implementation of Alabama's state
law mandating that local law enforcement verify the immigration
status of anyone they have reasonable suspicion to believe to
be undocumented, there were scores of reports of racial
profiling and unjustified stops by local law enforcement
officers.\74\ People from all walks of life have been targeted
for this increased profiling, from visiting foreign business
executives to mothers and fathers.\75\ These kinds of
violations will multiply exponentially under the SAFE Act.
---------------------------------------------------------------------------
\74\See Southern Poverty Law Center, Alabama's Shame, http://
www.splcenter.org/alabamas-shame-hb56-and-the-war-on-immigrants/a-
traffic-arrest-a-mother-s-nightmare#.UbTo-JV3yfQ; National Immigration
Law Center, Racial Profiling After HB 56: Stories from the Alabama
Hotline, http://www.nilc.org/document.html?id=800.
\75\John Voelcker, Alabama Nabs Honda Exec a Week After Jailing
Mercedes Manager Under Immigration Law, Dec. 4, 2011, at http://
www.thecarconnection.com/news/1070170_alabama-nabs-honda-exec-a-week-
after-jailing-mercedes-manager-under-immigration-law.
---------------------------------------------------------------------------
Such violations have even occurred in the absence of 287(g)
agreements or anti-immigrant state laws. In 2012, the DOJ
entered into a settlement agreement with East Haven,
Connecticut, following an investigation into widespread racial
discrimination and abuse against Latino residents that also
involved Federal criminal arrests of police officers on charges
such as excessive force, false arrest, obstruction, and
conspiracy.\76\
---------------------------------------------------------------------------
\76\Jennifer Swift, East Haven Signs Police Reform Deal; Maturo:
`Should You Put a Whip Behind Me?,' New Haven Register, Nov. 16, 2012,
at http://nhregister.com/articles/2012/11/16/news/metro/
doc50a59775abd2a598392964.txt?viewmode=fullstory; Mark Zaretsky,
`Cancerous Cadre': FBI Arrest 4 East Haven Cops in Profiling Probe;
Chief Not Charged, but Labeled as `Co-conspirator', New Haven Register,
Jan. 25, 2012, at http://www.nhregister.com/articles/2012/01/25/news/
metro/doc4f1ea3fe7c1fe446073143.txt?viewmode=fullstory.
---------------------------------------------------------------------------
B. LExpanding the 287(g) Program and Weakening Existing Protections is
a Dangerous Idea
The completely unchecked delegation of immigration
enforcement to state and local law enforcement personnel in
section 102 is problematic enough, but the changes made to the
287(g) program raise still more concerns. Even before courts
and the DOJ identified clear problems with the 287(g) program,
Federal studies had repeatedly noted the Federal Government's
inability to maintain adequate oversight over the localities
granted agreements.\77\
---------------------------------------------------------------------------
\77\In the Spring of 2009, the DHS Office of the Inspector General
(OIG) undertook an audit of the program, which culminated in a lengthy
report with 33 recommendations. DHS OIG, The Performance of 287(g)
Agreements, Mar. 2010, http://www.oig.dhs.gov/assets/Mgmt/OIG_10-
63_Mar10.pdf. The OIG updated this report in September 2010 and again
in September 2012 and found that DHS had not solved the extensive
problems identified in the previous report despite purported
``reforms'' to the program. DHS OIG, The Performance of 287(g)
Agreements FY 2012, Follow-Up, Sept. 2012, http://www.oig.dhs.gov/
assets/Mgmt/2012/OIG_12-130_Sep12.pdf. The initial report described the
targeting of innocent people, a lack of state and local supervision,
and insufficient training of 287(g) officers. In addition, a 2009
report by the General Accountability Office found that the program
lacked key internal controls and adequate oversight mechanisms. U.S.
Government Accountability Office, Immigration Enforcement: Better
Controls Needed over Program Authorizing State and Local Enforcement of
Federal Immigration Laws, Jan. 30, 2009, http://www.gao.gov/products/
GAO-09-109. In the intervening years this lack of control likely helped
to facilitate the documented abuses that have occurred under the
program.
---------------------------------------------------------------------------
Changes made to the program in section 112 will only
further undermine the ability of the Federal Government to
appropriately train and direct 287(g)-deputized officers and to
oversee these programs to prevent abuses. In addition, because
the Federal Government incurs significant costs under the
287(g) program, making these agreements available on demand
will impose significant costs on the Federal Government. Then-
Secretary of Homeland Security Janet Napolitano testified
before Congress that an arrest secured through a 287(g)
agreement can cost up to 10 times more than an arrest secured
through Secure Communities, the Department's jail-based program
that depends upon an examination of fingerprints submitted by
persons booked into jails and prisons.\78\
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\78\Mickey McCarter, Napolitano Explains How DHS Would Save Money
in 2013 Budget, Feb. 16, 2013, http://hstoday.us/focused-topics/
customs-immigration/single-article-page/napolitano-explains-how-dhs-
would-save-money-in-2013-budget.html.
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The bill also erects significant barriers to the Federal
Government's ability to terminate 287(g) agreements where
appropriate. An agreement may be terminated only for ``a
compelling reason'' and must remain in force while the locality
exercises its right under the law for judicial review up to the
Supreme Court. This provision would have kept the Federal
Government from terminating the 287(g) agreements with Maricopa
and Alamance counties in a timely manner even after the
Department of Justice had entered findings of constitutional
violations against these programs. It would tie the hands of
the Federal Government to terminate contracts even in the face
of documented abuses. It is worth noting that while the SAFE
Act would grant jurisdictions an automatic stay of the contract
termination decision during Federal appeals, immigrants who are
appealing their administratively final orders of removal to the
Federal courts are not automatically entitled to such a stay
and are often forced to pursue such appeals from outside of the
country while separated from their families and communities.
In light of the well-documented abuses that have taken
place through 287(g) agreements and the unnecessary costs that
such agreements impose on the Federal Government,
Representative Judy Chu (D-CA) offered an amendment eliminating
the 287(g) program from the INA and replacing it with a
comprehensive ban on racial profiling applicable to all law
enforcement authorities enforcing immigration law. Speaking in
support of her amendment, Representative Chu explained that
``The robust and multi-tiered approach to ending racial
profiling advanced in this amendment is integral to protecting
all communities in America against racial and religious
profiling.''\79\ The amendment was defeated on a party-line
vote of 16-20.\80\
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\79\Markup Tr. at 268.
\80\Id. at 287.
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After the defeat of Representative Chu's amendment,
Representative Mel Watt (D-NC) offered a compromise amendment
that would neither eliminate the 287(g) program, nor expand it
in the dangerous way proposed in the SAFE Act. Rather,
Representative Watt's amendment improved the existing 287(g)
program by creating a strong prohibition against unlawful
profiling in the exercise of immigration enforcement authority
under 287(g) agreements and erecting robust protections against
such profiling and other unlawful, discriminatory behavior by
287(g) jurisdictions. The purpose of the amendment was to help
fix the 287(g) program if ending it altogether was not
possible. Representative Watt's amendment was rejected by a
party-line vote of 16-19.\81\
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\81\Id. at 299.
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VI. ELIMINATING PROTECTIONS FROM DEPORTATION FOR DREAMERS AND
PREVENTING DHS FROM PRIORITIZING THE REMOVAL OF SERIOUS CRIMINALS AND
REPEAT OFFENDERS IS INCONSISTENT WITH AMERICAN VALUES
During Floor consideration of H.R. 2217, the ``Department
of Homeland Security Appropriations Act of 2014,''
Representative Steve King (R-IA) offered an amendment to
prevent continued implementation of the Deferred Action for
Childhood Arrivals (DACA) effort. Under DACA, hundreds of
thousands of undocumented youth have been able to come out of
the shadows to live, work and study without fear of
deportation--already more than 610,000 young people brought to
the country years ago as children have been granted deferred
action.\82\ The King amendment would require these young people
to be stripped of the protections they have been given and
would prevent potentially hundreds of thousands of others from
receiving similar protections. The King amendment also would
prevent DHS and U.S. Immigration and Customs Enforcement from
implementing agency guidance regarding the use of their
prosecutorial discretion authorities. The guidance aims to set
sensible civil immigration enforcement priorities for the
agency to focus limited resources on criminals and repeat
immigration violators, rather than non-criminals and parents
working to support their children. The ``poison pill'' King
amendment was adopted by a largely party-line vote of 224-201
with only 6 Republicans voting against the amendment and just 3
Democrats supporting the amendment.\83\
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\82\See U.S. Citizenship and Immigration Services, Number of I-
821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal
Year, Quarter, Intake, Biometrics and Case Status: 2012-2014, http://
www.uscis.gov/sites/default/files/USCIS/Resources/
Reports%20and%20'studies/Immigration%20Forms%20Data/All%20Form%20Types/
DACA/DACA_fy2014_qtr4.pdf.
\83\159 Cong. Rec. H3222 (daily ed. June 6, 2013).
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During the Committee's consideration of the SAFE Act,
Representative King offered a similar amendment. Speaking in
opposition to the amendment and in support of the young people
who have received and will continue to receive deferred action
under the DACA initiative, Representative Gutierrez said:
I wish we would all go to a classroom and watch
[Dreamers] day in and day out put their hands over
their heart and pledge allegiance to the same flag that
each and every one of us pledges allegiance to every
day before we start a session of the Congress of the
United States. All we are trying to do is have the
paperwork catch up to who they really are. They are
really American in everything but that piece of paper.
They came here as children. This is the only country
they know. And you want to know something? This is the
country they love.\84\
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\84\Markup Tr. at 142-43.
The King amendment was adopted by a vote of 19-17.\85\ The only
Republican Member to vote against the amendment was
Representative Bachus, who also was one of the 6 Republican
Members to vote against the amendment offered by Representative
King to the DHS Appropriations Act.\86\
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\85\Id. at 156 (announcing in error that the amendment was adopted
by a vote of 20-15) but see amendment vote count at http://
judiciary.house.gov/hearings/Markups%202013/mark_06182013/HR%202278/
Votes/061813%20RC5%20Amdt%206%20King.pdf.
\86\Id.; 159 Cong. Rec. H3222 (daily ed. June 6, 2013).
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VIII. ELIMINATING JUDICIAL REVIEW FOR PERSONS IN REMOVAL PROCEEDINGS
DENIES DUE PROCESS
Section 405 of the legislation entirely eliminates judicial
review when the government seeks to revoke a person's
nonimmigrant visa and deport that person from the country. It
is already the case that nearly all visa revocations or denials
are insulated from judicial review. The sole exception to this
general rule was created when Congress enacted the Intelligence
Reform and Terrorism Prevention Act of 2004 (IRTPA). In IRTPA,
Congress made it a deportable offense to be present in the U.S.
after revocation of a nonimmigrant visa.\87\ As a result, if a
person in the U.S. on a nonimmigrant visa has that visa revoked
by the State Department on any ground (or by the Secretary of
Homeland Security on security grounds, according to this
legislation), that person may be placed in removal proceedings
and charged with being deportable. In that same Act, Congress
stated that if the revocation provides the sole grounds for
removing such a person from the country, judicial review shall
be permitted.\88\
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\87\IRTPA Sec. 5304(b), Pub. L. No. 108-458, 118 Stat. 3736 (2004)
(codified as amended at INA Sec. 237(a)(1)(B), 8 U.S.C.
Sec. 1227(a)(1)(B)).
\88\IRTPA Sec. 5304(a) (codified as amended at INA Sec. 221(i), 8
U.S.C. Sec. 1201(i)).
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By eliminating judicial review of such removal proceedings,
section 405 would mean that people who have resided lawfully in
the United States for many years and who have U.S. citizen
spouses and children would face the prospect of being
permanently separated from their loved ones without the
opportunity for any judicial review. Because of the important
liberty interests at stake, the Supreme Court has held that
``some judicial intervention in deportation cases is
unquestionably required by the Constitution.''\89\ Judicial
review provides a critical check on mistakes by immigration
authorities and on overzealous government behavior. The court-
stripping provision in section 405 is both cruel and
unnecessary.
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\89\Immigration and Naturalization Services v. St. Cyr, 533 U.S.
289, 300 (2001) (internal quotation marks omitted).
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It is worth noting that during the 112th Congress the
Committee considered a bill that similarly eliminated judicial
review in this way. When the Committee filed its report for
H.R. 1741, the ``Secure Visas Act,'' bill sponsor
Representative Lamar Smith (R-TX), Ranking Member Conyers, and
Representative Lofgren filed additional views memorializing an
agreement to amend the language in the bill to ``preserve the
right to . . . judicial review but add special provisions for
cases that raise national security concerns.''\90\ The SAFE
Act's reversion to the original language eliminating judicial
review outright represents a step backward.
---------------------------------------------------------------------------
\90\H. Comm. on the Judiciary, Secure Visas Act, H.R. Rep. No. 112-
411, at 28 (2012).
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CONCLUSION
H.R. 2278 does nothing to address the long-standing
problems with our current immigration system. Like the
enforcement-only proposals that we have seen year after year,
the bill simply calls for more of the same failed policies that
bring us no closer to a solution. An important reason that
there are an estimated 11.7 million undocumented immigrants
living in our country today is that our immigration system is
so poorly designed that it can be easier for families, workers,
and businesses to go around the system than to go through the
system. In fact, American businesses, American families, entire
industries, and our economy as a whole have largely depended on
this inconvenient truth.
The SAFE Act ignores this fact and operates on the premise
that more enforcement will lead to a better immigration system
overall. It recycles old and rejected ideas about criminalizing
undocumented immigrants and whittles away at important values
enshrined in our Constitution, such as the rights to due
process and to be protected from discrimination. The bill would
also threaten public safety in communities around the country
by turning local police into immigration agents and making
community policing all but impossible.
The direct cost of implementing this misguided and
dangerous law would not be small. According to the
Congressional Budget Office, the SAFE Act would cost an
estimated $22.9 billion to implement over the next 5 years.\91\
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\91\Congressional Budget Office, Cost Estimate, H.R. 2278 (Dec. 5,
2013), supra note 1.
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For all of these reasons, we respectfully dissent and urge
our colleagues to reject this legislation.
John Conyers, Jr.
Jerrold Nadler.
Robert C. ``Bobby'' Scott.
Zoe Lofgren.
Sheila Jackson Lee.
Steve Cohen.
Henry C. ``Hank'' Johnson, Jr.
Pedro R. Pierluisi.
Judy Chu.
Ted Deutch.
Luis V. Gutierrez.
Karen Bass.
Cedric Richmond.
Suzan DelBene
Joe Garcia.
Hakeem Jeffries.
David N. Cicilline.