109th CONGRESS
2d Session
S. 2391
To improve the security of the United States borders and for other
purposes.
IN THE SENATE OF THE UNITED STATES
March 8, 2006
Mr. NELSON of Florida introduced the following bill; which was read twice
and referred to the Committee on the Judiciary
A BILL
To improve the security of the United States borders and for other
purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Border Operations Reform
and Development of Electronic Remote Surveillance Act of 2006' or as the
`BORDERS Act of 2006'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 4. Surveillance technologies programs.
Sec. 5. Secure communication.
Sec. 6. Expansion of detention capacity.
Sec. 7. Detention standards.
Sec. 8. Personnel of the Department of Homeland Security.
Sec. 9. Personnel of the Department of Justice and other attorneys.
Sec. 10. State Criminal Alien Assistance Program authorization of appropriations.
Sec. 11. Reimbursement of States for indirect costs relating to the incarceration
of illegal aliens.
Sec. 12. Reimbursement of States for preconviction costs relating to the
incarceration of illegal aliens.
Sec. 13. Criminal gang activity.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) The Government of the United States has the duty to protect its citizens
and to provide for homeland security by securing its international borders.
(2) The Government of the United States has failed to adequately secure
its international borders, which has facilitated the illegal entry of
millions of undocumented aliens into the United States.
(3) Illegal immigration poses national security concerns, burdens all
levels of Government with extra costs, including imposing hundreds of
millions of dollars on States and localities in uncompensated expenses
for law enforcement, health care, and other essential services, allows
some aliens to gain access to the United States before other aliens who
have lawfully waited in line, creates an underclass of workers, and facilitates
human trafficking, smuggling, and document fraud.
(4) One critical aspect of comprehensive immigration reform is to find
aggressive, practical, and cost-effective methods to quickly secure the
international borders of the United States. As the bipartisan National
Commission on Terrorist Attacks Upon the United States concluded, `the
United States must be able to monitor and respond to entrances between
our borders'.
(5) The Government of the United States should make full use of integrated
and automated surveillance technology, including the use of unmanned aerial
vehicles, to create a `virtual fence' around the Nation, which could be
constructed much more quickly than a physical fence. The Inspector General
of the Department recently suggested numerous ways to use integrated surveillance
technologies to achieve this critical security goal.
(6) The Government of the United States should also increase detention
facilities to detain aliens who are apprehended sneaking into the United
States, as opposed to catching and releasing such aliens and trusting
that they will report for immigration proceedings.
(7) In order to reduce costs of detention and to facilitate the process
of removing aliens from the United States fairly, the Secretary should
establish uniform detention standards and rules.
SEC. 3. DEFINITIONS.
(1) DEPARTMENT- Except as otherwise provided, the term `Department' means
the Department of Homeland Security.
(2) SECRETARY- Except as otherwise provided, the term `Secretary' means
the Secretary of Homeland Security.
(3) STATE- Except as otherwise provided, the term `State' has the meaning
given that term in section 101(a)(36) of the Immigration and Nationality
Act (8 U.S.C. 1101 (a)(36)).
SEC. 4. SURVEILLANCE TECHNOLOGIES PROGRAMS.
(a) Aerial Surveillance Program-
(1) IN GENERAL- In conjunction with the border surveillance plan developed
under section 5201 of the Intelligence Reform and Terrorism Prevention
Act of 2004 (Public Law 108-458; 8 U.S.C. 1701 note), the Secretary, not
later than 90 days after the date of enactment of this Act, shall develop
and implement a program to fully integrate and utilize aerial surveillance
technologies, including unmanned aerial vehicles, to enhance the security
of the international border between the United States and Canada and the
international border between the United States and Mexico. The goal of
the program shall be to ensure continuous monitoring of each mile of each
such border.
(2) ASSESSMENT AND CONSULTATION REQUIREMENTS- In developing the program
under this subsection, the Secretary shall--
(A) consider current and proposed aerial surveillance technologies;
(B) assess the feasibility and advisability of utilizing such technologies
to address border threats, including an assessment of the technologies
considered best suited to address respective threats;
(C) consult with the Secretary of Defense regarding any technologies
or equipment, which the Secretary may deploy along an international
border of the United States; and
(D) consult with the Administrator of the Federal Aviation Administration
regarding safety, airspace coordination and regulation, and any other
issues necessary for implementation of the program.
(3) ADDITIONAL REQUIREMENTS-
(A) IN GENERAL- The program developed under this subsection shall include
the use of a variety of aerial surveillance technologies in a variety
of topographies and areas, including populated and unpopulated areas
located on or near an international border of the United States, in
order to evaluate, for a range of circumstances--
(i) the significance of previous experiences with such technologies
in border security or critical infrastructure protection;
(ii) the cost and effectiveness of various technologies for border
security, including varying levels of technical complexity; and
(iii) liability, safety, and privacy concerns relating to the utilization
of such technologies for border security.
(4) CONTINUED USE OF AERIAL SURVEILLANCE TECHNOLOGIES- The Secretary may
continue the operation of aerial surveillance technologies while assessing
the effectiveness of the utilization of such technologies.
(5) REPORT TO CONGRESS- Not later than 1 year after implementing the program
under this subsection, the Secretary shall submit a report to Congress
regarding the program developed under this subsection. The Secretary shall
include in the report a description of the program together with such
recommendations as the Secretary finds appropriate for enhancing the program.
(6) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
such sums as may be necessary to carry out this subsection.
(b) Integrated and Automated Surveillance Program-
(1) REQUIREMENT FOR PROGRAM- Subject to the availability of appropriations,
the Secretary shall establish a program to procure additional unmanned
aerial vehicles, cameras, poles, sensors, satellites, radar coverage,
and other technologies necessary to achieve operational control of the
international borders of the United States and to establish a security
perimeter known as a `virtual fence' along such international borders
to provide a barrier to illegal immigration. Such program shall be known
as the Integrated and Automated Surveillance Program.
(2) PROGRAM COMPONENTS- The Secretary shall ensure, to the maximum extent
feasible, the Integrated and Automated Surveillance Program is carried
out in a manner that--
(A) the technologies utilized in the Program are integrated and function
cohesively in an automated fashion, including the integration of motion
sensor alerts and cameras, whereby a sensor alert automatically activates
a corresponding camera to pan and tilt in the direction of the triggered
sensor;
(B) cameras utilized in the Program do not have to be manually operated;
(C) such camera views and positions are not fixed;
(D) surveillance video taken by such cameras can be viewed at multiple
designated communications centers;
(E) a standard process is used to collect, catalog, and report intrusion
and response data collected under the Program;
(F) future remote surveillance technology investments and upgrades for
the Program can be integrated with existing systems;
(G) performance measures are developed and applied that can evaluate
whether the Program is providing desired results and increasing response
effectiveness in monitoring and detecting illegal intrusions along the
international borders of the United States;
(H) plans are developed under the Program to streamline site selection,
site validation, and environmental assessment processes to minimize
delays of installing surveillance technology infrastructure;
(I) standards are developed under the Program to expand the shared use
of existing private and governmental structures to install remote surveillance
technology infrastructure where possible; and
(J) standards are developed under the Program to identify and deploy
the use of nonpermanent or mobile surveillance platforms that will increase
the Secretary's mobility and ability to identify illegal border intrusions.
(3) REPORT TO CONGRESS- Not later than 1 year after the initial implementation
of the Integrated and Automated Surveillance Program, the Secretary shall
submit to Congress a report regarding the Program. The Secretary shall
include in the report a description of the Program together with any recommendation
that the Secretary finds appropriate for enhancing the program.
(4) EVALUATION OF CONTRACTORS-
(A) REQUIREMENT FOR STANDARDS- The Secretary shall set develop appropriate
standards to evaluate the performance of any contractor providing goods
or services to carry out the Integrated and Automated Surveillance Program.
(B) REVIEW BY THE INSPECTOR GENERAL- The Inspector General of the Department
shall timely review each new contract related to the Program that has
a value of more than $5,000,000, to determine whether such contract
fully complies with applicable cost requirements, performance objectives,
program milestones, and schedules. The Inspector General shall report
the findings of such review to the Secretary in a timely manner. Not
later than 30 days after the date the Secretary receives a report of
findings from the Inspector General, the Secretary shall submit to the
Committee on Homeland Security and Governmental Affairs of the Senate
and the Committee on Homeland Security of the House of Representatives
a report of such findings and a description of any the steps that the
Secretary has taken or plans to take in response to such findings.
(5) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
such sums as may be necessary to carry out this subsection.
SEC. 5. SECURE COMMUNICATION.
The Secretary shall, as expeditiously as practicable, develop and implement
a plan to ensure clear and secure 2-way communication capabilities, including
the specific use of satellite communications--
(1) among all Border Patrol agents conducting operations between ports
of entry;
(2) between Border Patrol agents and their respective Border Patrol stations;
and
(3) between all appropriate border security agencies of the Department
and State, local, and tribal law enforcement agencies.
SEC. 6. EXPANSION OF DETENTION CAPACITY.
(a) Increasing Detention Bed Space- Section 5204(a) of the Intelligence
Reform and Terrorism Protection Act of 2004 (Public Law 108-458; 118 Stat.
3734) is amended by striking `8,000' and inserting `20,000'.
(b) Construction of or Acquisition of Detention Facilities-
(1) REQUIREMENT TO CONSTRUCT OR ACQUIRE- The Secretary shall construct
or acquire additional detention facilities in the United States to accommodate
the detention beds required by section 5204(c) of the Intelligence Reform
and Terrorism Protection Act of 2004, as amended by subsection (a).
(2) USE OF ALTERNATE DETENTION FACILITIES- Subject to the availability
of appropriations, the Secretary shall fully utilize all possible options
to cost effectively increase available detention capacities, and shall
utilize detention facilities that are owned and operated by the Federal
Government if the use of such facilities is cost effective.
(c) Secure Alternatives to Detention to Ensure Compliance With the Law-
The Secretary shall implement demonstration programs in each State located
along the international border between the United States and Canada or along
the international border between the United States and Mexico, and at select
sites in the interior with significant numbers of alien detainees, to study
the effectiveness of alternatives to the detention of aliens, including
electronic monitoring devices, to ensure that such aliens appear in immigration
court proceedings and comply with immigration appointments and removal orders.
(d) Legal Representation- No alien shall be detained by the Secretary in
a location that limits the alien's reasonable access to visits and telephone
calls by local legal counsel and necessary legal materials. Upon active
or constructive notice that a detained alien is represented by an attorney,
the Secretary shall ensure that the alien is not moved from the alien's
detention facility without providing that alien and the alien's attorney
reasonable notice in advance of such move.
(e) Annual Report to Congress- Not later than 1 year after the date of the
enactment of this Act, and annually thereafter, in consultation with the
heads of other appropriate Federal agencies, the Secretary shall submit
to Congress an assessment of the additional detention facilities and bed
space needed to detain unlawful aliens apprehended at the United States
ports of entry or along the international land borders of the United States.
(f) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary to carry out this section.
SEC. 7. DETENTION STANDARDS.
(a) Codification of Detention Operations- In order to ensure uniformity
in the safety and security of all facilities used or contracted by the Secretary
to hold alien detainees and to ensure the fair treatment and access to counsel
of all alien detainees, not later than 180 days after the date of the enactment
of this Act, the Secretary shall issue the provisions of the Detention Operations
Manual of the Department, including all amendments made to such Manual since
it was issued in 2000, as regulations for the Department. Such regulations
shall be subject to the notice and comment requirements of subchapter II
of chapter 5 of title 5, United States Code (commonly referred to as the
Administrative Procedure Act) and shall apply to all facilities used by
the Secretary to hold detainees for more than 72 hours.
(b) Detention Standards for Nuclear Family Units and Certain Non-Criminal
Aliens- For all facilities used or contracted by the Secretary to hold aliens,
the regulations described in subsection (a) shall--
(1) provide for sight and sound separation of alien detainees without
any criminal convictions from criminal inmates and pretrial detainees
facing criminal prosecution; and
(2) establish specific standards for detaining nuclear family units together
and for detaining non-criminal applicants for asylum, withholding of removal,
or protection under the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, done at New York December 10, 1984,
in civilian facilities cognizant of their special needs.
(c) Legal Orientation to Ensure Effective Removal Process- All alien detainees
shall receive legal orientation presentations from an independent non-profit
agency as implemented by the Executive Office for Immigration Review of
the Department of Justice in order to both maximize the efficiency and effectiveness
of removal proceedings and to reduce detention costs.
(d) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary to carry out this section.
SEC. 8. PERSONNEL OF THE DEPARTMENT OF HOMELAND SECURITY.
(a) Customs and Border Protection Officers- During each of the fiscal years
2007 through 2011, the Secretary shall, subject to the availability of appropriations
for such purpose, increase by not less than 1,500 the number of positions
for full-time active duty officers of the Bureau of Customs and Border Protection
of the Department for such fiscal year.
(b) Border Patrol Agents- During each of the fiscal years 2007 through 2011,
the Secretary shall, subject to the availability of appropriations for such
purpose, increase by not less than 4,000 the number of border patrol agents
for such fiscal year.
(c) Immigration and Customs Enforcement Investigators- Section 5203 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458;
118 Stat. 3734) is amended by striking `800' and inserting `1600'.
(d) Detention and Removal Officers- During each of the fiscal years 2007
through 2011, the Secretary shall, subject to the availability of appropriations
for such purposes, designate a Detention and Removal officer to be placed
in each Department field office whose sole responsibility will be to ensure
safety and security at a detention facility and that each detention facility
compliance with the standards and regulations set forth in section 7.
(e) Investigative Personnel- In addition to the positions authorized under
section 5203 of the Intelligence Reform and Terrorism Prevention Act of
2004, as amended by subsection (c), during each of the fiscal years 2007
through 2011, the Secretary shall, subject to the availability of appropriations
for such purpose, increase by not less than 200 the number of positions
for investigative personnel within the Department to investigate alien smuggling
and immigration status violations for such fiscal year.
(f) Legal Personnel- During each of the fiscal years 2007 through 2011,
the Secretary shall, subject to the availability of appropriations for such
purpose, increase by not less than 200 the number of positions for attorneys
in the Office of General Counsel of the Department who represent the Department
in immigration matters for such fiscal year.
(g) Directorate of Policy- The Secretary shall in consultation, with the
Director of Policy of the Directorate of Policy, add at least 3 additional
positions at the Directorate of Policy that--
(1) shall be a position at GS-15 of the General Schedule;
(2) are solely responsible for formulating and executing the policy and
regulations pertaining to vulnerable detained populations including unaccompanied
alien children, victims of torture, trafficking or other serious harms,
the elderly, the mentally disabled, and the infirm; and
(3) require background and expertise working directly with such vulnerable
populations.
(h) Training- The Secretary shall provide appropriate training for the agents,
officers, inspectors, and associated support staff of the Department on
an ongoing basis to utilize new technologies and techniques, to identify
and detect fraudulent travel documents, and to ensure that the proficiency
levels of such personnel are acceptable to protect the international borders
of the United States. Training to detect fraudulent travel documents shall
be developed in consultation with the Forensic Document Laboratory of Immigration
and Customs Enforcement.
(i) Enhanced Protections for Vulnerable Unaccompanied Alien Children-
(1) MANDATORY TRAINING- The Secretary shall mandate the training of all
personnel who come into contact with unaccompanied alien children in all
relevant legal authorities, policies, and procedures pertaining to this
vulnerable population in consultation with the head of the Office of Refugee
Resettlement of the Department of Health and Human Services and independent
child welfare experts.
(2) DELEGATION TO THE OFFICE OF REFUGEE RESETTLEMENT- Notwithstanding
any other provision of law, the Secretary shall delegate the authority
and responsibility granted to the Secretary by the Homeland Security Act
of 2002 (Public Law 107-296; 116 Stat. 2135) for transporting unaccompanied
alien children who will undergo removal proceedings from Department custody
to the custody and care of the Office of Refugee Resettlement and provide
sufficient reimbursement to the head of such Office to undertake this
critical function. The Secretary shall immediately notify such Office
of an unaccompanied alien child in the custody of the Department and ensure
that the child is transferred to the custody of such Office as soon as
practicable, but not later than 72 hours after the child is taken into
the custody of the Department.
(3) OTHER POLICIES AND PROCEDURES- The Secretary shall further adopt important
policies and procedures--
(A) for reliable age-determinations of children which exclude the use
of fallible forensic testing of children's bones and teeth in consultation
with medical and child welfare experts;
(B) to ensure the privacy and confidentiality of unaccompanied alien
children's records, including psychological and medical reports, so
that the information is not used adversely against the child in removal
proceedings or for any other immigration action; and
(C) in close consultation with the Secretary of State and the head of
the Office of Refugee Resettlement, to ensure the safe and secure repatriation
of unaccompanied alien children to their home countries including through
arranging placements of children with their families or other sponsoring
agencies and to utilize all legal authorities to defer the child's removal
if the child faces a clear risk of life-threatening harm upon return.
(j) Authorization of Appropriations- There are authorized to be appropriated
to the Secretary for each of fiscal years 2007 through 2011, such sums as
may be necessary to carry out this section, including the hiring of necessary
support staff.
SEC. 9. PERSONNEL OF THE DEPARTMENT OF JUSTICE AND OTHER ATTORNEYS.
(a) Litigation Attorneys- During each of the fiscal years 2007 through 2011,
the Attorney General shall, subject to the availability of appropriations
for such purpose, increase by not less than 50 the number of positions for
attorneys in the Office of Immigration Litigation of the Department of Justice
for such fiscal year.
(b) United States Attorneys- During each of the fiscal years 2007 through
2011, the Attorney General shall, subject to the availability of appropriations
for such purpose, increase by not less than 50 the number of United States
Attorneys to litigate immigration cases in the Federal courts for such fiscal
year.
(c) United States Marshals- During each of the fiscal years 2007 through
2011, the Attorney General shall, subject to the availability of appropriations
for such purpose, increase by not less than 200 the number of Deputy United
States Marshals to investigate criminal immigration matters.
(d) Immigration Judges- During each of fiscal years 2007 through 2011, the
Attorney General shall, subject to the availability of appropriations for
such purpose, increase by not less than 50 the number of immigration judges
for such fiscal year.
(e) Defense Attorneys- During each of the fiscal years 2007 through 2011,
the Director of the Administrative Office of the United States Courts shall,
subject to the availability of appropriations for such purpose, increase
by not less than 200 the number of attorneys in the Federal Defenders Program
for such fiscal year. The Attorney General shall also take all necessary
and reasonable steps to ensure that alien detainees receive appropriate
pro bono representation in immigration matters.
(f) Authorization of Appropriations- There are authorized to be appropriated
to the Attorney General for each of fiscal years 2007 through 2011 such
sums as may be necessary to carry out this section, including the hiring
of necessary support staff.
SEC. 10. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM AUTHORIZATION OF APPROPRIATIONS.
Section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i))
is amended by striking paragraphs (5) and (6) and inserting the following:
`(5) AUTHORIZATION OF APPROPRIATIONS-
`(A) IN GENERAL- There are authorized to be appropriated to carry out
this subsection $950,000,000 for each of the fiscal years 2007 through
2011.
`(B) LIMITATION ON USE OF FUNDS- Amounts appropriated pursuant to subparagraph
(A) that are distributed to a State or political subdivision of a State,
including a municipality, may be used only for correctional purposes.'.
SEC. 11. REIMBURSEMENT OF STATES FOR INDIRECT COSTS RELATING TO THE INCARCERATION
OF ILLEGAL ALIENS.
Section 501 of the Immigration Reform and Control Act of 1986 (8 U.S.C.
1365) is amended--
(A) by striking `for the costs' and inserting the following: `for--
(B) by striking `such State.' and inserting the following: `such State;
and
`(2) the indirect costs related to the imprisonment described in paragraph
(1).'; and
(2) by striking subsections (d) through (e) and inserting the following:
`(d) Manner of Allotment of Reimbursements- Reimbursements under this section
shall be allotted in a manner that gives special consideration for any State
that--
`(1) shares a border with Mexico or Canada; or
`(2) includes within the State an area in which a large number of undocumented
aliens reside relative to the general population of that area.
`(e) Definitions- As used in this section:
`(1) INDIRECT COSTS- The term `indirect costs' includes--
`(A) court costs, county attorney costs, detention costs, and criminal
proceedings expenditures that do not involve going to trial;
`(B) indigent defense costs; and
`(C) unsupervised probation costs.
`(2) STATE- The term `State' has the meaning given such term in section
101(a)(36) of the Immigration and Nationality Act.
`(f) Authorization of Appropriations- There are authorized to be appropriated
$200,000,000 for each of the fiscal years 2007 through 2011 to carry out
this section.'.
SEC. 12. REIMBURSEMENT OF STATES FOR PRECONVICTION COSTS RELATING TO THE
INCARCERATION OF ILLEGAL ALIENS.
Section 241(i)(3)(A) of the Immigration and Nationality Act (8 U.S.C. 1231(i)(3)(a))
is amended by inserting `charged with or' before `convicted.'
SEC. 13. CRIMINAL GANG ACTIVITY.
Section 212(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2))
is amended by adding at the end the following:
`(J) CRIMINAL GANG ACTIVITY-
`(i) IN GENERAL- Any alien who a consular officer or the Attorney
General knows, or has reasonable grounds to believe, seeks to enter
the United States to engage, solely, principally, or incidentally
in a criminal street gang located in the United States is inadmissible.
`(ii) DEFINITION- In this subparagraph, the term `criminal street
gang' means an ongoing group, club, organization, or association of
5 or more individuals that commits a violation of Federal or State
law that is punishable by imprisonment of 1 year or more.'.
END
