109th CONGRESS
2d Session
S. 2394
To improve border security, to increase criminal penalties for
certain crimes related to illegal aliens, and for other purposes.
IN THE SENATE OF THE UNITED STATES
March 9, 2006
Mr. ISAKSON introduced the following bill; which was read twice and referred
to the Committee on the Judiciary
A BILL
To improve border security, to increase criminal penalties for
certain crimes related to illegal aliens, 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 Security Act of 2006'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--BORDER SECURITY
Sec. 102. Federal Law Enforcement Training Center.
Sec. 103. Interagency asset sharing.
Sec. 104. Technology and Infrastructure.
Sec. 105. State and local grants.
TITLE II--AGRICULTURAL WORKERS
Sec. 201. Limitation on H-2A nonimmigrant wage requirement.
Sec. 202. Extension of preemption to required construction of day laborer
shelters.
TITLE III--PENALTIES
Sec. 301. Increased criminal penalties for alien smuggling.
Sec. 302. Increased criminal penalties for document fraud.
Sec. 303. Increased criminal penalties for certain crimes.
Sec. 304. Increased criminal penalties for criminal street gangs.
Sec. 305. Additional penalties.
TITLE IV--REMOVAL AND VIOLATION TRACKING
Sec. 401. Institutional removal program.
Sec. 402. Authorization for detention after completion of state or local
prison sentence.
Sec. 403. Use of the National Crime Information Center Database to track
violations of immigration law.
SEC. 2. DEFINITIONS.
(1) APPROPRIATE CONGRESSIONAL COMMITTEES- The term `appropriate congressional
committees' means the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Homeland Security of the House
of Representatives.
(2) BORDER- The term `border' means the international border between the
United States and Canada and between the United States and Mexico.
(3) SECRETARY- The term `Secretary' means the Secretary of Homeland Security.
TITLE I--BORDER SECURITY
SEC. 101. PERSONNEL.
(a) CBP Agents- In addition to the positions authorized under section 5202
of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public
Law 108-458), in each of fiscal years 2007 through 2011, the Secretary shall
increase by not less than 1,500 the number of positions for full-time, active-duty
agents within the Bureau of Customs and Border Protection.
(b) ICE Agents- In addition to the positions authorized under section 5203
of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public
Law 108-458), in each of fiscal years 2007 through 2011, the Secretary shall
increase by not less than 1,500 the number of positions for full-time, active-duty
agents within the Bureau of Immigration and Customs Enforcement.
(c) Employment of Retired Law Enforcement Officers-
(1) STUDY- The Secretary shall conduct a study of the feasibility of hiring,
on a part-time basis, retired Federal law enforcement officers to supplement
the capabilities of the Bureau of Customs and Border Protection and the
Bureau of Immigration and Customs Enforcement.
(2) REPORT- Not later than 180 days after the date of enactment of this
Act, the Secretary shall submit a report, in classified form, if necessary,
to the appropriate congressional committees. The report shall include--
(A) the results of the study conducted under paragraph (1); and
(B) a plan to implement a program that employs retired Federal law enforcement
officers for border security, if the Secretary determines that such
plan is feasible.
(3) IMPLEMENTATION- If the Secretary determines that the plan described
in paragraph (2)(B) is feasible, the Secretary shall implement the plan
not later than 90 days after the submission of the report to Congress
under paragraph (2).
(d) Recruitment and Retention Program-
(1) IMPLEMENTATION- The Secretary shall conduct a 5-year program to facilitate
the recruitment and retention of agents within the Bureau of Customs and
Border Protection and the Bureau of Immigration and Customs Enforcement.
(2) REPORT- Not less frequently than once every 90 days during the 5-year
period of the program authorized under paragraph (1), the Secretary shall
submit a report on the results and progress of the program, in classified
form, if necessary, to the appropriate congressional committees.
(e) Other Personnel- In each of fiscal years 2007 through 2011, the Secretary
and the Attorney General shall increase, to the extent determined necessary
by the Secretary and the Attorney General, the number of--
(1) Department of Homeland Security personnel, including attorneys, who
have responsibilities involving illegal aliens or immigration issues;
(2) attorneys participating in the Federal Defenders Program;
(3) attorneys in United States Attorneys' Offices;
(4) attorneys in the Office of Immigration Litigation;
(5) deputy marshals in the United States Marshals Service; and
(f) Authorization of Appropriations- There are authorized to be appropriated
for each of fiscal years 2007 through 2011 such sums as may be necessary
to carry out this section.
SEC. 102. FEDERAL LAW ENFORCEMENT TRAINING CENTER.
(a) Infrastructure Improvements- The Secretary shall make necessary improvements
to the following law enforcement training facilities:
(1) The Federal Law Enforcement Training Center in Glynco, Georgia.
(2) The residential training sites located in Artesia, New Mexico and
Charleston, South Carolina.
(3) The inservice requalification training facility located in Cheltenham,
Maryland.
(b) Training Enhancements- The Secretary shall improve the training of agents
within the Bureau of Customs and Border Protection and the Bureau of Immigration
and Customs Enforcement and other personnel in the Department of Homeland
Security with similar responsibilities. Such improvements shall include--
(1) the acquisition of appropriate training aids;
(2) hiring qualified instructors; and
(3) instruction on fraudulent document detection.
SEC. 103. INTERAGENCY ASSET SHARING.
(a) Study- The Secretary, in consultation with the Secretary of Defense,
shall conduct a study of the feasibility of using National Guard personnel
and assets of the Department of Defense, including all terrain vehicles
and unmanned aerial vehicles, to assist the Bureau of Customs and Border
Protection.
(1) IN GENERAL- Not later than 90 days after the date of the enactment
of this Act, the Secretary shall submit a report, in classified form,
if necessary, to the appropriate congressional committees.
(2) CONTENTS- The report submitted under paragraph (1) shall include--
(A) the results of the study conducted under subsection (a); and
(B) a plan to implement a program that employs retired Federal law enforcement
officers for border security, if the Secretary determines that such
plan is feasible.
(c) Implementation- If the Secretary determines that the plan described
in subsection (b)(2)(B) is feasible, the Secretary shall implement the plan
not later than 90 days after the submission of the report to Congress under
subsection (b).
SEC. 104. TECHNOLOGY AND INFRASTRUCTURE.
(a) Technologies- Not later than 90 days after the date of enactment of
this Act, the Secretary shall submit a report, in classified form if necessary,
to the appropriate congressional committees. The report shall contain a
plan to utilize new and existing technologies to assist the Bureau of Customs
and Border Protection and the Bureau of Immigration and Customs Enforcement
in securing the border.
(1) IN GENERAL- Not later than 90 days after the date of enactment of
this Act, the Secretary shall initiate a process for planning, constructing,
and maintaining a permanent barrier, fence, or wall in appropriate areas
along the border.
(2) REPORT- Not less frequently than once every 90 days, the Secretary
shall submit a report, in a classified form if necessary, to the appropriate
congressional committees on the progress made in carrying out paragraph
(1).
(c) Detention Facilities-
(1) CONSTRUCTION- The Attorney General shall plan, construct, maintain,
and acquire additional detention facilities for the purpose of immigration
detention and removal.
(2) USE OF CLOSED OR UNUSED MILITARY INSTALLATIONS- The Secretary, in
consultation with the Secretary of Defense, shall conduct a study of the
feasibility of using military installations designated for closure or
realignment as possible immigration detention centers.
(1) INFRASTRUCTURE REPORT- The Administrator of General Services shall
submit an annual report to Congress that--
(A) describes the status of the infrastructure at ports of entry into
the United States; and
(B) identifies projects to improve security at such ports of entry.
(2) VULNERABILITY REPORT- Not less frequently than once every 6 months,
the Secretary shall submit a report, in classified form if necessary,
to the appropriate congressional committees on vulnerabilities at ports
of entry into the United States.
(3) DEMONSTRATION PROGRAMS- The Secretary shall establish demonstration
programs to evaluate and assess border security and port of entry technologies.
(e) Access Roads- The Secretary is authorized to plan, construct, and maintain
necessary access roads to secure the border.
(f) Unmanned Aerial Vehicles and Associated Infrastructure- The Secretary
shall acquire and maintain unmanned aerial vehicles for use on the border,
including related equipment such as--
(3) satellite command and control; and
(4) other necessary equipment for operational support.
(g) Acquisition of Additional Assets- The Secretary shall--
(1) plan, construct, and maintain new and existing permanent and temporary
checkpoints on the border; and
(2) acquire and maintain physical assets necessary to secure the border,
including--
(A) all terrain vehicles;
(C) aircraft, including helicopters;
(D) interoperable communications equipment;
(I) such other equipment, technologies, and other assets necessary to
secure the border.
(h) Authorization of Appropriations-
(1) IN GENERAL- There are authorized to be appropriated for each of fiscal
years 2007 through 2011--
(A) such sums as may be necessary to carry out subsection (b);
(B) such sums as may be necessary to carry out subsection (c);
(C) $150,000,000 to be used by the Secretary to plan, construct, maintain,
and implement improvement projects identified under subsection (d)(1)(B);
(D) $25,000,000 to carry out subsection (d)(3); and
(E) $1,000,000,000 to carry out subsection (g).
(2) UNMANNED AERIAL VEHICLES- There are authorized to be appropriated
to the Department of Homeland Security to carry out subsection (f)--
(A) $178,400,000 for fiscal year 2007; and
(B) $276,000,000 for each of fiscal years 2008 and 2009.
SEC. 105. STATE AND LOCAL GRANTS.
(a) Grants Authorized- The Secretary shall award competitive grants to eligible
State, local, and tribal law enforcement agencies to provide financial assistance
for costs related to border security activities, including efforts to combat
criminal activity within the jurisdiction of such agencies.
(b) Use of Funds- Grants awarded under this section shall be used to provide
additional resources for law enforcement agencies to combat criminal activity
occurring near the border, including--
(1) law enforcement technologies;
(2) equipment, such as police-type vehicles, all-terrain vehicles, firearms,
sensors, cameras, and lighting, and maintenance for such equipment;
(3) computer equipment; and
(4) such other resources that may be available to assist the law enforcement
agency with border security.
(c) Application- A law enforcement agency desiring a grant under this section
shall submit an application to the Secretary at such time, in such manner,
and containing such information as the Secretary may require.
(d) Selection Criteria- In selecting grant recipients under this section,
the Secretary shall give priority to applicants providing law enforcement
for jurisdictions that--
(1) are close to the border;
(2) have small populations;
(3) have more felony criminal cases filed per United States district court
judge;
(4) are located in States with more undocumented aliens, based on the
most recent decennial census; or
(5) are located in States with more undocumented alien apprehensions in
the most recent fiscal year.
TITLE II--AGRICULTURAL WORKERS
SEC. 201. LIMITATION ON H-2A NONIMMIGRANT WAGE REQUIREMENT.
(a) Short Title- This section may be cited as the `Wage Equity Act of 2006'.
(b) Conditions for Approval of H-2A Petitions- Section 218(a) of the Immigration
and Nationality Act (8 U.S.C. 1188(a)) is amended--
(1) by redesignating paragraph (2) as paragraph (3); and
(2) by inserting after paragraph (1) the following:
`(2)(A) In making the certification described in paragraph (1), the Secretary
of Labor may not require an employer to pay workers am amount that is greater
than--
`(i) the prevailing wage for seasonal agricultural workers in the occupation
in the area of intended employment, or
`(I) the hourly wage described in section 6(a)(1) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206(a)(1)); or
`(II) the applicable State minimum wage.
`(B) In complying with subparagraph (A)(i), an employer (or the employer's
agent) may request and obtain a prevailing wage determination from the State
employment security agency. An employer who obtains such a determination
and pays the wage determined to be prevailing shall be considered to have
met the requirement of subparagraph (A)(i).
`(C) In lieu of the procedure described in subparagraph (B), an employer
may rely on other wage information, including a survey of the prevailing
wages of workers in the occupation in the area of intended employment that
has been conducted or funded by the employer or a group of employers, that
meets criteria specified by the Secretary of Labor in regulations.
`(D) If the prevailing wage described in subparagraph (A)(i) is an hourly
wage, the employer may pay workers in the occupation by an incentive method
of pay such as a piece rate, task rate, group incentive rate, or other incentive
method, if the average hourly earnings of the employer's workers paid by
such incentive method, taken as a group, are at least equal to the prevailing
hourly wage required by subparagraph (A)(i) for the hours worked at the
incentive payment method, after making any additions to any worker's pay
required to comply subparagraph (A)(ii).'.
(c) Definition- Section 218(i) of the Immigration and Nationality Act (8
U.S.C. 1188(i)) is amended by adding at the end the following:
`(3) The term `prevailing wage' means, with respect to an agricultural
occupation in an area of intended employment, the rate of wages that includes
the 51st percentile of employees with similar experience and qualifications
in the agricultural occupation in the area of intended employment, expressed
in terms of the prevailing method of pay for the occupation in the area
of intended employment.'.
SEC. 202. EXTENSION OF PREEMPTION TO REQUIRED CONSTRUCTION OF DAY LABORER
SHELTERS.
Section 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(2))
is amended to read as follows:
`(2) PREEMPTION- This section preempts any State or local law that--
`(A) imposes civil or criminal sanctions (other than through licensing
and similar laws) upon those who employ, or recruit or refer for employment
(for a fee), unauthorized aliens; or
`(B) requires, as a condition of conducting, continuing, or expanding
a business, that a business entity--
`(i) provide, build, fund, or maintain a shelter, structure, or designated
area for use by day laborers at or near its place of business; or
`(ii) take other steps to facilitate the employment of day laborers
by others.'.
TITLE III--PENALTIES
SEC. 301. INCREASED CRIMINAL PENALTIES FOR ALIEN SMUGGLING.
Section 274(a) of the Immigration and Nationality Act (8 U.S.C. 1324(a))
is amended--
(1) in paragraph (1)(B)--
(A) in clause (i), by striking `10 years' and inserting `15 years';
(B) in clause (ii), by striking `5 years' and inserting `10 years';
and
(C) in clause (iii), by striking `20 years' and inserting `40 years';
(A) in subparagraph (A), by striking `one year, or both; or' and inserting
`3 years, or both';
(B) in subparagraph (B)--
(i) in clause (i), by adding at the end the following: `be fined under
title 18, United States Code, and imprisoned not less than 5 years
or more than 25 years;';
(ii) in clause (ii), by striking `or' at the end and inserting the
following: `be fined under title 18, United States Code, and imprisoned
not less than 3 years or more than 20 years; or'; and
(iii) in clause (iii), by adding at the end the following: `be fined
under title 18, United States Code, and imprisoned not more than 15
years; or'; and
(C) by striking the matter following clause (iii) and inserting the
following:
`(C) in the case of a third or subsequent offense described in subparagraph
(B) and for any other violation, shall be fined under title 18, United
States Code, and imprisoned not less than 5 years nor more than 15 years.';
(3) in paragraph (3)(A), by striking `5 years' and inserting `10 years';
and
(4) in paragraph (4), by striking `10 years' and inserting `20 years'.
SEC. 302. INCREASED CRIMINAL PENALTIES FOR DOCUMENT FRAUD.
Section 1546 of title 18, United States Code, is amended--
(A) by striking `not more than 25 years' and inserting `not less than
25 years';
(B) by inserting `and if the terrorism offense resulted in the death
of any person, shall be punished by death or imprisoned for life,' after
`section 2331 of this title)),';
(C) by striking `20 years' and inserting `imprisoned not more than 40
years';
(D) by striking `10 years' and inserting `imprisoned not more than 20
years'; and
(E) by striking `15 years' and inserting `imprisoned not more than 30
years'; and
(2) in subsection (b), by striking `5 years' and inserting `10 years'.
SEC. 303. INCREASED CRIMINAL PENALTIES FOR CERTAIN CRIMES.
(a) In General- Title 18, United States Code, is amended by inserting after
chapter 51 the following:
`CHAPTER 52--ILLEGAL ALIENS
`SEC. 1131. ENHANCED PENALTIES FOR CERTAIN CRIMES COMMITTED BY ILLEGAL
ALIENS.
`(a) Any alien unlawfully present in the United States, who commits, or
conspires or attempts to commit, a crime of violence or a drug trafficking
offense (as defined in section 924), shall be fined under this title and
sentenced to not less than 5 years in prison.
`(b) If an alien who violates subsection (a) was previously ordered removed
under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) on the
grounds of having committed a crime, the alien shall be sentenced to not
less than 15 years in prison.
`(c) A sentence of imprisonment imposed under this section shall run consecutively
to any other sentence of imprisonment imposed for any other crime.'.
(b) Clerical Amendment- The table of chapters at the beginning of part I
of title 18, United States Code, is amended by inserting after the item
relating to chapter 51 the following:
--1131'.
SEC. 304. INCREASED CRIMINAL PENALTIES FOR CRIMINAL STREET GANGS.
(a) Inadmissibility- Section 212(a)(2) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(2)) is amended--
(1) by redesignating subparagraph (F) as subparagraph (J); and
(2) by inserting after subparagraph (E) the following:
`(F) ALIENS WHO ARE MEMBERS OF CRIMINAL STREET GANGS- Any alien who
is determined by a court to be a member of a criminal street gang (as
defined in section 521(a) of title 18, United States Code) is inadmissible.'.
(b) Deportability- 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:
`(F) ALIENS WHO ARE MEMBERS OF CRIMINAL STREET GANGS- Any alien who
is determined by a court to be a member of a criminal street gang (as
defined in section 521(a) of title 18, United States Code) is deportable.'.
(c) Temporary Protected Status- Section 244(c)(2)(B) of the Immigration
and Nationality Act (8 U.S.C. 1254a(c)(2)(B)) is amended--
(1) in clause (i), by striking `or' at the end;
(2) in clause (ii), by striking the period at the end and inserting `;
or'; and
(3) by adding at the end the following:
`(iii) the alien is determined by a court to be a member of a criminal
street gang (as defined in section 521(a) of title 18, United States
Code).'.
SEC. 305. ADDITIONAL PENALTIES.
(a) In General- Section 218A of the Immigration and Nationality Act, as
added by section 402, is amended by adding at the end the following:
`(1) GUEST WORKERS- A guest worker who violates any of the terms described
in subsection (d) shall be subject to deportation and shall be ineligible
to receive a nonimmigrant visa under this section.
`(A) NOTIFICATION OF VIOLATION- An employer who fails to notify the
Secretary of Homeland Security after discovering that a guest worker
has violated any of the terms described in subsection (d) shall be ineligible
to employ any alien in possession of a nonimmigrant visa issued under
section.
`(B) EMPLOYMENT OF ILLEGAL WORKERS- Any employer who knowingly employs
a worker in the United States who is not authorized to work in the United
States shall be subject to--
`(i) for the first violation, a civil penalty in an amount not to
exceed $25,000; and
`(ii) for the second or subsequent violation--
`(I) a term of imprisonment not to exceed 2 years for the individual
who hired the unauthorized worker; and
`(II) disqualification of the employer from further participation
in the guest worker program authorized under this section.'.
(b) Effective Date- The amendment made by subsection (a) shall take effect
on the date which is 2 years after the date of the enactment of this Act.
TITLE IV--REMOVAL AND VIOLATION TRACKING
SEC. 401. INSTITUTIONAL REMOVAL PROGRAM.
(a) Institutional Removal Program-
(1) CONTINUATION- The Secretary shall continue to operate the Institutional
Removal Program of the Department of Homeland Security to--
(A) identify removable criminal aliens in Federal and State correctional
facilities;
(B) ensure that such aliens are not released into the community; and
(C) remove such aliens from the United States after the completion of
their sentences.
(2) EXPANSION- Not later than 5 years after the date of the enactment
of this Act, the Secretary shall expand the Institutional Removal Program
to every State.
(3) STATE PARTICIPATION- The appropriate officials of each State in which
the Secretary is operating the Institutional Removal Program should--
(A) cooperate with Federal officials carrying out the Institutional
Removal Program;
(B) expeditiously and systematically identify criminal aliens in the
prison and jail populations of the State; and
(C) promptly convey the information described in subparagraph (B) to
the appropriate officials carrying out the Institutional Removal Program.
(b) Report to Congress- Not later than 2 years after of the date of the
enactment of this Act, the Secretary shall submit a report to Congress on
the participation of the States in the Institutional Removal Program.
(c) Authorization of Appropriations- There are authorized to be appropriated
$50,000,000 to carry out the expanded Institutional Removal Program authorized
under subsection (a).
SEC. 402. AUTHORIZATION FOR DETENTION AFTER COMPLETION OF STATE OR LOCAL
PRISON SENTENCE.
(a) In General- Law enforcement officers of a State or political subdivision
of a State are authorized to--
(1) hold an illegal alien for a period of up to 14 days after the alien
has completed the alien's State or local prison sentence in order to effectuate
the transfer of the alien to Federal custody when the alien is removable
or not lawfully present in the United States; or
(2) issue a detainer that would allow aliens who have served a State or
local prison sentence to be detained by an appropriate prison until personnel
from the Bureau of Immigration and Customs Enforcement can take the alien
into Federal custody.
(1) IN GENERAL- The Secretary shall reimburse a State or a political subdivision
of a State for all reasonable expenses incurred by the State or the political
subdivision for the detention of an alien as described in subsection (a).
(2) COST COMPUTATION- The amount of reimbursement provided for costs incurred
carrying out subsection (a) shall be determined pursuant to a formula
determined by the Secretary.
(c) Technology Usage- Technology, such as videoconferencing, shall be used
to the maximum extent possible to make the Institutional Removal Program
available in remote locations. Mobile access to Federal databases of aliens
and live scan technology shall be used to the maximum extent practicable
to make these resources available to State and local law enforcement agencies
in remote locations.
(d) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary to reimburse a State or political subdivision
of a State for the detention of an illegal alien pursuant to subsection
(b).
SEC. 403. USE OF THE NATIONAL CRIME INFORMATION CENTER DATABASE TO TRACK
VIOLATIONS OF IMMIGRATION LAW.
(a) Provision of Information to the National Crime Information Center-
(1) IN GENERAL- Not later than 1 year after the date of the enactment
of this Act, the Secretary shall provide the National Crime Information
Center of the Department of Justice with such information as the Director
may have related to--
(A) any alien against whom a final order of removal has been issued;
(B) any alien who is subject to a voluntary departure agreement that
has become invalid under section 240B(a)(2) of the Immigration and Nationality
Act (8 U.S.C. 1229c); and
(C) any alien whose visa has been revoked.
(2) REQUIREMENT TO PROVIDE AND USE INFORMATION- The information described
in paragraph (1) shall be provided to the National Crime Information Center,
and the Center shall enter the information into the Immigration Violators
File of the National Crime Information Center database if the name and
date of birth are available for the individual, regardless of whether
the alien received notice of a final order of removal or the alien has
already been removed.
(3) REMOVAL OF INFORMATION- If an individual is granted cancellation of
removal under section 240A of the Immigration and Nationality Act (8 U.S.C.
1229b), or granted permission to legally enter the United States pursuant
to such Act after a voluntary departure under section 240B of such Act
(8 U.S.C. 1229c), information entered into the National Crime Information
Center under paragraph (1) shall be promptly removed.
(b) Inclusion of Information in the National Crime Information Center Database-
Section 534(a) of title 28, United States Code, is amended--
(1) in paragraph (3), by striking `and' at the end;
(2) by redesignating paragraph (4) as paragraph (5); and
(3) by inserting after paragraph (3) the following:
`(4) acquire, collect, classify, and preserve records of violations of
the immigration laws of the United States, regardless of whether the alien
has received notice of the violation or the alien has already been removed;
and'.
END
