S 2294
Calendar No. 465
110th CONGRESS
1st Session
S. 2294
To strengthen immigration enforcement and border security and
for other purposes.
IN THE SENATE OF THE UNITED STATES
November 1, 2007
Mr. KYL (for himself, Mr. GRAHAM, Mr. CORNYN, Mr. MARTINEZ, Mr. SESSIONS,
Mr. SPECTER, and Mr. MCCONNELL) introduced the following bill; which
was read the first time
November 2, 2007
Read the second time and placed on the calendar
A BILL
To strengthen immigration enforcement and border security 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 `Immigration Enforcement
and Border Security Act of 2007'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Reference to the Immigration and Nationality Act.
TITLE I--BORDER SECURITY
Subtitle A--Assets for Controlling United States Borders
Sec. 101. Achieving operational control of the borders.
Sec. 102. Enforcement personnel.
Sec. 103. Operation jump start.
Sec. 104. Technological assets.
Sec. 105. Infrastructure.
Sec. 106. Ports of entry.
Subtitle B--Other Border Security Initiatives
Sec. 112. Unlawful flight from immigration or customs controls.
Sec. 113. Catch and return.
Sec. 114. Seizure of conveyance with concealed compartment.
Subtitle C--Other Measures
Sec. 121. Secure communication.
Sec. 122. Unmanned aircraft systems.
Sec. 123. Biometric data enhancements.
Sec. 124. US-VISIT System.
Sec. 125. Listing of immigration violators in the National Crime Information
Center database.
Sec. 126. Document fraud detection.
Sec. 127. Border relief grant program.
Sec. 128. Combating human smuggling.
Sec. 129. Increase of Federal detention space and the utilization
of facilities identified for closures as a result of the Defense Base
Closure Realignment Act of 1990.
Sec. 130. Northern border prosecution reimbursement.
Sec. 131. Limitation on landowner's liability.
TITLE II--INTERIOR ENFORCEMENT
Subtitle A--Interior Security Measures
Sec. 201. Additional immigration personnel.
Sec. 202. Detention and removal of aliens ordered removed or aliens
who overstay.
Sec. 203. Aggravated felony.
Sec. 204. Inadmissibility and deportability of gang members.
Sec. 205. Grounds of inadmissibility and deportability relating to
removal and firearm offenses.
Sec. 206. Alien smuggling and related offenses.
Sec. 208. Criminal penalties for aliens unlawfully present in the
United States.
Sec. 209. Illegal reentry.
Sec. 210. Reform of passport, visa, and immigration fraud offenses.
Sec. 211. Inadmissibility and removal for passport and immigration
fraud offenses.
Sec. 212. Incarceration of criminal aliens.
Sec. 213. Encouraging aliens to depart voluntarily.
Sec. 214. Deterring aliens ordered removed from remaining in the United
States unlawfully.
Sec. 215. Prohibition of the sale of firearms to, or the possession
of firearms by certain aliens.
Sec. 216. Uniform statute of limitations for certain immigration,
passport, and naturalization offenses.
Sec. 217. Diplomatic security service.
Sec. 218. Streamlined processing of background checks conducted for
immigration benefits.
Sec. 219. State criminal alien assistance program.
Sec. 220. Reducing illegal immigration and alien smuggling on tribal
lands.
Sec. 221. Alternatives to detention.
Sec. 222. State and local enforcement of Federal immigration laws.
Sec. 223. Protecting immigrants from convicted sex offenders.
Sec. 224. Law enforcement authority of States and political subdivisions
and transfer to Federal custody.
Sec. 225. Laundering of monetary instruments.
Sec. 226. Cooperative enforcement programs.
Sec. 227. Expansion of the justice prisoner and alien transfer system.
Sec. 228. Directive to the United States Sentencing Commission.
Sec. 229. Cancellation of visas.
Sec. 230. Judicial review of visa revocation.
Sec. 231. Terrorist bar to good moral character.
Sec. 232. Precluding admissibility of aliens convicted of aggravated
felonies or other serious offenses.
Sec. 233. Removal and denial of benefits to terrorist aliens.
Sec. 234. Use of 1986 IRCA legalization information for national security
purposes.
Sec. 235. Definition of racketeering activity.
Sec. 236. Sanctions for countries that delay or prevent repatriation
of their nationals.
Sec. 237. Appropriate remedies for immigration legislation.
Sec. 238. Reporting requirements.
Sec. 239. Withholding of removal.
Sec. 240. Precluding refugees and asylees who have been convicted
of aggravated felonies from adjustment to legal permanent resident
status.
Sec. 241. Judicial review of discretionary determinations and removal
orders relating to criminal aliens.
Sec. 242. Information sharing between Federal and local law enforcement
officers.
Sec. 243. Fraud prevention program.
Subtitle B--Worksite Enforcement
Sec. 251. Unlawful employment of aliens.
Sec. 252. Disclosure of certain taxpayer information to assist in
immigration enforcement.
Sec. 253. Increasing security and integrity of Social Security cards.
Sec. 254. Increasing security and integrity of identity documents.
Sec. 255. Voluntary Advanced Verification Program to Combat Identity
Theft.
Sec. 256. Responsibilities of the Social Security Administration.
Sec. 257. Immigration enforcement support by the Internal Revenue
Service and the Social Security Administration.
Sec. 258. Additional criminal penalties for misuse of social security
account numbers.
Sec. 259. Authorization of appropriations.
SEC. 2. REFERENCE TO THE IMMIGRATION AND NATIONALITY ACT.
Except as otherwise expressly provided, whenever in this Act an amendment
or repeal is expressed in terms of an amendment to, or repeal of, a
section or other provision, the reference shall be considered to be
made to a section or other provision of the Immigration and Nationality
Act (8 U.S.C. 1101 et seq.).
SEC. 3. DEFINITIONS.
(1) DEPARTMENT- The term `Department' means the Department of Homeland
Security.
(2) SECRETARY- The term `Secretary' means the Secretary of Homeland
Security.
TITLE I--BORDER SECURITY
Subtitle A--Assets for Controlling United States Borders
SEC. 101. ACHIEVING OPERATIONAL CONTROL OF THE BORDERS.
(a) In General- Not later than 2 years after the date of the enactment
of this Act, the Secretary shall work to achieve operational control
of 100 percent of the international land and maritime borders of the
United States by--
(1) deploying along such borders physical infrastructure enhancements,
including additional checkpoints, all weather access roads, and vehicle
barriers to gain operational control over such borders and to facilitate
access to such borders by United States Customs and Border Protection;
(2) installing, along the international land border between the United
States and Mexico, at least--
(A) 300 miles of vehicle barriers;
(B) 700 linear miles of fencing as required under the Secure Fence
Act of 2006 (Public Law 109-367); and
(C) 105 ground-based radar and camera towers;
(3) deploying, for use along the international land border between
the United States and Mexico, 4 unmanned aerial vehicles, and the
supporting systems for such vehicles; and
(4) conducting systematic surveillance of the international land and
maritime borders of the United States through more effective use of
personnel and technology, including ground-based sensors, satellites,
radar coverage, and cameras.
(b) Operational Control Defined- In this section, the term `operational
control' means the successful prevention of all unlawful entries into
the United States, including entries by terrorists, other unlawful aliens,
instruments of terrorism, narcotics, and other contraband.
SEC. 102. ENFORCEMENT PERSONNEL.
(a) Additional Personnel-
(1) UNITED STATES CUSTOMS AND BORDER PROTECTION OFFICERS-
(A) IN GENERAL- In each of the fiscal years 2008 through 2012, the
Secretary, subject to the availability of appropriations, shall
increase by not less than 500 the number of positions for full-time
active duty officers of United States Customs and Border Protection
and provide appropriate training, equipment, and support to such
additional officers.
(B) INTERNATIONAL AIRPORTS- Not later than September 30, 2008, the
Secretary, subject to the availability of appropriations, shall
employ not less than an additional 200 officers of United States
Customs and Border Protection to address staff shortages at the
20 international airports in the United States with the highest
number of foreign visitors arriving annually, as determined pursuant
to the most recent data collected by United States Customs and Border
Protection before the date of the enactment of this Act.
(2) IMMIGRATION AND CUSTOMS ENFORCEMENT PERSONNEL- In addition to
the positions authorized under section 5203 of the Intelligence Reform
and Terrorism Prevention Act of 2004 (Public Law 108-458), during
each of the fiscal years 2008 through 2012, the Secretary shall, subject
to the availability of appropriations, increase by not fewer than
200 the number of positions for personnel within the Department assigned
to investigate alien smuggling.
(3) DEPUTY UNITED STATES MARSHALS- In each of the fiscal years 2008
through 2012, the Attorney General shall, subject to the availability
of appropriations, increase by not less than 50 the number of positions
for full-time active duty Deputy United States Marshals that assist
in matters related to immigration.
(4) RECRUITMENT OF FORMER MILITARY PERSONNEL- The Commissioner of
United States Customs and Border Protection, in conjunction with the
Secretary of Defense or a designee of the Secretary of Defense, shall
establish a program to actively recruit members of the Army, Navy,
Air Force, Marine Corps, and Coast Guard who have elected to separate
from active duty.
(b) Authorization of Appropriations-
(1) UNITED STATES CUSTOMS AND BORDER PROTECTION OFFICERS- There are
authorized to be appropriated to the Secretary such sums as may be
necessary for each of the fiscal years 2008 through 2012 to carry
out subsection (a)(1).
(2) DEPUTY UNITED STATES MARSHALS- There are authorized to be appropriated
to the Attorney General such sums as may be necessary for each of
the fiscal years 2008 through 2012 to carry out subsection (a)(3).
(3) BORDER PATROL AGENTS- Section 5202 of the Intelligence Reform
and Terrorism Prevention Act of 2004 (118 Stat. 3734) is amended to
read as follows:
`SEC. 5202. INCREASE IN FULL-TIME BORDER PATROL AGENTS.
`(a) In General- The Secretary of Homeland Security shall acquire sufficient
training staff and training facilities to increase the capacity of the
Department of Homeland Security to train 2,400 new, full-time, active
duty Border Patrol agents per year.
`(b) Northern Border- In each of the fiscal years 2008 through 2012,
in addition to the border patrol agents assigned along the northern
border of the United States during the previous fiscal year, the Secretary
shall assign a number of border patrol agents equal to not less than
20 percent of the net increase in border patrol agents during each such
fiscal year.
`(c) Annual Increases- 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 border patrol agents within
the Department of Homeland Security (above the number of such positions
for which funds were appropriated for the preceding fiscal year), by
not less than--
`(1) 2,000 in fiscal year 2007;
`(2) 2,400 in fiscal year 2008;
`(3) 2,400 in fiscal year 2009;
`(4) 2,400 in fiscal year 2010;
`(5) 2,400 in fiscal year 2011; and
`(6) 2,400 in fiscal year 2012.
`(d) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary for each of the fiscal years 2008 through
2012 to carry out this section.'.
SEC. 103. OPERATION JUMP START.
(a) In General- The Secretary of Defense, in conjunction with the Commissioner
of United States Customs and Border Protection, shall provide not fewer
than 6,000 National Guard members on the southern land border of the
United States to assist the United States Border Patrol in gaining operational
control of that border.
(b) Authorization of Appropriations- There are authorized to be appropriated
to the Department of Defense such sums as may be necessary for each
of the fiscal years 2008 through 2010 to carry out subsection (a).
SEC. 104. TECHNOLOGICAL ASSETS.
(a) Acquisition- Subject to the availability of appropriations for such
purpose, the Secretary shall procure additional unmanned aerial vehicles,
cameras, poles, sensors, and other technologies necessary to achieve
operational control of the borders of the United States.
(b) Increased Availability of Equipment- The Secretary and the Secretary
of Defense shall develop and implement a plan to use authorities provided
to the Secretary of Defense under chapter 18 of title 10, United States
Code, to increase the availability and use of Department of Defense
equipment, including unmanned aerial vehicles, tethered aerostat radars,
and other surveillance equipment, to assist the Secretary in carrying
out surveillance activities conducted at or near the international land
borders of the United States to prevent illegal immigration.
(c) Authorization of Appropriations- There are authorized to be appropriated
to the Secretary such sums as may be necessary for each of the fiscal
years 2008 through 2012 to carry out subsection (a).
SEC. 105. INFRASTRUCTURE.
Section 102 of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (8 U.S.C. 1103 note) is amended--
(1) in subsection (a), by striking `Attorney General, in consultation
with the Commissioner of Immigration and Naturalization,' and inserting
`Secretary of Homeland Security'; and
(A) by redesignating paragraphs (1), (2), (3), and (4) as paragraphs
(2), (3), (4), and (5), respectively;
(B) by inserting before paragraph (2), as redesignated, the following:
`(1) FENCING NEAR SAN DIEGO, CALIFORNIA- In carrying out subsection
(a), the Secretary shall provide for the construction of second and
third fences, in addition to the existing reinforced fence, along
the first 14 miles of the international land border between the United
States and Mexico extending east from the Pacific Ocean, and for roads
between the fences.';
(C) in paragraph (2), as redesignated--
(i) in the heading, by striking `security features' and inserting--`additional
fencing along southwest border'; and
(ii) by striking subparagraphs (A) through (C) and inserting the
following:
`(A) REINFORCED FENCING- In carrying out subsection (a), the Secretary
of Homeland Security shall construct reinforced fencing along not
less than 700 miles of the southwest border where fencing would
be most practical and effective and provide for the installation
of additional physical barriers, roads, lighting, cameras, and sensors
to gain operational control of the southwest border.
`(B) PRIORITY AREAS- In carrying out this section, the Secretary
of Homeland Security shall--
`(i) identify the 370 miles along the southwest border where fencing
would be most practical and effective in deterring smugglers and
aliens attempting to gain illegal entry into the United States;
and
`(ii) not later than December 31, 2008, complete construction
of reinforced fencing along the 370 miles identified under clause
(i) before completing the construction of the remaining 330 miles
of fencing.
`(i) IN GENERAL- In carrying out this section, the Secretary of
Homeland Security shall consult with the Secretary of Interior,
the Secretary of Agriculture, States, local governments, Indian
tribes, and property owners in the United States to minimize the
impact on the environment, culture, commerce, and quality of life
for the communities and residents located near the sites at which
such fencing is to be constructed.
`(ii) SAVINGS PROVISION- Nothing in this subparagraph may be construed
to--
`(I) create any right of action for a State, local government,
or other person or entity affected by this subsection; or
`(II) affect the eminent domain laws of the United States or
of any State.'; and
(D) in paragraph (5), as redesignated, by striking `to carry out
this subsection not to exceed $12,000,000' and inserting `such sums
as may be necessary to carry out this subsection'.
SEC. 106. PORTS OF ENTRY.
Section 102 of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Division C of Public Law 104-208, is amended by the addition,
at the end of that section, the following:
`(e) Construction and Improvements- The Secretary is authorized to--
`(1) construct additional ports of entry along the international land
borders of the United States, at locations to be determined by the
Secretary; and
`(2) make necessary improvements to the ports of entry.'.
Subtitle B--Other Border Security Initiatives
SEC. 112. UNLAWFUL FLIGHT FROM IMMIGRATION OR CUSTOMS CONTROLS.
(a) In General- Section 758 of title 18, United States Code, is amended
to read as follows:
`Sec. 758. Unlawful flight from immigration or customs controls
`(a) Evading a Checkpoint- Any person who, while operating a motor vehicle
or vessel, knowingly flees or evades a checkpoint operated by the Department
of Homeland Security or any other Federal law enforcement agency, and
knowingly or recklessly disregards or disobeys the lawful command of
any law enforcement agent, shall be fined under this title, imprisoned
not more than 5 years, or both.
`(b) Failure To Stop- Any person who, while operating a motor vehicle,
aircraft, or vessel, knowingly or recklessly disregards or disobeys
the lawful command of an officer of the Department of Homeland Security
engaged in the enforcement of the immigration, customs, or maritime
laws, or the lawful command of any law enforcement agent assisting such
officer, shall be fined under this title, imprisoned not more than 2
years, or both.
`(c) Alternative Penalties- Notwithstanding the penalties provided in
subsection (a) or (b), any person who violates such subsection shall--
`(1) be fined under this title, imprisoned not more than 10 years,
or both, if the violation involved the operation of a motor vehicle,
aircraft, or vessel--
`(A) in excess of the applicable or posted speed limit,
`(B) in excess of the rated capacity of the motor vehicle, aircraft,
or vessel, or
`(C) in an otherwise dangerous or reckless manner;
`(2) be fined under this title, imprisoned not more than 20 years,
or both, if the violation created a substantial and foreseeable risk
of serious bodily injury or death to any person;
`(3) be fined under this title, imprisoned not more than 30 years,
or both, if the violation caused serious bodily injury to any person;
or
`(4) be fined under this title, imprisoned for any term of years or
life, or both, if the violation resulted in the death of any person.
`(d) Attempt and Conspiracy- Any person who attempts or conspires to
commit any offense under this section shall be punished in the same
manner as a person who completes the offense.
`(e) Forfeiture- Any property, real or personal, constituting or traceable
to the gross proceeds of the offense and any property, real or personal,
used or intended to be used to commit or facilitate the commission of
the offense shall be subject to forfeiture.
`(f) Forfeiture Procedures- Seizures and forfeitures under this section
shall be governed by the provisions of chapter 46 of this title, relating
to civil forfeitures, including section 981(d) of such title, except
that such duties as are imposed upon the Secretary of the Treasury under
the customs laws described in that section shall be performed by such
officers, agents, and other persons as may be designated for that purpose
by the Secretary of Homeland Security or the Attorney General. Nothing
in this section shall limit the authority of the Secretary to seize
and forfeit motor vehicles, aircraft, or vessels under the Customs laws
or any other laws of the United States.
`(g) Definitions- In this section:
`(1) CHECKPOINT- The term `checkpoint' includes any customs or immigration
inspection at a port of entry.
`(2) LAWFUL COMMAND- The term `lawful command' includes a command
to stop, decrease speed, alter course, or land, whether communicated
orally, visually, by means of lights or sirens, or by radio, telephone,
or other wire communication.
`(3) LAW ENFORCEMENT AGENT- The term `law enforcement agent' means
any Federal, State, local or tribal official authorized to enforce
criminal law, and, when conveying a command covered under subsection
(b), an air traffic controller.
`(4) MOTOR VEHICLE- The term `motor vehicle' means any motorized or
self-propelled means of terrestrial transportation.
`(5) SERIOUS BODILY INJURY- The term `serious bodily injury' has the
meaning given in section 2119(2) of this title.'.
(b) Clerical Amendment- The table of sections for chapter 35 of title
18, United States Code, is amended by striking the item relating to
section 758 and inserting the following:
`758. Unlawful flight from immigration or customs controls.'.
SEC. 113. CATCH AND RETURN.
(a) Mandatory Detention- To deter illegal immigration, the Secretary
shall detain, until the Secretary has effected the removal of every
alien, who--
(1) is a national of a noncontiguous country;
(2) has not been admitted or paroled into the United States; and
(3) was apprehended within 100 miles of the international border of
the United States.
(b) Supervised Release- The Secretary may, for urgent humanitarian reasons,
grant an alien described in subparagraph (a) supervised release with
conditions during a pending removal proceeding if the alien--
(1) does not pose a flight risk;
(2) does not pose a danger to the community; and
(3) gives a bond of not less than $5,000, with security approved by,
and containing conditions prescribed by, the Secretary.
SEC. 114. SEIZURE OF CONVEYANCE WITH CONCEALED COMPARTMENT.
Section 3 of the Act of August 5, 1935 (19 U.S.C. 1703) is amended--
(1) by amending the section heading to read as follows:
`Sec. 1703. Seizure and forfeiture of vessels, vehicles, other conveyances
and instruments of international traffic';
(2) in subsection (a), by amending the subsection heading to read
as follows:
`(a) Vessels, Vehicles, Other Conveyances, and Instruments of International
Traffic Subject to Seizure and Forfeiture- ';
(3) in subsections (a) and (b), by inserting `, vehicle, other conveyance,
or instrument of international traffic' after `vessel' each place
it appears;
(4) in subsection (b), by amending the subsection heading to read
as follows:
`(b) Vessels, Vehicles, Other Conveyances, and Instruments of International
Traffic Defined- '; and
(5) by amending subsection (c) to read as follows:
`(c) Acts Constituting Prima Facie Evidence of Vessel, Vehicle, or Other
Conveyance or Instrument of International Traffic Engaged in Smuggling-
For the purposes of this section, prima facie evidence that a conveyance
is being, has been, or is attempted to be employed in smuggling or to
defraud the revenue of the United States shall be--
`(1) in the case of a vessel, the fact that a vessel has become subject
to pursuit as provided in section 1581, or is a hovering vessel, or
that a vessel fails, at any place within the customs waters of the
United States or within a customs-enforcement area, to display light
as required by law; and
`(2) in the case of a vehicle, other conveyance, or instrument of
international traffic, the fact that a vehicle, other conveyance or
instrument of international traffic has any compartment or equipment
that is built or fitted out for smuggling.'.
Subtitle C--Other Measures
SEC. 121. SECURE COMMUNICATION.
The Secretary shall, as expeditiously as practicable, develop and implement
a plan to improve the use of satellite communications and other technologies
to ensure clear and secure 2-way communication capabilities--
(1) among all Border Patrol agents conducting operations between ports
of entry;
(2) between Border Patrol agents and their respective Border Patrol
stations; and
(3) between all appropriate border security agencies of the Department
and State, local, and tribal law enforcement agencies.
SEC. 122. UNMANNED AIRCRAFT SYSTEMS.
(a) Unmanned Aircraft and Associated Infrastructure- The Secretary shall
acquire and maintain unmanned aircraft systems for use on the border,
including related equipment such as--
(3) satellite command and control; and
(4) other necessary equipment for operational support.
(b) Authorization of Appropriations-
(1) IN GENERAL- There are authorized to be appropriated to the Secretary
to carry out subsection (a)--
(A) $178,400,000 for fiscal year 2008; and
(B) $276,000,000 for fiscal year 2009.
(2) AVAILABILITY OF FUNDS- Amounts appropriated pursuant to paragraph
(1) shall remain available until expended.
SEC. 123. BIOMETRIC DATA ENHANCEMENTS.
Not later than October 1, 2008, the Secretary shall--
(1) in consultation with the Attorney General, enhance connectivity
between the Automated Biometric Fingerprint Identification System
of the Department and the Integrated Automated Fingerprint Identification
System of the Federal Bureau of Investigation to ensure more expeditious
data searches; and
(2) in consultation with the Secretary of State, and the Secretary
of State, collect all fingerprints from each alien required to provide
fingerprints during the alien's initial enrollment in the integrated
entry and exit data system described in section 110 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C.
1365a).
SEC. 124. US-VISIT SYSTEM.
(a) In General- Not later than 6 months after the date of the enactment
of this Act, the Secretary, in consultation with the heads of other
appropriate Federal agencies, shall submit to Congress a schedule for--
(1) equipping all ports of entry of the United States with the United
States-Visitor and Immigrant Status Indicator Technology system (referred
to in this section as `US-VISIT') implemented under section 110 of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (8 U.S.C. 1365a), including all necessary changes to infrastructure
at the ports of entry to fully deploy US-VISIT;
(2) developing and deploying at such ports of entry the exit component
of US-VISIT; and
(3) making interoperable all immigration screening systems operated
by the Secretary.
(b) Visa Exit Tracking System- In addition to the requirements under
subsection (a), the Secretary shall, not later than 18 months after
the date of the enactment of this Act, establish and deploy a system
capable of recording the departure, at designated ports of entry, and,
in coordination with the Secretary of State, at designated United States
consulates, of aliens admitted on temporary nonimmigrant visas under
the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
(c) Prompt Removal Proceedings- Subject to the availability of appropriations,
the Secretary shall promptly identify, investigate, and initiate removal
proceedings against every alien admitted into the United States on a
temporary nonimmigrant visa under the Immigration and Nationality Act
and who exceeds the alien's period of authorized admission or otherwise
violates any terms of the alien's nonimmigrant status. In conducting
such removal proceedings, the Secretary shall give priority to aliens
who may pose a threat to the national security, and those convicted
of criminal offenses.
(1) IN GENERAL- Not later than 1 year after the date of the enactment
of this Act, the Secretary shall submit a report to the governor of
each State that shares a land border with Mexico and a separate report
to the governor of each State that shares a land border with Canada
that describes the progress made in establishing, funding, and implementing
the border security and other measures set forth under this title.
(2) GOVERNOR'S RESPONSE- Not later than 60 days after receiving a
report from the Secretary under paragraph (1), a governor may submit
a report to Congress that--
(A) analyzes the accuracy of the information received by the Secretary;
(B) indicates whether the governor agrees with the Secretary that
the border security and other measures described in this title will
be established, funded, and operational; and
(C) makes recommendations regarding new border enforcement policies,
strategies, and additional programs needed to secure the border.
(e) Biometric Entry-Exit System-
(1) COLLECTION OF BIOMETRIC DATA FROM ALIENS ENTERING AND DEPARTING
THE UNITED STATES- Section 215 (8 U.S.C. 1185) is amended--
(A) by redesignating subsection (c) as subsection (g);
(B) by moving subsection (g), as redesignated by paragraph (1),
to the end of the section; and
(C) by inserting after subsection (b) the following:
`(c) The Secretary is authorized to require aliens entering and departing
the United States to provide biometric data and other information relating
to their immigration status.'.
(2) INSPECTION OF APPLICANTS FOR ADMISSION- Section 235(d) (8 U.S.C.
1225(d)) is amended by adding at the end the following:
`(5) AUTHORITY TO COLLECT BIOMETRIC DATA- In conducting inspections
under subsections (a) and (b), immigration officers are authorized
to collect biometric data from--
`(A) any applicant for admission, including refugees and asylees,
or any alien who is paroled under section 212(d)(5), seeking to
or permitted to land temporarily as an alien crewman, or seeking
to or permitted transit through the United States; or
`(B) any lawful permanent resident who is entering the United States
and who is not regarded as seeking admission pursuant to section
101(a)(13)(C).'.
(3) COLLECTION OF BIOMETRIC DATA FROM ALIEN CREWMEN- Section 252 (8
U.S.C. 1282) is amended by adding at the end the following:
`(d) An immigration officer is authorized to collect biometric data
from an alien crewman seeking permission to land temporarily in the
United States.'.
(4) GROUNDS OF INADMISSIBILITY- Section 212 (8 U.S.C. 1182) is amended--
(A) in subsection (a)(7), by adding at the end the following:
`(C) WITHHOLDERS OF BIOMETRIC DATA- Except as provided under subsection
(d)(2), any alien who fails or has failed to comply with a lawful
request for biometric data under section 215(c), 235(d), or 252(d)
is inadmissible.'; and
(B) in subsection (d), by inserting after paragraph (1) the following:
`(2) The Secretary may waive the application of subsection (a)(7)(C)
for an individual alien or class of aliens.'.
(5) IMPLEMENTATION- Section 7208 of the 9/11 Commission Implementation
Act of 2004 (8 U.S.C. 1365b) is amended--
(A) in subsection (c), by adding at the end the following:
`(3) IMPLEMENTATION- In fully implementing the automated biometric
entry and exit data system under this section, the Secretary is not
required to comply with the requirements of chapter 5 of title 5,
United States Code (commonly referred to as the Administrative Procedure
Act) or any other law relating to rulemaking, information collection,
or publication in the Federal Register.'; and
(i) by striking `There are authorized' and inserting the following:
`(1) IN GENERAL- There are authorized'; and
(ii) by adding at the end the following:
`(2) IMPLEMENTATION AT ALL PORTS OF ENTRY-
`(A) IN GENERAL- The Secretary shall ensure that the biometric entry-exit
system is operational and ready for use at all border ports of entry
not later than December 13, 2013.
`(B) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be
appropriated such sums as may be necessary for each of the fiscal
years 2008 through 2012 to implement the automated biometric entry
and exit data system at all border ports of entry.'.
(f) Collection of Departure Data From Certain Nonimmigrants-
(1) IN GENERAL- The Secretary shall require an alien who was admitted
to the United States on a temporary nonimmigrant visa to record the
alien's departure at a designated port of entry or at a designated
United States consulate abroad.
(2) FAILURE TO RECORD DEPARTURE- If an alien does not record the alien's
departure as required under paragraph (1), the Secretary, not later
than 48 hours after the expiration of the alien's period of authorized
admission, shall enter the name of the alien into the National Crime
Information Center database as having overstayed the alien's period
of authorized admission.
(3) INFORMATION SHARING WITH LAW ENFORCEMENT AGENCIES- Consistent
with the authority of State and local police to assist the Federal
Government in the enforcement of Federal immigration laws, the information
in the database described in paragraph (2) shall be made available
to the Department of State and to State and local law enforcement
agencies pursuant to the provisions of section 240D of the Immigration
and Nationality Act, as added by section 224 of this Act.
SEC. 125. LISTING OF IMMIGRATION VIOLATORS IN THE NATIONAL CRIME INFORMATION
CENTER DATABASE.
(1) PROVISION OF INFORMATION TO THE NATIONAL CRIME INFORMATION CENTER-
(A) IN GENERAL- Except as provided under subparagraph (C), not later
than 180 days after the date of the enactment of this Act, the Secretary
shall provide to the head of the National Crime Information Center
of the Department of Justice, and the head of the National Crime
Information Center shall input into the National Crime Information
Center Database, the information that the Secretary has or maintains
related to any alien--
(i) against whom a final order of removal has been issued;
(ii) who enters into a voluntary departure agreement, or is granted
voluntary departure by an immigration judge, whose period for
departure has expired under subsection (a)(3) of section 240B
of the Immigration and Nationality Act (8 U.S.C. 1229c), subsection
(b)(2) of such section 240B, or who has violated a condition of
a voluntary departure agreement under such section 240B;
(iii) whom a Federal immigration officer has confirmed to be unlawfully
present in the United States or removable from the United States;
(iv) whose visa has expired; or
(v) whose visa has been revoked.
(B) REMOVAL OF INFORMATION- The head of the National Crime Information
Center shall promptly remove any information provided by the Secretary
under subparagraph (A) related to an alien who is lawfully admitted
to enter or lawfully permitted to remain in the United States.
(C) PROCEDURE FOR REMOVAL OF ERRONEOUS INFORMATION-
(i) IN GENERAL- The Secretary, in consultation with the head of
the National Crime Information Center, shall develop and implement
a procedure by which an alien may petition the Secretary or head
of the National Crime Information Center, as appropriate, to remove
any erroneous information provided by the Secretary under subparagraph
(A) related to such alien.
(ii) EFFECT OF FAILURE TO RECEIVE NOTICE- Under procedures developed
under clause (i), failure by the alien to receive notice of a
violation of the immigration laws shall not constitute cause for
removing information provided by the Secretary under subparagraph
(A) related to such alien, unless such information is erroneous.
(iii) INTERIM PROVISION OF INFORMATION- Notwithstanding the 180-day
period set forth in subparagraph (A), the Secretary may not provide
the information required under subparagraph (A) until the procedures
required under this paragraph have been developed and implemented.
(2) INCLUSION OF INFORMATION IN THE NATIONAL CRIME INFORMATION CENTER
DATABASE- 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
of the immigration laws of the United States; and'.
SEC. 126. DOCUMENT FRAUD DETECTION.
(a) Training- Subject to the availability of appropriations, the Secretary
shall provide all United States Customs and Border Protection officers
with training in identifying and detecting fraudulent travel documents.
Such training shall be developed in consultation with the head of the
Forensic Document Laboratory of United States Immigration and Customs
Enforcement.
(b) Forensic Document Laboratory- The Secretary shall provide all United
States Customs and Border Protection officers with access to the Forensic
Document Laboratory.
(c) Authorization of Appropriations- There are authorized to be appropriated
to the Secretary such sums as may be necessary to carry out this section
during each of the fiscal years 2008 through 2012.
SEC. 127. BORDER RELIEF GRANT PROGRAM.
(1) IN GENERAL- The Secretary is authorized to award grants, subject
to the availability of appropriations, to an eligible law enforcement
agency to provide assistance to such agency to address--
(A) criminal activity that occurs in the jurisdiction of such agency
by virtue of such agency's proximity to the international border
of the United States; and
(B) the impact of any lack of security along such border.
(2) DURATION- Grants may be awarded under this subsection during each
of fiscal years 2008 through 2012.
(3) COMPETITIVE BASIS- The Secretary shall award grants under this
subsection on a competitive basis, except that the Secretary shall
give priority to applications from any eligible law enforcement agency
serving a community--
(A) with a population of fewer than 50,000 residents; and
(B) located not farther than 100 miles from a United States border
with--
(b) Use of Funds- Grants awarded pursuant to subsection (a) may only
be used to provide additional resources for an eligible law enforcement
agency to address criminal activity occurring along any such border,
including--
(2) to hire additional personnel;
(3) to upgrade and maintain law enforcement technology;
(4) to cover operational costs, including overtime and transportation
costs; and
(5) such other resources as are available to assist that agency.
(1) IN GENERAL- Each eligible law enforcement agency seeking a grant
under this section shall submit an application to the Secretary at
such time, in such manner, and accompanied by such information as
the Secretary may reasonably require.
(2) CONTENTS- Each application submitted pursuant to paragraph (1)
shall--
(A) describe the activities for which assistance under this section
is sought; and
(B) provide such additional assurances as the Secretary determines
to be essential to ensure compliance with the requirements of this
section.
(d) Definitions- In this section:
(1) ELIGIBLE LAW ENFORCEMENT AGENCY- The term `eligible law enforcement
agency' means a tribal, State, or local law enforcement agency located
in a county that--
(A) is not farther than 100 miles from a United States border with--
(B) has been certified by the Secretary as a High Impact Area.
(2) HIGH IMPACT AREA- The term `High Impact Area' means any county
designated by the Secretary as such, taking into consideration--
(A) whether local law enforcement agencies in that county have the
resources to protect the lives, property, safety, or welfare of
the residents of that county;
(B) the relationship between any lack of security along the United
States border and the rise, if any, of criminal activity in that
county; and
(C) any other unique challenges that local law enforcement face
due to a lack of security along the United States border.
(e) Authorization of Appropriations-
(1) IN GENERAL- There are authorized to be appropriated $250,000,000
for each of that fiscal years 2008 through 2012 to carry out the provisions
of this section.
(2) DIVISION OF AUTHORIZED FUNDS- Of the amounts appropriated pursuant
to paragraph (1)--
(A) 2/3 shall be set aside for eligible law enforcement agencies
located in the 6 States with the largest number of undocumented
alien apprehensions; and
(B) 1/3 shall be set aside for areas designated as a High Impact
Area under subsection (d).
(f) Supplement Not Supplant- Amounts appropriated for grants under this
section shall be used to supplement and not to supplant other State
and local public funds obligated for the purposes provided under this
title.
SEC. 128. COMBATING HUMAN SMUGGLING.
(a) Requirement for Plan- The Secretary shall develop and implement
a plan to improve coordination between the United States Immigration
and Customs Enforcement and the United States Customs and Border Protection
of the Department and any other Federal, State, local, or tribal authorities,
as determined appropriate by the Secretary, to improve coordination
efforts to combat human smuggling.
(b) Content- In developing the plan required by subsection (a), the
Secretary shall consider--
(1) the interoperability of databases utilized to prevent human smuggling;
(2) adequate and effective personnel training;
(3) methods and programs to effectively target networks that engage
in such smuggling;
(4) effective utilization of--
(A) visas for victims of trafficking and other crimes; and
(B) investigatory techniques, equipment, and procedures that prevent,
detect, and prosecute international money laundering and other operations
that are utilized in smuggling;
(5) joint measures, with the Secretary of State, to enhance intelligence
sharing and cooperation with foreign governments whose citizens are
preyed on by human smugglers; and
(6) other measures that the Secretary considers appropriate to combating
human smuggling.
(c) Report- Not later than 1 year after implementing the plan described
in subsection (a), the Secretary shall submit to Congress a report on
such plan, including any recommendations for legislative action to improve
efforts to combating human smuggling.
(d) Savings Provision- Nothing in this section may be construed to provide
additional authority to any State or local entity to enforce Federal
immigration laws.
SEC. 129. INCREASE OF FEDERAL DETENTION SPACE AND THE UTILIZATION
OF FACILITIES IDENTIFIED FOR CLOSURES AS A RESULT OF THE DEFENSE BASE
CLOSURE REALIGNMENT ACT OF 1990.
(a) Construction or Acquisition of Detention Facilities- In addition
to existing facilities for the detention of aliens, the Secretary, subject
to available appropriations, shall construct or acquire not fewer than
20 detention facilities in the United States that have the capacity
to detain a combined total of not fewer than 45,000 individuals at any
time for aliens detained pending removal or a decision on removal of
such aliens from the United States.
(b) Construction or Acquisition of Detention Facilities-
(1) REQUIREMENT TO CONSTRUCT OR ACQUIRE- Subject to available appropriations,
the Secretary shall construct or acquire additional detention facilities
in the United States to accommodate the detention beds required under
section 5204(a) of the Intelligence Reform and Terrorism Protection
Act of 2004 (Public Law 108-458; 118 Stat. 3734).
(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.
(3) USE OF INSTALLATIONS UNDER BASE CLOSURE LAWS- In acquiring additional
detention facilities under this subsection, the Secretary shall consider
the transfer of appropriate portions of military installations approved
for closure or realignment under the Defense Base Closure and Realignment
Act of 1990 (10 U.S.C. 2687 note) for use in accordance with subsection
(a).
(4) DETERMINATION OF LOCATION- The location of any detention facility
constructed or acquired in accordance with this subsection shall be
determined, with the concurrence of the Secretary, by the senior officer
responsible for Detention and Removal Operations in the Department.
The detention facilities shall be located so as to enable the officers
and employees of the Department to increase to the maximum extent
practicable the annual rate and level of removals of illegal aliens
from the United States.
(c) 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.
(d) Technical and Conforming Amendment- Section 241(g)(1) (8 U.S.C.
1231(g)(1)) is amended by striking `may expend' and inserting `shall
expend'.
(e) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary to carry out this section.
SEC. 130. NORTHERN BORDER PROSECUTION REIMBURSEMENT.
(a) Short Title- This section may be cited as the `Northern Border Prosecution
Initiative Reimbursement Act'.
(b) Northern Border Prosecution Initiative-
(1) INITIATIVE REQUIRED- From amounts made available to carry out
this section, the Attorney General, acting through the Director of
the Bureau of Justice Assistance of the Office of Justice Programs,
shall carry out a program, to be known as the Northern Border Prosecution
Initiative, to provide funds to reimburse eligible northern border
entities for costs incurred by those entities for handling case dispositions
of criminal cases that are federally initiated but federally declined-referred.
This program shall be modeled after the Southwestern Border Prosecution
Initiative and shall serve as a partner program to that initiative
to reimburse local jurisdictions for processing Federal cases.
(2) PROVISION AND ALLOCATION OF FUNDS- Funds provided under the program
shall be provided in the form of direct reimbursements and shall be
allocated in a manner consistent with the manner under which funds
are allocated under the Southwestern Border Prosecution Initiative.
(3) USE OF FUNDS- Funds provided to an eligible northern border entity
may be used by the entity for any lawful purpose, including--
(A) prosecution and related costs;
(C) costs of courtroom technology;
(D) costs of constructing holding spaces;
(E) costs of administrative staff; and
(F) detention costs, including pre-trial and post-trial detention.
(4) DEFINITIONS- In this section:
(A) CASE DISPOSITION- The term `case disposition', for purposes
of the Northern Border Prosecution Initiative--
(i) refers to the time between a suspect's arrest and the resolution
of the criminal charges through a county or State judicial or
prosecutorial process; and
(ii) does not include incarceration time for sentenced offenders,
or time spent by prosecutors on judicial appeals.
(B) ELIGIBLE NORTHERN BORDER ENTITY- The term `eligible northern
border entity' means--
(i) Alaska, Idaho, Maine, Michigan, Minnesota, Montana, New Hampshire,
New York, North Dakota, Ohio, Pennsylvania, Vermont, Washington,
and Wisconsin; or
(ii) any unit of local government within a State referred to in
clause (i).
(C) FEDERALLY DECLINED-REFERRED- The term `federally declined-referred'--
(i) means, with respect to a criminal case, that a decision has
been made in that case by a United States Attorney or a Federal
law enforcement agency during a Federal investigation to no longer
pursue Federal criminal charges against a defendant and to refer
the investigation to a State or local jurisdiction for possible
prosecution; and
(ii) includes a decision made on an individualized case-by-case
basis and a decision made pursuant to a general policy or practice
or prosecutorial discretion.
(D) FEDERALLY INITIATED- The term `federally initiated' means, with
respect to a criminal case, that the case results from a criminal
investigation or an arrest involving Federal law enforcement authorities
for a potential violation of Federal criminal law, including investigations
resulting from multi-jurisdictional task forces.
(c) Authorization of Appropriations- There are authorized to be appropriated
to carry out this section--
(1) $28,000,000 for fiscal year 2008; and
(2) such sums as may be necessary for each succeeding fiscal year.
SEC. 131. LIMITATION ON LANDOWNER'S LIABILITY.
Section 287 (8 U.S.C. 1357) is amended by adding at the end the following:
`(i) Indemnity for Actions of Law Enforcement Officers-
`(1) IN GENERAL- Notwithstanding any other provision of law and subject
to appropriations, an owner of land located within 100 miles of the
international land border of the United States may seek reimbursement
from the Department of Homeland Security for any adverse final tort
judgment for negligence (excluding attorneys' fees and costs) authorized
under the Federal or State tort law, arising directly from such border
security activity if--
`(A) such owner has been found negligent by a Federal or State court
in any tort litigation;
`(B) such owner has not already been reimbursed for the final tort
judgment, including outstanding attorney's fees and costs;
`(C) such owner did not have or does not have sufficient property
insurance to cover the judgment and have had an insurance claim
for such coverage denied; and
`(D) such tort action was brought as a direct result of activity
of law enforcement officers of the Department of Homeland Security,
acting in their official capacity, on the owner's land.
`(2) DEFINITIONS- In this subsection--
`(A) the term `land' includes roads, water, watercourses, and private
ways, and buildings, structures, machinery and equipment that is
attached to real property; and
`(B) the term `owner' includes the possessor of a fee interest,
a tenant, lessee, occupant, the possessor of any other interest
in land, or any person having a right to grant permission to use
the land.
`(3) EXCEPTIONS- Nothing in this subsection may be construed to limit
landowner liability which would otherwise exist for--
`(A) willful or malicious failure to guard or warn against a known
dangerous condition, use, structure, or activity likely to cause
harm;
`(B) maintaining an attractive nuisance;
`(C) gross negligence; or
`(D) direct interference with, or hindrance of, any agent or officer
of the Federal Government who is authorized to enforce the immigration
laws of the United States during--
`(i) a patrol of such landowner's land; or
`(ii) any action taken to apprehend or detain any alien attempting
to enter the United States illegally or evade execution of an
arrest warrant for a violation of any immigration law.
`(4) SAVINGS PROVISION- Nothing in this subsection may be construed
to affect any right or remedy available pursuant to the Federal Tort
Claims Act.'.
TITLE II--INTERIOR ENFORCEMENT
Subtitle A--Interior Security Measures
SEC. 201. ADDITIONAL IMMIGRATION PERSONNEL.
(a) Department of Homeland Security-
(1) TRIAL ATTORNEYS- In each of the fiscal years 2008 through 2012,
the Secretary, subject to the availability of appropriations for such
purpose, shall increase the number of positions for attorneys in the
Office of General Counsel of the Department who represent the Department
in immigration matters in removal proceedings before immigration judges
and in Federal district courts or circuit courts of appeals as Special
Assistant United States Attorneys by not fewer than 100 compared to
the number of such positions for which funds were made available during
the preceding fiscal year.
(2) ATTORNEY ADVISORS- In each of the fiscal years 2008 through 2012,
the Secretary, subject to the availability of appropriations for such
purpose, shall increase the number of positions for attorneys in the
Office of the Chief Counsel of United States Citizenship and Immigration
Services who advise and provide litigation support to components of
United States Citizenship and Immigration Services, the Office of
Immigration Litigation of the Department of Justice, and United States
Attorney offices, on litigation involving the adjudication of immigration
benefits under the Immigration and Nationality Act (8 U.S.C. 1101
et. seq.) or other matters involving United States Citizenship and
Immigration Services, by not less than 100 compared to the number
of such positions for which funds were made available during the preceding
fiscal year.
(3) USCIS ADJUDICATORS- In each of the fiscal years 2008 through 2012,
the Secretary, subject to the availability of appropriations for such
purpose, shall increase the number of positions for adjudicators in
the United States Citizenship and Immigration Service by not fewer
than 100 compared to the number of such positions for which funds
were made available during the preceding fiscal year.
(4) FORENSICS DOCUMENT LABORATORY PERSONNEL- In each of the fiscal
years 2008 through 2012, the Secretary, subject to the availability
of appropriations for such purpose, shall increase the number of positions
for forensic auditors in the Forensic Document Laboratory of the United
States Immigration and Customs Enforcement by not fewer than 25 compared
to the number of such positions for which funds were made available
during the preceding fiscal year.
(5) INCREASE IN FULL-TIME ICE AND CIS PERSONNEL- In each of the fiscal
years 2008 through 2012, the Secretary, subject to the availability
of appropriations, shall increase by not fewer than 2,000 the number
of positions for full-time active duty intelligence research specialists,
agents, officers, and investigators in United States Immigration and
Customs Enforcement and the Fraud Detection and National Security
Division of United States Citizenship and Immigration Services--
(A) to carry out the removal of aliens who are not admissible to,
or are subject to removal from, the United States;
(B) to investigate immigration fraud; and
(C) to enforce workplace violations.
(6) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
to the Secretary for each of the fiscal years 2008 through 2012 such
sums as may be necessary to carry out paragraphs (1) through (5).
(7) CONFORMING AMENDMENT- Section 5203 of the Intelligence Reform
and Terrorism Protection Act of 2004 (Public Law 108-458; 118 Stat.
3734) is repealed.
(b) Department of Justice-
(1) LITIGATION ATTORNEYS- In each of the fiscal years 2008 through
2012, the Attorney General, subject to the availability of appropriations
for such purpose, shall increase the number of positions for attorneys
in the Office of Immigration Litigation by not fewer than 50 compared
to the number of such positions for which funds were made available
during the preceding fiscal year.
(2) UNITED STATES ATTORNEYS- In each of the fiscal years 2008 through
2012, the Attorney General, subject to the availability of appropriations
for such purpose, shall increase the number of attorneys in the United
States Attorneys' office assigned to litigate and prosecute immigration
cases in the Federal courts by not fewer than 100 compared to the
number of such positions for which funds were made available during
the preceding fiscal year.
(3) CRIMINAL DIVISION ATTORNEYS- The Attorney General shall increase
the number of attorneys in the Criminal Division assigned to prosecute
immigration cases in the Federal courts, as appropriate.
(4) JUDICIAL CLERKS- The Attorney General, subject to the availability
of appropriations for such purpose, shall appoint necessary law clerks
for immigration judges and Board of Immigration Appeals members of
not fewer than 1 per judge and member. A law clerk appointed under
this section shall be exempt from the provisions of subchapter I of
chapter 63 of title 5, United States Code.
(5) IMMIGRATION JUDGES- In each of the fiscal years 2008 through 2012,
the Attorney General, subject to the availability of appropriations
for such purpose, shall--
(A) increase by not fewer than 20 the number of full-time immigration
judges compared to the number of such positions for which funds
were made available during the preceding fiscal year; and
(B) increase by not fewer than 80 the number of positions for personnel
to support the immigration judges described in subparagraph (A)
compared to the number of such positions for which funds were made
available during the preceding fiscal year.
(6) STAFF ATTORNEYS- In each of the fiscal years 2008 through 2012,
the Attorney General, subject to the availability of appropriations
for such purpose, shall--
(A) increase the number of positions for full-time staff attorneys
in the Board of Immigration Appeals by not fewer than 20 compared
to the number of such positions for which funds were made available
during the preceding fiscal year; and
(B) increase the number of positions for personnel to support the
staff attorneys described in subparagraph (A) by not fewer than
10 compared to the number of such positions for which funds were
made available during the preceding fiscal year.
(7) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
to the Attorney General for each of the fiscal years 2008 through
2012 such sums as may be necessary to carry out this subsection, including
the hiring of necessary support staff.
(c) Administrative Office of the United States Courts- In each of the
fiscal years 2008 through 2012, the Director of the Administrative Office
of the United States Courts, subject to the availability of appropriations,
shall increase the number of attorneys in the Federal Defenders Program
who litigate criminal immigration cases in the Federal courts by not
fewer than 50 compared to the number of such positions for which funds
were made available during the preceding fiscal year.
(d) District Judges for the District Courts in Border States-
(1) IN GENERAL- The President shall appoint, by and with the advice
and consent of the Senate--
(A) 4 additional district judges for the district of Arizona;
(B) 4 additional district judges for the central district of California;
(C) 4 additional district judges for the eastern of California;
(D) 2 additional district judges for the northern district of California;
(E) 4 additional district judges for the middle district of Florida;
(F) 2 additional district judges for the southern district of Florida;
(G) 1 additional district judge for the district of Minnesota;
(H) 1 additional district judge for the district of New Mexico;
(I) 3 additional district judges for the eastern district of New
York;
(J) 1 additional district judge for the western district of New
York;
(K) 1 additional district judge for the eastern district of Texas;
(L) 2 additional district judges for the southern district of Texas;
(M) 1 additional district judge for the western district of Texas;
and
(N) 1 additional district judge for the western district of Washington.
(2) TEMPORARY JUDGESHIPS- The President shall appoint, by and with
the advice and consent of the Senate--
(A) 1 additional district judge for the district of Arizona;
(B) 1 additional district judge for the central district of California;
(C) 1 additional district judge for the northern district of California;
(D) 1 additional district judge for the middle district of Florida;
(E) 1 additional district judge for the southern district of Florida;
(F) 1 additional district judge for the district of Idaho; and
(G) 1 additional district judge for the district of New Mexico.
(3) VACANCIES- For each of the judicial districts named in paragraph
(2), the first vacancy arising on the district court 10 years or more
after a judge is first confirmed to fill the temporary district judgeship
created in that district by paragraph (2) shall not be filled.
(4) EXISTING JUDGESHIPS- The existing judgeships for the district
of Arizona and the district of New Mexico authorized by section 312(c)
of the 21st Century Department of Justice Appropriations Authorization
Act (Public Law 107-273, 116 Stat. 1758), as of the effective date
of this Act, shall be authorized under section 133 of title 28, United
States Code, and the incumbents in those offices shall hold the office
under section 133 of title 28, United States Code, as amended by this
Act.
(5) TABLES- The table contained in section 133 of title 28, United
States Code, is amended to read as follows:
--------------------------------------
`Districts Judges
--------------------------------------
Alabama:
Northern 7
Middle 3
Southern 3
Alaska 3
Arizona 17
Arkansas:
Eastern 5
Western 3
California:
Northern 16
Eastern 10
Central 31
Southern 13
Colorado 7
Connecticut 8
Delaware 4
District of Columbia 15
Florida:
Northern 4
Middle 19
Southern 19
Georgia:
Northern 11
Middle 4
Southern 3
Hawaii 3
Idaho 2
Illinois:
Northern 22
Central 4
Southern 4
Indiana:
Northern 5
Southern 5
Iowa:
Northern 2
Southern 3
Kansas 5
Kentucky:
Eastern 5
Western 4
Eastern and Western 1
Louisiana:
Eastern 12
Middle 3
Western 7
Maine 3
Maryland 10
Massachusetts 13
Michigan:
Eastern 15
Western 4
Minnesota 8
Mississippi:
Northern 3
Southern 6
Missouri:
Eastern 6
Western 5
Eastern and Western 2
Montana 3
Nebraska 3
Nevada 7
New Hampshire 3
New Jersey 17
New Mexico 8
New York:
Northern 5
Southern 28
Eastern 18
Western 5
North Carolina:
Eastern 4
Middle 4
Western 4
North Dakota 2
Ohio:
Northern 11
Southern 8
Oklahoma:
Northern 3
Eastern 1
Western 6
Northern, Eastern, and Western 1
Oregon 6
Pennsylvania:
Eastern 22
Middle 6
Western 10
Puerto Rico 7
Rhode Island 3
South Carolina 10
South Dakota 3
Tennessee:
Eastern 5
Middle 4
Western 5
Texas:
Northern 12
Southern 21
Eastern 8
Western 14
Utah 5
Vermont 2
Virginia:
Eastern 11
Western 4
Washington:
Eastern 4
Western 8
West Virginia:
Northern 3
Southern 5
Wisconsin:
Eastern 5
Western 2
Wyoming 3.'.
--------------------------------------
(e) Legal Orientation Program-
(1) CONTINUED OPERATION- The Director of the Executive Office for
Immigration Review shall continue to operate a legal orientation program
to provide basic information about immigration court procedures for
immigration detainees and shall expand the legal orientation program
to provide such information on a nationwide basis.
(2) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
such sums as may be necessary to carry out the legal orientation program
authorized under paragraph (1).
SEC. 202. DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED OR ALIENS
WHO OVERSTAY.
(a) In General- Section 241(a) (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';
(A) by amending clause (ii) of subparagraph (B) to read as follows:
`(ii) If a court, the Board of Immigration Appeals, or an immigration
judge orders a stay of the removal of the alien, the date the
stay of removal is no longer in effect.';
(B) by adding at the end of subparagraph (B), the following: `If,
at the beginning of the removal period, as determined under this
subparagraph, the alien is not in the custody of the Secretary of
Homeland Security (under the authority of this Act), the Secretary
shall take the alien into custody for removal, and the removal period
shall not begin until the alien is taken into such custody. If the
Secretary transfers custody of the alien during the removal period
pursuant to law to another Federal agency or a State or local government
agency in connection with the official duties of such agency, the
removal period shall be tolled, and shall begin anew on the date
of the alien's return to the custody of the Secretary subject to
clause (ii).'; and
(C) by amending subparagraph (C) to read as follows:
`(C) SUSPENSION OF PERIOD- The removal period shall be extended
beyond a period of 90 days and the alien may remain in detention
during such extended period if the alien--
`(i) fails or refuses to make all reasonable efforts to comply
with the removal order, or to fully cooperate with the efforts
of the Secretary to establish the identity of the alien and carry
out the removal order, including making timely application in
good faith for travel or other documents necessary to the departure
of the alien; or
`(ii) conspires or acts to prevent the alien's removal.';
(A) by striking `During' and inserting the following:
`(A) IN GENERAL- During'; and
(B) by adding at the end the following new subparagraph:
`(B) EFFECT OF STAY OF REMOVAL- If 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,
the Secretary of Homeland Security in the exercise of discretion
may detain the alien during the pendency of such stay of removal.';
(4) in paragraph (3), by amending subparagraph (D) to read as follows:
`(D) to obey reasonable restrictions on the alien's conduct or activities
or to perform affirmative acts that the Secretary of Homeland Security
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 (6), by striking `removal period and, if released,'
and inserting `removal period, in the discretion of the Secretary
of Homeland Security, without any limitations other than those specified
in this section, until the alien is removed. If the alien is released,
the alien';
(6) by redesignating paragraph (7) as paragraph (10); and
(7) by inserting after paragraph (6) the following:
`(7) PAROLE- If an alien detained pursuant to paragraph (6) is an
applicant for admission, the Secretary of Homeland Security, in the
Secretary's discretion, may parole the alien under section 212(d)(5)
and may provide, notwithstanding section 212(d)(5), that the alien
shall not be returned to custody unless either the alien violates
the conditions of the parole or the removal of the alien becomes reasonably
foreseeable. In no circumstance shall such alien be considered admitted.
`(8) ADDITIONAL RULES FOR DETENTION OR RELEASE OF CERTAIN ALIENS WHO
HAVE MADE AN ENTRY- The following procedures apply only to an alien
who has effected an entry into the United States and do not apply
to any other alien detained pursuant to paragraph (6):
`(A) ESTABLISHMENT OF A DETENTION REVIEW PROCESS FOR ALIENS WHO
FULLY COOPERATE WITH REMOVAL- For an alien 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 has not conspired or acted to prevent
removal, the Secretary of Homeland Security shall establish an administrative
review process to determine whether an alien will be detained or
released on conditions. The Secretary shall make a determination
whether to release an alien after the removal period in accordance
with paragraph (1)(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 Department of State or other Federal agency and any other
information available to the Secretary pertaining to the ability
to remove the alien.
`(B) ADDITIONAL 90-DAY PERIOD- The Secretary of Homeland Security,
in the exercise of discretion, without any limitations other than
those specified in this section, may continue to detain an alien
for 90 days beyond the removal period (including any extension of
the removal period as provided in paragraph (1)(D)).
`(C) FURTHER DETENTION- The Secretary of Homeland Security, in the
exercise of discretion, without any limitations other than those
specified in this section, may continue to detain an alien beyond
the removal period and the 90-day period authorized by subparagraph
(B)--
`(i) until the alien is removed, if the Secretary determines that
there is a significant likelihood that the alien--
`(I) will be removed in the reasonably foreseeable future; or
`(II) would be removed in the reasonably foreseeable future,
or would have been removed, but for the failure or refusal of
the alien to make all reasonable efforts to comply with the
removal order, or to cooperate fully with the efforts of the
Secretary to establish the identity of the alien and to carry
out the removal order, including making timely application in
good faith for travel or other documents necessary to the departure
of the alien, or conspiracies or acts to prevent the alien's
removal;
`(ii) until the alien is removed, if the Secretary certifies in
writing--
`(I) 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;
`(II) 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;
`(III) 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
`(IV) 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--
`(aa) the alien has been convicted of one or more aggravated
felonies as defined in section 101(a)(43)(A), one or more crimes identified
by the Secretary of Homeland Security by regulation, or one or more
attempts or conspiracies to commit any such aggravated felonies or such
identified crimes, provided that 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
`(V) 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 the alien has been convicted of at least
one aggravated felony as defined in section 101(a)(43); or
`(iii) pending a certification under clause (ii), if the Secretary
has initiated the administrative review process under subparagraph
(C) not later than 30 days after the expiration of the alien's
removal period (including any extension of the removal period
as provided in paragraph (1)(D)).
`(D) RENEWAL AND DELEGATION OF CERTIFICATION-
`(i) RENEWAL- The Secretary of Homeland Security may renew a certification
under subparagraph (C)(ii) every 180 days without limitation,
after providing an opportunity for the alien to request reconsideration
of the certification and to submit documents or other evidence
in support of that request. If the Secretary does not renew such
a certification, the Secretary may not continue to detain the
alien under subparagraph (C)(ii).
`(ii) DELEGATION- Notwithstanding section 103, the Secretary of
Homeland Security may not delegate the authority to make or renew
a certification described in subclause (II), (III), or (V) of
subparagraph (C)(ii) to an official 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 a designee of the Attorney General,
provide for a hearing to make the determination described in item
(bb) of subparagraph (C)(ii)(IV).
`(E) RELEASE ON CONDITIONS- If it is determined that an alien should
be released from detention under this paragraph, the Secretary of
Homeland Security, in the exercise of discretion, may impose conditions
on release as provided in paragraph (3).
`(i) IN GENERAL- The Secretary of Homeland Security, in the exercise
of discretion, without any limitations other than those specified
in this section, may again detain any alien subject to a final
removal order who is released from custody if--
`(I) the alien fails to comply with the conditions of release;
`(II) the alien fails to continue to satisfy the conditions
described in subparagraph (A); or
`(III) upon reconsideration, the Secretary determines that the
alien may be detained under subparagraph (B) or (C).
`(ii) APPLICABILITY OF CUSTODY PROVISIONS- This paragraph and
paragraph (6) shall apply to any alien returned to custody pursuant
to this subparagraph, as if the removal period terminated on the
day that the alien was so returned to custody.
`(G) CERTAIN ALIENS WHO EFFECTED ENTRY- The Secretary of Homeland
Security may waive the provisions of subparagraph (A) through (F)
and detain an alien without any limitations, except those which
the Secretary shall adopt by regulation, if--
`(i) the alien has effected an entry;
`(ii) the alien has not been lawfully admitted into the United
States; and
`(iii) the alien has not been physically present in the United
States continuously for the 2-year period immediately prior to
the commencement of removal proceedings under this Act or deportation
proceedings against the alien.
`(9) JUDICIAL REVIEW- Without regard to the place of confinement,
judicial review of any action or decision pursuant to paragraph (6),
(7), or (8) shall be available exclusively in a habeas corpus proceeding
instituted in the United States District Court for the District of
Columbia, and only if the alien has exhausted all administrative remedies
available to the alien as of right.'.
(b) Detention of Aliens During Removal Proceedings-
(1) IN GENERAL- Section 235 (8 U.S.C. 1225) is amended by adding at
the end the following:
`(e) Length of Detention-
`(1) IN GENERAL- An alien may be detained under this section, without
limitation, until the alien is subject to an administratively final
order of removal.
`(2) EFFECT ON DETENTION UNDER SECTION 241- The length of detention
under this section shall not affect the validity of any detention
under section 241.
`(3) JUDICIAL REVIEW- Without regard to the place of confinement,
judicial review of any action or decision made pursuant to paragraph
(1) or (2) shall be available exclusively in a habeas corpus proceeding
instituted in the United States District Court for the District of
Columbia and only if the alien has exhausted all administrative remedies
available to the alien as of right.'.
(2) CONFORMING AMENDMENTS- Section 236 (8 U.S.C. 1226) is amended--
(i) by striking `The' and inserting the following:
`(1) IN GENERAL- The'; and
(ii) by adding at the end the following new paragraph:
`(2) LIMITATION ON REVIEW- Without regard to the place of confinement,
judicial review of any action or decision made pursuant to subsection
(f) shall be available exclusively in a habeas corpus proceeding instituted
in the United States District Court for the District of Columbia,
and only if the alien has exhausted all administrative remedies (statutory
and nonstatutory) available to the alien as of right.'; and
(B) by adding at the end the following:
`(f) Length of Detention-
`(1) IN GENERAL- With regard to the length of detention, an alien
may be detained under this section, without limitation, until the
alien is subject to an administratively final order of removal.
`(2) EFFECT ON DETENTION UNDER SECTION 241- The length of detention
under this section shall not affect the validity of any detention
under section 241.'.
(1) AMENDMENTS MADE BY SUBSECTION (a)- The amendments made by subsection
(a) shall take effect on the date of the enactment of this Act, and
section 241 of the Immigration and Nationality Act, as amended, shall
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
the date of the enactment of this Act.
(2) AMENDMENTS MADE BY SUBSECTION (b)- The amendments made by subsection
(b) shall take effect on the date of the enactment of this Act, and
sections 235 and 236 of the Immigration and Nationality Act, as amended,
shall apply to any alien in detention under provisions of such sections
on or after the date of the enactment of this Act.
(d) Detention of Aliens Who Exceed Authorized Admission Period-
(1) AMENDMENT- Section 236 (8 U.S.C. 1226) is amended--
(A) by redesignating subsection (e) as subsection (f); and
(B) by inserting after subsection (d) the following:
`(e) Detention of Aliens Who Exceed Authorized Admission Period-
`(1) CUSTODY- An alien shall be arrested and detained by the Secretary
of Homeland Security pending a decision on whether the alien is to
be removed from the United States if the alien knowingly, or with
reason to know, exceeded, by 30 days or more, the period of the alien's
authorized admission into the United States. An alien shall be deemed
to have reason to know that they exceeded the period of authorized
admission if--
`(A) the alien's passport is stamped with the expected departure
date; or
`(B) the provision of law under which the alien applied for a visa
contains a length of time for which the visa may be issued.
`(A) IN GENERAL- The Secretary of Homeland Security may waive the
application of paragraph (1) if the Secretary determines that--
`(i) the alien exceeded the alien's period of authorized admission
or parole as a result of exceptional circumstances beyond the
control of the alien; or
`(ii) a waiver is necessary for humanitarian purposes.
`(B) DEFINED TERM- In this paragraph, the term `exceptional circumstances'
shall have the meaning given such term in section 240(e)(1).'.
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall apply
to all aliens granted or issued a nonimmigrant visa on or after the
date of the enactment of this Act.
(e) Criminal Detention of Aliens- Section 3142 of title 18, United States
Code, is amended--
(1) by amending subsection (e) to read as follows:
`(1) IN GENERAL- If, after a hearing pursuant to subsection (f), the
judicial officer finds that no condition or combination of conditions
will reasonably assure the appearance of the person as required and
the safety of any other person and the community, such judicial officer
shall order the detention of the person before trial.
`(2) EFFECT OF RECENT CONVICTION- In a case described in subsection
(f)(1), a rebuttable presumption arises that no condition or combination
of conditions will reasonably assure the safety of any other person
and the community if such judicial officer finds that--
`(A) the person has been convicted of a Federal offense that is
described in subsection (f)(1), or of a State or local offense that
would have been an offense described in subsection (f)(1) if a circumstance
giving rise to Federal jurisdiction had existed;
`(B) the offense described in subparagraph (A) was committed while
the person was on release pending trial for a Federal, State, or
local offense; and
`(C) a period of not more than 5 years has elapsed since the date
of conviction, or the release of the person from imprisonment, for
the offense described in subparagraph (A), whichever is later.
`(3) EFFECT OF SERIOUS OFFENSES- Subject to rebuttal by the person,
it shall be presumed that no condition or combination of conditions
will reasonably assure the appearance of the person as required and
the safety of the community if the judicial officer finds that there
is probable cause to believe that the person committed--
`(A) an offense for which a maximum term of imprisonment of 10 years
or more is prescribed in the Controlled Substances Act (21 U.S.C.
801 et seq.), the Controlled Substances Import and Export Act (21
U.S.C. 951 et seq.), or chapter 705 of title 46;
`(B) an offense under section 924(c), 956(a), or 2332b of this title;
`(C) an offense listed in section 2332b(g)(5)(B) of this title for
which a maximum term of imprisonment of 10 years or more is prescribed;
or
`(D) an offense involving a minor victim under section 1201, 1591,
2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1), 2252(a)(2),
2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4),
2260, 2421, 2422, 2423, or 2425 of this title.
`(4) OTHER PRESUMPTIONS- Subject to rebuttal by the person, it shall
be presumed that no condition or combination of conditions will reasonably
assure the appearance of the person as required if the judicial officer
finds that there is probable cause to believe that the person is an
alien and that the person--
`(A) has no lawful immigration status in the United States;
`(B) is the subject of a final order of removal; or
`(C) has committed a felony offense under section 842(i)(5), 911,
922(g)(5), 1015, 1028, 1028A, 1425, or 1426 of this title, chapter
75 or 77 of this title, or section 243, 274, 275, 276, 277, or 278
of the Immigration and Nationality Act.'; and
(2) in subsection (g)(3)--
(A) in subparagraph (A), by striking `and' at the end; and
(B) by adding at the end the following:
`(C) the person's immigration status; and'.
SEC. 203. AGGRAVATED FELONY.
(a) Definition of Aggravated Felony- Section 101(a)(43) (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, and 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, even if 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, as established by evidence contained in the record
of conviction or by evidence extrinsic to the record of conviction
(or as a matter of fact), and means--';
(2) in subparagraph (A), by striking `murder, rape, or sexual abuse
of a minor'; and inserting `murder, manslaughter, homicide, rape,
or an offense of a sexual nature involving a victim under the age
of 18 (whether or not the age of the victim is established by evidence
contained in the record of conviction or by evidence extrinsic to
the record of conviction) or the failure of an individual to register
as a sex offender as required under section 2250 of title 18, United
States Code;';
(3) by amending subparagraph (F) to read as follows:
`(F)(i) 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 is at least 1 year; or
`(ii) a second conviction for driving while intoxicated (including
a second conviction for driving while intoxicated or impaired by
alcohol or drugs) under Federal or State law, without regard to
whether the conviction is classified as a felony or misdemeanor
under Federal or State law, for which the term of imprisonment is
at least 1 year.';
(4) in subparagraph (N), by striking `paragraph (1)(A) or (2) of';
(5) 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';
(6) 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
(7) by striking the undesignated matter following subparagraph (U).
(b) Definition of Conviction- Section 101(a)(48) (8 U.S.C. 1101(a)(48))
is amended by inserting after clause (B) the following:
`(C) Any reversal, vacatur, expungement, or modification to a conviction,
sentence, or conviction record that was granted to ameliorate the
consequences of the conviction, sentence, or conviction record, or
was granted for rehabilitative purposes, or for failure to advise
the alien of the immigration consequences of a guilty plea or a determination
of guilt, shall have no effect on the immigration consequences resulting
from the original conviction. The alien shall have the burden of demonstrating
that any reversal, vacatur, expungement, or modification was not granted
to ameliorate the consequences of the conviction, sentence, or conviction
record, for rehabilitative purposes, or for failure to advise the
alien of the immigration consequences of a guilty plea or a determination
of guilt. Nothing in this paragraph affects the consequences of any
reversal, vacatur, expungement, or modification of a conviction for
any other reason, including legal error or constitutional defect.'.
(c) Effective Date and Application- The amendments made by subsection
(a) shall take effect on the date of the enactment of this Act and shall
apply to any act or offense that occurred before, on, or after the date
of the enactment of this Act.
SEC. 204. INADMISSIBILITY AND DEPORTABILITY OF GANG MEMBERS.
(a) Definition of Criminal Gang- Section 101(a) (8 U.S.C. 1101(a)) is
amended by inserting after paragraph (51) the following:
`(52)(A) The term `criminal gang' means an ongoing group, club, organization,
or association of 5 or more persons--
`(i) that has, as 1 of its primary purposes, the commission of 1
or more of the criminal offenses described in subparagraph (B);
and
`(ii) the members of which engage, or have engaged within the past
5 years, in a continuing series of offenses described in subparagraph
(B).
`(B) Offenses described in this subparagraph, whether in violation
of Federal or State law or in violation of the law of a foreign country,
regardless of whether charged, and regardless of whether the conduct
occurred before, on, or after the date of the enactment of this paragraph,
are--
`(i) a felony drug offense (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802));
`(ii) a felony offense involving firearms or explosives, including
a violation of section 924(c), 924(h), or 931 of title 18 (relating
to purchase, ownership, or possession of body armor by violent felons);
`(iii) 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 the importation of an alien for immoral purpose);
`(iv) a felony crime of violence (as defined in section 16 of title
18, United States Code);
`(v) a crime involving obstruction of justice; tampering with or
retaliating against a witness, victim, or informant; or burglary;
`(vi) 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); and
`(vii) a conspiracy to commit an offense described in clause (i)
through (vi).'.
(b) Inadmissibility- Section 212(a)(2) (8 U.S.C. 1182(a)(2)) is amended
by striking subparagraph (F) and inserting the following:
`(F) ALIENS ASSOCIATED WITH CRIMINAL GANGS-
`(i) IN GENERAL- Any alien whom--
`(I) a consular officer, the Attorney General, or the Secretary
of Homeland Security knows or has reason to believe to be or
have been a member of a criminal gang; or
`(II) a consular officer, the Attorney General, or the Secretary
of Homeland Security knows or has reason to believe to have
participated in the activities of a criminal gang, knowing or
having reason to know that such activities will promote, further,
aid, or support the illegal activity of the criminal gang,
`(ii) WAIVER- The Secretary of Homeland Security or the Attorney
General may waive the application of subclauses (I) and (II) of
clause (i) for any alien who is the parent, spouse, or child of
a United States citizen and who establishes that his or her removal
from the United States would result in extreme hardship to such
parent, spouse, or child.'.
(c) Deportability- Section 237(a)(2) (8 U.S.C. 1227(a)(2)) is amended
by adding at the end the following:
`(F) ALIENS ASSOCIATED WITH CRIMINAL GANGS-
`(i) IN GENERAL- Any alien whom--
`(I) there is reasonable ground to believe is or has been a
member of a criminal gang; or
`(II) there is reasonable ground to believe has participated
in the activities of a criminal gang, knowing or having reason
to know that such activities will promote, further, aid, or
support the illegal activity of the criminal gang,
`(ii) WAIVER- The Secretary of Homeland Security or the Attorney
General may waive the application of subclauses (I) and (II) of
clause (i) for any alien who is the parent, spouse, or child of
a United States citizen and who establishes that his or her removal
from the United States would result in extreme hardship to such
parent, spouse, or child.'.
(d) Temporary Protected Status- Section 244 (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' and inserting a semicolon;
(B) in clause (ii), by striking the period at the end and inserting
a semicolon; and
(C) by adding at the end the following:
`(iii) the alien participates in, or at any time after admission
has participated in, knowing or having reason to know that such
participation promoted, furthered, aided, or supported the illegal
activity of the gang, the activities of a criminal gang; or
`(iv) the alien is a member of a criminal gang.'; and
(i) by striking `Subject to paragraph (3), such' and inserting
`Such'; and
(ii) by striking `(under paragraph (3))';
(B) by striking paragraph (3);
(C) by redesignating paragraph (4) as paragraph (3); and
(D) in paragraph (3), as redesignated, 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.'.
(e) Effective Date- Notwithstanding any other provision of this Act,
the amendments made by subsections (b), (c), and (d) of this section
shall apply to--
(1) all aliens required to establish admissibility on or after the
date of the enactment of this Act; and
(2) all aliens in removal, deportation, or exclusion proceedings that
are filed, pending, or reopened, on or after such date of enactment.
(f) Precluding Admissibility of Aliens Convicted of Serious Criminal
Offenses and Domestic Violence, Stalking, Child Abuse and Violation
of Protection Orders-
(1) INADMISSIBILITY ON CRIMINAL AND RELATED GROUNDS; WAIVERS- Section
212 (8 U.S.C. 1182) is amended--
(A) in subsection (a)(2), by adding at the end the following:
`(J) CRIMES OF DOMESTIC VIOLENCE, STALKING, OR VIOLATION OF PROTECTION
ORDERS; CRIMES AGAINST CHILDREN-
`(i) DOMESTIC VIOLENCE, STALKING, AND CHILD ABUSE-
`(I) IN GENERAL- Any alien who is convicted of, or who admits
committing or having committed acts which constitute the essential
elements of, a crime of domestic violence, stalking, child abuse,
child neglect, or child abandonment is inadmissible.
`(II) DEFINED TERM- In 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-
`(I) IN GENERAL- Any alien who at any time is enjoined under
a protection order issued by a court and whom the court determines
has engaged in conduct that violates the portion of a protection
order that involves protection against credible threats of violence,
repeated harassment, or bodily injury to the person or persons
for whom the protection order was issued is inadmissible.
`(II) DEFINED TERM- In 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 an independent order in
another proceedings.'; and
(i) by inserting `or the Secretary of Homeland Security' after
`the Attorney General' each place such term appears;
(ii) in the matter preceding paragraph (1), by striking `The Attorney
General may, in his discretion, waive the application of subparagraphs
(A)(i)(I), (B), (D), and (E) of subsection (a)(2)' and inserting
`The Attorney General or the Secretary of Homeland Security may
waive the application of subparagraphs (A)(i)(I), (B), (D), (E),
and (M) of subsection (a)(2)'; and
(iii) in the matter following paragraph (2)--
(I) by striking `torture.' and inserting `torture, or has been
convicted of an aggravated felony.'; and
(II) 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'.
(2) CONSTRUCTION- The amendment made by paragraph (1) may not be construed
to create eligibility for relief from removal under the former section
212(c) of the Immigration and Nationality Act if such eligibility
did not exist before the amendment became effective.
SEC. 205. GROUNDS OF INADMISSIBILITY AND DEPORTABILITY RELATING TO
REMOVAL AND FIREARM OFFENSES.
(a) Penalties Related to Removal- Section 243 (8 U.S.C. 1253) is amended--
(1) in subsection (a)(1)--
(A) in the matter preceding subparagraph (A), by inserting `212(a)
or' after `section'; and
(B) in the matter following subparagraph (D), by striking `or imprisoned
not more than four years' and inserting `and imprisoned for not
more than 5 years'; and
(2) in subsection (b), by striking `not more than $1,000 or imprisoned
for not more than one year, or both' and inserting `under title 18,
United States Code, and imprisoned for not more than 5 years (or for
not more than 10 years if the alien is a member of any of the classes
described in paragraphs (1)(E), (2), (3), and (4) of section 237(a)).'.
(b) 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--
(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) In 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).'.
(c) Inadmissibility for Firearms Offenses- Section 212(a)(2) (8 U.S.C.
1182(a)(2)), as amended by this Act, is further amended by adding at
the end the following:
`(L) 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.'.
(d) Construction- The amendments made by this section may not be construed
to create eligibility for relief from removal under former section 212(c)
of the Immigration and Nationality Act if such eligibility did not exist
before the amendments became effective.
SEC. 206. ALIEN SMUGGLING AND RELATED OFFENSES.
(a) In General- Section 274 (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 under 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
1 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 legal 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, shall 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 less than 3
years or more than 15 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
5 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, shall be fined under such
title, imprisoned for not less than 5 years or more than 20 years,
or both;
`(D) shall be fined under such title, imprisoned not less than 5
years or more than 25 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,
shall 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;
`(G) if the offense caused or resulted in the death of any person,
shall be punished by death or imprisoned for a term of years not
less than 15 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 person as may be designated for the 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- The term `cross the border' refers to the physical
act of crossing the border into the United States 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 the alien is traveling
or moving.'.
(b) Clerical Amendment- The table of contents is amended by striking
the item relating to section 274 and inserting the following:
`Sec. 274. Alien smuggling and related offenses.'.
SEC. 207. ILLEGAL ENTRY.
(a) In General- Section 275 (8 U.S.C. 1325) is amended to read as follows:
`SEC. 275. ILLEGAL ENTRY.
`(1) CRIMINAL OFFENSES- 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 examination or inspection by an immigration
officer (including failing to stop at the command of such officer),
or a customs or agriculture inspection at a port of entry;
`(C) knowingly enters or crosses the border to the United States
by means of a knowingly 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 exceeds for a period of 90 days or more the period
of the alien's admission or parole to the United States; or
`(E) is found in the United States after having violated any of
subparagraphs (A) through (D).
`(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 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 24 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 48 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
in that paragraph 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
officer.
`(5) ATTEMPT- Any person who 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 is amended by striking
the item relating to section 275 and inserting the following:
`Sec. 275. Illegal Entry.'.
(c) Effective Date- Subparagraph (E) of section 275(a)(1) of the Immigration
and Nationality Act, as added by this Act, shall apply only to violations
of subparagraphs (A) through (D) of such section 275(a)(1) committed
on or after the date of enactment of this Act.
SEC. 208. CRIMINAL PENALTIES FOR ALIENS UNLAWFULLY PRESENT IN THE
UNITED STATES.
Title II (8 U.S.C. 1151 et seq.) is amended by adding after section
275 the following:
`SEC. 275A. CRIMINAL PENALTIES FOR UNLAWFUL PRESENCE IN THE UNITED
STATES.
`(a) In General- In addition to any other violation, an alien present
in the United States in violation of this Act shall be guilty of a misdemeanor
and shall be fined under title 18, United States Code, imprisoned not
more than 1 year, or both.
`(b) Affirmative Defense- It shall be an affirmative defense to a violation
under subsection (a) that the alien overstayed the time allotted under
the alien's visa due to an exceptional and extremely unusual hardship
or physical illness that prevented the alien from leaving the United
States by the required date.'.
SEC. 209. ILLEGAL REENTRY.
Section 276 (8 U.S.C. 1326) is amended to read as follows:
`SEC. 276. REENTRY OF REMOVED ALIEN.
`(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, and imprisoned not
less than 60 days and not more than 2 years.
`(b) Reentry of Criminal Offenders- Notwithstanding the penalty provided
in subsection (a), if an alien described in that subsection--
`(1) was convicted for 3 or more misdemeanors or a felony before such
removal or departure, the alien shall be fined under title 18, United
States Code, and imprisoned not more than 10 years, or both;
`(2) was convicted for a felony before such removal or departure for
which the alien was sentenced to a term of imprisonment of not less
than 24 months, the alien shall be fined under such title, and imprisoned
not more than 15 years, or both;
`(3) was convicted for a felony before such removal or departure for
which the alien was sentenced to a term of imprisonment of not less
than 48 months, the alien shall be fined under such title, and imprisoned
not more than 20 years, or both;
`(4) was convicted for 3 felonies before such removal or departure,
the alien shall be fined under such title, and imprisoned not more
than 20 years, or both; or
`(5) was convicted, before such removal or departure, for murder,
rape, kidnaping, or a felony offense described in chapter 77 (relating
to peonage and slavery) or 113B (relating to terrorism) of such title,
the alien shall be fined under such title, and imprisoned not less
than 5 years and not more than 20 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, and imprisoned not fewer than 2 years
and 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 in that subsection,
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 unless
the alien demonstrates by clear and convincing evidence that--
`(1) the alien exhausted all administrative remedies that may have
been available to seek relief against the order;
`(2) the removal 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.
`(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- In this section:
`(1) 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.
`(2) 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.
`(3) REMOVAL- The term `removal' includes any denial of admission,
exclusion, deportation (including self deportation), or removal, or
any agreement by which an alien stipulates or agrees to exclusion,
deportation, or removal.
`(4) 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. 210. REFORM OF PASSPORT, VISA, AND IMMIGRATION FRAUD OFFENSES.
Chapter 75 of title 18, United States Code, is amended to read as follows:
`Chapter 75--Passport, Visa, and Immigration Fraud
`1541. Trafficking in passports.
`1542. False statement in an application for a passport.
`1543. Forgery and unlawful production of a passport.
`1544. Misuse of a passport.
`1545. Schemes to defraud aliens.
`1546. Immigration and visa fraud.
`1548. Attempts and conspiracies.
`1549. Alternative penalties for certain offenses.
`1550. Seizure and forfeiture.
`1551. Additional jurisdiction.
`1553. Authorized law enforcement activities.
`SEC. 1541. TRAFFICKING IN PASSPORTS.
`(a) Multiple Passports- Any person who, during any 3-year period, knowingly--
`(1) and without lawful authority produces, issues, or transfers 10
or more passports;
`(2) forges, counterfeits, alters, or falsely makes 10 or more passports;
`(3) secures, possesses, uses, receives, buys, sells, or distributes
10 or more passports, knowing the passports to be forged, counterfeited,
altered, falsely made, stolen, procured by fraud, or produced or issued
without lawful authority; or
`(4) completes, mails, prepares, presents, signs, or submits 10 or
more applications for a United States passport, knowing the applications
to contain any false statement or representation,
shall be fined under this title, imprisoned for not less than 2 years
and not more than 20 years, or both.
`(b) Passport Materials- Any person who knowingly and without lawful
authority produces, buys, sells, possesses, or uses any official material
(or counterfeit of any official material) used to make a passport, including
any distinctive paper, seal, hologram, image, text, symbol, stamp, engraving,
or plate, shall be fined under this title, imprisoned for not less than
2 years and not more than 20 years, or both.
`SEC. 1542. FALSE STATEMENT IN AN APPLICATION FOR A PASSPORT.
`(a) In General- Any person who knowingly makes any false statement
or representation in an application for a United States passport, or
mails, prepares, presents, or signs an application for a United States
passport knowing the application to contain any false statement or representation,
shall be fined under this title, imprisoned for not more than 15 years,
or both.
`(1) An offense under subsection (a) may be prosecuted in any district,
`(A) in which the false statement or representation was made or
the application for a United States passport was prepared or signed,
or
`(B) in which or to which the application was mailed or presented.
`(2) An offense under subsection (a) involving an application prepared
and adjudicated outside the United States may be prosecuted in the
district in which the resultant passport was or would have been produced.
`(c) Savings Clause- Nothing in this section may be construed to limit
the venue otherwise available under sections 3237 and 3238.
`SEC. 1543. FORGERY AND UNLAWFUL PRODUCTION OF A PASSPORT.
`(a) Forgery- Any person who--
`(1) knowingly forges, counterfeits, alters, or falsely makes any
passport; or
`(2) knowingly transfers any passport knowing it to be forged, counterfeited,
altered, falsely made, stolen, or to have been produced or issued
without lawful authority,
shall be fined under this title, imprisoned for not more than 15 years,
or both.
`(b) Unlawful Production- Any person who knowingly and without lawful
authority--
`(1) produces, issues, authorizes, or verifies a passport in violation
of the laws, regulations, or rules governing the issuance of the passport;
`(2) produces, issues, authorizes, or verifies a United States passport
for or to any person, knowing or in reckless disregard of the fact
that such person is not entitled to receive a passport; or
`(3) transfers or furnishes a passport to any person for use by any
person other than the person for whom the passport was issued or designed,
shall be fined under this title, imprisoned for not more than 15 years,
or both.
`SEC. 1544. MISUSE OF A PASSPORT.
`Any person who 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, 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 for not more than 15 years,
or both.
`SEC. 1545. SCHEMES TO DEFRAUD ALIENS.
`(a) In General- Any person who knowingly executes a scheme or artifice,
in connection with any matter that is authorized by or arises under
Federal immigration laws or any matter the offender claims or represents
is authorized by or arises under Federal immigration laws, to--
`(1) defraud any person, or
`(2) 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 for not more than 15 years,
or both.
`(b) Misrepresentation- Any person who knowingly and falsely represents
that such person is an attorney or accredited representative (as that
term is defined in section 1292.1 of title 8, Code of Federal Regulations
(or any successor regulation to such section)) in any matter arising
under Federal immigration laws shall be fined under this title, imprisoned
for not more than 15 years, or both.
`SEC. 1546. IMMIGRATION AND VISA FRAUD.
`(a) In General- Any person who 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) completes, mails, prepares, presents, signs, or submits 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; or
`(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,
shall be fined under this title, imprisoned for not more than 15 years,
or both.
`(b) Multiple Immigration Documents- Any person who, during any 3-year
period, knowingly--
`(1) and without lawful authority produces, issues, or transfers 10
or more immigration documents;
`(2) forges, counterfeits, alters, or falsely makes 10 or more immigration
documents;
`(3) secures, possesses, uses, buys, sells, or distributes 10 or more
immigration documents, knowing the immigration documents to be forged,
counterfeited, altered, stolen, falsely made, procured by fraud, or
produced or issued without lawful authority; or
`(4) completes, mails, prepares, presents, signs, or submits 10 or
more immigration documents knowing the documents to contain any materially
false statement or representation,
shall be fined under this title, imprisoned for not more than 20 years,
or both.
`(c) Immigration Document Materials- Any person who knowingly and without
lawful authority produces, buys, sells, or possesses any official material
(or counterfeit of any official material) used to make an immigration
document, including any distinctive paper, seal, hologram, image, text,
symbol, stamp, engraving, or plate, shall be fined under this title,
imprisoned for not more than 20 years, or both.
`(d) Employment Documents- Any person who, for the purpose of satisfying
a requirement of section 274A(b) of the Immigration and Nationality
Act (8 U.S.C. 1324a(b)), 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,
shall be fined under this title, imprisoned for not more than 5 years,
or both.
`SEC. 1547. MARRIAGE FRAUD.
`(a) Evasion or Misrepresentation- Any person who--
`(1) knowingly enters into a marriage for the purpose of evading any
provision of the immigration laws; or
`(2) knowingly misrepresents the existence or circumstances of a marriage--
`(A) in an application or document authorized by the immigration
laws; or
`(B) during any immigration proceeding conducted by an administrative
adjudicator (including an immigration officer or examiner, a consular
officer, an immigration judge, or a member of the Board of Immigration
Appeals),
shall be fined under this title, imprisoned for not more than 10 years,
or both.
`(b) Multiple Marriages- Any person who--
`(1) knowingly enters into 2 or more marriages for the purpose of
evading any immigration law; or
`(2) knowingly arranges, supports, or facilitates 2 or more marriages
designed or intended to evade any immigration law,
shall be fined under this title, imprisoned for not less than 2 years
and not more than 20 years, or both.
`(c) Commercial Enterprise- Any person who knowingly establishes a commercial
enterprise for the purpose of evading any provision of the immigration
laws shall be fined under this title, imprisoned for not less than 2
years and not more than 10 years, or both.
`(d) Duration of Offense-
`(1) IN GENERAL- An offense under subsection (a) or (b) continues
until the fraudulent nature of the marriage or marriages is discovered
by an immigration officer.
`(2) COMMERCIAL ENTERPRISE- An offense under subsection (c) continues
until the fraudulent nature of the commercial enterprise is discovered
by an immigration officer or other law enforcement officer.
`SEC. 1548. ATTEMPTS AND CONSPIRACIES.
`Any person who attempts or conspires to violate any section of this
chapter shall be punished in the same manner as a person who completed
a violation of that section.
`SEC. 1549. ALTERNATIVE PENALTIES FOR CERTAIN OFFENSES.
`(a) Terrorism- Any person who violates any section in this chapter--
`(1) knowing that such violation will facilitate an act of international
terrorism or domestic terrorism (as those terms are defined in section
2331), or
`(2) with the intent to facilitate an act of international terrorism
or domestic terrorism,
shall be fined under this title, imprisoned for not less than 7 years
and not more than 25 years, or both.
`(b) Offense Against Government- Any person who violates any section
in this chapter:
`(1) knowing that such violation will facilitate the commission of
any offense against the United States (other than an offense in this
chapter) or against any State, which offense is punishable by imprisonment
for more than 1 year; or
`(2) with the intent to facilitate the commission of any offense against
the United States (other than an offense in this chapter) or against
any State, which offense is punishable by imprisonment for more than
1 year,
shall be fined under this title, imprisoned for not less than 3 years
and not more than 20 years, or both.
`SEC. 1550. SEIZURE AND FORFEITURE.
`(a) Forfeiture- Any property, real or personal, used to commit or facilitate
the commission of a violation of any section of this chapter, the gross
proceeds of such violation, and any property traceable to such property
or proceeds, shall be subject to forfeiture.
`(b) Applicable Law- Seizures and forfeitures under this section shall
be governed by the provisions of chapter 46 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, the Secretary of
State, or the Attorney General.
`SEC. 1551. ADDITIONAL JURISDICTION.
`(a) In General- Any person who commits an offense under this chapter
within the special maritime and territorial jurisdiction of the United
States shall be punished as provided under this chapter.
`(b) Extraterritorial Jurisdiction- Any person who commits an offense
under this chapter outside the United States shall be punished as provided
under this chapter if--
`(1) the offense involves a United States passport or immigration
document (or any document purporting to be such a document) or any
matter, right, or benefit arising under or authorized by Federal immigration
laws;
`(2) the offense is in or affects foreign commerce;
`(3) the offense affects, jeopardizes, or poses a significant risk
to the lawful administration of Federal immigration laws, or the national
security of the United States;
`(4) the offense is committed to facilitate an act of international
terrorism (as defined in section 2331) or a drug trafficking crime
(as defined in section 929(a)(2)) that affects or would affect the
national security of the United States;
`(5) the offender is a national of the United States or an alien lawfully
admitted for permanent residence in the United States (as such terms
are defined in section 101(a) of the Immigration and Nationality Act
(8 U.S.C. 1101(a))); or
`(6) the offender is a stateless person whose habitual residence is
in the United States.
`SEC. 1552. DEFINITIONS.
`As used in this chapter--
`(1) the term `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 `false statement or representation' includes a personation
or an omission;
`(3) the term `falsely make' means to prepare or complete an immigration
document with knowledge or in reckless disregard of the fact that
the document--
`(A) contains a statement or representation that is false, fictitious,
or fraudulent;
`(B) has no basis in fact or law; or
`(C) otherwise fails to state a fact which is material to the purpose
for which the document was created, designed, or submitted;
`(4) the term `immigration document'--
`(A) means any application, petition, affidavit, declaration, attestation,
form, visa, identification card, alien registration document, employment
authorization document, border crossing card, certificate, permit,
order, license, stamp, authorization, grant of authority, or other
official document, arising under or authorized by the immigration
laws of the United States; and
`(B) includes any document, photograph, or other piece of evidence
attached to or submitted in support of an immigration document;
`(5) the term `immigration laws' includes--
`(A) the laws described in section 101(a)(17) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(17));
`(B) the laws relating to the issuance and use of passports; and
`(C) the regulations prescribed under the authority of any law described
in paragraphs (A) and (B);
`(6) the term `immigration proceeding' includes an adjudication, interview,
hearing, or review;
`(7) a person does not exercise `lawful authority' if the person abuses
or improperly exercises lawful authority the person otherwise holds;
`(8) the term `passport' means--
`(A) a travel document attesting to the identity and nationality
of the bearer that is issued under the authority of the Secretary
of State, a foreign government, or an international organization;
or
`(B) any instrument purporting to be a document described in subparagraph
(A);
`(9) the term `present' means to offer or submit for official processing,
examination, or adjudication. Any such presentation continues until
the official processing, examination, or adjudication is complete;
`(10) 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;
`(11) the term `produce' means to make, prepare, assemble, issue,
print, authenticate, or alter;
`(12) the term `State' means a State of the United States, the District
of Columbia, or any commonwealth, territory, or possession of the
United States;
`(13) the use of a passport or an immigration document referred to
in sections 1541(a), 1543(b), 1544, 1546(a), and 1546(b) includes--
`(A) any officially authorized use;
`(C) use to demonstrate identity, residence, nationality, citizenship,
or immigration status;
`(D) use to seek or maintain employment; or
`(E) use in any matter within the jurisdiction of the Federal government
or of a State government.
`SEC. 1553. AUTHORIZED LAW ENFORCEMENT ACTIVITIES.
`(a) Savings Provision- Nothing in this chapter may be construed to
prohibit any lawfully authorized investigative, protective, or intelligence
activity of a law enforcement agency of the United States, a State,
or a political subdivision of a State, or an intelligence agency of
the United States, or any activity authorized under title V of the Organized
Crime Control Act of 1970 (Public Law 91-452; 84 Stat. 933).
`(b) Protection for Legitimate Refugees and Asylum Seekers-
`(1) PROSECUTION GUIDELINES- The Attorney General, in consultation
with the Secretary of Homeland Security, shall develop binding prosecution
guidelines for federal prosecutors to ensure that any prosecution
of an alien seeking entry into the United States by fraud is consistent
with the obligations of the United States under Article 31(1) of the
Convention Relating to the Status of Refugees, done at Geneva July
28, 1951 (as made applicable by the Protocol Relating to the Status
of Refugees, done at New York January 31, 1967 (19 UST 6223)).
`(2) NO PRIVATE RIGHT OF ACTION- The guidelines required under paragraph
(1), and any internal office procedures adopted pursuant to such guidelines,
are intended solely for the guidance of attorneys for the United States.
This section, the guidelines required under paragraph (1), and the
process for determining such guidelines are not intended to, do not,
and may not be relied upon to create any right or benefit, substantive
or procedural, enforceable at law by any party in any administrative,
civil, or criminal matter.'.
SEC. 211. INADMISSIBILITY AND REMOVAL FOR PASSPORT AND IMMIGRATION
FRAUD OFFENSES.
(a) Inadmissibility- Section 212(a)(2)(A)(i) (8 U.S.C. 1182(a)(2)(A)(i)),
as amended by this Act, is further amended by inserting after subclause
(III) the following:
`(IV) a violation of any section of chapter 75 of title 18,
United States Code,'.
(b) Removal- Section 237(a)(3)(B)(iii) of the Immigration and Nationality
Act (8 U.S.C. 1227(a)(3)(B)(iii)) is amended to read as follows:
`(iii) of a violation of any section of chapter 75 of title 18,
United States Code,'.
(c) Effective Date- The amendments made by this section shall apply
to proceedings, applications and adjudications pending on or after the
date of the enactment of this Act.
SEC. 212. INCARCERATION OF CRIMINAL ALIENS.
(a) Institutional Removal Program-
(1) TECHNOLOGICAL IMPROVEMENT AND EXPANSION- The Secretary shall improve
the Institutional Removal Program (referred to in this section as
the `Program') to--
(A) identify the total criminal alien population in Federal, State,
and local correctional facilities by making use of analytical information
technology tools that systematically use updated nationwide jail-booking
databases;
(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- The Secretary may extend the scope of the Program to
all States.
(b) Technology Usage- Technology, such as videoconferencing, shall be
used to the maximum extent practicable to make the Program available
in remote locations. Mobile access to Federal databases of aliens, such
as IDENT, 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.
(c) Report to Congress- Not later than 6 months after the date of the
enactment of this Act, and annually thereafter, the Secretary shall
submit a report to Congress on the participation of States in the Program
and in any other program authorized under subsection (a).
(d) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary in each of the fiscal years 2008 through
2012 to carry out the Program.
(e) Criminal Alien Program Pilot Project-
(1) IN GENERAL- The Secretary shall reserve $300,000 of the funds
appropriated to United States Immigration and Customs Enforcement
for the Criminal Alien Program to implement a pilot project to evaluate
technology that can--
(A) effectively analyze information on jail and prison populations;
and
(B) automatically identify incarcerated illegal aliens in a timely
manner before their release from detention.
(2) MINIMUM REQUIREMENTS- The pilot project implemented under subsection
(a) shall involve not fewer than 2 States and shall provide for the
daily collection of data from not fewer than 15 jails or prisons.
(3) REPORT- Not later than July 1, 2008, the Secretary shall submit
a report to the Committee on Appropriations of the Senate and the
Committee on Appropriations of the House of Representatives that describes--
(A) the status of the pilot project implemented under subsection
(a);
(B) the impact of the pilot project on illegal alien management;
and
(C) the Secretary's plans to integrate the technology evaluated
under the pilot project into future enforcement budgets and operating
procedures.
SEC. 213. ENCOURAGING ALIENS TO DEPART VOLUNTARILY.
(a) In General- Section 240B (8 U.S.C. 1229c) is amended--
(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 inserting 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 paragraphs
(C), (D), and (E), respectively;
(iii) by inserting 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 longer than 60 days, and may be granted only after a finding
that the alien has the means to depart the United States and intends
to depart the United States. 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, which shall
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 longer than 45 days';
(3) by striking subsection (c) through (e) and inserting the following:
`(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 the
amount of the penalty, 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.
`(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
(4) in subsection (f), by adding at the end the following: `Notwithstanding
section 242(a)(2)(D), 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 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)).
(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)(4) 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. 214. DETERRING ALIENS ORDERED REMOVED FROM REMAINING IN THE UNITED
STATES UNLAWFULLY.
(a) Inadmissible Aliens- Section 212(a)(9)(A) (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 (8 U.S.C. 1324d) is amended--
(1) in subsection (a), by striking `Commissioner' and inserting `Secretary
of Homeland Security'; and
(2) by adding at the end the following:
`(c) Ineligibility for Relief-
`(1) IN GENERAL- Absent the granting of a timely motion to reconsider
under section 240(c)(6) or a timely motion to reopen under section
240(c)(7), 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) may be construed
to 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 on or after such
date.
SEC. 215. 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)(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)(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
(A) in the subsection heading, 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
meaning given such term 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 `and has not been 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 and has not been lawfully admitted for permanent residence'.
SEC. 216. UNIFORM STATUTE OF LIMITATIONS FOR CERTAIN IMMIGRATION,
PASSPORT, AND NATURALIZATION OFFENSES.
(a) In General- Section 3291 of title 18, United States Code, is amended
to read as follows:
`SEC. 3291. IMMIGRATION, PASSPORT, AND NATURALIZATION OFFENSES.
`No person shall be prosecuted, tried, or punished for a violation of
any section of chapters 69 (relating to nationality and citizenship
offenses), 75 (relating to passport, visa, and immigration offenses),
or for a violation of any criminal provision under section 243, 266,
274, 275, 276, 277, or 278 of the Immigration and Nationality Act (8
U.S.C. 1253, 1306, 1324, 1325, 1326, 1327, and 1328), or for an attempt
or conspiracy to violate any such section, unless the indictment is
returned or the information filed not later than 10 years after the
commission of the offense.'.
(b) Clerical Amendment- The table of sections for chapter 213 of title
18, United States Code, is amended by striking the item relating to
section 3291 and inserting the following:
`3291. Immigration, passport, and naturalization offenses.'.
SEC. 217. DIPLOMATIC SECURITY SERVICE.
(a) In General- Section 37(a)(1) of the State Department Basic Authorities
Act of 1956 (22 U.S.C. 2709(a)(1)) is amended to read as follows:
`(1) conduct investigations concerning--
`(A) illegal passport or visa issuance or use;
`(B) identity theft or document fraud affecting or relating to the
programs, functions, and authorities of the Department of State;
`(C) violations of chapter 77 of title 18, United States Code; and
`(D) Federal offenses committed within the special maritime and
territorial jurisdiction defined in section 7(9) of title 18, United
States Code, except as that jurisdiction relates to the premises
of United States military missions and related residences;'.
(b) Construction- Nothing in the amendment may be subsection (a) may
be construed to limit the investigative authority of any Federal department
or agency other than the Department of State.
SEC. 218. STREAMLINED PROCESSING OF BACKGROUND CHECKS CONDUCTED FOR
IMMIGRATION BENEFITS.
(a) Information Sharing; Interagency Task Force- Section 105 (8 U.S.C.
1105) is amended by adding at the end the following:
`(e) Interagency Task Force-
`(1) IN GENERAL- The Secretary of Homeland Security and the Attorney
General shall establish an interagency task force to resolve cases
in which an application or petition for an immigration benefit conferred
under this Act has been delayed due to an outstanding background check
investigation for more than 2 years after the date on which such application
or petition was initially filed.
`(2) MEMBERSHIP- The interagency task force established under paragraph
(1) shall include representatives from Federal agencies with immigration,
law enforcement, or national security responsibilities under this
Act.'.
(b) Authorization of Appropriations- There are authorized to be appropriated
to the Director of the Federal Bureau of Investigation such sums as
are necessary for each fiscal year, 2008 through 2012 for enhancements
to existing systems for conducting background and security checks necessary
to support immigration security and orderly processing of applications.
(c) Report on Background and Security Checks-
(1) IN GENERAL- Not later than 180 days after the date of the enactment
of this Act, the Director of the Federal Bureau of Investigation shall
submit to the Committee on the Judiciary of the Senate and the Committee
on the Judiciary of the House of Representatives a report on the background
and security checks conducted by the Federal Bureau of Investigation
on behalf of United States Citizenship and Immigration Services.
(2) CONTENT- The report required under paragraph (1) shall include--
(A) a description of the background and security check program;
(B) a statistical breakdown of the background and security check
delays associated with different types of immigration applications;
(C) a statistical breakdown of the background and security check
delays by applicant country of origin; and
(D) the steps that the Director of the Federal Bureau of Investigation
is taking to expedite background and security checks that have been
pending for more than 180 days.
SEC. 219. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM.
(a) Reimbursement for Costs Associated With Processing Criminal Illegal
Aliens- The Secretary may reimburse States and units of local government
for costs associated with processing undocumented criminal aliens through
the criminal justice system, including--
(2) criminal prosecution;
(4) translators and interpreters; and
(b) Authorization of Appropriations-
(1) PROCESSING CRIMINAL ILLEGAL ALIENS- There are authorized to be
appropriated $400,000,000 for each of the fiscal years 2008 through
2013 to carry out subsection (a).
(2) COMPENSATION UPON REQUEST- Section 241(i)(5) (8 U.S.C. 1231(i))
is amended to read as follows:
`(5) There are authorized to be appropriated to carry this subsection--
`(A) such sums as may be necessary for fiscal year 2008;
`(B) $750,000,000 for fiscal year 2009;
`(C) $850,000,000 for fiscal year 2010; and
`(D) $950,000,000 for each of the fiscal years 2011 through 2013.'.
(c) Technical Amendment- Section 501 of the Immigration Reform and Control
Act of 1986 (8 U.S.C. 1365) is amended by striking `Attorney General'
each place it appears and inserting `Secretary of Homeland Security'.
SEC. 220. REDUCING ILLEGAL IMMIGRATION AND ALIEN SMUGGLING ON TRIBAL
LANDS.
(a) Grants Authorized- The Secretary may award grants to Indian tribes
with lands adjacent to an international border of the United States
that have been adversely affected by illegal immigration.
(b) Use of Grant Funds- Grants awarded under subsection (a) may be used
for--
(1) law enforcement activities;
(2) health care services;
(3) environmental restoration; and
(4) the preservation of cultural resources.
(c) Report- Not later than 180 days after the date of the enactment
of this Act, the Secretary shall submit a report to the Committee on
the Judiciary of the Senate and the Committee on the Judiciary of the
House of Representatives that--
(1) describes the level of access of Border Patrol agents on tribal
lands;
(2) describes the extent to which enforcement of immigration laws
may be improved by enhanced access to tribal lands;
(3) contains a strategy for improving such access through cooperation
with tribal authorities; and
(4) identifies grants provided by the Department for Indian tribes,
either directly or through State or local grants, relating to border
security expenses.
(d) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary for each of the fiscal years 2008 through
2012 to carry out this section.
SEC. 221. ALTERNATIVES TO DETENTION.
The Secretary shall conduct a study of--
(1) the effectiveness of alternatives to detention, including electronic
monitoring devices and intensive supervision programs, in ensuring
alien appearance at court and compliance with removal orders;
(2) the effectiveness of the Intensive Supervision Appearance Program
and the costs and benefits of expanding that program to all States;
and
(3) other alternatives to detention, including--
(A) release on an order of recognizance;
(B) appearance bonds; and
(C) electronic monitoring devices.
SEC. 222. STATE AND LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAWS.
(a) In General- Section 287(g) (8 U.S.C. 1357(g)) is amended--
(1) in paragraph (2), by adding at the end the following: `If such
training is entered into by the officers of a State or political subdivision
of a State as a result of entering into an agreement under this subsection,
the costs incurred by the State or political subdivision as a result
of such training, including applicable overtime costs, shall be reimbursed
by the Secretary of Homeland Security.'; and
(2) in paragraph (4), by adding at the end the following: `The cost
of any equipment required to be purchased under such written agreement
and necessary to perform a function under this subsection shall be
reimbursed by the Secretary of Homeland Security.'.
(b) 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--
(A) residential training at the Center for Domestic Preparedness;
(B) onsite training held at State or local police agencies or facilities;
(C) on-line training courses by computer, teleconferencing, and
videotape; or
(D) DVD of a training course or courses.
(2) ON-LINE TRAINING- The head of the Distributed Learning Program
of the Federal Law Enforcement Training Center shall make training
available for State and local law enforcement personnel through the
Internet through a secure, encrypted distributed learning system that
has all its servers based in the United States, is sealable, survivable,
and is capable of having a portal in place within 30 days.
(3) FEDERAL PERSONNEL TRAINING- The training of State and local law
enforcement personnel under this section shall not displace the training
of Federal personnel.
(c) Savings Provision- Nothing in this Act or any other provision of
law may be construed as making any immigration-related training a requirement
for, or prerequisite to, any State or local law enforcement officer
exercising the inherent authority of the officer to investigate, identify,
apprehend, arrest, detain, or transfer to Federal custody illegal aliens
during the normal course of carrying out the law enforcement duties
of the officer.
(d) Training Limitation- Section 287(g) (8 U.S.C. 1357(g)) is amended--
(1) by striking `Attorney General' each place that term appears and
inserting `Secretary of Homeland Security'; and
(2) in paragraph (2), by adding at the end the following: `Such training
shall not exceed 14 days or 80 hours, whichever is longer.'.
(e) Authorization of Appropriations- There are authorized to be appropriated
to the Secretary such sums as may be necessary to carry out this section
and the amendments made by this section.
SEC. 223. PROTECTING IMMIGRANTS FROM CONVICTED SEX OFFENDERS.
(a) Immigrants- Section 204(a)(1) (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), by amending subclause (II) to read as
follows:
`(II) Subclause (I) shall not apply to 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) (8 U.S.C. 1101(a)(15)(K)),
is amended by inserting `(other than a citizen described in section
204(a)(1)(A)(viii))' after `citizen of the United States' each place
such term appears.
SEC. 224. LAW ENFORCEMENT AUTHORITY OF STATES AND POLITICAL SUBDIVISIONS
AND TRANSFER TO FEDERAL CUSTODY.
(a) In General- Title II (8 U.S.C. 1151 et. seq.) is amended by adding
after section 240C the following:
`SEC. 240D. LAW ENFORCEMENT AUTHORITY OF STATES AND POLITICAL SUBDIVISIONS
AND TRANSFER OF ALIENS TO FEDERAL CUSTODY.
`(a) Authority- The authority under section 287(g) of the Immigration
and Nationality Act does not limit or replace the existing authority
of a State or a political subdivision of a State to investigate, apprehend,
arrest, detain, or transfer to Federal custody (including the transportation
across State lines to detention centers) an unlawfully present or removable
alien for the purpose of assisting in the enforcement of the immigration
laws of the United States, including laws related to visa overstay,
in the normal course of carrying out the law enforcement duties of such
personnel.
`(b) Transfer- If the head of a law enforcement entity of a State, or,
if appropriate, a political subdivision of the State, exercising authority
with respect to the apprehension or arrest of an alien submits a request
to the Secretary of Homeland Security that the alien be taken into Federal
custody, the Secretary--
`(A) deem the request to include the inquiry to verify immigration
status described in section 642(c) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373(c)), and
expeditiously inform the requesting entity whether such individual
is an alien lawfully admitted to the United States or is otherwise
lawfully present in the United States; and
`(B) if the individual is an alien who is not lawfully admitted
to the United States or otherwise is not lawfully present in the
United States--
`(i) take the illegal alien into the custody of the Federal Government
not later than 72 hours after--
`(I) the conclusion of the State charging process or dismissal
process; or
`(II) the illegal alien is apprehended, if no State charging
or dismissal process is required; or
`(ii) request that the relevant State or local law enforcement
agency temporarily detain or transport the alien to a location
for transfer to Federal custody; and
`(2) shall designate at least 1 Federal, State, or local prison or
jail or a private contracted prison or detention facility within each
State as the central facility for that State to transfer custody of
aliens to the Department of Homeland Security.
`(1) IN GENERAL- The Secretary of Homeland Security shall reimburse
a State, or a political subdivision of a State, for expenses, as verified
by the Secretary, incurred by the State or political subdivision in
the detention and transportation of an alien as described in this
section.
`(2) COST COMPUTATION- Compensation provided for costs incurred under
this section shall be the sum of--
`(i) the average daily cost of incarceration of a prisoner in
the relevant State, as determined by the chief executive officer
of a State (or, as appropriate, a political subdivision of the
State); and
`(ii) the number of days that the alien was in the custody of
the State or political subdivision;
`(B) the cost of transporting the alien from the point of apprehension
or arrest to the location of detention, and if the location of detention
and of custody transfer are different, to the custody transfer point;
and
`(C) the cost of uncompensated emergency medical care provided to
a detained alien during the period between the time of transmittal
of the request described in this section and the time of transfer
into Federal custody.
`(d) Requirement for Appropriate Security- The Secretary of Homeland
Security shall ensure that--
`(1) aliens incarcerated in a Federal facility pursuant to this section
are held in facilities which provide an appropriate level of security;
and
`(2) if practicable, aliens detained solely for civil violations of
Federal immigration law are separated within a facility or facilities.
`(e) Requirement for Schedule- In carrying out this section, the Secretary
of Homeland Security shall establish a regular circuit and schedule
for the prompt transportation of apprehended aliens from the custody
of those States, and political subdivisions of States, which routinely
submit requests described this section, into Federal custody.
`(f) Authority for Contracts-
`(1) IN GENERAL- The Secretary of Homeland Security may enter into
contracts or cooperative agreements with appropriate State and local
law enforcement and detention agencies to implement this section.
`(2) DETERMINATION BY SECRETARY- Before entering into a contract or
cooperative agreement with a State or political subdivision of a State
under paragraph (1), the Secretary shall determine whether the State,
or if appropriate, the political subdivision in which the agencies
are located, has in place any formal or informal policy that violates
section 642 of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (8 U.S.C. 1373). The Secretary shall not allocate any
of the funds made available under this section to any State or political
subdivision that has in place a policy that violates such section.'.
(b) Detention and Transportation to Federal Custody of Aliens Not Lawfully
Present-
(1) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
$850,000,000 for fiscal year 2008 and for each subsequent fiscal year
for the detention and removal of aliens not lawfully present in the
United States under the Immigration and Nationality Act.
(2) TRANSPORTATION AND PROCESSING OF ILLEGAL ALIENS APPREHENDED BY
STATE AND LOCAL LAW ENFORCEMENT-
(A) IN GENERAL- The Secretary may provide sufficient transportation
and officers to take illegal aliens apprehended by State and local
law enforcement officers into custody for processing at a detention
facility operated by the Department.
(B) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be
appropriated such sums as may be necessary for each of fiscal years
2008 through 2012 to carry out this paragraph.
(c) Authorization for Detention and Transportation After Completion
of State or Local Prison Sentence-
(1) IN GENERAL- Law enforcement officers of a State or political subdivision
of a State may--
(A) hold an illegal alien for a period not to exceed 14 days after
the completion of the alien's State prison sentence to effectuate
the transfer of the alien to Federal custody if the alien is removable
or not lawfully present in the United States;
(B) issue a detainer that would allow aliens who have served a State
prison sentence to be detained by the State prison until authorized
employees of the Bureau of Immigration and Customs Enforcement can
take the alien into custody; or
(C) transport the alien (including the transportation across State
lines to detention centers) to a location where transfer to Federal
custody can be effectuated.
(2) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
$500,000,000 per fiscal year to reimburse the expenses incurred by
State, or political subdivisions of a State, in the detention or transportation
of criminal aliens to Federal custody.
SEC. 225. LAUNDERING OF MONETARY INSTRUMENTS.
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),'.
SEC. 226. COOPERATIVE ENFORCEMENT PROGRAMS.
Not later than 2 years after the date of the enactment of this Act,
the Secretary shall negotiate and execute, where practicable, a cooperative
enforcement agreement described in section 287(g) of the Immigration
and Nationality Act (8 U.S.C. 1357(g)) with at least 1 law enforcement
agency in each State, to train law enforcement officers in the detection
and apprehension of individuals engaged in transporting, harboring,
sheltering, or encouraging aliens in violation of section 274 of such
Act (8 U.S.C. 1324).
SEC. 227. EXPANSION OF THE JUSTICE PRISONER AND ALIEN TRANSFER SYSTEM.
Not later than 60 days after the date of the enactment of this Act,
the Attorney General shall issue a directive to expand the Justice Prisoner
and Alien Transfer System (referred to in this section as the `System')
to provide additional services with respect to aliens who are illegally
present in the United States, including--
(1) increasing the daily operations of the System with buses and air
hubs in 3 geographic regions;
(2) allocating a set number of seats for such aliens for each metropolitan
area;
(3) allowing metropolitan areas to trade or give some of seats allocated
to them under the System for such aliens to other areas in their region
based on the transportation needs of each area; and
(4) requiring an annual report that analyzes of the number of seats
that each metropolitan area is allocated under the System for such
aliens and modifies such allocation if necessary.
SEC. 228. DIRECTIVE TO THE UNITED STATES SENTENCING COMMISSION.
(a) In General- Pursuant to the authority under section 994 of title
28, United States Code, the United States Sentencing Commission shall
promulgate or amend the sentencing guidelines, policy statements, and
official commentaries related to immigration-related offenses, including
the offenses described in chapter 75 of title 18, United States Code,
to reflect the serious nature of such offenses and the amendments made
by this Act.
(b) Report- Not later than 1 year after the date of the enactment of
this Act, the United States Sentencing Commission shall submit to the
Committee on the Judiciary of the Senate and the Committee on the Judiciary
of the House of Representatives a report on the implementation of this
section.
SEC. 229. CANCELLATION OF VISAS.
Section 222(g) (8 U.S.C. 1202(g)) is amended--
(A) by striking `Attorney General' and inserting `Secretary';
(B) by inserting `or otherwise violated any of the terms of the
nonimmigrant classification in which the alien was admitted,' before
`such visa'; and
(C) 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'.
SEC. 230. JUDICIAL REVIEW OF VISA REVOCATION.
(a) In General- Section 221(i) of the Immigration and Nationality Act
(8 U.S.C. 1201(i)) is amended by striking `There shall be no means of
judicial review' and all that follows and inserting the following: `Notwithstanding
any other provision of law (statutory or nonstatutory), including section
2241 of title 28, United States Code, any other habeas corpus provision,
and sections 1361 and 1651 of such title, a revocation under this subsection
may not be reviewed by any court, and no court shall have jurisdiction
to hear any claim arising from, or any challenge to, such a revocation,
provided that the revocation is executed by the Secretary.'.
(b) Effective Date- The amendment made by subsection (a) shall--
(1) take effect on the date of the enactment of this Act; and
(2) apply to all revocations made on or after such date.
SEC. 231. TERRORIST BAR TO GOOD MORAL CHARACTER.
(a) Definition of Good Moral Character- Section 101(f) (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 the Attorney General
determines, in the unreviewable discretion of the Secretary or the
Attorney General, to have been an alien described in section 212(a)(3)
or 237(a)(4), which determination--
`(A) may be based upon any relevant information or evidence, including
classified, sensitive, or national security information; and
`(B) shall be binding upon any court regardless of the applicable
standard of review;';
(2) in paragraph (8), by striking the period at the end and inserting
the following: `, regardless whether the crime was classified as an
aggravated felony at the time of conviction, provided that, the Secretary
of Homeland Security or Attorney General may in the unreviewable discretion
of the Secretary or the Attorney General, determine that this paragraph
shall not apply in the case of a single aggravated felony conviction
(other than murder, manslaughter, 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 before the date of application;' after `(as defined
in subsection (a)(43)); or';
(3) by moving paragraph (9) before the undesignated matter following
paragraph (8); and
(4) in the undesignated matter following paragraph (9)--
(A) 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.'; and
(B) by striking `; or' at the end and inserting a period.
(b) Aggravated Felons- Section 509(b) of the Immigration Act of 1990
(8 U.S.C. 1101 note) is amended by striking `convictions' and all that
follows and inserting `convictions occurring before, on or after such
date.'.
(c) Effective Date- The amendments made by subsections (a) and (b) shall
take effect on the date of the enactment of this Act, shall apply to
any act that occurred before, on, or after such date of enactment, 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 of enactment.
(d) Naturalization of Persons Endangering National Security-
(1) IN GENERAL- Section 316 (8 U.S.C. 1427) is amended by adding at
the end the following:
`(g) Persons Endangering National Security- No person may be naturalized
if the Secretary of Homeland Security determines that the person has
been an alien described in section 212(a)(3) or 237(a)(4). Such determination
may be based upon any relevant information or evidence, including classified,
sensitive, or national security information, and shall be binding upon,
and unreviewable by, any court exercising jurisdiction, under the immigration
laws of the United States, over any application for naturalization,
regardless of the applicable standard of review.'.
(2) CONCURRENT NATURALIZATION AND REMOVAL PROCEEDINGS- Section 318
(8 U.S.C. 1429) is amended by striking `; and no application' and
all that follows and inserting the following: `No application for
naturalization shall be considered by the Secretary of Homeland Security
or by any court if there is pending against the applicant any removal
proceedings 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 proceedings
was commenced. The findings of the Attorney General in terminating
removal proceedings or in canceling the removal of an alien under
this Act shall not be 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 under this title.'.
(3) PENDING DENATURALIZATION OR REMOVAL PROCEEDINGS- Section 240(b)
(8 U.S.C. 1154(b)) is amended by adding at the end the following:
`(8) LIMITATION WHILE PROCEEDING IS PENDING- No petition may be approved
under this section if there is any administrative or judicial proceeding
pending against the petitioner that could directly or indirectly result
in the petitioner's denaturalization or the loss of the petitioner's
lawful permanent resident status.'.
(4) CONDITIONAL PERMANENT RESIDENT- Sections 216(e) and 216A(e) (8
U.S.C. 1186a(e) and 1186b(e)) are each amended by inserting `, if
the alien has had the conditional basis removed pursuant to this section'
before the period at the end of each such subsection.
(5) DISTRICT COURT JURISDICTION- Section 336(b) (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 beginning on
the date on which the Secretary of Homeland Security completes all examinations
and interviews conducted under such section, the applicant may apply
to the district court for the district in which the applicants 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.'.
(6) CONFORMING AMENDMENT- Section 310(c) (8 U.S.C. 1421(c)) is amended--
(A) by inserting `, not later than 120 days after the Secretary
of Homeland Security's final determination,' before `seek'; and
(B) by striking `Such review' and all that follows and inserting
the following: `The petitioner shall have the burden 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, and notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, United States
Code, 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--
`(1) is a person of good moral character;
`(2) understands and is attached to the principles of the Constitution
of the United States; or
`(3) is well disposed to the good order and happiness of the United
States.'.
(7) EFFECTIVE DATE- The amendments made by this subsection--
(A) shall take effect on the date of the enactment of this Act;
(B) shall apply to any act that occurred before, on, or after such
date of enactment; and
(C) shall apply to any application for naturalization or any other
case or matter under Federal immigration law that is pending on,
or filed after, such date of enactment.
SEC. 232. PRECLUDING ADMISSIBILITY OF ALIENS CONVICTED OF AGGRAVATED
FELONIES OR OTHER SERIOUS OFFENSES.
(a) Inadmissibility on Criminal and Related Grounds; Waivers- Section
212(a)(2) (8 U.S.C. 1182(a)(2)) is amended--
(1) in subparagraph (A)(i), as amended by this title, by inserting
after subclause (IV) the following:
`(V) a violation of (or a conspiracy or attempt to violate)
an offense described in 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 documents, authentication features, and
information),'; and
(2) by adding at the end the following:
`(M) CITIZENSHIP FRAUD- 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 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.
`(N) AGGRAVATED FELONS- Any alien who has been convicted of an aggravated
felony at any time is inadmissible.'.
(b) Deportability; Criminal Offenses- Section 237(a)(3)(B) (8 U.S.C.
1227(a)(3)(B)) is amended--
(1) in clause (i), by striking the comma at the end and inserting
a semicolon;
(2) in clause (ii), by striking `, or' at the end and inserting a
semicolon;
(3) in clause (iii), by striking the comma at the end and inserting
`; or'; and
(4) by inserting after clause (iii) the following:
`(iv) of a violation of, or an attempt or conspiracy to violate,
subsection (a) or (b) of section 1425 of title 18 (relating to
procurement of citizenship or naturalization unlawfully),'.
(c) Deportability; Criminal Offenses- Section 237(a)(2) (8 U.S.C. 1227(a)(2))
is amended by adding at the end the following:
`(H) IDENTIFICATION FRAUD- Any alien who is convicted of a violation
of (or a conspiracy or attempt to violate) an offense described
in 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
to--
(1) any act that occurred before, or, or after the date of the enactment
of this Act;
(2) all aliens who are required to establish admissibility on or after
such date; and
(3) all removal, deportation, or exclusion proceedings that are filed,
pending, or reopened, on or after such date.
SEC. 233. REMOVAL AND DENIAL OF BENEFITS TO TERRORIST ALIENS.
(a) Asylum- Section 208(b)(2)(A) (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 the alien is described in section 212(a)(3)(B)(i)(IX)
and the Attorney General or the Secretary of Homeland Security
determines that there are not reasonable grounds for regarding
the alien as a danger to the security of the United States; or'.
(b) Conforming Amendment- Section 212(a)(3)(B)(ii) (8 U.S.C. 1182(a)(3)(B)(ii))
is amended by striking `(VII) of clause (i) does' and inserting `(IX)
of clause (i) shall'.
(c) Cancellation of Removal- Section 240A(c)(4) (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'.
(d) Voluntary Departure- Section 240B(b)(1)(C) (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)'.
(e) Restriction on Removal- Section 241(b)(3)(B) (8 U.S.C. 1231(b)(3)(B))
is amended--
(1) by inserting `or the Secretary of Homeland Security' after `Attorney
General' each place such term 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 section
212(a)(3)(B)(i)(IX), the Secretary of Homeland Security or the
Attorney General determines that there are not reasonable grounds
for regarding the alien as a danger to the security of the United
States.'; and
(5) in the undesignated matter at the end, by striking `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.'.
SEC. 234. USE OF 1986 IRCA LEGALIZATION INFORMATION FOR NATIONAL SECURITY
PURPOSES.
(a) Special Agricultural Workers- Section 210(b)(6) (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 `Justice' and inserting `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 the discretion of the Secretary, or at the request of the Attorney
General, 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, in the discretion of the Secretary, use, publish, or release
information furnished under this section to support 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) (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 `Justice' and inserting `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 the discretion of the Secretary, 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, in the discretion of the Secretary, use, publish, or release
information furnished under this section to support any investigation,
case, or matter, or for any purpose, relating to terrorism, national
intelligence, or the national security.'; and
(4) in subparagraph (D), by striking `Service' and inserting `Department
of Homeland Security'.
SEC. 235. DEFINITION OF RACKETEERING ACTIVITY.
Section 1961(1) of title 18, United States Code, is amended by striking
`section 1542' and all that follows through `section 1546 (relating
to fraud and misuse of visas, permits, and other documents)' and inserting
`sections 1541 through 1548 (relating to passport, visa, and immigration
fraud)'.
SEC. 236. SANCTIONS FOR COUNTRIES THAT DELAY OR PREVENT REPATRIATION
OF THEIR NATIONALS.
Section 243(d) (8 U.S.C. 1253(d)) is amended to read as follows:
`(d) Discontinuing Granting Visas to Nationals of Countries That Deny
or Delay Accepting Aliens- Notwithstanding section 221(c), if the Secretary
of Homeland Security determines that the government of a foreign country
denies or unreasonably delays accepting aliens who are citizens, subjects,
nationals, or residents of that country after the Secretary asks whether
the government will accept an alien under this section, or after a determination
that the alien is inadmissible under paragraph (6) or (7) of section
212(a)--
`(1) the Secretary of State, upon notification from the Secretary
of Homeland Security of such denial or delay to accept aliens under
circumstances described in this section, shall order consular officers
in that foreign country to discontinue granting immigrant visas, nonimmigrant
visas, or both, to citizens, subjects, nationals, and residents of
that country until the Secretary of Homeland Security notifies the
Secretary of State that the country has accepted the aliens;
`(2) the Secretary of Homeland Security may deny admission to any
citizens, subjects, nationals, and residents from that country; and
`(3) the Secretary of Homeland Security may impose limitations, conditions,
or additional fees on the issuance of visas or travel from that country
and any other sanctions authorized by law.'.
SEC. 237. APPROPRIATE REMEDIES FOR IMMIGRATION LEGISLATION.
(a) Limitation on Civil Actions- No court may certify a class under
Rule 23 of the Federal Rules of Civil Procedure in any civil action
pertaining to the administration or enforcement of the immigration laws
of the United States that is filed after the date of the enactment of
this Act.
(b) Requirements for an Order Granting Prospective Relief Against the
Government-
(1) IN GENERAL- If a court determines that prospective relief should
be ordered against the Government in any civil action pertaining to
the administration or enforcement of the immigration laws of the United
States, the court shall--
(A) limit the relief to the minimum necessary to correct the violation
of law;
(B) adopt the least intrusive means to correct the violation of
law;
(C) minimize, to the greatest extent practicable, the adverse impact
on national security, border security, immigration administration
and enforcement, and public safety; and
(D) provide for the expiration of the relief on a specific date,
which allows for the minimum practical time needed to remedy the
violation.
(2) WRITTEN EXPLANATION- The requirements described in subsection
(1) shall be--
(A) discussed and explained in writing in the order granting prospective
relief; and
(B) sufficiently detailed to allow review by another court.
(3) EXPIRATION OF PRELIMINARY INJUNCTIVE RELIEF- Preliminary injunctive
relief shall automatically expire on the date that is 90 days after
the date on which such relief is entered, unless the court--
(A) makes the findings required under paragraph (1) for the entry
of permanent prospective relief; and
(B) makes the order final before expiration of such 90-day period.
(4) REQUIREMENTS FOR ORDER DENYING MOTION- This subsection shall apply
to any order denying the Government's motion to vacate, modify, dissolve,
or otherwise terminate an order granting prospective relief in any
civil action pertaining to the administration or enforcement of the
immigration laws of the United States.
(c) Procedure for Motion Affecting Order Granting Prospective Relief
Against the Government-
(1) IN GENERAL- A court shall promptly rule on the Government's motion
to vacate, modify, dissolve, or otherwise terminate an order granting
prospective relief in any civil action pertaining to the administration
or enforcement of the immigration laws of the United States.
(A) IN GENERAL- The Government's motion to vacate, modify, dissolve,
or otherwise terminate an order granting prospective relief made
in any civil action pertaining to the administration or enforcement
of the immigration laws of the United States shall automatically,
and without further order of the court, stay the order granting
prospective relief on the date that is 15 days after the date on
which such motion is filed unless the court previously has granted
or denied the Government's motion.
(B) DURATION OF AUTOMATIC STAY- An automatic stay under subparagraph
(A) shall continue until the court enters an order granting or denying
the Government's motion.
(C) POSTPONEMENT- The court, for good cause, may postpone an automatic
stay under subparagraph (A) for not longer than 15 days.
(D) AUTOMATIC STAYS DURING REMANDS FROM HIGHER COURTS- If a higher
court remands a decision on a motion subject to this section to
a lower court, the order granting prospective relief which is the
subject of the motion shall be automatically stayed until the district
court enters an order granting or denying the Government's motion.
(E) ORDERS BLOCKING AUTOMATIC STAYS- Any order staying, suspending,
delaying, or otherwise barring the effective date of the automatic
stay described in subparagraph (A), other than an order to postpone
the effective date of the automatic stays for not longer than 15
days under subparagraph (C), shall be--
(i) treated as an order refusing to vacate, modify, dissolve or
otherwise terminate an injunction; and
(ii) immediately appealable under section 1292(a)(1) of title
28, United States Code.
(A) NOT MORE THAN 45 DAYS- For purposes of this subsection, any
motion, which has been pending for not more than 45 days on the
date of the enactment of this Act, shall be treated as if it had
been filed on such date of enactment.
(B) MORE THAN 45 DAYS- Every motion to vacate, modify, dissolve
or otherwise terminate an order granting prospective relief in any
civil action pertaining to the administration or enforcement of
the immigration laws of the United States, which has been pending
for more than 45 days on the date of enactment of this Act, and
remains pending on the tenth day after such date of enactment, shall
result in an automatic stay, without further order of the court,
of the prospective relief that is the subject of any such motion.
An automatic stay pursuant to this subsection shall continue until
the court enters an order granting or denying the Government's motion.
No further postponement of any such automatic stay pursuant to this
subsection shall be available under paragraph (2)(C).
(d) Additional Rules Concerning Prospective Relief Affecting Expedited
Removal- -
(1) JUDICIAL REVIEW- Except as expressly provided under section 242(e)
of the Immigration and Nationality Act (8 U.S.C. 1252(e)) and notwithstanding
any other provision of law (statutory or nonstatutory), including
section 2241 of title 28, United States Code, any other habeas provision,
and sections 1361 and 1651 of such title, no court has jurisdiction
to grant or continue an order or part of an order granting prospective
relief if the order or part of the order interferes with, affects,
or impacts any determination pursuant to, or implementation of, section
235(b)(1) of such Act (8 U.S.C. 1225(b)(1)).
(2) GOVERNMENT MOTION- Upon the Government's filing of a motion to
vacate, modify, dissolve, or otherwise terminate an order granting
prospective relief in a civil action identified in subsection (b),
the court shall promptly--
(A) decide whether the court continues to have jurisdiction over
the matter; and
(B) vacate any order or part of an order granting prospective relief
that is not within the jurisdiction of the court.
(3) APPLICABILITY- Paragraphs (1) and (2) shall not apply to the extent
that an order granting prospective relief was entered before the date
of the enactment of this Act and such prospective relief is necessary
to remedy the violation of a right guaranteed by the United States
Constitution.
(1) CONSENT DECREES- In any civil action pertaining to the administration
or enforcement of the immigration laws of the United States, the court
may not enter, approve, or continue a consent decree that does not
comply with subsection (b).
(2) PRIVATE SETTLEMENT AGREEMENTS- Nothing in this section shall preclude
parties from entering into a private settlement agreement that does
not comply with subsection (b) if the terms of that agreement are
not subject to court enforcement other than reinstatement of the civil
proceedings that the agreement settled.
(f) Definitions- In this section:
(1) CONSENT DECREE- The term `consent decree'--
(A) means any relief entered by the court that is based in whole
or in part on the consent or acquiescence of the parties; and
(B) does not include private settlements.
(2) GOOD CAUSE- The term `good cause' does not include discovery or
congestion of the court's calendar.
(3) GOVERNMENT- The term `Government' means the United States, any
Federal department or agency, or any Federal agent or official acting
within the scope of official duties.
(4) PERMANENT RELIEF- The term `permanent relief' means relief issued
in connection with a final decision of a court.
(5) PRIVATE SETTLEMENT AGREEMENT- The term `private settlement agreement'
means an agreement entered into among the parties that is not subject
to judicial enforcement other than the reinstatement of the civil
action that the agreement settled.
(6) PROSPECTIVE RELIEF- The term `prospective relief' means temporary,
preliminary, or permanent relief other than compensatory monetary
damages.
(g) Expedited Proceedings- It shall be the duty of every court to advance
on the docket and to expedite the disposition of any civil action or
motion considered under this section.
(h) Application of Amendment- This section shall apply with respect
to all orders granting prospective relief in any civil action pertaining
to the administration or enforcement of the immigration laws of the
United States, whether such relief was ordered before, on, or after
the date of the enactment of this Act.
(i) Severability- If any provision of this section or the application
of such provision to any person or circumstance is found to be unconstitutional,
the remainder of this section and the application of the provisions
of this section to any person or circumstance shall not be affected
by such finding.
SEC. 238. REPORTING REQUIREMENTS.
(a) Clarifying Address Reporting Requirements- Section 265 (8 U.S.C.
1305) is amended--
(A) by striking `notify the Attorney General in writing' and inserting
`submit written or electronic notification to the Secretary of Homeland
Security, in a manner approved by the Secretary,';
(B) by striking `the Attorney General may require by regulation'
and inserting `the Secretary may require'; and
(C) by adding at the end the following: `If the alien is involved
in a proceeding before an immigration judge or in an administrative
appeal of such proceeding, the alien shall submit to the Attorney
General the alien's current address and a telephone number, if any,
at which the alien may be contacted.';
(2) in subsection (b), by striking `Attorney General' each place such
term appears and inserting `Secretary of Homeland Security';
(3) in subsection (c), by striking `given to such parent' and inserting
`given by such parent' and
(4) by adding at the end the following:
`(d)(1) Except as otherwise provided by the Secretary under paragraph
(2), an address provided by an alien under this section--
`(A) shall be alien's current residential mailing address; and
`(B) may not be a post office box, another non-residential mailing
address, or the address of an attorney, representative, labor organization,
or employer.
`(2) The Secretary may provide specific requirements with respect to--
`(A) designated classes of aliens and special circumstances, including
aliens who are employed at a remote location; and
`(B) the reporting of address information by aliens who are incarcerated
in a Federal, State, or local correctional facility.
`(3) An alien who is being detained by the Secretary under this Act--
`(A) is not required to report the alien's current address under this
section while the alien remains in detention; and
`(B) shall notify the Secretary of the alien's address under this
section at the time of the alien's release from detention.
`(e)(1) Notwithstanding any other provision of law, the Secretary may
provide for the appropriate coordination and cross-referencing of address
information provided by an alien under this section with other information
relating to the alien's address under other Federal programs, including--
`(A) any information pertaining to the alien, which is submitted in
any application, petition, or motion filed under this Act with the
Secretary of Homeland Security, the Secretary of State, or the Secretary
of Labor;
`(B) any information available to the Attorney General with respect
to an alien in a proceeding before an immigration judge or an administrative
appeal or judicial review of such proceeding;
`(C) any information collected with respect to nonimmigrant foreign
students or exchange program participants under section 641 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1372); and
`(D) any information collected from State or local correctional agencies
pursuant to the State Criminal Alien Assistance Program.
`(2) The Secretary may rely on the most recent address provided by the
alien under this section or section 264 to send to the alien any notice,
form, document, or other matter pertaining to Federal immigration laws,
including service of a notice to appear. The Attorney General and the
Secretary may rely on the most recent address provided by the alien
under section 239(a)(1)(F) to contact the alien about pending removal
proceedings.
`(3) The alien's provision of an address for any other purpose under
the Federal immigration laws does not excuse the alien's obligation
to submit timely notice of the alien's address to the Secretary under
this section (or to the Attorney General under section 239(a)(1)(F)
with respect to an alien in a proceeding before an immigration judge
or an administrative appeal of such proceeding).'.
(b) Conforming Changes With Respect to Registration Requirements- Chapter
7 of title II (8 U.S.C. 1301 et seq.) is amended--
(1) in section 262(c), by striking `Attorney General' and inserting
`Secretary of Homeland Security';
(2) in section 263(a), by striking `Attorney General' and inserting
`Secretary of Homeland Security'; and
(A) in subsections (a), (b), (c), and (d), by striking `Attorney
General' each place it appears and inserting `Secretary of Homeland
Security'; and
(i) by striking `Attorney General is authorized' and inserting
`Secretary of Homeland Security and Attorney General are authorized';
and
(ii) by striking `Attorney General or the Service' and inserting
`Secretary or the Attorney General'.
(c) Penalties- Section 266 (8 U.S.C. 1306) is amended--
(1) by striking subsection (b) and inserting the following:
`(b)(1) Any alien or any parent or legal guardian in the United States
of a minor alien who fails to notify the Secretary of Homeland Security
of the alien's current address in accordance with section 265 shall
be fined under title 18, United States Code, imprisoned for not more
than 6 months, or both.
`(2) Any alien who violates section 265 (regardless of whether the alien
is punished under paragraph (1)) and does not establish to the satisfaction
of the Secretary that such failure was reasonably excusable or was not
willful shall be taken into custody in connection with removal of the
alien. If the aliens has not been inspected or admitted, or if the alien
has failed on more than 1 occasion to submit notice of the alien's current
address as required under section 265, the aliens may be presumed to
be flight risk.
`(3) The Secretary or the Attorney General, in considering any form
of relief from removal which may be granted in the discretion of the
Secretary or the Attorney General, may take into consideration the alien's
failure to comply with section 265 as a separate negative factor. If
the aliens failed to comply with the requirements of section 265 after
becoming subject to a final order of removal, deportation, or exclusion,
the alien's failure shall be considered as a strongly negative factor
with respect to any discretionary motion for reopening or reconsideration
filed by the alien.';
(2) in subsection (c), by inserting `or a notice of current address'
before `containing statements'; and
(3) in subsections (c) and (d), by striking `Attorney General' each
place it appears and inserting `Secretary'.
(1) IN GENERAL- Except as provided under paragraph (2),the amendments
made by this section shall apply to proceedings initiated on or after
the date of the enactment of this Act.
(2) CONFORMING AND TECHNICAL AMENDMENTS- The amendments made by paragraphs
(1)(A), (1)(B), (2), and (3) of subsection (a) are effective as if
enacted on March 1, 2003.
SEC. 239. WITHHOLDING OF REMOVAL.
(a) In General- Section 241(b)(3) (8 U.S.C. 1231(b)(3)) is amended--
(1) in subparagraph (A), by adding at the end the following: `The
alien has the burden of proof to establish that the alien's life or
freedom would be threatened in such country, and that race, religion,
nationality, membership in a particular social group, or political
opinion would be at least 1 central reason for such threat.'; and
(2) in subparagraph (C), by striking `In determining whether an alien
has demonstrated that the alien's life or freedom would be threatened
for a reason described in subparagraph (A)' and inserting `For purposes
of this paragraph'.
(b) Effective Date- The amendments made by subsection (a) shall take
effect as if enacted on May 11, 2005, and shall apply to applications
for withholding of removal made on or after such date.
SEC. 240. PRECLUDING REFUGEES AND ASYLEES WHO HAVE BEEN CONVICTED
OF AGGRAVATED FELONIES FROM ADJUSTMENT TO LEGAL PERMANENT RESIDENT STATUS.
(a) In General- Section 209(c) (8 U.S.C. 1159(c)) is amended--
(1) by inserting `(1)' before `The provisions'; and
(2) by adding at the end the following:
`(2) An alien who is convicted of an aggravated felony is not eligible
for a waiver under paragraph (1) or for adjustment of status under this
section.'.
(b) Applicability- The amendment made by subsection (a) shall apply
with respect to--
(1) any act that occurred before, on, or after the date of the enactment
of this Act;
(2) all aliens who are required to establish admissibility on or after
such date; and
(3) all removal, deportation, or exclusion proceedings that are filed,
pending, or reopened, on or after such date.
SEC. 241. JUDICIAL REVIEW OF DISCRETIONARY DETERMINATIONS AND REMOVAL
ORDERS RELATING TO CRIMINAL ALIENS.
(a) Denial of Relief- Section 242(a)(2)(B) (8 U.S.C. 1252(a)(2)(B))
is amended to read as follows:
`(B) DENIAL OF DISCRETIONARY RELIEF AND CERTAIN OTHER RELIEF- Except
as provided under subparagraph (D), and notwithstanding any other
provision of law (statutory or nonstatutory), including section
2241 of title 28, any other habeas corpus provision, and sections
1361 and 1651 of such title, and regardless of whether the individual
determination, decision, or action is made in removal proceedings,
no court shall have jurisdiction to review--
`(i) an individual determination regarding the granting of status
or relief under section 212(h), 212(i), 240A, 240B, or 245; or
`(ii) any discretionary decision or action of the Attorney General
or the Secretary of Homeland Security under this Act or the regulations
promulgated under this Act, other than the granting of relief
under section 208(a), regardless of whether such decision or action
is guided or informed by standards or guidelines, regulatory,
statutory, or otherwise.'.
(b) Final Order of Removal- Section 242(a)(2)(C) (8 U.S.C. 1252(a)(2)(C))
is amended to read as follows:
`(C) Except as provided under subparagraph (D), and notwithstanding
any other provision of law (statutory or nonstatutory), including
section 2241 of title 28, any other habeas corpus provision, and
sections 1361 and 1651 of such title, no court shall have jurisdiction
to review any final order of removal (regardless of whether relief
or protection was denied on the basis of the alien's having committed
a criminal offense) against an alien who is removable for committing
a criminal offense under subparagraph (A)(iii), (B), (C), or (D)
of section 237(a)(2) or any offense under section 237(a)(2)(A)(ii)
for which both predicate offenses are, without regard to their date
of commission, described in section 237(a)(2)(A)(i).'.
SEC. 242. INFORMATION SHARING BETWEEN FEDERAL AND LOCAL LAW ENFORCEMENT
OFFICERS.
(a) Requirement for Information Sharing- No person or agency may prohibit
a Federal, State, or local government entity from acquiring information
regarding the immigration status of any individual if the entity seeking
such information has probable cause to believe that the individual is
removable or not lawfully present in the United States.
(b) Rule of Construction- Nothing in this section may be construed--
(1) to limit the acquisition of information as otherwise provided
by law; or
(2) to require a person to disclose information regarding an individual's
immigration status before receiving medical services or seeking law
enforcement assistance.
SEC. 243. FRAUD PREVENTION PROGRAM.
Notwithstanding any other provision of this Act, the head of each department
responsible for the administration of a program or authority to confer
an immigration benefit, relief, or status under this Act shall, subject
to available appropriations, develop an administrative program to prevent
fraud within or upon such program or authority. Such program shall provide
for fraud prevention training for the relevant administrative adjudicators
within the department and such other measures as the head of the department
may provide.
Subtitle B--Worksite Enforcement
SEC. 251. UNLAWFUL EMPLOYMENT OF ALIENS.
Section 274A (8 U.S.C. 1324a) is amended to read as follows:
`SEC. 274A. UNLAWFUL EMPLOYMENT OF ALIENS.
`(a) Making Employment of Unauthorized Aliens Unlawful-
`(1) IN GENERAL- It is unlawful for an employer--
`(A) to hire, or to recruit or refer for a fee, an alien for employment
in the United States knowing or with reckless disregard that the
alien is an unauthorized alien with respect to such employment;
or
`(B) to hire, or to recruit or refer for a fee, for employment in
the United States an individual without complying with the requirements
under subsections (c) and (d).
`(2) CONTINUING EMPLOYMENT- It is unlawful for an employer, after
hiring an alien for employment, to continue to employ the alien in
the United States knowing or with reckless disregard that the alien
is (or has become) an unauthorized alien with respect to such employment.
`(3) USE OF LABOR THROUGH CONTRACT-
`(A) IN GENERAL- For purposes of this section, an employer who uses
a contract, subcontract, or exchange to obtain the labor of an alien
in the United States knowing that the alien is an unauthorized alien
(as defined in subsection (b)(3)) with respect to performing such
labor, shall be considered to have hired the alien for employment
in the United States in violation of paragraph (1)(A).
`(B) RULEMAKING- The Secretary may promulgate regulations--
`(i) to require, for purposes of ensuring compliance with the
immigration laws of the United States, that an employer include
in a written contract, subcontract, or exchange an effective and
enforceable requirement that the contractor or subcontractor adhere
to such immigration laws, including use of EEVS;
`(ii) to establish procedures by which an employer may obtain
confirmation from the Secretary that the contractor or subcontractor
has registered with EEVS and is utilizing EEVS to verify its employees;
and
`(iii) to establish such other requirements for employers using
contractors or subcontractors as the Secretary determines to be
necessary to prevent knowing violations of this paragraph after
rulemaking pursuant to section 553 of title 5, United States Code.
`(C) GUIDELINES- The Secretary may issue guidelines to clarify and
supplement the regulations issued pursuant to subparagraph (B)(iii)
and broadly disseminate such guidelines, in coordination with the
Private Sector Office of the Department of Homeland Security.
`(A) IN GENERAL- Subject to subparagraphs (B) through (D), an employer
that establishes that it has complied in good faith with the requirements
of paragraphs (1) through (4) of subsection (c), pertaining to document
verification requirements, and subsection (d) has established an
affirmative defense that the employer has not violated paragraph
(1)(A) with respect to hiring, recruiting, or referral.
`(B) LIMITED EXCEPTION- A defense is established without a showing
of compliance with subsection (d) until such time as the Secretary
has required an employer to participate in EEVS or such participation
is permitted on a voluntary basis pursuant to subsection (d).
`(C) ADDITIONAL REQUIREMENTS- The employer may not establish a defense
unless the employer is in compliance with any additional requirements
that the Secretary may promulgate by regulation pursuant to subsections
(c), (d), and (k).
`(D) FAILURE TO COMPLY WITH STANDARDS- An employer is presumed to
have acted with knowledge or reckless disregard if the employer
fails to comply with written standards, procedures or instructions
issued by the Secretary. Such standards, procedures or instructions
shall be objective and verifiable.
`(5) PREEMPTION- This section preempts any State or local law that--
`(A) requires the use of EEVS in a manner that--
`(i) conflicts with any Federal policy, procedure, or timetable;
`(ii) requires employers to verify whether or not an individual
is authorized to work in the United States; or
`(iii) imposes a civil or criminal sanction (other than through
licensing or other similar laws) on a person that employs, or
recruits or refers for a fee for employment, any unauthorized
alien; and
`(B) requires, as a condition of conducting, continuing, or expanding
a business, a business entity--
`(i) provide, build, fund, or maintain a shelter, structure, or
designated area at or near the place of business of the entity
for use by--
`(I) any individual who is not an employee of the business entity
who enters or seeks to enter the property of the entity for
the purpose of seeking employment by the entity; or
`(II) any contractor, customer or other person over which the
business entity has no authority; or
`(ii) carry out any other activity to facilitate the employment
by others of--
`(I) any individual who is not an employee of the business entity
who enters or seeks to enter the property of the entity for
the purpose of seeking employment by the entity; or
`(II) any contractor, customer, or other person over which the
business entity has no authority.
`(b) Definitions- In this section:
`(1) CRITICAL INFRASTRUCTURE- The term `critical infrastructure' means
agencies and departments of the United States, States, their suppliers
or contractors, and any other employer whose employees have access
as part of their jobs to a government building, military base, nuclear
energy site, weapon site, airport, or seaport.
`(A) IN GENERAL- The term `employer'--
`(i) means any person or entity hiring, recruiting, or referring
for a fee an individual for employment in the United States; and
`(ii) includes the Federal Government and State, local, and tribal
governments.
`(B) FRANCHISED BUSINESSES- Franchised businesses that operate independently
do not constitute a single employer solely on the basis of sharing
a common brand.
`(3) UNAUTHORIZED ALIEN- The term `unauthorized alien' means, with
respect to the employment of an alien at a particular time, that the
alien is not at that time either--
`(A) an alien lawfully admitted for permanent residence; or
`(B) authorized to be so employed by the Secretary of Homeland Security
under this Act.
`(c) Document Verification Requirements-
`(1) IN GENERAL- Any employer hiring, recruiting, or referring for
a fee an individual for employment in the United States shall take
all reasonable steps to verify that the individual is authorized to
work in the United States, including the requirements under this subsection
and under subsection (d).
`(2) ATTESTATION AFTER EXAMINATION OF DOCUMENTATION-
`(i) REQUIREMENT- The employer shall attest, under penalty of
perjury and on a form prescribed by the Secretary, that the employer
has verified the identity and work authorization status of the
individual by examining--
`(I) a document described in subparagraph (B); or
`(II) a document described in subparagraph (C) and a document
described in subparagraph (D).
`(ii) FORM OF ATTESTATION- An attestation under clause (i) may
be manifested by a handwritten or electronic signature. An employer
has complied with the requirement of this paragraph with respect
to examination of documentation if the employer has followed applicable
regulations and any written procedures or instructions provided
by the Secretary and if a reasonable person would conclude that
the documentation is genuine and establishes the employee's identity
and authorization to work, taking into account any information
provided to the employer by the Secretary, including photographs.
`(B) DOCUMENTS ESTABLISHING BOTH EMPLOYMENT AUTHORIZATION AND IDENTITY-
A document described in this subparagraph is an individual's--
`(i) United States passport, or passport card issued pursuant
to the Secretary of State's authority under the first section
of the Act of July 3, 1926 (22 U.S.C. 211a);
`(ii) permanent resident card or other document issued by the
Secretary or Secretary of State to aliens authorized to work in
the United States, if the document--
`(I) contains a photograph of the individual, biometric data,
such as fingerprints, or such other personal identifying information
relating to the individual as the Secretary finds, by regulation,
sufficient for the purposes of this subsection;
`(II) is evidence of authorization for employment in the United
States; and
`(III) contains security features to make it resistant to tampering,
counterfeiting, and fraudulent use; or
`(iii) social security card (other than a card that specifies
on its face that the card is not valid for establishing employment
authorization in the United States) that bears a photograph and
meets the standards established under the Immigration Enforcement
and Border Security Act of 2007, upon the recommendation of the
Secretary of Homeland Security, in consultation with the Commissioner
of Social Security.
`(C) DOCUMENTS ESTABLISHING IDENTITY OF INDIVIDUAL- A document described
in this subparagraph includes--
`(i) an individual's driver's license or identity card issued
by a State, the Commonwealth of the Northern Mariana Islands,
or an outlying possession of the United States, provided that
the issuing State or entity has certified to the Secretary of
Homeland Security that it is in compliance with the minimum standards
required under section 202 of the REAL ID Act of 2005 (division
B of Public Law 109-13; 49 U.S.C. 30301 note) and implementing
regulations issued by the Secretary of Homeland Security once
those requirements become effective;
`(ii) an individual's driver's license or identity card issued
by a State, the Commonwealth of the Northern Mariana Islands,
or an outlying possession of the United States which is not compliant
under section 202 of the REAL ID Act of 2005 if--
`(I) the driver's license or identity card contains the individual's
photograph as well as the individual's name, date of birth,
gender, height, eye color and address;
`(II) the card has been approved for this purpose by the Secretary
in accordance with timetables and procedures established by
the Secretary pursuant to subsection (c)(1)(F); and
`(III) the card is presented by the individual and examined
by the employer in combination with a U.S. birth certificate,
or a Certificate of Naturalization, or a Certificate of Citizenship,
or such other documents as may be prescribed by the Secretary;
`(iii) for individuals under 16 years of age who are unable to
present a document listed in clause (i) or (ii), documentation
of personal identity of such other type as the Secretary finds
provides a reliable means of identification, provided it contains
security features to make it resistant to tampering, counterfeiting,
and fraudulent use; or
`(iv) other documentation evidencing identity as identified by
the Secretary in his discretion, with notice to the public provided
in the Federal Register, to be acceptable for purposes of this
section, provided that the document, including any electronic
security measures linked to the document, contains security features
that make the document as resistant to tampering, counterfeiting,
and fraudulent use as a document described in clause (i) or subparagraph
(B)(i) or (B)(ii).
`(D) DOCUMENTS EVIDENCING EMPLOYMENT AUTHORIZATION- The following
documents shall be accepted as evidence of employment authorization:
`(i) A social security account number card issued by the Commissioner
of Social Security (other than a card which specifies on its face
that the card is not valid for employment in the United States).
The Secretary, in consultation with the Commissioner of Social
Security, may require by publication of a notice in the Federal
Register that only a social security account number card described
in section 253 of the Immigration Enforcement and Border Security
Act of 2007 be accepted for this purpose.
`(ii) Any other documentation evidencing authorization of employment
in the United States which the Secretary declares, by publication
in the Federal Register, to be acceptable for purposes of this
section, provided that the document, including any electronic
security measures linked to the document contains security features
to make it resistant to tampering, counterfeiting, and fraudulent
use.
`(E) AUTHORITY TO PROHIBIT USE OF CERTAIN DOCUMENTS- If the Secretary
determines that any document or class of documents described in
subparagraph (B), (C), or (D) as establishing employment authorization
or identity does not reliably establish such authorization or identity
or is being used fraudulently to an unacceptable degree, the Secretary
shall, with notice to the public provided in the Federal Register,
prohibit or restrict the use of that document or class of documents
for purposes of this subsection.
`(3) INDIVIDUAL ATTESTATION OF EMPLOYMENT AUTHORIZATION- The individual
shall attest, under penalty of perjury on the form prescribed by the
Secretary, that the individual is a citizen or national of the United
States, an alien lawfully admitted for permanent residence, or an
alien who is authorized under this Act or by the Secretary to be hired,
recruited, or referred for such employment. Such attestation may be
manifested by either a handwritten or electronic signature.
`(4) RETENTION OF VERIFICATION FORM- After completing a form under
paragraphs (1) and (2), the employer shall retain a paper, microfiche,
microfilm, or electronic version of the form and make such version
available for inspection by officers of the Department of Homeland
Security (or persons designated by the Secretary), the Special Counsel
for Immigration-Related Unfair Employment Practices, or the Department
of Labor during a period beginning on the date of the hiring, recruiting,
or referral of the individual and ending--
`(A) in the case of the recruiting or referral for a fee (without
hiring) of an individual, 7 years after the date of the recruiting
or referral; and
`(B) in the case of the hiring of an individual--
`(i) 7 years after the date of such hiring; or
`(ii) 2 years after the date the individual's employment is terminated,
whichever is earlier.
`(5) COPYING OF DOCUMENTATION AND RECORDKEEPING REQUIRED-
`(A) IN GENERAL- Notwithstanding any other provision of law, the
employer shall copy all documents presented by an individual pursuant
to this subsection and shall retain a paper, microfiche, microfilm,
or electronic copy as prescribed in paragraph (4), but only (except
as otherwise permitted under law) for the purposes of complying
with the requirements of this subsection. Such copies shall reflect
the signatures of the employer and the employee and the date of
receipt.
`(B) SSA RECORDS- The employer shall also maintain records of Social
Security Administration correspondence regarding name and number
mismatches or no-matches and the steps taken to resolve such issues.
`(C) RESOLUTION OF IDENTITY- The employer shall maintain records
of all actions and copies of any correspondence or action taken
by the employer to clarify or resolve any issue that raises reasonable
doubt as to the validity of the alien's identity or work authorization.
`(D) OTHER RECORDS- The employer shall maintain such records as
prescribed in this subsection. The Secretary may prescribe the manner
of recordkeeping and may require that additional records be kept
or that additional documents be copied and maintained. The Secretary
may require that these documents be transmitted electronically,
and may develop automated capabilities to request such documents.
`(6) PENALTIES- An employer that fails to comply with any requirement
under this subsection shall be penalized under subsection (e)(4)(B).
`(7) NO AUTHORIZATION OF NATIONAL IDENTIFICATION CARDS- Nothing in
this section shall be construed to authorize, directly or indirectly,
the issuance or use of national identification cards or the establishment
of a national identification card.
`(8) ALL EMPLOYEES- The employer shall use the procedures for document
verification set forth in this paragraph for all employees without
regard to national origin or citizenship status.
`(d) Employment Eligibility Verification System-
`(1) IN GENERAL- The Secretary, in cooperation and consultation with
the Secretary of State, the Commissioner of Social Security, and the
States, shall implement and specify the procedures for EEVS. The participating
employers shall timely register with EEVS and shall use EEVS in accordance
with paragraph (5).
`(2) IMPLEMENTATION SCHEDULE-
`(A) As of the date of enactment of this section, the Secretary,
with notice to the public provided in the Federal Register, is authorized
to require any employer or industry which the Secretary determines
to be part of the critical infrastructure, a Federal contractor,
or directly related to the national security or homeland security
of the United States to participate in EEVS. This requirement may
be applied to both newly hired and current employees. The Secretary
shall notify employers not later than 30 days before such employers
are required to participate in EEVS pursuant to this subparagraph.
`(B) Not later than 6 months after the date of the enactment of
this section, the Secretary shall require additional employers or
industries to participate in EEVS. This subparagraph shall apply
to new employees hired, and current employees subject to reverification
because of expiring work authorization documentation or expiration
of immigration status, on or after the date on which the requirement
takes effect. The Secretary, by notice in the Federal Register,
shall designate these employers or industries, in the discretion
of the Secretary, based upon risks to critical infrastructure, national
security, immigration enforcement, or homeland security needs.
`(C) Not later than 18 months after the date of the enactment of
this section, the Secretary shall require all employers to participate
in EEVS with respect to newly hired employees and current employees
subject to reverification because of expiring work authorization
documentation or expiration of immigration status.
`(D) Not later than 3 years after the date of the enactment of this
section, all employers shall participate in EEVS with respect to
new employees, all employees whose identity and employment authorization
have not been previously verified through EEVS. The Secretary may
specify earlier dates for participation in EEVS, in the discretion
of the Secretary, for some or all classes of employer or employee.
`(E) The Secretary shall create the necessary systems and processes
to monitor the functioning of EEVS, including the volume of the
workflow, the speed of processing of queries, and the speed and
accuracy of responses. The Comptroller General of the United States
shall audit these systems and processes not later than 9 months
after the date of the enactment of this section and not later than
24 months after the date of the enactment of this section. The Comptroller
General shall report the results of the audits conducted under this
subparagraph to Congress.
`(3) PARTICIPATION IN EEVS- The Secretary may--
`(A) permit any employer that is not required to participate in
EEVS to participate on a voluntary basis; and
`(B) require any employer that is required to participate in EEVS
with respect to its newly hired employees also to do so with respect
to its current workforce if the Secretary has reasonable cause to
believe that the employer has engaged in any violation of the immigration
laws.
`(4) CONSEQUENCE OF FAILURE TO PARTICIPATE- If an employer fails to
comply with the requirements of EEVS with respect to an individual--
`(A) such failure shall be treated as a violation of subsection
(a)(1)(B) with respect to that individual; and
`(B) a rebuttable presumption is created that an employer has acted
with knowledge or reckless disregard if the employer is shown by
clear and convincing evidence to have materially failed to comply
with written standards, procedures, or instructions issued by the
Secretary, which shall be objective and verifiable.
`(5) PROCEDURES FOR PARTICIPANTS IN EEVS-
`(A) IN GENERAL- An employer participating in EEVS shall register
in EEVS and conform to the procedures under this paragraph in the
event of hiring, recruiting, or referring any individual for employment
in the United States.
`(B) REGISTRATION OF EMPLOYERS- The Secretary of Homeland Security,
through notice in the Federal Register, shall prescribe procedures
that employers shall follow to register in EEVS. In prescribing
these procedures, the Secretary may require employers to provide--
`(i) the name of the employer;
`(ii) the employer's employment identification number;
`(iii) the address of the employer;
`(iv) the name, position, and social security number of the employees
of the employer for whom EEVS is being accessed; and
`(v) such other information as the Secretary deems necessary to
ensure proper use and security of EEVS.
`(C) TRAINING- The Secretary shall require employers to undergo
such training as the Secretary determines to be necessary to ensure
proper use and security of EEVS. Such training shall be made available
electronically, if practicable.
`(D) PROVISION OF ADDITIONAL INFORMATION- Each prospective employee
shall provide to the employer, and the employer shall record in
such manner as the Secretary may specify--
`(i) the prospective employee's social security account number;
`(ii) if the prospective employee does not attest to being a national
of the United States under subsection (c)(2), such identification
or authorization number established by the Department of Homeland
Security as the Secretary of Homeland Security shall specify;
and
`(iii) such other information as the Secretary may require to
determine the identity and work authorization of the prospective
employee.
`(E) PRESENTATION OF DOCUMENTATION- The employer and each prospective
employee shall fulfill the requirements under subsection (c).
`(F) PRESENTATION OF BIOMETRICS- Employers who are enrolled in the
Voluntary Advanced Verification Program to Combat Identity Theft
established under section 255 of the Immigration Enforcement and
Border Security Act of 2007 shall, in addition to documentary evidence
of identity and work eligibility, electronically provide the fingerprints
of the prospective employee to the Secretary of Homeland Security.
`(6) SEEKING CONFIRMATION-
`(A) IN GENERAL- The employer shall use EEVS to provide the Secretary
of Homeland Security with all required information to obtain confirmation
of the identity and employment eligibility of any employee before
the date on which the individual is employed, recruited, or referred.
An employer may not make the starting date of an individual's employment
contingent on the receipt of a confirmation of the identity and
employment eligibility.
`(B) LIMITED WORK AUTHORIZATION- For reverification of an employee
with a limited period of work authorization, all required verification
procedures shall be completed not later than the date the employee's
work authorization expires.
`(C) NOTIFICATION- The Secretary shall provide, and the employer
shall utilize, as part of EEVS, a method of communicating notices
and requests for information or action on the part of the employer
with respect to expiring work authorization or status and other
matters. The Secretary shall provide a method of notifying employers
of a confirmation, nonconfirmation or a notice that further action
is required (referred to in this subsection as the `further action
notice'). The employer shall communicate to the prospective employee
that is the subject of the verification all information provided
to the employer by EEVS for communication to such prospective employee.
`(7) CONFIRMATION OR NONCONFIRMATION-
`(A) INITIAL RESPONSE- EEVS shall provide a confirmation, a nonconfirmation,
or a further action notice of an prospective employee's identity
and employment eligibility at the time of the inquiry, unless for
technological reasons or due to unforeseen circumstances, EEVS is
unable to provide such confirmation or further action notice. In
such situations, the system shall provide confirmation or further
action notice not later than 2 business days after the initial inquiry.
If providing confirmation or further action notice, EEVS shall provide
an appropriate code indicating such confirmation or such further
action notice.
`(B) CONFIRMATION UPON INITIAL INQUIRY- If the employer receives
an appropriate confirmation of an prospective employee's identity
and work eligibility under EEVS, the employer shall record the confirmation
in such manner as the Secretary may specify.
`(C) FURTHER ACTION NOTICE UPON INITIAL INQUIRY AND SECONDARY VERIFICATION-
`(i) FURTHER ACTION NOTICE- If the employer receives a further
action notice of a prospective employee's identity or work eligibility
under EEVS, the employer shall immediately inform the prospective
employee of the further action notice and any procedures specified
by the Secretary for addressing the further action notice. The
employee shall acknowledge in writing the receipt of the further
action notice from the employer.
`(ii) CONTEST- Not later than 5 business days after the date on
which a prospective employee is notified under this subparagraph,
the employee shall contact the appropriate agency to contest the
further action notice and, if required by the Secretary, appear
in person at the appropriate Federal or State agency to verify
the employee's identity and employment authorization. The Secretary,
in consultation with the Commissioner of Social Security and other
appropriate Federal and State officials, shall specify an available
secondary verification procedure to confirm the validity of information
provided and to provide a final confirmation or nonconfirmation.
An employee contesting a further action notice shall attest under
penalty of perjury to the employee's identity and employment authorization.
`(iii) NO CONTEST- If the prospective employee does not contest
the further action notice within the period specified in clause
(ii), a final nonconfirmation shall be issued and the employer
shall record the nonconfirmation in such manner as the Secretary
may specify.
`(iv) FINALITY- EEVS shall provide a final confirmation or nonconfirmation
not later than 10 business days after a prospective employee contests
the further action notice. If the employee is taking the steps
required by the Secretary and the agency that the employee has
contacted to resolve a further action notice, the Secretary shall
extend the period of investigation until the secondary verification
procedure allows the Secretary to provide a final confirmation
or nonconfirmation. If the employee fails to take the steps required
by the Secretary and the appropriate agency, a final nonconfirmation
may be issued to that employee.
`(v) REEXAMINATION- Nothing in this section may be construed to
prevent the Secretary from reexamining a case where a final confirmation
has been provided if subsequently received information indicates
that the individual may not be work authorized.
`(D) TERMINATION OF EMPLOYMENT- An employer may not terminate the
employment of an individual solely because of the failure of the
individual to have identity and work eligibility confirmed under
this section until a nonconfirmation becomes final. When final confirmation
or nonconfirmation is provided, the confirmation system shall provide
an appropriate code indicating such confirmation or nonconfirmation.
`(8) CONSEQUENCES OF NONCONFIRMATION-
`(A) TERMINATION OF CONTINUED EMPLOYMENT- If the employer has received
a final nonconfirmation regarding a prospective employee, the employer
shall terminate employment, recruitment, or referral of the employee.
`(B) CONTINUED EMPLOYMENT AFTER FINAL NONCONFIRMATION- If the employer
violates subparagraph (A), a rebuttable presumption is created that
the employer has violated paragraphs (1)(A) and (2) of subsection
(a).
`(C) EXCEPTION- Subparagraph (B) shall not apply in any prosecution
under section 274A(e)(1).
`(9) OBLIGATION TO RESPOND TO QUERIES AND ADDITIONAL INFORMATION-
`(A) IN GENERAL- Employers shall comply with requests from the Secretary
through EEVS for information, including queries concerning current
and former employees that relate to the functioning of EEVS, the
accuracy of the responses provided by EEVS, and any suspected fraud
or identity theft in the use of EEVS. Failure to comply with such
a request is a violation of subsection (a)(1)(B).
`(B) FURTHER ACTION- Individuals being verified through EEVS may
be required to take further action to address irregularities identified
in the documents relied upon for purposes of employment verification.
The employer shall communicate to the individual any such requirement
for further actions and shall record the date and manner of such
communication. The individual shall acknowledge in writing the receipt
of this communication from the employer. Failure to communicate
such a requirement is a violation of subsection (a)(1)(B).
`(C) ADDITIONAL REQUIREMENTS- The Secretary, with notice to the
public provided in the Federal Register, may implement, clarify,
and supplement the requirements of this paragraph to facilitate
the functioning of EEVS or to prevent fraud or identity theft in
the use of EEVS.
`(10) IMPERMISSIBLE USE OF EEVS-
`(A) An employer may not use EEVS to verify an individual before
extending to the individual an offer of employment.
`(B) An employer may not require an individual to verify the individual's
employment eligibility through EEVS as a condition of extending
to that individual an offer of employment. Nothing in this subparagraph
may be construed to prevent an employer from encouraging an employee
or a prospective employee from verifying the employee's or a prospective
employee's employment eligibility before obtaining employment pursuant
to paragraph (12).
`(C) An employer may not terminate an individual's employment solely
because that individual has been issued a further action notice.
`(D) An employer may not take the following actions solely because
an individual has been issued a further action notice:
`(i) Reduce the salary, bonuses, or other compensation due to
the employee.
`(ii) Suspend the employee without pay.
`(iii) Reduce the hours that the employee is required to work
if such reduction is accompanied by a reduction in salary, bonuses,
or other compensation due to the employee. An employer, with the
agreement of an employee, may provide the employee with reasonable
time off without pay in order to contest and resolve the further
action notice received by the employee.
`(iv) Deny the employee the training necessary to perform the
employment duties for which the employee has been hired.
`(E) An employer may not, in the course of utilizing the procedures
for document verification set forth in subsection (c), require that
a prospective employee present additional documents or different
documents than those prescribed under that section.
`(F) The Secretary of Homeland Security shall develop the necessary
policies and procedures to monitor the use of EEVS by employers
and their compliance with the requirements set forth in this section.
Employers shall comply with requests from the Secretary for information
related to any monitoring, audit or investigation undertaken pursuant
to this paragraph.
`(G) The Secretary of Homeland Security, in consultation with the
Secretary of Labor, shall establish and maintain a process by which
any employee (or any prospective employee who would otherwise have
been hired) who has reason to believe that an employer has violated
any of subparagraphs (A) through (E) may file a complaint against
the employer.
`(H) Any employer found to have violated any of subparagraphs (A)
through (E) shall pay a civil penalty in an amount not to exceed
$10,000 for each violation.
`(I) This paragraph is not intended to, and does not, create any
right, benefit, trust, or responsibility, whether substantive or
procedural, enforceable at law or equity by a party against the
United States, its departments, agencies, instrumentalities, entities,
officers, employees, or agents, or any person, nor does it create
any right of review in a judicial proceeding.
`(11) MODIFICATION OF REQUIREMENTS- If, based on a regular review
of EEVS and the document verification procedures to identify fraudulent
use and to assess the security of the documents being used to establish
identity or employment authorization, the Secretary determines that
modifications are necessary to ensure that EEVS accurately and reliably
determines the work authorization of employees while providing protection
against fraud and identity theft, the Secretary, in consultation with
the Commissioner of Social Security and after publishing a notice
the Federal Register, may modify--
`(A) the documents required to be presented to the employer;
`(B) the information required to be provided to EEVS by the employer;
and
`(C) the procedures required to be followed by employers with respect
to any aspect of EEVS.
`(12) SECURE SELF-VERIFICATION PROCEDURES- Subject to appropriate
safeguards to prevent misuse of EEVS, the Secretary, in consultation
with the Commissioner of Social Security, shall establish secure procedures
to permit an individual, seeking to verify the individual's employment
eligibility before obtaining or changing employment, to contact the
appropriate agency and, in a timely manner, correct or update the
information used by EEVS.
`(e) Protection From Liability for Actions Taken on the Basis of Information
Provided by EEVS- No employer participating in EEVS may be held liable
under any law for any employment-related action taken with respect to
the employee in good faith reliance on information provided through
EEVS.
`(f) Administrative Review-
`(A) IN GENERAL- An individual who receives a final nonconfirmation
notice may, not later than 15 days after the date that such notice
is received, file an administrative appeal of such final notice.
An individual who did not timely contest a further action notice
may not file an administrative appeal under this paragraph. Unless
the Secretary of Homeland Security, in consultation with the Commissioner
of Social Security, specifies otherwise, all administrative appeals
shall be filed in accordance with this paragraph.
`(B) NATIONALS OF THE UNITED STATES- An individual claiming to be
a national of the United States shall file the administrative appeal
with the Commissioner.
`(C) ALIENS- An individual claiming to be an alien authorized to
work in the United States shall file the administrative appeal with
the Secretary.
`(2) REVIEW FOR ERROR- The Secretary and the Commissioner shall each
develop procedures for resolving administrative appeals regarding
final nonconfirmations based upon the information that the individual
has provided, including any additional evidence that was not previously
considered. Appeals shall be resolved not later than 30 days after
the individual submits all evidence relevant to the appeal. The Secretary
and the Commissioner may, on a case by case basis for good cause,
extend this period in order to ensure accurate resolution of the appeal.
Administrative review under this subsection shall be limited to whether
the final nonconfirmation notice is supported by the weight of the
evidence.
`(3) ADMINISTRATIVE RELIEF- Relief available under this subsection
is limited to an administrative order upholding, reversing, modifying,
amending, or setting aside the final nonconfirmation notice.
`(4) DAMAGES, FEES AND COSTS- Money damages, fees, or costs may not
be awarded in the administrative review process, and no court shall
have jurisdiction to award any damages, fees or costs relating to
such administrative review under the Equal Access to Justice Act (Public
Law 96-481) or under any other law.
`(1) EXCLUSIVE PROCEDURE- Notwithstanding any other provision of law,
including sections 1361 and 1651 of title 28, United States Code,
no court shall have jurisdiction to consider any claim against the
United States, or any of its agencies, officers, or employees, challenging
or otherwise relating to a final nonconfirmation notice or to EEVS,
except as specifically provided under this subsection.
`(2) PETITION FOR REVIEW-
`(A) IN GENERAL- A petition for review of a denial of a final administrative
order upholding a final nonconfirmation notice shall be filed with
the United States Court of Appeals for the judicial circuit in which
the petitioner resided when the final nonconfirmation notice was
issued.
`(B) SCOPE AND STANDARD FOR REVIEW- The court of appeals shall decide
the petition only on the administrative record on which the final
nonconfirmation order is based. The burden shall be on the petitioner
to show that the administratively final nonconfirmation decision
was arbitrary, capricious, not supported by substantial evidence,
or otherwise not in accordance with law. Administrative findings
of fact are conclusive unless any reasonable adjudicator would be
compelled to reach a contrary conclusion.
`(3) EXHAUSTION OF ADMINISTRATIVE REMEDIES- A court may review an
administratively final order of a nonconfirmation notice only if the
petitioner has exhausted all administrative remedies available to
the petitioner as of right.
`(4) LIMIT ON INJUNCTIVE RELIEF- Regardless of the nature of the action
or claim or of the identity of the party or parties bringing the action,
no court (other than the Supreme Court) shall have jurisdiction or
authority to enjoin or restrain the operation of the provisions in
this section.
`(h) Management of Employment Eligibility Verification System-
`(1) IN GENERAL- The Secretary shall establish, manage, and modify
EEVS to--
`(A) respond to inquiries made by participating employers at any
time through the Internet concerning an individual's identity and
whether the individual is authorized to be employed;
`(B) maintain records of the inquiries that were made, of confirmations
provided (or not provided), and of the codes provided to employers
as evidence of their compliance with their obligations under EEVS;
and
`(C) provide information to, and request action by, employers and
individuals using the system, including notifying employers of the
expiration or other relevant change in an employee's employment
authorization, and directing an employer to convey to the employee
a request to contact the appropriate Federal or State agency.
`(2) DESIGN AND OPERATION OF SYSTEM- EEVS shall be designed and operated--
`(A) to maximize its reliability and ease of use by employers consistent
with insulating and protecting the privacy and security of the underlying
information;
`(B) to respond accurately to all inquiries made by employers on
whether individuals are authorized to be employed and to register
any times when the system is unable to receive inquiries;
`(C) to maintain appropriate administrative, technical, and physical
safeguards to prevent unauthorized disclosure of personal information;
`(D) to allow for auditing use of the system to detect fraud and
identify theft, and to preserve the security of the information
in EEVS, including--
`(i) the development and use of algorithms to detect potential
identity theft, such as multiple uses of the same identifying
information or documents;
`(ii) the development and use of algorithms to detect misuse of
EEVS by employers and employees;
`(iii) the development of capabilities to detect anomalies in
the use of EEVS that may indicate potential fraud or misuse of
EEVS;
`(iv) auditing documents and information submitted by potential
employees to employers, including authority to conduct interviews
with employers and employees;
`(E) to confirm identity and work authorization through verification
of records maintained by the Secretary, other Federal departments,
States, the Commonwealth of the Northern Mariana Islands, or an
outlying possession of the United States, as determined necessary
by the Secretary, including--
`(i) records maintained by the Social Security Administration
as specified in paragraph (4), including photographs and any other
biometric information as may be required;
`(ii) birth and death records maintained by vital statistics agencies
of any State or other United States jurisdiction;
`(iii) passport and visa records, including photographs, maintained
by the United States Department of State; and
`(iv) State driver's license or identity card information, including
photographs, maintained by the department of motor vehicles of
a State;
`(F) to electronically confirm the issuance of the employment authorization
or identity document and to display the digital photograph that
the issuer placed on the document so that the employer can compare
the photograph displayed to the photograph on the document presented
by the employee; and
`(G) if in exceptional cases a photograph is not available from
the issuer, to implement an alternative procedure, as specified
by the Secretary, for confirming the authenticity of a document
described in subparagraph (F).
`(3) RULEMAKING- The Secretary is authorized, with notice to the public
provided in the Federal Register, to issue regulations concerning
operational and technical aspects of EEVS and the efficiency, accuracy,
and security of EEVS.
`(4) ACCESS TO INFORMATION-
`(A) Notwithstanding any other provision of law, the Secretary of
Homeland Security shall have access to relevant records described
in paragraph (2)(E), for the purposes of preventing identity theft
and fraud in the use of EEVS and enforcing the provisions of this
section governing employment verification. A State or other non-Federal
jurisdiction that does not provide such access shall not be eligible
for any grant or other program of financial assistance administered
by the Secretary.
`(B) The Secretary, in consultation with the Commissioner of Social
Security and other appropriate Federal and State officials, shall
develop policies and procedures to ensure protection of the privacy
and security of personally identifiable information and identifiers
contained in the records accessed pursuant to this subsection and
subsection (e)(5)(A). The Secretary, in consultation with the Commissioner
and other appropriate Federal and State agencies, shall develop
and deploy appropriate privacy and security training for the Federal
and State employees accessing the records pursuant to this subsection
and subsection (e)(5)(A).
`(C) The Chief Privacy Officer of the Department of Homeland Security
shall conduct regular privacy audits of the policies and procedures
established under subparagraph (B), including any collection, use,
dissemination, and maintenance of personally identifiable information
and any associated information technology systems, as well as scope
of requests for this information. The Chief Privacy Officer shall
review the results of the audits and recommend to the Secretary
and the Privacy and Civil Liberties Oversight Board any changes
necessary to improve the privacy protections of the program.
`(5) RESPONSIBILITIES OF THE SECRETARY OF HOMELAND SECURITY-
`(A) As part of EEVS, the Secretary shall establish a reliable,
secure method, that--
`(i) compares the name, alien identification or authorization
number, or other relevant information provided in an inquiry against
such information maintained or accessed by the Secretary in order
to confirm (or not confirm) the validity of the information provided,
the correspondence of the name and number, whether the alien is
authorized to be employed in the United States (or, to the extent
that the Secretary determines to be feasible and appropriate,
whether the Secretary's records verify United States citizenship),
and such other information as the Secretary may prescribe; and
`(ii) displays the digital photograph described in paragraph (2)(F).
`(B) The Secretary shall have authority to prescribe when a confirmation,
nonconfirmation or further action notice shall be issued.
`(C) The Secretary shall perform regular audits under EEVS in accordance
with paragraph (2)(D) and shall utilize the information obtained
from such audits and any information obtained from the Commissioner
of Social Security pursuant to section 253 of the Immigration Enforcement
and Border Security Act of 2007, to improve immigration enforcement.
`(D) The Secretary shall make appropriate arrangements to allow
employers who are otherwise unable to access EEVS to use Federal
Government facilities or public facilities in order to utilize EEVS.
`(6) RESPONSIBILITIES OF THE SECRETARY OF STATE- As part of EEVS,
the Secretary of State shall provide to the Secretary access to passport
and visa information as needed to confirm that a passport or passport
card presented under subsection (c)(1)(B) belongs to the subject of
EEVS check, or that a passport or visa photograph matches an individual;
`(7) UPDATING INFORMATION- The Commissioner of Social Security, the
Secretary of Homeland Security, and the Secretary of State shall update
their information in a manner that promotes maximum accuracy and shall
provide a process for the prompt correction of erroneous information.
`(i) Limitation on Use of EEVS- Notwithstanding any other provision
of law, nothing in this section may be construed to permit any agency
of the United States Government to utilize any information, database,
or other records assembled under this section for any purpose other
than for the enforcement and administration of the immigration laws,
antiterrorism laws, or for enforcement of Federal criminal law related
to the functions of EEVS, including prohibitions on forgery, fraud and
identity theft.
`(j) Unauthorized Use or Disclosure of Information- Any employee of
the Department of Homeland Security or another Federal or State agency
who knowingly uses or discloses the information assembled under this
subsection for a purpose other than the purpose authorized under this
section shall pay a civil penalty for each such violation in an amount
not less than $5,000 and not to exceed $50,000.
`(k) Funds- In addition to any funds otherwise appropriated, the Secretary
of Homeland Security may use funds made available under subsections
(m) and (n) of section 286, for the maintenance and operation of EEVS,
which shall be considered an immigration adjudication service for purposes
of such subsections.
`(l) Scope- The employer shall use the procedures for EEVS specified
in this section for all employees without regard to national origin
or citizenship status.
`(m) Conforming Amendment- Title IV of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is repealed.
`(1) COMPLAINTS AND INVESTIGATIONS- The Secretary of Homeland Security
shall establish procedures--
`(A) for individuals and entities to file complaints respecting
potential violations of subsection (a) or (f)(1);
`(B) for the investigation of those complaints which the Secretary
determines should be investigated; and
`(C) for the investigation of such other violations of subsection
(a) or (f)(1) as the Secretary determines to be appropriate.
`(2) AUTHORITY IN INVESTIGATIONS-
`(A) IN GENERAL- In conducting investigations and hearings under
this subsection--
`(i) immigration officers shall have reasonable access to examine
evidence of any employer being investigated; and
`(ii) immigration officers designated by the Secretary may compel
by subpoena the attendance of witnesses and the production of
evidence at any designated place in an investigation or case under
this subsection.
`(B) ENFORCEMENT OF SUBPOENAS- In case of contumacy or refusal to
obey a subpoena lawfully issued under this paragraph, the Secretary
may request that the Attorney General apply in an appropriate district
court of the United States for an order requiring compliance with
such subpoena, and any failure to obey such order may be punished
by such court as a contempt of such court. Failure to cooperate
with such subpoena shall be subject to further penalties, including
further fines and the voiding of any mitigation of penalties or
termination of proceedings under paragraph (3)(B).
`(3) COMPLIANCE PROCEDURES-
`(A) PRE-PENALTY NOTICE- If the Secretary has reasonable cause to
believe that there has been a civil violation of this section and
determines that further proceedings are warranted, the Secretary
shall issue to the employer concerned a written notice of the Department's
intention to issue a claim for a monetary or other penalty. Such
prepenalty notice shall--
`(i) describe the violation;
`(ii) specify the laws and regulations allegedly violated;
`(iii) disclose the material facts which establish the alleged
violation; and
`(iv) inform such employer that he or she shall have a reasonable
opportunity to make representations as to why a claim for a monetary
or other penalty should not be imposed.
`(B) REMISSION OR MITIGATION OF PENALTIES- If any employer receives
written prepenalty notice of a fine or other penalty in accordance
with subparagraph (A), the employer may, not later than 15 days
after receiving such notice, file with the Secretary a petition
for the remission or mitigation of such fine or penalty, or a petition
for termination of the proceedings. The petition may include any
relevant evidence or proffer of evidence the employer wishes to
present, and shall be filed and considered in accordance with procedures
to be established by the Secretary. If the Secretary determines
that such fine, penalty, or forfeiture was incurred erroneously,
or that mitigating circumstances as to justify the remission or
mitigation of such fine or penalty, the Secretary may remit or mitigate
the same upon such terms and conditions as the Secretary considers
reasonable and just, or order termination of any related proceedings.
Such mitigating circumstances may include good faith compliance
and participation in, or agreement to participate in, EEVS, if not
otherwise required. This subparagraph shall not apply to an employer
that has or is engaged in a pattern or practice of violating paragraph
(1)(A), (1)(B), or (2) of subsection (a) or of any other requirement
under this section.
`(C) PENALTY CLAIM- After considering any evidence and representations
offered by the employer pursuant to subparagraph (B), the Secretary
shall determine whether there was a violation and promptly issue
a written final determination setting forth the findings of fact
and conclusions of law on which the determination is based. If the
Secretary determines that there was a violation, the Secretary shall
issue the final determination with a written penalty claim. The
penalty claim shall specify all charges in the information provided
under clauses (i) through (iii) of subparagraph (A) and any mitigation
or remission of the penalty that the Secretary determines to be
appropriate.
`(A) HIRING OR CONTINUING TO EMPLOY UNAUTHORIZED ALIENS- Any employer
that violates any provision under paragraph (1)(A) or (2) of subsection
(a)--
`(i) shall pay a civil penalty of $5,000 for each unauthorized
alien with respect to which such violation occurred;
`(ii) if an employer has previously been fined under subsection
(d)(4)(A), shall pay a civil penalty of $10,000 for each unauthorized
alien with respect to which such violation occurred;
`(iii) if an employer has previously been fined more than once
under subsection (d)(4)(A), shall pay a civil penalty of $25,000
for each unauthorized alien with respect to which such violation
occurred in addition to any penalties previously assessed if the
employer failed to comply with a previously issued and final order
under this section;
`(iv) if an employer has previously been fined more than twice
under subsection (d)(4)(A), shall pay a civil penalty of $75,000
for each alien with respect to which such violation occurred;
and
`(v) shall, in addition to any penalties assessed under clauses
(i) through (iv), be fined $75,000 for each violation if the employer
failed to comply with a previously issued and final order under
this section.
`(B) RECORDKEEPING OR VERIFICATION PRACTICES- Any employer that
violates or fails to comply with any requirement under subsection
(b), (c), or (d)--
`(i) shall pay a civil penalty of $1,000 for each such violation;
`(ii) if an employer has previously been fined under subsection
(d)(4)(B), shall pay a civil penalty of $2,000 for each such violation;
`(iii) if an employer has previously been fined more than once
under subsection (d)(4)(B), shall pay a civil penalty of $5,000
for each such violation in addition to any penalties previously
assessed if the employer failed to comply with a previously issued
and final order under this section;
`(iv) if an employer has previously been fined more than twice
under subsection (d)(4)(B), shall pay a civil penalty of $15,000
for each violation; and
`(v) shall, in addition to any penalties previously assessed,
be fined $15,000 for each such violation if the employer failed
to comply with a previously issued and final order under this
section.
`(C) OTHER PENALTIES- The Secretary may impose additional penalties
for violations, including cease and desist orders, specially designed
compliance plans to prevent further violations, suspended fines
to take effect in the event of a further violation, and in appropriate
cases, the remedy provided by subsection (f)(2). All penalties in
this section may be adjusted every 4 years to account for inflation
as provided by law.
`(D) REDUCTION OR MITIGATION OF PENALTIES- The Secretary may reduce
or mitigate penalties imposed upon employers, based upon factors
including the employer's hiring volume, compliance history, good-faith
implementation of a compliance program, participation in a temporary
worker program, and voluntary disclosure of violations of this subsection
to the Secretary.
`(5) ORDER OF INTERNAL REVIEW AND CERTIFICATION OF COMPLIANCE- If
the Secretary has reasonable cause to believe that an employer has
failed to comply with this section, the Secretary is authorized, at
any time, to require that the employer certify that it is in compliance
with this section, or has instituted a program to come into compliance.
Not later than 60 days after receiving a notice from the Secretary
requiring such a certification, the employer's chief executive officer
or similar official with responsibility for, and authority to bind
the company on, all hiring and immigration compliance notices shall
certify under penalty of perjury that the employer is in conformance
with the requirements of paragraphs (1) through (4) of subsection
(c), pertaining to document verification requirements, and with any
additional requirements that the Secretary may promulgate by regulation
pursuant to subsections (c) and (k), or that the employer has instituted
a program to come into compliance with these requirements. At the
request of the employer, the Secretary may extend the 60-day deadline
for good cause. The Secretary may publish in the Federal Register
standards or methods for such certification, require specific recordkeeping
practices with respect to such certifications, and audit such records
at any time. The authority granted under this paragraph may not be
construed to diminish or qualify any other penalty provided under
this section.
`(A) IN GENERAL- Notwithstanding any other provision of law, including
sections 1361 and 1651 of title 28, United States Code, no court
shall have jurisdiction to consider a final determination or penalty
claim issued under paragraph (3)(C), except as specifically provided
under this paragraph. Except as specifically provided in this paragraph,
judicial review of a final determination under paragraph (4) shall
be governed exclusively under chapter 158 of such title 28. The
filing of a petition under this paragraph shall stay the Secretary's
determination until entry of judgment by the court. The Secretary
may require that petitioner provide, prior to filing for review,
security for payment of fines and penalties through bond or other
guarantee of payment acceptable to the Secretary.
`(B) REQUIREMENTS FOR REVIEW OF A FINAL DETERMINATION- With respect
to judicial review of a final determination or penalty claim issued
under paragraph (3)(C), the following requirements shall apply:
`(i) DEADLINE- The petition for review shall be filed not later
than 30 days after the date of the final determination or penalty
claim issued under paragraph (3)(C).
`(ii) VENUE AND FORMS- The petition for review shall be filed
with the court of appeals for the judicial circuit wherein the
employer resided when the final determination or penalty claim
was issued. The record and briefs do not have to be printed. The
court of appeals shall review the proceeding on a typewritten
record and on typewritten briefs.
`(iii) SERVICE- The respondent is either the Secretary of Homeland
Security or the Commissioner of Social Security, but not both,
depending upon who issued (or affirmed) the final nonconfirmation
notice. In addition to serving the respondent, the petitioner
must also serve the Attorney General.
`(iv) Petitioner's BRIEF- The petitioner shall serve and file
a brief in connection with a petition for judicial review not
later than 40 days after the date on which the administrative
record is available, and may serve and file a reply brief not
later than 14 days after service of the brief of the respondent,
and the court may not extend these deadlines, except for good
cause shown. If a petitioner fails to file a brief within the
time provided in this paragraph, the court shall dismiss the appeal
unless a manifest injustice would result.
`(v) SCOPE AND STANDARD FOR REVIEW- The court of appeals shall
decide the petition only on the administrative record on which
the final determination is based. The burden shall be on the petitioner
to show that the final determination was arbitrary, capricious,
not supported by substantial evidence, or otherwise not in accordance
with law. Administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the
contrary.
`(C) EXHAUSTION OF ADMINISTRATIVE REMEDIES- A court may review a
final determination under paragraph (3)(C) only if--
`(i) the petitioner has exhausted all administrative remedies
available to the petitioner as of right; and
`(ii) another court has not decided the validity of the order,
unless the reviewing court finds that the petition presents grounds
that could not have been presented in the prior judicial proceeding
or that the remedy provided by the prior proceeding was inadequate
or ineffective to test the validity of the order.
`(D) LIMIT ON INJUNCTIVE RELIEF- Regardless of the nature of the
action or claim or of the identity of the party or parties bringing
the action, no court, except for the Supreme Court, shall have jurisdiction
or authority to enjoin or restrain the operation of the provisions
in this section, other than with respect to the application of such
provisions to an individual petitioner.
`(7) ENFORCEMENT OF ORDERS- If an employer fails to comply with a
final determination issued against such employer under this subsection,
and the final determination is not subject to review under paragraph
(6), the Attorney General may file suit to enforce compliance with
the final determination in any appropriate district court of the United
States. In any such suit, the validity and appropriateness of the
final determination shall not be subject to review.
`(A) CREATION OF LIEN- If any employer is held liable for a fee
or penalty under this section, neglects or refuses to pay such liability,
and fails to file a petition for review under paragraph (6), such
liability is a lien in favor of the United States on all property
and rights to property of such person as if the liability of such
person were a liability for a tax assessed under the Internal Revenue
Code of 1986. If a petition for review is filed under paragraph
(6), the lien shall arise upon the entry of a final judgment by
the court and shall continue for 20 years or until the liability
is satisfied, remitted, set aside, or terminated.
`(B) EFFECT OF FILING NOTICE OF LIEN- Upon filing a notice of lien
in the manner in which a notice of tax lien would be filed under
paragraphs (1) and (2) of section 6323(f) of the Internal Revenue
Code of 1986, the lien shall be valid against any purchaser, holder
of a security interest, mechanic's lien or judgment lien creditor,
except with respect to properties or transactions specified in subsection
(b), (c), or (d) of such section 6323 for which a notice of tax
lien properly filed on the same date would not be valid. The notice
of lien shall be considered a notice of lien for taxes payable to
the United States for the purpose of any State or local law providing
for the filing of a notice of a tax lien. A notice of lien that
is registered, recorded, docketed, or indexed in accordance with
the rules and requirements relating to judgments of the courts of
the State where the notice of lien is registered, recorded, docketed,
or indexed shall be considered for all purposes as the filing prescribed
by this section. The provisions of section 3201(e) of title 28,
United States Code, shall apply to liens filed under this section.
`(C) ENFORCEMENT OF A LIEN- A lien obtained through this process
shall be considered a debt (as defined in section 3002 of title
28, United States Code) and enforceable pursuant to subchapter C
of chapter 176 of title 28, United States Code (commonly known as
the Federal Debt Collection Procedures Act).
`(o) Criminal Penalties and Injunctions for Pattern or Practice Violations-
`(1) CRIMINAL PENALTY- Any employer that engages in a pattern or practice
of knowing violations of paragraph (1)(A) or (2) of subsection (a)
shall be fined not more than $75,000 for each unauthorized alien with
respect to whom such a violation occurs, imprisoned for not more than
6 months for the entire pattern or practice, or both.
`(2) ENJOINING OF PATTERN OR PRACTICE VIOLATIONS- If the Secretary
of Homeland Security or the Attorney General has reasonable cause
to believe that an employer is engaged in a pattern or practice of
employment, recruitment, or referral in violation of paragraph (1)(A)
or (2) of subsection (a), the Attorney General may bring a civil action
in the appropriate district court of the United States requesting
such relief, including a permanent or temporary injunction, restraining
order, or other order against the employer, as the Secretary determines
to be necessary.
`(p) Prohibition of Indemnity Bonds-
`(1) PROHIBITION- It is unlawful for an employer, in the hiring, recruiting,
or referring for employment of any individual, to require the individual
to post a bond or security, to pay or agree to pay an amount, or otherwise
to provide a financial guarantee or indemnity, against any potential
liability arising under this section relating to such hiring, recruiting,
or referring of the individual.
`(2) CIVIL PENALTY- If the Secretary determines, after notice and
opportunity for mitigation of the monetary penalty under subsection
(d), that an employer has violated paragraph (1), the employer shall
be subject to a civil penalty of $10,000 for each violation and to
an administrative order requiring the return of any amounts received
in violation of such paragraph to the employee or, if the employee
cannot be located, to the general fund of the Treasury.
`(q) Government Contracts-
`(A) IN GENERAL- If the Secretary determines that an employer who
does not hold Federal contracts, grants, or cooperative agreements
is a repeat violator of this section or is convicted of a crime
under this section, the employer shall be subject to debarment from
the receipt of Federal contracts, grants, or cooperative agreements
for a period not to exceed 2 years in accordance with the procedures
and standards prescribed by the Federal Acquisition Regulations.
`(B) NOTIFICATION; LISTING- The Secretary or the Attorney General
shall notify the Administrator of General Services of any such debarment,
and the Administrator of General Services shall list the employer
on the List of Parties Excluded from Federal Procurement and Nonprocurement
Programs for the period of the debarment.
`(C) WAIVER; LIMITATION- The Administrator of General Services,
in consultation with the Secretary and Attorney General, may waive
operation of this subsection or may limit the duration or scope
of the debarment.
`(D) RULEMAKING- The Secretary shall promulgate a regulation, in
accordance with the requirements under section 553 of title 5, United
States Code, that defines the term `repeat violator' for purposes
of this subsection.
`(2) CONTRACTORS AND RECIPIENTS-
`(A) IN GENERAL- If the Secretary determines that an employer who
holds Federal contracts, grants, or cooperative agreements is a
repeat violator of this section or is convicted of a crime under
this section, the employer shall be subject to debarment from the
receipt of Federal contracts, grants, or cooperative agreements
for a period not to exceed 2 years in accordance with the procedures
and standards prescribed by the Federal Acquisition Regulations.
`(B) NOTIFICATION- Before such debarment, the Secretary, in cooperation
with the Administrator of General Services, shall notify all agencies
holding contracts, grants, or cooperative agreements with the employer
of the proceedings to debar the employer from the receipt of new
Federal contracts, grants, or cooperative agreements for a period
not to exceed 2 years.
`(C) WAIVER; LIMITATION- After consideration of the views of agencies
holding contracts, grants or cooperative agreements with the employer,
the Secretary may, instead of debarring the employer from receiving
new Federal contracts, grants, or cooperative agreements for a period
not to exceed 2 years, waive operation of this subsection, limit
the duration or scope of the proposed debarment, or may refer to
an appropriate lead agency the decision of whether to seek debarment
of the employer, for what duration, and under what scope in accordance
with the procedures and standards prescribed by the Federal Acquisition
Regulation.
`(D) REVIEW- Any proposed debarment predicated on an administrative
determination of liability for civil penalty by the Secretary or
the Attorney General shall not be reviewable in any debarment proceeding.
`(3) SUSPENSION- Indictments for violations of this section or adequate
evidence of actions that could form the basis for debarment under
this subsection shall be considered a cause for suspension under the
procedures and standards for suspension prescribed by the Federal
Acquisition Regulation.
`(4) INADVERTENT VIOLATIONS- Inadvertent violations of recordkeeping
or verification requirements, in the absence of any other violations
of this section, shall not be a basis for determining that an employer
is a repeat violator for purposes of this subsection.
`(r) Documentation- In providing documentation or endorsement of authorization
of aliens (other than aliens lawfully admitted for permanent residence)
authorized to be employed in the United States, the Secretary shall
provide that any limitations with respect to the period or type of employment
or employer shall be conspicuously stated on the documentation or endorsement.
`(s) Deposit of Amounts Received- Except as otherwise specified, civil
penalties collected under this section shall be deposited by the Secretary
into the general fund of the Treasury.
`(1) IN GENERAL- For the purpose of this subsection, a no match notice
is written notice from the Social Security Administration to an employer
reporting earnings on a Form W-2 that employees' names or corresponding
social security account numbers fail to match SSA records. The Secretary,
in consultation with the Commissioner of Social Security, is authorized
to establish by regulation requirements for verifying the identity
and work authorization of employees who are the subject of no-match
notices.
`(2) RULEMAKING- The Secretary shall establish, by regulation, a reasonable
period during which an employer shall allow an employee who is subject
to a no match notice to resolve the no match notice with no adverse
employment consequences to the employee. The Secretary may establish,
by regulation, penalties for noncompliance.
`(u) Challenges to Validity-
`(1) IN GENERAL- Any right, benefit, or claim not otherwise waived
or limited under this section is available in an action instituted
in the United States District Court for the District of Columbia.
Such action shall be limited to determinations of--
`(A) whether this section, or any regulation issued to implement
this section, violates the Constitution of the United States; or
`(B) whether such a regulation issued by or under the authority
of the Secretary to implement this section, is contrary to applicable
provisions of this section or was issued in violation of chapter
5 of title 5, United States Code.
`(2) DEADLINES FOR BRINGING ACTIONS- Any action instituted under this
paragraph shall be filed not later than 90 days after the date the
challenged section or regulation described in subparagraph (A) or
(B) of paragraph (1) is first implemented.
`(3) CLASS ACTIONS- The court may not certify a class under Rule 23
of the Federal Rules of Civil Procedure in any action under this section.
`(4) RULE OF CONSTRUCTION- In determining whether the Secretary's
interpretation regarding any provision of this section is contrary
to law, a court shall accord to such interpretation the maximum deference
permissible under the Constitution.
`(5) NO ATTORNEYS' FEES- Notwithstanding any other provision of law,
the court shall not award fees or other expenses to any person or
entity based upon any action relating to this section that is brought
under this subsection.
`(v) Notification of Expiration of Admission- Notwithstanding any other
provision of this Act, an employer or educational institution shall
notify an alien in writing of the expiration of the alien's period of
authorized admission not later than 14 days before such eligibility
expires.'.
SEC. 252. DISCLOSURE OF CERTAIN TAXPAYER INFORMATION TO ASSIST IN
IMMIGRATION ENFORCEMENT.
(a) Disclosure of Certain Taxpayer Identity Information-
(1) IN GENERAL- Section 6103(l) of the Internal Revenue Code of 1986
is amended by adding at the end the following new paragraph:
`(21) DISCLOSURE OF CERTAIN TAXPAYER IDENTITY INFORMATION BY SOCIAL
SECURITY ADMINISTRATION TO DEPARTMENT OF HOMELAND SECURITY-
`(A) IN GENERAL- From taxpayer identity information or other information
which has been disclosed or otherwise made available to the Social
Security Administration and upon written request by the Secretary
of Homeland Security (referred to in this paragraph as the `Secretary'),
the Commissioner of Social Security shall disclose directly to officers,
employees, and contractors of the Department of Homeland Security--
`(i) the taxpayer identity information of each person who has
filed an information return required by reason of section 6051
after calendar year 2005 and before the date specified in subparagraph
(D) which contains--
`(I) 1 (or any greater number the Secretary shall request) taxpayer
identifying number, name, and address of any employee (within
the meaning of such section) that did not match the records
maintained by the Commissioner of Social Security, or
`(II) 2 (or any greater number the Secretary shall request)
names, and addresses of employees (within the meaning of such
section), with the same taxpayer identifying number,
and the taxpayer identity of each such employee, and
`(ii) the taxpayer identity of each person who has filed an information
return required by reason of section 6051 after calendar year
2005 and before the date specified in subparagraph (D) which contains
the taxpayer identifying number (assigned under section 6109)
of an employee (within the meaning of section 6051)--
`(I) who is under the age of 14 (or any lesser age the Secretary
shall request), according to the records maintained by the Commissioner
of Social Security,
`(II) whose date of death, according to the records so maintained,
occurred in a calendar year preceding the calendar year for
which the information return was filed,
`(III) whose taxpayer identifying number is contained in more
than one (or any greater number the Secretary shall req
