S. 2463 - Alien Smuggling and Terrorism Prevention Act of 2007

S 2463

110th CONGRESS
1st Session

S. 2463

To amend the Immigration and Nationality Act and title 18, United States Code, to combat the crime of alien smuggling and related activities, and for other purposes.

IN THE SENATE OF THE UNITED STATES

December 13, 2007

Mr. BAYH (for himself and Mr. GRAHAM) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act and title 18, United States Code, to combat the crime of alien smuggling and related activities, 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.

This Act may be cited as the `Alien Smuggling and Terrorism Prevention Act of 2007'.

SEC. 2. FINDINGS.

Congress makes the following findings:

(1) Alien smuggling by land, air, and sea is a transnational crime that--

(A) violates the integrity of United States borders;

(B) compromises the sovereignty of the United States;

(D) contravenes the rule of law.

(2) Aggressive enforcement activity against alien smuggling is needed to protect the borders of the United States and to ensure our Nation's security. The border security and antismuggling efforts of the men and women on the Nation's front line of defense are commendable. Special recognition should be given to the Border Patrol, the Coast Guard, United States Customs and Border Protection, United States Immigration and Customs Enforcement, and the Federal Bureau of Investigation.

(3) The law enforcement community must be given the statutory tools necessary to address this security threat. The United States Attorneys Offices and the Domestic Security Section of the Criminal Division cannot prosecute these cases successfully without effective alien smuggling statutes.

(4) Alien smuggling has a destabilizing effect on border communities. State and local law enforcement, medical personnel, social service providers, and the faith community play important roles in combating smuggling and responding to its effects.

(5) Existing penalties for alien smuggling are insufficient to provide appropriate punishment for alien smugglers.

(6) Existing alien smuggling laws often fail to reach the conduct of alien smugglers, transporters, recruiters, guides, and boat captains.

(7) Existing laws concerning failure to heave to are insufficient to appropriately punish boat operators and crew who engage in the reckless transportation of aliens on the high seas and seek to evade capture.

(8) Much of the conduct in alien smuggling rings occurs outside of the United States. Extraterritorial jurisdiction is needed to ensure that smuggling rings can be brought to justice for recruiting, sending, and facilitating the movement of those who seek to enter the United States without lawful authority.

(9) Alien smuggling can include unsafe or recklessly dangerous conditions that expose individuals to particularly high risk of injury or death.

SEC. 3. CHECKS AGAINST TERRORIST WATCH LIST.

The Secretary of Homeland Security shall, to the extent practicable, check, against all available terrorist watch lists, alien smugglers and smuggled individuals who are interdicted at the land, air, and sea borders of the United States.

SEC. 4. STRENGTHENING PROSECUTION AND PUNISHMENT OF ALIEN SMUGGLERS.

Section 274(a) of the Immigration and Nationality Act (8 U.S.C. 1324(a)) is amended--

(1) by amending the subsection heading to read as follows: `Bringing in, Harboring, and Smuggling of Unlawful and Terrorist Aliens- ';

(2) by amending paragraph (1) to read as follows:

`(1)(A) A person shall be subject to the penalties described in subparagraph (D) if the person, knowing or in reckless disregard of the fact that an individual is an alien who lacks lawful authority to come to, enter, or reside in the United States, knowingly--

`(i) brings that individual to the United States, regardless of any future official action which may be taken with respect to that individual;

`(ii) recruits, encourages, or induces that individual to come to, enter, or reside in the United States;

`(iii) transports or moves that individual in the United States, in furtherance of that individual's unlawful presence; or

`(iv) harbors, conceals, or shields from detection that individual in any place in the United States, including any building or means of transportation.

`(B) A person shall be subject to the penalties described in subparagraph (D) if the person, knowing that an individual is an alien, brings that individual to the United States at a place other than a designated port of entry or a place designated by the Secretary of Homeland Security, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to that individual.

`(C) A person who attempts or conspires to commit any offense described subparagraph (A) or (B) shall be subject to the same penalties as a person who completes the offense.

`(D) A person who commits any offense described in this paragraph shall, for each individual in respect to whom such offense occurs--

`(i) be fined under title 18, United States Code, imprisoned not more than 5 years, or both if the offense is not described in any of clauses (ii) through (vii);

`(ii) be fined under such title, imprisoned not more than 1 year, or both, if the offense involved the transit of the defendant's spouse, child, sibling, parent, grandparent, or niece or nephew and is not described in any of clauses (iii) through (vi);

`(iii) be fined under such title, imprisoned not more than 10 years, or both if the violation is described in clauses (ii), (iii), or (iv) of subparagraph (A) or subparagraph (B) and was committed for the purpose of profit, commercial advantage, or private financial gain;

`(iv) be fined under such title and imprisoned, in the case of a first or second violation, for a term of not fewer than 3 years and not more than 10 years, and for any subsequent violation, for a term of not fewer than 5 years and not more than 15 years, if the offense--

`(I) is described in subparagraph (A)(i) and was committed for the purpose of profit, commercial advantage, or private financial gain; or

`(II) was committed with the intent or reason to believe that the individual unlawfully brought into the United States will commit an offense against the United States or any State that is punishable by imprisonment for more than 1 year;

`(v) be fined under such title, imprisoned not more than 20 years, or both if the offense--

`(I) results in serious bodily injury (as defined in section 1365 of title 18, United States Code); or

`(II) places in jeopardy the life of any person;

`(vi) be fined under such title, imprisoned not more than 30 years, or both if the offense involved an individual who the person knew was engaged in or intended to engage in terrorist activity (as defined in section 212(a)(3)(B));

`(vii) be fined under such title, imprisoned for any term of years or for life, or both if the offense involves kidnaping, an attempt to kidnap, conduct required for aggravated sexual abuse (as defined in section 2241 without regard to where it takes place), an attempt to commit such abuse, or an attempt to kill; and

`(viii) fined under such title, punished by death or imprisoned for any term of years or for life, or both if the offense results in the death of any person.'; and

(3) by amending paragraph (2) to read as follows:

`(2)(A) There is extraterritorial jurisdiction over the offenses described in paragraph (1).

`(B) In a prosecution for a violation of, or an attempt or conspiracy to violate subparagraph (A)(i), (A)(ii), or (B) of paragraph (1), that occurs on the high seas, no defense based on necessity can be raised unless the defendant--

`(i) reported to the Coast Guard, as soon as practicable--

`(I) the circumstances of the necessity; and

`(II) if a rescue is claimed, the name, description, registry number, and location of the vessel engaging in the rescue; and

`(ii) did not bring, attempt to bring, or in any manner intentionally facilitate the entry of any alien into the land territory of the United States without lawful authority, unless exigent circumstances existed that placed the life of that alien in danger, in which case the reporting requirement under clause (i) is satisfied by notifying the Coast Guard as soon as practicable after delivering the alien to emergency medical or law enforcement personnel ashore.

`(C) It is a defense to a violation of, or an attempt or conspiracy to violate, clause (iii) or (iv) of paragraph (1)(A) for a religious denomination having a bona fide nonprofit, religious organization in the United States, or the agents or officer 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.

`(D) In this paragraph and in paragraph (1)--

`(i) the term `lawful authority'--

`(I) means permission, authorization, or waiver that is expressly provided for in the immigration laws of the United States or the regulations prescribed under those laws; and

`(II) does not include any such authority secured by fraud or otherwise obtained in violation of law or authority that has been sought but not approved.

`(ii) the term `United States' means the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, and every other territory and possession of the United States.'.

SEC. 5. MARITIME LAW ENFORCEMENT.

(a) Penalties- Section 2237(b) of title 18, United States Code, is amended to read as follows:

`(b)(1) Except as provided under paragraph (2), any person who intentionally violates this section shall, be fined under this title, imprisoned for not more than 5 years, or both.

`(2)(A) A person described in paragraph (1) shall be fined under this title, imprisoned for not more than 10 years, or both if the violation is committed in the course of a violation of--

`(i) section 274 of the Immigration and Nationality Act (alien smuggling);

`(ii) chapter 77 (peonage, slavery, and trafficking in persons), section 111 (shipping), 111A (interference with vessels), 113 (stolen property), or 117 (transportation for illegal sexual activity) of this title;

`(iii) chapter 705 (maritime drug law enforcement) of title 46; or

`(iv) title II of the Act of June 15, 1917 (40 Stat. 220).

`(B) A person described in paragraph (1) shall be fined under this title, imprisoned not more than 15 years, or both if the violation results in serious bodily injury (as defined in section 1365) or transportation under inhumane conditions.

`(C) A person described in paragraph (1) shall be fined under this title, imprisoned for any term of years or for life, or both if the violation--

`(i) results in death; or

`(ii) involves kidnaping, an attempt to kidnap, the conduct required for aggravated sexual abuse (as defined in section 2241 without regard to where it takes place), an attempt to commit such abuse, or an attempt to kill.'.

(b) Limitation on Necessity Defense- Section 2237(c) of title 18, United States Code, is amended--

(1) by inserting `(1)' after `(c)';

(2) by adding at the end the following:

`(2) In a prosecution for a violation of this section, no defense based on necessity can be raised unless the defendant--

`(A) as soon as practicable upon reaching shore, delivered the person with respect to which the necessity arose to emergency medical or law enforcement personnel;

`(B) as soon as practicable, reported to the Coast Guard the circumstances of the necessity resulting giving rise to the defense; and

`(C) did not bring, attempt to bring, or in intentionally facilitate the entry of any alien (as defined in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3))) into the land territory of the United States without lawful authority, unless exigent circumstances existed that placed the life of that alien in danger, in which case the reporting requirement under subparagraph (B) is satisfied by notifying the Coast Guard as soon as practicable after delivering that person to emergency medical or law enforcement personnel ashore.'.

(1) by redesignating paragraphs (3) and (4) as paragraphs (4) and (5), respectively; and

(2) by inserting after paragraph (2) the following:

`(3) the term `transportation under inhumane conditions' means--

`(A) transportation of persons in an engine compartment, storage compartment, or other confined space;

`(B) transportation at an excessive speed;

`(C) transportation of a number of persons in excess of the rated capacity of the means of transportation; or

`(D) intentionally grounding a vessel in which persons are being transported.'.

SEC. 6. AMENDMENT TO THE SENTENCING GUIDELINES.

(a) In General- Pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this section, the United States Sentencing Commission shall review and, if appropriate, amend the sentencing guidelines and policy statements applicable to persons convicted of alien smuggling offenses and criminal failure to heave to or obstruction of boarding.

(b) Considerations- In carrying out this section, the Sentencing Commission, shall--

(1) consider providing sentencing enhancements or stiffening existing enhancements for those convicted of offenses described in paragraph (1) that--

(A) involve a pattern of continued and flagrant violations;

(B) are part of an ongoing commercial organization or enterprise;

(D) involve the transportation or abandonment of aliens in a manner that endangered their lives; or

(E) involve the facilitation of terrorist activity; and

(2) consider cross-references to the guidelines for criminal sexual abuse and attempted murder.

(c) Expedited Procedures- The Commission may promulgate the guidelines or amendments under this section in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987, as though the authority under that Act had not expired.

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