S 2709

Calendar No. 594

110th CONGRESS
2d Session

S. 2709

To increase the criminal penalties for illegally reentering the United States and for other purposes.

IN THE SENATE OF THE UNITED STATES

March 5, 2008

Mr. SESSIONS introduced the following bill; which was read the first time

March 6, 2008

Read the second time and placed on the calendar

A BILL

To increase the criminal penalties for illegally reentering the United States 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 `Border Crossing Deterrence Act of 2008'.

SEC. 2. EXPANSION OF OPERATION STREAMLINE.

    (a) In General- Not later than December 31, 2009, the Secretary of Homeland Security, in Cooperation with the Attorney General, shall expand Operation Streamline (the zero-tolerance prosecution policy for illegal entry and reentry) to all 20 border sectors.

    (b) Authorization of Appropriations- There are authorized to be appropriated $500,000,000 for each of the fiscal years 2009 through 2018 to carry out this section.

SEC. 3. MANDATORY MINIMUM SENTENCES FOR ILLEGAL ENTRY.

    Section 275 of the Immigration and Nationality Act (8 U.S.C. 1325) is amended--

      (1) by redesignating subsections (c) and (d) as subsections (d) and (e), respectively; and

      (2) by inserting after subsection (b) the following:

    `(c) Improper Time or Place; Criminal Penalties- Any alien who is apprehended while entering, or attempting to enter, the United States at a time and place other than as designated by immigration offices--

      `(1) in the case of a first violation of subsection (a), shall be sentenced to a term of imprisonment of not less than 10 days and not more than 364 days;

      `(2) in the case of a second violation of subsection (a), shall be sentenced to a term of imprisonment of not less than 60 days and not more than 2 years; and

      `(3) in the case of a third or subsequent violation of subsection (a), shall be sentenced to a term of imprisonment of not less than 90 days and not more than 3 years.'.

SEC. 4. MANDATORY MINIMUM SENTENCES FOR 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 90 days and not more than 2 years.

    `(b) Reentry of Criminal Offenders- Notwithstanding the penalty prescribed under subsection (a), an alien described in that subsection who was--

      `(1) convicted for 3 or more misdemeanors or a felony before such removal or departure, shall be fined under title 18, United States Code, and imprisoned for not less than 1 year and not more than 10 years;

      `(2) convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 30 months, shall be fined under such title, and imprisoned for not less than 2 years and not more than 15 years;

      `(3) convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 60 months, shall be fined under such title and imprisoned for not less than 4 years and not more than 20 years;

      `(4) convicted for 2 or more felonies before such removal or departure, shall be fined under such title and imprisoned for not less than 4 years and for not more than 20 years; or

      `(5) convicted, before such removal or departure, for murder, rape, kidnapping, for a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, shall be fined under such title and imprisoned for not less than 5 years and not more than 20 years.

    `(c) Reentry After Repeated Removal- Any alien who, after having been denied admission, excluded, deported, or removed 2 or more times, 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 for not less than 2 years and not more than 10 years.

    `(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) the alien had sought and received, before the alleged violation, the express consent of the Secretary of Homeland Security to reapply for admission into the United States;

      `(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 under any prior Act; and

        `(B) had complied with all other laws and regulations governing the alien's admission into the United States; or

      `(3) at the time of the prior exclusion, deportation, removal, or denial of admission alleged in the violation, the alien--

        `(A) was younger than 18 years of age; and

        `(B) had not been convicted of a crime or adjudicated a delinquent minor by a court of the United States, or a court of a State or territory, for conduct that would constitute a felony if committed by an adult.

    `(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 Before Completing 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--

      `(1) incarcerated for the remainder of the term 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; and

      `(2) 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) Limitation- An individual who provides an alien with emergency humanitarian assistance, including emergency medical care and food, or transports the alien to a location where such assistance can be rendered without compensation or the expectation of compensation may not be prosecuted for aiding and abetting a violation of this section based on the provision of such humanitarian services .

    `(i) 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, of any State, or of a foreign government.

      `(2) MISDEMEANOR- The term `misdemeanor' means any criminal offense punishable by a maximum term of imprisonment of not more than 1 year under the applicable laws of the United States, of any State, or of a foreign government.

      `(3) REMOVAL- The term `removal' includes any denial of admission, exclusion, deportation, or removal, or any agreement by which an alien stipulates or agrees to exclusion, deportation, or removal.

      `(4) STATE- The term `State' means any of the several States of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.'.

SEC. 5. MANDATORY MINIMUM SENTENCES FOR DESTROYING BORDER BARRIERS OR INFRASTRUCTURE.

    Section 1361 of title 18, United States Code, is amended--

      (1) by striking `Whoever' and inserting the following:

    `(a) In General- Whoever'; and

      (2) by adding at the end the following:

    `(b) Destruction of Border Barriers or Infrastructure- Any alien who damages or destroys fencing or infrastructure, such as cameras, sensors, and vehicle barriers, that has been installed along the international border of the United States by the United States Government shall be fined under this title and imprisoned for not less than 5 years.'.

Calendar No. 594

110th CONGRESS

2d Session

S. 2709

A BILL

To increase the criminal penalties for illegally reentering the United States and for other purposes.

March 6, 2008

Read the second time and placed on the calendar

END