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# Legislative Bulletin...........................................September 21, 2006

> **Contents:**
>
> **H.R. 4830** --- Border Tunnel Prevention Act of 2006
>
> **H.R. 6094** --- Community Protection Act of 2006
>
> **H.R. 6095** --- Immigration Law Enforcement Act of 2006

H.R. 4830 --- Border Tunnel Prevention Act --- *as introduced* (Dreier,
R-CA)

**[Order of Business]{.underline}:** The bill is scheduled for
consideration on Thursday, September 21, 2006, subject to a closed rule
(H.Res.
[1018](http://www.rules.house.gov/SpecialRules_details.aspx?NewsID=2077)).

**[Summary]{.underline}:** H.R. 4830 would provide for prison terms for
individuals who construct illegal tunnels or passages crossing U.S.
international borders. The specific provisions of the bill are as
follows:

[]{.mark}

-   Provides up to a 20-year prison sentence for anyone who knowingly
    constructs or finances the construction of an unlawful tunnel or
    passage that crosses the international border between the U.S. and
    another country;

-   Provides for up to a 10-year prison sentence for anyone who
    recklessly permits the construction of a tunnel or passage (crossing
    international borders) on land that the person owns or controls;

-   Provides for double the penalty that would otherwise be imposed for
    anyone who uses a tunnel or passage to unlawfully smuggle an alien,
    goods, controlled substances, weapons of mass destruction, or a
    terrorist organization member into the U.S.; and

-   Directs the U.S. Sentencing Commission to:

    -   ensure that sentencing guidelines reflect the "serious nature"
        of the offenses described in 18 U.S.C 554, and the need for
        aggressive and appropriate law enforcement; and

    -   account for aggravating or mitigating circumstances that might
        justify exceptions.

**[Committee Action]{.underline}:** H.R. 4830 was introduced on March 1,
2006, and referred to the Committee on the Judiciary, which took no
official action.

[**Administration Policy**:]{.underline} A Statement of Administration
Policy was unavailable at the time of publication.

**[Cost to Taxpayers]{.underline}:** A CBO score of H.R. 4830 is
unavailable, but the bill does not authorize new expenditures.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}:** As noted above, the bill establishes new
federal crimes and provides for additional mandatory minimum sentences.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}:** No.

**[Constitutional Authority]{.underline}:** A committee report citing
constitutional authority is unavailable.

House Rule XIII, Section 3(d)(1), requires that all committee reports
contain "a statement citing the *specific* powers granted to Congress in
the Constitution to enact the law proposed by the bill or joint
resolution." *\[emphasis added\]*

**[RSC Staff Contact]{.underline}:** Derek V. Baker;
[derek.baker@mail.house.gov](mailto:Derek.baker@mail.house.gov);
202-226-8585

H.R. 6094 --- Community Protection Act of 2006 --- *as introduced*
(Sensenbrenner, R-WI)

**[Order of Business]{.underline}:** The bill is scheduled for
consideration on Thursday, September 21, 2006, subject to a closed rule
(H.Res.
[1018](http://www.rules.house.gov/SpecialRules_details.aspx?NewsID=2077)).

**[Summary]{.underline}:** H.R. 6094 would make a number of revisions to
current law enhancing the Department of Homeland Security's (DHS)
ability to detain illegal aliens in a variety of circumstances, and
strengthens provisions in current law regarding the removal of criminal
aliens and detention and removal of alien gang members (similar to
provisions included in the House-passed Border Protection bill, H.R.
4437). The specific provisions of the bill are as follows:

**Title I -- Dangerous Alien Detention Act**

-   Makes DHS, instead of the Attorney General, responsible for
    enforcing immigration enforcement issues. U.S. Citizenship and
    Immigration Services (USCIS) is under the authority of DHS since the
    passage of the Homeland Security Act in 2002 (P.L. 107-296);

-   Stipulates, upon a removal order for an illegal alien, that the
    current 90-day removal period does not begin until the alien is in
    DHS custody, and further stipulates that the 90-day period is
    temporarily suspended if the alien is transferred to another
    government agency (and resumes once the alien back in DHS custody);

-   Allows the 90-day removal period to be extended and the alien to
    remain in custody, if the alien fails or refuses to cooperate with
    efforts to establish his identity or conspires to prevent his
    removal (similar to current law but adds the additional requirements
    to be cooperative in DHS' efforts for removal);

-   Allows DHS to detain an alien who was granted a stay of removal by a
    court, the Board of Immigration Appeals, or an immigration court and
    is subject to an administrative final order of removal;

-   Allows DHS, while holding an alien beyond the 90-day removal period,
    to implement the following additional restrictions on the alien's
    activities:

1)  to prevent the alien from absconding;

2)  for the "protection of the community;" or

3)  for other purposes related to the enforcement of immigration laws.

-   Clarifies existing law to allow DHS to detain an illegal alien, whom
    DHS determines is a public risk or likely will not comply with
    removal (from the U.S.), indefinitely until the alien is removed
    (subject to certain limitations defined in current law);

-   Allows, at the discretion of the DHS Secretary, an alien being
    detained to be paroled if he is an applicant for admission, but also
    provides that the alien must be returned to custody if the alien
    violates parole or his removal becomes "reasonably foreseeable;"

-   Establishes a detention removal process, for aliens who "fully
    cooperative with removal," to determine whether the alien should be
    detained or released on conditions pending removal;

-   Prohibits the DHS Secretary from delegating authority to make or
    renew a certification (to extend an alien's detention) below the
    level of Assistant Secretary for Immigration and Customs
    Enforcement;

-   Allows DHS, at the Secretary's discretion, to continue to detain an
    alien for an additional 90 days beyond the initial 90-day removal
    period (and allows for certain extensions);

-   Allows DHS, at the Secretary's discretion, to continue to detain an
    alien beyond the 90-day removal period and until he is removed:

    A.  if DHS determines that there is "significant likelihood" that
        the alien:

1)  will be removed in the reasonably foreseeable future; or

2)  would have been removed but for the alien's failure to cooperate;

    A.  if DHS and the Department of Health & Human Services (HHS)
        determine that the alien has a highly contagious disease that
        poses a public safety threat (also provides for 6-month
        renewals, allowing the alien to submit evidence to the
        contrary);

    B.  if the Secretary of State states in writing that release of the
        alien is likely to have serious adverse foreign policy
        consequences for the U.S.;

    C.  if release of the alien would the national security of the U.S.
        (possibly based on classified, sensitive, or national security
        information);

    D.  if the release of the alien would threaten the safety of the
        community or any person, conditions of release cannot be
        expected to ensure community safety, *and* the alien either has
        been convicted of an aggravated felony or has committed a
        violent crime.

-   Allows DHS to detain aliens beyond the 90-day removal period and
    without any limitations if: 1) the alien has entered the U.S.
    illegally and 2) the alien has not been present in the U.S.
    continually for the past two years. Thus, the above-mentioned
    additional restrictions placed on DHS in holding aliens beyond the
    90-day removal period would not be in effect;

-   Provides that judicial review of any action or decision for the
    provisions of this Act is to be available exclusively in habeas
    corpus (required court appearance of the defendant to consider the
    charge against him) proceedings instituted in the U.S. District
    Court for the District of Columbia, and only if the alien has
    exhausted all other administrative remedies;

-   Amends 8 U.S.C. 1226 (regarding apprehension and detention of
    aliens) to allow an alien to be detained by DHS under this section,
    without limitation, until the alien is subject to an
    administratively final order of removal; and

-   Applies a severability clause to all provisions of this Act. The
    clause states:

> "If any provision of this title, or any amendment made by this title,
> or the application of any such provision to any person or
> circumstance, is held to be invalid for any reason, the remainder of
> this title, and of the amendments made by this title, and the
> application of the provisions and of the amendments made by this title
> to any other person or circumstance, shall not be affected by such
> holding."

**Title II -- Criminal Alien Removal Act**

-   Allows DHS to issue an order of removal (in lieu of removal
    proceedings) for an alien who:

    -   has not been admitted or paroled;

    -   has not been found to have a credible fear of persecution (per
        procedures under section 235(b)(1)(B)); and

    -   is not eligible for a waiver of inadmissibility or relief from
        removal.

-   Provides that the provisions of Title II will take effect on the
    enactment date of this Act, but do not apply to aliens who are in
    removal proceedings (under section 240 of the Immigration and
    Nationality Act) as of that date.

**Title III -- Alien Gang Removal Act**

-   Provides that an alien is inadmissible (and therefore cannot receive
    a visa or be admitted into the U.S.) if:

    -   the alien has been removed (under section 237(a)(2)(F)); or

    -   the consular office or DHS has reason to believe that the alien
        is a) a member of a criminal street gang and has conspired to
        commit a gang crime or any other unlawful activity, or b) is a
        member of a criminal street gang designated under section 219A
        (listing specific gangs in the U.S. Code);

-   Provides specific definitions for terms such as "gang crime" and
    "criminal street gang" for this section of the code;

-   Provides than an alien is deportable who a) is a member of a
    criminal street gang and is convicted of a committing or conspiring
    to commit a gang crime or 2) is determined by DHS to be a member of
    a criminal street gang under section 219A;

-   Provides procedures that allow DHS to designate a group or
    association as a criminal street gang, requires prior notification
    to Congress for each designation, and provides for review of
    designations and a petition process for groups that have been
    defined as a criminal street gang; and

-   Provides for mandatory detention for those individuals DHS
    determines to be members of a criminal street gang (according to
    certain stipulations), and prohibits those aliens from receiving
    asylum or temporary protected status.

**[Additional Background]{.underline}:** According to the House
Judiciary Committee, "in [Zadvydas v. Davis]{.underline} and [Clark v.
Martinez]{.underline}, the Supreme Court ruled that under current law,
aliens ordered removed cannot be detained for more than six months if
they cannot not be removed for any reason. DHS has had no choice but to
release back onto our streets many hundreds of criminal aliens as a
result of the decisions. Jonathan Cohn, Deputy Assistant Attorney
General, has testified that 'the government is \[now\] required to
release numerous rapists, child molesters, murderers, and other
dangerous illegal aliens into our streets. . . . \[V\]icious criminal
aliens are now being set free within the U.S.' This title is based on a
provision from H.R. 4437 that allows DHS to detain beyond six months
dangerous aliens under orders of removal who cannot be removed in a
number of situation..."

**[Committee Action]{.underline}:** H.R. 6094 was introduced on
September 19, 2006, and referred to the Committee on the Judiciary,
which took no official action.

[**Administration Policy**:]{.underline} A Statement of Administration
Policy was unavailable at the time of publication.

**[Cost to Taxpayers]{.underline}:** A CBO score of H.R. 6094 is
unavailable, but the bill does not authorize new expenditures.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}:** As noted above, the bill modifies and
expands current law with regard to alien detention and removal.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}:** No.

**[Constitutional Authority]{.underline}:** A committee report citing
constitutional authority is unavailable.

House Rule XIII, Section 3(d)(1), requires that all committee reports
contain "a statement citing the *specific* powers granted to Congress in
the Constitution to enact the law proposed by the bill or joint
resolution." *\[emphasis added\]*

**[RSC Staff Contact]{.underline}:** Derek V. Baker;
[derek.baker@mail.house.gov](mailto:Derek.baker@mail.house.gov);
202-226-8585

H.R. 6095 --- Immigration Law Enforcement Act of 2006 --- *as
introduced* (Sensenbrenner, R-WI)

**[Order of Business]{.underline}:** The bill is scheduled for
consideration on Thursday, September 21, 2006, subject to a closed rule
(H.Res.
[1018](http://www.rules.house.gov/SpecialRules_details.aspx?NewsID=2077)).

**[Summary]{.underline}:** The bill explicitly provides that state and
local law enforcement personnel have the authority to apprehend and
detain (or transfer to federal custody) illegal aliens in the U.S. while
enforcing U.S. immigration laws in the course of carrying out routine
duties. The bill modifies existing law regarding alien smuggling and
criminal alien removal, and would end the practice of "catch and
release" with illegal aliens. The specific provisions of the bill are as
follows:

**Title I -- State and Local Law Enforcement Cooperation in Immigration
Law Enforcement**

-   Explicitly states and reaffirms the existing inherent authority of
    states and law enforcement personnel of a state (or a political
    subdivision) to investigate, identify, apprehend, arrest, detain, or
    transfer to federal custody, aliens in the U.S. for the purposes of
    assisting in the enforcement of the immigration laws of the U.S. in
    the course of carrying out routine duties. This is identical to a
    Rep. Norwood amendment, which was adopted by a vote of
    [237-180](http://clerk.house.gov/evs/2005/roll656.xml) on H.R. 4437,
    the House-passed Border Protection bill.

**Title II -- Alien Smuggler Prosecution Act**

-   States a number of congressional finding, including:

    -   "Alien smuggling is a lucrative business. Each year, criminal
        organizations that smuggle or traffic in persons are estimated
        to generate \$9,500,000,000 in revenue worldwide;

    -   "Alien smuggling frequently involves dangerous and inhumane
        conditions for smuggled aliens. Migrants are frequently abused
        or exploited, both during their journey and upon reaching the
        United States. Consequently, aliens smuggled into the United
        States are at significant risk of physical injury, abuse, and
        death;

    -   "Notwithstanding that alien smuggling poses a risk to the United
        States as a whole, uniform guidelines for the prosecution of
        smuggling offenses are not employed by the various United States
        attorneys. Understanding that border-area United States
        attorneys face an overwhelming workload, a lack of sufficient
        prosecutions by certain United States attorneys has encouraged
        additional smuggling, and demoralized Border Patrol officers
        charged with enforcing our anti-smuggling laws."

-   States the sense of Congress that that the Attorney General should
    adopt (within 3 months after enactment) uniform guidelines for the
    prosecution of smuggling offenses to be followed by each United
    States attorney in the U.S.; and

-   Requires the Department of Justice to employ at least 20 new
    attorneys in the pool of United States attorneys employed to
    prosecute cases regarding alien smuggling (subject to the
    availability of appropriations) for each year in FY08-FY13.

**Title III -- Ending Catch and Release Act**

-   Establishes additional requirements that courts must adhere to when
    a court has determined that prospective relief should be granted for
    an alien (against the government in a civil action regarding the
    enforcement of immigration laws). In other words, if an alien is
    being held for an immigration violation and files for "relief"
    (reversal or a lessening of the requirements or penalties of the
    violation), the relief granted under the new provisions must be
    narrowly tailored. Under this provision, the court must:

    -   limit the relief to the minimum necessary to correct the
        violation of law;

    -   adopt the least intrusive means to correction the violation of
        law;

    -   minimize the impact on national security, border security,
        immigration enforcement, and public safety; and

    -   provide a specific date that the relief expires (which must not
        be later than the earliest date necessary for the government to
        remedy the violation); in other words, not allowing any
        additional time of relief for the alien than is absolutely
        necessary.

-   Provides that preliminary injunctive relief must expire on the date
    that is 90 days after it was initiated (unless certain conditions
    are met);

-   Requires courts to "promptly" rule on the government's motion to
    vacate, modify, dismiss or terminate an order granting prospective
    relief regarding immigration violations;

-   Provides that the government's motion to vacate or otherwise
    terminate an order granting prospective relief be automatically
    effective within 15 days (from the date it was filed), unless the
    court acts to deny the government's motion within that 15-day
    timeframe; thus, unless the court acts to deny the government's
    motion, it will automatically go into effect in 15 days (and
    continue in effect until the court acts).

**[Additional Background]{.underline}:** Regarding Title III, according
to the House Judiciary Committee, "DHS is subject to injunctions entered
as much as 30 years ago that impact its ability to enforce the
immigration laws. DHS is using expedited removal to expeditiously remove
other non-Mexican illegal immigrants who are apprehended along the
Southern border in order to end the policy of catch and release." The
Committee states that Title III "would result in the end of the
Salvadoran injunction by establishing requirements under which courts
can order prospective relief in immigration cases, and by requiring
courts to promptly rule on government motions to vacate, modify,
dissolve, or otherwise terminate orders granting prospective relief in
immigration cases and stay orders granting such relief."

**[Committee Action]{.underline}:** H.R. 6095 was introduced on
September 19, 2006, and referred to the Committee on the Judiciary,
which took no official action.

[**Administration Policy**:]{.underline} A Statement of Administration
Policy was unavailable at the time of publication.

**[Cost to Taxpayers]{.underline}:** A CBO score of H.R. 6095 is
unavailable, but the bill does not authorize new expenditures.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}:** As noted above, the bill provides additional
regulations and procedures courts must follow when granting relief to
aliens who have violated U.S. immigration laws.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}:** No.

**[Constitutional Authority]{.underline}:** A committee report citing
constitutional authority is unavailable.

House Rule XIII, Section 3(d)(1), requires that all committee reports
contain "a statement citing the *specific* powers granted to Congress in
the Constitution to enact the law proposed by the bill or joint
resolution." *\[emphasis added\]*

**[RSC Staff Contact]{.underline}:** Derek V. Baker;
[derek.baker@mail.house.gov](mailto:Derek.baker@mail.house.gov);
202-226-8585