II 

109TH CONGRESS 

2D SESSION S. 2355 

To amend chapter 27 of title 18, United States Code, to prohibit the unauthorized construction, financing, or reckless permitting (on one’s land) 

the construction or use of a tunnel or subterranean passageway between 

the United States and another country. 

IN THE SENATE OF THE UNITED STATES 

MARCH 2, 2006 

Mrs. FEINSTEIN (for herself, Mr. KYL, Ms. CANTWELL, Mr. FRIST, Mrs. 

BOXER, Mrs. HUTCHISON, Mr. MCCAIN, Mr. DOMENICI, and Mr. BINGAMAN) introduced the following bill; which was read twice and referred to 

the Committee on the Judiciary 

A BILL 

To amend chapter 27 of title 18, United States Code, to 

prohibit the unauthorized construction, financing, or 

reckless permitting (on one’s land) the construction or 

use of a tunnel or subterranean passageway between 

the United States and another country. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Border Tunnel Preven5 tion Act’’. 


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1 SEC. 2. CONSTRUCTION OF BORDER TUNNEL OR PASSAGE. 

2 (a) IN GENERAL.—Chapter 27 of title 18, United 

3 States Code, is amended by adding at the end the fol4 lowing: 

5 ‘‘§ 554. Border tunnels and passages 

6 ‘‘(a) Any person who knowingly constructs or fi7 nances the construction of a tunnel or subterranean pas8 sage that crosses the international border between the 

9 United States and another country, other than a lawfully 

10 authorized tunnel or passage known to the Secretary of 

11 Homeland Security and subject to inspection by the Bu12 reau of Immigration and Customs Enforcement, shall be 

13 imprisoned for not more than 20 years. 

14 ‘‘(b) Any person who recklessly permits the construc15 tion or use of a tunnel or passage described in subsection 

16 (a) on land that the person owns or controls shall be im17 prisoned for not more than 10 years. 

18 ‘‘(c) Any person who uses a tunnel or passage de19 scribed in subsection (a) to unlawfully smuggle an alien, 

20 goods (in violation of section 545), controlled substances, 

21 weapons of mass destruction (including biological weap22 ons), or a member of a terrorist organization (as defined 

23 in section 212(a)(3)(B)(vi) of the Immigration and Na24 tionality Act (8 U.S.C. 1182(a)(3)(B)(vi))) shall be sub25 ject to twice the penalty that would have otherwise been 


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1 imposed had the unlawful activity not made use of such 

2 a tunnel or passage.’’. 

3 (b) CLERICAL AMENDMENT.—The table of sections 

4 for chapter 27 of title 18, United States Code, is amended 

5 by adding at the end the following: 

‘‘Sec. 554. Border tunnels and passages.’’. 

6 (c) CRIMINAL FORFEITURE.—Section 982(a)(6) of 

7 title 18, United States Code, is amended by inserting 

8 ‘‘554,’’ before ‘‘1425,’’. 

9 SEC. 3. DIRECTIVE TO THE UNITED STATES SENTENCING 

10 COMMISSION. 

11 (a) IN GENERAL.—Pursuant to its authority under 

12 section 994 of title 28, United States Code, and in accord13 ance with this section, the United States Sentencing Com14 mission shall promulgate or amend sentencing guidelines 

15 to provide for increased penalties for persons convicted of 

16 offenses described in section 554 of title 18, United States 

17 Code, as added by section 1. 

18 (b) REQUIREMENTS.—In carrying out this section, 

19 the United States Sentencing Commission shall— 

20 (1) ensure that the sentencing guidelines, policy 

21 statements, and official commentary reflect the seri22 ous nature of the offenses described in section 554 

23 of title 18, United States Code, and the need for ag24 gressive and appropriate law enforcement action to 

25 prevent such offenses; 


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1 (2) provide adequate base offense levels for of2 fenses under such section; 

3 (3) account for any aggravating or mitigating 

4 circumstances that might justify exceptions, includ5 ing— 

6 (A) the use of a tunnel or passage de7 scribed in subsection (a) of such section to fa8 cilitate other felonies; and 

9 (B) the circumstances for which the sen10 tencing guidelines currently provide applicable 

11 sentencing enhancements; 

12 (4) ensure reasonable consistency with other 

13 relevant directives, other sentencing guidelines, and 

14 statutes; 

15 (5) make any necessary and conforming 

16 changes to the sentencing guidelines and policy 

17 statements; and 

18 (6) ensure that the sentencing guidelines ade19 quately meet the purposes of sentencing set forth in 

20 section 3553(a)(2) of title 18, United States Code. 

Æ 


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